Dee Ann Noecker (on behalf of Tommy V. Noecker) v. Decker Coal Company (Board decision, October 13, 2021)

BRB final decision. This unpublished Board order is not precedent. The Benefits Review Board denied Decker Coal's request for reconsideration en banc of its earlier decision affirming a black lung benefit award. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or a timely request for Board reconsideration is filed. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Decker Coal asked the Benefits Review Board to reconsider en banc its earlier decision affirming benefits in Tommy Noecker's claim. The employer again challenged the statutory removal protections for Department of Labor administrative law judges. The Board held that the Ninth Circuit had upheld those protections as applied to these judges. No Board member voted to grant the employer's motion. The Board denied reconsideration, leaving the earlier benefit affirmance in place.

Decision snapshot

• Authority: En banc reconsideration under 33 U.S.C. § 921(b)(5) and 20 C.F.R. § 802.407.
• Outcome: Reconsideration en banc denied; earlier benefit affirmance remains in place.
• Key point: No Board member voted to grant the motion.

Full text (DOL BRB public release)

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

BRB No. 19-0492 BLA
Case No. 2014-BLA-05646

DEE ANN NOECKER
)
(o/b/o TOMMY V. NOECKER)
)
)
Claimant-Respondent
)
)
v. )
)
DECKER COAL COMPANY
)
) DATE ISSUED: 10/13/2021
Employer-Petitioner
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
) ORDER on MOTION for
) RECONSIDERATION
Party-in-Interest
) EN BANC

Employer has filed a timely motion for reconsideration en banc of the Benefits Review Board’s Decision and Order affirming the administrative law judge’s (ALJ) award of benefits in this case, Noecker v. Decker Coal Co., BRB No. 19-0492 BLA (Dec. 15, 2020) (unpub.). 33 U.S.C. §921(b)(5); 20 C.F.R. §802.407(a), (d). Claimant responds in support of the Board’s decision.

In seeking reconsideration, Employer again challenges the constitutionality of the removal protections afforded Department of Labor ALJs. Motion for Reconsideration at 2-12. Employer generally argues the removal provisions in the Administrative Procedure Act (APA), 5 U.S.C. §7521, are unconstitutional. Id. This argument has no merit. The United States Court of Appeals for the Ninth Circuit, within whose jurisdiction this case arises, has addressed this precise issue and has upheld the statute’s constitutionality. Decker Coal Co. v. Pehringer, 8 F.4th 1123, 1137-38 (9th Cir. 2021) (5 U.S.C. §7521 is constitutional as applied to DOL ALJs). After consideration of Employer’s contentions and review of the Board’s disposition of this case, no member of the Board voted to grant Employer’s motion. Consequently, Employer’s motion for reconsideration en banc is denied. 20 C.F.R.
§§801.301(b), (c), 802.407(b), (d), 802.409.

By Order of the Board:

Thomas O. Shepherd, Jr.
Clerk of the Appellate Boards