Marvin A. Ball v. David Mathews, Secretary of Health, Education, and Welfare

say. circumstances, commit- Under these Congressional judg- testimony before Advisory ment, sentence, including Commit- tee, of must be af- the members the Rule Rules stressed that firmed. tee Criminal permit any court require that a does appreciate We can the dilemma of the U. to presented to be plea agreement

form of Attorney and counsel in defense conduct- S. House report of the this it. On where ing plea negotiations there is a mark- Judiciary stated: Committee divergence among judges the several ed 11(e) proposed permits each “Rule respect plea bargains. one division with to to decide for itself the federal court would, highly It be desirable for permit plea negotia- it will tent to which multi-judge in a judges all of the division to be carried on within its own tions to adopt policy respect plea a uniform to jurisdiction. compelled No court to bargaining, but this is a matter lies permit any plea negotiations at all. Pro- solely good judg- within the discretion and 11(e) posed regulates plea negotia- Rule judges. ment of the district if, agreements tions and and to the ex- judgment of conviction is affirmed. that, permits negotia- tent the court AFFIRMED. agreements.” tions and 94-247, (Emphasis Supplied). H.Rep. No. Cong. p.

1975 U.S.Code & Admin.News

678. judge each individual is free whether, degree, to

to decide and what bargains, plea

will entertain and his refusal any plea bargaining consider whatsoever

to guilty plea will not vitiate a which has BALL, Appellee, Marvin A. knowingly voluntarily otherwise been entered. MATHEWS, Health, David noted, however, It should be Education, Welfare, Appellant. 32(a)(1), providing Rule after No. 76-1727. attorney, allocution to a defendant and his attorney “The states: Government United Appeals, States Court of equivalent opportunity shall have an Fourth Circuit. to the court.” In the instant case the speak Argued record shows that after the defendant had Jan. plea, probation

entered his and after Decided Oct. presentence report, officer had made his attorney appro for the defendant made

priate statement and the defendant was

given opportunity speak. does not attorney for the Govern

appear opportunity.

ment was offered such an If refused, request

such a had been made and might to strike the sentence imposition

and remand the case for the attorney after the for the Govern

sentence opportunity

ment had been afforded an However,

speak to the court. it does not attorney for the

appear that either attorney or the for the defend

Government requested attorney for the

ant anything be asked if he had

Government

1149 Reinhart, Regional William Asst. M. Health, Welfare, Atty., Dept. of Ed. & Phil Thomson, Jr., Pa. adelphia, (Paul R. U.S. Tucker, E. Atty., Montgomery Asst. U.S. Va., Roanoke, Atty., Stephanie W. Nai doff, Regional Philadelphia, Pa., Atty., on brief), for appellant. Morici, Beach,

Alfred G. West Palm Fla. Va., Moore, Abingdon, R. (James brief), appellee. for HAYNSWORTH, Before Chief Judge, FIELD, BRYAN and Senior Circuit Judges.

FIELD, Judge: Senior Circuit pneumo- The claim for of Marvin A. Ball coniosis benefits under the Federal Coal Safety Mine Health of 1969 (Act), Act seq., et amended, as 30 U.S.C. § Health, Secretary denied Educa- tion, (Secretary) upon and Welfare establish ground Ball had failed to employment his condition had arisen out required by in a coal mine as the Act.1 The district this court reversed administrative ap- determination2 and has pealed. Act, miner

