Secretary of Labor on behalf of Michael Cook v. Panther Creek Mining, LLC

Plain-English summary

Michael Cook exercised his Part 90 right to transfer away from excessive coal-dust exposure, moving from a ten-hour continuous-miner-operator schedule to an eight-hour mine-examiner schedule. Panther Creek kept his hourly wage unchanged, but Cook worked 13 fewer hours and lost $761.67 before a second transfer restored ten-hour shifts. The Judge held that the Part 90 guarantee of a miner's “regular rate of pay” protects the regular actual compensation received before transfer, including routinely earned overtime, rather than only the same hourly rate. Panther Creek therefore violated Part 90 and the Mine Act's discrimination protections by reducing Cook's compensation after he exercised his transfer right. The Secretary received summary decision, Cook received summary decision in part, Panther Creek's motion was denied, and the company was ordered to pay $761.67 plus interest and a $4,500 penalty; Cook's request for private attorney's fees was denied.

Decision snapshot

• Governing provisions: 30 C.F.R. §§ 90.1 and 90.103; 30 U.S.C. §§ 815(c) and 843(b)
• Outcome: Panther Creek was ordered to pay $761.67 in backpay plus interest and a $4,500 penalty; Cook's request for attorney's fees was denied.
• Key point: A Part 90 transfer may not reduce a miner's regular actual compensation merely because the new job uses shorter shifts at the same hourly wage.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

|
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), on behalf of MICHAEL COOK, Complainant,
v.
PANTHER CREEK MINING, LLC, Respondent. |
|
|
DISCRIMINATION PROCEEDING
Docket No. WEVA 2023-0337-D MSHA No. HOPE-CD-2023-02
Mine: American Eagle Mine/Speed Mine Mine ID: 46-05437 |

DECISION ON
CROSS-MOTIONS FOR SUMMARY DECISION

Appearances: Rebecca W. Mullins, Esq., U.S. Department of Labor, Office of the Solicitor, Arlington, VA, and Samuel B. Petsonk, Esq., Petsonk PLLC, Beckley, WV, for Complainant;

Jonathan Ellis, Esq., Steptoe & Johnson PLLC, Charleston, WV, for Respondent.

Before: Judge Paez

This discrimination case is before me pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(2). On May 19, 2023, the Secretary of Labor (“Secretary”), on behalf of Michael Cook, filed a complaint of discrimination against Panther Creek Mining, LLC (“Panther Creek”) related to Cook’s Black Lung Disease or coal workers’ pneumoconiosis (“CWP”), an occupational lung disease caused by inhalation of respirable coal mine dust. The complaint references the “Part 90 Miner” program, 30 C.F.R. part 90 (Coal Miners Who Have Evidence of the Development of Pneumoconiosis), designed to prevent progression of CWP by establishing a right to transfer to a less dusty job in the mine.

I. STATEMENT OF
THE CASE

In her complaint, the Secretary of
Labor alleges that Panther Creek discriminated against Cook in violation of
section 105(c) of the Mine Act, which protects miners from retaliation for, or
interference with, the exercise of their rights under the Mine Act. (Compl. at
4.) The Secretary alleges Panther Creek discriminated against Cook for
asserting his Part 90 rights by reducing Cook’s regular rate of pay. (Id.)
Under the Part 90 regulations, Cook is entitled to transfer to a different area
of the mine where respirable dust is maintained at or below the applicable
standard. See 30 C.F.R. § 90.1. In addition, Part 90 requires mine
operators to ensure that miners who exercise this transfer option—also called
“exercising their Part 90 rights”—retain their regular rate of pay. Id. The
issue in this case hinges on the interpretation of Mine Act language
considering recent Supreme Court rulings on deference to agency
interpretations.

On November 3, 2023, with the agreement of the parties, I issued an order canceling the hearing and ordering the parties to file briefs for disposition on stipulated facts. After filing their Joint Statement of Stipulated Facts on November 9, 2023, the parties filed their cross-motions for summary decision on stipulated facts on December 12, 2023, and filed their responses in opposition to the cross-motions for summary decision on January 13, 2024.

Commission Procedural Rule 67(b)
provides that a motion for summary decision shall be granted only if [“the entire record, including the pleadings, depositions,
answers to interrogatories, admissions, and affidavits, shows: (1) [t]hat there
is][no genuine issue as to any material fact];
and (2) [t]hat the moving party is entitled to summary decision as a matter of
law.” 29 C.F.R. § 2700.67(b). The Commission has consistently held
that summary decision is an “extraordinary procedure” and has analogized it to
Federal Rule of Civil Procedure 56 on summary judgment. Lakeview Rock Prods.,
33 FMSHRC 2985, 2987 (Dec. 2011) (citations omitted). The Supreme
Court, as the Commission observes, has determined that summary judgment is only
appropriate “upon proper showings of the lack of a genuine, triable issue of
material fact.” Id. at 2987–88 (citing Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986)).

After reviewing the parties’ cross-motions for summary decision, I determine there is no issue as to any material fact, making this matter ripe for determining which moving party is entitled to summary decision as a matter of law under Commission Procedural Rule 67(b). The parties have submitted stipulations and agreed facts, which I discuss below.

II. STIPULATIONS
AND FACTUAL STATEMENTS

On November 9, 2023, the parties submitted the following eighteen joint stipulations, verbatim, which are of both a legal and factual nature:

1. The Federal Mine Safety and Health Review Commission and its administrative law judges have jurisdiction over this proceeding under sections 105(c)(2) and 113 of the Mine Act. 30 U.S.C. 815(c)(2) and 823.

2. Panther Creek Mining, LLC, is a coal company that, at the relevant time period in question, operated American Eagle Mine (Mine ID 46-05437).

3. On or around February 20, 2023, Respondent changed the mine’s name to Speed Mine.

4. Panther Creek Mining, LLC, is a limited liability company with a principal business address of 250 West Main Street, Suite 2000, Lexington, KY 40507. It is an “operator” as defined in section 3(d) of the Mine Act, 30 U.S.C. 802(d).

5. American Eagle Mine is an underground coal mine near Cabin Creek, West Virginia. It is a “coal or other mine” as defined in section 3(h) of the Mine Act, 30 U.S.C. 802(h).

6. The proposed penalty in this docket will not affect Panther Creek’s ability to continue in business.

7. The Complainant, Michael Cook, was, at all relevant times, employed by Respondent at the mine and was a “miner” under section 3(g) of the Mine Act, 30 U.S.C. 802(g).

8. Cook began working at American Eagle Mine in July 2022.

9. On January 19, 2023, MSHA notified Panther Creek that a medical examination indicated that Cook was eligible for rights afforded under Title 30, Code of Federal Regulations, Part 90 (“Part 90 Miner”).

