PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                     No. 13-4547
                    _____________

    PORT AUTHORITY TRANS-HUDSON CORP.,
                                  Petitioner

                           v.

   SECRETARY, UNITED STATES DEPARTMENT
      OF LABOR, AS DELEGATED TO THE
      ADMINISTRATIVE REVIEW BOARD,
                    Respondent

                   *Christopher Bala,
                               Intervenor

      *(Pursuant to the Clerk’s Order dated 2/6/14)


 On Petition for Review from the Administrative Review
    Board of the United States Department of Labor
                  ARB Case No. 12-048

              Argued November 19, 2014

Before: SMITH, HARDIMAN, and BARRY, Circuit Judges
                (Filed: January 15, 2015)


Megan Lee, Esq. (ARGUED)
Port Authority of New York & New Jersey
Litigation and Corporate Security
225 Park Avenue South
13th Floor
New York, NY 10003
       Counsel for Petitioner

Steven W. Gardiner, Esq. (ARGUED)
United States Department of Labor
Office of the Solicitor
Suite N-2716
200 Constitution Avenue, N.W.
Washington, DC 20210
       Counsel for Respondent

Lawrence M. Mann, Esq.
Alper & Mann
9205 Redwood Avenue
Bethesda, MD 20817
      Counsel for Amicus-respondent

Ronald M. Johnson, Esq. (ARGUED)
Jones Day
51 Louisiana Avenue, N.W.
Washington, DC 20001
      Counsel for Amicus-petitioner


                           2
Charles C. Goetsch, Esq. (ARGUED)
Cahill, Goetsch & Perry
43 Trumbull Street
New Haven, CT 06510
       Counsel for Intervenor respondent

Harry W. Zanville, Esq.
Suite 1201
500 West Harbor Drive
San Diego, CA 92101
       Counsel for Amicus-respondent
                 _____________________

                       OPINION
                 _____________________


SMITH, Circuit Judge.

       Petitioner railroad Port Authority Trans-Hudson
Corporation (“PATH”) challenges a decision and order of
the Administrative Review Board of the United States
Department of Labor, which held that PATH violated the
Federal Railroad Safety Act when it suspended one of its
employees for excessive absenteeism. Specifically,
PATH was held to have violated an anti-retaliation
provision, 49 U.S.C. § 20109(c)(2), which prohibits
railroads from disciplining employees “for following
orders or a treatment plan of a treating physician.” The
physician’s order which the employee was following
related to treatment for an off-duty injury. Reading
                             3
subsection (c)(2) in context, we agree with PATH that
only physicians’ orders which stem from on-duty injuries
are covered.

      Accordingly, we will grant the petition.

                            I.
      Intervenor Christopher Bala is a unionized signal
repairman who has worked for PATH since 1990. Per
PATH’s agreement with Bala’s union, signal repairmen
of Bala’s seniority are entitled to 12.5 paid holidays and
23 paid vacation days per year. Separate from this
allotment of paid holidays and vacations, Bala took in
excess of 600 sick and personal days through 2008.1 In
2007 alone, Bala took 82 sick days, compared to the 17
days of sick leave per year taken by unionized signalmen
at PATH, on average, between 2002 and 2008. As a
result of these absences, PATH issued numerous
warnings to Bala over the years that if his attendance did
not improve formal disciplinary action might be taken.

      On June 22, 2008, Bala experienced back pain
while moving boxes at his home. The next day, Bala’s

1
  Under the union agreement, if Bala is “prevented from
performing [his] duties by reason of sickness,” he is to be
paid in full for up to 65 days of sick leave annually, and
to receive half-pay for an additional 195 days annually.
Bala did not bring a claim pursuant to that agreement.
                            4
physician ordered him off work through July 2008. On
July 14, 2008, PATH followed through on its prior
warnings, and notified Bala that an internal hearing
would be held regarding his absenteeism. As a result of
that hearing, PATH suspended Bala for up to six days
(partially contingent on improved attendance), without
pay, for violating PATH’s attendance policy. The
suspension was based on the sum total of Bala’s
absences, including but not limited to those following his
June 22, 2008 back injury.
       Bala filed a complaint with the Respondent in this
case, the United States Secretary of Labor, alleging that
the suspension was retaliation for taking statutorily
protected sick leave. The Federal Railroad Safety Act
(“FRSA”), 49 U.S.C. § 20101 et seq., provides that “[a]
railroad carrier . . . may not discipline . . . an employee . .
. for following orders or a treatment plan of a treating
physician.”     49 U.S.C. § 20109(c)(2).2            Although
subsection (c)(2) immediately follows a provision
prohibiting railroads from “deny[ing], delay[ing], or

