                   RECOMMENDED FOR FULL-TEXT PUBLICATION
                       Pursuant to Sixth Circuit I.O.P. 32.1(b)
                              File Name: 14a0009p.06

             UNITED STATES COURT OF APPEALS
                          FOR THE SIXTH CIRCUIT
                            _________________


                                              X
                                               -
 CONSOLIDATION COAL COMPANY,
                                               -
                                  Petitioner,
                                               -
                                               -
                                                  No. 12-3653
          v.
                                               ,
                                                >
                                               -
                                               -
 LORENE MAYNES, widow of CLEVING G.
                                               -
 MAYNES; DIRECTOR, OFFICE OF WORKERS’
                                               -
 COMPENSATION PROGRAMS, U.S.
                                               -
                               Respondents. N
 DEPARTMENT OF LABOR,

               On Petition for Review of a Decision and Order
                        of the Benefits Review Board.
                              No. 11-0567 BLA.
                          Argued: November 22, 2013
                      Decided and Filed: January 9, 2014
        Before: DAUGHTERY, GIBBONS and DONALD, Circuit Judges.

                              _________________

                                  COUNSEL
ARGUED: Amy Jo Holley, JACKSON KELLY PLLC, Morgantown, West Virginia,
for Petitioner. John L. Grigsby, APPALACHIAN RESEARCH AND DEFENSE FUND
OF KENTUCKY, INC., Barbourville, Kentucky, for Respondent Maynes. Barry H.
Joyner, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal
Respondent. ON BRIEF: Amy Jo Holley, William S. Mattingly, Kathy L. Snyder,
JACKSON KELLY PLLC, Morgantown, West Virginia, for Petitioner. John L.
Grigsby, APPALACHIAN RESEARCH AND DEFENSE FUND OF KENTUCKY,
INC., Barbourville, Kentucky, for Respondent Maynes. Barry H. Joyner, Gary K.
Stearman, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for
Federal Respondent.




                                        1
No. 12-3653        Consolidation Coal Co. v. Maynes, et al.                        Page 2


                                 _________________

                                       OPINION
                                 _________________

       BERNICE BOUIE DONALD, Circuit Judge. Consolidation Coal Company
(“Petitioner”) appeals a decision of the U.S. Department of Labor (“DOL”) Benefits
Review Board (“the Board”), affirming Lorene Maynes’s (“Mrs. Maynes”) eligibility
for survivor’s benefits under the Black Lung Benefits Act (“BLBA”), 30 U.S.C. §§ 901-
944, as amended by the Patient Protection and Affordable Care Act (“the Affordable
Care Act” or “ACA”), Pub. L. No. 111-148, § 1556 (2010). For the reasons below, the
Petition is DENIED.

                                            I.

       The BLBA provides lifetime disability benefits to coal miners who develop
pneumoconiosis as a result of prolonged exposure to coal dust from working in coal
mines. 30 U.S.C. §§ 901-944 (2013). The statute also provides survivors’ benefits to the
dependents of coal miners who received benefits under the BLBA during their lifetime
upon the miner’s death. Id.

       Mrs. Maynes is the widow of Cleving Maynes (“Mr. Maynes”), a coal miner who
developed pneumoconiosis after working in Petitioner’s coal mine for 25 years. Her
husband filed a claim for black lung benefits and received benefits under the BLBA from
1997 until he died of respiratory failure in October 2003. Shortly after her husband’s
death, on October 21, 2003, Mrs. Maynes filed a claim for survivors’ benefits under the
BLBA. The version of the BLBA that was in effect at the time, however, conditioned
her eligibility for survivor’s benefits on her ability to prove that pneumoconiosis either
caused or hastened her husband’s death. See 30 U.S.C. § 932(l) (1982); Brown v. Rock
Creek Mining Co., Inc., 996 F.2d 812, 815-16 (6th Cir. 1993) (requiring widow to show
that pneumoconiosis was a “substantially contributing cause” of death, as required to
establish eligibility for survivor’s benefits under the “1981 Black Lung Benefits
Amendments”) (citing 20 C.F.R. § 718.205(c)(2) (1992)). Mrs. Maynes’s 2003 claim
No. 12-3653        Consolidation Coal Co. v. Maynes, et al.                        Page 3


for survivor’s benefits was denied because she was unable to prove that her husband’s
respiratory failure was related to or caused by pneumoconiosis. On appeal, the Benefits
Review Board affirmed, and so did this Court. See L.M. v. Consolidation Coal Co., BRB
No. 08-0255 BLA (Oct. 8, 2008) (unpub.), aff’d, No. 08-4645 (6th Cir. July 29, 2009)
(unpub.).

