please the court of kathy's tire on behalf of union carbide corporation in this case concerns whether congress intended with the amendments to the black clothing act contained in the eighth to notify thirty years of precedent regarding able to challenge the more precise questions i see if you can correct it reframe it would seem to be the survivors first claim existed under a different statutory scheme and the second kind and if the second claim removed or changed the elements of proof then your question about race judicata doesn't apply  i actually think there's some more difficult questions in this case in the way you raised it but it seems to me if i understand it just get us on to the discussion she filed a claim and was denied and let's assume she was unable to show that death was caused by new she follows a second climb statutory scheme and she doesn't have to show that under isn't that right that's correct so basically congress is changing giving her like a joint annuity claim their benefits go to the life of the miner plus her life or until she gets married and before they didn't do that they go to the life of the minor and for her to get benefits she'd have to show that the death was you have to assume the first was denied because she failed in that proof and you conclude the second should not be denied because congress didn't require it and that to me is the problem in that case is that a you can ride the coattails of the minor if you got benefits she's going to get benefits i sure second class so now she is able to make the second claim because she doesn't have to prove the causation by new that's totally different from the first one the first one clearly can't bind the second one because the second one don't require the proof that she failed on the first one causation while you're at it would argue that it does by because even though she has a but and she had that one except the course of action had a totally different character they changed the course of action she had to prove in her own right that the death of her husband was caused by now she has a survival claim under the notion of survival she gets whatever he gets if he was getting benefits she gets benefits that's a totally different notion it's no longer the proof of causation it's not reinforced by the fact that the day of the re enforcement of benefits is not from the date of the miners death from the date that the first claim was denied suggesting that we're dealing with two different causes of action we would not agree that it is two separate causes of action because what has been done is a procedural change rather than a substantive change i think judge pogs was a very good  case and that isn't what you address i think that is a dicey problem what the dissent raised below because the statute was changed in one place and not another and the question is not what did congress me congress clearly wanted her to have the benefits or husbands you see right in the new statute the new statute fifteen fifty six is silent as to where those who had a claim before and were denied i think that it is true congress intended for a minute because she failed in an element that's no longer needed but removing that procedural element does not create a new problem for windows yet if that goes to the actual statute that's being amended nine thirty two l states that all it does it is a procedural back in ism by which it says that survivors are going to be  actually placed into the act because the backlog of the survivors claims i've gotten so big that they said ok what we're going to do is we're putting this provision one thirty two well it to the black element of its act and we will remove this burd from the survivors and they will no longer have to file a claim and the actual language neither need to get it under the new stacked this is a hypothetical not your case a man has is receiving benefits black lung benefits he comes home from the bar one night it's a tree and dies woman goes in and files a claim under the new statutes and i want to continue his in my hypothetical and so that and you're arguing well the substantive law says you have to prove macone osis but the new statute says you don't and you agree with me that if he died from a car accident she causation ollivant as a matter of fact before if miner died from an automobile accident she would never receive benefits and with the miners death that is correct but again that was they remove all of the b procedural substantive dichotomy that we all studied in law school actually get you home here because of all you keep saying this wasn't just the mars it's procedural it's a bird to prove it's not a burden of proof it's an element of a claim and the question it seems to me is is the is the element so important to the nature character of the claim that we can say this is a different client this is truly a new  can you articulate your point perhaps a little differently and simply by calling it a bird to prove difference i can try ok you got it under the court's precedent in the  education versus bill for there was a test set forth by this case by this court in terms of a three part factor test of how you determine whether is a new cause of action once a case has been refiled for the second time and under that test the only element that is in dispute here at all is whether the cause of actions have identical ality in this stark it and the precedent is circuit has gone to the transactional approach to rush judicata and under the transact approach is the operative facts not the legal theory to make a call because you've agreed with me that the wife gets no benefits under the old stacked universe husband runs into a tree under the new statute he gets she gets benefits if he runs into a tree if she hasn't filed a claim before i