Decker Coal Co. v. Pehringer

8 F.4th 1123

DECKER COAL COMPANY, Petitioner,

v.Jerry PEHRINGER; Director, Office of Workers’ Compensation Programs, Respondents.

No. 20-71449

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2021 Portland, Oregon

Filed August 16, 2021

John S. Lopatto III (argued), Washington, D.C., for Petitioner.

Joshua M. Salzman (argued), Attorney; Civil Division, United States Department of Justice, Washington, D.C.; Ann Marie Scarpino (argued) and Sarah M. Hurley, Attorneys; Gary K. Stearman, Counsel for Appellate Litigation; Jennifer L. Feldman, Deputy Associate Solicitor; Barry H. Joyner, Associate Solicitor; Kate O'Scannlain, Solicitor of Labor; Office of the Solicitor, United States Department of Labor, Washington, D.C.; for Respondent Director, Office of Workers’ Compensation Programs.

Brad A. Austin (argued), Wolfe Williams & Reynolds, Norton, Virginia, for Respondent Jerry Pehringer.

Before: Kim McLane Wardlaw, Richard C. Tallman, and Andrew D. Hurwitz, Circuit Judges.

TALLMAN, Circuit Judge:

The Powder River Basin produces the most coal of any region in the United States. Trains transport coal daily from the Basin to continental coal-fired generating stations and to Pacific Northwest coal export terminals. The Basin comprises millions of acres of land in northeast Wyoming and southeast Montana. It is home to relatively few people but holds vast reserves of coal and large surface coal mines. The Decker coal mine in southeast Montana was one such mine in the Basin. It was where former coal miner and Decker Coal Company (Decker) employee Jerry Pehringer worked throughout his entire coal mining career and where the story of this dispute began.

Congress established a federal program designed to compensate coal mine workers who contract Black Lung Disease because of their work in the mines. Decker petitions for review of a Benefits Review Board (BRB) order affirming the decision of a Department of Labor (DOL) administrative law judge (ALJ) awarding benefits to Pehringer under the Black Lung Benefits Act, 30 U.S.C. §§ 901 – 944 (BLBA). Decker principally challenges the process by which ALJs can be removed. Decker argues that the governing statute, 5 U.S.C. § 7521, infringes upon the President's inherent Article II removal power by impermissibly insulating ALJs from termination through two levels of "for-cause" employment protection. Because of this alleged constitutional defect, Decker asks us to invalidate the award and remand to a different ALJ.

We must decide whether the statute is constitutional with respect to DOL ALJs. If the statutory removal structure passes constitutional muster, we then must decide whether the ALJ here acted within his discretion in denying Decker's motion for reconsideration and whether substantial evidence supports his decision awarding benefits under the BLBA. For reasons specific to the statutory scheme at issue, we hold that 5 U.S.C. § 7521 is constitutional as applied to DOL ALJs. We further hold that the ALJ did not abuse his discretion in denying Decker's post-hearing motion and that substantial evidence supports the ALJ's award of benefits. Accordingly, we deny the petition for review.

I

A

Decker employed Pehringer at its open-pit surface mine near Decker, Montana, from September 1977 until June 1999. There were several periods where Pehringer did not work, including during a roughly three-year-long strike beginning in late 1987, and a shorter period following a neck injury in December 1995. But for most of his coal mining career, Pehringer was regularly exposed to coal dust—so much so that he would leave a blanket on his car seats, undress in his basement, and shake off his dirty clothes outside his home before bathing. He testified that conditions were "bad," that "[i]t was just a constant dust storm all the time," and that coal dust "lingered in the air down [in the pit]."

Pehringer worked primarily as a heavy equipment operator. He operated bulldozers, coal scrapers, and coal haulers, cleaning coal seams, trapping coal, and filling traps to load coal trains. Most vehicle cabs did not have air conditioning. In the warm months, the heat inside the scraper and dozer cabs forced Pehringer to operate the machinery with the door opened. In the winter, coal dust would still creep into the cabs even with the doors closed. Conditions remained like this until the last two years of his coal mining career, when he was able to work in newer, upgraded equipment with air-conditioned cabs.

After being laid off in 1999, Pehringer was awarded Social Security total disability benefits. He never worked again. On November 7, 2014, a little over a month before his sixty-fifth birthday, Pehringer filed his claim for black lung benefits with the DOL, citing his severe chronic obstructive pulmonary disease (COPD). Barbara Cahill, MD, conducted a pulmonary examination in April 2015, pursuant to 30 U.S.C. § 923(b), and determined that "Pehringer is 100% impaired from his COPD." Dr. Cahill found that the causes of the COPD were: "smoking & dust-related." She further opined that Pehringer's coal "dust exposure and smoking are significant contributors to his COPD impairment."

