                               PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                              No. 12-1294


UNION CARBIDE CORPORATION,

               Petitioner,

          v.

VIRGINIA RICHARDS, widow of Arlie Richards; DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,

               Respondents.

−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−

BLACK LUNG LEGAL CLINIC,

               Amicus Supporting Respondent.


                              No. 12-1978


PEABODY COAL COMPANY,

               Petitioner,

          v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; MARY ELLEN MORGAN, Widow of Don
Morgan,

               Respondents.

−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−

BLACK LUNG LEGAL CLINIC,
                Amicus Supporting Respondent.


On Petitions for Review of an Order of the Benefits Review
Board. (11-0414-BLA, 11-0414-BLA-A, 10-5248-BLA, 11−0634-BLA)


Argued:   March 21, 2013                    Decided:   July 5, 2013


Before NIEMEYER, DAVIS, and DIAZ, Circuit Judges.


Petitions for review denied by published opinion.       Judge Diaz
wrote   the   opinion, in  which  Judge  Niemeyer       and  Judge
Davis joined.


ARGUED: Kathy Lynn Snyder, JACKSON KELLY, PLLC, Morgantown, West
Virginia;   Mark   Elliott  Solomons,  GREENBERG   TRAURIG,   LLP,
Washington, D.C., for Petitioners.    Ryan Christopher Gilligan,
WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton, Virginia; Barry
H. Joyner, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondents. ON BRIEF: Amy Jo Holley, JACKSON KELLY, PLLC,
Morgantown,   West   Virginia,   for  Petitioner  Union    Carbide
Corporation.     Laura Metcoff Klaus, GREENBERG TRAURIG, LLP,
Washington, D.C., for Petitioner Peabody Coal Company.          M.
Patricia Smith, Solicitor of Labor, Rae Ellen James, Associate
Solicitor, Gary K. Stearman, Counsel for Appellate Litigation,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal
Respondent.    Joseph E. Wolfe, WOLFE, WILLIAMS, RUTHERFORD &
REYNOLDS, Norton, Virginia, for Respondents Virginia Richards
and Mary Ellen Morgan.        Timothy C. MacDonnell, Carney N.
Simpson, Student Caseworker, Gordon Jenkins, Student Caseworker,
Black Lung Legal Clinic, WASHINGTON AND LEE UNIVERSITY SCHOOL OF
LAW, Lexington, Virginia, for Amicus Supporting Respondents.




                                 2
DIAZ, Circuit Judge:

       These       consolidated      cases       involve       claims   for      survivors’

benefits under the Black Lung Benefits Act (“BLBA”), 30 U.S.C.

§ 901 et seq., filed by Respondents Virginia E. Richards and

Mary Ellen Morgan.            In both cases, Department of Labor (“DOL”)

Administrative         Law       Judges     (“ALJs”)       awarded      the      survivors’

claims,       and    the     DOL     Benefits         Review    Board     (the     “Board”)

affirmed.       Union Carbide Corporation and Peabody Coal Company,

the coal mine operators responsible for payment of Respondents’

benefits,      petitioned          for    this       court’s    review.        Petitioners

submit that principles of res judicata foreclose Respondents--

each    of     whom        previously       and        unsuccessfully      sought      BLBA

survivors’ benefits--from relying on a recent amendment to the

BLBA to pursue benefits again through a so-called “subsequent

claim.”       We disagree.         Because the amendment created a new cause

of action that was unavailable to Respondents when they brought

their initial claims, res judicata does not bar their subsequent

claims.      Accordingly, we affirm the Board’s awards.



                                              I.

       In     addition      to     lifetime          disability   benefits       for   coal

miners,      the    BLBA    provides       survivors’       benefits      to   certain   of

their dependents.            The statute has been substantially amended

over    the    years.         Initially,         a     deceased    miner’s       qualifying

                                                 3
dependents could obtain survivors’ benefits either by showing

that the deceased miner’s death was caused by pneumoconiosis, 1 or

by showing that the miner was totally disabled by pneumoconiosis

at    the     time    of     his        death.        Survivors      who   proved     their

entitlement under the latter method were automatically entitled

to    benefits       even    if     pneumoconiosis          played    no   role     in    the

deceased      miners’       deaths.         See      30   U.S.C.   § 922(a)(2)      (1970).