10. On February 7, 2023, Cook received a letter from MSHA granting him rights as a Part 90 miner.

11. On February 7, 2023, Cook was working at American Eagle Mine as a continuous miner operator.

12. From the date of hire until February 2023, Cook rotated between a five-day and six-day work week, working ten-hour shifts.

13. On February 8, 2023, Cook discussed his Part 90 miner status with General Manager Jamie Wiant, who informed Cook if he intended to exercise his Part 90 rights, that Panther Creek would offer Cook an outby mine examiner position. The outby mine examiner position is regularly scheduled for 8-hour shifts.

14. On February 10, 2023, Cook exercised his Part 90 transfer rights and transferred to the mine examiner position. In this position, Cook worked 8-hour shifts on February 15, 16, 17, 20, 21, and 22.

15. On February 14, 2023, Cook filed a complaint with MSHA under section 105(c) of the Mine Act.

16. Personal dust monitoring conducted on Cook while he worked in the mine examiner position indicated overexposure.

17. On February 23, 2023, Cook again exercised his Part 90 transfer rights and transferred to an outside utility man position where, effective beginning on February 24, 2023, he resumed ten-hour shifts. On February 23, 2023, Cook worked a 9-hour shift.

18. Between February 10–23, 2023, Cook worked 13 fewer hours than he would have in the continuous miner operator position. Those 13 hours would have equated to $761.67.

III. ARGUMENTS AND
ISSUES

The Secretary’s complaint alleges,
and Respondent does not dispute, that on February 7, 2023, Cook received a
letter from MSHA granting him rights as a Part 90 miner. ([Compl.]at 3.) At that time, Cook worked ten hours per
shift as a “continuous miner operator” and rotated between five-day and six-day
workweeks. (Id.)

On February 10, 2023, Cook exercised
his Part 90 rights and accepted a transfer to the “mine examiner” position. (Id.)
Cook’s shifts were reduced from ten to eight hours, resulting in a loss of two
hours of overtime pay for each mine examiner shift he worked.
(Id.) Personal dust monitoring conducted on Cook while he worked
in the mine examiner position indicated an overexposure of respirable dust. (Compl. at 4.) Thereafter, on
February 23, 2023, Cook again exercised his Part 90 rights and transferred to
an “outside utility man” position where he resumed ten-hour shifts. (Id.)

** **The parties—the Secretary, Complainant Cook,
and Respondent—filed their cross-motions for summary decision, as well as their
oppositions, which I summarize below.

A. Secretary’s Arguments

The
Secretary asserts Panther Creek Mining discriminated against Cook because
Panther Creek Mining paid Cook less after he exercised his Part 90 rights. (Sec’y
Mot. at 1–3.) The Secretary argues that Part 90 is ambiguous on the
issue of whether “regular rate of pay” means: (1) the same number of
dollars per hour or (2) the same dollar amount received immediately
prior to transfer. (Sec’y Mot. at 3.) The
Secretary argues for the latter—that “Cook was entitled to receive ‘the same
dollar amount that he received immediately prior to his transfer’ such that he
would suffer ‘no loss of pay upon transfer.’” (Sec’y Mot. at 1 (quoting [Matala v. Consolidation Coal Co., 647 F.2d 427, 430
(4th Cir. 1981)]).) The Secretary argues that I should adopt her
interpretation of “regular rate of pay” because (1) it is the fairest reading
of the regulation, and (2) regardless of the fairest reading, the law at the
time of the Secretary’s filing required me to defer to the Secretary’s
reasonable interpretation of “regular rate of pay.” (Sec’y Mot. at 3–4.)

As
noted, the Secretary argues I should follow her interpretation of “regular rate
of pay” without determining whether it is entitled to deference because her
interpretation is the fairest reading of the regulation. ([Sec’y Mot.]at 3–4.) The Secretary cites Tilden
Mining Company to support her argument that “‘we need not rely on Auer
deference where an agency’s interpretation is the fairest reading of a
regulation.’” (Id. at 4 (quoting [Tilden
Mining Co. v. Sec’y of Labor, 832 F.3d 317, 322 (D.C. Cir. 2016)]).) The
Secretary asserts that her interpretation is the only reading that ensures
eligible miners will not suffer a loss in pay. (Sec’y Mot. at 4.) Thus, the
Secretary contends that her “interpretation of the text ‘mirrors its purpose,’

Alternatively,
the Secretary argues that I should defer to her interpretation because the
interpretation is reasonable and “reflects the agency’s ‘fair and considered
judgment.’” (Sec’y Mot. at 4–5 (quoting [GMS
Mine Repair v. Sec’y of Labor, 72 F.4th 1314, 1320 (D.C. Cir. 2023), cert.
denied, 144 S. Ct. 1095 (2024) (citation omitted)]).) The Secretary argues that her interpretation of “regular
rate of pay” is supported by the text, structure, history, and purpose of Part
90 and the Mine Act as well as previous cases. (

Accordingly,
the Secretary argues Part 90’s “regular rate of pay” requirement
means miners must receive the “same dollar amount received immediately prior to
transfer.” (Sec’y Mot. at 3.) Here, Cook
transferred and immediately lost two hours per shift and therefore earned
$761.67 less than if he had not transferred. (Sec’y
Mot. at 1, 3.) The Secretary asks me to grant her Motion for Summary Decision
by finding that under section 105(c)(1) of the Mine Act, Respondent
discriminated against Cook for engaging in protected activity by paying him
less. (Id. at 11.) The Secretary requests that she be awarded a civil
penalty of $17,500 against Panther Creek Mining and that Cook receive back
wages, interest, and any other fees. (Id. at 12.)

B. Cook’s Arguments

Complainant Cook, represented by
his own counsel, joins with the Secretary on the issue of whether Respondent
violated Part 90. ([Compl’t Mot. at 1.]) Additionally,
Cook argues that Respondent violated section 105(c) of the Mine Act because
Respondent’s conduct interfered with his Part 90 rights by intentionally
transferring him to a job with substantially lower wages and significant dust
exposure, even though there were other positions that would not have
financially damaged him or exposed him to coal-mine dust levels that exceeded
Part 90 limits. (Compl’t Mot. at 1–2.) Cook requests that the Court order the
Respondent to refrain from any further interference with Cook’s rights under
Part 90 and pay the reasonable attorney fees and expenses incurred in pursuing
this matter. (Compl’t Mot. at 2.)

C. Respondent’s Arguments

Respondent Panther Creek Mining
asks me to grant its Motion for Summary Decision and dismiss the case with
prejudice. (Resp’t Mot. at 19.) It argues that the term “regular rate of pay”
means simply the money earned per hour because (1) the phrase is
not ambiguous; (2) this is the plain meaning of the phrase; and (3) even if the
phrase is ambiguous, the Secretary’s interpretation is inconsistent with MSHA’s
previous use of the term, the Commission’s case law on Part 90, the text and
structure of the Mine Act, and the interpretation of “rate of pay” in other
legal contexts. (Resp’t Mot. at 9–17.)

