Ronald F. Clothier v. Heritage Coal Company, LLC 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 This unpublished order is not precedent.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

Heritage Coal Company and Peabody Energy Corporation asked the Board to reconsider an earlier decision in Ronald Clothier's black lung benefits case. They argued that the Board had wrongly found their challenge to the district director's appointment waived. The Board found no error in that waiver ruling and denied reconsideration. One Board member concurred in the outcome but would also have rejected the appointment challenge on another 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 it waived the district-director appointment challenge.

Full text (DOL BRB public release)

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

BRB No. 19-0192 BLA
Case No. 2016-BLA-05941

RONALD F. CLOTHIER
)
)
Claimant-Respondent
)
)
v. )
)
HERITAGE COAL COMPANY, LLC
) 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
Party-in-Interest
) RECONSIDERATION

GRESH, Administrative Appeals Judge:

Employer has filed a timely motion for reconsideration of the Benefits Review Board’s Decision and Order in this case, Clothier v. Heritage Coal Co., LLC, BRB No. 19- 0192 BLA (June 30, 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 Employer waived its right to challenge the district director’s appointment in this case.
Clothier, slip op. at 3-4. Accordingly, we affirm the Board’s decision. 20 C.F.R.
§§801.301(c), 802.409.

SO ORDERED.

DANIEL T. GRESH
Administrative Appeals Judge

I concur:
MELISSA LIN JONES
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, even if the issue had not been waived, Lucia v. SEC, 585 U.S. , 138 S.Ct. 2044 (2018) does not establish that district directors are “inferior officers” to whom the Appointments Clause applies, as stated in my concurring opinion in this case.
Clothier, slip op. at 17-22.

JONATHAN ROLFE
Administrative Appeals Judge

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