USCA4 Appeal: 20-2021 Doc: 79 Filed: 11/07/2023 Pg: 1 of 24

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-2021

K & R CONTRACTORS, LLC,

Petitioner,

v.

MICHAEL KEENE; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

Respondents.

-----------------------

PRATIK A. SHAH,

Court-Assigned Amicus Counsel.

On Petition for Review of an Order of the Benefits Review Board. (19-0242 BLA)

Argued: October 29, 2021 Decided: November 7, 2023

Before HARRIS, QUATTLEBAUM, and RUSHING, Circuit Judges.

Petition for review denied by published opinion. Judge Rushing wrote the opinion, in which Judge Harris and Judge Quattlebaum joined.

ARGUED: Charity Ann Barger, STREET LAW FIRM, LLP, Grundy, Virginia, for Petitioner. Amanda Lee Mundell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent Director, Office of Workers’ Compensation Programs. USCA4 Appeal: 20-2021 Doc: 79 Filed: 11/07/2023 Pg: 2 of 24

Brad Anthony Austin, WOLFE WILLIAMS & REYNOLDS, Norton, Virginia, for Respondent Michael Keene. ON BRIEF: Thomas R. Scott, Jr., STREET LAW FIRM, LLP, Grundy, Virginia, for Petitioner. Elena S. Goldstein, Deputy Solicitor of Labor, Barry H. Joyner, Associate Solicitor, Jennifer L. Feldman, Deputy Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation, Cynthia Liao, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent. Pratik A. Shah, Z.W. Julius Chen, Juliana C. DeVries, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Court-Appointed Amicus Counsel.

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RUSHING, Circuit Judge:

An administrative law judge (ALJ) working for the United States Department of

Labor (DOL) ordered K & R Contractors, LLC to pay living miner’s benefits to its former

employee Michael Keene pursuant to the Black Lung Benefits Act. The Benefits Review

Board affirmed, and K & R petitions this Court for review. K & R does not contest the

evidence supporting the benefits award but instead challenges the constitutional authority

of the two DOL ALJs who heard and decided Keene’s claim against K & R. First, K & R

contends that the ALJs were not appointed consistent with the Appointments Clause of the

Constitution. Second, K & R asserts that the ALJs are insulated from removal by two

layers of good-cause tenure protection, contrary to the Constitution’s vesting of the

executive power in the President.

The Director of the Office of Workers’ Compensation Programs at DOL filed a brief

on behalf of the Government arguing that, to save the ALJ removal scheme from

constitutional infirmity, we must impose a novel narrowing construction on one of the

applicable layers of protection, see

. No party took the position that the

removal protections were constitutional without adopting a limiting construction.

Therefore, to ensure full consideration of the removal issue, after oral argument we

appointed an amicus curiae to defend the constitutionality of the dual good-cause removal

provisions without the Government’s proposed narrowing construction. 1 We then received

further briefing from the parties in response to the amicus brief.

1 We thank appointed amicus curiae Pratik A. Shah and his colleagues for their assistance to the Court. 3 USCA4 Appeal: 20-2021 Doc: 79 Filed: 11/07/2023 Pg: 4 of 24

Having now fully considered the merits of the issues presented, we hold that both

ALJs were constitutionally appointed and that, even if the dual good-cause removal

protections were unconstitutional, K & R is not entitled to relief because it has not

identified any harm resulting from those removal provisions. We therefore deny the

petition for review.

I.

Before we discuss the facts of this case, some statutory background is necessary.

A.

We begin by describing adjudications under the Black Lung Benefits Act, 30 U.S.C.

§§ 901–944, which “provides benefits to ‘coal miners who are totally disabled due to

pneumoconiosis,’ commonly known as black lung disease,” W. Va. CWP Fund v. Dir., Off.

of Workers’ Comp. Programs,

(4th Cir. 2018) (quoting

(a)). A disabled coal miner or his surviving dependent initiates the process by filing

a claim with a DOL district director. See

, 725.303, 725.401. The

district director develops the record and identifies, if available, a coal mine operator who

may be held responsible for paying benefits to the claimant. See

.401–

725.418. At the end of those proceedings, the district director issues a proposed order.

.

Any party then may request a hearing before a DOL ALJ.

,

725.421, 725.451. With some exceptions, these hearings are conducted in accordance with

the Administrative Procedure Act. See

(d) (“[A]ny hearing held under this

chapter shall be conducted in accordance with the provisions of section 554 of Title 5.”);

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(a) (incorporating procedures of the Longshore and Harbor Workers’

Compensation Act, 33 U.S.C. §§ 901–950, into the Black Lung Benefits Act);

(a) (“Except as otherwise provided by this part, all hearings shall be conducted

in accordance with the provisions of 5 U.S.C. 554 et seq.”). The ALJ takes evidence and

resolves contested questions of fact and law. See

(c);

.

