K & R Contractors, LLC v. Keene

86 F.4th 135

K & R CONTRACTORS, LLC, Petitioner, v. Michael KEENE; Director, Office of Workers' Compensation Programs,United States Department of Labor, Respondents.Pratik A. Shah, Court-Assigned Amicus Counsel.

No. 20-2021

United States Court of Appeals, Fourth Circuit

Argued: October 29, 2021

Decided: November 7, 2023

On Petition for Review of an Order of the Benefits Review Board. (19-0242 BLA)

ARGUED: Charity Ann Barger, STREET LAW FIRM, LLP, Grundy, Virginia, for Petitioner. Amanda Lee Mundell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent Director, Office of Workers' Compensation Programs. Brad Anthony Austin, WOLFE WILLIAMS & REYNOLDS, Norton, Virginia, for Respondent Michael Keene. ON BRIEF: Thomas R. Scott, Jr., STREET LAW FIRM, LLP, Grundy, Virginia, for Petitioner. Elena S. Goldstein, Deputy Solicitor of Labor, Barry H. Joyner, Associate Solicitor, Jennifer L. Feldman, Deputy Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation, Cynthia Liao, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent. Pratik A. Shah, Z.W. Julius Chen, Juliana C. DeVries, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Court-Appointed Amicus Counsel.

Before HARRIS, QUATTLEBAUM, and RUSHING, Circuit Judges.

Petition for review denied by published opinion. Judge Rushing wrote the opinion, in which Judge Harris and Judge Quattlebaum joined.

RUSHING, Circuit Judge:

An administrative law judge (ALJ) working for the United States Department of Labor (DOL) ordered K & R Contractors, LLC to pay living miner's benefits to its former employee Michael Keene pursuant to the Black Lung Benefits Act. The Benefits Review Board affirmed, and K & R petitions this Court for review. K & R does not contest the evidence supporting the benefits award but instead challenges the constitutional authority of the two DOL ALJs who heard and decided Keene's claim against K & R. First, K & R contends that the ALJs were not appointed consistent with the Appointments Clause of the Constitution. Second, K & R asserts that the ALJs are insulated from removal by two layers of good-cause tenure protection, contrary to the Constitution's vesting of the executive power in the President.

The Director of the Office of Workers' Compensation Programs at DOL filed a brief on behalf of the Government arguing that, to save the ALJ removal scheme from constitutional infirmity, we must impose a novel narrowing construction on one of the applicable layers of protection, see 5 U.S.C. § 7521. No party took the position that the removal protections were constitutional without adopting a limiting construction. Therefore, to ensure full consideration of the removal issue, after oral argument we appointed an amicus curiae to defend the constitutionality of the dual good-cause removal provisions without the Government's proposed narrowing construction.¹ We then received further briefing from the parties in response to the amicus brief.

Having now fully considered the merits of the issues presented, we hold that both ALJs were constitutionally appointed and that, even if the dual good-cause removal protections were unconstitutional, K & R is not entitled to relief because it has not identified any harm resulting from those removal provisions. We therefore deny the petition for review.

I.

Before we discuss the facts of this case, some statutory background is necessary.

A.

We begin by describing adjudications under the Black Lung Benefits Act, 30 U.S.C. §§ 901-944, which "provides benefits to 'coal miners who are totally disabled due to pneumoconiosis,' commonly known as black lung disease," W. Va. CWP Fund v. Dir., Off. of Workers' Comp. Programs, 880 F.3d 691, 694 (4th Cir. 2018) (quoting 30 U.S.C. § 901(a)). A disabled coal miner or his surviving dependent initiates the process by filing a claim with a DOL district director. See 20 C.F.R. §§ 725.301, 725.303, 725.401. The district director develops the record and identifies, if available, a coal mine operator who may be held responsible for paying benefits to the claimant. See 20 C.F.R. §§ 725.401-725.418. At the end of those proceedings, the district director issues a proposed order. 20 C.F.R. § 725.418.

Any party then may request a hearing before a DOL ALJ. 20 C.F.R. §§ 725.419, 725.421, 725.451. With some exceptions, these hearings are conducted in accordance with the Administrative Procedure Act. See 33 U.S.C. § 919(d) ("[A]ny hearing held under this chapter shall be conducted in accordance with the provisions of section 554 of Title 5."); 30 U.S.C. § 932(a) (incorporating procedures of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950, into the Black Lung Benefits Act); 20 C.F.R. § 725.452(a) ("Except as otherwise provided by this part, all hearings shall be conducted in accordance with the provisions of 5 U.S.C. 554 et seq."). The ALJ takes evidence and resolves contested questions of fact and law. See 5 U.S.C. § 556(c); 20 C.F.R. § 725.455. If no party appeals, the ALJ's decision is final. See 5 U.S.C. § 557(b); 20 C.F.R. § 725.479.

