                                                   NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      _____________

                         No. 10-3126
                        _____________

                         I.T.E.C. and
                      STATE WORKERS'
                   INSURANCE FUND (PA),
                                 Petitioners

                                v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
        UNITED STATES DEPARTMENT OF LABOR;
             SHIRLEY A. BENAMATI, widow of
                  BERNARD BENAMATI,
                           Respondents
                     _____________

          Petition for Review of a Decision and Order
                   of the Benefits Review Board
               (Agency No. BRB-1:09-0677 BLA)
      Administrative Law Judge: Honorable Daniel L. Leland
                          _____________

           Submitted Under Third Circuit LAR 34.1(a)
                      November 22, 2011

    Before: RENDELL, BARRY and JORDAN, Circuit Judges

                  (Opinion Filed: April 3, 2012)
                        _____________

                  OPINION OF THE COURT
                      _____________
RENDELL, Circuit Judge.

       ITEC petitions for review of a June 10, 2010 Decision and Order of the

Department of Labor’s Benefits Review Board awarding Black Lung Benefits Act

survivor’s benefits to Shirley A. Benamati. The BRB held that Ms. Benamati was

entitled to survivor’s benefits under 30 U.S.C. § 932(l), as amended in 2010 by the

Patient Protection and Affordable Care Act (“PPACA”), Pub. L. No. 111-148, § 1556(b)

(2010), because her claim was filed after January 1, 2005; it was pending on March 23,

2010; and her husband, a miner, was receiving benefits under a final award at the time of

his death. Because this case raises issues we considered and resolved in B&G

Construction Co. v. Director, OWCP, 622 F.3d 233 (3d Cir. 2011), we will deny the

petition for review.

       The 2010 PPACA amendments to the Black Lung Benefits Act changed the rules

governing survivor’s benefits under the Act. Before the 2010 amendment, section 932(l)

provided:

              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, except with respect to a claim filed
              under this part on or after the effective date of the Black Lung
              Benefits Amendments of 1981.

30 U.S.C. § 932(l) (emphasis added). In practice, this provision meant that survivors of

miners with certain types of pneumoconiosis who filed a claim after January 1, 1982 had

to prove that pneumoconiosis caused the miner’s death to receive survivor’s benefits. See

B&G Construction, 662 F.3d at 238, 242-43.

                                             2
       Section 1556 of the PPACA amended section 932(l) by “striking ‘except with

respect to a claim filed under this part on or after the effective date of the Black Lung

Benefits Amendment of 1981.’” Pub. L. No. 111-148, § 1556(b), 124 Stat. 119 (2010).

In B&G Construction, we held that, as amended, section 932(l) “operate[s] to ensure that

any eligible survivor of a deceased miner who was eligible to receive benefits at the time

of his death does not have to file a new claim or otherwise establish that pneumoconiosis

was a cause of the miner’s death in order to continue receiving benefits.” 622 F.3d at

253. The PPACA specified that its amendment to section 932(l) applies to Black Lung

Benefits Act claims that were filed after January 1, 2005 and remained pending on or

after March 23, 2010, the PPACA’s enactment date. Pub. L. No. 111-148, § 1556(c), 124

Stat. 119 (2010); see also B&G Construction, 662 F.3d at 244.

       In this case, the BRB determined that Ms. Benamati’s husband was receiving

benefits when he died, that she filed her claim after January 1, 2005, and that her claim

remained pending after March 23, 2010. Applying amended section 932(l), it held that

Ms. Benamati was automatically entitled to survivor’s benefits, without proving that

pneumoconiosis caused her husband’s death. ITEC’s petition for review does not

challenge any of the BRB’s factual determinations or its interpretation of section 932(l).

It argues only that (1) amended section 932(l) creates an irrebuttable presumption of

death by pneumoconiosis, which violates procedural and substantive due process, and

(2) applying the 2010 amendments retroactively effects an unconstitutional taking under

the Fifth Amendment.



                                              3
       We considered and rejected precisely those arguments in B&G Construction. 1 We

held, first, that the PPACA amendments to section 932(l) do not violate procedural due

process because the amendments do not create any presumption, let alone an irrebuttable

presumption. We noted that, even if the amendments had created such a presumption,

that would not automatically violate the Due Process Clause. 662 F.3d at 254. We also

rejected the argument that the amendments violate substantive due process because they

lack a rational basis and run counter to the purpose of the Black Lung Benefits Act. 2 Id.

at 255-59. Specifically, we held that the petitioner “failed to show that Congress acted in

an arbitrary or irrational manner in enacting the amendment” and observed that “the Fifth

Amendment’s Due Process Clause provides no remedy to [the petitioner] predicated on

its disagreement with Congress’ policy decision to amend the Act.” Id. at 259. Finally,

we considered the Takings Clause question in detail and concluded that all three of the

relevant factors — the economic impact of the regulation, the extent to which the


1
  We offered ITEC the opportunity to comment on the applicability of B&G
Construction to this case. In its response, ITEC urged us only to wait to decide its case
until B&G Construction’s petition for rehearing was resolved; it did not argue that this
case was distinguishable in any way.
2
  We note that ITEC’s substantive due process argument is framed in exactly the same
language as the argument we addressed and rejected in B&G Construction. Compare
Pet’r’s Br. 35 (“The effect of the irrebuttable presumption is to transform what has
always been a compensation system based on death due to pneumoconiosis, into a
pension system that awards survivor benefits upon the death of a miner, without regard to
the cause of the miner’s death.”), with B&G Construction, 662 F.3d at 255 (“B&G argues
that section 932(l) creates an irrebuttable presumption that a miner who was receiving
black lung benefits at the time of his death died of pneumoconiosis, thereby transforming
‘what has always been a compensation system based on death due to pneumoconiosis,
into a pension system that awards survivor benefits upon the death of a miner, without
regard to the cause of the miner’s death.’”).
                                             4
regulation interferes with distinct investment-backed expectations, and the character of

the challenged governmental action — weighed against finding that amended section

932(l) effects an unconstitutional taking. Id. at 260-63.

       Because ITEC has offered no new issues for us to consider, we will follow B&G

Construction and deny ITEC’s petition for review.




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