No.

14-1278
IN THE

Supreme Court of the United States

PEABODY COAL COMPANY,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS COMPENSATION
PROGRAMS, DEPARTMENT OF LABOR, AND EVA
ELIZABETH HILL,
Respondents.
________________
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION
Stephen A. Sanders
Evan Barret Smith
APPALACHIAN CITIZENS
LAW CENTER, INC.
317 Main St.
Whitesburg, KY 41858

Robert M. Loeb
Counsel of Record
Jeremy R. Peterman
ORRICK, HERRINGTON &
SUTCLIFFE LLP
1152 15th St., NW
Washington, DC 20005
(202) 339-8400
rloeb@orrick.com

Counsel for Respondent Eva Elizabeth Hill

i
QUESTION PRESENTED
The regulations governing administrative claims
for black lung benefits allow claimants to file a subsequent claim for benefits after an initial claim has been
denied if there is a change in the conditions of entitlement. See 20 C.F.R. 725.309. In 2010, Congress
amended the Black Lung Benefits Act and changed
the conditions of entitlement for spousal benefits. Respondent Eva Hill thereafter filed a subsequent claim
for benefits.
The question presented is:
Where, under the governing law at the time Mrs.
Hill filed an initial administrative claim for spousal
benefits, a denial of a claim did not preclude filing a
subsequent claim for benefits beginning after the date
of the initial denialbased on changed eligibility criteriadoes the fact that a court denied a petition for
review from the initial administrative adjudication
nonetheless forever bar Mrs. Hill from filing a subsequent claim?

ii
TABLE OF CONTENTS
QUESTION PRESENTED ........................................ i
TABLE OF AUTHORITIES .................................... iii
STATEMENT OF THE CASE .................................. 1
REASONS TO DENY CERTIORARI ....................... 7
I.

The Sixth Circuit Correctly Held

That The Subsequent Award Of Surviving Spouse Black Lung Benefits
Did Not Violate Separation Of Powers Principles ............................................. 9

II

The Issue Presented Is Not Ripe For

Review And The Petition Presents
No Question Of Exceptional Importance ................................................... 15

CONCLUSION ........................................................ 18

iii
TABLE OF AUTHORITIES
Page(s)
Cases
Banks v. Chicago Grain Trimmers
Assn,
390 U.S. 459 (1968) ..............................................11
Consolidation Coal Co. v. Director,
Office of Workers Compensation
Programs,
721 F.3d 789 (7th Cir. 2013)................................12
Consolidation Coal Co. v. Maynes,
739 F.3d 323 (6th Cir. 2014)..................................6
Donovan v. Dewey,
452 U.S. 594 (1980) ................................................1
Eastern Assoc. Coal Corp. v. Toler,
No. 14-1923 (4th Cir. filed Sept. 5,
2014) .....................................................................16
Jim Walter Res., Inc. v. Dir., Office of
Workers Comp. Programs,
766 F.3d 1333 (11th Cir. 2014)........................7, 15
Lampf, Pleva, Lipkind, Prupis &
Petigrow v. Gilbertson,
501 U.S. 350 (1991) ................................................9
Marmon Coal Co. v. Dir., Office of
Workers Comp. Programs,
726 F.3d 387 (3d Cir. 2013) ....................... 7, 12, 15

iv
Metropolitan Stevedore Co. v. Rambo,
515 U.S. 291 (1995) ..............................................11
OKeeffe v. Aerojet-General Shipyards,
Inc.,
404 U.S. 254 (1972) ..............................................11
Pittston Coal Grp. v. Sebben,
488 U.S. 108 (1988) ..............................................11
Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211 (1995) ........................ 9, 10, 12, 13, 14
Richards v. Union Carbide Co.,
BRB No. 11-0414 (2012) ........................................3
Union Carbide Corp. v. Richards,
721 F.3d 307 (4th Cir. 2013).................. 4, 7, 12, 15
Usery v. Turner Elkhorn Mining Co.,
428 U.S. 1 (1976) ..............................................1, 13
Federal Statutes and Regulations
Administrative Procedure Act, 5 U.S.C.
706 .....................................................................10
Black Lung Benefits Act, 30 U.S.C.
901 et seq ...................................................... passim
30 U.S.C. 932(l) ...............................................2, 5
30 U.S.C. 936.......................................................1
Federal Mine Health and Safety Act, 30
U.S.C. 801 et seq..................................................1

