Gregory v. Heritage Coal Company, LLC, BRB 19-0337 BLA

Decision Date30 September 2020
Docket NumberBRB 19-0337 BLA,19-0338 BLA
CourtCourt of Appeals of Black Lung Complaints


Appeal of the Decision and Order Awarding Benefits of Clement J Kennington, Administrative Law Judge, United States Department of Labor.

Darrell Dunham, Carbondale, Illinois, for Claimant.

Tighe Estes (Reminger Co., L.P.A.), Lexington, Kentucky, for Employer/carrier.

Jeffrey S. Goldberg (Kate S. O'Scannlain, Solicitor of Labor; Barry H. Joyner, Associate Solicitor; Michael J Rutledge, 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, BUZZARD and ROLFE, Administrative Appeals Judges.


Employer and its Carrier (Employer) appeal the Decision and Order Awarding Benefits (2017-BLA-05978 and 2017-BLA-05979) of Administrative Law Judge Clement J. Kennington issued pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012) (the Act). This case involves a Miner's claim filed on November 21, 2013 and a survivor's claim filed on November 10 2015.[1]

The administrative law judge determined Employer is the responsible operator liable for payment of benefits. On the merits, he found the Miner had twenty years of underground coal mine employment and a totally disabling respiratory impairment. Thus, he found 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) (2012).[2] The administrative law judge further determined Employer did not rebut the presumption and awarded benefits in the Miner's claim. Because the Miner was entitled to benefits at the time of his death, the administrative law judge found Claimant automatically entitled to survivor's benefits under Section 422(l) of the Act, 30 U.S.C. §932(l) (2012).

On appeal, employer contends the awards of benefits must be vacated and the case remanded, as both the district director and the administrative law judge are inferior officers who were not appointed in a manner consistent with the Appointments Clause of the U.S. Constitution, Art. II § 2, cl. 2.[3] Employer also argues the procedure used to adjudicate the responsible operator issue violated its right to due process and the administrative law judge erred in finding it meets the responsible operator criteria. Employer further maintains the administrative law judge erred in applying the Section 411(c)(4) presumption and in finding employer did not rebut it. Employer also contends the award of benefits must be vacated based on the administrative law judge's bias against Employer.

Claimant responds, urging affirmance of the award of benefits in both claims. The Director, Office of Workers' Compensation Programs (the Director), filed a limited response, urging the Board to hold Employer's Appointments Clause challenges are without merit and to affirm the determinations that Employer is liable for benefits and the Section 411(c)(4) presumption is applicable to the miner's claim.[4]

The Benefits Review Board's scope of review is defined by statute. We must affirm the administrative law judge'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 Associates, Inc., 380 U.S. 359, 361-62 (1965).

Appointments Clause - District Director

Employer argues for the first time in this appeal that the district director lacked the authority to identify the responsible operator and process this case because she is an "inferior Officer" of the United States not properly appointed under the Appointments Clause. Employer primarily relies on Lucia v. SEC, 585 U.S., 138 S.Ct. 2044 (2018), in which the United States Supreme Court held administrative law judges employed by the Securities and Exchange Commission are officers who must be appointed in conformance with the Appointments Clause. Employer's Brief at 12-18.

The Appointments Clause issue is "non-jurisdictional" and subject to the doctrines of waiver and forfeiture. See Lucia, 138 S.Ct. at 2055 (requiring "a timely challenge to the constitutional validity of the appointment of an officer who adjudicates [a party's] case"); Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018) ("Appointments Clause challenges are not jurisdictional and thus are subject to ordinary principles of waiver and forfeiture."). Lucia was decided seven months prior to the administrative law judge's Decision and Order Awarding Benefits, but Employer failed to raise its challenge to the district director's appointment while the case was before the administrative law judge. At that time, the administrative law judge could have addressed employer's arguments and, if appropriate, taken steps to have the case remanded - the remedy it seeks here. See Kiyuna v. Matson Terminals, Inc., BRBS, BRB No. 19-0103 at 4 (June 25, 2019). Instead, employer waited to raise the issue until after the administrative law judge issued an adverse decision. Based on these facts, we conclude Employer forfeited its right to challenge the district director's appointment.[6] Further, because Employer has not raised any basis for excusing its forfeiture, we see no reason to entertain its arguments. See Powell v. Service Employees Int'l, Inc., BRBS, BRB No. 18-0557 (Aug. 8, 2019); Kiyuna, BRB No. 19-0103, slip op. at 4; Glidden Co. v. Zdanok, 370 U.S. 530, 535 (1962) (cautioning against resurrecting lapsed arguments because of the risk of sandbagging).

