Loper Bright Does Not Excuse Failure to Exhaust a BLBA Regulatory Challenge Before the ALJ and Benefits Review Board

1. Introduction

In Extra Energy, Incorporated v. DOWCP (4th Cir. June 23, 2026) (unpublished), Extra Energy, Incorporated (“Extra Energy”) petitioned for review of a Benefits Review Board (“Board”) decision affirming an Administrative Law Judge (“ALJ”) award of Black Lung Benefits Act (“BLBA”) benefits to former coal miner Thomas R. Culbertson. The case centered on the BLBA’s “Section 411(c)(4) presumption,” which allows a qualifying miner to obtain a rebuttable presumption of total disability due to pneumoconiosis after establishing at least fifteen years of qualifying coal-mine employment.

The key appellate issue was not whether Culbertson was entitled to benefits on the medical record, but whether Extra Energy could, for the first time on judicial review, attack the validity of the Department of Labor’s regulation defining when surface mining conditions are “substantially similar” to underground mining for purposes of the presumption: 20 C.F.R. § 718.305(b)(2). Extra Energy argued that the regulation exceeded statutory authority and became newly contestable after the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo.

2. Summary of the Opinion

The Fourth Circuit denied the petition for review. It held:

  • Extra Energy forfeited its challenge to 20 C.F.R. § 718.305(b)(2) by failing to raise it before the ALJ and the Board, as required by issue-exhaustion rules governing BLBA administrative litigation.
  • Neither the “futility” exception nor the “intervening change in law” exception saved Extra Energy’s unpreserved argument. Loper Bright did not “newly enable” the challenge because parties could challenge regulations as contrary to statute even under the pre-Loper Bright Chevron framework.
  • Independently, substantial evidence supported the ALJ’s finding that Extra Energy failed to rebut the Section 411(c)(4) presumption.

Because forfeiture resolved the regulatory-validity question, the court expressly declined to reach the merits of whether § 718.305(b)(2) is consistent with 30 U.S.C. § 921(c)(4).

3. Analysis

3.1. Precedents Cited

Standards of review in BLBA cases

  • Sea "B" Mining Co. v. Addison, 831 F.3d 244 (4th Cir. 2016): Cited for the proposition that legal conclusions of the ALJ/Board are reviewed de novo.
  • Hobet Mining, LLC v. Epling, 783 F.3d 498 (4th Cir. 2015), quoting Mingo Logan Coal Co. v. Owens, 724 F.3d 550 (4th Cir. 2013): Cited for “substantial evidence” review of factual findings and the requirement that the ALJ analyze relevant evidence and explain credibility choices.

Issue exhaustion, forfeiture, and exceptions

  • Edd Potter Coal Co., Inc. v. Dir., Office of Workers' Comp. Programs, U.S. Dep't of Lab., 39 F.4th 202 (4th Cir. 2022): The central authority for the BLBA-specific issue-exhaustion requirement “both before the ALJ and before the Board,” the definition of forfeiture, and the availability (but narrowness) of administrative-law exceptions.
  • Ross v. Blake, 578 U.S. 632 (2016): Used (via Edd Potter) to recognize limited judicial “leeway” to craft exceptions in administrative contexts.
  • Carr v. Saul, 593 U.S. 83 (2021): Cited for the futility exception standard—whether the adjudicator is “powerless” to grant relief.
  • Holland v. Big River Minerals Corp., 181 F.3d 597 (4th Cir. 1999): Cited for the “intervening law” exception where strong adverse precedent made the failure to raise an issue earlier not unreasonable.
  • United States v. Chittenden, 896 F.3d 633 (4th Cir. 2018), quoting GenCorp, Inc. v. Olin Corp., 477 F.3d 368 (6th Cir. 2007): Cited for the principle that intervening-law doctrines protect parties who need not “prophesy” reversals of settled law.

Why Bender did not foreclose the specific challenge

  • West Virginia CWP Fund v. Bender, 782 F.3d 129 (4th Cir. 2015): Extra Energy relied on Bender to claim futility/intervening law. The Fourth Circuit rejected that reliance because Bender addressed a different subsection—20 C.F.R. § 718.305(d)(1) (the “rule-out” rebuttal standard)—and did not speak to § 718.305(b)(2)’s “substantially similar” definition for surface work.
  • Stiltner v. Island Creek Coal Co., 86 F.3d 337 (4th Cir. 1996): Quoted (through Bender) to describe the “rule out” rebuttal burden; helpful to the court’s explanation that (d)(1) and (b)(2) serve different functions.

