PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ BIG HORN COAL CO. Petitioner,

v. SYLVIA SADLER, wid ow 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 o f the Benefits Review Board (Benefits Nos. 16-0395 BLA and 16-0612 BLA)

________________ _________________ John S. Lopatto III, Washi ngton, D.C., for Petitioner. Evan B. Smith, Appalachian Citizen s’ Law Center, Whitesburg, Ke ntucky, for Sylvia Sadler, Respondent. Ann Marie Scarpino (Kate S. O’S cannlain, Solic itor of Labor, Ma ia S. Fisher, Associate Solicitor, Gary K. Stearman, Co unsel for Appellate Litigation, with her on the brief), U.S. Department of Labor, Washingt on, 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 Court2 Big Horn Coal Company petitions t his court to review the judgme nt of the Department of Labor Benefits Rev iew Board (“Board”) awarding be nefits 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 B LBA compensates coal miners who become totally disabled from pneumoconio sis, or black lung disease, on the job. The BLBA’s statute of limitations re quires miners to file claims fo r benefits within three years of receiving a medical dete rmination of total disability due to pneumoconiosis. 30 U.S.C. § 932(f) (“Any claim fo r benefits by a miner under th is section shall be filed within three years after . . . a medical determination of total disability due to pneumoconiosis.”). In interpre ting 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) “a re mandatory and may not be wai ved 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 s ection 725.308(c) and the interpretation and applicati on of the “extraordinary circum stances” test contained therein. Sadler received a total disabi lity diagnosis in 2005, but he di d not file the claim at issue here until 2010. Des pite that delay, an adminis trative law judge (ALJ) awarded benefits to Sa dler upon finding that “extraordinary cir cumstances” existed to warrant tolling the statute of l imitations. The Board affirmed the ALJ’s order. In

1 Effective August 31, 2018, paragraph 725.30 8(c) was redesignat ed as 725.308(b). 83 Fed. Reg. 276953 this petition for review, Big Hor n challenges the Board’s order in two respects. First, it claims that secti on 725.308(c) is invalid. Alternatively, i t argues that, even if section 725.308(c) is valid, there are no “e xtraordinary circum stances” here sufficient to justify tolling the statute of limitations. Exercising juri sdiction pursuant to 33 U.S.C. § 921(c) and 30 U.S. C. § 932(a), we hold that sect ion 725.308(c) was validly promulgated. However, w e lack jurisdiction over Big Ho rn’s argument regarding whether extraordinary circumstances existed to warran t 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 m odest monetary benefits to total ly disabled coal miners (and their survivor s) who suffer from black lung di sease—a latent, progressive, and irreversible l ung 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 s he suffers from pneumoconiosis; (2) the pneumoconiosis arose out of coal mining employme nt; and (3) the pneumoconiosis is totally disabling.” Energy W. Mining Co v. Oliver, 5 55 F.3d 1211, 1214 (10th Cir. 2 009). A claim is timely under the BLBA if it is filed w ithin three years of the miner r eceiving “a medical determination of total disabilitydue to pneumoconiosis.” 30 U .S.C. § 932(f). Typically, the last coal mine ope rator for whom the miner worke d for a cumulative period of at least one year is re sponsible for paying benefits to a successful claimant.4 20 C.F.R. § 725.494. In this cas e, the responsible employer, B ig Horn, objects only to the timeliness of Sadler’s su ccessful claim f or benefits. Sadler worked as a coal miner in Wyoming for Big Horn from 1953 to 1987. Between 1990 and 2010, Sadler f iled three claims for benefits u nder 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, Sadl er filed his first claim for black lung benefits, which was den ied. Then, in 1994, Sadler f iled a subsequent claim as permitted by 20 C.F.R. § 725.309. At this point, Sadl er had not yet received “a medical determination of tot al disability due to pneumoconio sis” to trigger the BLBA’s three-year statute of li mitations. Sadler’s second clai m was also denied for failure to prove that he suffere d from pneumoconiosis, first by the District Director of the Office of Workers’ Compen sation Programs in 1996, then b y an ALJ in 1998, and finally by the Board in 2000. Sadler next sought modification of the denial order. The Distr ict Director denied Sadler’s request in 2001 . Sadler appealed, and his clai m was forwarded to the Office of Administrative Law Judg es for a hearing. The hearing on Sadler’s request for modification was delayed se veral times between 2001 and 200 6 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 AL J overseeing the case, Sadler had been admitted to a hospital for