# U.S. Steel Mining Company, LLC v. Cassandra M. Terry

> Court of Appeals for the Eleventh Circuit · April 11, 2019 · 920 F.3d 1283

URL: https://www.frixlaw.com/law-library/cases/4386584

## Case

- **Full name:** OAK GROVE RESOURCES, LLC, National Union Fire Insurance/ AIG, Petitioners, v. DIRECTOR, OWCP, United States Department of Labor, Respondents. U.S. Steel Mining Company, LLC, U.S. Steel Corporation, Petitioners, v. Cassandra M. Terry, O.B.O. and Widow of Luther Terry, Director, OWCP, United States Department of Labor, Respondents.
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** April 11, 2019
- **Citations:** 920 F.3d 1283
- **Precedential status:** Published
- **Opinion:** Opinion by Newsom
- **Judges:** Tjoflat, Newsom, Antoon
- **Nature of suit:** CON
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4386584

## Opinion text

Case: 17-14468 Date Filed: 04/11/2019 Page: 1 of 19

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 17-14468
________________________

Agency No. BRB 16-0570 BLA

OAK GROVE RESOURCES, LLC,
NATIONAL UNION FIRE INSURANCE/ AIG,

Petitioners,

versus

DIRECTOR, OWCP,
UNITED STATES DEPARTMENT OF LABOR,

Respondents.

________________________

No. 17-15782
________________________

Agency No. 17-0105

U.S. STEEL MINING COMPANY, LLC,
U.S. STEEL CORPORATION,
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Petitioners,

versus

CASSANDRA M. TERRY, O.B.O. and Widow of Luther Terry,
DIRECTOR, OWCP,
UNITED STATES DEPARTMENT OF LABOR,

Respondents.

________________________

Petitions for Review of a Decision of the
Benefits Review Board
________________________

(April 11, 2019)

Before TJOFLAT and NEWSOM, Circuit Judges, and ANTOON, * District Judge.

NEWSOM, Circuit Judge:

These consolidated Black Lung Benefits Act appeals present two

questions—both of which are important to the parties, and one of which turns out

to be pretty interesting. Starting with the important-but-relatively-uninteresting: In

one of the cases, a mining company contends, for a smattering of reasons, that an

ALJ’s decision that one of its former miners was entitled to benefits under the Act

isn’t supported by substantial evidence. To be brief, we disagree. Ample evidence

*
Honorable John Antoon II, United States District Judge for the Middle District of Florida,
sitting by designation.

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supports the ALJ’s determination, and none of the company’s challenges to the

ALJ’s analysis withstands scrutiny.

Now, for the more interesting issue, which exists in both appeals: The Act

provides two means by which a deceased miner’s survivors can claim benefits.

First, the survivors can prove that the miner died due to a lung disease called

pneumoconiosis. See 30 U.S.C. §§ 922(a), 932(c). Alternatively, they can proceed

under the Act’s so-called “automatic entitlement” provision, 30 U.S.C. § 932(l),

which states that “[i]n no case shall the eligible survivors of a miner who was

determined to be eligible to receive 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.” These cases call on us to take a closer look at the italicized portion

of § 932(l). Under one reading—urged by the mining-companies here—the phrase

“at the time of his or her death” modifies the verb “determined,” such that a

miner’s survivors are entitled to benefits only if the pertinent government

decisionmaker issued a formal “determin[ation]” of the miner’s eligibility before

he or she died. Under an alternative reading—advanced by two surviving spouses,

with the support of the United States—“at the time of his or her death” modifies

the adjective “eligible,” such that survivors’ entitlement to benefits depends on

whether the miner was eligible before his or her death, not whether, by that time,

the pertinent decisionmaker had formally determined the miner to be so.

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We hold that the survivors and the government have the better of the

interpretive argument. Not only does their interpretation follow most naturally

from § 932(l)’s syntax and find support in the traditional “last antecedent” canon, it

also—and quite unlike the companies’ reading—squares with common sense by

avoiding arbitrary distinctions between identically situated claimants.

I

Before us are two consolidated cases—Oak Grove Resources, LLC, et al. v.

Director, OWCP (“Oak Grove”), and U.S. Steel Mining Company, LLC, et al. v.

Director, OWCP (“U.S. Steel”). We briefly review the facts of each case before

turning to a preliminary question posed only in U.S. Steel.

A

Starting with Oak Grove: In July 2012, Lee Ferguson, a coal miner with

more than three decades’ experience, sought benefits under the Black Lung

Benefits Act, 30 U.S.C. § 901 et seq., and its implementing regulations, 20 C.F.R.

§ 725.1 et seq. A District Director1 denied Lee’s claim, and Lee appealed.

Unfortunately, Lee died of mesenteric ischemia in November 2014, while his

appeal was pending. His widow, Carrie Ferguson, filed a claim for survivor

benefits in March 2015.

1
The Department of Labor includes the Division of Coal Mine Workers’ Compensation. This
Division has District Offices across the country, each led by a Regional and District Director.