understand let's leave that aside that's another problem because i think that we can address a problem i'm talking about whether the statute change the elements you said is just procedural but it can't be procedural if the before the minor dies from unrelated causes a car accident he's receiving benefits she did not get benefits she had to prove that his death was caused by new macone osis and it was in fact caused by a car accident under the second in the new statute he dies from an automobile accident and she gets benefits because he was receiving benefits the nature of her claim now is basically a common law tort survival kind the kind he had during his lifetime survives during her lifetime or until she gets married that's what congress did now whether they call the procedure or not you have to look at the real substance of what's been done and you haven't given me an explanation of why the second claim isn't different than the first cla that it is two different situations it's still the heart second claim here is still barbells stick with the first my pathetic oh you don't gain any benefit in other words if it's different it answers this case because if it's an if it's a different plane then i suggest it's a totally different claim i suggest it's now up just to continue it's like a joint and nobody congress created in the guy was receiving benefits she receives benefits to her lifetime  marriage before if the guy receive benefits she doesn't receive benefits unless his death was caused in the county and she had to prove that we would have argued that that is to rid of benefits is a legal theory it's the legal theory that she's awarded on has changed right that it's what congress did but it is a it's not a new cause of action the way this court has defined it is a new forget the definition new cause of action know we have to carry this dialogue but it does not have the same elements it does not have the same conditions but even if you accept that this is a new element of entitlement it is still not it's actually it has always been a widow's claim has always been denied because there can be no change in the operative facts once he's dead he's dead i like a living liar if you are going to argue something different and i want to hold you  for survivors right remains proof of causation for new makarios they didn't change that part of the statute and that right they did go out for miners if the miner has not been awarded if the miner has been award chief he's dead the only person in other words what is the provision of the statute that says a survivor has to show causation of my new account yost well you were looking at nine hundred eighty was what was amend and that's what took that element out of the state which section so you're writing asking which section which section sets forth the fundamental elements for produce that shows that a death mus be caused by the macone osis i'm sorry are i can tell you that on rebuttal i don't have my stash of book with me anyway that's the problem congress left that in place and they made this new change and there seems to be some tension but it seems to me congress clearly made a change and we would agree they made a change but and there may be some implicit overruling or whatever that's the argument i thought you had but i they clearly made a change which makes the race judicata you can go through the formulas you talk about the race judicata has to give you one fair shot at a klein she had one fair shot at the old place but under the new claim she never had a fair shot which is a claim where she doesn't have to prove that the death was yost's and you argue well it doesn't matter she had her shot i don't know how you could force her to follow klein she give her the benefit of a claim where it was was not established that  dependent on another element not only was he receiving benefits but she would also have to show that he died because of the look on the houses and not because of a car accident now that's a pretty morning my position is a little bit different congressman statutes all the time and they change criteria all the time and there is a substantial body of case law which addresses retroactivity and it dresses the identity of a cause of action and what constitutes cause of action and all of that case law applies it seems to me in this situation because it what seems to me to be is that because congress changes criteria i think supreme court agrees with me on this that everybody who lost before whether it's a black long claim or a patent claim or whatever kind of claim it is can come out of the woodwork and file a new claim because they have a new cause of action under statute that has been amended that worked against them the first time around i think that first of all you  have couple of really critical elements i think you're number one or maybe not ever one bit of united states a congress could not do that expressed yes congress clearly could do it expressly and the congress did not do it expressly here is a matter of fact everything that you read in this statute the two thousand and five bar date in my case i believe and in the union card case they filed before two thousand and five congress was concerned with retroactivity there is a powerful presumption that has been state the supreme court over and over again against according retroactive effect to statutory changes in the absence of a clear congressional intent to do so when gra thousand when he and it says once you're done if you don't file your appeals you're finished the decision is final and we all know what that means when a decision is final then you can't redo it it seems to me well but i mean i suppose one could argue that the decision made in these earlier cases was final to the extent that benefits are being denied retroactively