with whom
CLARK, Chief Judge, joins, concurring:I concur with conviction in all aspects of the court’s opinion except that compelled by our opinion in Coleman v. Jiffy June Farms, 458 F.2d 1139 (5th Cir.), cert. denied, 409 U.S. 948, 93 S.Ct. 292, 34 L.Ed.2d 219 (1972). In that I concur only because, bound by precedent, I must.
It is true, as the court observes (p. 374), that there is a long line of precedent in our court construing “willful,” as used in Section 255 of the Portal-to-Portal Act, as requiring no more scienter or volition on the part of the employer than that he “know or have reason to know” that he is subject to the Act. It is also true, however, that it is all traceable to Jiffy June Farms, the later panels having been bound as are we.
With all deference to the distinguished panel that arrived at it, I think the construction an aberrational one which reduces a volitional term to a meaning that implies at most negligence or inattention. This is not the ordinary meaning of the term or that which we accord it in other contexts, e.g., United States v. Granda, 565 F.2d 922, 925 (5th Cir. 1978), citing numerous opinions, among them those of the Supreme Court. These latter antedate the passage of Section 255, so that Congress knew of them when it selected the term for use there. For us to give it, in this lone context, a different meaning from the settled one smacks to me of amendment rather than of construction.