This automatic “derivative benefits” scheme was reinforced in

the    1978    amendments          to    the     BLBA,     which   enacted    30    U.S.C.

§ 932(l), providing: “In 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.”                 Pub. L. No. 95-239, § 7(h), 92 Stat.

95, 100 (1978).

      In    1981,     Congress          scaled    back     benefits   under   the        BLBA,

eliminating Section 932(l)’s provision of automatic derivative

survivors’ benefits.              Consequently, a survivor filing a claim on

or after January 1, 1982, could establish entitlement only by

proving that the miner’s death was due at least in part to


      1
          The    BLBA’s    implementing    regulations    define
“pneumoconiosis” as “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(a).



                                                 4
pneumoconiosis.              See Shuff v. Cedar Coal Co., 967 F.2d 977, 979

(4th Cir. 1992).

       In 2010, the Patient Protection and Affordable Care Act

(“ACA”)             reinstated       Section       932(l)’s         automatic        survivors’

benefits            for   claims     filed   after       January     1,    2005,     that    were

pending on or after the ACA’s March 23, 2010, enactment date.

Pub.       L.   No.       111–148,    sec. 1556,         § 932     (“Section      1556”),     124

Stat. 119, 260 (2010); W. Va. CWP Fund v. Stacy, 671 F.3d 378,

381-82 (4th Cir. 2011).                      Accordingly, survivors whose claims

meet   those          temporal     thresholds          need   no    longer    show    that    the

miner’s death was caused by pneumoconiosis; the claimant need

only       show      that    the   miner     was       determined     to     be   eligible     to

receive BLBA benefits at the time of his death.                              Section 1556 is

silent as to whether survivors whose previous claims were denied

may now receive benefits by filing “subsequent” claims under

amended Section 932(l).

       DOL’s implementing regulations set forth the protocol for

treatment of these “subsequent” claims--defined as claims filed

“more than one year after the effective date of a final order

denying         a    claim   previously        filed     by   the    claimant      under     this

part.” 2        20 C.F.R. § 725.309(d).                The regulations provide:


       2
       These regulations, which became effective on January 19,
2001, implement the pre-ACA version of Section 932(l), and thus
still provide that survivors filing after 1981 may only recover
(Continued)
                                                   5
       A subsequent claim shall be processed and adjudicated
       in   accordance  with   the   provisions [that govern
       original claims], except that the claim shall be
       denied unless the claimant demonstrates that one of
       the applicable conditions of entitlement . . . has
       changed since the date upon which the order denying
       the prior claim became final.

       ***

       (3) If the applicable condition(s) of entitlement
       relate   to  the   miner’s  physical   condition,  the
       subsequent claim may be approved only if new evidence
       submitted in connection with the subsequent claim
       establishes at least one applicable condition of
       entitlement.  A subsequent claim filed by a surviving
       spouse, child, parent, brother, or sister shall be
       denied unless the applicable conditions of entitlement
       in such claim include at least one condition unrelated
       to the miner’s physical condition at the time of his
       death.

20 C.F.R. § 725.309(d).

       Addressing the effect of res judicata on BLBA claims, a

1997   DOL    comment   to   the    proposed   Section 725.309(d)   observed

that   “the    principles    of     claim   preclusion   are   applicable   to

claims under the Act.”             62 Fed. Reg. 3352 (proposed Jan. 22,

1997) (citing Pittston Coal Grp. v. Sebben, 488 U.S. 105, 122-23




upon showing that a miner’s death was due to pneumoconiosis. 20
C.F.R. § 725.212, 725.218, 725.222. DOL has issued a notice of
proposed rulemaking, in which it proposes to revise its
regulations to reflect the ACA amendments. 77 Fed. Reg. 19468,
19478 (proposed Mar. 30, 2012) (to be codified at 20 C.F.R. pts.
718, 725). Notably, and consistent with its litigation position
here, DOL proposes to revise Section 725.309(d) to provide for
automatic   entitlement   on    survivors’  subsequent   claims,
notwithstanding previous denials. Id. at 19468.



                                        6
(1988)).      In   the   context     of   subsequent        claims,      however,       DOL

clarified     that    “claim       preclusion      bars    only     an      attempt     to

relitigate a cause of action that was previously resolved; it

has no effect on the litigation of a cause of action which did

not exist at the time of the initial adjudication.”                         Id. (citing

Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 328 (1955)).



                                          II.

                                          A.

