West Virginia Cwp Fund v. Elsie Stacy

                                             Filed:    December 21, 2011

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                              No. 11-1020
                             (10-0113-BLA)


WEST VIRGINIA CWP FUND, as carrier for Olga Coal Company,

               Petitioner,

          v.

ELSIE L. STACY, surviving spouse of Howard W.                Stacy;
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,

               Respondents.

--------------------

ASSOCIATION OF BITUMINOUS      CONTRACTORS,     INCORPORATED;   OLD
REPUBLIC INSURANCE COMPANY,

               Amici Supporting Petitioner,

UNITED   MINE  WORKERS   OF     AMERICA;     TIMOTHY    CHRISTOPHER
MACDONNELL, Esq.,

               Amici Supporting Respondents.



                               O R D E R


          The Court amends its opinion filed December 7, 2011,

as follows:

          On page 2, attorney information section, line 6, the

name “Wendy L. Snyder” is corrected to read “Wendy G. Adkins.”

                                       For the Court – By Direction

                                             /s/ Patricia S. Connor
                                                       Clerk
                       PUBLISHED


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


WEST VIRGINIA CWP FUND, as            
carrier for Olga Coal Company,
                        Petitioner,
                 v.
ELSIE L. STACY, surviving spouse
of Howard W. Stacy; DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS,
                                      
                      Respondents.
                                            No. 11-1020

ASSOCIATION OF BITUMINOUS
CONTRACTORS, INCORPORATED; OLD
REPUBLIC INSURANCE COMPANY,
      Amici Supporting Petitioner,
UNITED MINE WORKERS OF
AMERICA; TIMOTHY CHRISTOPHER
MACDONNELL, Esq.,
    Amici Supporting Respondents.
                                      
          On Petition for Review of an Order of
              the Benefits Review Board.
                     (10-0113-BLA)
                 Argued: October 25, 2011

                Decided: December 7, 2011
  Before TRAXLER, Chief Judge, and WILKINSON and
              WYNN, Circuit Judges.
2             WEST VIRGINIA CWP FUND v. STACY
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler and Judge Wynn
joined.


                         COUNSEL

ARGUED: Kathy Lynn Snyder, JACKSON KELLY, PLLC,
Morgantown, West Virginia, for Petitioner. Ryan Christopher
Gilligan, WOLFE, WILLIAMS, RUTHERFORD & REYN-
OLDS, Norton, Virginia; Sean Gregory Bajkowski, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondents. ON BRIEF: Wendy G. Adkins, JACKSON
KELLY, PLLC, Morgantown, West Virginia, for Petitioner.
Joseph E. Wolfe, WOLFE, WILLIAMS, RUTHERFORD &
REYNOLDS, Norton, Virginia, for Respondent Stacy. M.
Patricia Smith, Solicitor of Labor, Rae Ellen James, Associate
Solicitor, Maia S. Fisher, UNITED STATES DEPARTMENT
OF LABOR, Washington, D.C., for Federal Respondent. Mary
Lou Smith, HOWE, ANDERSON & STEYER, P.C.,
Washington, D.C., for Association of Bituminous Contractors,
Amicus Supporting Petitioner. Mark E. Solomons, Laura
Metcoff Klaus, GREENBERG TRAURIG, LLP, Washington,
D.C., for Old Republic Insurance Company, Amicus Supporting
Petitioner. Arthur Traynor, INTERNATIONAL UNION,
UNITED MINE WORKERS OF AMERICA, Triangle, Virgin-
ia, for United Mine Workers of America, Amicus Supporting
Respondent. Timothy C. MacDonnell, Micah P. S. Jost, Student
Caseworker, Jacob L. Triolo, Student Caseworker, WASHING-
TON AND LEE UNIVERSITY SCHOOL OF LAW, Black
Lung Legal Clinic, Lexington, Virginia, for Timothy Christoph-
er MacDonnell, Amicus Supporting Respondent.
              WEST VIRGINIA CWP FUND v. STACY                  3
                          OPINION

WILKINSON, Circuit Judge:

   This case involves a widow’s claim for survivors’ benefits
under the Black Lung Benefits Act ("BLBA"), 

, as amended by the Patient Protection and Afford-
able Care Act ("PPACA"), 

, 

, 260 (2010). The PPACA amendments revived Sec-
tion 422(l) of the BLBA, 

(l), which provides
that an eligible survivor of a miner who was receiving bene-
fits at the time of his death is automatically entitled to survi-
vors’ benefits without having to establish that the miner’s
death was due to pneumoconiosis. Relying on amended
§ 932(l), the Benefits Review Board ("BRB") ruled that the
widow, Elsie Stacy, was entitled to survivors’ benefits. On
appeal, petitioner West Virginia Coal Workers’ Pneumoconi-
osis Fund subjects the PPACA’s restoration provision to a
variety of constitutional and statutory challenges. Finding no
merit in these attacks, we now affirm.

                               I.

