David Stanley Consultants v. Dir., Office of Workers' Comp. Programs

• Decision Date: 31 January 2020
• Docket Number: No. 18-3406,18-3406
• Parties: DAVID STANLEY CONSULTANTS, Petitioner v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; THOMAS H. PETERS Respondents
• Court: U.S. Court of Appeals — Third Circuit

DAVID STANLEY CONSULTANTS, Petitioner v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITEDSTATES DEPARTMENT OF LABOR; THOMAS H. PETERS Respondents

No. 18-3406

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted: October 24, 2019

January 31, 2020

NOT PRECEDENTIAL

ON PETITION FOR REVIEW OF AN ORDER OF THE BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR

(BRB-1: 17-0553 BLA)

Submitted Under Third Circuit L.A.R. 34.1(a)

October 24, 2019

Before: GREENAWAY, JR., PORTER and GREENBERG, Circuit Judges.

OPINION^*

GREENAWAY, JR., Circuit Judge.

This is a petition for review of an award of benefits under the Black Lung BenefitsAct, 30 U.S.C. § 901 et seq. Claimant Thomas H. Peters was a miner in Pennsylvania for more than thirty-three years. He applied for disability benefits on the ground that he is totally disabled due to pneumoconiosis. The Administrative Law Judge ultimately awarded benefits, and the Benefits Review Board affirmed. Employer David Stanley Consultants, as insured by Chartis Casualty Co., filed this petition for review.

For the foregoing reasons, we will deny the petition.

I. BACKGROUND

Claimant Thomas H. Peters ("Peters") worked as a coal miner in Pennsylvania for more than 33 years. On January 31, 2012, Peters applied for disability benefits under the Black Lung Benefits Act (the "BLBA") on the ground that he suffered from totally disabling pneumoconiosis that resulted from his coal mine employment. David Stanley Consultants ("DSC") was named as a potentially liable operator¹ on January 7, 2013. When the district director issued a proposed decision denying benefits, Peters requested a formal hearing before an ALJ.

The Administrative Law Judge issued a pre-hearing order that scheduled a formal hearing for June 26, 2015. The ALJ also required the parties to exchange a pre-hearing report summarizing the documentary evidence fifty days before the hearing and to share the actual documentary evidence at least twenty days before the hearing in accordancewith 20 C.F.R. § 725.456(a)(2). Fifty-six days before the hearing, Peters informed DSC that he would submit a medical report from Dr. Robert Cohen, who performed a pulmonary evaluation on Peters. He mailed Dr. Cohen's report to DSC on May 28, 2015. DSC received it on June 2, 2015. DSC then filed a request for an extension to conduct two pulmonary evaluations of Peters by its own medical experts, Dr. Rosenberg and Dr. Broudy. The ALJ denied this motion at the hearing on June 26, 2015, but allowed Drs. Rosenberg and Broudy to submit supplemental rebuttal reports addressing Dr. Cohen's report.

The ALJ awarded Peters benefits on December 1, 2015. DSC then appealed to the Department of Labor Benefits Review Board. Among its grounds for appeal was the ALJ's decision to deny the motion for extension. The Board affirmed in part and remanded in part. The Board affirmed the ALJ's decision to deny the motion for an extension. It also ordered the ALJ to reassess the opinion of Dr. Rosenberg, who had concluded that Peters was not totally disabled, and to make specific findings about the exertional requirements of Peters's employment and determine whether the doctors had sufficient understanding of those requirements. The Board also ordered the ALJ to determine whether DSC rebutted the presumption of clinical and legal pneumoconiosis and whether DSC rebutted the presumption of causation of total disability.

The ALJ issued a second order awarding benefits on June 8, 2017. DSC again appealed to the Benefits Review Board. On July 9, 2018 (after the parties filed their briefs before the Board, but before the Board issued its decision) DSC filed a motion for remand on the ground that Department of Labor ALJs are officers subject to theAppointments Clause, and that the ALJ was not properly appointed.² The Board affirmed the award on August 30, 2018. It denied DSC's motion to remand because DSC did not raise the claim in its opening brief.

This timely petition for review followed.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 33 U.S.C. § 921(c), as incorporated by § 422(a) of the Black Lung Benefits Act, 30 U.S.C. § 932(a).

"We review the decisions of the Board for errors of law and to assure that it has adhered to its own standard of review. . . . Our review of the Board's legal determinations is plenary." BethEnergy Mines Inc. v. Dir., Office of Workers' Comp. Programs, U.S. Dep't of Labor, 39 F.3d 458, 462-63 (3d Cir. 1994). "[W]e independently review the record and decide whether the ALJ's findings are supported by substantial evidence. Substantial evidence has been defined as more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Kowalchick v. Dir., Office of Workers' Comp. Programs, U.S. Dep't of Labor, 893 F.2d 615, 619-20 (3d Cir. 1990) (internal citations and quotation marks omitted). We review the Board's evidentiary rulings for abuse of discretion. Shamokin Filler Co., Inc. v. Fed. Mine Safety & Health Review Comm'n, 772 F.3d 330, 332 n.2 (3d Cir. 2014). We review the Board's determination that an employer has abandoned aclaim for abuse of discretion. Kephart v. Dir., Office of Workers' Comp. Programs, U.S. Dep't of Labor, 701 F.2d 22, 26 (3d Cir. 1983).

