2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-8-2013

Marmon Coal Co v. Dir OWCP, US Dept Labor

Precedential or Non-Precedential: Precedential

Docket No. 12-3388

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 12-3388

______

MARMON COAL COMPANY;

INTERNATIONAL BUSINESS AND

MERCANTILE REASSURANCE COMPANY,

Petitioners

v.

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR;

ETHEL D. ECKMAN, Widow of JOHN H. ECKMAN,

Respondents

______

On Petition for Review from an

Order of the Benefits Review Board,

United States Department of Labor

(Benefits Review Board No. 11-0766 BLA)

______

Argued May 15, 2013

Before: SMITH, FISHER and CHAGARES, Circuit Judges.
2

(Opinion Filed: August 8, 2013)

Laura M. Klaus, Esq.

Mark E. Solomons, Esq. (ARGUED)

Greenberg Traurig

2101 L Street, N.W., Suite 1000

Washington, DC 20037

Counsel for Petitioners

Rae Ellen James, Esq.

Barry H. Joyner, Esq. (ARGUED)

Gary K. Stearman, Esq.

United States Department of Labor

Office of the Solicitor

200 Constitution Avenue, N.W.

Washington, DC 20210

Counsel for Director, Office of

Workers’ Compensation Programs,

U.S. Department of Labor

Robert J. Bilonick, Esq.

Pawlowski, Bilonick & Long

603 North Julian Street

P.O. Box 658

Ebensburg, PA 15931

Counsel for Ethel D. Eckman

______

OPINION OF THE COURT

______
3

FISHER, Circuit Judge.

Marmon Coal Company and its carrier (collectively, 

“Marmon”) petition for review of a decision by the Benefits 

Review Board (the “Board”) of the U.S. Department of Labor 

(the “DOL”), which confirmed an award of survivors’

benefits to Ethel Eckman under the Black Lung Benefits Act 

(the “BLBA”), 30 U.S.C. § 901 et seq., as amended by the 

Patient Protection and Affordable Care Act (the “ACA”), 

Pub. L. No. 111-148, § 1556, 124 Stat. 119, 260 (2010). For 

the reasons stated below, we will deny the petition for review.

I.

A. Statutory Background

The BLBA provides coal miners and their surviving 

dependents with a means to obtain benefits in compensation 

for the disabling effects of pneumoconiosis (i.e., black lung 

disease). There have been several changes in the law with 

respect to survivors’ benefits over the past forty-four years. 

Congress first provided benefits to surviving dependents of 

coal miners afflicted with pneumoconiosis through the 

Federal Coal Mine Health and Safety Act of 1969 (the 

“FCMHSA”), 30 U.S.C. § 841 et seq. In 1972, Congress 

amended the FCMHSA and re-designated Title IV of the Act 

as the BLBA. The BLBA has been amended numerous times 
4

since its original enactment.1

 Until 1982, a deceased miner’s

dependents could obtain survivors’ benefits under the BLBA 

by showing that the miner’s death was substantially caused by 

pneumoconiosis or by merely showing that the miner had 

been awarded benefits during his lifetime. Thus, surviving 

dependents were entitled to benefits automatically if the 

miner had been awarded benefits during his lifetime, even if 

pneumoconiosis played no role in the miner’s death.2

In 1981, due to a soaring increase in the number of 

claims for benefits under the BLBA, Congress prospectively 

eliminated the automatic entitlement to benefits for surviving 

dependents. See Black Lung Benefits Amendments of 1981, 

Pub. L. No. 97-119, 95 Stat. 1635 (1981). Instead, after 

January 1, 1982, surviving dependents could receive benefits 

 See 30 

U.S.C. § 922(a)(2) (1970).

 1 The Black Lung Benefits Act was significantly 

amended in 1977, 1981, and 2010. See Black Lung Benefits 

Revenue Act of 1977, Pub. L. No. 95-227, 92 Stat. 11 (1978); 

Black Lung Benefits Reform Act of 1977, Pub. L. No. 95-

239, 92 Stat. 95 (1978); Black Lung Benefits Revenue Act of 

1981 and Black Lung Benefits Amendments of 1981, Pub. L. 

No. 97-119, 95 Stat. 1635 (1981); Patient Protection and 

Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 

(2010).

2 This design for awarding benefits has been referred 

to as an automatic “derivative benefits” system. See Union 

Carbide Corp. v. Richards, --- F.3d ---, Nos. 12-1978, 12-

1294, 2013 WL 3358994, at *1 (4th Cir. July 5, 2013).
5

only after proving that pneumoconiosis substantially 

contributed to the miner’s death.

