Deel v. Big Track Coal Co., BRB 20-0301 BLA
| Decision Date | 24 September 2021 |
| Docket Number | BRB 20-0301 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | DONNIE DEEL Claimant-Respondent v. BIG TRACK 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 |
UNPUBLISHED OPINION
Appeal of the Decision and Order Granting Benefits of Francine L Applewhite, Administrative Law Judge, United States Department of Labor.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for Employer and its Carrier.
Michelle S. Gerdano (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: BOGGS, Chief Administrative Appeals Judge, GRESH and JONES, Administrative Appeals Judges.
DECISION AND ORDER
Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Francine L. Applewhite's Decision and Order Granting Benefits (2018-BLA-06147) 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 September 15, 2017.[1]
The ALJ found Big Track Coal Company, Incorporated (Big Track) is the responsible operator. She credited Claimant with at least fifteen years of underground coal mine employment and found he has a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.204(b)(2). She therefore found Claimant 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), [2] and therefore established a change in an applicable condition of entitlement. 20 C.F.R §725.309(c). The ALJ further found Employer did not rebut the presumption and awarded benefits.
On appeal, Employer argues the ALJ lacked the authority to preside over the case because the removal provisions applicable to Department of Labor (DOL) ALJs fail to comply with the Appointments Clause of the Constitution.[3] Employer also contends the ALJ erred in identifying Big Track as the responsible operator and finding Claimant established fifteen years of underground coal mine employment sufficient to invoke the Section 411(c)(4) presumption. Employer further argues the ALJ erred in finding it did not rebut the presumption. Claimant has not filed a response brief. The Director, Office of Workers' Compensation Programs (the Director), has filed a limited response, urging rejection of Employer's constitutional challenges to the ALJ's removal protections and its argument that Big Track is not the responsible operator. Employer filed a reply brief, reiterating its arguments.[4]
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 & Grylls Assocs., Inc., 380 U.S. 359, 362 (1965).
Employer challenges the constitutionality of the removal protections afforded DOL ALJs. Employer's Brief at 9-15; Employer's Reply Brief at 1-8 (unpaginated). 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 v. SEC, 585 U.S., 138 S.Ct. 2044 (2018).
Employer's Brief at 9-10, 12-14; Employer's Reply Brief at 3-7 (unpaginated). Employer 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 in Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), vacated, 594 U.S., 141 S.Ct. 1970 (2021). Employer's Brief at 10-14; Employer's Reply Brief at 1-7 (unpaginated).
Employer's arguments are without merit, as the only circuit court to squarely address this precise issue has upheld the statute's constitutionality. Decker Coal Co. v. Pehringer, F.4th, No. 20-71449, 2021 WL 3612787 at *10-11 (9th Cir. Aug. 16, 2021) (). Further, in Free Enterprise Fund, the Supreme Court held dual for-cause limitations on removal of members of the Public Company Accounting Oversight Board (PCAOB) are "contrary to Article II's vesting of the executive power in the President[, ]" thus infringing upon his duty to "ensure that the laws are faithfully executed, [and to] be held responsible for a Board member's breach of faith." 561 U.S. at 496. The Court specifically noted, however, its holding "does not address that subset of independent agency employees who serve as administrative la w judges" who, "unlike members of the [PCAOB], . . . perform adjudicative rather than enforcement or policymaking functions." Id. at 507 n.10. Further, the majority in Lucia declined to address the removal provisions for ALJs. Lucia, 138 S.Ct. at 2050 n.1. In Seila Law, the Court held that limitations on removal of the Director of the Consumer Financial Protection Bureau (CFPB) infringed upon the President's authority to oversee the Executive Branch where the CFPB was an "independent agency led by a single Director and vested with significant executive power."[6] 140 S.Ct. at 2201. It did not address ALJs.
Finally, in Arthrex, the Supreme Court vacated the Federal Circuit's judgment. 141 S.Ct. 1970. The Court explained "the unreviewable authority wielded by APJs during interpartes review is incompatible with their appointment by the Secretary to an inferior office." Id. (emphasis added). In contrast, DOL ALJs' decisions are subject to further executive agency review by this Board.
Employer has not explained how or why these legal authorities should apply to DOL ALJs or otherwise undermine the ALJ's ability to hear and decide this case. Congressional enactments are presumed to be constitutional and will not be lightly overturned. United States v. Morrison, 529 U.S. 598, 607 (2000) (). The Supreme Court has long recognized that "[t]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988) (quoting Hooper v. California, 155 U.S. 648, 657 (1895)). Here, Employer does not even attempt to show that Section 7521 cannot be reasonably construed in a constitutionally sound manner. Hosp. Corp. of Am. v. FTC, 807 F.2d 1381, 1392 (7th Cir. 1986) (). Thus, Employer has not established that the removal provisions at 5 U.S.C. §7521 are unconstitutional. Pehringer, F.4th, No. 20-71449, 2021 WL 3612787 at *10-11.
The responsible operator is the "potentially liable operator, as determined in accordance with [20 C.F.R.] §725.494, that most recently employed the miner." 20 C.F.R. §725.495(a)(1). A coal mine operator is a "potentially liable operator" if it meets the criteria set forth at 20 C.F.R §725.494(a)-(e).[7] The district director is initially charged with identifying and notifying operators that may be liable for benefits, and then identifying the "potentially liable operator" that is the responsible operator. 20 C.F.R. §§725.407, 725.410(c), 725.495(a), (b). Once the district director designates the responsible operator, that operator may be relieved of liability only if it proves either it is financially incapable of assuming liability for benefits or another operator financially capable of assuming liability more recently employed the miner for at least one year. 20 C.F.R. §725.495(c).
In determining Big Track is the responsible operator, the ALJ considered Claimant's tenure with it and all of his subsequent employment. Decision and Order at 4. Claimant's relevant work history is as follows: Big Track from 1979 to March 16, 1989; Shelton Trucking from July 5, 1996 to November 30, 1997; and Cumberland Trucking, Incorporated (Cumberland Trucking) from December 1, 1997 to February 7, 1998.[8] Id.; Director's Exhibits 6; 35 at 11. The ALJ credited the district director's determination that Claimant's work with Cumberland Trucking did not last a full year.[9] Decision and Order at 5; Director's Exhibit 35 at 11. The ALJ further found that, although Claimant worked for Shelton Trucking for more than one year, the district director provided a statement verifying this operator was not insured on the last day of Claimant's employment with it, nor was it authorized to self-insure. 20 C.F.R. §725.495(d); Decision and Order at 5; Director's Exhibit 35 at 11. Because the subsequent coal mine operators either employed Claimant for less than one year or did not have insurance on his last day of employment, the ALJ found Big Track is the proper responsible operator. Decision and Order at 5.
Employer does not dispute Big Track meets the criteria for a potentially liable operator, but argues Shelton Trucking should have been designated. Employer's Brief at 15-20; Employer's Reply Brief at 8-9 (unpaginated). Employer asserts the fact that Shelton Trucking did not have insurance does not relieve it of liability because the...
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