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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 13-11800
                        Non-Argument Calendar
                      ________________________

                       Agency No. 12-0362 BLA



DRUMMOND COMPANY, INC.,

                                                                      Petitioner,

                                 versus

DIRECTOR, OWCP,
DIRECTOR, US DEPARTMENT OF LABOR,
OLLIE P. GARDNER,
Widow of Melvin Gardner, Sr.,

                                                                    Respondents.

                      ________________________

                 Petition for Review of a Decision of the
                           Department of Labor
                       ________________________

                            (October 3, 2014)

Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      We address in this appeal whether res judicata bars an eligible dependent

from pursuing automatic derivative benefits in a second claim for survivors’

benefits under the Black Lung Benefits Act, 30 U.S.C. § 932(l), as amended by the

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

119, 260 (2010), after failing to prevail on a first claim for benefits under a

provision that conditioned the dependent’s eligibility for benefits on her ability to

prove that pneumoconiosis was a cause of the deceased miner’s death. Drummond

Company, Inc., petitions for review of a decision of the Benefits Review Board

that affirmed an award of survivors’ benefits to Ollie P. Gardner after she filed a

subsequent claim for automatic derivative benefits under section 1556. We deny

the petition.

                                 I. BACKGROUND

      In 1992, Melvin Gardner applied for benefits under the Black Lung Benefits

Act based on his work as a coal miner between 1956 and 1983. In 1995, an

administrative law judge found that Melvin was totally disabled due to

pneumoconiosis and awarded him benefits. Drummond did not appeal.

      Melvin died in April 2001, and his widow, Ollie Gardner, filed a claim for

survivors’ benefits under the Act. Under the version of the Act then in effect, Ollie

could receive benefits only if she proved that her husband’s death was due at least

in part to pneumoconiosis. See 30 U.S.C. § 932(l) (1981); 20 C.F.R.


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§ 718.205(c)(2) (1984). In 2003, an administrative law judge decided that Gardner

was a surviving dependent, 20 C.F.R. § 720.201(a)(2), but she was ineligible for

benefits because she failed to prove that pneumoconiosis was a cause of her

husband’s death, id. § 718.205(c)(2). Gardner did not appeal.

      In March 2010, Congress reinstated a former provision of the Act, 30 U.S.C.

§ 932(l) (1978), that awarded derivative benefits automatically to deceased miners’

dependents. Pub. L. No. 111-148, § 1556(b), 124 Stat. at 260. Until 1982, the

dependents of a deceased miner were entitled to automatic derivative benefits if the

miner “was determined to be eligible to receive benefits under this title at the time

of his or her death,” 30 U.S.C. § 932(l) (1978); Pub. L. No. 95-239, § 7(h), 92 Stat.

95, 100 (1978). Section 932(l) eliminated any duty imposed on “eligible survivors

of a miner . . . to file a new claim for benefits, or refile or otherwise revalidate the

claim of such miner.” Id. When Gardner filed her first claim, Congress conditioned

a dependent’s eligibility for benefits on an ability to prove that the deceased

minor’s death was due to pneumoconiosis, id. § 932(l) (1981), but section 1556

eliminated that condition. Under that provision, the restored right to automatic

benefits, id. § 932(l) (2012), applies to “claims filed . . . after January 1, 2005, that

are pending on or after [March 23, 2010],” Pub. L. No. 111-148, § 1556(c), 124

Stat. at 260.




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      In May 2010, Gardner filed a second claim for survivors’ benefits, and the

Director of the Office of Workers’ Compensation Programs in the Department of

Labor issued a proposed decision that awarded benefits to Gardner. The

Department determined that Gardner’s claim for benefits was governed by section

1556. The Department ruled that Gardner was entitled to benefits, under amended

section 932(l), because she was a surviving dependent of a miner who had received

benefits under the Act.

