Mullins v. Andrus, No. 77-1086

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore ROBINSON and ROBB, Circuit Judges, and DAVIS; SPOTTSWOOD W. ROBINSON, III; ROBB
Citation214 U.S.App.D.C. 171,664 F.2d 297
Parties, 1981 O.S.H.D. (CCH) P 25,112 Howard MULLINS and United Mine Workers of America, Petitioners, v. Cecil D. ANDRUS, Secretary of the Interior, Respondent, Consolidation Coal Co., Intervenor.
Docket NumberNo. 77-1086
Decision Date31 December 1980

Page 297

664 F.2d 297
214 U.S.App.D.C. 171, 1981 O.S.H.D. (CCH) P 25,112
Howard MULLINS and United Mine Workers of America, Petitioners,
v.
Cecil D. ANDRUS, Secretary of the Interior, Respondent,
Consolidation Coal Co., Intervenor.
No. 77-1086.
United States Court of Appeals,
District of Columbia Circuit.
Argued Sept. 21, 1979.
Decided Dec. 31, 1980.

Page 298

Steven B. Jacobson, Washington, D. C., with whom Charles Griffin Cale, Washington, D. C., was on the brief, for petitioners. Harrison Combs, Washington, D. C., also entered an appearance for petitioner United Mine Workers.

Michael Kimmel, Atty., Dept. of Justice, Washington, D. C., with whom Barbara Allen Babcock, Asst. Atty. Gen., at the time the brief was filed, Washington, D. C., Leonard Schaitman and William Kanter, Attys., Dept. of Justice, Washington, D. C., were on the brief, for respondent.

Timothy M. Biddle and John I. Stewart, Jr., Washington, D. C., were on the brief for intervenor.

Before ROBINSON and ROBB, Circuit Judges, and DAVIS, Judge, United States Court of Claims. *

Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.

Concurring Opinion filed by Circuit Judge ROBB.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

The Federal Coal Mine Health and Safety Act of 1969 1 conferred upon every miner contracting pneumoconiosis-black lung disease 2-the right to transfer from his existing position to another in a less dusty area of the mine for as long as necessary to arrest development of the disease. 3 To encourage afflicted miners to do so, the Act featured a pay-maintenance provision entitling a transferring miner to "receive compensation for (his post-transfer) work at not less than the regular rate of pay received by him immediately prior to his transfer." 4 The problem centrally posed in this case is the meaning to be ascribed to "regular rate of pay" in the instance of a miner who was recompensed at different rates for different types of work done during varying periods before transfer.

The Interior Board of Mine Operations Appeals held that the statutory phrase refers to the miner's classification rate-the rate due the miner by reason of his job

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classification under the current wage agreement-notwithstanding frequent temporary assignments in a higher-paying position, when the miner did not endeavor to secure that position on a permanent basis. 5 We conclude that "the regular rate of pay" is the dollar rate-the rate at which the miner was actually remunerated for the work he did-irrespective of his job classification. 6 Accordingly, we reverse the order under review and remand the case for appropriate disposition.
I

The salient facts were stipulated by the parties. 7 On January 25, 1971, petitioner Mullins was hired by Pocahontas Fuel Company for work as a miner in its Kepler Mine in Horsepen, Virginia. 8 Three years later, Pocahontas closed the Kepler Mine but offered its complement of miners employment in other company mines with job openings. 9 Mullins availed himself of this opportunity at the company's Maitland Mine in McDowell County, West Virginia. 10

At the time of the Kepler Mine closure, Mullins was classified as a roof bolter under the collective bargaining agreement in effect. 11 When Mullins arrived at the Maitland Mine, however, he was informed that all roof-bolter positions were filled. 12 Mullins then signed on at less pay as a "general inside laborer" 13 and began work on January 9, 1974. 14

Mullins retained his job classification as a general inside laborer throughout the events leading to this litigation, 15 but the company often gave him temporary assignments as a roof bolter. Between January 9 and June 17, 1974-the date that was to assume considerable importance-Mullins worked 496 hours as a roof bolter and 208 hours as a general inside laborer. 16 Though categorized continually as a general inside laborer, Mullins was compensated at the higher wage-rate of a roof bolter whenever he worked as such. 17

