                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0235n.06

                                           No. 18-3926


                          UNITED STATES COURT OF APPEALS                                FILED
                               FOR THE SIXTH CIRCUIT                               Apr 30, 2020
                                                                              DEBORAH S. HUNT, Clerk
 ELKHORN EAGLE MINING CO.,                               )
                                                         )
        Plaintiff-Appellee,
                                                         )       ON PETITION FOR REVIEW
        v.                                               )       OF   ORDER    OF    THE
                                                         )
                                                                 BENEFITS REVIEW BOARD,
 ATLANTIA HIGGINS, et al.,                               )
                                                         )       UNITED           STATES
        Defendant-Appellant.                             )       DEPARTMENT OF LABOR
                                                         )


BEFORE:        BATCHELDER, DONALD, and READLER, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. Elkhorn Eagle Mining Company (“Elkhorn”)

petitions this court to review the Benefit Review Board’s (“Board”) order finding that Elkhorn

failed to raise timely its Appointments Clause challenge before the Board. Since the Supreme

Court’s June 2018 decision in Lucia v. SEC, 138 S. Ct. 2044 (2018), we have addressed several

variations of this timeliness issue, including one with a nearly identical procedural scenario.

Because Elkhorn failed to raise its Appointments Clause challenge in its opening brief before the

Board, we AFFIRM.

                                                 I.

       The parties agree that Edward Higgins began working for Elkhorn on July 23, 1997, and

that his final day of work was August 3, 1998. The heart of the dispute is whether Higgins worked

for at least one year under the Black Lung Benefits Act (“BLBA”). Under the BLBA, the mine

operator that last employed the claimant for at least a year is the employer that is held liable for

the miner’s damages. 20 C.F.R. §§ 725.494, 725.495(a). This means that Elkhorn would be liable
No. 18-3926, Elkhorn Eagle v. Higgins


for Higgins’s claims if Elkhorn was the last operator that employed Higgins for at least one year.

Elkhorn argues that because Higgins missed over a month of employment due to an injury in the

spring of 1998, he was not on Elkhorn’s payroll for 365 days and therefore failed to meet the one-

year requirement. The Board and the ALJ disagreed, holding that Elkhorn misunderstands the

regulatory scheme and that Higgins did meet the one-year requirement under the BLBA.

         Summarized briefly, there are four ways a miner can accumulate one year’s worth of

service time: (1) if the miner was employed for 365 calendar days and worked 125 days in or

around the coal mine, the miner has “clearly established” one year’s service time; (2) if the miner

worked at least 125 days in or around the mine, the miner is presumed to have met the one-year

requirement “for the purposes of the [BLBA]”; (3) if the miner was employed for one calendar

year or partial periods totaling at least 365 days, the miner is “presumed” to have met the 125-day

working day requirement, unless there is evidence to the contrary; or (4) if a miner worked for less

than one year, an adjudicator can use the miner’s yearly income and the average daily earnings of

coal mine industry employees to calculate if the miner worked at least 125 days in or around the

mine. 20 C.F.R. § 725.101(a)(32)(i)-(iii); Shepherd v. Incoal, Inc., 915 F.3d 392, 401-02 (6th Cir.

2019).

         A claim under the BLBA follows a winding path that includes four sequential stages of

review: (1) an Office of Workers’ Compensation Programs (“OWCP”) district director initially

reviews the claim and issues a Proposed Decision; (2) the miner or the operator may then have a

Department of Labor Administrative Law Judge (“ALJ”) review the decision de novo; (3) any

party of interest may appeal a “substantial question of law or fact” to the Benefits Review Board;

and (4) finally, an aggrieved party may petition this court to review the Board’s legal conclusions

de novo and factual findings under the substantial-evidence standard. 33 U.S.C. § 921(c);



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No. 18-3926, Elkhorn Eagle v. Higgins


20 C.F.R. §§ 725 et seq., 801 et seq.; Zurich Am. Ins. Group v. Duncan, 889 F.3d 293, 299 (6th

Cir. 2018).

        After first filing for BLBA benefits in 2002,1 Higgins again filed a claim on May 3, 2013.

