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B&G Construction Company, Inc. v Director, Office of Workers’ Compensation Programs, U.S. Department of Labor

Case No. 10-4179 (C.A. 3, Oct. 26, 2011)

I. INTRODUCTION



This matter comes on before this Court on B&G Construction Company’s petition for review of a decision and final order of the Benefits Review Board (“the Board”) of the United States Department of Labor (“DOL”) dated August 30, 2010, that reversed an administrative law judge’s (“ALJ”) decision and order denying respondent Norma G. Campbell’s (“Campbell”) claim for survivor’s benefits pursuant to provisions of the Black Lung Benefits Act, as amended, 30 U.S.C. § 901 et seq. (the “Act”). The Board determined that Campbell was entitled derivatively to survivor’s benefits under 30 U.S.C. § 932(l), as last amended by the Patient Protection and Affordable Care Act of 2010 (“PPACA”), Pub. L. No. 111-148, § 1556, 124 Stat. 119, 260, based on her late husband Ernest J. Campbell’s (“Ernest”) totally disabling pneumoconiosis.

There is disagreement among the parties regarding the effect of the PPACA on the Act focusing on the meaning of section 932(l). Section 932(l) provides that eligible survivors of a deceased miner, who was determined to be eligible to receive benefits at the time of his death, are not required to file a new claim for benefits after the death of the miner. The section 1556 PPACA amendment to section 932(l), which Congress made retroactively applicable to any claim for survivors’ benefits filed after January 1, 2005, removed a limitation from section 932(l) which Congress inserted in 1981 restricting the applicability of that section to claims filed before January 1, 1982. Prior to 1982, section 932(l) allowed eligible survivors of miners to continue receiving benefits without having to file a new claim after a miner’s death. For claims filed on or after January 1, 1982, section 932(l) prior to the enactment of section 1556 required eligible survivors to file claims and prove that pneumoconiosis caused the miner’s death in order to receive survivors’ benefits. The DOL, at oral argument before us, contended that the PPACA amendment, by removing the limiting language that the 1981 amendments inserted, returned the statute to its original function: automatically continuing benefits for the survivors of miners who had been determined to be eligible to receive benefits during their lifetimes.

Our function in ascertaining the meaning of the Act is complicated by the presence of limiting language in sections 921 and 922 of the Act, 30 U.S.C. §§ 921 and 922, paralleling the language that the PPACA amendment deleted from section 932(l). B&G has argued that this limiting language requires survivors to prove that pneumoconiosis caused a miner’s death in order to receive survivors’ benefits. As we discuss below, we hold that amended section 932(l), being the last amendment of the Act and thus the latest legislation governing survivors’ benefits, overrides the conflicting language in sections 921 and 922 and entitles otherwise eligible survivors of a miner to receive benefits upon a miner’s death without having to prove that pneumoconiosis caused the miner’s death.








 

 

Judge(s): Joseph Greenberg, Jr.
Jurisdiction: U.S. Court of Appeals, Third Circuit
Related Categories: Constitutional Law , Employment
 
Circuit Court Judge(s)
Joseph Greenberg, Jr.
Thomas Hardiman
Thomas Vanaskie

 
Trial Court Judge(s)
Daniel Leland

 
Petitioner Lawyer(s) Petitioner Law Firm(s)
Edward Dixon Zimmer Kunz PLLC
Ryan Krescanko Zimmer Kunz PLLC
Meghan Wise Zimmer Kunz PLLC

 
Respondent Lawyer(s) Respondent Law Firm(s)
Sean Bajkowski U.S. Department of Labor
Emily Goldberg-Kraft U.S. Department of Labor
Sarah Hurley U.S. Department of Labor
Rae James U.S. Department of Labor

 

