Decker Coal Company v. Jerry Pehringer; Director, Office of Workers ’ Compensation Programs

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DECKER C OAL COMPANY ,
Petitioner,
v.
J ERRY PEHRINGER; DIRECTOR,
OFFICE OF W ORKERS ’
COMPENSATION PROGRAMS ,
Respondents.
No. 20-71449
BRB No.
19-0366
OPINION
On Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted June 10, 2021
Portland, Oregon
Filed August 16, 2021
Before: Kim McLane Wardlaw, Richard C. Tallman, and
Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Tallman

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2 DECKER C OAL V . PEHRINGER
SUMMARY*
Black Lung Benefits Act / Benefits Review Board
The panel denied a petition for review of a decision of
the Benefits Review Board (“BRB”) affirming an
administrative law judge’s award of benefits to a claimant
under the Black Lung Benefits Act (“BLBA”).
After an ALJ awarded claimant BLBA benefits,
claimant’s employer, Decker Coal Company, filed a joint
motion for reconsideration and motion to reopen the record.
The ALJ denied the motion, and the BRB affirmed.
The panel held that an ALJ’s decision on a motion for
reconsideration or a request for modification in a BLBA case
is reviewed for abuse of discretion.
The panel began by reviewing the constitutionality of
removal provisions applicable to ALJs. 5 U.S.C. § 7521(a)
permits removal of an ALJ only for good cause determined
by the Merits Systems Protection Board after an opportunity
for hearing before the Board. The panel held that 5 U.S.C.
§ 7521 was compatible with Article II of the Constitution,
and was constitutional as applied to Department of Labor
(“DOL”) ALJs. Specifically, the panel held that the question
before it had not been decided by the U.S. Supreme Court.
In addressing the constitutionality of § 7521, the panel began
with the presumption of constitutionality of statutes. The
panel held, first, that the ALJ here was performing a purely
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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DECKER C OAL V . PEHRINGER 3
adjudicatory function in deciding the BLBA claim. Second,
Congress has not tied the President’s hands and hindered his
control over his subordinates. Third, the BRB’s role
provided the President with meaningful control over the
DOL ALJs. Simply put, ALJs are judges who make
decisions that are subject to vacatur by people without tenure
protection. The panel concluded that properly appointed
DOL ALJs can adjudicate cases without trammeling the
President’s executive power. The panel noted that its
holding did not necessarily provide that all remaining two-
level tenure protections schemes were constitutional.
The panel held even if it were to conclude that 5 U.S.C.
§ 7521 was unconstitutional, they would sever only one level
of protection, and they would not invalidate the decision
reached below. The panel held that Decker Coal’s claim –
that Lucia v. SEC, 138 S. Ct. 2044 (2018), mandated a new
hearing before a new ALJ – was incorrect.
The panel held that the ALJ did not err in adjudicating
claimant’s claim for benefits. The panel rejected Decker
Coal’s argument that the ALJ abused its discretion by
denying its motion for reconsideration and rejecting its
request to reopen the record to admit evidence it asserted
would undermine the veracity of claimant’s testimony. The
panel also rejected Decker Coal’s argument that § 22 of the
Longshore Act required the ALJ to modify the award of
benefits. Specifically, the panel held that there was no ALJ
error in rejecting untimely evidentiary submissions that
could have been obtained with reasonable diligence during
the significant length of time the record was open. The
BLBA incorporates § 22, which provides for modifying
benefits awards. The regulation governing modification of
BLBA benefits is 20 C.F.R. § 725.310, which provides that
an ALJ may only hear a case at the conclusion of

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4 DECKER C OAL V . PEHRINGER
administrative modification proceedings after the district
director forwards the claim, and prohibits a party’s initiation
of a modification proceeding before an ALJ or the BRB. The
panel held that the regulation did not conflict with the
statutory language of § 22, and concluded that Decker Coal’s
request for modification in the reconsideration motion filed
before the ALJ was procedurally improper.
The panel held that substantial evidence supported the
ALJ’s conclusion that Decker Coal did not rebut the
presumption of entitlement to benefits after claimant
established legal pneumoconiosis and causation. Section
921 of the BLBA creates a rebuttable presumption that a
miner suffering from a respiratory or pulmonary impairment
is totally disabled from pneumoconiosis, even without
formal medical diagnosis, if he or she worked for at least
fifteen years in substantially similar conditions to
underground coal mines. The panel held that once a
claimant has successfully invoked the fifteen-year
presumption, the burden shifts and the party opposing the
claimant’s entitlement to benefits must rebut the
presumption of total disability due to pneumoconiosis. The
panel held that the ALJ reasonably concluded that Decker
Coal failed to rebut the presumption of legal
pneumoconiosis.

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DECKER C OAL V . PEHRINGER 5
COUNSEL
John S. Lopatto III (argued), Washington, D.C., for
Petitioner.
Joshua M. Salzman (argued), Attorney; Civil Division,
United States Department of Justice, Washington, D.C.; Ann
Marie Scarpino (argued) and Sarah M. Hurley, Attorneys;
Gary K. Stearman, Counsel for Appellate Litigation;
Jennifer L. Feldman, Deputy Associate Solicitor; Barry H.
Joyner, Associate Solicitor; Kate O’Scannlain, Solicitor of
Labor; Office of the Solicitor, United States Department of
Labor, Washington, D.C.; for Respondent Director, Office
of Workers’ Compensation Programs.
Brad A. Austin (argued), Wolfe Williams & Reynolds,
Norton, Virginia, for Respondent Jerry Pehringer.
OPINION
TALLMAN, Circuit Judge:
The Powder River Basin produces the most coal of any
region in the United States. Trains transport coal daily from
the Basin to continental coal-fired generating stations and to
Pacific Northwest coal export terminals. The Basin
comprises millions of acres of land in northeast Wyoming
and southeast Montana. It is home to relatively few people
but holds vast reserves of coal and large surface coal mines.
The Decker coal mine in southeast Montana was one such
mine in the Basin. It was where former coal miner and
Decker Coal Company (Decker) employee Jerry Pehringer
worked throughout his entire coal mining career and where
the story of this dispute began.

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Congress established a federal program designed to
compensate coal mine workers who contract Black Lung
Disease because of their work in the mines. Decker petitions
for review of a Benefits Review Board (BRB) order
affirming the decision of a Department of Labor (DOL)
administrative law judge (ALJ) awarding benefits to
Pehringer under the Black Lung Benefits Act, 30 U.S.C.
§§ 901–944 (BLBA). Decker principally challenges the
process by which ALJs can be removed. Decker argues that
the governing statute, 5 U.S.C. § 7521, infringes upon the
President’s inherent Article II removal power by
impermissibly insulating ALJs from termination through
two levels of “for-cause” employment protection. Because
of this alleged constitutional defect, Decker asks us to
invalidate the award and remand to a different ALJ.
We must decide whether the statute is constitutional with
respect to DOL ALJs. If the statutory removal structure
passes constitutional muster, we then must decide whether
the ALJ here acted within his discretion in denying Decker’s
motion for reconsideration and whether substantial evidence
supports his decision awarding benefits under the BLBA.
For reasons specific to the statutory scheme at issue, we hold
that 5 U.S.C. § 7521 is constitutional as applied to DOL
ALJs. We further hold that the ALJ did not abuse his
discretion in denying Decker’s post-hearing motion and that
substantial evidence supports the ALJ’s award of benefits.
Accordingly, we deny the petition for review.
I
A
Decker employed Pehringer at its open-pit surface mine
near Decker, Montana, from September 1977 until June
1999. There were several periods where Pehringer did not

