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
2

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
3

______________

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

 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.

 Section 932(l) provides that eligible survivors 

2 There are four parties in these proceedings, B&G, the State 
4

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. 
5

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.
6

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.
7

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 
8

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 
9

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). 
10

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).
11

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

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, 

 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. 

 6 The 1972 amendments did not alter section 922, which 

regulated payment to widows under part B. 
12

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

 7 The FCMHSA and the 1972 and 1977 amendments followed a 

distinct pattern:

 Pauley, 501 U.S. at 688, 111 

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) 
13

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).
14

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).
15

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

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 

 And section 921(a) 

stated:

 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.
16

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.
17

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

E. The PPACA Amendments 

 See 20 C.F.R. § 

718.205(c)(3). 

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).
18

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

Filing of new claims or refiling or revalidation of 

claims of miners already determined eligible at 

time of death

 Thus, 30 U.S.C. § 932(l) 

now reads as it did after the 1977 amendments but before 

the 1981 amendments:

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.
19

date. Pub. L. No. 111-148. § 1556(c) (2010).12

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.

 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:

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.
20

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 
21

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 
22

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.
23

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 
24

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 
25

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 
26

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

 

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).

 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 

16 B&G made the argument that section 932(l) applied only to 

complicated pneumoconiosis for the first time at oral argument 

before us.
27

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. 
28

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 
29

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 
30

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 
31

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 
32

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. 
33

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 
34

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

 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).

 Here, the title of section 
35

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. 
36

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:

 
37

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).
38

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 
39

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 
40

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. 
41

 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 
42

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 
43

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 
44

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 
45

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

 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)).

 However, the Supreme Court squarely has 

 

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.
46

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

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.

 

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. 

 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).
47

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

More importantly for purposes of this case, the Court also 

 

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.

 23 There is a period before “as” in the statute.
48

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

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.

 The Court concluded, however, that the 

irrebuttable presumption in section 921(c)(3) was justified for 

other reasons: 

. . .

 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. 
49

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 
50

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

 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. 

 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 
51

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 
52

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 
53

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 asthe 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.
54

“[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 
55

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.
56

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 
57

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).
58

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 
59

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

 2. Interference With Investment Backed Expectations

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 Enterprisessets 

forth weighs against finding an unconstitutional taking under the 

Fifth Amendment. 

 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).
60

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

 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.

 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 
61

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 
62

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. 
1

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 
2

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, 
3

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.