to the date of the miners and hear the benefits of being  washington d c with a big we see a lot is given i can i don't defend that i'm not here to defend that but it is a gimmick and i frankly i agree with it i mean if i was arguing that that that case before the benefits re didn't then i would say you got a statute that i like i think that we all have an obligation to read statutes and we all have an obligation to read the law and we have a lot of law about restrict cotta we have a lot of law about what tell me why that's that you doesn't get against well first of all you have the supreme court's take on this kind of sacha torie change which says that if the if the intent to waive finality of a prior determination is not express and clear and in the statute not in the labor department's mind then you're not going to be able to redo the prior adjudication but let me say more about that they say a troubled by giving the back of the hand to the changes just just a change i see this under the old statute she had to establish a claim in her own right that is she had to prove in order for her to get benefits she had to prove more than a minor proof a minor only needed to prove he was disabled due to nuke on the osis she has to prove that in addition prove that because he had a tree so they denied it now so congress comes in and says hold it we're taking that all the men away the woman does not have to prove a separate claim she can coattail under her husband's crime her husband receiving benefits if he dies she receives benefits she says ok now i want mclean you come in and say that first adjudication bars the second and then you don't argue the two claims you argue oh this principles of race judicata they've been longstanding and they believe articulated in places inside a formula but race judicata goes back to one principle we give you one fair shot at the same as double jeopardy our law gives you one fair shot in court and if you have that shot and it's been adjudicated you don't get another that's the principle and in this case she tried a different case she had to prove that she her husband's death was caused by nuking your house is now she'd right just gets his a survivor it's like a joint to nobody and you tell me that's the sign i don't see i don't tell you that's the same what i'm saying is that there's a substantial body of law that addresses that and i think if you're dealing in an abstract in your honor this is a statutory change how is the statutory change of criteria different than any other statutory change that congress may make in any other kind of statute that goes  that your client had a property right protected by the due process clause in your victory over her first claim we have a property right in finality of adjudication you're going to do a congress could not say we're going to we think that we've been too harsh with widows and widowers and survivors and hencefor th we're going to afford survivor's benefits to those whether or not they have previously adjudicated a claim and loss i think if we were that would be ok let me put this way of the of congress said we're go not really answering right actually answered and it wasn't a great question i get but by what i'm trying to get you to say and i think you may have said it already is it is it your submission as you suggest that the judge did that the problem here is that congress wasn't explicit enough or is it your submission that the gimmick makers under that dome in washington simply don't have the authority to do even if they said and by the way when we say claims we mean all claims they didn't say that but it's a fair reading of the statute i don't think so i mean you have i'm sorry you don't think what's wrong with you i think i'm sorry i'm just not following your answer ok well i hadn't finished it well give the answer and then i can follow it ok yes or no congress has the power not to open up all claims and pay i'm sure i think there would be a due process issue there because they're afraid you just contradicted yourself you said congress has the power to do it but there'd be a due process problem if if there's a due process problem the congress doesn't have the power to do it and congress didn't do it here they didn't do it why didn't they do it they didn't do it because they're concerned about retroactivit perfectly obvious in the statement that senator byrd made it's obvious in the text of the statute where they have a tooth i say that indicated that well they put a two thousand five bar date on the claims that would be subject to this i mean that's only could be there and i know for a fact that it was because there were concerns about retroactivity when the slowest bypassed volume of retroactivity it's not the notion that record well in other words the problem for you and i think it may be a serious claim i don't know but if widows i mean if a surviving spouses were not receiving benefits when the spouse died from an automobile accident after he's dead they come in and say oh we're going to change that we're going to say now when he dies because of an automobile accident will still give you benefits by reason of his death because he was receiving benefits before now there you're getting to a question of your you have passed facts and congress is now giving the spouse a benefit that she didn't have before and you have to pay it and that might raise some problems but on your own what i'm saying is that if i can i mean this is no different than my any trust analogy in a patent analogy they change criteria all the time and in no case unless congress has express lee stated otherwise no case are they permitted to read or people who lost under the old law permitted to reeducate because they would win under the new law there is no case that allows that there are