PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

BIG HORN COAL CO. 

 Petitioner, 

v. 

SYLVIA SADLER, widow of o/b/o Edgar 

Sadler, deceased; DIRECTOR, OFFICE 

OF WORKERS’ COMPENSATION 

PROGRAMS, UNITED STATES 

DEPARTMENT OF LABOR, 

 Respondents. 

No. 17-9558 

_________________________________ 

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. 

_________________________________ 

EBEL, Circuit Judge. 

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 4, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

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 

 

1

 Effective August 31, 2018, paragraph 725.308(c) was redesignated as 725.308(b). 

83 Fed. Reg. 27695 
3 

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. 
4 

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. 
5 

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 explained 

what he understood the law to permit regarding the withdrawal of claims: 
6 

[I]t appears to me that [under Section 725.462] we have the option, if the 

parties agree to it and wish to do this, is the Claimant may withdraw the 

modification request, the last modification request . . . . And if you all decide 

-- the Claimant decides that there’s not sufficient medical evidence at this 

point to go forward with that, if the Claimant wants to withdraw those issues 

-- only the request for modification, then I have the authority to do that. 

 

J.A. at 54. Judge Colwell then stated that if Sadler withdrew his request for 

modification, the withdrawal would “serve as a denial and that case [would] be over,” 

but Sadler “then would have an opportunity to file a subsequent claim or another 

claim,” and “then there’s an opportunity . . . to use the more current evidence.” Id. at 

54–55. 

 Next, Sadler’s attorney announced that it was Sadler’s “preference that the 

existing case, the motion to withdraw, be granted by the Court.” Id. at 57. Judge 

Colwell accepted Sadler’s motion to withdraw: 

I also believe that he understands that he has now time to gather additional 

medical evidence -- more current, more recent medical evidence -- and 

that he knows that he has the opportunity to file another, subsequent 

claim. . . . I will agree to Claimant’s request, to withdraw the modification 

request. 

 

Id. at 59-60. Big Horn did not object to Sadler’s request to withdraw his claim for 

modification without prejudice. 

On June 1, 2010, five years after his total disability diagnosis, Sadler filed pro 

se a third claim for black lung benefits, the claim that underlies this petition. Sadler 

submitted his 2005 medical diagnosis letter with that claim, and the District Director 

awarded benefits to Sadler. The Black Lung Disability Trust Fund (“Trust Fund”) 

then began paying the benefits Sadler was awarded pursuant to the BLBA’s interim 
7 

benefits provision, 20 C.F.R. §725.420.2

 Big Horn appealed the District Director’s 

decision and requested a hearing before an ALJ. In preparation for the hearing, Big 

Horn deposed Sadler in September 2013. At the deposition Sadler testified that he 

remembered receiving the medical diagnosis letter in the mail in 2005 and reading it. 

Sadler died several months after his deposition, before the ALJ hearing took place, at 

which point the Trust Fund stopped making payments to him pursuant to 20 C.F.R. 

§ 203. However, Sylvia Sadler, Edgar’s widow, continued to pursue her husband’s 

claim after his death. She also filed a separate survivor’s claim for benefits, but Big 

Horn does not contest that claim. 

Eventually, Big Horn filed a motion to dismiss Sadler’s 2010 claim as 

untimely under the BLBA’s three-year statute of limitations. Judge Colwell was 

again assigned to the case, and he denied Big Horn’s motion to dismiss. Judge 

Colwell agreed that the statute of limitations had run on Sadler’s claim because he 

found that Sadler’s total-disability diagnosis was communicated to him in 2005 and 

yet he waited five years to file his claim. However, Judge Colwell determined that 

“extraordinary circumstances” existed to warrant the tolling of the statute of 

limitations. J.A. at 244–45. Regulations interpreting the BLBA’s statute of 

limitations state that it “may not be waived or tolled except upon a showing of 

 