v
Patient Protection and Affordable Care
Act, Pub. L. No. 111-148, 1556
(March 23, 2010) ..............................................2, 15
Surface Mining Control and
Reclamation Act of 1977, 30 U.S.C.
1201 et seq ..............................................................1
20 C.F.R. 725.212 .....................................................2
20 C.F.R. 725.309 ......................................... i, 3, 5, 6
20 C.F.R. 725.309(d) .......................................3, 5, 11
20 C.F.R. 725.309(d)(3) ............................................3
20 C.F.R. 725.309(d)(5) ................................ 3, 11, 14
20 C.F.R. 725.310(a) .................................................3
Department of Labor, Regulations
Implementing the Federal Coal
Mine Health and Safety Act of 1969,
as Amended, 62 Fed. Reg. 3338 (Jan.
22, 1997) .................................................................2
Other Authorities
United States Department of Labor,
Benefits Review Board website,
http://www.dol.gov/brb/blcircuit.htm ..................17

vi
United States Department of Labor,
Division of Coal Miner Workers
Compensation,
www.dol.gov/owcp/dcmwc/regs/compl
iance/2015benefits.pdf ...........................................5

STATEMENT OF THE CASE

1. Mining provides great value to the Nations
economy, but it is also among the most hazardous of
the Nations industries. Donovan v. Dewey, 452 U.S.
594, 602 n.7 (1981). To address the health and safety
risks inherent in mining, mining operations are heavily regulated. E.g., Federal Mine Safety and Health
Act of 1977, 30 U.S.C. 801 et seq.; Surface Mining
Control and Reclamation Act of 1977, 30 U.S.C.
1201 et seq.; see also Donovan, 452 U.S. at 600 (holding warrantless mine inspections constitutional).
The Black Lung Benefits Act (Act), is part and
parcel of the regulatory scheme. See 30 U.S.C. 901
et seq. The Act provides for the payment of benefits to
miners who suffer total disability from black lung disease (pneumoconiosis)a severe, and frequently
crippling, chronic respiratory impairment. Usery v.
Turner Elkhorn Mining Co., 428 U.S. 1, 6 (1976). Like
workers compensation, the Act spread[s] the costs of
the employees disabilities to those who have profited
from the fruits of their laborthe operators and the
coal consumers. Id. at 18.
Congress delegated to the Secretary of Labor
broad rulemaking authority to implement the black
lung benefits program. See 30 U.S.C. 936. Exercising the delegated rulemaking authority, the Secretary of Labor has created an administrative process
for awarding black lung benefits to miners and their
spouses. This case concerns spousal benefits awarded
pursuant to that process.
2. The surviving spouse of a deceased miner is eligible for spousal benefits if the spouse meets the

2
conditions of entitlement. See 20 C.F.R. 725.212
(2000). From 1982 until 2010, a surviving spouse was
eligible for benefits if the spouse was (1) not married
and (2) dependent on the miner at the pertinent
time, and if (3) the miner died due to pneumoconiosis. Id. 725.212. In 2010, Congress amended the Act
to modify the conditions of entitlement. 124 Stat. 260,
Pub. L. 111-48, 1556 (March 23, 2010). The amendments entitle a miners surviving spouse to benefits,
regardless of the cause of the miners death, so long
as the miner was determined eligible to receive black
lung benefits prior to the time of the miners death
and the surviving spouse satisfies the other conditions of entitlement. Id. (amending 30 U.S.C. 932(l)).
The amendments apply to all claims filed after
January 1, 2005, that are pending on or after March
23, 2010. Id. 1556(c).
3. Because both the facts relating to eligibility and
the eligibility criteria for benefits may potentially
change over time, long-standing regulations provide
that the denial of a claim for benefits does not preclude the filing of a subsequent claim when there is
such a change. See Department of Labor, Regulations
Implementing the Federal Coal Mine Health and
Safety Act of 1969, as Amended, 62 Fed. Reg. 3338,
3352 (Jan. 22, 1997) (describing how regulations limit
applicability of common law concepts of res judicata
and collateral estoppel). Within one year of a denial, a miner or surviving spouse may request a modification of an award or denial on grounds of a change
in conditions or because of a mistake in a determination of fact. 20 C.F.R. 725.310(a) (2000).
After one year, the miner or surviving spouse may
file a subsequent claim for benefits. A subsequent