Respondent argues that the text,
structure, history, and purpose of Part 90 and the Mine Act do not support the
Secretary’s interpretation of “regular rate of pay.” (Resp’t Resp. at 8–12.) Respondent
also asserts that the Secretary’s interpretation of “regular rate of pay” does
not warrant Auer deference because her interpretation does not implicate
her substantive expertise. (Id. at 15.)

Respondent argues that the
Secretary cannot prove Cook suffered adverse employment action as a result of
exercising his Part 90 rights, because it did not violate the regular rate of
pay guarantee of Part 90. (Resp’t Mot. at 5–6.) Respondent also alleges that
the Secretary cannot prove wrongful motivation on its part, which it argues is
necessary for establishing a discrimination claim under section 105(c)(1) of
the Mine Act. (Id. at 18.)

Consequently, the parties disagree on whether Panther Creek Mining discriminated against Cook for asserting his Part 90 rights because they disagree on the meaning of “regular rate of pay” as referenced in Part 90.

IV. DISCUSSION AND ANALYSIS

** **Given that the parties have stipulated to the material
facts of this case, and because I have
determined that no genuine issue as to any material fact exists pursuant to Commission Procedural Rule
67(b)(1), I must therefore examine whether either party is entitled to summary
decision as a matter of law. 29 C.F.R. § 2700.67(b)(2). This determination
hinges on the interpretation of the phrase “regular rate of pay” contained in
section 203(b)(3) of the Mine Act, 30 U.S.C. § 843(b)(3),[1] and the
standard at section 90.103, 30 C.F.R. § 90.103.

A. Deference is Not Owed to the Secretary’s
Interpretation of “Regular Rate of Pay”

Both the Secretary and Respondent
cite GMS Mine Repair v. Secretary of Labor, 72 F.4th 1314 (D.C. Cir.
2023), cert. denied, 144 S. Ct. 1095 (2024), in their Motions for
Summary Decision. (Sec’y Mot. at 4, 10, 11; Resp’t Mot. at 7.) In GMS Mine
Repair the D.C. Circuit applied the framework from Kisor v. Wilkie, 588
U.S. 558 (2019), “which provided clear instructions
about how courts are to evaluate agency interpretation of regulations” to a
dispute about the meaning of a MSHA standard.[2]
GMS, 72 F.4th at 1320. However,
in Gonzales v. Oregon, 546 U.S. 243, 257 (2006), the Supreme Court held
that when a regulation “parrots” language from a statute and does not provide additional
instructions on how to interpret that language, Kisor deference does not
apply as courts must interpret the statute, not the regulation. The Court in Gonzales
concluded that “[a]n agency does not acquire special authority to interpret its
own words when, instead of using its expertise and experience to formulate a
regulation it has elected merely to paraphrase the statutory language.” Gonzales,
546 U.S. at 257.

The Federal Coal Mine Health and
Safety Act of 1969 (“1969 Coal Act”) set nationwide health and safety standards
for the coal mining industry. See Federal Coal Mine Health and Safety
Act of 1969, Pub. L. No. 91–173, 83 Stat. 742. The 1969 Coal Act also
established interim mandatory health and safety standards to prevent miners
from developing “pneumoconiosis or any other occupation-related disease.” Pub.
L. No. 91–173, § 201(b), 83 Stat. 742, 760 (1969).

One of the interim mandatory
standards of the 1969 Coal Act was section 203(b) of the statute which
established the right of miners employed at underground coal mines who have
evidence of the development of pneumoconiosis to be “afforded the option of
transferring” to a position in the mine which would expose the miner to low
concentrations of respirable dust. Pub. L. No. 91–173, § 203(b), 83 Stat. 742,
763–64 (1969). Section 203(b)(3) of the 1969 Coal Act also provided that
transferred miners must receive compensation “at not less than the regular
rate of pay received” immediately prior to transfer. Pub. L. No. 91–173, §
203(b)(3), 83 Stat. 742, 764 (1969) (emphasis added).

Section 101 of the 1969 Coal Act
directed the Secretary of the Interior to promulgate improved mandatory
health or safety standards to supersede the interim mandatory standards. Pub.
L. No. 91–173, § 101, 83 Stat. 742, 745–47 (1969). In 1971, the Secretary of
the Interior followed the directive of section 101 and promulgated Part 90 as
an improved standard of section 203. See [Procedures
for Transfer of Miners with Evidence of Pneumoconiosis, 36 Fed. Reg. 20,600
(Oct. 27, 1971)] (to be codified at 30 C.F.R. pt. 90). However, section
90.34 of the improved standard maintained the same language as the interim
standard regarding compensation after a miner transfers. Compare 36 Fed.
Reg. 20,600, 20,602 (Oct. 27, 1971) (“[a]ny miner transferred in accordance
with the provisions of this Part 90 shall receive compensation for his work at
not less than the regular rate of pay received by him immediately prior
to his transfer” (emphasis added)) with Pub. L. No. 91–173, § 203(b)(3),
83 Stat. 742, 764 (1969) (“[a]ny miner so transferred shall receive
compensation for such work at not less than the regular rate of pay
received by him immediately prior to his transfer” (emphasis added)).

In 1977, Congress amended the 1969
Coal Act with passage of the Mine Act, “but did not alter the interim mandatory
health standards in section 203.” [Coal Miners Who have
Evidence of the Development of Pneumoconiosis, 45 Fed. Reg. 80,760 (Dec. 5,
1980)]. As an interim mandatory health standard, section 203(b) of the Mine
Act superseded the 1971 Part 90 (30 C.F.R. pt. 90) regulations promulgated by
the Secretary of the Interior. Section 101 of the 1969 Coal Act was amended by
the Mine Act so the Secretary of Labor, rather than the Secretary of the
Interior, was charged with promulgating improved mandatory health or safety
standards. See 30 U.S.C. § 811(a). Thereafter, in 1980, the
Secretary of Labor, acting under the authority of section 101 of the Mine Act,
promulgated Part 90 (30 C.F.R. pt. 90) as “an improved mandatory health
standard” to supersede “the interim standards established by section 203(b)” of
the 1977 Mine Act. 45 Fed. Reg. 80,760 (Dec. 5, 1980).

The Secretary of Labor improved the
section 203(b) interim standard of the Mine Act by providing “eligible miners
with significant additional protections against fears about job security,
adverse economic consequences, undesirable working hours, wages and work
assignments.” 45 Fed. Reg. 80,760, 80,763 (Dec. 5, 1980). However, like the
Secretary of Interior, the Secretary of Labor incorporated without modification
the “regular rate of pay” language from section 203(b)(3) of the Act into the
Part 90 standard. Compare 30 C.F.R. § 90.103(b) (“[w]henever a part 90
miner is transferred, the operator shall compensate the miner at not less than
the regular rate of pay received by that miner immediately before the
transfer” (emphasis added)); with 30 U.S.C. § 843(b)(3) (“[a]ny miner so
transferred shall receive compensation for such work at not less than the
regular rate of pay received by him immediately prior to his transfer”
(emphasis added)).