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DECKER C OAL V . PEHRINGER 7
work, including during a roughly three-year-long strike
beginning in late 1987, and a shorter period following a neck
injury in December 1995. But for most of his coal mining
career, Pehringer was regularly exposed to coal dust—so
much so that he would leave a blanket on his car seats,
undress in his basement, and shake off his dirty clothes
outside his home before bathing. He testified that conditions
were “bad,” that “[i]t was just a constant dust storm all the
time,” and that coal dust “lingered in the air down [in the
pit].”
Pehringer worked primarily as a heavy equipment
operator. He operated bulldozers, coal scrapers, and coal
haulers, cleaning coal seams, trapping coal, and filling traps
to load coal trains. Most vehicle cabs did not have air
conditioning. In the warm months, the heat inside the
scraper and dozer cabs forced Pehringer to operate the
machinery with the door opened. In the winter, coal dust
would still creep into the cabs even with the doors closed.
Conditions remained like this until the last two years of his
coal mining career, when he was able to work in newer,
upgraded equipment with air-conditioned cabs.
After being laid off in 1999, Pehringer was awarded
Social Security total disability benefits. He never worked
again. On November 7, 2014, a little over a month before
his sixty-fifth birthday, Pehringer filed his claim for black
lung benefits with the DOL, citing his severe chronic
obstructive pulmonary disease (COPD). Barbara Cahill,
MD, conducted a pulmonary examination in April 2015,
pursuant to 30 U.S.C. § 923(b), and determined that
“Pehringer is 100% impaired from his COPD.” Dr. Cahill
found that the causes of the COPD were: “smoking & dust-
related.” She further opined that Pehringer’s coal “dust

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8 DECKER C OAL V . PEHRINGER
exposure and smoking are significant contributors to his
COPD impairment.”
B
A district director from the DOL Office of Workers’
Compensation Programs (OWCP) issued a proposed
decision and order awarding Pehringer BLBA benefits on
March 8, 2016. Decker timely appealed this administrative
decision, and the district director transferred the claim to the
DOL’s Office of Administrative Law Judges on June 20,
2016, for a hearing. The contested claim was assigned to
ALJ John P. Sellers, III, whom DOL officials previously
selected for service from an Office of Personnel
Management competitive service roster.1
1 Decker raised a challenge below to the ALJ’s authority to decide
this claim based on the Appointments Clause and Lucia v. SEC, 138 S.
Ct. 2044 (2018). Lucia held that Securities and Exchange Commission
ALJs appointed by SEC staff rather than the President or department
head were “inferior officers” of the United States, and therefore were
subject to the Appointments Clause. 138 S. Ct. at 2053–55. However,
“ratification can remedy a defect arising from the decision of an
improperly appointed official when a properly appointed official has the
power to conduct an independent evaluation of the merits and does so.”
Wilkes-Barre Hosp. Co., LLC v. NLRB, 857 F.3d 364, 371 (D.C. Cir.
2017) (cleaned up); see Edmond v. United States, 520 U.S. 651, 654–55,
666 (1997); CFPB v. Gordon, 819 F.3d 1179, 1190–92 (9th Cir. 2016)
(stating that even “rubberstamp” review and ratification may cure earlier
Appointments Clause deficiencies); accord CFPB v. Seila Law LLC, 997
F.3d 837, 847 (9th Cir. 2021) (confirming that “ratification is available
to cure both Appointments Clause defects and structural, separation-of-
powers defects”).
While the administrative appeal was pending—but before Judge
Sellers took any significant action—the Secretary of Labor ratified the
prior appointment of Judge Sellers as an ALJ on December 21, 2017.

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DECKER C OAL V . PEHRINGER 9
On June 26, 2018, the ALJ held a merits hearing on the
claim in Sheridan, Wyoming. Decker offered just one
exhibit, a transcript of Pehringer’s telephonic deposition,
taken only days before. The ALJ admitted the transcript
along with the Director’s exhibits, including Dr. Cahill’s
opinion and records from Pehringer’s treating physician, Dr.
Ackerman. The ALJ permitted Decker to conduct 60 days
of post-hearing evidentiary development. But Decker filed
nothing more.
Based on the admitted evidence, the ALJ found that
Pehringer worked as a coal miner for 17.03 years. The ALJ
weighed the medical opinion evidence, pulmonary function
tests, and arterial blood gas studies and found that it
“overwhelmingly demonstrates that [Pehringer] has a totally
disabling respiratory or pulmonary impairment.” Although
finding Pehringer’s history of smoking significant, the ALJ
gave Dr. Cahill’s opinion full probative weight that
Pehringer’s condition was also caused by exposure to coal
dust, finding it “both well-reasoned and well-documented”
and that “her conclusions [were] consistent with the
objective evidence she reviewed and the weight of the
evidence as a whole.” The ALJ concluded that Pehringer
successfully invoked the rebuttable presumption under
30 U.S.C. § 921(c)(4)—thus entitling him to benefits—as he
worked for at least fifteen years2 in substantially similar
Unlike Lucia, Judge Sellers had neither heard the case nor issued a
proposed decision on the merits prior to that ratification. It therefore
cured any constitutional defect with respect to Judge Sellers’ original
appointment.
2 Relying on Pehringer’s testimony about work conditions and
adjusting for the time actually worked during the last two years of his
17.03 years of total employment, the ALJ found that Pehringer
demonstrated he was regularly exposed to coal mine dust for 16.7 years.

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10 DECKER C OAL V . PEHRINGER
conditions to underground coal mines and was totally
disabled from pneumoconiosis (which has both a medical
and a statutory definition).
The ALJ then determined that Decker successfully
rebutted the fifteen-year presumption as to clinical (or
medical) pneumoconiosis, based on Dr. Cahill’s medical
opinion and Pehringer’s chest x-ray, which was inconclusive
as to any of the Black Lung Diseases commonly recognized
by the medical community. However, the ALJ found that
Decker failed to rebut the presumption of legal (or statutory)
pneumoconiosis, based on the weight of the medical
evidence, the COPD diagnosis, Dr. Cahill’s opinion,
Dr. Ackerman’s treating records, and absence of any
medical rebuttal evidence from Decker. As to total disability
causation, the judge found that Decker submitted no
evidence to show Pehringer’s COPD “did not arise out of, or
in connection with, employment in a coal mine.”
Accordingly, the ALJ awarded Pehringer BLBA benefits on
February 26, 2019.
Decker filed a joint motion for reconsideration and
motion to reopen the record on March 11, 2019, challenging
the ALJ’s invocation of the fifteen-year presumption,
seeking to admit records related to Pehringer’s employment,
and requesting the ALJ modify his award of benefits. The
ALJ denied the motion on April 11, 2019, because—despite
his granting two requests for extensions of time to submit
evidence following the hearing on June 26, 2018—Decker
never submitted additional evidence before the record closed
nor filed a post-hearing brief.
Decker timely appealed to the BRB, contesting the
ALJ’s decision on the post-hearing motion, the
constitutionality of Judge Sellers’ appointment, and the
constitutionality of the statutory removal protections. The

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DECKER C OAL V . PEHRINGER 11
BRB affirmed the ALJ’s decision. It determined that the
Secretary’s ratification of the ALJ’s appointment cured any
Appointments Clause problem. The BRB then found
5 U.S.C. § 7521 constitutional, distinguishing Lucia v. SEC,
138 S. Ct. 2044 (2018), and Free Enterprise Fund v. Public
Company Accounting Oversight Board, 561 U.S. 477
(2010). It also concluded that Decker did not advance an
argument about Arthrex, Inc. v. Smith & Nephew, Inc.,
941 F.3d 1320 (Fed. Cir. 2019), but rather requested only a
speculative remand. Further, the BRB agreed with the
Director that the ALJ acted within his discretion by treating
Decker’s post-hearing motion as a request for
reconsideration and denying the request to admit new
evidence after he had given Decker “ample time to develop
the evidence necessary to defend the claim.” Finally, the
BRB held that substantial evidence supported the ALJ’s
determination that Pehringer had at least fifteen years of
qualifying coal mine employment.
Decker timely petitioned for review.
II
We have jurisdiction to review a final order of the BRB
under 33 U.S.C. § 921(c).
We review questions of constitutional law de novo.
CFPB v. Gordon, 819 F.3d 1179, 1187 (9th Cir. 2016). We
must affirm a decision awarding BLBA benefits if the ALJ’s
underlying findings and conclusions are legally correct and
supported by substantial evidence—an extremely deferential
standard. See 33 U.S.C. § 921(b)(3); Peabody Coal Co. v.
Dir., OWCP, 746 F.3d 1119, 1127 (9th Cir. 2014).
We have not previously addressed the standard for
reviewing a decision on a reconsideration motion or a

