Bonds v. Mingo Logan Coal Co.

• Decision Date: 29 August 2022
• Docket Number: 21-0150 BLA,21-0433 BLA
• Parties: BOBBY R. BONDS Claimant-Respondent v. MINGO LOGAN COAL COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest
• Court: Court of Appeals of Black Lung Complaints

BOBBY R. BONDS Claimant-Respondent
v.
MINGO LOGAN COAL COMPANY Employer-Petitioner

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest

Nos. 21-0150 BLA, 21-0433 BLA

Court of Appeals of Black Lung

August 29, 2022

UNPUBLISHED OPINION

Appeal of the Decision and Order Awarding Benefits and Order Granting, in Part, Petition for Attorney Fees of Lauren C. Boucher, Administrative Law Judge, United States Department of Labor.

Leonard Stayton, Inez, Kentucky, for Claimant.

Scott A. White (White & Risse, LLC), Arnold, Missouri, for Employer.

Sarah M. Hurley (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: BUZZARD, GRESH, and JONES, Administrative Appeals Judges.

DECISION AND ORDER

PER CURIAM.

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Employer appeals the Decision and Order Awarding Benefits and the Order Granting, In Part, Petition for Attorney Fees (2016-BLA-05148)^[1] of Administrative Law Judge (ALJ) Lauren C. Boucher rendered on a claim filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case involves a subsequent miner's claim filed on April 22, 2014^[2] and an attorney fee order granting Claimant's counsel Employer-paid fees and costs.

The ALJ credited Claimant with thirty-eight years of qualifying coal mine employment, consistent with the parties' stipulation, and determined he established a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.204(b)(2). She therefore found Claimant invoked the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act,^[3] 30 U.S.C. §921(c)(4) (2018), and that

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Employer did not rebut it. Further, she found Claimant established a change in an applicable condition of entitlement, 20 C.F.R. §725.309, 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 also argues the removal provisions applicable to ALJs rendered her appointment unconstitutional. On the merits, it asserts the ALJ erred in relying on the preamble when weighing the medical opinions and in finding it did not rebut the Section 411(c)(4) presumption.^[5] Finally, Employer raises several challenges to the ALJ's award of attorney fees. Claimant responds in support of the awards of benefits and attorney fees. The Director, Office of Workers' Compensation Programs (the Director), responds, urging the Benefits Review Board to reject Employer's constitutional challenges and its arguments that the ALJ improperly utilized the preamble and erred in finding Employer failed to rebut the presumption.

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 and Grylls Assocs., Inc., 380 U.S. 359 (1965).

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Appointments Clause

This case was initially assigned to ALJ Lystra A. Harris, who conducted an August 24, 2017 hearing and issued a Decision and Order Awarding Benefits on April 13, 2018. Employer appealed, requesting reassignment to a different ALJ pursuant to Lucia v. SEC, 585 U.S., 138 S.Ct. 2044 (2018).^[7] On May 10, 2019, the Board granted Employer's request, vacated the award of benefits, and ordered the case be remanded for reassignment to a new ALJ. Bonds v. Mingo Logan Coal Co., BRB No. 18-372 BLA (unpub. Order). On August 8, 2019, the case was reassigned to ALJ Boucher (the ALJ) for adjudication.

Employer argues the ALJ in this case was not properly appointed. Employer's Brief at 10-16. Further, it argues the Secretary's subsequent ratification of her appointment on December 21, 2017, was insufficient to "cure the underlying unconstitutional appointment." Id. at 11. Employer's assertions are based on an inaccurate characterization of the ALJ's appointment.

Consistent with the Appointments Clause, 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; Director's Brief at 4. As the Director correctly notes, on December 21, 2017, the Secretary appointed the ALJ outright and did not ratify any prior appointment.^[8] Director's

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Brief at 4; see Employer's Brief at 12, 14. This appointment occurred well before this case was assigned to the ALJ pursuant to the Board's remand of this case for a new hearing in compliance with Lucia.^[9] See Employer's Brief at 1, 11-16. We therefore reject Employer's argument that this case should be remanded for yet another hearing before another ALJ.

Removal Provisions

Employer also challenges the constitutionality of the removal protections afforded DOL ALJs. Employer's Brief at 10, 12-16. Employer generally argues the removal provisions 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. Id. It also relies on the holdings in Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477 (2010). Id.

