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                                                           [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 15-13584
                       Non-Argument Calendar
                     ________________________

                      Agency No. 14-0428 BLA



DRUMMOND COMPANY, INC.,

                                             Petitioner,

versus

DIRECTOR, OWCP,
UNITED STATES DEPARTMENT OF LABOR,
BENEFITS REVIEW BOARD,
BARBARA A. ALLRED,
o/b/o and Widow of James K. Allred,

                                             Respondents.

                     ________________________

                Petition for Review of a Decision of the
                         Benefits Review Board
                      ________________________

                            (May 25, 2016)
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Before TJOFLAT, WILLIAM PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Drummond Co., Inc. (“Drummond”) seeks review of a Benefits Review

Board’s (the “BRB”) decision affirming an Administrative Law Judge (“ALJ”)

order that granted benefits to a deceased coal mine worker, James Allred, and his

surviving spouse, Barbara Allred, under the Black Lung Benefits Act (the

“BLBA”), 30 U.S.C. §§ 901–944. Drummond raises only one argument in this

appeal—that the ALJ applied the wrong legal test when it determined that

Drummond failed to rebut a statutory presumption that James Allred’s respiratory

disability was due to pneumoconiosis, commonly known as “black lung disease.”

Drummond failed to raise this argument before the BRB, thereby failing to exhaust

the issue before the appropriate administrative agency. We therefore deny

Drummond’s petition.

                                        I.

      James Allred was born in 1942. He worked as a coalminer for Drummond

in Alabama from around 1976 until 1998, a span of over twenty-two years. Allred

stopped working in the coal mines in 1998 after suffering a neck injury. According

to his wife Barbara, Allred began having difficulty breathing in the early 1990s,

which became progressively worse until his death in August 2010. Allred began

using supplemental oxygen around 2006 and was hospitalized several times for


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acute exacerbations of chronic obstructive pulmonary disease (“COPD”),

pneumonia, and chronic bronchitis. In addition to his work in the coal mines,

Allred was a long-time smoker. Allred smoked between one and one-and-a-half

packs of cigarettes per day continuously starting around 1957 until his death, even

as his health deteriorated. Drummond argued that Allred’s disability was due to his

smoking, not his employment.

       Allred filed for black lung benefits 1 with the Department of Labor in April

2010 while he was living in hospice care. While a decision was pending, Allred

died in August 2010. His wife Barbara then filed her own claim for survivor

benefits in October 2010,2 and proceeded with James Allred’s claim. In

December, a claims examiner issued a Proposed Decision and Order denying

Allred benefits.3 Barbara Allred, on James Allred’s behalf, requested a formal

hearing before an ALJ. The ALJ remanded that case back to the claims examiner

and consolidated it with Barbara Allred’s independent claim for survivor benefits.

This time around, the claims examiner issued a Proposed Decision and Order

awarding benefits to Mrs. Allred. Drummond requested a formal hearing before an

ALJ on both claims, which was held on July 19, 2012.

       1
          A person who has engaged in coal mine employment is entitled to benefits if he is
totally disabled due to pneumoconiosis. 30 U.S.C. §§ 901–944.
        2
          30 U.S.C. § 932(l) provides for benefits automatically for eligible surviving spouses if
the miner was eligible to receive benefits at the time of his death.
        3
          The claims examiner was part of the Mount Sterling, Kentucky District, which is a
regional office of the Division of Coal Mine Workers’ Compensation, which itself is a
subdivision of the Department of Labor’s Office of Workers’ Compensation Programs.
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       On July 16, 2014, the ALJ issued an order awarding benefits on both claims

to Mrs. Allred. The ALJ found that Allred had engaged in coal mine employment

for more than fifteen years and was “totally disabled” at the time of his death due

to a respiratory or pulmonary impairment. 4 As a result of those findings, which

Drummond conceded. Allred was entitled to a rebuttable presumption that his

disability was due to pneumoconiosis. 30 U.S.C. § 921(c)(4); 20 C.F.R.

§ 718.305(b)–(c). The ALJ found that Drummond failed to rebut the presumption,

and as a result, awarded benefits to Mrs. Allred in both cases. Drummond

appealed the decision to the BRB, which affirmed the ALJ. This petition followed.

                                             II.

