Petition for Review of an Order of the Benefits Review Board.
No. 12-0026 BLA.
DAUGHTREY, COOK, and WHITE, Circuit Judges.
SUTTON, J. (pp. 3-8), delivered a concurrence to the denial
of rehearing en banc in which KETHLEDGE, J., joined. DONALD,
J. (pp. 9-14), delivered a separate opinion.
BERNICE BOUIE DONALD, Circuit Judge.
court received a petition for rehearing en banc. The original
panel has reviewed the petition for rehearing and concludes
that the issues raised in the petition were fully considered
upon the original submission and decision of the case. The
petition then was circulated to the full court.[**] No judge has
requested a vote on the suggestion for rehearing en banc.
the petition is denied.
SUTTON, Circuit Judge, concurring in the denial of en banc
review, in which KETHLEDGE, J., joined. Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211 (1995), holds that
Congress may not enact legislation that reopens final
judgments entered by an Article III court without trespassing
on the separation-of-powers guarantees of the Constitution.
In today's case, our court has construed a provision of
the Black Lung Benefits Act in a way that seems to do just
that. Based on an amendment to the Act-included in the
Patient Protection and Affordable Care Act of 2010 (ACA),
Pub. L. No. 111-148, § 1556, 124 Stat. 119, 260-the
court has transformed a final judgment rejecting a claim for
survivor benefits into a judgment granting them. That does
not happen every day. And, with respect, it should not have
happened here, both because the statute does not lend itself
to this interpretation and because the Constitution prohibits
it. That does not mean full court review is necessary or for
that matter a good idea, particularly since three other
appellate courts have gone down the same trail. See Jim
Walter Res., Inc. v. Dir., Office of Workers' Comp.
Programs, 766 F.3d 1333 (11th Cir. 2014); Marmon
Coal Co. v. Dir., Office of Workers' Comp. Programs,
726 F.3d 387 (3d Cir. 2013); Union Carbide Corp. v.
Richards, 721 F.3d 307 (4th Cir. 2013). But it may mean
that other courts should pause before heading down this path.
Hill worked in the coal mines of western Kentucky for roughly
forty years. He smoked nearly the whole time. In 1987, the
Department of Labor found him disabled due to black lung
disease and awarded benefits under the Black Lung Benefits
Act. We affirmed the award. See Peabody Coal Co. v.
Hill, 123 F.3d 412 (6th Cir. 1997). A few years later,
Hill developed pancreatic cancer, and he died in 2000. His
widow Eva applied for black lung survivor benefits. Using the
then-applicable causation standard, the Department denied her
claim because cancer unrelated to black lung caused her
husband's death. We again affirmed. See Hill v.
Peabody Coal Co., 94 F.App'x 298 (6th Cir. 2004).
Eva did not file a petition for a writ of certiorari with the
Supreme Court, and the judgment became final.
2010, Congress made it easier for the survivors of deceased
miners to obtain benefits under the Act in the course of
enacting the ACA. It created a new causation standard, one
providing that, if a miner was receiving black lung benefits
at the time of his death, then he presumptively died from
black lung disease, eliminating the wife's burden of
establishing the causation of death, automatically granting
her survivor benefits, and sparing her the need to file any
claim at all. All agree that the amendments apply to new
requests for survivor benefits and to pending claims filed
after January 1, 2005.
question is whether the law should apply to claims finally
resolved before January 2005 and refiled after the 2010
effective date. Our court and three others permit such
refiled claims. That permits the Department of Labor
effectively to reopen claims denied under the old law, to
apply the new law to those claims, and to require the
miner's employer to provide benefits for those previously
rejected claims under the new relaxed causation standard.
See Peabody Coal Co. v. Dir., Office of Workers'
Comp. Programs, 577 F.App'x 469, 470 (6th Cir. 2014)
(citing Consolidation Coal Co. v. Maynes, 739 F.3d
323 (6th Cir. 2014)). Under this interpretation, the ACA
effectively says this: "Any action for survivor benefits
that previously was dismissed for lack of causation but that
would have been granted under the new rules shall be
reinstated on motion by the claimant, no matter how long ago
an earlier denied claim became final." See
Consolidation Coal, 739 F.3d at 327-28. I doubt whether
this rule honors the statute it purports to interpret or that
it comports with the Constitution.
things first: The language of the 2010 amendment does not
support this interpretation, much less require it. Through
the ACA, Congress made two substantive changes to the Black
Lung Benefits Act. Section 1556(a) reinstates the pre-1981
rule that disabled miners who worked underground for at least
fifteen years presumptively suffer from black lung disease.
Pub. L. No. 111-148 (2010). And § 1556(b) reinstates the
pre-1981 rule that survivors of those miners receiving
benefits while alive are automatically entitled to benefits
and do not even need to file a claim to obtain them.
Id. Congress directed the Department of Labor and
the courts to apply both changes "to claims filed . . .
after January 1, 2005, that are pending on or after the date
of enactment of this Act, " which is March 23, 2010.
Id. § 1556(c). According to our court,
"Congress was silent as to whether persons . . . whose
claims had been denied under the previous eligibility
framework[ ] could receive benefits by filing a subsequent
claim." Consolidation Coal, 739 F.3d at 326.
does the language of the statute count as silence on the
issue at hand? Congress said that "pending" claims
(if filed after January 1, 2005) and claims filed
"after" passage of the Act would receive the
benefit of the changes. Congress created a dichotomy between
"pending" claims and other claims. Yet the Courts
of Appeals' prevailing interpretation takes the
claims-filed-after-enactment language to refer to any and all
claims, whether previously rejected or not. If true, that
would mean that the "pending" claim side of the
dichotomy does no work. With respect to applicants whose
claims were finally rejected before the amendment took effect
in 2010, they could simply file new claims after 2010, as
happened here. With respect to applicants whose claims were
pending at the time of enactment and yet were filed
before January 2005, they could simply dismiss the
claims and refile new claims. This problem evaporates if we
accept the most natural reading of the language-that it
applies to claims pending on the day of enactment (if filed
after January 2005) and claims filed after the day of
one flaw in the prevailing interpretation; here is another.
Legislation is presumed to be prospective unless Congress
expressly makes it retroactive. Landgraf v. USI Film
Prods., 511 U.S. 244, 277-80 (1994). If we apply the
amendments to all subsequent claims, that transforms
Congress's express provision for, and limits on,
retroactivity in § 1556(c)-making them applicable only
to claims pending on the date of enactment and filed after
January 2005- into a meaningless gesture and mocks the
presumption against retroactivity in the process. Why, to
repeat, restrict the new law to pending claims filed after a
certain date if all it takes to avoid the cutoff is to
we put all of that to the side, and even if we assume that
Congress was silent about whether to apply the 2010
amendments to new claims, that does not support the
prevailing interpretation. Silence or what comes to the same
thing-ambiguity-about this issue requires avoiding, not
instigating, a conflict between the statute ...