2
   Claimants alleging retaliation for taking statutorily
protected sick leave often rely on the Family and Medical
Leave Act (“FMLA”), which provides workers protected
sick leave and is accompanied by an anti-retaliation
provision.    But at oral argument, Bala’s counsel
expressed some skepticism that Bala would have
qualified under the FMLA due to his prior absences.
                              5
interfer[ing] with the medical or first aid treatment of an
employee who is injured during the course of
employment,” 49 U.S.C. § 20109(c)(1) (emphasis added),
Bala argued that subsection (c)(2) applies regardless of
where an employee is injured. An Administrative Law
Judge (“ALJ”) agreed and held that PATH violated the
FRSA by disciplining Bala for following his physician’s
orders not to work after his off-duty injury,3 and awarded
Bala just over $1,000 in back pay for the days he was
suspended. The Administrative Review Board (“ARB”)
of the United States Department of Labor (“DOL”)
upheld the ALJ’s award in Bala v. Port Authority Trans-
Hudson Corp., ARB Case No. 12-048, 

(Sept. 27, 2013).

      In upholding the award, the ARB rejected PATH’s
argument that subsection (c)(2) is limited to physicians’
orders stemming from on-duty injuries. However, a mere
14 months earlier, in Santiago v. Metro-North Commuter
Railroad Corp., ARB Case No. 10-147, 

(July 25, 2012), a different ARB panel (albeit

3
   The ALJ heard arguments that because Bala had
previously injured his back at work, his subsequent back
injury at his home constituted an aggravation of an on-
duty injury, and accordingly would still be covered even
if subsection (c)(2) only applied to on-duty injuries. As
this issue was not raised below or to this Court, it is
waived.
                            6
comprised of two of the same three members) stated just
the opposite, that subsection (c)(2) “identifies protected
activity as . . . complying with treatment plans for work
injuries.” 

(emphasis added). The Bala panel,
while citing Santiago seven times, failed to address this
clear contradiction.

       PATH petitioned this Court to set aside the ARB’s
decision and order, and presented two questions: (1)
whether subsection (c)(2) applies to orders of treating
physicians that stem from off-duty injuries; and (2)
assuming the statute’s application to off-duty injuries,
whether there was sufficient evidence to find that PATH
disciplined Bala because of such protected absences. We
conclude that Congress intended the entirety of
subsection 20109(c) to apply only when an employee
sustains an injury during the course of employment. It is,
therefore, unnecessary for us to reach the second question
of the sufficiency of the evidence. We will grant
PATH’s petition.

                           II.
      The ARB had jurisdiction, as delegated to it by the
Secretary of Labor, pursuant to 49 U.S.C. § 20109(d)(1).
We have jurisdiction over this appeal pursuant to 49
U.S.C. § 20109(d)(4).

     We review the ARB’s decision to determine if it
was, inter alia, “arbitrary, capricious, an abuse of
                            7
discretion, or otherwise not in accordance with law.” See
5 U.S.C. § 706(2)(A); Doyle v. U.S. Sec’y of Labor, 

, 248-49 (3d Cir. 2002). While “we exercise
plenary review in deciding questions of law,” 

our review is potentially subject to deference under
Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 

(1984). However, “when we
are called upon to resolve pure questions of law by
statutory interpretation, we decide the issue de novo
without deferring to an administrative agency that may
be involved.” Patel v. Ashcroft, 

, 467 (3d
Cir. 2002) (superseded by statute on other grounds).

                          III.
     Before the FRSA was amended by the Rail Safety
Improvement Act of 2008 (“RSIA”),4 49 U.S.C. § 20109
4
  Pub. L. No. 110–432, 122 Stat. 4848 (October 16,
2008). As the RSIA was passed four months after Bala’s
injury, the ARB briefly addressed retroactivity concerns
and held that because Bala’s suspension was not handed
down until after the statute was passed, there was no
retroactivity problem. Since this issue was not raised on
appeal, it is waived. Gonzalez v. AMR, 

,
225 (3d Cir. 2008); Ordway v. United States, 

, 896 (11th Cir. 1990) (non-retroactivity is an
affirmative defense which a court need not always
resolve sua sponte).

                           8
was     exclusively an        anti-retaliation   provision.
Subsections (a) and (b) of § 20109 provided (and still
provide) protections to employees who assist in
investigations into railroad safety, refuse to violate laws
pertaining to railroad safety, notify a railroad or the
Secretary of Transportation about “work-related” injuries
or illnesses, and report and/or refuse to work in
hazardous conditions.       The RSIA inserted a new
subsection (c), containing both an anti-retaliation
provision, subsection (c)(2), and a more direct worker
safety provision, subsection (c)(1):
   (c) Prompt medical attention.—

         (1) Prohibition.--A railroad carrier or
         person covered under this section may not
         deny, delay, or interfere with the medical or
         first aid treatment of an employee who is
         injured during the course of employment.
         If transportation to a hospital is requested by
         an employee who is injured during the
         course of employment, the railroad shall
         promptly arrange to have the injured
         employee transported to the nearest hospital
         where the employee can receive safe and
         appropriate medical care.




