RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0261p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ISLAND CREEK COAL COMPANY,

Petitioner,

v.

JAY H. WILKERSON; DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS, UNITED STATES 

DEPARTMENT OF LABOR,

Respondents.

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No. 18-3147

Upon Petition for Review from the Benefits Review Board;

No. 16-0331 BLA.

Decided and Filed: December 3, 2018

Before: BATCHELDER, SUTTON, and WHITE, Circuit Judges.

_________________

COUNSEL

ON BRIEF: William S. Mattingly, JACKSON KELLY, PLLC, Lexington, Kentucky, for 

Petitioner. Brent Yonts, YONTS, SHERMAN & DRISKILL, PSC, Greenville, Kentucky, for 

Respondent Wilkerson. Daniel Aguilar, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., Gary K. Stearman, Jeffrey S. Goldberg, UNITED STATES DEPARTMENT 

OF LABOR, Washington, D.C., for Federal Respondent.

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OPINION

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SUTTON, Circuit Judge. The Benefits Review Board awarded benefits to Jay Wilkerson 

under the Black Lung Benefits Act. The Island Creek Coal Company asks us to vacate that 

award on two grounds: The administrative law judge lacked authority to hear the case under the 

Appointments Clause, and the evidence does not support the award. Because Island Creek 

>
No. 18-3147 Island Creek Coal Co. v. Wilkerson et al. Page 2

forfeited its constitutional claim by failing to raise it in its opening brief and because substantial 

evidence supports the award, we deny the petition for review. 

I.

Jay Wilkerson mined coal for over 25 years. In 1994, he retired from the Island Creek 

Coal Company’s operation at the Crescent mine, where he had worked most recently as an 

electrician. The job required strenuous activity. He often lifted pieces of equipment that 

weighed as much as 70 pounds, and his tools alone weighed 15 pounds. Throughout his quartercentury career, his work frequently exposed him to coal dust, a reality that generated several 

health problems. 

In 2012, Wilkerson filed an application for benefits under the Black Lung Benefits Act. 

The Act provides compensation to miners disabled by pneumoconiosis, “a chronic dust disease 

of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of 

coal mine employment.” 30 U.S.C. §§ 902(b), 922(a)(1). Administrative Law Judge Timothy 

McGrath handled the hearing, at which Wilkerson and Island Creek presented conflicting 

medical evidence. Judge McGrath granted Wilkerson’s application, and the Benefits Review 

Board affirmed.

The company filed a petition for review. 

II.

Island Creek forfeited its Appointments Clause challenge. U.S. Const. art. II, § 2, cl. 2. 

Appellants must raise any challenge to a district court or administrative decision in their opening 

brief. Golden v. Comm’r, 548 F.3d 487, 493 (6th Cir. 2008). The company did not do that. In 

its opening brief, it identified one issue for the court to consider at the outset: Whether the 

administrative law judge “rationally explained how the conflicting evidence presented carried the 

burden to establish total disability?” Pet. Br. 3. And in the rest of that brief, it said nothing 

about the authority of administrative law judges in this area. Only in its reply brief did it raise 

the Appointments Clause issue. That was one brief too late. Time, time, and time again, we 

have reminded litigants that we will treat an “argument” as “forfeited when it was not raised in 
No. 18-3147 Island Creek Coal Co. v. Wilkerson et al. Page 3

the opening brief.” Golden, 548 F.3d at 493; see Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 

2010); Priddy v. Edelman, 883 F.2d 438, 446 (6th Cir. 1989). 

Appointments Clause challenges, true enough, arise under the U.S. Constitution, making 

them special in one sense. But that does not make them special in this sense. We are not alone 

in refusing to consider constitutional challenges when the appellant failed to raise them in the 

opening brief. See, e.g., Am. Trim, LLC v. Oracle Corp., 383 F.3d 462, 478 (6th Cir. 2004); 

Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 574 F.3d 748, 755 (D.C. Cir. 2009). 

The obligation to identify the issues on appeal in the opening brief applies to arguments 

premised on the loftiest charter of government as well as the most down to earth ordinance. 

None of the explanations for excusing a forfeiture applies. This challenge does not affect 

our jurisdiction. As we recently explained, Appointments Clause challenges are “not 

jurisdictional and thus are subject to ordinary principles of waiver and forfeiture.” Jones Bros., 

Inc. v. Sec’y of Labor, 898 F.3d 669, 678 (6th Cir. 2018). 

Nor has Island Creek identified any “exceptional circumstances” for looking the other 

way. Freytag v. Comm’r, 501 U.S. 868, 894 (1991) (Scalia, J., concurring in part and concurring 

in the judgment); see also id. at 879 (majority opinion) (holding that the Supreme Court may 

excuse forfeiture in “rare cases”). That we entertained an Appointments Clause challenge in 

Jones Brothers does not help Island Creek. In that case, we dealt with the subsidiary question 

whether the claimant must preserve his argument in the administrative process. Today’s barrier 

is that Island Creek did not raise the claim in its opening brief here. No such problem infected 

the Jones Brothers case. 

