On June 21, 2018, the United States Supreme Court in Lucia v. SEC, ___U.S.___, 138 S. Ct. 2044, 201 L. Ed. 2d 464, 2018 U.S. LEXIS 3836, 2018 WL 3057893 (2018), determined that Securities and Exchange Commission administrative law judges (ALJs) are inferior officers who must be appointed consistent with the Appointments Clause of the United States Constitution.

In anticipation of the Lucia decision, the Secretary of Labor ratified the appointment of Chief Judge Stephen R. Henley on December 15, 2017 and of all other existing Department of Labor ALJs on December 21, 2017. The ratifications were effective immediately. A subsequently hired ALJ was also appointed by the Secretary. Copies of documents related to the Secretary’s ALJ appointments are linked below.

These proactive disclosures are being made pursuant to the Freedom of Information Act, 5 U.S.C. § 552(a)(2) and policy guidance from the U.S. Department of Justice, Office of Information Policy, Proactive Disclosures of Non-Exempt Agency Information: Making Information Available Without the Need to File a FOIA Request (USDOJ/OIP Mar. 16, 2015).

Also linked below are selected Executive Orders, Secretary’s Orders, and Court Documents related to Lucia v. SEC. Also linked are Benefits Review Board and ALJ decisions and other orders of note. This is not a comprehensive list of all Lucia related decisions or other orders.

Documents Related to Ratification of ALJ Appointments

Post-Lucia ALJ Appointments

Executive Orders, Regulations, Secretary’s Orders, and Memoranda

Court Documents

  • K & R Contractors, LLC v. Keene, No. 20-2021, U.S. App. LEXIS 29632 (4th Cir. Nov. 7, 2023).
    • K & R Contractors, LLC v. Keene, No. 20-2021, U.S. App. LEXIS 29632 (4th Cir. Nov. 7, 2023), the Employer argued that: (i) the appointments of the two presiding ALJs were not consistent with the Appointments Clause; and (ii) the ALJs were unconstitutionally insulated from removal by two layers of good-cause tenure protection. The Fourth Circuit held that the presiding ALJs had authority to adjudicate the case because, before taking any action in the matter, one ALJ had been properly appointed and the other ALJ's appointment had been ratified by the Secretary of Labor. The court, observing that the Employer did not assert harm associated with the removal protections, found that the Employer was not entitled to relief on the claim. Accordingly, the court denied the petition for review without deciding the constitutionality of the removal protections.
  • Cody v. Kijikazi, No. 21-3553, 2022 U.S. App. LEXIS 25355 (9th Cir. Sept. 8, 2022).
    • In Cody v. Kijikazi, No. 21-3553, 2022 U.S. App. LEXIS 25355 (9th Cir. Sept. 8, 2022), the Ninth Circuit held that the decision of a Social Security Administrative Law Judge ("ALJ") on remand was tainted by a prior Appointments Clause violation even though the ALJ's appointment had been ratified in the interim.
  • Edd Potter Coal Co. v. Dir., OWCP, United States Dep’t of Labor, No. 21-1623, 2022 U.S. App. LEXIS 18151 (4th Cir. June 30, 2022).
    • In Edd Potter Coal Co. v. Dir., OWCP, United States Dep’t of Labor, No. 21-1623, 2022 U.S. App. LEXIS 18151 (4th Cir. June 30, 2022), the Employer did not raise an Appointments Clause challenge either when the case was first pending before the ALJ or when it was first pending before the Benefits Review Board (“Board”). After the Board remanded the case to the ALJ, the Employer raised an Appointments Clause challenge pursuant to Lucia v. SEC, 138 S. Ct. 2044 (2018), and asked for the case to be reassigned to a properly appointed ALJ. The Fourth Circuit held that: (1) issue exhaustion is required before the ALJ and before the Board; (2) the Employer did not exhaust its Appointments Clause challenge; and (3) the Employer’s forfeiture should not be excused. Consequently, the Fourth Circuit denied the Employer’s petition for review.
  • Decker Coal Co. v. Pehringer, No. 20-71449 (9th Cir. Aug. 16, 2021) (2021 U.S. App. LEXIS 24338; 2021 WL 3612787)
    • In Decker Coal Co. v. Pehringer, No. 20-71449 (9th Cir. Aug. 16, 2021) (2021 U.S. App. LEXIS 24338; 2021 WL 3612787), the Ninth Circuit held that 5 U.S.C. § 7521(a), which permits removal of an Administrative Law Judge only for good cause determined by the Merits Systems Protection Board, is Constitutional as applied to DOL ALJs. In a footnote, the court noted that the Secretary's ratification of the ALJ's appointment prior to the ALJ's having taken any significant action on the case had cured any Constitutional deficiency with the ALJ's original appointment.
  • Walsh v. Chevron Mining, Inc., No. 20-CV-00010 (W.D. Ky June 21, 2021) (2021 U.S. Dist. LEXIS 115045)
    • In Walsh v. Chevron Mining, Inc., No. 20-CV-00010 (W.D. Ky June 21, 2021) (2021 U.S. Dist. LEXIS 115045), the Department of Labor sought reimbursement to the Black Lung Disability Trust Fund from Defendant, and enforcement of the ALJ’s final decision and order under the Black Lung Benefits Act.  Among Defendant’s defenses was an appointments clause argument that District Directors are “mere employees” who do not hold the authority to trigger interest accumulation, or if they do have such “significant authority,” they would need to be appointed under the Appointments Clause.   The Magistrate Judge did not analyze the merits of the Defendant’s argument, concluding that the Defendant had not preserved the issue, it having been not presented it before the prior adjudicators.   The Magistrate discussed the recent Supreme Court decision in Carr v. Saul overturning a Sixth Circuit finding of forfeiture of the appointments clause argument in a SSA case if there was a failure to object during the administrative proceedings.   The Magistrate found that a crucial difference from Carr is that 20 C.F.R. § 802.211(b) has been found to support forfeiture if an issue is not presented the BRB.  The Magistrate also found that the Defendant had not presented a facial constitutional challenge under the BLBA, or established “extraordinary circumstances.”
  • Budri v. Admin. Review Board, USDOL, No. 20-60574 (5th Cir. Apr. 30, 2021) (per curiam) (unpublished) (2021 U.S. App. LEXIS 12986)
    • Budri argued that the ALJ who dismissed the fourth complaint was not properly appointed under the Appointments Clause of the United States Constitution, as required by Lucia v. Securities & Exchange Commission.   Budri also argued that the  “for cause” removal protections of the Administrative Procedure Act, 5 U.S.C. § 7521(a), are violative of the “at will” employment associated with the Appointments Clause, citing Free Enterprise Fund v. Public Company Accounting Oversight Board. The Fifth Circuit declined to address the Appointment Clause challenges, finding that Budri had forfeited the challenges for several related reasons, such as his numerous administrative and judicial opportunities to present the challenges long before the instant petition before the court.  In a footnote, court noted that it had not yet considered whether DOL ALJs had been properly appointed under Lucia or whether such challenges are forfeited if not first presented in the underlying administrative proceeding--but that several other circuits had.  The court also noted the Supreme Court’s recent decision in Carr v. Saul, which addressed forfeitures in SSA proceedings. The court, however, found the forfeiture determination in the instant case rested on broader grounds than the questions decided by its sister Circuits, and by the Supreme Court.
  • Carr v. Saul, Nos. 19-1442 and 20-105 (U.S. 2021) (2021 U.S. LEXIS 2109; 2021 WL 1566608)
    • ISSUE EXHAUSTION: Although they had not raised the challenge in their administrative proceedings, two SSA disability claimants did not forfeit their argument that they were entitled to a new hearings before ALJs properly appointed under the Appointments Clause. The Court ruled: “Taken together, the inquisitorial features of SSA ALJ proceedings, the constitutional character of petitioners’ claims, and the unavailability of any remedy make clear that 'adversarial development' of the Appointments Clause issue 'simply [did] not exist' (and could not exist) in petitioners’ ALJ proceedings. Sims, 530 U. S., at 112 (plurality opinion). The Courts of Appeals therefore erred in imposing an issue-exhaustion requirement on petitioners’ Appointments Clause claims. The judgments of the Eighth and Tenth Circuits are reversed, and the cases are remanded for further proceedings consistent with this opinion.” Slip op. at 12.
  • Lucia v. SEC, ___U.S.___, 138 S. Ct. 2044, 201 L. Ed. 2d 464, 2018 U.S. LEXIS 3836, 2018 WL 3057893 (2018)
    • Securities and Exchange Commission (“SEC”) Administrative Law Judges (“ALJ”) are “Officers of the United States” under the Appointments Clause of the United States Constitution, U.S. Const. art. II, §2. Because the SEC ALJ who heard Mr. Lucia’s case lacked a valid appointment at the time he heard and decided the case, the Court ordered a new hearing before a different and properly appointed ALJ.
  • Government’s Brief in Big Horn Coal Coal Co. v. Sadler, No. 17-9558 (10th Cir.)
    • In this brief, filed July 20, 2018, DOL (through the Director, OWCP) acknowledged in litgation that a DOL ALJ had not been properly appointed prior to the Secretary’s ratification of his appointment. DOL also declined to contend that the Secretary’s subsequent ratification of the ALJ’s prior appointment, retroactively validated his prior actions. Further, DOL conceded that if an appointments clause challenge is recognized as not waived, the objecting party will be entitled to a new proceedings before a different ALJ. (Brief at 22, n6).
  • Government’s Brief in Dominguez v. Bethlehem Steel Corp., No. 18-70184 (9th Cir.)
    • In this filing on July 23, 2018, DOL (through the Director, OWCP) opposed the Petitioner’s motion for summary vacatur based on Lucia. DOL contended that the Petitioner forfeited an Appointments Clause challenged to the ALJ’s appointment because it had not raised the challenge before either the ALJ or the Board. DOL again conceded that if an appointments clause challenge is recognized as not waived, the objecting party will be entitled to a new proceedings before a different ALJ.
  • Jones Brothers Inc. v. Sec’y of Labor, 898 F.3d 669 (6th Cir. July 31, 2018)
    • The Sixth Circuit determined that Jones Brothers forfeited its Appointments Clause challenge by not pressing it before the agency. However, the court excused the forfeiture pursuant to the “extraordinary circumstances”provison of the Mine Act at 30 U.S.C. § 816(a)(1).
  • Island Creek Coal Co. v. Wilkerson, 910 F.3d 254 (6th Cir. Dec. 3, 2018) (2018 U.S. App. LEXIS 33856; 2018 WL 6301617)
    • The Employer argued that the ALJ lacked the authority to hear the case under the Appointments Clause. The Sixth Circuit, however, held that the Employer forfeited its Appointments Clause challenge by failing to raise the challenge in its opening brief (the Employer raised the challenge for the first time in its reply brief). Moreover, the court stated that none of the explanations for excusing a forfeiture applied in this case. The court held that nothing had prevented the Employer from raising the Appointments Clause challenge before the Supreme Court decided Lucia v. SEC.
  • Turner Bros., Inc. v. Director, OWCP, No. 17-9545 (10th Cir. Dec. 11, 2018) (2018 U.S. App. LEXIS 34771) (non-precedential)

