Keene v. Consolidation Coal Co.

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-1948

JACQUELINE J. K EENE,
Petitioner,
v.

C ONSOLIDATION C OAL C OMPANY and
D IRECTOR, O FFICE OF W ORKERS’
C OMPENSATION P ROGRAMS,
U NITED S TATES D EPARTMENT OF L ABOR,
Respondents.

Petition for Review of Orders of
the Benefits Review Board.
Nos. 09-BLA-0352 & 09-BLA-0403

A RGUED A PRIL 6, 2011—D ECIDED M AY 19, 2011

Before F LAUM, E VANS, and T INDER, Circuit Judges.
E VANS, Circuit Judge. Several cases have been filed
around the country concerning the constitutionality of
the recently enacted Patient Protection and Affordable
Care Act (PPACA), Pub. L. No. 111-148 (2010). Most of
the litigation centers around the “individual mandate”
2 No. 10-1948

found in § 1501, which requires individuals to purchase
federally-approved health insurance or pay a monetary
penalty.1 This case involves the constitutionality of a
less well-known (and arguably less controversial) section
of the Act (§ 1556).
Jacqueline Keene, the wife of a deceased coal miner,
argues that her claim for black lung benefits should be
remanded to the administrative law judge (ALJ) because
§ 1556 entitles her to a presumption under the Black
Lung Benefits Act (BLBA), 30 U.S.C. §§ 901 et seq.,
that was not available when the ALJ issued his decision
denying benefits. The government agrees. Mr. Keene’s
former employer, Consolidation Coal Com pany
(Consol), however, contends that, by virtue of its retro-
active nature, § 1556 violates the due process and
takings clauses of the U.S. Constitution.2

1
The score is currently three-to-two (that is, district court
judgments) in favor of constitutionality. See Mead v. Holder, ___
F. Supp. 2d ___, 2011 WL 611139 (D.D.C. Feb. 22, 2011) (finding
mandate constitutional); Florida ex rel. Bondi v. U.S. Department
of Health & Human Services, ___ F. Supp. 2d ___, 2011 WL 285683
(N.D. Fla. Jan. 31, 2011) (finding mandate unconstitutional);
Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768 (E.D.
Va. 2010) (same); Liberty University, Inc. v. Geithner, ___
F. Supp. 2d ___, 2010 WL 4860299 (W.D. Va. Nov. 30, 2010)
(finding mandate constitutional); Thomas More Law Center
v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010) (same).
2
Consol is on the hook for any benefits awarded to Mrs. Keene
because it is the coal mine operator that most recently
(continued...)
No. 10-1948 3

Mrs. Keene’s appeal actually encompasses two
benefits claims: hers (the “survivor’s claim”) and her late
husband’s (the “miner’s claim”). Before the ALJ, the
dispositive issue on the miner’s claim was whether
Mr. Keene’s total disability was due to pneumoconiosis
(that is, black lung disease).3 In addressing that claim,
the ALJ considered the opinions of Drs. Perper, Pineda,
Tuteur, Wiot, Oesterling, and Fino. Only the first two
doctors offered testimony supportive of the claim. The
ALJ discounted the opinion of Dr. Perper because he
(1) diagnosed a “new” kind of pneumoconiosis, and
(2) found that Mr. Keene did not suffer from conges-
tive heart failure. Both of these findings were contra-
dicted by other medical testimony. The ALJ dis-
counted the opinion of Dr. Pineda, despite recognizing
that he was Mr. Keene’s treating physician, because
Dr. Pineda’s testimony was conflicting: he stated both
that Mr. Keene’s disability was due to pneumoconiosis
and that Mr. Keene’s level of disability would probably
have been the same even if he had not worked in coal
mines.
The dispositive issue on the survivor’s claim was
whether Mr. Keene’s death was due to pneumoconiosis.

2
(...continued)
employed her husband for at least one year. See 20 C.F.R.
§§ 725.494-725.495.
3
Pneumoconiosis is specifically defined as “a chronic dust
disease of the lung and its sequelae, including respiratory
and pulmonary impairments, arising out of coal mine em-
ployment.” 30 U.S.C. § 902(b); 20 C.F.R. § 718.201(a).
4 No. 10-1948