many cases cause of action is not defined by the statute the cause of action is defined by the relationship between the parties i'm not making this up this is in the case law stand has to make some sense cause of action is granted by congress right the cause of action as it is defined in the cases is not all defined by the details of the criteria the claim of a spouse in this case for survivor benefits is defined by the statute she doesn't get anything unless the statute gave to her that's not a cause of action and come out of the blue i'd like to see the case you cite to support that because there are none there are no cases to support the case is all go the other the case is about retroactivity race birkin's with disabilities act but perhaps one of the most prominent recent examples congress essentially abrogated a number of supreme court decisions dealing with the definition of a disabled individual congress pretty much explicitly made those amendments non retroactive so i posit this hypothetical to you person before the amendments seeking a reasonable accommodation a hearing impaired person in an employment context she loses under the old an amended statute but she continues in her employ two days after the amendments take effect she still in same employment same employer same job same lack of an alleged accommodation she brings a lawsuit numerics hypothetical of the widow or widower who loses because she can't prove causation the statute is amend it now she comes back and she is able to prove what's necessary because congress has provided not a lower burden of proof as your sister counsel here says but a different client with different elements i think there's a clear distinction here first of all in the case  of the hearing impaired person when she's still working and is still hearing impaired and there are new facts that give rise to a new cause of action it is the operative core facts that give rise to the court action those facts of her discrimination at that time after the an accident of the new statute didn't exist when the original claim was filed she has new facts in our case there are no new facts the core operative core is the same thing what are the new facts in my hypothetical she's still working and she's being dissed it's not a new fact she was working she was working before the amendment she's working now how is that a new fact i think it's a word game your honor your plan with me it is a no i don't play games with counsel she is being discriminated against under the new statute that's why this widow isn't in the black young widow is not being disadvantaged under the new statute she is not the new statute has nothing to do with her her claim was a that those principles i'm certain i'm sorry but those principles it seems to me are the important principles that he talked about and these principles do not under any case i have read or seen support the proposition that this that race judicata is waived and that this woman now get something now get something that she last done before before because  you have a totally different cause of action and the question may come down to what you think of as a cause of action but i'm suggesting to you her benefits before required to show causation that the death was caused by no macone osis a very narrow class of death now she can show that the death was caused by anything that he's just his heart beat anymore ike ike to him not from my definition of cause of action i am offering you traditional definition of cause of what your definition of  of the judicial definition of the cause of action is the operative core facts out of which the claim arises which is the harm done to the person it is not what's in the statute action well  and i represent the respondents in this matter the affordable care act instituted amendments to the black lung benefits act which in this case have provided an independent basis for entitlement that is was previously unavailable during the initial litigation of the respondents claim and it is not barred this new action is not barred by race judicata the purpose of race judicata is to serve as a shield to prevent claims splitting and to conserve judicial resources with the petitioners are advocating in this case is to use race judicata as a sword to end a claim for entitlement they could have not could not have been asserted in the prior litigation  please just a few seconds explaining the simply as you can how race judicata apart from this the amendments how does it typically work in the black lung context well yes your honor in the they're minors or survivors how does how does it work well if we took an example of a minor and a minor is allowed to file a subsequent call but that subsequent claim is not automatically granted the entitlement so the initial inquiry in the second claim is whether a per this court's decision recently mind whether the minor has demonstrated change of conditions whether he's proven that he suffers from the disease or total disability and causation litigation of an initial survivors claim that requires the element of death causation that element is not subject to change because the minor of course is is passed away but when speaking in in this form in this case automatic entitle it was not available had this is richard's in mrs morgan pled we're entitled to an automatic award of benefits in their initial claim that the court would have rejected it because of the one thousand nine hundred one amendments which which limited the and take away right we hope not but yes you all got but congress could do that yes because this is in the nature of a remedial almost a just the benefits i mean if it is a benefit start you the whole purpose of the statute is to afford benefits yes yes you're right this isn't like the common law any trust or