    • In Turner Bros., Inc. v. Director, OWCP, No. 17-9545 (10th Cir. Dec. 11, 2018) (2018 U.S. App. LEXIS 34771) (non-precedential), the Employer, relying on Lucia, filed a motion after briefing was completed challenging the ALJ’s authority to have heard the case, and requesting a remand for a new hearing before a different ALJ. The court denied the motion on the ground that the failure to raise the issue before the agency was a failure to exhaust administrative remedies, depriving the court of jurisdiction to hear the matter.

      The court distinguished the Sixth Circuit’s decision in Jones Brothers on the ground that in case the court had excused the employer’s forfeiture by raising but not pressing the Appointments Clause issue before the FMSHRC because “the absence of legal authority addressing whether the [FMSHRC] could entertain the [Appointments Clause] claim” qualified as an extraordinary circumstance. Here, however, the Employer had not mentioned the issue before the ALJ or the BRB, and did not raise the issue until after it filed its briefs with the court.

      The court also noted that Appointments Clause challenges are non-jurisdictional and may be waived or forfeited. The court declined to address the Employer’s argument that the ALJ and the BRB lacked authority to rule on constitutional issues because the Employer did “not make any constitutional challenges to the governing statutes or regulations, or to the Board’s award of benefits.”

  • Star Fire Coals, Inc. v. Director, OWCP, No. 18-3838 (6th Cir. Feb. 6,, 2019) (per curiam) (2019 U.S. App. LEXIS 3835)
    • The Sixth Circuit denied, without prejudice, the Petitioner's motion for remand under Lucia because the Lucia issue had been first raised before the BRB in a motion for reconsideration, and BRB precedent generally precludes consideration of issues raised for the first time on reconsideration. The court noted that it too deems arguments not raised in an opening brief to be forfeited. The court noted that whether there had been a forfeiture in the instant case was not a jurisdictional issue, and that it was more suitable for consideration by the merits panel.
  • Energy West Mining Co. v. Lyle, No. 18-9537 (10th Cir. July 9, 2019) (2019 U.S. App. LEXIS 20280; 2019 WL 2934065)

    • In Energy West Mining Co. v. Lyle, No. 18-9537 (10th Cir. July 9, 2019) (2019 WL 2934065), the employer argued that the ALJ lacked authority to award benefits because he was subject to the Appointments Clause and was not properly appointed under this clause. The employer, however, had not presented this challenge before the BRB. The court found that the employer had to have presented the challenge to the BRB, writing:

      •    Energy West contends that the Benefits Review Board couldn’t have remedied the problem by appointing an administrative law judge. But the Board could have remedied a violation of the Appointments Clause by vacating the administrative law judge’s decision and remanding for reconsideration by a constitutionally appointed officer. See, e.g., Miller v. Pine Branch Coal Sales, Inc., BRB No. 18-0323 BLA, 2018 WL 8269864 (Oct. 22, 2018) (per curiam) (en banc) (granting this relief). Given the availability of a remedy, Energy West needed to present this challenge to the Benefits Review Board. Energy West didn’t, precluding our exercise of jurisdiction over the issue. See Big Horn Coal Co. v. Sadler, 924 F.3d 1317, 1325–26 (10th Cir. 2019) (holding that we lacked jurisdiction to consider an argument that the petitioner had not presented to the Benefits Review Board); McConnell v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor, 993 F.2d 1454, 1460 n.8 (10th Cir. 1993) (concluding that the petitioner’s “failure to raise [an] argument with the [Benefits Review] Board ’constitutes failure to exhaust administrative remedies and deprives the Court of Appeals of jurisdiction to hear the matter’” (quoting Rivera-Zurita v. I.N.S., 946 F.2d 118, 120 n.2 (10th Cir. 1991))).

      Slip op. at 3-4 (footnotes omitted). The court distinguished Jones Bros., Inc. v. Sec’y of Labor, 898 F.3d 669 (6th Cir. 2018), because that decision addressed a provision specific to the Federal Mine Safety and Health Amendments Act of 1977, Pub. L. No. 95-164, 91 Stat. 1290, and the instant case did not concern that statute.