Because “regular rate of pay” is
“parroted” from section 203(b)(3) of the Mine Act, Kisor deference does
not apply to the Secretary’s interpretation of “regular rate of pay” in Part

90. See Gonzales, 546 U.S. at 257 (concluding that “the existence of a
    parroting regulation does not change the fact that the question . . . is not
    the meaning of the regulation but the meaning of the statute.”). Instead, I
    must determine the meaning of “regular rate of pay” as it is used in section
    203(b)(3) of the Mine Act. See Gonzales, 546 U.S. at 257.

Under Chevron, courts were
to defer to “permissible” agency interpretations of ambiguous statutes. Chevron
U. S. A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (overruled
by Loper Bright Enters. v. Raimondo, 603 U.S. __, 144 S. Ct. 2244
(2024)). However, as of June 28, 2024, “Chevron is overruled.” Loper,
144 S. Ct. at 2273. Going forward, “[c]ourts must exercise their
independent judgment in deciding whether an agency has acted within its
statutory authority, as the APA requires.” Loper, 144 S. Ct. at
2273.

1. Whether “Regular Rate
of Pay” is Ambiguous

The parties disagree on whether the
meaning of the phrase “regular rate of pay” in 30 C.F.R. [§ 90.103]is ambiguous. The Secretary argues Part 90 is
ambiguous on the issue of whether “regular rate of pay” means the same number
of dollars per hour, or the same dollar amount received immediately prior to
transfer. (Sec’y Mot. at 3.) Conversely, Respondent argues that the phrase
“regular rate of pay” is not ambiguous because it can “only mean dollars
of pay earned per regular (i.e., straight) hour[s] worked”
excluding overtime. (Resp’t Resp. at 6.) Following the Loper decision,
courts no longer need to conduct step one of Chevron, which is determining
whether the statute is ambiguous with respect to the precise question at issue.
Loper, 144 S. Ct. 2244; Chevron, 467 U.S. at 842 (1984). Rather,
courts are directed to apply “the traditional tools of statutory construction”
to determine the “best reading of the statute.” Loper, 144 S. Ct.
at 2266, 2268.

The Fourth and D.C. Circuits have held
that the meaning of “regular rate of pay” is unambiguous. [In Matala v. Consolidation
Coal Co., 647 F.2d 427, 429 (4th Cir. 1981),]

In support of its holding, the Fourth Circuit explained that—

“regular rate of pay” must not be read
alone but must be construed with the rest of section 203(b)(3). See United
States v. Snider, 502 F.2d 645,652 (4th Cir. 1974). In the statutory
context of section 203(b)(3), the plain meaning of “rate” is confirmed by the
modifying phrase “received by him immediately prior to his transfer.” If “rate”
were construed as referring to classification rate, then “received by him”
would have no meaning, thereby violating a basic canon of statutory
construction that all words in a statute are to be given effect. *Id. *

Matala, 647 F.2d at 429. The Fourth Circuit further
noted that its interpretation of section 203(b)(3) aligns with Congress’s
intent, for under its interpretation “a miner who exercises his statutory right
of transfer would receive the same dollar amount that he received
immediately prior to his transfer, thus suffering no loss of pay upon
transfer.” Matala, 647 F.2d at 430 (emphasis added).

In Higgins v. Marshall, 584
F.2d 1035, 1037 (D.C. Cir. 1978), the D.C. Circuit similarly had to decide
whether “regular rate of pay” in section 203(b)(3) of the 1969 Coal Act “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.” The D.C. Circuit rejected this
interpretation and instead held that the meaning of regular rate of pay “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.’” Id. (emphasis added). The D.C. Circuit found that the
legislative history of section 203(b)(3) “indicates congressional concern for
protecting the transferring miner from loss in compensation.” Higgins,
584 F.2d at 1037–38 (emphasis added). Thus, the D.C. Circuit concluded that its
interpretation of section 203(b)(3) “is consistent with the basic purpose of
the [1969 Coal] 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.” Id. at 1038 (emphasis
added).

In Mullins v. Andrus, 664 F.2d 297, 305
(D.C. Cir. 1980), the D.C. Circuit had to decide whether a Part 90 miner’s
“post-transfer wage rate was to be pegged at the level accorded his job
classification, or rather at some higher level dictated by the amount he
actually earned.” Citing Higgins, the D.C. Circuit held “the phrase
‘regular rate of pay’ in . . . section [203(b)(3) of the 1969 Coal
Act] means the rate at which the transferring miner was actually and
regularly compensated when the transfer occurred,” irrespective of the
miner’s pre-transfer job classification. Mullins, 664 F.2d at 310
(emphasis added). In support of its holding, the D.C. Circuit explained that
“[t]he incentive to transfer would be dampened if indeed not seriously
depressed, were miners with actual earnings above their classification rates
required to drop back to their classification levels.” Mullins, 664 F.2d
at 308. The D.C. Circuit concluded that the text of section 203(b)(3),

as well as its legislative history, make crystal clear the will of Congress that a miner not be forced to endure a reduction in his accustomed rate of renumeration upon exercising his statutory right to transfer. We have encountered nothing indicative of a purpose to roll a transferring miner back to his classification rate when his pre-transfer dollar rate is more.

Mullins, 664 F.2d at 308.

Thus, the Fourth and D.C. Circuits have concluded that “regular rate of pay” unambiguously means the regular and actual compensation/dollar/monetary amount the Part 90 miner received immediately prior to transfer. Although the Fourth and D.C. Circuits did not face the precise issue before me, their construction of section 203(b)(3) binds me to a holding that a transferring Part 90 miner takes with them the total monetary amount they received before transferring. Thus, if a Part 90 miner’s actual compensation before their transfer regularly included overtime pay, then that total amount—including overtime pay—is the floor and the Part 90 miner’s post-transfer pay can be no less.

Though I could end my analysis here, given the recent Supreme Court directive I feel compelled to apply the traditional tools of statutory construction in my analysis.

B. Interpreting
“Regular Rate of Pay” in Section 203(b)(3) of the Mine Act

Following the directive of Loper,
I will also exhaust the “traditional tools of statutory construction” to
determine the “best reading of the statute.” Loper, 144 S. Ct. at
2266, 2268. The traditional tools of statutory construction include carefully
considering the text, structure, history, and purpose of the statute. Kisor
v. Wilkie, 588 U.S. 558, 559 (2019). See, e.g., United States
Sugar Corp. v. E.P.A., 113 F.4th 984, 991–97 (D.C. Cir. 2024) (applying
traditional tools of construction to interpret statute, specifically text and
structure of the statute); Pac. Gas & Elec. Co. v. FERC, 113 F.4th
943, 947–49 (D.C. Cir. 2024) (applying traditional tools of construction to
interpret statute, specifically text and structure of the statute).

