BIG HORN COAL CO. Petitioner,
SYLVIA SADLER, widow of o/b/o Edgar Sadler, deceased; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents.
Petition for Review from Order of the Benefits Review Board
(Benefits Nos. 16-0395 BLA and 16-0612 BLA)
S. Lopatto III, Washington, D.C., for Petitioner.
B. Smith, Appalachian Citizens' Law Center, Whitesburg,
Kentucky, for Sylvia Sadler, Respondent.
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.
BACHARACH, BALDOCK, and EBEL, Circuit Judges.
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." 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
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.
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.
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.
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.
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
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.
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