                            9
(2) Discipline.--A railroad carrier or person
covered under this section may not
discipline, or threaten discipline to, an
employee for requesting medical or first aid
treatment, or for following orders or a
treatment plan of a treating physician,
except that a railroad carrier’s refusal to
permit an employee to return to work
following medical treatment shall not be
considered a violation of this section if the
refusal is pursuant to Federal Railroad
Administration medical standards for fitness
of duty or, if there are no pertinent Federal
Railroad Administration standards, a
carrier’s medical standards for fitness for
duty. For purposes of this paragraph, the
term “discipline” means to bring charges
against a person in a disciplinary
proceeding, suspend, terminate, place on
probation, or make note of reprimand on an
employee's record.




                  10
49 U.S.C. § 20109(c) (emphasis added). We are the first
federal appeals court to consider a case involving this
subsection.5

       We are confronted here with a statute that
specifically references at subsection (c)(1) “injur[ies]
during the course of employment,” while subsection
(c)(2) does not. PATH argues that the “treatment” in
subsection (c)(2) “refers back” to the “treatment” in
subsection (c)(1) and thereby incorporates the “during the
course of employment” limitation into subsection (c)(2). 6

5
  We have previously encountered § 20109 in Araujo v.
New Jersey Transit Rail Operations, Inc., 

(3d Cir. 2013). There we held that there was enough
evidence supporting the plaintiff’s retaliation claim for
reporting a work-related injury under subsection (a)—a
provision not directly implicated in this case—such that
summary judgment should not have been granted in favor
of the defendant railroad.
6
   This is, at the very least, a permissible theory of
statutory construction. See, e.g., United States v. Navajo
Nation, 

, 299 (2009) (“The ‘program’ twice
mentioned in § 638 refers back to the Act’s opening
provision . . . § 631.”); Melkonyan v. Sullivan, 

, 94 (1991) (“The requirement [in (d)(1)(B)] that the
fee application be filed within 30 days of ‘final judgment
in the action’ plainly refers back to the ‘civil action ... in
any court’ in (d)(1)(A).”).
                             11
The DOL, contending that the two paragraphs are
“distinct” provisions, argues that the absence of the
“during the course of employment” limitation in
subsection (c)(2) reflects a deliberate choice by Congress
to extend protections even to workers who sustain
injuries off-duty. Since, under subsection (c)(2), a
physician’s order could include a direction that an
employee not work (as the physician’s order did in this
case), and because there is no temporal limitation in the
statute, the DOL’s interpretation would functionally
confer indefinite sick leave on all railroad employees
who can obtain a physician’s note.7
       We agree with PATH that the “during the course
of employment” limitation applies to subsection (c)(2).
As we explain below, because subsection (c)(2) is an
anti-retaliation provision obviously related to subsection

7
  The fact that railroads may still be able to discipline
employees who take sick leave in bad faith as well as
those who take excessive unprotected absences, does not
negate the existence of indefinite sick leave for
potentially appreciable numbers of railroad employees.
Nor does the safe-harbor provision in subsection (c)(2),
which allows an employer to refuse to permit an
employee to return to work if s/he does not meet
applicable medical standards. That refusal is permissible
only until the employee meets those standards, at which
point s/he is entitled to return to work.
                           12
(c)(1), it should presumptively be interpreted only to
further the objectives of subsection (c)(1). The DOL’s
broad interpretation of subsection (c)(2) would not
further the objectives of subsection (c)(1), and the DOL
is unable to rebut the aforementioned presumption. The
ARB, relying on Russello v. United States, 

,
23 (1983), concluded that the absence of any express on-
duty limitation in subsection (c)(2), in contrast to the
presence of such a limitation in subsection (c)(1), means
that Congress did not intend for that limitation to apply to
subsection (c)(2). But, for reasons we explain below,
Russello is unhelpful here.
       Moreover, further examination of the statutory text
affirmatively supports the conclusion that subsection
(c)(2) is limited to addressing on-duty injuries. We do
recognize that the DOL advances a logical policy
argument in support of its position: that railroad safety
could be threatened if injured workers are pressured to
return to work by the absence of indefinite sick leave.
But there is no evidence Congress ever considered that
reason, and simultaneously-enacted provisions suggest
that Congress would have written subsection (c)(2)
differently if that were its intent.

