Miller v. Pine Branch Coal Sales, Inc.
| Decision Date | 22 October 2018 |
| Docket Number | BRB 18-0323 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | JOHN MILLER Claimant-Respondent v. PINE BRANCH COAL SALES, INCORPORATED and AMERICAN MINING INSURANCE COMPANY Employer/Carrier-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
Appeal of the Decision and Order on Remand of John P. Sellers, III Administrative Law Judge, United States Department of Labor.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for employer/carrier.
Rita A. Roppolo (Kate S. O'Scannlain, Solicitor of Labor Kevin Lyskowski, Acting 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: HALL, Chief Administrative Appeals Judge, BOGGS, BUZZARD, GILLIGAN and ROLFE, Administrative Appeals Judges.
DECISION AND ORDER EN BANC
Employer/carrier (employer) appeals the Decision and Order on Remand (2015-BLA-05642) of Administrative Law Judge John P. Sellers III, awarding benefits on a claim filed pursuant to the provisions of the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012) (the Act). This case involves a subsequent claim[1] filed on May 27, 2014, and is before the Board for the second time.
Initially, in a Decision and Order dated June 27, 2017, the administrative law judge credited claimant with twenty years of coal mine employment, [2] at least fifteen years of which took place at surface mines in conditions substantially similar to those in an underground mine. He further found that the new evidence established that claimant is totally disabled by a respiratory or pulmonary impairment pursuant to 20 C.F.R. §718.204(b)(2). The administrative law judge therefore found that claimant invoked the Section 411(c)(4) presumption[3] and established a change in an applicable condition of entitlement. 20 C.F.R. §725.309(c). He further determined that employer failed to rebut the Section 411(c)(4) presumption, and awarded benefits accordingly.
Employer filed an appeal with the Board, arguing that the administrative law judge lacked the authority to hear and decide the case because he had not been properly appointed in a manner consistent with the Appointments Clause of the Constitution, Art. II § 2, cl. 2.[4]
In response, the Director, Office of Workers' Compensation Programs (the Director), noted that the Secretary of Labor, exercising his power as the Head of a Department under the Appointments Clause, ratified the appointment of all Department of Labor (DOL) administrative law judges on December 21, 2017. Consequently, the Director asserted that actions taken by DOL administrative law judges after that date were not subject to challenge on Appointments Clause grounds. However, because Judge Sellers issued his decision in this case before December 21, 2017, the Director conceded that the Secretary's ratification did not foreclose the Appointments Clause argument raised by employer. Director's Motion to Remand at 2. The Director therefore requested that the Board vacate the administrative law judge's Decision and Order and remand the case for the administrative law judge to "reconsider his decision and all prior substantive and procedural actions taken in regard to this claim, and ratify them if [he] believes such action is appropriate." Id. at 3. The Board granted the Director's motion, and remanded the case with instructions to "reconsider the substantive and procedural actions previously taken and to issue a decision accordingly." Miller v. Pine Branch Coal Sales, Inc., BRB No. 17-0555 BLA (Mar. 9, 2018) (Order) (unpub.).
The administrative law judge issued a Decision and Order on Remand awarding benefits on March 29, 2018. In that decision, the administrative law judge stated, Decision and Order on Remand at 2. He then set forth, in full, his "original Decision and Order Awarding Benefits, now ratifie d . . . ." Id. at 2-35.
On appeal, employer again contends that the administrative law judge lacked the authority to hear and decide this case. Employer argues that the administrative law judge's decision should be vacated and the case remanded for reassignment to a properly appointed administrative law judge. The Director responds that, in light of recent case law from the Supreme Court, the Board should vacate the administrative law judge's decision and remand the case "for reassignment to a new, properly appointed, [administrative law judge.]" Director's Brief at 1.
The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed if it is rational, supported by substantial evidence, and in accordance with applicable law. 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). The Board reviews questions of law de novo. See Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1116 (6th Cir. 1984).
After employer filed its brief in this appeal, the Supreme Court decided Lucia v. SEC, 585 U.S., 138 S.Ct. 2044 (2018), in which the Court held that Securities and Exchange Commission administrative law judges are inferior officers under the Appointments Clause of the Constitution. Lucia, 138 S.Ct. at 2055. The Court further held that, because the petitioner timely raised his challenge to the constitutional validity of the appointment of the administrative law judge (who had not been appointed in conformance with the Appointments Clause), the petitioner was entitled to a new hearing before a new and properly appointed administrative law judge. Id.
In light of Lucia, the Director acknowledges that "in cases in which the Appointments Clause challenge has been timely raised, and in which the [administrative law judge] took significant actions while not properly appointed the challenging party is entitled to the remedy specified in Lucia, a new hearing before a new (and properly appointed) administrative law judge." Director's Brief at 3. Although the administrative law judge, on remand, followed the Board's directive to reconsider the substantive and procedural actions that he had previously taken...
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