honor may it please the court the ale j s award of automatic survivor's benefits under the black lung benefits act in this case contrary to the an ambiguous meaning of the statute as this court already determined all writ case there neither party raised the issue of whether or not the automatic award of benefits was appropriate the finding whether the rebuttal standard for the minors claim had been properly applied but the parties just assumed that the automatic benefits were appropriate in that case and it was never addressed by the court and i thought it starts different because there was and that was it there were two factors that had to be met the court said number one that the survivor had to establish the relational and dependency requirements rendering her an eligible survivor and then number two she had to establish that some benefits very convoluted congress has gone back and forth about how broad it wants that to be and then restricted it and then gave some of it back again so originally the act only provided these survivors benefits if there was a showing of death due to new accounting and then in the seventy's there were a couple of different amendments that provided more avenues for survivors to demonstrate but in the back and forth legislative history is there ever a reason provided by anybody that says like when nine thirty two well was passed was so that the benefits that were already in place could just be continued after death there were other provisions that had been adopted that allow the survivor to obtain benefits if they could show that the minor was totally disabled at the time of death and the reason why this is important is because when congress reinstated section nine thirty two l it chose not to reinstate the other provisions which provided that my survivor could obtain benefits only on a showing that the minor was totally disabled so there was a whole group of provisions together that provided different benefits and when congress acted in two thousand and ten it only reinstated a part of that and we have to assume that that was determination and the argument being that your client isn't affected probably with the director who was resisting the position that the minor was taking in the litigation that he had the disease ok all right the director's position and your client's position is identical before they o j we agree and get a hearing before a nail day ok your client's position and the director of position was identical at that time was it not all right ok let's fast forward now  makes a claim and has to prove that he had the disease that they're now before nail jet and that and that and the widow says the finding that he had the disease in the previous proceeding language sort of took on the other direction i mean i would think that if the determination itself had preceded death not just eligibility more generally wouldn't the statute have been drafted more sensibly to say and no case shall be eligible survivors of a minor who was determined at the time of his or her death moving that phrase up in the sentence to be eligible to receive benefits be required to i mean just think i was thinking about this is i was preparing for the case if i was seemed i think if i received a draft from a law clerk for instance that was framed in this way with the intention of communicating that the determination and to precede death not just eligibility i would say this isn't the way to do it you need to move that modifying phrase up in the sentence so that it's so we're talking about two different if it's miners get disability benefits survivors get benefits upon death minors are not eligible for benefits after their death their eligibility in at their death only survivors are eligible to receive benefits after a miner's death so it cannot be determined it could be it could be determined after a miner's death that he was eligible but he could not have been eligible after he died so if congress had intended it the way that the director argues that could have just left at the time of death all that could have said the survivors eligible when the minor was determined to been a eligible to receive benefits period their interpretation renders the at the time of death completely the only way to give that phrase meaning is to link it to the determination that at the time of their death that had to have been determined to and little otherwise it really has no meaning in the context of what minors benefits are and the other reason why you would say that the meaning is clear is that that's the way the secretary had previously interpreted the exact same language in nine thirty two l when it passed the regulations the first time that went into effect in one nine hundred eighty there the secretary said that the miner had to been receiving benefits at the time of death that is how they implemented this part of nine thirty two l one agency some leeway to change their minds from time to time right i mean then that doesn't prove that the statute must mean something else and it doesn't even prove that the agency was acting  that there's some room for interpretation here it's our position that the secretary's interpretation is not a reasonable interpretation given the fact that when congress decided that was going to give something back in the way of survivor's benefits it decided not to reinstate not twenty one day which was the provision that allowed survivors benefits if they could show that the minor was totally disabled at the time of death and that's basically what the director is arguing here their new regulations says as long as there's a determination that the minor was totally disabled before they died or at the time of their death then the survivors get an automatic award but congress left that out that's not in the statute anymore and you have to assume that that was intentional so because the director's interpretation is not one that congress would have sanctioned here as clear by its actions it's not a reasonable interpretation in our view so first of all we think that it's clear based on the meaning of the statute that this is an unambiguous language we think this court decided already in stark's we think you can stop it step one of the statute and the history and purpose of the statute so starting with the text as we laid out in our brief and as judge newsome alluded to earlier under the rule the last into student the phrase at the time of his or her death more possibly more logically more grammatically modifies the closer phrase eligible to receive benefits rather than the further away phrase was determined at a bare minimum the grammatical rule creates some ambiguity about what congress meant to do here and if the benefits at time of this death congress did use the phrase receiving benefits another part of the statute but did not use it here when they enacted neither to l they used this particular phrase ology determined to be all the time of his death so this is just that congress meant to locked down in my own mind yes i believe employers assumption is that if a minor is eligible at one point in his life that