Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor v. Black Diamond Coal Mining Co.
| Citation | 598 F.2d 945 |
| Decision Date | 11 July 1979 |
| Docket Number | Nos. 78-3169,78-3725 and 79-2185,78-3321,s. 78-3169 |
| Parties | DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. BLACK DIAMOND COAL MINING COMPANY, Employer-Respondent, and Grover C. Frederick, Claimant-Respondent. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. MOSS & McCORMACK MINING COMPANY, and The Drummond Company, Employers- Respondents, and Elmon Bridgemon, Claimant-Respondent. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. Louis A. PALESTINI, Jr., Claimant-Respondent, and United States Steel Corporation, Employer-Respondent. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. MOSS & McCORMACK MINING COMPANY, and The Drummond Company, Employers- Respondents, and Elmon Bridgemon, Claimant-Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Carin A. Clauss, Sol. of Labor, U. S. Dept. of Labor, Laurie M. Streeter, Associate Sol., Judith E. Wolf, Co-Counsel for Black Lung Benefits, Belva D. Newsome and Kenneth F. Noto, Attys., Washington, D. C., for petitioner.
Charles T. Clark, Birmingham, Ala., for Grover C. Frederick.
Lange, Simpson, Robinson & Somerville, Harry L. Hopkins, Charles C. Pinckney, Birmingham, Ala., for Black Diamond Coal Co.
Anthony L. Cicio, Birmingham, Ala., for Elmon Bridgemon.
Bradley, Arant, Rose & White, John H. Morrow, Stephen E. Brown, Birmingham, Ala., for Moss & McCormack and Drummond Co.
Trucks, Parsons & Guyton, Fairfield, Ala., for Louis A. Palestini, Jr.
W. H. Woolverton, Jr., Fairfield, Ala., James D. Strader, Gen. Atty., Pittsburgh, Pa., for U. S. Steel Corp.
Petitions for Review of Decisions of the Benefits Review Board.
Before TUTTLE, GODBOLD and RUBIN, Circuit Judges.
The Director, Office of Workers' Compensation Programs, United States Department of Labor, appeals from decisions of the United States Department of Labor Benefits Review Board holding the Black Lung Disability Trust Fund liable for attorneys' fees incurred by claimants of black lung benefits whose last coal mine employment terminated prior to 1970. The issue is whether such a claimant, his employer or the trust fund is to bear the claimant's attorneys' fees. We conclude that in amending Title IV of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 901 Et seq., in 1978 Congress did not intend the claimant to bear this cost, which previously would have been borne by his employer. We hold that the Benefits Review Board was correct in assessing these fees against the trust fund.
These consolidated appeals involve similar factual situations. In each case, a claimant of black lung benefits 1 pursuant to Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended prior to 1978, was found to be entitled to such benefits after a formal hearing. The employer found to be the financially responsible operator appealed the hearing officer's order that it pay the claimant's compensation benefits and attorneys' fees. In 1978, during the pendency of the appeal, the Health and Safety Act was amended by enactment of the Black Lung Benefits Reform Act of 1977, P.L. 95-239, 92 Stat. 95, and the Black Lung Benefits Revenue Act of 1977, P.L. 95-227, 92 Stat. 11. These laws relieved employers of liability for the payment of black lung compensation benefits when the claimant's last coal mine employment predated 1970. Liability for such compensation was transferred to the Black Lung Disability Trust Fund which, prior to the amendments, had been liable for benefits only when a financially liable responsible operator did not exist, or when such an operator refused to pay after its liability was finally determined. Because each of these claimants had last been employed in coal mines before 1970, the Benefits Review Board dismissed the employers from the proceedings and held the Director of the Office of Workers' Compensation Programs, as representative of the trust fund, liable for the claimants' black lung benefits and attorneys' fees. 2 The Board then dismissed the appeals after first allowing the Director twenty days to show cause why they should not be dismissed.
The Director contests only the awards of attorneys' fees; he asserts that there is no explicit statutory authorization for such liability on the part of the trust fund and that absent express mandate that such fees be paid from the fund, either the employer is liable for them or they must be assumed by the claimant. The Director also contends that, even if the trust fund may be liable for attorneys' fees, it should not be assessed with them in these cases because, while the employers contested the claimants' right to black lung benefits, the Director never did so.
