our last matter we're argument today is that of mormon coal company vs the director of the off workers compensation programs department doesn't have any cases any support any president or any textual language to support this cause is that you work to conquer this i mean this is aside from the wrist you thought  prospective it's it is strongly presumed to be perspective all legislation is written in the present tense including this legislation now with the department saying is that the words of this legislation somehow i don't see it at all is different that this is not prospective wording this is this is wording that would go back and reopen a previously adjudicated and finally due to katyn claim let me say one more thing on that account is that we're not dealing just with that provision and i don't see how that that provision does not as the supreme court always requires it does not express sleep provide that prior adjudications are affected it does with fifteen fifty six hundred fifty six see the and the ordinary meaning of claims right well i mean you're hearing him claims as is that but there's a cause of action in the constitutes a claim they define it in their in their regulations i mean that is what the word claim always means in the statute it doesn't mean piece of paper the statute says claims it doesn't distinguish between initial claims and subsequent claim well no statute and that's why we have supreme court precedent that applies rules of construction in this context the statute like all statutes is assumed presumed to be prospective in its meaning there's nothing there is no every time congress amends a statute that everybody who was under the old law can come back and redo it that's their position essentially and that is why we have principles of construction like those that we've cited to you involving the strong presumption that is prospective only and then requires specific language that would do something retroactively so you don't there isn't any without express language saying we are affecting those old claims you know that the immigration context is a good is a good paradigm here where you have in these cases are all cited in here where you have  the sexual predator provisions were congress in the statute said we don't care if somebody had gotten off from deportation in the past we want them to be deported now but that's an  l v are valid is case with then we have the far tellus case which is the same immigration statute where the language is unclear language is like our language here doesn't say anything about old claims and the supreme court said in you to do because these rules are in our you seems to me in addition to amending the launcher act in the principles of finality in addition to overruling his and says the supreme court's decision unanimously holding that principles of finality race judicata applies and black on claims they have you know several other arguments that sure they apply but race judicata would not apply if you simply construe claims as having an ordinary meaning sure of a suggestion that it applies only to initial claims or su i believe if you believe that the plain language the ordinary meaning of claims includes both initial coins subsequent quicker she got it and therefore congress created affectively the reality of the affordable healthcare act then there's no need to apply race to top well you know that's against every rule of construction i know and they haven't cited any rule of construction so the contrary they say that's plain language plain language does not mean silence the plain language requires and all of the cases say this the plain language you're going to do something like that you're going to to abrogate very powerful principles of jurisprudence like race judicata and and retroactivity ok and she's asking for benefits as a surviving spouse correct what was a claim she made that was previously this allowed well she was claiming decisions in the circuit but certainly the supreme court decision say this the cause of action relates to the relationship between parties and to the circumstances that led to a claim in the first place regardless of how the law defined it was what was involved in the pretties that's her all right in the subsequent claim isn't it true that the first three findings entitle her to automatic survivors and that the last finding that is that the black lung disease didn't cause the claim becomes irrelevant for purposes of the claim that's been created the right to a claim that's been created under the affordable health care there's never been there are other cases there are other cases lots of them that define including cases in this court that define the circumstances that are that make a cause of action and a change in the law just like let's say they changed the statute of limitations and the person was barred the first time because they didn't make it and then they reopened the statute of limitations best not point to apply retroactively yes to question this is no different if the first claim never existed which sh will cover under the current statute well you're a lot of things might have been different first of all the answer my question if she can't answer it simply that i can't answer it simply because the company is making a judgment this man the company makes a judgment on what they're going to do with with this man's claim and they made a judgment in this case that they were going to accept this claim probably because they knew that they may have known that he was dying do something else that didn't feel like they were exposed on the survivors claim and so they didn't feel like there was a need for them to take that into account i don't know what what kind of a decision they would have made it wasn't involved in that at that level any he didn't say they never filed a claim and the today would they be able to recover oh yeah they were ok but that doesn't you know deal with the questions of finality of the other claims i mean that that kind that sort of approach would apply to any retroactively congress knows how to write statutes saying or what they're doing and you know although i think legislator legislative history and worth anything in the beans you construction case you this