3
claim shall be processed and adjudicated just like an
original claim if one of the applicable conditions of
entitlement has changed since the date upon which
the order denying the prior claim became final. 20
C.F.R. 725.309(d) (2000).1 For surviving spouses,
the changed condition of entitlement must be unrelated to the miners physical condition at the time of
his death. Id. 725.309(d)(3).2
The prior administrative adjudication, however,
limits the benefits available. If the claimant prevails
on the subsequent claim, the claimant can receive
benefits for only the period of time subsequent to the
date of the initial denial. 20 C.F.R. 725.309(d)(5).
The earlier denial precludes any recovery for the period prior to the date the earlier administrative ruling
became final. Id.; see also Richards v. Union Carbide
Co., BRB No. 11-0414 (2012), affd Union Carbide
Corp. v. Richards, 721 F.3d 307 (4th Cir. 2013).
4. Eva Hill is the widow of Arthur Hill, her husband of 53 years. Pet. App. 22. Arthur Hill worked as
1 All citations to the DOL regulations in this opposition are
to the 2000 version, which was in effect when Mrs. Hill filed her
initial and subsequent claim. In 2013, the DOL reorganized
725.309 following the 2010 amendments and most of what
appeared in subsection (d) now appears in subsection (c).
Petitioner provides the full text of the prior version of 725.309
in the Appendix. See Pet. App. 80.
2 The regulations also authorize the Director to reconsider
the terms of an award of benefits at any time before one year
from the date of the last payment of benefits, upon his or her
own initiative, or the employers request on grounds of a change
in conditions or because of a mistake in a determination of fact.
Id. 725.310(a).

4
a coal miner for 41 years during which time he contracted black lung disease. Id. at 2. Mr. Hill was
awarded black lung benefits in 1987, and he received
benefits until he died in 2000. Id. at 15.
Mrs. Hill filed for benefits several weeks after her
husbands death. Id. at 2. Peabody Coal challenged
her claim for benefits by hiring two medical experts to
dispute that black lung disease caused Mr. Hills
death, despite the treating physicians listing of pneumoconiosis as a cause of death on the death certificate. Mrs. Hill did not have the resources to hire her
own expert and relied on the death certificate and her
own testimony.3 See Directors Exhibit 1-111 to -112
(transcript of hearing before ALJ at pages 27 & 28).
Relying on the companys experts, the DOL denied
her claim, concluding that she failed to establish that
pneumoconiosis caused her husbands death. Id. The
Sixth Circuit denied Mrs. Hills pro se petition for review on April 7, 2004. Pet. App. 21.
Following the 2010 amendments, Mrs. Hill filed a
subsequent claim for spousal benefitsas authorized
by long-standing regulations (20 C.F.R. 725.309(d)).
In her new claim, she contended that she was now eligible for spousal benefits pursuant to 30 U.S.C.
932(l) because under the 2010 amendments it was
now sufficient that her husband was receiving black
lung benefits at the time of his death. Her husbands

Mrs. Hill testified that while Mr. Hill was in the hospital
prior to his death, he coughed and spit up coal dust every day.
See Directors Exhibit 1-97 (transcript of hearing before ALJ at
page 13).
3

5
cause of death no longer mattered for the purposes of
her receiving surviving spouse benefits.
An Administrative Law Judge granted surviving
spouse benefits to Mrs. Hill, Pet. App. 19, and the
Benefits Review Board affirmed the award, id. at 10.
The Board rejected Peabody Coals argument that
general principles of res judicata and 20 C.F.R.
725.309 barred the subsequent claim. Id. at 8. The
Board explained that Mrs. Hills subsequent claim
was proper because it was not seeking to relitigate
whether Mr. Hill died from his black lung disease. Id.
at 8-9. The award entitled Mrs. Hill to benefits running from June 1, 2004more than a month after the
prior administrative ruling became final. Id. at 9. She
currently receives $638 per month in surviving
spouse
black
lung
benefits.
See
www.dol.gov/owcp/dcmwc/regs/compliance/2015benefits.pdf (showing 2015 benefit rate).
5. Peabody Coal appealed to the U.S. Court of Appeals for the Sixth Circuit. Pet. App. 1-3. On appeal,
Peabody Coal abandoned its argument that
725.309(d) barred a subsequent award of benefits.
See Peabody CTA Br. (not making argument); see also
Pet. 8-9 (describing arguments made on appeal). Instead, in its opening brief, Peabody Coal argued: (a)
that the 2010 amendments do not apply to surviving
spouses whom had already sought and were denied
black lung benefits (Peabody Coal does not, however,
present this question in their petition to this Court);
and (b) that awarding Mrs. Hill benefits after a court
of appeals had denied her petition for review of her

