Griffith v. Eastern Associated Coal Co., BRB 19-0441 BLA
| Decision Date | 25 February 2021 |
| Docket Number | BRB 19-0441 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | RUTH GRIFFITH (Widow of CHARLES GRIFFITH) Claimant-Respondent v. EASTERN ASSOCIATED COAL COMPANY, c/o UNDERWRITERS SAFETY & CLAIM Sand Self-insured through PEABODY ENERGY CORPORATION Employer/Carrier-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
Appeal of the Decision and Order Awarding Benefits of Scott R Morris, Administrative Law Judge, United States Department of Labor.
Joseph E. Wolfe and Brad A. Austin (Wolfe Williams & Reynolds) Norton, Virginia, for Claimant.
H Brett Stonecipher and Tighe Estes (Reminger Co., L.P.A.) Lexington, Kentucky, for Employer and its Carrier.
Jennifer L. Feldman (Elena S. Goldstein, Deputy 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.
Laura Metcoff Klaus, W. William Prochot, and Mark E. Solomons (Greenberg Traurig, LLP), Washington, D.C., as amicus curiae, in support of Employer and its Carrier.
Before: BOGGS, Chief Administrative Appeals Judge, ROLFE and JONES, Administrative Appeals Judges.
JUDITH S. BOGGS, CHIEF ADMINISTRATIVE APPEALS JUDGE.
Employer and its Carrier (Employer) appeal Administrative Law Judge Scott R. Morris's Decision and Order Awarding Benefits (2018-BLA-05046) rendered on a survivor's claim filed on December 16, 2015, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act).
The administrative law judge accepted the parties' stipulation that the Miner had twenty-one years of qualifying coal mine employment, and found the evidence established he was totally disabled at the time of his death. 20 C.F.R. §718.204(b)(2). Thus, he found Claimant[1] invoked the presumption that the Miner's death was due to pneumoconiosis at Section 411(c)(4) of the Act.[2] 30 U.S.C. §921(c)(4) (2018). The administrative law judge further determined Employer did not rebut the presumption and awarded benefits.
On appeal, Employer argues the administrative law judge lacked the authority to decide the case because he was not appointed in accordance with the Appointments Clause of the Constitution, Art. II § 2, cl. 2.[3] It also contends the district director, the Department of Labor (DOL) official who processes claims, is an inferior officer who was not appointed in a manner consistent with the Appointments Clause. It next contends the administrative law judge erred in finding it liable for the payment of benefits. On the merits, Employer contends the administrative law judge erred in finding it did not rebut the Section 411(c)(4) presumption, because he improperly excluded the medical opinions of Drs. Westerfield and Broudy.[4]
Claimant responds, urging affirmance of the award of benefits. Arch Resources, Incorporated (Arch) filed an amicus curiae brief in support of Employer's position regarding its liability for benefits. The Director, Office of Workers' Compensation Programs (the Director), responds to both Employer's and Arch's briefs, urging the Benefits Review Board to reject Employer's Appointments Clause challenges and to affirm the determination that Employer is liable for benefits. Arch has filed a reply brief reiterating its contentions.
The 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 (1965).
Employer urges the Board to vacate the award and remand the case to be heard by a different, constitutionally appointed administrative law judge pursuant to Lucia v. SEC, 585 U.S., 138 S.Ct. 2044 (2018).[6] Employer's Brief at 13-15. Employer acknowledges the Secretary of Labor ratified the prior appointments of all sitting Department of Labor administrative law judges on December 21, 2017. Id. However, Employer contends that, because the administrative law judge was not properly appointed until December 21, 2017, [7]after he issued a Notice of Hearing, his Decision and Order must be vacated and the case remanded for a new hearing before a new administrative law judge. Id. The Director responds the issuance of a Notice of Hearing conveys general information, and therefore its issuance does not require reassignment to a new administrative law judge. Director's Brief at 19-20. We agree with the Director's argument.
The administrative law judge issued a Notice of Hearing on December 12, 2017. The issuance of the Notice alone did not involve any consideration of the merits, nor could it color the administrative law judge's consideration of the merits of this case. It simply reiterated the statutory and regulatory requirements governing the hearing procedures.[8]Noble v. B & W Res., Inc., 25 BLR 1-267, 1-271-72 (2020).
Thus, unlike the situation in Lucia, in which the judge had presided over a hearing and had issued an initial decision while he was not properly appointed, the issuance of the Notice of Hearing did not 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, and we decline to remand this case to the Office of Administrative Law Judges for a new hearing before a different, properly appointed administrative law judge. Noble, 25 BLR at 1-272.
Employer argues for the first time 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 again relies on Lucia. Employer's Brief at 15-20. Arch supports Employer's position in its amicus brief and reply brief. Amicus Curiae Brief at 17-18; Amicus Curiae Reply Brief at 7-14. The Director responds the district director is not an inferior officer, and Employer's arguments must fail. Director's Response 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 (); Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018) (). Lucia was decided a year prior to the administrative law judge's Decision and Order Awarding Benefits and Employer specifically preserved the issue of the validity of the administrative law judge's appointment.[9] However, 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 Joseph Forrester Trucking v. Director, OWCP [Davis], __F.3d__, No. 20-3329, 2021 WL 386555, slip. op. at 6 (6th Cir. Feb. 4, 2021); Kiyuna v. Matson Terminals, Inc., 53 BRBS 9, 10 (2019); see also Fleming v. USDA, __F.3d__, No. 17-1246, 2021 WL 560743 (D.C. Cir. Feb. 16, 2021). Instead, Employer waited to raise the issue 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. Further, because Employer has not raised any basis for excusing its forfeiture, we see no reason to entertain its forfeited arguments. See Davis, No. 20-3329, 2021 WL 386555, slip op. at 12-13; Powell v. Serv. Emps. Int'l, Inc., 53 BRBS 13, 15 (2019); Kiyuna, 53 BRBS at 11; Glidden Co. v. Zdanok, 370 U.S. 530, 535 (1962) ().
The Miner last worked in coal mine employment for Eastern Associated Coal, LLC (Eastern), a subsidiary of Peabody Energy Corporation (Peabody) in 1993. Director's Exhibits 5, 7. In 2007, Peabody sold Eastern to Patriot Coal Corporation (Patriot). Director's Exhibit 29. In 2011 the DOL authorized Patriot to self-insure for black lung liabilities, including for claims that employees of Peabody subsidiaries filed before Patriot purchased them. Id. This authorization required Patriot to make an "initial deposit of negotiable securities" in the amount of $15 million. Id. In 2015, Patriot went bankrupt. Director's Exhibit 25.
Employer does not directly challenge its designation as the responsible operator.[10]Rather, it asserts the liability issue is not one of the responsible operator, but rather that of "which party should have liability for that [r]esponsible [o]perator." Employer's Brief at 21. Employer maintains that a private contract between Peabody and Patriot (Separation Agreement) released Peabody from liability for the claims of miners who worked for Eastern. Id. at 20-42; see Director's Exhibit 29. Employer also maintains the DOL endorsed this shift of complete liability when it authorized Patriot to self-insure. Employer's Brief at 26-42.
To support its assertion that Patriot is the liable carrier Employer submitted documentary evidence to the administrative law judge marked Employer's...
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