                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                          June 4, 2019
                                        PUBLISH
                                                                     Elisabeth A. Shumaker
                       UNITED STATES COURT OF APPEALS                    Clerk of Court

                            FOR THE TENTH CIRCUIT
                        _________________________________

 BIG HORN COAL CO.

       Petitioner,

 v.                                                            No. 17-9558

 SYLVIA SADLER, widow of o/b/o Edgar
 Sadler, deceased; DIRECTOR, OFFICE
 OF WORKERS’ COMPENSATION
 PROGRAMS, UNITED STATES
 DEPARTMENT OF LABOR,

       Respondents.
                        _________________________________

            Petition for Review from Order of the Benefits Review Board
                    (Benefits Nos. 16-0395 BLA and 16-0612 BLA)
                        _________________________________

John S. Lopatto III, Washington, D.C., for Petitioner.

Evan B. Smith, Appalachian Citizens’ Law Center, Whitesburg, Kentucky, for Sylvia
Sadler, Respondent.

Ann Marie Scarpino (Kate S. O’Scannlain, Solicitor of Labor, Maia S. Fisher, Associate
Solicitor, Gary K. Stearman, Counsel for Appellate Litigation, with her on the brief), U.S.
Department of Labor, Washington, D.C., for Director, Office of Workers’ Compensation
Programs, Respondent.
                        _________________________________

Before BACHARACH, BALDOCK, and EBEL, Circuit Judges.
                 _________________________________

EBEL, Circuit Judge.
                        _________________________________
       Big Horn Coal Company petitions this court to review the judgment of the

Department of Labor Benefits Review Board (“Board”) awarding benefits 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 BLBA compensates coal miners who become

totally disabled from pneumoconiosis, or black lung disease, on the job. The

BLBA’s statute of limitations requires miners to file claims for benefits within three

years of receiving a medical determination of total disability due to pneumoconiosis.

30 U.S.C. § 932(f) (“Any claim for benefits by a miner under this section shall be

filed within three years after . . . a medical determination of total disability due to

pneumoconiosis.”). In interpreting 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) “are mandatory and may not be waived 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 section 725.308(c) and

the interpretation and application of the “extraordinary circumstances” test contained

therein.

       Sadler received a total disability diagnosis in 2005, but he did not file the

claim at issue here until 2010. Despite that delay, an administrative law judge (ALJ)

awarded benefits to Sadler upon finding that “extraordinary circumstances” existed to

warrant tolling the statute of limitations. The Board affirmed the ALJ’s order. In


1
 Effective August 31, 2018, paragraph 725.308(c) was redesignated as 725.308(b).
83 Fed. Reg. 27695
                                             2
this petition for review, Big Horn challenges the Board’s order in two respects. First,

it claims that section 725.308(c) is invalid. Alternatively, it argues that, even if

section 725.308(c) is valid, there are no “extraordinary circumstances” here sufficient

to justify tolling the statute of limitations. Exercising jurisdiction pursuant

to 33 U.S.C. § 921(c) and 30 U.S.C. § 932(a), we hold that section 725.308(c) was

validly promulgated. However, we lack jurisdiction over Big Horn’s argument

regarding whether extraordinary circumstances existed to warrant 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 modest monetary benefits to totally disabled

coal miners (and their survivors) who suffer from black lung disease—a latent,

progressive, and irreversible lung 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 she suffers from pneumoconiosis; (2) the pneumoconiosis

arose out of coal mining employment; and (3) the pneumoconiosis is totally disabling.”

Energy W. Mining Co v. Oliver, 555 F.3d 1211, 1214 (10th Cir. 2009). A claim is timely

under the BLBA if it is filed within three years of the miner receiving “a medical

determination of total disability due to pneumoconiosis.” 30 U.S.C. § 932(f).

Typically, the last coal mine operator for whom the miner worked for a cumulative

period of at least one year is responsible for paying benefits to a successful claimant.



                                            3
20 C.F.R. § 725.494. In this case, the responsible employer, Big Horn, objects only

to the timeliness of Sadler’s successful claim for benefits.

       Sadler worked as a coal miner in Wyoming for Big Horn from 1953 to 1987.

