B & G Construction Co. v. Director, Office of Workers' Compensation Programs

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 10-4179
______________

B&G CONSTRUCTION COMPANY, INC;
STATE WORKERS’ INSURANCE FUND,

Petitioners

v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR;
NORMA G. CAMPBELL, WIDOW OF ERNEST J.
CAMPBELL,

Respondents
______________

On Petition for Review of a Decision and Order
of the Benefits Review Board
(BRB-1: 09-0750 BLA)
Daniel L. Leland, Administrative Law Judge
______________

Argued June 23, 2011
 BEFORE: HARDIMAN, VANASKIE, and GREENBERG,
Circuit Judges

(Filed: October 26, 2011)
______________

Edward K. Dixon
Ryan M. Krescanko
Meghan F. Wise (argued)
Zimmer Kunz
600 Grant Street
3300 USX Tower
Pittsburgh, PA 15219-0000
Attorneys for Petitioners

Sean Bajkowski
Emily Goldberg-Kraft
Sarah M. Hurley (argued)
Rae Ellen James
United States Department of Labor
Office of the Solicitor
Suite N-2117
200 Constitution Avenue, N.W.
Washington, DC 20210-0000

Attorneys for Respondent Director, Office of Workers’
Compensation Programs
______________

OPINION OF THE COURT

2
 ______________

GREENBERG, Circuit Judge.

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. 1

There is disagreement among the parties regarding the
effect of the PPACA on the Act focusing on the meaning of
section 932(l). 2 Section 932(l) provides that eligible survivors

1
Pneumoconiosis is “a chronic dust disease of the lung and its
sequelae, including respiratory and pulmonary impairments,
arising out of coal mine employment.” 20 C.F.R. § 718.201.
2
There are four parties in these proceedings, B&G, the State

3
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

Workers Insurance Fund (though not further identified in the
caption presumably that of Pennsylvania), the Director, Office
of Workers’ Compensation Programs, and Norma G. Campbell,
widow of Ernest J. Campbell.

4
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.

Alternatively, B&G argues that if we adopt the DOL’s
reading of PPACA section 1556, section 932(l) will violate the
Fifth Amendment of the United States Constitution in two
respects in that the section as amended will violate B&G’s
substantive due process rights and it will effectuate a regulatory
taking of B&G’s property without the payment of just
compensation. 3 B&G also argues that Campbell has failed to
establish that pneumoconiosis caused, contributed to, or
hastened the death of her husband. For the reasons that follow,
we will deny the petition for review.

II. THE BLACK LUNG BENEFITS ACT

3
Though we use the term “alternatively” in this opinion, as we
discuss below B&G’s argument concerning the constitutionality
of the PPACA amendment was the only issue it properly raised
in its petition.

5
 A. The Federal Coal Mine Health and Safety Act

Inasmuch as our resolution of this case requires us to
interpret a section of the Black Lung Benefits Act, we find it
helpful to recount the history of the Act while focusing on
provisions relating to survivors’ benefits. As we indicated 20
years ago, “[t]he statutory background we confront could hardly
be more complicated.” Helen Mining Co. v. Dir., OWCP, 924
F.2d 1269, 1271-73 (3d Cir. 1991) (en banc). 4

Congress first provided benefits to the dependents of coal
miners affected with pneumoconiosis in the Federal Coal Mine
Health and Safety Act of 1969 (“FCMHSA”), 30 U.S.C. § 841
et seq. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 8,
96 S.Ct. 2882, 2889 (1976). Originally, the FCMHSA created a
bifurcated system for black lung benefit claims: (1) pursuant to
Part B of the Act the Social Security Administration, in the
Department of Health, Education, and Welfare (HEW),
adjudicated all claims filed on or before December 31, 1972,
and paid benefits out of the federal fisc; and (2) pursuant to Part
C of the Act, the Department of Labor (DOL) administered all
claims filed on or after January 1, 1973, but state workers’
compensation programs that the DOL found provided adequate
coverage for black lung disability would pay eligible miners’
claims, or, if the DOL had not approved a germane state
program, responsible mine operators or their successors would
pay for approved claims. Helen Mining, 924 F.2d at 1271.

4
We wrote Helen in 1991 and since then with the enactment of
the PPACA the statutory background has gotten even more
complicated.

6
 The introductory section to Title IV of the FCMHSA
reflected Congress’ intent to provide for benefits to miners
totally disabled due to pneumoconiosis and the surviving
dependents of miners whose death was due to pneumoconiosis:

Congress finds and declares that there are a
significant number of coal miners living today
who are totally disabled due to pneumoconiosis
arising out of employment in one or more of the
Nation’s underground coal mines; that there are a
number of survivors of coal miners whose deaths
were due to this disease; and that few States
provide benefits for death or disability due to this
disease to coal miners or their surviving
dependents. It is, therefore, the purpose of this
title to provide benefits, in cooperation with the
States, to coal miners who are totally disabled due
to pneumoconiosis and to the surviving
dependents of miners whose death was due to
such disease; and to ensure that in the future
adequate benefits are provided to coal miners and
their dependents in the event of their death or total
disability due to pneumoconiosis.

Federal Coal Mine Health and Safety Act of 1969, Pub. L. No.
91-173, 83 Stat. 792, 792 (1969) (current version at 30 U.S.C. §
901(a) (West 2007)) (emphasis added).

Section 921(a), which regulated the payment of benefits
under Part B, stated that: “[t]he Secretary shall, in accordance
with the provisions of this part, and the regulations promulgated

7
by him under this part, make payments of benefits in respect of
total disability of any miner due to pneumoconiosis, and in
respect of death any miner whose death was due to
pneumoconiosis.” Id. at 793 (emphasis added). Section 922(a),
also under Part B, regulated payments to widows and stated that:
“In the case of death of a miner due to pneumoconiosis or of a
miner receiving benefits under this part, benefits shall be paid to
his widow (if any) at the rate the deceased miner would receive
such benefits if he were totally disabled.” Id. at 794 (emphasis
added). Accordingly, the HEW under the FCMHSA required
widows of coal miners to prove that the miner died due to
pneumoconiosis in order to receive survivors’ benefits even if
the miner had been receiving pneumoconiosis disability benefits.
See John S. Lopatto III, The Federal Black Lung Program: A
1983 Primer, 85 W. Va. L. Rev. 677, 684 (1983) (stating that a
significant problem with the FCMHSA was HEW’s high denial
rate of widows’ claims who could not produce evidence that
miner had died due to pneumoconiosis).

B. The 1972 Amendments – Liberalizing the
FCMHSA

Partially in response to the HEW’s high denial rate of
claims and also in response to the backlog in the administration
of black lung claims, Congress in 1972, before the effective date
of Part C, amended the FCMHSA and redesignated Title IV of
the Act as the Black Lung Benefits Act of 1972. Black Lung
Benefits Act of 1972, Pub. L. No. 92-303, 86 Stat. 150 (1972);
Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 685, 111 S.Ct.
2524, 2528 (1991). The 1972 amendments made it easier for
survivors to prove entitlement to benefits under Part B and

8
continued Part C in existence until December 30, 1981. Helen
Mining, 924 F.2d at 1271. Congress, through the 1972
amendments, specifically provided benefits to survivors of a
miner totally disabled from pneumoconiosis even if he died
from a cause unrelated to pneumoconiosis. Lopatto, 85 W. Va.
L. Rev. at 685. It accomplished this goal by amending the Act
in three places, two of which are significant on this appeal. 5

First, Congress after the appearance of the word
“disease” at appropriate places inserted into section 901 of the
Black Lung Benefits Act the phrase “or who were totally
disabled by this disease at the time of their deaths.” Black Lung
Benefits Act of 1972, Pub. L. No. 92-303, 86 Stat. 150, 154
(1972). Thus, after the 1972 amendments section 901 stated
that:

Congress finds and declares that there are a
significant number of coal miners living today
who are totally disabled due to pneumoconiosis
arising out of employment in one or more of the
Nation’s coal mines; that there are a number of
survivors of coal miners whose deaths were due
to this disease or who were totally disabled by this

5
Congress also amended 30 U.S.C. § 921(c)(3) to ensure that
survivors of miners who suffered from complicated
pneumoconiosis, an especially severe form of the disease which
is not at issue in this case, was entitled to receive benefits even
if the miner died from causes unrelated to complicated
pneumoconiosis. See Black Lung Benefits Act of 1972, Pub. L.
No. 92-303, 86 Stat. 150, 154 (1972).

9
 disease at the time of their deaths; and that few
States provide benefits for death or disability due
to this disease to coal miners or their surviving
dependents. It is, therefore, the purpose of this
subchapter to provide benefits, in cooperation
with the States, to coal miners who are totally
disabled due to pneumoconiosis and to the
surviving dependents of miners whose death was
due to such disease or who were totally disabled
by this disease at the time of their deaths; and to
insure that in the future adequate benefits are
provided to coal miners and their dependents in
the event of their death or total disability due to
pneumoconiosis.

30 U.S.C. § 901 (West 1976). In addition, the 1972
amendments inserted the phrase “or who at the time of his death
was totally disabled by pneumoconiosis” in section 921(a) and
thus amended section 921(a) to state:

The Secretary shall, in accordance with the
provisions of this part, and the regulations
promulgated by him under this part, make
payments of benefits in respect of total disability
of any miner due to pneumoconiosis, and in
respect of death any miner whose death was due
to pneumoconiosis or who at the time of his death
was totally disabled by pneumoconiosis.

30 U.S.C. § 921(a) (West 1976).

10
 With the 1972 amendments Congress made it clear that
survivors, under Part B, were entitled to receive benefits
regardless of whether pneumoconiosis caused the death of a
miner provided the miner was receiving black lung benefits
during his lifetime. 6 Moreover, Congress extended part B
coverage until December 30, 1973, and established a “transition
period” between July 1, 1973, and December 31, 1973, during
which all part B claims would be tendered to the DOL and
treated as claims under part C. Helen Mining, 924 F.2d at 1271
n.3. In order to expedite the processing of the large backlog of
claims, the Secretary of the HEW promulgated interim
regulations which expired after June 30, 1973, for living miners’
claims and December 31, 1973, for survivors’ claims. Pittston
Coal Grp. v. Sebben, 488 U.S. 105, 109, 109 S.Ct. 414, 418
(1988). The application of the interim regulations in place of
HEW’s stricter permanent regulations resulted in a surge of
approvals for claims filed under part B. Pauley, 501 U.S. at 687,
111 S.Ct. at 2529.

