Bentley v. Prospect Coal Co.
| Decision Date | 29 April 2022 |
| Docket Number | BRB 20-0559 BLA,20-0565 BLA |
| Parties | ELIZA BENTLEY(Widow of LARRY F. BENTLEY) Claimant-Respondent v. PROSPECT COAL COMPANY, INCORPORATED and OLD REPUBLIC INSURANCE COMPANY 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UNPUBLISHED OPINION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 on Modification and the Decision and Order Awarding Continuing Benefits under the Automatic Entitlement Provision of the Black Lung Benefits Act of Steven D. Bell, Administrative Law Judge United States Department of Labor.
Joseph E. Wolfe (Wolfe Williams & Reynolds), Norton, Virginia for Claimant.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for Employer and its Carrier.
Ann Marie Scarpino (Seema Nanda, Solicitor of Labor; Barry H Joyner, Associate Solicitor; Christian P. Barber, Acting Counsel for Administrative Litigation and Legal Advice) Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: BOGGS, Chief Administrative Appeals Judge, BUZZARD, and JONES, Administrative Appeals Judges.
DECISION AND ORDER
Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Steven D. Bell's Decision and Order Awarding Benefits on Modification (2019-BLA-05877) and his Decision and Order Awarding Continuing Benefits under the Automatic Entitlement Provision of the Black Lung Benefits Act (2019-BLA-05240) rendered on claims filed pursuant to the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2018) (Act).[1] This case involves a second modification request of an initial miner's claim filed on November 29 2005, and Claimant's survivor's claim filed on July 19, 2006.[2]
In his March 21, 2011 Decision and Order - Denial of Black Lung Disability Claim & Denial of Survivor Claim, ALJ Richard T. Stansell-Gamm credited the Miner with 11.32 years of coal mine employment and thus found Claimant could not invoke the rebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2018).[3] Further finding Clamant did not establish the Miner had complicated pneumoconiosis, ALJ Stansell-Gamm found Claimant could not invoke the irrebuttable presumption that the Miner's total disability and death were due to pneumoconiosis at Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3) (2018). Considering entitlement under 20 C.F.R. Part 718, he found the Miner had clinical pneumoconiosis and was totally disabled, but that Claimant did not establish the Miner's disability or death were due to pneumoconiosis and thus denied benefits in both claims. 20 C.F.R. §§718.202(a), 718.204(c), 718.205(b).
On March 1, 2012, Claimant requested modification, alleging a mistake in a determination of fact; she did not submit additional medical evidence. Director's Exhibit 126. On February 21, 2017, ALJ Monica C. Markley found no mistake of fact in ALJ Stansell-Gamm's findings in either the miner's or survivor's claim. Accordingly, she denied modification. Director's Exhibit 143.
On February 9, 2018, Claimant requested modification of ALJ Markley's denial and again alleged a mistake in fact; she did not submit additional evidence. Director's Exhibit 144. In his August 26, 2020 Decisions and Orders that are the subject of this appeal, ALJ Steven D. Bell (the ALJ) found Claimant established two mistakes of fact in ALJ Markley's prior denial as he found the Miner had 16.47 years of coal mine employment and complicated pneumoconiosis. Thus, the ALJ determined Claimant invoked the Section 411(c)(3) irrebuttable presumption and established the Miner's entitlement to benefits. In the alternative, the ALJ also found Claimant invoked the Section 411(c)(4) presumption and Employer did not rebut it. Further finding that granting modification renders justice under the Act, the ALJ awarded benefits in the miner's claim and concluded Claimant is derivatively entitled to survivor's benefits under Section 422(l) of the Act, 30 U.S.C. §932(l) (2018).[4] Decision and Order at 36; S.C. Decision and Order at 4.
On appeal, Employer argues the ALJ lacked authority to preside over the case because he has not been appointed in a manner consistent with the Appointments Clause of the Constitution, Art. II § 2, cl. 2, and that the removal provisions applicable to the ALJ render his appointment unconstitutional.[5] On the merits, Employer contends Claimant's second request for modification is untimely; it also asserts the ALJ erred in finding a mistake in a determination of fact regarding the length of the Miner's coal mine employment and in finding the Miner had complicated pneumoconiosis. Employer's Brief at 31-34. Employer further contends the ALJ erred in finding the Miner was totally disabled, that Claimant invoked the rebuttable presumption at Section 411(c)(4), and that Employer did not rebut the presumption.
Claimant responds in support of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), filed a limited response urging the Benefits Review Board to reject Employer's challenge to the constitutionality of the ALJ's appointment as well as its assertions of legal error concerning the ALJ's length of coal mine employment calculation. Employer separately replied to Claimant's and the Director's responses.
The 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.[6] 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, 362 (1965).
Employer argues the ALJ, as an "inferior officer," was not properly appointed and the Secretary's ratification of his appointment on December 21, 2017, [7] as well as the August 31, 2018 Executive Order providing new procedures for ALJs' appointments, was an inadequate remedy.[8] Employer's Brief at 21-25; Employer's Reply to Director at 1-4. Employer thus urges the Board to vacate the award 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).
We agree with the Director's position that Employer has forfeited these arguments. Director's Brief at 5-6. Appointments Clause issues are "non-jurisdictional" and thus subject to the doctrines of waiver and forfeiture. See Lucia, 138 S.Ct. at 2055 (); Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018) () (citation omitted).
Although Lucia was decided over one year before the ALJ's hearing in this matter, Employer did not raise any challenge to his authority to decide the case while the matter was before him; instead, it raises this argument for the first time on appeal.[9] Had Employer timely raised its Appointments Clause challenge to the ALJ, he could have considered the issue and, if appropriate, provided the relief Employer is requesting. Having failed to do so, Employer forfeited its argument. See Joseph Forrester Trucking v. Director, OWCP [Davis], 937 F.3d 581, 591 (6th Cir. 2021) (); Powell v. Serv. Emps. Int'l, Inc., 53 BRBS 13, 15 (2019); Kiyuna v. Matson Terminals, Inc., 53 BRBS 9, 10 (2019).
Furthermore, Employer has not identified any basis for excusing its forfeiture. See Glidden Co. v. Zdanok, 370 U.S. 530, 535 (1962) (); Kiyuna, 53 BRBS at 11 (); see also 20 C.F.R. §802.301(a) (). We therefore see no reason to entertain its forfeited arguments. See Zdanok, 370 U.S. at 535; Davis, 937 F.3d at 591-92; Powell, 53 BRBS at 15; Kiyuna, 53 BRBS at 11.
Employer also asserts the removal protections afforded ALJs in the Administrative Procedure Act, 5 U.S.C. §7521, are unconstitutional, citing Justice Breyer's separate opinion and the Solicitor General's argument in Lucia. Employer's Brief at 26-29; Employer's Reply to the Director at 4-6. Employer also 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), and 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 26-19; Employer's Reply to the Director at 4-6.
The removal argument is subject to similar issue preservation requirements, however, and Employer likewise forfeited it by not raising it before the ALJ. See, e.g., Fleming v USDA, 987 F.3d 1093, 1097 (D.C. Cir. 2021) (constitutional arguments concerning §7521 removal provisions are subject to issue exhaustion, and because petitioners "did not raise the dual for-cause removal provision before the agency" the court was "powerless to excuse the forfeiture"). Regardless, Employer's arguments are without merit, as the only circuit court to squarely...
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