                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0544n.06

                                         Case No. 19-3139

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                                  Oct 24, 2019
NATIONAL MINES CORP., et al.,                        )                       DEBORAH S. HUNT, Clerk
     Petitioners,                                    )
                                                     )       ON PETITION FOR REVIEW OF
v.                                                   )       AN ORDER OF THE BENEFITS
                                                     )       REVIEW     BOARD,  UNITED
STEVE B. CONLEY, et al.,                             )       STATES    DEPARTMENT   OF
     Respondents.                                    )       LABOR
                                                     )



       BEFORE: ROGERS, WHITE, and READLER, Circuit Judges.

       CHAD A. READLER, Circuit Judge. Steve Conley worked for at least fifteen years as

a coal miner. Several times he presented claims for black lung benefits to the Department of Labor,

but each time he was denied as ineligible. Finally in 2012, an Administrative Law Judge of the

Department awarded Conley benefits. National Mines appealed that determination to the Benefits

Review Board, which affirmed the ALJ’s finding.

       From there, the plot thickened. National Mines filed a motion for reconsideration, arguing

for the first time that the appointment of the Administrative Law Judge who decided the case

violated the Appointments Clause of the U.S. Constitution. For support, National Mines invoked

the United States Supreme Court’s then-recent decision in Lucia v. SEC, 138 S. Ct. 2044 (2018).

But the Board denied the motion on the grounds that National Mines could not raise an argument,

even a constitutional one, for the first time in a motion for reconsideration.
Case No. 19-3139, National Mines Corp. v. Conley


       In its appeal to this Court, National Mines again raises its Appointments Clause challenge.

Following appellate briefing in this case, another panel of this Court issued a published decision

in Island Creek Coal Co. v. Bryan, 937 F.3d 738 (6th Cir. 2019), reh’g denied (Sept. 24, 2019),

which held that petitioners in a nearly identical situation to National Mines forfeited their

Appointments Clause argument by failing to raise it in their initial briefing before the Board. After

Bryan, the same must be true here. As National Mines’ Appointments Clause argument was thus

forfeited below, we DENY the petition for review.

                                     I.     BACKGROUND

       Petitioners National Mines Corporation and Old Republic Insurance Company challenge

the decision of an Administrative Law Judge (or “ALJ”) in the Department of Labor awarding

benefits to former coal miner Steve Conley under the Black Lung Benefits Act. Conley began

filing for black lung benefits as far back as 1989. For Conley, the fourth time was charmed. An

ALJ in February 2012 made the benefits award at issue here. In making that award, the ALJ found

that, unlike the conditions underlying prior denials, Conley had now demonstrated his total

disability. Adding in the fact that Conley had worked for at least fifteen years as a coal miner, he

now enjoyed a statutory presumption that his disability was due to pneumoconiosis. See 30 U.S.C.

§ 921(c)(4) and 20 C.F.R. § 718.305. The ALJ further concluded that National Mines had not

rebutted this presumption.

       National Mines appealed the award to the Department’s Benefits Review Board. The

Board affirmed the benefits award on June 20, 2018. The very next day, the Supreme Court issued

its opinion in Lucia. There, the Supreme Court held that ALJs of the Securities and Exchange

Commission are considered to be officers of the United States. 138 S. Ct. at 2053. As such, the

Supreme Court explained, those ALJs must be appointed in a manner consistent with the


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Appointments Clause of the U.S. Constitution, Art. II, §2, cl. 2, which specifies that the

appointment of an inferior officer must be made by the President, a court of law, or the head of a

department. Id. at 2051, 2054.

         ALJs of the Department of Labor, including the ALJ who decided Conley’s case, had been

appointed by Department staff members, rather than the Department’s head, the Secretary of

Labor.    Bryan, 937 F.3d at 744.      Realizing as much, National Mines filed a motion for

reconsideration with the Board. In that motion, National Mines for the first time argued that the

appointment of the ALJ who awarded Conley benefits violated the Appointments Clause.

Although the Secretary of Labor later ratified the appointments of ALJs in the Department, this

was too little, too late, said National Mines, as it occurred after Conley had already been awarded

benefits. But the Board denied the motion. Because National Mines raised the Appointments

Clause issue for the first time in a motion for reconsideration, it had forfeited the issue. National

Mines then filed a petition for review with this Court.

         Meanwhile, after the parties here filed their briefs before this Court, a separate panel

decided Bryan, 937 F.3d at 738. Bryan presented a nearly identical scenario: petitioners raised

their Appointments Clause challenge for the first time in a motion for reconsideration before the

Benefits Review Board. After a thorough forfeiture analysis, we held in Bryan that the petitioners

had forfeited their Appointments Clause challenge by failing to raise it pursuant to the Board’s

own issue exhaustion requirements. Id. at 754.

