UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ENERGY WEST MINING COMPANY, Petitioner,

v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; CECIL E. BRISTOW, Respondents. No. 18-9585 (Benefits No. 17-0441-BLA) (Benefits Review Board)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , BALDOCK , and MORITZ , Circuit Judges.

________________ _________________ Energy West Mining Company (Ener gy West) petitions for review o f a decision of the United States Dep artment of Labor’s Benefits Re view Board (the Board). Because Energy West fails to demonstrate the Board’s de cision is a “final order,” we dismiss the petition for lack of subj ect-matter juri sdiction. 33 U.S.C. § 921(c)

.

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is th erefore ordered submitted without oral ar gument. This order and judgmen t is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 23, 2019
Elisabeth A. Shumaker Clerk of Court2 Background Cecil Bristow sought benefits f rom Energy West under the Black Lung Benefits Act (BLBA), 30 U.S.C. §§ 901–44. An Administrative Law Judge (ALJ) held a hearing and denied Brist ow’s claim, finding that althoug h Bristow established he had legal pneumoconiosis, he failed to demonstrate his legal pneumoconiosis caused his total disability. Brist ow then appealed to the Board

. Bristow v. Emery Mining Corp. , BRB Nos. 17-0441 BLA and 17-04 41 BLA-A, 2018 WL 7046666, at *1 (Ben. Rev. Bd. Oct. 19, 2018). T he Board affirmed the ALJ’s finding that Bristow established he has l egal pneumoconiosis. Id. at *4. But it conclude d the ALJ erred in finding that Bristow failed to d emonstrate his legal pneumoconi osis caused his total disability. Id. at *5. Thus, the Board reversed the ALJ’s order and remanded t o the ALJ “for entry of an award of benefits.” Id. at *6. Energy West then petitioned this court for review of the Board’ s decision. But upon review of the docketing stat ement, we sua sponte ordered E nergy West to file a memorandum brief addressing, inter alia, whether the Board’s de cision is final for jurisdictional purposes. See § 921(c) (“Any person adversel y affected or aggrieved by

a final order of the Board may obtain a review of that order in the United S tates court of appeals for the circuit in w hich the injury occurred . . . . ” (emphasis added)). Energy West and the Director of th e Office of Workers’ Compensa tion Programs in the United States Department of L abor (the Director) both filed supplemental briefs addressing the jurisdictional que stion. We address their argume nts below.3 Analysis As the party seeking review of th e Board’s decision, Energy Wes t “bears the burden of establishing our s ubject-matter jurisdiction.” United States v. CeballosMartinez , 387 F.3d 1140, 1143 (10th Cir. 2004). To carry that burden he re, Energy West must demonstrate, among othe r things, that (1) the Board’s decision constitutes a “final order” or (2) some exce ption to the final-order rule a pplies. § 921(c); see also Bratzah Corp. v. Dir., Office of Workers’ Comp. Programs , No. 90-9565, 1991 WL 213444, at *1 (10th Ci r. 1991) (unpublished) (noting that altho ugh “we normally only have jurisdiction to review fina l orders of the Board,” sometim es “justice requires immediate review” of n onfinal orders (citing Gillespie v. United States Steel Corp. , 379 U.S. 148 (1964))). In this context, an order is “fi nal” if it leaves the ALJ with nothing to do but execute the Board’s decision. See W. Energy All. v. Salazar , 709 F.3d 1040, 1047 (10th Cir. 2013) (disc ussing 28 U.S.C. § 129 1’s finality requir ement); Newpark Shipbuilding & Repair, Inc. v. Roundtree , 723 F.2d 399, 400 (5th Cir. 1984) (en banc) (“The required finality for reviewability of an order of the Board [under § 921(c)] follows . . . the cont ours of the finality-requiremen t under [§ 1291] . . . .”). Notably, remand orders like the type at issue here often requir e ALJs to make additional findings of fact or co nclusions of law upon remand. See, e.g. , Freeman United Coal Mining Co. v. Dir., O ffice of Workers’ Comp. Programs , 721 F.2d 629, 631 (7th Cir. 1983). And because t hese findings and conclusions may give rise to additional appeals, the Board’s r emand orders generally “are no t considered final” for4 purposes of § 921(c). Bratzah Corp. , 1991 WL 213444, at *1 ; see also W. Energy
All. , 709 F.3d at 1051 (explaining th at § 1291’s finality requireme nt “is designed to avoid piecemeal trial and appellate litigat ion and the delays a nd costs of multiple appeals upon both parties and courts” (quoting Newpark , 723 F.2d at 401))

