Martinez v. Peabody N.M. Servs.
| Decision Date | 28 September 2022 |
| Docket Number | BRB 20-0558 BLA,21-0065 BLA |
| Parties | JUAN MARTINEZ Claimant-Respondent v. PEABODY NEW MEXICO SERVICES, LLC and PEABODY ENERGY CORPORATION 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UNPUBLISHED OPINION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 and the Attorney Fee Order of Christopher Larsen, Administrative Law Judge, United States Department of Labor.
Joseph E. Wolfe and Brad A. Austin (Wolfe Williams & Reynolds) Norton, Virginia, for Claimant.
Scott A. White (White & Risse, LLC), Arnold, Missouri, for Employer and its Carrier.
Christian P. Barber and Sarah M. Hurley (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, ROLFE and JONES, Administrative Appeals Judges.
DECISION AND ORDER
Employer and its Carrier (Employer) appeal[1] Administrative Law Judge (ALJ) Christopher Larsen's Decision and Order (2019-BLA-05598) awarding benefits in a claim filed on January 13, 2014, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). Employer also appeals the ALJ's Attorney Fee Order granting Claimant's counsel fees and expenses.
The ALJ found Claimant established 13.5 years of coal mine employment, and therefore found Claimant 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 Claimant's entitlement under 20 C.F.R. Part 718, the ALJ found Claimant established he is totally disabled due to pneumoconiosis and awarded benefits. 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. The ALJ subsequently awarded Claimant's counsel attorney fees in the amount of $10,362.50 and $3,737.60 in expenses.
On appeal, Employer argues the ALJ lacked 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 further asserts the removal provisions applicable to the ALJ rendered his appointment unconstitutional. On the merits, it argues the ALJ erred in finding Claimant entitled to benefits. Finally, it challenges the ALJ's attorney fee award as excessive. Claimant responds in support of the award of benefits and asserts the attorney fee order is reasonable. The Director, Office of Workers' Compensation Programs (the Director), has filed a limited response, urging the Board to reject Employer's constitutional challenges to the ALJ's appointment and its challenge to the ALJ's use of the preamble when evaluating the experts' opinions. Employer filed a reply reiterating its arguments.[4]
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 Assocs., Inc., 380 U.S. 359 (1965).
Employer urges the Board to vacate the award and remand the case to be heard by a different, constitutionally appointed ALJ pursuant to Lucia v. SEC, 585 U.S., 138 S.Ct. 2044 (2018).[6] Employer's Brief at 19-20; Employer's Reply at 1-2. 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 20-25; Employer's Reply at 1-2. The Director argues 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. We agree with the Director's position.
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)). Further, 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). Ratification 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 on the challenger to demonstrate 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. 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 ALJ Larsen and gave "due consideration" to his appointment. Secretary's December 21, 2017 Letter to ALJ Larsen. The Secretary further acted in his "capacity as head of the Department of Labor" when ratifying the appointment of Judge Larsen "as an [ALJ]." Id. In so doing, the Secretary unequivocally accepted responsibility for the ALJ's prior appointment.
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 Larsen's appointment.[8] 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) (appointment of civilian members of the United States Coast Guard Court of Criminal Appeals was valid because the Secretary of Transportation issued a memorandum "adopting" assignments "as judicial appointments of [his] own"); Advanced Disposal, 820 F.3d at 604-05 (). Consequently, we reject Employer's argument that this case should 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 20; Employer's Reply at 2-4. 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 in Lucia. Employer's Brief at 20, 22; Employer's Reply at 3-4. 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). Employer's Brief at 20, 22.
Employer's arguments are not persuasive 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) ().
Further, in rejecting a similar argument regarding the removal provisions applicable to Federal Deposit Insurance Corporation (FDIC) ALJs, the United States Court of Appeals for the Sixth Circuit, within whose jurisdiction this case arises, noted that in Free Enterprise[9] 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." Calcutt, 37 F.4th at 315. 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 any harm whatsoever.
Nor does Seila Law support Employer's argument. 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 led by a single Director and vested with significant executive power."[10] 140 S.Ct. at 2201. It did not address ALJs.
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...
To continue reading
Request your trial