         In Bryan’s wake, we ordered the parties to file supplemental briefing on the issue of

whether Bryan controls the forfeiture issue in this case. National Mines responded with four

principal arguments as to why we should hear its Appointments Clause challenge, despite Bryan:

(1) National Mines asserts a structural constitutional challenge, which should not be subject to



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waiver; (2) the decision in Bryan created a circuit split with the Third Circuit’s decision in

Kreschollek v. Southern Stevedoring Co., 78 F.3d 868 (3d Cir. 1996); (3) the Benefits Review

Board has only appellate jurisdiction, so before this Court issued clear guidance as to the scope of

the Board’s authority to review a constitutional challenge, the Board lacked authority to decide the

question de novo; and (4) Bryan did not address and/or fully explore other exceptions, including

National Mines’ assertion that the Appointments Clause argument was not available to it, given

that it appealed to the Board before Lucia was decided. We now turn to those arguments.

    II.       NATIONAL MINES FORFEITED ITS CONSTITUTIONAL ARGUMENT

          National Mines offers numerous reasons why we should excuse its failure to exhaust the

Appointments Clause issue before the Benefits Review Board. With a nearly identical posture to

this case, Bryan controls our forfeiture analysis. And that decision undermines each of National

Mines’ arguments.

          First, citing Freytag v. C.I.R., 501 U.S. 868 (1991), National Mines argues that a structural

constitutional issue may never be waived. Relying on separation of powers principles, the

Supreme Court in Freytag held that the Appointments Clause objection raised in that case was a

structural constitutional objection that could, in the Supreme Court’s discretion, be considered on

appeal even though it had not been raised below. 501 U.S. at 878–79. Yet in Bryan, in a setting

nearly identical to that here, we rejected application of the exception from Freytag. 937 F.3d at

754. We noted that the exhaustion mandate in Freytag arose on prudential grounds, which in turn

gave the Court discretion to adopt prudential exceptions to the mandate. Id. Because the Black

Lung Benefits Act’s exhaustion mandate is not prudential, we declined to apply the Freytag

exception. Id. at 749, 754. We see no reason to treat National Mines differently from the

petitioners in Bryan, nor has National Mines provided us with one.


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       Second, National Mines argues that Bryan creates a circuit split with the Third Circuit in

Kreschollek, 78 F.3d 868. If Bryan did split the circuits, we are nevertheless bound to follow our

Circuit’s side in the split, absent intervening en banc or Supreme Court authority to the contrary.

See United States v. Paige, 634 F.3d 871, 873 (6th Cir. 2011). Nor, for that matter, are we

convinced that a split now exists. The appellant in Kreschollek brought a facial constitutional

challenge to a section of the Longshore and Harbor Workers’ Compensation Act, on the grounds

that the Act did not provide for a predeprivation hearing before termination of benefits for certain

injured employees. Id. at 869–70. The Third Circuit held that the district court had jurisdiction to

hear the constitutional challenge to the Act since the statute made it impossible for the Benefits

Review Board to grant the relief sought, namely, a predeprivation hearing. Id. at 875. But Byran

held that an Appointments Clause challenge in the black lung context is an as-applied challenge.

937 F.3d at 753. Such a claim asks the Board to remedy a defect within the Department of Labor

itself, one that can fairly be raised with the Board.

       National Mines’ further arguments are equally unconvincing. For instance, Bryan makes

clear that the Benefits Review Board has the power to decide a constitutional claim. 937 F.3d at

753. And because the Board has power to “provide effective relief” on that claim by granting a

new hearing before a properly appointed judge, it is not futile to bring such a claim before the

Board. See id. Bryan further answered whether the Appointments Clause issue was available to

the parties pre-Lucia. See id. at 754. Indeed, the year before the Benefits Review Board heard

National Mines’ appeal, the Tenth Circuit had held in Bandimere v. SEC, 844 F.3d 1168, 1188

(10th Cir. 2016), that ALJs in the Securities and Exchange Commission were inferior officers.

With that in mind, we are hard pressed to accept National Mines’ suggestion that Lucia suddenly

gave National Mines the keys to a legal argument previously under lockdown.



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       In short, we see no reason to excuse National Mines’ failure to exhaust the Appointments

Clause issue before the Benefits Review Board. The issue was thus forfeited. Accordingly, we

deny National Mines’ request for remand.

                                   III.    CONCLUSION

       For these reasons, the petition for review is DENIED.




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