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opinions regarding whether pneumoconiosis hastened ernest's adequate benefits are provided to coal miners and must be a stark inconsistency between the two sections of the 1556 required eligible survivors to file claims and prove that that from which ernest suffered.16 12 petition for review in this court, we consider the conflict we experience with the plan." pet'r's br. at 36. the controversy in unconstitutional taking of its property under the fifth 901(a). finally, congress did not alter section 921(a), which mr. president, in order to clarify for the record, i regulation on the claimant; (2) the extent to which the regulation 922 in part b requiring a survivor of a miner to show a causation 30, 127 s.ct. at 1460; cobell, 428 f.3d at 1075. in contrast, 30 u.s.c. 922(a)(2). overall the repeated amendments of the 31 into consideration, we are constrained to hold section 1556, as receiving benefits without having to refile a claim, or file a new of the illness known as `complicated pneumoconiosis'" and thus disability due to pneumoconiosis. section . . . . benefit claims soared, a development which began to "wreak than might be otherwise so inasmuch as the supreme court congress did not debate, discuss, or study adequately the act so hard won," is hardly conclusive on the issue we face, overall the secretary shall, in accordance with the statute] shall have any meaning at all." nat'l ass'n of home earlier congress had passed. massachusetts, 549 u.s. at 529- b&g made the argument that section 932(l) applied only to disability or death caused by pneumoconiosis." id. at 31. we, compensation programs that the dol found provided adequate 475 u.s. 211, 223, 106 s.ct. 1018, 1025 (1986) ("although 1992, when there was a concern that the funds would become v. dir., owcp, 39 f.3d 458, 462-63 (3d cir. 1994). we rae ellen james pneumoconiosis arising out of coal mine employment." 428 general argument that the act was unconstitutional because it ______________ statutory construction, "[s]pecific terms prevail over the general miner's death was "due to pneumoconiosis." consequence would not serve as proof that the regulation 1, 2005, that are pending on or after the date of rationale in turner elkhorn, we cannot say that it is irrational or significance" in the inquiry. id. (internal quotation marks amendment of section 921(c)(3) have anybearing on the court's text." ins v. nat'l ctr. for immigrants' rights, inc., 502 u.s. when interpreting a statute our purpose is to "give effect legitimate obligations society may impose on individual and 922 of the act, 30 u.s.c. 921 and 922, paralleling the as the director points out, however, the economic impact n.3. in order to expedite the processing of the large backlog of survivors,' as used in 30 u.s.c. 932(l)."15 bifurcated system for black lung benefit claims: (1) pursuant to 922 and entitles otherwise eligible survivors of a miner to constitutional contentions. general purpose of the act. specifically, b&g contends that the party in these proceedings contends otherwise. moreover, estate, 178 f.3d at 663; see also connolly, 475 u.s. at 227, 106 therefore, we will not consider the circumstance that the we will deny the petition for review. benefits, the applicable regulations required her to prove that entirely irrelevant for constitutional purposes whether the the question which b&g originally addressed in bringing the his relationship with his child. the court stated that: an entry of an order awarding campbell survivor's benefits. of pneumoconiosis on a miner's disability. the supreme court miner who is clinically diagnosable as extremely ill with 3 the effect of this language, actuallyenacted in 1978, was was a cause of death. as the history of the act demonstrates, arbitrary for congress to extend survivors' benefit to the found in turner elkhorn is also a rational legislative basis for provisions of the black lung benefits act, as amended, 30 amendments of 1981, who at the time of his the requirement of which is unsupported by adequate medical the act in 1981 and "eliminated survivors' automatic ______________ requirement so, after we scheduled the case for oral argument, eastern enterprises arose from private agreements between inasmuch as we focus on this appeal on a widow's survivor policy decision to amend the act. presented. for the following reasons, i concur only in the process clause and the fifth amendment's due process clause, circumstances in which we make further inquiry include cases inasmuch as our resolution of this case requires us to coal grp. v. sebben, 488 u.s. 105, 109, 109 s.ct. 414, 418 922(a) of this title in accordance with the id. at 25, 96 s.ct. at 2897 (emphasis partially added). burdens and benefits of economic life" violates substantive due the 1981 amendments. accordingly, no "eligible survivor" 148, 1556, 124 stat. 119, 260, based on her late husband that section 1556 is unconstitutional. b&g first argues that the congress was impelled to specify its intentions are three times higher than in 1977, extrapolating that the miners affected with pneumoconiosis in the federal coal mine from 1970 to 1987. in 2000, the district director of the office program, responsible mine operators or their successors would lung benefits in several ways."7 this is a step we will not take as the choice we face is between 5 inasmuch as that "financially strapped" industry would have to there is a period before "as" in the statute. after 1981 section 932(l) of the act remained unaltered amendment in a complex bill of great length. see n. haven bd. survivors of coal miners whose deaths were due e. the ppaca amendments cir. 2002). "deemed" to be a child of the marriage regardless of the private property for public use under the takings clause. due b. ex rel. lois b. v. pa. dep't of educ., 230 f.3d 582, 587 (3d "has no rational basis and indeed runs counter to the stated the history of the act, and the purpose of the ppaca all lead us "there is no way to reconcile [ 922(a) and 932(1)]", id. at thumb on the scale to tilt the decision in favor of mrs. (internal quotation marks omitted). continued part c in existence until december 30, 1981. helen view 932(l) in a vacuum, this is an easy case. but reading a benefits under the pre-ppaca version of the act as, indeed, b&g also makes a substantive due process argument the board had jurisdiction to review the alj's decision legislators did not read the entire bill and that the debate over 36 would have been different without it. in considering this survivors, under part b, were entitled to receive benefits the comma before the period is in the statute. marks and citations omitted). 1990 showing that the dol approved black lung claims based disabled by this disease at the time of their deaths," so that the 481 u.s. 739, 746, 107 s.ct. 2095, 2101 (1987) (stating that the pneumoconiosis or, except with respect to a claim 1460 n.27 (2007) (quoting cobell v. norton, 428 f.3d 1070, s.ct. at 1027 ("those who do business in the regulated field of persons entitled to benefits under section of "ensur[ing] that in the future adequate benefits are provided to pneumoconiosis or who at the time of his death coal miners who are totally disabled due to his widow (if any) at the rate the deceased miner benefits are "substantial," or are larger than b&g previously the amended section applied to claims for survivors' 30 u.s.c. 922(a)(2) (emphasis added). miner's death was due to pneumoconiosis." regardless under part b, stated that: "[t]he secretary shall, in accordance one section of the act, section 932(l), provides that c of this subchapter on or after the effective date of the black ernest worked as a miner for b&g for over 16 years (3) the character of the governmental action." connolly, 475 the 1981 amendments: prove that pneumoconiosis caused the miner's death. the b&g argues that while "the coal industries and its his widow (if any) at the rate the deceased miner (b) continuation of benefits.-- complexity, the federal courts are increasingly called upon to argued that section 932(l) applied only to miners affected with 1981 amendments, miners' survivors who had filed claims prior totally disabled due to pneumoconiosis and the surviving finally with respect to substantive due process, we find specifically, b&g argues that section 932(l) creates an having to file a new claim for benefits or otherwise refile or section 932(l).2 disabled. on inadequate medical evidence. we see no reason, however, of the ppaca, entitled campbell to benefits inasmuch as ernest other reasons: act demonstrate that it has been balanced on a sort of moreover, congress extended part b survivors were entitled to benefits only after showing that the 2005, to provide benefits automatically to the eligible survivors the due process clause and thus its choice of statutorylanguage 13 own inability to bear the extra cost of increased benefits under id. at 120-21, 109 s.ct. at 2340-41 (internal quotation f.3d 234, 236 (3d cir. 2011) (quoting 26 u.s.c. 5000a(a), before congress passed the act was arbitrary and irrational. miner's death. notwithstanding my view that the matter is eruv ass'n. v. borough of tenafly, 309 f.3d 144, 158 n.15 (3d for which other actions are taken in order to mentioned. i look forward to working to ensure patient protection and affordable care act, for the effective date of the black lung benefits 41 invoking an irrebuttable statutory presumption of death 1 streamline the application process to provide the internal inconsistencies of the statute, as amended by the 52 s.ct. 322, 323 (1932). surely section 932(l) is more specific case of the miner who died with, but not from, interpreting a statute, we strive to give effect to every word and section 921(a) act, as amended, in section ii of this opinion, we will describe c. byrd of west virginia, the sponsor of the amendment, made iv. jurisdiction & standard of review regulating the "continuation of benefits" for eligible survivors of ______________ this argument in our due process discussion, we see no need to in the final analysis, i concur in the result reached by 1556, section 922(a) which regulates the payment of benefits to eligible for benefits and miners actually receiving benefits vacuum" because the amount the employer pays "directly no. 95-239, 7(h), 92 stat. 95, 100 (1978)(codified at 30 u.s.c. 30 u.s.c. 921(a) (west 1982). the survivor of a miner receiving benefits is entitled to after receiving the clerk's notification, b&g, in its process protections, by contrast, define what the government significant problem with the fcmhsa was hew's high denial 30 u.s.c. 901(a) (west 1982) (emphasis added). of total disability due to pneumoconiosis or, in the case of death the ppaca amendment of section 932(l), as it relieves eligible final order of the benefits review board ("the board") of the benefits serve an additional purpose: the miner's who was determined to be eligible to receive section, benefit payments shall be made by the presumption was "simplyto establish entitlement in the case of a disease. in addition, the circumstance that the court decided regulations which expired after june 30, 1973, for living miners' challenge to section 1556 of the ppaca because b&g has 54 17 state of affairs as "conflicting language," internal 30 u.s.c. 921(a) (west 1976). survivors and nothing in the legislative history, or the history of sections of the act. legislation, the purpose of the provision was to "correct an amendments' changes to 30 u.s.c. 901, the general purpose miner receiving benefits under this part, benefits shall be paid to of any miner due to pneumoconiosis, and in which, in all fairness and justice, should be borne by the public injury to eastern enterprises was not a taking, 524 u.s. at 542, legislation is an "extremely difficult" standard to meet. stern, review we can avoid deciding the constitutional issues it raised campbell again appealed to the board. as we discussed authoritative guide to the statute's construction."); fed. energy of course, as with a substantive due process challenge, "a retroactively imposed liability on mine operators for past acts nation's underground coal mines; that there are a modification of a recent order. transp. co. v. new york, 438 u.s. 104, 124, 98 s.ct. 2646, 932(l) to provide benefits in cases such as campbell's would protection and affordable care act, in statute limits section 932(l) to such a narrow scope of eligible opinion of the court a literal reading of the plain language of section 932(l), party challenging governmental action as an unconstitutional title at the time of his or her death be required to file a new on some other basis." doe v. pa. bd. of prob. & parole, 513 the 1981 amendments added similar limiting language to receive them. after all, notwithstanding section 1556 a claimant such miner." black lung benefits reform act of 1977, pub. l. filed under part c of this subchapter on or after legislative] solution singles out certain employers to bear a substantive due process inasmuch as it is incompatible with the ernest j. campbell's ("ernest") totally disabling u.s.c. 4121 (west 1982)), and the black lung benefits inserted in the act in the 1981 amendments in sections 921 and director, office of workers' compensation eastern enterprises is its specific result, i.e., the [coal act] is in addition, we also think it is appropriate to give some --in cases where a miner has accumulated 15 or already has been the subject of multiple constitutional (1993). on the constitutional questions regarding the mandate but that treated as claims under part c. helen mining, 924 f.2d at 1271 ppaca: which rebutted the presumption that ernest died because of the the latter act covers the whole subject of the earlier one and is employer's proportionate share of the plan's `unfunded vested of death due to pneumoconiosis were intended not tineo v. ashcroft, 350 f.3d 382, 391 (3d cir. 2003) (internal 4 significant number of coal miners living today death. on remand, the alj determined that ernest's medical pneumoconiosis or, except with respect to a claim may not require of a private party at all."). challenges.21 policy the presumption is designed to effectuate. 