Inasmuch as the DOL did not approve any state workers’
compensation programs between the enactment of the FCMHSA
and the expiration of part B, starting in 1973 the DOL
administered part C as a federally run workers’ compensation
program and it continues to do so today. When the DOL began
processing part C claims it applied the permanent HEW
regulations which were much more restrictive than the interim
regulations that HEW promulgated for Part B claims. Lopatto,

6
The 1972 amendments did not alter section 922, which
regulated payment to widows under part B.

11
85 W. Va. L. Rev. at 691. In addition, part C required widows
to file a claim for benefits “within three years of the discovery
of total disability due to pneumoconiosis or, in the case of death
due to pneumoconiosis, the date of such death.” 30 U.S.C. §
932(f) (West 1976). The statute of limitations combined with
DOL’s application of the more restrictive permanent regulations
again resulted in a backlog of administrative claims and the
denial of thousands of survivors’ benefits claims. Lopatto, 85
W. Va. L. Rev. at 691.

C. The 1977 Amendments

In response to a backlog of claims and the low approval
rate, Congress passed the Black Lung Benefits Reform Act of
1977 and “further liberalized the criteria for eligibility for black
lung benefits in several ways.” 7 Pauley, 501 U.S. at 688, 111

7
The FCMHSA and the 1972 and 1977 amendments followed a
distinct pattern:

Congress passed a statute intended to provide
wide-spread benefits to miners disabled by black
lung disease. The benefits, while never very high,
were intended to be liberally awarded.
Administrative practice, however, did not
comport with legislative intent, and twice
Congress was impelled to specify its intentions
more clearly, in order to insure as broad coverage
as possible.

Echo v. Dir., OWCP, 744 F.2d 327, 330 (3d Cir. 1984)

12
S.Ct. at 2529. Most pertinent to this appeal, in the 1977
amendments Congress added section 932(l) to part C which
provided that “[i]n no case shall the eligible survivors of a miner
who was determined to be eligible to receive benefits under this
title at the time of his or her death be required to file a new
claim for benefits, or refile or otherwise revalidate the claim of
such miner.” Black Lung Benefits Reform Act of 1977, Pub. L.
No. 95-239, §7(h), 92 Stat. 95, 100 (1978)(codified at 30 U.S.C.
§ 932(l)). According to the Senate report accompanying the
legislation, the purpose of the provision was to “correct an
egregious inequity” arising under part C so that widows of
miners who had been approved to receive benefits under no
circumstance would be required to “refile or otherwise
revalidate an approved miner’s claim when the miner dies.” S.
Rep. No. 95-209 at 18 (1977).

The effect of this language, actually enacted in 1978, was
to enable dependents of miners who were receiving black lung
disability benefits at the time of death automatically to continue
receiving benefits without having to refile a claim, or file a new
claim, with proof that the miner died from pneumoconiosis.
Pet’r’s br. at 23; Pothering v. Parkson Coal Co., 861 F.2d 1321,
1327-28 (3d Cir. 1988). Section 932(l), along with the other
1977 amendments to the Act, reflected Congress’ intention “not
to impose a heavy burden of proof on claimants generally and
widows in particular.” Id. at 1326-27.

D. The 1981 Amendments

(internal quotation marks omitted).

13
 After the 1977 amendments, the number of black lung
benefit claims soared, a development which began to “wreak
havoc” in the coal industry and caused Congress again to amend
the Act in 1981 with the Black Lung Benefits Revenue Act of
1981, Pub. L. No. 97-119, 95 Stat. 1635, 1644 (codified at 26
U.S.C. § 4121 (West 1982)), and the Black Lung Benefits
Amendments of 1981, Pub. L. No. 97-119, 95 Stat. 1643
(codified at 30 U.S.C. §§ 922, 923 (West 1982)) (collectively
“the 1981 amendments”). Helen Mining, 924 F.2d at 1273.
Among other measures, the 1981 amendments eliminated
survivors’ automatic entitlement to benefits for claims filed on
or after January 1, 1982, by adding to section 932(l) the phrase
“except with respect to a claim filed under this part on or after
the effective date of the Black Lung Benefits Amendments of
1981.” 30 U.S.C. § 932(l) (West 1982). Thus, after the 1981
amendments, section 932(l) read as follows:

In no case shall the eligible survivors of a miner
who was determined to be eligible to receive
benefits under this subchapter at the time of his or
her death be required to file a new claim for
benefits, or refile or otherwise revalidate the
claim of such miner, except with respect to a
claim filed under this part on or after the effective
date of the Black Lung Benefits Amendments of
1981.

30 U.S.C. § 932(l) (West 1982), as amended by Black Lung
Benefits Revenue Act of 1981, Pub. L. No. 97-119, § 203(a)(6),
95 Stat. 1635, 1644 (1981).

14
 The 1981 amendments added similar limiting language to
Part B, including to sections 30 U.S.C. §§ 921(a), 922(a)(2),
(a)(3), and (a)(5), so that after the amendments section 922(a)(2)
stated:

In the case of death of a miner due to
pneumoconiosis or, except with respect to a claim
filed under part C of this subchapter on or after
the effective date of the Black Lung Benefits
Amendments of 1981, of a miner receiving
benefits under this part, benefits shall be paid to
his widow (if any) at the rate the deceased miner
would receive such benefits if he were totally
disabled.

30 U.S.C. § 922(a)(2) (West 1982). 8 And section 921(a)
stated:

The Secretary shall, in accordance with the
provisions of this part, and the regulations
promulgated by him under this part, make
payments of benefits in respect of total disability
of any miner due to pneumoconiosis, and in
respect of death of any miner whose death was
due to pneumoconiosis or, except with respect to
a claim filed under part C of this subchapter on or

8
Inasmuch as we focus on this appeal on a widow’s survivor
benefits, we will not discuss in depth the changes to sections
922(a)(3) and (a)(5), aside from noting that Congress used the
same limiting language in those sections.

15
 after the effective date of the Black Lung Benefits
Amendments of 1981, who at the time of his
death was totally disabled by pneumoconiosis.

30 U.S.C. § 921(a) (West 1982).

Finally, the 1981 amendments also reversed the 1972
amendments’ changes to 30 U.S.C. § 901, the general purpose
section of the Act, by striking the phrase “or who were totally
disabled by this disease at the time of their deaths,” so that the
amended section stated:

Congress finds and declares that there are a
significant number of coal miners living today
who are totally disabled due to pneumoconiosis
arising out of employment in one or more of the
Nation’s coal mines; that there are a number of
survivors of coal miners whose deaths were due
to this disease; and that few States provide
benefits for death or disability due to this disease
to coal miners or their surviving dependents. It is,
therefore, the purpose of this subchapter to
provide benefits, in cooperation with the States, to
coal miners who are totally disabled due to
pneumoconiosis and to the surviving dependents
of miners whose death was due to such disease;
and to insure that in the future adequate benefits
are provided to coal miners and their dependents
in the event of their death or total disability due to
pneumoconiosis.

16
30 U.S.C. § 901(a) (West 1982) (emphasis added).

Under the amended Act, miners’ survivors who filed
claims on or after January 1, 1982, could establish their
entitlement to benefits only by demonstrating that the miner died
due to pneumoconiosis. See Mancia v. Dir., OWCP, U.S. DOL,
130 F.3d 579, 584 n.6 (3d Cir. 1997). A dependent could make
this showing by producing direct evidence that pneumoconiosis
was a substantial or contributing cause to the miner’s death or
by proving that the miner suffered from “complicated
pneumoconiosis” as defined in 20 C.F.R. § 718.304, thereby
invoking an irrebuttable statutory presumption of death
causation under 30 U.S.C. § 921(c)(3). 9 See 20 C.F.R. §
718.205(c)(3).

E. The PPACA Amendments

After 1981 section 932(l) of the Act remained unaltered
until Congress passed the PPACA in 2010. Section 1556(b) of
the PPACA, entitled “Equity for Certain Eligible Survivors,”
amended the Act by deleting the limiting clause of section 932(l)
that the 1981 amendments inserted:

(b) CONTINUATION OF BENEFITS.—
Section 422(l) of the Black Lung Benefits Act (30

9
Complicated pneumoconiosis is “the most severe stage of
Black Lung disease under the classification system established
under the program.” Dir. OWCP, U.S. DOL v. N. Am. Coal Co.,
626 F.2d 1137, 1138 (3d Cir. 1980).

17
 U.S.C. § 932(l)) is amended by striking “, except
with respect to a claim filed under this part on or
after the effective date of the Black Lung Benefits
Amendments of 1981”.

Pub. L. No. 111-148, § 1556. 10 Thus, 30 U.S.C. § 932(l)
now reads as it did after the 1977 amendments but before
the 1981 amendments:

Filing of new claims or refiling or revalidation of
claims of miners already determined eligible at
time of death

In no case shall the eligible survivors of a miner
who was determined to be eligible to receive
benefits under this subchapter at the time of his or
her death be required to file a new claim for
benefits, or refile or otherwise revalidate the
claim of such miner,. 11

30 U.S.C. § 932(l).

The amended section applied to claims for survivors’
benefits, such as Campbell’s, filed after January 1, 2005, and
pending on or after March 23, 2010, the PPACA’s enactment

10
Section 1556 also restored the rebuttable presumption
benefitting miners who were employed in an underground coal
mine for 15 years or more found in 30 U.S.C. § 921(c)(4).
11
The comma before the period is in the statute.

18
date. Pub. L. No. 111-148. § 1556(c) (2010). 12 Senator Robert
C. Byrd of West Virginia, the sponsor of the amendment, made
the following statement on the floor of the Senate after the
passage of the PPACA:

Mr. President, in order to clarify for the record, I
want to make it known that section 1556 of the
Patient Protection and Affordable Care Act is
intended to apply to all claims filed after January
1, 2005, that are pending on or after the date of
enactment of that act.

It is clear that the section will apply to all claims
that will be filed henceforth, including many
claims filed by miners whose prior claims were
denied, or by widows who never filed for benefits
following the death of a husband. But section
1556 will also 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

12
We note that PPACA relieves a survivor from filing a new
claim for benefits provided the survivor files a claim for benefits
after January 1, 2005, a seeming inconsistency. The parties’
briefs do not explain how the Act is applied administratively but
surely a widow seeking benefits must file something in order to
receive them. After all, notwithstanding section 1556 a claimant
might not be the miner’s real widow. But what a widow does
not have to do is establish that the miner died from
pneumoconiosis.

19
 modification of a recent order.

Section 1556 applies immediately to all pending
claims, including claims that were finally awarded
or denied prior to the date of enactment of the
Patient Protection and Affordable Care Act, for
which the claimant seeks to modify a denial, or
for which other actions are taken in order to
modify an award or denial, in accordance with 20
CFR 725.309(c) or 725.310. Section 1556 applies
even if a final order is modified, or actions are
taken to bring about the modification of an order,
subsequent to the date of enactment of the Patient
Protection and Affordable Care Act, in
accordance with the sections of Part 725 that I
mentioned. I look forward to working to 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. at 2083S–84S (daily ed. March 25, 2010)
(statement of Sen. Byrd).