6
prior claim for surviving spouse benefits violates separation of powers. Pet. 8-9.4
In an unpublished opinion, the court of appeals
unanimously denied Peabody Coals petition for review from the Boards decision. Pet. App. 1-3. In regard to the constitutional separation of powers
argument, the court noted that the Sixth Circuit had
already rejected the very same argument in a unanimous decision. Id. at 2-3 (citing Consolidation Coal
Co. v. Maynes, 739 F.3d 323, 325 (6th Cir. 2014)). In
that case, the court explained that the subsequent
grant of benefits under the new eligibility rules did
nothing to alter, undermine, disturb or overturn the
Boards prior denial nor does it challenge this
Courts affirmance of that decision. Id. at 3 (quoting
Consolidation Coal, 739 F.3d at 329).
6. Peabody Coal petitioned for rehearing en banc.
The court denied the petition. Not one judge on the
court even requested a vote for en banc review.
Judge Sutton, joined by Judge Kethledge, issued
an opinion concurring in the denial of rehearing en
banc. Judge Sutton noted that [t]he existence of four
Courts of Appeals decisions permitting the reopening
of final judgments denying survivor benefits offers
ample reason to think that there is something to the
prevailing interpretation. Pet. App. 68. While not
deeming the matter as warranting a vote in favor of
Peabody Coal notes that it argued before the Sixth Circuit
that 725.309 violates due process principles. The petition here
raises no due process arguments. See Pet. 10 n.4. The only
argument asserted by Peabody Coal in this Court is one of
separation of powers. Pet. i.
4

7
review by the full court, Judge Sutton wrote to suggest that there may be another way of looking at the
issue. Id. Judge Sutton, however, stressed that his
qualms about the merits of the courts decision do not
mean full court review is necessary or for that matter
a good idea. Id. at 59.
Judge Donald also issued a concurrence in the denial of rehearing. She further explained why the
award of benefits after the change in eligibility criteria raised no serious separation of powers concerns.
Id. at 75-78.
7. Peabody Coal now petitions for a writ of certiorari only on the question of whether the Boards decision awarding surviving spouse black lung benefits
violates separation of powers. Pet. i.
REASONS TO DENY CERTIORARI
Every circuit to address the question has held
that the 2010 amendments to the Black Lung Benefits Act apply to subsequent claims. See Jim Walter
Res., Inc. v. Dir., Office of Workers Comp. Programs,
766 F.3d 1333, 1335-36 (11th Cir. 2014); Marmon
Coal Co. v. Dir., Office of Workers Comp. Programs,
726 F.3d 387, 392-93 (3d Cir. 2013); Richards, 721
F.3d at 313-316. Peabody Coal has now abandoned
that argument and solely argues that the award of
surviving spouse benefits to Mrs. Hill based on the
new eligibility criteria violates constitutional separation of powers because the award undoes the court
decision denying her petition for review from the administrative denial of her prior claim. The court of appeals properly rejected that argument in its
unpublished decision. The governing regulations at

8
the time Mrs. Hills initial claim was denied expressly
allowed a subsequent claim to the agency based on
changed eligibility criteria. Thus, the 2010 amendments did nothing to alter the finality of the denial of
Mrs. Hills initial claim. There is nothing remotely improper about a subsequent claim and an award of benefits after such a change.
In any event, the separation of powers argument
asserted here has not been addressed by any other
court of appeals, and is not ripe for review by this
Court. The ruling is also highly context specific. It
deals with an agency award of benefits as part of a
unique benefits program. And it is further limited to
the situation where agency regulations authorize subsequent claims for benefits after a change in eligibility criteria. Given that the decision impacts the
application of this one statutory provision to a very
narrow and dwindling class of beneficiaries, the unpublished ruling will have at best a modest and limited impact and does not warrant this Courts review.
Thus, review by this Court is not warranted, and
the petition should be denied.
I.

The Sixth Circuit Correctly Held That The

Subsequent Award Of Surviving Spouse
Black Lung Benefits Did Not Violate
Separation Of Powers Principles.

Peabody Coals separation of powers challenge is

entirely premised on Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211 (1995). Plaut, however, has no bearing
here, where preexisting law permitted subsequent
claims following a change in eligibility criteria.