24 br. at 38.31 benefits and remanded campbell's claim for survivor's benefits 57 need not prove that the miner's death was due to states provide benefits for death or disability due here senator byrd made the comments about the applicabilityof 34 revalidate an approved miner's claim when the miner dies." s. the 1974 agreement providing lifetime health benefits to retired access to these benefits that have been so hard thornburgh, 621 f.2d 565, 574 (3d cir. 1980). accordingly, 1026. causation under 30 u.s.c. 921(c)(3).9 the circumstance that the section 1556 amendment maybe more ambiguous, "we must examine the language itself, the specific b&g, have held that statutes containing irrebuttable economic impact that it contends amended section 932(l) will 95 stat. 1635, 1644 (1981). in its opening brief, b&g challenged section 1556 of the to enable dependents of miners who were receiving black lung 11 2 inconsistency," id. at 22, 30, and so "clearly in conflict" that section 932(l), enacted in the 1981 amendments, congress made on the petition for review in this court was that congress' there is no principle of law barring it from adopting that that it could not have foreseen congress' extension of survivors' context of each statute we interpret. robinson v. shell oil ernest campbell was totally disabled during his lifetime, albeit inquiry, which normally asks whether the regulation "is a substantive due process discussion as b&g has advanced it. pay for approved claims. helen mining, 924 f.2d at 1271. section 932(l) is inconsistent with the act's general statement of death was due to the effects of pneumoconiosis. $1 billion dollars. pet'r's br. at 35-36. b&g arrives at the $1 section 921(c)(3) demonstrates that the rational basis the court experience with the benefits program. id. at 528-29, 118 s.ct. schedules has on the meaning of the phrase `eligible benefits, we will not discuss in depth the changes to sections (internal quotation marks and citation omitted). b&g's claim b&g contends, citing the supreme court's decision in b. the 1972 amendments liberalizing the it, even an issue the parties fail to identify and brief"). as "look[ed] forward to working to ensure that claimants get a fair section 932(l) which congress inserted in 1981 restricting the 55 an "irrebutable presumption," the question is not one of zimmer kunz 1982, but, significantly, it otherwise did not change the wording 921(c)(3). more importantly, nothing in the language of the supreme court's opinion makes it "difficult to distill a guiding legislative classification that congress chose. see fcc v. no. 10-4179 see 20 c.f.r. black lung disease under the classification system established ppaca, it's anyone's guess. on january 28, 2008, campbell filed an appeal with the v. independent ins. agents of am., inc., 508 u.s. 439, 447, 113 legislature to articulate its reasons for enacting a statute, it is the result would be so bizarre that congress could not have explain below, we cannot understand why it cannot do so as miners and their widows. id. at 509, 118 s.ct. at 2139-40. in at 2149. justice kennedy, providing the fifth vote to strike approach. thus, properly understood, section 1556 does not ii. the black lung benefits act above, while this second appeal was pending, congress that claimants get a fair shake as they try to gain in order to receive survivors' benefits. as we discuss below, we principle from eastern [enterprises]." unity real estate, 178 congress could establish such an entitlement without violating the act as the black lung benefits act of 1972. black lung amendment. the economic impact inquiry. therefore, we find that the first we recognize that there could be a distinction between miners pauley, 501 u.s. at 688, 111 30 u.s.c. 921(c)(3). relying on the supreme court's benefits during his or her lifetime died from causes unrelated to benefitting miners who were employed in an underground coal 1999) ("if the government pays just compensation, it may take records revealed that he was suffering from several lung receive benefits at the time of his death does not have to file a egregious inequity" arising under part c so that widows of 45 25, 96 s.ct. at 2897.24 difficult to characterize as anything but advisory." id. see also therefore is not surprising that the understanding of the parties 8 discuss below b&g's argument concerning the constitutionality (c) persons entitled to benefits arising out of coal mine employment." 20 c.f.r. 718.201. in no case shall the eligible survivors of a miner we will refer to the concepts of eligibility and receipt of widow of ernest j. campbell. have no reason to override congress' implicit determination that burden that is substantial in amount, based on the employers' mandate found in 26 u.s.c. 5000a,20 benefits, or to revalidate the claim of the deceased miners. when it fails to meet a minimum rationality standard). showing report that companies paid $312.9 million dollars in lump sum from, pneumoconiosis. nevertheless we will continue our statute ought, upon the whole, to be so construed that, if it can not from, pneumoconiosis, before the act was wisdom, fairness, or logic of legislative choices." parker v. under no circumstances should eligible survivors be required to subject to courtroom fact-finding and may be based on rational court held that section 921(c)(3)'s use of the term "irrebuttable pay an estimated $210 million in benefits, the justification for 23 or death due to pneumoconiosis[.]" pet'r's br. at 32.26 there is disagreement among the parties regarding the the ppaca, campbell is entitled to survivor's benefits without survivor," we should look to section 922(a) which indicates that governmental action implicates fundamental principles of mining, 924 f.2d at 1271. congress, through the 1972 fcmhsa oxymoronic but inherently entitled to little weight." possible interpretation of section 932(l), considering the section statement surely was not stale. benefits predicated on the claim of a miner suffering from the 1981 amendments, could not have been predicted." pet'r's claim, with proof that the miner died from pneumoconiosis. 428 u.s. at 15, 96 s.ct. at 2892; see also stern v. halligan, 158 ultimately override, b&g's assertion that section 932(l) is quite to the contrary, it is clear and unequivocal. statutory would receive such benefits if he were totally establish that pneumoconiosis caused, contributed to, or against violations of both substantive and procedural due adjustments that further the purpose of the act, the 2010 unconstitutional taking weighs in its favor. misapplies the governmental action factor of the taking clause reading of ppaca section 1556, section 932(l) will violate the 932(l) did not have any effect inasmuch as the survivor of a "except with respect to a claim filed under this part on or after 221 (3d cir. 2010). the only reasonable interpretation of whether the retroactive application of section 921(c)(3) violated no merit in b&g's argument that section 1556 will "effectively pending on or after march 23, 2010, the ppaca's enactment unless there is evidence proving that the miner's death was totally disabled by pneumoconiosis. washington, dc 20210-0000 of a deceased miner, who was determined to be eligible to limiting language congress inserted with the 1981 amendments undercuts the basis for its own argument: the dol found that circumstance would be required to "refile or otherwise have recently filed a claim, and are awaiting or survivor's benefits regardless of the absence of causation unity real estate co. v. hudson, 178 f.3d 649, 658-59 (3d cir. effects of pneumoconiosis. (b), and (c)). claims filed by miners whose prior claims were after the effective date of the black lung benefits analyzed as calling into question not the adequacy 7 revalidate ernest's claim for benefits inasmuch as she filed her we raise and consider the question of statutory interpretation there are four parties in these proceedings, b&g, the state questions which were not raised properly in the parties' briefs. campbell failed to establish that pneumoconiosis caused 1978 after the adoption of section 932(1) in the 1977 "substantive due process prevents the government from his statement certainly supports our holding that congress 3300 usx tower congress most clearly expresses its intent through the plain u.s. at 315, 113 s.ct. at 2102 ("[b]ecause we never require a dependents of miners whose death was due to pneumoconiosis: legislative choice to compensate a miner's dependents for the before addressing b&g's constitutional arguments. see tenafly see, e.g., abbott v. united states, 131 s. ct. 18, 2728 lifetimes would not have to file new claims for survivors' b&g suggests, we would avoid ruling on its constitutional ("campbell") claim for survivor's benefits pursuant to has rejected the theory that a legislature's use of an irrebuttable 2. interference with investment backed expectations in ernest's blood and hastened his death. omitted) (quoting traynor v. turnage, 485 u.s. 535, 548, 108 claim filed under this part on or after the effective benefits. therefore, we will proceed on the basis of our u.s. 112, 115-16 (1879)). they are totally disabled due to pneumoconiosis and that their for the third circuit promulgated by him under this part, make death was due to such disease." similarly, 921 and 922 a. section 932(l) 1556 of the ppaca does not have a legislative history, at least effectuated an unconstitutional taking under the fifth regulation against a regulated entity's ability to bear the cost.28 in sum, we reject b&g's substantive due process date of the black lung benefits amendments of (a)(3), and (a)(5), so that after the amendments section 922(a)(2) did "not dispute that [campbell] need not prove that the c.f.r. 718.205(c) that pneumoconiosis did not cause, we knew that causation was not required. from 1982 until unreasonable for b&g to argue that it was blindsided by permit litigants, by agreeing on the legal issue presented, to enhancement of her position that she would have received under filed under part c of this subchapter on or after recapitulation of the various iterations of the black lung absolutely necessary . . . in order that [the] words [of the later consideration." united states v. fisher, 6 u.s. (2 cranch) 358, in interpreting the statute); see also babbitt v. sweet home pneumoconiosis is "a chronic dust disease of the lung and its timely claim for federal black lung survivor's benefits, the claim presumed to have died from pneumoconiosis under section the ppaca restored 932(l) to its status previous to congress, in enacting the ppaca did not alter the wording of characterizing the period between 1977 and 1981 as (1982) ("although the statements of one legislator made during of course, the fact that b&g considers the pre-1981 period as 2010, that reversed an administrative law judge's ("alj") the court recognized that the presumption that a miner who be eligible to receive benefits during their lifetimes. treating section 1556 as having been a nullity from the outset ______________ emily goldberg-kraft 24 eligible survivor of a miner irrespective of the cause of the stated: f.2d 72, 84 (3d cir. 1984). stated: cfr 725.309(c) or 725.310. section 1556 applies statement we have not lost sight of the supreme court's was totally disabled by pneumoconiosis" in section 921(a) and following: ______________ receive benefits upon a miner's death without having to prove thus, a survivor to be entitled to benefits need not establish that campbell. accordingly, i respectfully concur in the remedy to b&g predicated on its disagreement with congress' its regulation of health benefits in the coal industry, given the action. eastern enters., 524 u.s. at 523, 118 s.ct. at 2146 filing of new claims or refiling or revalidation of 2659 (1978)). section 932(l) clearly does not effectuate a legislation's sponsors deserves to be accorded substantial weight arising out of employment in one or more of the due to pneumoconiosis or, except with respect to the time of their deaths. congress first passed section 932(1) in 91-173, 83 stat. 792, 792 (1969) (current version at 30 u.s.c. enterprises. 524 u.s. at 537, 118 s.ct. at 2153 ("when . . . [a language of a statute. id. (citing idahoan fresh v. advantage not have to do is establish that the miner died from procedural due process violations and substantive due process and affordable care act of 2010 ("ppaca"), pub. l. no. 111- social welfare legislation violates substantive due process only subject to the provisions of subsection (b) of this miner's death, but as deferred compensation for michael h. fathered a child with the wife of another man and 60 amendment's due process clause or takings clause. ryan m. krescanko 16 any event, by eliminating the need for a widow to show 30 the introductory section to title iv of the fcmhsa of worker's compensation found that ernest was totally benefits,' calculated as the difference between the present value 31 void, or insignificant.") (quoting market co. v. hoffman, 101 dol's application of the more restrictive permanent regulations iii. facts and procedural history s.ct. 2173, 2178-79 (1993) ("a court may consider an issue compensation programs more clearly, in order to insure as broad coverage in beach communications the court applied the rational basis builders v. defenders of wildlife, 551 u.s. 644, 662, 127 s.ct. it is clear that the section will apply to all claims of miners whose death was due to such disease; miner had died due to pneumoconiosis). quotation marks omitted). such disease; and to ensure that in the future not regard the possible interpretation of section 932(l) that we 1983 primer, 85 w. va. l. rev. 677, 684 (1983) (stating that a derivatively to benefits pursuant to amended section 932(l) provisions in two statutes are in irreconcilable conflict, or where miner who suffered from complicated pneumoconiosis never contention that b&g initially advanced in these proceedings: 35 cannot object if the legislative scheme is buttressed by as possible. b&g construction co., inc, et al. v. director, owcp, et al. language "is ambiguous only if it is reasonably susceptible of campbell's claim was filed after january 1, 2005. respondents who was determined to be eligible to receive basis and runs counter to the stated purpose of the act. claims and also in response to the backlog in the administration disabled. adjudicated all claims filed on or before december 31, 1972, we agree with the director, however, that it is inasmuch as the dol did not approve any state workers' receive survivors' benefits. the dol responded to our letter by that the 1981 amendments inserted: survivors' benefits. the dol, at oral argument before us, and irrational way" by enacting the legislation. turner elkhorn, "except with respect to a claim filed under this part on or after we are aware that there has been a division among the courts petitioners miner provided the miner was receiving black lung benefits 10 (emphasis partially added). framed in terms of a presumption or not. . . [o]ur argued june 23, 2011 miners whose death was due to such disease[.]" 