Here, the ALJ considered the autopsy report, the death
certificate, and the reports of Drs. Perper, Pineda,
Oesterling, and Tuteur. Again, only the first two doc-
tors’ testimony supported the claim. Dr. Pineda
opined that pneumoconiosis contributed to, but did not
hasten, Mr. Keene’s death. But the ALJ discounted this
testimony because Dr. Pineda did not explain his rea-
soning. And Dr. Perper’s opinion was again afforded
little weight because he found that Mr. Keene did not
suffer from cardiac disease. This finding even conflicted
with that of Dr. Pineda, who concluded that, although
pneumoconiosis contributed to Mr. Keene’s death, his
cardiac condition was a major factor as well. The ALJ
therefore determined that Mrs. Keene had not met
her burden of proof regarding either claim and denied
benefits. The Benefits Review Board affirmed.
After the Board issued its decision, Congress passed the
PPACA. Section 1556 of the PPACA amended the BLBA
by resurrecting a rebuttable presumption (the “15-year
presumption”)4 and making it applicable to claims filed
after January 1, 2005, that were still pending on or after
March 23, 2010. The 15-year presumption provides:
if a miner was employed for fifteen years or more
in one or more underground coal mines . . . and if
other evidence demonstrates the existence of a totally
disabling respiratory or pulmonary impairment, then

4
The 15-year presumption was originally added to the BLBA
in 1972. See Pub. L. No. 92-303, § 4(c) (1972). In 1981, Congress
limited its availability to claims filed before January 1, 1982.
See Pub. L. No. 97-119, § 202(b)(1) (1981).
No. 10-1948 5

there shall be a rebuttable presumption that such miner is
totally disabled due to pneumoconiosis, that his death was
due to pneumoconiosis, or that at the time of his death
he was totally disabled by pneumoconiosis. . . . The Secre-
tary may rebut such presumption only by estab-
lishing that (A) such miner does not, or did not,
have pneumoconiosis, or that (B) his respiratory or
pulmonary impairment did not arise out of, or in
connection with, employment in a coal mine.
30 U.S.C. § 921(c)(4) (2010) (emphasis added). In
remarks made two days after the passage of the PPACA,
the late Senator Robert Byrd 5 stated that § 1556 would
“benefit all of the claimants who have recently filed a
claim, and are awaiting or appealing a decision or order,
or who are in the midst of trying to determine whether
to seek a modification of a recent order” and would
help “ensure that claimants get a fair shake as they try
to gain access to these benefits that have been so hard
won.” 156 Cong. Rec. S2083-84 (daily ed. Mar. 25, 2010)
(statement of Sen. Robert Byrd).
There is no dispute that the miner’s claim does not
qualify for the 15-year presumption, as it was filed in
2001. The survivor’s claim, however, was brought on
January 3, 2005.
We begin our analysis with a brief review of the ALJ’s
decision, which we will not overturn if it was rational,

5
When he died in 2010, Senator Byrd of West Virginia (with
51 years of service) was the longest-serving Senator in the
history of the United States Congress.
6 No. 10-1948

supported by substantial evidence, and consistent with
governing law. See Old Ben Coal Co. v. Director, OWCP,
292 F.3d 533, 538 (7th Cir. 2002). To be entitled to
benefits under the BLBA, a miner must demonstrate
that (1) he had pneumoconiosis, (2) the pneumoconiosis
arose out of coal mine employment, (3) he was
totally disabled, and (4) the total disability was due to
pneumoconiosis. See 20 C.F.R. §§ 718.202-718.204.
Mrs. Keene argues that the ALJ ignored evidence re-
garding the last element.
Here, the ALJ considered the doctors’ reports and
correctly noted that only the opinions of Drs. Perper and
Pineda supported the claim. The ALJ then explained why
he discounted those opinions: (1) Dr. Perper’s find-
ings—that Mr. Keene suffered from a “new” kind of
pneumoconiosis and did not have congestive heart
failure—were contrary to other medical evidence; and
(2) Dr. Pineda’s findings—that Mr. Keene’s disability
resulted from pneumoconiosis and that Mr. Keene’s level
of disability would probably have been the same even if
he had not worked in coal mines—were inconsistent.
There is no indication that the ALJ ignored evidence on
this issue. Indeed, Mrs. Keene’s argument is more ap-
propriately characterized as a request to reweigh the
evidence, which we cannot do. See Freeman United Coal
Mining Co. v. Summers, 272 F.3d 473, 478 (7th Cir. 2001).
The elements of the survivor’s claim differ slightly
from those of the miner’s claim. To be entitled to benefits,
a survivor must demonstrate that (1) the miner had
pneumoconiosis, (2) the pneumoconiosis arose out of
No. 10-1948 7

