Bige Messer v. Andalex Resources, Incorporated, and Old Republic Insurance Company (Board decision, July 30, 2019)

BRB final decision. This unpublished reconsideration order is not precedent. The Benefits Review Board denied Andalex Resources's motion for reconsideration and left its May 17, 2019 decision affirming a black lung benefits award in place. Board finality is governed by 20 C.F.R. § 802.406; this order disposes of the reconsideration request under 20 C.F.R. §§ 802.407 and 802.409.

Plain-English summary

Bige Messer won black lung benefits after the administrative law judge found that his coal mine work qualified him for the fifteen-year presumption. Andalex Resources sought reconsideration of the Board's decision affirming that award and asked the Board to hold the case while a challenge to the Affordable Care Act was on appeal. The Board declined to delay the case because the district court's ruling had been stayed and the Board had previously declined to await similar challenges. It upheld its earlier finding that Andalex raised its challenge to the judge's appointment too late, because it had not raised the issue in its first Board appeal. It also found no demonstrated error in its treatment of Messer's qualifying coal mine employment. The Board denied reconsideration and affirmed its May 17 decision.

Decision snapshot

• Authority: Reconsideration under 33 U.S.C. § 921(b)(5) and 20 C.F.R. § 802.407; fifteen-year presumption under 30 U.S.C. § 921(c)(4).
• Outcome: Request to hold the case and motion for reconsideration denied; earlier affirmance of benefits left in place.
• Key point: The employer raised its challenge to the administrative law judge's appointment too late, and showed no error warranting reconsideration.

Full text (DOL BRB public release)

U.S. Department of Labor
Benefits Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 18-0272 BLA
Case No. 2012-BLA-05370

BIGE MESSER
)
)
Claimant-Respondent
)
)
v. )
)
ANDALEX RESOURCES,
)
INCORPORATED
) DATE ISSUED: 07/30/2019
)
and
)
)
OLD REPUBLIC INSURANCE COMPANY
)
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
) ORDER on
Party-in-Interest
) RECONSIDERATION

Employer has timely filed a motion for reconsideration of the Board’s decision, affirming the award of benefits on remand. Messer v. Andalex Res., Inc., BRB No. 18- 0272 BLA (May 17, 2019) (Gilligan, J., concurring in the result) (unpub.); 33 U.S.C.
§921(b)(5); 20 C.F.R. §802.407(a). Claimant did not file a response brief. The Director, Office of Workers’ Compensation Programs (the Director), responds, contending the Board should deny employer’s motion to hold the case in abeyance and affirm its conclusion that employer untimely raised its Appointments Clause challenge pursuant to Lucia v. SEC, 585 U.S. , 138 S. Ct. 2044 (2018).

Employer initially moves that the Board hold this case in abeyance pending the decision by the United States Court of Appeals for the Fifth Circuit on the appeal of Texas v. United States, 340 F. Supp. 3d 579 (N.D. Tex. 2018).1 Employer’s Motion for Reconsideration at 7-8. The Director responds that the district court stayed its ruling striking down the Affordable Care Act (ACA), see Texas v. United States, 352 F. Supp. 3d 665, 690 (N.D. Tex. 2018), and thus the decision does not preclude application of the amendments to the Black Lung Benefits Act found in the ACA. Director’s Response at 6-

7. We agree with the Director. Moreover, the United States Supreme Court upheld the
   constitutionality of the ACA in Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012), and the Board has declined to hold cases in abeyance pending resolution of legal challenges to the ACA. See Stacy v. Olga Coal Co., 24 BLR 1-207, 1-214-15 (2010), aff’d sub nom. W.Va. CWP Fund v. Stacy, 671 F.3d 378 (4th Cir. 2011); Mathews v. United Pocahontas Coal Co., 24 BLR 1-193, 1-201 (2010). We thus deny employer’s motion to hold this case in abeyance.

   Employer next reiterates its Appointments Clause challenge to the administrative
   

   law judge’s authority to hear and decide this case. Employer’s Motion for Reconsideration at 2-4. For the reasons stated in our decision, Messer, slip op. at 4-5, we affirm our holding that employer untimely raised its Lucia challenge by failing to raise it when the case was first appealed to the Board. See Lucia, 138 S. Ct. at 2055; Freytag v. Comm’r, 501 U.S. 868 (1991); Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018); Director’s Response at 4-6.

   Employer lastly asserts the Board erred by affirming the administrative law judge’s
   

   finding that claimant established more than fifteen years of qualifying coal mine employment sufficient to invoke the Section 411(c)(4) presumption. Employer’s Motion for Reconsideration at 5-7. We reject this contention as employer has not demonstrated error in the Board’s application of Shepherd v. Incoal, Inc., 915 F.3d 392, 402-07 (6th Cir. 2019), reh’g denied, No. 17-4313 (6th Cir. May 3, 2019).

   1
   The full cite of the case is Texas v. United States, 340 F. Supp. 3d 579 (N.D. Tex.
   2018), decision stayed pending appeal, 352 F. Supp. 3d 665, 690 (N.D. Tex. 2018), appeal docketed, No. 19-10011 (5th Cir. Jan. 7, 2019). The Fifth Circuit held oral argument in the case on July 9, 2019. As described by the Director, the district court in Texas ruled that the “ACA individual mandate [was] unconstitutional and that the remainder of the legislation was not severable.” Director’s Response at 6.

                                         2
   

   Accordingly, we deny employer’s motion to hold the case in abeyance and its motion for reconsideration. The Board’s May 17, 2019 decision is affirmed. 20 C.F.R.
   §§801.301(c), 802.407(d), 802.409.

   SO ORDERED.

                                        GREG J. BUZZARD
                                        Administrative Appeals Judge
   
                                        RYAN GILLIGAN
                                        Administrative Appeals Judge
   
                                        JONATHAN ROLFE
                                        Administrative Appeals Judge