Howard v. Apogee Coal Co.

• Decision Date: 18 October 2022
• Docket Number: BRB 20-0229 BLA
• Parties: DAVID M. HOWARD Claimant-Respondent v. APOGEE COAL COMPANY and ARCH COAL, INCORPORATED 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

DAVID M. HOWARD Claimant-Respondent
v.
APOGEE COAL COMPANY and ARCH COAL, INCORPORATED Employer/Carrier-Petitioners

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest

BRB No. 20-0229 BLA

Court of Appeals of Black Lung

October 18, 2022

Appeal of the Decision and Order Awarding Benefits of Lauren C. Boucher, 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.

Jeffrey S. Goldberg (Seema Nanda, Solicitor of Labor; Barry H. Joyner, Associate Solicitor), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.

Before: BOGGS, Chief Administrative Appeals Judge, GRESH and JONES, Administrative Appeals Judges.

DECISION AND ORDER

PER CURIAM

Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Lauren C. Boucher's Decision and Order Awarding Benefits (2017-BLA-05163) rendered on a claim filed on November 19, 2014, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act).

1

The ALJ found Apogee Coal Company (Apogee) is the responsible operator and Arch Coal, Inc. (Arch) is the responsible carrier because it self-insured Apogee on the last day of Claimant's coal mine employment with Apogee. She determined Claimant established at least fifteen years of underground coal mine employment and a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.204(b)(2). Thus, she concluded Claimant invoked the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2018).^[1] Further, she found Employer did not rebut the presumption and awarded benefits.

On appeal, Employer argues the ALJ lacked the authority to hear and decide the case because the removal provisions applicable to ALJs violate the Appointments Clause of the Constitution, Art. II § 2, cl. 2.^[2] It also argues the ALJ erred in finding Arch is the liable insurance carrier. On the merits, it contends she erred in finding Claimant established total disability and thus invoked the Section 411(c)(4) presumption. Finally, it argues she erred in determining it did not rebut the presumption.^[3] Claimant has not filed a response brief.

2

The Director, Office of Workers' Compensation Programs (the Director), has filed a response, urging the Benefits Review Board to reject Employer's constitutional challenge. Further, the Director urges the Board to affirm the ALJ's determination that Apogee is the responsible operator and Arch is liable for the payment of benefits. Finally, the Director contends Employer's argument on the merits with respect to the issue of total disability is not persuasive. Employer has filed a reply brief 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.^[4] 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).

Removal Provisions

Employer challenges the constitutionality of the removal protections afforded ALJs. Employer's Brief at 16-19. It generally argues the removal provisions for ALJs contained 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 v. SEC, 585 U.S., 138 S.Ct. 2044 (2018).^[5] Employer's Brief at 16-19. In addition, it relies on the United States 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 opinion of 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 16-19.

Employer's arguments are not persuasive, as the only circuit court to squarely address this precise issue with regard to Department of Labor (DOL) ALJs has upheld the statute's constitutionality. Decker Coal Co. v. Pehringer, 8 F.4th 1123, 1137-38 (9th Cir. 2021) (5 U.S.C. §7521 is constitutional as applied to DOL ALJs).

3

Further, in rejecting a similar argument raised regarding the removal provisions applicable to Federal Deposit Insurance Corporation (FDIC) ALJs, the United States Court of Appeals for the Sixth Circuit noted that in Free Enterprise Fund^[6] the Supreme Court "took care to omit ALJs from the scope of its holding." Calcutt v. FDIC, 37 F.4th 293, 319 (6th Cir. 2022) (citing Free Enter. Fund, 561 U.S. at 507 n.10). The Sixth Circuit further explained that a party challenging the constitutionality of removal provisions must set forth how the protections in question "specifically caused an agency action in order to be entitled to judicial invalidation of that action." Id. (citing Collins v. Yellen, 141 S.Ct. 1761, 1789 (2021)). Vague, generalized allegations of harm, including the "possibility" that the agency "would have taken different actions" had the ALJ not been "unconstitutionally shielded from removal," are insufficient to establish necessary harm. Id. at 315-16. Employer in this case has not alleged it suffered any harm due to the ALJ's removal protections.