quick credited later legislative history to some degree the facts matter as you apply principles me ok thank you very much you're going or good morning your honor is may it please the court my name is barry joyner and i represent the director of the office workers compensation programs the issue before the court today is whether or not section fifteen fifty six of the affordable care act would reinstated automatic and title meant for certain survivors applies to survivors who are filing subsequent claims the language of that provision is clear and unqualified it applies to any claim that complies with the time limits of the statute that is any claim that was filed from two thousand and five on words and that was pending on or after the enactment date of the affordable car this court has looked about language the fourth circuit has in the stacy case the six circuit has in the groves case and they've all bound that the language is clear plain unqualified it makes no distinction between minors claims and survivor's claims it makes no distinction between original claims and subsequent claims and that's the way the claims the term claims are used throughout the statute in the regulations and the decisions of the various court claims an assertion of entitlement to benefits and the statute applies to any such claim marman cole makes two basic arguments as to why despite the plain language of the statute that mrs ackerman's claims should be barred first they they they bring up the issue of finale's and there is no question that mrs ekman first claim was finally denied it was conclusively determine that claim that her husband did not die of a new macone osis and there is nobody here today but the fact that claim was final does not determine whether or not her second claim can go forward as a subsequent claim whether or not it is somehow barred now that gets to the second argument that is made by marman cole which is that race judicata bars  clay i think is a good point to step back and remember exactly what race you get caught it is it's not some amorphous overarching concept that affects each and every case that comes before a court race judicata is an affirmative defense the party asserting it has to prove three elements first that there was a final judgment on the prior action second but the involved the same parties and third that involve the same cause of actions as to are met one and two are certainly met here but three is not this is not the same cause back and what is the cause of action i think there's both a factual and a legal dimension to what a cause of action is factually you look at did the did the claim arise out of the same facts the the resolution of that issue turned on evaluation and wayne a very detailed medical evidence addressing the cause of his death her second claim arises out of an entirely different fact let me stop you there  husband received an award of benefits on a life time claim which he did so this is a different factual basis for the claim and it's different evidence than you have in the first he still needs to be the surviving spouse she still needs to be the surviving spouse there are certainly about a claim but her claim was very specific the claim the only claim she could bring when she first applied for benefits was that she was entitled to benefits because her husband's death was due to new macone oses that was the only basis on which she could recover now congress has created and an alternative path that did not previously exist and says she can recover if her husband received a lifetime award and that's a another important element of what the cause of action is cause of action elements of race judicata says that only those theories or bases of relief which were or could have been asserted in a in a prior action are  of the two possible causes of action of the two possible claims here the element that previously existed that is that black lung disease caused the death becomes irrelevant appears he died of or you macone else is what matters is now is whether or not he received benefits on a life time claim in this regard i would also point out that the fact that mrs ackerman is pursuing a claim for monetary benefits now relief into hany the government thought in the first action to remove the alien second action the government sought to remove the alien aliens said well you know removal is what constitutes the cause of action and supports a no you look at the underlying facts you don't look at what the ultimate relief is and snice is does not matter the misses ekman is seeking the same sort of species of relief that you sought regionally and i point out in this regard that although it would be the same type of relief it would not be the same extent of really this is ackman had received an award of benefits on her original claim she would be entitled to benefits all the way back to the death of her husband where else but but here she gets only back to when and that says that on a subsequent claim entitlement cannot predate the month after the prior denial became final so in this case that mr ackerman was died in two thousand and two so an original  but what i think is real argument is the congress did not say that this statute creates a new cause of action for a student of purposes well congress doesn't have to do that the supreme court make clear in the story a financial case that congress doesn't have to explicitly address the race judicata effect of a statute that's something for the parties to establish whether there's a new cause of action and for the courts to ultimately decide what about mormons finality argue that well i their argument that you know that they had the prior claim was final we completely agree the prior claim was final that simply doesn't answer the question though about whether or not this is a new cause of action that can be pursued because we are not reopening that prior claim we're not going back and looking at the factual findings that were made there were you know what is now being adjudicated are different facts some time before the sometime other than what the statute requires special requests payment benefits from the date of death the labor department has the strange view in order to avoid the notion of