The DOL regulations pertaining to the BLBA, as 

amended in 1981, distinguish between survivors’ “previously 

filed” claims and survivors’ “subsequent” claims. 20 C.F.R. 

§ 725.309(d). A “subsequent” claim is a claim filed “more 

than one year after the effective date of a final order denying 

a claim previously filed by the claimant.” Id. The DOL 

comments to this regulation include the following statement:

“Where a previous survivor’s claim was denied 

solely on the basis that the survivor did not 

prove that the miner died due to 

pneumoconiosis, an element not subject to 

change, the survivor may be barred from 

litigating another claim filed more than one year 

after the denial of the first one.”

65 Fed. Reg. 79973.

In 2010, Congress enacted the ACA, the much 

publicized and debated healthcare law. Lost in the larger 

debate over the proper role of the federal government in the 

health insurance market was a little known provision of the 

ACA that amended the BLBA and reinstated automatic

entitlement to benefits for surviving dependents. See ACA 

§ 1556; B&G Constr. Co. v. Dir., OWCP, 662 F.3d 233, 247-

53 (3d Cir. 2011) (holding that the ACA reinstated automatic 

entitlement to benefits for surviving dependents). The BLBA 

provision titled “Filing of new claims or refiling or 

revalidation of claims of miners already determined eligible 
6

at time of death,” which is codified at 30 U.S.C. § 932(l), now 

reads 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.”

Section 1556(b) of the ACA simply eliminated from the end 

of § 932(l) the following language: “except with respect to a 

claim filed under this part on or after the effective date of the 

Black Lung Benefits Amendments of 1981.” Critically, for 

purposes of this case, § 1556(c) of the ACA specifies the 

applicability and scope of the amendment to § 932(l):

“The amendments made by this Section shall 

apply with respect to claims filed under part B 

or part C of the Black Lung Benefits Act (30 

U.S.C. 921 et seq., 931 et seq.) after January 1, 
7

2005, that are pending on or after the date of 

enactment of this Act.”3

The DOL, on March 30, 2012, proposed new 

regulations to implement the ACA’s amendments to § 932(l). 

See 77 Fed. Reg. 19456-78. The proposed regulations take 

the position that “the ACA created, for certain survivors, a 

new cause of action by establishing a new method of 

demonstrating entitlements to benefits.” Id. at 19468. The 

proposed regulations further provide that § 932(l), as 

amended, “applies to all survivors’ claims meeting the 

effective-date requirements” and that the amendment 

“fundamentally altered the legal landscape for subsequent 

survivors’ claims and requires a revision to current 

§ 725.309(d).” Id.

 3 In B&G Construction Co. v. Director, OWCP, we 

noted that the ACA “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,” but 

that “surely a widow seeking benefits must file something in 

order to receive them.” 662 F.3d 233, 244 n.12 (3d Cir. 

2011). We now confirm that indeed a widow must file 

something in order to receive benefits, and we clarify that 

there is no inconsistency with respect to the ACA’s effect on 

the BLBA: the ACA revives § 932(l)’s automatic benefits to 

the extent that a survivor files a claim for benefits after 

January 1, 2005, that is pending on or after the ACA’s 

effective date, March 23, 2010.
8

B. Factual and Procedural History

After leaving coal mining, John Eckman filed a claim 

for benefits under the BLBA in 1985. An Administrative 

Law Judge (“ALJ”) awarded benefits in 1993, and the Board 

affirmed the decision on appeal. Marmon then paid benefits 

to John Eckman until his death on May 2, 2002. John

Eckman’s widow, Ethel Eckman, filed a claim for benefits as 

a dependent survivor on May 7, 2002, five days after her 

husband’s death. An ALJ denied her claim in 2005, finding 

that although John Eckman had pneumoconiosis, Ethel

Eckman failed to prove that his death was due to the disease. 

Ethel Eckman appealed to the Board, which affirmed the 

ALJ’s decision on March 28, 2006. The Board’s decision

became final on May 27, 2006.