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12 DECKER C OAL V . PEHRINGER
modification request in a BLBA case. The regulation that
governs modification of benefits awards clearly
distinguishes its mandatory requirements from its
discretionary provisions. See generally 20 C.F.R.
§ 725.310. With respect to motions for reconsideration, the
regulations grant the ALJ broad discretion. See id. § .479(b)
(“The procedures to be followed in the reconsideration of a
decision and order shall be determined by the administrative
law judge.”).
Other federal courts of appeal have reviewed BLBA
modification decisions for abuse of discretion. See Sharpe
v. Dir., OWCP, 495 F.3d 125, 130 (4th Cir. 2007); see also
Crowe ex rel. Crowe v. Zeigler Coal Co., 646 F.3d 435, 441
(7th Cir. 2011). We have previously reviewed for abuse of
discretion a deputy commissioner’s decision to deny
rehearing based on new medical evidence after he awarded
compensation under the Longshore Act—a related but
distinct program for maritime workers also administered by
the DOL’s OWCP.3 Simmons v. Marshall, 94 F.2d 850, 852
(9th Cir. 1938). And, in the context of immigration
proceedings, we have held that the abuse of discretion
standard applies to a denial of a motion to reopen or
reconsider. Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.
2002). Accordingly, we now hold that an ALJ’s decision on
a motion for reconsideration or a request for modification in
a BLBA case is reviewed for abuse of discretion.
3 The BLBA incorporates § 22 of the Longshore and Harbor
Workers’ Compensation Act, which provides for modifying benefits
awards. See 30 U.S.C. § 932(a); 33 U.S.C § 922. As we discuss later in
our decision, however, the Secretary of Labor promulgated a specific
regulation governing modification of benefits awards in Federal Black
Lung Program cases, consistent with the congressional intent behind the
BLBA.

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DECKER C OAL V . PEHRINGER 13
III
We begin by addressing the constitutionality of removal
provisions applicable to ALJs.
A
There are nearly 2,000 federal ALJs.4 The relevant
statute permits removal of an ALJ “only for good cause
established and determined by the Merit Systems Protection
Board [MSPB] on the record after opportunity for hearing
before the Board.” 5 U.S.C. § 7521(a). A MSPB member
in turn “may be removed by the President only for
inefficiency, neglect of duty, or malfeasance in office.”
5 U.S.C. § 1202(d).
Decker argues that § 7521 provides a second level of for-
cause protection from removal for ALJs and violates the
constitutional principle of separation of powers, thus
depriving Judge Sellers of constitutional authority to decide
Pehringer’s claim. In response, the Director insists that
§ 7521 is compatible with Article II of the Constitution. We
agree with the Director and hold that 5 U.S.C. § 7521 is
constitutional as applied to DOL ALJs.
B
The Constitution provides for separate legislative,
executive, and judicial branches. U.S. Const. arts. I, II, III.
“The Framers regarded the checks and balances that they had
4 As of March 2017, DOL had 41 ALJs, while the Social Security
Administration had 1,655. See ALJs by Agency, U.S. Off. of Pers.
Mgmt., Administrative Law Judges, https://www.opm.gov/services-for-
agencies/administrative-law-judges/#url=ALJs-by-Agency (last visited
July 7, 2021).

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14 DECKER C OAL V . PEHRINGER
built into the tripartite Federal Government as a self-
executing safeguard against the encroachment or
aggrandizement of one branch at the expense of the other.”
Buckley v. Valeo, 424 U.S. 1, 122 (1976).
Executive power lies at the heart of this case. Article II’s
Vesting Clause provides that “[t]he executive Power shall be
vested in a President of the United States of America.” U.S.
Const. art. II, § 1, cl. 1. Article II, Section 2 then enumerates
specific presidential powers. One of these key powers is the
appointment of Officers of the United States. The
Appointments Clause provides that the President
shall nominate, and by and with the Advice
and Consent of the Senate, shall appoint . . .
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.
Id. § 2, cl. 2.
The Constitution, however, is silent on the President’s
power to remove those officers from office. The Supreme
Court first addressed this issue in Myers v. United States,
272 U.S. 52 (1926). Chief Justice Taft’s opinion concluded
that the President has inherent, exclusive executive power to
remove officers of the United States. Id. at 161–62, 176; see
also id. at 117 (holding “in the absence of any express
limitation respecting removals, that as his selection of
administrative officers is essential to the execution of the

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DECKER C OAL V . PEHRINGER 15
laws by him, so must be his power of removing those for
whom he cannot continue to be responsible”).
While adhering to the view that the President’s removal
power is incident to the appointment power, the Court has
tempered its interpretation of Article II with respect to
inferior officers. Consistent with the Constitution’s
separation of powers, the Supreme Court has held that
Congress may provide protection to inferior officers from
removal. Morrison v. Olson, 487 U.S. 654, 691–93 (1988)
(concluding that “the imposition of a ‘good cause’ standard
for removal by itself [does not] unduly trammel[] on
executive authority”). Inferior officers are generally those
“whose work is directed and supervised at some level by
others who were appointed by Presidential nomination with
the advice and consent of the Senate.” Edmond v. United
States, 520 U.S. 651, 663 (1997). While more often cited for
Justice Scalia’s dissent,5 Morrison clarified Myers’ reach.
See Morrison, 487 U.S. at 690 (“Myers was undoubtedly
correct in its holding, and in its broader suggestion that there
are some ‘purely executive’ officials who must be removable
by the President at will if he is to be able to accomplish his
constitutional role.”). The Court interpreted Myers to
explain that “the determination of whether the Constitution
allows Congress to impose a ‘good cause’-type restriction on
the President’s power to remove an official cannot be made
to turn on whether or not that official is classified as ‘purely
executive.’” Id. at 689. Rather, the critical question is
whether in offering tenure protections Congress has
interfered with “the President’s exercise of the ‘executive
power’ and his constitutionally appointed duty to ‘take care
5 E.g., Morrison, 487 U.S. at 699 (Scalia, J., dissenting) (“But this
wolf comes as a wolf.”).

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16 DECKER C OAL V . PEHRINGER
that the laws be faithfully executed’ under Article II.” Id.
at 690.
Then came Free Enterprise Fund. There, the question
was whether dual for-cause limitations on the President’s
ability to remove Public Company Accounting Oversight
Board (PCAOB)6 members—inferior officers appointed by
members of the Securities and Exchange Commission (SEC)
who “determine[] the policy and enforce[] the laws of the
United States”—violated the separation of powers doctrine.
Free Enter. Fund, 561 U.S. at 483–84. The Supreme Court
traced the jurisprudential history, from Myers to Morrison,
of the removal power inherent in Article II. See id. at 483,
492–95. The Court ruled that, under the facts of that case,
“such multilevel protection from removal is contrary to
Article II’s vesting of the executive power in the President.”
Id. at 484.
Under the removal scheme invalidated in Free
Enterprise Fund, the SEC Commissioners could remove
PCAOB members only “‘for good cause shown,’ ‘in
accordance with’ certain procedures,” including “notice and
opportunity for a hearing” and a finding “on the record” that
the member violated one of three explicit statutory criteria.
Id. at 486 (quoting 15 U.S.C. §§ 7211(e)(6), 7217(d)(3)).
The Commissioners, in turn, were protected from removal
by the President except for “inefficiency, neglect of duty, or
malfeasance in office.” Id. at 487 (quoting the standard from
Humphrey’s Ex’r v. United States, 295 U.S. 602, 620
(1935)). As a remedy, the Court applied the “normal rule”
and severed only the problematic portion of the statutory
scheme—the removal restrictions on the SEC
6 The PCAOB enforces securities laws, including the Sarbanes-
Oxley Act, and regulates accounting firms that audit public companies.

