Last month, the U.S. Department of Labor’s Benefits Review Board issued its first precedential case of 2018.
Miller v. Pine Branch Coal Sales, Inc., No. 18-0323 BLA (slip opinion available here), is a narrow decision about the effect of the Appointments Clause litigation in Lucia v. SEC in black lung benefits cases. Miller is simply a reflection of the Supreme Court’s remedial holding in Lucia and does not address the bigger questions about what Lucia means for federal black lung cases.
As discussed previously on this blog, in June 2018, the U.S. Supreme Court held in Lucia v. SEC, 138 S. Ct. 2044 (2018), that Administrative Law Judges (ALJs) of the Security & Exchange Commission (SEC) are “Officers” under the Appointments Clause of the U.S. Constitution. Remedially, the Supreme Court also held that to “cure the constitutional error, another ALJ (or the Commission itself) must hold the new hearing to which Lucia is entitled.” Id. at 2055.
The Board’s recent decision in Miller reflects the Supreme Court’s remedial holding and concerns a narrow issue that arose as Lucia was working its way through the Court.
For some background, the Appointments Clause was not litigated in the black lung benefits system until the issue arose through prominent litigation in the SEC system—in particular, the Tenth Circuit’s December 2016 decision in Bandimere v. SEC, 844 F.3d 1168 (10th Cir. 2016), followed by the Department of Justice’s 2017 change of position in Lucia v. SEC. For example, it appears that the Benefits Review Board (which was created in 1972) did not need to even use the phrase “Appointments Clause” until February 2018.
During the period between when DOJ changed its position in Lucia (November 2017) and when the Supreme Court decided Lucia (June 2018), when a party in a black lung benefits proceeding before the Benefits Review Board would raise an Appointments Clause challenge, the Director, OWCP would respond by filing a motion with the Board to remand the case back to the ALJ for a new decision. The premise of these motions was that because, in December 2017, the Secretary of Labor ratified the hiring of incumbent DOL ALJs, the ratified ALJs could reconsider their decisions, and if appropriate, reissue them with minimal disruption.
Miller reflects this timeline.
On June 27, 2017, ALJ Sellers awarded benefits to Mr. Miller via a 35-page decision. The Employer responded by appealing to the Board and raising the Appointments Clause.
Following the Secretary of Labor’s December 21, 2017 ratification of ALJ Sellers’s appointment, the Director, OWCP then filed a motion to remand.
The Board granted this motion on March 9, 2018, ordering the ALJ to “reconsider the substantive and procedural actions previously taken and to issue a decision accordingly.”
On March 29, 2018, ALJ Seller issued another 35-page page, renewed award saying: “I have reviewed all substantive and procedural actions I have previously taken. Upon review, I ratify them all.” ALJ Sellers then repeated his analysis from the prior year.
The Employer filed another appeal. In the second appeal, the Board held via its published, en banc decision:
Miller is a remarkably narrow opinion and little more than a reflection of the Supreme Court’s remedial holding in Lucia. Although the Director, OWCP and the Board thought that they had found a way to respond to Appointments Clause issues with minimal disruption, the solution proved inconsistent with the Supreme Court’s June 2018 holding. Once the Supreme Court issued its decision, it was apparent that in cases where an improperly hired ALJ issued a final decision and a party made a timely Appointments Clause challenge, then the party was entitled to a remand so that a different ALJ could be assigned to the case. Miller reflects this—nothing more, nothing less.
What Miller does not decide are the bigger issues related to the Appointments Clause, such as:
- Was the Secretary of Labor’s ratification of incumbent ALJs sufficient to make these ALJs proper constitutional officers going forward? Even if ratification cured the hiring problem, do ALJs’ removal protections cause constitutional problems? (For some context, although these issues were raised in both Lucia and Miller, neither the Supreme Court nor the Board has chosen to address them on the merits.)
- Exactly what is necessary to have a timely Appointments Clause challenge in the black lung benefits system? Must a challenge be raised before the ALJ—as most issues must—before the Board will grant relief? And then before the Benefits Review Board, may such a challenge be presented other than via the standard means of an opening brief?
- What if ALJ Sellers had not issued a final decision but issued some interlocutory decision or had presided over a hearing—with or without any rulings? In other words, exactly what actions by improperly appointed ALJs trigger the Lucia remand right?
- Once a new ALJ is assigned, may the new ALJ simply reinstate a prior ALJ’s decision along the lines of how ALJ Sellers did on March 29, 2018? Or must the new ALJ issue a decision that acts as if the prior decision does not exist? That is, is the problem in Miller simply that the ratified decision was by ALJ Sellers, or was the problem that it was no more than a ratified decision?
These major questions all remain open following Miller. Perhaps these or other questions will result in the Board’s next published decision. Until then, as Miller demonstrates, the Supreme Court’s decision in Lucia continues to create delays and uncertainty in the black lung benefits system.
Pine Branch Coal Sales, Inc. was represented by Laura Metcoff Klaus, Esq. of Greenberg Traurig LLP.
Mr. Miller was not represented before the Board. Before the ALJ he was represented by Robin Napier, a nonattorney representative from Stone Mountain Health Services.
The Director, OWCP was represented by Rita A. Roppolo, Esq. of the Solicitor of Labor’s team.