       The BLBA provides benefits to “coal miners who are totally disabled due to

pneumoconiosis and to the surviving dependents of miners whose death was due to

such disease.” 30 U.S.C. § 901(a). It defines “pneumoconiosis” as “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). The

       4
          Department of Labor regulations implementing the BLBA provide that a miner is
“totally disabled” if
                the miner has a pulmonary or respiratory impairment, which, standing
                alone, prevents or prevented the miner:
                (i)     From performing his or her usual coal mine work; and
                (ii)    From engaging in gainful employment in the immediate area
                        of his or her residence requiring the skills or abilities
                        comparable to those of any employment in a mine or mines
                        in which he or she previously engaged with some regularity
                        over a substantial period of time.
20 C.F.R. § 718.204(b)(1).
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BLBA has created a rebuttable presumption that a miner is disabled due to

pneumoconiosis when he has worked for fifteen years in underground coal mines

and is totally disabled from a respiratory or pulmonary condition. 30 U.S.C.

§ 921(c)(4). Therefore, if a coal miner has worked fifteen years in underground

coal mines and is totally disabled due to respiratory or pulmonary condition, he is

entitled to benefits unless the presumption can be overcome. The requirements that

an employer must meet to rebut the presumption are provided for in the

Department of Labor’s regulations implementing the BLBA.

      In order to understand how the presumption is rebutted, it is necessary to lay

out some key provisions of the regulatory framework. The regulations recognize

two types of pneumoconiosis, “clinical pneumoconiosis” and “legal

pneumoconiosis.” Clinical pneumoconiosis consists of a cluster of diseases

“characterized by permanent deposition of substantial amounts of particulate

matter in the lungs and the fibrotic reaction of the lung tissue to that deposition

caused by dust exposure in coal mine employment.” 20 C.F.R. § 718.201(a)(1).

Legal pneumoconiosis is considerably broader. It consists of “any chronic lung

disease or impairment and its sequelae arising out of coal mine employment.” 20

C.F.R. § 718.201(a)(2). For a disease or impairment to “arise[] out of coal mine

employment,” it must be “significantly related to, or substantially aggravated by,

dust exposure in coal mine employment.” 20 C.F.R. § 718.201(b).


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       The regulations provide two methods by which the presumption can be

rebutted: 1) by “establishing both that the miner does not, or did not, have,” either

legal pneumoconiosis or clinical pneumoconiosis or 2) by “[e]stablishing that no

part of the miner’s respiratory or pulmonary disability was caused by

pneumoconiosis.” 20 C.F.R. § 718.305(d)(1)(i), (ii). 5 Other Circuits have referred

to this second method of rebutting the presumption as the “rule-out” standard,

meaning that the employer must “rule out” pneumoconiosis as having any causal

connection to the miner’s disability. See, e.g., W. Va. CWP Fund v. Bender, 782

F.3d 129, 143 (4th Cir. 2015); Antelope Coal Co./Rio Tinto Energy Am. v. Goodin,

743 F.3d 1331, 1336 (10th Cir. 2014).

       Drummond did not contest that Allred was entitled to the presumption

because he worked for over fifteen years in coal mines and was totally disabled.

Nor does it contest that finding here. Instead, it argues that the ALJ applied the

wrong legal standard as to the first method of rebutting the presumption—that

Allred did not have clinical or legal pneumoconiosis. In the course of her opinion,
       5
         Because the definition of pneumoconiosis has a causal component—the impairment
must “arise out of coal mine employment,” meaning the impairment is “significantly related to,
or substantially aggravated by, dust exposure in coal mine employment”—and the second
method of rebutting the presumption also involves causation, it may be helpful to think about the
difference between the two methods as follows. Proving the first method would mean that the
miner does not have pneumoconiosis at all; he does not have a chronic pulmonary disease
“significantly related to, or substantially aggravated by, dust exposure in coal mine
employment.” The second method of rebutting the presumption would mean that the miner may
or may not have pneumoconiosis, but the pneumoconiosis is not the cause of his disability. For
example, the miner may have pneumoconiosis, but the reason he is disabled is due to lung
cancer, which the employer could prove has nothing to do with his pneumoconiosis. See W. Va.
CWP Fund v. Bender, 782 F.3d 129, 141 (4th Cir. 2015).
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the ALJ considered the opinions of several physicians, pulmonary function tests,

arterial blood gas tests, and X-rays. She concluded that Drummond failed to

satisfy either method of rebuttal. However, when discussing the first method, she

wrote “I find that the Employer has failed to rebut the presumption by ruling out

legal pneumoconiosis or by ruling out coal mine employment as a cause of the

Miner’s disability.” Because “rule out” has a special meaning in these cases,

Drummond argues that the ALJ’s statement indicates that she applied a higher

standard to disprove the existence of legal pneumoconiosis than required under the

regulations.