The general American rule is not to allow even a successful litigant to recover attorneys' fees unless a statute imposes liability or some other exceptional circumstance warrants a departure from the rule. This rule has also been adopted by the federal courts, precluding the recovery of attorneys' fees in the usual case in the absence of explicit statutory authorization. Alyeska Pipeline Service Co. v. Wilderness Society, 1975, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141. When the defendant is the United States, or an agency of the government, statutory command prohibits the assessment of counsel fees against the federal agency in the absence of an express statutory exception. 28 U.S.C. § 2412. Whether section 2412 is inapplicable here, on the basis that the trust fund is not an "agency" of the United States, 3 we need not decide; we find that there is specific statutory authorization for the award of counsel fees.
The statutory tangle is intricate and exhibits some disregard for the usual rules of syntax, let alone clarity, but the snarl can be untangled with care. Section 932(a), 30 U.S.C. as amended prior to 1978, incorporated, in part, provisions of the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901 Et seq., including 33 U.S.C. § 928(a), which provides for an award of attorneys' fees against the employer. Prior to 1978, the trust fund was held not liable for attorneys' fees under these provisions because it was not an "employer" for the purposes of the Longshoremen's Act. See Republic Steel Corporation v. United States Department of Labor, 3 Cir. 1978, 590 F.2d 77, 80. However the 1978 amendment to section 932(a) specifically substituted the fund's trustees for the "employer" in the incorporated provisions of the Longshoremen's Act. Section 932(a), as amended, provides:
During any period after December 31, 1973 . . . the provisions of (the Longshoremen's and Harbor Workers' Compensation Act) shall (except as otherwise provided in this subsection or by regulations of the Secretary And except that references in such Act to the employer shall be considered to refer to the trustees Of the fund, as the Secretary considers appropriate And as is consistent with the provisions of Section 934 of this title ), be applicable to each operator of a coal mine in such State with respect to death or total disability due to pneumoconiosis arising out of employment in such mine . . . . (emphasis supplied to words added in 1978).
The Director contends that this section does not specifically authorize payment of attorneys' fees out of the fund because: (1) the substitution of the trustees for the employer is only "as the Secretary (of Labor) considers appropriate," and the Secretary has, in final regulations, 4 rejected such a substitution for the purposes of the attorneys' fee provision; and (2) such payments would not be "consistent with the provisions of section 934."
The Third and Sixth Circuits have already rejected these contentions in holding that this section, in conjunction with section 928 of the Longshoremen's Act, specifically authorizes payment of attorneys' fees by the fund. Republic Steel Corporation, supra; Director, Office of Workers' Compensation Programs v. South East Coal Company, 6 Cir. 1979, 598 F.2d 1046. 5 Accord, Director, Office of Workers' Compensation Programs v. Rochester & Pittsburgh Coal Co., 3 Cir. 1979, 594 F.2d 854. The Third Circuit noted that the Benefits Review Board had taken a position contrary to that of the Director by assessing attorneys' fees against the fund in Solarczyk v. Rochester & Pittsburgh Coal Co., 8 BRBS 1026, BRB No. 77-888 BLA (June 30, 1978), Aff'd, Rochester & Pittsburgh Coal Co., supra, and that, because of this conflict, there was no authoritative agency interpretation of the statute to assist the courts. Republic, supra, 590 F.2d at 80. Furthermore, the court stressed that the Secretary's discretion "is limited by the qualification that its exercise be consistent with the statutory provision." Id. at 82. On consideration of the policies underlying these statutes, the court concluded that "employer" should be construed to include trustees of the fund for the purposes of paying counsel fees. We agree with its analysis and conclusions; however we shall briefly discuss our additional reasons for rejecting the Director's renewed arguments that the assessment of attorneys' fees against the trust fund is inconsistent with section 934 and not specifically authorized by section 932.
Decision of the issue presented requires us to interpret texts (the Black Lung Benefits Act, 6 30 U.S.C. §§ 901 et seq., and portions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 Et. seq.) whose meaning is obscure, a task known to those who seek to understand scripture and literature as hermeneutics, a word derived from the mission of Hermes, the divine messenger between the gods and men. 7 The process by which the secular Hermes interprets a text is necessarily circular: the phrases and words we seek...
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