It makes no difference that Island Creek submitted a stipulation to the administrative law 

judge that it might contest, “for appellate purposes, a challenge to the constitutionality of the Act 

and regulations, as applied.” Joint Pre-Trial Stipulations. The salient reality is that the company 

did not raise the issue when it mattered most: in its opening brief in the Sixth Circuit. A 

forfeiture in our court does not become forgivable based on potential preservations of the issue in 

the administrative process. 
No. 18-3147 Island Creek Coal Co. v. Wilkerson et al. Page 4

(We need not decide whether the company’s stipulation preserved its Appointments 

Clause challenge before the agency. The vagueness of the statement casts doubt on that 

possibility under Jones Brothers. See 898 F.3d at 678 (noting that the petitioner identified a 

specific Appointments Clause challenge before the agency); cf. Frank H. Easterbrook, 

Presidential Review, 40 Case W. Res. L. Rev. 905 (1989) (exploring the Executive Branch’s 

responsibility to interpret and comply with the Constitution). But we need not resolve the point

today.) 

Island Creek also cannot hold the line on the ground that its Appointments Clause 

challenge lacked merit until the Supreme Court decided Lucia v. Securities & Exchange 

Commission. 138 S. Ct. 2044 (2018). No precedent prevented the company from bringing the 

constitutional claim before then. Lucia itself noted that existing case law “says everything 

necessary to decide this case.” Id. at 2053. The Tenth Circuit, before Lucia, held that 

administrative law judges were inferior officers. Bandimere v. SEC, 844 F.3d 1168, 1188 (10th 

Cir. 2016). And many other litigants pressed the issue before Lucia. See, e.g., Tilton v. SEC, 

824 F.3d 276, 281 (2d Cir. 2016); Bennett v. SEC, 844 F.3d 174, 177–78 (4th Cir. 2016); 

Burgess v. FDIC, 871 F.3d 297, 299 (5th Cir. 2017); Jones Bros., 898 F.3d at 672. That the 

Supreme Court once denied certiorari in a similar Appointments Clause case adds nothing 

because such decisions carry no precedential value. See Teague v. Lane, 489 U.S. 288, 296 

(1989). All in all, Island Creek forfeited this Appointments Clause challenge, and we see no 

reasoned basis for forgiving the forfeiture. 

III.

That brings us to the merits. To qualify for benefits under the Black Lung Benefits Act, a 

miner must establish four facts. Fact one: The miner has pneumoconiosis. Fact two: The 

disease arose “out of coal mine employment.” Fact three: The miner is “totally disabled.” Fact 

four: The “pneumoconiosis contributes to the total disability.” 20 C.F.R. § 725.202(d)(2). 

Administrative regulations and case law guide the process further. If the claimant lacks 

sufficient evidence of pneumoconiosis, the administrative law judge may presume he suffers 

from the disease if he worked for 15 years at a qualifying coaling mine and suffers “a totally 
No. 18-3147 Island Creek Coal Co. v. Wilkerson et al. Page 5

disabling respiratory or pulmonary impairment.” Id. § 718.305; see 30 U.S.C. § 921(c)(4); 

Brandywine Explosives & Supply v. Dir., Office of Workers’ Comp. Programs, 790 F.3d 657, 

662 (6th Cir. 2015). A miner has a totally disabling impairment if he cannot perform his “usual 

coal mine work” and cannot engage in gainful employment “requiring the skills or abilities 

comparable to those of any employment in a mine” where he previously worked. 20 C.F.R. 

§ 718.204(b)(1). Once a miner establishes a presumptive entitlement to benefits, the employer 

may rebut the presumption by showing that the miner does not have pneumoconiosis or that his 

impairment did not arise out of employment at a coal mine. See 30 U.S.C. § 921(c)(4). 

The Benefits Review Board examines the administrative law judge’s factual findings for 

substantial evidence. Although we examine the Board’s decision with fresh eyes, that requires 

us to ensure only that the administrative law judge relied on substantial evidence. See Greene v. 

King James Coal Min., Inc., 575 F.3d 628, 633 (6th Cir. 2009). 

Judge McGrath’s reasoned, 40-page opinion passes this test. Wilkerson worked for more 

than 15 years at a qualifying mine, and substantial evidence showed that he suffered total 

disability due to a respiratory or pulmonary impairment. All of Wilkerson’s pulmonary function 

tests produced qualifying values and suggested that he was disabled, while none of the arterial 

blood gas studies produced qualifying results. Faced with the conflicting medical evidence, 

Judge McGrath turned to the four doctors who testified: Drs. Chavda, Baker, Selby, and Tuteur. 