Other than Senator Byrd’s statement and a press release
from his office that we quote below, see infra note 19, section
1556 of the PPACA does not have a legislative history, at least
of which we are aware. Notwithstanding the seeming
inconsistency of section 1556 and the earlier version of the Act,
the PPACA amendment did not remove the language Congress
inserted in the Act in the 1981 amendments in sections 921 and
922 in part B requiring a survivor of a miner to show a causation

20
connection between the miner’s pneumoconiosis and his death
nor did Congress alter section 901, the general purpose
declaration of the Act. Significantly, section 932(c) states the
following:

(c) Persons entitled to benefits

Benefits shall be paid during such period by each
such operator under this section to the categories
of persons entitled to benefits under section
922(a) of this title in accordance with the
regulations of the Secretary applicable under this
section . . . .

30 U.S.C. § 932(c). Section 922(a)(2), relating to payment of
benefits to widows, states:

In the case of death of a miner due to
pneumoconiosis or, except with respect to a claim
filed under part C of this subchapter on or after
the effective date of the Black Lung Benefits
Amendments of 1981, of a miner receiving
benefits under this part, benefits shall be paid to
his widow (if any) at the rate the deceased miner
would receive such benefits if he were totally
disabled.

30 U.S.C. § 922(a)(2). Overall the repeated amendments of the
Act demonstrate that it has been balanced on a sort of

21
congressional seesaw. 13 With the legislative history in mind, we
now will discuss the specific facts of this petition.

III. FACTS AND PROCEDURAL HISTORY

Ernest worked as a miner for B&G for over 16 years
from 1970 to 1987. In 2000, the District Director of the Office
of Worker’s Compensation found that Ernest was totally
disabled by coal workers’ pneumoconiosis and awarded him
black lung benefits under the Act. Ernest died on April 4, 2005,
and on February 6, 2006, Campbell, Ernest’s widow, filed a
timely claim for federal black lung survivor’s benefits, the claim
which is the subject of the petition for review at the heart of this
case. At the time that Campbell filed her claim for survivor’s
benefits, the applicable regulations required her to prove that
pneumoconiosis caused, contributed to, or hastened Ernest’s
death. See 20 C.F.R. § 718.205.

13
We recognize that there could be a distinction between miners
eligible for benefits and miners actually receiving benefits
depending upon factors such as whether an eligible miner sought
benefits and the possible status of a particular claim. We,
however, are not concerned with this distinction because Ernest
was determined to be eligible for benefits and at the time of his
death the benefits were being paid and there is no indication that
that determination has been challenged. Thus, in this opinion
we will refer to the concepts of eligibility and receipt of
payments interchangeably.

22
 B&G opposed Campbell’s claim and, after a formal
administrative hearing, an ALJ determined that pneumoconiosis
was not the cause of Ernest’s death and thus denied Campbell’s
claim for survivor’s benefits. In making his decision, the ALJ
credited the opinion of B&G’s medical expert, Dr. Gregory
Fino--who found no evidence that inhalation of coal mine dust
caused, contributed to, or hastened Ernest’s death--over
Campbell’s medical expert, Dr. David Evanko, Ernest’s treating
physician, who found that pneumoconiosis decreased the oxygen
in Ernest’s blood and hastened his death.

On January 28, 2008, Campbell filed an appeal with the
Board which vacated the ALJ’s Decision and Order Denying
Benefits and remanded Campbell’s claim for survivor’s benefits
for the ALJ to resolve a conflict between the two doctors’
opinions regarding whether pneumoconiosis hastened Ernest’s
death. On remand, the ALJ determined that Ernest’s medical
records revealed that he was suffering from several lung
diseases not related to coal dust exposure and, consequently,
held that Campbell failed to prove that pneumoconiosis caused,
contributed to, or hastened Ernest’s death and denied her claim
for survivor’s benefits.

Campbell again appealed to the Board. As we discussed
above, while this second appeal was pending, Congress
amended 30 U.S.C. § 932(l) of the Act with the PPACA section
1556 amendments and made the amendments retroactively
applicable to all claims for benefits filed after January 1, 2005.
Therefore, the amendment to section 932 applied to Campbell’s
claim for benefits. The Board directed the parties to brief the
issue of whether Campbell was entitled derivatively to benefits

23
under section 932(l) as amended by section 1556 of the PPACA.
Both the DOL and Campbell argued that Campbell was entitled
derivatively to benefits pursuant to amended section 932(l)
based on the award of lifetime benefits to Ernest regardless of
whether Campbell could prove that pneumoconiosis caused or
hastened Ernest’s death. B&G argued that, under the PPACA
amendments, benefits are awarded only if the party opposing the
awarding of benefits does not rebut the presumption of death
due to pneumoconiosis and thus the Board should deny
Campbell’s claim inasmuch as B&G provided medical evidence
which rebutted the presumption that Ernest died because of the
effects of pneumoconiosis.

On August 30, 2010, the Board reversed the ALJ’s
Decision and Order, and remanded the claim to the director for
an entry of an order awarding Campbell survivor’s benefits.
The Board held that section 932(l), as amended by section 1556
of the PPACA, entitled Campbell to benefits inasmuch as Ernest
was receiving black lung benefits at the time of his death and
Campbell’s claim was filed after January 1, 2005.
Consequently, the Board had no need to consider Campbell’s
argument that the ALJ erred in making his findings under 20
C.F.R. § 718.205(c) that pneumoconiosis did not cause,
contribute to, or hasten Ernest’s death and it did not consider
that question. B&G filed a timely petition for review from the
Board’s order in this Court and we review that petition in these
proceedings.

In its opening brief, B&G challenged section 1556 of the
PPACA only on the ground that the amendment violated the
Fifth Amendment’s Due Process and Takings Clauses, an

24
approach that essentially acknowledged that under the amended
Act as written Campbell was entitled to benefits.14 Nevertheless
we found, understandably we think, that Congress’ intent might
not be clear with respect to elimination of the causation of death
requirement so, after we scheduled the case for oral argument,
the Clerk of the Court, at our direction, issued a notice to the
parties to “be prepared at oral argument to discuss what effect, if
any, 30 U.S.C. § 932(c)’s ‘entitle[ment] to benefits’ provision –
which incorporates by reference § 922(a)’s benefits payment
schedules – has on the meaning of the phrase ‘eligible
survivors,’ as used in 30 U.S.C. § 932(l).” 15

14
Though B&G cites both the Fourteenth Amendment’s Due
Process Clause and the Fifth Amendment’s Due Process Clause,
we treat its claim as relying only on the Due Process Clause of
the Fifth Amendment inasmuch as the Fourteenth Amendment
applies only to acts under color of state law whereas the Fifth
Amendment applies to actions of the federal government. See
U.S. Const. amend. V; U.S. Const. amend. XIV, § 1.
15
We recognize that, generally, courts of appeals do not decide
questions which were not raised properly in the parties’ briefs.
Nevertheless we have the discretionary authority to raise and
consider the meaning of section 932(l) within the overall
application of the Act. See United States Nat'l Bank of Oregon
v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 447, 113
S.Ct. 2173, 2178-79 (1993) (“a court may consider an issue
‘antecedent to…and ultimately dispositive of’ the dispute before
it, even an issue the parties fail to identify and brief”). As
Justice Souter explained, “[t]he contrary conclusion would

25
 After receiving the Clerk’s notification, B&G, in its
Federal Rule of Appellate Procedure Rule 28(j) letter and at oral
argument, took the position that in resolving its petition for
review we can avoid deciding the constitutional issues it raised
in its opening and reply briefs and, instead, hold that section
932(l) applies only to miners diagnosed with complicated
pneumoconiosis, a more severe form of pneumoconiosis than
that from which Ernest suffered. 16 Thus, B&G argued that
claimants such as Campbell, who did not seek derivative
benefits predicated on the claim of a miner suffering from
complicated pneumoconiosis, would need to prove that

permit litigants, by agreeing on the legal issue presented, to
extract the opinion of a court on hypothetical Acts of Congress
or dubious constitutional principles, an opinion that would be
difficult to characterize as anything but advisory.” Id. See also
In re Chevron Corp., 650 F.3d 276, 289 n.15 (3d Cir. 2011).
Moreover, were we to resolve the meaning of section 932(l) as
B&G suggests, we would avoid ruling on its constitutional
arguments. If is, of course, a basic tenet that “we must avoid
deciding a constitutional question if the case may be disposed of
on some other basis.” Doe v. Pa. Bd. of Prob. & Parole, 513
F.3d 95, 102 (3d Cir. 2008). Accordingly, it is appropriate that
we raise and consider the question of statutory interpretation
before addressing B&G’s constitutional arguments. See Tenafly
Eruv Ass'n. v. Borough of Tenafly, 309 F.3d 144, 158 n.15 (3d
Cir. 2002).
16
B&G made the argument that section 932(l) applied only to
complicated pneumoconiosis for the first time at oral argument
before us.

26
pneumoconiosis was the cause of the miner’s death in order to
be classified as “eligible survivors” under section 932(l) so as to
receive survivors’ benefits. The DOL responded to our letter by
contending that to the extent that amended 932(l) conflicts with
language in other sections of the Act, section 932(l) is
controlling and implicitly repeals the other sections.

IV. JURISDICTION & STANDARD OF REVIEW

The Board had jurisdiction to review the ALJ’s decision
pursuant to 33 U.S.C. § 921(b)(3). We have jurisdiction over
B&G’s petition for review under 33 U.S.C. § 921(c)(3) as the
injury in this case occurred in Pennsylvania. “We review the
decisions of the Board for errors of law and to assure that it has
adhered to its own standard of review.” BethEnergy Mines Inc.
v. Dir., OWCP, 39 F.3d 458, 462-63 (3d Cir. 1994). We
exercise plenary review over all questions of law. Id. at 463.

V. DISCUSSION

A. Section 932(l)

Before we address the constitutionality of section 1556,
the question which B&G originally addressed in bringing the
petition for review in this Court, we consider the conflict we
observed in our study of amended section 932(l) and other
sections of the Act.

27
 Though we alluded to the internal inconsistency in the
Act, as amended, in section II of this opinion, we will describe
the exact nature of the conflict in more detail here. As we have
discussed, section 932(l) now provides that under no
circumstances “shall the eligible survivors of a miner who was
determined to be eligible to receive benefits under this
subchapter at the time of his or her death be required to file a
new claim for benefits, or refile or otherwise revalidate the
claim of such miner,.” 30 U.S.C. § 932(l). Section 932(c), titled
as “[p]ersons entitled to benefits,” states that “[b]enefits shall be
paid during such period by each such operator under this section
to the categories of persons entitled to benefits under section
922(a) of this title in accordance with the regulations of the
Secretary applicable under this section . . . .” 30 U.S.C. § 932(c).
Section 922(a), in turn, still contains the limiting language
which Congress eliminated in section 932(l) when it passed the
PPACA:

(a) Schedules

Subject to the provisions of subsection (b) of this
section, benefit payments shall be made by the
Secretary under this part as follows:

…

(2) In the case of death of a miner due to
pneumoconiosis or, except with respect to a claim
filed under part C of this subchapter on or after
the effective date of the Black Lung Benefits
Amendments of 1981, of a miner receiving

28
 benefits under this part benefits shall be paid to
his widow (if any) at the rate the deceased miner
would receive such benefits if he were totally
disabled.