  • Island Creek Coal Company et al. v. Bryan, et al., Nos. 18-3680, -3909, -4022 (6th Cir. Sept. 11, 2019) (2019 U.S. App. LEXIS 27366; 2019 WL 4282871)
    • In Island Creek Coal Company et al. v. Bryan, et al., Nos. 18-3680, -3909, -4022 (6th Cir. Sept. 11, 2019) (2019 U.S. App. LEXIS 27366; 2019 WL 4282871), the Sixth Circuit published a consolidated opinion on three claims. Petitioners argued that the Supreme Court’s decision in Lucia v. SEC, 138 S. Ct. 2044 (2018), rendered unconstitutional the appointments of the ALJs adjudicated their claims. Petitioners raised their Lucia challenges for the first time in motions for reconsideration before the BRB. The Sixth Circuit held that the Petitioners forfeited their constitutional claims by failing to exhaust them with the Board. The court found that “the Department of Labor’s claims-processing rules [do not] permit a party to raise a new constitutional issue in a motion for reconsideration with the Benefits Review Board. . . . ” 2019 U.S. App. LEXIS at * 21.
  • Nat'l Mines Corp. v. Conley, No. 19-3139, 2019 U.S. App. LEXIS 31764 (6th Cir. Oct. 24, 2019) (unpublished)
    • The BRB affirmed the ALJ's decision awarding benefits; the next day the Supreme Court issued its decision in Lucia. Employer filed a motion for reconsideration with the BRB, raising an appointments clause objection for the first time. The BRB denied the motion. On appeal, the Sixth Circuit found that Employer had forfeited the challenge, citing its earlier decision in Island Creek Coal Co. v. Bryan, 937 F.3d 738 (6th Cir. 2019), reh'g denied (Sept. 24, 2019),
  • Star Fire Coals v. Director, No. 18-3838 (6th Cir. Nov. 4, 2019) (2019 U.S. App. LEXIS 32914) (unpublished)
    • In Star Fire Coals v. Director, No. 18-3838 (6th Cir. Nov. 4, 2019) (2019 U.S. App. LEXIS 32914) (unpublished), the Sixth Circuit cited its recent decision in Island Creek Coal Co. v. Bryan, 937 F.3d 738 (6th Cir. 2019), and held that because the Employer did not raise its Appointments Clause argument until it filed a motion for reconsideration before the Board, it did not properly exhaust the issue and forfeited the claim.
  • Bussanich v. Ports America, No. 18-71189 (9th Cir. Dec. 10, 2019) (unpublished) (2019 U.S. App. LEXIS 36541; 2019 WL 6716025) (case below BRB No. 17-0477) (Memorandum)
    • In Bussanich v. Ports America, No. 18-71189 (9th Cir. Dec. 10, 2019) (unpublished) (2019 U.S. App. LEXIS 36541; 2019 WL 6716025) (case below BRB No. 17-0477), the Ninth Circuit stated:
      • For the first time on appeal, Bussanich now contends that the ALJ's decision should be vacated pursuant to Lucia v. SEC, 138 S. Ct. 2044 (2018), because the ALJ was not properly appointed under the Appointments Clause of the United States Constitution. We do not reach this issue. The Department of Labor regulations expressly require petitioners to raise all issues for appeal before the Board. 20 C.F.R. § 802.211(a). Because Bussanich did not raise this argument below, he has forfeited the issue on appeal. SSA Terminals v. Carrion, 821 F.3d 1168, 1174 (9th Cir. 2016). We do not make an exception here because there are no exceptional circumstances that would warrant review of this appeal. Marathon Oil Co. v. United States, 807 F.2d 759, 768 (9th Cir. 1986).
  • Good Coal Co. v. Haynes, No. 19-3142 (6th Cir. Dec. 6, 2019) (unpublished) (2019 U.S. App. LEXIS 36365)
    • In Good Coal Co. v. Haynes, No. 19-3142 (6th Cir. Dec. 6, 2019) (unpublished) (2019 U.S. App. LEXIS 36365), the court stated:

      • In its brief before this court, petitioner argues that the ALJs in this case were not properly appointed and that their decisions must be vacated and the case reassigned to properly appointed ALJs, relying on Lucia v. Securities & Exchange Commission, 138 S. Ct. 2044, 201 L. Ed. 2d 464 (2018). Petitioner also contests the ALJ's decision on the merits.

        Petitioner challenged the appointment of the ALJs before the BRB only in a motion to remand filed months after its initial brief. The BRB declined to address the issue because it was not raised in the initial brief. Because the BRB had the authority to address this claim and provide relief, its decision not to address the claim on procedural grounds means that the issue has not been exhausted for this court's review. See Nat'l Mines Corp v. Conley, F. App'x , No. 19-3139, 2019 U.S. App. LEXIS 31764, 2019 WL 5446005, at *3 (6th Cir. Oct. 24, 2019); Island Creek Coal Co. v. Bryan, 937 F.3d 738, 751-52 (6th Cir. 2019).

  • Zumwalt v. Nat'l Steel & Shipbuilding Co., No. 18-72257 (9th Cir. Dec. 20, 2019) (unpublished) (2019 U.S. App. LEXIS 38071) (BRB No. 17-0048)
    • One of Claimant’s attorneys argued before the 9th Circuit that the ALJ’s decision on attorney’s fees under the LHWCA should be vacated based on Lucia. The court did not reach the issue, finding that the issue was forfeited because it was not raised before the BRB as required by 20 C.F.R. § 802.211(a). The court found no exceptional circumstances warranting an exception to the forfeiture. Moreover, the court did not consider the attorney’s excusable neglect argument because the appointments clause issue was raised for the first time in a reply brief.
  • Island Creek Coal Co. v. Young, No. 19-3113 (6th Cir. Jan. 21, 2020) (2020 U.S. App. LEXIS 1773; 2020 WL 284522)
    • Citing Island Creek Coal Co. v. Bryan, 937 F.3d 738, 744 (6th Cir. 2019), the court held that Island Creek waived its Lucia challenge in the instant case where it first raised the challenge before the BRB in a motion for supplemental briefing filed four months after the merits briefing period had closed. See 20 C.F.R. § 802.211(a) (petitions for review must contain “the specific issues to be considered” by the BRB).
  • David Stanley Consultants v. Dir., Office of Workers' Comp. Programs, No. 18-3406 (3d Cir. Jan. 31, 2020) (unpublished) (2020 U.S. App. LEXIS 3100) (Opinion)
    • Employer waived Appointments Clause challenge by failing to properly raise it before the BRB pursuant to 20 C.F.R. § 802.211(b); issue was first raised in a motion to remand 11 months after opening briefs had been filed; Jones Brothers, 898 F.3d 669 is distinguishable because the BRB is empowered to hear Appointments Clause challenges and has done so when properly raised; Lucia did not change the requirement in Freytag and Ryder that challenge must be timely raised.
  • Joseph Forrester Trucking v. Director, Nos. 20-3329, 20-3331, 20-3332 (6th Cir. Feb. 4, 2021) (2021 U.S. App. LEXIS 3119) (Cases below:  BRB Nos. 19-0099 BLA (Davis); 19-0096 BLA (Mabe); 19-0084 BLA (Tackett))

    • In Joseph Forrester Trucking v. Director, Nos. 20-3329, 20-3331, 20-3332 (6th Cir. Feb. 4, 2021) (2021 U.S. App. LEXIS 3119), the sole issue was whether a party in a Black Lung benefits case forfeits an Appointments Clause challenge before the Benefits Review Board (“BRB”) by not raising the issue during earlier proceedings before an Administrative Law Judge (“ALJ”).  

      The court first noted that Appointments Clause challenges are “subject to ordinary principles of waiver and forfeiture.”  The court stated that to assess forfeiture, it employs “a settled formula. We ask first whether the black lung benefits administrative scheme requires a party to exhaust issues before an ALJ.  If it does, we ask whether the operator properly exhausted its Appointments Clause challenge.  And if the operator did not so exhaust, we ask whether that failure should be excused.”  Slip op. at 5-6 (citation omitted).  The court found that DOL’s regulations require that litigants in BLA raise issues before the ALJ as a prerequisite to BRB review.  The court saw “no reason to believe that the Department of Labor’s exhaustion requirement derogates statutory authority, conflicts with other regulations, or has otherwise been applied in an arbitrary or inconsistent manner.”  Id. at 9 (citation omitted).

      Here, all the coal mine operators raised their Appointments Clause challenge for the first time before the BRB.  The court determined that the fact that the ALJs had short footnotes on the issue was not sufficient to preserve the issue.

      The court was not persuaded by arguments that raising the issue would have been futile, or that it risked engendering hostility from the assigned ALJ, or that Lucia was change in the law.  The court noted that even if Lucia was a change in the law, the operators had not raised the issue before the ALJ in the wake of that decision.  Finally, the court noted that the exhaustion requirement serves the purpose of discouraging gamesmanship.