Under the if a who is totally pneumoconiosis disabled due to or more in ten one or Mathews, (W.D.Va. F.Supp. 902(b) “pneumoconiosis” 2. Ball 241 defines 1. 30 § U.S.C. 1976). arising lung “a chronic dust disease employment coal mine.” out of in a mines, he is entitled to a rebut- rection of another merely more as to the result that his condition arose presumption table to be accomplished by the work and not employment. 30 U.S.C. out of as to the means and methods for accom- However, the Act defines a 921(c)(1). result, plishing the he is “any individual who is or was miner as contractor. An individual performing mine,” it employed in a coal is clear services as an contractor is statutory this as well as the other from not as to such services employee an under definitions, qualify that to for benefits un- the usual common-law rules. only der the Act a claimant must show not Finally, the regulations provide: disabling his disease resulted from his that “(m)(2) Whether relationship of mines, in the but that such work was work employer and employee exists under the performed capacity “employee” in the of an usual common-law rules will in doubtful in the Secretary’s regula- which is defined cases be determined an examination 410.110, tion, 20 C.F.R. as follows: particular facts of each case.” “(m) ‘Employee’ means an individual in The Administrative Judge (ALJ) Law relationship (between legal person found totally that Ball was disabled due to performs for whom services and him- pneumoconiosis, but that he was not enti- self) employer under the tled to the benefit of the statutory pre- common-law rules. usual sumption since he did not have the requisite addition, regulations suggest In various ten of work in a coal mine as an tests to determine existence of an em- “employee” as by defined the Secretary. relationship: ployment Pivotal to this finding was the conclusion of “(m)(l) Generally, relationship the ALJ plaintiff’s that the work in a mine person when the for whom ists by owned Jewell Coal Company during the right has the performed are to control period from 1955 to 1969 performed as performs who and direct individual contractor and not as an services, only as to the result to employee. The judge, however, district de- accomplished by the work but also as termined undisputed that the facts showed by the means which that result that Ball had worked during period that is, accomplished; an employee is an employee of the company coal rather subject to the will and control of the than as an contractor. only employer as to what shall be done but how shall be done. In this The evidence relative to this issue connection, it is not largely undisputed. Jewell Coal Company actually employer direct or control the opened the mine adjacent and built an tip- per- in which the services are manner ple in 1954. In 1955 the claimant and his formed; right it is sufficient if he has the two brothers entered agree- into an oral right discharge so. The is also to do ment with Jewell under they, togeth- important indicating factor er with them, miners possessing employ- is an person work the mine and be a fixed amount er. Other factors characteristic per ton for the coal which they delivered to necessarily present employer, but not the tipple. Under this Ball and furnishing of tools and every case are 'the his brothers were required to deliver the place to work to furnishing of a only Jewell, during the entire the services.” performs individual who year period fourteen earnings their were regulations guide- forth Conversely, the set solely derived from the coal which they lines to determine the absence an em- Jewell, mined for Jewell. owned ployment relationship: tipple and also owned all of the equip- “ * * * (m)(l) general, if an indi- ment which was in the mining opera- used subject

vidual to the control or di- repairs tions. for the on this 902(d).

3. 30 U.S.C. § tours charges and the for electrical of the term equipment “employee”, but it has service, engineer supervised Jewell’s “never immunized judgments from [their] judicial and technical structures of review in this respect,” Chemical During the entire period Glass, mine. Jewell Workers v. Pittsburgh 404 U.S. compensation coverage 383, 391, 92 S.Ct. 30 L.Ed.2d 341 (1971). brothers, his as well Secretary’s for the claimant and as While the determination that an miners hired them to assist in the individual is an employee under the Act “is Ball and his brothers operations. accepted While to be if it has ‘warrant .employees, of the other supervised work record’ and a law,”4 reasonable basis in machinery, also ran loaded coal with they there is no reason why the court should any type did other of work yield shovels and to the ap- decision if it required pears which was either inside or outside application that the of the law to the mining operation. incident to the requires the mine facts a different result.5 very Ball and his brothers knew little recognized The ALJ there was a accounting, employed about taxes or and an serious question as to the exact nature of keep their books and records accountant the relationship between the claimant and prepare and the tax returns. The Jewell Coal Company, despite consider- basis, kept equivocation were on a and able books on the point, he concluded three brothers their own social that the the “thrust of the agreement [between income security quarterly taxes and taxes Ball and was that the claimant was Jewell] self-employed indi- on an estimated basis as a ‘defacto’ employer.” In reaching this [sic] ordinarily four They viduals. or conclusion the ALJ placed considerable em- mining oper- phasis men to assist them in the on during five the fact that years the in partnership paid question ations and the social Ball and his brothers reported had on these security taxes miners based their income to the tax authorities as self- earnings quarterly period. and, for each employment their income additionally, that earnings annual under the letter Ball’s from Jewell to the Security Social were six and sev- ment somewhere between authorities indicated that the three brothers worked in a self-employed en thousand dollars. status on the coal leases of the company. The contends there is sub support inappropri stantial evidence in the record to it was ate for the ALJ place plaintiff heavy his conclusion that was an reliance upon the statement and, attributed to an unlet accordingly, contractor tered coal miner in his tax returns and finding binding that this upon the dis statement, Jewell’s somewhat self-serving think, however, court. trict We do not for the issue of whether Ball was working simplistic application general of this employee as an engaged or was in an inde principle appropri of administrative law is pendent operation upon something turned agree ate in the case before us for we more than conclusory these characteriza judge the district that this purely was not a thirty years tions. Some ago in United finding by Secretary, factual but in Silk, 704, 716, States 331 U.S. 67 S.Ct. application volved the of well established 1463, 1469, (1947) 91 L.Ed. 1757 the court principles of law to facts which were not in stated: dispute. The recognized Court has that ad agencies