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DECKER C OAL V . PEHRINGER 17
Commissioners’ ability to remove the PCAOB members—
leaving the rest of the statute intact and separating the
President from the Board by only one layer of good-cause
tenure. Id. at 508–09.
The Supreme Court has subsequently issued a series of
landmark decisions regarding the Appointments Clause and
the President’s removal power, see Collins v. Yellen, 141 S.
Ct. 1761 (2021); United States v. Arthrex, Inc., 141 S. Ct.
1970 (2021); Seila Law LLC v. CFPB, 140 S. Ct. 2183
(2020); Lucia v. SEC, 138 S. Ct. 2044 (2018), but Free
Enterprise Fund is the last case addressing two-layer
removal protections for an inferior officer.
C
Decker primarily relies on Free Enterprise Fund in
challenging 5 U.S.C. § 7521. But Free Enterprise Fund did
not address the issue presented here and its limited holding
does not reach § 7521.
Free Enterprise Fund held that the “highly unusual”
removal statute for PCAOB members deprived the President
of adequate control over the Board by “including at one level
a sharply circumscribed definition of what constitutes ‘good
cause,’ and rigorous procedures that must be followed prior
to removal.” 561 U.S. at 505. Addressing the PCAOB’s
unusual structure, Chief Justice Roberts quoted then-Judge
Kavanaugh’s dissent below: “Perhaps the most telling
indication of the severe constitutional problem with the
PCAOB is the lack of historical precedent for this entity.”
Id. (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight
Bd., 537 F.3d 667, 699 (D.C. Cir. 2008) (Kavanaugh, J.,
dissenting)).

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18 DECKER C OAL V . PEHRINGER
Importantly, the Court did not broadly declare all two-
level for-cause protections for inferior officers
unconstitutional. Id. at 502, 505–07. Rather, it stressed that
the particular PCAOB removal provisions presented “an
even more serious threat to executive control than an
‘ordinary’ dual for-cause standard” because the statute
codified “unusually high” and specific standards for
removal, including “willful violations of the [Sarbanes-
Oxley] Act, Board rules, or the securities laws; willful abuse
of authority; or unreasonable failure to enforce compliance”
with the Act. Id. at 502–03; see id. at 503 (“The Act does
not even give the Commission power to fire Board members
for violations of other laws that do not relate to the Act, the
securities laws, or the Board’s authority.” (emphasis in
original)). Importantly, while not dispositive as to whether
the removal structure for PCAOB members impermissibly
interfered with the President’s executive power, the Court
distinguished the “adjudicative rather than enforcement or
policymaking functions” of many ALJs from those of the
PCAOB. Id. at 507 n.10; cf. Fed. Mar. Comm’n v. S.C. State
Ports Auth., 535 U.S. 743, 758 (2002) (stating “the role of
the ALJ, the impartial officer designated to hear a case . . . is
similar to that of an Article III judge”).
Justice Breyer’s dissent attached appendices listing
48 agencies whose heads are removable only for cause and
573 high-ranking officials within those agencies who are
likewise removable only for cause. See Free Enter. Fund,
561 U.S. at 514–88 (Breyer, J., dissenting). Most troubling
to Justice Breyer was the potential reach of the Court’s
ruling: “I still see no way to avoid sweeping hundreds,
perhaps thousands of high-level Government officials within
the scope of the Court’s holding, putting their job security
and their administrative actions and decisions
constitutionally at risk.” Id. at 540–41. Justice Breyer

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DECKER C OAL V . PEHRINGER 19
specifically highlighted ALJs, the MSPB, and the two-level
removal protections embodied in 5 U.S.C. §§ 7521 and
1202:
The potential list of those whom today’s
decision affects is yet larger. As Justice
SCALIA has observed, administrative law
judges (ALJs) “are all executive officers.”
. . . My research reflects that the Federal
Government relies on 1,584 ALJs to
adjudicate administrative matters in over
25 agencies.
Id. at 542–43 (capitalization in original) (quoting Freytag v.
Comm’r, 501 U.S. 868, 878 (1991)).
In response, Chief Justice Roberts’ majority opinion
emphasized that the Court’s holding “does not address that
subset of independent agency employees who serve as
administrative law judges.” Id. at 507 n.10 (majority
opinion). The Chief Justice stressed that none of the
positions Justice Breyer identified (including ALJs) “are
similarly situated to the Board.” Id. at 506 (“Nor do the
employees referenced by the dissent enjoy the same
significant and unusual protections from Presidential
oversight as members of the Board.”).
Free Enterprise Fund therefore specifically left open the
question whether two-level protections for ALJs are
constitutionally permissible. See id. at 507 n.10, 508. Eight
years later in Lucia, the Court again declined to address the
constitutionality of removal protection for ALJs. 138 S. Ct.
at 2050 n.1.

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20 DECKER C OAL V . PEHRINGER
D
The question before us therefore has not been decided by
the Supreme Court. In addressing the constitutionality of
§ 7521 as applied to DOL ALJs, we begin with the general
presumption of constitutionality of statutes. See United
States v. Morrison, 529 U.S. 598, 607 (2000). For the
reasons that follow we conclude the President has sufficient
control over DOL ALJs to satisfy the Constitution.
First, the ALJ here was performing a purely adjudicatory
function in deciding the BLBA claim. See 20 C.F.R.
§§ 725.450–.479; Free Enter. Fund, 561 U.S. at 507 n.10.
Unlike PCAOB members, who exercise policymaking and
enforcement functions, an ALJ cannot sua sponte initiate
investigations or commence a BLBA case. See Free Enter.
Fund, 561 U.S. at 485. Then-Judge Kavanaugh noted these
differences in his dissent when Free Enterprise Fund was
before the D.C. Circuit:
ALJs perform only adjudicatory functions
that are subject to review by agency officials,
see 5 U.S.C. § 557(b), and that arguably
would not be considered “central to the
functioning of the Executive Branch” for
purposes of the Article II removal precedents.
Morrison, 487 U.S. at 691–92 . . . . Nothing
in this dissenting opinion is intended to or
would affect the status of employees in
independent agencies who have
congressionally mandated civil service
tenure protection or the status of
administrative law judges.
537 F.3d at 699 n.8 (Kavanaugh, J., dissenting) (emphasis
added).

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DECKER C OAL V . PEHRINGER 21
Second, Congress has not tied the President’s hands and
hindered his control over his subordinates here in the manner
it had in Free Enterprise Fund. Determining whether there
is a separation of powers violation turns on whether one
branch expanded its own powers and encroached upon
another branch or whether one branch has attempted to
diffuse another branch’s power. See id. at 497–501; see also
Freytag, 501 U.S. at 878. By contrast, “[t]he President can
always choose to restrain himself in his dealings with
subordinates.” Free Enter. Fund, 561 U.S. at 497. So, we
must ascertain whether Congress trammeled on the
President’s executive power in § 7521 or whether the
President has instead tied his own hands.
Congress did not overstep here. No statute mandates that
the DOL employ ALJs in adjudicating BLBA benefits
claims. Rather, Congress imposed only the requirement that
DOL adjudicators be “[q]ualified individuals appointed by
the Secretary of Labor.” 30 U.S.C. § 932a. Congress
included in the statute a broad definition of “qualified
individuals” that is not limited to ALJs. Id. (“For purposes
of this section, the term ‘qualified individual’ means such an
individual, regardless of whether that individual is a hearing
examiner appointed under section 3105 of Title 5.”
(emphasis added)). In other words, Congress expressly
refused to require that these individuals be ALJs appointed
under 5 U.S.C. § 3105—and therefore insulated via a dual
for-cause removal regime. Id.; see Free Enter. Fund,
537 F.3d at 699 n.8 (Kavanaugh, J., dissenting) (explaining
“an agency has the choice whether to use ALJs for hearings,
see 5 U.S.C. § 556(b); Congress has not imposed ALJs on
the Executive Branch”). Congress left that decision to the
DOL, which can employ ALJs for adjudicating BLBA
claims if it desires. See 30 U.S.C. § 932a. The DOL chose
that path, voluntarily promulgating regulations that require