2

 20 C.F.R. §725.420 provides that, if a mine operator refuses to pay benefits to a 

claimant after an initial determination of eligibility during the pendency of its 

appeals, “benefits shall be paid by the [Black Lung Disability Trust Fund] to the 

claimant . . . and the operator shall be liable to the fund, if such operator is 

determined liable for the claim . . . .” 
8 

extraordinary circumstances.” 20 C.F.R. § 725.308(c) (emphasis added). Judge 

Colwell explained that the “extraordinary circumstance” that warranted tolling was 

primarily the fact that, at the previous June 12, 2008 hearing, he (Judge Colwell) had 

stated that Sadler would be able to file a subsequent claim in the future and that 

Sadler relied on those statements to decide that he should withdraw his request for 

modification of his second claim. Secondarily, Judge Colwell expressed a concern 

about the competency of Sadler’s attorney in general and specifically with regard to 

Alback’s advice that it was in Sadler’s best interest to withdraw his request for 

modification. After finding for Sadler on the merits, Judge Colwell issued an order 

awarding Sylvia Sadler survivor’s benefits pursuant to 30 U.S.C. § 932(l), which 

requires approval of the survivor’s claim if the living miner claim is determined to be 

valid. Big Horn filed a motion for reconsideration, which Judge Colwell denied. 

Big Horn appealed the ALJ’s award of benefits to the Board, raising, inter alia, 

the two claims Big Horn raises in its petition to this court: (1) that 20 C.F.R. 

§ 725.308(c) was invalidly issued by the Secretary of the Department of Labor, and 

(2) that Judge Colwell misapplied 20 C.F.R. § 725.308(c) when he determined that 

extraordinary circumstances warranted tolling the statute of limitations. In 

opposition to the ALJ’s tolling of the statute of limitations, Big Horn raised two 

specific arguments to the Board. First, Big Horn asserted that extraordinary 

circumstances could not be established by attorney negligence. Second, Big Horn 

argued that Sadler’s reliance on the ALJ’s statements regarding his ability to file a 

new claim did not constitute an extraordinary circumstance because those statements 
9 

should not have been made in the first place. Specifically, Big Horn argued that 

Judge Colwell should have been disqualified because he “abdicated neutrality” by 

giving “erroneous information to [Sadler] at the 2008 hearing,” S.A. at 16 (cleaned 

up), that lacked “any observation that the August 2005 letter [from Sylvia Sadler] 

about the 2005 pulmonary examination at the National Jewish Hospital was a statute 

of limitations land mine,” id. at 18. 

The Board held that section 725.308(c) was lawfully promulgated. And it 

agreed with Judge Colwell that Sadler’s good faith reliance on the tribunal’s 

misrepresentation of Sadler’s ability to file a new claim justified tolling the statute of 

limitations as an extraordinary circumstance. As a result, the Board affirmed the 

ALJ’s awards of compensation to Sadler and his surviving widow. 

We grant Big Horn’s petition for review. We agree with the Board’s 

conclusion that the Secretary validly promulgated section 725.308(c). However, we 

lack jurisdiction to consider Big Horn’s remaining arguments related to whether 

extraordinary circumstances existed in this case because Big Horn failed to raise 

those arguments to the Board. Accordingly, we DISMISS the petition and AFFIRM 

the Board. 

II. DISCUSSION 

A. Validity of 20 C.F.R. § 725.308(c) 

We are first asked to address whether the Secretary of Labor validly 

promulgated 20 C.F.R. § 725.308(c). Reviewing that issue de novo, we uphold that 

regulation. 
10 

To determine whether an agency’s regulation is valid under a particular 

statute, we apply the analysis articulated in Chevron, U.S.A., Inc. v. Natural 

Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). Chevron is applicable 

where, as here, an agency has promulgated a regulation to interpret a statute that it 

administers. The Department of Labor is tasked to administer the BLBA. 30 U.S.C. 