     Arlie C. Richards worked as a coal miner for over thirty

years and was awarded BLBA benefits in 1987.                     Union Carbide paid

his BLBA benefits until his death in January 1994.                              Virginia

Richards, Arlie’s widow, filed her first claim for survivors’

benefits in February 1994.            After protracted proceedings, an ALJ

ultimately denied her claim on May 6, 2006, because she failed

to   prove    that     her    husband’s         death     was    due     in    part      to

pneumoconiosis.        Mrs. Richards did not appeal that denial, but

filed a second, subsequent claim for survivors’ benefits in May

2009.   In October 2009, months before the ACA’s enactment, a DOL

district     director    denied      that       claim     because      it     failed    to

demonstrate    a     change   in    any   condition       of    entitlement,      as     is

required of subsequent claims under Section 725.309(d)(3).                             Mrs.

Richards requested a hearing before an ALJ.



                                           7
      While that request was pending, Congress enacted the ACA,

restoring automatic derivative survivors’ benefits under Section

932(l).          Upon    a    motion   from     the       Director    of    the    Office    of

Workers’         Compensation          Programs           (“Director,”       the      Federal

Respondent in these cases), the ALJ acknowledged the change in

law   and    issued      a    summary    decision          awarding    benefits      to    Mrs.

Richards, since her husband had been receiving benefits at the

time of his death.

      Union Carbide appealed to the Board, arguing--as it does in

its instant petition--that Mrs. Richards’s subsequent claim was

barred      by    20    C.F.R.     § 725.309(d)(3)            and     principles      of    res

judicata.         In January 2012, the Board issued a split en banc

decision affirming the ALJ’s award of benefits.                                   Richards v.

Union Carbide Corp., 25 Black Lung Rep. (Juris) 1-31 (Ben. Rev.

Bd.   2012)        (en        banc).       The       Board     made        four     principal

determinations.              First, it held that the plain text of Section

932(l), as amended by Section 1556, authorizes its application

to subsequent claims.              Second, it held that Mrs. Richards had

demonstrated a change in a condition of entitlement unrelated to

her       husband’s            physical         condition,            thus         satisfying

Section 725.309(d)(3).                 Third,       the    Board     concluded      that    res

judicata did not bar Mrs. Richards’s subsequent claim because a

determination           of    entitlement       under       Section     932(l)       did    not

require relitigation of the prior finding that Mr. Richards’s

                                                8
death    was   unrelated    to    pneumoconiosis.            Finally,     the    Board

modified the benefit accrual date, clarifying that benefits for

successful     subsequent        claims        are   payable      from    the    month

following the prior denial.             Union Carbide timely petitioned for

this court’s review.

                                          B.

      Don Morgan worked as a coal miner for nineteen years and

filed a claim for lifetime disability benefits in 1987.                         An ALJ

approved his claim in 1991, and after more than a decade of

proceedings, we affirmed Mr. Morgan’s award of benefits in June

2004.     Peabody Coal Co. v. Morgan, 98 F. App’x 966 (4th Cir.

2004).     Mr. Morgan died months before that decision, in January

2004.

      In May 2004, Mary Ellen Morgan, Don’s widow, filed a claim

for     survivors’   benefits.           The     district      director     initially

approved her claim, but an ALJ denied benefits after determining

that Mrs. Morgan had failed to prove that her husband’s death

was due to pneumoconiosis.           Mrs. Morgan appealed, but the Board

affirmed    the   denial    in    October       2008.      Mrs.    Morgan    took   no

further    action    on   her    2004     claim,     and   the    Board’s   decision

became final.

      After Congress amended the BLBA via ACA Section 1556, Mrs.

Morgan filed a second, subsequent claim.                   As he did in Richards,

the Director moved for a summary decision awarding benefits.

                                           9
Acknowledging the change in law, the ALJ granted the motion.

Peabody, Mr. Morgan’s former employer, appealed to the Board,

arguing that Mrs. Morgan’s subsequent claim was barred by 20

C.F.R. § 725.309(d) and principles of res judicata. 3

     The Board affirmed the award, relying on its decision in

Richards.    Morgan v. Peabody Coal Co., BRB No. 11-0634, 2012 WL

2860525 (Ben. Rev. Bd. June 15, 2012) (unpublished).                    Peabody

timely petitioned for this court’s review.



                                     III.