Between 1990 and 2010, Sadler filed three claims for benefits under 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, Sadler filed his first claim for

black lung benefits, which was denied. Then, in 1994, Sadler filed a subsequent

claim as permitted by 20 C.F.R. § 725.309. At this point, Sadler had not yet received

“a medical determination of total disability due to pneumoconiosis” to trigger the

BLBA’s three-year statute of limitations. Sadler’s second claim was also denied for

failure to prove that he suffered from pneumoconiosis, first by the District Director

of the Office of Workers’ Compensation Programs in 1996, then by an ALJ in 1998,

and finally by the Board in 2000.

       Sadler next sought modification of the denial order. The District Director

denied Sadler’s request in 2001. Sadler appealed, and his claim was forwarded to the

Office of Administrative Law Judges for a hearing. The hearing on Sadler’s request

for modification was delayed several times between 2001 and 2006 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 ALJ overseeing the case,

Sadler had been admitted to a hospital for extensive pneumoconiosis testing and it

was “too soon for the results to be completed . . . to submit” as evidence.

Supplemental Appendix (S.A.) at 3. Sadler’s request for a continuance was granted.

                                             4
      The next month, in September 2005, the doctor sent Sadler a letter diagnosing

him with “[c]oal worker’s pneumoconiosis” and further opining that Sadler had “total

respiratory disability from performing his last coal mine job of one year’s duration.”

Joint Appendix (J.A.) at 123. Sadler did not submit the diagnosis letter to the ALJ.

However, Sadler later testified that he received and read the letter that same month.

At this point, the three-year statute of limitations began to run, giving Sadler until

September 2008 to file a claim under the BLBA. In 2006, amid more continuances

regarding his already-pending claim, Sadler obtained an attorney, Tony Alback, after

having been mostly unrepresented since July 1990. It is unclear from the record

whether Sadler provided the 2005 doctor letter to Alback.

      On June 6, 2008, Alback filed a motion on behalf of Sadler to withdraw

Sadler’s request for modification of the order denying his 1994 claim for benefits.

This motion was filed with Judge William S. Colwell, the ALJ assigned to Sadler’s

case. The motion indicated that Sadler would be “filing a new claim with the District

Director” because Sadler and Alback had determined that it was in Sadler’s “best interest

to begin the proceeding anew in light of [his] recent medical condition and treatment

therefore.” J.A. at 64. On June 12, 2008, Judge Colwell conducted a hearing on

Sadler’s motion to withdraw his request for modification.

      At the hearing, Judge Colwell made several statements that are relevant to this

appeal. First, Judge Colwell quoted the letter from Alback that explained that Sadler

intended to dismiss his claim and file a new one. Then, Judge Colwell explained

what he understood the law to permit regarding the withdrawal of claims:

                                            5
      [I]t appears to me that [under Section 725.462] we have the option, if the
      parties agree to it and wish to do this, is the Claimant may withdraw the
      modification request, the last modification request . . . . And if you all decide
      -- the Claimant decides that there’s not sufficient medical evidence at this
      point to go forward with that, if the Claimant wants to withdraw those issues
      -- only the request for modification, then I have the authority to do that.

J.A. at 54. Judge Colwell then stated that if Sadler withdrew his request for

modification, the withdrawal would “serve as a denial and that case [would] be over,”

but Sadler “then would have an opportunity to file 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 announced that it was Sadler’s “preference that the

existing case, the motion to withdraw, 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 gather additional
      medical evidence -- more current, more recent medical evidence -- and
      that he knows that he has the opportunity to file another, subsequent
      claim. . . . I will agree to Claimant’s request, to withdraw the modification
      request.

Id. at 59-60. Big Horn did not object to Sadler’s request to withdraw his claim for

modification without prejudice.

      On June 1, 2010, five years after his total disability diagnosis, Sadler filed pro

se a third claim for black lung benefits, the claim that underlies this petition. Sadler

submitted his 2005 medical diagnosis letter with that claim, and the District Director

awarded benefits to Sadler. The Black Lung Disability Trust Fund (“Trust Fund”)

then began paying the benefits Sadler was awarded pursuant to the BLBA’s interim


                                             6
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 Sadler testified that he

remembered receiving the medical diagnosis letter in the mail in 2005 and reading it.

Sadler died several months after his deposition, before the ALJ hearing took place, at

which point the Trust Fund stopped making payments to him pursuant to 20 C.F.R.

§ 203. However, Sylvia Sadler, Edgar’s widow, continued to pursue her husband’s

claim after his death. She also filed a separate survivor’s claim for benefits, but Big

Horn does not contest that claim.

