Joseph Forrester Trucking v. Dir., Office of Workers’ Comp. Programs

987 F.3d 581

JOSEPH FORRESTER TRUCKING ; American Resources Insurance Company, Petitioners,

v.DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, United States Department of Labor; Arthur Davis, Respondents.

H & P Coal Company, Inc.; American Resources Insurance Company, Petitioners,

v.Director, Office of Workers’ Compensation Programs, United States Department of Labor; Cecil Mae Mabe, on behalf of the Estate of Bill Wayne Mabe, Respondents.

Lockworth, Inc. ; American Resources Insurance Company, Petitioners,

v.Director, Office of Workers’ Compensation Programs, United States Department of Labor; Loyal E. Tackett, Respondents.

Nos. 20-3329

3331

3332

United States Court of Appeals, Sixth Circuit.

Argued: January 14, 2021

Decided and Filed: February 4, 2021

ARGUED: Mark E. Solomons, GREENBERG TRAURIG LLP, Washington, D.C., for Petitioners. William M. Bush, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent. Evan B. Smith, APPALRED LEGAL AID, Prestonsburg, Kentucky, for Respondent Mabe. ON BRIEF: Mark E. Solomons, Laura Metcoff Klaus, GREENBERG TRAURIG LLP, Washington, D.C., for Petitioners. William M. Bush, Gary K. Stearman, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent. Evan B. Smith, APPALRED LEGAL AID, Prestonsburg, Kentucky, for Respondent Mabe. Jacob Thomas Moak, MOAK & NUNNERY, P.S.C., Prestonsburg, Kentucky, for Respondent Davis. Joseph E. Wolfe, Victoria S. Herman, WOLFE WILLIAMS & REYNOLDS, Norton, Virginia, for Respondent Tackett.

Before: KETHLEDGE, THAPAR, and READLER, Circuit Judges.

CHAD A. READLER, Circuit Judge.

In Lucia v. SEC , the Supreme Court held that administrative law judges (ALJs) at the Securities Exchange Commission are "Officers of the United States" for purposes of the Appointments Clause in Article II of the Constitution. ––– U.S. ––––, 138 S. Ct. 2044, 201 L.Ed.2d 464 (2018). As "Officers of the United States," those ALJs are subject to the Appointments Clause's exclusive methods of appointment: by the President, by a department head, or by a court of law. U.S. CONST. art. II, § 2, cl. 2. When an ALJ holds her post in violation of the Appointments Clause, and a party timely objects, any adjudication she presided over must be vacated and assigned for rehearing before a different, properly appointed ALJ. 138 S. Ct. at 2055.

In resolving these lingering questions regarding ALJ appointments, Lucia left open at least one other: when is an Appointments Clause challenge timely? With nearly two thousand ALJs spanning agencies across the Executive Branch, that question has been raised with some frequency in Lucia ’s wake. Today's case is one example.

As part of a consolidated appeal, three coal mine operators challenge an adverse black lung benefits determination made by the Department of Labor's Benefits Review Board. We must resolve whether a litigant forfeits an Appointments Clause challenge before the Board (and, as a consequence, before us) by not pressing the issue during earlier proceedings before an ALJ. Honoring the Board's customary requirement that issues be raised first with the ALJ, we hold that the operators failed to preserve their Appointments Clause challenge. Accordingly, we deny the petition for review.

I.

In separate proceedings, Department of Labor ALJs awarded benefits under the Black Lung Benefits Act to three miners formerly employed by the coal mine operators before us today as petitioners. During a subsequent appeal to the Benefits Review Board, the operators, citing Lucia , argued for the first time that the ALJs who presided over the benefits determination hearings were appointed in violation of the Appointments Clause. The Board, however, understood Lucia to require "timely" Appointments Clause challenges, meaning those challenges are subject to applicable issue preservation doctrines like waiver and forfeiture. Invoking those doctrines, the Board concluded that the mine operators forfeited their Lucia arguments by failing to raise them before the ALJ, and otherwise affirmed the respective ALJ determinations. Before this Court, the operators seek fresh ALJ hearings solely on the basis of their Appointments Clause challenge.

II.