                            A.
      Subsection (c)(1), entitled “Prohibition,” is a
“substantive provision;” while subsection (c)(2), entitled
“Discipline,” is an “antiretaliation provision.”
                            13
 See Burlington N. & Santa Fe Ry. Co. v. White, 

, 61-62 (2006) (analyzing the relationship between §§
703 and 704 of Title VII). Generally, an “antiretaliation
provision seeks to secure [the] primary objective”
advanced by the substantive provision. 

Cf.
Dellinger v. Sci. Applications Int’l Corp., 

,
230 (4th Cir. 2011) (“The anti-retaliation provision is
included [in the Fair Labor Standards Act], not as a free-
standing protection . . . but rather as an effort ‘to foster a
climate in which compliance with the substantive
provisions of the [Act] would be enhanced.’”) (quoting
Mitchell v. Robert DeMario Jewelry, Inc., 

,
293 (1960)).

       The plain text of subsection (c)(1), which covers
an “employee who is injured during the course of
employment,” makes clear that its primary objective is to
ensure that railroad employees are able to obtain medical
attention for injuries sustained on-duty. Subsection
(c)(2) furthers that objective by encouraging employees
to take advantage of the medical attention protected by
subsection (c)(1), without facing reprisal. Interpreting
subsection (c)(2) to also cover off-duty injuries would
not further the purposes of subsection (c)(1), which is
explicitly limited to on-duty injuries.

       We think this much is beyond reasonable debate.
Although the DOL contends that the provisions are
“distinct,” it does not contest the fact that subsection

                             14
(c)(2) effectuates the purposes of subsection (c)(1). Nor
does the DOL contest the fact that its broad interpretation
of subsection (c)(2) would not further the purposes of
subsection (c)(1)—indeed the DOL emphasizes that
subsection (c)(2)’s protection for following the “orders or
a treatment plan of a treating physician” is “a distinct
protection only appearing in subsection (c)(2).”
Respondent’s Br. at 21 (emphasis added). So, the real
issue becomes the extent to which—despite their obvious
relationship—subsection (c)(2) is a multi-purpose
provision intended by Congress to also advance an
objective that is independent from those advanced in
subsection (c)(1). Consistent with the construction of
anti-retaliation provisions in general, and in particular
anti-retaliation provisions immediately following a
related substantive provision (as in Burlington and here),
we presume that Congress did not intend subsection
(c)(2) to be a vehicle for advancing an independent
objective.8


8
  See 

(King, J., dissenting)
(characterizing the majority’s approach as a
“presum[ption]”). Of course, we would not allow
considerations of the purpose of an anti-retaliation
provision to trump the statute’s text. For example, we
recently rejected a rather plausible argument that a
whistleblower provision would be undermined, in favor
of “Congress’s intent [as] clearly reflected in the text and
                            15
                            B.
       As “[t]he best evidence of the purpose of a statute
is the statutory text adopted by both Houses of
Congress,” Wyeth v. Levine, 

, 599 (2009)
(Thomas, J., concurring in the judgment) (internal
brackets omitted) (quoting W. Va. Univ. Hosps., Inc. v.
Casey, 

, 98 (1991)), we begin our search for
evidence that Congress actually intended subsection
(c)(2) to advance an independent objective by examining
the textual analysis in the ARB’s decision below. That
analysis focused on an extension of the Supreme Court’s
decision in Russello. “[Russello] set[s] out [a canon of
interpretation] that ‘where Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate


structure of [the Act].” Khazin v. TD Ameritrade
Holding Corp., No. 14-1689, 

, at *4
(3d Cir. Dec. 8, 2014); see also Fogleman v. Mercy
Hosp., Inc., 

, 568-69 (3d Cir. 2002)
(resolving a conflict between “the overall purpose of the
anti-retaliation provisions” and their “plain text” in favor
of the plain text); but cf. Brock v. Richardson, 

, 124 (3d Cir. 1987) (“It follows that courts
interpreting the anti-retaliation provision have looked to
its animating spirit in applying it to activities that might
not have been explicitly covered by the language.”).
                            16
inclusion or exclusion.’” Kapral v. United States, 

, 578 (3d Cir. 1999) (Alito, J., concurring)
(quoting 

) (internal brackets
omitted). Because subsection (c)(1) is explicitly limited
to “injur[ies] during the course of employment” and
subsection (c)(2) is not, applying Russello, the ARB
concluded that Congress clearly intended subsection
(c)(2) to apply without such limitation.9 We disagree.
       At issue in Russello was a Racketeer Influenced
and Corrupt Organizations (“RICO”) forfeiture
provision, 18 U.S.C. § 1963(a)(1), which extended to
“any interest [the person] has acquired or maintained in
violation of [the RICO statute].” The petitioner argued
that one can only have an “interest” in something, and
that per the language of subsection (a)(1) that interest
must be an interest in the enterprise itself (and not in
money or profits derived therefrom). The Supreme Court

