Abston v. Abston Construction Company, Inc., BRB 19-0211 BLA
| Decision Date | 08 April 2020 |
| Docket Number | BRB 19-0211 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | VERA M. ABSTON (Widow of GASCHOL ABSTON, JR.) Claimant-Respondent v. ABSTON CONSTRUCTION COMPANY, INCORPORATED Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits of Clement J Kennington, Administrative Law Judge, United States Department of Labor.
John R. Jacobs and J. Thomas Walker (Maples Tucker & Jacobs LLC), Birmingham, Alabama, for claimant.
Laura Metcoff Klaus (Greenberg Traurig, LLP), Washington, D.C., and John C. Webb and Aaron D. Ashcraft (Lloyd, Gray, Whitehead & Monroe, P.C.), Birmingham, Alabama, for employer.
Before: BUZZARD, ROLFE, and GRESH, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order Awarding Benefits (2017-BLA-05635) of Administrative Law Judge Clement J Kennington on a survivor's claim[1] filed on October 13, 2015, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012) (the Act).
The administrative law judge found the miner had at least thirty-three and one-half years of surface coal mine employment[2] in conditions substantially similar to those in an underground mine and was totally disabled by a respiratory or pulmonary impairment. 20 C.F.R. §718.204(b)(2). He therefore found claimant invoked the presumption of death due to pneumoconiosis at Section 411(c)(4) of the Act. 30 U.S.C. §921(c)(4) (2012).[3] He found employer did not rebut the presumption and awarded benefits.
On appeal, employer argues the administrative law judge lacked the authority to preside over the case because he had not been appointed in a manner consistent with the Appointments Clause of the Constitution, Art. II § 2, cl. 2.[4] It also challenges his authority in light of the procedures for removing administrative law judges. In addition, it challenges the constitutionality of the Section 411(c)(4) presumption, but nevertheless contends the administrative law judge improperly invoked the presumption based on erroneous findings that the miner had qualifying coal mine employment and was totally disabled. Employer finally argues he erred in finding it did not rebut the presumption. Claimant responds in support of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), has not filed a response brief.
The Board's scope of review is defined by statute. We must affirm the Decision and Order Awarding Benefits if it is rational, supported by substantial evidence, and in accordance with applicable law. 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359, 361-62 (1965).
Employer urges the Board to vacate the award and remand the case to be heard by a different, constitutionally appointed administrative law judge pursuant to Lucia v. SEC 585 U.S., 138 S.Ct. 2044 (2018).[5] Employer's Brief at 10-16. It acknowledges the Secretary of Labor ratified the prior appointments of all sitting Department of Labor (DOL) administrative law judges on December 21, 2017, [6] but maintains the ratification was insufficient to cure the constitutional defect in the administrative law judge's prior appointment.[7] Id. at 14-16. Employer further alleges no evidence demonstrates the Secretary engaged in a "genuine . . . thoughtful, consideration of potential candidates for these positions" or "interviewed them, or administered an oath or took any other action that suggests that these appointments were his own." Id. at 15. We reject employer's argument, as the Secretary's ratification was a valid exercise of his authority and brought the administrative law judge's appointment into compliance with the Appointments Clause.
An appointment by the Secretary need only be "evidenced by an open, unequivocal act." Marbury v. Madison, 5 U.S. 137, 157 (1803). Ratification "can remedy a defect" arising from the appointment of an official when an agency head "has the power to conduct an independent evaluation of the merits [of the appointment] and does so." Wilkes-Barre Hosp. Co. v. NLRB, 857 F.3d 364, 371 (D.C. Cir. 2017) (internal quotations omitted); see also McKinney v. Ozburn-Hessey Logistics, LLC, 875 F.3d 333, 338 (6th Cir. 2017). It is permissible so long as the agency head: 1) had at the time of ratification the authority to take the action to be ratified; 2) had full knowledge of the decision to be ratified; and 3) made a detached and considered affirmation of the earlier decision. Wilkes-Barre, 857 F.3d at 372; Advanced Disposal Servs. E., Inc. v. NLRB, 820 F.3d 592, 603 (3d Cir. 2016); CFPB v. Gordon, 819 F.3d 1179, 1191 (9th Cir. 2016). Under the "presumption of regularity," courts presume that public officers have properly discharged their official duties, with "the burden shifting to the attacker to show the contrary." Advanced Disposal, 820 F.3d at 603, citing Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001).
