Higgins v. Marshall, 77-1829

• Decision Date: 22 September 1978
• Docket Number: No. 77-1829,77-1829
• Citation: 584 F.2d 1035,190 U.S.App.D.C. 54
• Parties: , 1978 O.S.H.D. (CCH) P 22,908 Jesse HIGGINS et al., Appellants, v. Ray MARSHALL, Sec. of Labor, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1035

584 F.2d 1035

190 U.S.App.D.C. 54, 1978 O.S.H.D. (CCH) P 22,908

Jesse HIGGINS et al., Appellants, v. Ray MARSHALL, Sec. of Labor, et al.

No. 77-1829.

United States Court of Appeals District of Columbia Circuit.

Argued March 22, 1978.

Decided July 25, 1978.

Rehearing Denied Sept. 22, 1978.

Steven B. Jacobson, Washington, D. C., for appellants.

John S. Lopatto, III, Atty., Dept. of Labor, Washington, D. C., for appellee, Secretary of Labor.

Mark M. Pierce, of the bar of the Supreme Court of Wisconsin, pro hac vice, by special leave of Court, with whom William Roundtree, Cocoa, Fla., was on the brief, for appellee, Old Ben Coal Co.

Before WRIGHT, Chief Judge, SWYGERT, ^* United States Circuit Judge for the Seventh Circuit, and ROBB, Circuit Judge.

Opinion for the Court filed by SWYGERT, Circuit Judge.

Dissenting opinion filed by J. SKELLY WRIGHT, Chief Judge.

SWYGERT, Circuit Judge:

The issue in this appeal is one of statutory interpretation. Pursuant to section 203 of Title II of the Federal Coal Mines Health and Safety Act of 1969 (the 1969 Act), "(a)ny miner (who contracts pneumoconiosis and opts to transfer to a position in a less dusty area of the mine) shall receive compensation for such work at not less than the Regular rate of pay received by him immediately prior to his transfer." 30 U.S.C. § 843(b)(3) (emphasis added). What the "regular rate of pay" means is the question we must decide.

I

During 1972 each of the plaintiffs-appellants, three coal miners for Old Ben Coal Company (Old Ben) in Franklin County, Illinois, had chest examinations which showed evidence of the development of pneumoconiosis or black lung disease. Each man thereby became eligible for transfer to another position in a less dusty area of the mine to prevent further development of the disease. 30 U.S.C. § 843(b)(1). Plaintiffs Jesse Higgins and Paul Gower transferred from positions as machine operators to positions as tracklayers; plaintiff William Gipson transferred from a position as a repairman to one as a bottom laborer. Before the transfer, each man received $41.50 a day; after the transfer each man continued to receive $41.50 a day although the other miners in the new positions received only $37.25 a day.

On November 12, 1972 the situation changed. Pursuant to a new wage agreement, as of that date the daily wage rates for the positions vacated by plaintiffs were raised to $45.75 while the rates for the new positions were raised to $40.00. The plaintiffs continued to received $41.50 a day, the old rate applicable to their former positions. This meant that the miners were receiving $4.25 less each day than they would have received had they never transferred from their previous positions. They were, however, receiving $1.50 more each day than other miners in the new positions. One year later, when $50.00 became the daily rate for the vacated positions and $42.75 for the new ones, the plaintiffs began to receive $42.75 and have continued to receive the annual increases awarded to miners in their new positions. ¹ The plaintiffs unsuccessfully requested payment from Old Ben at the rate for their vacated positions.

In a complaint first filed with the Department of the Interior ² and then refiled with the Department of Labor, the plaintiffs alleged that Old Ben was discriminating against them in violation of 30 U.S.C. §§ 820(b) and 938(a) by not paying the "Standard Daily Wage Rate" for their pre-transfer positions as required under section 843(b)(3), that is, by not granting them the pay increases they would have received had they not transferred. A Department of Labor administrative law judge denied relief, holding that Old Ben had not violated section 843(b)(3). The judge rejected the expansive construction suggested by the plaintiffs and instead read the section as a "rather clear statement that a miner who chooses to transfer shall not be paid at a lesser rate (dollars per hour or day or ton) than he was receiving Immediately prior to his transfer." (emphasis in the order) He found that the term "immediately prior" fixes the minimum hourly or daily rate which may be paid, not the classification rate. The judge noted that although the more liberal construction would probably encourage more transfers to cleaner environments by not forcing the afflicted miners to choose between wages and health, the absence of ambiguity in the statute's language prevented such a construction. The administrative law judge's order was affirmed in an unreported decision by the district court.