Employer's arguments are not persuasive as the only circuit court to squarely address this precise issue has upheld the statute's constitutionality. Decker Coal Co. v Pehringer, 8 F.4th 1123, 1137-38 (9th Cir. 2021) (5 U.S.C. §7521 is constitutional as applied to DOL ALJs).

Further, in Free Enterprise Fund, the Supreme Court held dual for-cause limitations on removal of members of the Public Company Accounting Oversight Board (PCAOB) are "contrary to Article II's vesting of the executive power in the President[,]" thus infringing upon his duty to "ensure that the laws are faithfully executed, [and to] be held responsible for a Board member's breach of faith." 561 U.S. at 496. The Court specifically noted, however, its holding "does not address that subset of independent agency employees who serve as [ALJs]" who, "unlike members of the [PCAOB], . . . perform adjudicative rather than enforcement or policymaking functions." Id. U.S. at 507 n.10. Moreover, the majority in Lucia declined to address the removal provisions for ALJs. Lucia, 138 S.Ct. at 2050 n.1.

Finally, in Arthrex, Inc. v. Smith & Nephew, Inc., 594 U.S., 141 S.Ct. 1970, 1988 (2021), the Supreme Court explained "the unreviewable authority wielded by [Administrative Patent Judges] during inter partes review is incompatible with their

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appointment by the Secretary to an inferior office." 141 S.Ct. at 1985 (emphasis added). In contrast, DOL ALJs' decisions are subject to further executive agency review by this Board.

Employer has not explained how or why these legal authorities should apply to DOL ALJs or otherwise undermine the ALJ's ability to hear and decide this case. Congressional enactments are presumed to be constitutional and will not be lightly overturned. United States v. Morrison, 529 U.S. 598, 607 (2000) ("Due respect for the decisions of a coordinate branch of Government demands that we invalidate [C]ongressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds."). The Supreme Court has long recognized "'[t]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.'" Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988), quoting Hooper v. California, 155 U.S. 648, 657 (1895). Here, Employer does not even attempt to show that Section 7521 cannot be reasonably construed in a constitutionally sound manner. Hosp. Corp. of Am. v. FTC, 807 F.2d 1381, 1392 (7th Cir. 1986) (a reviewing court should not "consider far-reaching constitutional contentions presented in [an off-hand] manner"). Thus, Employer has not established that the removal provisions at 5 U.S.C. §7521 are unconstitutional. Pehringer, 8 F.4th at 1137-38.

Rebuttal of the Section 411(c)(4) Presumption

Because Claimant invoked the Section 411(c)(4) presumption, the burden shifted to Employer to establish he had neither legal nor clinical pneumoconiosis,^[10] or "no part of [his] respiratory or pulmonary total disability was caused by pneumoconiosis as defined in [20 C.F.R.] §718.201." 20 C.F.R. §718.305(d)(1)(i), (ii). The ALJ found Employer failed to establish rebuttal by either method.^[11]

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Legal Pneumoconiosis

To disprove legal pneumoconiosis, Employer must establish Claimant does not have a chronic lung disease or impairment "significantly related to, or substantially aggravated by, dust exposure in coal mine employment." 20 C.F.R. §§718.201(a)(2), (b), 718.305(d)(1)(i)(A); see Minich v. Keystone Coal Mining Corp., 25 BLR 1-149, 1-155 n.8 (2015).

Employer relies on Dr. Rosenberg's opinion to disprove legal pneumoconiosis. He attributed Claimant's obstructive impairment to cigarette smoking and not coal mine dust exposure.^[12] Director's Exhibit 45; Employer's Exhibits 1, 16. Employer asserts the ALJ did not properly calculate Claimant's smoking history and erred in evaluating Dr. Rosenberg's opinion in relation to the preamble to the revised 2001 regulations and finding it inconsistent with the science the DOL credits there. Decision and Order at 42-44; Employer's Brief at 16-19. We disagree.

Initially, we reject Employer's assertion that the ALJ erred in finding Claimant has a forty-three pack-year smoking history. Employer's Brief at 19. The ALJ noted there are some conflicts in the record regarding the rate at which Claimant smoked but she permissibly credited Claimant's testimony that he "smoked one pack per day from 1963 through 2007, and quit for...