§ 936 (“The Secretary of Labor . . . [is] authorized to issue such regulations as [he or 

she] deems appropriate to carry out the provisions of [the BLBA].”). And the 

Secretary promulgated 20 C.F.R. § 725.308(c) to interpret 30 U.S.C. § 932(f) in 

Part C of the BLBA. Section 932(f) provides that “[a]ny claim for benefits by a 

miner . . . shall be filed within three years after . . . a medical determination of total 

disability due to pneumoconiosis.” Section 725.308(c) provides further that the 

three-year statute of limitations that applies to the BLBA is “mandatory and may not 

be waived or tolled except upon a showing of extraordinary circumstances.” Thus, 

we apply Chevron to determine whether to defer to the agency’s interpretation of 

section 932(f). 

The Chevron-deference analysis proceeds in two steps. Chevron, 467 U.S. at 

842. First, if Congress has spoken “directly” to the “precise question at issue,” the 

inquiry ends, and we must give effect to the express intent of Congress. Id. 

However, “if the statute is silent or ambiguous with respect to the specific issue, the 

question for the court [in step two] is whether the agency’s answer is based on a 

permissible construction of the statute.” Id. at 843. 
11 

For a construction to be permissible, we need not conclude it was the only 

one the agency could reasonably have adopted or that we would have 

rendered the same interpretation if the question arose initially in a judicial 

context. . .We look only to whether the implementing agency’s 

construction is reasonable. 

Keller Tank Servs. II, Inc. v. Comm’r of Internal Revenue, 854 F.3d 1178, 1196 

(10th Cir. 2017) (citing Chevron, 467 U.S. at 843 n.11). 

To determine whether Congress has spoken directly to an issue, we look at 

both the statute’s language and the legislative history. Chevron, 467 U.S. at 859–64. 

The language of 30 U.S.C. § 932(f) is silent with regard to whether the three-year 

statute of limitations may be tolled under any circumstances. Similarly, the 

legislative history contains no discussion of tolling the limitations period. Therefore, 

we conclude that Congress has not directly spoken to the precise question at issue. 

See Chevron, 467 U.S. at 843. As a result, we can proceed to the second step of 

Chevron and consider whether the Secretary’s regulation in section 725.308(c) was a 

reasonable interpretation of section 932(f). 

The Secretary’s interpretation that the BLBA’s statute of limitations may be 

tolled in extraordinary circumstances is reasonable because section 932(f) is 

nonjurisdictional and therefore subject to a presumption that equitable tolling is 

permitted. See Holland v. Florida, 560 U.S. 631, 648 (2010); Irwin v. Dep’t of 

Veterans Affairs, 498 U.S. 89, 95–96 (1990). In Irwin, the Supreme Court recognized a 

presumption that equitable tolling is available in suits against the federal government. 

498 U.S. at 95–96. The Court later explained that the presumption applies to federal 

statutes of limitations because “Congress legislates against a background of common-law 
12 

adjudicatory principles. . . . [and] [e]quitable tolling, a long-established feature of 

American jurisprudence derived from ‘the old chancery rule,’ is just such a principle.” 

Lozano v. Montoya Alvarez, 572 U.S. 1, 10–11 (2014) (internal quotation marks 

omitted). In Holland, the Court described Irwin as holding that “a nonjurisdictional 

federal statute of limitations is normally subject to a ‘rebuttable presumption’ in 

favor ‘of equitable tolling.’” 560 U.S. at 645-46. We conclude that the holdings of 

Holland and Irwin are applicable here because, when Congress enacted the BLBA in 

1969, which included a three-year statute of limitations substantially similar to that in 

section 932(f),3

 it was legislating with the common-law principles described with 

those cases in mind. Applying the rules of those cases, we conclude that section 

932(f) is subject to the presumption that it permits equitable tolling and therefore the 

Secretary’s interpretation that the statute of limitations may be tolled in extraordinary 

circumstances was reasonable. 

First, the BLBA’s three-year statute of limitations is nonjurisdictional. In a 

series of opinions the Supreme Court has “explained time and again that statutes of 

limitations are not always—and, indeed, presumptively are not—jurisdictional.” 

Barnes v. United States, 776 F.3d 1134, 1145 (10th Cir. 2015). The test is whether 

Congress has “clearly stated” that a statutory limitation is jurisdictional. Id. at 1146 

(quoting Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1113, 1157 (10th Cir. 