B

A district director from the DOL Office of Workers’ Compensation Programs (OWCP) issued a proposed decision and order awarding Pehringer BLBA benefits on March 8, 2016. Decker timely appealed this administrative decision, and the district director transferred the claim to the DOL's Office of Administrative Law Judges on June 20, 2016, for a hearing. The contested claim was assigned to ALJ John P. Sellers, III, whom DOL officials previously selected for service from an Office of Personnel Management competitive service roster.¹

On June 26, 2018, the ALJ held a merits hearing on the claim in Sheridan, Wyoming. Decker offered just one exhibit, a transcript of Pehringer's telephonic deposition, taken only days before. The ALJ admitted the transcript along with the Director's exhibits, including Dr. Cahill's opinion and records from Pehringer's treating physician, Dr. Ackerman. The ALJ permitted Decker to conduct 60 days of post-hearing evidentiary development. But Decker filed nothing more.

Based on the admitted evidence, the ALJ found that Pehringer worked as a coal miner for 17.03 years. The ALJ weighed the medical opinion evidence, pulmonary function tests, and arterial blood gas studies and found that it "overwhelmingly demonstrates that [Pehringer] has a totally disabling respiratory or pulmonary impairment." Although finding Pehringer's history of smoking significant, the ALJ gave Dr. Cahill's opinion full probative weight that Pehringer's condition was also caused by exposure to coal dust, finding it "both well-reasoned and well-documented" and that "her conclusions [were] consistent with the objective evidence she reviewed and the weight of the evidence as a whole." The ALJ concluded that Pehringer successfully invoked the rebuttable presumption under 30 U.S.C. § 921(c)(4) —thus entitling him to benefits—as he worked for at least fifteen years² in substantially similar conditions to underground coal mines and was totally disabled from pneumoconiosis (which has both a medical and a statutory definition).

The ALJ then determined that Decker successfully rebutted the fifteen-year presumption as to clinical (or medical) pneumoconiosis, based on Dr. Cahill's medical opinion and Pehringer's chest x-ray, which was inconclusive as to any of the Black Lung Diseases commonly recognized by the medical community. However, the ALJ found that Decker failed to rebut the presumption of legal (or statutory) pneumoconiosis, based on the weight of the medical evidence, the COPD diagnosis, Dr. Cahill's opinion, Dr. Ackerman's treating records, and absence of any medical rebuttal evidence from Decker. As to total disability causation, the judge found that Decker submitted no evidence to show Pehringer's COPD "did not arise out of, or in connection with, employment in a coal mine." Accordingly, the ALJ awarded Pehringer BLBA benefits on February 26, 2019.

Decker filed a joint motion for reconsideration and motion to reopen the record on March 11, 2019, challenging the ALJ's invocation of the fifteen-year presumption, seeking to admit records related to Pehringer's employment, and requesting the ALJ modify his award of benefits. The ALJ denied the motion on April 11, 2019, because—despite his granting two requests for extensions of time to submit evidence following the hearing on June 26, 2018—Decker never submitted additional evidence before the record closed nor filed a post-hearing brief.

Decker timely appealed to the BRB, contesting the ALJ's decision on the post-hearing motion, the constitutionality of Judge Sellers’ appointment, and the constitutionality of the statutory removal protections. The BRB affirmed the ALJ's decision. It determined that the Secretary's ratification of the ALJ's appointment cured any Appointments Clause problem. The BRB then found 5 U.S.C. § 7521 constitutional, distinguishing Lucia v. SEC , ––– U.S. ––––, 138 S. Ct. 2044, 201 L.Ed.2d 464 (2018), and Free Enterprise Fund v. Public Company Accounting Oversight Board , 561 U.S. 477, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010). It also concluded that Decker did not advance an argument about Arthrex, Inc. v. Smith & Nephew, Inc. , 941 F.3d 1320 (Fed. Cir. 2019), but rather requested only a speculative remand. Further, the BRB agreed with the Director that the ALJ acted within his discretion by treating Decker's post-hearing motion as a request for reconsideration and denying the request to admit new evidence after he had given Decker "ample time to develop the evidence necessary to defend the claim." Finally, the BRB held that substantial evidence supported the ALJ's determination that Pehringer had at least fifteen years of qualifying coal mine employment.

Decker timely petitioned for review.

II

We have jurisdiction to review a final order of the BRB under 33 U.S.C. §...