After Congress enacted the ACA and amended the 

BLBA on March 23, 2010, Ethel Eckman filed a new claim 

on September 10, 2010. A DOL district director awarded 

benefits based on her new claim. Marmon then asked for an 

ALJ hearing. The ALJ agreed with the district director and 

awarded benefits. The ALJ specifically found that Ethel 

Eckman satisfied the familial relationship and dependency 

criteria for survivors under the BLBA. The ALJ also found 

that, based on John Eckman’s lifetime disability award and 

the filing date of Ethel Eckman’s subsequent claim, Ethel 

Eckman was entitled to benefits under § 932(l), as amended 

by the ACA. The ALJ awarded benefits as of April 2006, the 

month after the Board issued its decision on Ethel Eckman’s 

original claim.
9

Marmon appealed to the Board, arguing that Ethel 

Eckman’s subsequent claim was barred by the DOL’s preACA regulations and principles of res judicata. The Board 

rejected these arguments. After affirming the award, the 

Board modified the entitlement date on the claim to June 

2006, the month after the Board’s decision on the original 

claim became final. Marmon then petitioned this Court for 

review.

II.

We have jurisdiction over a petition for review of a 

final order from the Board under 33 U.S.C. § 921(c). The 

Board’s decisions on matters of law are subject to plenary 

review. Lombardy v. Dir., OWCP, 355 F.3d 211, 213 (3d Cir. 

2004).

III.

This case concerns a “subsequent” claim for benefits 

by a surviving dependent under the recently amended BLBA. 

With respect to original or first-time claims, we have already 

determined that § 932(l), as amended, automatically entitles 

surviving dependents to benefits if the miners were eligible to 

receive benefits at the time of their deaths. See B&G Constr., 

662 F.3d at 247-53. Now, we must determine (1) whether 

§ 932(l), as amended, applies to a subsequent claim for 

benefits where the original claim was denied due to the 

claimant’s failure to show that pneumoconiosis substantially 

contributed to the miner’s death, and (2) whether res judicata 

precludes a post-amendment award of survivors’ benefits on a 

subsequent claim where the original claim was denied due to 
10

the claimant’s failure to show that pneumoconiosis 

substantially contributed to the miner’s death.

The only Court of Appeals to have addressed these 

issues has held that § 932(l), as amended, applies to 

subsequent claims that are filed and pending within the proper 

temporal thresholds, and that res judicata does not preclude a 

post-amendment award of survivors’ benefits on a subsequent 

claim where the original claim was denied due to the 

claimant’s failure to show that pneumoconiosis substantially 

contributed to the miner’s death. See Union Carbide Corp. v. 

Richards, --- F.3d ---, Nos. 12-1978, 12-1294, 2013 WL 

3358994 (4th Cir. July 5, 2013).

A. The Scope of ACA § 1556

Marmon’s first argument is that Eckman’s subsequent 

claim is foreclosed by the lack of a specific reference to 

subsequent claims in the language of ACA § 1556(c), which 

outlines the applicability and scope of the ACA’s 

amendments to the BLBA. Thus, our first task is to 

determine whether the success of a subsequent claim is 

foreclosed by the following statutory language: “The 

amendments made by this Section shall apply with respect to 

claims filed . . . after January 1, 2005, that are pending on or 

after the date of enactment of this Act.” ACA § 1556(c)

(emphasis added).

The goal of statutory interpretation is to “give effect to 

Congress’s intent.” B&G Constr., 662 F.3d at 248. The most 

reliable indication of Congress’s intent is found in the plain 

language of the statute. Id. Where the statutory language is 
11

plain and unambiguous, it is rarely necessary to inquire 

further into the statute’s meaning. Id. Further inquiry should 

be made only “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.

Section 1556(c) of the ACA refers to “claims” without 

any qualifying language. The reference to claims is not 

explicitly limited to “first time” or “original” claims and it 

does not explicitly exclude “subsequent” claims. Presumably, 

Congress could have explicitly indicated that the amendment 

excludes subsequent claims, but Congress made no such 

indication. Thus, the plain language of ACA § 1556(c)

encompasses Eckman’s subsequent claim, which was filed 

after January 1, 2005, and was pending after March 23, 2010, 

the date of the ACA’s enactment.

There is no evidence of congressional intent that 

would contradict this plain language reading of the statute. 

The legislative history associated with ACA § 1556 is rather 

sparse. In fact, the only legislative history of record 

pertaining to this particular section is a post-enactment 

statement by Senator Robert Byrd, which states as follows:

“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 
12

are awaiting or appealing a decision or order, or 

who are in the midst of trying to determine 

whether to seek a 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.”

156 Cong. Rec. S2083-84 (Mar. 25, 2010) (statement of Sen. 

Byrd).

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 (2007). 

However, because we have previously stated that this 

particular piece of legislative history is “nevertheless 

significant inasmuch as [Senator Byrd] was the sponsor of 

section 1556, a single amendment in a complex bill of great 
13

length,” B&G Constr., 662 F.3d at 251, we will address the 

substance of Senator Byrd’s statement as it applies to the 

issue at hand.