      Drummond objected to the decision on three grounds. First, Drummond

argued that Gardner’s second claim was a “subsequent claim” because it was filed

“more than one year after the effective date of a final order denying [her 2001]

claim,” and it was barred because “the applicable conditions of entitlement in such

claim . . . [was] []related to [her husband’s] physical condition at the time of his

death.” 20 C.F.R. § 725.309(d) (effective until October 24, 2013). In other words,

Gardner’s subsequent claim was barred because her 2001 claim was denied on the

ground that her husband’s death was not due to pneumoconiosis, and his physical

condition could not change. Second, Drummond argued that restored section 932(l)

did not apply to Gardner for three reasons: (1) the provision applied to the claim

filed by Gardner’s husband in 1992, not to Gardner’s subsequent claim; (2)

Gardner’s subsequent claim was not pending on or after March 23, 2010; and (3)

Gardner’s 2001 claim was adjudicated before the coverage period in section 1556.


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Third, Drummond argued that Gardner’s subsequent claim was barred by res

judicata.

      The administrative law judge awarded survivors’ benefits to Gardner. The

administrative law judge ruled that Gardner’s claim was a “subsequent claim,” by

which she could pursue benefits because “the applicable condition[] of entitlement

. . . [— the restoration of automatic derivative benefits under section 1556 — was]

unrelated to [her husband’s] physical condition at the time of his death.” Id. And

Gardner was entitled to benefits, the administrative law judge determined, because

she was an “unremarried widow of a miner who had been awarded compensation

benefits under the Act during his lifetime, and . . . she filed her current claim in

May 2010,” within the covered period.

      Drummond appealed, and challenged the decision of the administrative law

judge on three grounds. First, Drummond argued that Gardner’s claim was a

“subsequent claim” that was barred by res judicata and by section 725.309(d) of

the regulations. Second, Drummond argued that the “claim” mentioned in restored

section 932(l) referred to a miner’s claim and could not apply to Gardner’s

subsequent claim because survivors are not required to file a claim. See 30 U.S.C.

§ 932(l) (2012); Pub. L. No. 111-148, § 1556(c), 124 Stat. at 260. Third,

Drummond argued that, even if Gardner could proceed under restored section

932(l), she had to prove that her husband’s death was due to pneumoconiosis.


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      The Benefits Review Board affirmed the decision to award benefits to

Gardner. The Board ruled that Gardner’s subsequent claim was not barred by res

judicata because her entitlement to benefits was not “tied to relitigation of the prior

finding that [her husband’s] death was not due to pneumoconiosis.” The Board also

ruled that Gardner did not have to prove the cause of her husband’s death because

section 1556 eliminated the causation requirement contained in the 1981 version of

section 932(l). And the Board determined that Gardner qualified for automatic

benefits under section 932(l) based on the undisputed finding of the administrative

law judge that Gardner was an eligible dependent of a deceased miner who was

receiving benefits under the Act when he died and that her claim was pending after

March 23, 2010.

                          II. STANDARDS OF REVIEW

      “We review de novo questions of statutory interpretation.” U.S. Steel Mining

Co., LLC v. Director, OWCP, 719 F.3d 1275, 1280 (11th Cir. 2013). The

application of res judicata is also a question of law that we review de novo.

Vasquez v. YII Shipping Co., Ltd., 692 F.3d 1192, 1196 n.3 (11th Cir. 2012).

                                 III. DISCUSSION

      Drummond challenges the decision of the Board on three grounds. First,

Drummond argues that Gardner’s claim for benefits is barred by res judicata and

the principles of finality embodied in section 725.309(d) of the Code of Federal


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Regulations. Second, Drummond argues that restored section 932(l) applies to

miners’ claims and not to a subsequent claim of a surviving spouse that was not

pending on March 23, 2010. Third, Drummond argues that, even if restored section

932(l) applies to survivors’ subsequent claims, Gardner still must prove that her

husband’s death was due to pneumoconiosis. All of these arguments fail.

      Res judicata does not bar Gardner’s subsequent claim for benefits. “Under

res judicata, also known as claim preclusion, a final judgment on the merits bars

the parties to a prior action from re-litigating a cause of action that was or could

have been raised in that action.” In re Piper Aircraft Corp., 244 F.3d 1289, 1296

(11th Cir. 2001). To determine whether res judicata bars Gardner’s subsequent

claim, we must compare it to the “substance of [her first claim], not [its] form.”

