Johnson v. Harman Mining Corp.
| Decision Date | 31 August 2021 |
| Docket Number | BRB 20-0220 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | EDDIE D. JOHNSON Claimant-Respondent v. HARMAN MINING CORPORATION c/o HARMAN DEVELOPMENT CORPORATION and OLD REPUBLIC INSURANCE COMPANY Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits of Larry A Temin, Administrative Law Judge, United States Department of Labor.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for Employer and its Carrier.
William M. Bush (Seema Nanda, 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.
Before: BUZZARD, ROLFE and GRESH, Administrative Appeals Judges.
DECISION AND ORDER
Employer and its Carrier (Employer) appeal Administrative Law Judge Larry A. Temin's Decision and Order Awarding Benefits (2017-BLA-05220) rendered on a claim filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C §§901-944 (2018) (Act). This case involves a subsequent claim filed on October 3, 2015.[1]
The administrative law judge credited Claimant with 13.82 years of coal mine employment, and thus found he could not invoke the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act. 30 U.S.C. §921(c)(4) (2018).[2]
Considering entitlement under 20 C.F.R. Part 718, he found Claimant established a totally disabling respiratory or pulmonary impairment, thereby establishing a change in an applicable condition of entitlement. 20 C.F.R. §§718.204(b)(2), 725.309. He further found Claimant established legal pneumoconiosis and total disability due to pneumoconiosis. 20 C.F.R. §§718.202(a), 718.204(c). Thus he awarded benefits.
On appeal, Employer argues the administrative law judge 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, Art. II §2, cl. 2.[3] It also argues the removal provisions applicable to administrative law judges rendered his appointment unconstitutional. It further asserts he erred in finding it is the responsible operator. With respect to benefits, it argues he erred in admitting a supplemental medical report from Dr. Ajjarapu into the record. Finally, it argues he erred in finding Claimant established legal pneumoconiosis, total disability, and disability causation.[4]
Claimant has not filed a response brief. The Director, Office of Workers' Compensation Programs (the Director), has filed a limited response, urging the Benefits Review Board to reject Employer's constitutional challenges to the administrative law judge's appointment and its evidentiary argument. In a reply brief, Employer reiterates 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 and 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 constitutionally appointed administrative law judge pursuant to Lucia v. SEC, 585 U.S., 138 S.Ct 2044 (2018).[6] Employer's Brief at 12-16. It acknowledges the Secretary of Labor (Secretary) ratified the prior appointments of all sitting Department of Labor (DOL) administrative law judges on December 21, 2017, but maintains the ratification was insufficient to cure the constitutional defect in the administrative law judge's prior appointment.[7] Id.
We agree with the Director's position that Employer forfeited its Appointments Clause argument by failing to raise it when the case was before the administrative law judge.[8] Director's Brief at 5. The Appointments Clause issue is "non-jurisdictional" and thus subject to the doctrines of waiver and forfeiture. See Lucia, 138 S.Ct. at 2055 (); Joseph Forrester Trucking v. Director, OWCP [Mabe], 987 F.3d 581, 588 (6th Cir. 2021); Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018) () (citation omitted). Lucia was decided over five months before the case was assigned to the administrative law judge, over eight months before the hearing in this case, and over one year and seven months before the administrative law judge issued his Decision and Order Awarding Benefits.
Employer, however, failed to raise its argument while the case was before the administrative law judge. At that time, he could have addressed Employer's arguments and, if appropriate, taken steps to have the case assigned for a new hearing before a different administrative law judge. Kiyuna v. Matson Terminals Inc., 53 BRBS 9, 11 (2019). Instead, Employer waited to raise the issue until after the administrative law judge issued an adverse decision. Because Employer has not raised any basis for excusing its forfeiture of the issue, we reject its argument that this case should be remanded to the Office of Administrative Law Judges (OALJ) for a new hearing before a different administrative law judge. Glidden Co. v. Zdanok, 370 U.S. 530, 535 (1962) (); Mabe, 987 F.3d at 588; Jones Bros. v. Sec'y of Labor, 898 F.3d 669, 677 (6th Cir. 2018); Powell v. Serv. Emps. Int'l, Inc., 53 BRBS 13, 15 (2019).
Notwithstanding Employer's forfeiture, we also conclude there is no merit to its argument that the Secretary's ratification was insufficient to cure the constitutional defect in the administrative law judge's prior appointment. Employer's Brief at 12-16; Employer's Reply Brief at 10-15. An appointment by the Secretary need only be "evidenced by an open, unequivocal act." 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 at the time of ratification the authority to take the action to be ratified; 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 administrative law judges to hear and decide cases under the Act. 30 U.S.C. §932a; see also 5 U.S.C. §3105. Thus, at the time he ratified the administrative law judge's appointment, the Secretary had the authority to take the action to be ratified. Wilkes-Barre, 857 F.3d at 372; Advanced Disposal, 820 F.3d at 603.
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 administrative law judges in a single letter. Rather, he specifically identified Judge Temin and gave "due consideration" to his appointment.[9] Secretary's December 21, 2017 Letter to Administrative Law Judge Temin. The Secretary further acted in his "capacity as head of the Department of Labor" when ratifying the appointment of Judge Temin "as an Administrative Law Judge." Id.
Employer does not assert the Secretary had no "knowledge of all the material facts" or did not make a "detached and considered judgement" when he ratified Judge Temin's appointment. Employer therefore has not overcome the presumption of regularity. Advanced Disposal, 820 F.3d at 603-04 (); see also Butler, 244 F.3d at 1340. The Secretary thus properly ratified the administrative law judge's appointment. See Edmond v. United States, 520 U.S. 651, 654-66 (1997) (); Advanced Disposal, 820 F.3d at 604-05 (National Labor Relations Board's retroactive ratification of the appointment of a Regional Director with statement it "confirm[ed], adopt[ed], and ratif[ied] nunc pro tunc" all its earlier actions was proper).
We further reject Employer's argument that Executive Order 13843, which removes administrative law judges from the competitive civil service, supports its Appointments Clause argument because incumbent administrative law judges 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...
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