30 u.s.c. that will be filed henceforth, including many benefits, or refile or otherwise revalidate the 1556 on a line of supreme court cases which, according to from introducing evidence that a miner who was receiving "when it takes effect in 2014, the mandate will require all "section 921(c)(3) reasonably fits the logical formula: if a miner provisions to help victims of black lung (mar. 22, 2010) (on the fcmhsa and the 1972 and 1977 amendments followed a states, to coal miners who are totallydisabled due amendment applies to actions of the federal government. see "the 1981 amendments"). helen mining, 924 f.2d at 1273. the 1972 amendments did not alter section 922, which we treat its claim as relying only on the due process clause of down the coal act as it applied to eastern enterprises, 10 more importantlyfor purposes of this case, the court also 52 wording. in re segal, 57 f.3d 342, 346 (3d cir. 1995). the rare injury suffered during the miner's lifetime as a claims of miners already determined eligible at government's physical invasion of property but also may result u.s. at 22, 96 s.ct. at 2896. the court did not doubt that 12 the takings clause" as the challenged statute did in eastern provided to coal miners and their dependents in applauds passage of health care reform act which includes to this disease or who were totallydisabled bythis file with the robert c. byrd center for legislative studies) conclusion from this history is that the wording in section 932(l) these equally plausible options appear to be the verbal compensation programs between the enactment of the fcmhsa the statute authorized awarding benefits to the survivor of a marriage between the husband and the wife. the plaintiff in 1556 ppaca amendment to section 932(l), which congress was totally disabled by pneumoconiosis as the case may be."23 claims, including claims that were finallyawarded the employers made or to any injury they caused, the and paid benefits out of the federal fisc; and (2) pursuant to part failed to show that congress acted in an arbitrary or irrational s.ct. 2407, 2421, 2427 (1995) (scalia, j., dissenting) ("[w]hat ambiguous, we recognize that it might be contended that another (internal quotation marks omitted). while the "justice and payments of benefits in respect of total disability 20 different interpretations." in re visteon corp., 612 f.3d 210, exercise plenary review over all questions of law. id. at 463. for survivor's benefits. benefits, such as campbell's, filed after january 1, 2005, and to coal miners or their surviving dependents. it is, 25 inquiry, b&g falls back on its due process argument that everything from which aid can be derived; and in such cases the amendment's due process clause. irrebuttable presumption: if a miner suffers from complicated decisions in stanley and vlandis, the same cases b&g cites for providing just compensation. u.s. const. amend. v. a strongly has suggested that a statute substantially similar so far before amending it in the ppaca. as we already have rejected b&g argues that the ppaca amendment violates its procedural a miner who the dol determined was eligible to receive with respect to a claim filed under this part on or act as written campbell was entitled to benefits.14 congressional seesaw.13 lung disease. the benefits, while never very high, conclusion that section 932(l) automatically awards benefits to claim of such miner,." 30 u.s.c. 932(l). section 932(c), titled nor is it for us, under a rational basis review, "to judge the the time of their death regardless of the cause of death. system based on death due to pneumoconiosis, into a pension respects in that the section as amended will violate b&g's made after the passage of section 1556, though by doing so we reflected congress' intent to provide for benefits to miners intended it." id. (internal quotation marks and citations caption presumably that of pennsylvania), the director, office eligible survivors. eligible survivor of a deceased miner who was eligible to infer a statutory repeal unless the later statute expressly patient protection and affordable care act (ppaca), leave wide-spread benefits to miners disabled by black withdrawing from a multiemployer pension plan paya fixed and who are totally disabled due to pneumoconiosis their dependents in the event of their death or total from his office that we quote below, see infra note 19, section this omission is no small matter. as the law is presently in the case of death of a miner due to claims, the secretary of the hew promulgated interim 18, 96 s.ct. at 2893. 386 (1805). benefits "under this subchapter at the time of his or her death." pursuant to 33 u.s.c. 921(b)(3). we have jurisdiction over id. at 672. as we discussed above, the amendment to section the ppaca the statutory background has gotten even more pneumoconiosis. see black lung benefits act of 1972, pub. l. history of labor unrest and government intervention." unityreal consider the meaning of section 932(l) within the overall "eligible survivor" by filing a new claim and showing that the fifth amendment inasmuch as the fourteenth amendment `antecedent to...and ultimatelydispositive of' the dispute before 901(a) (west 2007)) (emphasis added). regulations of the secretary applicable under this 51 "disastrous" does not make that so as we question whether the massachusetts v. epa, 549 u.s. 497, 530 n.27, 127 s.ct. 1438, campbell's claim inasmuch as b&g provided medical evidence 17 benefits. we have indicated that the fractured nature of the 16 932(l) is not made in a vacuum inasmuch as the amount that the quotation marks and citation omitted). 37 made retroactively applicable to any claim for survivors' this showing by producing direct evidence that pneumoconiosis 523, 118 s.ct. 2146. b&g's burden is even greater in this case "completely deprives an employer out of whatever amount of dependents of miners who are receiving black lung benefits at 25 senator byrd's provisions in the bill will the 1977 amendments and the accompanying senate report benefits after the deaths of the miners and establish that there applies only to acts under color of state law whereas the fifth before: hardiman, vanaskie, and greenberg, 39 156 cong. rec. at 2083s84s (daily ed. march 25, 2010) v. discussion 2 the miner had been receiving pneumoconiosis disabilitybenefits. fairness underlying the takings clause."). therefore, this factor contending that to the extent that amended 932(l) conflicts with amending section 932(l) so that survivors of miners do not have added). accordingly, the hew under the fcmhsa required briefs do not explain how the act is applied administrativelybut provide the promised health care coverage to miners and their the operator an actual cost of his business . . . [and] a miner's 922(a) of this title in accordance with the regulations of the denied, or by widows who never filed for benefits of which we are aware. notwithstanding the seeming on the other hand, section 922(a) indicates that an eligible survivors to prove entitlement to benefits under part b and has interfered with distinct investment-backed expectations; and benefits revenue act of 1981, pub. l. no. 97-119, 203(a)(6), under section 932(l) as amended bysection 1556 of the ppaca. in a broad context that we have advanced suffers from the same statute in a vacuum is improper, and we must consider the money it is obligated to pay to fulfill its statutory liability."29 of the benefits review board which is the subject of the petition for review at the heart of this was diagnosed with complicated pneumoconiosis died from that claim for survivor's benefits after january 1, 2005. moreover, in three places, two of which are significant on this appeal.5 1981." 30 u.s.c. 932(l) (west 1982). thus, after the 1981 not challenge the director's view as to how congress intended circumstance would be required to "refile or otherwise benefits during their lifetimes but who died from causes observed in our study of amended section 932(l) and other pauley v. bethenergy mines, inc., 501 u.s. 680, 685, 111 s.ct. complicated pneumoconiosis, and the miner's surviving 15 presumption" was not dispositive because the effect of the of black lung claims, congress in 1972, before the effective date though senator byrd made his due process protections might be "a more difficult problem" if taken to bring about the modification of an order, "eligible survivors" are relieved from having to file new claims inquiry into the ppaca beyond considering section 1556. 158 f.3d at 731 (internal quotation marks and citation omitted). for survivors of deceased miners who were receiving benefits at after the effective date of the black lung benefits be more complicated." helen mining co. v. dir., owcp, 924 47 significant number of coal miners living today united states department of labor ("dol") dated august 30, the act as the ppaca has amended it comes to us with the 22 section 422(l) of the black lung benefits act (30 miner who died from pneumoconiosis but whose dependents --for widows of coal miners who [sic] spouses payments on a retroactive basis and, because benefit rates now procedural fairness, but rather whether the "plaintiff 475 u.s. at 225, 106 s.ct. at 1026. the calculation of an benefits, or refile or otherwise revalidate the provide benefits, in cooperation with the states, to evidence and, further, that retroactive application of the address it further here. we note, however, that this argument number of survivors of coal miners whose deaths violated eastern enterprises' substantive due process rights equivalent of m.c. escher's infinite staircase. prior to 1981, employs or employed and who received, or are receiving, federal complicated. interpreting, here the act as amended, as we presume that of any miner due to pneumoconiosis, and in any, 30 u.s.c. 932(c)'s `entitle[ment] to benefits' provision was a purpose for which congress amended section 932(l) with aspects of the fifth amendment. see united states v. salerno, denial of thousands of survivors' benefits claims. lopatto, 85 receive benefits serves to compensate him for the decision and order denying respondent norma g. campbell's not result from coal mine employment; and with the states, to coal miners who are totally new claim after a miner's death. for claims filed on or after the other provisions to which we have referred that are benefits under this part, benefits shall be paid to s.ct. at 2529. most pertinent to this appeal, in the 1977 amended section requires b&g to pay is based on the incidence u.s. at 26-27, 96 s.ct. at 2897. b&g does not suggest that the the case was limited in scope as it applied only to eastern connolly, 475 u.s. at 217, 106 s.ct. at 1022 (internal quotation nation's coal mines; that there are a number of b&g construction company, inc; section 1556 also restored the rebuttable presumption government may not take private propertyfor public use without to coal miners and their dependents in the event of their death or due to pneumoconiosis," pet'r's br. at 31, and section 1556, by amendments congress added section 932(l) to part c which than section 901(a). 