Conley v. Brush1 Creek Coal Co.
| Decision Date | 13 September 2022 |
| Docket Number | 21-0446 BLA,21-0520 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | ANNA L. CONLEY (o/b/o and Widow of WILBUR L. CONLEY) Claimant-Respondent v. BRUSH [1] CREEK COAL COMPANY, INCORPORATED and AMERICAN BUSINESS & MERCANTILE Employer/Carrier-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Order Setting Aside April 29, 2021 Decision and Order Awarding Benefits in Living Miner's and Surviving Widow's Claims and Issuing Amended Decision and Order Awarding Benefits of Larry A Temin, Administrative Law Judge, United States Department of Labor.
Joseph E. Wolfe and Brad A. Austin (Wolfe Williams & Reynolds) Norton, Virginia, for Claimant.
Michael A. Pusateri and Brian Straw (Greenberg Traurig LLP), Washington, D.C., for Employer and its Carrier.
Steven Winkelman (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: BOGGS, Chief Administrative Appeals Judge, GRESH and JONES, Administrative Appeals Judges.
DECISION AND ORDER
Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Larry A. Temin's Order Setting Aside April 29, 2021 Decision and Order Awarding Benefits in Living Miner's and Surviving Widow's Claims and Issuing Amended Decision and Order Awarding Benefits (2019-BLA-06259 and 2019-BLA-06366) rendered on claims filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C §§901-944 (2018) (the Act).[2] This case involves a subsequent miner's claim[3] filed on July 6, 2017, and a survivor's claim filed on June 20, 2019.
The ALJ found Claimant[4] established the Miner had 19.68 years of coal mine employment, with 18.18 years in underground mines, and a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.204(b)(2). He therefore found Claimant established a change in an applicable condition of entitlement,[5] 20 C.F.R. §725.309(c), and invoked the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2018).[6] Further, he found Employer failed to rebut the presumption and awarded benefits in the miner's claim. Finally, he determined Claimant is entitled to derivative survivor's benefits pursuant to Section 422(l) of the Act, 30 U.S.C. §932(l) (2018).[7]
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.[8] It also argues the removal provisions applicable to ALJs rendered his appointment unconstitutional. Alternatively, Employer contends the ALJ erred on the merits in determining the length of the Miner's coal mine employment and finding Claimant established the Miner was totally disabled, and thus invoked the Section 411(c)(4) presumption. It also argues the ALJ erred in determining it 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 response, urging the Benefits Review Board to reject Employer's constitutional challenges and its argument that the ALJ erred in determining the length of the Miner's coal mine employment. Employer filed reply briefs to Claimant's and the Director's responses, reiterating its arguments.
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.[9] 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 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).[10] Employer's Brief at 10-15; Employer's First Reply Brief at 3-5; Employer's Second Reply Brief at 2-3. It acknowledges the Secretary of Labor (Secretary) ratified the prior appointment of all sitting Department of Labor (DOL) ALJs on December 21, 2017,[11] but maintains the ratification was insufficient to cure the constitutional defect in the ALJ's prior appointment. Id.
The Director responds that the ALJ had the authority to decide this case because the Secretary's ratification brought his appointment into compliance. Director's Response Brief at 5-6. He also maintains Employer failed to demonstrate the Secretary's actions ratifying the appointment were improper. Id. at 6-7. We agree with the Director's position.
An appointment by the Secretary need only be "evidenced by an open, unequivocal act." Director's Response 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). It is permissible so long as the agency head: 1) had the authority to take the action to be ratified at the time of ratification; 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 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 Temin and gave "due consideration" to his appointment. Secretary's December 21, 2017 Letter to ALJ Temin. The Secretary further acted in his "capacity as head of [DOL]" when ratifying the appointment of Judge Temin "as an [ALJ]." Id.
Employer does not assert the Secretary had no "knowledge of all material facts" or did not make a "detached and considered judgement" when he ratified ALJ Temin's appointment, but instead generally speculates he did not provide "genuine consideration" of the ALJ's qualifications. Employer's Brief at 14-15. It 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) (); 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 service. Employer's Brief at 20-21. 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 Temin'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.
Consequently, we reject Employer's argument that this case should be remanded for a new hearing before a different ALJ.
Employer also challenges the constitutionality of the removal protections afforded DOL ALJs. Employer's Brief at 16-21; Employer's First Reply Brief at 6-7; Employer's Second Reply Brief at 3-5. 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 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's holding in Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), vacated, 594 U.S.,...
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