section was a sherman to door the a the americans with disabilities act this statutes purpose is to afford benefits to beneficiaries of congress choosing yes ok in this section fifteen fifty six amendment let me ask you this mr solomon so i guess would respond by saying in the example of the minor that has been a change in the operative facts a change in the condition of the minor which now entitles the minor to benefits what change in the operative facts that we have here other than the change in the law that entitle the survivor to benefits the the core nucleus the facts that gave rise to the trial unit in the first case where medical issues in this case the facts that trigger automatic entitlement some medical issues its facts that the minor received an award that the mine asked away that the survivors meet the filing requirements of fifteen fifty sixty and they're still eligible survivors so in this instance the the fact that the minor was awarded benefits in the initial claim had no bearing on the outcome so in this case there's a new method of entitlement that's completely not tied to the litigation of the issues in the prior claim death causation was not proven but mrs richards and mrs richards and this is morgan's don't need to it's just a suggestion it's benefits accrue because of the miners disability we believe congress made this change to compensate survivors who lived with a lifetime disability with the m and that was their decision and it's clearly manifested as a broad humanitarian effort how do you account for the mr solomons touched on this briefly the so called characterize that as a time bar in the in the statute how would you characterize it and what work if any does it do in this that you because that frankly troubles me there has to be some importance to the dates that were attached to this amendment and i believe this court first dealt with this issue in states and the court found it fifteen fifty six c the claims means just that all claims as you mentioned earlier it is all claims and it doesn't distinguish between initial and subsequent claims and therefore congress by providing this retroactivity clearly wanted to encapsulate more claims than less and says supported by senator byrd statements of when reading th his statements in totality it's clear to us that he meant for all claims to be encapsulated and so by the period of retroactivity it relates to the date of the filing and we believe it by honor i believe it was a humanitarian effort to provide compensation it doesn't affect your client's case because all she has to do is refile for benefits is that the burden of the fact that someone has to take an affirmative act in order to receive benefits that is correct your honor is congress did not instruct the department of labor to notify all all eligible survivors and offer them benefits in this instance mrs richards that were filed after january one two thousand that's the correct date pending at the date of the of this amendment the labor department automatically applause the relevant law to the claim yes and that they be that's an automatic in time and claim that under this court's analysis and stacy the third circuit's analysis and now the six circuits analysis that survivor would be automatically entitled to an award of benefits assuming they meet the eligibility requirements and of as your honour's stated the filing requirements and furthermore it doesn't upset the prior claim because benefits are not paid all the way back to the date of the death of the minor so there's no reopening of claims the benefits review board found properly that benefits are paid to the month after the prior claim became final to the extent that rescue to cut is implicated if at all that's taken care of by this by what you just said that the and this matter was not judged in the prior suit and therefore it's just simply does not implicated when independent basis for entitlement just did not exist so in that undermine allergy they're attempting to use race issue to come out as a sort of simply to prevent entitlement that could have been raced so we don't think brister to qana bars application of one thirty two l it's uncontested that the filing dates of mrs richards and mrs morgan's claim they meet the section fifteen fifty six c requirements they meet the eligibility requirements and both survivors are survivors of minors who received a lifetime award of benefits when large is the class i think your honor the director could speak to that specific numbers better than i could but we do represent a high volume of miners and survivors and the survivors  this situation where survivors coming forward and applying under this law we have not found it to be large there's far more that are automatic in title meant as an initial claims as that fall under this court's holding in stacy i realize we don't have much in the way of legislative history here but i'd be terribly surprised given what we think we know about the gimmick factory if if there were people in the gimmick factory with that kind of data that is to say it's hard for me to believe that the president going to sign this bill and the legislatures but just later didn't know how many people were potentially affected that this didn't come out of the blue yes you're right i don't buy the absence of legislative history there's only small post and legislative history but congress i think that's about seymour but by the way congress is presumed understand the law that it's an ending and we believe that to apply this law in the claims that meet the filing requirements with the survivorship and the award of the minors claim fulfills the statutory language fulfills the intent of congress to the incidence of total disability found by minors who work for that previous operator that's still