Decker Coal Co. v. Pehringer, 20-71449

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtTALLMAN, CIRCUIT JUDGE.
PartiesDecker Coal Company, Petitioner, v. Jerry Pehringer; Director, Office of Workers' Compensation Programs, Respondents.
Decision Date16 August 2021
Docket Number20-71449

Decker Coal Company, Petitioner,

Jerry Pehringer; Director, Office of Workers' Compensation Programs, Respondents.

No. 20-71449

United States Court of Appeals, Ninth Circuit

August 16, 2021

Argued and Submitted June 10, 2021 Portland, Oregon

On Petition for Review of an order of the Benefits Review Board No. 19-0366

John S. Lopatto III (argued), Washington, D.C., for Petitioner.

Joshua M. Salzman (argued), Attorney; Civil Division, United States Department of Justice, Washington, D.C.; Ann Marie Scarpino (argued) and Sarah M. Hurley, Attorneys; Gary K. Stearman, Counsel for Appellate Litigation; Jennifer L. Feldman, Deputy Associate Solicitor; Barry H. Joyner, Associate Solicitor; Kate O'Scannlain, Solicitor of Labor; Office of the Solicitor, United States Department of Labor, Washington, D.C.; for Respondent Director, Office of Workers' Compensation Programs.

Brad A. Austin (argued), Wolfe Williams &Reynolds, Norton, Virginia, for Respondent Jerry Pehringer.

Before: Kim McLane Wardlaw, Richard C. Tallman, and Andrew D. Hurwitz, Circuit Judges.


Black Lung Benefits Act / Benefits Review Board

The panel denied a petition for review of a decision of the Benefits Review Board ("BRB") affirming an administrative law judge's award of benefits to a claimant under the Black Lung Benefits Act ("BLBA").

After an ALJ awarded claimant BLBA benefits, claimant's employer, Decker Coal Company, filed a joint motion for reconsideration and motion to reopen the record. The ALJ denied the motion, and the BRB affirmed.

The panel held that an ALJ's decision on a motion for reconsideration or a request for modification in a BLBA case is reviewed for abuse of discretion.

The panel began by reviewing the constitutionality of removal provisions applicable to ALJs. 5 U.S.C. § 7521(a) permits removal of an ALJ only for good cause determined by the Merits Systems Protection Board after an opportunity for hearing before the Board. The panel held that 5 U.S.C. § 7521 was compatible with Article II of the Constitution, and was constitutional as applied to Department of Labor ("DOL") ALJs. Specifically, the panel held that the question before it had not been decided by the U.S. Supreme Court. In addressing the constitutionality of § 7521, the panel began with the presumption of constitutionality of statutes. The panel held, first, that the ALJ here was performing a purely adjudicatory function in deciding the BLBA claim. Second, Congress has not tied the President's hands and hindered his control over his subordinates. Third, the BRB's role provided the President with meaningful control over the DOL ALJs. Simply put, ALJs are judges who make decisions that are subject to vacatur by people without tenure protection. The panel concluded that properly appointed DOL ALJs can adjudicate cases without trammeling the President's executive power. The panel noted that its holding did not necessarily provide that all remaining two-level tenure protections schemes were constitutional.

The panel held even if it were to conclude that 5 U.S.C. § 7521 was unconstitutional, they would sever only one level of protection, and they would not invalidate the decision reached below. The panel held that Decker Coal's claim -that Lucia v. SEC, 138 S.Ct. 2044 (2018), mandated a new hearing before a new ALJ - was incorrect.

The panel held that the ALJ did not err in adjudicating claimant's claim for benefits. The panel rejected Decker Coal's argument that the ALJ abused its discretion by denying its motion for reconsideration and rejecting its request to reopen the record to admit evidence it asserted would undermine the veracity of claimant's testimony. The panel also rejected Decker Coal's argument that § 22 of the Longshore Act required the ALJ to modify the award of benefits. Specifically, the panel held that there was no ALJ error in rejecting untimely evidentiary submissions that could have been obtained with reasonable diligence during the significant length of time the record was open. The BLBA incorporates § 22, which provides for modifying benefits awards. The regulation governing modification of BLBA benefits is 20 C.F.R. § 725.310, which provides that an ALJ may only hear a case at the conclusion of administrative modification proceedings after the district director forwards the claim, and prohibits a party's initiation of a modification proceeding before an ALJ or the BRB. The panel held that the regulation did not conflict with the statutory language of § 22, and concluded that Decker Coal's request for modification in the reconsideration motion filed before the ALJ was procedurally improper.