1. The Mine Act’s Text
and Structure

Accordingly, I examine the phrase
“regular rate of pay” myself to determine its meaning. First, I must look at
the plain text of the statute. See Park ‘N Fly, Inc. v. Dollar Park &
Fly, Inc., 469 U.S. 189, 194 (1985) (“[s]tatutory construction must begin
with the language employed by Congress and the assumption that the ordinary
meaning of that language accurately expresses the legislative purpose”). One
reading could find that “rate” means “a proportional or relative value.” RATE,
Black’s Law Dictionary (12th ed.
2024). “Rate of pay,” therefore, would be the proportion of pay to some
quantity of time like an hourly rate. Id. Alternatively, another reading
of “rate” is the total monetary amount. RATE, Black’s Law Dictionary (12th ed. 2024) (rate is “an amount
paid. . . for a . . . service.”) “Rate of pay,” therefore, would be the total
monetary amount paid for a service. Id. Thus, the ordinary meanings of
“rate” do not answer the interpretive question at issue in the present case.

Given the context of section 203(b)(3), “regular” likely means something “done . . . on a habitual basis; usual; customary.” The New Oxford American Dictionary 1,427 (Erin McKean ed., 2d ed. 2005). Under such a definition, a Part 90 miner’s rate of pay would include overtime pay if they usually received overtime pay. Thus, this ordinary meaning of “regular” supports the Secretary’s interpretation that “regular rate of pay” means the same dollar amount received immediately prior to transfer.

“It is a fundamental canon of
statutory construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory scheme.” Davis
v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989). Section 203(b)(3) of
the Mine Act requires operators to compensate miners at “not less than the
regular rate of pay.” 30 U.S.C. § 843(b)(3) (emphasis added). The inclusion of
“not less than” indicates that the protection for compensation is the floor, not
the ceiling. Both parties accept this interpretation. (See Sec’y Mot. at
5; Resp’t Resp.
at 8.) Courts have also accepted
the floor not ceiling understanding. For example, the
Fourth Circuit considered the miner’s hourly cost-of-living add-on as part of
the miner’s “regular rate of pay” for purposes of calculating the pay a Part 90
miner was entitled to receive after transfer. Matala, 647 F.2d at

430. This buttresses the Secretary’s argument
     that “regular rate of pay” is not limited exclusively to the miner’s straight hourly
     rate prior to transfer. (Sec’y Resp. at 7.) Moreover, as the Fourth Circuit
     highlighted in Matala, “‘regular rate of pay’ must not be read
     alone but must be construed with the rest of section 203(b)(3). Matala, 647
     F.2d at 429 (citation omitted). After reviewing
     the full statutory context of section 203(b)(3), the Fourth Circuit
     concluded that the modifying language “received by him immediately prior to his
     transfer” confirms that “regular rate of pay” refers to the regular and actual
     dollar amount the Part 90 miner was paid before transfer. Id.

I note
that Respondent misconstrues the Secretary’s interpretation of “regular rate of
pay” to mean that, when a Part 90 miner works more hours after their transfer
than they did before, they will still be paid the same amount that they were
paid before their transfer. (Resp’t Mot. at 17–18.) [That is an oversimplification of the Secretary’s argument,
because such an interpretation would mean an operator could always pay the
transferred miner the same amount and not run afoul of Part 90, even when a
transferred miner would be entitled to a higher wage in the post-transfer job. Respondent’s
confusion stems from its belief that the Secretary’s interpretation prohibits
operators from using a miner’s hourly rate to determine the miner’s “regular
rate of pay.” Instead, the Secretary’s position is that “ all hourly
rates—straight time hours, routine overtime hours, routine Saturday pay,
etc.—combine to equal a miner’s regular rate of pay.” (Sec’y Resp. at 7.)] Moreover,
as the D.C. Circuit noted in

Additionally,
Respondent argues “regular rate of pay” cannot mean “no loss of pay” because “no
loss of pay” is used in section 103(f) of the Mine Act; and “‘[w]here a statute
or regulation uses specific language in one [provision] but different language
in another, the Court presumes different meanings were intended.’” (Resp’t Mot.
at 15–17 (quoting Weichsel v. JP Morgan Chase Bank, N.A., 65 F.4th 105,
113 (3d Cir. 2023) (citations omitted)).) Once again, Respondent oversimplifies
and misconstrues the Secretary’s argument. The Secretary does not argue that
Part 90 or section 203(b)(3) means that transferred miners shall suffer no loss
of pay. Rather, the Secretary argues that under Part 90 “Cook was entitled to
receive ‘the same dollar amount that he received immediately prior to
his transfer’ such that he would suffer ‘no loss of pay upon transfer.’”
(Sec’y Mot. at 1 (quoting Matala, 647 F.2d at 430 (emphasis added)).) Thus,
section 203(b)(3) and Part 90 establish an affirmative obligation to pay the
transferred miner at least the “same dollar amount” they received prior to
their transfer, and as a result of this obligation the Part 90 miner does not
suffer a loss of pay upon transfer. Matala, 647 F.2d at 430.

In
contrast, section 103(f) of the Mine Act provides that a representative of
miners has the right to accompany the Secretary or her authorized
representative during the physical inspection of any coal or other mine for the
purpose of aiding such inspection and to participate in pre– or post–inspection
conferences held at the time. 30 U.S.C. § 813. Because the miner representative
cannot perform their typical work while attending the inspection, section
103(f) also confirms that “[s]uch representative of miners who is also an
employee of the operator shall suffer no loss of pay during the period
of his participation in the inspection.” 30 U.S.C. § 813 (emphasis added). Thus,
after examining the full context of section 103(f) it is clear that the “no
loss of pay” language serves to prevent mine operators from not paying miner
representatives for the time they spend attending the inspection, which would
greatly dissuade miner representatives from taking part in the inspections. This
protection against complete non-payment differs from section 203(b)(3)’s
affirmative guarantee that a transferred miner is to receive at least the same
“regular rate of pay” of their pre-transfer position.

The text and structure of the Mine Act suggests that Congress aimed to address miners’ fear of invoking their Part 90 transfer option by protecting miners from the potential loss of pay. Interpreting “regular rate of pay” to include overtime pay protects against those fears by effectively maintaining the same compensation before and after exercising the transfer option. Thus, the Mine Act’s text and structure supports the Secretary’s interpretation.