Higgins v. Elkhorn Eagle Mining Co., No. 17-0475 BLA, 2018 WL 3727423, at *1, n.1 (Ben. Rev.

Bd. July 30, 2018). On July 28, 2014, an OWCP district director issued a Proposed Decision and

Order finding Elkhorn liable for Higgins’s claims. Elkhorn requested a de novo hearing before an

ALJ, which was held two years later, on July 11, 2016. The ALJ issued her decision on May 8,

2017, finding that Elkhorn was liable for Higgins’s claim. Specifically, the ALJ determined that

Higgins worked at least 260 days in or around the mine, and thus found that Higgins met the one-

year requirement under the second provision of the BLBA (i.e., by working at least 125 days in or

around the coal mine). Id. at *3. On June 6, 2017, Elkhorn timely appealed the ALJ’s decision to

the Board. Elkhorn submitted its opening brief to the Board on July 18, 2017, but it did not raise

the Appointments Clause issue at that time. Id. at *1, n.3. The OWCP district director filed its

briefs to the Board on January 16, 2018, and Elkhorn did not file a reply brief.

        While both parties were waiting for the Board’s final decision, the Supreme Court handed

down Lucia v. SEC on June 21, 2018. The case held that Securities & Exchange Commission

(“SEC”) ALJs must be appointed by the Head of a Department in accordance with the

Appointments Clause of the Constitution. 138 S. Ct. at 2049 (citing Art. II, § 2, cl. 2). Seventeen

days later, on July 9, 2018, Elkhorn moved to remand, relying on this new Supreme Court decision,

and raised the Appointments Clause issue for the first time. Higgins, No. 17-0475 BLA at *1, n.3.

But this was nearly a year after Elkhorn submitted its opening brief to the Board. On July 30th,

the Board issued its decision finding for Higgins on the merits and rejecting Elkhorn’s


1
 The District Director denied the claim on April 18, 2003, “by reason of abandonment.” Higgins v. Elkhorn Eagle
Mining Co., No. 17-0475 BLA, 2018 WL 3727423, at *1, n.1 (Ben. Rev. Bd. July 30, 2018).

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No. 18-3926, Elkhorn Eagle v. Higgins


Appointments Clause arguments as untimely. Id. at *5. Elkhorn now petitions this court to review

the Board’s decision.

                                                         II.

           As a general matter, the first question is whether parties must exhaust issues before an

agency prior to bringing them to court. See Island Creek Coal Co. v. Bryan, 937 F.3d 738, 743

(6th Cir. 2019). Courts have held there must be issue exhaustion before the agency: (1) whenever

the statute requires it, (2) whenever a regulation requires it, or (3) when courts hold there is an

implied exhaustion rule. Id. at 746-50. The BLBA falls under the second category: 20 C.F.R.

§ 802.211(a) requires issue exhaustion before the Benefits Review Board. Id. at 749.

           The next—and most important—question is whether Elkhorn exhausted its Appointments

Clause challenge by raising it for the first time in a motion for remand before the Board’s decision.

Elkhorn argues that (1) it timely raised the issue, and (2) even if its challenge was untimely, the

challenge should fall under an exception for facial constitutional challenges or for extraordinary

circumstances. We hold that the Elkhorn did not timely raise its Appointments Clause challenge

and that it does not fall under either of the two exceptions Elkhorn attempts to invoke.2

           A. Elkhorn’s Appointments Clause Challenge was Untimely

           Since the Supreme Court handed down Lucia v. SEC in June 2018, this court has repeatedly

had to address whether Appointments Clause challenges were timely raised. First, in July 2018,

we held that an as-applied constitutional challenge based on the Appointments Clause was

forfeited when the party raised the issue for the first time before the Court of Appeals, not before

the agency. Jones Brothers, Inc. v. Sec’y of Labor, 898 F.3d 669, 677 (6th Cir. 2018). Next, in

December 2018, we held that a party forfeited its challenge when it first raised the issue in its reply



2
    Because Elkhorn’s challenge was untimely, we do not address the merits of its Appointments Clause claim.

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No. 18-3926, Elkhorn Eagle v. Higgins


brief after failing to raise the issue in its opening brief before this court. Island Creek Coal Co. v.

Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018). Then, in September 2019, we held that a claim

raised for the first time in a motion for reconsideration after the Benefits Review Board had issued

its decision was also brought too late in the review process. Bryan, 937 F.3d at 746, 751. Finally,

in January 2020, we held that a claim first raised in a motion to file a supplemental brief before

the Board’s decision was also untimely. Island Creek Coal Co. v. Young, 947 F.3d 399, 402-03

(6th Cir. 2020). Now, we must address whether a party properly exhausted its constitutional claim

before the Board by filing a motion to remand before the Board issued its decision, but after the

briefs had been submitted. Elkhorn raised its Appointments Clause argument for the first time in

a motion for remand prior to the Board’s decision, but nearly twelve months after its opening brief

and six months after the OWCP director’s response brief had been filed.

         The agency argues that, under the Board’s precedent, Elkhorn should have first raised the

issue in its opening brief and cites no fewer than a dozen cases supporting its argument.3


3
   These cases were decided both before and after Lucia. Decisions issued before Lucia include: Pauley v.
Consolidation Coal Co., No. 17-0554 BLA, at n.1 (Ben. Rev. Bd. Apr. 25, 2018) (denying abeyance motion;
“[b]ecause employer did not raise the Appointments Clause issue in its opening brief, it waived the issue”); Eversole
v. Shamrock Coal Co., No. 17-0629 BLA (Ben. Rev. Bd. Apr. 24, 2018) (same); Ravalli v. Pasha Maritime Servs.,
No. 01-0572, 36 Ben. Rev. Bd. Serv. 91 (Sept. 12, 2002) (parties are barred from raising issues for the first time in a
motion for reconsideration); Williams v. Humphreys Enters., Inc., Nos. 88-0111 BLA, 88-1437, BLA,19 Black Lung
Rep. (MB) 1-111, 1-114, 1995 WL 931607, at *1, n.1 (Ben. Rev. Bd. Aug. 31, 1995) (declining to consider new issues
not raised “before the administrative law judge or the Board”); Senick v. Keystone Coal Mining Co., No. 80-1543
BLA, 5 Black Lung Rep. (MB) 1-395, 1-398 (Ben. Rev. Bd. Dec. 16, 1982) (stating that the Board “will not normally
address new arguments raised in reply briefs” and declining to so); Caldwell v. North American Coal Corp., No. 80-
350 BLA, 4 Black Lung Rep. (MB) 1-135, 1-138 (1981) (stating that the Board’s “practice accords with the treatment
of reply briefs in the United States Courts of Appeals” and that “[b]ecause this argument was raised for the first time
in claimant’s reply brief, we do not address it”).
          Decisions issued after Lucia include: Tackett v. IGC Knott County, No. 18-0033 BLA, 2019 WL 1075364,
at *1, n.2 (Ben. Rev. Bd. Feb. 26, 2019) (denying motion to remand; “employer waived this argument by failing to
raise it when the case was initially before the Board”); Haynes v. Good Coal Co., Nos. 18-0021 BLA; 18-0023 BLA,
2019 WL 523769, at *2, n.5 (Ben. Rev. Bd. Jan. 18, 2019) (denying motion to remand; “[b]ecause employer first
raised its Appointments Clause argument seven months after filing its opening brief in support of its petition for
review, employer forfeited the issue”); Young v. Island Creek Coal Co., No. 18-0064 BLA, 2018 WL 7046801, at *1,
n.3 (Ben. Rev. Bd. Dec. 17, 2018) (denying motion to permit supplemental briefing; “[b]ecause employer did not raise
the Appointments Clause issue in its opening brief, it waived the issue”); Eversole v. Shamrock Coal Co., No. 17-
0629 BLA, 2018 WL 7046745, at *1, n.3 (Ben. Rev. Bd. Dec. 12, 2018) (denying request for new hearing; “[b]ecause
employer did not raise the Appointments Clause issue in its opening brief, it forfeited the issue”); McIntyre v. IGC