9
  The ARB’s insistence in this regard is puzzling. After
all, not only did it reject the conclusion it now advances
in Santiago, it also: (i) rejected an ALJ’s application of
Russello to interpret the relationship between subsections
(c)(1) and (c)(2); (ii) observed the “parallel structure” of
subsections (a), (b) and (c); and (iii) discussed inferring
statutory references from context—all methodological
approaches it abandoned below in order to reach its
contrary conclusion. See Santiago, 

, at
*5-7, 10.
                            17
rejected that analysis on its face, and then stated: “[w]e
are fortified in this conclusion by our examination of the
structure of the RICO 

. Unlike
subsection (a)(1), subsection (a)(2) extended only to
interests “in . . . any enterprise” which were connected to
a person’s RICO violation. Thus, the Supreme Court
concluded that if Congress wanted to restrict subsection
(a)(1) to only interests in enterprises, it would have done
so explicitly as it did in subsection (a)(2).

        We acknowledge a similarity between this case
and Russello—but that similarity is superficial. The
Russello presumption only applies when two provisions
are sufficiently distinct that they do not—either explicitly
or implicitly—incorporate language from the other
provision. See Clay v. United States, 

, 530
(2003) (“in Russello . . . [t]he qualifying words ‘in . . .
any enterprise’ narrowed § 1963(a)(2), but in no way
affected § 1963(a)(1)” (emphasis added; second omission
in original)). Since the critical question here is whether
subsection (c)(1) operates to cabin the scope of
subsection (c)(2), Russello can only be meaningfully
invoked after we resolve that inquiry. 10 Consequently, it
is of little help here.11


10
   Holding otherwise, as the ARB did, would seem to
foreclose the possibility that a statute could reference
another provision without expressly saying so. That, of
                            18
       Moreover, the Russello presumption is based on
“[s]tatutory context,” Carter v. Welles-Bowen Realty,
Inc., 

, 728 (6th Cir. 2013), and “a
hypothesis of careful draftsmanship.” 

(Alito, J., concurring). But that hypothesis is at least
partially eroded by numerous examples of inexact
drafting in § 20109. See City of Columbus v. Ours
Garage & Wrecker Serv., Inc., 

, 435-36
(2002) (not following the Russello presumption, in part
because of perceived drafting inconsistencies). For
example, faced with stronger arguments from the plain
text of the statute than the DOL advances here, other
federal courts have rejected railroads’ contentions that:
(i) employees have no remedy if they fail to receive the


course, is contrary to Supreme Court precedent. 

n.6.
11
   We do note that the Supreme Court invoked Russello
in Burlington, while analyzing how an anti-retaliation
provision interacted with its accompanying substantive
provision. 

. But the Court was not
confronted with an argument (plausible or otherwise) that
the two sections actually referred to each other, as we are
here. Moreover, the Supreme Court invoked Russello to
support its conclusion that the anti-retaliation provision
was meant to further the objectives of the substantive
provision. By contrast, here the DOL invokes Russello to
drive a wedge between the two provisions.
                            19
medical treatment subsection (c)(1) entitles them to;12
and (ii) railroads may bring disciplinary charges against
employees who report accidents and safety violations.13

                             C.
       The basis for rejecting the DOL’s interpretation is
not merely a presumption against it and the
unpersuasiveness of the DOL’s textual arguments.
Rather, a close examination of the statutory text
affirmatively supports the conclusion that subsection
(c)(2) is limited to addressing on-duty injuries. See
Kasten v. Saint-Gobain Performance Plastics Corp., 131
12
   Delgado v. Union Pac. R. Co., No. 12 C 2596, 

, at *2-4 (N.D. Ill. Oct. 11, 2012) (rejecting
the argument that there is no private right of action for a
violation of subsection (c)(1)’s “deny, delay, or interfere”
prohibition, because subsection (d)(1) creates only
private rights of action for “discharge, discipline, or other
discrimination”).
13
   Conrad v. CSX Transp., Inc., No. 13-3730, 

, at *2-3 (D. Md. Oct. 14, 2014), (rejecting the
argument that because bringing disciplinary charges was
expressly defined as “discipline” for purposes of
subsection (c), while not explicitly mentioned as a form
of “discriminat[ion]” prohibited by subsections (a) and
(b), that bringing such charges was not prohibited under
subsections (a) and (b)), vacated and issue rendered
moot, 

(D. Md. Dec. 15, 2014).
                             