      Eventually, Big Horn filed a motion to dismiss Sadler’s 2010 claim as

untimely under the BLBA’s three-year statute of limitations. Judge 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 Sadler’s claim because he

found that Sadler’s total-disability diagnosis was communicated to him in 2005 and

yet he waited five years to file his claim. However, Judge Colwell determined that

“extraordinary circumstances” existed to warrant the tolling of the statute of

limitations. J.A. at 244–45. Regulations interpreting the BLBA’s statute of

limitations state that it “may not be waived or tolled except upon a showing of



2
 20 C.F.R. §725.420 provides that, if a mine operator refuses to pay benefits to a
claimant after an initial determination of eligibility during the pendency of its
appeals, “benefits shall be paid by the [Black Lung Disability Trust Fund] to the
claimant . . . and the operator shall be liable to the fund, if such operator is
determined liable for the claim . . . .”
                                           7
extraordinary circumstances.” 20 C.F.R. § 725.308(c) (emphasis added). Judge

Colwell explained that the “extraordinary circumstance” that warranted 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 withdraw his request for

modification of his second claim. Secondarily, Judge Colwell expressed a concern

about the competency of Sadler’s attorney in general and specifically with regard to

Alback’s advice that it was in Sadler’s best interest to withdraw his request for

modification. After finding for Sadler on the merits, Judge Colwell issued an order

awarding Sylvia Sadler survivor’s benefits pursuant to 30 U.S.C. § 932(l), which

requires approval of the survivor’s claim if the living miner claim is determined to be

valid. Big Horn filed a motion for reconsideration, which Judge Colwell denied.

      Big Horn appealed the ALJ’s award of benefits to the Board, raising, inter alia,

the two claims Big Horn raises in its petition to this court: (1) that 20 C.F.R.

§ 725.308(c) was invalidly issued by the Secretary of the Department of Labor, and

(2) that Judge Colwell misapplied 20 C.F.R. § 725.308(c) when he determined that

extraordinary circumstances warranted tolling the statute of limitations. 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 established 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 extraordinary circumstance because those statements

                                            8
should not have been made in the first place. Specifically, Big Horn argued that

Judge Colwell should have been disqualified because he “abdicated 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 pulmonary examination at the National Jewish Hospital 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 Sadler’s good faith reliance on the tribunal’s

misrepresentation of Sadler’s ability to file a new claim justified tolling the statute of

limitations as an extraordinary circumstance. As a result, the Board affirmed the

ALJ’s awards of compensation to Sadler and his surviving widow.

      We grant Big Horn’s petition for review. We agree with the Board’s

conclusion that the Secretary validly promulgated section 725.308(c). However, we

lack jurisdiction to consider Big Horn’s remaining arguments related to whether

extraordinary circumstances existed in this case because Big Horn failed to raise

those arguments to the Board. Accordingly, we DISMISS the petition and AFFIRM

the Board.

                                II.     DISCUSSION

   A. Validity of 20 C.F.R. § 725.308(c)

      We are first asked to address whether the Secretary of Labor validly

promulgated 20 C.F.R. § 725.308(c). Reviewing that issue de novo, we uphold that

regulation.

                                            9
       To determine whether an agency’s regulation is valid under a particular

statute, we apply the analysis articulated in Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). Chevron is applicable

where, as here, an agency has promulgated a regulation to interpret a statute that it

administers. The Department of Labor is tasked to administer the BLBA. 30 U.S.C.

§ 936 (“The Secretary of Labor . . . [is] authorized to issue such 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 filed within three years after . . . a medical 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 circumstances.” Thus,

we apply Chevron to determine whether 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 spoken “directly” to the “precise question at issue,” the

inquiry ends, and we must give effect to the express intent of Congress. Id.

However, “if the statute is silent or ambiguous with respect to the specific issue, the

question for the court [in step two] is whether the agency’s answer is based on a

permissible construction of the statute.” Id. at 843.



                                            10
       For a construction to be permissible, we need not conclude it was the only
       one the agency could reasonably have adopted or that we would have
       rendered the same interpretation if the question arose initially in a judicial
       context. . .We look only to whether the implementing agency’s
       construction is reasonable.

Keller Tank Servs. II, Inc. v. Comm’r of Internal Revenue, 854 F.3d 1178, 1196

(10th Cir. 2017) (citing Chevron, 467 U.S. at 843 n.11).

       To determine whether Congress has spoken directly to an issue, we look at

both the statute’s language and the legislative history. Chevron, 467 U.S. at 859–64.