       On March 23, 2010, Congress passed the Affordable Care Act, which amended
the eligibility requirements for survivors’ benefits under the BLBA. Pub. L. No. 111-
148, § 1556. Specifically, section 1556 of the ACA removed the BLBA’s limitation on
the availability of survivors’ benefits in circumstances where the miner’s death was not
necessarily caused by or related to pneumoconiosis. See 30 U.S.C. § 932(l) (providing
that “[i]n no case shall the eligible survivors of a miner who . . . [received BLBA
benefits] 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.”). Under the amended benefits
eligibility framework of the BLBA, survivors are now automatically entitled to benefits
if the miner himself received benefits under the BLBA during his lifetime. Id.

       Congress specified that these changes would apply to all claims filed after
January 2005. Congress was silent, however, as to whether persons such as Mrs.
Maynes, whose claims had been denied under the previous eligibility framework, could
receive benefits by filing a subsequent claim under amended Section 932(l). That issue
has since been answered in the affirmative by the Benefits Review Board and affirmed
by the U.S. Courts of Appeals for the Third and Fourth Circuits. See Union Carbide
Corp. v. Richards, 721 F.3d 307 (4th Cir. 2013); Marmon Coal Co. v. Dir., Office of
Workers’ Comp. Programs, 726 F.3d 387, 392 (3d Cir. 2013).

                                           II.

       In December 2010, Mrs. Maynes filed a new claim for survivor’s benefits, based
on her new eligibility status under the BLBA’s amended Section 932(l). The DOL
awarded benefits, and Petitioner requested a hearing. The administrative law judge
(“ALJ”) presiding over Mrs. Maynes’s 2010 claim affirmed the eligibility determination
and set March 2010 as the commencement date for Mrs. Maynes’s benefits (i.e., the date
No. 12-3653         Consolidation Coal Co. v. Maynes, et al.                        Page 4


of the amendments’ passage in Congress). Petitioner appealed to the Benefits Review
Board, arguing, inter alia, that Mrs. Maynes’s subsequent claim, filed pursuant to the
ACA’s amendments to the BLBA, was barred by the denial of her prior claim under the
version of the BLBA in effect at that time.

        When Mrs. Maynes’s claim came before the Board, it was supported by a
response from the Director for the Office of Workers’ Compensation Programs (“the
Director”). The Director agreed with the ALJ’s eligibility determination in Mrs.
Maynes’s case but disagreed with the ALJ’s chosen commencement date for her
benefits. According to the Director, the proper commencement date for Mrs. Maynes’s
benefits should have been October 2009, the month after the initial denial of her initial
claim became final.      See Richards, 721 F.3d 307 (explaining the appropriate
commencement date for retroactive benefits awards under similar circumstances).

        The Board agreed with the ALJ’s determination that Mrs. Maynes was entitled
to benefits under Section 932(l). It also adopted the Director’s view that the proper
commencement date for Mrs. Maynes’s benefits should have been October 2009 rather
than March 2010. Accordingly, the Board affirmed the ALJ’s eligibility determination
and modified the order by setting October 2009 as the appropriate commencement date
for her benefits.

        Petitioner filed timely notice of appeal in this Court on June 4, 2012. On appeal,
Petitioner argues that Mrs. Maynes’s subsequent claim, filed after the 2010 amendments
to the BLBA, is barred by res judicata because her 2003 claim was denied under the
version of the BLBA that was in effect at that time. Relatedly, Petitioner also claims that
the Board’s decision to grant Mrs. Maynes’s subsequent claim violated separation of
powers principles, because it retroactively nullified a final decision of this Court. U.S.
Const. art. III. Lastly, Petitioner argues that the Board exceeded its statutory scope of
review by changing the operative date for the commencement of Mrs. Maynes’s benefits.
No. 12-3653        Consolidation Coal Co. v. Maynes, et al.                       Page 5


                                          III.

