                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 11-2363
                                    ___________

                 AL HAMILTON CONTRACTING COMPANY;
               ROCKWOOD CASUALTY INSURANCE COMPANY,
                                               Petitioners

                                          v.

               NANCY C. SMEAL (Widow of Leroy C. Smeal);
       DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
               UNITED STATES DEPARTMENT OF LABOR,
                                                    Respondents
                        _______________________

                    On Petition for Review of a Final Order of the
              Benefits Review Board, United States Department of Labor
                              (BRB No. 10-0560 BLA)
                                  ______________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                November 16, 2012

              Before: SCIRICA, FISHER and JORDAN, Circuit Judges.

                             (Filed: November 19, 2012)
                                 _________________

                             OPINION OF THE COURT
                                _________________

SCIRICA, Circuit Judge.

      Al Hamilton Contracting Company petitions for review of a decision and order of

the Benefits Review Board of the United States Department of Labor awarding survivor’s
benefits to Nancy C. Smeal under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq.

Because Hamilton Contracting raises issues we resolved in B & G Construction Co., Inc.

v. Dir., Office of Workers’ Comp. Programs, 662 F.3d 233 (3d Cir. 2011), we will deny

the petition for review.

                                              I.

       Leroy C. Smeal worked as a coal miner for approximately forty-two years. On

July 15, 2005, the Department of Labor found Leroy Smeal suffered from totally

disabling pneumoconiosis since June 1, 2002, and awarded him lifetime black lung

benefits from that date. Leroy Smeal continued receiving those benefits until his death on

April 15, 2009.

       Nancy Smeal filed a claim for survivor’s black lung benefits on May 19, 2009.

While Nancy Smeal’s claim was pending before the Administrative Law Judge, Congress

passed the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1556, 124

Stat. 119 (2010), which amended § 422(l) of the Black Lung Benefits Act (30 U.S.C. §

932(l)) to restore the provision to its wording from 1977 to 1981. 1 The amended

provision provides an automatic entitlement to benefits for survivors of a miner who was

eligible to receive black lung benefits at the time of his or her death. On the basis of that

amendment, the ALJ awarded survivor’s benefits to Nancy Smeal. On April 29, 2011, on

the same basis, the Board affirmed the ALJ’s decision and order.




1
 Congress’s 1981 amendment to § 932(l) “eliminated survivors’ automatic entitlement to
benefits for claims filed on or after January 1, 1982.” B & G Constr., 662 F.3d at 242.
                                              2
       Hamilton Contracting petitions us for review of the Board’s decision, contending

the amended 30 U.S.C. § 932(l) does not create an automatic entitlement to survivor’s

benefits absent implementing regulations and, if the provision does create such an

entitlement, it violates the Due Process Clause and arguably the Takings Clause of the

Fifth Amendment. 2

                                             II.

       The Board had jurisdiction to review the ALJ’s decision under 33 U.S.C. §

921(b)(3). We have jurisdiction under 33 U.S.C. § 921(c), as Leroy’s injury occurred in

Pennsylvania. “We review the decisions of the Board for errors of law and to assure that

it has adhered to its own standard of review. We exercise plenary review over all

questions of law.” B & G Constr., 662 F.3d at 247 (citations and quotation marks

omitted).

       Section 932(l) provides:

       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.

30 U.S.C. § 932(l). Hamilton Contracting contends this provision merely provides that

survivors are not required to file new claims for benefits, not that they are automatically

entitled to benefits, even if the decedent had already been awarded benefits. It contends

implementing regulations would be necessary to create such an automatic entitlement,

2
 Hamilton Contracting does not explicitly mention the Takings Clause, but states “there
was no insurance coverage contemplated for the employer in this case.” Nonetheless,
Respondent Department of Labor addresses the Takings Clause issue. Assuming it was
properly raised, we decided this issue in B & G Constr., 662 F.3d at 263.
                                             3
and Smeal’s claim should be held in abeyance until the Department of Labor issues such

regulations. Hamilton Contracting also challenges the amendment’s constitutionality for

unexpectedly taking compensation without providing for individual hearings.

       At the time Hamilton Contracting filed its petition, B & G Construction was

pending before our court. In B & G Construction, we considered and resolved the issues

Hamilton Contracting raises. We found § 932(l) creates an automatic entitlement to

benefits for survivors of miners who had been awarded benefits:

       The only reasonable interpretation of section 932(l), standing alone, is that
       survivors of miners who had been determined to be eligible for black lung
       benefits at the time of their deaths are not required to file new claims for
       benefits, or to revalidate the claim of the deceased miners. Thus, a survivor
       to be entitled to benefits need not establish that pneumoconiosis contributed
       to a miner’s death.

662 F.3d at 249 (emphasis added). Accordingly, implementing regulations are not

necessary to give this provision effect.

       In B & G Construction, we also resolved the constitutional issues Hamilton

Contracting raises. We held § 932(l) complies with procedural due process because it

does not create an irrebuttable presumption of entitlement to benefits, but instead changes

the substantive law to provide survivor’s benefits if the miner had been eligible for black

lung benefits, even if pneumoconiosis did not cause the miner’s death. Id. at 254-55 (also

explaining the provision would be constitutional even if it created an irrebuttable

presumption).

       In addition, we held the provision complies with the Takings Clause. Id. at 263.

Hamilton Contracting appears to contend the amendment to § 932(l) interferes with its


                                             4
investment backed expectations: “there was no insurance coverage contemplated for the

employer in this case.” In B & G Construction, we stated “‘[t]hose who do business in the

regulated field cannot object if the legislative scheme is buttressed by subsequent

amendments,’” id. at 262 (quoting Connolly v. Pension Benefit Guar. Corp., 475 U.S.

211, 227 (1986)), and such an objection here is “particularly meritless” because the

amendment merely restores the provision to its wording from 1977 to 1981. Id.

                                            III.

       Hamilton Contracting does not contend we should distinguish B & G

Construction. On the basis of our well-explained precedent, we will deny the petition for

review.




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