See id. at 1297. Gardner’s two causes of action are the “same” only if her

subsequent claim “arises out of the same nucleus of operative fact, or is based upon

the same factual predicate, as [her] former [claim for benefits]” Id. (quoting

Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1239 (11th Cir. 1999). Gardner’s

first claim turned on whether she could prove that her husband died due to

pneumoconiosis, but her subsequent claim concerns only whether her husband was

eligible to receive benefits when he died. Because Gardner’s claims are based on

entirely different methods of recovering survivors’ benefits, her subsequent claim

is not barred by res judicata. Our analysis is unaffected by Pittston Coal Group v.


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Sebben, 488 U.S. 105, 109 S. Ct. 414 (1988), where the Supreme Court held that

res judicata applies to some claims for benefits. Id. at 121–23, 109 S. Ct. at 424–

25. Unlike the claimants in Pittston, Gardner is not seeking to “re-open” or to

disturb a decision to deny an earlier claim for benefits. Gardner seeks benefits on a

basis of entitlement that was previously unavailable to her.

      Our conclusion is consistent with the principles of finality embodied in

section 725.309(d). Section 725.309(d) bars a subsequent claim for benefits

“unless the applicable condition[] of entitlement . . . includes at least one condition

unrelated to the miner’s physical condition at the time of his death.” 20 C.F.R.

§ 725.309(d). Gardner’s subsequent claim is unrelated to the health of her deceased

husband. See Jim Walter Resources, Inc. v. Dir., Office of Workers’ Comp.

Programs, No. 13-13185, 2014 WL 4476171, at *9–10 (11th Cir. Sept. 12, 2014).

Her subsequent claim is based on the restoration of automatic benefits, under

section 1556, to beneficiaries whose spouses were found “to be eligible to receive

benefits under this title at the time of . . . [their] death,” 30 U.S.C. § 932(l) (1978);

Pub. L. No. 95-239, § 7(h), 92 Stat. 95, 100 (1978).

      The additional arguments made by Drummond are foreclosed by our

precedents. We held in U.S. Steel Mining that “[t]he plain meaning of § 1556(c) is

that anyone—miner or survivor—who filed a claim for benefits . . . can receive the

benefit of the amendments.” 719 F.3d at 1285. And in that opinion, we squarely


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rejected the argument that a dependent seeking derivative benefits under restored

section 932(l) is required to prove that the deceased miner died due to

pneumoconiosis. Id. at 1280–84. A dependent is obliged to prove a cause of death

only if she cannot establish that she is an “eligible survivor” and that the deceased

miner was receiving benefits when he died. Id. at 1284. We also have concluded

that section 1556 applies to a subsequent claim that is filed after the effective date

of the enactment. Jim Walter Resources, 2014 WL 4476171, at *5–8. Section 1556

and restored section 932(l) do not “distinguish between first-time claims and

subsequent claims,” id. at *6, and encompass claims that are pending after March

23, 2010, as a result of being filed after that date, id.at *5. That does not render

meaningless the time limitations in section 1556. Those deadlines mean that a

claimant whose initial claim was denied before January 2005 must file a

subsequent claim and that the Department of Labor is obliged to award automatic

derivative benefits only for a claim filed during or after 2005.

      The Board did not err in affirming an award of derivative benefits to

Gardner. Gardner complied with section 1556 by filing a subsequent claim after

January 1, 2005, that was pending after March 23, 2010, and it is undisputed that

she is an eligible dependent widow of a deceased miner who received benefits

during his lifetime. And neither res judicata nor section 725.309(d) of the

governing regulations bars her subsequent claim based on a new cause of action


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that was created by the restoration of automatic derivative benefits under section

1556.

                                 CONCLUSION

        We DENY the petition of Drummond to review the award of derivative

benefits to Gardner.




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