30 U.S.C. § 922(a)(2) (emphasis added).

It is clear that notwithstanding the enactment of section
1556, section 922(a) which regulates the payment of benefits to
survivors if still effective as written retains the limiting
causation of death provision of the 1981 amendments and no
party in these proceedings contends otherwise. Moreover,
Congress, in enacting the PPACA did not alter the wording of
section 901, which states that “the purpose of this subchapter [is
to] provide benefits . . . to coal miners who are totally disabled
due to pneumoconiosis and to the surviving dependents of
miners whose death was due to such disease[.]” 30 U.S.C. §
901(a). Finally, Congress did not alter section 921(a), which
states that the Secretary shall make payments of benefits in
respect to the death of any miner who was totally disabled by
pneumoconiosis “except with respect to a claim filed under part
C of this subchapter on or after the effective date of the Black
Lung Benefits Amendments of 1981.” 30 U.S.C. § 921(a).

When interpreting a statute our purpose is to “give effect
to Congress’s intent.” Rosenberg v. XM Ventures, 274 F.3d
137, 141 (3d Cir. 2001). Of course, in this endeavor in this case
we start, as always, with the language of the statute we are
interpreting, here the Act as amended, as we presume that
Congress most clearly expresses its intent through the plain
language of a statute. Id. (citing Idahoan Fresh v. Advantage

29
Produce, Inc., 157 F.3d 197, 202 (3d Cir. 1998)). Where the
statutory language is plain and unambiguous we rarely need to
inquire into the meaning of the statute beyond examining its
wording. In re Segal, 57 F.3d 342, 346 (3d Cir. 1995). The rare
circumstances in which we make further inquiry include cases
“where the literal application of the statute will produce a result
demonstrably at odds with the intentions of its drafters, or where
the result would be so bizarre that Congress could not have
intended it.” Id. (internal quotation marks and citations
omitted). To determine whether the language of the Act is
ambiguous, “we must examine the language itself, the specific
context in which that language is used, and the broader context
of the statute as a whole.” Rosenberg, 274 F.3d at 141 (citations
and internal quotation marks omitted). In addition, when
interpreting a statute, we strive to give effect to every word
which Congress used and to avoid any interpretation which
renders an element of the statute superfluous. See Duncan v.
Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 2125 (2001) (“[A]
statute ought, upon the whole, to be so construed that, if it can
be prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.”) (quoting Market Co. v. Hoffman, 101
U.S. 112, 115-16 (1879)).

The language of section 932(l) in itself is not ambiguous.
Quite to the contrary, it is clear and unequivocal. Statutory
language “is ambiguous only if it is reasonably susceptible of
different interpretations.” In re Visteon Corp., 612 F.3d 210,
221 (3d Cir. 2010). The only reasonable interpretation of
section 932(l), standing alone, is that survivors of miners who
had been determined to be eligible for black lung benefits at the
time of their deaths are not required to file new claims for

30
benefits, or to revalidate the claim of the deceased miners.
Thus, a survivor to be entitled to benefits need not establish that
pneumoconiosis contributed to a miner’s death. We are required
to “presume that [the] legislature says in a statute what it means
and means in a statute what it says there.” Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149 (1992).

B&G’s argument that section 932(l) is intended to apply
only to the survivors of miners who suffer from complicated
pneumoconiosis is unpersuasive. Miners who are diagnosed
with complicated pneumoconiosis without regard for the
PPACA receive the benefit of an irrebuttable presumption that
they are totally disabled due to pneumoconiosis and that their
deaths were due to pneumoconiosis under 30 U.S.C. § 921(c)(3).
B&G’s proposed reading would mean that amended section
932(l) did not have any effect inasmuch as the survivor of a
miner who suffered from complicated pneumoconiosis never
would have to file a new claim for benefits or revalidate the
claim of the deceased miner because all miners who have been
diagnosed with complicated pneumoconiosis automatically are
presumed to have died from pneumoconiosis under section
921(c)(3). More importantly, nothing in the language of the
statute limits section 932(l) to such a narrow scope of eligible
survivors and nothing in the legislative history, or the history of
the Act itself, at least of which we are aware, supports B&G’s
position that the section applies only to the eligible survivors of
miners who suffered from complicated pneumoconiosis.

Even though section 932(l), standing alone, is not
ambiguous, we recognize that it might be contended that another
possible interpretation of section 932(l), considering the section

31
in a broader context, as Rosenberg suggests we do, is that only
“eligible survivors” are relieved from having to file new claims
and that, in order to determine who qualifies as an “eligible
survivor,” we should look to section 922(a) which indicates that
a widow who filed a claim for survivor’s benefits on or after
January 1, 1982, must prove that the deceased miner died due to
pneumoconiosis. Under this interpretation of section 932(l), a
widow such as Campbell, even though she filed a claim after the
effective date of the PPACA amendments, though before their
enactment, would have to prove under section 922(a) that she is
an “eligible survivor” by showing that pneumoconiosis caused
Ernest’s death in order to obtain the benefit of amended section
932(l). But if Campbell succeeds in proving that she is an
“eligible survivor” by filing a new claim and showing that
pneumoconiosis caused Ernest’s death, we do not discern what
enhancement of her position that she would have received under
the PPACA amendment of section 932(l), as it relieves eligible
survivors from having to file new claims for benefits in the first
place. In that regard, the possible alternative reading of the Act
in a broad context that we have advanced suffers from the same
defect as B&G’s proposed reading focusing on complicated
pneumoconiosis inasmuch as it leaves section 932(l) without any
effect in the statutory pattern. Indeed, under our proposed
reading of the statute, there seems to be no circumstance in
which a widow automatically would become an “eligible
survivor” under section 922(a) upon her husband’s death
without having to file a new claim and proving that
pneumoconiosis caused the miner’s death. Accordingly, we do
not regard the possible interpretation of section 932(l) that we
have set forth at this point as rendering that section ambiguous.

32
 After our intensive study of the Act and of the PPACA
we are quite clear that the logical reading of the Act as it now
reads is that Congress, by removing with section 1556 the
limiting language it inserted into the Act in 1981, has returned
section 932(l) to its pre-1981 function: ensuring the continuation
of benefits for eligible survivors of miners who were totally
disabled due to pneumoconiosis at the time of their deaths
without requiring that the survivors show that pneumoconiosis
was a cause of death. As the history of the Act demonstrates,
section 932(l) always has governed the continuation of benefits
for survivors of deceased miners who were receiving benefits at
the time of their deaths. Congress first passed section 932(1) in
the 1977 amendments and the accompanying Senate Report
stated that the purpose of the provision was to “correct an
egregious inequity” arising under part C so that widows of
miners who had been approved to receive benefits under no
circumstance would be required to “refile or otherwise
revalidate an approved miner’s claim when the miner dies.” S.
Rep. No. 95-209 at 18 (1977). Adhering to Congress’ intent, we
specifically held in Pothering, 861 F.2d at 1327-28, that, prior to
1982, the function of section 932(l) was to continue benefits for
eligible survivors.

In 1981, Congress limited the scope of section 932(l) by
confining the applicability of the section to claims filed prior to
1982, but, significantly, it otherwise did not change the wording
of the section, and it therefore follows that notwithstanding the
1981 amendments, miners’ survivors who had filed claims prior
to 1982 could continue to benefit from the automatic
continuation of benefits. In 2010, the PPACA removed the
limiting language Congress inserted with the 1981 amendments

33
and returned section 932(l) to its pre-1981 form. The logical
conclusion from this history is that the wording in section 932(l)
has the same meaning as it did prior to the 1981 amendments. It
therefore is not surprising that the understanding of the parties
before the Board in this case and originally in the proceedings
on the petition for review in this Court was that Congress’
removal of the limiting language in 1981 restored the section to
its original function: “[B&G] does not dispute that [Campbell]
need not prove that the miner’s death was due to
pneumoconiosis.” App. at 398; see generally pet’r’s br. It was
not until the Clerk at our direction called the parties’ attention to
the language in section 922 that B&G altered its position and
argued that section 932(l) applied only to miners affected with
complicated pneumoconiosis.

Further, while there is no clear legislative history behind
section 1556, there are clues to Congress’ intent in the wording
of the amendment. Section 1556 is entitled “Equity for Certain
Eligible Survivors,” and section (b) specifically is titled
“CONTINUATION OF BENEFITS.” Pub. L. No. 111-148, §
1556. As the Supreme Court has observed, “the title of a statute
or section can aid in resolving an ambiguity in the legislation’s
text.” INS v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S.
183, 189, 112 S.Ct. 551, 556 (1991). 17 Here, the title of section

17
As Chief Justice Marshall once observed, “where the mind
labors to discover the design of the legislature, it seizes
everything from which aid can be derived; and in such cases the
title claims a degree of notice, and will have its due share of
consideration.” United States v. Fisher, 6 U.S. (2 Cranch) 358,
386 (1805).

34
1556 supports a reading of that section that the amendment
returned section 932(l) to its pre-1981 amendments function as
regulating the “continuation of benefits” for eligible survivors of
a miner who the DOL determined was eligible to receive
benefits under subchapter C.

In addition, we also think it is appropriate to give some
consideration to Senator Byrd’s statement that we quoted that he
made after the passage of section 1556, though by doing so we
do not suggest that our opinion of section 1556’s meaning
would have been different without it. In considering this
statement we have not lost sight of the Supreme Court’s
statement that “[p]ost-enactment legislative history is not only
oxymoronic but inherently entitled to little weight.”
Massachusetts v. EPA, 549 U.S. 497, 530 n.27, 127 S.Ct. 1438,
1460 n.27 (2007) (quoting Cobell v. Norton, 428 F.3d 1070,
1075 (D.C. Cir. 2005)). 18 Though Senator Byrd made his
comments about section 1556 after Congress passed the
amendment, we think his statement is nevertheless significant
inasmuch as he was the sponsor of section 1556, a single

18
We note that both the Supreme Court and the Court of
Appeals for the District of Columbia Circuit in the opinion the
Supreme Court quoted made that statement in regard to using a
later Congress’ appropriations bills to interpret a statute that an
earlier Congress had passed. Massachusetts, 549 U.S. at 529-
30, 127 S.Ct. at 1460; Cobell, 428 F.3d at 1075. In contrast,
here Senator Byrd made the comments about the applicability of
section 1556 two days after Congress passed the PPACA so his
statement surely was not stale.