he can stay eligible to the end of his life and that might be the case in some cases but it's not always the case for instance if a minor  is working even though he's towards abled he can still get benefits but he keeps working too long for example over a year he will so he might be eligible one point in his life and eligible at a later point his life before he dies more commonly minor might have his award reversed on appeal or there's also a process in the statute called modification which results in kind of the same thing where he has an award one day but not the next day when it's modified so the phrase at the time of his or her death is not just sitting there doing nothing it does cover situations like this where a minor might not be eligible for the point he's awarded to the point of his death to note no difference in the benefits yeah if she put it she proved it and that the disease caused the best that she would get some benefits yes how would they differ from the benefits and she automatically  day and that there persisted all the way to court appeals level but the court of appeals awarded benefits the day after he died their survivors to be out of luck they start from scratch they have to reprove things he already proved like he has a new  his employment and also prove that he died to them and us i also know that for years interpretation encourages gamesmanship and delay by employers in cases especially in cases involving the sickest minors who are most likely to die while their claim is pending because if the employer can wait it out and write things out they'll get to delay the survivors claim because you'll have to likely take more time to develop the medical evidence and they might be able to avoid paying altogether the survivor's benefits because eligibility dispute which your co counsel will cover but that demonstrates i suppose the value of the automatic entitlement because you know like we've got like scads of doctors and the briefing about sort of the causation does not control this case because as or has already been discussed it the facts are just different materially style different in the miner file the claim was approved and got benefits before he died there was no to replace every single time the storks court said was receiving benefits with exact such tory language nothing changes because the reasoning of that case doesn't rely on this idea that the minor has to be receiving benefits when he dies and finally starts it was decided employer also argued that directors and for patients creating a backdoor way to allow survivors to get benefits through proving the miner was toy disabled and that's not the case the director does not think that all the ways the survivors get benefits back in one hundred eighty have been told be restored there's still a group that cannot get benefits even the would have been able to back then and that survivors who miners never file the claim that congress expected agency to go back to the one nine hundred eighty rag that that froze in time what the agency thought by the two l meant and that we needed to go back to that but again that's not the case as similar to earlier agencies can change their mind even if the statute didn't to partition so to this day employer has not done if i had one good reason why congress would have wanted to treat some survivors differently than others based on arbitrary facts like the miners or the progress of his claim or things like when the postal service delivered their benefits check before or after their death so for these reasons we asked the court to die the petitions for review and to  the board's decisions blow up thank you has or the decision is supported by substantial medical evidence and is in accordance with the law if you have any questions about a lot of it i be happy to answer them if not however i would like to point out a few other things th not addressed as someone who represents minors and and survivors on a regular basis i think that there are some unintended consequences of this act and i heard all talk about consequences earlier and i think that the consequences of this could be very big and one of those is that we are shifting the burden to these courts and making timely decisions and i know right now that the a r are not giving priority to black line cases because there are other matters that require more timely decision specifically there are some immigration cases and whistleblower cases that have to be heard first because they're time sensitive and they require an expedited ruling the retroactive nature of black lung benefits have allowed a l j judges to prioritize the cases accordingly because no real damage is done to a minor  that would no longer be the case a l j judges would now have to prioritize block long cases because of that would be minor x cases would be now considered time sensitive we are putting pressure on the courts now to decide these backlog than the other one and it has nothing to do with the actual merits of the case which i don't think there is any any argument that that was the intention of th o want to be fair let's talk about redundancy ok i'll try to make my point a little clearer this time as to the redundancy of the phraseology at the time of death if a minor is determined eligible for benefit the statute says that it can be a progressive disease so there's not a case that i've ever seen where somebody is totally disabled one day and then the next day they miraculously career cover that's just not the way black lung works so in my experience every person that's found to be entitled to benefit receive those benefits up until the date of their death but they're no longer eligible for disability benefits after their death so it could be determined after their death that they were eligible during their lifetime but they're not going to be eligible after their death and so that's why the language at the time of death under the director's interpretation is purple is it doesn't need to be there if all they have to show is that at some point in time they were found to be totally disabled the court could have stopped for the at the time of death language and it would have had the same meaning here to the point about the loot rule of last antecedent that rule is not mandatory if the construction that's given based on the rule conflicts with other of the statute or is illogical and i think that's the case that we have here i think the most logical reading of the statute as the court interpreted and starks is to read it so that the minor had been determined before they died that they were eligible but so i guess i mean purpose as set out in the very first section of the act is to provide benefits to survivors whose minors death was due to new macone osis there's two other sections that repeat that same language this is when the secretary can provide survivor's benefits the only place in the act where it allows a survivor to get benefits without making a show causation is nine thirty two so it's an exception to the general rule which needs to be narrowly construed to the factors that congress intended