       This Court reviews the legal issues raised in an administrative appeal de novo.
Conley v. Nat’l Mines Corp., 595 F.3d 297, 301 (6th Cir. 2010).

       We first address Petitioner’s arguments that the Board’s decision violated the
principles of res judicata and separation of powers. The doctrine of res judicata bars
subsequent causes of action when a court of competent jurisdiction already has rendered
a final decision on the merits involving the same parties and claims in a prior action.
Sanders Confectionery Products, Inc. v. Heller Financial, Inc., 973 F.2d 474, 480
(6th Cir. 1992). Res judicata also applies in the context of administrative adjudications
under the BLBA, barring subsequent claims for benefits “unless the claimant
demonstrates” that the “applicable conditions of entitlement [have changed]” since the
date upon which the denial of a prior claim became final. 20 C.F.R. § 725.309(c).
Notably, however, DOL regulations specifically state that this bar does not apply to
subsequent claims for survivors’ benefits filed pursuant to the BLBA’s 2010
amendments. See 20 C.F.R. § 725.309(c)(1) (“[This section] does not apply to a
survivor’s claim if the requirements of §§ 725.212(a)(3)(ii), 725.218(a)(2), or
725.222(a)(5)(ii) are met, and the survivor’s prior claim was . . . denied prior to March
23, 2010.”). Similarly, the doctrine of res judicata does not preclude parties from
bringing claims that did not exist at the time of the prior proceeding. Kane v. Magna
Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995) (citing Lawlor v. Nat’l Screen Serv. Corp.,
349 U.S. 322, 329 (1955).

       Petitioner’s res judicata argument is nearly identical to the arguments rejected
by the Third and Fourth Circuits in Marmon Coal Co. v. Dir., Office of Workers’ Comp.
Programs, 726 F.3d 387, 392 (3d Cir. 2013), and Union Carbide Corp. v. Richards,
721 F.3d 307 (4th Cir. 2013). This Court has yet to determine whether res judicata bars
subsequent survivor claims under the BLBA. We have, however, rejected the res
judicata argument as applied to miners bringing subsequent claims on their own
behalves. See Buck Creek Coal Co. v. Sexton, 706 F.3d 756, 759-60 (6th Cir. 2013)
(finding that res judicata was not implicated by award of benefits under the BLBA on
No. 12-3653        Consolidation Coal Co. v. Maynes, et al.                         Page 6


miner’s subsequent claim because miner was required to submit newly developed
evidence to ensure that he was not merely re-litigating his prior claim).

       Similarly, here, the doctrine of res judicata is not implicated. Mrs. Maynes’s
2010 claim could not have been brought or litigated in her original filing because the
applicable statutory provision did not exist at the time. Maynes’s 2003 claim was denied
under the pre-ACA version of the BLBA because she could not prove that
pneumoconiosis was the cause of her husband’s death. See L.M. v. Consolidation Coal
Co., BRB No. 08-0255 BLA (Oct. 8, 2008) (unpub.), aff’d, No. 08-4645 (6th Cir. July
29, 2009) (unpub.). When Congress amended the BLBA in 2010, however, Mrs.
Maynes’s benefits eligibility status changed; she became automatically eligible for
survivors benefits under Section 932(l) because her husband had received benefits under
the BLBA during his lifetime. Mrs. Maynes’s subsequent claim, brought after the 2010
amendments to the BLBA, was based on her benefits eligibility under Section 932(l).
Therefore, the Board’s determination that Mrs. Maynes was entitled to survivor benefits
under of Section 932(l) was based upon a different statutory basis for relief than the
provisions it relied upon when it denied her 2003 claim. Indeed, that this is a new claim
is evident as Mrs. Maynes’s subsequent claim was based on legal and factual issues that
had not been litigated in relation to her prior claim—it did not challenge the denial of
her prior claim, nor did it require the Board to make any findings that would undermine
the disposition of her 2003 claim. A comparison of the determinative factual elements
underlying each claim demonstrates that Mrs. Maynes’s original claim and her
subsequent claim were not the same cause of action. Sanders Confectionary, 973 F.2d
at 484; see also Marmon Coal Co. v. Dir., Office of Workers’ Comp. Programs, 726 F.3d
387, 392 (3d Cir. 2013); Union Carbide Corp. v. Richards, 721 F.3d 307 (4th Cir. 2013).
In her original claim, Mrs. Maynes could recover only by proving that her husband’s
death was due to pneumoconiosis. In her subsequent claim, the cause of Mr. Maynes’s
death was not at issue. Rather, Mrs. Maynes’s eligibility simply hinged upon whether
Mr. Maynes had received benefits during his lifetime, an administrative fact.
Accordingly, because Mrs. Maynes’s subsequent claim is based on a different statutory
basis for benefits eligibility than her prior claims, and because her subsequent claim does
No. 12-3653        Consolidation Coal Co. v. Maynes, et al.                       Page 7