35
amendment in a complex bill of great length. See N. Haven Bd.
of Ed. v. Bell, 456 U.S. 512, 526-27, 102 S.Ct. 1912, 1920-21
(1982) (“Although the statements of one legislator made during
debate may not be controlling . . . Senator Bayh’s remarks, as
those of the sponsor of the language ultimately enacted, are an
authoritative guide to the statute’s construction.”); Fed. Energy
Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 564, 96 S.Ct.
2295, 2304 (1976) (indicating that a statement of one of the
legislation’s sponsors deserves to be accorded substantial weight
in interpreting the statute); see also Babbitt v. Sweet Home
Chapter of Cmtys. for a Great Or., 515 U.S. 687, 714, 727, 115
S.Ct. 2407, 2421, 2427 (1995) (Scalia, J., dissenting) (“[W]hat
those who brought the legislation to the floor thought it meant
[is as solid evidence] as any ever to be found in legislative
history . . . .”). Thus, while Senator Byrd’s statement that he
“look[ed] forward to working to ensure that claimants get a fair
shake as they try to gain access to these benefits that have been
so hard won,” is hardly conclusive on the issue we face, overall
his statement certainly supports our holding that Congress
intended section 1556 to ensure that survivors of miners who
were totally disabled due to pneumoconiosis during their
lifetimes would not have to file new claims for survivors’
benefits after the deaths of the miners and establish that there
was a causation between the miners’ pneumoconiosis and their
deaths. 19

19
Senator Byrd’s office in a March 22, 2010 press release more
explicitly described the claimed benefits of section 1556 than he
did in his statement that we quoted above:

36
 Of course, even though we find no ambiguity in section
932(l) there is no escape from the reality that the Act contains
the other provisions to which we have referred that are
inconsistent with the language of section 932(l). But “[w]here

Senator Byrd’s provisions in the bill will
streamline the application process to provide
benefits more promptly. There are two key
provisions Byrd inserted into the bill:

--In cases where a miner has accumulated 15 or
more years of coal mine employment, and there is
medical evidence of totally disabled lung disease,
there will be a legal presumption that the miner
and his widow would be entitled to benefits –
unless there is evidence proving that the miner’s
disease was not black lung, or that the disease did
not result from coal mine employment; and

--For widows of coal miners who [sic] spouses
suffered from totally-disabling black lung disease
and were collecting benefits, they would no
longer have to reapply to retain their modest
benefits.

Press Release, United States Senator Robert C. Byrd, Byrd
Applauds Passage of Health Care Reform Act Which Includes
Provisions to Help Victims of Black Lung (Mar. 22, 2010) (on
file with the Robert C. Byrd Center for Legislative Studies)
(emphasis partially added).

37
provisions in two statutes are in irreconcilable conflict, or where
the latter Act covers the whole subject of the earlier one and is
clearly intended as a substitute” a court may find that the later
statute implicitly repeals provisions of the earlier one. Branch v.
Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 1441 (2003) (internal
quotation marks omitted). Implied repeals, however, are not
favored absent a “clearly expressed congressional intention.”
Id. (internal quotation marks omitted). As we have noted, there
must be a stark inconsistency between the two sections of the
statute: “[thus, a] conflict that is merely cosmetic or that relates
to anything less than the operative legal concepts is not enough;
there must be a clear repugnancy between the two provisions.”
Tineo v. Ashcroft, 350 F.3d 382, 391 (3d Cir. 2003) (internal
quotation marks and citation omitted).

We are satisfied that by removing the limiting clause in
section 932(l), enacted in the 1981 amendments, Congress made
its intentions clear and manifest: retroactively to January 1,
2005, to provide benefits automatically to the eligible survivors
of miners who were receiving benefits at the time of their death.
Even though we take the presumption against implied repeals
into consideration, we are constrained to hold section 1556, as
Congress’ latest legislation on the subject of survivors’ benefits,
negates any language suggesting that an eligible survivor of a
miner who was eligible to receive benefits at the time of his
death must file a new claim in order to prove that the miner’s
death was due to the effects of pneumoconiosis.

One section of the Act, section 932(l), provides that
under no circumstances should eligible survivors be required to
file a new claim for benefits if the miner was eligible to receive

38
benefits “under this subchapter at the time of his or her death.”
On the other hand, section 922(a) indicates that an eligible
survivor has to prove that a miner was eligible to receive
benefits under the subchapter and is required to file a claim to
prove that pneumoconiosis caused the miner’s death. The
language of the two sections clearly is in conflict in the
operative legal concepts governing survivors’ benefits to the
extent that PPACA section 1556 has amended section 932(l) of
the Act. We think it evident that there is no way to reconcile the
two sections, and B&G has not provided any such method
except by rendering section 1556 so far as at issue here a nullity.
This is a step we will not take as the choice we face is between
treating section 1556 as having been a nullity from the outset
and regarding the inconsistent earlier sections of the Act as
partially repealed and we can make that choice by applying the
principle the Supreme Court has set forth that “[w]e will not
infer a statutory repeal unless the later statute expressly
contradict[s] the original act or unless such a construction is
absolutely necessary . . . in order that [the] words [of the later
statute] shall have any meaning at all.” Nat’l Ass’n of Home
Builders v. Defenders of Wildlife, 551 U.S. 644, 662, 127 S.Ct.
2518, 2532 (2007) (emphasis added) (internal quotation marks
omitted) (quoting Traynor v. Turnage, 485 U.S. 535, 548, 108
S.Ct. 1372, 1381-82 (1988)).

A literal reading of the plain language of section 932(l),
the history of the Act, and the purpose of the PPACA all lead us
to the conclusion that in order for section 932(l), as amended by
section 1556(b) of the PPACA, to have any meaning at all with
respect to claims of survivors, it must operate to ensure that any
eligible survivor of a deceased miner who was eligible to

39
receive benefits at the time of his death does not have to file a
new claim or otherwise establish that pneumoconiosis was a
cause of the miner’s death in order to continue receiving
benefits. Therefore, we will proceed on the basis of our
conclusion that section 932(l) automatically awards benefits to
eligible survivors of miners who were eligible to receive
benefits at the time of their deaths and address B&G’s original
constitutional contentions.

B. Does the PPACA Amendment to Section 932(l)
Violate Due Process?

As we have indicated we would do, we turn to the
contention that B&G initially advanced in these proceedings:
that section 1556 is unconstitutional. B&G first argues that the
PPACA section 1556 amendment of section 932(l) violates the
Fifth Amendment’s Due Process Clause which “prohibits the
United States, as the Due Process Clause of the Fourteenth
Amendment prohibits the States, from depriving any person of
property without due process of law.” Dusenbery v. United
States, 534 U.S. 161, 167, 122 S.Ct. 694, 699 (2002) (internal
quotation marks omitted). B&G does not distinguish between
procedural due process violations and substantive due process
violations and, accordingly, it makes arguments under both
aspects of the Fifth Amendment. See United States v. Salerno,
481 U.S. 739, 746, 107 S.Ct. 2095, 2101 (1987) (stating that the
Fifth Amendment’s Due Process Clause protects individuals
against violations of both substantive and procedural due
process). We nevertheless will discuss B&G’s procedural due
process and substantive due process arguments separately.

40
 Procedural due process protects B&G’s fundamental
“opportunity to be heard at a meaningful time and in a
meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333,
96 S.Ct. 893, 902 (1976) (internal quotation marks omitted).
B&G argues that the PPACA amendment violates its procedural
due process rights inasmuch as it precludes a mining company
from introducing evidence that a miner who was receiving
benefits during his or her lifetime died from causes unrelated to
pneumoconiosis and thus “denies the employer of all
opportunity to a fair and just hearing.” Pet’r’s br. at 30. B&G
grounds its procedural due process argument against section
1556 on a line of Supreme Court cases which, according to
B&G, have held that statutes containing irrebuttable
presumptions violate due process. See Heiner v. Donnan, 285
U.S. 312, 52 S.Ct. 358 (1932); Bell v. Burson, 402 U.S. 535, 91
S.Ct. 1586 (1971); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct.
1208 (1972); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230
(1973).

Even assuming we agreed, which, as we explain below
we do not do, with B&G’s characterization of section 1556 as
creating an irrebutable presumption, we would disagree with the
argument that such a presumption would violate B&G’s
procedural due process rights. A plurality of the Supreme Court
has rejected the theory that a legislature’s use of an irrebuttable
presumption automatically violates the Due Process Clause. See
Michael H. v. Gerald D., 491 U.S. 110, 120-21, 109 S.Ct. 2333,
2340-41 (1989) (plurality op.). In Michael H. the Supreme
Court considered the constitutionality of a California statute
containing an irrebuttable presumption that a child born to a
married woman living with her husband is a child of the

41
marriage between the husband and the wife. The plaintiff in
Michael H. fathered a child with the wife of another man and
argued that the California statute’s irrebuttable presumption
violated his procedural due process rights inasmuch as the
presumption prevented him from proving that he was the
biological father before the state terminated his liberty interest in
his relationship with his child. The Court stated that:

A conclusive presumption does, of course,
foreclose the person against whom it is invoked
from demonstrating, in a particularized
proceeding, that applying the presumption to him
will in fact not further the lawful governmental
policy the presumption is designed to effectuate.
But the same can be said of any legal rule that
establishes general classifications, whether
framed in terms of a presumption or not. . . [O]ur
irrebuttable presumption cases must ultimately be
analyzed as calling into question not the adequacy
of procedures but . . . the adequacy of the ‘fit’
between the classification and the policy that the
classification serves.

Id. at 120-21, 109 S.Ct. at 2340-41 (internal quotation
marks and citations omitted). Thus, as we understand
Michael H. the statute was applied to provide that a child
born to a married woman living with her husband is
“deemed” to be a child of the marriage regardless of the
identity of the biological father.

In light of Michael H., even when a legislature employs

42
an “irrebutable presumption,” the question is not one of
procedural fairness, but rather whether the “plaintiff
demonstrates that the inference is not ‘rationally related’ to a
legitimate legislative classification . . . .” Malmed v.
Thornburgh, 621 F.2d 565, 574 (3d Cir. 1980). Accordingly,
even assuming that we agreed with B&G’s characterization of
section 1556(b) as creating an irrebuttable presumption, we
would reject its argument that such a presumption necessarily
would violate the Fifth Amendment’s Due Process Clause. In
any event, by eliminating the need for a widow to show
causation between the miner’s pneumoconiosis and his death
Congress simply has set forth as substantive law a provision that
the survivor of a miner receiving benefits is entitled to
survivor’s benefits regardless of the absence of causation
between the miner’s pneumoconiosis and his death. As we
explain below, we cannot understand why it cannot do so as
there is no principle of law barring it from adopting that
approach. Thus, properly understood, section 1556 does not
create a presumption at all. We reiterate that the problem with
B&G’s procedural due process argument is that it depends on a
non-existent overarching principle that a mining company
cannot be responsible to a survivor for benefits on account of a
miner’s death unless the miner died from pneumoconiosis.

