Island Creek Coal Co. v. Wilkerson

• Decision Date: 03 December 2018
• Docket Number: No. 18-3147,18-3147
• Citation: 910 F.3d 254
• Parties: ISLAND CREEK COAL COMPANY, Petitioner, v. Jay H. WILKERSON; Director, Office of Workers’ Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

910 F.3d 254

ISLAND CREEK COAL COMPANY, Petitioner,

v.Jay H. WILKERSON; Director, Office of Workers’ Compensation Programs, United States Department of Labor, Respondents.

No. 18-3147

United States Court of Appeals, Sixth Circuit.

Decided and Filed: December 3, 2018

ON BRIEF: William S. Mattingly, JACKSON KELLY, PLLC, Lexington, Kentucky, for Petitioner. Brent Yonts, YONTS, SHERMAN & DRISKILL, PSC, Greenville, Kentucky, for Respondent Wilkerson. Daniel Aguilar, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Gary K. Stearman, Jeffrey S. Goldberg, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent.

Before: BATCHELDER, SUTTON, and WHITE, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

The Benefits Review Board awarded benefits to Jay Wilkerson under the Black Lung

Benefits Act. The Island Creek Coal Company asks us to vacate that award on two grounds: The administrative law judge lacked authority to hear the case under the Appointments Clause, and the evidence does not support the award. Because Island Creek forfeited its constitutional claim by failing to raise it in its opening brief and because substantial evidence supports the award, we deny the petition for review.

I.

Jay Wilkerson mined coal for over 25 years. In 1994, he retired from the Island Creek Coal Company’s operation at the Crescent mine, where he had worked most recently as an electrician. The job required strenuous activity. He often lifted pieces of equipment that weighed as much as 70 pounds, and his tools alone weighed 15 pounds. Throughout his quarter-century career, his work frequently exposed him to coal dust, a reality that generated several health problems.

In 2012, Wilkerson filed an application for benefits under the Black Lung

Benefits Act. The Act provides compensation to miners disabled by pneumoconiosis, "a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment." 30 U.S.C. §§ 902(b), 922(a)(1). Administrative Law Judge Timothy McGrath handled the hearing, at which Wilkerson and Island Creek presented conflicting medical evidence. Judge McGrath granted Wilkerson’s application, and the Benefits Review Board affirmed.

The company filed a petition for review.

II.

Island Creek forfeited its Appointments Clause challenge. U.S. Const. art. II, § 2, cl. 2. Appellants must raise any challenge to a district court or administrative decision in their opening brief. Golden v. Comm’r , 548 F.3d 487, 493 (6th Cir. 2008). The company did not do that. In its opening brief, it identified one issue for the court to consider at the outset: Whether the administrative law judge "rationally explained how the conflicting evidence presented carried the burden to establish total disability?" Pet. Br. 3. And in the rest of that brief, it said nothing about the authority of administrative law judges in this area. Only in its reply brief did it raise the Appointments Clause issue. That was one brief too late. Time, time, and time again, we have reminded litigants that we will treat an "argument" as "forfeited when it was not raised in the opening brief." Golden , 548 F.3d at 493 ; see Sanborn v. Parker , 629 F.3d 554, 579 (6th Cir. 2010) ; Priddy v. Edelman , 883 F.2d 438, 446 (6th Cir. 1989).

Appointments Clause challenges, true enough, arise under the U.S. Constitution, making them special in one sense. But that does not make them special in this sense. We are not alone in refusing to consider constitutional challenges when the appellant failed to raise them in the opening brief. See, e.g. , Am. Trim, LLC v. Oracle Corp. , 383 F.3d 462, 478 (6th Cir. 2004) ; Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd. , 574 F.3d 748, 755 (D.C. Cir. 2009). The obligation to identify the issues on appeal in the opening brief applies to arguments premised on the loftiest charter of government as well as the most down to earth ordinance.

None of the explanations for excusing a forfeiture applies. This challenge does not affect our jurisdiction. As we recently explained, Appointments Clause challenges are "not jurisdictional and thus are subject to ordinary principles of waiver and forfeiture." Jones Bros., Inc. v. Sec’y of Labor , 898 F.3d 669, 678 (6th Cir. 2018).

Nor has Island Creek identified any "exceptional circumstances" for looking the other way. Freytag v. Comm’r , 501 U.S. 868, 894, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring in part and concurring in the judgment); see also id. at 879, 111 S.Ct. 2631 (majority opinion) (holding that the Supreme Court may excuse forfeiture in "rare cases"). That we entertained an Appointments Clause challenge in Jones Brothers does not help Island Creek. In that case, we dealt with the subsidiary question whether the claimant must preserve his argument in the administrative process. Today’s barrier is that Island Creek did not raise the claim in its opening brief here . No such problem infected the Jones Brothers case.

