Melyndia Ann Bryan (widow of Bert Fowler Bryan) v. Island Creek Coal Company (Board decision, August 17, 2018)

BRB final decision. This unpublished reconsideration order is not precedent. The Board denied the employer's motion to reconsider its earlier affirmance of the survivor's benefits award. Board finality is governed by 20 C.F.R. § 802.406; this order disposes of reconsideration under §§ 802.407 and 802.409.

Plain-English summary

Island Creek Coal Company sought reconsideration of the Board's decision affirming Melyndia Bryan's survivor's benefits award. No panel member voted to vacate or modify that decision, so the Board denied reconsideration. In a footnote, the Board found that the employer had waived its challenge to the administrative law judge's appointment by raising it for the first time after the Board's benefits decision. The Board also denied requests for en banc reconsideration and oral argument. The earlier benefits award remained in place.

Decision snapshot

• Authority: Board reconsideration under 33 U.S.C. § 921(b)(5) and 20 C.F.R. §§ 802.407(a) and 802.409.
• Outcome: Employer's reconsideration motion denied; the earlier survivor's benefits award remained affirmed.
• Key point: The employer raised its Appointments Clause challenge too late for the Board to consider it.

Full text (DOL BRB public release)

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

BRB No. 18-0309 BLA
Case No. 2013-BLA-05839

MELYNDIA ANN BRYAN
)
(Widow of BERT FOWLER BRYAN)
)
)
Claimant-Respondent
)
)
v. )
)
ISLAND CREEK COAL COMPANY
)
)
and
)
)
WELLS FARGO DISABILITY
) DATE ISSUED: 08/17/2018
MANAGEMENT
)
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
) ORDER on
Party-in-Interest
) RECONSIDERATION

As no member of the panel has voted to vacate or modify the decision herein, the motion for reconsideration filed by employer is DENIED.1 33 U.S.C. §921(b)(5); 20 C.F.R. §§801.301(b); 802.407(a); 802.409.

BETTY JEAN
HALL, Chief
Administrative Appeals Judge

RYAN GILLIGAN
Administrative Appeals Judge

JONATHAN
ROLFE
Administrative Appeals Judge

1
Employer argues for the first time on reconsideration that the manner in which Department of Labor administrative law judges are appointed violates the Appointments Clause of the Constitution, Art. II § 2, cl. 2. Employer’s Motion for Reconsideration at 3-

6. The Director, Office of Workers’ Compensation Programs (the Director), responds that
   employer waived this argument by failing to raise it in its opening brief. The Board hereby accepts the Director’s late-filed response as part of the record. We agree with the Director. Because employer first raised the Appointments Clause issue only after the Board issued its decision affirming the administrative law judge’s award of benefits in the survivor’s claim, employer waived the issue. See Lucia v. SEC, 585 U.S. , 138 S.Ct. 2044, 2055 (2018) (requiring “a timely challenge to the constitutional validity of the appointment of an officer who adjudicates [a party’s] case”); see also Williams v. Humphreys Enters., Inc., 19 BLR 1-111, 1-114 (1995) (the Board generally will not consider new issues raised by the petitioner after it has filed its brief identifying the issues to be considered on appeal); Senick v. Keystone Coal Mining Co., 5 BLR 1-395, 1-398 (1982). Additionally, the Board denies employer’s requests for en banc reconsideration and for oral argument.