Honeycutt v. Hondo Coal Co.
| Decision Date | 22 June 2022 |
| Docket Number | 21-0125 BLA |
| Parties | WILMA JEAN HONEYCUTT (o/b/o RONALD D. HONEYCUTT) Claimant-Respondent v. HONDO COAL COMPANY, c/o HONEYCUTT ENTERPRISES INCORPORATED 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UNPUBLISHED OPINION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 of Larry A Temin, Administrative Law Judge, United States Department of Labor.
Joseph E. Wolfe and Brad A. Austin (Wolfe Williams &Reynolds) Norton, Virginia, for Claimant.
Michael A. Pusateri (Greenberg Traurig LLP), Washington D.C., for Employer and its Carrier.
Sarah M. Hurley (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) Larry A. Temin's Decision and Order Awarding Benefits (2019-BLA-05278) rendered on a claim filed on June 27, 2016, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act).[1]
The ALJ found Employer is the correctly named responsible operator. He further determined Claimant[2] established the Miner had 7.71 years of coal mine employment[3] and therefore could not invoke the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act.[4] 30 U.S.C. §921(c)(4) (2018). In addition, he found Claimant failed to invoke the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act. 30 U.S.C §921(c)(3) (2018). Considering whether Claimant established entitlement to benefits under 20 C.F.R. Part 718, the ALJ found Claimant established the Miner was totally disabled due to clinical and legal pneumoconiosis,[5] and awarded benefits. 20 C.F.R. §§718.201, 718.204.
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.[6] It also argues removal provisions applicable to ALJs violate the separation of powers doctrine and render his appointment unconstitutional. Furthermore, it challenges its designation as the responsible operator. On the merits, Employer argues the ALJ erred in finding the Miner had clinical and legal pneumoconiosis, and that his totally disabling respiratory impairment was due to pneumoconiosis.[7]Claimant responds, urging affirmance of the award. The Director, Office of Workers' Compensation (the Director), has filed a response, urging rejection of Employer's constitutional challenges to the ALJ's appointment and removal protections. The Director also urges the Benefits Review Board to affirm the ALJ's determination that Employer is liable for benefits. Employer has filed separate reply briefs, reiterating its arguments.
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.[8] 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 ALJ's Decision and Order and remand the case to be heard by a constitutionally appointed ALJ pursuant to Lucia v. SEC, 585 U.S., 138 S.Ct. 2044 (2018).[9] Employer's Brief at 10-11 (unpaginated); Employer's Reply to Director at 1-5. It acknowledges the Secretary of Labor (the Secretary) ratified the prior appointment of all sitting Department of Labor (DOL) ALJs on December 21, 2017,[10] but maintains the ratification was insufficient to cure the constitutional defect in the ALJ's prior appointment. Employer's Brief at 11-13 (unpaginated).
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 4-6. He also maintains Employer failed to demonstrate the Secretary's actions ratifying the appointment were improper. Id. at 5-6. We agree with the Director.
An appointment by the Secretary need only be "evidenced by an open, unequivocal act." Director's Response at 5 (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). 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 Golden and indicated he gave "due consideration" to his appointment. Secretary's December 21, 2017 Letter to ALJ Golden. The Secretary further acted in his "capacity as head of the Department of Labor" when ratifying the appointment of ALJ Golden "as an Administrative Law Judge." Id.
Employer does not assert the Secretary had no "knowledge of all material facts," but instead generally speculates he did not provide "genuine consideration" of the ALJ's qualifications when he ratified the ALJ's appointment. Employer's Brief at 13 (unpaginated). Employer therefore has not overcome the presumption of regularity. [11]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 (). [12]Consequently, we reject Employer's argument that this case should again be remanded for a new hearing before a different ALJ.
Employer also challenges the constitutionality of the removal protections afforded DOL ALJs. Employer's Brief at 13-18 (unpaginated); Employer's Reply to Director at 68. 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 15-17 (unpaginated). It also 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). See Employer's Brief at 14-15, 17 (unpaginated).
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, 1137-1138 (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 functions." Id. at 507 n.10. Further, the majority in Lucia declined to address the removal provisions for ALJs. Lucia, 138 S.Ct. at 2050 n.1. In Seila Law, the Court held that limitations on removal of the Director of the Consumer Financial Protection Bureau (CFPB) infringed upon the President's authority to oversee the Executive Branch, where the CFPB was an "independent agency...
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