2. The Legislative History
of the 1969 Coal Act and Mine Act of 1977

The legislative history of a
statute is often “the most fruitful source of instruction as to its proper
interpretation. Flora v. United States, 362 U.S. 145, 151 (1960). Thus,
I will examine the legislative history of section 203(b)(3) “in order to
ascertain the intent of Congress.” United States v. Wise, 370 U.S. 405,
414 (1962). The legislative history of section 203(b)(3) of the 1969 Coal Act
illustrates “Congress’ firm resolve that miners contracting black lung disease
were not to be discouraged from health-saving transfers by fear of an ensuing
reduction in pay.” Mullins v. Andrus, 664 F.2d 297, 302, n.49 (D.C. Cir.
1980) (citing S. Rep. No. 91–411, at
50 (1969); H.R. Rep. No. 563, at 40–41
(1969)). The intent of section 203(b)(3) was summarized by a Senate Report as
follows: “[i]n order to insure [sic] that miners who are afflicted with
pneumoconiosis suffer no loss in compensation, the committee has
included a provision entitling a miner who is transferred to another job
pursuant to this subsection to receive his old or new rate of pay, whichever is
greater.” S. Rep. No. 91–411, at 49
(1969) (emphasis added).

Congress amended the 1969 Coal Act in 1977 by enacting the Mine Act, thus recognizing “an urgent need to provide more effective means and measures for improving the working conditions and practices in the Nation’s coal or other mines . . . in order to prevent occupational diseases originating in such mines.” 30 U.S.C. § 801(c). The Mine Act amended the 1969 Coal Act by modifying and extending coverage under Titles I and V to all types of mining and transferring enforcement to the Secretary of Labor.

Specifically, Congress amended section
101, directing the Secretary of Labor to promulgate an improved mandatory
health or safety standard for the transfer of coal and non-coal miners due to
exposure of toxic substances. 30 U.S.C. § 811(a)(7). When drafting this
provision in section 101(a)(7), the House and Senate versions of the bill
addressed the issue of wage increases for transferred miners based on their
previous or new work classification differently. Higgins, 584 F.2d at
1038. The House version of the bill included no compensation protection
provision for miners transferred under section 101(a)(7). Id. The Senate
version of the bill included a compensation protection provision for miners
transferred under section 101 as follows: “[a]ny miner transferred as a result
of such exposure shall continue to receive compensation for such work at not
less than the regular rate of pay for miners in the classification such miner
held immediately prior to his transfer.” S. 717, 95th Cong. § 101 (1977)
(emphasis added).

The compensation protection provision of section 101(a)(7) of the Mine Act, as finally enacted by both Houses, includes the following language:

[a]ny miner transferred as a result of
such exposure shall continue to receive compensation for such work at no less
than the regular rate of pay for miners in the classification such miner
held immediately prior to his transfer. In the event of the transfer of a miner
pursuant to the preceding sentence, increases in wages of the transferred miner
shall be based upon the new work classification.

30 U.S.C. § 811 (a)(7) (emphasis added).[5]

The Mine Act was accompanied by a Conference Committee Report that explains the differences between the House and Senate versions of the bill regarding the compensation provision of section 101(a)(7). The relevant portion of the Conference Report reads:

• *

H.R. Rep. No. 95-655, at 42 (1977) (emphasis added).

Both parties argue the legislative
history of section 101 of the Mine Act supports their interpretations of
“regular rate of pay.” The Secretary points to the language in the Conference
Report describing Congress’ intent that Part 90 miners shall suffer “no
immediate financial disadvantage if a medical examination results in a job
reassignment.” (Sec’y Mot. at 6 (quoting H.R.
Rep. No. 95-665, at 42 (1977) (emphasis added)).) Respondent, in turn,
points to the section that refers to a post-transfer miner’s raises as
entitling miners “to the same dollar rate increases applicable to his
new job classification.” (Resp’t Resp. at 10 (quoting H.R. Rep. No. 95-665, at 42 (1977) (emphasis added)).) Respondent
argues that in context, the language, “suffer no immediate financial
disadvantage,” does not relate to the Part 90 miner’s total paycheck but the
“dollar rate.” (Id.)

Respondent’s argument assumes
“dollar rate” is the hourly wage rather than total amount. The distinction
between the two is the crux of the issue. The D.C. Circuit in Higgins
analyzed the same Conference Report and concluded, “[i]t is clear that . . .
miners transferred under section 811(a)(7) of the 1977 Act because of exposure
to toxic substances are not to suffer an immediate decrease in pay, but
it is also manifest that the pay protection is not linked forever to their
pre-transfer job classification.” Higgins, 584 F.2d at 1039 (emphasis
added). Thus, the language “suffer no immediate financial disadvantage”
confirms that Congress intended that a miner transferring as a result of a
medical examination should “receive the same dollar amount that he received
immediately prior his transfer,” that is the same total amount. Matala,
647 F.2d at 430. Moreover, the language “same dollar rate increases” is
referring to the subsequent raises a transferred miner should receive, not the base
compensation they should receive after being transferred. Thus, the language
“same dollar rate increases” is not relevant to the precise issue here.

The legislative history suggests that to encourage participation in medical examination programs, Congress intended that Part 90 miners not suffer any loss in pay after transferring, except that raises to their pre-transfer job positions were not available to them. Consequently, the Secretary’s interpretation of “regular rate of pay” ensures “no immediate financial disadvantage” to Part 90 miners exercising their transfer option because they will receive the total amount of pay received prior to the transfer.

3. The Legislative Purpose
of the 1969 Coal Act and the 1977 Mine Act

Finally, I must interpret the
language of section 203(b)(3) “in light of the purposes Congress sought to
serve.” Chapman v. Hous. Welfare Rts. Org., 441 U.S. 600, 608 (1979). In
enacting section 203(b) of the 1969 Coal Act,

Congress recognized that human suffering, including individual and societal costs, result from the continued exposure of miners with pneumoconiosis to high levels of respirable dust. To protect miners who have evidence of pneumoconiosis but who may desire or find it necessary to remain working at coal mines, Congress sought to minimize the risk that further health impairment would occur.

45 Fed. Reg. 80,760, 80,763 (Dec. 5, 1980). Thus, Congress established the right of miners with evidence of pneumoconiosis to work in an area of the mine with a lower concentration of respirable dust in the atmosphere. 45 Fed. Reg. 80,760, 80,763 (Dec. 5, 1980).