Administrative Review Board Documents

  • OFCCP v. Convergys Customer Management Group, Inc., ARB No. 16-013, ALJ Nos. 2015-OFC-2 through 8 (ARB Jan. 31, 2019)
    • ARB ORDERS “LUCIA” REMAND FOR RECONSIDERATION BEFORE A NEW, PROPERLY APPOINTED ALJ OF ISSUES FOR WHICH EXCEPTIONS WERE FILED
      In OFCCP v. Convergys Customer Management Group, Inc., ARB No. 16-013, ALJ Nos. 2015-OFC_2 through 8 (ARB Jan. 31, 2019), the ARB had stayed the appeal pending the U.S. Supreme Court’s decision in Lucia v. S.E.C.. The ARB noted that the Supreme Court issued its decision on June 21, 2018, Lucia v. S.E.C., 138 S.Ct. 2044 (2018), and held that “ALJs at the Securities and Exchange Cammission (SEC) are subject to the appointments clause, that the SEC judge decided Lucia’s case without a constitutional appointment, that Lucia timely objected, and that the appropriate remedy was to hold a new hearing before a different ALJ. The Court specified that a properly appointed official cannot be the same ALJ who previously decided the case because he ‘cannot be expected to consider the matter as though he had not adjudicated it before.’” Slip op. at 2 (footnote omittted). The ARB thus dismissed Convergy’s petition for review and remanded “for the appointment of an ALJ to reconsider the issues raised in Convergys’ exceptions to [the original] ALJ...’s July 31 2017 Recommended Decision and Order.” Id.
  • Magers v. Seneca Re-Ad Industries, Inc., ARB No. 2018-0061, ALJ No. 2016-FLS-00003 (ARB Sept. 14, 2020) (per curiam) (Decision and Order)

    • APPOINTMENTS CLAUSE CHALLENGE WAIVED WHERE IT WAS NOT RAISED WHILE THE CASE WAS PENDING BEFORE THE ALJ

      In Magers v. Seneca Re-Ad Industries, Inc., ARB No. 2018-0061, ALJ No. 2016-FLS-00003 (ARB Sept. 14, 2020) (per curiam), Respondent argued on appeal to the ARB that the ALJ had not been properly appointed under the Appointments Clause of the U.S. Constitution. The ARB declined to address this issue, as it had not been raised at any point during the proceedings before the ALJ, and thus had been waived. In support of this ruling, the ARB cited decisions of the BRB in Kiyuna v. Matson Terminals, Inc., BRB No. 19-0103, 2019 WL 2865994 (BRB June 25, 2019) and Daugherty v. Consol. Coal Co., BRB No. 18-0341, 2019 WL 3775979 (BRB July 19, 2019).

  • Budri v. FirstFleet Inc., ARB No. 2020-0065, ALJ No. 2020-STA-00108 (ARB Sept. 15, 2020) (per curiam)

    • APPOINTMENTS CLAUSE; ARB REJECTS COMPLAINANT’S CLAIM THAT ALJ HAD NOT BEEN VALIDLY APPOINTED WHERE THE SECRETARY HAD ALREADY RATIFIED THE ALJ’S APPOINTMENT, AND WHERE COMPLAINANT WAIVED THE APPOINTMENTS OBJECTION BY FAILING TO RAISE IT IN HIS PRIOR RELATED CASES; ARB PRESUMES VALIDITY OF THE SECRETARY’S RATIFICATION

      The ARB denied Complainant’s petition for review in Budri v. FirstFleet, Inc., ARB No. 2020-0065, ALJ No. 2020-STA-00108 (ARB Sept. 15, 2020) (per curiam). This was Complainant’s sixth complaint filed against Respondent. The ARB had earlier denied review of the ALJ’s findings that the fifth complaint was barred by res judicata and issue preclusion, and was frivolous. See Budri v. Firstfleet, Inc., ARB No. 2020-0061, ALJ No. 2020-STA-00090 (ARB August 5, 2020). Complainant’s main argument before the ALJ and the ARB for the sixth complaint was that the ALJ had not been validly appointed under the Appointments Clause of the U.S. Constitution. The ARB rejected this contention, finding that the sixth case, and the prior cases, were filed and decided after the Secretary ratified the ALJ’s appointment on December 21, 2017. The ARB also found that Complainant waived the argument by not raising it earlier. The ARB further found that it did not have the authority to pass on the validity of the Secretary’s ratifications. The ARB stated that it viewed “the Secretary’s ratification of the appointments of the ALJs serving in the Department as of December 2017 as sufficient to satisfy the Appointments Clause. ” Slip op. at 4. In a footnote, the ARB cited Marbury v. Madison, 5 U.S. 137, 157 (1803) (the appointment of an officer need only be “evidenced by an open, unequivocal act”) and Advanced Disposal Servs. E., Inc. v. NLRB, 820 F.3d 592, 604 (3d Cir. 2016) (agency action presumed valid under presumption of regularity).

  • Perez v. BNSF Railway Co., ARB Nos. 2017-0014 and -0040, ALJ No. 2014-FRS-00043 (ARB Sept. 24, 2020) (per curiam) (Decision and Order of Remand)

    • APPOINTMENTS CLAUSE CHALLENGE NOT TIMELY RAISED

      In Perez v. BNSF Railway Co., ARB Nos. 2017-0014 and -0040, ALJ No. 2014-FRS-00043 (ARB Sept. 24, 2020) (per curiam), the ARB found that Respondent’s appointments clause challenge to the appointment of ALJ was not timely raised. The ARB agreed with the Solicitor’s contention that "all of the information needed to challenge the Department of Labor’s ALJ appointments was available prior to the issuance of the ALJ’s decision in this case." The ARB also noted that "it is clear that Respondent had inquiry notice as early as December 2017 when the Secretary of Labor 'ratified' the appointment of its administrative law judges. Yet, BNSF did not file a motion for supplemental briefing until almost a year later."

  • LaQuey v. UnitedHealth Group, Inc., ARB No. 2017-0060, ALJ Nos. 2016-SOX-00002 (ARB Oct. 9, 2020) (Decision and Order)

    • APPOINTMENTS CLAUSE CHALLENGE FORFEITED WHERE IT HAD NOT BEEN RAISED BEFORE THE ALJ, IN THE PETITION FOR ARB REVIEW, OR IN THE INITIAL BRIEF BEFORE THE ARB

      In LaQuey v. UnitedHealth Group, Inc., ARB No. 2017-0060, ALJ Nos. 2016-SOX-00002 (ARB Oct. 9, 2020), the ALJ issued a Decision and Order dismissing Complainant’s SOX complaint on July 7, 2017, and the ARB received Complainant’s Petition for Review on July 21, 2017. Complainant filed a Motion to Vacate on May 29, 2020, claiming that he was entitled to a new hearing before a different ALJ under the U.S. Supreme Court’s decision in Lucia v. S.E.C. because the ALJ was not properly appointed. The ARB denied the motion, finding that the issue had been forfeited. The ARB found that all of the information needed to challenge the ALJ’s appointment was available prior to the issuance of the ALJ’s decision. The ARB noted that this issue had been raised by the Supreme Court in Freytag v. Comm’r of Internal Rev. in 1991. The ARB also noted that “it is clear that Complainant had inquiry notice as early as December 2017 when the Secretary of Labor ‘ratified’ the appointment of its administrative law judges. Yet, Complainant did not file his Motion to Vacate until three years later.” Slip op. at 9. The ARB thus held that Complainant’s challenge had not been raised in a timely manner “as it was not raised before the ALJ, in the petition for review, or in the initial brief before the ARB.” Id.