II

The question is whether the language of section 843(b)(3) (that a miner who chooses to transfer for health reasons may not be compensated at less than the "regular rate of pay" received immediately prior to transfer) means that in addition to not suffering an immediate pay cut, the transferring miner also may not be denied the future pay increments he would have received had he remained in his previous position.

Plaintiffs contend that the term "regular rate of pay" was misinterpreted by both the administrative law judge and the district court. They argued that one who exercises his option to transfer to a cleaner environment must continue to receive at least the wages he would have received had he not transferred, and that the rate of pay is tied to the position rather than to a dollar amount received immediately prior to transfer. The plaintiffs suggest that the term "rate of pay" was misinterpreted because too much importance was attached to the use of the word "immediately" in the statute, and, instead, more attention should have been given to the word "regular." Accordingly, the term "regular rate" would then have been defined as the "classification" rate because a miner would have been receiving the same "classification rate" more regularly than the same "dollar rate."

In the alternative, the plaintiffs argue that the term "regular rate of pay" is latently if not patently ambiguous, and therefore this court must reconstruct how Congress would have decided the issue had it been specifically addressed, citing Judge Leventhal's concurrence in District 6, UMWA v. IBMA, 183 U.S.App.D.C. 312, 562 F.2d 1260 (1977). They suggest that the legislative history provides such firm evidence in support of their more liberal construction that this court would be obliged to adopt that construction even if the "plain words" of the statute could support only the more limited interpretation. As their final argument the plaintiffs contend that a canon of statutory construction requires a liberal interpretation of remedial legislation.

Although the two defendants take slightly different approaches in response to the plaintiffs' arguments, they both respond that none of the arguments is viable mainly because the language of the statute is plain and therefore requires no judicial interpretation. We agree.

When faced with a question of statutory interpretation, a court first must look to the language of the act itself. Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917). In the absence of persuasive reasons to the contrary, we must give the words of an enactment their ordinary meaning. Banks v. Chicago Grain Trimmers Association, 390 U.S. 459, 465, 88 S.Ct. 1140, 20 L.Ed.2d 30 (1968). With these principles in mind, we find that the language of section 843(b)(3) is simple and straight-forward: a transferring miner is not to receive less compensation than he would have received had he not transferred, that is, not less than the monetary amount he was receiving "immediately prior to transfer." We therefore find it unnecessary to resort either to any additional rule of statutory construction or to the legislative history.

We find no merit in the plaintiffs' contention that the term "rate of pay" is latently if not patently ambiguous. There is no ambiguity and therefore we do not need to reconstruct how Congress would have decided the specific question presented here. The legislative history of the section, albeit sparse, indicates congressional concern for protecting the transferring miner from loss in compensation. ³ There is nothing to indicate that Congress meant to tie the compensation protection to the pay rate received by miners in the pre-transfer classification. To so hold would be to distort the clear meaning of the words of the statute. When the meaning is clear, and the enactment is within the constitutional authority of Congress, the "sole function of the courts is to enforce it according to its terms," Caminetti v. United States, 242 U.S. at 485, 37 S.Ct. at 194. Our reading of the statute is consistent with the basic purpose of the Act; by not having to take a pay cut upon transfer to a position which would ordinarily pay less, the miner is more likely to transfer to protect his health than he would be otherwise.

Although we did not need to resort to legislative history in light of our holding that the meaning of the phrase "regular rate of pay" is clear and unambiguous, March v. United States, 165 U.S.App.D.C. 267, 274, 506 F.2d 1306, 1313 (1974), our research failed to uncover any conflicting history. Boston Sand and Gravel Company v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 73 L.Ed. 170 (1928). We do note one additional argument made by the Secretary of Labor which concerns the legislative history of the amendments to the 1969 Act. On November 9, 1977 Congress enacted the Federal Mine Safety and Health Amendments Act of 1977 (the 1977 Act), amending the 1969 Act by modifying and extending coverage under Titles I and V to all types of mining. Titles II, III, and IV remain basically unchanged and continue to apply exclusively to the coal mining industry.

The Secretary argues, with persuasion, that because Congress specifically considered the question of whether to adopt the compensation protection provision of section 843(b)(3) when amending Title I, the legislative history of the 1977 Act may be...