Congress also recognized that
“miners may be forced to choose between continued exposure to hazardous
substances or significant wage reduction if work in cleaner environments is
sought.” 45 Fed. Reg. 80,760, 80,767 (Dec. 5, 1980). To remedy this dilemma, Congress
created section 203(b)(3) which explicitly states that a transferred miner must
retain at least “the regular rate of pay received by him immediately prior to
his transfer.” 30 U.S.C. § 843(b)(3). See also Higgins, 584 F.2d at 1037–38
(finding that the basic purpose of section 203(b)(3) of the 1969 Coal Act was
to ensure that a miner does not have to take a pay cut upon transfer to a
position which would ordinarily pay less, so that “the miner is more likely to
transfer to protect his health than he would be otherwise”); Matala, 647
F.2d at 430 (finding that Congress’s intent in creating section 203(b)(3) of
the 1969 Coal Act was to ensure that a miner transferring because of Black Lung
Disease does “not lose money because of the transfer”); Mullins, 664
F.2d at 309 (finding that the pay-maintenance section of the 1969 Coal Act “was
designed to promote health-conserving transfers by eliminating fear of adverse
economic consequence”).

If I were to adopt Respondent’s interpretation of “regular rate of pay” as meaning the same number of dollars per hour, then an operator could significantly reduce the pay of a Part 90 miner. An operator could simply reduce the number of hours the Part 90 miner works at the less dusty job while maintaining the same hourly rate of pay as the prior dusty job. Such an outcome would result in Part 90 miners being immediately financially disadvantaged for exercising their Part 90 option. Allowing such an outcome would result in a chilling effect whereby miners will be disincentivized and discouraged from exercising their Part 90 rights. This outcome would fundamentally frustrate the purpose of section 203(b)(3) of the Mine Act.

After reviewing the text, structure, history, and purpose of the Mine Act as well as relevant case law, I determine that the Secretary’s interpretation of “regular rate of pay” is the most reasonable and in line with what Congress intended. Any other interpretation would allow an operator to significantly reduce a Part 90 miner’s hours and thus compensation, as long as the operator compensated the Part 90 miner the same dollar amount per hour. Thus, I conclude that “regular rate of pay” in section 203(b)(3) means the same total dollar amount the Part 90 miner received immediately prior to transfer.

C. Whether Respondent Discriminated and/or
Interfered with Cook’s Part 90 Rights in Violation of Section
105(c)(1) of the Mine Act

1. Whether
Respondent Discriminated against Cook

Section 105(c)(1) of the Mine Act
provides that no person shall “discriminate against . . . or otherwise
interfere with the exercise of the statutory rights of any miner . . . because
such miner . . . is the subject of medical evaluation and potential transfer
under a standard published pursuant to section 811 of this title.” 30 U.S.C. § 815(c)(1).
The legislative history of section 105(c) has led the Commission to conclude
that the section is to be construed “expansively to assure that miners will not
be inhibited in any way in exercising any rights afforded by the [Act.]” S. Rep. No. 95–181, at 36 (1977) (quoted
in Moses v. Whitley Development Corp., 4 FMSHRC 1475, 1490 (Aug. 1982)).

The Commission has formulated a test
to establish a claim of discrimination under section 105(c) called the Pasula-Robinette
test.[6]
Under the Pasula-Robinette test, a miner establishes a prima facie case
of discrimination by showing (1) that they engaged in protected activity, and
(2) that they thereafter suffered adverse employment action that was motivated
in any part by that protected activity. E. Associated Coal Corp. v. Fed.
Mine Safety & Health Rev. Comm’n, 813 F.2d 639, 642 (4th Cir. 1987).

The Secretary claims that discriminatory
motivation need not be shown in the present case. (Sec’y Mot. at 11.) The
Secretary argues that the very fact Cook was paid less than his “regular rate
of pay” after he exercised his Part 90 rights is sufficient to find
discrimination under section 105(c)(1). (Sec’y Mot. at 11.) The Secretary substantiates this argument by pointing to
an analogous case in which the Commission held that an operator violated
section 105(c)(1) when it paid a miner less than she would have otherwise
earned after exercising her statutory walkaround rights under section 103(f) of
the Mine Act. See Otten v. Continental Cement
Co., 45 FMSHRC 258 (May 2023),

Respondent
argues that the statutory language “no loss of pay” in section 103(f) is not
found in § 90.103 and therefore Otten does not apply. (Resp’t
Resp. at 20–23.) While the statutory language is not the same, both statutory
rights operate similarly to prevent “a loss expressly prohibited by the Act
because of [the] exercise of an expressly protected right.” Otten, 45
FMSHRC at 262 n.8. Indeed, the conditions
of Otten—as well as the Commission’s decisions in Stillion v. Quarto
Mining Company and Secretary ex rel. Truex v. Consolidation Coal Company—are
sufficiently similar to Cook’s case, as both miners were paid at a lower rate
than their statutory right. Like Otten, Cook “suffered an adverse action” because
he exercised his rights. Otten, 45 FMSHRC at 262.
Namely, Cook was paid less than the regular rate of pay he received immediately
before his transfer, which is “expressly prohibited” by § 90.103, “regardless of intent.” Otten, 45
FMSHRC at 262. Based on my analysis of
the Commission’s case law, I conclude that Respondent discriminated against
Cook in violation of section 105(c)(1) of the Mine Act.

2. Whether
Respondent Interfered with Cook’s Part 90 Rights

Cook, separate from the Secretary, argues that even if Respondent’s conduct did violate part 90, Respondent nevertheless violated Section 105(c)(1) of the Mine Act by interfering with his Part 90 rights. (Compl’t Mot. at 1.) Specifically, Cook alleges “that the Respondent interfered with [his] Part 90 rights by intentionally transferring him to a job with substantially lower wages and significant dust exposure, while yet having other available job positions that would not have financially damaged [Cook] or subjected him to coal-mine dust levels that violated Part 90.” (Compl’t Mot. at 2.) Cook asserts that Respondent’s conduct “reasonably appeared to a miner like him to penalize him for exercising his Part 90 rights.” (Compl’t Mot. at 4.)

Because I determine that Respondent violated Part 90, any question of whether Respondent interfered with Cook’s Part 90 rights without violating Part 90 is not at issue and inapposite.

D. Penalty

Here, the Secretary’s proposed penalty of $17,500.00 appears excessive given that even the Secretary herself argues that the meaning of “regular rate of pay” in Part 90 is ambiguous. (Sec’y Mot. at 3.) Because the Secretary considers the standard ambiguous, Respondent’s ignorance regarding the applicability of the standard would appear less negligent. The dearth of cases dealing with Part 90 that could elucidate the meaning of “regular rate of pay” also suggests Respondent’s negligence to be low. Moreover, the Secretary does not point to any published guidance in her handbooks for the regulated community on Part 90 violations, which would also mitigate Respondent’s level of negligence.

Respondent’s failure to immediately transfer Cook to an outside job with lower dust exposure when one was available may be construed as discriminatory intent. (Compl’t Mot. at 2.) However, Cook’s relatively quick transfer from underground to outside work after additional dust monitoring indicated continued overexposure, coupled with the ambiguous meaning of “regular rate of pay” in Part 90, are mitigating factors that work to reduce the proposed penalty. (Joint Stipulations at 3.)