Congress has authorized the Secretary to appoint administrative law judges to hear and decide cases under the Act. 30 U.S.C. §932a; see also 5 U.S.C. §3105. Thus, at the time of the ratification of the administrative law judge's appointment, the Secretary had the authority to take the action to be ratified. Wilkes-Barre, 857 F.3d at 372; Advanced Disposal, 820 F.3d at 603.
Under the presumption of regularity, it is presumed the Secretary had full knowledge of the decision to be ratified and made a detached and considered affirmation. Advanced Disposal, 820 F.3d at 603. Moreover, the Secretary did not generally ratify the appointment of all administrative law judges in a single letter. Rather, he specifically identified Administrative Law Judge Kennington and gave "due consideration" to his appointment. Secretary's December 21, 2017 Letter to Administrative Law Judge Kennington. The Secretary further acted in his "capacity as head of the Department of Labor" when ratifying the appointment of Judge Kennington "as an Administrative Law Judge." Id. Having put forth no contrary evidence, employer has not overcome the presumption of regularity.[8] Advanced Disposal, 820 F.3d at 603-04 (); see also Butler, 244 F.3d at 1340.
Based on the foregoing, we hold that the Secretary's action constituted a valid ratification of the appointment of the administrative law judge.[9] See Edmond v. United States, 520 U.S. 651, 654-66 (1997) (); Advanced Disposal, 820 F.3d at 604-05 ().
Employer also argues Lucia precludes the administrative law judge from hearing this case notwithstanding the Secretary's ratification because the administrative law judge took significant action before December 21, 2017, while not properly appointed. We disagree.
Employer generally asserts the administrative law judge's decision must be vacated because he "was not properly appointed . . . when he resolved various discovery disputes." Employer's Brief at 13. Employer does not, however, identify any of those discovery disputes or explain why the administrative law judge's actions entitle it to have the case reheard by a different administrative law judge pursuant to Lucia. The Supreme Court did not order reassignment to a new adjudicator in Lucia simply because the administrative law judge was improperly appointed during an early phase of the proceedings. Reassignment was necessary because the administrative law judge, while improperly appointed, "already both heard Lucia's case and issued an initial decision on the merits" and thus could not "be expected to consider the matter as though he had not adjudicated it before." Lucia, 138 S.Ct. at 2055. Accordingly, pre-ratification actions "not based on the merits of the case" do not require remand as they "would not be expected to color the administrative law judge's consideration of the case" and therefore do not "taint the proceedings" with an Appointments Clause violation. Noble v. B & W Res., Inc., BLR, BRB No. 18-0533 BLA, slip op. at 4 n.5 (Jan. 15, 2020).
Our review of the record reveals the administrative law judge issued three orders before the ratification of his appointment, none of which requires remand under Lucia. On May 1, 2017, he issued a Notice of Hearing setting deadlines for the parties to exchange evidence and submit briefs, as well as scheduling the hearing date. On June 8, 2017, he issued a Notice of Canceling Hearing granting the parties' joint motion to cancel the hearing and set new deadlines. Neither action involves consideration of the merits of the case. The Notice of Hearing reiterates statutory and regulatory requirements governing the hearing procedures and the Notice of Canceling Hearing amended the Notice of Hearing at the parties' request. Noble, BRB No. 18-0533 BLA, slip op. at 4.
The only discovery dispute resolved before the ratification of the administrative la w judge's appointment involved the denial of employer's request to depose unidentified DOL or "federal health authority" employees to testify with respect to "the medical literature cited in the preamble to the revised black lung regulations" and the "medical research and literature" used to promulgate regulations implementing the Section 411(c)(4) p...
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