McLain v. Old Ben Coal Co.

Decision Date14 November 2022
Docket NumberBRB 21-0274 BLA
CourtCourt of Appeals of Black Lung Complaints


Appeal of the Decision and Order Awarding Benefits of Larry A Temin, Administrative Law Judge, United States Department of Labor.

Michael A. Pusateri (Greenberg Traurig LLP), Washington D.C., for Employer and its Carrier.

Jeffrey S. Goldberg (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: BUZZARD, ROLFE and GRESH, Administrative Appeals Judges.



Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Larry A. Temin's Decision and Order Awarding Benefits (2016-BLA-05053) rendered on a claim filed on October 28, 2010,[1] pursuant to the Black Lung Benefits Act as amended, 30 U.S.C. §§901-944 (2018) (Act).

The ALJ credited Claimant with 18.75 years of underground coal mine employment and found he has a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.204(b)(2). Thus, the ALJ determined Claimant invoked 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). He further found Employer did not rebut the presumption and awarded benefits.

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] and the removal provisions applicable to ALJs render his appointment unconstitutional. Employer further argues its lack of access to Claimant's prior claim record constitutes a due process violation and thus liability for benefits should transfer to the Black Lung Disability Trust Fund (Trust Fund). It also contends liability should transfer to the Trust Fund because the district director's failure to timely identify the proper surety precludes its liability. On the merits of entitlement, Employer asserts the ALJ erred in finding Claimant established total disability, and thus erred in finding he invoked the Section 411(c)(4) presumption. It finally argues the ALJ erred in finding it did not rebut the presumption.[4] Claimant has not filed a response brief. The Director, Office of Workers' Compensation (the Director), argues Employer's due process and constitutional arguments have no merit. In a reply brief, Employer reiterates its contentions.

The Benefits Review 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 and Grylls Assocs., Inc., 380 U.S. 359 (1965).

Appointments Clause

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).[6] Employer's Brief at 12-20; Employer's Reply Brief at 18. Although the Secretary of Labor ratified the prior appointments of all sitting Department of Labor (DOL) ALJs on December 21, 2017,[7] Employer maintains the ratification was insufficient to cure the constitutional defect in the ALJ's prior appointment.[8] Id. The Director argues the ALJ had authority to decide this case because the Secretary's ratification brought his appointment into compliance with the Appointments Clause. Director's Brief at 8-10. He also maintains Employer failed to rebut the presumption of regularity that applies to the actions of public officers like the Secretary. Id. We agree with the Director's arguments.

An appointment by the Secretary need only be "evidenced by an open, unequivocal act." Director's Brief at 9 n.5 (quoting Marbury v. Madison, 5 U.S. 137, 157 (1803)). 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. v. NLRB, 857 F.3d 364, 372 (D.C. Cir. 2017); 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 Judge Temin and indicated he gave "due consideration" to his appointment. Secretary's December 21, 2017 Letter to ALJ Temin. The Secretary further stated he was acting in his "capacity as head of the Department of Labor" when ratifying the appointment of ALJ Temin "as an [ALJ]." Id.

Employer does not assert the Secretary had no knowledge of all the material facts but generally speculates the Secretary's "signing" individual letters "does not reflect genuine, let alone thoughtful, consideration of potential candidates for these positions." [9]Employer's Reply Brief at 3. Thus, Employer has not overcome the presumption of regularity. Advanced Disposal, 820 F.3d at 603-04 (lack of detail in express ratification insufficient to overcome the presumption of regularity); see also Butler, 244 F.3d at 1340. The Secretary 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 valid where Secretary of Transportation issued a memorandum "adopting" assignments "as judicial appointments of [his] own"); Advanced Disposal, 820 F.3d 592, 604-05 (National Labor Relations Board's retroactive ratification appointment of a Regional Director with statement it "confirm[ed], adopt[ed], and ratif[ied] nunc pro tunc" its earlier invalid actions was proper). Consequently, we reject Employer's argument that this case should be remanded for a new hearing before a different ALJ.

Removal Provisions

Employer challenges the constitutionality of the removal protections afforded DOL ALJs. Employer's Brief at 16-20; Employer's Reply Brief at 5-8. It 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 14-20; Employer's Reply Brief 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), as well as the United States Court of Appeals for the Federal Circuit's holding in Arthrex, Inc. v. Smith &Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), vacated, 594 U.S., 141 S.Ct. 1970 (2021). Employer's Brief at 17-20; Employer's Reply Brief at 6-8.

We reject Employer's arguments 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, 1137-38 (9th Cir. 2021) (5 U.S.C. §7521 is constitutional as applied to DOL ALJs).

Further, in rejecting a similar argument raised with respect to the removal provisions applicable to Federal Deposit Insurance Corporation (FDIC) ALJs, the United States Court of Appeals for the Sixth Circuit noted that in Free Enterprise Fund [10] 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. Calcutt, 37 F.4th at 315-16. Employer in this case has not alleged it suffered any harm due to the ALJ's removal protections.

Nor does Arthrex support Employer's argument. In Arthrex, the Supreme Court explained "the unreviewable authority wielded by [Administrative Patent Judges] during inter partes review is incompatible with their appointment by the Secretary to an inferior office." 141 S.Ct. 1985 (emphasis added). In contrast, DOL ALJs' decisions are subject to further executive agency review by this Board.

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 lightly overturned. United States v. Morrison, 529 U.S. 598,...

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