James M. Hacker v. Shamrock Coal Company, Incorporated (Board decision, December 13, 2019)

BRB interlocutory order. This unpublished decision is not precedent. The Benefits Review Board remanded the matter for further proceedings. The claim remains unresolved. A final Board decision ordinarily becomes final 60 days after issuance absent timely judicial review or reconsideration under 20 C.F.R. § 802.406; a party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

James Hacker appealed the denial of his black lung benefits claim and challenged the labor judge’s appointment. The Board found that the judge had received evidence and heard argument before the Secretary of Labor ratified his appointment. It vacated the denial and sent the case for reassignment to a new labor judge.

Decision snapshot

• Authority: .
• Outcome: Benefits denial vacated; claim remanded for a new judge.
• Key point: The appointment issue required reassignment and further proceedings.

Full text (DOL BRB public release)

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

BRB No. 18-0494 BLA

JAMES M. HACKER
)
)
Claimant-Petitioner
)
)
v. )
)
SHAMROCK COAL COMPANY,
)
INCORPORATED, Self-Insured by
) DATE ISSUED: 12/13/2019
SUNCOKE ENERGY, INCORPORATED
)
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Party-in-Interest
) DECISION and ORDER

Appeal of the Decision and Order Denying Benefits of Steven B. Berlin, Administrative Law Judge, United States Department of Labor.

James M. Hacker, Hyden, Kentucky.

Ronald E. Gilbertson (Gilbertson Law, LLC), Columbia, Maryland, for employer/carrier.

Jeffrey S. Goldberg (Kate S. O’Scannlain, Solicitor of Labor; Barry H.
Joyner, Associate Solicitor; Michael J. Rutledge, Counsel for Administrative Litigation and Legal Advice), Washington, D.C., for the Director, Office of Workers’ Compensation Programs, United States Department of Labor.
 Before: BOGGS, Chief Administrative Appeals Judge, ROLFE and GRESH, Administrative Appeals Judges.

PER CURIAM:

Claimant appeals, without the assistance of counsel,1 the Decision and Order Denying Benefits (2013-BLA-06022) of Administrative Law Judge Steven B. Berlin, rendered on a subsequent2 claim filed on June 11, 2012 pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012) (the Act). By letter dated July 25, 2019, the Board informed claimant that a recent United States Supreme Court decision, Lucia v. SEC, 585 U.S. , 138 S.Ct. 2044, 2055 (2018), may apply to his case.3 The Board explained that it would consider whether Lucia applies to claimant’s case only if claimant asked the Board to do so. Therefore, the Board asked claimant to respond whether he wanted the Lucia issue to be considered. The Board further explained that if he made such a request and should Lucia be found to apply, the case would be remanded for a new hearing before a different administrative law judge. Claimant responded that he wanted the Board to consider whether Lucia applies.

By Order dated August 15, 2019, the Board informed the other parties of claima nt’s request and provided time to respond. Employer responded that the Board should deny claimant’s request as untimely. Alternatively, employer responded that there is no need for remand and reassignment to another, properly appointed administrative law judge. The Director, Office of Workers’ Compensation Programs (the Director), responded that based on the particular facts of this case, she does not object to remand and reassignment to another, properly appointed administrative law judge.

1 Diane Jenkins, a benefits counselor with Stone Mountain Health Services of St.
Charles, Virginia, requested on claimant’s behalf that the Board review the administrative law judge’s decision, but Ms. Jenkins is not representing claimant on appeal. See Shelton v. Claude V. Keen Trucking Co., 19 BLR 1-88 (1995) (Order).
2 Administrative Law Judge Thomas F. Phalen, Jr., denied claimant’s previous claim, filed on February 12, 2001, because claimant failed to establish pneumoconiosis or total respiratory disability. Director’s Exhibit 1. On April 30, 2007, the Board affir med the denial of benefits. Id. Claimant took no further action on that claim.
3 The Board also served this letter on employer and the Director, Office of Workers’ Compensation Programs.

2
 After the administrative law judge issued his Decision and Order Denying Benefits, the Supreme Court held that Securities and Exchange Commission administrative law judges not appointed by the head of the agency were not appointed in accordance with the Appointments Clause of the Constitution. Lucia, 138 S.Ct. at 2055. The Court further held that because the petitioner timely raised his Appointments Clause challenge, he was entitled to a new hearing before a new and properly appointed administrative law judge. Id.

