Williams v. Patrick
| Decision Date | 27 September 2022 |
| Docket Number | BRB 21-0393,21-0394 |
| Parties | TAMMY WILLIAMS (o/b/o RALPH A. PATRICK, deceased miner) v. VIRGIL RALEIGH COAL COMPANY, INCORPORATED and DARREN A. PATRICK (survivor of RALPH PATRICK) Claimants-Respondents and OLD REPUBLIC INSURANCE, COMPANY 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UNPUBLISHED OPINION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 Jason A Golden, Administrative Law Judge, United States Department of Labor.
James D. Holliday, Hazard, Kentucky, for the Claimants.
Michael A. Pusateri (Greenberg Traurig LLP), Washington D.C. for Employer and its Carrier.
William M. Bush (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 JONES, Administrative Appeals Judges.
DECISION AND ORDER
Employer and its Carrier (Employer) appeal the Decision and Order Awarding Benefits (2013-BLA-06129 and 2019-BLA-06258) of Administrative Law Judge (ALJ) Jason A. Golden rendered on claims filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case involves a subsequent miner's claim[1] filed on May 13 2012, and a survivor's claim[2] filed on October 26, 2018.
Because there was no evidence the Miner had complicated pneumoconiosis, the ALJ found Claimant could not invoke the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3) (2018). 20 C.F.R. §718.304. The ALJ credited the Miner with 13.92 years of coal mine employment and therefore found Claimant also could not invoke the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2018).[3] Considering entitlement under 20 C.F.R. Part 718, the ALJ found the Miner had legal pneumoconiosis and a totally disabling respiratory or pulmonary impairment due to pneumoconiosis. Thus, he concluded Claimant established a change in applicable condition of entitlement and further awarded benefits.[4] 20 C.F.R. §§718.202(a), 718.204(b)(2), (c); 20 C.F.R. §725.309(c).
On appeal, Employer argues the ALJ lacked the authority to hear and decide the case because he was not appointed consistent with the Appointments Clause of the Constitution, Art. II § 2, cl. 2.[5] It also argues the removal provisions applicable to ALJs rendered his appointment unconstitutional. On the merits, it asserts the ALJ erred in finding Claimant established legal pneumoconiosis and disability due to legal pneumoconiosis. Claimant responds in support of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), responds, urging the Benefits Review Board to reject Employer's constitutional challenges. Employer 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.[6] 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 ALJ's Decision and Order[7] and remand this 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 2-9; Employer's Reply Brief 1-8. 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 ALJ Golden's prior appointment. Employer's Brief at 2-9; Employer's Reply Brief at 1-9.
The Director responds asserting the ALJ had the authority to decide this case because the Secretary's ratification brought his appointment into compliance. Director's Brief at 3-10. He also maintains Employer failed to demonstrate the Secretary's actions ratifying the appointment were improper. Id. We agree with the Director's positions.
An appointment by the Secretary need only be "evidenced by an open, unequivocal act." Director's Brief at 5 (quoting 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 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). Under the "presumption of regularity," courts presume public officers have properly discharged their official duties, with "the burden shifting 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 Golden and indicated he gave "due consideration" to his appointment in his December 21, 2017 Letter to ALJ Golden. The Secretary further acted in his "capacity as head of the Department of Labor" when ratifying the appointment of ALJ Golden "as an Administrative Law Judge." Id. In so doing, the Secretary unequivocally accepted responsibility for the ALJ's prior appointment.[10]
Employer does not assert the Secretary had no "knowledge of all the material facts" but generally speculates he did not make a "detached and considered affirmation" when he ratified ALJ Golden's appointment. Employer's Brief at 2-9; Employer's Reply Brief at 1-8. 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.[11] See Edmond v. United States, 520 U.S. 651, 654-66 (1997) (); Advanced Disposal, 820 F.3d at 604-05 ().[12] Moreover, although Employer filed a Motion to Hold Claim in Abeyance in light of Lucia on October 6, 2020, the ALJ properly denied Employer's motion as he took no action on the claims before his appointment was ratified on December 21, 2017. Decision and Order at 3. Unlike the situation in Lucia, in which the judge had presided over a hearing and issued an initial decision while he was not properly appointed, here the ALJ took no action that could affect his ability "to consider the matter as though he had not adjudicated it before." Lucia, 138 S.Ct. at 2055. We thus decline to remand this case for a new hearing before a different ALJ. Noble v. B & W Res., Inc., 25 BLR 1-267, 1-271-72 (2020).
Employer also challenges the constitutionality of the removal protections afforded DOL ALJs. Employer's Brief at 18-22; Employer's Reply Brief at 5-8. Employer generally asserts 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), 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). Id.
Employer's arguments are without merit, as the only circuit court to squarely address this precise issue has upheld the statute's constitutionality with respect to DOL ALJs. 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 noted that in Free Enterprise[13] 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...
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