coal mine employment, and (3) the miner’s death was due
to pneumoconiosis. 20 C.F.R. § 718.205(a). Mrs. Keene
argues that the ALJ ignored evidence regarding the
last element.
Here, the ALJ considered the autopsy report, the
death certificate, and the doctors’ reports and correctly
noted that only the opinions of Drs. Perper and Pineda
supported the claim. The ALJ then explained why he
discounted those opinions: (1) Dr. Pineda’s finding—that
pneumoconiosis contributed to, but did not hasten,
Mr. Keene’s death—was conclusory; and (2) Dr. Perper’s
finding—that Mr. Keene did not suffer from cardiac
disease—was incredible given the rest of the medical
evidence presented. Again, Mrs. Keene has not shown
any reversible error and is essentially asking us to
reweigh the evidence. Her challenge to the ALJ’s deter-
minations therefore must fail.
But that is not the end of the line for Mrs. Keene.
To repeat, her primary argument on appeal is that the
survivor’s claim should be remanded to allow the ALJ
to determine the applicability of the 15-year presump-
tion, recently revived by § 1556 of the PPACA, which
was not available to her the first time around. Because
Mrs. Keene’s claim was filed within the applicable time
period, the government agrees. Consol, however, argues
that the claim should not be remanded because, by
virtue of its retroactive nature, § 1556 is unconstitutional
under the due process and takings clauses. This is a
question of law, which we review de novo. See Roberts &
Schaefer Co. v. Director, OWCP, 400 F.3d 992, 996 (7th
Cir. 2005).
8 No. 10-1948

Consol maintains that retroactive application of § 1556
deprives it of due process. Legislation “adjusting the
burdens and benefits of economic life” is presumed to
be constitutional; the party alleging a due process viola-
tion must establish that the legislature “has acted in an
arbitrary and irrational way.” Usery v. Turner Elkhorn
Mining Co., 428 U.S. 1, 15 (1976). This is true even where,
as here, a question of retroactivity is involved. Central
States, Southeast & Southwest Areas Pension Fund v.
Midwest Motor Express, Inc., 181 F.3d 799, 806 (7th Cir.
1999). “So long as retroactive application of the change
is rationally related to a legitimate legislative purpose,
the constraints of due process have been honored.” Kopec
v. City of Elmhurst, 193 F.3d 894, 903 (7th Cir. 1999).
Consol falls far short of meeting its burden. Notably,
the Supreme Court has already rejected an argument
that the BLBA as a whole violates due process because
it imposes retroactive liability on coal mine operators.
See Turner Elkhorn, 428 U.S. at 19-20. There, the Court
concluded that “the imposition of liability for the effects
of disabilities bred in the past is justified as a rational
measure to spread the costs of the employees’ disabilities
to those who have profited from the fruits of their
labor—the operators and the coal consumers.” Id. at 18.
Consol largely ignores this precedent and contends
instead that, because Congress did not discuss the retro-
active nature of § 1556, the legislation is irrational. But
two days after the passage of the PPACA, one of its
senator sponsors emphasized that § 1556 would provide
people who recently filed a claim with a “fair shake” at
No. 10-1948 9

accessing benefits. See 156 Cong. Rec. S2083-84. Thus,
the rational purpose for applying the 15-year presump-
tion retroactively is to give miners and their survivors
whose claims were recently filed a better shot at ob-
taining benefits.
Furthermore, Congress is not required to discuss an
act’s purpose to satisfy due process. It is enough that a
rational basis exists. Davon, Inc. v. Shalala, 75 F.3d 1114,
1124 (7th Cir. 1996). Here, we have no trouble conceiving
of such a basis. With § 1556, Congress decided to ease
the path to recovery for claimants who could prove at
least 15 years of coal mine employment and a totally
disabling pulmonary impairment. Its imposition of retro-
active liability for a limited period to individuals who
recently filed claims is a rational balance between the
parties’ interests.
Perhaps recognizing that its initial showing was insuf-
ficient, Consol sets forth an expansive history of the 15-
year presumption in its supplemental reply brief, citing
1980 and 1982 General Accounting Office (GAO) reports
for the first time. Those reports generally found
that black lung benefits were being awarded without
adequate medical evidence of disability and suggested
(among other things) amending the BLBA to eliminate
presumptions based on years of coal mine employment.
Consol argues that, because the GAO’s findings led to
Congress’s decision to limit the 15-year presumption in
1981, it was irrational to resurrect the presumption in
2010 absent evidence of its effectiveness.
Even if this argument had been timely and relevant
(as Consol’s counsel conceded at oral argument, the GAO
10 No. 10-1948