  • OFCCP, USDOL v. WMS Solutions, LLC, ARB No. 2020-0057, ALJ No. 2015-OFC-00009 (ARB Nov. 18, 2021) (per curiam) (Decision and Order)

    • APPOINTMENTS CLAUSE; ARB ADDRESSES SUPREME COURT DECISION IN CARR, AND DETERMINES THAT OFCCP PROCEEDINGS MANDATE THAT AN APPOINTMENTS CLAUSE CHALLENGE BE RAISED WHILE THE CASE IS STILL BEFORE THE ALJ

      In OFCCP, USDOL v. WMS Solutions, LLC, ARB No. 2020-0057, ALJ No. 2015-OFC-00009 (ARB Nov. 18, 2021) (per curiam), Respondent argued that the ALJ was improperly appointed under the Appointments Clause of the Constitution, and that the case should be remanded for assignment to a new ALJ consistent with the Supreme Court’s decision in Lucia v. SEC, 138 S. Ct. 2044 (2018).

      The ARB noted that it had ruled in several prior cases that Appointments Clause objections must be raised before the ALJ.  See, e.g., Riddell v. CSX Transportation, Inc., ARB No. 2019-0016, ALJ No. 2014-FRS-00054 (ARB May 19, 2020); Perez v. BNSF Ry. Co., ARB Nos. 2017-0014, -0040, ALJ No. 2014-FRS-00043 (ARB Sept. 24, 2020).  The ARB, however, had asked for supplemental briefing from the parties in the instant case in view of the Supreme Court’s decision in Carr v. Saul, 141 S. Ct. 1352 (2021), where the plaintiffs were allowed to raise their Appointments Clause objection in the SSA hearing context for the first time in federal court.  The ARB found that (1) the OFCCP regulations require issue exhaustion; and (2) even if issue exhaustion by the regulations is not required, applying the reasoning in Carr, it is nonetheless required in OFCCP cases .

      The ARB noted that unlike SSA proceedings, “OFCCP proceedings involve both parties fully developing the record and ample issue development.”  Slip op. at 11.  The ARB found that ALJs in OFCCP proceedings regularly address as-applied constitutional issues, including 4th Amendment issues—and that DOL ALJs have in the past had OFCCP cases reassigned to new ALJs when parties requested a reassignment due to Appointments Clause concerns. The ARB stated:  “The ALJs in these cases not only have the authority to address this issue—they have a prior history of doing so.”  Id. at 12.  The ARB further determined that requiring issue exhaustion was appropriate because “[t]he harm to judicial integrity and efficiency caused by permitting a party to undertake a lengthy proceeding before an ALJ only to challenge the ALJ’s authority on appeal, perhaps after an unfavorable decision, is not insignificant.”  Id. (footnote omitted).

      The ARB determined that in the instant case, the ALJ had given the parties ample opportunity to raise the issue, and had warned of the consequences of failing to raise an issue with the ALJ.  The ARB noted that Respondent “had ample opportunity to raise the issue once it came to the forefront in the lead up and aftermath to the Supreme Court’s Lucia decision.” The ARB also noted that between the conclusion of the hearing, and the date of the ALJ’s decision, the Secretary of Labor had ratified all ALJ appointments.  The ARB thus concluded “because WMS failed to raise the issue before the ALJ, raising it now in the proceeding before the Board is untimely.”

Benefits Review Board Documents

  • Kiyuna v. Matson Terminals, Inc., BRB No. 19-0103 (June 25, 2019)
    • CLAIMANT FORFEITED APPOINTMENTS CLAUSE CHALLENGE WHEN IT WAS RAISED FOR THE FIRST TIME IN A MOTION FOR RECONSIDERATION FILED MONTHS AFTER LUCIA WAS DECIDED
      The BRB in this LHC decision affirmed the ALJ’s decision on reconsideration finding that Claimant forfeited a Lucia objection where Lucia had been decided two and a half months before the ALJ issued her decision, and three months before Claimant raised his appointments clause argument in a motion for reconsideration. The BRB found that it was within the ALJ’s discretion to find that counsel’s lack of awareness of the law was not sufficient to excuse forfeiture. The BRB said that the ALJ reasonably concluded that the untimely raising of the issue constituted “judge-shopping” and “sandbagging.” The BRB noted that the ALJ had the authority to consider “as-applied” challenges to her appointment, and correctly found that a remedy had been available had the issue been timely raised —referral of the case for assignment to a different, properly appointed ALJ to hold a new hearing. The BRB found the ALJ had given thoughtful consideration to the procedural posture of the case and the bases on which claimant’s forfeiture might be excused.
  • Fossat v. Sunnyside Coal Co., BRB No. 18-0333 BLA (Feb. 26, 2019) (per curiam) (unpublished)
    • ALTHOUGH ALJ HAD RECONSIDERED AND RATIFIED HIS PRIOR DECISION CONSISTENT WITH THE BRB’S REMAND INSTRUCTIONS, THE BRB FOUND ON A SECOND APPEAL THAT LUCIA NOW MADE IT CLEAR THAT RECONSIDERATION WAS NOT AN ADEQUATE REMEDY
      Upon appeal of an ALJ’s award of benefits, the Employer presented an appointments clause challenge. The BRB remanded because the ALJ had issued his decision prior to the Secretary’s December 21, 2017 ratification of all DOL ALJ appointments. The BRB’s remand order included instructions to the ALJ to “reconsider the substantive and procedural actions previously taken and to issue a decision accordingly.” On remand, the ALJ “restated, reaffirmed, and ratified” his prior decision. On its appeal of the ALJ’s decision on remand, the Employer again raised the appointments clause issue. The Director responded that in light of the Supreme Court’s decision in Luica, the BRB should grant a request for remand for reassignment. The BRB, acknowledging that the ALJ had followed its remand instructions, found that the Lucia decision made it clear that this was an inadequate remedy, and remanded for reassignment to a new ALJ for further proceedings.
  • Tackett v. ICG Knott County, LLC, BRB No. 18-0033 BLA (Feb. 26, 2019) (per curiam) (unpublished)

    • WHERE LUCIA-RELATED CHALLENGE WAS NOT RAISED IN FIRST APPEAL TO THE BRB, THE BRB DENIED THE EMPLOYER’S MOTION TO REMAND FOR A NEW HEARING AFTER THE CASE WAS APPEALED FROM THE ALJ’S AWARD OF BENEFITS ON REMAND; THE ARB DISTINGUISHED JONES BROTHERS
      The ALJ had awarded benefits on remand. On the second appeal, the Board addressed whether the employer should be excused from forfeiting its Lucia-related challenge. It concluded that the forfeiture exception the Sixth Circuit recognized in Jones Brothers did not apply:

      • Nor does the exception recognized in Jones Brothers v. Sec’y of Labor, 898 F.3d 669 (6th Cir. 2018) apply as, unlike the Federal Mine Safety and Health Review Commission, the Board has the long-recognized authority to address an Appointments Clause issue if properly raised. See Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1116-17 (6th Cir. 1984) (Congress vested the Board with the statutory power to decide substantive questions of law); Duck v. Fluid Crane and Constr. Co., 36 BRBS 120, 121 n.4 (2002) (the Board “possesses sufficient statutory authority to decide substantive questions of law including the constitutional validity of statutes and regulations within its jurisdiction”).

      Slip op. at 3, n.2. Because the employer did not raise its Lucia-related challenge when the case was initially before the Board, the Board denied the employer’s motion to remand the case for a new hearing before a new ALJ.