 

3

 “Any claim for benefits under this section shall be filed within three years of the 

discovery of total disability due to pneumoconiosis or, in the case of death due to 

pneumoconiosis, the date of such death.” Pub. L. 91-173, § 422(f), 83 Stat. 797 

(1969). 
13 

2013)). In applying this bright-line test, “we focus on the legal character of the deadline, 

as shown through its text, context, and historical treatment.” Id. (quotation omitted). 

Nothing in section 932(f) suggests that the limitation there is jurisdictional. The 

provision provides simply that claims by miners “shall be filed within three years” of 

a medical diagnosis of total disability. It does not state, for example, that the District 

Director is without jurisdiction to adjudicate claims filed outside the statutory time 

period. Furthermore, the BLBA is “intended to be remedial in nature.” Bridger Coal 

Co. v. Dir., OWCP, 669 F.3d 1183, 1190 (10th Cir. 2012); see also 20 C.F.R. 

§ 725.309 (setting no limits on the number of claims a miner can file). Absent any 

indication that Congress intended section 932(f) to serve as a jurisdictional 

limitation, we presume that it is nonjurisdictional pursuant to Barnes. 

Second, it was reasonable for the Secretary to interpret the BLBA to allow the 

limitations period to be tolled in extraordinary circumstances because the Supreme 

Court has stated that nonjurisdictional federal statutes of limitations are “normally 

subject to a ‘rebuttable presumption’ in favor ‘of equitable tolling,’” Holland, 560 

U.S. at 645-46 (holding that, despite the silence of its statute of limitations, AEDPA 

permits equitable tolling). The Supreme Court has found that presumption overcome 

in only two cases. In United States v. Brockamp, 519 U.S. 347 (1997), the Supreme 

Court interpreted a statute of limitations that was silent on the question of equitable 

tolling as foreclosing application of the Irwin presumption of tolling. However, in 

doing so, the Court emphasized that the statute in Brockamp (1) “se[t] forth its time 

limitations in unusually emphatic form”; (2) used “highly detailed” and “technical” 
14 

language “that, linguistically speaking, [could not] easily be read as containing 

implicit exceptions”; (3) “reiterate[d] its limitations several times in several different 

ways”; (4) related to an “underlying subject matter,” nationwide tax collection, with 

respect to which the practical consequences of permitting tolling would have been 

substantial; and (5) would, if tolled, “require tolling, not only procedural limitations, 

but also substantive limitations on the amount of recovery”—a kind of tolling for 

which the Court admitted it found no direct precedent. 519 U.S. at 350–352. 

And, in United States v. Beggerly, 524 U.S. 38 (1998), the Court held that 

Irwin’s presumption of tolling was overcome where (1) the twelve-year statute of 

limitations at issue was “unusually generous” and (2) the underlying claim “deal[t] 

with ownership of land” and thereby implicated landowners’ need to “know with 

certainty what their rights are, and the period during which those rights may be 

subject to challenge.” 524 U.S. at 48–49. 

By way of contrast, the BLBA’s statute of limitations here is not as emphatic 

as was the language under review in Brockamp. Neither would application of 

equitable tolling here affect the “substance” of a BLBA claimant’s claim as it did in 

Brockamp; it affects only their ability to bring the claim. Moreover, in contrast to 

the twelve-year limitations period at issue in Beggerly, the BLBA’s three-year 

limitations period is not particularly long. And unlike the subject matters at issue in 

both Brockamp and Beggerly—tax collection and land claims—the BLBA’s purpose 

is remedial and therefore naturally invites the application of equitable principles, see 

Bridger, 669 F.3d at 1190. Therefore, we conclude that the nonjurisdictional statute 
15 

of limitations in the BLBA is subject to the Irwin presumption that the statute permits 

equitable tolling. As a result, we hold that the Secretary’s interpretation that the 

BLBA’s statute of limitations may be tolled in extraordinary circumstances was 

reasonable. 