See 20 C.F.R. § 718.204(b)(2)(iv). He credited testimony from Dr. Chavda, discounted the three 

others for legitimate reasons, and concluded that Wilkerson suffered from a disability. Then he 

reasonably concluded that Island Creek could not rebut the presumption that Wilkerson suffered 

from coal-mine-induced pneumoconiosis.

Island Creek trains its challenge to these conclusions on “the finding of total disability.” 

Pet. Br. 9. But each ground does not close the deal. 

Island Creek claims that Judge McGrath could not rely on Dr. Chavda’s testimony 

because, at the time of his deposition, Dr. Chavda had a result only from a 2012 pulmonary 

function test. In a 2014 test conducted by Dr. Tuteur, which Dr. Chavda knew nothing about, 

Wilkerson produced qualifying results before—but not after—taking a bronchodilator, a 
No. 18-3147 Island Creek Coal Co. v. Wilkerson et al. Page 6

medicine that helps with breathing. As Judge McGrath fairly observed, however, the postbronchodilator tests do not definitively resolve the question of disability, meaning that a contrary 

post-bronchodilator value would not automatically disprove Dr. Chavda. The judge also noted 

that three additional post-bronchodilator test results—two of which Dr. Chavda performed—

produced qualifying results, confirming Dr. Chavda’s earlier judgment. This reasonably explains 

why Judge McGrath determined that Dr. Chavda’s assessment still carried weight. Because 

Judge McGrath found the other doctors’ testimony to be unreliable, he followed the most 

credible medical testimony before him. Under substantial evidence review, he had no obligation 

to do anything more. See Greene, 575 F.3d at 633. 

Island Creek submits that Judge McGrath applied inconsistent standards because he 

discredited doctors for not incorporating the most recent test results but did not do the same for 

Dr. Chavda. But Dr. Chavda’s conclusion about Wilkerson’s disability tracked the newest 

available data, namely the most recent pulmonary function tests. Plus, Judge McGrath did not 

discount Dr. Tuteur for failing to incorporate test results that Dr. Tuteur didn’t have. He 

concluded that Dr. Tuteur failed to adequately explain why his own diagnosis of a “moderate 

obstructive pulmonary impairment alone does not prevent [Wilkerson] from performing his usual 

[job], including lifting 60-70 pounds daily.” Pet. App. 254. 

Island Creek faults Dr. Chavda for not relying on additional lung volume studies, another 

type of test that Dr. Tuteur and Dr. Selby performed. According to the company, Judge McGrath 

erred in not explaining why Dr. Chavda’s “failure to rely on lung volume testing” did not fatally 

undermine Dr. Chavda’s medical analysis. Pet. Br. 33. But, in fact, Judge McGrath explained 

why he could not rely on Dr. Tuteur and Dr. Selby, their lung volume studies notwithstanding, 

and he explained why he trusted Dr. Chavda. Because nothing required Dr. Chavda to do a lung 

volume test, Judge McGrath did not mention its absence. Faulting an administrative law judge 

for every silence would take us perilously close to allowing courts to reweigh the medical 

evidence on appeal, something we may not do. See Greene, 575 F.3d at 633.

Island Creek believes that Dr. Baker’s report contradicted Dr. Chavda. True or not, the 

point doesn’t matter. The test results that Dr. Baker relied on in his report were not in the 
No. 18-3147 Island Creek Coal Co. v. Wilkerson et al. Page 7

administrative record and, as a result, Judge McGrath chose not to credit Dr. Baker’s analysis, a 

ruling the company doesn’t contest.

Island Creek protests Judge McGrath’s reasons for discounting Dr. Tuteur and Dr. Selby. 

But Dr. Tuteur’s testimony suffered from inconsistencies, such as not explaining why a 

“moderate obstructive pulmonary impairment” would not prevent Wilkerson from lifting 70 

pounds. Pet. App. 254. It was for Judge McGrath, not us, to decide whether those 

inconsistencies undermined his medical analysis. See Greene, 575 F.3d at 633.

As for Dr. Selby, he didn’t “know what the federal guidelines are,” believed that an 

arterial blood gas study trumped pulmonary function tests, and didn’t know about the 

requirements of the claimant’s prior job. Pet. App. 140. Judge McGrath reasonably thought 

these admissions raised red flags and cited case law and Dr. Chavda’s testimony about the 

relevance of pulmonary function tests as support. See Tussey v. Island Creek Coal Co., 982 F.2d 

1036, 1040–41 (6th Cir. 1993), abrogated on other grounds by Eastover Min. Co. v. Williams, 

338 F.3d 501 (6th Cir. 2003); cf. Cent. Ohio Coal Co. v. Dir., Office of Workers’ Comp. 

Programs, 762 F.3d 483, 491 (6th Cir. 2014). We have no sound basis for rejecting these 

reasoned judgments. See Greene, 575 F.3d at 633.

For these reasons, we deny the petition for review.