On May 10, 1974, the company was formally notified that Mullins, by then a victim of pneumoconiosis, had decided to exercise his statutory right to transfer from his post at the face of the mine to another in a location more conducive to his health. 18 On June 17, the move was effected, 19 and shortly afterwards the present controversy arose. Although Mullins had worked and been paid as a roof bolter during more than seventy percent of the five months preceding his transfer, 20 he was relegated to the reduced wage-rate of a general inside laborer after

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the transfer. 21 Both Mullins and his union felt that he was entitled to more, and a federal mine inspector agreed. Deeming the Act's pay-maintenance provision a mandatory health standard, the inspector gave the company notice of a statutory violation. 22

Before expiration of the time for abatement of the violation and before issuance of an order withdrawing miners, 23 the company applied for administrative review of the violation notice. An administrative law judge considered the notice on the merits and vacated it on the ground that Mullins could legally claim only the pay rate of a general inside laborer. 24 The Interior Board of Mine Operations appeals affirmed, 25 and this petition for review followed. 26

Mullins asserts that the mine inspector's notice of violation was not then reviewable because miners had not been ordered to withdraw from the mine. Alternatively, Mullins argues that the Board erred in its holding on the rate of pay to which he was entitled after his transfer. Since the first contention was identical to one already before us in UMW v. Andrus (Carbon Fuel Co.), 27 we held the instant case in abeyance pending our decision therein. We concluded in Carbon Fuel that a notice of violation of a mandatory health standard not posing imminent danger was not reviewable on its merits prior to issuance of an order withdrawing miners from the affected area. 28 Shortly thereafter, another panel of the court decided Higgins v. Marshall, 29 which bears significantly on the rate-of-pay issue. 30 For reasons now to be stated, we decline to give Carbon Fuel retroactive operation on the facts of this case. 31 We then apply the rationale of Higgins toward our determination on post-transfer rate of pay. 32

II

We first examine Mullins' thesis that in consequence of our Carbon Fuel decision the Board lacked power to review the notice

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of violation on the merits. 33 As previously indicated, Carbon Fuel addressed the question whether the administrative review procedures of the 1969 Act 34 permitted a ruling on the merits of a notice of violation before expiration of the period for abatement of the violation and issuance of a withdrawal order. After examination of the statutory language and its legislative history, we held that no such review was authorized "while miners continued to work in the affected area." 35

We are greeted at the outset by the counterargument that Carbon Fuel has no importance in the case now before us. 36 The statutory pay-maintenance injunction, it is urged, was not a "mandatory health or safety standard" within the meaning of the 1969 Act, 37 and thus was not subject to enforcement through the mechanism of a violation notice. 38 Both the administrative law judge 39 and the Interior Board of Mine Operations Appeals 40 rejected this argument, and so do we.

The 1969 Act directed the Secretary of the Interior to develop mandatory health and safety standards for the protection of miners, 41 and that the Secretary subsequently did. 42 Additionally, the Act explicitly constituted the provisions of certain designated sections "interim mandatory health standards applicable to all underground coal mines until superseded in whole or in part by improved mandatory health standards promulgated by the Secretary," 43 and specified that they "shall be enforced in the same manner and to the same extent as any mandatory health standard promulgated...." 44 The pay-maintenance section is included in the statutory enumeration of those to be so treated. 45 We have not been referred to, nor after a diligent search have we found, any mandatory health standard formulated by the Secretary purporting to supersede the maintenance section in any wise. On the contrary, the Secretary's regulations have expressly and consistently incorporated both the transfer and pay-maintenance provisions 46 and have called for

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their enforcement through the notice-of-violation procedure. 47 It follows that any transgression of the pay-maintenance mandate presented an occasion fully appropriate for issuance of a violation notice. And while with statutory language so clear we need not look further for guidance, 48 we note that the legislative history unmistakably supports this result. 49

The more troublesome question is whether our holding in Carbon Fuel governs the situation at hand and compels us to set the Board's decision aside. The administrative law judge reviewed the merits of the violation notice during the abatement period and before any withdrawal order issued; 50 the Board, affirming the judge's outcome, upheld the timing of his exercise of that jurisdiction. 51 We think Carbon Fuel has no proper role in the special circumstances here.

