NOT RECOMMENDED FOR PUBLICATION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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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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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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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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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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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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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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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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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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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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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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