not undermine either the factual or legal conclusions resulting in the denial of her 2003
claim, the doctrine of res judicata is simply not implicated.

       Petitioner’s argument that the Board’s ruling on Mrs. Maynes’s subsequent claim
violates separation of powers fails for the same reason. Petitioner argues that the
Board’s decision violates the principle of separation of powers because it retroactively
nullifies the prior decision of this Court affirming the denial of her original claim.
Relying on Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 225-28 (1995), Petitioner
claims that the Board’s retroactive application of the ACA amendments contravenes the
general principle that “Congress cannot deprive final judicial judgments by Article III
courts of their conclusive effect.” As noted above, however, the Board’s decision to
award benefits in response to Mrs. Maynes’s subsequent claim did nothing to alter,
undermine, disturb or overturn the Board’s prior denial of her 2003 claim; nor does it
challenge this Court’s affirmance of that decision. Therefore, Petitioner’s separation of
powers argument also fails.

       Finally, we also affirm the Board’s ruling on the appropriate commencement date
for Mrs. Maynes’s benefits. Petitioner contends that the Board erred in moving back the
commencement date for Mrs. Maynes’s benefits from March 2010 to October 2009.
Petitioner argues that the Board could not modify the ALJ’s commencement date, even
if it was incorrect, because the Director never filed a cross-appeal on the issue. See
20 C.F.R. § 802.201(a)(2) ("When a decision or order is favorable to a party (i.e., the
prevailing party), the prevailing party may file a cross-appeal pursuant to § 802.205(b)
to challenge any adverse findings of fact or conclusions of law in the same
proceeding.”).   Petitioner’s argument on this point is premised upon a flawed
interpretation of the Board’s scope of review over ALJ determinations. The Board has
authority to “affirm, modify, vacate or reverse” an ALJ’s decision. 20 C.F.R.
§ 802.404(a). The Board also has general discretion to consider issues not raised by the
parties where doing so is “necessary to reach the correct result.” Youghiogheny & Ohio
Coal Co. v. Milliken, 200 F.3d 942, 955 (6th Cir. 1999) (citing Mansfield v. Director,
OWCP, 8 BLR 1-445, 1986 WL 66303, at *1 (1986)).
No. 12-3653        Consolidation Coal Co. v. Maynes, et al.                       Page 8


       While this appeal was pending before the Board, it decided in another case that
the appropriate commencement date for survivors benefits awarded pursuant to a
“subsequent claim awarded under ACA Section 1556 is the month after the denial of the
survivor’s prior claim became final.” See Richards, 721 F.3d 307 (affirming the Board’s
determination concerning the proper commencement date). It cannot be said that the
Board went beyond the scope of its authority when, in order to be consistent with its own
recent decision, it corrected the ALJ’s determination concerning the appropriate
commencement date for Mrs. Maynes’s benefits.

                                          IV.

       For the foregoing reasons, the Petition is DENIED.