Any party dissatisfied with the ALJ's ruling may appeal to the Benefits Review Board. See 33 U.S.C. § 921(b); 20 C.F.R. § 725.481. In addition, "[t]he Board may, on its own motion or at the request of the Secretary [of Labor], remand a case to the [ALJ] for further appropriate action." 33 U.S.C. § 921(b)(4). The Board's decisions are subject to judicial review in the court of appeals for the circuit in which the claimant's injury occurred. See 33 U.S.C. § 921(c); 20 C.F.R. § 725.482(a).

B.

This appeal concerns the hiring and firing of DOL ALJs, so we describe that process next. Before 2018, DOL ALJs were hired through the competitive service. See 5 U.S.C. § 2102; 5 C.F.R. § 930.201(b). The Office of Personnel Management conducted a competitive application and ranking process to identify entry-level candidates, then DOL staff would select from among the finalists. DOL could also arrange for an experienced ALJ to transfer from another agency. See 5 C.F.R. § 930.204(h).

In 2018, the Supreme Court held that Securities and Exchange Commission ALJs are "Officers of the United States" within the meaning of the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, and so can be appointed only by the President, a court of law, or a head of department. Lucia v. SEC, — U.S. —, 138 S. Ct. 2044, 2049, 201 L.Ed.2d 464 (2018). In response, President Trump issued an executive order exempting ALJs from the competitive hiring process and charging each agency with hiring its own ALJs. Exec. Order No. 13,843, 83 Fed. Reg. 32,755, 32,756 (July 10, 2018). The executive order also specified that incumbent ALJs would "remain in the competitive service as long as they remain in their current positions." Id. at 32,757; see 5 C.F.R. § 6.8(d).

The Secretary of Labor can remove an ALJ from office "only for good cause established and determined by the Merit Systems Protection Board [MSPB] on the record after opportunity for hearing before the Board." 5 U.S.C. § 7521(a). The MSPB exercises original, not appellate, jurisdiction over proposed agency actions against ALJs. 5 C.F.R. § 1201.121(a). In other words, it is the MSPB who "determin[es] whether good cause exists to take the agency's requested action," Dep't of Health & Hum. Servs. v. Jarboe, 2023 M.S.P.B. 22, ¶ 10 (Aug. 2, 2023), and "authorizes the employing agency to remove" the ALJ or impose some lesser sanction, id. at ¶ 6 (citing Soc. Sec. Admin. v. Levinson, 2023 M.S.P.B. 20, ¶¶ 37-38 (July 12, 2023)); see 5 C.F.R. § 1201.140(b) (MSPB "will specify the penalty to be imposed"). Members of the MSPB can be removed from office "by the President only for inefficiency, neglect of duty, or malfeasance in office." 5 U.S.C. § 1202(d).

C.

We now turn to the facts underlying this dispute. Claimant Michael Keene worked in coal mines for more than 34 years, the last three of which he worked for K & R. After years of coal dust exposure, Keene developed breathing problems and eventually was diagnosed with pneumoconiosis. In February 2017, Keene filed a claim for benefits under the Black Lung Benefits Act. The district director issued a proposed decision awarding Keene benefits and designating K & R as the responsible operator. K & R requested a hearing before an ALJ, and the matter was referred to the Office of Administrative Law Judges.

Around the same time, DOL's Chief ALJ recommended to the Secretary of Labor that he ratify the appointments of incumbent DOL ALJs in view of the Lucia case then pending before the Supreme Court. See Mem. from Hon. Stephen R. Henley, Chief ALJ, to Sec'y of Labor (Dec. 20, 2017).² The Secretary adopted the recommendation and issued letters ratifying the appointments of incumbent DOL ALJs, who had been hired through the competitive service. One of the ALJs the Secretary ratified was the ALJ eventually assigned to hear Keene's claim, ALJ William Barto. The Secretary's letter to ALJ Barto stated:

In my capacity as head of the Department of Labor, and after due consideration, I hereby ratify the Department's prior appointment of you as an Administrative Law Judge. This letter is intended to address any claim that administrative proceedings pending before, or presided over by, administrative law judges of the U.S. Department of Labor violate the Appointments Clause of the U.S. Constitution. This action is effective immediately.

Letter from R. Alexander Acosta, Sec'y of Labor, to Hon. William T. Barto, ALJ (Dec. 21, 2017).³

Several weeks later, the Keene matter was transmitted to ALJ Barto. K & R moved to reassign the claim to a different ALJ, arguing that ALJ Barto had not been constitutionally appointed and that the two levels of ALJ removal protection violate the Constitution. At a hearing in August 2018, ALJ Barto denied the motion, noting that the Secretary had ratified his appointment before he took any substantive action in the...