JOSEPH FORRESTER TRUCKING; AMERICAN RESOURCES INSURANCE COMPANY v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; ARTHUR DAVIS, H & P COAL COMPANY, INC.; AMERICAN RESOURCES INSURANCE COMPANY v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; CECIL MAE MABE, ON BEHALF OF THE ESTATE OF BILL WAYNE MABE, LOCKWORTH, INC.; AMERICAN RESOURCES INSURANCE COMPANY v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; LOYAL E. TACKETT - Articles

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JOSEPH FORRESTER TRUCKING; AMERICAN RESOURCES INSURANCE COMPANY v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; ARTHUR DAVIS, H & P COAL COMPANY, INC.; AMERICAN RESOURCES INSURANCE COMPANY v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; CECIL MAE MABE, ON BEHALF OF THE ESTATE OF BILL WAYNE MABE, LOCKWORTH, INC.; AMERICAN RESOURCES INSURANCE COMPANY v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; LOYAL E. TACKETT

Posted by: Karen Belcher on Feb 4, 2021

Court: 6th Circuit Court (Published Opinions)

Attorneys 1: ARGUED: Mark E. Solomons, GREENBERG TRAURIG LLP, Washington, D.C., for Petitioners.

Attorneys 2: ARGUED: William M. Bush, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent.

Attorneys 3: ARGUED: Evan B. Smith, APPALRED LEGAL AID, Prestonsburg, Kentucky, for Respondent Mabe.

Attorneys 4: ON BRIEF: Mark E. Solomons, Laura Metcoff Klaus, GREENBERG TRAURIG LLP, Washington, D.C., for Petitioners.

Attorneys 5: ON BRIEF: William M. Bush, Gary K. Stearman, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent. ON BRIEF: Evan B. Smith, APPALRED LEGAL AID, Prestonsburg, Kentucky, for Respondent Mabe. ON BRIEF: Jacob Thomas Moak, MOAK & NUNNERY, P.S.C., Prestonsburg, Kentucky, for Respondent Davis. ON BRIEF: Joseph E. Wolfe, Victoria S. Herman, WOLFE WILLIAMS & REYNOLDS, Norton, Virginia, for Respondent Tackett.

Judge(s): KETHLEDGE, THAPAR, and READLER, Circuit Judges

Court Appealed: On Petitions for Review of Decisions and Orders of the Benefits Review Board.

CHAD A. READLER, Circuit Judge. In Lucia v. SEC, the Supreme Court held that administrative law judges (ALJs) at the Securities Exchange Commission are “Officers of the United States” for purposes of the Appointments Clause in Article II of the Constitution. 138 S. Ct. 2044 (2018). As “Officers of the United States,” those ALJs are subject to the Appointments Clause’s exclusive methods of appointment: by the President, by a department head, or by a court of law. U.S. CONST. art. II, § 2, cl. 2. When an ALJ holds her post in violation of the Appointments Clause, and a party timely objects, any adjudication she presided over must be vacated and assigned for rehearing before a different, properly appointed ALJ. 138 S. Ct. at 2055.

In resolving these lingering questions regarding ALJ appointments, Lucia left open at least one other: when is an Appointments Clause challenge timely? With nearly two thousand ALJs spanning agencies across the Executive Branch, that question has been raised with some frequency in Lucia’s wake. Today’s case is one example.

As part of a consolidated appeal, three coal mine operators challenge an adverse black lung benefits determination made by the Department of Labor’s Benefits Review Board. We must resolve whether a litigant forfeits an Appointments Clause challenge before the Board (and, as a consequence, before us) by not pressing the issue during earlier proceedings before an ALJ. Honoring the Board’s customary requirement that issues be raised first with the ALJ, we hold that the operators failed to preserve their Appointments Clause challenge. Accordingly, we deny the petition for review.

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