We affirm the Board’s legal conclusion that section 932(f) is entitled to 

deference by this court. 

B. Big Horn Failed to Exhaust Arguments Against Equitable Tolling and 

Accordingly We Lack Jurisdiction to Consider this Claim on the Merits 

Big Horn next asks us to reverse the Board’s conclusion that Sadler’s reliance 

on Judge Colwell’s statements at the 2008 hearing constituted extraordinary 

circumstances justifying tolling the statute of limitations. To support its claim that 

extraordinary circumstances did not exist here, Big Horn argues to us that Sadler and 

his attorney concealed the 2005 medical report from Judge Colwell such that it was 

not in the record before him during the 2008 hearing. Big Horn asserts that, as a 

result, Judge Colwell’s statements that Sadler could refile and Sadler’s reliance on 

those statements cannot rise to the level of an extraordinary circumstance because 

“[t]he ALJ’s advice to the claimant at the 2008 hearing was correct” based on the 

record before him. Pet. Br. at 32 (emphasis added). Big Horn further argues that, 

without knowledge of the 2005 medical report, Judge Colwell had no duty “to remind 
16 

the claimant and his lawyer to read their files and see if they may have within these 

documents a medical determination of total disability.”4

 Id. 

We do not have jurisdiction to consider these legal arguments because Big 

Horn failed to exhaust them before the Board. McConnell v. Dir., Office of Workers’ 

Comp. Programs, U.S. Dep’t of Labor, 993 F.2d 1454, 1460 n.8 (10th Cir. 1993) (holding 

that Tenth Circuit was deprived of jurisdiction to consider argument not raised before the 

Benefits Review Board). Not only did Big Horn fail to argue to the Board that the 

statements Judge Colwell made about Sadler’s ability to refile were “correct” based on 

the record before him, in fact, it argued just the opposite to the agency, stating that Judge 

Colwell gave “erroneous information to [Sadler] at the 2008 hearing.” S.A. at 16. 

None of the respondents in this case raise issue-exhaustion as an affirmative 

defense, but we are required to consider it sua sponte because of McConnell’s holding, by 

which we are bound, that in the BLBA context issue-exhaustion is a jurisdictional 

requirement. There may be some question about the long-term viability of McConnell 

describing the exhaustion requirement as jurisdictional in light of subsequent Supreme 

Court authority advising against the “profligate use” of that label. Sebelius v. Auburn 

Reg’l Med. Ctr., 568 U.S. 145, 153 (2013); see also Eberhart v. United States, 546 U.S. 

12,17 (2005) (per curiam) (“Clarity would be facilitated . . . if courts and litigants 

 

4

 Big Horn also argues, as it did before the ALJ and the Board, that attorney 

negligence cannot justify tolling the statute of limitations. However, the ALJ 

explained in his order denying Big Horn’s motion for reconsideration that his grant 

of equitable tolling was not based on Alback’s errors. J.A. at 276. Acknowledging 

that, the Board declined to address the issue. Because attorney negligence does not 

underlie either the ALJ’s or the Board’s decision, we do not address it. 
17 

used the label ‘jurisdictional’ not for claim-processing rules, but only for 

prescriptions delineating the classes of cases (subject-matter jurisdiction) and the 

persons (personal jurisdiction) falling within a court’s adjudicatory authority.”).5

 

However, at least for now, McConnell is binding Tenth Circuit law that we are 

obligated to follow. Therefore, we are without jurisdiction to consider Big Horn’s 

unexhausted argument that “extraordinary circumstances” sufficient to justify tolling the 

statute of limitations are not present here. Accordingly, we affirm the Board’s decision to 

uphold the ALJ’s order awarding benefits to Sadler. 

III. CONCLUSION 

For the foregoing reasons, we DISMISS Big Horn’s petition and AFFIRM the 

decision of the Benefits Review Board.

 

5

 The statute governing our jurisdiction over BLBA appeals does not contain any 

language to suggest that issue-exhaustion is a jurisdictional prerequisite to our hearing an 

appeal. See 33 U.S.C. § 921.