Employer contends that claimant forfeited the Appointments Clause issue because he failed to raise it before initial briefing was completed in this appeal. Employer ’s Response at 2-3. We disagree. Because claimant appealed without the assistance of counsel, he was not required to file a brief identifying the issues to be considered on appeal. Shelton v. Claude V. Keen Trucking Co., 19 BLR 1-88, 1-90 (1995) (Order); McFall v. Jewell Ridge Coal Corp., 12 BLR 1-175, 1-177 (1989) (Order); 20 C.F.R. §802.211(e). That distinguishes this case from those where the Board has held that a party forfeits an issue by failing to raise it in its opening brief. See, e.g., Motton v. Huntington Ingalls Indus., Inc., 52 BRBS 69, 69 n.1 (2018); Williams v. Humphreys Enters., Inc., 19 BLR 1- 111, 1-114 (1995).

The Board has discretion to prescribe informal procedures to be followed when a party is not represented by counsel, 20 C.F.R. §802.220, and “may, depending upon the particular circumstances, prescribe an alternate method of furnishing such information as may be necessary for the Board to decide the merits of any such appeal.” 20 C.F.R.
§802.211(e). Here, as the Director notes, “[t]he Board’s July 25 [letter] asked only if the claimant wanted the Lucia issue considered, and explained that the Board will do so only if asked.” Director’s Response at 1 n.1. In other words, given that claimant was not required to file an opening brief, the Board’s letter provided an alternate method for him to inform the Board whether he chose to raise an Appointments Clause challenge. 4 See 20 C.F.R. §802.211(e). We therefore reject employer’s contention that claimant forfeited the Appointments Clause issue.

Employer contends that because the parties waived their right to an oral hearing and the administrative law judge took no “significant action . . . prejudicial to claimant” before the ratification of his appointment, there is no need to remand this case for a new hearing before a new administrative law judge. Employer’s Response at 5. We disagree.

4 We therefore reject employer’s additional argument that the Board raised the Appointments Clause issue sua sponte for claimant. Employer’s Response at 3.

3
 The Department of Labor (DOL) has expressly conceded that the Supreme Court’s holding in Lucia applies to DOL administrative law judges. See Big Horn Coal Co. v. Sadler, 10th Cir. No. 17-9558, Brief for the Fed. Resp. at 14 n.6. The Secretary of Labor, exercising his power as the Head of a Department under the Appointments Clause, ratified the appointment of all DOL administrative law judges on December 21, 2017, prior to the issuance of the administrative law judge’s decision in this case. Before December 21, 2017, at the parties’ request, the administrative law judge canceled the hearing, admitted the Director’s and the parties’ exhibits into the record, accepted employer’s closing brief, and closed the record. Decision and Order at 1.

The appropriate remedy for an adjudication tainted with an appointments violatio n is a new hearing before a properly appointed official. Lucia, 138 S.Ct. at 2055, citing Ryder v. United States, 515 U.S. 177, 182-83 (1995). That official must be able to consider the matter as though he had not adjudicated it before. Lucia, 138 S.Ct. at 2055. The administrative law judge’s receiving evidence and employer’s argument involved materia l pertaining to the merits which could color the administrative law judge’s consideration of the case. This therefore tainted the adjudication with an Appointments Clause violatio n requiring remand. As the Board has held, “Lucia dictates that when a case is remanded because the administrative law judge was not constitutionally appointed, the parties are entitled to a new hearing before a new, constitutionally appointed administrative law judge.” Miller v. Pine Branch Coal Sales, Inc., BLR , BRB No. 18-0323 BLA, slip op. at 4 (Oct. 22, 2018) (en banc).

4
 Accordingly, we vacate the administrative law judge’s Decision and Order Denying Benefits, and remand this case to the Office of Administrative Law Judges for reassignme nt to a new administrative law judge and for further proceedings consistent with this opinio n.

SO ORDERED.

JUDITH S. BOGGS, Chief
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge

DANIEL T. GRESH
Administrative Appeals Judge