, 1330-31 (2011) (“interpretation of [a] phrase
[in an anti-retaliation provision] ‘depends upon reading
the whole statutory text, considering the purpose and
context of the statute, and consulting any precedents or
authorities that inform the analysis.’”) (quoting Dolan v.
Postal Service, 

, 486 (2006)). Subsection
(c) has two different segments (subsections (c)(1) and
(c)(2)) which each provide similar protections to
employees. Moreover, one segment is expressly limited
to matters work-related, while the other has no such
explicit limitation. Strikingly, the same is also true of
subsection (b), making for an illuminating comparison:

   (b) Hazardous safety or security conditions.—
         (1) A railroad carrier engaged in interstate or
         foreign commerce, or an officer or employee
         of such a railroad carrier, shall not
         discharge, demote, suspend, reprimand, or in
         any other way discriminate against an
         employee for—

           (A) reporting, in good faith, a hazardous
         safety or security    condition;
           (B) refusing to work when confronted by
         a hazardous safety or        security
         condition related to the performance of the
            employee’s duties . . .

                           21
49 U.S.C. § 20109(b) (emphasis added).

       The DOL contends, consistent with its approach to
interpreting subsection (c)(2), that because there is no
express qualification in subsection (b)(1)(A), an
employee is protected for reporting any “hazardous
safety or security condition.” At oral argument the DOL
was presented with a reductio ad absurdum: a PATH
employee, wearing a PATH sweatshirt, protests pollution
at a power plant “entirely unrelated” to railroads, his
conduct at that protest impugns PATH’s reputation (since
he was wearing a PATH sweatshirt), and PATH
disciplines him as a result. The DOL, remaining
consistent, responded that such discipline would violate
subsection (b)(1)(A). We cannot agree.
       “[I]t is one of the surest indexes of a mature and
developed jurisprudence not to make a fortress out of the
dictionary; but to remember that statutes always have
some purpose or object to accomplish.” Pub. Citizen v.
U.S. Dep’t of Justice, 

, 454-55 (1989)
(quoting Cabell v. Markham, 

, 739 (2d Cir.
1945) (Hand, J.)). The purpose of the entirety of the
FRSA is as obvious as it is express: “to promote safety
in every area of railroad operations and reduce railroad-
related accidents and incidents.” 49 U.S.C. § 20101.
Accordingly, we think that subsection (b)(1)(A) must be
read as having at least some work-related limitation, even
though no such limitation appears on the face of the

                           22
statute. And if a work-related limitation must be applied
to subsection (b)(1)(A), it would be consistent to also
apply a work-related limitation to subsection (c)(2).

       Subsection (c)(2) itself also supports the
conclusion that an on-duty limitation applies therein.
Although not the portion directly at issue here, subsection
(c)(2) protects employees who “request[] medical or first
aid treatment.” (emphasis added). It seems unlikely that
Congress was concerned about railroads disciplining
employees for requesting medical treatment for off-duty
injuries.14 Indeed, at oral argument, the DOL conceded
that such a scenario was “unlikely as a practical matter”
and could not articulate even a hypothetical situation
where an employee would be disciplined for requesting
medical treatment for an off-duty injury.15 If Congress

14
   Subsection (c)(2)’s title of “Prompt medical attention”
also suggests an on-duty limitation, as it is difficult to
imagine how railroads could be responsible for ensuring
that employees who are injured off-duty receive prompt
medical attention. Cf. I.N.S. v. Nat’l Ctr. for Immigrants’
Rights, Inc., 

, 189 (1991) (“The text’s
generic reference to ‘employment’ should be read as a
reference to the ‘unauthorized employment’ identified in
the paragraph’s title.”).
15
   The DOL’s able counsel did suggest that an employee
who is injured away from work, makes an appointment to
consult with his physician about that injury but cannot
                            23
likely did not consider the application of the phrase
“requesting medical or first aid treatment” in subsection
(c)(2) to off-duty injuries, it is unlikely that Congress
would have shifted course mid-sentence (without any
textual indication) to have the phrase “orders or a
treatment plan of a treating physician” apply to off-duty
injuries.