2295, 2304 (1976) (indicating that a statement of one of the demonstrates that the inference is not `rationally related' to a death the benefits were being paid and there is no indication that parties to "be prepared at oral argument to discuss what effect, if congress also amended 30 u.s.c. 921(c)(3) to ensure that hastened ernest's death. b&g argued that, under the ppaca b&g first argues that section 1556 has no rational basis by result of his illness itself. paid during such period by each such operator under this section 7 hew's stricter permanent regulations resulted in a surge of amendments of 1981, of a miner receiving the former is a property rule while the latter is a liability rule. pneumoconiosis is unpersuasive. miners who are diagnosed claim for benefits. the board directed the parties to brief the section 1556 applies immediately to all pending in a broader context, as rosenberg suggests we do, is that only claim for survivor's benefits. in making his decision, the alj disease was not black lung, or that the disease did miners who had been approved to receive benefits under no part b of the act the social security administration, in the benefits filed after january 1, 2005, removed a limitation from b&g opposed campbell's claim and, after a formal create a presumption at all. we reiterate that the problem with establishes general classifications, whether underlying the legislation in question?" cospito v. heckler, 742 consequently, we do not need to consider b&g's argument that pneumoconiosis contributed to a miner's death. we are required its intentions clear and manifest: retroactively to january 1, new claim for benefits after the death of the miner. the section dependents by virtue of his illness. and in the discussed, section 932(l) now provides that under no ______________ analysis is not simply an exercise in comparing the cost of a that i cannot join it. i agree with the majority's thorough statutes. see, e.g., new process steel, l.p. v. nlrb, 130 s. favored absent a "clearly expressed congressional intention." might not be the miner's real widow. but what a widow does medical evidence of totally disabled lung disease, such benefits if he were totally disabled." id. at 794 (emphasis havoc" in the coal industry and caused congress again to amend pneumoconiosis in order to receive survivors' benefits even if 28 congress finds and declares that there are a c. does the ppaca amendment to section 932(l) 2518, 2532 (2007) (emphasis added) (internal quotation marks 30 want to make it known that section 1556 of the do not suggest that our opinion of section 1556's meaning even b&g recognized when it filed its brief as at that time it did won. of ed. v. bell, 456 u.s. 512, 526-27, 102 s.ct. 1912, 1920-21 pneumoconiosis caused the miner's death in order to receive "[t]here is a fundamental conceptual difference between a and internal quotation marks omitted). in addition, when had anticipated, are not factors that undermine our conclusion in liability constituting an unconstitutional taking under the fifth in this context, to rely on financial projections based on 30-year pneumoconiosis caused ernest's death, we would remand the 20 campbell was entitled derivatively to survivor's benefits under ct. 2635, 2640 (2010); hinck v. united states, 550 u.s. 501, proceeding, that applying the presumption to him press release, united states senator robert c. byrd, byrd 1982. prior to 1982, section 932(l) allowed eligible survivors to "presume that [the] legislature says in a statute what it means death. see 20 c.f.r. 718.205. the following statement on the floor of the senate after the irrational and violates the stated purpose of the act because it disabled due to pneumoconiosis at the time of their deaths language of the two sections clearly is in conflict in the provisions relating to survivors' benefits. as we indicated 20 interpret a section of the black lung benefits act, we find it and his widow would be entitled to benefits section 901, which states that "the purpose of this subchapter [is disabled. 30. thus, b&g concludes that the 2010 ppaca amendment of miners who were receiving benefits at the time of their death. we think it clear, however, that the benefits 30 u.s.c. 922(a)(2) (west 1982).8 why these reports would bind a different congress in 2010.27 admin. v. algonquin sng, inc., 426 u.s. 548, 564, 96 s.ct. survivors to prove that pneumoconiosis caused a miner's death section 1556(b) as creating an irrebuttable presumption, we whether campbell could prove that pneumoconiosis caused or cause of the miner's death in order to continue receiving fino--who found no evidence that inhalation of coal mine dust insurers must be, and have been prepared for legislative 3. the nature of the governmental action claim of the deceased miner because all miners who have been a claim filed under part c of this subchapter on or 61 state workers' insurance fund, cir. 2000). moreover, to the extent that amended section 932(l) title claims a degree of notice, and will have its due share of quotation marks omitted). implied repeals, however, are not be prevented, no clause, sentence, or word shall be superfluous, b&g's petition for review under 33 u.s.c. 921(c)(3) as the congress' latest legislation on the subject of survivors' benefits, because of its retroactive nature. id. at 547-49, 118 s.ct. at 23 183, 189, 112 s.ct. 551, 556 (1991).17 his widow (if any) at the rate the deceased miner would receive court's analysis in turner elkhorn does not apply to, and here, the title of section or dubious constitutional principles, an opinion that would be citation omitted). in order to prove that a statute "adjusting the as we have indicated we would do, we turn to the show that the miner's death was "due to pneumoconiosis"? eastern enterprises, a company which had stopped to file a claim for benefits "within three years of the discovery such benefits disproportionate to eastern enterprises' of those plans. the mpaa "requires that an employer hardly be termed a `cost' of the operator's business." id. at 24- date. pub. l. no. 111-148. 1556(c) (2010).12 the ppaca amendment did not remove the language congress compensation.3 f.3d 729, 731 (3d cir. 1998) (stating that general economic and benefits under this part, benefits shall be paid to 2 enactment, would have to prove under section 922(a) that she is b&g places most of its takings clause argument on the 3 campbells, or even a significant group of claimants for norma g. campbell, widow of ernest j. benefits to widows, states: co., 519 u.s. 337, 34041 (1997); united states v. tupone, amendment. in that regard, b&g contrasts section 1556 with years ago, "[t]he statutory background we confront could hardly filed under part c of this subchapter on or after 2158-59. as a result of the division on the court, the holding in campbell, pneumoconiosis. under this interpretation of section 932(l), a except by rendering section 1556 so far as at issue here a nullity. conceived reason for the challenged distinction actually does it implicate "fundamental principles of fairness underlying thus, b&g argued that extent that ppaca section 1556 has amended section 932(l) of did not invalidate an enactment "when its operation and effect with rights implicit in the concept of ordered liberty." salerno, pointing to the lack of legislative history relating to the benefits act of 1972, pub. l. no. 92-303, 86 stat. 150, 154 statute: "[thus, a] conflict that is merely cosmetic or that relates before us. effective date of the ppaca amendments, though before their (a) schedules without having to file a new claim and proving that section 1556, there are clues to congress' intent in the wording the clerk of the court, at our direction, issued a notice to the speculation unsupported by evidence or empirical data." id. 22 pneumoconiosis caused, contributed to, or hastened ernest's in his brief, the ppaca amendments did not resurrect all of the was a substantial or contributing cause to the miner's death or though b&g cites both the fourteenth amendment's due regulations that hew promulgated for part b claims. lopatto, benefits for the survivors of miners who had been determined to 38 c. the 1977 amendments enacted until 1978, about two years after the turner elkhorn though we use the term "alternatively" in this opinion, as we the language of section 932(l) in itself is not ambiguous. unconstitutional as applied to eastern enterprises." shenango from non-complicated pneumoconiosis, and yet b&g argues b&g's attempt to distinguish turner elkhorn is removal of the limiting language in 1981 restored the section to the effective date of the black lung benefits amendments of ( 901) contain a causation requirement expressing an intent legislative history of section 1556 is very thin, or that there part b, including to sections 30 u.s.c. 921(a), 922(a)(2), 932(l)). according to the senate report accompanying the certain coal mine operators and the united mine workers me befuddled as to the correct answer to the question with the 1972 amendments congress made it clear that pneumoconiosis or, except with respect to a claim (2) in the case of death of a miner due to to congress's intent." rosenberg v. xm ventures, 274 f.3d process). we nevertheless will discuss b&g's procedural due irrebuttable presumption in section 921(c)(3) was justified for therefore, the purpose of this subchapter to where "some people alone" are forced "to bear public burdens physician, who found that pneumoconiosis decreased the oxygen miners who suffered from complicated pneumoconiosis. claims, or, if the dol had not approved a germane state judgment. pneumoconiosis, an especially severe form of the disease which benefits at the time of their deaths and address b&g's original judgment. death must file a new claim in order to prove that the miner's section of the act, by striking the phrase "or who were totally argument that the alj erred in making his findings under 20 whether this is viewed as a species of waiver, it is enough of a amendments of 1981, of a miner receiving acts occurred. 428 u.s. at 14-20, 96 s.ct. at 2892-94. pneumoconiosis and to the surviving dependents now will discuss the specific facts of this petition. benefits more promptly. there are two key 1556. as the supreme court has observed, "the title of a statute purpose found in 30 u.s.c. 901(a). while the automatic amendment prohibits the states, from depriving any person of the fifth amendment provides that the federal 1 her death be required to file a new claim for states, 534 u.s. 161, 167, 122 s.ct. 694, 699 (2002) (internal who are totally disabled due to pneumoconiosis second, b&g argues that section 1556 violates total disability due to pneumoconiosis." 30 u.s.c. 901(a). her death be required to file a new claim for b&g does not contend that we should make a constitutional in challenging section 1556 and thus the classification, modify an award or denial, in accordance with 20 dependents receiving benefits who would not have received insure that in the future adequate benefits are congress' amendment of section 932(l). we previously have section 921(a), which regulated the payment of benefits or after january 1, 1982, by adding to section 932(l) the phrase issue is entirely distinct from the question here. moreover, midst of trying to determine whether to seek a in response to a backlog of claims and the low approval pneumoconiosis.1 meghan f. wise (argued) respect to claims of survivors, it must operate to ensure that any 43 states that the secretary shall make payments of benefits in 29 complicated pneumoconiosis is "the most severe stage of language that the ppaca amendment deleted from section the court, earlier in its opinion, rejected the mine operators' and regarding the inconsistent earlier sections of the act as provisions byrd inserted into the bill: total disability of any miner due to pneumoconiosis, and in . . . contributed to, or hastened ernest's death and denied her claim are clearly permissible." id. at 24, 96 s.ct. at 2896. could be caused by circumstances wholly unrelated to this matter comes on before this court on b&g under the program." dir. owcp, u.s. dol v. n. am. coal co., lung benefits at the time of his death died of pneumoconiosis, and means in a statute what it says there." conn. nat'l bank v. 2131, 2146 (1998) (plurality op.). though a takings clause retroactive cost of amended section 932(l) will be approximately we are quite clear that the logical reading of the act as it now accordingly, we will deny b&g's petition for which a widow automatically would become an "eligible irrebuttable presumption that a miner who was receiving black amendments, reversing the progress that has been achieved since u.s.c. 901 et seq. (the "act"). the board determined that deaths were due to pneumoconiosis under 30 u.s.c. 921(c)(3). intended to apply to all claims filed after january irrebuttable presumption cases must ultimatelybe no. 92-303, 86 stat. 150, 154 (1972). violated his procedural due process rights inasmuch as the alternatively, b&g argues that if we adopt the dol's d. the 1981 amendments quotation marks omitted). b&g does not distinguish between in the same or another statute which otherwise might be survivors' automatic entitlement to benefits for claims filed on miner who did not die from pneumoconiosis and who was taking of b&g's property without the payment of just 18 out, the fifth amendment's due process clause provides no united states court of appeals in case. at the time that campbell filed her claim for survivor's injury in this case occurred in pennsylvania. "we review the as chief justice marshall once observed, "where the mind pneumoconiosis, "there shall be an irrebuttable presumption that in order to satisfy the third factor of the takings clause the effective date of the black lung benefits amendments of amendment, we think his statement is nevertheless significant would have to file a new claim for benefits or revalidate the sean bajkowski procedural due process protects b&g's fundamental pneumoconiosis. diagnosed with complicated pneumoconiosis automatically are of the amendment. section 1556 is entitled "equity for certain preceded by lengthy and detailed reports and public hearings . . . ppaca only on the ground that the amendment violated the for the alj to resolve a conflict between the two doctors' anything but clear, even the majority's formulation begs the distinct pattern: inconsistency can be resolved without dissent because one or accordance with the sections of part 725 that i board's order in this court and we review that petition in these suffered from totally-disabling black lung disease office of the solicitor claim of such miner, except with respect to a congress finds and declares that there are a without requiring that the survivors show that pneumoconiosis provisions of the act, including 30 u.s.c. 921(c)(3), which, benefits shall be paid during such period by each 5 (1988). the application of the interim regulations in place of surely a widow seeking benefits must file something in order to 15 clearly intended as a substitute" a court may find that the later united states department of labor 118 s.ct. at 2155-56, and instead found that the legislation if we concluded that the act required proof that written, the congressional findings and declaration of purpose argued that the california statute's irrebuttable presumption dependent nonetheless would be entitled to benefits under under 30 u.s.c. 932(l), as amended bysection 1556 of subchapter to provide benefits, in cooperation partially repealed and we can make that choice by applying the unconvincing because its arguments do not address why the simply as compensation for damages due to the labors to discover the design of the legislature, it seizes thereby transforming "what has always been a compensation determined to be eligible to receive benefits under this statutory language is plain and unambiguous we rarely need to complicated pneumoconiosis, would need to prove that diagnosed with complicated pneumoconiosis his death still presumptions violate due process. see heiner v. donnan, 285 which all part b claims would be tendered to the dol and held that campbell failed to prove that pneumoconiosis caused, amendments and 1981. therefore, we find that the second of economic life to promote the common good,' which further, while there is no clear legislative history behind u.s. const. amend. v; u.s. const. amend. xiv, 1. the two sections of the act. nor does congress' later marks and citations omitted). thus, as we understand before the board in this case and originally in the proceedings 1977 and "further liberalized the criteria for eligibility for black 19 the act and thus the latest legislation governing survivors' review of the order of the benefits review board dated august widows of coal miners to prove that the miner died due to senator robert 14 multiemployer pension plan amendments act ("mppaa") did the law provided for that exact scenario for claims filed between or denied prior to the date of enactment of the 29 amendment. see unity real estate co., 178 f.3d at 677. 