extensive pneumoconi osis testing and it was “too soon for the results t o be completed . . . to submit” as evidence. Supplemental Appendix (S.A.) at 3. Sadler’s request for a cont inuance was granted.5 The next month, in September 2005 , the doctor sent Sadler a let ter diagnosing him with “[c]oal worker’s pneum oconiosis” and further opining t hat Sadler had “total respiratory disability from perf orming his last coal mine job o f one year’s duration.” Joint Appendix (J.A.) at 123. Sadler did not submit the d iagnosis letter to the ALJ. However, Sadler later testified that he received and read the l etter that same month. At this point, the three-year sta tute of limitations began to r un, giving Sadler until September 2008 to file a claim under the BLBA. In 2006, amid m ore continuances regarding his already-pending c laim, Sadler obtained an attorne y, Tony Alback, after having been mostly unrepresented since July 1990. It is unclea r from the record whether Sadler provided the 2005 doctor letter to Alback. On June 6, 2008, Alback filed a m otion on behalf of Sadler to w ithdraw Sadler’s request for modificati on of the order denying his 1994 claim for benefits. This motion was filed with Judge William S. Colwell, the ALJ as signed to Sadler’s case. The motion indicated that Sadler would be “f iling a new claim with the District Director” because Sadler and Alba ck had determined that it was in Sadler’s “best interest to begin the pro ceeding anew in light of [his] recent medic al condition and treatment therefore.” J.A. at 64. On June 12, 2008, Judge Colwell conducted a hearing on Sadler’s motion to withdraw h is request for modification. At the hearing, Judge Colwell made several statements that are relevant to this appeal. First, Judge Colwell quot ed the letter from Alback tha t explained that Sadler intended to dismiss his claim a nd file a new one. Then, Judge Colwell explained what he understood the law to per mit regarding the withdrawal o f claims:6 [I]t appears to me that [under Sec tion 725.462] we have the opt ion, if the parties agree to it and wish to do this, is the Claimant may wi thdraw the modification request, the last modification request . . . . An d if you all decide -- the Claimant decides that there’s not sufficient medical evi dence at this point to go forward with that, if the Claimant wants to withdraw those issues -- only the request for modificati on, then I have the authority to do that. J.A. at 54. Judge Colwell then s tated that if Sadler withdrew his request for modification, the withdrawal woul d “serve as a denial and that case [would] be over,” but Sadler “then would have an opportunity to f ile 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 announ ced that it was Sadler’s “prefer ence that the existing case, the motion to wit hdraw, 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 gath er additional medical evidence -- more current , more recent medical evidence -- and that he knows that he has the opportunity to file another, subs equent claim. . . . I will agree to Cla imant’s request, to withdraw th e modification request. Id. at 59-60. Big Horn did not obj ect to Sadler’s request to w ithdraw his claim for modification without prejudice. On June 1, 2010, five years after his total disability diagnosi s, Sadler filed pro se a third claim for black lung be nefits, the claim that underl ies this petition. Sadler submitted his 2005 medical diagnosis letter with that claim, an d the District Director awarded benefits to Sadler. The Black Lung Disability Trust Fu nd (“Trust Fund”) then began paying the benefits S adler was awarded pursuant to t he BLBA’s interim7 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 Sadle r testified that he remembered receiving the medical diagnosis letter in the mail i n 2005 and reading it. Sadler died several months after his deposition , before the ALJ hearing took place, at which point the Trust Fund stopp ed making payments to him pursu ant to 20 C.F.R. § 203. However, Sylvia Sadler, Edgar’s widow, continued to pur sue her husband’s claim after his death. She also filed a separat e survivor’s cl aim for benefits, but Big Horn does not contest that claim. Eventually, Big Horn filed a mo tion to dismiss Sadler’s 2010 cl aim as untimely under the BLBA’s three-y ear statute of limitations. J udge 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 Sadle r’s claim because he found that Sadler’s total-disab ility diagnosis was communicated to him in 2005 and yet he waited five years to fi le his claim. However, Judge Col well determined that “extraordinary circumstances” ex isted to warrant the tolling of the statute of limitations. J.A. at 244–45. Regul ations interpreting the BLB A’s statute of limitations state that it “may not be waived or tolled except u pon a showing of