The language of 30 U.S.C. § 932(f) is silent with regard to whether the three-year

statute of limitations may be tolled under any circumstances. Similarly, the

legislative history contains no discussion of tolling the limitations period. Therefore,

we conclude that Congress has not directly spoken to the precise question at issue.

See Chevron, 467 U.S. at 843. As a result, we can proceed to the second step of

Chevron and consider whether the Secretary’s regulation in section 725.308(c) was a

reasonable interpretation of section 932(f).

       The Secretary’s interpretation that the BLBA’s statute of limitations may be

tolled in extraordinary circumstances is reasonable because section 932(f) is

nonjurisdictional and therefore subject to a presumption that equitable tolling is

permitted. See Holland v. Florida, 560 U.S. 631, 648 (2010); Irwin v. Dep’t of

Veterans Affairs, 498 U.S. 89, 95–96 (1990). In Irwin, the Supreme Court recognized a

presumption that equitable tolling is available in suits against the federal government.

498 U.S. at 95–96. The Court later explained that the presumption applies to federal

statutes of limitations because “Congress legislates against a background of common-law

                                            11
adjudicatory principles. . . . [and] [e]quitable tolling, a long-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 described Irwin as holding that “a nonjurisdictional

federal statute of limitations is normally subject to a ‘rebuttable presumption’ in

favor ‘of equitable tolling.’” 560 U.S. at 645-46. We conclude that the holdings of

Holland and Irwin are applicable here because, when Congress enacted the BLBA in

1969, which included a three-year statute of limitations substantially similar to that in

section 932(f),3 it was legislating with the common-law principles described with

those cases in mind. Applying the rules of those cases, we conclude that section

932(f) is subject to the presumption that it permits equitable tolling and therefore the

Secretary’s interpretation that the statute of limitations may be tolled in extraordinary

circumstances was reasonable.

       First, the BLBA’s three-year statute of limitations is nonjurisdictional. In a

series of opinions the Supreme Court has “explained time and again that statutes of

limitations are not always—and, indeed, presumptively are not—jurisdictional.”

Barnes v. United States, 776 F.3d 1134, 1145 (10th Cir. 2015). The test is whether

Congress has “clearly stated” that a statutory limitation is jurisdictional. Id. at 1146

(quoting Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1113, 1157 (10th Cir.


3
 “Any claim for benefits under this section shall be filed within three years of the
discovery of total disability due to pneumoconiosis or, in the case of death due to
pneumoconiosis, the date of such death.” Pub. L. 91-173, § 422(f), 83 Stat. 797
(1969).
                                              12
2013)). In applying this bright-line test, “we focus on the legal character of the deadline,

as shown through its text, context, and historical treatment.” Id. (quotation omitted).

Nothing in section 932(f) suggests that the limitation there is jurisdictional. The

provision provides simply that claims by miners “shall be filed within three years” of

a medical diagnosis of total disability. It does not state, for example, that the District

Director is without jurisdiction to adjudicate claims filed outside the statutory time

period. Furthermore, the BLBA is “intended to be remedial in nature.” Bridger Coal

Co. v. Dir., OWCP, 669 F.3d 1183, 1190 (10th Cir. 2012); see also 20 C.F.R.

§ 725.309 (setting no limits on the number of claims a miner can file). Absent any

indication that Congress intended 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 BLBA to allow the

limitations period to be tolled in extraordinary circumstances because the Supreme

Court has stated that nonjurisdictional federal statutes of limitations are “normally

subject to a ‘rebuttable presumption’ in favor ‘of equitable tolling,’” Holland, 560

U.S. at 645-46 (holding that, despite the silence of its statute of limitations, AEDPA

permits equitable tolling). The Supreme Court has found that presumption overcome

in only two cases. In United States v. Brockamp, 519 U.S. 347 (1997), the Supreme

Court interpreted a statute of limitations that was silent on the question of equitable

tolling as foreclosing application of the Irwin presumption of tolling. However, in

doing so, the Court emphasized that the statute in Brockamp (1) “se[t] forth its time

limitations in unusually emphatic form”; (2) used “highly detailed” and “technical”

                                            13
language “that, linguistically speaking, [could not] easily be read as containing

implicit exceptions”; (3) “reiterate[d] its limitations several times in several different

ways”; (4) related to an “underlying subject matter,” nationwide tax collection, with

respect to which the practical consequences of permitting tolling would have been

substantial; and (5) would, if tolled, “require tolling, not only procedural limitations,

but also substantive limitations on the amount of recovery”—a kind of tolling for

which the Court admitted it found no direct precedent. 519 U.S. at 350–352.

