Evans v. Dixie Pine Coal Co.
| Decision Date | 23 June 2022 |
| Docket Number | BRB 21-0290 BLA,21-0291 BLA |
| Parties | MARTHA EVANS (o/b/o and Widow of EARL EVANS) Claimant-Respondent v. DIXIE PINE COAL COMPANY and OLD REPUBLIC INSURANCE COMPANY Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Court of Appeals of Black Lung Complaints |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits and Order Lifting Abeyance and Awarding Benefits Under the Automatic Entitlement Provision of Natalie A. Appetta, Administrative Law Judge, United States Department of Labor.
Evan B. Smith (Appalachian Citizens' Law Center, Inc.) Whitesburg, Kentucky, for Claimant.
Michael A. Pusateri and Brian D. Straw (Greenberg Traurig LLP), Washington, D.C., for Employer and its Carrier.
Ann Marie Scarpino (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) Natalie A. Appetta's Decision and Order Awarding Benefits in a miner's claim and Order Lifting Abeyance and Awarding Benefits Under the Automatic Entitlement Provision in a survivor's claim (2012-BLA-06228 2018-BLA-05384) filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case involves a miner's subsequent claim filed on October 3, 2011and[1] a survivor's claim filed on May 25, 2017.[2]It is before the Benefits Review Board for a second time.
In the miner's claim, ALJ Daniel F. Solomon initially denied benefits because he found the Miner did not timely file his current claim. Claimant appealed, and the Board reversed ALJ Solomon's finding and remanded the case for consideration of whether the Miner had established a change in an applicable condition of entitlement. Evans v. Dixie Pine Coal Co., BRB No. 16-0061 BLA (Oct. 21, 2016) (unpub.). The Miner died on April 8, 2017, while his claim was pending before the Office of Administrative Law Judges (OALJ). MC Employer's Exhibit 10. Claimant filed a survivor's claim on May 25, 2017. Associate Chief ALJ William S. Colwell ordered that "the survivor's claim [would] be held in abeyance pending adjudication of the miner's claim." See February 26, 2019 Order Clarifying the Assignment of these Cases to the Undersigned, Denying Employer's Motion for Abeyance and for Reassignment to a Properly Appointed Officer, and Directing the Parties' Response. ALJ Colwell also granted Employer's motion for a decision on the record but denied its motion to exclude Dr. Burrell's supplemental report.[3] See June 30, 2020 Order Granting Employer's Consent Motion for a Decision on the Record but Denying Employer's Motion to Exclude Dr. Burrell's Rebuttal Report. ALJ Colwell subsequently retired and the case was reassigned to ALJ Appetta (the ALJ), who granted the Director's, Office of Workers' Compensation Programs (the Director), Motion for Protective Order and subsequently issued the decisions that are the subject of the current appeal.
The ALJ credited the Miner with 19.14 years of coal mine employment either underground or on the surface in conditions substantially similar to an underground mine and found he had a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.204(b)(2). She therefore determined Claimant invoked the presumption that the Miner was totally disabled due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4).[4] 20 C.F.R. §718.305. The ALJ further determined Employer did not rebut the presumption and Claimant established a change in an applicable condition of entitlement, 20 C.F.R. §725.309,[5] and awarded benefits. Because the Miner was entitled to benefits at the time of his death, the ALJ found Claimant automatically entitled to survivor's benefits under Section 422(l) of the Act, 30 U.S.C. §932(l) (2018).[6]
On appeal, Employer argues the ALJ lacked authority to hear and decide the case because she was not appointed in a manner consistent with the Appointments Clause of the Constitution, Art. II § 2, cl. 2.[7] It further asserts the removal provisions applicable to the ALJ rendered her appointment unconstitutional. On the merits, it contends the Board erred in reversing ALJ Solomon's finding that the Miner's fifth claim was untimely filed. It also contends the ALJ deprived it of due process by refusing to allow it to obtain discovery from the DOL regarding the scientific bases for the preamble to the 2001 regulatory revisions while relying on the preamble to weigh the evidence in this case. In addition, Employer argues the ALJ erred in crediting the Miner with at least fifteen years of qualifying coal mine employment and in finding Claimant invoked the Section 411(c)(4) presumption. Alternatively, it contends the ALJ erred in finding it did not rebut the presumption and Claimant established a change in an applicable condition of entitlement under 20 C.F.R. §725.309.[8] Claimant responds in support of the award of benefits. The Director filed a limited response urging the Board to reject Employer's constitutional challenges, its assertions that the United States Court of Appeals for the Sixth Circuit's interpretation of 20 C.F.R. §725.101(a)(32) is dicta, and its contention that a pre-existing non-pulmonary injury precludes entitlement. Employer replied to Claimant's and Director's briefs, reiterating its contentions on appeal.
The Board's scope of review is defined by statute. We must affirm the ALJ's Decision and Orders if they are 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, 362 (1965).
Employer urges the Board to vacate the Decision and Orders 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; Employer's Reply Brief at 16. It acknowledges the Secretary of Labor (Secretary) ratified the prior appointments of all sitting DOL ALJs on December 21, 2017,[11] but maintains the ratification was insufficient to cure the constitutional defect in the ALJ's prior appointment. Employer's Brief at 10-12. The Director argues the ALJ had the authority to decide this case because the Secretary's ratification brought her appointment into compliance. Director's Brief at 4-7. We agree with the Director's position.
An appointment by the Secretary need only be "evidenced by an open, unequivocal act." Director's Brief at 5 (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). 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 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 ALJs 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 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 Appetta and gave "due consideration" to her appointment. Secretary's December 21, 2017 Letter to ALJ Appetta. The Secretary further acted in his "capacity as head of the Department of Labor" when ratifying the appointment of ALJ Appetta "as an Administrative Law Judge." Id.
Employer does not allege the Secretary had no "knowledge of all the material facts" when he ratified ALJ Appetta's appointment. Employer's Brief at 14. Employer therefore has not overcome the presumption of regularity. Advanced Disposal, 820 F.3d at 603-04 (lack of detail in express ratification is insufficient to overcome the presumption of regularity); see also Butler, 244 F.3d at 1340. The Secretary thus properly ratified the ALJ's appointment.[12] See Edmond v. United States, 520 U.S. 651, 654-66 (1997) (); Advanced Disposal, 820 F.3d at 60405 (...
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