                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                           FOR THE TENTH CIRCUIT                           October 23, 2019
                       _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 ENERGY WEST MINING COMPANY,

       Petitioner,

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

       Respondents.
                       _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before PHILLIPS, BALDOCK, and MORITZ, Circuit Judges.
                   _________________________________

      Energy West Mining Company (Energy West) petitions for review of a

decision of the United States Department of Labor’s Benefits Review Board (the

Board). Because Energy West fails to demonstrate the Board’s decision is a “final

order,” we dismiss the petition for lack of subject-matter jurisdiction. 33 U.S.C.

§ 921(c).


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
                                      Background

      Cecil Bristow sought benefits from Energy West under the Black Lung

Benefits Act (BLBA), 30 U.S.C. §§ 901–44. An Administrative Law Judge (ALJ)

held a hearing and denied Bristow’s claim, finding that although Bristow established

he had legal pneumoconiosis, he failed to demonstrate his legal pneumoconiosis

caused his total disability. Bristow then appealed to the Board. Bristow v. Emery

Mining Corp., BRB Nos. 17-0441 BLA and 17-0441 BLA-A, 2018 WL 7046666, at

*1 (Ben. Rev. Bd. Oct. 19, 2018). The Board affirmed the ALJ’s finding that Bristow

established he has legal pneumoconiosis. Id. at *4. But it concluded the ALJ erred in

finding that Bristow failed to demonstrate his legal pneumoconiosis caused his total

disability. Id. at *5. Thus, the Board reversed the ALJ’s order and remanded to the

ALJ “for entry of an award of benefits.” Id. at *6.

      Energy West then petitioned this court for review of the Board’s decision. But

upon review of the docketing statement, we sua sponte ordered Energy West to file a

memorandum brief addressing, inter alia, whether the Board’s decision is final for

jurisdictional purposes. See § 921(c) (“Any person adversely affected or aggrieved by

a final order of the Board may obtain a review of that order in the United States court

of appeals for the circuit in which the injury occurred . . . .” (emphasis added)).

Energy West and the Director of the Office of Workers’ Compensation Programs in

the United States Department of Labor (the Director) both filed supplemental briefs

addressing the jurisdictional question. We address their arguments below.



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                                        Analysis

       As the party seeking review of the Board’s decision, Energy West “bears the

burden of establishing our subject-matter jurisdiction.” United States v. Ceballos-

Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004). To carry that burden here, Energy

West must demonstrate, among other things, that (1) the Board’s decision constitutes

a “final order” or (2) some exception to the final-order rule applies. § 921(c); see also

Bratzah Corp. v. Dir., Office of Workers’ Comp. Programs, No. 90-9565, 1991 WL

213444, at *1 (10th Cir. 1991) (unpublished) (noting that although “we normally only

have jurisdiction to review final orders of the Board,” sometimes “justice requires

immediate review” of nonfinal orders (citing Gillespie v. United States Steel Corp.,

379 U.S. 148 (1964))).

       In this context, an order is “final” if it leaves the ALJ with nothing to do but

execute the Board’s decision. See W. Energy All. v. Salazar, 709 F.3d 1040, 1047

(10th Cir. 2013) (discussing 28 U.S.C. § 1291’s finality requirement); Newpark

Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399, 400 (5th Cir. 1984) (en

banc) (“The required finality for reviewability of an order of the Board [under

§ 921(c)] follows . . . the contours of the finality-requirement under [§ 1291] . . . .”).

Notably, remand orders like the type at issue here often require ALJs to make

additional findings of fact or conclusions of law upon remand. See, e.g., Freeman

United Coal Mining Co. v. Dir., Office of Workers’ Comp. Programs, 721 F.2d 629,

631 (7th Cir. 1983). And because these findings and conclusions may give rise to

additional appeals, the Board’s remand orders generally “are not considered final” for

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purposes of § 921(c). Bratzah Corp., 1991 WL 213444, at *1; see also W. Energy

All., 709 F.3d at 1051 (explaining that § 1291’s finality requirement “is designed to

avoid piecemeal trial and appellate litigation and the delays and costs of multiple

appeals upon both parties and courts” (quoting Newpark, 723 F.2d at 401)).