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No. 18-3926, Elkhorn Eagle v. Higgins


The agency claims that issues first raised after the opening brief are forfeited and that all claims

must have been raised before “briefing had closed.”4 But Elkhorn argues that because this claim

did not exist at the time of its opening brief (i.e., pre-Lucia), it did timely raise the issue in July

2018 through its motion for remand. Elkhorn relies on the regulation and interprets it to require

only that issues be raised before the Board, not necessarily in the party’s opening brief. Based on

the precedents of both this court and the Board, we hold that Elkhorn’s claim was not timely raised.

         The relevant regulation, 20 C.F.R. § 802.211(b), requires that a party’s petition for review

be “accompanied by a supporting brief, memorandum of law or other statement” and must

“specifically [state] the issues to be considered by the Board.” In Young, a panel of this court

agreed with the Board’s interpretation in a published opinion, finding that “the Board requires that

substantive challenges to an ALJ’s determination be raised in a party’s opening brief filed with the

Board.” Young, 947 F.3d at 402 (citing 20 C.F.R. § 802.211(a)).

         The Board’s precedent also supports the conclusion that a party forfeits an issue when it

raises a challenge for the first time several months after the party filed its opening brief. See, e.g.,

Pauley v. Consol. Coal Co., No. 17-0554 BLA, at n.1 (2018) (“Because employer did not raise the

Appointments Clause issue in its opening brief, it waived the issue”); Caldwell v. North American



Knott Cty, LLC, No. 17-0583 BLA, 2018 WL 7046700, at *1, n.1 (Ben. Rev. Bd. Nov. 26, 2018) (denying abeyance
motion “because employer failed to raise the Appointments Clause argument in its petition for review and supporting
brief”); Beams v. Cain & Son, Inc., No. 18-0051 BLA, 2018 WL 7046795, at *1, n.5 (Ben. Rev. Bd. Nov. 26, 2018)
(denying motion to remand; “[b]ecause employer first raised its Appointments Clause argument seven months after
filing its Memorandum in Support of Petition for Review, employer forfeited the issue”); Elkins v. Dickenson-Russell
Coal Co., No. 17-0461 BLA, 2018 WL 3727420, at *1, n.3 (Ben. Rev. Bd. July 5, 2018) (denying abeyance motion;
“[b]ecause employer did not raise the Appointments Clause issue in its opening brief, it waived the issue”); Napier v.
Star Fire Coals, Inc., No. 17-0149 BLA (Ben. Rev. Bd. July 5, 2018) (denying motion for reconsideration; “employer
waived this argument by failing to raise it in its opening brief”).
4
  In a footnote in its brief, the agency hints that raising an issuing for the first time before the Board may even be too
late, instead suggesting that all issues must first be raised before the ALJ in order to not be forfeited. However, the
agency admits the “Court need not determine” that question at this time, and we decline to do so because we do not
address any arguments outside of the scope of the question presented to us. Brown v. Comm’r of Soc. Sec., 602 F.
App’x 328, 332 (6th Cir. 2015) (“It is the general rule, of course, that a federal appellate court does not consider an
issue not passed upon below.”) (citing Singleton v. Wulff, 428 U.S. 106, 120 (1976)).

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No. 18-3926, Elkhorn Eagle v. Higgins


Coal Corp., No. 80-350 BLA, 4 Black Lung Rep. (MB) 1-135, 1-138 (1981) (“Because this

argument was raised for the first time in claimant’s reply brief, we do not address it.”); cf. Noble

v. Cumberland River Coal Co., No. 18-0419 BLA, at 3-4 (Ben. Rev. Bd. Feb. 27, 2019) (granting

a motion for remand for an Appointments Clause challenge because it was timely raised).

         We recently affirmed that a party must “raise an issue with an agency ‘at the time

appropriate under its practice’ in order to preserve the issue for judicial review.” Bryan, 937 F.3d

at 750 (citing United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 37 (1952)). The Board has

consistently held that parties forfeit an argument when they fail to raise it in their opening brief.