  • Shepherd v. Incoal, Inc., BRB No. 18-0370 BLA (Feb. 25, 2019) (per curiam) (unpublished)
    • BRB REJECTS CONTENTION THAT AN EMPLOYER WAIVES AN APPOINTMENTS CLAUSE CHALLENGE BY NOT RAISING IT BEFORE THE ALJ
      The ALJ awarded benefits on a subsequent claim. On appeal, the Employer raised an appointments clause challenge. Noting that the ALJ had taken significant actions on the case prior to the date the Secretary of Labor ratified the appointment of all DOL ALJs, and in light of Lucia, the BRB remanded for a further proceedings before a different ALJ. The BRB rejected the Claimant’s argument that the Employer waived the argument by not raising it before the ALJ.
  • Aguilar v. Navy Exchange Service Command, ___ BLR ___, BRB No. 18-0327 (Dec. 20, 2018) (unpublished)

    • WHERE APPOINTMENTS CLAUSE CHALLENGE NOT TIMELY RAISED WHEN MERITS DECIDED, IT IS TOO LATE TO RAISE IT IN CHALLENGE TO ATTORNEY'S FEE DECISION
      Claimant appealed ALJ's fee award, and contended that the award should be vacted because the ALJ was not properly appointed under the Constitution. The BRB noted that Employer and the Director respond that the issue was not timely raised in this case because it was not raised while the case was being decided on the merits or on claimant's pending motion for modification. The BRB stated:

      • We agree that counsel's Appointments Clause challenge must fail. The Act's regulations require that an attorney's fee petition is to be determined by the administrative law judge before whom the services were rendered if she is available to do so. 20 C.F.R. § 702.132; see Ayers Steamship Co. v. Bryant, 544 F.2d 812, 5 BRBS 317 (5th Cir. 1977) (administrative law judge who heard the merits is in the best position to award a fee for the attorney's work). The determination of the amount of an attorney's fee is ancillary to proceedings on the merits of the case. Because counsel failed to challenge the administrative law judge's authority to render a decision on the merits of the case, he cannot now make an Appointments Clause challenge with regard to the fee award. See generally Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 574 F.3d 748, 755-756 (D.C. Cir. 2009).

      (footnote omitted).

  • Neace v. Cumberland River Coal Co., ___ BLR ___, BRB Nos. 17-0478 BLA and 17-0479 BLA (Dec. 17, 2018) (unpublished)
    • EXCEPTIONAL CIRCUMSTANCES TO EXCUSE FORFEITURE OF ARGUMENT NOT SHOWN
      BRB found that "exceptional circumstances" had not been shown to excuse Employer's forfetiture of Appointments Clause challenge by not raising it in its opening brief before the BRB.
  • Luckern v. Richard Brady & Associates, ___ BLR ___, BRB No. 18-0123 (Oct. 30, 2018) (published)
    • LUCIA FOUND NOT TO BE A CHANGE IN THE LAW SUCH AS TO ENTITLE RAISING OF ISSUE FOR FIRST TIME IN REPLY BRIEF
      The BRB ruled:

      •    In its reply brief, employer requested that the case be remanded for adjudication by a different administrative law judge pursuant to Lucia v. SEC,     U.S.    , 138 S. Ct. 2044 (2018). The Director filed a motion to strike this argument because it is non-responsive to the response briefs and because employer waived the argument by failing to raise it in its initial petition for review before the Board. Employer filed a response in opposition to the Director's motion.

           We grant the Director's motion to strike. Employer did not raise any issue concerning the administrative law judge's appointment in its initial brief to the Board, and thus forfeited its Appointments Clause argument. 20 C.F.R. § 802.211. The Appointments Clause issue is "non-jurisdictional," see Intercollegiate Brad. Sys., Inc. v. Copyright Royalty Bd., 574 F.3d 748, 755-56 (D.C. Cir. 2009), and thus is subject to the doctrines of waiver and forfeiture. Id.; see Lucia, 138 S. Ct. at 2055 ("one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to relief"). Moreover, contrary to employer's contention, Lucia does not represent a "change in law" such that it is entitled to raise the issue at this juncture. Lucia, 138 S. Ct. at 2053, citing Freytag v. Comm'r, 501 U.S. 868 (1991).

  • Bailey v. Abundance Coal, Inc., ___ BLR ___, BRB No. 17-0482 BLA (Nov. 16, 2018) (unpublished)
    • REJECTION OF CONTENTION THAT FAILURE TO RAISE ARGUMENT TIMELY IS EXCUSED BASED ON ARGUMENT THAT BRB DOES NOT HAVE AUTHORITY TO DECIDE CONSTITUTIONAL ISSUES
      The BRB denied reconsideration of an earlier Decision and Order. In its Order on Reconsideration the BRB noted:
      • Employer argues for the first time on reconsideration that the manner in which Department of Labor administrative law judges are appointed violates the Appointments Clause of the Constitution, Art. II § 2, cl. 2. Employer's Motion for Reconsideration at 1-2. The Director, Office of Workers' Compensation Programs (the Director), responds that employer waived this argument by failing to raise it in its opening brief. We agree with the Director. Because employer first raised the Appointments Clause issue only after the Board issued its decision affirming the administrative law judge's award of benefits, employer waived the issue. See Lucia v. SEC, 585 U.S., 138 S.Ct. 2044, 2055 (2018) (requiring "a timely challenge to the constitutional validity of the appointment of an officer who adjudicates [a party's] case"); see also Williams v. Humphreys Enters., Inc., 19 BLR 1-111, 1-114 (1995) (the Board generally will not consider new issues raised by the petitioner after it has filed its brief identifying the issues to be considered on appeal); Senick v. Keystone Coal Mining Co., 5 BLR 1-395, 1-398 (1982). Employer's assertion that its failure to raise the argument should be excused because in its view the Board does not have the authority to decide constitutional issues is without merit. Gibas v. Director, OWCP, 748 F.2d 1112, 1119 (6th Cir. 1984) ("Congress intended to invest in the Board the same judicial power to rule on substantive legal questions as was possessed by the district courts.") (citation omitted).
  • Morris v. Big Elk Creek Coal Co., Inc., ___ BLR ___, BRB No. 18-0207 BLA (Nov. 8, 2018) (unpublished)
    • WAIVER FOR FAILURE TO RAISE ISSUE BEFORE ALJ; ALJ DID NOT HAVE AUTHROITY TO DECIDE CONSTITUTIONALITY OF HIS APPOINTMENT
      Employer raised Appointments Clause challenge in its opening brief. Later, the Supreme Court issued its decision in Lucia, and the BRB therefore vacated the the ALJ's decision and remanded for a new hearing before a new, constitutionally appointed ALJ. The ARB noted that Claimant had argued that that employer waived its Appointments Clause challenge by failing to raise it before the ALJ. The ARB declined to address this argument, stating that "[t]he administrative law judge did not have the authority to decide the issue of the constitutionality of his appointment. Lucia v. SEC, 585 U.S., 138 S.Ct. 2044 (2018). Because new proceedings must take place before a new administrative law judge, it is not necessary for the Board to reach this issue in this appeal. Id."
  • Cordell v. Shamrock Coal Co., Inc., BRB No. 18-0239 BLA (Oct. 30, 2018) (unpublished)
    • LUCIA REMAND REQUIRED WHERE ALJ HAD TAKEN SIGNIFICANT ACTION IN CASE PRIOR TO SECRETARY'S RATIFICATION OF APPOINTMENT
      Because the ALJ took significant actions before the Secretary’s ratification on December 21, 2017, “the Secretary’s ratification did not foreclose the Appointments Clause argument raised by employer”; case remanded for reassignment.
  • Hampton v. ANR Coal Co., LLC, BRB Nos. 18-0038 BLA and 18-0039 BLA (Oct. 30, 2018) (unpublished)
    • WHERE FEE PETITION HAD EARLIER BEEN REMANDED UNDER LUCIA TO RECONSIDER, SUBSEQUENT SUPREME COURT DECISION MANDATED THAT CASE ON THE MERITS BE REASSIGNED TO DIFFERENT, CONSTITUTIONALLY APPOINTED ALJ
      Remand related to a fee petition order in light of an earlier Lucia-related remand in the merits case; although the earlier remand was for the ALJ to reconsider, given the Supreme Court’s decision in Lucia decision was issued, the case on the merits must be reassigned.
  • Ison v. ICG Knott County LLC, ___ BLR ___, BRB No. 17-0628 BLA (Oct. 23, 2018) (unpublished)
    • WAIVER OF APPOINTMENTS CLAUSE CHALLENGE IF NOT RAISED IN OPENING BRIEF
      Employer waived Appointments Clause argument because it had not raised the issue in its opening brief.
  • Miller v. Pine Branch Coal Sales, Inc., ___ BLR ___, BRB No. 18-0323 BLA (Oct. 22, 2018) (en banc) (published)

    • WHERE ALJ HAD RATIFIED HIS PRIOR ACTIONS UPON REMAND FROM BRB TO CONSIDER WHETHER TO DO SO PRIOR TO SUPREME COURT DECISION IN LUCIA, BRB FINDS ON SECOND APPEAL THAT ALJ DID NOT HAVE AUTHORITY ON REMAND TO RATIFY, AND REMANDING FOR ASSIGNMENT OF NEW, CONSTITUTIONALLY APPOINTED ALJ
      In an initial appeal, the Benefits Review Board had remanded for the ALJ to reconsider his decision and prior actions in the case, and to ratify them if appropriate, in view of the Employer’s Appointments Clause challenge. On remand, the ALJ ratified his prior actions and issued a new decision awarding benefits on March 29, 2018. In its appeal of the ALJ’s decision on remand, the Employer argued that the ALJ was without authority to hear and decide the case and that the case must therefore be remanded for reassignment to a new ALJ. The Director agreed that the case should be reassigned in light of Lucia.