2524, 2528 (1991). the 1972 amendments made it easier for the language in section 922 that b&g altered its position and will in fact not further the lawful governmental claims filed on or after january 1, 1973, but state workers' extend benefits to eligible survivors regardless of whether a defect as b&g's proposed reading focusing on complicated even assuming we agreed, which, as we explain below claims on or after january 1, 1982, could establish their 1327-28 (3d cir. 1988). section 932(l), along with the other 53 circuit judges survivors' benefits in cases of miners who died with, even if not benefits and the possible status of a particular claim. we, 718.205(c)(3). continuation of benefits. in 2010, the ppaca removed the position that the section applies only to the eligible survivors of the choice was reasonable. therefore, based on the court's manner in enacting the amendment. as the director aptlypoints u.s. 312, 52 s.ct. 358 (1932); bell v. burson, 402 u.s. 535, 91 (1972). thus, after the 1972 amendments section 901 stated due to pneumoconiosis, the date of such death." 30 u.s.c. conduct far in the past, and unrelated to any commitment that s.ct. 1586 (1971); stanley v. illinois, 405 u.s. 645, 92 s.ct. however, are not concerned with this distinction because ernest married woman living with her husband is a child of the eligible survivors," and section (b) specifically is titled justice souter explained, "[t]he contrary conclusion would f.3d 95, 102 (3d cir. 2008). accordingly, it is appropriate that comport with legislative intent, and twice miner died due to the effects of pneumoconiosis represents a to which it had made contributions." id. at 225, 106 s.ct. at effect of the ppaca on the act focusing on the meaning of l. rev. at 685. it accomplished this goal by amending the act forth weighs against finding an unconstitutional taking under the comments about section 1556 after congress passed the processing part c claims it applied the permanent hew "financially strapped," and does not provide anyindication of its between the miner's pneumoconiosis and his death. as we benefits for death or disability due to this disease nevertheless we have the discretionary authority to raise and even though section 932(l), standing alone, is not pneumoconiosis is "totally disabling" is inapposite inasmuch as act was "to spread costs in a rational manner by allocating to widow such as campbell, even though she filed a claim after the those of the sponsor of the language ultimately enacted, are an congress enacted the mppaa in 1980 to address the problem (brb-1: 09-0750 bla) 22 rep. no. 95-209 at 18 (1977). congress first provided benefits to the dependents of coal prevented turner elkhorn from presenting evidence of the effect subsequent amendments to achieve the legislative end.") b&g's argument that section 932(l) is intended to apply from demonstrating, in a particularized to anything less than the operative legal concepts is not enough; 6 therefore, the amendment to section 932 applied to campbell's after january 1, 2005, a seeming inconsistency. the parties' 1981, pub. l. no. 97-119, 95 stat. 1635, 1644 (codified at 26 promulgated by him under this part, make property without due process of law." dusenbery v. united that determination has been challenged. thus, in this opinion black lung benefits act the phrase "or who were totally to prove that pneumoconiosis caused a miner's death, has no held that the district court erred in its conclusion. first, the and were collecting benefits, they would no revert[] the act to the disastrous pre-1981 period when benefits of course, even though we find no ambiguity in section conway, 581 f.3d 198, 202 (3d cir. 2009) (quoting beach limiting language it inserted into the act in 1981, has returned b&g's proposed reading would mean that amended section michael h. v. gerald d., 491 u.s. 110, 120-21, 109 s.ct. 2333, the act itself, at least of which we are aware, supports b&g's 27 ernest's death in order to obtain the benefit of amended section of employers terminating their participation in multiemployer violate due process? unrelated to pneumoconiosis is particularly meritless because longer have to reapply to retain their modest proceedings. he is totally disabled due to pneumoconiosis or that his death seems to have been no debate regarding that section in consideration to senator byrd's statement that we quoted that he connection between the miner's pneumoconiosis and his death which were legal and unknown to be dangerous at the time the impose a considerable financial burden on the coal industry fifth amendment's due process clause which "prohibits the benefits under this subchapter at the time of his or in the case of death of a miner due to decision. b&g further contends that the presumptions in turner rational basis and indeed "thwart[s], rather than further[s], the edward k. dixon that a regulation violates the takings clause in circumstances in after the 1977 amendments, the number of black lung limiting language that the 1981 amendments inserted, returned certain debt to the pension plan. this withdrawal liability is the "where the literal application of the statute will produce a result takings claim and a substantive due process claim," namely that dependents. it is, therefore, the purpose of this the event of their death or total disability due to the ppaca focused on the much more controversial individual stopped working before the act's enactment inasmuch as the coverage until december 30, 1973, and established a "transition is not at issue in this case, was entitled to receive benefits even produce, inc., 157 f.3d 197, 202 (3d cir. 1998)). where the more years of coal mine employment, and there is his widow (if any) at the rate the deceased miner 481 u.s. at 746, 107 s.ct. at 2101 (internal quotation marks and reasonable expectation that the government would not expand the complete destruction of a company, the occurrence of that 33 to the conclusion that in order for section 932(l), as amended by benefits act of 1972, pub. l. no. 92-303, 86 stat. 150 (1972); arising out of employment in one or more of the issue of whether campbell was entitled derivatively to benefits system that awards survivor benefits upon the death of a miner, addressed the mine operators' argument that the retroactive f.3d at 658. however, even if the plurality opinion was binding revalidate an approved miner's claim when the miner dies." s. elkhorn dealt "only with the most severe and irreversible form which it imposes liability which is not proportional to a party's pneumoconiosis inasmuch as it leaves section 932(l) without any (1973). conflicts with section 901(a), we note that, as a basic canon of the exact nature of the conflict in more detail here. as we have would reject its argument that such a presumption necessarily 1977 amendments to the act, reflected congress' intention "not award of benefits to the dependents of miners who received section 932(l) provides that eligible survivors coal act was an unconstitutional taking as to eastern commc'ns, 509 u.s. at 313, 113 s.ct. at 2101). case to the board for consideration of the question of whether were unaware or unaffected in any way by his condition. 428 thus, we have held that even if an economic regulation caused which incorporates by reference 922(a)'s benefits payment to impose a heavy burden of proof on claimants generally and significant number of coal miners living today amendments, section 932(l) read as follows: causation of death provision of the 1981 amendments and no u.s. at 224-25, 106 s.ct. at 1026 (internal quotation marks partially in response to the hew's high denial rate of thus, 30 u.s.c. 932(l) of totally disabling pneumoconiosis among b&g's former who are totally disabled due to pneumoconiosis amended the act by deleting the limiting clause of section 932(l) until congress passed the ppaca in 2010. section 1556(b) of not until the clerk at our direction called the parties' attention to due to pneumoconiosis and thus the board should deny moreover, were we to resolve the meaning of section 932(l) as we recognize that, generally, courts of appeals do not decide both the dol and campbell argued that campbell was entitled shake as they try to gain access to these benefits that have been f.2d 1269, 1271-73 (3d cir. 1991) (en banc).4 widows. id. at 514, 118 s.ct. at 2141-42. suffering they endured due to the miner's pneumoconiosis or as pneumoconiosis." id. at 793 (emphasis added). section 922(a), argument that such a presumption would violate b&g's w. va. l. rev. at 691. credited the opinion of b&g's medical expert, dr. gregory will impose is disproportionate to the coal industry's historic to the categories of persons entitled to benefits under section decisions of the board for errors of law and to assure that it has in the case of a miner who died with, but dependents of miners whose death was due to experience with the problem that the regulation addresses. see again resulted in a backlog of administrative claims and the omitted). to determine whether the language of the act is or section can aid in resolving an ambiguity in the legislation's not violate the takings clause despite the fact that the mppaa rate, congress passed the black lung benefits reform act of examination of the "justice and fairness" of the governmental 200 constitution avenue, n.w. factor in our taking clause inquiry also weighs against finding provides no support for its assertion that the coal industry is time of death indeed, b&g's position in this case 62 section 1556. moreover, it is not clear that it would be proper, fifth amendment. fairness" inquiry is "ad hoc and fact intensive," the supreme of a miner was required to file a new claim for benefits. if we in its opening and reply briefs and, instead, hold that section 28 44 greenberg, circuit judge. claims and december 31, 1973, for survivors' claims. pittston ppaca receive the benefit of an irrebuttable presumption that reading of the statute, there seems to be no circumstance in of the statute as a whole." rosenberg, 274 f.3d at 141 (citations creating an irrebutable presumption, we would disagree with the miner's death unless the miner died from pneumoconiosis. depending upon factors such as whether an eligible miner sought taking or a `public program adjusting the benefits and burdens attorneys for respondent director, office of workers' 1981" to 30 u.s.c. 932(l). congress likewise amended 30 amendments of 1981, pub. l. no. 97-119, 95 stat. 1643 96 s.ct. 2882, 2889 (1976). originally, the fcmhsa created a following the death of a husband. but section 26 a. the federal coal mine health and safety act regulated payment to widows under part b. campbell adequately has proven that pneumoconiosis caused or 717, 104 s.ct. 2709 (1984)] and turner elkhorn were due of part c, amended the fcmhsa and redesignated title iv of during his lifetime.6 disabled by this disease at the time of their deaths." black lung s.ct. 1372, 1381-82 (1988)). suite n-2117 section 1556 two days after congress passed the ppaca so his and on february 6, 2006, campbell, ernest's widow, filed a the effective date of the black lung benefits to compensate survivors and dependents of miners "whose approach that essentially acknowledged that under the amended costs of the employees' disabilities to those who have profited 1981. entities." id. thus, in connolly the supreme court held that the secretary under this part as follows: the majority opinion in this case, so it is with special regret of the vested benefits and the current value of the plan's assets." first, congress after the appearance of the word by proving that the miner suffered from "complicated amendment will require a lump sum payment of approximately rejected the premise that a legislature must articulate the rational pet'r's br. at 23; pothering v. parkson coal co., 861 f.2d 1321, insofar as it contends that the 2010 amendment has no rational b&g also argues that campbell has failed to rather, the touchstone of the economic impact question is 1. economic impact 9 pneumoconiosis" as defined in 20 c.f.r. 718.304, thereby black lung benefits under the act. ernest died on april 4, 2005, the statute to its original function: automatically continuing 56 applicable to all claims for benefits filed after january 1, 2005. finally, the 1981 amendments also reversed the 1972 524 u.s. at 505-09, 118 s.ct. at 2137-40. beginning in 1974, inconsistency of section 1556 and the earlier version of the act, that he died from causes unrelated to that totally disabling it is clear that notwithstanding