If no party appeals, the ALJ’s decision is final. See

(b);

.

Any party dissatisfied with the ALJ’s ruling may appeal to the Benefits Review

Board. See

(b);

. In addition, “[t]he Board may, on its

own motion or at the request of the Secretary [of Labor], remand a case to the [ALJ] for

further appropriate action.”

(b)(4). The Board’s decisions are subject to

judicial review in the court of appeals for the circuit in which the claimant’s injury

occurred. See

(c);

(a).

B.

This appeal concerns the hiring and firing of DOL ALJs, so we describe that process

next. Before 2018, DOL ALJs were hired through the competitive service. See

;

(b). The Office of Personnel Management conducted a

competitive application and ranking process to identify entry-level candidates, then DOL

staff would select from among the finalists. DOL could also arrange for an experienced

ALJ to transfer from another agency. See

(h).

In 2018, the Supreme Court held that Securities and Exchange Commission ALJs

are “Officers of the United States” within the meaning of the Appointments Clause, U.S.

Const. art. II, § 2, cl. 2, and so can be appointed only by the President, a court of law, or a

5 USCA4 Appeal: 20-2021 Doc: 79 Filed: 11/07/2023 Pg: 6 of 24

head of department. Lucia v. SEC,

(2018). In response, President

Trump issued an executive order exempting ALJs from the competitive hiring process and

charging each agency with hiring its own ALJs. Exec. Order No. 13,843,

, 32,756 (July 10, 2018). The executive order also specified that incumbent ALJs

would “remain in the competitive service as long as they remain in their current positions.”

; see

(d).

The Secretary of Labor can remove an ALJ from office “only for good cause

established and determined by the Merit Systems Protection Board [MSPB] on the record

after opportunity for hearing before the Board.”

(a). The MSPB exercises

original, not appellate, jurisdiction over proposed agency actions against ALJs.

(a). In other words, it is the MSPB who “determin[es] whether good cause

exists to take the agency’s requested action,” Dep’t of Health & Hum. Servs. v. Jarboe,

, ¶ 10 (Aug. 2, 2023), and “authorizes the employing agency to remove”

the ALJ or impose some lesser sanction,

at ¶ 6 (citing Soc. Sec. Admin. v. Levinson,

, ¶¶ 37–38 (July 12, 2023)); see

(b) (MSPB “will

specify the penalty to be imposed”). Members of the MSPB can be removed from office

“by the President only for inefficiency, neglect of duty, or malfeasance in office.”

(d).

C.

We now turn to the facts underlying this dispute. Claimant Michael Keene worked

in coal mines for more than 34 years, the last three of which he worked for K & R. After

years of coal dust exposure, Keene developed breathing problems and eventually was

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diagnosed with pneumoconiosis. In February 2017, Keene filed a claim for benefits under

the Black Lung Benefits Act. The district director issued a proposed decision awarding

Keene benefits and designating K & R as the responsible operator. K & R requested a

hearing before an ALJ, and the matter was referred to the Office of Administrative Law

Judges.

Around the same time, DOL’s Chief ALJ recommended to the Secretary of Labor

that he ratify the appointments of incumbent DOL ALJs in view of the Lucia case then

pending before the Supreme Court. See Mem. from Hon. Stephen R. Henley, Chief ALJ,

to Sec’y of Labor (Dec. 20, 2017). 2 The Secretary adopted the recommendation and issued

letters ratifying the appointments of incumbent DOL ALJs, who had been hired through

the competitive service. One of the ALJs the Secretary ratified was the ALJ eventually

assigned to hear Keene’s claim, ALJ William Barto. The Secretary’s letter to ALJ Barto

stated:

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.

2 Available at https://www.dol.gov/sites/dolgov/files/OALJ/PUBLIC/FOIA/ Frequently_Requested_Records/ALJ_Appointments/Memorandum_on_Ratification_of_ Appointment_of_USDOL_ALJs_(Dec_20_2017).pdf [https://perma.cc/WC4D-VBXB]. 7 USCA4 Appeal: 20-2021 Doc: 79 Filed: 11/07/2023 Pg: 8 of 24

Letter from R. Alexander Acosta, Sec’y of Labor, to Hon. William T. Barto, ALJ (Dec. 21,

2017). 3

Several weeks later, the Keene matter was transmitted to ALJ Barto. K & R moved

to reassign the claim to a different ALJ, arguing that ALJ Barto had not been

constitutionally appointed and that the two levels of ALJ removal protection violate the

Constitution. At a hearing in August 2018, ALJ Barto denied the motion, noting that the

Secretary had ratified his appointment before he took any substantive action in the case.