                               A.

   The black lung benefits program was originally enacted in
1969 to provide benefits for miners totally disabled due to
pneumoconiosis arising out of coal mine employment. Pneu-
moconiosis is a chronic lung disease or impairment arising
out of such employment. See 

(a). The
statute, now known as the Black Lung Benefits Act, also pro-
vides survivors’ benefits for miners’ dependents.

   Congress has recalibrated the program’s eligibility require-
ments for survivors several times since its inception. As ini-
tially enacted, the program required a survivor to prove
entitlement by showing either that the miner’s death was
caused by pneumoconiosis or that the miner was totally dis-
4             WEST VIRGINIA CWP FUND v. STACY
abled by pneumoconiosis at the time of his death. See 

 (1976). In 1977, Congress introduced BLBA
Section 422(l), 

(l), which provided that "[i]n
no case shall the eligible survivors of a miner who was deter-
mined 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, 

(h), 

, 100 (1978). Under this provision,
the eligible survivors of a miner who had been awarded dis-
ability benefits on a claim filed during his lifetime were auto-
matically entitled to survivors’ benefits.

   Congress significantly tightened the BLBA’s eligibility
requirements in 1981. For one thing, the 1981 amendments
added limiting language to 

(a)(2) and 932(l)
that effectively abolished automatic survivors’ benefits going
forward. Black Lung Benefits Revenue Act of 1981, 

 203(a)(1), 203(a)(6), 

, 1643-44
(1981). The amendments also restricted the availability of
benefits for survivors of miners totally disabled by pneumoco-
niosis by adding similar limiting language to 

(a). 

 § 203(a)(5), 95 Stat. at 1644. Moreover, they
removed from the BLBA’s general purpose section, 

, language indicating that one purpose of the Act was to
provide benefits to survivors of miners "who were totally dis-
abled by [pneumoconiosis] at the time of their deaths . . . ."

 § 203(a)(4), 95 Stat. at 1644. As a result of these amend-
ments, survivors could generally only obtain benefits by prov-
ing that pneumoconiosis caused a miner’s death. Finally, the
1981 amendments eliminated the "15-year presumption,"
BLBA Section 411(c)(4), 

(c)(4), a rebuttable
presumption benefitting miners who were employed in an
underground coal mine for 15 years or more. 

 § 202(b)(1)-
(2), 95 Stat. at 1643.

  In 2010, Congress once again recalibrated the BLBA’s eli-
gibility requirements by enacting Section 1556 of the
                WEST VIRGINIA CWP FUND v. STACY                        5
PPACA. See 

, 

, 260
(2010). Section 1556(a) of the Act revived the 15-year pre-
sumption. Further, Section 1556(b) reinstated automatic survi-
vors’ benefits by removing from 

(l) the
limiting language that had been added in 1981. The PPACA
did not, however, eliminate the corresponding language from
§§ 921(a) and 922(a)(2), nor did it alter the wording of § 901.
Finally, Section 1556(c) of the PPACA provides the effective
date for Sections 1556(a) and 1556(b), restricting their appli-
cation to "claims filed . . . after January 1, 2005, that are
pending on or after the date of enactment of this Act." Id.
§ 1556(c).

                                   B.

  Howard Stacy mined coal in West Virginia for Olga Coal
Company from 1975 until 1986. Shortly after leaving the
mines, Mr. Stacy filed a claim for federal black lung benefits.
The Department of Labor granted the claim, finding that Mr.
Stacy was totally disabled as a result of pneumoconiosis aris-
ing from his coal mine employment. Petitioner—as insurer for
Olga Coal Company—paid BLBA benefits to Mr. Stacy for
20 years until his death in January 2007.

   Mr. Stacy’s widow, Elsie Stacy, filed a claim for survivors’
benefits on February 1, 2007. At the time she filed her claim,
the applicable regulations required her to prove that pneumo-
coniosis caused, contributed to, or hastened her husband’s
death. See 

. Following a formal hearing,
the ALJ ruled that Mrs. Stacy had failed to prove that her hus-
band suffered from pneumoconiosis.1 Accordingly, the ALJ
denied the claim. Mrs. Stacy appealed the ALJ’s denial to the
BRB.
  1
    The ALJ determined that petitioner was not collaterally estopped from
arguing that Mr. Stacy did not suffer from pneumoconiosis because his
claim had not been adjudicated by an ALJ, the BRB, or a court.
6              WEST VIRGINIA CWP FUND v. STACY
   On March 23, 2010, while Mrs. Stacy’s case was on appeal,
the PPACA was enacted. Shortly after, Mrs. Stacy filed a
motion with the BRB requesting that her case be remanded
for a determination of benefits under the newly amended
BLBA because (1) her husband was receiving benefits at the
time of his death pursuant to a final award; (2) she had filed
her claim after January 1, 2005; and (3) her claim was still
pending on March 23, 2010, when the PPACA was enacted.
See 

(c), 

, 260 (2010)
("The amendments made by this section shall apply with
respect to claims filed . . . after January 1, 2005, that are pend-
ing on or after the date of enactment of this Act."). The Direc-
tor, Office of Workers’ Compensation Programs (the
"Director") agreed that Mrs. Stacy was entitled to benefits
under 

(l), as amended by the PPACA amend-
ments.