     The central issue before us is whether, in light of the ACA

amendments   to   Section   932(l)    of    the    BLBA,   a   final   decision

denying benefits on a prior claim bars a survivor from receiving

benefits through a subsequent claim.              We consider this question

of law de novo.    Stacy, 671 F.3d at 388.

                                      A.




     3
        Peabody also contended that Section 1556 created an
impermissible irrebuttable presumption that a miner’s death was
due to pneumoconiosis.    Peabody briefly raises this argument,
which the Board rejected, on appeal.    We too reject it because
the amendment does not raise the presumption Peabody alleges.
As the Third Circuit recently explained, a miner’s death is not
presumed to be due to pneumoconiosis under amended Section
932(l); indeed, the cause of the miner’s death is irrelevant in
the context of automatic survivors’ entitlements.      See B & G
Constr. Co. v. Dir., OWCP, 662 F.3d 233, 254 (3d Cir. 2011).



                                      10
     Petitioners argue that Mrs. Morgan and Mrs. Richards are

ineligible      for    automatic     derivative     survivors’       benefits       under

amended Section 932(l).             Because, unlike past amendments to the

BLBA, Section 1556 does not expressly authorize departure from

the traditional principles of res judicata, Petitioners believe

that Respondents’ previously denied claims should preclude them

from bringing subsequent claims under amended Section 932(l).

According      to    Petitioners,     Section    1556   did    not     create    a    new

cause    of    action,      but   rather   merely    created   a     new    theory     or

method by which survivors may demonstrate entitlement.                               This

change    in        law,    Petitioners     insist,     does     not       negate    the

preclusive      effect       of   Respondents’      previously     denied       claims,

particularly because the record evidence remains unchanged since

the denial of the Respondents’ initial claims.

     Relatedly,            Petitioners     say   that   the      Board      erred      in

determining that Respondents’ subsequent claims were not barred

by 20 C.F.R. § 725.309(d)(3), which requires that a subsequent

claim be denied unless the survivor can show a change in the

conditions of entitlement unrelated to the decedent’s physical

condition.

     Petitioners also contend that the Board’s decision in these

cases renders meaningless Congress’s requirement that the claims

be filed “after January 1, 2005” and pending on or after the

ACA’s March 23, 2010 enactment date.                  See Section 1556(c).            By

                                           11
allowing previously denied claimants to file subsequent claims

under    amended    Section       932(l),         Petitioners         say     the    Board    has

created an end-run around Section 1556(c)’s filing limitations,

which    Congress       imposed       to    mitigate          the    financial       burden    of

Section 1556 on coal mine operators.

        Defending   the       Board’s       holding,       Respondents         say    that     the

plain    language       of    Section        1556       and    amended      Section     932(l)

permits awards on survivors’ subsequent claims, since Section

1556     states,        without        qualification,               that      the    amendment

“appl[ies]       with        respect        to        claims filed”         within     Section

1556(c)’s time limitations.                   Fed. Resp’t’s Br. at 21 (quoting

Section       1556(c))       (emphasis           added        by    Federal        Respondent).

Respondents      rely    on     our    recent          decision      in    Stacy,     where     we

affirmed      the   applicability            of       amended       Section    932(l)     to    a

survivor’s original claim.                 671 F.3d at 388-89.              In holding that

amended Section 932(l) applies not only to miners’ claims but

also to those of survivors, we observed that “the plain language

of   that     section    requires          that   amended          § 932(l)    apply    to    all

claims [that satisfy Section 1556(c)’s time limitations].”                                    Id.

at     388.     Accordingly,          since       survivors         may     file     subsequent

“claims” under the BLBA, Respondents insist that their instant

claims are encompassed by Section 1556.

        Countering Petitioners’ res judicata arguments, Respondents

contend that Section 1556 did not merely change the process by

                                                 12
which    survivors     could    prove     their       entitlement,       but    instead

created a new, previously unavailable cause of action.                         Although

Respondents       acknowledge    that    they     presented       no     new   evidence

since the denial of their initial claims, they maintain that

their subsequent claims rely on facts different from the initial

claims,    thus    rendering    res     judicata       inappropriate.           To    wit,

whereas      Respondents’       initial        claims         turned     on     whether

pneumoconiosis caused the miners’ deaths, Respondents point out

that that fact is irrelevant to their subsequent claims under

amended Section 932(l), which concern only whether the miners

were eligible to receive benefits at the time of their deaths.

