                                                   NOT PRECEDENTIAL


           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     _____________

                         No. 11-2445
                        _____________

                 HELEN MINING COMPANY,
                              Petitioner

                               v.

     HELEN FAIRMAN, Widow of CLARK FAIRMAN; and
      DIRECTOR, OFFICE WORKERS’ COMPENSATION
   PROGRAMS, UNITED STATES DEPARTMENT OF LABOR
                              Respondents
                    ______________

        On Petition for Review of a Decision and Order
                  Of the Benefits Review Board
                     (BRB No. 10-0494 BLA)
     Administrative Law Judge: Honorable Michael P. Lesniak
                        ______________

           Submitted Under Third Circuit LAR 34.1(a)
                       January 23, 2012
                       ______________

Before: FISHER, GREENAWAY, JR. and ALDISERT, Circuit Judges.


                 (Opinion Filed: July 31, 2012)
                       ______________

                          OPINION
                       ______________




                               1
GREENAWAY, JR., Circuit Judge.
       Helen Mining Company (“Helen Mining”) petitions for review of a decision and

final order of the Benefits Review Board (“the Board”) of the United States Department

of Labor affirming an administrative law judge’s (“ALJ”) decision and order granting

respondent Helen Fairman’s (“Fairman”) claim for survivor’s benefits under the Black

Lung Benefits Act, 30 U.S.C. § 901 et seq. For the reasons stated herein, we will deny

the petition for review.

                                  I. BACKGROUND

       Because we write primarily for the benefit of the parties, we recount only the

essential facts.

       Clark M. Fairman, Sr. was employed as a coal miner for approximately nineteen

years. After he asserted that he had developed pneumoconiosis based on his employment

as a coal miner, the Department of Labor awarded him lifetime black lung benefits on

April 18, 1997. Clark Fairman continued receiving benefits until the time of his death on

January 26, 2008. On March 23, 2010, Congress passed the Patient Protection and

Affordable Care Act of 2010 (“PPACA”), Pub. L. No. 111-148, § 1556, 124 Stat. 119,

260. It amended § 932(l) of the Black Lung Benefits Act, to provide for automatic

entitlement to benefits for survivors of miners who received benefits.

       On May 3, 2010, after a formal hearing, Administrative Law Judge Michael P.

Lesniak awarded black lung benefits to Helen Fairman. On April 29, 2011, the Board

affirmed the ALJ’s award of benefits. The Board determined that Fairman was entitled to


                                             2
survivor’s benefits under 30 U.S.C. § 932(l), as amended by the PPACA, based on her

late husband’s disabling pneumoconiosis.

       Helen Mining petitioned our Court for review of the Board’s decision ordering it

to pay Helen Fairman all of the benefits to which she is entitled as a surviving spouse.

We held this case C.A.V., pending the Supreme Court’s decisions in Department of

Health and Human Services, et al v. Florida, (No. 11-398), National Federation of

Independent Business, et al v. Sebelius, (No. 11-393) and Florida v. Department of

Health and Human Services, (No. 11-400).

                II. JURISDICTION AND STANDARD OF REVIEW

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

921(b)(3). We have jurisdiction over Helen Mining’s petition for review under 33 U.S.C.

§ 921(c)(3). “We review the decisions of the Board for errors of law and to assure that it

has adhered to its own standard of review.” BethEnergy Mines, Inc. v. Dir., Office of

Workers’ Comp. Programs, 39 F.3d 458, 462-63 (3d Cir. 1994). We exercise plenary

review over all questions of law. Id. at 463.

                                     III. ANALYSIS

         Helen Mining’s petition presents five issues for our consideration: (1) whether

the PPACA is unconstitutional, and whether any unconstitutional provisions should be

severed or the entire Act deemed unenforceable; (2) whether the application of the

amendments to the Black Lung Act, both retroactively and prospectively, is a violation of

Helen Mining’s Fifth Amendment right to due process under the Takings Clause; (3)

                                                3
whether application of § 1556 of the PPACA results in irreconcilable inconsistencies in

the Black Lung Act, requiring it to be struck down; (4) whether the Award should be

vacated and the claim held in abeyance until the Department of Labor issues new

regulations implementing PPACA amendments; and (5) whether the application of the

PPACA violated the Administrative Procedures Act (“APA”).

