Brown v. Shurrock Coal Corp.

Decision Date16 September 2021
Docket NumberBRB 20-0311 BLA,20-0312 BLA
CourtCourt of Appeals of Black Lung Complaints


Appeal of the Decision and Order Granting Benefits in the Miner's Claim and Automatic Entitlement in the Survivor's Claim of Joseph E. Kane, Administrative Law Judge, United States Department of Labor.

Laura Metcoff Klaus and Michael A. Pusateri (Greenberg Traurig LLP), Washington D.C., for Employer and its Carrier.

Kathleen H. Kim (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 GRESH, Administrative Appeals Judges.



Employer appeals Administrative Law Judge (ALJ) Joseph E. Kane's Decision and Order Granting Benefits in the Miner's Claim and Automatic Entitlement in the Survivor's Claim (2015-BLA-05410 and 2017-BLA-05847) rendered on claims filed pursuant to the Black Lung Benefits Act, 30 U.S.C §§901-944 (2018) (Act).[1]

The ALJ found the Miner had 11.75 years of coal mine employment and, therefore, Claimant could not invoke the presumption that the Miner was totally disabled due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2018).[2]Considering entitlement under 20 C.F.R. Part 718, the ALJ accepted the parties' stipulation that the Miner had a totally disabling respiratory or pulmonary impairment, and further found Claimant established the Miner was totally disabled due to legal pneumoconiosis. 20 C.F.R. §§718.202(a)(4), 718.204(b), (c). Accordingly, he awarded benefits in the Miner's claim and found Claimant derivatively entitled to survivor's benefits pursuant to Section 422(l) of the Act.[3] 30 U.S.C. §932(l) (2018).

On appeal, Employer argues the ALJ lacked the authority to decide the claims because he was not appointed in a manner consistent with the Appointments Clause of the Constitution.[4] It also argues that the removal provisions applicable to ALJs violate the separation of powers doctrine and render his appointment unconstitutional. Additionally, Employer contests its designation as the responsible operator. On the merits of entitlement, Employer asserts the ALJ improperly shifted the burden of proof to Employer to disprove legal pneumoconiosis and erred in finding Claimant established the Miner was totally disabled due to pneumoconiosis. Claimant did not file a response brief. The Director, Office of Workers' Compensation Programs (the Director), filed a limited response, urging the Benefits Review Board to reject Employer's arguments regarding the ALJ's appointment and its designation as the responsible operator. Employer filed a reply brief reiterating its arguments.[5]

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 (1965).

Appointments Clause

Employer urges the Board to vacate the awards 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).[7] Employer's Brief at 10-19; Employer's Reply Brief at 1-7. It acknowledges the Secretary of Labor (Secretary) ratified the prior appointments of all sitting Department of Labor (DOL) ALJs on December 21, 2017, [8] but maintains the ratification was insufficient to cure the constitutional defect in the ALJ's prior appointment.[9] Employer's Brief at 12-15; Employer's Reply Brief at 2-4.

The Director argues the ALJ had the authority to decide this case because the Secretary's ratification of his appointment is valid and the ALJ took no significant action on this case before that time. Director's Brief at 5-6. We agree with the Director's argument.

An appointment by the Secretary need only be "evidenced by an open, unequivocal act." Director's Brief at 5 (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). Ratification 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 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. Rather, he specifically identified Judge Kane and gave "due consideration" to his appointment. Secretary's December 21, 2017 Letter to ALJ Kane. The Secretary further acted in his "capacity as head of the Department of Labor" when ratifying the appointment of Judge Kane "as an [ALJ]." Id.

Employer does not assert the Secretary had no "knowledge of all the material facts" and generally speculates he did not make a "detached and considered affirmation of an earlier decision" when he ratified Judge Kane's appointment. Employer's Reply Brief at 2-3. Employer therefore has not overcome the presumption of regularity. Advanced Disposal, 820 F.3d at 603-04 (lack of detail in express ratification insufficient to overcome the presumption of regularity); see also Butler, 244 F.3d at 1340. The Secretary thus properly ratified the ALJ's appointment.[10] See Edmond v. United States, 520 U.S. 651, 654-66 (1997) (appointment of civilian members of the United States Coast Guard Court of Criminal Appeals were valid where Secretary of Transportation issued a memorandum "adopting" the General Counsel's assignments "as judicial appointments of [his] own"); Advanced Disposal, 820 F.3d at 604-05 (National Labor Relation Board's retroactive ratification appointment of a Regional Director with statement it "confirm[ed], adopt[ed], and ratif[ied] nunc pro tunc" its earlier invalid actions was proper).

We also reject Employer's argument that Executive Order 13843, which removes ALJs from the competitive civil service, supports its assertion of an Appointments Clause violation because incumbent ALJs remain in the competitive service. Employer's Brief at 19. The Executive Order does not state that the prior appointment procedures were impermissible or violated the Appointments Clause. It also affects only the government's internal management and, therefore, does not create a right enforceable against the United States and is not subject to judicial review. See Air Transport Ass'n of Am. v. FAA, 169 F.3d 1, 8-9 (D.C. Cir. 1999). Moreover, Employer has not explained how the Executive Order undermines the Secretary's ratification of Judge Kane's appointment, which we have held constituted a valid exercise of his authority, bringing the ALJ's appointment into compliance with the Appointments Clause.

As the Director asserts, moreover, the only action Judge Kane took in this case prior to the Secretary's ratification of his appointment was issuing a Notice of Hearing on November 29, 2017. Director's Brief at 2, 5. The Notice of Hearing alone does not involve any consideration of the merits, nor would it be expected to influence the ALJ's consideration of the case. It simply reiterates the statutory and regulatory requirements governing the hearing procedures. See Noble v. B & W Res., Inc., 25 BLR 1-267, 1-271-72 (2020). Thus, unlike Lucia, in which the judge presided over a hearing and issued a decision while not properly appointed, the issuance of the Notice of Hearing in this case would not be expected to affect this ALJ's ability "to consider the matter as though he had not adjudicated it before." Lucia, 138 S.Ct. at 2055. It therefore did not taint the adjudication with an Appointments Clause violation requiring remand. See Noble, 25 BLR at 1-272.

Thus, we reject Employer's arguments that this case should be remanded to the Office of Administrative Law Judges (OALJ) for a new hearing before a different ALJ.

Removal Provisions

Employer also challenges the constitutionality of the removal protections afforded ALJs. Employer's Brief at 15-18; Employer's Reply Brief at 4-7. Employer generally argues the removal provisions in the Administrative Procedure Act (APA), 5 U.S.C. §7521, are unconstitutional, citing Justice Breyer's...

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