the enactment of section the act in 1981 with the black lung benefits revenue act of beach commc'ns, inc., 508 u.s. 307, 315, 113 s.ct. 2096, 2102 the ppaca, entitled "equity for certain eligible survivors," due to such disease or who were totally disabled "disease" at appropriate places inserted into section 901 of the not be clear with respect to elimination of the causation of death extract the opinion of a court on hypothetical acts of congress amendment. a plurality of the supreme court held that the declaration of the act. significantly, section 932(c) states the nor did congress alter section 901, the general purpose violations and, accordingly, it makes arguments under both also does not support b&g's argument that section 932(l) is an of workers' compensation programs, and norma g. campbell, determined that this provision violated due process because it identity of the biological father. pneumoconiosis, a more severe form of pneumoconiosis than faulty as it is clear that from the time of the adoption of section presumption of constitutionality and b&g has the burden to inclusive than it need be to further that particular goal is not subchapter at the time of his or her death be required to file a 3 requirement in the 1981 amendments as "progress," clearly "the analysis under substantive due process is essentially the did in his statement that we quoted above: operative legal concepts governing survivors' benefits to the applicability of that section to claims filed before january 1, employer's liability under the mppaa "is not made in a we start, as always, with the language of the statute we are "in the case of death of a miner due to pneumoconiosis or of a payments interchangeably. turner elkhorn about two years before congress enacted section benefits, overrides the conflicting language in sections 921 and id. (internal quotation marks omitted). as we have noted, there congress took a different view when it enacted the ppaca as similarly, b&g's liability under the amended section hastened ernest's death. fifth amendment of the united states constitution in two coverage for black lung disability would pay eligible miners' there will be a legal presumption that the miner 30, 2010. 9 presumption prevented him from proving that he was the in both cases congress unconstitutionallyhad taken the assets of circumstances "shall the eligible survivors of a miner who was workers insurance fund (though not further identified in the survivors' benefits, fit into either of these categories. disease to coal miners or their surviving elkhorn is misplaced inasmuch as section 932(l) was not asserts that the court decided turner elkhorn "before congress taking bears a substantial burden." eastern enters. 524 u.s. at under the fifth amendment's takings clause involves an 626 f.2d 1137, 1138 (3d cir. 1980). amendments of 1981, of a miner receiving negate every conceivable reason which might support the due process rights inasmuch as it precludes a mining company program and it continues to do so today. when the dol began insurance that qualifies as `minimum essential coverage' or pay under the court's holding in turner elkhorn, if a miner is we also point out that, as the director explains in great detail of miners to continue receiving benefits without having to file a pneumoconiosis." app. at 398; see generally pet'r's br. it was 21 58 vi. conclusion there must be a clear repugnancy between the two provisions." are survivors automatically entitled to benefits, or must they 1208 (1972); vlandis v. kline, 412 u.s. 441, 93 s.ct. 2230 congress simply has set forth as substantive law a provision that survivor has to prove that a miner was eligible to receive prior amendments to the act which, according to b&g, "were 21 40 principle the supreme court has set forth that "[w]e will not mine for 15 years or more found in 30 u.s.c. 921(c)(4). 13 19 courts weigh in deciding whether a regulation amounts to an hastened the death of her husband. for the reasons that follow, even though we take the presumption against implied repeals application of the act. see united states nat'l bank of oregon fifth amendment's due process and takings clauses, an statement that "[p]ost-enactment legislative history is not only mining coal in 1965, challenged the coal act as imposing a enactment of that act. had available to it the overwhelming evidence of the failures of in no case shall the eligible survivors of a miner the court in turner elkhorn suggested that the question of as the united states code has grown in scope and violate the fifth amendment's takings clause? 48 enterprises. 14 ernest's death.32 engaging in conduct that shocks the conscience . . . or interferes pneumoconiosis. however, the supreme court squarely has eligible survivors of miners who were eligible to receive supreme court precedent. in turner elkhorn the supreme death that is due to causes other than the operator's conduct can in any event, the similarity between section 932(l) and to pneumoconiosis and to the surviving "[t]he only binding aspect of the fragmented decision in precedent, which it is not,30 receive benefits at the time of his death, are not required to file a echo v. dir., owcp, 744 f.2d 327, 330 (3d cir. 1984) benefits under this subchapter at the time of his or my colleagues in spite of the uncertainty expressed here. as of benefits for eligible survivors of miners who were totally inquiry and the substantive due process analysis are correlated complicated by the presence of limiting language in sections 921 50 congress finds and declares that there are a intended section 1556 to ensure that survivors of miners who disabled due to pneumoconiosis and to the claimants such as campbell, who did not seek derivative by him under this part, make payments of benefits in respect of the majority notes, before the benefits review board, b&g b&g's second argument also runs headlong into the lesson of eastern enterprises is 18 and to insure that in the future adequate benefits old data. 4 proportionality: "the size of a liability only weighs in favor of 6 employees. therefore, the situation here is not an instance compensation for the suffering endured by his containing an irrebuttable presumption that a child born to a 42 30 u.s.c. 932(c). section 922(a)(2), relating to payment of section 932(l) to its pre-1981 function: ensuring the continuation $1 billion. amendments of 1981". attorneys for petitioners of the ppaca amendment was the only issue it properly raised 932(l). but if campbell succeeds in proving that she is an we are satisfied that by removing the limiting clause in court considered due process challenges to a number of returned section 932(l) to its pre-1981 amendments function as be classified as "eligible survivors" under section 932(l) so as to even if a final order is modified, or actions are finding a taking insofar as it is out of proportion to the reads is that congress, by removing with section 1556 the time of their deaths are not required to file new claims for complicated pneumoconiosis. court has identified three factors which have "particular justification the court found for retroactive application of the 932(f) (west 1976). the statute of limitations combined with survivor" under section 922(a) upon her husband's death on august 30, 2010, the board reversed the alj's congress passed a statute intended to provide which congress used and to avoid any interpretation which were totally disabled due to pneumoconiosis during their 1075 (d.c. cir. 2005)).18 classification serves. to this disease; and that few states provide benefits under subchapter c. renders an element of the statute superfluous. see duncan v. thus amended section 921(a) to state: two sections, and b&g has not provided any such method our function in ascertaining the meaning of the act is place. in that regard, the possible alternative reading of the act factor in our taking clause inquiry that eastern enterprises sets benefits under the subchapter and is required to file a claim to under the amended act, miners' survivors who filed administered part c as a federally run workers' compensation section 921(c)(3).25 provided that "[i]n no case shall the eligible survivors of a miner due to pneumoconiosis and to the surviving dependents of 46 its procedural due process arguments, the district court legitimate legislative classification . . . ." malmed v. nation's coal mines; that there are a number of 600 grant street inasmuch as he was the sponsor of section 1556, a single amendments, benefits are awarded onlyif the partyopposing the "disastrous," b&g relies on gao reports from 1980, 1982, and have on it in particular and the coal industry in general. 27 sequelae, including respiratory and pulmonary impairments, pension plans and by doing so adversely affecting the solvency germain, 503 u.s. 249, 253-54, 112 s.ct. 1146, 1149 (1992). grounds its procedural due process argument against section disabled by coal workers' pneumoconiosis and awarded him united states department of labor; (codified at 30 u.s.c. 922, 923 (west 1982)) (collectively provide benefits for death or disability due to this definition, totally disabled." pet'r's replybr. at 9. finally, b&g adhered to its own standard of review." bethenergy mines inc. pneumoconiosis caused ernest's death, we do not discern what "opportunity to be heard at a meaningful time and in a appealing a decision or order, or who are in the due to pneumoconiosis. see mancia v. dir., owcp, u.s. dol, causation between the miner's pneumoconiosis and his death of procedures but . . . the adequacy of the `fit' that pneumoconiosis caused the miner's death. depends on the relationship between the employer and the plan the employers there involved."). 1556 will also benefit all of the claimants who ppaca section 1556 amendment of section 932(l) violates the states, 91 f.3d 463, 468 (3d cir. 1996) (quoting penn cent. was due to pneumoconiosis, or that at the time of his death he from a cause unrelated to pneumoconiosis. lopatto, 85 w. va. b. does the ppaca amendment to section 932(l) i. introduction cir. 2009). sometimes an apparent contradiction or we found, understandably we think, that congress' intent might hardiman, circuit judge, concurring in the judgment. entitlement to benefits for claims filed on or after january 1, furthermore, even if this was the proper inquiry, b&g pneumoconiosis. such operator under this section to the categories with complicated pneumoconiosis without regard for the 50710 (2007); hagan v. rogers, 570 f.3d 146, 15356 (3d amended section stated: helpful to recount the history of the act while focusing on 2340-41 (1989) (plurality op.). in michael h. the supreme context in which that language is used, and the broader context provisions of this part, and the regulations that: are provided to coal miners and their dependents were awarded with little, if any, medical evidence of disability a widow who filed a claim for survivor's benefits on or after egregious inequity" arising under part c so that widows of rate of widows' claims who could not produce evidence that negates any language suggesting that an eligible survivor of a opportunity to a fair and just hearing." pet'r's br. at 30. b&g billion dollar figure by taking the gao's estimate in the 1980 was determined to be eligible for benefits and at the time of his language in other sections of the act, section 932(l) is 1982." this change was effectuated by adding the phrase from the application of an economic regulation, such as the act. purpose of the act "is to provide benefits for disability or death "taking" under the fifth amendment is not limited to the 130 f.3d 579, 584 n.6 (3d cir. 1997). a dependent could make department of health, education, and welfare (hew), deciding a constitutional question if the case maybe disposed of programs, explicitly described the claimed benefits of section 1556 than he (statement of sen. byrd). passed, the benefits serve as deferred non-existent overarching principle that a mining company health and safety act of 1969 ("fcmhsa"), 30 u.s.c. 841 complicated pneumoconiosis for the first time at oral argument even assuming that we agreed with b&g's characterization of a conclusive presumption does, of course, due process analysis in turner elkhorn. "continuation of benefits." pub. l. no. 111-148, 30 u.s.c. 932(l) (west 1982), as amended by black lung claim for benefits, or refile or otherwise revalidate the claim of of the section, and it therefore follows that notwithstanding the 932(l). b&g has argued that this limiting language requires stated purpose of the [act]." pet'r's reply br. at 10. pneumoconiosis after the act was passed, the secretary applicable under this section . . . ." 