As a prelude to examining today's legal question, we begin with an overview of the black lung benefits administrative process. The Black Lung Benefits Act serves to compensate mine workers (and their survivors) who become totally disabled by pneumoconiosis, a debilitating breathing problem commonly known as "black lung disease." 30 U.S.C. §§ 901 – 44 ; Eastover Mining Co. v. Williams , 338 F.3d 501, 508 (6th Cir. 2003). The Act creates an adversarial dispute resolution system to determine whether a miner is eligible for benefits under the Act and, if so, whether a coal mine operator should be responsible for paying those benefits, 30 U.S.C. § 932 ; 20 C.F.R. § 725.494, or whether the benefits instead will be paid by the Black Lung Disability Trust Fund, 26 U.S.C. § 9501. To initiate the dispute resolution process, a miner or survivor files a claim with a Department of Labor district director, who in turn is empowered to "take such action as is necessary to develop, process, and make determinations with respect to the claim." 20 C.F.R. § 725.401. Following an informal adjudication, during which the "responsible operator" can submit evidence responding to the claim, id. § 725.410, the district director issues a "proposed decision and order" either awarding or denying benefits. Id. § 725.418. That decision becomes final if no party objects within 30 days. Id. § 725.419.

A timely objection entitles the objecting party to a formal hearing before an ALJ. Id. § 725.421. In advance of the hearing, each objecting party must "specify the findings and conclusions [of the district director] with which the ... party disagrees," id. § 725.419, teeing up those issues for an ALJ, who is charged with "resolv[ing] contested issues of fact or law" de novo, id. § 725.455. To do so, the ALJ conducts a hearing in accordance with the Administrative Procedure Act. See 33 U.S.C. § 919(d). During the hearing, the ALJ admits evidence, examines witnesses, and considers pleadings and briefs. 20 C.F.R. §§ 725.351(b), 725.455. Following the hearing, the ALJ issues a benefits determination, one that becomes final if no party seeks reconsideration or appeals to the Benefits Review Board. Id. § 725.479.

While an appeal from an ALJ's decision could formerly be lodged in the district court, under current law, a party seeking review of an ALJ's determination must submit a notice of appeal to the Board coupled with a petition for review "list[ing] the specific issues to be considered." Id. §§ 802.210, 802.211. The Board may "affirm, modify, vacate or reverse" the decision, or remand the case back to the ALJ for further consideration. Id. § 802.404.

From there, a party may file with the appropriate federal circuit court a petition for review of the Board's decision. 33 U.S.C. § 921(c) ; 20 C.F.R. § 802.410. In this Circuit, the Board is treated like the "district court[ ] it replaced," Crockett Colleries, Inc. v. Barrett , 478 F.3d 350, 358 (6th Cir. 2007) (Rogers, J., concurring). We review the Board's conclusions of law de novo and its factual findings under a substantial evidence standard. Karst Robbins Coal Co. v. Dir. , OWCP , 969 F.3d 316, 323 (6th Cir. 2020) (citations omitted).

III.

Now a word about issue preservation. Whether in proceedings before an administrative body or a court of law, a party customarily forfeits secondary review of issues not properly raised in an underlying phase of the proceeding. Hormel v. Helvering , 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941). That preservation principle applies with equal force in today's case, which started as an administrative proceeding, and has now migrated to federal court. Sims v. Apfel , 530 U.S. 103, 108–09, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). Out of respect to "[s]imple fairness to those who are engaged in the tasks of administration, and to litigants," we customarily will "not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice." United States v. L.A. Tucker Truck Lines, Inc. , 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952). Enforcing these and other preservation principles, as we routinely do, serves the "twin purposes" of "protecting administrative agency authority and promoting judicial efficiency." McCarthy v. Madigan , 503 U.S. 140, 145, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992).

One common preservation rule is "issue exhaustion." Generally speaking, an issue exhaustion requirement obliges a party to challenge an issue it disputes during an initial proceeding. Sims , 530 U.S. at 109, 120 S.Ct. 2080. Doing so allows the issue to be passed upon by the initial decisionmaker in the first instance, which also serves to inform any subsequent review. Id . Traditionally, we have applied this requirement across the legal spectrum, including in the context of an Appointments Clause challenge. Although an alleged Appointments Clause violation presents a "structural" challenge arising under the Constitution, the issue is neither jurisdictional, Island Creek Coal Co. v. Wilkerson , 910 F.3d 254, 256 (6th Cir. 2018), nor afforded "special entitlement to review," Freytag v. C.I.R. , 501 U.S. 868, 893, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring in part and concurring in judgment). Appointments Clause challenges are thus "subject to ordinary principles of waiver and forfeiture." Jones Bros., Inc. v. Sec'y of Labor , 898 F.3d 669, 678 (6th Cir. 2018). As a result, parties must press the argument at the proper stages as a prerequisite to obtaining subsequent review on that basis. L.A. Tucker Truck Lines , 344 U.S. at 36–37, 73 S.Ct. 67.

IV.

With these background principles in place, we turn to the operators’ Appointments Clause challenge to...