ministrative have assigned been “Probably quite impossible it is primary task of determining the con- tract from the statute a rule of thumb to Publications, 111, (1965). However, 4. NLRB v. Hearst 322 U.S. L.Ed.2d 616 such deference 851, 861, (1944). considerably S.Ct. 88 L.Ed. 1170 present diluted in the case since regulation merely catalogues recognize 5. We the courts accord con- applied by criteria which have been courts agen- siderable deference to an administrative making in a determination an whether individu- cy’s interpretation regulation, of its Udall v. isal or an contractor. Tallman, 1, 16, 380 U.S. 85 S.Ct. true, One final observation. employer-employ- of the the limits define Security relationship. agreement Social ee between Ball will find that de- the courts Agency company many was initiated control, profit for opportunities grees Act, years prior to the and such legislation facilities, loss, perman- in investment or contemplation was not within the of the required in the and skill ency of relation Nevertheless, parties. opinion, in our impor- operation are claimed would be most unwise to countenance an controlling No one is decision. tant for which could be used mine complete.” list nor is the owners to the Act escape burdens of in before us is viewed the record When and result in the denial of benefits to num- criteria, think it is we light of these bers of coal miners who would otherwise be Ball during clear that entitled thereto. In the context of the So- employee and not mine as an labored Act, Security possibility cial such a It was Je- independent contractor. Silk, supra, where discerned Court which was invested in capital well’s the Court stated: and, likewise, it was equipment mine and ‘employment’ ‘employ- terms “[T]he energy for the electrical who ee,’ accomplish are to be construed operation. incident to the repairs As the feder- purposes of record indicates that Nothing in the security legislation al social is an attack opportu- Ball with the recognized evils in our national econo- ordinarily other factors nity profit or my, interpretation a constricted entrepreneurial activity. with an associated phrasing by comport the courts would not of the relevant facts A distillation of all purpose. interpretation with its Such indicates the between Jew- continuance, a only make for to a designed ell and the Ball was brothers the nothing degree, more than labor the provide considerable difficulties for the and deliver it required to mine which the remedy was devised and would That such was the company’s tipple. the by employers invite adroit schemes some by the is manifest nub of the employees to avoid the immediate necessary to steps that Jewell took the fact expense of the burdens at the benefits employer by effecting protect itself as an sought by the These consid- compensation coverage upon guided erations have heretofore our con- brothers, well as the other and his Ball (Footnote Act.” omit- struction of the miners, years. during the entire fourteen ted). U.S., 712, supra, 331 at 67 at S.Ct. something Concededly, Ball’s status was clear, opinion but it is our crystal less than Secretary’s conclusion the record before him the AU the result of a in this case was “constricted applied principle have should and, interpretation” accordingly, judg- respect to a where there is doubt ment of the district court affirmed. an inde- status as or claimant’s contractor, be re- the doubt should pendent AFFIRMED. princi- claimant’s favor. This solved in the by which has been followed ple HAYNSWORTH, Judge, Chief dissent- com- courts in the area of workmen’s state ing: law,6 accords with the humanitar- pensation respectfully I dissent. lung legislation. this black objectives ian Kleinsmith, Bounds, (1941); 752, Southard v. N.E.2d 854 19 Irvan v. 205 Ark. 170 S.W.2d 109, Fidelity (1941); Kamarad v. of N.Y. v. (1943); 17 A.2d 788 & Cas. Co. N.J.Misc. 674 Parkes, 566, Windham, 198, (1957); Ga.App. 300 S.W.2d 922 517 201 Tenn. 87 73 S.E.2d Com’r., Compensation Myers 835, grounds, v. Workmen’s (1952), rev’d on other 74 S.E.2d 563, (1966); (1953); Daggett v. Nebraska-East- 150 W.Va. 148 S.E.2d 664 99 C.J.S. 209 Ga. 592 Inc., Express, N.W.2d 91 and cases cited therein. ern 252 Iowa 107 Julian, (1961); Meek v. 219 Ind. majority recognizes that deference ployment taxes on the earnings of part- findings due the and conclusion of the Sec- ners and social security taxes on the earn- retary resolving this mixed ings of employees. its I cannot look upon however, reversing, fact and of law. the partnership actions in discharging these majority can to no error of law which obligations tax of an independent contrac- Secretary. influenced decision of the tor as an inadvertence part on the What it does is to take a different view of uneducated coal miner. Relatively unedu- facts, which, though substantially un- cated employers are not likely to pay tax disputed, can process become colored in the obligations unless they are convinced that of a selective statement of them. In my the law requires Moreover, it. partner- view, statement of the facts ship employed its own accountant. The balanced, accepted was more and should be conduct of the partners was entirely con- by this court. sistent with the expressed conclusion of Jew- paid Ball and his brothers were wages ell Coal Company that the mutual intent anything resembling wages. or They were parties both was to create an indepen- per fixed sum ton of coal delivered to dent contractual relationship in which Ball tipple. partnership Whether the made Brothers was to manage its business free of profits, profits, amount of those control Jewell and to reap and retain depended upon part- the volume of coal the what profits would accrue from good man- deliver, nership could and the costs incurred agement of the work. partnership in the extraction and The case would perfectly be clear and delivery of coal. The contract did not beyond dispute had Jewell stipulate the number of miners to be em- capital investment ployed by partnership, wages or the Brothers, for the Ball paid their electricity days, them. In these there are bill, and partners included the and their any employer may limits to which hold la- employees in its workmen’s compensation basis, hourly bor costs down on an coverage. These seem to me great of no limits, within those significance in deciding where keep free to its labor costs low hourly or to control lay, for such arrangements were pay premium some for exceptionally pro- simply practical consequence of econom- employees. The management ductive ic considerations. the work was for the partnership, and the The partner’s mining partnership’s operation amount of the earnings was in was sim- ply large relationship quality enough direct to the to justify the employ- performance of the ment of partnership engineer. in the dis- a full time Anticipated charge managerial of its function. part-time cost of engineering services by Jewell’s was doubtless reflected Moreover, parties were in complete in the tonnage price, and one suppose they intended an indepen- that any reduction price in resulted dent contractual relationship in which Jew- cost partnership less than the fee it ell Coal Company would have no would have pay procure had to the serv- direct or control the manner in which the ices engineer, if there work was done. Its sole interest was that person were such a in the vicinity. Similar- produced coal be and tipple. delivered to the ly, placing the cost of electricity on Jewell v. Kinty See United Mine Workers of probably represented a net savings to both America, (4th 1976). F.2d Cir. How parties, as would inclusion of people these up and when it was done was to the part- in Jewell’s compensation Thus, insur- nership. any possible dispute before ance. It seems obvious to me lung appeared about black disease on the horizon, parties solemnly intended that Jewell reported that would assist parties partnership maintained an in obtaining contrac- electric power, relationship, tual partnership recog- part-time service, and the and work- relationship by paying nized this self-em- men’s compensation protection at minimal no of as- find fault with the manner That kind in which he partnership. to the cost convert an weighed coming the facts in does to his conclu- sistance employ- into one of relationship sion. contractual Surely that should not employee. and er circumstances, Under those I believe that arrangement com- when the basic