9
A. In Plaut, this Court held that Congress violated separation of powers where it passed retroactive
legislation that required courts to reopen cases that
were finally dismissed and to apply new law to those
cases. 514 U.S. at 225. At issue in Plaut was a congressional enactment that required district courts to
reopen cases that other federal courts finally dismissed as untimely pursuant to this Courts decision
in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991). In effect, the legislation
declared that the statute of limitations that governed
the already resolved cases was something other than
what this Court conclusively said it was in Lampf. See
Plaut, 514 U.S. at 227. This, the Court reasoned, was
in essence a legislative act designed to undo an Article
III courts interpretation of governing law. And it violated the constitutional equilibrium created by the
separation of the legislative power to make general
law from the judicial power to apply that law in particular cases. Id. at 224.
Plaut, by its own terms does not even apply to
agency adjudications such as the administrative benefits determination at issue here. Id. at 232.5 And,
5 Eligibility for black lung benefits is determined by an
administrative agencyan Article I tribunal. The federal
administrative scheme and state workers compensation laws
work together to generally bar black lung related tort actions
against coal companies and, instead, channel such claims for
compensation to the administrative process. A petition for
review to the courts of appeals of a determination made during
this administrative process does not transform an Article I
administrative benefit decision on whether to award black lung
benefits into an Article III judgment. The courts of appeals
review is limited to whether the agencys decision is supported

10
even as to Article III court judgments, Plaut does not
prevent a subsequent claim if at the time the initial
judgment issued that limitation is built into the judgment itself, and its finality is so conditioned. Id. at
234. In such a case, the proper application of new law
to a subsequent claim implicates no separation of
powers concern because, as this Court recognized in
Plaut, the finality that a court can pronounce is no
more than what the law in existence at the time of
judgment will permit it to pronounce. Id.
The 2010 amendments did not alter the claim
preclusive effect of the prior administrative denial of
benefits, or the Sixth Circuits 2004 denial of the petition for review from that agency ruling. This Court
has long recognized that the black lung administrative benefits adjudication regime does not follow traditional principles of res judicata. See Metro.
Stevedore Co. v. Rambo, 515 U.S. 291 (1995); OKeeffe
v. Aerojet-Gen. Shipyards, Inc., 404 U.S. 254 (1971);
Banks v. Chi. Grain Trimmers Assn, 390 U.S. 459
(1968). Unlike most traditional litigation that begins
in an Article III court, black lung benefits claimants
are expressly permitted to file subsequent claims for
benefits if there is a change in the eligibility criteria.

by substantial evidence, is in accordance with law, and is

rational, and does not conclusively state the courts opinion on
whether a claimant was entitled to benefits. See 5 U.S.C. 706.
The Sixth Circuits 2004 judgment accordingly says no more
than that the Department reached a permissible conclusion with
respect to Mrs. Hills entitlement to benefits at the time under
the governing regulations (which permitted a subsequent claim).
There is simply no Article III judgment at issue here that bars
Mrs. Hill from ever receiving black lung benefits.

11
20 C.F.R. 725.309(d) (even after one year, a subsequent claim is allowed if one of the applicable conditions of entitlement has changed).6
This is not to say that under the Black Lung Benefits Act, the prior agency adjudication has no claim
preclusive effect whatsoever. The regulations specify
that in any case in which a subsequent claim is
awarded, the subsequent award of benefits is limited. The agency may not award benefits prior to the
date upon which the order denying the prior claim became final. 20 C.F.R. 725.309(d)(5). Thus, a subsequent claim is allowed under specific circumstances,
but the prior denial precludes an award of benefits for
the period of time before the prior administrative adjudication became final. In this way, all similarly situated claimants are treated alike. Claimants who
presently satisfy the current conditions of eligibility
may receive benefits regardless of whether they failed
to meet different conditions of eligibility in the past.
Under the governing regulations then, the
agencys initial denial of Mrs. Hills claim for spousal
benefits precluded any subsequent award of benefits
for the period of time prior to the date of the final denial. The subsequent administrative award of benefits on Mrs. Hills subsequent claim, upheld by the
Sixth Circuit, respects the limits built into the prior
judgment. Neither the Department nor the Sixth Circuit awarded Mrs. Hill any benefits retroactive to
Pittston Coal Group v. Sebben, 488 U.S. 105 (1988) is not
to the contrary. That case concerned an attempt to reopen an
initial denial via mandamus rather than a new administrative
claim for entitlement. Moreover, Sebben predated 725.309(d)s
authorization of subsequent claims.
6