                           D.
        Although lacking in textual support, the DOL does
provide a logical policy basis for how a broad
interpretation of subsection (c)(2) would advance railroad
safety. The DOL argues that if subsection (c)(2) does not
cover off-work injuries, employees may be “forc[ed] . . .
to choose between violating employer attendance policies
and compromising railroad safety by working while
injured.” Respondent’s Br. at 11. Indeed, certain
railroad employees “are engaged in [such] safety-
sensitive tasks,” that the Supreme Court has compared
the safety implications of their performance to those
“who have routine access to dangerous nuclear power
facilities.” Skinner v. Ry. Labor Exec. Ass’n, 489 U.S.


work between the time the appointment is scheduled and
the appointment itself, might be disciplined. However,
the employee’s inability to work would not be because of
the request for medical treatment but rather in spite of
such request.
                           24
602, 628 (1989) (finding a compelling interest in
subjecting such employees to suspicionless drug testing).

      In passing the RSIA, Congress was clearly
concerned about the safety implications of how
employees perform their duties. See, e.g., 49 U.S.C. §
20156 (requiring a “fatigue management plan” to be
included as part of railroads’ risk reduction programs);
49 U.S.C. § 20162 (requiring the Secretary of
Transportation to establish “minimum training
standards”); RSIA § 405 (requiring the Secretary of
Transportation to study the safety impact of the use of
cell phones and other potentially distracting electronic
devices). But all of these employee safety provisions are
expressly    limited     to    “safety-related    railroad
employees”—a term of art under the FRSA.       16
                                                    These

16
     49 U.S.C. § 20102(4) provides: “‘safety-related
railroad employee’ means--
(A) a railroad employee who is subject to [hours of
service restrictions under] chapter 211; (B) another
operating railroad employee who is not subject to chapter
211; (C) an employee who maintains the right of way of
a railroad; (D) an employee of a railroad carrier who is a
hazmat employee as defined in section 5102(3) of this
title; (E) an employee who inspects, repairs, or maintains
locomotives, passenger cars, or freight cars; and (F) any
other employee of a railroad carrier who directly affects
railroad safety, as determined by the Secretary.”
                           25
provisions build on the longstanding commonsense
recognition that only certain categories of railroad
employees pose unique dangers if they work while
impaired.17 Strikingly, subsection (c)(2) contains no such
limitation, which means it may extend even to railroad
accountants. Had Congress intended to provide sick
leave to workers in safety-sensitive positions in order to
combat potential impairment, it likely would have placed
a limit in subsection (c)(2) to that effect as it has
regularly done when concerned about impaired railroad
employees.

17
   The Hours of Service Act of 1907, 34 Stat. 1415
(March 4, 1907), limited the number of hours railroad
employees could work, if they were “actually engaged in
or connected with the movement of any train” and/or
were an “operator, train dispatcher, or other employee
who by the use of the telegraph or telephone dispatches,
reports, transmits, receives, or delivers orders pertaining
to or affecting train movements.”            The modern
codification, 49 U.S.C. §§ 21101 – 21109 (“chapter
211”), is expressly incorporated as a basis for
determining who is a “safety-related employee,” under
the FRSA. 

n.16. The drug tests at issue in
Skinner were also limited to these types of employees.

(“[t]he final regulations apply to
employees assigned to perform service subject to the
Hours of Service Act, ch. 2939, 34 Stat. 1415, as
amended . . . .”).
                            26
       The alternative is that Congress meant to provide
sick leave to all railroad employees. Providing an entire
industry’s workers a right to unlimited sick leave is a
substantial policy undertaking, and we are unaware of
any other federal laws conferring such a right on workers
in any industry.18 Rather, the default rule under the
Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.,
is that workers (regardless of industry) are provided with
up to 12 weeks of sick leave every 12 months. 29 U.S.C.
§ 2612(a)(1). “Congress . . . does not alter the
fundamental details of a regulatory scheme in vague
terms or ancillary provisions—it does not, one might say,
hide elephants in mouseholes.”          Whitman v. Am.
Trucking Ass’ns, 

, 468 (2001). We are not
prepared to assume that Congress decided to enact such a

18
   The DOL inaptly draws our attention to 49 U.S.C. §
31105(a)(1)(B)—an anti-retaliation provision in the
Surface Transportation Assistance Act—which is
actually similar to § 20109(a)(2). They each provide
protections to transportation employees who refuse to
violate safety-related laws or regulations.          While
Department of Transportation regulations prohibit
commercial drivers from operating a vehicle while “so
impaired, or so likely to become impaired . . . as to make
it unsafe for him/her to begin or continue to operate the
commercial motor vehicle,” 49 C.F.R. § 392.3, the
DOL’s interpretation of § 20109(c)(2) would give
workers leave regardless of whether safety is implicated.
                           27
significant change by inserting an eleven-word sentence
fragment between much more limited protections, from
which such a change could be deduced. “[I]t is highly
unlikely that Congress . . . [made] a decision of such
economic and political significance . . . in so cryptic a
fashion.” FDA v. Brown & Williamson Tobacco Corp.,

, 160 (2000) (internal quotations and
citations omitted).