It makes no difference that Island Creek submitted a stipulation to the administrative law judge that it might contest, "for appellate purposes, a challenge to the constitutionality of the Act and regulations, as applied." Joint Pre-Trial Stipulations. The salient reality is that the company did not raise the issue when it mattered most: in its opening brief in the Sixth Circuit. A forfeiture in our court does not become forgivable based on potential preservations of the issue in the administrative process.

(We need not decide whether the company’s stipulation preserved its Appointments Clause challenge before the agency. The vagueness of the statement casts doubt on that possibility under Jones Brothers . See 898 F.3d at 678 (noting that the petitioner identified a specific Appointments Clause challenge before the agency); cf.Frank H. Easterbrook, Presidential Review , 40 Case W. Res. L. Rev. 905 (1989) (exploring the Executive Branch’s responsibility to interpret and comply with the Constitution). But we need not resolve the point today.)

Island Creek also cannot hold the line on the ground that its Appointments Clause challenge lacked merit until the Supreme Court decided Lucia v. Securities & Exchange Commission , ––– U.S. ––––, 138 S.Ct. 2044, 201 L.Ed.2d 464 (2018). No precedent prevented the company from bringing the constitutional claim before then. Lucia itself noted that existing case law "says everything necessary to decide this case." Id. at 2053. The Tenth Circuit, before Lucia , held that administrative law judges were inferior officers. Bandimere v. SEC , 844 F.3d 1168, 1188 (10th Cir. 2016). And many other litigants pressed the issue before Lucia . See, e.g. , Tilton v. SEC , 824 F.3d 276, 281 (2d Cir. 2016) ; Bennett v. SEC , 844 F.3d 174, 177–78 (4th Cir. 2016) ; Burgess v. FDIC , 871 F.3d 297, 299 (5th Cir. 2017) ; Jones Bros. , 898 F.3d at 672. That the Supreme Court once denied certiorari in a similar Appointments Clause case adds nothing because such decisions carry no precedential value. See Teague v. Lane , 489 U.S. 288, 296, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). All in all, Island Creek forfeited this Appointments Clause challenge, and we see no reasoned basis for forgiving the forfeiture.

III.

That brings us to the merits. To qualify for benefits under the Black Lung

Benefits Act, a miner must establish four facts. Fact one: The miner has pneumoconiosis. Fact two: The disease arose "out of coal mine employment." Fact three: The miner is "totally disabled." Fact four: The "pneumoconiosis contributes to the total disability." 20 C.F.R. § 725.202(d)(2).

Administrative regulations and case law guide the process further. If the claimant lacks sufficient evidence of pneumoconiosis

, the administrative law judge may presume he suffers from the disease if he worked for 15 years at a qualifying coaling mine and suffers "a totally disabling respiratory or pulmonary impairment." Id. § 718.305; see 30 U.S.C. § 921(c)(4) ; Brandywine Explosives & Supply v. Dir., Office of Workers’ Comp. Programs , 790 F.3d 657, 662 (6th Cir. 2015). A miner has a totally disabling impairment if he cannot perform his "usual coal mine work" and cannot engage in gainful employment "requiring the skills or abilities comparable to those of any employment in a mine" where he previously worked. 20 C.F.R. § 718.204(b)(1). Once a miner establishes a presumptive entitlement to benefits, the employer may rebut the presumption by showing that the miner does not have pneumoconiosis or that his impairment did not arise out of employment at a coal mine. See 30 U.S.C. § 921(c)(4).

The Benefits Review Board examines the administrative law judge’s factual findings for substantial evidence. Although we examine the Board’s decision with fresh eyes, that requires us to ensure only that the administrative law judge relied on substantial evidence. See Greene v. King James Coal Min., Inc. , 575 F.3d 628, 633 (6th Cir. 2009).

Judge McGrath’s reasoned, 40-page opinion passes this test. Wilkerson worked for more than 15 years at a qualifying mine, and substantial evidence showed that he suffered total disability due to a respiratory or pulmonary impairment. All of Wilkerson’s pulmonary function tests

produced qualifying values and suggested that he was disabled, while none of the arterial blood gas studies produced qualifying results. Faced with the conflicting medical evidence, Judge McGrath turned to the four doctors who testified: Drs. Chavda, Baker, Selby, and Tuteur. See 20 C.F.R. § 718.204(b)(2)(iv). He credited testimony from Dr. Chavda, discounted the three others for legitimate reasons, and concluded that Wilkerson suffered from a disability. Then he reasonably concluded that Island Creek could not rebut the presumption that Wilkerson suffered from coal-mine-induced pneumoconiosis.

Island Creek trains its challenge to these conclusions on "the finding of total disability." Pet. Br. 9. But each ground does not...