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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
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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,
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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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