In January 2019, for reasons unrelated to this case, the Keene matter was transferred

from ALJ Barto to ALJ Francine Applewhite. The Secretary of Labor had accepted ALJ

Applewhite’s request for a transfer from the Social Security Administration and appointed

her to a DOL ALJ position effective October 28, 2018. The Secretary’s letter to ALJ

Applewhite stated:

Pursuant to my authority as Secretary of Labor, I hereby appoint you as an Administrative Law Judge in the U.S. Department of Labor, authorized to execute and fulfill the duties of that office according to law and regulation and to hold all the powers and privileges pertaining to that office. U.S. Const. art. II, § 2, cl. 2;

. This action is effective upon transfer to the U.S. Department of Labor.

Letter from R. Alexander Acosta, Sec’y of Labor, to Francine L. Applewhite, ALJ (Sept.

12, 2018). 4

3 Available at https://www.dol.gov/sites/dolgov/files/OALJ/PUBLIC/FOIA/ Frequently_Requested_Records/ALJ_Appointments/Secretarys_Ratification_of_ALJ_ Appointments_12_21_2017.pdf [https://perma.cc/UAW7-PL74]. 4 Available at https://www.dol.gov/sites/dolgov/files/OALJ/PUBLIC/FOIA/ Frequently_Requested_Records/ALJ_Appointments/Appointment_Letters_Alford_thru_ Wang_09_12_2018_posted_Redacted.pdf [https://perma.cc/FD65-DQMS]. 8 USCA4 Appeal: 20-2021 Doc: 79 Filed: 11/07/2023 Pg: 9 of 24

After the transfer, K & R again objected that DOL ALJ “appointments and removal

protections” were unconstitutional, this time taking issue with incumbent ALJs’ retention

of competitive service status. J.A. 19. ALJ Applewhite rejected K & R’s Appointments

Clause challenge, reasoning that she had been “appointed by the Secretary of Labor on

October 28, 2018,” before taking any action in the case. J.A. 25. ALJ Applewhite found

that Keene was entitled to benefits under the Act, designated K & R as the responsible

operator, and ordered K & R to begin paying benefits.

K & R appealed to the Benefits Review Board, asserting two grounds for vacatur.

First, K & R reiterated its claim that neither ALJ Barto nor ALJ Applewhite had been

constitutionally appointed. Second, K & R argued that “the ALJ[s] lacked the authority to

adjudicate this case because the limitations on their removal violate the separation of

powers.” J.A. 61. In support of its removal argument, K & R described the Supreme

Court’s decision in Free Enterprise Fund v. Public Company Accounting Oversight Board,

(2010), and quoted Justice Breyer’s concurrence in Lucia, where he opined

that “‘Congress seems to have provided administrative law judges with two levels of

protection from removal without cause—just what Free Enterprise Fund interpreted the

Constitution to forbid in the case of the [PCAOB] members.’” J.A. 62 (quoting Lucia,

(Breyer, J., concurring)). According to K & R, insulating ALJs “from

removal by the Secretary at will” contravened “the separation of powers principle.” J.A.

62.

Keene did not respond to K & R’s appeal, but the Government did. The Director of

the Office of Workers’ Compensation Programs filed a brief responding to both of K &

9 USCA4 Appeal: 20-2021 Doc: 79 Filed: 11/07/2023 Pg: 10 of 24

R’s constitutional arguments on the merits. See

(b) (“The Director,

Office of Workers’ Compensation Program[s], . . . shall be considered the proper party to

appear and present argument on behalf of the Secretary of Labor in all review proceedings

conducted pursuant to . . . the Act . . . .”).

The Benefits Review Board affirmed ALJ Applewhite’s order. The Board rejected

K & R’s Appointments Clause challenge, reasoning that ALJ Applewhite had been validly

appointed by the Secretary of Labor before she was assigned this case and the Secretary’s

ratification of ALJ Barto’s appointment cured any constitutional defect in his hiring.

Regarding the constitutionality of the ALJs’ removal protections, the Board “decline[d] to

address the issue” because K & R “failed to adequately brief” it. J.A. 89–90. The Board

nevertheless addressed the issue in a lengthy footnote, distinguishing Free Enterprise Fund

and Lucia on the ground that neither decision explicitly decided whether the removal

protections for ALJs were unconstitutional. Subsequently, the Board denied K & R’s

motion for reconsideration.

K & R petitioned this Court for review, challenging the constitutionality of both the

ALJ appointments and the ALJ removal protections. We have jurisdiction,

(c), and review these legal questions de novo, Island Creek Coal Co. v. Compton,

(4th Cir. 2000).

II.

The Appointments Clause prescribes the exclusive means of appointing “Officers

of the United States,” a “class of government officials distinct from mere employees.”

Lucia,

. Only the President, with the advice and consent of the Senate,

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can appoint “‘principal’ officers,” United States v. Arthrex, Inc.,

(2021) (quoting Edmond v. United States,

(1997)), while Congress may

vest the appointment of “inferior Officers” in “the President alone, in the Courts of Law,

or in the Heads of Departments,” U.S. Const. art. II, § 2, cl. 2.

The parties agree that DOL ALJs are inferior officers in light of the Supreme Court’s

decision in Lucia. Like the SEC ALJs in Lucia, DOL ALJs “hold a continuing office

established by law,” exercise “significant discretion” when carrying out “important

functions” on behalf of the executive branch, and “issue decisions” that can become the

“last[]word” in agency proceedings. Lucia, 138 S. Ct. at 2053–2054 (internal quotation

marks omitted); see also Carr v. Saul,

(2021). DOL ALJs, like their

SEC counterparts, conduct trial-like hearings, receive evidence, examine witnesses, issue

subpoenas, rule on procedural and dispositive motions, and render decisions. See Lucia,

(citing Freytag v. Comm’r of Internal Revenue,

, 881–882

(1991));

(b), 725.452–725.476. Recognizing these similarities among

ALJs, courts have extended Lucia “to ALJs in other executive department federal

agencies.” Brooks v. Kijakazi,

(4th Cir. 2023) (SSA ALJs); see, e.g.,

Calcutt v. FDIC,

(6th Cir. 2022) (FDIC ALJs), rev’d on other grounds,

(2023); Fleming v. U.S. Dep’t of Agric.,

(D.C. Cir.

2021) (USDA ALJs); Jones Bros., Inc. v. Sec’y of Labor,

(6th Cir. 2018)

(Fed. Mine Safety & Health Rev. Comm’n ALJs).

Congress can vest the appointment of inferior officers like DOL ALJs in the “Heads

of Departments”—here, the Secretary of Labor. U.S. Const. art. II, § 2, cl. 2; see 29 U.S.C.

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§ 551 (establishing the “Secretary of Labor” as the “head” of “the Department of Labor”);

(“Each agency shall appoint as many administrative law judges as are

necessary for proceedings[.]”). Consistent with that authority, the Secretary of Labor

appointed both DOL ALJs who presided over this case. In September 2018, the Secretary

appointed ALJ Applewhite as a DOL ALJ, effective upon her transfer to DOL in October

2018, months before she was assigned the Keene matter. And the Secretary ratified DOL’s

prior appointment of ALJ Barto in December 2017, before he took any action in the Keene

case. We decline K & R’s invitation to look behind the individual appointment letters

signed by the Secretary to inquire into his deliberative process. The letters are “conclusive

evidence that the appointment[s] [were] made,” Marbury v. Madison,

(1803), and the Secretary’s lawful exercise of his appointment authority resolves

the constitutional question.

K & R nevertheless contends that the Secretary’s actions were ineffective because

both ALJs were originally appointed through the competitive service and allegedly remain

in the competitive service. As an initial matter, we reject K & R’s assertion that ratification

by a department head cannot prospectively cure a prior unconstitutional appointment.

Courts have recognized that, in some circumstances, a department head can by ratification

remedy defects in agency action initially taken without lawful authority. See, e.g., Decker

Coal Co. v. Pehringer,

, 1127 n.1 (9th Cir. 2021); Wilkes-Barre Hosp. Co. v.

NLRB,

(D.C. Cir. 2017); cf. Edmond, 520 U.S. at 654–655, 666

(concluding that the ratified appointments in that case were valid). Here, the Secretary’s

express ratification of ALJ Barto’s appointment cured any constitutional defect in his

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original hiring by DOL. And ratification wasn’t necessary for ALJ Applewhite, because

the Secretary himself appointed her as a DOL ALJ in the first instance. Her prior

employment as an ALJ in another executive agency is irrelevant. Both ALJs, therefore,

had been constitutionally appointed by the time they took any action in this case.

We likewise reject K & R’s unsupported contention that retaining incumbent ALJs

in the competitive service after their valid appointment poses an Appointments Clause

problem. Whether these ALJs remained in the competitive service after the Secretary

appointed them is neither here nor there; because they were appointed in accordance with

the Constitution before they took action in this case, K & R’s Appointments Clause

challenges fail.

III.

We next consider K & R’s objection that the DOL ALJs are unconstitutionally

insulated from the President’s removal authority. Before proceeding to the merits, we must

first address the threshold question of exhaustion.

A.

By regulation, issue exhaustion is required in an administrative appeal to the

Benefits Review Board. Edd Potter Coal Co. v. Dir., Off. of Workers’ Comp. Programs,

, 209 (4th Cir. 2022); see

(a). A party must “list[] the

specific issues to be considered on appeal” and “present[] . . . an argument with respect to

each issue” in order to preserve them for the Board’s review.

(a), (b).

Failure to raise an issue at the appropriate time results in forfeiture. Edd Potter Coal, 39

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F.4th at 206. Here, the Board concluded that K & R had forfeited its challenge to the ALJ

removal provisions by failing to adequately brief the issue.

Courts reviewing agency action “regularly ensure against the bypassing of”

regulatory issue exhaustion requirements “by refusing to consider unexhausted issues.”

Sims v. Apfel,

(2000). But a party’s “failure to preserve arguments by

waiving [or forfeiting] them in the administrative forum is not a jurisdictional bar to our

review.” 5 Newport News Shipbuilding & Dry Dock Co. v. Holiday,

, 225 n.5

(4th Cir. 2009). And because the issue exhaustion requirement is not jurisdictional, “it may

be waived or forfeited” by the opposing party. United States v. Muhammad,

(4th Cir. 2021); see Fleming,

(“[A] nonjurisdictional, mandatory

exhaustion requirement functions as an affirmative defense, and thus can be waived or

forfeited by the government’s failure to raise it.”).

The Director has waived K & R’s forfeiture and has instead urged us to resolve the

constitutional question on the merits. In their briefs, neither the Director nor Keene raise

issue exhaustion or forfeiture as a ground for denying the petition. When asked about the

Government’s position on forfeiture at oral argument, counsel for the Director confirmed,

“We have not pressed that argument on appeal. . . . [The removal issue is] a pure question

5 K & R did not waive this constitutional challenge. See United States v. Olano,

(1993) (“[W]aiver is the intentional relinquishment or abandonment of a known right.” (internal quotation marks omitted)). It identified the issue but failed to sufficiently brief it, which amounts to forfeiture. 14 USCA4 Appeal: 20-2021 Doc: 79 Filed: 11/07/2023 Pg: 15 of 24

of law that’s certainly been briefed,” and “it’s an important issue that this Court can

reach.” 6 Oral Arg. at 29:42–29:54, 30:25.

The respondents’ reluctance to rely on K & R’s forfeiture before the Board as a

ground to avoid judicial review of the removal issue is well founded, because its objection

to the ALJ removal provisions is a facial constitutional challenge about which the Board

has “no special expertise and for which [it] can provide no relief.” Carr,

; see McCarthy v. Madigan,

, 147–148 (1992). The Supreme Court has

recognized time and again that “agency adjudications are generally ill suited to address

structural constitutional challenges, which usually fall outside the adjudicators’ areas of

technical expertise.” Carr,

; see Free Enter. Fund, 561 U.S. at 491.

What’s more, the Board has no authority to remedy the alleged separation-of-powers

violation. K & R seeks to invalidate the statutes governing removal of DOL ALJs. While

each of the three branches of our federal government has an obligation to interpret the

Constitution, only the judiciary possesses the power to enjoin enforcement of statutes

inconsistent with the Constitution. See Marbury, 5 U.S. (1 Cranch) at 177–178.

6 Reaching the merits of the removal-protections issue presents no Chenery problem, contrary to court-appointed amicus’s suggestion. “[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency” and cannot “affirm the administrative action by substituting what it considers to be a more adequate or proper basis.” SEC v. Chenery Corp.,

(1947). The constitutionality of an act of Congress is not a judgment entrusted to DOL alone, nor is the alleged unconstitutionality of the ALJ removal provisions an alternative basis for affirming the Board’s decision. Cf. Axon Enter., Inc. v. FTC,

, 905 (2023) (“Claims that tenure protections violate Article II . . . [are] detached from considerations of agency policy” and “distant from [agency] competence and expertise.” (internal quotation marks omitted)). 15 USCA4 Appeal: 20-2021 Doc: 79 Filed: 11/07/2023 Pg: 16 of 24

Comparing K & R’s two constitutional claims illustrates the point. Its

Appointments Clause challenge contests “how the Department of Labor applied its

statutory appointments power.” Edd Potter Coal, 39 F.4th at 211 (internal quotation marks

omitted). The Board can decide that claim and “grant the requested relief of reassignment

to a different ALJ” who has been properly appointed by the Secretary, as it has done in

numerous other black lung cases. Id. But what relief could the Board offer if it agreed

with K & R that the relevant statutes unconstitutionally shield DOL ALJs from removal?

The remedies granted by Article III courts, such as striking one layer of good-cause tenure

protection from the statutory scheme, would be unavailable because an agency cannot

invalidate a statute enacted by Congress to govern and restrain the agency. See Calcutt,

; Jones Bros.,

. Nor could the Board compel the MSPB, an

independent executive branch agency, to construe its authority over ALJ removal in a

manner to avoid the constitutional problem. In this circumstance, it would have been futile

to bring the removal claim to the Board and “senseless for an Article III court to enforce

forfeiture.” Jones Bros.,

; see also Carr,

(“It makes little

sense to require litigants to present claims to adjudicators who are powerless to grant the

relief requested.”).

Given the Director’s waiver of any argument that K & R forfeited its removal-

protections claim by failing to exhaust it, Keene’s decision not to raise the issue, and the

nature of the facial constitutional challenge K & R presses, we agree with the parties that

we can and should consider K & R’s objection to the DOL ALJ removal protections.

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B.

Article II of the Constitution vests “[t]he executive Power” in “a President,” who

must “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 1, cl. 1; id. § 3.

“Because no single person could fulfill that responsibility alone, the Framers expected that

the President would rely on subordinate officers for assistance.” Seila Law LLC v. CFPB,

(2020). And “[s]ince 1789, the Constitution has been understood to

empower the President to keep these officers accountable—by removing them from office,

if necessary.” Free Enter. Fund, 561 U.S. at 483.

The Supreme Court has “recognized only two exceptions to the President’s

unrestricted removal power.” Seila Law,

. First, Congress can “create

expert agencies led by a group of principal officers removable by the President only for

good cause.”

(citing Humphrey’s Executor v. United States,

(1935)).

Second, Congress can provide for-cause “tenure protections to certain inferior officers with

narrowly defined duties.”

(citing United States v. Perkins,

(1886), and

Morrison v. Olson,

(1988)). If these inferior officers are appointed by “Heads

of Departments,” U.S. Const. art. II, § 2, cl. 2, then “it is ordinarily the department head,

rather than the President, who enjoys the power of removal,” Free Enter. Fund, 561 U.S.

at 493.

In Free Enterprise Fund, the Supreme Court held that these “separate layers of

protection” may not be combined. Id. at 483–484. Specifically, the Court held that the

President may not be “restricted in his ability to remove a principal officer, who is in turn

restricted in his ability to remove an inferior officer, even though that inferior officer

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determines the policy and enforces the laws of the United States[.]” Id. at 484. “[S]uch

multilevel protection from removal is contrary to Article II’s vesting of the executive power

in the President.” Id. The removal mechanism at issue in Free Enterprise Fund insulated

inferior officers from the President by two layers of for-cause tenure. Congress had

provided that members of the Public Company Accounting Oversight Board could be

removed only “‘for good cause’” as determined by the Securities and Exchange

Commission after notice and opportunity for a hearing. 7 Id. at 486 (quoting

(e)(6)). And members of the Commission could be removed by the President only

for “inefficiency, neglect of duty, or malfeasance in office.”

(internal quotation

marks omitted). The Supreme Court held that “the dual for-cause limitations on the

removal of Board members contravene[d] the Constitution’s separation of powers.”

.

K & R contends that the same problem afflicts the removal restrictions Congress

imposed for DOL ALJs. They also “exercise significant executive power” yet are insulated

from the President by “two levels of protection from removal.”

. The Secretary

of Labor can remove a DOL ALJ “only for good cause.”

(a). But the

statute withdraws from the Secretary—and therefore the President—the decision whether

good cause exists. “That decision is vested instead in other tenured officers . . . none of

7 More specifically, a “Board member [could not] be removed except for willful violations of the [Sarbanes-Oxley] Act, Board rules, or the securities laws; willful abuse of authority; or unreasonable failure to enforce compliance—as determined in a formal Commission order, rendered on the record and after notice and an opportunity for a hearing.”

at 503 (citing

(d)(3)). 18 USCA4 Appeal: 20-2021 Doc: 79 Filed: 11/07/2023 Pg: 19 of 24

whom is subject to the President’s direct control.” Free Enter. Fund, 561 U.S. at 495.

Only the MSPB can “establish[] and determine[]” whether good cause exists to remove a

DOL ALJ.

(a). And the President can remove members of the MSPB

“only for inefficiency, neglect of duty, or malfeasance in office.”

(d).

The Supreme Court in Free Enterprise Fund foresaw the possibility that its holding

would implicate the statutory removal protections for ALJs. See 561 U.S. at 507 n.10; id.

at 542–543 (Breyer, J., dissenting). In a footnote, the Court declined to address “that subset

of independent agency employees who serve as [ALJs],” but noted several potential

distinctions: whether ALJs are “Officers of the United States” was disputed; unlike the

PCAOB, many ALJs “perform adjudicative rather than enforcement or policymaking

functions”; and some ALJs “possess purely recommendatory powers.” Id. at 507 n.10.

K & R responds that the potential distinctions highlighted by the Court in Free

Enterprise Fund do not distinguish DOL ALJs from the constitutional principles driving

the Court’s separation-of-powers holding. To begin with, eight years after Free Enterprise

Fund, the Supreme Court held that SEC ALJs are inferior officers of the United States,

because they exercise significant discretion when carrying out important executive

functions. See Lucia,

. As explained above, DOL ALJs similarly are

“inferior Officers” in an executive department, not employees of an independent agency.

U.S. Const. art. II, § 2, cl. 2; see

. Their decisions determining rights and

responsibilities under federal law and imposing penalties to enforce the law are not mere

recommendations but become final if no party appeals. See

, 726.313.

And although DOL ALJs perform adjudicative functions, their activities “‘are exercises

19 USCA4 Appeal: 20-2021 Doc: 79 Filed: 11/07/2023 Pg: 20 of 24

of—indeed, under our constitutional structure they must be exercises of—the executive

Power,’ for which the President is ultimately responsible.” Arthrex,

(quoting Arlington v. FCC,

, 305 n.4 (2013)); see also Seila Law, 140 S. Ct.

at 2198–2199 & n.2.

The Director adds that the Black Lung Benefits Act incorporates the procedures

used in the Longshore and Harbor Workers’ Compensation Act, see

(a), a

framework that requires the agency to use ALJ adjudicators, see

(d) (“Any

such hearing shall be conducted by a[n] administrative law judge qualified under section

3105 of [Title 5].”). Although Congress briefly authorized non-ALJ adjudicators to hear

black lung claims, see 30 U.S.C. § 932a, the Director identifies what he calls a “sunset

provision” in the statute, pursuant to which the Secretary’s authority to appoint non-ALJ

adjudicators in black lung cases expired in 1979, see id. Statutory Note (“Extension of

Adjudication Period Through March 1, 1979”); see also

(i),

, 100 (1978). 8 As a result, it may not be the case that DOL “has the choice whether to

use ALJs for hearings” to determine black lung claims. Free Enter. Fund v. PCAOB,

, 699 n.8 (D.C. Cir. 2008) (Kavanaugh, J., dissenting). A statutory requirement

to use ALJs, who Congress has insulated from the President’s removal authority by two

layers of for-cause tenure protection, brings the separation-of-powers question into sharp

relief.

The Director notes that the Ninth Circuit relied on 30 U.S.C. § 932a to conclude 8

that “[n]o statute mandates that the DOL employ ALJs in adjudicating [black lung] benefits claims,” without acknowledging the sunset provision. Pehringer, 8 F.4th at 1133. 20 USCA4 Appeal: 20-2021 Doc: 79 Filed: 11/07/2023 Pg: 21 of 24

The courts of appeals are divided about whether the dual for-cause limitations on

the removal of ALJs—specifically,

and § 1202(d)—are constitutional.

The Ninth Circuit has upheld the constitutionality of the combined removal protections as

applied to DOL ALJs. See Pehringer, 8 F.4th at 1136; see also Calcutt,

(doubting, in dicta, whether these removal limitations are unconstitutional as applied to

FDIC ALJs). The Fifth Circuit, on the other hand, has held these removal restrictions

unconstitutional in a case about SEC ALJs. See Jarkesy v. SEC,

(5th

Cir. 2022), cert. granted,

(2023); see also Fleming,

(Rao,

J., dissenting in part) (concluding these removal limits are unconstitutional as applied to

USDA ALJs).

“Notwithstanding this debate, it is ‘a well-established principle governing the

prudent exercise of this Court’s jurisdiction that normally the Court will not decide a

constitutional question if there is some other ground upon which to dispose of the case.’”

Bond v. United States,

(2014) (quoting Escambia Cnty. v. McMillan,

(1984) (per curiam)); see also Ashwander v. Tenn. Valley Auth.,

(1936) (Brandeis, J., concurring). Here, regardless of how we answer the

constitutional question presented by the removal provisions, we would be required to deny

the petition because K & R has not asserted any harm resulting from the allegedly

unconstitutional statutes, as explained below. Consequently, we are constrained to avoid

resolving that constitutional question in this case.

21 USCA4 Appeal: 20-2021 Doc: 79 Filed: 11/07/2023 Pg: 22 of 24

C.

The relief K & R seeks for the alleged constitutional violation is vacatur of the

agency’s decision and remand for new hearing before a different ALJ who is properly

accountable to the President. See Seila Law,

(“[W]hen [a removal]

provision violates the separation of powers it inflicts a here-and-now injury on affected

third parties that can be remedied by a court.” (internal quotation marks omitted)).

Unfortunately for K & R, the Supreme Court has recently clarified that vacatur is not

automatically warranted when a court concludes that an executive branch decisionmaker

was subject to unconstitutional removal restrictions. See Collins v. Yellen,

,

1787–1789 (2021).

An executive officer who was properly appointed may lawfully exercise the power

of his office. A constitutional defect in the procedure for removing that officer—unlike a

defect in his appointment—is “no basis for concluding” that he “lacked the authority to

carry out the functions of the office.”

. As the Supreme Court explained in

Collins, “the unlawfulness of the removal provision does not strip [the officer] of the power

to undertake the other responsibilities of his office,” which he lawfully fills.

at 1788

n.23. Rather, the actions of a lawfully appointed executive officer fulfilling the duties of

his office are legitimate and enforceable, even if the President’s authority to remove the

officer was unconstitutionally limited during his tenure.

The Court nevertheless acknowledged the “possibility” that an unconstitutional

removal provision could “inflict compensable harm.”

. It gave two “clear-cut”

examples: suppose “the President had attempted to remove [the officer] but was prevented

22 USCA4 Appeal: 20-2021 Doc: 79 Filed: 11/07/2023 Pg: 23 of 24

from doing so by a lower court decision holding that he did not have ‘cause’ for removal,”

or suppose “the President had made a public statement expressing displeasure with actions

taken by [the officer] and had asserted that he would remove [him] if the statute did not

stand in the way.”

“In those situations,” the Court explained, “the statutory [removal]

provision would clearly cause harm.”

Collins instructs that a party who has successfully challenged an unconstitutional

removal restriction is not entitled to have the underlying agency action set aside absent

reason to believe that the unconstitutional removal provision itself inflicted harm. The

courts of appeals have followed the Supreme Court’s guidance and denied relief on

removal claims when the challengers have not shown that the constitutional violation

caused them harm. See CFPB v. Law Offices of Crystal Moroney, P.C.,

, 179–

181 (2d Cir. 2023); Cmty. Fin. Servs. Assoc. of Am., Ltd. v. CFPB,

, 631–633

(5th Cir. 2022), cert. granted,

(2023); Integrity Advance, LLC v. CFPB,

, 1170–1171 (10th Cir. 2022); Calcutt, 37 F.4th at 316–317; Kaufmann v.

Kijakazi,

, 849–850 (9th Cir. 2022).

K & R has not asserted any possible harm resulting from the allegedly

unconstitutional limitations on the President’s ability to remove DOL ALJs. And nothing

in the record suggests the Secretary of Labor attempted or desired to remove ALJ

Applewhite or ALJ Barto. Therefore K & R is not entitled to vacatur of the Board’s

decision affirming ALJ Applewhite’s order regardless of whether the removal protections

for DOL ALJs are constitutional.

23 USCA4 Appeal: 20-2021 Doc: 79 Filed: 11/07/2023 Pg: 24 of 24

IV.

In sum, the Secretary of Labor properly appointed ALJ Applewhite and ratified the

appointment of ALJ Barto consistent with their status as inferior officers of the United

States under the Appointments Clause. The Secretary made these appointments before the

ALJs took any action in the Keene matter, therefore the ALJs lawfully possessed the

authority to adjudicate the case and render the decision holding K & R responsible for

paying black lung benefits to Keene. Because the ALJs were exercising the lawful

authority of their offices, and K & R does not claim that the allegedly unconstitutional

removal provisions caused it any harm, K & R is not entitled to any relief on its removal

protections claim. That is true even if we agreed with K & R that the dual for-cause

limitations on removal unconstitutionally insulate DOL ALJs from the President’s

authority. Accordingly, we do not decide that constitutional question and deny K & R’s

petition for review.

PETITION FOR REVIEW DENIED

24