Anderson v. Ewell Spradlin Coal Co.
| Decision Date | 10 January 2023 |
| Docket Number | BRB 21-0434 BLA |
| Parties | EARNEST D. ANDERSON Claimant-Respondent v. EWELL SPRADLIN COAL COMPANY and OLD REPUBLIC INSURANCE COMPANY, INCORPORATED Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Court of Appeals of Black Lung Complaints |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits of Dana Rosen Administrative Law Judge, United States Department of Labor.
Michael A. Pusateri and Mark E. Solomons (Greenberg Traurig LLP), Washington, D.C., for Employer and its Carrier.
Ann Marie Scarpino (Seema Nanda, Solicitor of Labor; Barry H Joyner, Associate Solicitor), Washington, D.C., for the Director, Office of Workers' Compensation Programs United States Department of Labor.
Before: BOGGS, Chief Administrative Appeals Judge, GRESH and JONES, Administrative Appeals Judges.
DECISION AND ORDER
Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Dana Rosen's Decision and Order Awarding Benefits (2018-BLA-05686) rendered on a subsequent claim,[1] filed on April 7, 2016, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C §§901-944 (2018) (Act).
The ALJ credited Claimant with at least nineteen years of surface coal mine employment in conditions substantially similar to those in an underground mine and found he has a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.204(b)(2). Thus, she found Claimant invoked the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2018),[2] and established a change in an applicable condition of entitlement.[3] 20 C.F.R. §§718.305, 725.309. She further found Employer failed to rebut the presumption and awarded benefits.
On appeal, Employer argues the ALJ lacked the authority to hear and decide the case because she was not appointed in a manner consistent with the Appointments Clause of the Constitution, Art. II §2, cl. 2.[4] It further asserts the removal provisions applicable to the ALJ render her appointment unconstitutional. On the merits, Employer argues the ALJ erred in concluding Claimant invoked the Section 411(c)(4) presumption because she incorrectly calculated his length of coal mine employment and erred in finding he established a totally disabling respiratory impairment. In addition, it argues the ALJ erred in finding it failed to rebut the presumption.
Claimant has not filed a response brief. The Director, Office of Workers' Compensation Programs (the Director), has filed a response, urging rejection of Employer's constitutional challenges to the ALJ's appointment and removal protections. Employer filed a reply brief reiterating its arguments on the issues the Director addressed.
The Benefits Review Board's scope of review is defined by statute. We must affirm the ALJ's Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.[5] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman &Grylls Assocs., Inc., 380 U.S. 359 (1965).
Employer urges the Board to vacate the ALJ's Decision and Order and remand the case to be heard by a different, constitutionally appointed ALJ pursuant to Lucia v. SEC, 585 U.S., 138 S.Ct. 2044 (2018).[6] Employer's Brief at 13-14; Employer's Reply at 3. It acknowledges the Secretary of Labor (Secretary) ratified the prior appointments of all sitting DOL ALJs on December 21, 2017,[7] but maintains the ratification was insufficient to cure the constitutional defect in ALJ Rosen's prior appointment.[8] Employer's Brief at 13-18; Employer's Reply at 1-5.
The Director responds, asserting the ALJ had the authority to decide this case because the Secretary's ratification brought her appointment into compliance. Director's Response at 2-4. He also maintains Employer failed to demonstrate the Secretary's actions ratifying the appointment were improper. Id. at 4. We agree with the Director's position.
An appointment by the Secretary need only be "evidenced by an open, unequivocal act." Director's Response at 3 (quoting 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 the authority to take the action to be ratified at the time of ratification; 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 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 ALJs to hear and decide cases under the Act. 30 U.S.C. §932a; see also 5 U.S.C. §3105. Under the presumption of regularity, we therefore presume 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 ALJs in a single letter but rather specifically identified ALJ Rosen and indicated he gave "due consideration" to her appointment. Secretary's December 21, 2017 Letter to ALJ Rosen. The Secretary further acted in his "capacity as head of the Department of Labor" when ratifying the appointment of ALJ Rosen "as an Administrative Law Judge." Id.
Employer does not assert the Secretary had no "knowledge of all material facts," but instead generally speculates he did not provide "genuine consideration" of the ALJ's qualifications when he ratified the ALJ's appointment. Employer's Brief at 16-17; Employer's Reply at 3. Employer therefore has not overcome the presumption of regularity.[9] Advanced Disposal, 820 F.3d at 603-04 (); see also Butler, 244 F.3d at 1340. The Secretary thus properly ratified the ALJ's appointment. See Edmond v. United States, 520 U.S. 651, 654-66 (1997) (appointment valid where the Secretary of Transportation issued a memorandum "adopting" assignments "as judicial appointments of [his] own"); Advanced Disposal, 820 F.3d at 604-05 (). [10] Consequently, we reject Employer's argument this case should be remanded for a new hearing before a different ALJ.
Employer challenges the constitutionality of the removal protections afforded ALJs. Employer's Brief at 18-23; Employer's Reply at 5-8. It generally argues the removal provisions for ALJs contained in the Administrative Procedure Act (APA), 5 U.S.C. §7521, are unconstitutional, citing Justice Breyer's separate opinion and the Solicitor General's argument in Lucia v. SEC, 585 U.S., 138 S.Ct. 2044 (2018). Employer's Brief at 18-23. In addition, it relies on the United States Supreme Court's holdings in Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477 (2010), and Seila Law v. CFPB, 591 U.S. 140 S.Ct. 2183 (2020), as well as the opinion of the United States Court of Appeals for the Federal Circuit in Arthrex, Inc. v. Smith &Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), vacated, 594 U.S., 141 S.Ct. 1970 (2021). Employer's Brief at 18-23. For the reasons set forth in Howard v. Apogee Coal Co., BLR, BRB No. 20-0229 BLA, slip op. at 3-5 (Oct. 18, 2022), the Board rejects Employer's arguments.
Invocation of the Section 411(c)(4) Presumption Coal Mine Employment
To invoke the Section 411(c)(4) presumption, Claimant must establish he worked at least fifteen years in underground coal mine employment, or "substantially similar" surface coal mine employment. 20 C.F.R. §718.305(b)(1)(i). Claimant bears the burden to establish the number of years he worked in coal mine employment. See Kephart v. Director, OWCP, 8 BLR 1-185, 1-186 (1985); Hunt v. Director, OWCP, 7 BLR 1-709, 1710-11 (1985). The Board will uphold an ALJ's determination if it is based on a reasonable method of calculation that is supported by substantial evidence. See Muncy v. Elkay Mining Co., 25 BLR 1-21, 1-27 (2011); Vickery v. Director, OWCP, 8 BLR 1-430, 1-432 (1986).
Employer first asserts the ALJ erred in finding at least fifteen years of coal mine employment. Employer's Brief at 30-32. We disagree. The ALJ considered Claimant's deposition and hearing testimony, employment history forms, and Social Security Administration (SSA) earnings records. Decision and Order at 6-10; Director's Exhibits 3, 4, 6-9, 13. She permissibly found Claimant's SSA earnings records testimony, and employment history forms to be the most probative evidence. Tackett v. Director, OWCP, 6 BLR 1-839, 1-841 (1984) (); Decision and Order at 9. Further, she found Claimant was employed for a calendar year in each year from 1967 to 1985 and presumed, in the absence of...
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