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22 DECKER C OAL V . PEHRINGER
parties to a claim to proceed before an ALJ in accordance
with the Administrative Procedure Act if they desire review
by the BRB, or, later, in a federal court of appeals pursuant
to 33 U.S.C. § 921(c). See 20 C.F.R. §§ 725.452(a), .481,
.482(a).
The President has broad executive power to order the
Secretary of Labor to change DOL’s regulatory scheme and
remove ALJs from the adjudicatory process under 30 U.S.C.
§ 932a. Congress offered the President a choice as to how
he wanted to administer hearings and administrative
adjudications concerning the BLBA. The President can
choose to use a “qualified individual” other than an ALJ.
But, given that the President (through his department head
subject to at-will removal) chose to use ALJs, that choice
required the President to accept a dual for-cause removal
scheme, even if that means “restrain[ing] himself in his
dealings with subordinates.” Free Enter. Fund, 561 U.S.
at 497 (emphasis added). Based on 30 U.S.C. § 932a, we
cannot here conclude that Congress aggrandized its own
power, or impaired that of the President, beyond the limits
envisioned by the Framers. See id. at 500–01.
Third, the BRB’s role provides the President with
meaningful control over DOL ALJs. The Board hears
appeals from the decisions of ALJs in BLBA compensation
cases. See 33 U.S.C. § 921(b)(3); 20 C.F.R § 725.481.
Congress has authorized the BRB to decide appeals “raising
a substantial question of law or fact.” 33 U.S.C. § 921(b)(3);
20 C.F.R. § 801.102(a); see 30 U.S.C. § 932(a) (making
§ 921(b)(3) of the Longshore Act applicable to BLBA
benefits claims). The BRB cannot accept new evidence. See
20 C.F.R. § 802.301. The Board reviews the ALJ’s findings
of fact for substantial evidence. See 33 U.S.C. § 921(b)(3);
20 C.F.R. § 802.301(a). But it cannot accept the ALJ’s

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DECKER C OAL V . PEHRINGER 23
findings if they are contrary to the law. See Port of Portland
v. Dir., OWCP, 932 F.2d 836, 838 (9th Cir. 1991); Palmer
Coking Coal Co. v. Dir., OWCP of USDOL, 720 F.2d 1054,
1057 (9th Cir. 1983). While the BRB cannot reweigh the
evidence, “[q]uestions of law are another matter.” Dir.,
OWCP, USDOL v. Campbell Indus., Inc., 678 F.2d 836, 839
(9th Cir. 1982), limited on other grounds by Dir., OWCP,
USDOL v. Cargill, Inc., 709 F.2d 616, 619 (9th Cir. 1983).
Therefore, once an ALJ has adjudicated a claim, the BRB on
appeal can readily overturn an ALJ’s decision that is legally
erroneous or unsupported by substantial evidence.
Congress, meanwhile, charged the Secretary of Labor
with appointing BRB members. 33 U.S.C. § 921(b)(1).
Section 921, however, is silent as to when the Secretary can
remove the members of the BRB. See id. “That omission is
telling.” Collins, 141 S. Ct. at 1782 (“When a statute does
not limit the President’s power to remove an agency head,
we generally presume that the officer serves at the
President’s pleasure.” (citing Shurtleff v. United States,
189 U.S. 311, 316 (1903))). Applying this framework, the
D.C. Circuit has held that BRB members serve at the
pleasure of the Secretary of Labor. See Kalaris v. Donovan,
697 F.2d 376, 401 (D.C. Cir. 1983); id. at 381 (adhering “to
the long-standing rule that in the face of congressional
silence all inferior officers of the United States serve at the
discretion of their appointing officer”).
If that statutory silence were not enough, the current
regulations explicitly state that permanent BRB members
“shall serve an indefinite term subject to the discretion of the
Secretary.” 20 C.F.R. § 801.201(a). And “temporary Board
members” may, if appointed, serve for no more than one
year. Id. § .201(d). Given the regulation’s express grant of
removal authority to the Secretary over permanent BRB

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24 DECKER C OAL V . PEHRINGER
members, and § 921’s silence regarding removal and the
regulation’s silence as to whether temporary Board members
serve at the Secretary’s pleasure, we apply the general
presumption of removability. Kalaris, 697 F.2d at 401. We
therefore agree with the D.C. Circuit that all BRB members
serve at the pleasure of the Secretary of Labor. And because
the Secretary of Labor is subject to at-will removal by the
President, just like other department heads, see 29 U.S.C.
§ 551, the President has direct control over BRB members
through the Secretary—his “alter ego.” Myers, 272 U.S
at 133.
Thus, the President could at any time order the Secretary
of Labor to replace members of the BRB. The President
could do this, for instance, if a BRB member approved an
ALJ decision with which the President disagreed; if the
member disobeyed commands or was negligent or
inefficient; if the member had different policy views or was
of a different political party; or if the President “has simply
lost confidence” in the BRB member. Collins, 141 S. Ct.
at 1787 (citing Seila Law, 140 S. Ct. at 2204–05; Myers, 272
U.S. at 124, 135). Moreover, the President can order the
Secretary of Labor to request the BRB remand any case to
an ALJ at any time, even without the parties’ consent. See
33 U.S.C. § 921(b)(4).
Finally, the differences between § 7521’s broad “good
cause” language and the “unusually high” removal
restrictions previously contained in the Sarbanes-Oxley Act
are also significant. See Free Enter. Fund, 561 U.S. at 505.
That § 7521 imposes only an ordinary “good-cause”
standard on the MSPB’s authority to remove an ALJ,
suggests a lesser impingement on presidential authority than
was present in Free Enterprise Fund.

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DECKER C OAL V . PEHRINGER 25
Put simply, ALJs are judges who make decisions that are
subject to vacatur by people without tenure protection. With
this structure, the President continues to enjoy an “ability to
execute the laws—by holding his subordinates accountable
for their conduct,” id. at 496, especially because these ALJs
exercise only adjudicative power in the first instance and are
not imposed on the President in this context. In sum, we
think the BRB has ample control over DOL ALJs and the
President, in turn, has direct control over BRB members
through the Secretary of Labor.
None of the authorities Decker cites suggests a different
conclusion. In Seila Law, for instance, the Court held that
the Consumer Financial Protection Bureau’s (CFPB)
leadership structure violated separation of powers because it
was an independent agency led by a sole Director “vested
with significant executive power” who was “removable only
for inefficiency, neglect, or malfeasance.” 140 S. Ct.
at 2197, 2201. However, the CFPB Director was a principal
officer, not an inferior officer like ALJs. See id. at 2200
(“Unlike the independent counsel [in Morrison], who lacked
policymaking or administrative authority, the Director has
the sole responsibility to administer 19 separate consumer-
protection statutes that cover everything from credit cards
and car payments to mortgages and student loans.”).
Seila Law also relied upon the reasoning in Free
Enterprise Fund, concluding that the CFPB is a “new
situation” having “no basis in history and no place in our
constitutional structure.” Id. at 2201 (emphasis added).
Here, by contrast, there is a long history of adjudication by
ALJs free from political influence. See generally
Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat.
237 (1946) (codified as amended at 5 U.S.C. § 551, et seq.).
While Seila Law presented a “new situation” to the Court,

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26 DECKER C OAL V . PEHRINGER
we think its underlying reasoning about the President’s
removal power actually better supports the Director’s
arguments here.
Nor is Decker’s position supported by Collins. That case
considered whether a for-cause restriction on the President’s
ability to remove the Federal Housing Finance Agency
(FHFA) Director (a principal officer) violated separation of
powers. 141 S. Ct. at 1783. The Court held it did, relying
almost entirely on Seila Law. Id. at 1784; see also id. at 1787
(stating “the Constitution prohibits even ‘modest
restrictions’ on the President’s power to remove the head of
an agency with a single top officer”). The Court reaffirmed
that Seila Law “did ‘not revisit [the Court’s] prior decisions
allowing certain limitations on the President’s removal
power,’ but [the Court] found ‘compelling reasons not to
extend those precedents to the novel context of an
independent agency led by a single Director.’” Id. at 1783
(quoting Seila Law, 140 S. Ct. at 2192).
For the same reasons Seila Law is distinguishable, so too
is Collins.7 The agency structures at issue in those cases
were completely different from the DOL. And the functions
of the CFPB and FHFA directors were unequal to those of
an ALJ—an inferior officer. But these two cases do reaffirm
the general principle beginning with Morrison that some
tenure restrictions do not violate separation of powers,
particularly in the case of inferior officers with sufficient
accountability.
We therefore hold that properly appointed DOL ALJs
can adjudicate cases without trammeling on the President’s
7 Collins, however, guides us in analyzing Decker’s arguments
about the appropriate remedy, as we will discuss infra.