III. DISCUSSION

A. DSC's Appointments Clause Challenge

DSC first argues that the award should be vacated and the claim should be remanded because the ALJ was not properly appointed under the Appointments Clause. The Appointments Clause provides that "officers of the United States" must be appointed in certain ways. U.S. Const. art. II, § 2, cl. 2. In Lucia v. S.E.C., 138 S. Ct. 2044 (2018), the Supreme Court held that SEC ALJs are "officers" who must be appointed in accordance with the Appointments Clause. The Department of Labor agrees that the ALJs must be appointed in accordance with the Appointments Clause, but argues that DSC forfeited this claim by failing to properly raise it before the Benefits Review Board. We agree.

At issue is whether DSC preserved its Appointments Clause claim before the Board. DSC first raised its claim in a motion to remand before the Board. The Board decided that the claim was forfeited because DSC did not raise the claim in its opening brief: "Because employer first raised its Appointments Clause argument eleven months after filing its opening brief in support of its petition for review, employer forfeited the issue." SA 130 (citing, inter alia, Williams v. Humphreys Enters., Inc., 19 BLR 1-111, 1-114 (1995) (holding that "the Board generally will not consider new issues raised by the petitioner after it has filed its brief identifying the issues to be considered on appeal")).

This rule derives from 20 C.F.R. § 802.211(b), which requires that petitions for review include a supporting brief that "[s]pecifically states the issues to be considered by the Board." The Board's decision on DSC's motion accords with its regular treatment of employers' failure to raise Appointments Clause challenges in their opening briefs, including in post-Lucia cases. See, e.g., Tackett v. ICG Knott Cty., LLC & Am. Int'l South/Chartis, BRB No. 18-033 BLA, 2019 WL 1075364, at *1 n.2 (Ben. Rev. Bd. 2019); Motton v. Huntington Ingalls Indus., 52 Ben. Rev. Bd. Serv. (MB) 69, 69 at n.1, 2018 WL 6303734, at *1 n.1 (Ben Rev. Bd. 2018).

Our sister circuits have repeatedly held, including in post-Lucia cases, that a petitioner forfeits an Appointments Clause challenge if it fails to properly raise the challenge before the Board. See Island Creek Coal Co. v. Bryan, 937 F.3d 738, 751 (6th Cir. 2019) (holding, in a post-Lucia Black Lung Benefits Act case, that the employer failed to exhaust its Appointments Clause challenge where it raised the challenge in a motion for reconsideration before the Benefits Review Board and stating that "if the Board does not consider a merits issue because a party failed to follow the Board's procedural rules, the party generally has not exhausted that issue for a court's review"); Energy West Mining Co. v. Lyle, 929 F.3d 1202, 1206 (10th Cir. 2019) (holding, in a post-Lucia case, that Energy West forfeited its Appointments Clause challenge by failing to raise it before the Benefits Review Board).

DSC's arguments to the contrary are unavailing. DSC primarily relies on the Sixth Circuit's opinion in Jones Brothers, Inc. v. Secretary of Labor, 898 F.3d 669 (6th Cir. 2018). In Jones Brothers, the Sixth Circuit held that Jones Brothers forfeited itsAppointments Clause challenge by failing to raise it before the Mine Commission. However, the court excused the forfeiture because the absence of legal authority addressing whether the Mine Commission could entertain the challenge constituted "extraordinary circumstances." Id. at 677-78. There is no such absence of authority here. The Board is empowered to hear Appointments Clause challenges, and has done so in cases in which such a challenge was properly raised. See, e.g., Miller v. Pine Branch Coal Sales, Inc., No. 18-0323 BLA, 2018 WL 8269864, at *2-3 (Ben. Rev. Bd. Oct. 22, 2018) (en banc). In keeping with this distinction, the Sixth Circuit has since held that, in a Black Lung Benefits Act case, an employer forfeits its Appointments Clause claim under 20 C.F.R. § 802.211(b) if it fails to properly raise the claim before the Board. See Island Creek Coal, 937 F.3d at 754.

There are no other "extraordinary circumstances" that justify review here. That the Supreme Court decided Lucia after DSC filed its opening brief does not constitute such a circumstance; the Court explicitly noted that it was not creating new law in Lucia, but rather was applying its prior decision in Freytag v. Commissioner, 501 U.S. 868 (1991). See Lucia, 138 S. Ct. at 2053 ("Freytag says everything necessary to decide this case.). Likewise, its holding that "one who makes a timely challenge to the constitutional validity of the appointment of an officer who...