This court recognized that in Young, affirming that claims before the Board must be raised in a

party’s opening brief. Young, 947 F.3d at 402. Consequently, we hold that Elkhorn forfeited its

Appointments Clause challenge when it failed to raise the issue in its opening brief before the

Board.

         B. Elkhorn’s Untimely Challenge Does Not Fall Under any Exception

         Elkhorn argues in the alternative that even if its Appointments Clause challenge is

untimely, the court should still hear its claim under an exception for facial constitutional challenges

or for extraordinary circumstances. In Bryan, we concluded that we “need not decide what

exceptions (if any) exist” when it comes the BLBA, and we need not address that issue in this case

either. Bryan, 937 F.3d at 752. Like the petitioners in Bryan, Elkhorn relies on the Jones Brothers

case for both exceptions. And like the petitioners in Bryan, Elkhorn fails to establish either

exception: Elkhorn failed to raise a facial constitutional challenge (rather, it raised an as-applied

challenge) and Elkhorn did not identify any extraordinary circumstances.




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No. 18-3926, Elkhorn Eagle v. Higgins


               1. Exception for Facial Constitutional Challenges

       In Jones Brothers, we held that the Federal Mine Safety and Health Review Commission

(“Mine Commission”) could not hear a facial constitutional challenge because an “administrative

agency may not invalidate the statute from which it derives its existence and that it is charged with

implementing.” Jones Brothers, 898 F.3d at 673. We concluded that the Mine Commission, “like

all administrative agencies, has no authority to entertain a facial constitutional challenge to the

validity of a law.” Id. However, we later held in Bryan that the Benefits Review Board “may well

be able to consider facial claims—a fact that would eliminate this exception’s raison d’être.”

Bryan, 937 F.3d at 753. We found that because the “Board serves the same functions that district

courts performed before its 1972 creation,” it appears that the Board could review constitutional

challenges as any district court could. Id. (citing Gibas v. Saginaw Mining Co., 748 F.2d 1112,

1118 (6th Cir. 1984) (“Therefore, it appears that Congress intended to vest in the Board the same

judicial power to rule on substantive legal questions as was possessed by the district courts.”)).

       In Bryan, we ultimately did not decide whether the Board may hear facial constitutional

challenges because the petitioner failed to present one. Id. The same is true here. Elkhorn does

not actually challenge how the ALJ was appointed under the BLBA statute. Rather, Elkhorn

challenges how the Department of Labor chose to apply the BLBA statute in having the ALJ

appointed by someone other than the Secretary of Labor. Indeed, it is clear the BLBA statute could

be applied constitutionally given that all Department of Labor ALJs (both new and existing) since

December 2017 have been appointed by the Secretary of Labor as a Department Head in

accordance with the Constitution’s Appointments Clause. Id.




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No. 18-3926, Elkhorn Eagle v. Higgins


               2. Exception for Extraordinary Circumstances

       In Jones Brothers, the petitioner successfully argued for an extraordinary-circumstances

exception to its forfeited Appointments Clause challenge. We held that the “absence of legal

authority” on the issue fell under the Mine Act’s statutory “extraordinary circumstances”

exception. Jones Brothers, 898 F.3d at 677; 30 U.S.C. § 816(a)(1). However, neither the BLBA

nor its implementing regulations “contain similar language” to create such an exception. Bryan,

937 F.3d at 753.

       Notwithstanding the lack of a statutory basis for an extraordinary-circumstances exception,

Elkhorn fails to identify any extraordinary circumstances that would justify this alleged exception.

Rather, Elkhorn says we should excuse its forfeited issue “for the same reasons accepted by the

Court in Jones Brothers.” However, unlike in Jones Brothers with the Mine Commission, there

has been “abundant authority…that showed that the Board could hear the claim.” Bryan, 937 F.3d

at 754 (citing Gibas, 748 F.2d at 1118; Duck v. Fluid Crane & Constr. Co., No. 02-0335, 2002

WL 32069335, at *2 n.4 (Ben. Rev. Bd. Oct. 22, 2002)). “Thus, the absence of authority that

Jones Brothers found extraordinary is itself absent here.” Bryan, 937 F.3d at 754.