the case binding conclusion is so on the basis of partnership pensated us. of coal delivered to per ton many dollars profits of the where the tipple of its quality on the depended partnership productiv-

managerial performance in the work of the achieve

ity it could employees. and their

partners true, that Jewell is also mine capital investment equipment. There is no indication

and its Brothers had the financial re-

that Ball any capital have made in- sources to Sturgeon, Bankrupt, re Richard Gene vestment, again there circum- Sturgeon, Bankrupt. Mabel Louise surely agreed reflected in the stance was Moreover, tonnage price. it is not unusual Richard Gene STURGEON and Mabel capital to seek initial for a businessman Sturgeon, Appellants, Louise financing persons from who will derive a from the economic benefit successful direct proposed of a business. Neither operation STEELE, Bankruptcy Frederic R. alone, in combination with the other nor Trustee, Appellee. paid, enough for which Jewell is it the clear fact that the business to override No. 77-1806. entrepreneurial, was of the parties that the mutual intention of the United Appeals, States Court of that control of the work and the manner Fourth Circuit. it was in the part- done vested Argued Aug. nership. Decided Oct. suggestion There is a majority that resort to such be a means to might part ments defeat in purposes pneumoconi-

the beneficent long

osis This statute, If there

antedated however. anything legisla- of that after enactment subterfuge which a resort to

tion indicates partially avoid liabilities under the stat-

utes, Secretary hearing and his officers we,

will know about it before quite to strike those

will be free Meanwhile, reviewing

ments down. we are finding

his fact and determination of a law

mixed and fact. I think we recognize the facts as found

should

Secretary, strongly pointing sup- those conclusion,

port of his as well as those other direction. The facts, weigh did all the and I can

Case Details

Case Name: Marvin A. Ball v. David Mathews, Secretary of Health, Education, and Welfare

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Oct 26, 1977

Citation: 563 F.2d 1148

Docket Number: 76-1727

Court Abbreviation: 4th Cir.