30 u.s.c. 932(c). were intended to be liberally awarded. u.s.c. 932(l)) is amended by striking ", except same limiting language in those sections. stated, in relation to the coal act, that "[coal] companies had no contribute to, or hasten ernest's death and it did not consider senator byrd's office in a march 22, 2010 press release more we note that both the supreme court and the court of the act. we think it evident that there is no way to reconcile the foreclose the person against whom it is invoked inquire into the meaning of the statute beyond examining its entitlement to benefits onlybydemonstrating that the miner died 932(l) applies only to miners diagnosed with complicated were due to this disease; and that few states see john s. lopatto iii, the federal black lung program: a the claims administration of the [act]," and, since then, 922(a)(3) and (a)(5), aside from noting that congress used the that question. b&g filed a timely petition for review from the on petition for review of a decision and order insolvent, congress passed the coal act, which required coal an "eligible survivor" by showing that pneumoconiosis caused by this disease at the time of their deaths; and to amend 901, 921, and 922, as congress had done in 1981. united states, as the due process clause of the fourteenth survivor." period" between july 1, 1973, and december 31, 1973, during diseases not related to coal dust exposure and, consequently, pneumoconiosis and thus "denies the employer of all and returned section 932(l) to its pre-1981 form. the logical debate may not be controlling . . . senator bayh's remarks, as know, the congress that passed the ppaca in 2010 failed to widows in particular." id. at 1326-27. black lung benefits at the time of their death. that those completely unaware of and unaffected by pneumoconiosis or a 932(l) does not pose a disproportionality problem because b&g contribute to new multiemployer benefit plans that would michael h. the statute was applied to provide that a child benefits during their lifetimes will result in some miners' 32. despite these apt phrases, the majority finds it "quite awarding of benefits does not rebut the presumption of death pub. l. no. 111-148, 1556.10 decision and order, and remanded the claim to the director for dependents. it is, therefore, the purpose of this 1982, the function of section 932(l) was to continue benefits for eastern enterprises, that "the liability that the new amendment procedural due process rights. a plurality of the supreme court awards benefits to miners who may have died from causes other 26 than pneumoconiosis. b&g's argument that complicated knowledge that his dependent survivors would 49 suffering he endures. arising out of employment in one or more of the we note that ppaca relieves a survivor from filing a new patient protection and affordable care act is 11 later congress' appropriations bills to interpret a statute that an 59 miner totally disabled from pneumoconiosis even if he died section 1556 to be applied. purpose of the act -- to compensate victims and survivors for 96 s.ct. 893, 902 (1976) (internal quotation marks omitted). appeals for the district of columbia circuit in the opinion the if the miner died from causes unrelated to complicated survivors of miners who suffered from complicated between the classification and the policy that the history . . . ."). thus, while senator byrd's statement that he other than senator byrd's statement and a press release ordinarily will not be compensable.'" new jersey v. united court considered the constitutionality of a california statute provisions of this part, and the regulations would violate the fifth amendment's due process clause. in rep. no. 95-209 at 18 (1977). adhering to congress' intent, we pneumoconiosis was the cause of the miner's death in order to presumption automaticallyviolates the due process clause. see process cases, it would be surprising indeed to discover now that found in section 921(c). id. miners, the coal act imposed severe financial liability on it for substantive due process rights and it will effectuate a regulatory (filed: october 26, 2011) biological father before the state terminated his libertyinterest in and that, in order to determine who qualifies as an "eligible after our intensive study of the act and of the ppaca has a diagnosis of complicated pneumoconiosis, he is, by in light of michael h., even when a legislature employs effect in the statutory pattern. indeed, under our proposed and the expiration of part b, starting in 1973 the dol respect of death of any miner whose death was sarah m. hurley (argued) controlling and implicitly repeals the other sections. ." pet'r's br. at 31. moreover, b&g asserts that most those who brought the legislation to the floor thought it meant stated that the purpose of the provision was to "correct an grounds to invalidate it under a rational basis review. see brian have set forth at this point as rendering that section ambiguous. authorized by [section 921(c)(3)]'s presumption with the provisions of this part, and the regulations promulgated provisions which governed black lung benefits determinations c of the act, the department of labor (dol) administered all controlling." d. ginsberg & sons v. popkin, 285 u.s. 204, 208, to this disease to coal miners or their surviving application of section 921(c)(3) to miners who stopped working ______________ statute implicitly repeals provisions of the earlier one. branch v. [is as solid evidence] as any ever to be found in legislative we do not do, with b&g's characterization of section 1556 as a means to provide a miner with peace of mind that his congress has eliminated three of the rebuttable presumptions claim for benefits provided the survivor files a claim for benefits confining the applicability of the section to claims filed prior to pneumoconiosis "except with respect to a claim filed under part section 1556, it also unquestionably will further congress' goal retain the causation requirement. the majority refers to this v. process and substantive due process arguments separately. respect to the death of any miner who was totally disabled by 32 932(1) in the 1977 amendments until 1981 the act provided for walker, 533 u.s. 167, 174, 121 s.ct. 2120, 2125 (2001) ("[a] arguments. if is, of course, a basic tenet that "we must avoid prior to the 1981 amendments. see resp.'s br. at 24-26. clear" that 932(l) ensures the continuation of benefits for an hold that amended section 932(l), being the last amendment of that congress acted arbitrarily and irrationally in enacting congress, in determining whether section 1556 violates the fifth file a new claim for benefits if the miner was eligible to receive however, point out that the basic premise of b&g's argument is the effective date of the black lung benefits 2010, we knew that causation was required. after the 30 u.s.c. 932(l). further, we disagree with b&g's argument that amended pneumoconiosis caused the miner's death. accordingly, we do disability benefits at the time of death automatically to continue as my colleagues correctly note, congress amended test in the context of an equal protection analysis. nevertheless, same as an equal protection analysis, i.e., is there a rational basis based on the award of lifetime benefits to ernest regardless of which the claimant seeks to modify a denial, or administrative hearing, an alj determined that pneumoconiosis new claim for benefits, or refile or otherwise revalidate the a provision which 137, 141 (3d cir. 2001). of course, in this endeavor in this case who was determined to be eligible to receive benefits under this would receive such benefits if he were totally only to the survivors of miners who suffer from complicated 32 inc. v. apfel, 307 f.3d 174, 185 (3d cir. 2002) (internal we wrote helen in 1991 and since then with the enactment of 932(l) does not change the similarityof the effect and purpose of smith, 538 u.s. 254, 273, 123 s.ct. 1429, 1441 (2003) (internal campbell's medical expert, dr. david evanko, ernest's treating regardless of whether pneumoconiosis caused the death of a respect of death any miner whose death was due to before we address the constitutionality of section 1556, daniel l. leland, administrative law judge to 1982 could continue to benefit from the automatic see eastern enters. v. apfel, 524 u.s. 498, 522-23, 118 s.ct. benefits act (act). my point of departure lies in the analysis. consequently, the board had no need to consider campbell's the secretary shall, in accordance with the et seq. see usery v. turner elkhorn mining co., 428 u.s. 1, 8, survivors from having to file new claims for benefits in the first question because it sheds no light on who is an "eligible as "[p]ersons entitled to benefits," states that "[b]enefits shall be is only liable for paying benefits to the survivors of the miners it survivors if still effective as written retains the limiting in re chevron corp., 650 f.3d 276, 289 n.15 (3d cir. 2011). s.ct. 1563, 1569 (1960), but a "rational measure to spread the chapter of cmtys. for a great or., 515 u.s. 687, 714, 727, 115 omitted). the three factors are: "(1) the economic impact of the survivors of coal miners whose deaths were due argument, took the position that in resolving its petition for though b&g regards the addition of the causation of death in the event of their death or total disability due to caused, contributed to, or hastened ernest's death--over federal rule of appellate procedure rule 28(j) letter and at oral also under part b, regulated payments to widows and stated that: was receiving black lung benefits at the time of his death and basis underlying a particular statute. beach commc'ns, 508 but the same can be said of any legal rule that january 1, 1982, must prove that the deceased miner died due to from the fruits of their labor. . . ." turner elkhorn, 428 u.s. at 30 u.s.c. 901 (west 1976). in addition, the 1972 was a causation between the miners' pneumoconiosis and their supreme court quoted made that statement in regard to using a deaths.19 was totally disabled by pneumoconiosis. fifth amendment's due process clause protects individuals board which vacated the alj's decision and order denying as germane here to amended section 932(l) would not violate the section 932(l), standing alone, is that survivors of miners who meaningful manner." mathews v. eldridge, 424 u.s. 319, 333, 1556 supports a reading of that section that the amendment subsequent to the date of enactment of the patient construction company's petition for review of a decision and 30 u.s.c. 932(l), as last amended by the patient protection 442 f.3d 145, 151 (3d cir. 2006). for reasons we may never in 1981, congress limited the scope of section 932(l) by b&g's procedural due process argument is that it depends on a 85 w. va. l. rev. at 691. in addition, part c required widows as a whole," armstrong v. united states, 364 u.s. 40, 49, 80 section 932(l) as amended does not violate the fifth more of the options presented conduces to an absurd result. 932(l) there is no escape from the reality that the act contains surviving dependents of miners whose death was physical invasion of land and thus more likely to constitute a born to a married woman living with her husband is benefits under this part benefits shall be paid to specifically, b&g argues that application of amended section amended section 932(l). congress' decision automatically to has the same meaning as it did prior to the 1981 amendments. it mine operators that had signed the private agreements to the board held that section 932(l), as amended by section 1556 inconsistent with the language of section 932(l). but "[w]here though we alluded to the internal inconsistency in the the funds also provided for lifetime health benefits to retired would receive such benefits if he were totally passage of the ppaca: approvals for claims filed under part b. pauley, 501 u.s. at 687, u.s.c. 901, 921(a), and 922(a)(2), which made clear that with the legislative historyin mind, we 111 s.ct. at 2529. section 1556(b) of the ppaca, to have any meaning at all with miners who had been approved to receive benefits under no which congress eliminated in section 932(l) when it passed the amended 30 u.s.c. 932(l) of the act with the ppaca section `applicable individual[s]' to either obtain a level of health contradict[s] the original act or unless such a construction is process, b&g must show that congress "acted in an arbitrary amendments, specifically provided benefits to survivors of a was not the cause of ernest's death and thus denied campbell's both [pension benefit guar. corp. v. r.a. gray& co., 467 u.s. in its petition. association providing for health care funds for coal workers. a penalty." n.j. physicians inc. v. president of the u.s., 653 federal coal mine health and safety act of 1969, pub. l. no. omitted). b&g argues that each of the three factors which concurred in the judgment but stated that the governmental a taking. lung benefits amendments of 1981." 30 u.s.c. 921(a). benefits to the dependents of miners who were receiving section 932(l) always has governed the continuation of benefits demonstrably at odds with the intentions of its drafters, or where 1556 amendments and made the amendments retroactively disease at the time of their deaths; and that few the court concluded, however, that the its original function: "[b&g] does not dispute that [campbell] physical taking of b&g's property, nor, as we discussed above, precedential title to provide benefits, in cooperation with the miners would agree with that characterization. disease presented a problem with regard to the miners who 8 regulations which were much more restrictive than the interim unlike amended section 932(l), explicitly provides for an enterprises on the basis that even though it never signed onto cannot be responsible to a survivor for benefits on account of a miner who was eligible to receive benefits at the time of his claim of such miner,.11 takings clause. see connolly v. pension benefit guar. corp., contended that the ppaca amendment, by removing the to] provide benefits . . . to coal miners who are totally disabled respect of death any miner whose death was due judge greenberg has done yeoman work in crafting january 1, 1982, section 932(l) prior to the enactment of section dependents will continue to receive benefits after his death. we payments of benefits in respect of total disability section 922(a), in turn, still contains the limiting language no. 10-4179 had been determined to be eligible for black lung benefits at the harmonize apparent inconsistencies within or between new claim or otherwise establish that pneumoconiosis was a nevertheless motivated the legislature."). "[a] legislative choice is not the process for evaluating a regulation's constitutionality administrative practice, however, did not b&g argues that the director's reliance on turner ... amendments inserted the phrase "or who at the time of his death now reads as it did after the 1977 amendments but before (2010). but here, there is nothing absurd about either result. without regard to the cause of the miner's death." pet'r's br. at pittsburgh, pa 15219-0000 among other measures, the 1981 amendments eliminated specifically held in pothering, 861 f.2d at 1327-28, that, prior to


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