The biggest legal issue in federal black lung benefits litigation right now concerns a relatively obscure part of the U.S. Constitution—the Appointments Clause. This past summer, the U.S. Supreme Court held that when Administrative Law Judges (“ALJs”) who were not hired consistent with the Appointments Clause decide cases, then parties can challenge those decisions and get a new hearing before a different, properly hired ALJ. Lucia v. SEC, 138 S. Ct. 2044 (2018). See posts here, here & here.
Because ALJs decide many federal black lung cases, since June 21, 2018 a pivotal question has been exactly when must a party have raised its Appointments Clause challenge to be entitled to a “do over” under Lucia.
This month, two U.S. Courts of Appeals weighed in on this issue in black lung cases. Both courts rejected coal companies’ arguments and held that the companies raised their Appointments Clause challenges too late.
Island Creek Coal Co. v. Wilkerson, No. 18-3147, 910 F.3d 254 (6th Cir. Dec. 3, 2018)
On December 3, 2018, the Sixth Circuit issued a published decision in Island Creek Coal Co. v. Wilkerson, No. 18-3417 (opinion here).
In that case, Island Creek Coal raised its Appointments Clause challenge in its reply brief before the Sixth Circuit—the last brief generally filed in a case, but, due to the timing of briefing in the case and the Supreme Court’s June 2018 decision in Lucia—the first brief after Lucia was decided.
The Sixth Circuit held that this “was one brief too late. Time, time, and time again, we have reminded litigants that we will treat an argument as forfeited when it was not raised in the opening brief.” (internal quotations omitted).
The constitutional nature did not save Island Creek Coal: “The obligation to identify the issues on appeal in the opening brief applies to arguments premised on the loftiest charter of government as well as the most down to earth ordinance.“
Wilkerson reaffirmed that Appointments Clause challenges are not jurisdictional and thus normal rules of forfeiture apply.
The Sixth Circuit also distinguished its opinion earlier this year in Jones Brothers, Inc. v. Secretary of Labor, 898 F.3d 669 (6th Cir. 2018). Jones Brothers is a nuanced opinion holding that a company’s Appointments Clause challenge could proceed even though it was forfeited. Wilkerson held that Jones Brothers did not control because “In that case, we dealt with the subsidiary question whether the claimant must preserve his argument in the administrative process. Today’s barrier is that Island Creek did not raise the claim in its opening brief here.“ (emphasis in original).
Much more could be said about Wilkerson and Jones Brothers but that issue transitions into the next case involving some brothers…
Turner Brothers, Inc. v. Conley, No. 17-9545, ___ F. App’x ___ (10th Cir. Dec. 11, 2018)
This week the Tenth Circuit also rejected a Lucia issue for being raised too late, but the Tenth Circuit went a step further.
In Turner Brothers, Inc. v. Conley (opinion here) the company raised its Lucia challenge in a slightly different way. The schedule of briefing in Conley made it so that briefing was complete before the Supreme Court’s decision in Lucia. After the Supreme Court’s decision, the company filed a motion before the Tenth Circuit seeking a remand based on Lucia.
This week the Tenth Circuit rejected that motion, holding that “Turner Brothers’ failure to raise this argument with the Board constitutes failure to exhaust administrative remedies and deprives the Court of Appeals of jurisdiction to hear this matter.” (internal quotation omitted).
Conley rejected the company’s argument that neither the Board nor the ALJ had authority to rule on a constitutional issue. “We need not address this argument because Turner Brothers does not make any constitutional challenges to the governing statutes or regulations, or to the Board’s award of benefits.” This suggests that any limit on DOL adjudicators’ authority to rule on constitutional issues would not apply to Appointments Clause issues.
Both Wilkerson and Conley limit the ability of coal companies to use Lucia to vacate black lung awards but Conley does so in a broader way. For the Tenth Circuit, raising the issue for the first time in an opening brief before the Court of Appeals wouldn’t be good enough. They want to see the issue raised before the Department of Labor’s judges. Under Conley’s reasoning, an Appointments Clause needed to be properly raised before the Board—giving more predictability by reducing the number of potential Lucia remands.
Other Issues Decided in Wilkerson and Conley
The Appointments Clause is the main issue that these cases present, but the courts also decided other issues when affirming the coal miners’ awards of benefits.
Other Issues in Wilkerson
Wilkerson held that the ALJ properly found Mr. Wilkerson to be disabled. The Sixth Circuit (in an opinion by Judge Sutton that was joined by Judges Batchelder and White) succinctly discussed the following points:
- The fact that Mr. Wilkerson’s last PFT produced qualifying results before—but not after—the use of bronchodilators, did not undermine the ALJ’s disability finding because bronchodilators do not resolve the question of disability and prior PFTs had postbronchodilator results that qualified.
- The ALJ properly concluded that Dr. Tuteur failed to explain why his diagnosis that Mr. Wilkerson had a “moderate obstructive pulmonary impairment alone does not prevent [Wilkerson] from performing his usual [job], including lifting 60-70 pounds daily.”
- The ALJ properly credited Dr. Sanjay Chavda’s disability opinion even though Dr. Chavda did not rely on lung volume tests. “Because nothing required Dr. Chavda to do a lung volume test, Judge McGrath did not mention its absence. Faulting an administrative law judge for every silence would take us perilously close to allowing courts to reweigh the medical evidence on appeal, something we may not do.“
- The ALJ properly discounted the opinions of Dr. Tuteur and Dr. Selby.
Other Issues in Conley
Conley affirmed the ALJ’s finding that Mr. Conley’s employment qualified him for the fifteen-year presumption. The Tenth Circuit (in an opinion by Judge Holmes that was joined by Judges O’Brien and Carson) discussed the following related issues:
- The ALJ properly found that Mr. Carson’s work as a core driller qualified as work as a “miner” as defined by the Black Lung Benefits Act because (1) even if he was not exposed to coal dust, “Exposure to coal dust is irrelevant to whether Mr. Conley’s work qualified as work as a coal miner” and (2) the ALJ’s finding that Mr. Conley’s core-drilling work was necessary to the extraction of coal was supported by substantial evidence.
- Even if the ALJ erred in calculating the length of Mr. Conley’s coal-mine employment (as both Turner Brothers and the Director, OWCP argued), the Court would not consider this issue because no one raised it before the Board.
- The ALJ properly found that Mr. Conley’s surface-mine work was “substantially similar” to dust conditions in underground-mine work and Turner Brothers’ purported distinction between “coal dust” and “silica and surface dust” was contrary to the regulation’s holistic inquiry into “coal-mine dust.”
Mr. Wilkerson was represented by Brent Yonts of Yonts, Sherman & Driskill, PSC of Greenville, Kentucky
Island Creek Coal Co. was represented by William S. Mattingly and Jeffrey S. Soukup of Jackson Kelly PLLC of Lexington, Kentucky
Mr. Conley was represented by Brad Austin, Victoria S. Herman & Joe Wolfe of Wolfe, Williams & Reynolds of Norton, Virginia.
Turner Brothers, Inc. & Kentucky Central Insurance Co. were represented by Tighe Estes and Brett Stonecipher of Fogle Keller Walker Law PLLC of Lexington, Kentucky
In Wilkerson, the Director, OWCP was represented by Daniel Aguilar, Jeffrey S. Goldberg, and Gary K. Stearman of the Department of Labor’s Solicitor’s Office. In Conley, the Director, OWCP was represented by Sarah Hurley from the Solicitor’s Office.