       Even though Elkhorn submitted its opening brief months before Lucia was decided,

Elkhorn still could have raised its Appointments Clause challenge in its opening brief. As we have

repeatedly held, “No precedent prevented [parties] from bringing the constitutional claim before

then. Lucia itself noted that existing case law ‘says everything necessary to decide this case.’”

Wilkerson, 910 F.3d at 257 (quoting Lucia, 138 S. Ct. at 2053). Undoubtedly, Lucia’s holding

would have strengthened Elkhorn’s Appointments Clause argument, but Lucia was not a necessary

predicate for Elkhorn’s raising such a challenge eleven months earlier; indeed, other litigants had

pressed the Appointments Clause issue before Lucia. Id. (citing cases). Consequently, Lucia does



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No. 18-3926, Elkhorn Eagle v. Higgins


not warrant an extraordinary circumstances exception (if such an exception does exist for the

BLBA) and Elkhorn fails to identify any other reasons for such an exception.

       To summarize, it is not clear whether the BLBA has exceptions for facial constitutional

challenges or extraordinary circumstances, but even if the statute does, Elkhorn’s failure to raise a

facial challenge or identify any extraordinary circumstances dooms both arguments. Because

Elkhorn failed to timely raise its Appointments Clause challenge before the Board and because

Elkhorn’s argument does not fall under either purported exception, we hold that Elkhorn has

forfeited its Appointments Clause challenge and we cannot reach the merits of the claim.

                                                III.

       Notwithstanding our holding regarding Elkhorn’s Appointments Clause challenge, we still

must decide whether the Board correctly held that Elkhorn was the responsible operator for

Higgins’s claims. This court reviews the Board’s legal conclusions de novo and its factual findings

under the substantial-evidence standard. Duncan, 889 F.3d at 299. “Substantial evidence means

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Id. (quoting Big Branch Res., Inc. v. Ogle, 737 F.3d 1063, 1068-69 (6th Cir. 2013)).

        In order for a miner to claim benefits under the BLBA, he must show that he is “totally

disabled.” 20 C.F.R. § 725.202(d)(2)(iii). And the last coal mine that employed Higgins for at

least one year is the responsible operator and is liable for Higgins’s damages. § 725.495(a)(1). The

parties do not dispute whether Higgins was totally disabled—he was tragically paralyzed from the

waist down in a workplace injury. Nor do the parties dispute the dates Higgins began and ended

his employment with Elkhorn.        Rather, they dispute only whether Higgins’s service time

constituted one year under BLBA regulations.




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No. 18-3926, Elkhorn Eagle v. Higgins


       The BLBA regulation defining “year,” as recently interpreted by this circuit, “sets out four

alternate ways in which a claimant can establish requisite periods of coal mine employment.”

Shepherd, 915 F.3d at 401-02. First, if the miner is employed for 365 calendar days and worked

125 days in or around the coal mine, then the miner is considered to have “clearly established” one

year’s service time. Id.; 20 C.F.R. § 725.101(a)(32). Second, if the miner worked at least 125

days in or around the coal mine, “then the miner has worked one year in coal mine employment

for all purposes under the [BLBA].” § 725.101(a)(32)(i). Third, if the miner has been employed

for one calendar year or partial periods totaling at least 365 days, then “it must be presumed” that

the miner has met the 125-day working day requirement, unless there is evidence to the contrary.

§ 725.101(a)(32)(ii). Fourth and finally, if a miner worked for less than one year (or it remains

unclear when the miner began and finished working at the mine), an adjudicator can use the

miner’s yearly income and divide it by “the coal mine industry's average daily earnings for that

year, as reported by the Bureau of Labor Statistics (BLS),” to estimate the number of days the

miner worked. § 725.101(a)(32)(iii). If it is determined that the miner worked at least 125 days,

then the miner is considered to have worked one year in coal-mine employment for the purposes

of the BLBA. § 725.101(a)(32)(i).