reports did not parse out awards based solely on the 15-
year presumption), it would not help Consol. Due
process only requires Congress to have acted rationally,
not necessarily intelligently. Just because some members
of Congress once believed that the 15-year presumption
was unwise or unnecessary doesn’t mean that they
can’t change their minds. And it could very well be that,
with the presumption, some undeserving claimants are
awarded benefits. But the flip-side is also true: without
the presumption, some deserving claimants are not
awarded benefits. It is up to Congress to decide which
is the lesser evil. In sum, Consol has not shown that
§ 1556 violates due process.
Consol also argues that § 1556 violates the takings
clause. “[I]f regulation goes too far it will be recognized
as a taking.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,
415 (1922). But, as with a due process challenge, a
party characterizing governmental action as an uncon-
stitutional taking “bears a substantial burden.” Eastern
Enterprises v. Apfel, 524 U.S. 498, 523 (1998). Evaluating
constitutionality under the takings clause involves an
examination of the “justice and fairness” of the regula-
tion. Id. Three factors have “particular significance” to
this inquiry: (1) the economic impact of the regulation
on the claimant, (2) the extent to which the regulation
has interfered with distinct investment-backed expecta-
tions, and (3) the character of the governmental action.
Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211,
224-25 (1986).
Again, Consol falls far short of meeting its burden.
Regarding the first factor, economic impact, Consol
No. 10-1948 11

argues in a conclusory fashion that § 1556 will financially
burden coal companies. The only specific financial infor-
mation that Consol provides is a passing reference to
the alleged $1.4 billion debt accumulated by the black
lung disability trust fund in 1981 (that is, before
Congress limited the 15-year presumption) and statistics
from the 1980 and 1982 GAO reports (again, in its sup-
plemental reply brief). But this data proves nothing
about the economic impact of the legislation on Consol
itself, which is necessary to establish a taking. See Central
States, 181 F.3d at 808 (rejecting a takings clause chal-
lenge where the complainant failed to compare the loss
at issue to something in order to assess its impact); cf.
Eastern Enterprises, 524 U.S. at 529 (sustaining a takings
clause challenge where the complainant showed that
its cumulative payments under the act at issue would
be $50 to $100 million).
Regarding the second factor, interference with invest-
ment-backed expectations, Consol again makes only
vague arguments, predicting that § 1556 will increase
insurance premiums for coal companies, lower profits,
and result in job loss. But, as both Mrs. Keene and the
government point out, the black lung benefits program
has long-since required an endorsement in insurance
policies making carriers—and self-insured operators like
Consol—liable for obligations from any amendments
enacted while the policy is in force. See 20 C.F.R.
§ 726.203(a). And § 1556 only allows the 15-year presump-
tion to reach back to claims filed after 2005 that were
still pending in early 2010. Cf. Eastern Enterprises, 524
U.S. at 532 (sustaining a takings clause challenge where
12 No. 10-1948

the act’s beneficiary allocation scheme reached back 30
to 50 years to impose liability based on the complainant’s
activities between 1946 and 1965).
Finally, Consol argues that the third factor, character
of the governmental action, cuts in its favor because
Congress did not debate whether the 15-year presump-
tion needed to be resurrected. But Consol cites no case
law finding that this action (or rather, inaction) supports
a takings violation. The nature of the governmental
action here is economic legislation with a limited retroac-
tive element. As the BLBA’s retroactive provisions
have already withstood a due process challenge, “it
would be surprising indeed to discover now that . . .
Congress unconstitutionally had taken the assets of the
employers there involved.” Connolly, 475 U.S. at 223; cf.
Eastern Enterprises, 524 U.S. at 537 (sustaining a takings
clause challenge where the act “single[d] out certain
employers to bear a burden that is substantial in
amount, based on the employers’ conduct far in the
past, and unrelated to any commitment that the em-
ployers made or to any injury they caused”).
In the end, Consol makes some strong arguments as to
why the 15-year presumption should not have been
revived. And it may be, as Consol contends, that Congress
“slipped § 1556 into page 142 of the 906-page piece of
legislation known as the PPACA.” But, unfortunately
for the company, those assertions do not amount to
grounds for sustaining its constitutional challenges.
With respect to the miner’s claim, the petition for
review is D ENIED, and the Board’s decision is A FFIRMED.
No. 10-1948 13

With respect to the survivor’s claim, the petition for
review is G RANTED , and the Board’s decision is V ACATED .
The survivor’s claim is R EMANDED to the ALJ with instruc-
tions that the record be reopened to allow the parties
to present evidence regarding the applicability of the 15-
year presumption. No costs are assessed against either
party.

5-19-11