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The following November, the ALJ handling Lee’s appeal overturned the

District Director’s decision and held that Lee’s employer, Oak Grove, was liable

for benefits from the date that Lee had initially filed his claim. Before us, Oak

Grove does not contest Lee’s own eligibility for benefits—only whether, under the

Act, those benefits are properly payable to Carrie as Lee’s surviving spouse.

In February 2016, the same District Director who had denied Lee’s claim

issued a decision in Carrie’s favor. In so doing, the District Director relied on 30

U.S.C. § 932(l)—which, as already noted, provides that “[i]n no case shall the

eligible survivors of a miner who was determined to be eligible to receive

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.”

Challenging the District Director’s decision before an ALJ, Oak Grove

argued that Carrie was not entitled to benefits under § 932(l) because Lee had not

been “determined to be eligible to receive benefits . . . at the time of his . . . death”

in November 2014. Rather, Oak Grove observed, the District Director had

determined Lee’s eligibility in February 2016, more than a year after his death.

Factually, Oak Grove was quite right—Lee hadn’t been formally determined to be

eligible before he died. As a matter of law, though, the ALJ concluded that the

timing of the District Director’s determination vis-à-vis Lee’s death was

inconsequential; all that mattered was that Lee was in fact eligible for benefits at

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the time he died. The Department of Labor’s Benefits Review Board affirmed the

ALJ’s decision in a published opinion. See Ferguson v. Oak Grove Res., LLC, No.

16-0570 BLA, 2017 WL 3953435 (Ben. Rev. Bd. 2017).

B

Turning to U.S. Steel: Luther Terry applied unsuccessfully for benefits under

the Act in 2006 and 2011. Luther succeeded in his third attempt in 2014, but he

didn’t survive to collect. A veteran miner and lifelong smoker, Luther died of

cardiopulmonary arrest the year before, in 2013. Luther’s widow, Cassandra

Terry, filed a claim for benefits shortly after his death, and a District Director

found that she was eligible, citing § 932(l)’s automatic-entitlement provision.

Luther’s employer, U.S. Steel, requested a hearing before an ALJ to contest that

conclusion on the same basis as in Oak Grove—namely, that Luther had died

before he was formally “determined” to be eligible for benefits. The ALJ affirmed

the District Director on the same ground as in Oak Grove—what mattered was that

before he died, Luther was eligible for benefits, not whether he had been

determined to be so. And as in Oak Grove, the Benefits Review Board affirmed

the ALJ’s decision. See Terry v. U.S. Steel Corp., Nos. 17-0105 BLA and 17-0107

BLA, 2017 WL 5898736 (Ben. Rev. Bd. 2017).

But U.S. Steel is different from Oak Grove in one key respect. Unlike Oak

Grove, U.S. Steel has not conceded that Luther was eligible for benefits in the first

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place. Accordingly, before turning to Cassandra’s entitlement to survivor benefits

under § 932(l), we must first address the preliminary question of Luther’s own

eligibility. Although something of a detour, the fact- and labor-intensive nature of

the eligibility inquiry usefully underscores what’s at stake in our subsequent

analysis of § 932(l). That provision is dubbed an “automatic entitlement” because,

where applicable, it allows a miner’s survivors to avoid the morass into which we

now descend.

II

The Act establishes a rebuttable presumption that a miner’s death or

disability is attributable to pneumoconiosis2—and thus compensable—if the miner

can show, as relevant here, that he or she “was employed for fifteen years or more

in one or more underground coal mines” and that the “evidence demonstrates the

existence of a totally disabling respiratory or pulmonary impairment.” 30 U.S.C.

§ 921(c)(4). U.S. Steel doesn’t dispute that it bears the burden of rebutting this

presumption with respect to Luther Terry.

Section 921(c)(4) and its implementing regulation, 20 C.F.R. § 718.305,

detail two means by which U.S. Steel can discharge its burden. First, it can

“establish[]” that Luther “does not, or did not, have” “[c]linical” or “[l]egal”

2
Pneumoconiosis is “a chronic dust disease of the lung and its sequelae, including respiratory
and pulmonary impairments, arising out of coal mine employment.” 20 C.F.R. § 718.201(a).

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pneumoconiosis. Id. § 718.305(d)(1)(i).3 For ease of reference, we’ll call this the

empirical method of rebuttal. Second, U.S. Steel can rebut the presumption by

“[e]stablishing” that “no part of the miner’s respiratory or pulmonary total

disability was caused by pneumoconiosis.” 20 C.F.R. § 718.305(d)(1)(ii). We’ll

call this the causal method. In order to “establish[]” non-liability via either

method, the employer must affirmatively disprove the miner’s presumptive

entitlement by a preponderance of the evidence. See United States Steel Corp. v.

Gray, 588 F.2d 1022, 1028 (5th Cir. 1979). 4

U.S. Steel offers a litany of reasons why the ALJ erred in concluding that

Luther was eligible for benefits. We needn’t respond point-by-point; an

assessment of U.S. Steel’s principal contentions will suffice.