  Petitioner opposed Mrs. Stacy’s motion, arguing that
PPACA Section 1556 is unconstitutional and that the
PPACA’s reinstatement of automatic survivors’ benefits does
not apply to Mrs. Stacy’s claim because the operative filing
date for determining eligibility is the date the miner’s claim
was filed—not the date the survivor’s claim was filed—and
because the miner’s claim here was filed before January 1,
2005, and was not pending on or after March 23, 2010.

   On December 22, 2010, the BRB vacated the ALJ’s deci-
sion and remanded Mrs. Stacy’s claim for the entry of an
award of benefits. Agreeing with the Director, the BRB held
that the plain language of Section 1556(c) mandates the appli-
cation of amended § 932(l) to "all ‘claims’ filed after January
1, 2005, that are pending on or after March 23, 2010," includ-
ing survivors’ claims. It also rejected petitioner’s argument
that retroactive application of the PPACA amendments vio-
lates the Due Process and Takings Clauses, and it declined to
                 WEST VIRGINIA CWP FUND v. STACY                           7
hold the case in abeyance pending the resolution of other con-
stitutional challenges to the PPACA. This appeal followed.2

                                     II.

   We begin with petitioner’s contention that retroactive
application of the automatic survivorship provision to claims
filed after January 1, 2005 violates substantive due process
because Congress "did not provide any legitimate purpose"
for making the legislation retroactive and arbitrarily chose
January 1, 2005 as the operative filing date. Petitioner’s Br.
at 25-26. Legislative acts "adjusting the burdens and benefits
of economic life" are presumed to be constitutional, however,
and "the burden is on one complaining of a due process viola-
tion to establish that the legislature has acted in an arbitrary
and irrational way." Usery v. Turner Elkhorn Mining Co., 

 (1976). This is true even where that legislation is
applied retroactively. Pension Benefit Guar. Corp. v. R.A.
Gray & Co., 

 (1984). Because retroactive
application of amended Section 932(l) (the automatic survi-
vorship provision) is hardly arbitrary and irrational, petition-
er’s substantive due process argument is unavailing.
  2
    In its briefs, petitioner argued that if any portion of the PPACA—
including the "individual mandate"—is declared unconstitutional, the
PPACA amendments to the BLBA must also be declared invalid because
they are not severable from the rest of the Act. Following briefing in this
case, this court declined to hold any provision of the PPACA unconstitu-
tional in two cases, Virginia v. Sebelius, 

 (4th Cir. 2011) and
Liberty University, Inc. v. Geithner, ___ F.3d ___, 

 (4th
Cir. 2011). In light of these decisions, petitioner abandoned its non-
severability claims at oral argument. However, even if the individual man-
date were declared unconstitutional, we would uphold the validity of the
BLBA amendments because "the normal rule is that partial, rather than
facial, invalidation is the required course, such that a statute may . . . be
declared invalid to the extent that it reaches too far, but otherwise left
intact," Ayotte v. Planned Parenthood of N. New England, 

 (2006), and because the BLBA amendments have a stand-alone qual-
ity and are "fully operative as a law," Free Enter. Fund v. Pub. Co.
Accounting Oversight Bd., 

, 3161 (2010).
8              WEST VIRGINIA CWP FUND v. STACY
   Our analysis is guided by Usery v. Turner Elkhorn Mining
Co., 

 (1976), where the Supreme Court rejected an
argument that the BLBA, as amended in 1972, violated due
process by imposing retroactive liability for benefits on coal
mine operators. The Usery Court held that "the imposition of
liability for the effects of disabilities bred in the past is justi-
fied as a rational measure to spread the costs of the employ-
ees’ disabilities to those who have profited from the fruits of
their labor—the operators and the coal consumers." 

.

   A substantive due process violation requires that govern-
ment have acted in an arbitrary manner. 

. That is
hardly the case here. Usery made plain that it is not "arbitrary
and irrational" for Congress to compel operators who have
benefitted from a miner’s labor in his productive years to care
for that miner in his declining years and for his spouse or
other eligible dependents after his death. Indeed, the wholly
rational and legitimate purpose for applying amended § 932(l)
retroactively is to compensate the survivors of deceased min-
ers "for the effects of disabilities bred in the past." Id. at 18.
Although Congress might well find on its own that the impo-
sition of such costs on mine operators is excessive, the Con-
stitution imposes no bar on Congress’s ability to enact
remedial and humanitarian legislation such as that challenged
here.