the minor to receive for the for the survivor to receive entitlement under nine two l the minor still has to prove it's contingent on the minor success the minor suffering from new macone osis the minor being totally disabled that's what is now triggering in title meant for the survivor and so if it's congress's decision to provide this type of relief for survivors of minors who who suffer with a disability during their lifetime that was occupied patiently acquired i ask you was that ever amended no your honor took to my knowledge of who would know so if that's here that provision still requires the spouse to prove long applicants you know i'm getting some a little more fundamental it's a little bit along the lines of mr solomons was saying if that's the cause of action and they this is  i think in the subsequent action in this case mrs morgan and this is richard's are barred from reality gauging the the cause of death they could not bring the case and say that the prior judy cation was incorrect because we can now show that the minors death was due to new in this instance it's completely separate it's a completely separate entitlement provision that is not tied to related gating the prior the elements of entitlement the prior claim is my name is very joiner i'm here on behalf of the director to adjust address judge davis's question there are approximately one hundred thirty subsequent survivor claims that have been filed it has now been three years since the affordable was enacted the united mine workers and other organizations have engaged in a lot of outreach and education activities in the coal fields to let the affected populations know about the about the statute and in that time we've had just over one hundred of these cases filed thank you mr solomons told you the we need to read statutes carefully and indeed we do and the operative statute here is section fifteen fifty six of the affordable care act as this court recognized in the stacy case the language of that statute is plain and unqualified it file it applies to all claims that meet the time filing limitations of the statute minors claims and survivors claims original claims and subsequent claims it makes no distinction them the excuse me the sixth circuit recognized the same thing in vision processing versus gross which was issued after a briefing was complete in this case and the third circuit recognized the same thing in the b in g construction case now the primary defense that the operators have to this to these claims is that they violate race judicata race judicata course is an affirmative defense and does the operator's obligation to establish all the elements of that defense this court has defined three elements for a straight a cut of defense a prior action involving the same parties which we have here and which resulted in a final judgment which we also have here the third element however is that the two actions must involve the same cause of action and cause of action has two dimensions it is a legal dimension that is what is the basis or theory of really and it has a factual dimension does it arise out of the same facts the same evidence and documentations the prior claim subsequent survivors claims under section fifteen fifty six are different causes of action than the original claims for two reasons first they are based on a theory or basis of relief which did not previously exist race judicata will bar the adjudication of a subsequent action only to the extent that it involves a theory of relief that actually was or could have been presented in the prior to action and that's important could have been could have been and here the theory of relief that is now being pursued by mrs richards and mrs morgan is that they are automatically entitled to benefits based on their husband lifetime awards that is a theory or basis of relief that was not available to them when they filed their original claims at that time they had to prove that their husbands deaths were due to new macone osis now death the cause of their death is irrelevant congress has created an entirely separate path right action seven hundred to five six and seven eighteen to zero five in the current regulations implement the present the pre two thousand and ten version of the black lung benefit fits act under which a survivor could only obtain benefits by proving that a miner's death was due to new macone osis now congress has come in and said there's a different way for this group of survivors to establish and it has in fact created a new cause of action a new basis of relief which was not previously there even if you look at these cases on a factual basis however these the new claims filed by mrs richards and says morgan are based on i think certainly to my ear was flawed by judge the mars question is what's taking the secretaries along to to change the regulations unfortunately the the the wheels of the regulatory process grind very very slowly we have a proposal out there if all goes well it will be promulgated as a final regulation the september it i believe the comment period has now expired but the period for the department to respond to those comments is still ongoing and there still has to be some review by o m b and all the others that regulation what is it that regulation will do a couple of things one it will  in section seven eighteen two zero five to specifically knowledge that congress has created a different path of entitlement that is automatic in title meant for survivors of minors who receive lifetime or to  a congress that explicitly want to retroactively yes sure i mean that's plain from the regular from the face of the statute itself the statute was passed in two thousand and ten but congress said it applies to claims filed from two thousand and five onwards that's will address