Greathouse v. Old Ben Coal Co.
| Decision Date | 07 March 2023 |
| Docket Number | BRB 21-0326 BLA |
| Parties | BETTY GREATHOUSE (o/b/o GARY DALE GREATHOUSE, deceased) Claimant-Respondent v. OLD BEN COAL COMPANY and TRAVELERS INSURANCE COMPANY Employer-Petitioner 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UNPUBLISHED OPINION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 Denying Employer's Motion for Reconsideration of Larry A. Temin Administrative Law Judge, United States Department of Labor.
Darrell Dunham (Darrell Dunham & Associates), Carbondale Illinois, for Claimant.
Michael A. Pusateri (Greenberg Traurig LLP), Washington, D.C., for Employer and its Carrier.
Jeffrey S. Goldberg (Seema Nanda, Solicitor of Labor; Barry H. Joyner, Associate Solicitor; Andrea J. Appel, Counsel for Administrative Appeals), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: GRESH, Chief Administrative Appeals Judge, BOGGS and BUZZARD, Administrative Appeals Judges.
DECISION AND ORDER
Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Larry A. Temin's Decision and Order Awarding Benefits (2009-BLA-05725) rendered on a subsequent claim filed on April 17, 2007,[1] pursuant to the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2018) (Act). This case is before the Benefits Review Board for the fourth time.[2]
The ALJ credited the Miner with 29.18 years of underground coal mine employment and found he had a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.204(b)(2). Thus he found Claimant established a change in an applicable condition of entitlement and invoked the rebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act.[3] 30 U.S.C. §921(c)(4) (2018); 20 C.F.R. §725.309(c). The ALJ found Employer did not rebut the presumption and awarded benefits.[4]
On appeal, Employer argues the ALJ lacked the authority to preside over the case because he was not appointed in a manner consistent with the Appointments Clause of the United States Constitution, Art. II § 2, cl. 2,[5] and the removal provisions applicable to ALJs render his appointment unconstitutional. It further argues the ALJ erred in finding Old Ben Coal Company ("Old Ben") is the responsible operator and Travelers Insurance Company ("Travelers") is the correct surety. On the merits, Employer argues the ALJ erred in finding Claimant invoked the Section 411(c)(4) presumption and that it did not rebut the presumption.[6]
Claimant responded in support of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), filed a response brief urging rejection of Employer's constitutional challenges and its arguments regarding the responsible operator and surety. He also urges the Board to reject Employer's argument that benefits are precluded as a matter of law because the Miner's lung cancer was not a chronic disease. Employer filed a reply reiterating its arguments on the issues the Director addressed.
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.[7] 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 (1965).
Employer urges the Board to vacate the Decision and Order and again 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).[8] Employer's Brief at 18-22. Although the Secretary of Labor (Secretary) ratified the prior appointments of all sitting Department of Labor (DOL) ALJs on December 21, 2017,[9] Employer maintains the ratification was insufficient to cure the constitutional defect in the ALJ's prior appointment. Id. at 20-22. The Director responds that the ALJ had the authority to decide this case because the Secretary's ratification brought his appointment into compliance. Director's Brief at 10-13. He also maintains Employer failed to demonstrate the Secretary's actions ratifying the appointment were improper. Id. at 11. We agree with the Director's position.
An appointment by the Secretary need only be "evidenced by an open, unequivocal act." Id. at 11 (quoting Marbury v. Madison, 5 U.S. 137, 157 (1803)). 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. v. NLRB, 857 F.3d 364, 371 (D.C. Cir. 2017) (internal quotations omitted); 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). Under the "presumption of regularity," courts presume public officers have properly discharged their official duties, with "the burden shifting to the attacker to show the contrary." Advanced Disposal, 820 F.3d at 603 (citing Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001)).
Congress has 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 but rather specifically identified ALJ Temin and gave "due consideration" to his appointment. Secretary's December 21, 2017 Letter to ALJ Temin. The Secretary further acted in his "capacity as head of the [DOL]" when ratifying the appointment of the ALJ "as an [ALJ]." Id.
Employer does not assert the Secretary had no knowledge of all material facts, but instead generally speculates he ratified the ALJ's appointment without "genuine consideration of the candidate's qualifications."[10] Employer's Brief at 19-21. It 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 ALJ's appointment. See Edmond v. United States, 520 U.S. 651, 654-66 (1997) (appointment valid where the Secretary of Transportation issued a memorandum "adopting" assignments "as judicial appointments of [his] own"); Advanced Disposal, 820 F.3d at 604-05 ().[11] Consequently, we reject Employer's argument that this case should be remanded for a new hearing before a different ALJ.
Employer also challenges the constitutionality of the removal protections afforded to DOL ALJs. Employer's Brief at 23-26. It 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. Employer's Brief at 23-26; Employer's Reply at 4. In addition, it relies on the 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 26. For the reasons set forth in Howard v. Apogee Coal Co., BLR, BRB No. 20-0229 BLA, slip op. at 3-5 (Oct. 18, 2022), we reject Employer's arguments.
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).[12] 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 that 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).
On July 2, 2007, the district director issued the Notice of Claim (NOC) identifying Old Ben as a potentially liable operator and notifying Travelers of its potential interest as the surety on an indemnity bond Old Ben obtained as a self-insured operator. Director's Exhibits 13, 15, 17. The NOC identified the specific bond (2S100302631) that covered Old Ben's black lung benefits liability for the period when Old Ben employed Claimant. Director's Exhibits 13, 15, 17. Employer timely responded arguing that Old Ben's successor, Horizon Natural Resources, not Old Ben, should be named the responsible operator, and denying Travelers was the surety for this claim because the bond identified in the NOC was no longer valid. Director's Exhibits 14, 16, 18. It further denied that the district director had...
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