B&G also makes a substantive due process argument
insofar as it contends that the 2010 Amendment has no rational
basis and runs counter to the stated purpose of the Act.
Specifically, B&G argues that section 932(l) creates an
irrebuttable presumption that a miner who was receiving black
lung benefits at the time of his death died of pneumoconiosis,
thereby transforming “what has always been a compensation

43
system based on death due to pneumoconiosis, into a pension
system that awards survivor benefits upon the death of a miner,
without regard to the cause of the miner’s death.” Pet’r’s br. at
30. Thus, B&G concludes that the 2010 PPACA Amendment
“has no rational basis and indeed runs counter to the stated
purpose of the Act -- to compensate victims and survivors for
disability or death caused by pneumoconiosis.” Id. at 31. We,
however, point out that the basic premise of B&G’s argument is
faulty as it is clear that from the time of the adoption of section
932(1) in the 1977 amendments until 1981 the Act provided for
survivors’ benefits in cases of miners who died with, even if not
from, pneumoconiosis. Nevertheless we will continue our
substantive due process discussion as B&G has advanced it.

“Substantive due process prevents the government from
engaging in conduct that shocks the conscience . . . or interferes
with rights implicit in the concept of ordered liberty.” Salerno,
481 U.S. at 746, 107 S.Ct. at 2101 (internal quotation marks and
citation omitted). In order to prove that a statute “adjusting the
burdens and benefits of economic life” violates substantive due
process, B&G must show that Congress “acted in an arbitrary
and irrational way” by enacting the legislation. Turner Elkhorn,
428 U.S. at 15, 96 S.Ct. at 2892; see also Stern v. Halligan, 158
F.3d 729, 731 (3d Cir. 1998) (stating that general economic and
social welfare legislation violates substantive due process only
when it fails to meet a minimum rationality standard). Showing
that Congress acted arbitrarily and irrationally in enacting
legislation is an “extremely difficult” standard to meet. Stern,
158 F.3d at 731 (internal quotation marks and citation omitted).
The Act as the PPACA has amended it comes to us with the
presumption of constitutionality and B&G has the burden to

44
negate every conceivable reason which might support the
legislative classification that Congress chose. See FCC v.
Beach Commc’ns, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 2102
(1993).

In challenging section 1556 and thus the classification,
B&G first argues that section 1556 has no rational basis by
pointing to the lack of legislative history relating to the
amendment. In that regard, B&G contrasts section 1556 with
prior amendments to the Act which, according to B&G, “were
preceded by lengthy and detailed reports and public hearings . . .
.” Pet’r’s br. at 31. Moreover, B&G asserts that most
legislators did not read the entire bill and that the debate over
the PPACA focused on the much more controversial individual
mandate found in 26 U.S.C. § 5000A, 20 a provision which
already has been the subject of multiple constitutional
challenges. 21 However, the Supreme Court squarely has

20
“When it takes effect in 2014, the mandate will require all
‘applicable individual[s]’ to either obtain a level of health
insurance that qualifies as ‘minimum essential coverage’ or pay
a penalty.” N.J. Physicians Inc. v. President of the U.S., 653
F.3d 234, 236 (3d Cir. 2011) (quoting 26 U.S.C. § 5000A(a),
(b), and (c)).
21
We are aware that there has been a division among the courts
on the constitutional questions regarding the mandate but that
issue is entirely distinct from the question here. Moreover,
B&G does not contend that we should make a constitutional
inquiry into the PPACA beyond considering section 1556.

45
rejected the premise that a legislature must articulate the rational
basis underlying a particular statute. Beach Commc’ns, 508
U.S. at 315, 113 S.Ct. at 2102 (“[B]ecause we never require a
legislature to articulate its reasons for enacting a statute, it is
entirely irrelevant for constitutional purposes whether the
conceived reason for the challenged distinction actually
motivated the legislature.”). “[A] legislative choice is not
subject to courtroom fact-finding and may be based on rational
speculation unsupported by evidence or empirical data.” Id. 22
Therefore, we will not consider the circumstance that the
legislative history of section 1556 is very thin, or that there
seems to have been no debate regarding that section in
Congress, in determining whether section 1556 violates the Fifth
Amendment’s Due Process Clause.

Second, B&G argues that section 1556 violates
substantive due process inasmuch as it is incompatible with the
general purpose of the Act. Specifically, B&G contends that the
purpose of the Act “is to provide benefits for disability or death
due to pneumoconiosis,” pet’r’s br. at 31, and section 1556, by
amending section 932(l) so that survivors of miners do not have
to prove that pneumoconiosis caused a miner’s death, has no
rational basis and indeed “thwart[s], rather than further[s], the
stated purpose of the [Act].” Pet’r’s reply br. at 10.

22
In Beach Communications the Court applied the rational basis
test in the context of an equal protection analysis. Nevertheless,
“the analysis under substantive due process is essentially the
same as an equal protection analysis, i.e., is there a rational basis
underlying the legislation in question?” Cospito v. Heckler, 742
F.2d 72, 84 (3d Cir. 1984).

46
 B&G’s second argument also runs headlong into
Supreme Court precedent. In Turner Elkhorn the Supreme
Court considered due process challenges to a number of
provisions of the Act, including 30 U.S.C. § 921(c)(3), which,
unlike amended section 932(l), explicitly provides for an
irrebuttable presumption: if a miner suffers from complicated
pneumoconiosis, “there shall be an irrebuttable presumption that
he is totally disabled due to pneumoconiosis or that his death
was due to pneumoconiosis, or that at the time of his death he
was totally disabled by pneumoconiosis as the case may be.” 23
30 U.S.C. § 921(c)(3). Relying on the Supreme Court’s
decisions in Stanley and Vlandis, the same cases B&G cites for
its procedural due process arguments, the district court
determined that this provision violated due process because it
prevented Turner Elkhorn from presenting evidence of the effect
of pneumoconiosis on a miner’s disability. The Supreme Court
held that the district court erred in its conclusion. First, the
Court held that section 921(c)(3)’s use of the term “irrebuttable
presumption” was not dispositive because the effect of the
presumption was “simply to establish entitlement in the case of a
miner who is clinically diagnosable as extremely ill with
pneumoconiosis arising out of coal mine employment.” 428
U.S. at 22, 96 S.Ct. at 2896. The Court did not doubt that
Congress could establish such an entitlement without violating
the Due Process Clause and thus its choice of statutory language
did not invalidate an enactment “when its operation and effect
are clearly permissible.” Id. at 24, 96 S.Ct. at 2896.

More importantly for purposes of this case, the Court also

23
There is a period before “as” in the statute.

47
addressed the mine operators’ argument that the retroactive
application of section 921(c)(3) to miners who stopped working
before Congress passed the Act was arbitrary and irrational.
The Court recognized that the presumption that a miner who
was diagnosed with complicated pneumoconiosis died from that
disease presented a problem with regard to the miners who
stopped working before the Act’s enactment inasmuch as the
justification the Court found for retroactive application of the
Act was “to spread costs in a rational manner by allocating to
the operator an actual cost of his business . . . [and] a miner’s
death that is due to causes other than the operator’s conduct can
hardly be termed a ‘cost’ of the operator’s business.” Id. at 24-
25, 96 S.Ct. at 2897. 24 The Court concluded, however, that the
irrebuttable presumption in section 921(c)(3) was justified for
other reasons:

We think it clear, however, that the benefits
authorized by [section 921(c)(3)]’s presumption
of death due to pneumoconiosis were intended not
simply as compensation for damages due to the
miner’s death, but as deferred compensation for
injury suffered during the miner’s lifetime as a
result of his illness itself.

...

24
The Court, earlier in its opinion, rejected the mine operators’
general argument that the Act was unconstitutional because it
retroactively imposed liability on mine operators for past acts
which were legal and unknown to be dangerous at the time the
acts occurred. 428 U.S. at 14-20, 96 S.Ct. at 2892-94.

48
 In the case of a miner who died with, but
not from, pneumoconiosis, before the Act was
passed, the benefits serve as deferred
compensation for the suffering endured by his
dependents by virtue of his illness. And in the
case of the miner who died with, but not from,
pneumoconiosis after the Act was passed, the
benefits serve an additional purpose: The miner’s
knowledge that his dependent survivors would
receive benefits serves to compensate him for the
suffering he endures.

Id. at 25, 96 S.Ct. at 2897 (emphasis partially added).

B&G argues that the director’s reliance on Turner
Elkhorn is misplaced inasmuch as section 932(l) was not
enacted until 1978, about two years after the Turner Elkhorn
decision. B&G further contends that the presumptions in Turner
Elkhorn dealt “only with the most severe and irreversible form
of the illness known as ‘complicated pneumoconiosis’” and thus
“section 921(c)(3) reasonably fits the logical formula: if a miner
has a diagnosis of complicated pneumoconiosis, he is, by
definition, totally disabled.” Pet’r’s reply br. at 9. Finally, B&G
asserts that the Court decided Turner Elkhorn “before Congress
had available to it the overwhelming evidence of the failures of
the claims administration of the [Act],” and, since then,
Congress has eliminated three of the rebuttable presumptions
found in section 921(c). Id.

B&G’s attempt to distinguish Turner Elkhorn is
unconvincing because its arguments do not address why the

49
Court’s analysis in Turner Elkhorn does not apply to, and
ultimately override, B&G’s assertion that section 932(l) is
irrational and violates the stated purpose of the Act because it
awards benefits to miners who may have died from causes other
than pneumoconiosis. B&G’s argument that complicated
pneumoconiosis is “totally disabling” is inapposite inasmuch as
under the Court’s holding in Turner Elkhorn, if a miner is
diagnosed with complicated pneumoconiosis his death still
could be caused by circumstances wholly unrelated to
complicated pneumoconiosis, and the miner’s surviving
dependent nonetheless would be entitled to benefits under
section 921(c)(3). 25 Indeed, B&G’s position in this case
undercuts the basis for its own argument: the DOL found that
Ernest Campbell was totally disabled during his lifetime, albeit
from non-complicated pneumoconiosis, and yet B&G argues
that he died from causes unrelated to that totally disabling
disease. In addition, the circumstance that the Court decided
Turner Elkhorn about two years before Congress enacted section

25
The Court in Turner Elkhorn suggested that the question of
whether the retroactive application of section 921(c)(3) violated
due process protections might be “a more difficult problem” if
the statute authorized awarding benefits to the survivor of a
miner who did not die from pneumoconiosis and who was
completely unaware of and unaffected by pneumoconiosis or a
miner who died from pneumoconiosis but whose dependents
were unaware or unaffected in any way by his condition. 428
U.S. at 26-27, 96 S.Ct. at 2897. B&G does not suggest that the
Campbells, or even a significant group of claimants for
survivors’ benefits, fit into either of these categories.