       Higgins began work at Elkhorn on July 23, 1997, and his final day of work was August 3,

1998. The parties dispute whether Higgins was on the payroll during the spring of 1998 after

suffering an injury and how long Higgins was off the payroll. Elkhorn argues that Higgins was

off its payroll from February 28, 1998, to March 30, 1998. The ALJ found there was no evidence

Higgins was taken off the payroll, though Elkhorn challenged whether this was sufficient to

conclude Higgins was on the payroll. Higgins, No. 17-0475, at *2-3; but see Kentland Elkhorn




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No. 18-3926, Elkhorn Eagle v. Higgins


Coal Corp. v. Hall, 287 F.3d 555, 563 (6th Cir. 2002) (“Speculation as to whether [the miner]

remained on the payroll is not evidence that he was on the payroll.”).

        However, Elkhorn’s dispute over the payroll ultimately misses the mark as the ALJ held

the correct standard is whether “the claimant continued to have an employment relationship” with

the employer. Higgins, No. 17-0475 at *2; see BGL Mining Co. v. Cash, 165 F.3d 26 (Table),

1998 WL 639171, at *3 (6th Cir. 1998) (“[W]e do not believe that the issue of whether the miner

received wages while on sick leave is the determinative factor. Rather, the determinative factor is

whether an employment relationship continued to exist while the miner was on sick leave.”). Sixth

Circuit precedent supports the ALJ’s standard and Elkhorn has failed to provide any evidence that

Higgins’s relationship with Elkhorn ended prior to August 3, 1998. Consequently, the ALJ’s

conclusion that Higgins met the one-year requirement by having 365 calendar days of employment

is correct.

        Regardless, to the extent there is any dispute over whether Higgins was employed by

Elkhorn for 365 days, this issue is immaterial as Higgins’s employment clearly meets the one-year

requirement under the second alternative available as described by § 725.101(a)(32)(ii). The ALJ

found that he had worked at least 260 days in or around the mine, well above § 725.101(a)(32)(ii)’s

125-day requirement. Higgins, No. 17-0475 at *3. This court reviews the ALJ’s factual finding

that Higgins worked at least 125 days under the standard of substantial evidence. Zurich, 889 F.3d

at 299. “Substantial evidence means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Id. (quoting Kolesar v. Youghiogheny & Ohio Coal Co., 760

F.2d 728, 729 (6th Cir. 1985)). Based on Higgins’s schedule of working five days per week and

two Saturdays per month, the ALJ concluded that Higgins would have had at least 260 days of




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No. 18-3926, Elkhorn Eagle v. Higgins


actual exposure, even under Elkhorn’s account of time Higgins missed due to other injuries.

Higgins, No. 17-0475 at *3.

       Notably, Elkhorn has not challenged this calculation of 125 days or otherwise addressed

whether this factual finding by the ALJ is supported by substantial evidence. Instead, Elkhorn

focuses on contesting which dates Higgins was or was not on the payroll and whether Higgins

should be considered “employed” during the time he missed for injury. But this argument is beside

the point and does not contest the factual finding that matters, i.e. whether Higgins worked at least

125 days in or around the mine.

       Even if Elkhorn had contested the ALJ’s conclusion that Higgins had worked at least 125

days, we find the ALJ’s factual findings supported by substantial evidence. The evidence upon

which the ALJ relied, including Higgins’s undisputed start and end dates and Higgins’s testimony

of his work schedule, is sufficient for a “reasonable mind” to accept as adequate and support the

ALJ’s conclusion that Higgins worked at least 125 days in or around the mine. And because the

record demonstrates that Higgins worked at least 125 days in or around the mine, the ALJ’s and

the Board’s legal conclusions are also correct. The relevant regulation, § 725.101(a)(32)(ii),

unambiguously explains that a miner can establish one year of service time by working 125 days,

and this interpretation was recently affirmed by this court in Shepherd. Given that the factual

findings are not contested and the ALJ’s legal conclusions are supported by both federal regulation

and precedent, Elkhorn’s challenge is without merit.

                                                IV.

       For the foregoing reasons, we AFFIRM the order of the Benefits Review Board.




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