Appeals of the Decision and Order Awarding Benefits, Order Awarding Attorney's Fees and Costs, and Order Denying Reconsideration of Order Awarding Attorney's Fees and Costs of Paul C. Johnson, Jr., District Chief Administrative Law Judge, United States Department of Labor, and the Proposed Order Supplemental Award Fee for Legal Services of Debbie Quick, Claims Examiner, United States Department of Labor.
Joseph E. Wolfe and Brad A. Austin (Wolfe Williams & Reynolds), Norton, Virginia, for Claimant.
Anne L. Rife (Midkiff, Muncie & Ross, P.C.), Bristol, Tennessee, for Employer and its Carrier.
Steven Winkelman (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.
DECISION AND ORDER
Employer and its Carrier (Employer) appeal District Chief Administrative Law Judge (ALJ) Paul C. Johnson, Jr.'s Decision and Order Awarding Benefits (2015-BLA-05627) on a claim filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). Employer also appeals ALJ Johnson's Order Awarding Attorney's Fees and Costs (ALJ's Fee Award) and Order Denying Reconsideration of Order Awarding Attorney's Fees and Costs (Order Denying Reconsideration) and Claims Examiner Debbie Quick's (the district director) September 25, 2020 Proposed Order Supplemental Award Fee for Legal Services (District Director's Fee Award). [ 1 ] This case involves a miner's claim filed on August 11, 2014, and is before the Benefits Review Board for the second time. [ 2 ]
The ALJ found Employer, Hosanna, LLC (Hosanna), is the responsible operator and American Mining Insurance Company (American Mining) is the responsible carrier. On the merits of Claimant's entitlement to benefits, he found the evidence did not establish the existence of complicated pneumoconiosis and thus Claimant could not invoke the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3). 30 U.S.C. §921(c)(3) (2018). However, the ALJ found Claimant established 20.83 years of qualifying coal mine employment and a totally disabling respiratory or pulmonary impairment and, thus, invoked the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act. [ 3 ] 30 U.S.C. §921(c)(4) (2018). The ALJ further found Employer did not rebut the presumption and awarded benefits. Subsequently, the ALJ awarded Claimant's counsel attorney's fees and costs and the district director awarded him attorney's fees.
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. [ 4 ] It further asserts the removal provisions applicable to the
ALJ rendered his appointment unconstitutional. In addition, it challenges the validity of the Section 411(c)(4) presumption as part of the Affordable Care Act (ACA). Furthermore, Employer argues liability for the payment of benefits should transfer to the Black Lung Disability Trust Fund because the ALJ erred in finding American Mining is the responsible carrier. It also alleges the ALJ violated its due process by denying its request to obtain discovery from the Department of Labor (DOL) regarding the science set forth in the preamble to the 2001 revised regulations, while relying on the preamble when weighing the credibility of Employer's experts. On the merits, Employer contends the ALJ erred in finding Claimant is totally disabled, thereby invoking the Section 411(c)(4) presumption, and that it did not rebut the presumption. [ 5 ]
Claimant responds in support of the award of benefits. The Director responds, urging the Board to reject Employer's constitutional challenges, its argument that American Mining is not the responsible carrier, its due process argument, its challenge to the validity of the Section 411(c)(4) presumption and its specific contention that the ALJ failed to properly consider Claimant's non-respiratory conditions prior to finding him totally disabled. Employer replied to Claimant's and the Director's briefs, reiterating its contentions on appeal. In a separate appeal, Employer challenges the ALJ's and district director's fee awards. Claimant responds in support of the ALJ's fee award. The Director did not file a response to Employer's appeals of the fee awards.
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).
Appointments Clause
Employer urges the Board to vacate the ALJ's Decision and Order awarding benefits and remand the case to be heard by a different, constitutionally appointed ALJ. Employer's Brief at 14-18 (citing Lucia v. SEC, 585 U.S., 138 S.Ct. 2044 (2018)). It acknowledges the Secretary of Labor (Secretary) ratified the prior appointments of all sitting DOL ALJs on December 21, 2017, [ 7 ] but maintains the ratification was insufficient to cure the constitutional defect in the ALJ's prior appointment. [ 8 ] Id.
The Director argues the ALJ had the authority to decide this case because the Secretary's ratification brought his appointment into compliance with the Appointments Clause. Director's Brief at 17-19. 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 18 (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 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 Johnson and gave "due consideration" to his appointment. Secretary's December 21, 2017 Letter to District Chief ALJ Johnson. The Secretary further acted in his "capacity as head of the Department of Labor" when ratifying the appointment of ALJ Johnson "as a District Chief Administrative Law Judge." Id.
Employer generally asserts the Secretary's ratification did not reflect a "genuine, let alone thoughtful consideration" but does not allege the Secretary had no "knowledge of all the material facts" when he ratified ALJ Johnson's appointment. Employer's Brief at 16. 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. [ 9 ] 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 were valid where Secretary of Transportation issued a memorandum "adopting" assignments "as judicial appointments of [his] own"); Advanced Disposal, 820 F.3d at 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).
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 14-15. 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 Johnson's appointment, which we have held constituted a valid exercise of his .