2 20 C.F.R. §725.420 provides th at, if a mine operator refuses t o pay benefits to a claimant after an initial deter mination of eligibility during t he pendency of its appeals, “benefits shall be pai d by the [Black Lung Disability Trust Fund] to the claimant . . . and the operator s hall be liable to the fund, if such operator is determined liable fo r the claim . . . .”8 extraordinary circumstances.” 20 C.F.R. § 725.308(c) (emphasis added). Judge Colwell explained that the “extr aordinary circumstance” that wa rranted 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 with draw his request for modification of his second claim. Secondarily, Judge Colwell e xpressed a concern about the competency of Sadler’s attorney in general and specif ically with regard to Alback’s advice that it was in S adler’s best interest to withdr aw his request for modification. After finding for Sadler on the merits, Judge Co lwell issued an order awarding Sylvia Sadler survivor’s benefits pursuant to 30 U.S.C . § 932(l), which requires approval of t he survivor’s claim i f the living miner c laim is determined to be valid. Big Horn filed a motion fo r reconsideration, which Judg e Colwell denied. Big Horn appealed the ALJ’s award of benefits to the Board, rai sing, inter alia, the two claims Big Horn raises i n its petition to this court: ( 1) that 20 C.F.R. § 725.308(c) was invalidly issued by the Secretary of the Depar tment of Labor, and (2) that Judge Colwell misapplied 20 C.F.R. § 725.308(c) when h e determined that extraordinary circumstances warra nted tolling the statute of li mitations. 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 estab lished 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 e xtraordinary circumstance beca use those statements9 should not have been made in the first place. Specifically, Bi g Horn argued that Judge Colwell should have been d isqualified because he “abdicat ed 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 pulmona ry examination at the National Jewish Hos pital 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 S adler’s good faith reliance on the tribunal’s misrepresentation of Sadler’s a bility to file a new claim justi fied tolling the statute of limitations as an extraordinary c ircumstance. As a result, the Board affirmed the ALJ’s awards of compensation to S adler and his surviving widow. We grant Big Horn’s petition for review. We agree with the Boa rd’s conclusion that the Secretary va lidly promulgate d section 725.3 08(c). However, we lack jurisdiction to consider Big Horn’s remaining arguments re lated to whether extraordinary circumstances exis ted in this case because Big Ho rn failed to raise those arguments to the Board. A ccordingly, we DISMISS the peti tion and AFFIRM the Board.
II. DISCUSSION
A. Validity of 20 C.F.R. § 725.308(c) We are first asked to address wh ether the Secretary of Labor va lidly promulgated 20 C.F.R . § 725.308(c). Reviewing that issue de no vo, we uphold that regulation.10 To determine whether an agency’s regulation is valid under a pa rticular statute, we apply the analysis a rticulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc ., 467 U.S. 837, 842 (1984). Che vron is applicable where, as here, an agen cy has promulgated a regulation to inter pret a statute that it administers. The Department of L abor is tasked to administer t he BLBA. 30 U.S.C. § 936 (“The Secretary of Labor. . . [is] authorized to issue s uch 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 f iled within three years after . . . a med ical 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 circ umstances.” Thus, we apply Chevron to determine whe ther 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 spok en “directly” to the “precise question at issue,” the inquiry ends, and we m ust give effect to the express intent of Congress. Id. However, “if the statute is sile nt or ambiguous with respect to the specific issue, the question for the court [in step t wo] is whether the agency’s an swer is based on a permissible constr uction of the statute.” Id. at 843.11 For a construction to be permissible, we need not conclude it w as the only one the agency could reasonably ha ve adopted or that we would h ave rendered the same interpretati on if the question arose initiall y in a judicial context. . .We look only to wheth er the implementing agency’s construction is reasonable. Keller Tank Servs. II, Inc. v. C omm’r of Inter nal Revenue, 854 F.3d 1178, 1196 (10th Cir. 2017) (citing Chev ron, 467 U.S. at 843 n.11). To determine whether Congress ha s spoken directly to an issue, we look at both the statute’s language and th e legislative history. Chevr on, 467 U.S. at 859–64. The language of 30 U.S.C. § 932(f) is silent with regard to whe ther the three-year statute of limitations may be tolled under any circumstances. Similarly, the legislative history contains no discussion of tolling the limit ations