Marmon asserts that the first sentence of Senator 

Byrd’s statement includes an exhaustive list of claims

affected by ACA § 1556, and because the list does not 

include subsequent claims by survivors, his statement must be 

interpreted to support the position that ACA § 1556 does not 

cover such claims. However, Senator Byrd’s reference to the 

section as “including” certain claims does not necessarily 

indicate that his list is exhaustive. See Christopher v. 

SmithKline Beecham Corp., 132 S. Ct. 2156, 2170 (2012) 

(addressing a statutory definition introduced with the verb 

“includes,” and stating that “[t]his word choice is significant 

because it makes clear that the examples enumerated in the 

text are intended to be illustrative, not exhaustive”); see also

Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 

95, 100 (1941) (“the term ‘including’ is not one of allembracing definition, but connotes simply an illustrative 

application of the general principle”). Indeed, Senator Byrd’s 

list does not include the largest class of potential claims: 

original claims filed by miners, either pending or filed 

henceforth. Furthermore, Senator Byrd’s first sentence

reference to “all claims” supports an interpretation of ACA 

§ 1556 that does not exclude subsequent claims. Thus, this 

post-enactment statement does not support a reading of ACA 
14

§ 1556(c) that is contrary to a literal interpretation of the 

section’s plain language.4

Marmon’s argument with respect to the applicability 

and scope of ACA § 1556(c), however, does not end with the 

section’s plain language and legislative history. Rather, 

Marmon asserts that we cannot interpret ACA § 1556(c) to 

encompass subsequent claims because to do so would 

contradict principles of finality and res judicata. On this 

point, Marmon relies heavily on Pittston Coal Group v. 

Sebben, 488 U.S. 105, 122-23 (1988), where a class of 

claimants failed to appeal the DOL’s denial of their claims 

under the BLBA, but asked for their claims to be re-opened 

and re-adjudicated because the DOL had applied the wrong

entitlement criteria. The Supreme Court agreed that the DOL 

failed to apply the proper entitlement criteria, but declined to 

re-open and re-adjudicate the finally determined claims 

 4 Senator Byrd also stated that ACA § 1556 applies to 

“all pending claims, including claims that were finally 

awarded or denied . . . for which the claimant seeks to modify 

a denial . . . in accordance with 20 CFR 725.309(c).” 

Marmon asserts that Senator Byrd’s reference to 

§ 725.309(c), which pertains to modification of claims, 

instead of § 725.309(d), which pertains to subsequent claims, 

indicates a desire to exclude subsequent claims. However, 

this assertion is contradicted by the same reasoning that belies 

Marmon’s other legislative history arguments: a reference to 

the section as “including” certain claims does not indicate 

exclusivity. See Christopher v. SmithKline Beecham Corp., 

132 S. Ct. 2156, 2170 (2012).
15

absent specific congressional authorization. Id. at 121-23. 

The Court re-emphasized the principle that a claimant cannot 

“avoid the bar of res judicata on the ground that the decision 

was wrong.” Id. at 123.

Pittston Coal Group, however, is not sufficiently on 

point to control the issue at hand. In contrast to the claimants 

in Pittston Coal Group, Eckman is not seeking to “re-open” a 

previously denied claim or to “avoid the bar of res judicata” 

on the ground that her original claim was wrongly decided. 

Instead, Eckman brings a “subsequent” claim based on new 

assertions of entitlement. Thus, contrary to Marmon’s 

argument, our conclusion that ACA § 1556(c) encompasses 

subsequent claims does not disregard principles of finality 

and res judicata, and because we have no intention of 

disregarding such principles, we will address in the following 
16

subsection the question of whether Eckman’s subsequent 

claim for survivors’ benefits is barred by res judicata.5

B. Res Judicata

Res judicata bars a party from initiating a subsequent

suit against the same adversary based on the same cause of 

action as a prior suit. Duhaney v. Att’y Gen., 621 F.3d 340, 

347 (3d Cir. 2010). The purpose of res judicata is to “relieve 

parties of the cost and vexation of multiple lawsuits, conserve 

judicial resources, and, by preventing inconsistent decisions, 

encourage reliance on adjudication.” Allen v. McCurry, 449 

U.S. 90, 94 (1980).