     Finally,      Respondents     argue       that    their     reading       does    not

defeat     the     burden-mitigating          time     limitations        in    Section

1556(c),     which    they     believe    are        still     effectuated      by    the

judicially       implied     requirement        that         claimants     take       some

affirmative action to initiate the administrative application of

Section 932(l) after January 1, 2005.                   Fed. Resp’t’s Br. at 24

(citing Stacy, 671 F.3d at 388-89).                    Thus, rather than being

required to pay all previously denied survivors’ claims where

the miner died while receiving benefits, coal operators must pay

only those where a surviving spouse has taken pains to submit a

subsequent claim.

                                         B.



                                         13
      Looking      first          to   the       text    of    Section      1556,    we     reject

Petitioners’ contention that the amendment does not apply to

survivors’ subsequent claims.                       As we explained in Stacy, “the

plain language of [Section 1556] requires that amended § 932(l)

apply     to    all     claims         [that       satisfy       Section      1556(c)’s        time

limitations].”              671 F.3d at 388.                  “Because Congress used the

term ‘claims’ without any qualifying language,” id., and because

survivors        whose        claims         were       previously         denied     may      file

subsequent “claims” under the BLBA, see 20 C.F.R. § 725.309(d),

the statutory text supports Respondents’ position that amended

Section 932(l) applies to all claims that comply with Section

1556(c)’s time limitations, including subsequent claims.

      Petitioners are correct that, in contrast to previous BLBA

amendments, Section 1556 does not explicitly indicate an intent

to override the res judicata effect of previously denied claims.

Compare Section 1556, with Pub. L. No. 95-239, § 11, 92 Stat.

95,   101      (Mar.    1,        1978)    (directing          the   Secretary       of   Health,

Education, and Welfare, upon a claimant’s request, to review and

apply amendments to previously denied claims), and Pub, L. No.

92-303,     § 6,       86    Stat.        150,    156    (May     19,      1972)    (same,     only

without the need for a claimant’s request).                                But application of

Section 1556 to subsequent claims does not require us to run

roughshod       over        res    judicata.            Rather,      res    judicata      is    not

implicated by Respondents’ subsequent claims since entitlement

                                                  14
under    Section    932(l),      as       revived   by   Section       1556,    does      not

require     relitigation      of   the      prior    findings        that   the     miners’

deaths were not due to pneumoconiosis.

       In   this      case,   Respondents           easily     satisfy         20    C.F.R.

§ 725.309(d)(3)’s        requirement          of    showing      a     change       in   the

conditions of entitlement unrelated to the decedent’s physical

condition.        By restoring the derivative entitlement provisions

of Section 932(l), Congress has effectively created a “change”

establishing a new condition of entitlement unrelated to whether

the miner died due to pneumoconiosis.

       And just as Congress created a new condition of entitlement

for    purposes    of   Section 725.309(d),           so   too   it     created      a    new

cause of action for purposes of res judicata.

       By “precluding parties from contesting matters that they

have had a full and fair opportunity to litigate,” the doctrine

of res judicata minimizes “the expense and vexation attending

multiple lawsuits, conserve[s] judicial resources, and foster[s]

reliance on judicial action by minimizing the possibility of

inconsistent decisions.”              Taylor v. Sturgell, 553 U.S. 880, 892

(2008) (internal quotations omitted).                      “However, res judicata

does not bar claims that did not exist at the time of the prior

litigation.”       Meekins v. United Transp. Union, 946 F.2d 1054,

1057    (4th   Cir.     1991).        A    party    invoking     res    judicata         must

establish three elements: (1) a previous final judgment on the

                                             15
merits, (2) an identity of the cause of action in both the

earlier and the later suit, and (3) an identity of parties or

their privies in the two suits.                  Id.

       Identity of the cause of action--the only prong presently

in     dispute--exists       if     two     claims     “arise    out       of     the   same

transaction         or   series    of     transactions     or   the        same    core   of

operative facts.”           Pueschel v. United States, 369 F.3d 345, 355

(4th       Cir.    2004).         While    typically      it    is     a    new     factual

development that gives rise to a fresh cause of action, see,

e.g., Lawlor, 349 U.S. at 328, changes in law can also have that

effect.       For instance, “on rare occasions, when a new statute

provides an independent basis for relief which did not exist at

the time of the prior action, a second action on the new statute

may be justified.” 4         18 James Wm. Moore et al., Moore’s Federal

Practice,         ¶ 131.22[3]     (3d     ed.    2013);   see   also       Clodfelter     v.

