Helbert v. J K & G Coal Co., 20-0564 BLA
| Decision Date | 28 February 2022 |
| Docket Number | 20-0564 BLA |
| Parties | STEVIE HELBERT Claimant-Respondent v. J K & G 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UNPUBLISHED OPINION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 Decision and Order Awarding Benefits of Timothy J McGrath, Administrative Law Judge, United States Department of Labor.
Laura Metcoff Klaus and Michael A. Pusateri (Greenberg Traurig LLP), Washington, D.C., for Employer and its Carrier.
William M. Bush (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: BUZZARD, ROLFE, and GRESH, Administrative Appeals Judges.
DECISION AND ORDER
Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Timothy J. McGrath's Decision and Order Awarding Benefits (2019-BLA-05081) rendered pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case involves a claim filed on May 18 2017.[1]
The ALJ found Claimant had between 9.13 and 13.1 years of coal mine employment, and thus determined he could not invoke the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act.[2] 30 U.S.C. §921(c)(4) (2018). Considering entitlement under 20 C.F.R. Part 718, the ALJ found Claimant established clinical pneumoconiosis and a totally disabling respiratory or pulmonary impairment based on the parties' stipulation. 20 C.F.R. §§718.202(a), 718.204(b). He further found Claimant established legal pneumoconiosis and total disability due to legal pneumoconiosis. 20 C.F.R. §§718.202(a), 718.204(c). Thus he awarded benefits.
On appeal, Employer argues the ALJ lacked the authority to hear and decide the case because he was not appointed in a manner consistent with the Appointments Clause of the Constitution.[3] It also argues the removal provisions applicable to ALJs rendered his appointment unconstitutional. Furthermore, Employer asserts he erred in finding it the responsible operator. Finally, it argues he erred in finding Claimant established legal pneumoconiosis and disability causation.[4]
Claimant has not filed a response brief. The Director, Office of Workers' Compensation Programs (the Director), has filed a response, urging the Benefits Review Board to reject Employer's constitutional challenges to the ALJ's appointment and its responsible operator argument. In a reply brief, Employer reiterates its contentions.
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 (1965).
Employer urges the Board to vacate the Decision and Order 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).[6] Employer's Brief 9-13; Employer's Reply Brief at 1-5. It acknowledges the Secretary of Labor (Secretary) ratified the prior appointments of all sitting Department of Labor (DOL) ALJs on December 21, 2017, [7] but maintains the ratification was insufficient to cure the constitutional defect in the ALJ's prior appointment. Employer's Brief at 9-13; Employer's Reply at 1-5. 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 Response at 5-7. 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 6 (quoting Marbury v. Madison, 5 U.S. 137, 157 (1803)). 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, 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). Contrary to the Employer's argument, 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)); see Employer's Reply Brief at 5.
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 McGrath and indicated he gave "due consideration" to his appointment. Secretary's December 21, 2017 Letter to ALJ McGrath. The Secretary further acted in his "capacity as head of the Department of Labor" when ratifying the appointment of the ALJ "as an Administrative Law Judge." Id.
Employer does not assert the Secretary had no "knowledge of all material facts," and generally speculates he did not make a "genuine, let alone thoughtful, consideration" when he ratified the ALJ's appointment. Employer's Brief at 13. Employer therefore has not overcome the presumption of regularity.[8] Advanced Disposal, 820 F.3d at 605 (); 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) (); Advanced Disposal, 820 F.3d at 604-05 ().
We further reject Employer's argument that Executive Order 13843, which removes ALJs from the competitive civil service, supports its Appointments Clause argument because incumbent ALJs remain in the competitive civil service. Employer's Brief at 19-20; Employer's Reply Brief at 15-16. The Executive Order does not state that the prior appointment procedures were impermissible or violated the Appointments Clause. It also affects only the government's internal management and, therefore, does not create a right enforceable against the United States and is not subject to judicial review. See Air Transport Ass'n of Am. v. FAA, 169 F.3d 1, 8-9 (D.C. Cir. 1999). Moreover, Employer has not explained how the Executive Order undermines the Secretary's ratification of the ALJ's appointment, which we have held constituted a valid exercise of his authority that brought the ALJ's appointment into compliance with the Appointments Clause.
Thus we reject Employer's argument that this case should be remanded to the Office of Administrative Law Judges for a new hearing before a different ALJ.
Employer also challenges the constitutionality of the removal protections afforded ALJs. Employer's Brief at 13-18. 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. Employer's Brief at 15-16; Employer's Reply at 6-7. It also relies on the Supreme Court's holdings in Free Enterprise 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 14-18; Employer's Reply at 7-8.
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, 8 F.4th 1123, 1137-38 (9th Cir. 2021) ().
Moreover 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 [ALJs]" who, "unlike members of the [PCAOB], . . . perform adjudicative rather than enforcement or policymaking...
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