12
her initial application. Pet. 18 (quoting Pet. App. 66).
Mrs. Hills current entitlement to benefits commenced
on July 1, 2004, after the prior denial became final.
Pet. App. 9. Accordingly, the subsequent award of
benefits to Mrs. Hill complies with these governing
claim and issue preclusion principles, as every circuit
to consider this question has concluded. See Marmon
Coal Co., 726 F.3d at 394-95 (3d Cir.); Richards, 721
F.3d at 314-17 (4th Cir.); Consolidation Coal Co. v.
Director, Office of Workers Compensation Programs,
721 F.3d 789, 794-95 (7th Cir. 2013).
Because the subsequent award of benefits respected the claim preclusive effect of the initial denial, Plaut has no applicability in this case. Plaut, 514
U.S. at 234. The potential for an award of benefits
subsequent to the initial denial was built into the
judgment itself. Id.
The petitions (and Judge Suttons concurrences)
premisethat the 2010 amendments permit subsequent claims for survivor benefits after a final denial
of that claimis therefore mistaken. Pet. 16-17
(quoting Pet. App. 64). The DOLs regulations, which
predated both the 2010 amendments and Mrs. Hills
original claim, expressly permitted subsequent
claims. Thus, Plaut is wholly inapposite and there
simply is no bona fide separation of powers issue
raised by the court of appeals ruling.
B. Moreover, while Plaut forbids Congress from
retroactively changing the law that governs a specific
case finally adjudicated in an Article III court, nothing in Plaut bars Congress from creating a new entitlement to benefits as part of an administrative
benefits program that governs the highly regulated

13
coal mining industry. See Plaut, 514 U.S. at 236 (recognizing that creating a new cause of action would
create no separation-of-powers problem); cf. Turner
Elkhorn Mining, 428 U.S. at 19-20 (holding the Due
Process Clause poses no bar to requiring an operator
to provide compensation for a former employees
death or disability due to pneumoconiosis arising out
of employment in its mines, even if the former employee terminated his employment in the industry before the Act was passed).
That is just what Congress did here. Congress
created a new general entitlement to benefits for surviving spouses that did not exist when Mrs. Hills first
claim was denied. See Pet. App. 76. Before the amendment, eligibility turned on the miner dying from black
lung disease. Under the 2010 amendments, all
spouses are eligible so long as the miner spouse had
previously been determined eligible to receive black
lung benefits.
Far from the retroactive change in law designed
to alter the specific prior judgments at issue in Plaut,
the 2010 amendments at issue here revisit no prior
judicial statement of what the law was or what the
facts were in a particular case. The new entitlement
applies to all: Spouses who never filed a previous
claim for benefits are eligible, as well as spouses who
had a prior claim denied under a different theory of
entitlement. And the new entitlement does not require courts to reopen and apply new law to prior
cases because any entitlement to benefits arises only
subsequent to any prior judgment denying benefits.
20 C.F.R. 725.309(d)(5). Such an amendment simply
does not say what the law is in particular cases and
controversies nor does it prescribe[] what the law

14
was at an earlier time. Plaut, 514 U.S. at 218, 225
(internal citation and quotation marks omitted).
On petitioners view, once a participant in an administrative benefit program is denied benefits, separation of powers forever precludes Congress from
passing any legislation that could affect that claimants future entitlement to benefits. If Congress decides that a disability not previously recognized forms
the basis for a valid claim for social security disability
benefits, according to petitioner, separation of powers
would prohibit any benefit applicant who previously
had a social security claim denied from receiving benefits on the new theory of disability. Plaut does not
establish such a radical limitation on congressional
power, and simply has no application here.
II. The Issue Presented Is Not Ripe For
Review And The Petition Presents No
Question Of Exceptional Importance.
A. As noted by Judge Sutton, Pet. App. 68, the
three other circuits that have addressed the 2010
amendments applicability to claimants whom had
claims denied pre-enactment have all found the
amendments govern subsequent claims filed by those
claimants.7 The constitutional separation of powers of
7 While not challenged in its petition to this Court and
therefore waived by Peabody Coal, we note that the Sixth Circuit
properly held the 2010 amendments applicable to Mrs. Hills
subsequent claim because the amendments expressly apply to
all claims filed after January 1, 2005, that are pending on or
after March 23, 2010. Pub. L. 111-48, 1556(c). Mrs. Hills claim
filed on January 18, 2011 fits the bill. Pet. App. 6. Indeed, every
circuit to consider the question has held that the amendments