Republic of Sudan, No. 11-2118, 2013 WL 3069775, at *9 (4th Cir.

June 20, 2013); Maldonado v. U.S. Atty. Gen., 664 F.3d 1369,

1379 (11th Cir. 2011).

       Like Respondents, we recognize that the record evidence has

not changed since the denial of the original claims and that the


       4
       By contrast to a statutory change, a change in precedent
generally provides no relief from res judicata, since it merely
reflects an error in the prior decision.     See Federated Dep’t
Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981).



                                                16
only relevant change is one of law.                Nevertheless, we conclude

that the instant subsequent claims arise from operative facts

that     are    separate      and      distinct     from        those     underlying

Respondents’ initial claims, and therefore constitute new causes

of   action.        Whereas   Respondents’        initial       claims    turned     on

whether the deceased miners died due to pneumoconiosis, these

subsequent      claims      concern      only    whether        the     miners     were

determined to be eligible to receive black lung benefits at the

time of their deaths--an entirely unrelated factual issue.

       Meanwhile,     the     statutory       change      in     law     provides     a

previously     unavailable     basis      for    relief     that       justifies    the

instant claims, since res judicata does not bar claims that the

parties have not had a “full and fair opportunity to litigate.”

Sturgell, 553 U.S. at 892.            On this point, Petitioners cite the

Supreme    Court’s    decision      in   Sebben,    488        U.S.    105.      Sebben

involved the 1977 amendments to the BLBA, which imposed higher

evidentiary standards on miners attempting to receive benefits,

but which also required DOL to reopen and readjudicate certain

pending and denied claims using the previously applicable, less

restrictive standards.         488 U.S. at 110-11.              DOL reopened these

claims as required, but the claimants alleged that the agency

failed    to   readjudicate     them     under    the   previously        applicable,

more lenient standards, as mandated by the amendment.                     Id.



                                         17
     Two classes of claimants brought suit in Sebben: the first

had timely appealed the administrative denials of their reopened

claims, while the second had not appealed and were seeking to

reopen their finally determined claims for a third time.                          Id. at

112-13.     Thus, to succeed, the second class needed to establish

“not only a duty to apply less restrictive criteria than those

[applied    by      DOL],     but   also    a     duty     to     reopen    the    final

determinations.”         Id. at 122.            Ultimately, although the Court

agreed    that   DOL    had    improperly        applied    the    more    restrictive

standards during their initial readjudications, it held that res

judicata nevertheless barred the second class of claimants from

reopening their finally (though wrongly) determined claims.                            Id.

     Sebben does establish that res judicata can serve as a bar

to BLBA claims, but it is inapposite here, where Respondents

have not had any prior opportunity to litigate the cause of

action     giving      rise    to   their        subsequent       claims.         Unlike

Respondents, who bring their derivative entitlement claims for

the first time under amended Section 932(l), the second class of

Sebben claimants had already received (albeit under the wrong

evidentiary standard) the reopening and readjudication to which

they were entitled under the 1977 amendments.                      Thus, the Supreme

Court’s refusal to grant the Sebben claimants a third bite at

the apple merely reflects the well-settled principle that res

judicata    precludes       relitigation        of   a   final     judgment       on    the

                                           18
merits even if that judgment was wrong.                      See Moitie, 452 U.S. at

398.     And in contrast to Sebben, where relitigation would have

risked       upsetting     previously         adjudicated      claims    and     creating

inconsistent         judgments,     litigation        of    Respondents’       subsequent

claims       seeking     benefits   under      amended      Section     932(l)’s      newly

revived cause of action runs no such risk, since these claims

were never previously adjudicated.

                                              C.

       Petitioners        attempt       to    divine       congressional       intent    to

exclude subsequent claims from the amendment’s ambit by parsing

a single post-enactment statement of the late Senator Robert C.

Byrd, sponsor of Section 1556, who commented: “It is clear that

[Section      1556]      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.”                    156 Cong. Rec. S2083 (daily

ed.    March       25,   2010).     As       the    Supreme    Court     has    observed,

“[p]ost-enactment legislative history (a contradiction in terms)

is     not     a    legitimate      tool       of     statutory        interpretation.”

Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1081 (2011).                               In any

case,    although        Senator    Byrd’s         statement   may     imply    that    the

amendment excludes those widows who did file prior claims for

benefits, it does not explicitly state as much.                         Meanwhile, his

observation that the amendment applies to “all claims that will

                                              19
be filed henceforth” can be read to encompass subsequent claims,

and his description of the scope of the statute as “including”

certain types of claims connotes that his selected examples were

intended       to     be   illustrative         of     the    amendment’s      reach,       not

exhaustive.          In short, any inference drawn from Senator Byrd’s

ambiguous       post-enactment           statement      cannot     overcome      the    plain

text of the amendment, which indicates its application to “all

claims,” without qualification.

        Finally, we address the concern that allowing Respondents’

subsequent claims to proceed would remove the burden-mitigating

time    limitations        Congress       placed      in     Section    1556(c).       As    we

observed in rejecting a due process challenge to Section 1556 in

Stacy,        the     retroactive        time        limitations        in   Section     1556

represent       Congress’s         “measured         approach”     to     reinstating       the

automatic survivorship entitlements of Section 932(l).                              671 F.3d

at     384.          Recognizing      the       potential        financial     burden       the

amendment       might      place    on    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 [ACA] was enacted.

Consequently,          operators      must       only      pay    automatic     survivors’

benefits       for    claims   filed       in    or    after     2005.”       Id.   (quoting

Section 1556(c)) (citation omitted).



                                                20
       These        limitations         are    not       rendered       meaningless       by     our

holding          here,    since    claimants         seeking      automatic        entitlements

must       still     take    steps       to    assert          their     derivative      rights.

Claimants         whose     initial      claims         were    denied     before    the       ACA’s

January 2005 cutoff must affirmatively file a subsequent claim

with       the    agency;    meanwhile,            the    second       limitation--requiring

that the claims be pending on or after the ACA’s March 2010

enactment--prevents DOL from having to sua sponte reopen claims

filed after 2005 but denied before the amendment’s enactment.

       The        Director    attests         to    the    practical        effect       of    this

regime, noting that only approximately 130 of the 1,040 eligible

survivors have so far filed claims under the amended entitlement

provisions.          Fed. Resp’t’s Br. at 27 n.14.                       Thus, by requiring

that       DOL     award     the    automatic            entitlement        only    on        claims

(subsequent or otherwise) that have been filed since January 1,

2005,       and     are     pending      on     or       after     March     23,    2010,       the

limitations          continue      to    meaningfully            mitigate    the     coal      mine

operators’ financial burden. 5


       5
       As Respondents point out, the amendment’s financial burden
is further allayed by the Board’s determination that automatic
survivors’ benefits on a subsequent claim are payable only from
the month following the prior denial, rather than from the month
of the miner’s death.    This decision represents an attempt to
reconcile 20 C.F.R. § 725.503(c), which instructs that benefits
are payable to an entitled survivor “beginning with the month of
the miner’s death,” with 20 C.F.R. § 725.309(d)(5), which
clarifies that “[i]n any case in which a subsequent claim is
(Continued)
                                                   21
                                         IV.

        Under the plain language of Section 1556 and principles of

res   judicata,    Mrs.   Richards      and    Mrs.   Morgan   are    entitled    to

survivors’ benefits.        In compliance with Section 1556(c)’s time

limitations, Respondents filed their instant subsequent claims

after January 1, 2005, and their claims were pending on and

after    March    23,   2010.         Their    deceased   husbands        were   both

determined to be eligible to receive BLBA benefits at the time

of their deaths, and Petitioners do not deny that Mrs. Richards

and Mrs. Morgan meet the dependency and relationship criteria

for eligible survivors.          Meanwhile, res judicata does not bar

their claims, since Section 1556 created a new cause of action

not available to them at the time they brought their initial

claims.       Respondents       are     therefore     entitled       to   automatic

derivative benefits under 30 U.S.C. § 932(l), and we accordingly

deny Union Carbide’s and Peabody’s petitions for review.



                                                 PETITIONS FOR REVIEW DENIED.




awarded, no benefits may be paid for any period prior to the
date upon which the order denying the prior claim became final.”
Reading those provisions together, the Board reasonably chose an
accrual date that would provide successful subsequent claimants
with meaningful benefits yet which, at the same time, would
mitigate the burden to the operator and respect the validity of
the earlier denial.



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