Chevron, its overruling, and why Loper Bright didn’t “create” the argument

  • Chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837 (1984), overruled by Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): The court’s point was structural: even under Chevron, parties could argue an agency exceeded statutory authority (e.g., inconsistent with unambiguous text or an impermissible construction). Thus, Loper Bright did not make Extra Energy’s claim “newly available.”
  • Perez v. Cuccinelli, 949 F.3d 865 (4th Cir. 2020): Cited as an example of a pre-Loper Bright case where the Fourth Circuit rejected an agency interpretation as impermissible—reinforcing that “anti-agency” statutory arguments were viable even when Chevron existed.

3.2. Legal Reasoning

  1. Identification of the procedural defect (non-exhaustion/forfeiture). The court treated issue exhaustion as a prerequisite to judicial review in BLBA administrative litigation: arguments must be presented first to the ALJ and then to the Board. Because Extra Energy first challenged § 718.305(b)(2) only in the Fourth Circuit, the argument was forfeited under Edd Potter.
  2. Rejection of the futility exception. Futility requires that the ALJ/Board be “powerless” to grant the requested relief. The court reasoned that Extra Energy’s reliance on Bender did not demonstrate powerlessness because Bender did not address § 718.305(b)(2) at all. At most, Bender could be “predictive,” not preclusive, especially because different regulatory provisions may demand different statutory analyses.
  3. Rejection of the intervening-law exception based on Loper Bright. The court held that Loper Bright did not “newly enable” the statutory-authority challenge. Even before Loper Bright, litigants could argue that a regulation conflicted with unambiguous statutory language or was an impermissible construction—precisely the type of argument Extra Energy later offered.
  4. Finality and orderly administration. Echoing Edd Potter, the court emphasized that allowing parties to hold back arguments for appeal would “disrupt the ordinary processes of black-lung decision-making” and effectively permit relitigation just because the “first” outcome was unfavorable.
  5. Merits held in reserve; factual entitlement affirmed. Having found forfeiture, the court declined to decide whether § 718.305(b)(2) is the best reading of § 921(c)(4). It nonetheless affirmed that substantial evidence supported the ALJ’s conclusion that Extra Energy failed to rebut the presumption under 30 U.S.C. § 921(c)(4).

3.3. Impact

  • Post-Loper Bright challenges must still be exhausted. The decision signals that Loper Bright will not function as a general-purpose “reset button” for regulated parties who did not preserve statutory-authority challenges during agency adjudication.
  • BLBA litigation strategy: raise statutory and regulatory-validity arguments early. Operators (and claimants, where relevant) should present not only evidentiary disputes but also APA/statutory and regulatory-validity objections to the ALJ and again to the Board, or risk forfeiture on petition for review.
  • Narrow framing of “intervening law.” The Fourth Circuit’s approach suggests intervening law requires more than a general shift in interpretive methodology; it requires that an argument was genuinely unavailable because controlling precedent specifically foreclosed it—not merely made it harder to win.
  • Limited precedential force but practical influence. Although unpublished and “not binding precedent,” the reasoning provides a roadmap for future Fourth Circuit panels and for the Board in addressing similar post-Loper Bright forfeiture claims.

4. Complex Concepts Simplified

  • Issue exhaustion: In an agency adjudication, you generally must raise your arguments to the agency decisionmakers first (here, the ALJ and then the Board). Courts typically will not consider arguments introduced for the first time on appeal.
  • Forfeiture (vs. waiver): Forfeiture is losing an argument by failing to timely raise it; waiver is an intentional relinquishment. The court treated Extra Energy’s omission as forfeiture.
  • Section 411(c)(4) presumption: If a miner shows at least 15 years of qualifying coal-mine work (including certain surface work) and total disability, the law presumes disability is due to pneumoconiosis—unless the operator rebuts it.
  • “Substantially similar” surface mining: The statute counts surface mining if conditions were “substantially similar” to underground mining. The regulation at issue, 20 C.F.R. § 718.305(b)(2), treats conditions as substantially similar if the miner was “regularly exposed to coal-mine dust.”
  • “Rule-out” rebuttal standard: Under 20 C.F.R. § 718.305(d)(1) (discussed in Bender), an operator must establish that pneumoconiosis played no part in the miner’s disability to rebut the presumption.
  • Chevron and Loper Bright: Chevron required deference to reasonable agency interpretations of ambiguous statutes; Loper Bright overruled that framework. This case holds that the demise of Chevron does not retroactively excuse failure to preserve a statutory challenge that was still legally possible to raise before.

5. Conclusion

Extra Energy, Incorporated v. DOWCPCourt reinforces a procedural rule with substantial practical bite: in BLBA cases, parties must exhaust statutory and regulatory challenges before the ALJ and the Benefits Review Board, and they cannot rely on Loper Bright Enterprises v. Raimondo to revive arguments that were available—but unraised—during administrative proceedings. The Fourth Circuit’s refusal to reach the merits of § 718.305(b)(2) underscores that preservation doctrines can decide outcomes even in high-stakes benefits litigation, while its substantial-evidence affirmance reflects continued deference to well-explained ALJ factfinding in black lung adjudication.