  Relying on Usery, the Third Circuit recently upheld
amended § 932(l) against a due process challenge. See B&G
Constr. Co. v. Dir., OWCP, ___ F.3d ___, 

(3d Cir. 2011). The court in B&G Construction reasoned that

    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 depen-
    dents for the suffering they endured due to the
    miner’s pneumoconiosis or as a means to provide a
              WEST VIRGINIA CWP FUND v. STACY                   9
    miner with peace of mind that his dependents will
    continue to receive benefits after his death.

Id. at *19. The Third Circuit continued, "We have no reason
to override Congress’ implicit determination that the choice
was reasonable." Id. Therefore, the court concluded, "based
on the [Supreme Court’s] rationale in [Usery], we cannot say
that it is irrational or arbitrary for Congress to extend survi-
vors’ benefit[s] to the dependents of miners who are receiving
black lung benefits at the time of their death regardless of the
cause of death." Id.

   Similarly, the Seventh Circuit relied on Usery in rejecting
a due process challenge to the PPACA’s retroactive revival of
the 15-year presumption, 

(c)(4). See Keene v.
Consolidation Coal Co., 

 (7th Cir. 2011). The
Keene court concluded that "the rational purpose for applying
the 15-year presumption retroactively is to give miners and
their survivors whose claims were recently filed a better shot
at obtaining benefits." 

. While mine operators may
believe that Congress imposed excessive financial burdens
upon them, the proper forum for that argument is legislative,
not judicial. Simply put, Congress is suited to assess program-
matic costs and benefits in a way that courts are not.

   The absence of arbitrariness is underscored by the mea-
sured approach Congress adopted in the automatic survivor-
ship amendments. Far from arbitrarily ignoring the potential
financial burden that it placed on coal operators, Congress
mitigated the retroactive impact of Section 1556 by limiting
its application to "claims filed . . . after January 1, 2005, that
are pending on or after" March 23, 2010—the date the
PPACA was enacted. 

(c), 

, 260 (2010). Consequently, operators must only pay
automatic survivors’ benefits for claims filed in or after 2005.

   Although this limitation on § 932(l)’s retroactive applica-
tion works to the benefit of coal mine operators, petitioner
10             WEST VIRGINIA CWP FUND v. STACY
argues that Congress’s choice of January 1, 2005 as the cut-
off date is arbitrary and that § 932(l) therefore violates due
process. However, Congress’s selection of a precise filing
date is a classic line-drawing exercise uniquely within the
competence of the legislative branch. The Supreme Court has
squarely rejected the proposition that such routine line-
drawing exercises are somehow constitutionally infirm. The
Court has "never insisted that a legislative body articulate its
reasons for enacting a statute. This is particularly true where
the legislature must necessarily engage in a process of line-
drawing. The task of classifying persons for [benefits] inevita-
bly requires that some persons who have an almost equally
strong claim to favored treatment be placed on different sides
of the line . . . ." See U.S. R.R. Ret. Bd. v. Fritz, 

 (1980) (internal citation omitted).

   Petitioner also relies on Eastern Enterprises v. Apfel, 

 (1998). That case arose out of a series of agreements
between the United Mine Workers of America and coal oper-
ators establishing multiemployer health care funds. 

 at 504-
11. Eastern was a signatory to every agreement executed
between 1947 and 1964, but it ceased its coal mining opera-
tions in 1965. 

. Almost a decade after Eastern
had left the industry, the remaining parties agreed that the
multiemployer funds would provide lifetime health benefits
for retirees and their dependents. 

. Congress
subsequently passed the Coal Industry Retiree Health Benefit
Act of 1992 (the "Coal Act"), which required certain coal
operators—including Eastern—to contribute to a new mul-
tiemployer plan providing the promised lifetime coverage. 

. The Supreme Court held the Coal Act unconstitu-
tional as applied to Eastern — which had never agreed to pro-
vide lifetime benefits—but no single theory attracted a
majority of the Court. 

.

  Petitioner’s reliance on Eastern is misplaced for two rea-
sons. First, only one Justice in that case concluded that East-
ern’s due process rights were violated. 

 at 539-50
              WEST VIRGINIA CWP FUND v. STACY                11
(Kennedy, J., concurring in the judgment and dissenting in
part); see Ass’n of Bituminous Contractors v. Apfel, 

 (D.C. Cir. 1998) ("Justice Kennedy’s concurrence
in the judgment is of no help in appellant’s efforts to cobble
together a due process holding from Eastern Enterprises’
fragmented parts."). Justice O’Connor—writing for a plurality
of four—resolved the case under the Takings Clause and
explicitly declined to address the due process claim, 

, and the four dissenting Justices concluded that neither
the Takings Clause nor the Due Process Clause had been vio-
lated, 

.

   Second, both Justice O’Connor’s plurality opinion and Jus-
tice Kennedy’s concurrence in the judgment emphasized that
Eastern’s liabilities under the Coal Act—in addition to being
extremely retroactive and expensive—were imposed to rectify
a problem that Eastern had no part in creating. 