Federal common law governs our determination as to 

whether a prior adjudication should be given preclusive 

effect. Taylor v. Sturgell, 553 U.S. 880, 891 (2008). A party 

 5 The parties debate whether the interpretation of the 

BLBA by the Director of the Office of Workers’ 

Compensation Programs, expressed in lieu of a final rule, is 

deserving of Skidmore deference, and if so, to what extent 

deference should be afforded. See Skidmore v. Swift & Co., 

323 U.S. 134, 140 (1944) (holding that the opinions of a 

responsible administrative agency “constitute a body of 

experience and informed judgment to which courts and 

litigants may properly resort for guidance”). Because we 

conclude (without regard for deference) that the amended 

BLBA does not exclude subsequent claims, it is unnecessary 

to address whether, and to what extent, the Director’s

interpretation should be afforded Skidmore deference.
17

seeking to invoke res judicata must establish three elements: 

“(1) a final judgment on the merits in a prior suit involving 

(2) the same parties or their privies and (3) a subsequent suit 

based on the same cause of action.” Duhaney, 621 F.3d at 

347 (internal quotation marks and citation omitted). “The 

doctrine of res judicata bars not only claims that were brought 

in a previous action, but also claims that could have been 

brought.” Id. (internal quotation marks and citation omitted). 

The Director of the Office of Workers’ Compensation 

Programs (the “Director”), the Federal Respondent in this 

case, does not dispute that Eckman’s prior suit resulted in a 

final judgment on the merits involving the same parties. 

Instead, the Director asserts that Eckman’s subsequent claim 

involves a different cause of action.

“We have disavowed attempts to create a simple test

for determining what constitutes a cause of action for res 

judicata purposes.” Id. at 348 (internal quotation marks and 

citation omitted). The focus of the inquiry is the “essential 

similarity of the underlying events giving rise to the various 

legal claims.” Id. (internal quotation marks and citation 

omitted). Factors relevant to this determination include 

(1) whether the acts complained of were the same; 

(2) whether the material facts alleged in each suit were the 

same; and (3) whether the witnesses and documentation 

required to prove such allegations were the same. Id. The 

mere existence of common elements of fact between two 

claims does not establish the same cause of action if the 

critical acts and the necessary documentation were different 

for the two claims. See id. at 349. In addition, an identical 

sought-after remedy for each of the claims is not dispositive 
18

for purposes of determining whether the second claim 

involves a new cause of action. See id.

Here, although there were common elements of fact 

alleged in each suit, the material facts alleged in each suit 

were different, and the witnesses and documentation required 

to prove the material facts were also different. In her first 

claim, Eckman could recover only by proving that her 

husband’s death was due to pneumoconiosis. The resolution 

of that issue centered on the fact-finder’s review of medical 

evidence. In contrast, in her subsequent claim, Eckman can 

recover without proving that her husband’s death was due to

pneumoconiosis. The cause of death is not at issue, and the 

medical evidence presented during the first claim is no longer

relevant. Rather, Eckman’s entitlement to benefits turns 

primarily on an administrative fact – whether her husband had 

been awarded benefits. This administrative fact was not 

relevant to her first claim. The subsequent claim thus 
19

involves a different cause of action,

6 and res judicata does not 

prevent Eckman from receiving survivors’ benefits under the 

BLBA.7

 6 We have previously described res judicata in 

administrative adjudications as “not encrusted with the rigid 

finality that characterizes its application in purely judicial 

proceedings,” Purter v. Heckler, 771 F.2d 682, 691 (3d Cir. 

1985), and we have further held that “refusal to apply 

‘administrative’ res judicata in a strictly technical fashion is 

consistent with this circuit’s view that more significance 

should be placed on fairness in the administrative process 

than on the finality of administrative judgments.” Id. at 693. 

However, in this case, we do not rely on any relaxed 

administrative standard to hold that Eckman’s subsequent 

claim involves a different cause of action than her original 

claim.

7 Marmon’s due process argument is a variant of its res 

judicata argument in that Marmon contends that a claimant’s 

entitlement to benefits on a subsequent claim violates due 

process because it deprives coal mine operators of the benefit 

of finality. See RAG Am. Coal Co. v. OWCP, 576 F.3d 418, 

428 n.6 (7th Cir. 2009) (stating in a footnote that a party’s 

“claim that the refusal to apply ordinary principles of finality 

denies it due process of law is nothing more than a variation 

of its res judicata argument”). The finality of Eckman’s 

original claim is relevant to whether res judicata bars her 

subsequent claim. However, because the subsequent claim 

was brought under a new cause action, res judicata does not 

preclude an award of benefits.
20

IV.

The Board did not err in confirming an award of 

survivors’ benefits to Eckman under the BLBA, as amended 

by the ACA. Thus, we will deny Marmon’s petition for 

review.