      And, in United States v. Beggerly, 524 U.S. 38 (1998), the Court held that

Irwin’s presumption of tolling was overcome where (1) the twelve-year statute of

limitations at issue was “unusually generous” and (2) the underlying claim “deal[t]

with ownership of land” and thereby implicated landowners’ need to “know with

certainty what their rights are, and the period during which those rights may be

subject to challenge.” 524 U.S. at 48–49.

      By way of contrast, the BLBA’s statute of limitations here is not as emphatic

as was the language under review in Brockamp. Neither would application of

equitable tolling here affect the “substance” of a BLBA claimant’s claim as it did in

Brockamp; it affects only their ability to bring the claim. Moreover, in contrast to

the twelve-year limitations period at issue in Beggerly, the BLBA’s three-year

limitations period is not particularly long. And unlike the subject matters at issue in

both Brockamp and Beggerly—tax collection and land claims—the BLBA’s purpose

is remedial and therefore naturally invites the application of equitable principles, see

Bridger, 669 F.3d at 1190. Therefore, we conclude that the nonjurisdictional statute

                                            14
of limitations in the BLBA is subject to the Irwin presumption that the statute permits

equitable tolling. As a result, we hold that the Secretary’s interpretation that the

BLBA’s statute of limitations may be tolled in extraordinary circumstances was

reasonable.

      We affirm the Board’s legal conclusion that section 932(f) is entitled to

deference by this court.

   B. Big Horn Failed to Exhaust Arguments 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 Sadler’s reliance

on Judge Colwell’s statements at the 2008 hearing constituted extraordinary

circumstances justifying tolling the statute of limitations. To 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 Colwell such that it was

not in the record before him during 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 the level of an extraordinary circumstance because

“[t]he ALJ’s advice to the claimant at the 2008 hearing was correct” based on the

record before him. Pet. Br. at 32 (emphasis added). Big Horn further argues that,

without knowledge of the 2005 medical report, Judge Colwell had no duty “to remind




                                           15
the claimant and his lawyer to read their files and see if they may have within these

documents a medical determination of total disability.”4 Id.

       We do not have jurisdiction to consider these legal arguments because Big

Horn failed to exhaust them before the Board. McConnell v. Dir., Office of Workers’

Comp. Programs, U.S. Dep’t of Labor, 993 F.2d 1454, 1460 n.8 (10th Cir. 1993) (holding

that Tenth Circuit was deprived of jurisdiction to consider argument not raised before the

Benefits Review Board). Not only did Big Horn fail to argue to the Board that the

statements Judge Colwell made about 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 information to [Sadler] at 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 BLBA context issue-exhaustion is a jurisdictional

requirement. There may be some question about the long-term viability of McConnell

describing the exhaustion requirement as jurisdictional in light of subsequent Supreme

Court authority advising against the “profligate use” of that label. Sebelius v. Auburn

Reg’l Med. Ctr., 568 U.S. 145, 153 (2013); see also Eberhart v. United States, 546 U.S.

12,17 (2005) (per curiam) (“Clarity 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 Big Horn’s motion for reconsideration that his grant
of equitable tolling was not based on Alback’s errors. J.A. at 276. Acknowledging
that, the Board declined to address the issue. Because attorney negligence does not
underlie either the ALJ’s or the Board’s decision, we do not address it.
                                             16
used the label ‘jurisdictional’ not for claim-processing rules, but only for

prescriptions delineating the classes of cases (subject-matter jurisdiction) and the

persons (personal jurisdiction) falling within a court’s adjudicatory authority.”).5

However, at least for now, McConnell is binding Tenth Circuit law that we are

obligated to follow. Therefore, we are without jurisdiction to consider Big Horn’s

unexhausted argument that “extraordinary circumstances” sufficient to justify tolling the

statute of limitations are not present here. Accordingly, we affirm the Board’s decision to

uphold the ALJ’s order awarding benefits to Sadler.

                                 III.   CONCLUSION

       For the foregoing reasons, we DISMISS Big Horn’s petition and AFFIRM the

decision of the Benefits Review Board.




5
  The statute governing our jurisdiction over BLBA appeals does not contain any
language to suggest that issue-exhaustion is a jurisdictional prerequisite to our hearing an
appeal. See 33 U.S.C. § 921.
                                             17