 (plu-
rality opinion) (noting that Eastern’s burden was "unrelated to
any commitment that [Eastern] made or to any injury [it]
caused"); 

 (Kennedy, J., concurring in the judgment
and dissenting in part) ("Eastern . . . was not responsible for
[retired miners’] expectation of lifetime health benefits . . .
created by promises and agreements made long after Eastern
left the coal business."). In contrast, amended § 932(l)
imposes liability proportional to the incidence of totally dis-
abling pneumoconiosis among former Olga Coal Company
employees, and thus "spread[s] the costs of the employees’
disabilities to those who have profited from the fruits of their
labor." Id. at 536 (plurality opinion).

   Petitioner asserts that "[a]t minimum, Eastern stands for the
proposition that retroactive legislation can fail to meet the
requisite constitutional standards and may be struck down as
invalid." Petitioner’s Reply Br. at 18. However, petitioner
offers no criteria or limiting principle; it simply argues that
Congress can go too far. In the absence of some workable and
principled line—and in light of the substantial differences
between the liability imposed on petitioner and that imposed
12             WEST VIRGINIA CWP FUND v. STACY
in Eastern—we cannot conclude that retroactive application
of § 932(l) violates substantive due process without inviting
invalidation of all retroactive acts "adjusting the burdens and
benefits of economic life." Usery, 

. Accord-
ingly, we reject the claim that petitioner was deprived of its
substantive due process rights.

                               III.

   Petitioner also argues that retroactive application of
amended § 932(l) constitutes an unlawful taking of its prop-
erty under the Fifth Amendment. We disagree. Because
amended § 932(l) merely requires petitioner to pay money—
and thus does not infringe a specific, identifiable property
interest—the Takings Clause does not apply here.

   In Eastern, five Justices rejected the theory that an obliga-
tion to pay undifferentiated, fungible money constitutes a tak-
ing. Justice Kennedy, in his opinion concurring in the
judgment, disagreed with the plurality’s conclusion that the
Coal Act imposed an unconstitutional taking of property:

     Our cases do not support the plurality’s conclusion
     that the Coal Act takes property. The Coal Act
     imposes a staggering financial burden on the peti-
     tioner, Eastern Enterprises, but it regulates the for-
     mer mine owner without regard to property. It does
     not operate upon or alter an identified property inter-
     est, and it is not applicable to or measured by a prop-
     erty interest. The Coal Act does not appropriate,
     transfer, or encumber an estate in land (e.g., a lien on
     a particular piece of property), a valuable interest in
     an intangible (e.g., intellectual property), or even a
     bank account or accrued interest. The law simply
     imposes an obligation to perform an act, the payment
     of benefits.

 (Kennedy, J., concurring in the judgment and
dissenting in part). Likewise, the four dissenters concluded
               WEST VIRGINIA CWP FUND v. STACY                  13
that the Takings Clause was not implicated because "[t]he
‘private property’ upon which the Clause traditionally has
focused is a specific interest in physical or intellectual prop-
erty," and the case at hand involved "not an interest in physi-
cal or intellectual property, but an ordinary liability to pay
money . . . ." 

 (Breyer, J., dissenting) (citations omit-
ted).

   In applying this splintered decision to takings challenges,
this court has indicated that the conclusion reached by the
majority of the Justices in Eastern—that an obligation to pay
money cannot constitute a taking—is more authoritative than
the plurality’s conclusion. As we explained in Holland v. Big
River Minerals Corp., 

 (4th Cir. 1999), "to
the extent Eastern Enterprises worked any change with
respect to takings jurisprudence," it is that liabilities like that
imposed by the Coal Act "must be considered as a question
of substantive due process rather than as a takings question
because no identifiable property interest was infringed by the
legislation."

   Other circuits are in accord, and some have held that they
are bound by the five Justices’ conclusion that a monetary
obligation does not implicate the Takings Clause. See, e.g.,
Swisher Int’l, Inc. v. Schafer, 

 (11th Cir.
2008) ("[T]akings analysis is not [appropriate] for the consti-
tutional evaluation of an obligation imposed by Congress
merely to pay money."); Commonwealth Edison Co. v. United
States, 

 (Fed. Cir. 2001) (en banc) ("Thus
five justices . . . in Eastern Enterprises agreed that regulatory
actions requiring the payment of money are not takings. We
agree with the prevailing view that we are obligated to follow
the views of that majority."); Unity Real Estate Co. v. Hud-
son, 

 (3d Cir. 1999) ("[W]e are bound to
follow the five-four vote against the takings claim in East-
ern."); Parella v. Ret. Bd. of the R.I. Employees’ Ret. Sys.,

 (1st Cir. 1999) (upholding a statute against
a Takings Clause challenge because "a majority of justices
14             WEST VIRGINIA CWP FUND v. STACY
found that the Takings Clause did not apply under the facts
of Eastern Enterprises, because they concluded that a Takings
Clause issue can arise only after a plaintiff’s property right
has been independently established.").

