Matney v. Youngs Branch Coal Co.
| Decision Date | 24 February 2022 |
| Docket Number | 20-0341 BLA |
| Parties | WILLIAM M. MATNEY Claimant-Respondent v. YOUNGS BRANCH COAL COMPANY, INCORPORATED and SUN COAL COMPANY, 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 |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits of Theresa C Timlin, Administrative Law Judge, United States Department of Labor.
Samuel B. Petsonk (Petsonk, PLLC), Beckley, West Virginia, for Claimant.
Charity A. Barger (Street Law Firm, LLP), Grundy, Virginia for Employer and its Carrier.
Erik Vande Stouwe (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 GRESH, Administrative Appeals Judges.
Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Theresa C. Timlin's Decision and Order Awarding Benefits (2018-BLA-05211) rendered on a subsequent claim filed on March 1, 2016, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act).[1]
The ALJ credited Claimant with 11.4 years of coal mine employment and thus found Claimant could not invoke the rebuttable 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, [3] the ALJ accepted the parties' stipulation that Claimant is totally disabled and thereby found he established a change in applicable condition of entitlement under 20 C.F.R. §725.309(c). The ALJ further found Claimant established he is totally disabled due to legal pneumoconiosis and awarded benefits. 20 C.F.R. §§718.202(a), 718.204(b), (c).
On appeal, Employer argues the ALJ lacked authority to preside over the case because she has not been appointed in a manner consistent with the Appointments Clause of the Constitution, Art. II § 2, cl. 2, and that the removal provisions applicable to the ALJ render her appointment unconstitutional.[4] On the merits, Employer argues the ALJ erred in finding it is the responsible operator, erred in concluding the destruction of Claimant's prior claim record did not prevent Employer from mounting a meaningful defense to this subsequent claim, erred in admitting Claimant's testimony regarding years in which he was paid cash for his coal mine employment, and erred in calculating a coal mine employment history of 11.4 years. Additionally, Employer challenges the ALJ's findings that Claimant has legal pneumoconiosis and is totally disabled by it. The Director, Office of Workers' Compensation Programs (the Director), filed a limited response urging the Benefits Review Board to reject Employer's assertions concerning the ALJ's appointment, its opportunity to mount a meaningful defense, and the admission of Claimant's testimony about the length of his coal mine employment.[5] The Director, however, urges the Board to remand the case for further consideration of the responsible operator issue. Claimant filed a limited response, generally urging affirmance of the award and specifically addressing Employer's argument that the ALJ erred in admitting Claimant's length of coal mine employment testimony. Employer filed a reply to the Director's response.[6]
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.[7] 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, 362 (1965).
Employer urges the Board to vacate the Decision and Order 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).[8] Employer's Brief at 6-10; Employer's Reply at 2-6. It acknowledges the Secretary of Labor (Secretary) ratified the prior appointments of all sitting Department of Labor (DOL) ALJs on December 21, 2017, [9] but maintains the ratification was insufficient to cure the constitutional defect in the ALJ's prior appointment.[10] Employer's Brief at 8-10; Employer's Reply at 4-6.
The Director argues the ALJ had the authority to decide this case because the Secretary's ratification brought her appointment into compliance with the Appointments Clause. Director's Brief at 7-9. We agree with the Director's argument.
An appointment by the Secretary need only be "evidenced by an open, unequivocal act." Director's Brief at 8 (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 Hosp. Co., 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). Moreover, 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 Timlin and gave "due consideration" to her appointment. Secretary's December 21, 2017 Letter to ALJ Timlin. The Secretary further acted in his "capacity as head of the Department of Labor" when ratifying the appointment of ALJ Timlin "as an Administrative Law Judge." Id.
Employer generally asserts there is "no indication" that the Secretary "conducted the personal vetting process that is expected in a constitutionally authorized selection of an inferior officer" but does not allege the Secretary had no "knowledge of all the material facts" when he ratified ALJ Timlin's appointment. Employer's Brief at 9-10. Employer therefore has not overcome the presumption of regularity. Advanced Disposal, 820 F.3d at 603-04 (lack of detail in express ratification is insufficient to overcome the presumption of regularity); see also Butler, 244 F.3d at 1340. The Secretary thus properly ratified the ALJ's appointment.[11] See Edmond v. United States, 520 U.S. 651, 654-66 (1997) (); Advanced Disposal, 820 F.3d at 604- 05 ().
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 service. Employer's Brief at 8. 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 ALJ Timlin's appointment, which we have held constituted a valid exercise of his authority, thereby bringing her 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 10-12; Employer's Reply at 6-9. Employer generally argues the removal provisions in the Administrative Procedure Act, 5 U.S.C. §7521, are unconstitutional, citing Justice Breyer's separate opinion and the Solicitor General's argument in Lucia. Employer's Brief at 11. Employer 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...
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