period. Therefore, we conclude that Congr ess has not directly spoken to the precis e question at issue. See Chevron, 467 U.S. at 843. As a result, we can proceed to t he second step of Chevron and consider whether t he Secretary’s regulation in sect ion 725.308(c) was a reasonable interpretati on of section 932(f). The Secretary’s interpretation th at the BLBA’s statute of limit ations may be tolled in extraordinary circums tances is reasonable because sec tion 932(f) is nonjurisdictional and therefore subject to a presumption that e quitable tolling is permitted. See Holland v. Flori da, 560 U.S. 631, 648 (2010); I rwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95–96 (1990). In Irwin, the Sup reme Court recognized a presumption that equitable tollin g is available in suits agains t the federal government. 498 U.S. at 95–96. The Court lat er explained that the presumpt ion applies to federal statutes of limitations because “Co ngress legislates against a background of common-law12 adjudicatory principles. . . . [and] [e]quitable tolling, a lon g-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 d escribed Irwin as holding tha t “a nonjurisdictional federal statute of limitations i s normally subject to a ‘rebutt able presumption’ in favor ‘of equitable tolling.’” 560 U.S. at 645-46. We conclud e that the holdings of Holland and Irwin are applicable here because, when Congress en acted the BLBA in 1969, which included a three-ye ar statute of limitations substa ntially similar to that in section 932(f), 3 it was legislating with the co mmon-law principles described wi th those cases in mind. Applying th e rules of those cases, we con clude that section 932(f) is subject to the presump tion that it permits equitable tolling and therefore the Secretary’s interpretation that t he statute of limitations may be tolled in extraordinary circumstances was reasonable. First, the BLBA’s three-year sta tute of limitations is nonjuris dictional. In a series of opinions the Supreme C ourt has “explained time and ag ain that statutes of limitations are not always—and, i ndeed, presumptively are not—j urisdictional.” Barnes v. United States, 776 F. 3d 1134, 1145 (10th Cir. 2015). The test is whether Congress has “clearly stated” tha t a statutory limitation is ju risdictional. Id. at 1146 (quoting Hobby Lobby Stores, I nc. v. Sebelius, 723 F.3d 1113, 1 157 (10th Cir.

3 “Any claim for benefits under this section shall be filed with in three years of the discovery of total disability due to pneumoconiosis or, in the case of death due to pneumoconiosis, the date of suc h death.” Pub. L. 91-173, § 422 (f), 83 Stat. 797 (1969).13 2013)). In applying this bright-line test, “we focus on the le gal character of the deadline, as shown through its text, contex t, and historical treatment.” Id. (quotation omitted). Nothing in section 932(f) suggests that the limitation there is jurisdictional. The provision provides simply that cl aims by miners “shall be filed within three years” of a medical diagnosis of total di sability. It does not state, fo r example, that the District Director is without jurisdicti on to adjudicate claims filed out side the statutory time period. Furthermore, th e BLBA is “intended to be remedial in n ature.” Bridger Coal Co. v. Dir., OWCP, 669 F.3d 1183 , 1190 (10th Cir. 2012); see al so 20 C.F.R. § 725.309 (setting no limits on the number of claims a miner ca n file). Absent any indication that Congress intende d 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 BL BA to allow the limitations period to be tolled in extraordinary circumstances because the Supreme Court has stated that nonjurisdictional fede ral statutes of lim itations are “normally subject to a ‘rebuttable presump tion’ in favor ‘of equitable to lling,’” Holland, 560 U.S. at 645-46 (holding that, des pite the silence of its statut e of limitations, AEDPA permits equitable tolling). The S upreme Court has found that p resumption overcome in only two cases. In United St ates v. Brockamp, 519 U.S. 347 (1997), the Supreme Court interpreted a statute of l imitations that was silent on t he question of equitable tolling as foreclosing applicati on of the Irwin presumption of tolling. However, in doing so, the Court emphasized th at the statute in Brockamp (1) “se[t] forth its time limitations in unusually emphatic fo rm”; (2) used “highly detai led” and “technical”14 language “that, linguistically spe aking, [could not] easily be read as containing implicit exceptions”; (3) “reite rate[d] its limitations several times in several different ways”; (4) related to an “underl ying subject matter,” nationwid e tax collection, with respect to which the practical consequences of permitting tolli ng would have been substantial; and (5) would, if tolled, “require tolling, not on ly procedural limitations, but also substantive limitations on the amount of recovery”—a k ind of tolling for which the Court admitted it f ound no direct precedent. 