Lucia’s Wake: Sixth Circuit Tosses Mine Safety Ruling By An Improperly Appointed Judge

Last week, the U.S. Court of Appeals for the Sixth Circuit decided Jones Brothers, Inc. v. Secretary of Labor, a case concerning who has power to appoint administrative law judges (ALJs) for the Federal Mine Safety and Health Review Commission (Review Commission). Relying entirely on the United States Supreme Court’s recent decision in Lucia v. SEC, the Sixth Circuit held that, because the Review Commission ALJs hold “continuing office[s] established by law” and exercise “significant discretion when carrying out … important functions,” they are “Officers” of the United States for purposes of the federal Constitution’s Appointments Clause. For that reason, the Sixth Circuit explained, Review Commission ALJs may only be appointed by the President, a court of law, or the head of a department.

Historically, the Review Commission had delegated authority to appoint new ALJs to the Chief Administrative Law Judge. The court of appeals acknowledged with approval the fact that, since the Jones Brothers’ case had been heard, the presiding ALJ’s appointment had been ratified by the full Review Commission, i.e., the “head” of a department. Nonetheless, because, when she heard the Jones Brothers’ case, the ALJ had not yet been appointed in that manner, the Sixth Circuit vacated the underlying decision against Jones Brothers and remanded the matter for a fresh hearing before a different, properly appointed ALJ.

The Sixth Circuit’s Jones Brothers decision is significant for several reasons (not least of all its discussion of the circumstances under which litigants might forfeit the right to raise constitutional arguments in federal court). For present purposes, though, the decision matters because it marks the first time a federal court of appeals has weighed in on an Appointments Clause challenge since the Lucia decision.

In two previous client alerts available here, we considered the steps a federal agency could take if, after Lucia, it determined that any of its officials held office in violation of the Appointments Clause. We suggested that the heads of many agencies could cure such defects simply by re-appointing those officials or ratifying their appointments. The Jones Brothers decision implies the validity of this approach. In short, it suggests that federal agencies need not reopen every position held by an official who was initially appointed to that position in violation of the Appointments Clause. Post Lucia (at least in the Sixth Circuit), it appears that Appointments Clause challenges to decisions by such “ratified officials” would likely fail — at least if the decision at issue was rendered after the head of the agency re-appointed the official or ratified the official’s appointment.