      This case presents no exception to our general rule. As the Director points out,

the Board’s decision does not direct the ALJ to award a specific dollar amount to

Bristow on remand. Instead, the ALJ must calculate the total amount of the award by

determining the date upon which benefits were payable—a determination that will

require the ALJ to determine either (1) the date upon which Bristow became totally

disabled or (2) the date upon which he filed his claim for benefits. See 20 C.F.R.

§ 725.503(b). And determinations of this type are “likely to generate appealable

issues that might be taken to this court,” thus creating “a real danger of multiple

appeals if the present order is appealable.” Freeman, 721 F.2d at 630–32 (holding

that Board’s decision remanding case to ALJ “for determination of the benefits to

which the claimant was entitled” under BLBA was not final order under § 921(c)

because it would require ALJ “to determine the date from which benefits [were]

payable to the claimant” under § 725.503(b)).

      Energy West asserts that no such “danger” exists here. Id. at 631. It insists that

unlike the situation in Freeman—where (1) the ALJ apparently made the requisite

§ 725.503(b) calculation after the Board remanded but before the Seventh Circuit

issued its decision and (2) the respondent had already appealed the ALJ’s

§ 725.503(b) calculation to the Board—there is no proof that the ALJ’s finding on

                                           4
remand in this case will spark such disagreement or yield additional petitions. See

721 F.2d at 631. In support, Energy West suggests that the ALJ’s finding on remand

is unlikely to involve a contested calculation because “in the vast majority of cases,

ALJs use the month during which the claim was filed as the benefits onset date.”

Aplt. Supp. Br. 3.

      But Energy West neither identifies any legal authority that might support this

generalization nor identifies any facts in the record that might demonstrate it holds

true under the specific facts of this case. Cf. Fed. R. App. P. 28(a)(8)(A) (requiring

appellant’s brief to contain appellant’s “contentions and the reasons for them, with

citations to the authorities and parts of the record on which the appellant relies”).

Further, even assuming the Board’s remand order is not certain to yield additional

petitions, “the final-judgment rule . . . is designed to avert” the mere “prospect of

successive appeals in the same case.” Freeman, 721 F.2d at 631–32 (emphasis added)

(holding that Board’s order was not final because it was “quite possible” that remand

would generate “a subsequent petition for review challenging the amount of benefits

awarded” on remand); see also W. Energy All., 709 F.3d at 1051 (noting that final-

judgment rule “forestall[s] the delay, harassment, expense, and duplication that could

result from multiple or ill-timed appeals” (emphasis added) (quoting Boughton v.

Cotter Corp., 10 F.3d 746, 752 (10th Cir. 1993)). And because Energy West has

failed to demonstrate that the ALJ’s task on remand involves “a merely mechanical

computation” or that the “outcome” of the remand is “foreordained,” we conclude

such a “prospect” exists here. Freeman, 721 F.2d at 631; see also Ceballos-Martinez,

                                            5
387 F.3d at 1143 (requiring party seeking to invoke this court’s jurisdiction to

demonstrate that such jurisdiction exists). Thus, we conclude the Board’s decision is

not a final order. See Freeman, 721 F.2d at 631–32.

      Alternatively, even assuming the Board’s decision is not final, Energy West

asks us to invoke the practical-finality doctrine. See New Mexico v. Trujillo, 813 F.3d

1308, 1317 (10th Cir. 2016) (describing practical-finality doctrine as “an exception to

the formal finality requirement of § 1291” that applies when “the danger of injustice

by delaying appellate review outweighs the inconvenience and costs of piecemeal

review” (quoting United States v. Copar Pumice Co., 714 F.3d 1197, 1209 (10th Cir.

2013)). But “[w]e have been leery to apply th[is] doctrine.” Id. at 1317. And Energy

West does not identify any “truly unique” aspects of this case that would justify

applying it here. Id. at 1318. Accordingly, we decline to do so. See W. Energy All.,

709 F.3d at 1051 (refusing to apply practical-finality doctrine where appellants would

“have later opportunities to raise their arguments on appeal” and appeal was “not

urgent”).

                                     Conclusion

      Because Energy West fails to demonstrate we have jurisdiction to review the

Board’s decision, we dismiss its petition for review.

                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge



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