519 U.S . at 350–352. And, in United States v. Beggerl y, 524 U.S. 38 (1998), the Cour t held that Irwin’s presumption of tolling wa s overcome where (1) the twelv e-year statute of limitations at issue was “unusua lly generous” and (2) the under lying claim “deal[t] with ownership of land” and there by implicated landowners’ need to “know with certainty what their rights are, and the period during which th ose rights may be subject to challenge .” 524 U.S. at 48–49. By way of contrast, the BLBA’s st atute of limitat ions here is n ot as emphatic as was the language u nder review in Brockamp. Neither would ap plication of equitable tolling here affect the “substance” of a BLBA claiman t’s claim as it did in Brockamp; it affects only their ability to bring the claim. Mo reover, in contrast to the twelve-year limitations perio d at issue in Beggerly, the BL BA’s three-year limitations period is not partic ularly long. And unlike the su bject matters at issue in both Brockamp and Beggerly

— tax collection and land c laims—the BLBA’s purpose is remedial and therefore natura lly invites the application of equitable principles, see Bridger, 669 F.3d at 1190. There fore, we conclude that the non jurisdictional statute15 of limitations in the BLBA is subject to the Irwin presumption that the statute permits equitable tolling. As a result, w e hold that the Secretary’s i nterpretation that the BLBA’s statute of limitations may be tolled in extraordinary ci rcumstances was reasonable. We affirm the Board’s legal c onclusion that section 932(f) is e ntitled to deference by this court.
B. Big Horn Failed to Exhaust Arg uments 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 Sa dler’s reliance on Judge Colwell’s statements a t the 2008 hearing constituted e xtraordinary circumstances justifying tolling the statute of limitations. T o 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 Colwe ll such that it was not in the record before him dur ing 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 t he level of an extraordinary c ircumstance because “[t]he ALJ’s advice to the claima nt at the 2008 hearing was cor rect” based on the record before him. P et. Br. at 32 (emphasis added). Big Horn further argues that, without knowledge of the 2005 me dical report, Judge Colwell had no duty “to remind16 the claimant and his lawyer to re ad their files and see if they may have within these documents a medical determi nation of total disability.” 4 Id. We do not have jurisdiction to c onsider these legal arguments b ecause Big Horn failed to exhaust th em before the Board. McC onnell v. Dir., Office of Workers’ Comp. Programs, U.S. D ep’t of Labor, 993 F. 2d 1454, 1460 n.8 (1 0th Cir. 1993) (holding that Tenth Circuit was deprivedof jurisdiction to consider arg ument not raised before the Benefits Review Board). Not onl y did Big Horn fail to argue to the Board that the statements Judge Colwell made a bout 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 informa tion to [Sadler] a t 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 B LBA context issue-exhaustion i s a jurisdictional requirement. There may be some question about the long-term vi ability of McConnell describing the exhaustion require ment as jurisdictional in ligh t of subsequent Supreme Court authority advising against the “profligate use” of that l abel. Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 1 53 (2013); see also Eberhart v. United States, 546 U.S. 12,17 (2005) (per curiam) (“Cla rity 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 B ig Horn’s motion for reconsider ation that his grant of equitable tolling was not based on Alback’s errors. J.A. at 276. Acknowledging that, the Board declined to addr ess the issue. Because attorne y negligence does not underlie either the ALJ’s or t he Board’s decision, we do not ad dress it.17 used the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the cl asses of cases ( subject-matter jurisdiction) and the persons (personal jurisdiction) f alling within a court’s adjudi catory authority.”). 5 However, at least for now, McCon nell is binding Tenth Circuit l aw that we are obligated to follow. Therefore, we are without jurisdiction to consider Big Horn’s unexhausted argument that “extrao rdinary circumstances” suffici ent to justify tolling the statute of limitations are not p resent here. Accordingly, we a ffirm the Board’s decision to uphold the ALJ’s order awarding benefits to Sadler.
III. CONCLUSION For the foregoing reasons, we DISM ISS Big Horn’s petition and A FFIRM the decision of the Benefits Review Board.

5 The statute governing our juris diction over BLBA appeals does not contain any language to suggest that issue-e xhaustion is a jurisdictional p rerequisite to our hearing an appeal. See 33 U.S.C. § 921.