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DECKER C OAL V . PEHRINGER 27
executive power. Consistent with Free Enterprise Fund,
however, our holding is limited. We do not say that all
remaining two-level tenure protection schemes are
constitutional; instead, we hold only that 5 U.S.C. § 7521 is
constitutional as applied to these ALJs.
E
Even if we were to conclude that 5 U.S.C. § 7521 is
unconstitutional, we would sever only one level of
protection. See Seila Law, 140 S. Ct. at 2209–11 (explaining
severability and the preference for “limit[ing] the solution to
the problem” and the congressional preference for courts to
use a “scalpel rather than a bulldozer” in remedying a
constitutional defect); Free Enter. Fund, 561 U.S. 509
(“Concluding that the removal restrictions are invalid leaves
the Board removable by the Commission at will, and leaves
the President separated from Board members by only a
single level of good-cause tenure.”). We would not,
however, invalidate the decision reached below.
Decker’s insistence that Lucia mandates a new hearing
before a new ALJ is incorrect. The Court in Lucia “held that
the appropriate remedy for an adjudication tainted with an
appointments violation is a new hearing before a properly
appointed official.” 138 S. Ct. at 2055 (emphasis added)
(cleaned up). But, the ALJ’s appointment is not at issue in
this case; he was properly appointed when he adjudicated
Pehringer’s claim on the merits. See Collins, 141 S. Ct.
at 1788 (explaining Lucia “involved a Government actor’s
exercise of power that the actor did not lawfully possess”);
id. at 1788 n.24 (“What we said about standing in Seila Law
should not be misunderstood as a holding on a party’s
entitlement to relief based on an unconstitutional removal
restriction . . . [and] does not mean that actions taken by such
an officer are void ab initio and must be undone.”).

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28 DECKER C OAL V . PEHRINGER
Collins is controlling with respect to the remedy for any
unconstitutionality in the removal provisions. The plaintiffs
in Collins sought a judicial declaration invalidating prior
actions by the FHFA directors, who possessed removal
protection and therefore headed an unconstitutionally
structured agency. Id. at 1787 (contending that FHFA
actions were “adopted and implemented by officers who
lacked constitutional authority and that their actions were
therefore void ab initio”). Justice Alito, writing for the
majority, found such relief unwarranted. Id. at 1788. The
key, he wrote, is demonstrating that the unconstitutional
provision actually caused the plaintiff harm. Id. at 1788–89.
The Court refused to invalidate the prior actions in their
entirety:8
All the officers who headed the FHFA during
the time in question were properly appointed.
Although the statute unconstitutionally
limited the President’s authority to remove
the confirmed Directors, there was no
constitutional defect in the statutorily
prescribed method of appointment to that
office. As a result, there is no reason to
regard any of the actions taken by the FHFA
. . . as void.
Id. at 1787 (emphasis in original); see also id. at 1789
(Thomas, J., concurring) (“The Government does not
8 Just before Collins, the Court in Arthrex also expressed its
hesitation to unilaterally overturn a swath of administrative decisions
below or invalidate an entire statutory scheme. See generally 141 S. Ct.
at 1986–88.

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DECKER C OAL V . PEHRINGER 29
necessarily act unlawfully even if a removal restriction is
unlawful in the abstract.”).
Here, the ALJ lawfully exercised power that he
possessed by virtue of his appointment, which the Secretary
ratified before the ALJ adjudicated the claim. Absent a
showing of harm, we refuse to unwind the decisions below.9
While Collins remanded for further factual development on
the issue of harm, see id. at 1786, 1786 n.26, we need not to
do so here, as the record is clear. Decker never submitted
additional evidence or post-hearing argument despite
obtaining two extensions to do so.
In short, there is no indication the ALJ took unlawful
action. On this record, we simply cannot conclude that the
existence of § 7521 alone tainted the ALJ’s decision. As a
practical matter, we note that were we to accept Decker’s
argument and rule § 7521 unconstitutional, it would have
potentially catastrophic effects on numerous past and
ongoing claim adjudications under various benefits
programs administered throughout the federal
government.10 Notwithstanding the practical
9 Moreover, equitable defenses can apply to constitutional
violations. Indeed, “in constitutional adjudication as elsewhere,
equitable remedies are a special blend of what is necessary, what is fair,
and what is workable.” New York v. Cathedral Acad., 434 U.S. 125, 129
(1977) (cleaned up); see also Collins, 141 S. Ct. at 1789 n.26 (noting the
parties may address whether the doctrine of laches precludes further
relief on remand).
10 Concurring in Collins’ limited remedial holding only, Justice
Kagan wrote separately to express her concern that the Court’s recent
removal jurisprudence could potentially jeopardize hundreds of
thousands of social security decisions. See 141 S. Ct. at 1802 (Kagan,
J., concurring in part and concurring in the judgment). Perhaps here the
DOL’s OWCP decisions “would not concern the President at all,” as

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30 DECKER C OAL V . PEHRINGER
consequences—but not to diminish them either—we cannot
say the law compels us to find a constitutional flaw with
§ 7521. Here, there is no link between the ALJ’s decision
awarding benefits and the allegedly unconstitutional
removal provisions. And nothing commands us to vacate the
decisions below on that ground.
IV
Having held that § 7521 survives constitutional scrutiny,
we must next decide whether the ALJ erred in adjudicating
Pehringer’s claim for benefits. We conclude he did not.
A
Decker argues that the ALJ abused his discretion by
denying its motion for reconsideration and rejecting its
request to reopen the record to admit evidence it asserts
would undermine the veracity of Pehringer’s testimony.
This evidence, Decker claims, would show that Pehringer
could not invoke the fifteen-year statutory presumption
based on the length of his employment. Decker further
argues that § 22 of the Longshore Act required the ALJ to
modify his award of benefits. Both arguments are
unavailing.
Section 22 of the Longshore Act allows the deputy
commissioner sua sponte or at a party’s request to review a
compensation case and terminate, reinstate, continue,
increase, or decrease benefits, or award benefits under the
Longshore Act. 33 U.S.C. § 922. The only grounds for
Justice Kagan surmised would be true of social security actions. Id.
(“When an agency decision would not capture a President’s attention, his
removal authority could not make a difference—and so no injunction
should issue.”).

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DECKER C OAL V . PEHRINGER 31
modification in § 22 are a “change in conditions or because
of a mistake in a determination of fact by the deputy
commissioner.” Id. The BLBA incorporates § 22, which
provides for modifying benefits awards. See 30 U.S.C.
§ 932(a); 33 U.S.C § 922. The BLBA incorporation
provision states that § 22 “shall . . . except as otherwise
provided in this subsection or by regulations of the Secretary
. . . be applicable to each operator of a coal mine in such
State with respect to death or total disability due to
pneumoconiosis arising out of employment in such mine
. . . .” 30 U.S.C. § 932(a) (emphases added). Further, “the
Secretary is authorized to prescribe in the Federal Register
such additional provisions, not inconsistent with those
specifically excluded by this subsection, as he deems
necessary to provide for the payment of benefits by such
operator to persons entitled thereto as provided in this part
and thereafter those provisions shall be applicable to such
operator.” Id.
The regulation governing modification of BLBA
benefits awards is 20 C.F.R. § 725.310. Upon a party’s
request or sua sponte, the district director may reconsider the
terms of a benefits award based on a mistake in a factual
determination. Id. § .310(a). However, the regulation
prohibits the initiation of a modification proceeding before
an ALJ or the BRB. Id. § .310(b). The “initial stages of a
modification proceeding, like the initial stages of a new
claim proceeding, do not involve hearings.” Saginaw
Mining Co. v. Mazzulli, 818 F.2d 1278, 1282–83 (6th Cir.
1987) (holding that, under § 22 and 20 C.F.R. § 725.310, a
motion for modification of an ALJ’s order regarding BLBA
benefits must be filed with the deputy commissioner—now
district director—rather than an ALJ); accord Lee v.
Consolidation Coal Co., 843 F.2d 159, 162 (4th Cir. 1988);
see also Blakley v. Amax Coal Co., 54 F.3d 1313, 1316–17