      The Board concluded that “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, slip op. at 4. The Board vacated ALJ’s decision on remand and remanded for reassignment to a new ALJ. The Board declined to address, as premature, the Employer contentions that the Secretary of Labor’s December 21, 2017 letters ratifying prior ALJ appointments are constitutionally deficient, and that any removal protections afforded administrative law judges are unconstitutional.

  • Bryant v. Dove Coal, Inc., BRB No. 18-0231 BLA (Oct. 20, 2018) (unpublished)
    • LUCIA REMAND REQUIRED WHERE ALJ HAD TAKEN SIGNIFICANT ACTION IN CASE PRIOR TO SECRETARY'S RATIFICATION OF APPOINTMENT
      Remand/reassignment in light of Lucia where appointments clause issue was timely raised in brief before the BRB, and the ALJ had taken a significant action in the case (a hearing) prior to Dec. 21, 2017.
  • Johnston v. Baker, ___ BLR ___, BRB No. 18-0040 (Aug. 29, 2018) (unpublished)
    • LUCIA FOUND NOT TO BE A CHANGE IN THE LAW SUCH AS TO PERMIT RAISING ISSUE AFTER FILING OF OPENING BRIEF
      Claimant waived Appointments Clause challenge to ALJ's attorney fee order because it had not raised the issue in its opening brief. BRB held that "Lucia does not represent a 'change in law' such that [the Claimannt] is entitled to raise the issue at this juncture."
  • Sizemore v. Shamrock Coal Co., ___ BLR ___, BRB Nos. 17-0518 BLA and 17-0519 BLA (Aug. 10, 2018) (unpublished)
    • BRB HAS DISCRETION TO CONSIDER UNTIMELY NON-JURISDICTIONAL CONSTITUTIONAL CLAIMS IN EXCEPTIONAL CASES
      Employer waived Appointments Clause argument because it had not raised the issue in its opening brief. While the BRB has the discretion in exceptional cases to consider nonjurisdictional constitutional claims that were not timely raised, employer had not attempted to establish that this case so qualifies.
  • Jeffrey D. Barnette v. Regent Allied Carbon Energy, BRB No. 19-0070 BLA (Dec. 30, 2019 (per curiam) (unpub.)

    • BRB HAS DISCRETION TO CONSIDER UNTIMELY NON-JURISDICTIONAL CONSTITUTIONAL CLAIMS IN EXCEPTIONAL CASES

      BRB DETERMINES THAT THE SECRETARY’S RATIFICATION OF ALJ’S APPOINTMENT ON DECEMBER 21, 2017 WAS A PROPER APPLICATION HIS APPOINTMENT POWER; THAT THE APPOINTMENT LETTER MAY HAVE BEEN SIGNED BY AUTOPEN WOULD NOT RENDER APPOINTMENT INVALID; FACT THAT ALJ ISSUED NOTICE OF HEARING PRIOR TO RATIFICATION DID NOT, IN ITSELF, TAINT THE ADJUDICATION SUCH THAT A REMAND FOR A NEW HEARING WOULD BE REQUIRED

      In Barnette v. Regent Allied Carbon Energy, BRB No. 19-0070 BLA (Dec. 30, 2019 (per curiam) (unpub.), the BRB addressed Employer’s appointments clause challenge:

      •  

        Appointments Clause

           Employer challenges the administrative law judge’s authority to hear and decide this case. It notes the United States Supreme Court held in Lucia v. SEC, 585 U.S. , 138 S.Ct. 2044 (2018), that Securities and Exchange Commission (SEC) administrative law judges were not properly appointed in accordance with the Appointments Clause[5] of the Constitution. Employer’s Brief at 5-7. It argues the administrative law judge in this case was similarly appointed improperly.

        • [5] Article II, Section 2, Clause 2, sets forth the appointing powers:

          • [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

          U.S. Const. art. II, § 2, cl. 2.

           Employer acknowledges that after the administrative law judge’s initial appointment, the Secretary of Labor ratified her prior appointment and all Department of Labor (DOL) administrative law judges on December 21, 2017.[6] It maintains, however, that the Secretary’s ratification was insufficient to “cure the defect” in the administrative law judge’s initial appointment. Employer’s Brief at 6. The Director responds that the administrative law judge had the authority to hear and decide this case because the Secretary’s December 21, 2017 ratification of the prior appointment was proper under the Appointments Clause. Director’s Brief at 6-7. We agree with the Director.

        • [6] The Secretary of Labor issued a letter to the administrative law judge on December 21, 2017 stating:

          • In my capacity as head of the Department of Labor, and after due consideration, I hereby ratify the Department’s prior appointment of you as an Administrative Law Judge. This letter is intended to address any claim that administrative proceedings pending before, or presided over by, administrative law judges of the U.S. Department of Labor violate the Appointments Clause of the U.S. Constitution. This action is effective immediately.

          Secretary’s December 21, 2017 Letter to Administrative Law Judge Dana Rosen.

           As the Director notes, an appointment by the Secretary need only be “evidenced by an open, unequivocal act.” Director’s Brief at 6, quoting Marbury v. Madison, 5 U.S. 137, 157 (1803). Further, ratification “can remedy a defect” arising from the appointment of an official when an agency head “has the power to conduct an independent evaluation of the merits [of the appointment] and does so.” Wilkes-Barre Hosp. Co. v. NLRB, 857 F.3d 364, 371 (D.C. Cir. 2017) (internal quotations omitted); see also McKinney v. Ozburn-Hessey Logistics, LLC, 875 F.3d 333, 338 (6th Cir. 2017). In cases involving the Appointments Clause, ratification is permissible so long as the agency head 1) had at the time of ratification the authority to take the action to be ratified; 2) had full knowledge of the decision to be ratified; and 3) made a detached and considered affirmation of the earlier decision. Wilkes-Barre, 857 F.3d at 372; Advanced Disposal Servs. E., Inc. v. NLRB, 820 F.3d 592, 603 (3d Cir. 2016); CFPB v. Gordon, 819 F.3d 1179, 1191 (9th Cir. 2016). Further, under the “presumption of regularity,” courts presume that public officers have properly discharged their official duties, with “the burden shifting to the attacker to show the contrary.” Advanced Disposal, 820 F.3d at 603, citing Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001).

           The Secretary had, at the time of ratification, the authority to take the action to be ratified. Wilkes-Barre, 857 F.3d at 372; Advanced Disposal, 820 F.3d at 603. Congress has authorized the Secretary to appoint administrative law judges to hear and decide cases under the Act. 30 U.S.C. §932a; see also 5 U.S.C. §3105.

           Under the presumption of regularity, we presume the Secretary had full knowledge of the decision to be ratified and made a detached and considered affirmation. Advanced Disposal, 820 F.3d at 603. In evaluating these factors, we note the Secretary did not generally ratify the appointment of all administrative law judges in a single letter. Rather, he specifically identified Administrative Law Judge Rosen and indicated he gave “due consideration” to her appointment. Secretary’s December 21, 2017 Letter to Administrative Law Judge Rosen. The Secretary further stated that he was acting in his “capacity as head of the Department of Labor” when ratifying the appointment of Judge Rosen “as an Administrative Law Judge.” Id. Employer does not assert that the Secretary had no “knowledge of all the material facts” or that he did not make a “detached and considered judgment” when he ratified Judge Rosen’s appointment, and therefore employer does not overcome the presumption of regularity. Advanced Disposal, 820 F.3d at 603-04 (holding mere lack of detail in express ratification is not sufficient to overcome the presumption of regularity); see also Butler, 244 F.3d at 1340.