50
932(l) does not change the similarity of the effect and purpose of
the two sections of the Act. Nor does Congress’ later
amendment of section 921(c)(3) have any bearing on the Court’s
due process analysis in Turner Elkhorn.

In any event, the similarity between section 932(l) and
section 921(c)(3) demonstrates that the rational basis the Court
found in Turner Elkhorn is also a rational legislative basis for
amended section 932(l). Congress’ decision automatically to
extend benefits to eligible survivors regardless of whether a
miner died due to the effects of pneumoconiosis represents a
legislative choice to compensate a miner’s dependents for the
suffering they endured due to the miner’s pneumoconiosis or as
a means to provide a miner with peace of mind that his
dependents will continue to receive benefits after his death. We
have no reason to override Congress’ implicit determination that
the choice was reasonable. Therefore, based on the Court’s
rationale in Turner Elkhorn, we cannot say that it is irrational or
arbitrary for Congress to extend survivors’ benefit to the
dependents of miners who are receiving black lung benefits at
the time of their death regardless of the cause of death.

Further, we disagree with B&G’s argument that amended
section 932(l) is inconsistent with the Act’s general statement of
purpose found in 30 U.S.C. § 901(a). While the automatic
award of benefits to the dependents of miners who received
benefits during their lifetimes will result in some miners’
dependents receiving benefits who would not have received
benefits under the pre-PPACA version of the Act as, indeed,
was a purpose for which Congress amended section 932(l) with
section 1556, it also unquestionably will further Congress’ goal

51
of “ensur[ing] that in the future adequate benefits are provided
to coal miners and their dependents in the event of their death or
total disability due to pneumoconiosis.” 30 U.S.C. § 901(a).
The circumstance that the section 1556 amendment may be more
inclusive than it need be to further that particular goal is not
grounds to invalidate it under a rational basis review. See Brian
B. ex rel. Lois B. v. Pa. Dep’t of Educ., 230 F.3d 582, 587 (3d
Cir. 2000). Moreover, to the extent that amended section 932(l)
conflicts with section 901(a), we note that, as a basic canon of
statutory construction, “[s]pecific terms prevail over the general
in the same or another statute which otherwise might be
controlling.” D. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208,
52 S.Ct. 322, 323 (1932). Surely section 932(l) is more specific
than section 901(a).

Finally with respect to substantive due process, we find
no merit in B&G’s argument that section 1556 will “effectively
revert[] the Act to the disastrous pre-1981 period when benefits
were awarded with little, if any, medical evidence of disability
or death due to pneumoconiosis[.]” Pet’r’s br. at 32. 26 In
characterizing the period between 1977 and 1981 as
“disastrous,” B&G relies on GAO Reports from 1980, 1982, and
1990 showing that the DOL approved black lung claims based
on inadequate medical evidence. We see no reason, however,
why these reports would bind a different Congress in 2010. 27

26
Of course, the fact that B&G considers the pre-1981 period as
“disastrous” does not make that so as we question whether the
miners would agree with that characterization.
27
We also point out that, as the director explains in great detail

52
Nor is it for us, under a rational basis review, “to judge the
wisdom, fairness, or logic of legislative choices.” Parker v.
Conway, 581 F.3d 198, 202 (3d Cir. 2009) (quoting Beach
Commc’ns, 509 U.S. at 313, 113 S.Ct. at 2101).

In sum, we reject B&G’s substantive due process
challenge to section 1556 of the PPACA because B&G has
failed to show that Congress acted in an arbitrary or irrational
manner in enacting the amendment. As the director aptly points
out, the Fifth Amendment’s Due Process Clause provides no
remedy to B&G predicated on its disagreement with Congress’
policy decision to amend the Act.

C. Does the PPACA Amendment to Section 932(l)
Violate the Fifth Amendment’s Takings Clause?

The Fifth Amendment provides that the federal
government may not take private property for public use without
providing just compensation. U.S. Const. amend. V. A
“taking” under the Fifth Amendment is not limited to the
government’s physical invasion of property but also may result
from the application of an economic regulation, such as the Act.
See Eastern Enters. v. Apfel, 524 U.S. 498, 522-23, 118 S.Ct.
2131, 2146 (1998) (plurality op.). Though a Takings Clause
inquiry and the substantive due process analysis are correlated

in his brief, the PPACA amendments did not resurrect all of the
provisions which governed black lung benefits determinations
prior to the 1981 amendments. See Resp.’s br. at 24-26.

53
“[t]here is a fundamental conceptual difference between a
takings claim and a substantive due process claim,” namely that
the former is a property rule while the latter is a liability rule.
Unity Real Estate Co. v. Hudson, 178 F.3d 649, 658-59 (3d Cir.
1999) (“If the government pays just compensation, it may take
private property for public use under the Takings Clause. Due
process protections, by contrast, define what the government
may not require of a private party at all.”).

Of course, as with a substantive due process challenge, “a
party challenging governmental action as an unconstitutional
taking bears a substantial burden.” Eastern Enters. 524 U.S. at
523, 118 S.Ct. 2146. B&G’s burden is even greater in this case
than might be otherwise so inasmuch as the Supreme Court
strongly has suggested that a statute substantially similar so far
as germane here to amended section 932(l) would not violate the
Takings Clause. See Connolly v. Pension Benefit Guar. Corp.,
475 U.S. 211, 223, 106 S.Ct. 1018, 1025 (1986) (“Although
both [Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S.
717, 104 S.Ct. 2709 (1984)] and Turner Elkhorn were due
process cases, it would be surprising indeed to discover now that
in both cases Congress unconstitutionally had taken the assets of
the employers there involved.”).

The process for evaluating a regulation’s constitutionality
under the Fifth Amendment’s Takings Clause involves an
examination of the “justice and fairness” of the governmental
action. Eastern Enters., 524 U.S. at 523, 118 S.Ct. at 2146
(internal quotation marks omitted). While the “justice and
fairness” inquiry is “ad hoc and fact intensive,” the Supreme
Court has identified three factors which have “particular

54
significance” in the inquiry. Id. (internal quotation marks
omitted). The three factors are: “(1) the economic impact of the
regulation on the claimant; (2) the extent to which the regulation
has interfered with distinct investment-backed expectations; and
(3) the character of the governmental action.” Connolly, 475
U.S. at 224-25, 106 S.Ct. at 1026 (internal quotation marks
omitted). B&G argues that each of the three factors which
courts weigh in deciding whether a regulation amounts to an
unconstitutional taking weighs in its favor.

1. Economic Impact

B&G places most of its Takings Clause argument on the
economic impact that it contends amended section 932(l) will
have on it in particular and the coal industry in general.
Specifically, B&G argues that application of amended section
932(l) to provide benefits in cases such as Campbell’s would
impose a considerable financial burden on the coal industry
inasmuch as that “financially strapped” industry would have to
pay an estimated $210 million in benefits, the justification for
the requirement of which is unsupported by adequate medical
evidence and, further, that retroactive application of the
amendment will require a lump sum payment of approximately
$1 billion dollars. Pet’r’s br. at 35-36. B&G arrives at the $1
billion dollar figure by taking the GAO’s estimate in the 1980
report that companies paid $312.9 million dollars in lump sum
payments on a retroactive basis and, because benefit rates now
are three times higher than in 1977, extrapolating that the
retroactive cost of amended section 932(l) will be approximately
$1 billion.

55
 As the director points out, however, the economic impact
analysis is not simply an exercise in comparing the cost of a
regulation against a regulated entity’s ability to bear the cost. 28
Thus, we have held that even if an economic regulation caused
the complete destruction of a company, the occurrence of that
consequence would not serve as proof that the regulation
effectuated an unconstitutional taking under the Fifth
Amendment. See Unity Real Estate Co., 178 F.3d at 677.
Rather, the touchstone of the economic impact question is
proportionality: “the size of a liability only weighs in favor of
finding a taking insofar as it is out of proportion to the
legitimate obligations society may impose on individual
entities.” Id. Thus, in Connolly the Supreme Court held that the
Multiemployer Pension Plan Amendments Act (“MPPAA”) did
not violate the Takings Clause despite the fact that the MPPAA
“completely deprives an employer out of whatever amount of
money it is obligated to pay to fulfill its statutory liability.” 29

28
Furthermore, even if this was the proper inquiry, B&G
provides no support for its assertion that the coal industry is
“financially strapped,” and does not provide any indication of its
own inability to bear the extra cost of increased benefits under
section 1556. Moreover, it is not clear that it would be proper,
in this context, to rely on financial projections based on 30-year
old data.
29
Congress enacted the MPPAA in 1980 to address the problem
of employers terminating their participation in multiemployer
pension plans and by doing so adversely affecting the solvency
of those plans. The MPAA “requires that an employer
withdrawing from a multiemployer pension plan pay a fixed and

56
475 U.S. at 225, 106 S.Ct. at 1026. The calculation of an
employer’s liability under the MPPAA “is not made in a
vacuum” because the amount the employer pays “directly
depends on the relationship between the employer and the plan
to which it had made contributions.” Id. at 225, 106 S.Ct. at
1026.

Similarly, B&G’s liability under the amended section
932(l) is not made in a vacuum inasmuch as the amount that the
amended section requires B&G to pay is based on the incidence
of totally disabling pneumoconiosis among B&G’s former
employees. Therefore, the situation here is not an instance
where “some people alone” are forced “to bear public burdens
which, in all fairness and justice, should be borne by the public
as a whole,” Armstrong v. United States, 364 U.S. 40, 49, 80
S.Ct. 1563, 1569 (1960), but a “rational measure to spread the
costs of the employees’ disabilities to those who have profited
from the fruits of their labor. . . .” Turner Elkhorn, 428 U.S. at
18, 96 S.Ct. at 2893.

B&G contends, citing the Supreme Court’s decision in
Eastern Enterprises, that “the liability that the new amendment
will impose is disproportionate to the coal industry’s historic
experience with the plan.” Pet’r’s br. at 36. The controversy in

certain debt to the pension plan. This withdrawal liability is the
employer’s proportionate share of the plan’s ‘unfunded vested
benefits,’ calculated as the difference between the present value
of the vested benefits and the current value of the plan’s assets.”
Connolly, 475 U.S. at 217, 106 S.Ct. at 1022 (internal quotation
marks and citations omitted).