   Thus, in light of Eastern, we hold that the mere imposition
of an obligation to pay money does not give rise to a claim
under the Takings Clause. If the Takings Clause applied to
obligations of this sort, then it would seemingly apply to taxes
and to "all statutes and rules that ‘routinely creat[e] burdens
for some that directly benefit others[.]’" 

(Breyer, J., dissenting) (citation omitted). Given the views of
a majority of Justices in Eastern, we decline to go down that
road. Because amended § 932(l) only requires petitioner to
pay money, it does not burden an identifiable property inter-
est. Accordingly, petitioner’s claim under the Takings Clause
must fail.

   Moreover, if we are somehow mistaken and Justice
O’Connor’s plurality opinion reflected the holding of Eastern,
we would be compelled to reject petitioner’s takings claim.
The Eastern plurality explicitly limited its conclusion to "the
specific circumstances of [that] case," id. at 537, and those
circumstances are simply not present here. In determining that
the Coal Act’s application to Eastern effected an unconstitu-
tional taking, the plurality emphasized that the Act "impli-
cates fundamental principles of fairness underlying the
Takings Clause" because it "singles out [Eastern] to bear a
burden . . . unrelated to any commitment that [it] made or to
any injury [it] caused . . . ." Id. Here, in contrast, the liability
imposed by amended § 932(l) is proportional to the occur-
rence of totally disabling pneumoconiosis among former Olga
Coal Company miners. Consequently, amended § 932(l) does
not implicate the fundamental principles of fairness on which
the Eastern plurality based its conclusion. Thus, even under
the plurality’s analysis, petitioner’s takings claim falls short.

   In the course of its takings argument, petitioner complains
that it "could not have foreseen reinstatement of [the auto-
              WEST VIRGINIA CWP FUND v. STACY                15
matic survivorship provision] through an amendment hidden
within the universal healthcare bill." Petitioner’s Reply Br. at
21. This argument misfires on two grounds. First, given that
the black lung benefits scheme has been amended frequently
over the years, and that legislation to reinstate automatic sur-
vivors’ benefits has been introduced repeatedly, see Petition-
er’s Br. at 20, petitioner had ample notice of its potential
liability for automatic survivors’ benefits. As the Supreme
Court has repeated, "‘Those who do business in the regulated
field cannot object if the legislative scheme is buttressed by
subsequent amendments to achieve the legislative end.’" Con-
nolly v. Pension Benefit Guar. Corp., 

(1986) (quoting FHA v. The Darlington, Inc., 

(1958)).

   Second, and more fundamentally, petitioner’s argument
that the BLBA amendments only passed due to their "inclu-
sion . . . in approximately 2,700 pages of healthcare legisla-
tion," Petitioner’s Reply Br. at 27-28, threatens the separation
of powers by inviting courts to scrutinize the process by
which a coordinate branch of government goes about its busi-
ness. Likewise, it invites every loser in a legislative fight to
contest not only the constitutionality of Congress’s final prod-
uct, but the way that Congress went about enacting it. Such
a plunge into the depths of Capitol Hill should be undertaken
—if at all—only in the most extraordinary of circumstances,
circumstances that are plainly not presented here. In sum, the
difficulties with petitioner’s view are evident and legion.

                              IV.

   We next consider petitioner’s assertion that the PPACA’s
reinstatement of automatic survivors’ benefits does not apply
to Mrs. Stacy’s claim because the operative filing date for
determining eligibility is the date the miner’s claim was filed
—not the date the survivor’s claim was filed. This court exer-
cises de novo review over questions of law, including statu-
tory interpretation. See Westmoreland Coal Co. v. Cox, 602
16            WEST VIRGINIA CWP FUND v. STACY
F.3d 276, 282 (4th Cir. 2010). The Director, as the adminis-
trator of the BLBA, is entitled to deference in his reasonable
interpretation of the Act’s ambiguous provisions. See Betty B.
Coal Co. v. Dir., OWCP, 

, 498 (4th Cir. 1999).
When—as here—the Director’s position is being advanced
via litigation, it is "‘entitled to respect’ . . . but only to the
extent that [it has] the ‘power to persuade[.]’" Christensen v.
Harris County, 

 (2000) (quoting Skidmore
v. Swift & Co., 

 (1944)).

   Our analysis begins with the text of PPACA Section 1556,
which contains three subsections. Section 1556(a) restores the
15-year presumption, which had been eliminated by the 1981
amendments. See 

(c)(4). Section 1556(b) rein-
states automatic survivors’ benefits by removing the limiting
language from 

(l), which now provides that
"[i]n no case shall the eligible survivors of a miner who was
determined to be eligible to receive benefits under this sub-
chapter 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." 

(l). Finally, Section 1556(c)
provides the effective date for both Sections 1556(a) and
1556(b), limiting their applicability to "claims filed . . . after
January 1, 2005, that are pending on or after the date of enact-
ment of this Act." 