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32 DECKER C OAL V . PEHRINGER
(7th Cir. 1995) (describing the process). An ALJ may only
hear a case at the conclusion of administrative modification
proceedings after the district director forwards the claim.
20 C.F.R. § 725.310(c).
The ALJ thus acted within his discretion in denying
Decker’s motion based on the pertinent regulations. Decker
filed its motion for reconsideration citing 20 C.F.R.
§ 725.479(b), which allows a party to request that the ALJ
reconsider his decision. However, in its motion, Decker
sought not only reconsideration but also modification of the
benefits award, citing § 22 of the Longshore Act and
maintaining that a mistake of fact mandated the ALJ to
consider new evidence. The request for modification in the
reconsideration motion filed before the ALJ was
procedurally improper. See id. § .310(b).
The BLBA’s modification regulation does not conflict
with § 22 of the Longshore Act. The plain text of the
BLBA’s incorporating statute gives the Secretary of Labor
wide latitude to promulgate additional regulations to
implement and enforce the BLBA separately from the
Longshore Act’s provisions. See 30 U.S.C. §§ 932(a),
936(a); Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 697
(1991) (“That Congress intended in the [Black Lung
Benefits Reform Act of 1977] to delegate to the Secretary of
Labor broad policymaking discretion in the promulgation of
her interim regulations is clear from the text of the statute
and the history of this provision.”); Nealon v. Cal. Stevedore
& Ballast Co., 996 F.2d 966, 972 n.8 (9th Cir. 1993) (noting
the “Secretary of Labor is authorized to promulgate
regulations modifying the provisions of the Longshore Act
as incorporated by the Black Lung Act. 30 U.S.C.
§ 932(a)”); Dir., OWCP, USDOL v. Nat’l Mines Corp.,
554 F.2d 1267, 1273–74 (4th Cir. 1977) (concluding the

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DECKER C OAL V . PEHRINGER 33
“Black Lung Act does not inflexibly incorporate every
provision” of the Longshore Act and “[t]he inclusion of the
word ‘otherwise’” in 30 U.S.C. § 932(a), “together with the
Secretary’s statutory authority to promulgate regulations,
discloses congressional intention to empower the Secretary
to depart from specific requirements” of the Longshore Act
“in order to administer the black lung compensation program
properly”).
While § 22 is silent as to whether ALJs may review a
modification request, see 33 U.S.C. § 922, the regulation
explicitly provides that modification requests must not be
initiated with an ALJ, 20 C.F.R. § 725.310(b). That regime
does not conflict with the statutory language. Moreover,
Dir., OWCP v. Palmer Coking Coal Co., 867 F.2d 552 (9th
Cir. 1989), does not support Decker’s position. There we
addressed the issue of whether § 22 of the Longshore Act
allows a deputy commissioner to initiate modification
proceedings to correct an ALJ’s erroneous factual findings.
Id. at 555. The deputy commissioner had reviewed a BLBA
claim following an ALJ order, concluded the ALJ made a
factual error, and issued a proposed modification order. Id.
at 554. We concluded that the Longshore Act authorizes a
deputy commissioner to correct his own factual errors but
not those of an ALJ. Id. at 555–56. We did not, however,
hold that a party may initiate a modification proceeding with
the ALJ. Id.
Further, the BLBA modification regulation is consistent
with § 22 of the Longshore Act, as it allows for modification
because of factual mistake and requires proceedings to be
conducted in accordance with the regulation. See 20 C.F.R.
§ 725.310(a), (b). The regulation mandates automatic
forwarding to and review by an ALJ where the district
director sua sponte initiates and then concludes modification

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34 DECKER C OAL V . PEHRINGER
proceedings. Id. § .310(c). At the conclusion of
modification proceedings before the district director, the
regulation requires the ALJ, not the district director, to
consider “whether the evidence of record demonstrates a
mistake in a determination of fact.” Id. Palmer Coking’s
requirements are therefore consistent with the regulation.
Neither that case nor the regulation permits the party
challenging entitlement to benefits to initiate modification
proceedings before an ALJ.
Decker thus sought to initiate modification proceedings
before the wrong person: the ALJ. Id. § .310(b). Decker’s
failure to direct its request to the district director “defeats
[its] argument that [§] 922 provided a basis for review of [its]
appeal.” Blevins v. Dir., OWCP, USDOL, 683 F.2d 139, 142
(6th Cir. 1982) (holding that “20 C.F.R. § 725.310(b) makes
clear that modification proceedings shall not be initiated
before an administrative law judge or the Benefits Review
Board.” (cleaned up)). Because the ALJ did not have
authority to consider this procedurally improper request, he
did not abuse his discretion in declining to act on Decker’s
requested relief based on § 22.11
11 Moreover, the BLBA’s modification regulation leaves no
discretion—and the DOL must deny a modification request—where the
employer has not paid all monetary benefits, including interest, due to
the miner. 20 C.F.R. § 725.310(e)(2). Decker does not dispute it failed
to fully comply with this rule. The Director stated that Decker first paid
benefits to Pehringer in September 2020, long after its modification
motion. In its briefing, moreover, Decker did not dispute the Director’s
representation that the company still owes approximately $6,000 in
interest. Furthermore, Decker challenged the validity of 20 C.F.R.
§ 725.310(e) via a footnote in its reply brief. We thus may refuse to
address the argument. See Eberle v. City of Anaheim, 901 F.2d 814, 817–
18 (9th Cir. 1990); see also Hilao v. Estate of Marcos, 103 F.3d 767, 778
n.4 (9th Cir. 1996) (“The summary mention of an issue in a footnote,

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DECKER C OAL V . PEHRINGER 35
Further, the ALJ acted within his discretion in denying
Decker’s post-hearing motion for reconsideration on the
merits. The ALJ reasonably concluded that he granted
Decker “ample time to submit evidence and argument before
the record in this case was closed.” In fact, he granted two
requests to extend time for Decker to submit evidence after
the hearing. It was then no surprise—and was not legal
error—when he denied the reconsideration motion because
Decker “never filed any evidence into the record” and “did
not file a post-hearing brief.”
Moreover, the ALJ did not abuse his discretion in
refusing to reopen the record. See 20 C.F.R. § 725.456(b)(3)
(requiring a showing of good cause to admit late evidence
and permitting the ALJ to choose between either excluding
or remanding to the district director); see Nat’l Mining Ass’n
v. DOL, 292 F.3d 849, 874 (D.C. Cir. 2002) (per curiam)
(recognizing the discretion ALJs have under § 725.456 with
respect to evidence in adjudicating BLBA claims). Even if
Decker’s argument regarding § 22 was correct, the
company’s lack of diligence counsels against a finding that
the ALJ abused his discretion in not acting on the
modification request and refusing to reopen the record.
To be sure, the Seventh Circuit has held that “a
modification request cannot be denied solely because it
contains argument or evidence that could have been
presented at an earlier stage in the proceedings.” Old Ben
Coal Co., v. Dir, OWCP, 292 F.3d 533, 547 (7th Cir. 2002)
(explaining that an ALJ must not give weight only to the
without reasoning in support of the appellant’s argument, is insufficient
to raise the issue on appeal.”). We simply note that 20 C.F.R.
§ 725.310(e) may have left Judge Sellers with no discretion and in fact
may have required the denial of the modification request.

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36 DECKER C OAL V . PEHRINGER
concern of finality but also to accuracy). But, the scale here
tips in favor of finality. See id. (stating that “in a given case,
it might be quite appropriate to permit this consideration [of
finality] to prevail in the adjudication of a case”). Decker
had sufficient time before and after the hearing to submit the
evidence pertaining to Pehringer’s employment. In fact, the
company had 1,455 days—from the filing of the claim on
November 7, 2014, to the close of evidence on October 31,
2018, the day ending the ALJ’s extension periods—to
submit its own employment evidence.
Either way, we reach our decision based on the broad
discretion the ALJ possessed to deny Decker’s motion for
reconsideration. There was no error in rejecting untimely
evidentiary submissions that could have been obtained with
reasonable diligence during the significant length of time the
record was open. In our view, Decker failed to diligently
defend against Pehringer’s BLBA claim. Punishing the
claimant for his employer’s noncompliance with the
applicable rules would result in a decision inconsistent with
Congress’ goals in enacting and refining the BLBA to
facilitate the processing of Black Lung cases. We conclude
the ALJ acted well within his discretion in handling
Decker’s post-hearing motion.
B
Decker further argues that the ALJ erred in finding
Pehringer met the criteria for legal pneumoconiosis, which
in turn raised the presumption that Pehringer was entitled to
benefits. But the real issue is whether substantial evidence
supports the ALJ’s conclusion that Decker did not rebut the
presumption of entitlement to benefits after Pehringer
established legal pneumoconiosis and causation. The
answer is yes.