57
Eastern Enterprises arose from private agreements between
certain coal mine operators and the United Mine Workers
Association providing for health care funds for coal workers.
524 U.S. at 505-09, 118 S.Ct. at 2137-40. Beginning in 1974,
the funds also provided for lifetime health benefits to retired
miners and their widows. Id. at 509, 118 S.Ct. at 2139-40. In
1992, when there was a concern that the funds would become
insolvent, Congress passed the Coal Act, which required coal
mine operators that had signed the private agreements to
contribute to new multiemployer benefit plans that would
provide the promised health care coverage to miners and their
widows. Id. at 514, 118 S.Ct. at 2141-42.

Eastern Enterprises, a company which had stopped
mining coal in 1965, challenged the Coal Act as imposing a
liability constituting an unconstitutional taking under the Fifth
Amendment. A plurality of the Supreme Court held that the
Coal Act was an unconstitutional taking as to Eastern
Enterprises on the basis that even though it never signed onto
the 1974 agreement providing lifetime health benefits to retired
miners, the Coal Act imposed severe financial liability on it for
such benefits disproportionate to Eastern Enterprises’
experience with the benefits program. Id. at 528-29, 118 S.Ct.
at 2149. Justice Kennedy, providing the fifth vote to strike
down the Coal Act as it applied to Eastern Enterprises,
concurred in the judgment but stated that the governmental
injury to Eastern Enterprises was not a taking, 524 U.S. at 542,
118 S.Ct. at 2155-56, and instead found that the legislation
violated Eastern Enterprises’ substantive due process rights
because of its retroactive nature. Id. at 547-49, 118 S.Ct. at
2158-59. As a result of the division on the Court, the holding in

58
the case was limited in scope as it applied only to Eastern
Enterprises.

We have indicated that the fractured nature of the
Supreme Court’s opinion makes it “difficult to distill a guiding
principle from Eastern [Enterprises].” Unity Real Estate, 178
F.3d at 658. However, even if the plurality opinion was binding
precedent, which it is not, 30 the lesson of Eastern Enterprises is
that a regulation violates the Takings Clause in circumstances in
which it imposes liability which is not proportional to a party’s
experience with the problem that the regulation addresses. See
id. at 672. As we discussed above, the amendment to section
932(l) does not pose a disproportionality problem because B&G
is only liable for paying benefits to the survivors of the miners it
employs or employed and who received, or are receiving, federal
black lung benefits at the time of their death. That those
benefits are “substantial,” or are larger than B&G previously
had anticipated, are not factors that undermine our conclusion in
the economic impact inquiry. Therefore, we find that the first
factor in our Taking Clause inquiry that Eastern Enterprises sets
forth weighs against finding an unconstitutional taking under the
Fifth Amendment.

2. Interference With Investment Backed Expectations

30
“[T]he only binding aspect of the fragmented decision in
Eastern Enterprises is its specific result, i.e., the [Coal Act] is
unconstitutional as applied to Eastern Enterprises.” Shenango
Inc. v. Apfel, 307 F.3d 174, 185 (3d Cir. 2002) (internal
quotation marks omitted).

59
 B&G argues that while “the coal industries and its
insurers must be, and have been prepared for legislative
adjustments that further the purpose of the Act, the 2010
amendments, reversing the progress that has been achieved since
the 1981 amendments, could not have been predicted.” Pet’r’s
br. at 38. 31 We agree with the director, however, that it is
unreasonable for B&G to argue that it was blindsided by
Congress’ amendment of section 932(l). We previously have
stated, in relation to the Coal Act, that “[coal] companies had no
reasonable expectation that the government would not expand
its regulation of health benefits in the coal industry, given the
history of labor unrest and government intervention.” Unity Real
Estate, 178 F.3d at 663; see also Connolly, 475 U.S. at 227, 106
S.Ct. at 1027 (“Those who do business in the regulated field
cannot object if the legislative scheme is buttressed by
subsequent amendments to achieve the legislative end.”)
(internal quotation marks and citation omitted). B&G’s claim
that it could not have foreseen Congress’ extension of survivors’
benefits to the dependents of miners who were receiving
benefits during their lifetimes but who died from causes
unrelated to pneumoconiosis is particularly meritless because
the law provided for that exact scenario for claims filed between
1978 after the adoption of section 932(1) in the 1977
amendments and 1981. Therefore, we find that the second

31
Though B&G regards the addition of the causation of death
requirement in the 1981 amendments as “progress,” clearly
Congress took a different view when it enacted the PPACA as
even B&G recognized when it filed its brief as at that time it did
not challenge the director’s view as to how Congress intended
section 1556 to be applied.

60
factor in our Taking Clause inquiry also weighs against finding
a taking.

3. The Nature of the Governmental Action

In order to satisfy the third factor of the Takings Clause
inquiry, B&G falls back on its due process argument that
Congress did not debate, discuss, or study adequately the Act
before amending it in the PPACA. As we already have rejected
this argument in our due process discussion, we see no need to
address it further here. We note, however, that this argument
misapplies the governmental action factor of the Taking Clause
inquiry, which normally asks whether the regulation “is a
physical invasion of land and thus more likely to constitute a
taking or a ‘public program adjusting the benefits and burdens
of economic life to promote the common good,’ which
ordinarily will not be compensable.’” New Jersey v. United
States, 91 F.3d 463, 468 (3d Cir. 1996) (quoting Penn Cent.
Transp. Co. v. New York, 438 U.S. 104, 124, 98 S.Ct. 2646,
2659 (1978)). Section 932(l) clearly does not effectuate a
physical taking of B&G’s property, nor, as we discussed above,
does it implicate “fundamental principles of fairness underlying
the Takings Clause” as the challenged statute did in Eastern
Enterprises. 524 U.S. at 537, 118 S.Ct. at 2153 (“When . . . [a
legislative] solution singles 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 employers made or to any injury they caused, the
governmental action implicates fundamental principles of
fairness underlying the Takings Clause.”). Therefore, this factor
also does not support B&G’s argument that section 932(l) is an

61
unconstitutional taking of its property under the Fifth
Amendment.

VI. CONCLUSION

Under 30 U.S.C. § 932(l), as amended by section 1556 of
the PPACA, Campbell is entitled to survivor’s benefits without
having to file a new claim for benefits or otherwise refile or
revalidate Ernest’s claim for benefits inasmuch as she filed her
claim for survivor’s benefits after January 1, 2005. Moreover,
section 932(l) as amended does not violate the Fifth
Amendment’s Due Process Clause or Takings Clause.
Consequently, we do not need to consider B&G’s argument that
Campbell failed to establish that pneumoconiosis caused
Ernest’s death. 32 Accordingly, we will deny B&G’s petition for
review of the order of the Benefits Review Board dated August
30, 2010.

32
If we concluded that the Act required proof that
pneumoconiosis caused Ernest’s death, we would remand the
case to the Board for consideration of the question of whether
Campbell adequately has proven that pneumoconiosis caused or
hastened Ernest’s death.

62
B&G Construction Co., Inc, et al. v. Director, OWCP, et al.
No. 10-4179
HARDIMAN, Circuit Judge, concurring in the judgment.

Judge Greenberg has done yeoman work in crafting
the majority opinion in this case, so it is with special regret
that I cannot join it. I agree with the majority’s thorough
recapitulation of the various iterations of the Black Lung
Benefits Act (Act). My point of departure lies in the analysis.
The internal inconsistencies of the statute, as amended by the
Patient Protection and Affordable Care Act (PPACA), leave
me befuddled as to the correct answer to the question
presented. For the following reasons, I concur only in the
judgment.
As my colleagues correctly note, Congress amended
the Act in 1981 and “eliminated survivors’ automatic
entitlement to benefits for claims filed on or after January 1,
1982.” This change was effectuated by adding the phrase
“except with respect to a claim filed under this part on or after
the effective date of the Black Lung Benefits Amendments of
1981” to 30 U.S.C. § 932(l). Congress likewise amended 30
U.S.C. §§ 901, 921(a), and 922(a)(2), which made clear that
survivors were entitled to benefits only after showing that the
miner’s death was “due to pneumoconiosis.”
The PPACA restored § 932(l) to its status previous to
the 1981 Amendments. Accordingly, no “eligible survivor”
of a miner was required to file a new claim for benefits. If we
view § 932(l) in a vacuum, this is an easy case. But reading a
statute in a vacuum is improper, and we must consider the
context of each statute we interpret. Robinson v. Shell Oil
Co., 519 U.S. 337, 340–41 (1997); United States v. Tupone,
442 F.3d 145, 151 (3d Cir. 2006). For reasons we may never

1
know, the Congress that passed the PPACA in 2010 failed to
amend §§ 901, 921, and 922, as Congress had done in 1981.
This omission is no small matter. As the law is presently
written, the congressional findings and declaration of purpose
(§ 901) contain a causation requirement expressing an intent
to compensate survivors and dependents of miners “whose
death was due to such disease.” Similarly, §§ 921 and 922
retain the causation requirement. The majority refers to this
state of affairs as “conflicting language,” internal
inconsistency,” id. at 22, 30, and so “clearly in conflict” that
“there is no way to reconcile [§§ 922(a) and 932(1)]”, id. at
32. Despite these apt phrases, the majority finds it “quite
clear” that § 932(l) ensures the continuation of benefits for an
eligible survivor of a miner irrespective of the cause of the
miner’s death. Notwithstanding my view that the matter is
anything but clear, even the majority’s formulation begs the
question because it sheds no light on who is an “eligible
survivor.”
As the United States Code has grown in scope and
complexity, the federal courts are increasingly called upon to
harmonize apparent inconsistencies within or between
statutes. See, e.g., New Process Steel, L.P. v. NLRB, 130 S.
Ct. 2635, 2640 (2010); Hinck v. United States, 550 U.S. 501,
507–10 (2007); Hagan v. Rogers, 570 F.3d 146, 153–56 (3d
Cir. 2009). Sometimes an apparent contradiction or
inconsistency can be resolved without dissent because one or
more of the options presented conduces to an absurd result.
See, e.g., Abbott v. United States, 131 S. Ct. 18, 27–28
(2010). But here, there is nothing absurd about either result.
Are survivors automatically entitled to benefits, or must they
show that the miner’s death was “due to pneumoconiosis”?
These equally plausible options appear to be the verbal
equivalent of M.C. Escher’s infinite staircase. Prior to 1981,

2
we knew that causation was not required. From 1982 until
2010, we knew that causation was required. After the
PPACA, it’s anyone’s guess.
In the final analysis, I concur in the result reached by
my colleagues in spite of the uncertainty expressed here. As
the majority notes, before the Benefits Review Board, B&G
did “not dispute that [Campbell] need not prove that the
miner’s death was due to pneumoconiosis.” Regardless
whether this is viewed as a species of waiver, it is enough of a
thumb on the scale to tilt the decision in favor of Mrs.
Campbell. Accordingly, I respectfully concur in the
judgment.

3