Appointments Clause - The Administrative Law Judge

Employer also alleges "the matter must be remanded due [to] the Court's . . . violation of Lucia." Employer's Brief at 12, 47-48. Employer maintains that by issuing a Notice of Hearing, the administrative law judge took significant action before his appointment was ratified by the Secretary of Labor. Id. at 47-48. We disagree.

On December 21, 2017, the Secretary of Labor, exercising his power as the Head of a Department under the Appointments Clause, ratified the appointment of the administrative law judge. Administrative Law Judge's Exhibit 1. As employer acknowledges, the only action the administrative law judge took before his appointment was ratified was the issuance of a Notice of Hearing on December 13, 2017. Employer's Brief at 47-48. The Notice of Hearing alone does not involve any consideration of the merits, nor would it be expected to influence the administrative law judge's consideration of the case. It simply reiterates the statutory and regulatory requirements governing the hearing procedures. See Noble v. B & W Resources, Inc., BLR, 18-0533 BLA, slip op. at 4 (Jan. 15, 2020). Thus, unlike Lucia, in which the judge presided over a hearing and issued a decision while not properly appointed, the issuance of the Notice of Hearing in this case would not be expected to affect this administrative law judge's ability "to consider the matter as though he had not adjudicated it before." Lucia, 138 S.Ct. at 2055. It therefore did not taint the adjudication with an Appointments Clause violation requiring remand. See Noble, BRB No. 18-0533 BLA, slip op. at 4. We therefore reject Employer's request that this case be remanded for a new hearing before a different and validly appointed administrative law judge.

Responsible Operator/Carrier - Due Process

Employer next alleges the awards of benefits are invalid, as the procedure for adjudicating responsible operator liability makes the Department of Labor (DOL) responsible for both identifying the operator liable for the payment of benefits and administering the Black Lung Disability Trust Fund (Trust Fund).[7] Employer's Brief at 18-23. Employer maintains this creates a conflict of interests that violates its right to due process. We disagree.

As the Director notes, Congress explicitly intended that "individual coal mine operators rather than the [Trust Fund] bear the liability for claims arising out of such operators' mines to the maximum extent feasible." Director's Response Brief at 18, quoting S. Rep No. 209, 95th Cong., 1st Sess. 9 (1977), reprinted in House Comm. on Educ. and Labor, 96th Cong., Black Lung Benefits Reform Act and Black Lung Benefits Revenue Act of 1977, 612 (Comm. Print 1979). Thus, as the Director avers when identifying an Employer that meets the responsible operator criteria, DOL is acting in a manner consistent with congressional intent. Director's Response Brief at 18. Furthermore, Employer maintains incorrectly that a district director makes the final determination as to which operator is the responsible operator. Although the regulations require all relevant documentary evidence to be submitted before the district director, and require him or her to name the correct responsible operator, they also allow the putative responsible operator to challenge its designation by requesting a de novo hearing before an administrative law judge. 20 C.F.R. § 725.419; see Arch Coal, Inc. v. Acosta, 888 F.3d 493, 497 (D.C. Cir. 2018); Rockwood Casualty Ins. Co. v. Director, OWCP, 917 F.3d 1198, 1215 (10th Cir. 2019) (district director's designation of a responsible operator is not binding on the administrative law judge). The operator can then seek review of the administrative law judge's...

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