, 

,
260 (2010).

   Construing these provisions, the Director concluded that
the plain language of Section 1556(c) mandates its application
to all claims filed after January 1, 2005 that are pending on
or after March 23, 2010. Petitioner disagrees, arguing that
because amended § 932(l) specifically provides that a survi-
vor is not required to file a claim for derivative benefits, it
would contravene the plain language of the statute to deter-
mine the applicability of this provision based on the date a
survivor’s claim was filed.

   We find the Director’s interpretation persuasive, as the def-
inition of "claim" is not qualified by Section 1556(c). Instead,
              WEST VIRGINIA CWP FUND v. STACY                17
the plain language of that section requires that amended
§ 932(l) apply to all claims filed after January 1, 2005, that
are pending on or after March 23, 2010. Because Congress
used the term "claims" without any qualifying language, and
because both miners and their survivors may file claims under
the BLBA, see, e.g., 

(a); 

(a), the plain language supports the Director’s posi-
tion that amended § 932(l) applies to survivors’ claims that
comply with Section 1556(c)’s effective date requirements.

   Although amended § 932(l) states that a survivor is not
required to file a new claim for benefits, the conclusion peti-
tioner draws from this language—that the operative date for
determining eligibility cannot be the date the survivor’s claim
was filed—simply does not follow. Amended § 932(l)
relieves eligible survivors of the obligation of proving that a
miner died from pneumoconiosis; it does not prohibit survi-
vors from filing a claim. Indeed, survivors will need to file
some sort of "claim" in order to notify the Office of Workers’
Compensation Programs of the miner’s death and the survi-
vor’s current status. See B&G Constr. Co. v. Dir., OWCP, ___
F.3d ___, 

, at *7 n.12 (3d Cir. 2011)
("[S]urely a widow seeking benefits [under amended § 932(l)]
must file something in order to receive them. . . . But what a
widow does not have to do is establish that the miner died
from pneumoconiosis."); Pothering v. Parkson Coal Co., 

, 1328 n.13 (3d Cir. 1988) ("We do not read
[§ 932(l)] as prohibiting filings for which there is an adminis-
trative need—such as providing the OWCP with notice of the
miner’s death or information regarding the survivor’s rela-
tionship."). Thus, it does not contravene the plain language of
amended § 932(l) to determine the applicability of Section
1556(c) based on the date of a survivor’s claim.

  Finally, the Director’s interpretation, unlike petitioner’s
proposed reading, maintains consistency within Section 1556.
The 15-year presumption, as reinstated by Section 1556(a),
explicitly applies to both miners’ and survivors’ claims. See
18            WEST VIRGINIA CWP FUND v. STACY

(c)(4) (stating that the provision applies to a
"miner’s, his widow’s, his child’s, his parent’s, his brother’s,
his sister’s, or his dependent’s claim[.]"). In the context of
Section 1556(a), petitioner concedes, the word "claims" in
Section 1556(c) refers to all kinds of claims. See Petitioner’s
Br. at 37-38. However, in the context of Section 1556(b), peti-
tioner argues that the very same word only refers to miners’
claims. See 

. In contrast to petitioner’s tortured read-
ing, the Director’s interpretation allows the word "claims" to
mean the same thing—all claims—throughout Section 1556.

  Because it is supported by the plain language of Section
1556(c), which does not qualify the definition of "claim," and
because it maintains consistency within Section 1556, the
Director’s position—that amended § 932(l) applies to survi-
vors’ claims that comply with Section 1556(c)’s effective date
requirements —is persuasive. Accordingly, Mrs. Stacy is
derivatively entitled to survivors’ benefits pursuant to § 932(l)
because she filed her claim after January 1, 2005, the claim
was pending on March 23, 2010, and her husband was receiv-
ing benefits under a final award at the time of his death.

                               V.

   Finally, we consider petitioner’s argument that 

, 921(a), and 922(a)(2)—which it claims conflict with
§ 932(l)—prevent Mrs. Stacy from receiving automatic survi-
vors’ benefits. Because petitioner made this contention for the
first time at oral argument, we hold that it was waived. See
United States v. Bowles, 

, 583 n.1 (4th Cir. 2010)
(noting that arguments not raised in the opening brief are
waived). Even if we were to entertain this argument, however,
we would have to reject it because amended § 932(l), as the
most recent amendment to the BLBA, overrides any conflict-
ing language in §§ 901, 921(a), and 922(a)(2).

  Following the 1981 BLBA amendments, the automatic sur-
vivorship provision was no longer in effect, and survivors
              WEST VIRGINIA CWP FUND v. STACY                  19
could generally only obtain benefits by proving that pneumo-
coniosis caused a miner’s death. Congress accomplished this
result by amending various provisions of the BLBA—
including §§ 901, 921(a), 922(a)(2), and 932(l). In 2010, Con-
gress reinstated automatic survivors’ benefits by enacting the
PPACA, which removed from § 932(l) the limiting language
that had been added by the 1981 amendments. The PPACA
did not, however, revise the other provisions that had been
similarly amended in 1981. Consequently, as described
below, these provisions might be read to conflict with
§ 932(l).