subsequent claims there's a citation in our brief to an internet site where you can look at the other regulatory proposal you were getting back to the second part of the cut it yes you're a factual  that were at issue in the first claims filed by mrs prichard and mrs morgan were medical facts what did their husbands die of what diseases did they have that caused their death what was the origin of those diseases that involved a very intensive wayne and sifting of medical opinions autopsy evidence whatever else was introduced that's all gone we're looking at a different facts a fact that was not of any importance before that is whether or not the miners received a lifetime award now there's been some discussion of you know a change in burden of proof that really no change of burden of proof here the widow in these cases still have to establish the elements of their claim but congress has changed the elements for this group of people they still have to prove one that their claims are filed within the time limitations of section fifteenth's fifty six two they have to prove that they are in fact the survivors the eligible survivors of these deceased miners and three they have to prove that the miner received a lifetime award now obviously a those facts are much easier and simpler to prove then than the than the medical action has to be the same under  carefully at any statute changing the elements and see exactly what it is that it changes there is no spite with the operator you were not arguing that any change by congress will create a new cause of action you have to look very carefully one at the at the language of the statutes involved of the old statute in the new statute second you have to look at the context you know is this arising in traditional civil litigation or is this arising in the administrative context because this court has recognized that the the strictures are a little a little looser in the administrative context than in traditional civil litigation and third you look at whether or not congress has actually said we want this to apply retroactively to go for you to go back and certainly that's what we have here you mentioned that this was a time window but it really doesn't close off claims at least not on the back end it just requires that the claims be filed after a certain date and pending that there's another date is that how you read your honor the time limitations have a couple of different effects certainly the time limitations are directly applicable in in the fifteen year presumption cases the the the law that you discussed in the prior heyse whether those are filed by survivors or by miners themselves the the reintroduction fifteen year presumption only applies to certain claims in respect to subsequent survivors claims or survivors claims and generally general there's still going to be unfortunately a handful of claims that were filed before two thousand and five that are still under active litigation usually because they're being modified windows and this to refile well they could be be dismissed you'd have to wait a year for it to be refiled of or to be a subsequent claim and of course the  effect of the time limitations in the subsequent survivors claim context is it really puts a burden on a widow or widower to come forward and file a claim unlike previous statutes which said you know we want the department to go out and notify people or we want the department to automatically take another look at claims that's not what happens here although you say that you have gone out well i mean what has happened is that the the department made did a little bit of education to let the pop affected populations know that the statute of the past but we didn't specifically address subsequent survivor claims however the united mine workers benefit claimants associations perhaps the claimants bar have have done outreach and education efforts to let them know but we don't know if somebody does not file a claim we can't do anything it's up to them they've got to initiate the process they've got to what you did carbide would agree with the director in that there is a factual element to rest acaba and that factual element is probably the most significant here because it seems like what the court is struggling with is trying to decide whether or not there is a new cause of action it's our position that this court has set forth the test very specifically the same one that mr dorner was discussing say that there are elements that have to be looked at in the terms of  to decide whether or not there is a new cause of action and that yes that is nash county board of education first is built war and also the push will first as united states both those are cited in the reply and the opening briefs that three part test defines that for the purpose of whether or not there's identity khalili of the cause of action it comes down to whether the operative facts have changed here the fact that he was receiving a martyr receiving benefits at the time of his death has not changed what's changed the significance that they're placing on the  theory here what you know disagree with counsel's description or a student condo or claim preclusion and so far as an important element is that you could have brought the claim at the time you bought the initial would limit it to common core operative facts i was limited to the way that this court has defined it i'm not saying that there wouldn't be a legal element to it it's simply that what do you say about my a d a hypothetical in your situation i would say that under the a b a hypothetical the person continued to work and she continued to have exposure to that situation that would be very similar to the lawler case that was cited by the was the only case cited by the board here where there are continuing