Castle v. Price Coal Co.
| Decision Date | 15 March 2022 |
| Docket Number | BRB 20-0575 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | CARLOS E. CASTLE Claimant-Respondent v. PRICE COAL COMPANY, INCORPORATED and AMERICAN BUSINESS & MERCANTILE INSURANCE Employer/Carrier-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits of Steven D Bell, 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: BUZZARD, GRESH, 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 (2015-BLA-05343) 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 claim filed on March 19, 2014.[1]
The ALJ credited Claimant with fourteen years of coal mine employment and thus found he 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).[2] Considering entitlement under 20 C.F.R. Part 718, he found Claimant established a change in an applicable condition of entitlement by establishing a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §§718.204(b)(2), 725.309. He further found Claimant established legal pneumoconiosis and total disability due to pneumoconiosis. 20 C.F.R. §§718.202(a), 718.204(c). Thus he awarded benefits.
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.[3] It also argues the removal provisions applicable to ALJs rendered his appointment unconstitutional. In addition, it contends the ALJ deprived it of due process by refusing to allow it to obtain discovery from the Department of Labor (DOL) regarding the scientific bases for the preamble to the 2001 regulatory revisions, while relying on the preamble to assess the evidence in this case.
With respect to the merits of entitlement, Employer argues the ALJ erred in finding Claimant established legal pneumoconiosis, disability causation, and a change in an applicable condition of entitlement.[4] Claimant has not filed a response. The Director, Office of Workers' Compensation Programs (the Director), has filed a limited response, urging the Benefits Review Board to reject Employer's constitutional challenges to the ALJ's appointment and its argument that the ALJ erred in denying its request for discovery. 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.[5] 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).
After Claimant filed his current claim on March 19, 2014, ALJ Alice M. Craft held a hearing, adjudicated the claim, and awarded benefits in a Decision and Order dated May 4, 2017. Employer timely appealed to the Board, challenging inter alia ALJ Craft's authority to render a decision. While the appeal was before the Board, the United States Supreme Court decided Lucia v. SEC, 585 U.S., 138 S.Ct. 2044 (2018).[6] In light of that decision, the Board issued an order remanding the case to be assigned to a new ALJ for a prompt disposition. Castle v. Price Coal Co., Inc., BRB 17-0449 BLA (May 7, 2018) (unpub. Order). On remand, the case was assigned to ALJ John P. Sellers, III. However, Employer filed a motion requesting the case be held in abeyance, arguing the Secretary of Labor's (the Secretary's) ratification of ALJ Sellers's prior appointment was invalid under Lucia. ALJ Sellers denied Employer's motion and ordered a new hearing and further proceedings. Subsequently, the case was reassigned to ALJ Bell. He held a new hearing on December 3, 2019, and rendered the Decision and Order that is the subject of this appeal.
Employer challenges ALJ Bell's authority to adjudicate this case, urging the Board to vacate the Decision and Order and remand the case to be heard by a different, constitutionally appointed ALJ pursuant to Lucia.[7] Employer acknowledges the Secretary ratified the prior appointment of all sitting DOL ALJs on December 21, 2017, [8] and the case was assigned to ALJ Bell after that, but it maintains the ratification was insufficient to cure the constitutional defect in the ALJ's prior appointment. Employer's Brief at 8-12; Employer's Reply Brief at 1-4. The Director responds that ALJ Bell had the authority to decide this case because the Secretary's ratification brought his appointment into compliance. Director's Brief at 2-4. We agree with the Director's position.
An appointment by the Secretary need only be "evidenced by an open, unequivocal act." 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 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 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. Thus, at the time he ratified the ALJ's appointment, the Secretary had the authority to take the action to be ratified. Wilkes-Barre, 857 F.3d at 372; Advanced Disposal, 820 F.3d at 603.
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 ALJ Bell and gave "due consideration" to his appointment.[9] Secretary's December 21, 2017 Letter to ALJ Bell. The Secretary further acted in his "capacity as head of the Department of Labor" when ratifying the appointment of ALJ Bell "as an Administrative Law Judge." Id.
Employer does not assert the Secretary had no "knowledge of all the material facts" or did not make a "detached and considered judgement" when he ratified ALJ Bell's appointment. Employer therefore has not overcome the presumption of regularity. 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 ().
We further reject Employer's argument that Executive Order 13843, which removes ALJs from the competitive civil service, supports its Appointments Clause argument because incumbent ALJs remain in the competitive civil service. Employer's Brief at 16. 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 ALJ Bell's appointment, which we have held constituted a valid exercise of his authority that brought the ALJ's appointment into compliance with the Appointments Clause.
Thus we reject Employer's argument that this case should be remanded again to the Office of Administrative Law Judges for a new hearing before a different ALJ.
Employer also challenges the constitutionality of the removal protections afforded DOL ALJs. 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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