On July 31, the Sixth Circuit Court of Appeals decided that administrative law judges (ALJs) within the Mine Safety and Health Administration (MSHA) are "inferior officers" and therefore subject to the Constitution's appointments clause. As was borne out in the decision, Jones Bros., Inc. v. Sec'y of Labor, et. al., an MSHA case heard by an ALJ who has not been properly appointed may be subject to a constitutional challenge and the case could be sent back for re-hearing.

Jones Brothers involved a total of $2,940 in civil penalties assessed by MSHA against Jones Brothers related to its extraction of solid rock for use in a highway repair project. Jones Brothers challenged the penalties before the Federal Mine Safety and Health Commission, and the assigned ALJ found that Jones Brothers' extraction site was a "coal or other mine." Therefore, it was under the jurisdiction of MSHA and the Commission had the power to issue the citations to Jones Brothers. Jones Brothers appealed again—this time to the Sixth Circuit Court of Appeals. There, Jones Brothers argued that the ALJ assigned to its case should have been appointed to her position pursuant to the appointments clause and, because she had not been so appointed, she did not have the authority to hear and rule on the case. The Sixth Circuit agreed, finding that MSHA administrative law judges hold "continuing offices" and exercise "significant discretion," thereby making them officers of the government and not merely employees. As "officers," they are subject to the appointments clause. The Jones Brothers case was vacated and remanded for a new hearing before a "constitutionally appointed" ALJ.

The Jones Brothers case comes on the heels of a U.S. Supreme Court decision, Lucia v. Securities & Exchange Commission, wherein the high Court determined that ALJs within the Securities and Exchange Commission had likewise been improperly appointed. In the wake of the Lucia decision, many administrative departments ratified the appointments of their ALJs in an effort to cure any constitutional defects. MSHA did so in April of this year.

Although the MSHA judge appointments have now been ratified, previous decisions issued before ratification are susceptible to the same type of constitutional challenge as in Jones Brothers. Parties aggrieved by such decisions now have additional grounds to challenge such a decision and could get a do-over at trial. In addition, and as made clear by the Jones Brothers decision, respondent companies could risk waiving this constitutionality challenge if it is not raised early in the administrative process.