Upon considering the criteria set forth in section 110(i) of the Mine Act, as well as the purpose of section 105(c) and all the relevant facts and circumstances, I hereby assess a civil penalty of $4,500.00.

V. ORDER

Respondent Panther Creek Mining’s Motion for Summary
Decision is hereby DENIED, Cook’s Cross-Motion for Summary Decision is GRANTED,
in part, and DENIED, in part, and the Secretary of Labor’s Motion for
Summary Decision is GRANTED.

Cook’s request for attorney’s fees
and expenses is hereby DENIED. A miner who retains private counsel to
intervene in a section 105(c)(2) discrimination proceeding brought by the
Secretary is not entitled to recover their private attorney’s fees. E.
Associated Coal Corp. v. F.M.S.H.R.C., 813 F.2d 639, 644 (4th Cir. 1987).

Respondent is ORDERED to pay
backpay to Cook in the amount of $761.67 plus quarterly interest at
the Federal underpayment rate through the date of payment, to be calculated by
the parties. See Sec’y of Labor ex rel. Bailey v. Ark.–Carbona Co., 5
FMSHRC 2042, 2051–52 (Dec. 1983). Such payment shall be made within 40 days of
the date of this decision.

Respondent is ORDERED to pay
the Secretary of Labor the sum of $4,500.00 within 40 days.

/s/
Alan G. Paez

Alan G. Paez

Administrative Law Judge

Distribution: (Via Electronic Mail Only)

[Rebecca
W. Mullins, Esq.,]Office of the Regional Solicitor, U.S. Department of
Labor,

201 12th Street South, Suite 401, Arlington, VA 22202-5408

([email protected])

Samuel B. Petsonk, Esq., Petsonk PLLC, P.O. Box 1045, Beckley, WV 25802-1045

([email protected])

[Jonathan
Ellis, Esq., Steptoe & Johnson PLLC, P.O. Box 1588, Charleston, WV 25326-1588]

([email protected])

Todd C. Myers, Blackhawk Mining LLC, 250 W. Main Street, Suite 2000, Lexington, KY

40507-1513

([email protected])

AA/MEK

[1] The statutory language of section 203(b) has an
unusual history. See discussion infra IV.A.

[2] While both parties cite GMS Mine Repair,
neither the Secretary nor Respondent provide the full analysis required by Kisor
in their respective motions. Under Kisor, courts must first
determine whether the regulation is “genuinely ambiguous” by “exhaust[ing] all
the ‘traditional tools’ of construction.” Kisor, 588 U.S. at 575
(quoting Chevron U.S.A., Inc. v. Nat. Res. Defense Council, Inc.,
467 U.S. 837, 843, n.9 (1984) (overruled by Loper Bright Enters. v.
Raimondo, 144 S. Ct. 2244 (2024))). The traditional tools of statutory
construction include carefully considering the “text, structure, history, and
purpose of [the] regulation.” Kisor, 588 U.S. at 575. Second, even if
courts find that a regulation is genuinely ambiguous, the agency’s
interpretation “must fall ‘within the bounds of reasonable interpretation.’” Kisor,
588 U.S. at 576 (quoting Arlington v. FCC, 569 U.S. 290, 296 (2013)). Finally,
courts must inquire into “whether the character and context of the agency
interpretation entitles it to controlling weight.” Kisor, 588 U.S. at 576.
Namely, deference is warranted when an interpretation reflects an “agency’s
authoritative, expertise-based, ‘fair[, or] considered judgment.’” Kisor,
588 U.S. at 573 (quoting Auer v. Robbins, 519 U.S. 452, 462 (1997)).

[3] In the preamble to the 1980 Part 90 standard
promulgated by the Secretary of Labor under the authority of the 1977 Mine Act,
the Secretary notes that MSHA received a substantial number of comments
regarding whether a transferred Part 90 miner should “receive wage increases
commensurate with increases received in the old work classification.” 45 Fed.
Reg. 80,766–67 (Dec. 5, 1980). Commentators in support of this position cited Matala
v. Marshall, 483 F. Supp. 1332, 1333 (N.D.W. Va. 1980), rev’d sub nom.
Matala v. Consolidation Coal Co., 647 F.2d 427 (4th Cir. 1981)
(concluding that Congress intended “regular rate of pay” in section 203(b)(3)
of the 1969 Coal Act to mean “classification rate,” and the Part 90 miner was
therefore entitled to receive the increased wage rate of his pre-transfer
classification), while commentators opposed to this position cited Higgins
v. Marshall, 584 F. 2d 1035, 1037, 1039 (D.C. Cir. 1978) (holding that the
pay protection of section 203(b)(3) of the 1969 Coal Act “is not linked
forever” to the Part 90 miner’s “pre-transfer job classification,” and thus the
Part 90 miner was not owed “the future pay increments he would have received
had he remained in his previous position”). 45 Fed. Reg. 80,767 (Dec. 5, 1980).
The Secretary rejected both these arguments, noting: “This new rule is an
improved mandatory health program promulgated under section 101 of the [1977
Mine] Act and as such, supercedes [sic] provisions contained in section 203(b).
Neither the Higgins nor Matala holdings are applicable to the pay
provisions specified under this new Part 90 as the issue in both of these cases
involves the statutory interpretation of section 203(b) of the [1969 Coal]
Act.” 45 Fed. Reg. 80,767 (Dec. 5, 1980).

Here,
the Secretary is addressing the Northern District of West Virginia’s Matala
decision, which was subsequently reversed by the Fourth Circuit. See Matala
v. Consolidation Coal Co., 647 F.2d 427, 430 (4th Cir. 1981) (reversing the
judgment of the district court). The Secretary’s assertion that Higgins
and Matala are irrelevant in determining the new language of the Part 90
standard is inapposite to the significance of the cases’ interpretation of
“regular rate of pay” in section 203(b)(3) of the 1969 Mine Act. As I explained,
see discussion supra IV.A, the language of section 203(b)(3) of
the 1969 Coal Act was incorporated without modification in section 203(b)(3) of
the 1977 Mine Act. Therefore, the D.C. and Fourth Circuits holdings
interpreting the meaning of “regular rate of pay” in Higgins and Matala,
respectively, remain good law.

[4] See discussion supra IV.A for the
history of the statutory language of section 203(b)(3).

[5] In the preamble to the 1980 Part 90 standard, the
Secretary of Labor also notes that the wage protection in 30 C.F.R. § 90.103(e)
(“[i]n addition to the compensation required to be paid under paragraphs (a),
(b), and (d) of this section, the operator shall pay each part 90 miner the
actual wage increases that accrue to the classification to which the miner is
assigned”) is consistent with section 101(a)(7) of the Act. 45 Fed. Reg.
80,760, 80,767 (Dec. 5, 1980)

[6] See Sec’y of Labor on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other
grounds, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981).