           Based on the foregoing, we hold that the Secretary’s action constituted a proper ratification of the appointment of the administrative law judge.[7] See Edmond v. United States, 520 U.S. 651, 654-66 (1997) (holding as valid the appointment of civilian members of the Coast Guard Court of Criminal Appeals where the Secretary of Transportation issued a memorandum “adopting” the General Counsel’s assignments to the Coast Guard Court of Military Review “as judicial appointments of my own”); Advanced Disposal, 820 F.3d 592, 604-05 (holding that a properly constituted NLRB can retroactively ratify the appointment of a Regional Director with statement that it “confirm[ed], adopt[ed], and ratif[ied] nunc pro tunc” all its earlier actions as an invalid Board).

        • [7] Employer notes the Secretary’s ratification letter was “clearly signed electronically.” Employer’s Brief at 6. Even if the Secretary used an autopen, this would not render the appointment invalid. See Nippon Steel Corp. v. Int’l Trade Comm’n, 239 F.Supp.2d 1367, 1373, 1375 n.14 (Ct. Int’l Trade 2002).

           Employer next argues that Lucia precludes the administrative law judge from hearing this case, notwithstanding the Secretary’s ratification. Employer contends that because the administrative law judge was not properly appointed until December 21, 2017, more than two months after she issued a Notice of Hearing, her Decision and Order Awarding Benefits must be vacated and the case remanded for a new hearing before a new administrative law judge. Employer’s Brief at 6-7. We disagree.

           The appropriate remedy for an adjudication tainted with an appointments violation 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 issuance of a Notice of Hearing alone does not involve any consideration of the merits, nor would it be expected to color the administrative law judge’s consideration of the case. It therefore did not taint the adjudication with an appointments clause violation requiring remand.

           The Notice of Hearing simply reiterates the statutory and regulatory requirements governing the hearing procedures. Thus, unlike the situation in Lucia, in which the judge had presided over a hearing and issued an initial decision while he was not properly appointed, the Notice of Hearing in this case would not be expected to affect this administrative law judge’s ability “to consider the matter as though [s]he had not adjudicated it before.” Lucia, 138 S.Ct. at 2055. As employer raises no other arguments in support of its position that the administrative law judge’s appointment tainted the adjudication of this claim,[8] we reject employer’s argument that this case should be remanded for a new hearing before a new administrative law judge.

        • [8] Employer notes the administrative law judge “presumably” also received the Director’s Exhibits before the Secretary ratified her appointment. Employer’s Brief at 7. We agree with the Director that the required transfer of the Director’s Exhibits to the administrative law judge does not involve any consideration of the merits and would not color the administrative law judge’s consideration of the case. Director’s Brief at 5; see 20 C.F.R. §725.455(b) (administrative law judge “shall receive into evidence . . . the evidence submitted to the Office of Administrative Law Judges [(OALJ)] by the district director”); see also 20 C.F.R. §725.421 (district director shall transmit evidence and related documents to the OALJ in any case referred for a hearing).

      Slip op. at 3-6.

  • Cline v. Mingo Logan Coal Co., BRB No. 18-0543 BLA (Dec. 4, 2019) (per curiam) (unpub.)
    • BRB HAS DISCRETION TO CONSIDER UNTIMELY NON-JURISDICTIONAL CONSTITUTIONAL CLAIMS IN EXCEPTIONAL CASES REMOVAL PROTECTIONS RELATED TO ALJS; BRB DECLINES TO ADDRESS ISSUE WHERE IT WAS INADEQUATELY BRIEFED; BRB NOTES THAT THE SUPREME COURT REFRAINED FROM ADDRESSING REMOVAL PROVISIONS VIS-À-VIS ADMINISTRATIVE LAW JUDGES IN FREE ENTERPRISE AND LUCIA In Cline v. Mingo Logan Coal Co., BRB No. 18-0543 BLA (Dec. 4, 2019) (per curiam) (unpub.), the BRB denied Employer’s appointments clause challenge using essentially the same analysis as in Barnette v. Regent Allied Carbon Energy, BRB No. 19-0070 BLA (Dec. 30, 2019 (per curiam) (unpub.), which is extensively quoted in the casenote above. Employer also raised a question as to whether the APA’s limitations on removal of ALJs violates “separation of powers.” The BRB declined to consider the argument on the ground that it was inadequately briefed, but in a footnote observed that the Supreme court in Free Enterprise stated that its holding did not address ALJs, and that the majority in Lucia declined to address the removal provisions for ALJ’s.
  • Noble v. B&W Resources, Inc., ___ BLR ___, BRB No. 18-0533 BLA (Jan. 15, 2020)

    • LUCIA DID NOT WARRANT A NEW HEARING WHERE ONLY ACTION TAKEN BY ALJ PRIOR TO RATIFICATION OF HIS APPOINTMENT BY THE SECRETARY OF LABOR WAS ISSUANCE OF A NOTICE OF HEARING

      In Noble v. B&W Resources, Inc., ___ BLR ___, BRB No. 18-0533 BLA (Jan. 15, 2020), the ALJ denied the claim and Claimant appealed. The BRB issued a letter to the self-represented Claimant asking whether he would like the BRB to consider whether Lucia applies to his case, to which Claimant responded that he would. The BRB then issued orders informing all parties of the consideration of Lucia. Employer and Director opposed remand for a new hearing before a different, properly appointed ALJ. The BRB agreed that Lucia did not mandate a new hearing under the facts of the case. The BRB stated:

      •    Before Lucia was issued . . . the Secretary of Labor, exercising his power as the Head of a Department under the Appointments Clause, ratified the appointment of Administrative Law Judge Golden on December 21, 2017. . . . The record reflects that the only action the administrative law judge took before his appointment was ratified was the issuance of a Notice of Hearing. The issuance of a Notice of Hearing alone does not involve any consideration of the merits, nor would it be expected to color the administrative law judge’s consideration of the case. The Notice of Hearing simply reiterates the statutory and regulatory requirements governing the hearing procedures.

           Thus, unlike the situation in Lucia, in which the judge had presided over a hearing and had issued an initial decision while he was not properly appointed, the issuance of the Notice of Hearing in this case would not be expected to affect this administrative law judge’s ability “to consider the matter as though he had not adjudicated it before. ” Lucia, 138 S.Ct. at 2055. It therefore did not taint the adjudication with an Appointments Clause violation requiring remand, and we decline to remand this case to the Office of Administrative Law Judges for a new hearing before a different, properly appointed administrative law judge.

      Slip op. at 4 (footnote omitted).

Administrative Law Judge Documents

  • OFCCP v. Oracle America, Inc., 2017-OFC-00006 (ALJ Jan. 11, 2019)
    • VALIDITY OF SECRETARY'S RATIFICATIONS AS APPOINTMENTS; REMOVAL PROTECTIONS
      The ALJ addressed several appointments-related issues in OFCCP v. Oracle America, Inc., 2017-OFC-00006 (ALJ Jan. 11, 2019). Oracle's principal argument was that no DOL ALJ is properly appointed under the Constitution. This order received media attention. The ALJ determined:
      • That an ALJ has the authority to consider an "as applied" constitutional challenge because DOL could provide relief, such as by not hearing the case until a properly appointed ALJ is available.
      • That the circumstances surrrounding the Secretary of Labor's ratification of ALJ appointments established that he was making an open and unequivocal act to appoint.
      • That the applicability of competitive service requirements prior to the President's E.O. exempting ALJ selection from such was not relevant, as the Appointments Clause question is about whether the head of the agency made the appointment, not the process used for selection.
      • That the question of supervision by a principal officer is a test for determining whether someone is an inferior officer, and not whether the inferior officer was properly appointed or can carry out his or her duties.
      • That a constitutional deficiency based on removal limitations for ALJs would not impact an ALJs’ ability to lawfully perform his or her duties.