Cox v. W & C Coal Company, Inc.
| Decision Date | 25 March 2021 |
| Docket Number | 20-0097 BLA,BRB 20-0096 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | VERDA LEE COX (o/b/o and Widow of HENRY COX) Claimant-Respondent v. W & C COAL COMPANY, INCORPORATED and OLD REPUBLIC INSURANCE COMPANY Employer/Carrier-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
Appeal of the Decision and Order Awarding Benefits of Jason A Golden, Administrative Law Judge, United States Department of Labor.
Joseph E. Wolfe and Brad A. Austin (Wolfe Williams & Reynolds) Norton, Virginia, for Claimant.
Laura Metcoff Klaus and Michael A. Pusateri (Greenberg Traurig LLP), Washington, D.C., for Employer/Carrier.
Jeffery S. Goldberg (Elena S. Goldstein, Deputy Solicitor of Labor; Barry H. Joyner, Associate Solicitor; Michael J. Rutledge, 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 Jason A. Golden's Decision and Order Awarding Benefits (2018-BLA-06069, 2018-BLA-06111) rendered on claims filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case involves the third request for modification of a subsequent claim, and the first request for modification of a survivor's claim.
The Miner filed his subsequent claim on May 10, 2004. In an October 5, 2011 Decision and Order Denying Benefits On Remand, [1] Administrative Law Judge Ralph A. Romano denied the claim because the Miner failed to establish pneumoconiosis. 20 C.F.R. §718.202(a); Director's Exhibit 68. The Miner requested modification of that denial[2] but died while it was pending. Director's Exhibits 69, 74, 79. Claimant, the Miner's widow, is now pursing the claim on his behalf. Id. The district director denied the request for modification of the subsequent claim on September 21, 2012. Director's Exhibit 81. Claimant filed a second request for modification. Director's Exhibit 86. Separately, Claimant filed a survivor's claim on August 31, 2012, which was consolidated with the modification proceeding in the Miner's subsequent claim. Director's Exhibit 100. In a Decision and Order dated May 10, 2017, Administrative Law Judge Richard M. Clark denied the second request for modification because Claimant failed to establish a change in conditions or a mistake in a determination of fact and denied the survivor's claim because Claimant failed to establish the Miner's death was due to pneumoconiosis. 20 C.F.R §§718.202(a), 718.205, 725.310; Director's Exhibit 143.
Claimant then filed a third request for modification of the Miner's subsequent claim and a first request for modification of her survivor's claim on August 29, 2017. Director's Exhibits 145, 148. Because Claimant submitted no new evidence, the district director transferred the claims to the Office of Administrative Law Judges (OALJ), which assigned them to Administrative Law Judge Jason A. Golden (the administrative law judge). Director's Exhibit 148.
In his Decision and Order Awarding Benefits that is the subject of the current appeal, the administrative law judge credited the Miner with 14.75 years of coal mine employment and found he had legal pneumoconiosis in the form of obstructive lung disease significantly related to, or substantially aggravated by, coal mine dust exposure.[3] 20 C.F.R. §718.202(a). He also found the Miner was totally disabled due to legal pneumoconiosis.[4]20 C.F.R. §718.204(b), (c). Thus he found Claimant established modification based on a mistake in a determination of fact. 20 C.F.R. §725.310. He further found granting modification would render justice under the Act and awarded benefits in the Miner's claim. In addition, he found Claimant automatically entitled to survivor's benefits pursuant to Section 422(l) of the Act based on the award in the Miner's claim.[5] 30 U.S.C. §932(l) (2018).
On appeal, Employer argues the administrative law judge lacked the authority to preside over the case because he was not appointed in a manner consistent with the Appointments Clause of the Constitution, Art. II § 2, cl. 2.[6] It also argues that the removal provisions applicable to administrative law judges violate the separation of powers doctrine and render his appointment unconstitutional. On the merits of entitlement, Employer contends the administrative law judge erred in finding Claimant established legal pneumoconiosis and disability causation, and in finding that granting modification would render justice under the Act.[7] Claimant responds in support of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), has filed a limited response, asserting the administrative law judge had the authority to decide the case. The Director also urges affirmance of the administrative law judge's finding that granting modification renders justice under the Act. Employer filed reply briefs, reiterating its arguments.
The Board's scope of review is defined by statute. We must affirm the administrative law judge'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 Associates, Inc., 380 U.S. 359 (1965).
Employer urges the Board to vacate the Decision and Order and remand the case to be heard by a different, constitutionally appointed administrative law judge pursuant to Lucia v SEC, 585 U.S., 138 S.Ct. 2044 (2018).[9] Employer's Brief at 14-15, 20. It acknowledges the Secretary of Labor (Secretary) ratified the prior appointments of all sitting Department of Labor (DOL) administrative law judges on December 21, 2017, [10] but maintains the ratification was insufficient to cure the constitutional defect in the administrative law judge's prior appointment.[11] Id. at 15-18; Employer's Reply Brief to the Director's Response at 1-4.
The Director argues the administrative law judge had the authority to decide this case because the Secretary's ratification brought his appointment into compliance with the Appointments Clause. 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 6 (quoting Marbury v. Madison, 5 U.S. 137, 157 (1803)). Further, 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 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 Hosp. Co., 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). Moreover, under the "presumption of regularity," courts presume public officers have properly discharged their official duties, with the burden on the challenger to demonstrate 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 administrative law judges 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 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 administrative law judges in a single letter. Rather, he specifically identified Administrative Law Judge Golden and gave "due consideration" to his appointment. Secretary's December 21, 2017 Letter to Administrative Law Judge Golden. The Secretary further acted in his "capacity as head of the Department of Labor" when ratifying the appointment of Judge Golden "as an Administrative Law Judge." Id.
Employer does not assert the Secretary had no "knowledge of all the material facts," and generally speculates that he did not make a "genuine, let alone thoughtful, consideration" when he ratified Judge Golden's appointment. Employer's Brief at 18. 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 administrative law judge's appointment.[12] See Edmond v. United States, 520 U.S. 651, 654-66 (1997) (); Advanced Disposal, 820 F.3d 592, 604-05 ().
We further reject Employer's argument that Executive Order 13843, which removes administrative law judges from the competitive civil service, supports...
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