                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                  File Name: 13a0125p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                X
                                                 -
 MCCOY ELKHORN COAL CORPORATION;

                                  Petitioners, --
 JAMES RIVER COAL COMPANY,

                                                 -
                                                    No. 12-3037

                                                 ,
                                                  >
                                                 -
          v.

                                                 -
                                                 -
 VERNIE DOTSON; DIRECTOR, OFFICE OF
                                                 -
 WORKERS’ COMPENSATION PROGRAMS,
                                                 -
                                Respondents. N
 UNITED STATES,

        On Petition for Review of an Order of the Benefits Review Board,
                        United States Department of Labor.
                                No. BRB 10-0706.
                           Decided and Filed: May 3, 2013
            Before: SILER, SUTTON, and McKEAGUE, Circuit Judges.

                                  _________________

                                        ORDER
                                  _________________



       On February 1, 2013, this court issued an order denying McCoy Elkhorn Coal
Corporation’s petition for review of a decision of the Benefits Review Board based on
Vision Processing, LLC v. Groves, 705 F.3d 551 (6th Cir. 2013). McCoy Elkhorn filed
a petition for rehearing, arguing that its case involved additional issues not addressed in
Vision Processing, namely whether an award of benefits under the 2010 Black Lung
Amendments, Pub. L. No. 111-148, § 1556(a)–(c), should commence the month the
miner died. For the reasons that follow, we deny the petition for rehearing.

       The relevant regulation says: “Benefits are payable to a survivor who is entitled
beginning with the month of the miner’s death, or January 1, 1974, whichever is later.”
20 C.F.R. § 725.503(c). This language was clear before Congress enacted the Black


                                            1
No. 12-3037      McCoy Elkhorn Coal Corp., et al. v. Dotson, et al.                     Page 2


Lung Amendments, and it remains so today. Willie Dotson died in August 1998. An
administrative law judge determined that his wife, Vernie, was entitled to survivor’s
benefits. By the terms of § 725.503(c), Vernie is “entitled [to benefits] beginning with
the month of the miner’s death”: August 1998.

        Invoking the constitutional-avoidance canon, Elkhorn argues that this reading of
the regulation would impose retroactive liability on the company in violation of due
process, and as a result it urges us to read the regulation differently to avoid this pitfall.
There is no pitfall. We addressed, and rejected, a similar argument in Vision Processing:

        Vision Processing adds that allowing the 2010 amendments to operate
        retroactively would violate substantive due process. The Supreme Court
        has rejected a similar argument before—in the context of the Black Lung
        Benefits Act no less. Usery considered whether the Act, as originally
        enacted, violated due process because it imposed retroactive liability on
        coal mine operators. In upholding the statute, the Court explained that
        “the imposition of liability for the effects of disabilities bred in the past
        is justified as a rational measure to spread the costs of the employees’
        disabilities to those who have profited from the fruits of their labor—the
        operators and the coal consumers.”

705 F.3d at 558 (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 18 (1976))
(citation omitted).

        Mining a similar vein, Elkhorn contends that January 1, 2005, the date mentioned
in § 1556(c) of the Black Lung Amendments, would be a more rational commencement
date, given that Congress already highlighted that date as a dividing line for employer
liability. Perhaps as a matter of policy January 1 would have made sense as a start date;
perhaps not. What matters is that this is not the date Congress selected. Congress made
no mention of when an award of survivor benefits should commence when it enacted the
Black Lung Amendments. That leaves us with the preexisting regulation, which is still
in place and which still governs survivor-benefits applications like this one.

        Elkhorn proposes one other commencement date: January 2006, the month
Vernie Dotson filed her survivor claim. It is true that living-miner benefits become
payable the month the miner files the claim. As 20 C.F.R. § 725.503(b) explains,
No. 12-3037     McCoy Elkhorn Coal Corp., et al. v. Dotson, et al.              Page 3


“benefits shall be payable to [a] miner beginning with the month during which the claim
was filed” “[w]here the evidence does not establish the month of onset.” The problem
is, Vernie Dotson is seeking survivor benefits, and as just shown they have a different
trigger date under 20 C.F.R. § 725.503(c).

       For these reasons, the petition for rehearing is denied.

                                      ENTERED BY ORDER OF THE COURT



                                            /s/ Deborah S. Hunt
                                      ___________________________________
                                                     Clerk
