Cheri Lynn Webb, executrix of the estate of William E. Vincent, v. Peabody Coal Company and Peabody Energy Corporation (Board decision, January 12, 2021)

BRB final decision. This unpublished order is not precedent. The Benefits Review Board denied the employer's motion for reconsideration and left its earlier decision in place. The reconsideration request is disposed of; Board finality is governed by 20 C.F.R. § 802.406.

Plain-English summary

Peabody Coal Company and Peabody Energy Corporation asked the Board to reconsider an earlier decision in a black lung benefits case involving William Vincent's estate. They challenged the Board's ruling that their objection to the district director's appointment was untimely. The Board found no error in that ruling and denied reconsideration. One Board member concurred in the outcome but would have addressed the appointment question on an additional ground.

Decision snapshot

• Authority: Board reconsideration under 33 U.S.C. § 921(b)(5) and 20 C.F.R. §§ 802.407 and 802.409.
• Outcome: Employer's motion for reconsideration denied; prior Board decision left in place.
• Key point: The employer did not show error in the Board's ruling that its district-director appointment challenge was untimely.

Full text (DOL BRB public release)

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

BRB No. 19-0122 BLA
Case No. 2017-BLA-05196

CHERI LYNN WEBB (Executrix of the Estate )
of WILLIAM E. VINCENT)
)
)
Claimant-Respondent
)
)
v. )
)
PEABODY COAL COMPANY ) DATE ISSUED: 01/12/2021
)
and
)
)
PEABODY ENERGY CORPORATION
)
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
) ORDER on MOTION for
Party-in-Interest ) RECONSIDERATION

BOGGS, Chief Administrative Appeals Judge:

Employer has filed a timely motion for reconsideration of the Benefits Review Board’s Decision and Order in this case, Webb v. Peabody Coal Co., BRB No 19-0122 BLA (May 29, 2020) (unpub.) (Rolfe, J., concurring). 33 U.S.C. §921(b)(5); 20 C.F.R.
§802.407(a). The Director, Office of Workers’ Compensation Programs, responds, urging denial of Employer’s motion.

We deny the motion as Employer has not demonstrated error in the Board’s holding
that it did not timely raise an Appointments Clause challenge as to the district director. Webb, slip op. at 3-4. Accordingly, we affirm the Board’s decision. 20 C.F.R.
§§801.301(c), 802.409.

SO ORDERED.

JUDITH S. BOGGS, Chief
Administrative Appeals Judge

I concur:
GREG J. BUZZARD
Administrative Appeals Judge

ROLFE, Administrative Appeals Judge, concurring:

I would grant Employer’s motion for reconsideration but deny it relief on the additional ground that Lucia v. SEC, 585 U.S. __, 138 S.Ct. 2044 (2018) does not establish district directors are “inferior officers” to whom the Appointments Clause applies, as stated in my concurring opinion in this case. Webb, slip op. at 18-24.

JONATHAN ROLFE
Administrative Appeals Judge

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