Bentley v. Ring Enters.
| Docket Number | BRB 22-0224 BLA,22-0227 BLA |
| Decision Date | 10 August 2023 |
| Parties | BARBARA BENTLEY (o/b/o and Widow of PAUL BENTLEY) Claimant-Respondent v. RING ENTERPRISES, INCORPORATED Employer-Petitioner 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UNPUBLISHED OPINION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 in Living Miner's and Survivor's Claims of Evan H. Nordby Administrative Law Judge, United States Department of Labor.
Michael A. Pusateri (Greenberg Traurig LLP), Washington, DC for Employer and its Carrier.
Jeffrey S. Goldberg (Seema Nanda, Solicitor of Labor; Barry H. Joyner, Associate Solicitor; Andrea J. Appel, Counsel for Administrative Appeals), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: GRESH, Chief Administrative Appeals Judge, BOGGS and ROLFE, Administrative Appeals Judges.
DECISION AND ORDER
Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Evan H. Nordby's Decision and Order Awarding Benefits in Living Miner's and Survivor's Claims (2017-BLA-06039 and 2019-BLA-05014) rendered on claims filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case involves a miner's subsequent claim filed on September 17 2014,[1] and a survivor's claim filed on July 6, 2018.[2]
The ALJ found Ring Enterprises, Inc. (Ring Enterprises) is the responsible operator. He also credited the Miner with 9.98 years of coal mine employment, and thus found Claimant[3] could not invoke the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2018); see 20 C.F.R. §718.305.[4] Considering entitlement under 20 C.F.R. Part 718, the ALJ found Claimant did not establish the Miner had clinical pneumoconiosis, but did establish he had legal pneumoconiosis and a totally disabling respiratory or pulmonary impairment due to pneumoconiosis. 20 C.F.R. §§718.202(a), 718.204(b)(2), (c). Thus he awarded benefits in the miner's claim.[5] Because the Miner was entitled to benefits at the time of his death, the ALJ also determined Claimant is automatically entitled to survivor's benefits under Section 422(l) of the Act, 30 U.S.C. §932(l) (2018).[6]
On appeal, Employer argues the ALJ lacked the authority to hear and decide the case because he was not appointed in a manner consistent with the Appointments Clause of the Constitution, Art. II § 2, cl. 2.[7] It also argues the removal provisions applicable to ALJs rendered his appointment unconstitutional. Further, it argues the ALJ erred in finding Ring Enterprises is the responsible operator. On the merits of entitlement, Employer asserts the ALJ erred in finding Claimant established legal pneumoconiosis. It also asserts the ALJ erred in relying on the preamble to the 2001 revised regulations to discredit medical opinions.
Claimant has not filed a response brief. The Director, Office of Workers' Compensation Programs (the Director), responds, urging the Board to reject Employer's Appointments Clause challenges and its argument that the ALJ erred in relying on the preamble to assess the evidence in this case. In addition, the Director urges the Board to affirm the ALJ's responsible operator determination. In a reply brief, Employer reiterates its contentions.
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.[8] 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).[9] Employer's Brief at 34-39. It acknowledges the Secretary of Labor ratified the prior appointments of all sitting Department of Labor (DOL) ALJs on December 21, 2017,[10] but maintains the ratification was insufficient to cure the constitutional defect in the ALJ's prior appointment. Id. at 35-37. In addition, it challenges the constitutionality of the removal protections afforded DOL ALJs. Id. at 34-39; Employer's Reply Brief at 1 n.1. 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. Employer's Brief at 35-38. Moreover, 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). Id. at 34-39. For the reasons set forth in Johnson v. Apogee Coal Co., BRB No. 22-0022 BLA, slip op. at 3-5 (May 26, 2023), appeal docketed, No. 23-3612 (6th Cir. July 25, 2023), and Howard v. Apogee Coal Co., 25 BLR 1-301, 1-307-08 (2022), we reject Employer's arguments.
The responsible operator is the "potentially liable operator, as determined in accordance with [20 C.F.R.] §725.494,[11] that most recently employed the miner" for at least one year. 20 C.F.R §725.495(a)(1). The district director is initially charged with identifying and notifying operators that may be liable for benefits, and then identifying the "potentially liable operator" that is the responsible operator. 20 C.F.R. §§725.407, 725.410(c), 725.495(a), (b). Once the district director identifies a potentially liable operator, that operator may be relieved of liability only if it proves it is financially incapable of assuming liability for benefits, or another operator more recently employed the miner for a cumulative period of at least one year and is financially capable of assuming liability for benefits. See 20 C.F.R. §725.495(c).
The ALJ found Ring Enterprises meets the regulatory definition of a potentially liable operator. 20 C.F.R. §725.494(a)-(e); Decision and Order at 6-7. Employer does not challenge this finding; thus, we affirm it. Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983). Nor does it allege it is financially incapable of assuming liability for benefits. Thus, it can avoid liability only by establishing that another financially capable operator employed the Miner more recently for at least one year.
Employer argues collateral estoppel bars Ring Enterprises from being identified as the responsible operator because ALJ Frederick D. Neusner and ALJ Richard Stansell-Gamm dismissed it in the prior claims. Employer's Brief at 12-16; Employer's Reply Brief at 1-6. We disagree. Collateral estoppel bars relitigation of an issue that was previously litigated only when, among other requirements, the determination of that issue was necessary to the outcome of the prior proceedings. See Collins v. Pond Creek Mining Co., 468 F.3d 213, 217 (4th Cir. 2006); Ark. Coals, Inc. v. Lawson, 739 F.3d 309, 320-21 (6th Cir. 2014); Hughes v. Clinchfield Coal Co., 21 BLR 1-134, 1-137 (1999) (en banc). As the Director accurately notes, because the Miner's prior claims were denied, identification of the responsible operator was not necessary to the outcome of the prior proceedings. Lawson, 739 F.3d at 321 (); Director's Brief at 7. Consequently, we hold as a matter of law that collateral estoppel does not bar Ring Enterprises from being named as the responsible operator. Collins, 468 F.3d at 217; Lawson, 739 F.3d at 320-21; Hughes, 21 BLR at 1-137.
We also reject Employer's argument that the ALJ's "wholesale acceptance" of the district director's finding that Ring Enterprises is the responsible operator violated the APA requirements to consider all relevant evidence and explain the basis for his decision. Employer's Brief at 17. Contrary to Employer's argument, the ALJ noted the evidence the district director considered in making his findings, noted the parties' arguments, and made his own independent findings on the issue. Decision and Order at 6-9. Specifically, he noted the district director acknowledged Bullion Hollow Mining, Inc. (Bullion Hollow Mining), Crockett Coal Company (Crockett Coal), and Virginia Coal Processing employed the Miner after Ring Enterprises employed him. Id. at 7-9; Miner's Claim (MC) Director's Exhibit 10. He also noted the district director determined the Miner had less than one year of coal mine employment with Virginia Coal Processing in 1980, Crockett Coal in both 1981 and 1982, and Bullion Hollow Mining in 1982. Id. Additionally, he noted the district director stated the Miner "was last employed for more than one calendar year with Ring Enterprises, from 1978 to January 22, 1980." Id. at 9.
Further he divided the Miner's yearly earnings from 1978 to 1982 as reported in his Social Security Administration (SSA) earnings records by the coal mine industry's average yearly earnings for 125 days of employment, as reported in Exhibit 610 of the Coal Mine (Black Lung Benefits Act) Procedure Manual.[12] Id. at 6-9. For each year in which the Miner's earnings met or exceeded the Exhibit 610 average yearly earnings for 125 days of employment, he credited him with a full year of...
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