      To disprove legal pneumoconiosis, an employer would need to prove the

inverse of the 20 C.F.R. § 718.201(a)(2), which defines legal pneumoconiosis as

“any chronic lung disease or impairment and its sequelae arising out of coal mine

employment.” Because no one contests that Allred had a chronic lung disease or

impairment, only the “arising out of coal mine employment” component of the

definition is relevant here. To show that a disease did not “arise[] out of coal mine

employment,” the employer would need to show that it was not “significantly

related to, or substantially aggravated by, dust exposure in coal mine

employment.” 20 C.F.R. § 718.201(b) (emphasis added). Drummond argues that

the opinion’s use of the phrase “rule out legal pneumoconiosis” means that

Drummond could only have disproved legal pneumoconiosis by showing that


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Allred’s impairment was not related to or aggravated by dust exposure in coal

mines at all, which is more demanding than the plain language of the regulations

requires. Had the ALJ provided the correct legal standard, Drummond claims it

may have prevailed under the first method of rebuttal.

      Drummond makes this argument for the first time in its brief to this court. It

failed to present the argument to the BRB, and of course for that reason, the BRB

did not address it. As we stated before regarding the BLBA, “[u]nder general rules

of appellate review, an appellate court should not overrule an administrative

decision unless the administrative body erred against objections presented to it.”

Dir., OWCP v. Drummond Coal Co., 831 F.2d 240, 243 (11th Cir. 1987)

(quotation marks omitted) (quoting Taft v. Ala. By-Products Corp., 733 F.2d 1518,

1523 (11th Cir. 1984)). The BRB’s regulations require petitions to “list[] the

specific issues to be considered on appeal.” 20 C.F.R. § 802.211(a); Sims v. Apfel,

530 U.S. 103, 108, 120 S. Ct. 2080, 2084, 147 L. Ed. 2d 80 (2000) (using the BRB

as an example of an administrative agency that requires issues to be exhausted

before it). Courts require administrative issue exhaustion, even in the absence of

an explicit statutory command, “‘as a general rule’ because it is usually

‘appropriate under [an agency’s] practice’ for ‘contestants in an adversary

proceeding’ before it to develop fully all issues there.” Sims, 530 U.S. at 109, 120

S. Ct. at 2084–85 (alteration in original) (quoting United States v. L.A. Trucker


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Truck Lines, Inc., 344 U.S. 33, 33–37, 73 S. Ct. 67, 68–69, 97 L. Ed. 54 (1952).

The Supreme Court has instructed that “the desirability of a court imposing a

requirement of issue exhaustion depends on the degree to which the analogy to

normal adversarial litigation applies in a particular administrative proceeding.” Id.,

120 S. Ct. at 2085. That is to say, if the administrative proceedings were

adversarial and resembled court proceedings, then courts ought to apply an issue

exhaustion requirement, lest courts encourage litigants to “bypass” agency

requirements, like 20 C.F.R. § 802.211(a). See id. at 108, 120 S. Ct. at 2084.

      Here, there can be no doubt that proceedings held before the BRB were

adversarial. Drummond and Mrs. Allred both presented briefs addressing the

merits of the ALJ’s decision. Thus, we see no reason not to apply the “general

rule” here.

      Although Drummond argued that the ALJ erred in her decision in its brief to

the BRB, none of the arguments it made was the only one it makes to this court. In

its brief to the BRB, Drummond made two principle arguments: 1) that the ALJ

erred in crediting the evidence submitted on behalf of Allred and 2) that the ALJ

applied the wrong legal standard as it relates to the second method of rebuttal, that

“no part of the miner’s respiratory or pulmonary total disability was caused by

pneumoconiosis.” 20 C.F.R. § 718.305(d)(1)(ii). The first argument was purely

factual; Drummond argued that the ALJ assigned too much weight to the evidence


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suggesting Allred was totally disabled due to pneumoconiosis. Drummond’s

second argument was that under § 718.305(d)(1)(ii), an employer does not need to

“rule out” pneumoconiosis as a cause of a miner’s disability, but rather, an

employer need only show that the miner “would have been disabled regardless of

the exposure to coal dust.” In other words, Drummond argued to the BRB that

there was no “rule out” standard at all, not that the ALJ misapplied the rule out

standard to the first method of rebuttal. The BRB addressed the argument

Drummond made, sensibly concluding that plain language of § 718.305(d)(1)(ii)

supported the “rule-out” standard, and not Drummond’s proposed alternative

standard. It did not address the argument that the ALJ may have applied the wrong

legal standard by using the phrase “rule-out” to refer to the employer’s rebuttal of

legal pneumoconiosis. Nor does Drummond argue that the BRB itself applied an

incorrect legal standard in its opinion affirming the ALJ. Because Drummond

failed to exhaust this issue before the BRB, its claim must fail.

      PETITION DENIED.




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