   Section 932(c)—a neighboring provision to § 932(l)—is
designated "[p]ersons entitled to benefits," and it states that
"[b]enefits shall be paid during such period by each such
operator under this section to the categories of persons enti-
tled to benefits under section 922(a) of this title . . . ." 

(c). Section 922(a)(2), in turn, still contains the
limiting language that the PPACA removed from § 932(l):

    (a)    Schedules

    Subject to the provisions of subsection (b) of this
    section, benefit payments shall be made by the Sec-
    retary under this part as follows:

    ....

    (2) In the case of death of a miner due to pneumo-
    coniosis or, except with respect to a claim filed
    under part C of this subchapter on or after the effec-
    tive 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.

(a)(2) (emphasis added). Section 922(a)(2)
provides that a widow shall receive benefits "[i]n the case of
20            WEST VIRGINIA CWP FUND v. STACY
death of a miner due to pneumoconiosis . . . ." However, "[i]n
the case of death . . . of a miner receiving benefits,"
§ 922(a)(2) restricts widows’ benefits to claims filed before
the effective date of the BLBA amendments of 1981. Thus, in
contrast to amended § 932(l)—which provides that eligible
survivors are not required to file a new claim for benefits if
the miner was receiving benefits at the time of his death—
§ 922(a)(2) seems to indicate that widows must prove that
pneumoconiosis caused the miner’s death.

  Like § 922(a)(2), § 921(a) still contains the limiting lan-
guage that was added in 1981:

     The Secretary shall, in accordance with the provi-
     sions 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 pneu-
     moconiosis, 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 sub-
     chapter on or after the effective date of the Black
     Lung Benefits Amendments of 1981, who at the time
     of his death was totally disabled by pneumoconiosis.

(a) (emphasis added). Thus, § 921(a)—unlike
§ 932(l)—appears to force survivors to prove that the miner’s
"death was due to pneumoconiosis," because it limits benefits
in respect to the death of any miner "totally disabled by pneu-
moconiosis" to claims filed before the effective date of the
1981 amendments.

   Finally, § 901 still indicates that the purpose of the BLBA
is "to provide benefits . . . to coal miners who are totally dis-
abled due to pneumoconiosis and to the surviving dependents
of miners whose death was due to such disease . . . ." 

(a) (emphasis added). Notably, the PPACA did
not reinstate the language—removed in 1981—stating that
another purpose of the Act was to provide benefits to survi-
              WEST VIRGINIA CWP FUND v. STACY                 21
vors of miners "who were totally disabled by [the] disease at
the time of their deaths . . . ." 

 (1976).

   Our analysis of the apparent conflict between § 932(l) and
§§ 901, 921(a), and 922(a)(2) is aided by B&G Construction
Co. v. Director, OWCP, ___ F.3d ___, 

 (3d
Cir. 2011), which addressed this very issue. In B&G Con-
struction, the Third Circuit first noted that "[t]he only reason-
able 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 benefits, or to revalidate the
claim of the deceased miners." Id. at *11. Given this interpre-
tation, the court concluded that §§ 901, 921(a), and 922(a)(2)
"are inconsistent with the language of section 932(l)" and that
there is "no way to reconcile" the conflicting provisions of the
BLBA. Id. at *13-14. Accordingly, the Third Circuit held that
"amended section 932(l), being the last amendment of the Act
and thus the latest legislation governing survivors’ benefits,
overrides the conflicting language . . . 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." Id. at *1; see id. at *14.

   We find the Third Circuit’s reasoning persuasive. Here,
there is no dispute over the meaning of amended § 932(l); as
petitioner concedes, it "provides that a survivor of a miner
who was receiving federal black lung benefits at the time of
his death[ ] is automatically entitled to survivor’s benefits."
Petitioner’s Br. at 34. To the extent that §§ 901, 921(a), and
922(a)(2) require such a survivor to prove that pneumoconio-
sis caused the miner’s death in order to receive benefits,
§ 932(l)—as the most recent amendment to the BLBA—
"overrides the conflicting language[.]" B&G Constr., 

; see Posadas v. Nat’l City Bank, 

 (1936) (Although "repeals by implication are not
favored[,] . . . [w]here provisions in the two acts are in irrec-
oncilable conflict, the later act to the extent of the conflict
22            WEST VIRGINIA CWP FUND v. STACY
constitutes an implied repeal of the earlier one[.]"). Accord-
ingly, even if petitioner had not waived this argument, §§ 901,
921(a), and 922(a)(2) would not prevent Mrs. Stacy from
receiving automatic survivors’ benefits under amended
§ 932(l).

                             VI.

  For the foregoing reasons, the judgment of the Benefits
Review Board is

                                                 AFFIRMED.