. This case presents no exception to our general rule. As the Dir ector points out, the Board’s decision does not dir ect the ALJ to award a specifi c dollar amount to Bristow on remand. Instead, the AL J must calculate the total am ount of the award by determining the date upon which benefits were payable—a determi nation that will require the ALJ to determine ei ther (1) the date upon which Bri stow became totally disabled or (2) the date upon whic h he filed his claim for bene fits. See 20 C.F.R. § 725.503(b). And determinations of this type are “likely to ge nerate appealable issues that might be taken to thi s court,” thus creating “a rea l danger of multiple appeals if the present o rder is appealable.” Freeman , 721 F.2d at 630–32 (holding that Board’s decision remanding case to ALJ “for determination of the benefits to which the claimant was entitled ” under BLBA was not final order under § 921(c) because it would require ALJ “to determine the date from which benefits [were] payable to the claiman t” under § 725.503(b)). Energy West asserts that no such “danger” exists here. Id. at 631. It insists that unlike the situation in Freeman —where (1) the ALJ appare ntly made the requisite § 725.503(b) calculation after th e Board remanded but before th e Seventh Circuit issued its decision and (2) the respondent had already appealed the ALJ’s § 725.503(b) calculation to the B oard—there is no proof that th e ALJ’s finding on5 remand in this case will spark su ch disagreement or yield addit ional petitions. See 721 F.2d at 631. In support, Ene rgy West suggests that the ALJ’ s finding on remand is unlikely to involve a conteste d calculation because “in the vast majority of cases, ALJs use the month during which th e claim was filed as the bene fits onset date.” Aplt. Supp. Br. 3. But Energy West neither identifi es any legal authority that mig ht support this generalization nor identifies a ny facts in the record that migh t demonstrate it holds true under the specific facts of this case. Cf. Fed. R. App. P. 28(a)(8)(A) (requiring appellant’s brief to contain a ppellant’s “contentions and the r easons for them, with citations to the authorities and parts of the record on which t he appellant relies”). Further, even assuming the Bo ard’s remand order is not certain to yield additional petitions, “the final-judgment ru le . . . is designed to avert” the mere “ prospect of successive appeals in the same case.” Freeman , 721 F.2d at 631–32 (e mphasis added) (holding that Board’s order was not final because it was “quite possible” that remand would generate “a subsequent p etition for review challenging th e amount of benefits awarded” on remand); see also W. Energy All. , 709 F.3d at 1051 (noting that finaljudgment rule “forestall[s] the delay, harassment, expense, and duplication that could result from multiple or ill-time d appeals” (emphasis added) (qu oting Boughton v. Cotter Corp. , 10 F.3d 746, 752 (10t h Cir. 1993)). And because Energy West h as failed to demonstrate that the A LJ’s task on remand involves “a merely mechanical computation” or that the “outcome ” of the remand is “foreordain ed,” we conclude such a “prospect ” exists here. Freeman , 721 F.2d at 631; see also Ceballos-Martinez ,6 387 F.3d at 1143 (requiring party seeking to invoke this court’ s jurisdiction to demonstrate that such jurisdiction exists). Thus, we conclude the Board’s decision is not a final order. See Freeman , 721 F.2d at 631–32. Alternatively, even assuming the Board’s decision is not final, Energy West asks us to invoke the pr actical-finality doctrine. See New Mexico v. Trujillo , 813 F.3d 1308, 1317 (10th Cir. 2016) (de scribing practical-finality doct rine as “an exception to the formal finality requirement of § 1291” that applies when “t he danger of injustice by delaying appellate review out weighs the inconvenience and co sts of piecemeal review” (quoting United States v. Copar Pumice Co. , 714 F.3d 1197, 1209 (10th Cir. 2013)). But “[w]e have been lee ry to apply th[is] doctrine.” Id. at 1317. And Energy West does not identify any “truly unique” aspects of this case that would justify applying it here. Id. at 1318. Accordingly, we decline to do so. See W. Energy All. , 709 F.3d at 1051 (refusing to appl y practical-finality doctrine where appellants would “have later opportunities to raise their arguments on appeal” a nd appeal was “not urgent”).
Conclusion Because Energy West fails to dem onstrate we have jurisdiction t o review the Board’s decision, we dismis s its petition for review. Entered for the Court
Nancy L. Moritz Circuit Judge