The panel held that substantial evidence supported the ALJ's conclusion that Decker Coal did not rebut the presumption of entitlement to benefits after claimant established legal pneumoconiosis and causation. Section 921 of the BLBA creates a rebuttable presumption that a miner suffering from a respiratory or pulmonary impairment is totally disabled from pneumoconiosis, even without formal medical diagnosis, if he or she worked for at least fifteen years in substantially similar conditions to underground coal mines. The panel held that once a claimant has successfully invoked the fifteen-year presumption, the burden shifts and the party opposing the claimant's entitlement to benefits must rebut the presumption of total disability due to pneumoconiosis. The panel held that the ALJ reasonably concluded that Decker Coal failed to rebut the presumption of legal pneumoconiosis.



The Powder River Basin produces the most coal of any region in the United States. Trains transport coal daily from the Basin to continental coal-fired generating stations and to Pacific Northwest coal export terminals. The Basin comprises millions of acres of land in northeast Wyoming and southeast Montana. It is home to relatively few people but holds vast reserves of coal and large surface coal mines. The Decker coal mine in southeast Montana was one such mine in the Basin. It was where former coal miner and Decker Coal Company (Decker) employee Jerry Pehringer worked throughout his entire coal mining career and where the story of this dispute began.

Congress established a federal program designed to compensate coal mine workers who contract Black Lung Disease because of their work in the mines. Decker petitions for review of a Benefits Review Board (BRB) order affirming the decision of a Department of Labor (DOL) administrative law judge (ALJ) awarding benefits to Pehringer under the Black Lung Benefits Act, 30 U.S.C. §§ 901-944 (BLBA). Decker principally challenges the process by which ALJs can be removed. Decker argues that the governing statute, 5 U.S.C. § 7521, infringes upon the President's inherent Article II removal power by impermissibly insulating ALJs from termination through two levels of "for-cause" employment protection. Because of this alleged constitutional defect, Decker asks us to invalidate the award and remand to a different ALJ.

We must decide whether the statute is constitutional with respect to DOL ALJs. If the statutory removal structure passes constitutional muster, we then must decide whether the ALJ here acted within his discretion in denying Decker's motion for reconsideration and whether substantial evidence supports his decision awarding benefits under the BLBA. For reasons specific to the statutory scheme at issue, we hold that 5 U.S.C. § 7521 is constitutional as applied to DOL ALJs. We further hold that the ALJ did not abuse his discretion in denying Decker's post-hearing motion and that substantial evidence supports the ALJ's award of benefits. Accordingly, we deny the petition for review.



Decker employed Pehringer at its open-pit surface mine near Decker, Montana, from September 1977 until June 1999. There were several periods where Pehringer did not Decker Coal v. Pehringer7 work, including during a roughly three-year-long strike beginning in late 1987, and a shorter period following a neck injury in December 1995. But for most of his coal mining career, Pehringer was regularly exposed to coal dust-so much so that he would leave a blanket on his car seats, undress in his basement, and shake off his dirty clothes outside his home before bathing. He testified that conditions were "bad," that "[i]t was just a constant dust storm all the time," and that coal dust "lingered in the air down [in the pit]."

Pehringer worked primarily as a heavy equipment operator. He operated bulldozers, coal scrapers, and coal haulers, cleaning coal seams, trapping coal, and filling traps to load coal trains. Most vehicle cabs did not have air conditioning. In the warm months, the heat inside the scraper and dozer cabs forced Pehringer to operate the machinery with the door opened. In the winter, coal dust would still creep into the cabs even with the doors closed. Conditions remained like this until the last two years of his coal mining career, when he was able to work in newer, upgraded equipment with air-conditioned cabs.

After being laid off in 1999, Pehringer was awarded Social Security total disability benefits. He never worked again. On November 7, 2014, a little over a month before his sixty-fifth birthday, Pehringer filed his claim for black lung benefits with the DOL, citing his severe chronic obstructive pulmonary disease (COPD). Barbara Cahill, MD, conducted a pulmonary examination in April 2015, pursuant to 30 U.S.C. § 923(b), and determined that "Pehringer is 100% impaired from his COPD." Dr. Cahill found that the causes of the COPD were: "smoking &dust-related." She further opined that Pehringer's coal "dust exposure and smoking are significant contributors to his COPD impairment."


A district director from the DOL Office of Workers' Compensation Programs (OWCP) issued a proposed decision and order awarding Pehringer BLBA...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT