RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0026p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
20-3329 ┐
JOSEPH FORRESTER TRUCKING; AMERICAN RESOURCES INSURANCE │
COMPANY, │
Petitioners, │
│
v. │
│
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED > Nos. 20-3329/3331/3332
STATES DEPARTMENT OF LABOR; ARTHUR DAVIS, │
Respondents. │
│
20-3331 │
H & P COAL COMPANY, INC.; AMERICAN RESOURCES INSURANCE │
COMPANY, │
Petitioners, │
│
v. │
│
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED │
STATES DEPARTMENT OF LABOR; CECIL MAE MABE, on behalf of the │
Estate of Bill Wayne Mabe, │
Respondents. │
│
20-3332 │
LOCKWORTH, INC.; AMERICAN RESOURCES INSURANCE COMPANY, │
Petitioners, │
│
v. │
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED │
STATES DEPARTMENT OF LABOR; LOYAL E. TACKETT, │
Respondents. │
┘
On Petitions for Review of Decisions and Orders of the Benefits Review Board.
Nos. 19-0099 BLA (Davis); 19-0096 BLA (Mabe); 19-0084 BLA (Tackett).
Argued: January 14, 2021
Decided and Filed: February 4, 2021
Before: KETHLEDGE, THAPAR, and READLER, Circuit Judges.
Nos. 20-3329/3331/3332 Forrester Trucking, et al. v. OWCP, et al. Page 2
_________________
COUNSEL
ARGUED: Mark E. Solomons, GREENBERG TRAURIG LLP, Washington, D.C., for
Petitioners. William M. Bush, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Federal Respondent. Evan B. Smith, APPALRED LEGAL AID, Prestonsburg,
Kentucky, for Respondent Mabe. ON BRIEF: Mark E. Solomons, Laura Metcoff Klaus,
GREENBERG TRAURIG LLP, Washington, D.C., for Petitioners. William M. Bush, Gary K.
Stearman, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal
Respondent. Evan B. Smith, APPALRED LEGAL AID, Prestonsburg, Kentucky, for
Respondent Mabe. Jacob Thomas Moak, MOAK & NUNNERY, P.S.C., Prestonsburg,
Kentucky, for Respondent Davis. Joseph E. Wolfe, Victoria S. Herman, WOLFE WILLIAMS &
REYNOLDS, Norton, Virginia, for Respondent Tackett.
_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge. In Lucia v. SEC, the Supreme Court held that
administrative law judges (ALJs) at the Securities Exchange Commission are “Officers of the
United States” for purposes of the Appointments Clause in Article II of the Constitution. 138 S.
Ct. 2044 (2018). As “Officers of the United States,” those ALJs are subject to the Appointments
Clause’s exclusive methods of appointment: by the President, by a department head, or by a
court of law. U.S. CONST. art. II, § 2, cl. 2. When an ALJ holds her post in violation of the
Appointments Clause, and a party timely objects, any adjudication she presided over must be
vacated and assigned for rehearing before a different, properly appointed ALJ. 138 S. Ct. at
2055.
In resolving these lingering questions regarding ALJ appointments, Lucia left open at
least one other: when is an Appointments Clause challenge timely? With nearly two thousand
ALJs spanning agencies across the Executive Branch, that question has been raised with some
frequency in Lucia’s wake. Today’s case is one example.
As part of a consolidated appeal, three coal mine operators challenge an adverse black
lung benefits determination made by the Department of Labor’s Benefits Review Board. We
must resolve whether a litigant forfeits an Appointments Clause challenge before the Board (and,
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as a consequence, before us) by not pressing the issue during earlier proceedings before an ALJ.
Honoring the Board’s customary requirement that issues be raised first with the ALJ, we hold
that the operators failed to preserve their Appointments Clause challenge. Accordingly, we deny
the petition for review.
I.
In separate proceedings, Department of Labor ALJs awarded benefits under the Black
Lung Benefits Act to three miners formerly employed by the coal mine operators before us today
as petitioners. During a subsequent appeal to the Benefits Review Board, the operators, citing
Lucia, argued for the first time that the ALJs who presided over the benefits determination
hearings were appointed in violation of the Appointments Clause. The Board, however,
understood Lucia to require “timely” Appointments Clause challenges, meaning those challenges
are subject to applicable issue preservation doctrines like waiver and forfeiture. Invoking those
doctrines, the Board concluded that the mine operators forfeited their Lucia arguments by failing
to raise them before the ALJ, and otherwise affirmed the respective ALJ determinations. Before
this Court, the operators seek fresh ALJ hearings solely on the basis of their Appointments
Clause challenge.
II.
As a prelude to examining today’s legal question, we begin with an overview of the black
lung benefits administrative process. The Black Lung Benefits Act serves to compensate mine
workers (and their survivors) who become totally disabled by pneumoconiosis, a debilitating
breathing problem commonly known as “black lung disease.” 30 U.S.C. §§ 901–44; Eastover
Mining Co. v. Williams, 338 F.3d 501, 508 (6th Cir. 2003). The Act creates an adversarial
dispute resolution system to determine whether a miner is eligible for benefits under the Act and,
if so, whether a coal mine operator should be responsible for paying those benefits, 30 U.S.C.
§ 932; 20 C.F.R. § 725.494, or whether the benefits instead will be paid by the Black Lung
Disability Trust Fund, 26 U.S.C. § 9501. To initiate the dispute resolution process, a miner or
survivor files a claim with a Department of Labor district director, who in turn is empowered to
“take such action as is necessary to develop, process, and make determinations with respect to
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the claim.” 20 C.F.R. § 725.401. Following an informal adjudication, during which the
“responsible operator” can submit evidence responding to the claim, id. § 725.410, the district
director issues a “proposed decision and order” either awarding or denying benefits. Id.
§ 725.418. That decision becomes final if no party objects within 30 days. Id. § 725.419.
A timely objection entitles the objecting party to a formal hearing before an ALJ. Id.
§ 725.421. In advance of the hearing, each objecting party must “specify the findings and
conclusions [of the district director] with which the . . . party disagrees,” id. § 725.419, teeing up
those issues for an ALJ, who is charged with “resolv[ing] contested issues of fact or law” de
novo, id. § 725.455. To do so, the ALJ conducts a hearing in accordance with the Administrative
Procedure Act. See 33 U.S.C. § 919(d). During the hearing, the ALJ admits evidence, examines
witnesses, and considers pleadings and briefs. 20 C.F.R. §§ 725.351(b), 725.455. Following the
hearing, the ALJ issues a benefits determination, one that becomes final if no party seeks
reconsideration or appeals to the Benefits Review Board. Id. § 725.479.
While an appeal from an ALJ’s decision could formerly be lodged in the district court,
under current law, a party seeking review of an ALJ’s determination must submit a notice of
appeal to the Board coupled with a petition for review “list[ing] the specific issues to be
considered.” Id. §§ 802.210, 802.211. The Board may “affirm, modify, vacate or reverse” the
decision, or remand the case back to the ALJ for further consideration. Id. § 802.404.
From there, a party may file with the appropriate federal circuit court a petition for
review of the Board’s decision. 33 U.S.C. § 921(c); 20 C.F.R. § 802.410. In this Circuit, the
Board is treated like the “district court[] it replaced,” Crockett Colleries, Inc. v. Barrett, 478 F.3d
350, 358 (6th Cir. 2007) (Rogers, J., concurring). We review the Board’s conclusions of law de
novo and its factual findings under a substantial evidence standard. Karst Robbins Coal Co. v.
Dir., OWCP, 969 F.3d 316, 323 (6th Cir. 2020) (citations omitted).
III.
Now a word about issue preservation. Whether in proceedings before an administrative
body or a court of law, a party customarily forfeits secondary review of issues not properly
raised in an underlying phase of the proceeding. Hormel v. Helvering, 312 U.S. 552, 556 (1941).
Nos. 20-3329/3331/3332 Forrester Trucking, et al. v. OWCP, et al. Page 5
That preservation principle applies with equal force in today’s case, which started as an
administrative proceeding, and has now migrated to federal court. Sims v. Apfel, 530 U.S. 103,
108–09 (2000). Out of respect to “[s]imple fairness to those who are engaged in the tasks of
administration, and to litigants,” we customarily will “not topple over administrative decisions
unless the administrative body not only has erred but has erred against objection made at the time
appropriate under its practice.” United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37
(1952). Enforcing these and other preservation principles, as we routinely do, serves the “twin
purposes” of “protecting administrative agency authority and promoting judicial efficiency.”
McCarthy v. Madigan, 503 U.S. 140, 145 (1992).
One common preservation rule is “issue exhaustion.” Generally speaking, an issue
exhaustion requirement obliges a party to challenge an issue it disputes during an initial
proceeding. Sims, 530 U.S. at 109. Doing so allows the issue to be passed upon by the initial
decisionmaker in the first instance, which also serves to inform any subsequent review. Id.
Traditionally, we have applied this requirement across the legal spectrum, including in the
context of an Appointments Clause challenge. Although an alleged Appointments Clause
violation presents a “structural” challenge arising under the Constitution, the issue is neither
jurisdictional, Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018), nor
afforded “special entitlement to review,” Freytag v. C.I.R., 501 U.S. 868, 893 (1991) (Scalia, J.,
concurring in part and concurring in judgment). Appointments Clause challenges are thus
“subject to ordinary principles of waiver and forfeiture.” Jones Bros., Inc. v. Sec’y of Labor, 898
F.3d 669, 678 (6th Cir. 2018). As a result, parties must press the argument at the proper stages
as a prerequisite to obtaining subsequent review on that basis. L.A. Tucker Truck Lines, 344 U.S.
at 36–37.
IV.
With these background principles in place, we turn to the operators’ Appointments
Clause challenge to the Department of Labor ALJs who oversaw their respective black lung
benefits determination hearings. The Department and the beneficiaries assert that the operators
failed to preserve the issue by not raising it during their respective ALJ hearings. To determine
whether the operators forfeited their Appointments Clause challenge, we employ a settled
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formula. See Island Creek Coal Co. v. Bryan, 937 F.3d 738, 746 (6th Cir. 2019); Jones Bros.,
898 F.3d at 673. 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.
A. There is an issue exhaustion requirement in ALJ black lung benefits
proceedings.
Issue exhaustion requirements in administrative proceedings derive from either statute or
regulation or, failing both, judicial prudence. 4 Charles H. Koch, Jr. & Richard Murphy,
Administrative Law and Practice § 12:22 (3d ed. 2020). In Island Creek Coal Co. v. Bryan, we
outlined a three-category framework of exhaustion requirements based on the requirement’s
source and hierarchy of legal soundness. 937 F.3d at 746–48.
As its name suggests, the first category, statutory exhaustion, arises when a statute
expressly mandates that parties raise issues before the agency, subject to forfeiture. Id. at 746–
47; see Jones Bros., 898 F.3d at 673. As relevant here, Bryan determined (and the Department
concedes) that the Black Lung Benefits Act contains no explicit statutory exhaustion
requirement. Bryan, 937 F.3d at 749.
In the absence of a statutory mandate requiring exhaustion, we consider a second
category of exhaustion: regulatory exhaustion. That type of exhaustion requirement arises from
reasonable claims-processing rules promulgated by an agency. So long as those agency
regulations comport with the implementing statute, we will honor their enforcement by the
agency. Id. at 747 (citations omitted). Bryan is a case in point. There, we construed Department
of Labor regulations requiring petitions for review to the Benefits Review Board to list the
“specific issues to be considered” to impose a regulatory issue exhaustion requirement. Id. at
749 (citing 20 C.F.R. § 802.211(a)).
As explained next, our review of the Department of Labor’s regulations reveals a
regulatory exhaustion requirement applicable to ALJ proceedings. Black lung benefits
adjudication regulations require that litigants raise issues before the ALJ as a prerequisite to
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review by the Benefits Review Board. The Board’s longstanding practice of treating issues not
raised below as forfeited confirms this conclusion. (Accordingly, we need not consider the third
exhaustion category, prudential issue exhaustion. See Bryan, 937 F.3d at 747–49 (recognizing
that prudential issue exhaustion may apply even when no regulation or statute requires parties to
exhaust issues before the agency, but noting that the atextual nature of this doctrine leaves it on
somewhat shaky footing).)
1. Taken as a whole, the Benefits Review Board’s governing regulations require that
legal questions be raised before the ALJ to be reviewable by the Board. Start with the
regulations outlining the method for raising an issue before an ALJ. Upon receiving a proposed
decision and order from the district director, a party, to seek further review, must object to that
proposal by “specify[ing] the findings and conclusions [of the district director] with which the
responding party disagrees.” 20 C.F.R. § 725.419(b). In then requesting a hearing before an
ALJ, the requesting party must highlight the “contested issue[s] of fact or law” to be addressed at
the hearing. Id. § 725.451. And the hearing is then restricted to those contested issues unless a
new issue is raised that “was not reasonably ascertainable by the parties at the time the claim was
before the district director.” Id. § 725.463. An issue of that ilk may be raised by a party “at any
time . . . prior to decision,” and when necessary, the ALJ can “remand the case to the district
director [to] resolve the new issue, or refuse to consider such new issue.” Id. (cleaned up).
Further reflecting the Board’s issue exhaustion requirement is the Board’s constrained
evaluation of an ALJ’s determination. The Board’s review of legal questions is limited to
“conclusions of law on which the decision or order appealed from was based.” 20 C.F.R.
§ 802.301(a). “Such . . . conclusions of law” may be set aside only if not “in accordance with
law.” Id. Those dual requirements frame the scope of the Board’s review, as the Board will not
“engage in a de novo proceeding or unrestricted review of a case brought before it.” Id. Nor
will it consider new evidence on appeal. Id. § 802.301(b). Any evidence outside the “record
developed at the hearing before the [ALJ]” must be “returned without being considered by the
Board.” Id.
Read together, these regulatory provisions require that an Appointments Clause challenge
be raised before the ALJ to preserve the issue for the Board’s review. Section 725.463 gives a
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party wide berth to raise issues with the ALJ “at any time” prior to the ALJ’s decision. But that
wide berth reaffirms the need to raise contested issues with the ALJ. As from there, § 802.301
confines the Board’s review to the four corners of the record developed before the ALJ. And an
unraised Lucia claim neither raised by a party nor addressed by the ALJ cannot be a conclusion
of law “on which the [ALJ’s] decision . . . was based.” Id. § 802.301(a). Simply put, in the
absence of a developed legal and factual Appointments Clause challenge, the Board is unable to
address the issue without engaging in a prohibited “de novo” or “unrestricted” review of the ALJ
decision. Id.
2. Consistent with this regulatory backdrop, the Board’s longstanding practice has been
to deem forfeited those objections not raised with the ALJ. For decades, the Board has routinely
cited, with near black-letter authority, the principle that issues not raised before the ALJ are
forfeited. See, e.g., Powell v. Serv. Emps. Int’l, Inc., No. 18-0557, 2019 WL 4201393, at *3
(Ben. Rev. Bd. Aug. 8, 2019); Johnson v. Royal Coal Co., No. 01-0388, 2002 WL 32301641, at
*4–5 (Ben. Rev. Bd. Feb. 28, 2002); Dankle v. Duquesne Light Co., No. 95-0957, 1995 WL
17049134, at *2 (Ben. Rev. Bd. Aug. 30, 1995); Prater v. Dir., OWCP, No. 81-1278, 1986 WL
66307, at *1 (Ben. Rev. Bd. Feb. 10, 1986); see also Black Lung Deskbook, Benefits Review
Board Policies and Procedures, U.S. Dep’t of Labor, Part V § A.9 (rev. Sept. 2010) (“The
appealing party is limited in the issues it may raise since the Board follows the well established
principle that issues not effectively presented to an [ALJ], where ample opportunity to do so has
been afforded, cannot be raised on appeal.”). The operators do not cite, nor can we find, any
case law that counters this uniform line of authority.
True, the Board, both here and elsewhere, has not always cited regulatory authority when
invoking its forfeiture doctrine, opting instead at times to rely upon general principles of waiver
and forfeiture. See, e.g., Kiyuna v. Matson Terminals, Inc., No. 19-0103, 2019 WL 2881243, at
*2 (Ben. Rev. Bd. June 25, 2019). But text and structure convincingly demonstrate that
Department regulations require parties to raise issues before the ALJ to avoid forfeiting them.
We thus decline to “topple over” the Board’s finding of untimeliness. L.A. Tucker Truck Lines,
344 U.S. at 37.
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3. Of course, regulatory exhaustion requirements are only valid to the extent they
“comport ‘with congressional intent and any applicable statutory scheme.’” Bryan, 937 F.3d at
746 (quoting McCarthy, 503 U.S. at 144). On that score, the Secretary of Labor enjoys the
authority to promulgate regulations he “deems appropriate to carry out” the benefits-adjudication
process. 30 U.S.C. § 936(a); 33 U.S.C. § 939(a). Those regulations, however, may not be
contrary to law, 30 U.S.C. § 932, nor may they run afoul of the Administrative Procedure Act
and its proscription on “arbitrary and capricious” agency action, id. § 936(a) (citing 5 U.S.C.
§ 553). And even when duly enacted, the Department may not apply its regulations in an
unreasonable or arbitrary manner, for example, by selectively enforcing the regulations. Bryan,
937 F.3d at 747 (citing Crockett Colleries, 478 F.3d at 353–55).
All of that said, we see 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. The Black Lung Benefits Act makes clear
that the Board has a limited scope of review, and that its orders “shall be based upon the hearing
record.” 33 U.S.C. § 921(b)(3). Imposing a standard issue exhaustion requirement to facilitate
that review falls safely within the Secretary’s broad statutory authority.
In one instance, the operators remind us, the Board remanded an Appointments Clause
challenge brought for the first time in opening briefs. See Miller v. Pine Branch Coal Sales, Inc.,
No. 18-0323, 2018 WL 8269864, at *1 (Ben. Rev. Bd. Oct. 22, 2018) (per curiam). But Miller is
unlike today’s case in numerous respects. For one, Miller dealt only with questions of remedy—
whether an ALJ’s subsequent ratification cures an Appointments Clause violation—not questions
of timeliness. Id. at *2. For another, the Board remanded the matter at the Director’s request,
rather than deciding whether to accept the operators’ previously unraised arguments. Id. And at
all events, the remand occurred before Lucia, and thus against a legal backdrop different than the
one in place today. Placed in its proper context, Miller does not contradict the Board’s
longstanding requirement that issues be exhausted before the ALJ.
4. Resisting the force of this collective body of authority, the operators argue that
requiring exhaustion in this setting contravenes our precedent. That precedent, the operators say,
at most requires only that “substantive challenges to an ALJ’s determination be raised in a
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party’s opening brief filed with the Board.” Island Creek Coal Co. v. Young, 947 F.3d 399, 402
(6th Cir. 2020). In acknowledging one exhaustion requirement in Young, however, we did not
somehow do away with the rest. Consider a baseball analogy. Just like a runner must tag every
base before running to home plate, a party must touch each base of the preservation process
during the administrative and court proceedings. And just because an operator touches second
base by raising an issue in its opening brief to the Board, see 20 C.F.R. § 802.211; Bryan, 937
F.3d at 749, that does not excuse it from also touching first (preserving the issue before the ALJ)
and third (raising the issue on appeal to this Court) before heading home.
Equally unhelpful to the operators are cases exploring exhaustion requirements in other
administrative schemes. Exhaustion requirements must be applied “with a regard for the
particular administrative scheme at issue.” Weinberger v. Salfi, 422 U.S. 749, 765 (1975)
(citations omitted). Lucia, for example, arose under an SEC structure with markedly different
exhaustion considerations than those in the black lung context. 138 S. Ct. at 2049. The same
goes for Freytag and its examination of exhaustion requirements within the Internal Revenue
Service. See Bryan, 937 F.3d at 754 (citing Freytag, 501 U.S. at 878–79, and rejecting that it
controls in the black lung context). The particulars of these and other adjudicatory settings do
little to inform the operators’ responsibility to exhaust during black lung benefits proceedings.
See Ramsey v. Comm’r, 973 F.3d 537, 547 n.5 (6th Cir. 2020) (acknowledging that “our holding
today” addressing prudential exhaustion before Social Security ALJs “in no way decides whether
a similar result would be appropriate for Appointments Clause challenges to the ALJs of other
administrative agencies”). On this point, it bears emphasizing that the administration of black
lung benefits claims can be attenuated, and then prolonged even more should the administrative
determination be appealed. See Office of Administrative Law Judges, Quarterly Report on Case
Inventory for 3rd Quarter FY 2020, at 11 (showing the median length of time for black lung
cases to be 20 months from docketing to ALJ decision). Take the claims here, for example,
which date back to 2012. Regrettably, by the time of today’s decision, two of the three miners
have died, never to see their claims fully adjudicated. It is thus easy to understand why the
Board’s regulatory scheme disfavors allowing an operator to undo years of proceedings based
upon arguments at its disposal from the start.
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B. The operators did not exhaust their Appointments Clause claim
before the ALJs.
By failing to comply with the Board’s timeliness requirements, the operators failed to
preserve their Appointments Clause challenges. Each operator, all agree, raised their
Appointments Clause claim for the first time before the Board. Yet as just explained, to preserve
an Appointments Clause argument for review by the Board, a litigant in the black lung benefits
setting must first raise the issue with the ALJ. See 20 C.F.R. § 725.463. On that basis, the Board
held that the operators’ Appointments Clause arguments came too late in the day. Consistent
with our own mandate not to consider issues left unexhausted before the agency, we too find
those arguments not properly preserved for review. Bryan, 937 F.3d at 751.
Here again, the operators see things differently. They contend that their Appointments
Clause challenges were preserved by the fact that each ALJ’s decision and order included a short
footnote mentioning that the ALJ had reviewed and confirmed its prior actions in light of the
ALJ’s reappointment by the Secretary of Labor. Unlike the operators, however, we do not read
the ALJ’s recognition of the Department’s response to Lucia as akin to a party affirmatively
raising a Lucia challenge. One ALJ, in fact, expressly stated that “[n]o party has raised a
challenge pursuant to Lucia.” And more broadly, issue preservation rules exist to ensure that
contested issues receive the adversarial vetting necessary for meaningful appellate review. See
Thomas M. Cooley Law Sch. v. Kurzon Strauss, LLP, 759 F.3d 522, 528 (6th Cir. 2014).
Requiring parties to raise an issue before a lower tribunal benefits litigants and judges alike;
opposing parties receive fair notice of the issue, and appellate tribunals benefit from the lower
tribunal’s initial review. Id. A tribunal’s mere “passing mention” of an issue, however, does not
serve those purposes. See Moore v. Rohm & Haas Co., 446 F.3d 643, 645, 647 (6th Cir. 2006).
Particularly so here, where the ALJ’s brief reference to his reappointment following Lucia did
not otherwise engage on the matter. The full nature of the Appointments Clause issue, in other
words, was neither framed by the parties nor resulted in the ALJ passing on the issue’s merits.
See Jones Bros., 898 F.3d at 677 (explaining that even as to a party, “to acknowledge an
argument is not to make an argument”). If anything, the ALJ’s raising of the issue only
underscores the availability of a challenge the operators neglected to bring.
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C. There is no basis to excuse the operators’ failure to exhaust.
Even with the operators having failed to satisfy the Board’s regulatory exhaustion
requirement, we may excuse that noncompliance where the Board’s regulations are “best read to
give judges leeway to create exceptions or to [] incorporate standard administrative-law
exceptions.” See Bryan, 937 F.3d at 751–52 (quoting Ross v. Blake, 136 S. Ct. 1850, 1858 n.2
(2016)). The operators, however, fail to identify an applicable exception that would excuse their
failure.
The operators first invoke the general rule that forfeiture is excused “when raising the
issue [to the agency] would have been futile.” Appleton & Ratliff Coal Corp. v. Ratliff, 664 F.
App’x 470, 477 n.4 (6th Cir. 2016) (quoting Consol. Coal Co. v. McMahon, 77 F.3d 898, 904
(6th Cir. 1996)). To be sure, raising a facial constitutional challenge outside the limited scope of
an ALJ’s adjudicative authority might well be futile. See Peabody Coal Co. v. Greer, 62 F.3d
801, 806 (6th Cir. 1995). But an Appointments Clause challenge is, at bottom, an as-applied
constitutional challenge; it contests “how the Department of Labor applied its statutory
appointments power,” not the constitutionality of the statutes themselves. Bryan, 937 F.3d at
738 (emphasis in original).
ALJs can entertain as-applied constitutional challenges and provide the requested relief
“without doing any violence” to the Black Lung Benefits Act. See Jones Bros., 898 F.3d at 675;
see, e.g., Farley v. Canada Coal Co., Inc., 2016-BLA-05786, 2016-BLA-05835, Order Granting
Motion to Strike (OALJ May 7, 2018) (granting relief to remedy an asserted due process
violation). Here, the remedy sought—reassignment to a constitutionally appointed ALJ—could
have been awarded by the ALJ. Proving as much, that exact remedy was awarded in legions of
other post-Lucia black lung disputes following the assertion of a properly raised Appointments
Clause challenge before the initial ALJ. See, e.g., McNary v. Black Beauty Coal Co., 2014-
BLA-5373, Order Granting Employer’s Motion to Reassign (OALJ Aug. 22, 2018); Mullins v.
Prestige Coal Co., 2017-BLA-6241, Notice and Order (OALJ Aug. 22, 2018); Powell v. Garrett
Mining, Inc., 2012-BLA-5298, Notice and Order (OALJ Aug. 20, 2018). Alternatively, where
the issue was raised but relief was not granted, the objection was nonetheless preserved for
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Board review. See, e.g., Stiltner v. Superior Mining & Minerals, 2014-BLA-05333, Decision
and Order on Remand (OALJ Apr. 10, 2018).
Nor do we find merit in the operators’ contention that their failure to exhaust their
Appointments Clause challenge was justified by the purported stakes of doing so. As the
operators see things, raising a structural constitutional objection would “engender hostility” and
risk bias from the assigned ALJ, whose “job is threatened” by the objection. That concern,
however, is deeply speculative. And entirely unfounded, it would appear. After all, the ALJs in
this very case have a history of reassigning cases upon a proper Lucia objection. See, e.g., Logan
v. Willis Hogg Coal Co., No. 2015-BLA-05347, Order Granting the Employer’s Motion for
Reconsideration (OALJ Oct. 22, 2018) (ALJ Silvain reassigning case to another ALJ once
Appointments Clause challenge was raised).