Nor do Seila Law or Arthrex support Employer's argument. In Seila Law, the Supreme 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 because the CFPB was an "independent agency led by a single Director and vested with significant executive power."^[7] 140 S.Ct. at 2201. It did not address ALJs. Finally, in Arthrex, the Supreme Court vacated the Federal Circuit's judgment. 141 S.Ct. at 1970. The Court explained "the unreviewable authority wielded by [Administrative Patent Judges] during inter partes review is incompatible with their appointment by the Secretary to an inferior office." Id. (emphasis added). In contrast, DOL ALJs' decisions are subject to further executive agency review by this Board.

4

Employer has not explained how or why these legal authorities should apply to DOL ALJs or otherwise undermine the ALJ's ability to hear and decide this case. Congressional enactments are presumed to be constitutional and will not be lightly overturned. United States v. Morrison, 529 U.S. 598, 607 (2000) ("Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds."). The Supreme Court has long recognized "[t]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988) (quoting Hooper v. California, 155 U.S. 648, 657 (1895)). Here, Employer does not even attempt to show 5 U.S.C. §7521 cannot be reasonably construed in a constitutionally sound manner. Hosp. Corp. of Am. v. FTC, 807 F.2d 1381, 1392 (7th Cir. 1986) (reviewing court should not "consider far-reaching constitutional contentions presented in [an off-hand] manner"). Thus Employer has not established the removal provisions at 5 U.S.C. §7521 are unconstitutional. Pehringer, 8 F.4th at 1137-38.

Responsible Insurance Carrier

Claimant last worked in coal mine employment for Apogee from 1993 to 1997.^[8]Director's Exhibit 6. Apogee was self-insured through Arch when Claimant last worked for Apogee. Employer's Brief at 34; Director's Response at 2. In 2005, Arch sold Apogee to Magnum Coal (Magnum), and in 2008 Magnum was sold to Patriot Coal Corporation (Patriot). Employer's Brief at 2-3; Director's Response at 2; Director's Exhibit 49 at 31, 34. In 2015, Patriot went bankrupt. Director's Exhibit 32.

Employer does not directly challenge Apogee's designation as the responsible operator. Rather, it argues DOL violated its due process rights by failing to designate Arch as a responsible carrier in the district director's Proposed Decision and Order (PDO) and then seeking to impose liability on Arch at a later time. Employer's Brief at 19-21. In addition, Employer contends DOL did not serve the PDO on Arch. Id.

Next, Employer argues the ALJ erred in finding Arch is the responsible carrier liable for this claim. Employer's Brief at 2-3, 22-25, 32-35. It maintains that when Arch sold Apogee in 2005 and then renewed its self-insurance authorization with DOL in 2006, it excluded Apogee as a covered entity. Id. at 2-3. Therefore Employer contends Arch no longer provided insurance coverage "for any employee of Apogee no matter when they worked." Id. at 2-3. Employer asserts the sale of Apogee to Magnum on December 31,

5

2005, released Arch from liability for the claims of miners who worked for Apogee, and that DOL endorsed this shift of liability. Id.

In addition, Employer argues DOL's issuance of the Black Lung Benefits Act (BLBA) Bulletin No. 16-01^[9] reflects a change in policy wherein DOL began to retroactively impose new liability on self-insured mine operators and bypass traditional rulemaking. Employer's Brief at 32-35. Finally, Employer contends the ALJ abused her discretion in denying its request for discovery regarding BLBA Bulletin No. 16-01. Id. at 26-32.

The Director responds, noting the PDO lists Arch as the responsible carrier and the district director served the PDO on Arch. Director's Response at 13-15. The Director argues the ALJ did not err in finding Apogee is the responsible operator and Arch is the self-insurer for this claim. Id. at 15-18. Moreover, he asserts the ALJ did not abuse her...