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Big Horn Coal Co. v. Sadler

United States Court of Appeals, Tenth Circuit

June 4, 2019

BIG HORN COAL CO. Petitioner,

          Petition for Review from Order of the Benefits Review Board (Benefits Nos. 16-0395 BLA and 16-0612 BLA)

          John S. Lopatto III, Washington, D.C., for Petitioner.

          Evan B. Smith, Appalachian Citizens' Law Center, Whitesburg, Kentucky, for Sylvia Sadler, Respondent.

          Ann Marie Scarpino (Kate S. O'Scannlain, Solicitor of Labor, Maia S. Fisher, Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation, with her on the brief), U.S. Department of Labor, Washington, D.C., for Director, Office of Workers' Compensation Programs, Respondent.

          Before BACHARACH, BALDOCK, and EBEL, Circuit Judges.


         Big Horn Coal Company petitions this court to review the judgment of the Department of Labor Benefits Review Board ("Board") awarding benefits to Edgar Sadler, a then-living miner, under the Black Lung Benefits Act (BLBA or "the Act"), 30 U.S.C. §§ 901-944 (2016). The BLBA compensates coal miners who become totally disabled from pneumoconiosis, or black lung disease, on the job. The BLBA's statute of limitations requires miners to file claims for benefits within three years of receiving a medical determination of total disability due to pneumoconiosis. 30 U.S.C. § 932(f) ("Any claim for benefits by a miner under this section shall be filed within three years after . . . a medical determination of total disability due to pneumoconiosis."). In interpreting this statute of limitations, the Secretary of the Department of Labor issued 20 C.F.R. § 725.308(c) (2010), which provides that the time limits in section 932(f) "are mandatory and may not be waived or tolled except upon a showing of extraordinary circumstances."[1] 20 C.F.R. § 725.308(c). This appeal turns on the validity of the Secretary's regulation in section 725.308(c) and the interpretation and application of the "extraordinary circumstances" test contained therein.

         Sadler received a total disability diagnosis in 2005, but he did not file the claim at issue here until 2010. Despite that delay, an administrative law judge (ALJ) awarded benefits to Sadler upon finding that "extraordinary circumstances" existed to warrant tolling the statute of limitations. The Board affirmed the ALJ's order. In this petition for review, Big Horn challenges the Board's order in two respects. First, it claims that section 725.308(c) is invalid. Alternatively, it argues that, even if section 725.308(c) is valid, there are no "extraordinary circumstances" here sufficient to justify tolling the statute of limitations. Exercising jurisdiction pursuant to 33 U.S.C. § 921(c) and 30 U.S.C. § 932(a), we hold that section 725.308(c) was validly promulgated. However, we lack jurisdiction over Big Horn's argument regarding whether extraordinary circumstances existed to warrant tolling the statute of limitations because Big Horn failed to exhaust it before the Board. Accordingly, we AFFIRM the Board's decision and DISMISS the petition.

         I. BACKGROUND

         The BLBA provides medical and modest monetary benefits to totally disabled coal miners (and their survivors) who suffer from black lung disease-a latent, progressive, and irreversible lung disease caused by breathing too much coal-mine dust. To obtain benefits under the BLBA, a miner must file a timely claim that demonstrates that: "(1) he or she suffers from pneumoconiosis; (2) the pneumoconiosis arose out of coal mining employment; and (3) the pneumoconiosis is totally disabling." Energy W. Mining Co v. Oliver, 555 F.3d 1211, 1214 (10th Cir. 2009). A claim is timely under the BLBA if it is filed within three years of the miner receiving "a medical determination of total disability due to pneumoconiosis." 30 U.S.C. § 932(f). Typically, the last coal mine operator for whom the miner worked for a cumulative period of at least one year is responsible for paying benefits to a successful claimant. 20 C.F.R. § 725.494. In this case, the responsible employer, Big Horn, objects only to the timeliness of Sadler's successful claim for benefits.

         Sadler worked as a coal miner in Wyoming for Big Horn from 1953 to 1987. Between 1990 and 2010, Sadler filed three claims for benefits under the BLBA. Big Horn's petition concerns Sadler's third claim, but, in order to understand that claim, it is helpful to review all of Sadler's filings. In 1990, Sadler filed his first claim for black lung benefits, which was denied. Then, in 1994, Sadler filed a subsequent claim as permitted by 20 C.F.R. § 725.309. At this point, Sadler had not yet received "a medical determination of total disability due to pneumoconiosis" to trigger the BLBA's three-year statute of limitations. Sadler's second claim was also denied for failure to prove that he suffered from pneumoconiosis, first by the District Director of the Office of Workers' Compensation Programs in 1996, then by an ALJ in 1998, and finally by the Board in 2000.

         Sadler next sought modification of the denial order. The District Director denied Sadler's request in 2001. Sadler appealed, and his claim was forwarded to the Office of Administrative Law Judges for a hearing. The hearing on Sadler's request for modification was delayed several times between 2001 and 2006 due to continuances sought by both sides. In late August 2005, Sadler requested a continuance because, as his wife explained in a letter to an ALJ overseeing the case, Sadler had been admitted to a hospital for extensive pneumoconiosis testing and it was "too soon for the results to be completed . . . to submit" as evidence. Supplemental Appendix (S.A.) at 3. Sadler's request for a continuance was granted.

         The next month, in September 2005, the doctor sent Sadler a letter diagnosing him with "[c]oal worker's pneumoconiosis" and further opining that Sadler had "total respiratory disability from performing his last coal mine job of one year's duration." Joint Appendix (J.A.) at 123. Sadler did not submit the diagnosis letter to the ALJ. However, Sadler later testified that he received and read the letter that same month. At this point, the three-year statute of limitations began to run, giving Sadler until September 2008 to file a claim under the BLBA. In 2006, amid more continuances regarding his already-pending claim, Sadler obtained an attorney, Tony Alback, after having been mostly unrepresented since July 1990. It is unclear from the record whether Sadler provided the 2005 doctor letter to Alback.

         On June 6, 2008, Alback filed a motion on behalf of Sadler to withdraw Sadler's request for modification of the order denying his 1994 claim for benefits. This motion was filed with Judge William S. Colwell, the ALJ assigned to Sadler's case. The motion indicated that Sadler would be "filing a new claim with the District Director" because Sadler and Alback had determined that it was in Sadler's "best interest to begin the proceeding anew in light of [his] recent medical condition and treatment therefore." J.A. at 64. On June 12, 2008, Judge Colwell conducted a hearing on Sadler's motion to withdraw his request for modification.

         At the hearing, Judge Colwell made several statements that are relevant to this appeal. First, Judge Colwell quoted the letter from Alback that explained that Sadler intended to dismiss his claim and file a new one. Then, Judge Colwell ...

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