actions and when there's continuing actions wrester to cause a there would be a new cause of action here there's no continuing actions he is dead wrong and she is a fact the other fact is he has to be in order to for the a c l u to apply he has to have the other factor that he has to have been awarded and then there is the unspoken fact she has already similar to the kumar case that we've cited in the reply brief that is going to be before this court that is a situation where there is you go to court and they say you have to throw it out because there's no cause of action now the comes and they create that cause of action as i did in the case of the u s s cole bombing and they say now there is a new cause of action in the eastern district of virginia the survivors went ahead and they tried to file into the new cause of a first matter i would like to address judge davis is point about the remedial statute and to say that for forty years the supreme court has been holding in case after case including black on cases and longer cases and labor cases and you name it snyder mentioned the personal case your case we cite some other fourth circuit cases i think that defines cause of action that gives the definition in the fourth circuit for what it constitutes cause of action it isn't the criteria or the various basis for for providing a remedy for harm that occurs between two entities it's the harm that occurs it is not the legal element i do not believe and i do not believe that the case law including your own case law supports the proposition that there is a legal element so the definition of a cause of action and in the sense that we're talking about here i missed a joiner then and his definition when he has no cases to support his definition none zero other than cases where congress has expressly stated in the statute that we want this to apply to everybody back to whenever about in this case congress well no they didn't and i have something to read to you which is even though i have my doubts about later legislative history credit and stacey i think later legislative history has problems but here in this well you know this court thought it was useful in stacey and it says that this section this new section we're talking about here will apply to all claims that will be filed henceforth showing some interest in the future including many claims filed by miners whose prior claims were denied or by widows who have never filed for benefits and then or by widows or miners whose claims are pending when it's filed so you know the implication here is that is that people who wrote this did not expect to reopen all the old previously denied survivors claims and you know there's no statute i've ever seen that says that encompasses the principles arrestor to cut it never says we're go congress ever said it but supreme court has said that it always applies and it always applies to the cause of action not something new as in in in your example judge davis or in the lower case where new appart of facts occurred where there was additional harm to the parties but in those kinds of situations where the operative facts core facts the cause of the spouse with the survivor crime and the survivor claim is dependent on the spouse showing that the death was caused by and the statute is and they call it cause of action for survivor kline then congress and we're going to vacate that statute we're going to put in a new statute and we're going to get rid of that cause of action and instead we're now going to provide the widow with a joint new ity for the miners benefits so that she partakes in the same benefits he had until she gets married or  a claim under the first is denied because she can't prove her case then she makes a claim for the joint annuity and they held that where the watch changes it was a case where the law changed not by statute but by judicial decision and the people came back and they said well you've changed the criteria now i'm entitled and the supreme court said nine to nothing by the way that race the principles of race you to cut a bar you folks from coming back to try to take advantage of this change in the law now if congress had changed the law and said we want this law to apply thought the initial claim was it was her own claim that she had to prove an additional element the minor didn't have to prove they got rid of that cause of action and then they said we're just going to award you a benefit which is a continuation of the miners benefit to your life to your death and i think it all depends on what congress says and how they do it call it or nobody and i don't care what they call i help doesn't help me i mean  it well i know it didn't help you know it's you it's your word it's not my word and you use the words cause of action and those are your words not congress is a call because we're providing the surviving spouse with a cause of action  congress comes back and said we're concerned that all these widows were denied and so what we're going to do is we are going to write a law that says that all these widows who were denied are now in titled and we need to cover all the widows back to whenever and i think that maybe that would raise my due process question their financial issues there but i think that congress aside from the due process issue could probably do that and then the employers could raise whatever defenses they want to but probably quick question here is whether congress has expressed an intent that sufficiently overcomes this huge powerful body of law and race judicata and retroactivity and the definition of cause of action that we live with and that has existed for a very long time and i don't think they did that here ok i think the issue is pointed up to our work we have a lot journ court till tomorrow morning and then come