K & R Contractors, LLC v. Michael Keene, 86 F.4th 135

Michael Keene, a long‑time coal miner, filed a Black Lung Benefits Act claim; the district director awarded benefits and named K & R Contractors (K & R) as the responsible operator, and K & R requested a hearing before a DOL ALJ.
Secretary of Labor ratified incumbent ALJ William Barto (Dec. 2017) and later appointed ALJ Francine Applewhite (Sept. 2018) before either took substantive action in Keene’s case.
K & R challenged (1) the constitutionality of the ALJs’ appointments under the Appointments Clause and (2) that dual "good‑cause" removal protections (MSPB review plus MSPB members’ own tenure protection) violated Article II separation of powers.
The Benefits Review Board affirmed the ALJ’s award, rejecting the appointment challenge and deeming the removal argument inadequately briefed (but discussing it in a footnote); K & R sought review in the Fourth Circuit.
The Director of OWCP waived the exhaustion/forfeiture defense at the court level; the Fourth Circuit held the ALJs were constitutionally appointed and denied relief on the removal claim because K & R failed to show any harm from the alleged removal‑provision defect.

Issue	K & R's Argument	Director's Argument	Held
Appointments Clause	ALJs were not constitutionally appointed (incumbent competitive‑service hires/competitive status)	Secretary validly ratified Barto and appointed Applewhite before they acted	ALJs were constitutionally appointed; ratification cured any prior defect; Applewhite’s direct appointment was valid
Dual for‑cause removal (separation of powers)	Two layers of for‑cause protection (MSPB decision under §7521 and MSPB members’ tenure) unlawfully restrict President’s removal power	Government proposed narrowing construction of §7521; alternatively, even if unconstitutional, no relief absent showing of harm	Court avoided resolving constitutionality; denied relief because K & R showed no harm from the removal provisions
Administrative exhaustion/forfeiture	Board found removal claim inadequately briefed (forfeited)	Director waived the forfeiture defense; structural removal challenge unsuitable for Board relief	Court considered the removal claim on the merits because respondent waived forfeiture and Board could not provide the requested relief

Lucia v. SEC, 138 S. Ct. 2044 (2018) (ALJs are "Officers" for Appointments Clause purposes)
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010) (dual for‑cause removal protections violate Article II)
Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020) (President’s removal power and narrow exceptions explained)
Collins v. Yellen, 141 S. Ct. 1761 (2021) (vacatur not automatic for removal‑provision defects; claimant must show harm caused by the provision)
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (ratification can cure certain defects in prior agency action)
Edmond v. United States, 520 U.S. 651 (1997) (distinguishing principal and inferior officers)
United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021) (executive‑power principles as applied to removal and appointment)