                             E.
       The DOL further suggests that the RSIA’s
legislative history supports its position. Although, in
light of the foregoing analysis, “resort to the legislative
history is . . . unnecessary to decide this case, our inquiry
in that regard discloses no support for [the DOL]’s
position.” In re Pelkowski, 

, 742 (3d Cir.
1993). Subsection (c) was modeled on two similar state
statutes which were held preempted by federal law in
2007.19 Like subsection (c)(2), both statutes were broken


19
   See 610 Ill. Comp. Stat. 107/10, held preempted in
BNSF Ry. Co. v. Box, 

(C.D. Ill.
2007); Minn. Stat. § 609.849, held partially preempted in
BNSF Ry. Co. v. Swanson, No. 06-1013, 

(D. Minn. July 3, 2007) rev’d and held fully
preempted, 

(8th Cir. 2008); The Impact of
Railroad Injury, Accident, and Discipline Policies on the
Safety of America’s Railroads: Hearings Before the H.
                             28
into two paragraphs: a “deny, delay or interfere”
paragraph, followed by a “discipline” paragraph. In both
state statutes, both paragraphs contained an “injured
during the course of employment” limitation. By
contrast, in the federal version, only subsection (c)(1) has
such a limitation.       The DOL, echoing its earlier
arguments, contends that this is evidence of a deliberate
choice by Congress.20
       However, the DOL concedes that both of the state
statutes and the federal hearings before the adoption of
subsection (c) were focused on work-related injuries, and
it has been unable to point to any express evidence that
the policy it now advances was ever considered by


Comm. on Transportation and Infrastructure, 110th
Cong. (Oct. 25, 2007).
20
   The DOL also points out that the initial House and
Senate versions of what became subsection (c) were
structured differently. Compare H.R. 2095, 110th Cong.
(Oct. 17, 2007) at 68-69 (§ 606) with S. 1889, 110th
Cong. (Mar. 3, 2008) at 183 (§ 411). However, we do
not find this difference illuminating, and are not prepared
to alter our conclusion regarding the statute’s meaning
after “consideration of the Government’s highly
speculative suggestions as to the meaning of the
legislative history.” United States v. Zucca, 

,
94-95 (1956). See also Martin v. Hadix, 

,
357 (1999).
                            29
anybody at any point in the legislative process. Rather,
because of the “broader safety purposes behind the
statute,” the DOL asks us simply to assume that Congress
would have wanted this result. Aside from the separation
of powers issues raised by that proposition, how do we
know that Congress would not have been more
concerned about potential safety issues caused by
absenteeism, thus outweighing the potential benefits of
the DOL’s stance? We don’t—which is one reason why
this Court does not formulate public policy.

                           F.
       The DOL argues that even if we do not agree that
the statute necessarily extends to off-duty injuries, the
ARB’s interpretation is entitled to Chevron deference.
But whether two different statutory provisions have the
same scope “is a pure question of statutory construction
for the courts to decide,” which warrants “[e]mploying
traditional tools of statutory construction.” I.N.S. v.
Cardoza-Fonseca, 

, 446 (1987). “If a court,
employing traditional tools of statutory construction,
ascertains that Congress had an intention on the precise
question at issue, that intention is the law and must be
given effect.” 

n.9. Only “if . .
. the court determines Congress has not directly
addressed the precise question at issue,” does the
question become “whether the agency’s answer is based
on a permissible construction of the statute.” 

                           30
Employing traditional tools of statutory construction,21
we have concluded that subsection (c)(2) applies only to
on-duty injuries. Accordingly, the ARB is not entitled to
Chevron deference.22

                            IV.
       Having concluded that the Administrative Review
Board misinterpreted the statute, we will grant the
petition challenging the Board’s September 27, 2013
order, and remand with instructions that the proceeding
against Petitioner be dismissed.


21
   See City of Arlington, Tex. v. F.C.C., 

,
1876 (2013) (Breyer, J., concurring) (Such traditional
tools include “the statute’s text, its context, the structure
of the statutory scheme, and canons of textual
construction[, which] are relevant in determining whether
the statute is ambiguous . . . .”).
22
   We need not consider the separate argument that the
ARB is not entitled to Chevron deference because
rulemaking authority for the statute at issue has been
delegated to the Secretary of Transportation. See 49
U.S.C. § 20103(a). Nor need we consider the additional
separate      arguments     that    the    unacknowledged
inconsistencies between the decision below and Santiago
undermine the ARB’s claim to Chevron deference and/or
renders its decision arbitrary and capricious under the
Administrative Procedure Act.
                             31