       In light of the Supreme Court’s June 28, 2012, decision holding the individual

mandate of the PPACA to be constitutional, Helen Mining’s first argument must fail.1

See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2600 (2012) (“The

Affordable Care Act’s requirement that certain individuals pay a financial penalty for not

obtaining health insurance may reasonably be characterized as a tax. Because the

Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom

or fairness.”).

       Furthermore, Helen Mining concedes that our decision in B & G Construction Co.,

Inc. v. Director, Office of Workers’ Compensation Programs, 662 F.3d 233 (3d Cir.

2011) “essentially resolv[es] all [other] issues raised in [its] brief.” Pet’r’s Mot. to Hold

Appeal in Abeyance 4, Nov. 21, 2011. In B & G Construction, we considered the

Takings Clause question and held that the amended § 932(l) did not constitute an

unconstitutional taking. 662 F.3d at 260-63. We also rejected the argument that

amended § 932(l) is inconsistent with the Act’s general statement of purpose. Id. at 258.


1
 Because the Supreme Court found the PPACA’s individual mandate to be
constitutional, Helen Mining’s severability argument is moot.
                                              4
       Although we did not explicitly address the questions of whether new regulations

are necessary to properly implement section 1556 or whether the application of the

PPACA violated the APA based on an alleged reallocation of the burden of proof

regarding the cause of death, our opinion in B & G Construction similarly resolves the

key issues underlying each of these claims. For example, Helen Mining argues that the

ALJ employed an erroneous interpretation of section 1556 when it implemented the

amendments contained in the PPACA and suggests that we hold the case in abeyance

pending additional guidance from the Department of Labor. However, this argument

fails in light of our conclusion in B & G Construction that “section 1556 . . . negates any

language suggesting that an eligible survivor of a miner who was eligible to receive

benefits at the time of his death must file a new claim in order to prove that the miner’s

death was due to the effects of pneumoconiosis.” Id. at 252 (supporting the ALJ’s

interpretation of section 1556 and its application of the PPACA amendments).

       Similarly, Helen Mining’s APA argument is grounded in an assertion that the

section 1556 amendments could be read as an automatic entitlement provision, thus

eviscerating the claimant’s burden of proof in violation of section 7(c) of the APA. See 5

U.S.C. § 556(d) (“Except as otherwise provided by statute, the proponent of a rule or

order has the burden of proof.”) Section 1556 does not remove the claimant’s burden of

proof, but rather adjusts the conditions and procedures for establishing entitlement.2 See

2
  In B & G Construction, we disagreed with the petitioner’s assertion that section 1556
created an irrebutable presumption of entitlement to survivor benefits. In doing so, we
stated:
                                             5
B & G Constr., 662 F.3d at 254. The absence of burden-shifting, coupled with the fact

that Fairman’s claim met the requisite burden of proof because her husband was already

receiving benefits, indicates that section 7(c) of the APA is not implicated here.

                                   IV. CONCLUSION

       For the reasons stated above, we will deny the petition for review.




       [B]y eliminating the need for a widow to show causation between the
       miner’s pneumoconiosis and his death Congress simply has set forth as
       substantive law a provision that the survivor of a miner receiving benefits is
       entitled to survivor’s benefits regardless of the absence of causation
       between the miner’s pneumoconiosis and his death. As we explain below,
       we cannot understand why it cannot do so as there is no principle of law
       barring it from adopting that approach. Thus, properly understood, section
       1556 does not create a presumption [of entitlement to benefits] at all.
B & G Constr., 662 F.3d at 254.
                                             6