15
issue, which is the sole question raised by Peabody
here (see Pet. i), however, has only been addressed in
one single circuitthe Sixth Circuit.
In seeking review of the Sixth Circuits unpublished ruling, the petition raises a novel constitutional issue that simply is not ripe for review by this
Court. It asks this Court to resolve a constitutional
question that no other court of appeals has even had
the chance to consider. See Pet. 22. Nothing about this
case or the issue presented warrants such a dramatic
departure from this Courts ordinary and long-established practice of waiting for issues to mature and
percolate in the courts of appeals before granting review. Indeed, the constitutional issue raised in the petition is currently pending before the Fourth Circuit,
whose eventual decision may meaningfully explicate
the question presented. See E. Assoc. Coal Corp. v.
Toler, No. 14-1923 (4th Cir. filed Sept. 5, 2014).
Even Judge Sutton, upon whose concurring opinion Peabody Coal heavily relies, did not think that the
issue presented here even merited a vote in favor of
en banc review in the Sixth Circuit. Pet. App. 59
(stressing that his qualms about the merits of the
courts decision do not mean full court review is necessary or for that matter a good idea). A fortiori, the
govern subsequent claims filed in the relevant timeframe. See
Jim Walter Res., Inc. v. Dir., Office of Workers Comp. Programs,
766 F.3d at 1335-36; Marmon Coal Co., 726 F.3d at 392-93;
Richards, 721 F.3d at 313-316. We further note that Peabody
Coal never contested before the Sixth Circuit the validity of the
subsequent claim under the regulations authorizing subsequent
claims nor does it in its petition to this Court. Accordingly, any
claim to the contrary has also been forfeited.

16
issue is neither important enough nor sufficiently developed to warrant this Courts review.
B. Trying to defend its unusual request for premature review of the issue, Peabody Coal contends that
the decision below opens the possibility of overturning hundreds of decisions by Article III courts. Pet.
23. But it points to only one other pending case that
implicates the question presented. Id. This, notwithstanding that the 2010 amendments have been in effect for over five years.
Likewise, Peabody Coal speculates that at least
600 similar cases from the last 35 years may be waiting in the wings. Id. at 24. But only a fraction of those
cases arose in the Sixth Circuitthe majority are
from other circuits that have not yet addressed or resolved
the
question
presented.
See
http://www.dol.gov/brb/blcircuit.htm. Of that fraction,
a portion of the spouses may no longer qualifydue
to remarriage or death. And of the fraction of the fraction of living surviving spouses whose claims for benefits were denied in the Sixth Circuit, it remains to be
seen how many will bring subsequent claims for benefits. Whats clear, however, is that Peabody Coals
predictions of a flood of claims have not yet materialized over the past five years (notwithstanding the uniform reading of the 2010 amendments to allow such
subsequent claims).
C. Peabody Coal is also incorrect that the Sixth
Circuits decision holds forth the prospect that every
material amendment to a statute may be construed to
create a new cause of action justifying the re-litigation
of any matter finally decided by an Article III court.
Pet. 12; see also Pet. 24. To the contrary, the Sixth

17
Circuits highly context-specific holding will have only
a very narrow impact. The unpublished ruling is limited to the particular factual context of black lung
benefits claims, where established regulations entitle
claimants to file subsequent claims based on changed
eligibility criteria and where it has been long understood that ordinary principles of res judicata do not
apply. Given the narrowness of the Courts ruling, the
limited context it affects, and the dwindling class of
beneficiaries it may hypothetically impact, the ruling
here does not warrant this Courts review.
CONCLUSION
This Court should deny the petition.8
Respectfully submitted,
Stephen A. Sanders
Evan Barret Smith
APPALACHIAN CITIZENS
LAW CENTER, INC.
317 Main St.
Whitesburg, KY 41858

Robert M. Loeb
Counsel of Record
Jeremy R. Peterman
ORRICK, HERRINGTON &
SUTCLIFFE LLP
1152 15th St., NW
Washington, DC 20005
(202) 339-8400
rloeb@orrick.com

Date: July 27, 2015

If the Court decides to grant the petition, Respondent

requests that the Court set the case for briefing and argument
and deny petitioners request for summary reversal.
8