Johnson v. Racheal Mining Co.
| Decision Date | 29 October 2021 |
| Docket Number | BRB 20-0289 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | RAY JOHNSON Claimant-Respondent v. RACHEAL MINING COMPANY, INCORPRATED 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UNPUBLISHED OPINION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 Steven B Berlin, Administrative Law Judge, United States Department of Labor.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for Employer and its Carrier.
Cynthia Liao (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: BOGGS, Chief Administrative Appeals Judge, BUZZARD and JONES, Administrative Appeals Judges.
Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Steven B. Berlin's Decision and Order Awarding Benefits (2016-BLA-05119) rendered on a subsequent claim filed on February 2, 2015, [1] pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act).
The ALJ found Claimant established 14.63 years of coal mine employment and thus 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 did not establish clinical pneumoconiosis, but established legal pneumoconiosis in the form of a respiratory impairment arising out of coal mine employment. 20 C.F.R. §718.202(a). Therefore he found Claimant established a change in an applicable condition of entitlement. 20 C.F.R. §725.309(c). He further found Claimant established a totally disabling respiratory impairment due to pneumoconiosis and awarded benefits. 20 C.F.R. §718.204(b)(2), (c).
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, Art. II § 2, cl. 2.[3] It also argues the removal provisions applicable to ALJs rendered his appointment unconstitutional. It further contends he erred in finding Racheal Mining Co., Inc. (Racheal) is the responsible operator. In addition, it contends the ALJ erred in finding Claimant established the existence of legal pneumoconiosis and total disability due to pneumoconiosis.[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 ALJ's appointment. He concedes, however, that remand is necessary because the ALJ did not consider relevant evidence when finding Racheal is the responsible operator. Employer has filed a reply brief reiterating 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 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 ALJ pursuant to Lucia v. SEC, 585 U.S., 138 S.Ct. 2044 (2018).[6] Employer's Brief at 10-14; Employer's Reply Brief at 3-5. It acknowledges the Secretary of Labor (Secretary) ratified the prior appointment 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 11-14; Employer's Reply Brief at 3-5.
The Director argues the ALJ had the authority to decide this case because the Secretary's ratification brought his appointment into compliance. Director's Brief at 11-13. He also maintains Employer failed to rebut the presumption of regularity that applies to the actions of public officers like the Secretary. Id. at 13. We agree with the Director's positions.
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 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. Thus, at the time he ratified the ALJ'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 ALJs in a single letter. Rather, he specifically identified Judge Berlin and gave "due consideration" to his appointment.[8] Secretary's December 21, 2017 Letter to ALJ Berlin. The Secretary further acted in his "capacity as head of the Department of Labor" when ratifying the appointment of Judge Berlin "as an [ALJ]." 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 Berlin'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 ALJ'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 ALJs from the competitive civil service, supports its Appointments Clause argument because incumbent ALJs remain in the competitive civil service. Employer's Reply Brief at 10-11. 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 Judge Berlin's appointment, which we have held constituted a valid exercise of his authority, bringing 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 DOL ALJs. Employer's Brief at 15-19; Employer's Reply Brief at 5-9. 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. Id. It also 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 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). Id.
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, F.4th, No. 20-71449, 2021 WL 3612787 at *10-11 (9th Cir. Aug. 16, 2021) ().
Further 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...
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