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DECKER C OAL V . PEHRINGER 37
Section 921 of the BLBA creates a rebuttable
presumption that a miner suffering from a respiratory or
pulmonary impairment is totally disabled from
pneumoconiosis, even without formal medical diagnosis, if
he or she worked for at least fifteen years in substantially
similar conditions to underground coal mines. 30 U.S.C.
§ 921(c)(4). The Fourth Circuit has aptly explained the
purpose of the BLBA’s fifteen-year presumption:
[R]elieving certain claimants of the
obligation to come forward with affirmative
diagnoses of pneumoconiosis is precisely the
point . . . . Congress adopted that provision
to shift the costs of uncertainty about disease
causation away from sick miners seeking
benefits and onto their employers, in cases
where a miner’s length of service makes it
reasonable to assume a health impact from
coal dust exposure.
W. Va. CWP Fund v. Dir., OWCP, USDOL, 880 F.3d 691,
699 (4th Cir. 2018); see Hobet Mining, LLC v. Epling,
783 F.3d 498, 501 (4th Cir. 2015) (“The fifteen-year
presumption is expressly intended to relax the often
insurmountable burden of proving a black lung claim for the
special class of miners with 15 years[’] experience who are
disabled by a respiratory or pulmonary impairment.”
(cleaned up) (quoting S. Rep. No. 92-743, at 2306 (1972))).
Congress directed the Secretary of Labor to promulgate
regulations prescribing “standards for determining . . .
whether a miner is totally disabled due to pneumoconiosis
. . . .” 30 U.S.C. § 921(b). Consistent with the BLBA, the
regulatory definition of pneumoconiosis comprises both
“clinical” and “legal pneumoconiosis.” See 20 C.F.R.

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38 DECKER C OAL V . PEHRINGER
§ 718.201(a). Clinical pneumoconiosis consists of those
Black Lung Diseases recognized by the medical community.
Id. § .201(a)(1). Legal pneumonoconiosis has a broader
definition and includes “any chronic lung disease or
impairment and its sequelae arising out of coal mine
employment.” Id. § .201(a)(2). This encompasses “any
chronic pulmonary disease or respiratory or pulmonary
impairment significantly related to, or substantially
aggravated by, dust exposure in coal mine employment.” Id.
§ .201(b).
The statute and implementing regulation prescribe
burden shifting. The party opposing the entitlement to
benefits may rebut the presumption of total disability or
death due to pneumoconiosis. See 30 U.S.C. § 921(c)(1),
(2), (4) (stating the Secretary may rebut); 20 C.F.R.
§ 718.305(d)(1), (2) (stating the “party opposing
entitlement” may rebut). As to a living miner’s claim, the
opposing party may rebut the fifteen-year presumption by
establishing the miner does not have either legal
pneumoconiosis and clinical pneumoconiosis arising out of
coal mine employment or by disproving causation.12
20 C.F.R. § 718.305(d)(1). The Eleventh Circuit has
characterized the former method as the “empirical method”
and the latter as the “causal method.” Oak Grove Res., LLC
v. Dir., OWCP, 920 F.3d 1283, 1287 (11th Cir. 2019).
Under either method, the employer bears the affirmative
burden to “disprove the miner’s presumptive entitlement by
a preponderance of the evidence.” Id. (citing U.S. Steel
Corp. v. Gray, 588 F.2d 1022, 1028 (5th Cir. 1979)).
12 The ALJ, relying on Dr. Cahill’s medical opinion, reasonably
concluded that Decker rebutted the presumption of clinical
pneumoconiosis—a finding not at issue in this petition—because
Pehringer’s chest x-ray evidence revealed no clinical pneumoconiosis.

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DECKER C OAL V . PEHRINGER 39
Likewise, the Fourth Circuit has said the only question after
the claimant successfully invokes the fifteen-year
presumption “is whether the employer has come forward
with affirmative proof that the claimant does not have legal
pneumoconiosis, because his impairment is not in fact
significantly related to his years of coal mine employment.”
W. Va. CWP Fund, 880 F.3d at 699 (emphases in original);
see Hobet Mining, LLC, 783 F.3d at 502.
We find our sister circuits’ reasoning persuasive and
consistent with the congressional intent behind the
presumption. To guide the district courts and the
Department, we therefore hold that once a claimant has
successfully invoked the fifteen-year presumption, the
burden shifts and the party opposing the claimant’s
entitlement to benefits must rebut the presumption of total
disability due to pneumoconiosis, pursuant to 30 U.S.C.
§ 921(c)(4) and 20 C.F.R. § 718.305(d)(1).
Decker’s argument falls a step short. The ALJ properly
found that Pehringer is totally disabled due to
pneumoconiosis and properly invoked the fifteen-year
presumption under 30 U.S.C. § 921(c)(4). The ALJ
thoroughly analyzed Pehringer’s employment history, cited
record evidence, and found that he worked as a coal miner
and was exposed to coal mine dust at surface mines for more
than fifteen years. Discussing pulmonary function tests,
arterial blood gas studies, and medical opinions, the ALJ
then found Pehringer has a totally disabling respiratory or
pulmonary impairment—his severe COPD.
Substantial evidence supports the ALJ’s conclusion that
Pehringer’s medical evidence did not aid Decker in rebutting
the presumption of legal pneumoconiosis. The ALJ gave
probative weight to Dr. Cahill’s BLBA medical opinion—
the only opinion evidence in the record. “Notably,” the ALJ

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40 DECKER C OAL V . PEHRINGER
wrote, “Dr. Cahill opined that [Pehringer] suffered from
‘severe oxygen-dependent COPD likely consequent to his
history of smoking and dust exposure from his surface
mining work.’” The ALJ reasonably found that Dr. Cahill’s
causation opinion was “well-reasoned and well-
documented”; the doctor specifically stated that Pehringer’s
“[coal] dust exposure and smoking are significant
contributors to his COPD impairment.” Additionally, the
ALJ referred to Pehringer’s clinical treatment records from
Dr. Ackerman: “Based on history of extensive work in the
mines it is certainly possible, if not probable, that coal dust
exposure is playing a role in [Pehringer’s COPD].”
The ALJ reasonably concluded that Decker failed to
rebut the presumption of legal pneumoconiosis. We agree
with the ALJ that once Pehringer invoked the fifteen-year
presumption, there was “no need for [him] to prove the
existence of pneumoconiosis; instead, pneumoconiosis
arising from coal mine employment [wa]s presumed, subject
only to rebuttal by [Decker].” W. Va. CWP Fund, 880 F.3d
at 699. Decker did not submit any evidence to rebut the
fifteen-year presumption. The ALJ discussed the record
evidence and properly concluded that it only supported
Pehringer’s side of the case. “To reverse the ALJ’s findings
on substantial evidence review in a black lung disability
case” we must “find that [Decker’s] medical experts’
interpretation of the evidence was the only permissible one.”
Peabody Coal Co., 746 F.3d at 1127 (emphasis added)
(cleaned up). Decker offered no evidence of its own, and no
other record evidence from the Director or Pehringer
supports Decker’s arguments. The ALJ’s conclusion was
therefore not erroneous.

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DECKER C OAL V . PEHRINGER 41
C
Having concluded that there were no constitutional
impediments to prevent the ALJ from adjudicating this case,
we affirm his decision on the merits. That Decker failed to
adequately defend against Pehringer’s claim cannot
invalidate the ALJ’s award of benefits. Substantial evidence
supports the ALJ’s finding that Pehringer successfully
invoked the presumption of legal pneumoconiosis.
Decker—the employer opposing Pehringer’s claim—failed
to rebut that statutory presumption when it had the burden to
do so. The ALJ’s reasoning and decision align with the
congressional purpose behind the presumption in favor of
the miner. And, based on the record before us and the
BLBA’s implementing regulations, the ALJ acted well
within his discretion in disposing of Decker’s post-hearing
motion. The ALJ’s evaluation of the evidence is entitled to
substantial deference, and we will not substitute our
judgment for his.
V
THE PETITION FOR REVIEW IS DENIED.
Costs to respondents.

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