Equally unavailing is the operators’ reliance on the “intervening-change-in-law” doctrine.
That doctrine generally serves to excuse a failure to exhaust when an issue was not available to
the party below. Hormel, 312 U.S. at 558–59. Appointments Clause challenges, however, were
available before Lucia. Wilkerson, 910 F.3d at 257; see also Luckern v. Richard Brady &
Assocs., No. 18-0123, 2018 WL 5734480, at *2 n.3 (Ben. Rev. Bd. Oct. 30, 2018) (rejecting that
Lucia constitutes an intervening change in the law). Lucia confirmed as much when it noted that
the Supreme Court had already said “everything necessary to decide this case.” Lucia, 138 S. Ct.
at 2053. And even if Lucia did mark a change in the law, the operators failed to raise that
development with the respective ALJs in the wake of that decision—despite the fact that the
Board’s regulations generously allowed the operators to raise the issue “at any time . . . prior to
decision by an [ALJ].” 20 C.F.R. § 725.463(b).
* * * * *
One final point deserves mention. While we do not see evidence that the operators acted
with a nefarious motive, we are nonetheless mindful not to invite “sandbagging” or “judge-
shopping” in future black lung proceedings. See Freytag, 501 U.S. at 895 (Scalia, J.,
concurring); Gonnella v. SEC, 954 F.3d 536, 544 (2d Cir. 2020) (emphasizing that “compelling
policy reasons” support forfeiture of untimely Appointments Clause challenges); Carr v.
Nos. 20-3329/3331/3332 Forrester Trucking, et al. v. OWCP, et al. Page 14
Comm’r, 961 F.3d 1267, 1275 n.9 (10th Cir.), cert. granted sub nom. Carr v. Saul, --- S. Ct. ---,
2020 WL 6551771 (U.S. Nov. 9, 2020) (same). A settled rule in seemingly every forum for
dispute resolution is that a judge’s authority should be challenged at the “earliest practicable
moment” to “prevent[] litigants from abiding the outcome of a lawsuit and then overturning it if
adverse upon a technicality of which they were previously aware.” Glidden Co. v. Zdanok, 370
U.S. 530, 535 (1962) (plurality opinion). In the absence of issue exhaustion, a party could wait
until an ALJ renders an adverse decision before raising an Appointments Clause challenge, with
the potential to receive a new hearing before a new (and perhaps more sympathetic) ALJ. Just as
Congress would not “want a petitioner to stay silent in front of the agency (when it can avoid the
problem) and wait to raise an issue in court months later (when it is too late),” Jones Bros., 898
F.3d at 679, it is understandable why the Department of Labor would first want issues raised
with an ALJ. Any other approach, our colleague recently emphasized in this very context,
allows the “wiley lawyer” to take “two bites at the apple.” Ramsey, 973 F.3d at 548 (Siler, J.,
dissenting). That is why we too enforce issue preservation requirements in a variety of settings.
Berkshire v. Beauvais, 928 F.3d 520, 530 (6th Cir. 2019) (parties forfeit arguments not raised in
objections to a magistrate judge’s report and recommendation); Frazier v. Jenkins, 770 F.3d 485,
497 (6th Cir. 2014) (parties forfeit arguments not raised before the district court); Courser v.
Allard, 969 F.3d 604, 621 (6th Cir. 2020) (parties forfeit arguments not raised in an opening
appellate brief); United States v. Carson, 560 F.3d 566, 587 (6th Cir. 2009) (parties forfeit
arguments raised for the first time in a reply brief).
These concerns also help explain the Board’s exhaustion requirement. From
discouraging gamesmanship to preserving judicial resources, exhaustion requirements enhance
the dispute resolution process for all involved, both in administrative proceedings and in federal
court.
V.
For the foregoing reasons, we deny the consolidated petition for review.