We realize, of course, that judicial decisions normally are to be applied retroactively. 52 Cases pending when prior law is judicially altered ordinarily are to be adjudged by the revised standard 53-whether the change was constitutional, statutory or judicial

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in character, 54 and regardless of whether the intervening legal doctrine was expressly made applicable to such cases. 55 The rule is not absolute, however, and ofttimes judicial pronouncements, even on noncriminal subjects, have been denied retrospective operation. 56

In Chevron Oil Co. v. Huson, 57 the Supreme Court offered valuable guidance in this area by identifying three factors generally to be...

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4 practice notes
  • Heartland Regional Medical Center v. Leavitt, Civil Action No. 00-2802 (RMU).
    • United States
    • U.S. District Court — District of Columbia
    • 4 Septiembre 2007
    ...Clark-Cowlitz Joint Operating Agency v. FERC, 826 F.2d 1074, 1081 (D.C.Cir.1987) (en banc) (emphasis added) (quoting Mullins v. Andrus, 664 F.2d 297, 302-03 (D.C.Cir.1980)). The factors (1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt......
  • I.A.M. Nat. Pension Fund, Plan A, A Benefits v. Clinton Engines Corp.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 28 Julio 1987
    ...time they are decided. See National Association of Broadcasters v. FCC, 554 F.2d 1118, 1130 (D.C.Cir.1976); see also Mullins v. Andrus, 664 F.2d 297, 302-03 (D.C.Cir.1980). Rules, however, almost invariably carry with them certain exceptions. And so it is that in a narrow set of circumstanc......
  • Clark-Cowlitz Joint Operating Agency v. F.E.R.C., CLARK-COWLITZ
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 11 Agosto 1987
    ...on contrary agency pronouncements"), cert. denied, 445 U.S. 920, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980); cf. Mullins v. Andrus, 664 F.2d 297, 302-03 (D.C.Cir.1980) ("[J]udicial decisions normally are to be applied retroactively.") (footnote omitted); National Association of Br......
  • Public Service Co. of New Mexico v. F.E.R.C., Nos. 86-1311
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 27 Septiembre 1988
    ...26, 35 (1975); Bradley v. School Bd., 416 U.S. 696, 711, 712, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476, 488 (1974); Mullins v. Andrus, 214 U.S.App.D.C. 171, 176, 664 F.2d 297, 302 (1980). 47 404 U.S. at 106-107, 92 S.Ct. at 355, 30 L.Ed.2d at 306 (quoting Linkletter v. Walker, 381 U.S. 618, 629,......
4 cases
  • Heartland Regional Medical Center v. Leavitt, Civil Action No. 00-2802 (RMU).
    • United States
    • U.S. District Court — District of Columbia
    • 4 Septiembre 2007
    ...Clark-Cowlitz Joint Operating Agency v. FERC, 826 F.2d 1074, 1081 (D.C.Cir.1987) (en banc) (emphasis added) (quoting Mullins v. Andrus, 664 F.2d 297, 302-03 (D.C.Cir.1980)). The factors (1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt......
  • I.A.M. Nat. Pension Fund, Plan A, A Benefits v. Clinton Engines Corp.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 28 Julio 1987
    ...time they are decided. See National Association of Broadcasters v. FCC, 554 F.2d 1118, 1130 (D.C.Cir.1976); see also Mullins v. Andrus, 664 F.2d 297, 302-03 (D.C.Cir.1980). Rules, however, almost invariably carry with them certain exceptions. And so it is that in a narrow set of circumstanc......
  • Clark-Cowlitz Joint Operating Agency v. F.E.R.C., CLARK-COWLITZ
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 11 Agosto 1987
    ...on contrary agency pronouncements"), cert. denied, 445 U.S. 920, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980); cf. Mullins v. Andrus, 664 F.2d 297, 302-03 (D.C.Cir.1980) ("[J]udicial decisions normally are to be applied retroactively.") (footnote omitted); National Association of Br......
  • Public Service Co. of New Mexico v. F.E.R.C., Nos. 86-1311
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 27 Septiembre 1988
    ...26, 35 (1975); Bradley v. School Bd., 416 U.S. 696, 711, 712, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476, 488 (1974); Mullins v. Andrus, 214 U.S.App.D.C. 171, 176, 664 F.2d 297, 302 (1980). 47 404 U.S. at 106-107, 92 S.Ct. at 355, 30 L.Ed.2d at 306 (quoting Linkletter v. Walker, 381 U.S. 618, 629,......

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