1. U.S. Steel first assails the ALJ’s decision to assign greater weight to

credentialed radiologists’ interpretations of Luther’s chest x-rays than to those

offered by a “B-reader” pulmonologist.5 But the ALJ’s determination in that

3
“Clinical” pneumoconiosis “consists of those diseases recognized by the medical community as
pneumoconiosis.” 20 C.F.R. § 718.201(a)(1). The “legal” version broadens the scope to include
“any chronic lung disease or impairment and its sequelae arising out of coal mine employment.”
Id. § 718.201(a)(2).
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
5
Per the CDC’s description of “The NIOSH B Reader Program”: “The B Reader Program aims
to ensure competency in radiographic reading by evaluating the ability of readers to classify a
test set of radiographs, thereby creating and maintaining a pool of qualified readers having the
skills and ability to provide accurate and precise ILO [International Labour Office]

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respect is supported by both law and logic. As for law, one of the governing

regulations provides that “where two or more X-ray reports are in conflict, in

evaluating such X-ray reports consideration must be given to the radiological

qualifications of the physicians interpreting such X-rays.” 20 C.F.R.

§ 718.202(a)(1) (emphasis added). Another likewise requires that a chest x-ray

used as medical evidence include “the name and qualifications of the physician

who interpreted the X-ray”—and goes on to require a notation specifying “whether

he or she was a Board-certified radiologist, a Board-eligible radiologist, or a

Certified B-reader.” See id. § 718.102(e) (emphasis added). If the distinctions

between credentialed radiologists and B-readers didn’t matter, the regulations

wouldn’t draw them. Good old common sense reinforces the regulations’ line-

drawing and further supports the ALJ’s decision: reading x-rays, after all, is what

radiologists do. See, e.g., Webster’s Second New International Dictionary 2052

(1944) (defining “radiologist” as “[o]ne who practices or is versed in the use of X

rays”).

2. U.S. Steel also asserts that the ALJ erred in discounting the findings of

Dr. Michele Postma, who had been one of Luther’s treating physicians—and

whose testimony U.S. Steel introduced—on the ground that she stopped treating

classifications.” Centers for Disease Control and Prevention, Chest Radiography: The NIOSH B
Reader Program, https://www.cdc.gov/niosh/topics/chestradiography/breader.html.

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Luther four years before his death. As U.S. Steel puts it, the ALJ’s “‘later is

better’ analysis is not allowed under 20 C.F.R. § 718.202.” The text of § 718.202

says nothing of the sort, so U.S. Steel draws our attention to the Fourth Circuit’s

decision in Adkins v. Director, 958 F.2d 49 (4th Cir. 1992). But Adkins doesn’t

hold—or even suggest—that a “later [evidence] is better [evidence]” rationale is

impermissible per se; rather, the Adkins court merely explained that later-is-better

logic may fail in certain circumstances. In particular, the court observed that

because pneumoconiosis is a progressive disease, privileging a later physician’s

opinion makes sense only where “the evidence, on its face, shows that the miner’s

condition has worsened.” Id. at 52. If, by contrast, the miner’s condition has

improved—as the evidence before the court in Adkins indicated—then later-is-

better reasoning loses its force: “Either the earlier or the later result must be wrong,

and it is just as likely that the later evidence is faulty as the earlier.” Id. What

about the medical evidence before the ALJ here? On balance, that evidence—

especially when weighted for physician expertise—indicated that Luther’s

condition probably had deteriorated over time. So, as it turns out, Adkins

boomerangs back around on U.S. Steel to support the ALJ’s decision to discount

Dr. Postma’s conclusions.

3. We’ll take one more: U.S. Steel contends that the ALJ erred in holding

that Dr. Postma’s and Dr. Allan Goldstein’s conclusions “c[ould not] be credited”

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because their negative findings as to the empirical method of rebuttal—i.e., that

Luther didn’t suffer from pneumoconiosis in the first place—undermined the basis

for their conclusions as to the causal method—“that no part of [Luther’s]

respiratory or pulmonary total disability was caused by pneumoconiosis.”

U.S. Steel sends us back to the Fourth Circuit for support, arguing that the

ALJ’s approach would be permissible only if Dr. Postma and Dr. Goldstein had

“failed to consider pneumoconiosis as an additional cause of [Luther’s] pulmonary

problems.” Island Creek Coal Co. v. Compton, 211 F.3d 203, 213 (4th Cir. 2000).

Of course, as an out-of-circuit case, Island Creek is only persuasive here, and we

find a later Fourth Circuit decision more persuasive on the very point that U.S.

Steel is raising.

In Hobet Mining, LLC v. Epling, 783 F.3d 498 (4th Cir. 2015), the court

found that “[l]ong-standing precedent establishes that a medical opinion premised

on an erroneous finding” under the empirical method of rebuttal “that a claimant

does not suffer from pneumoconiosis is not worthy of much, if any, weight,

particularly with respect to whether,” under the causal method, “a claimant’s

disability was caused by that disease.” Id. at 504 (quotation marks and citation

omitted). As the court explained, that’s because the “credibility of a doctor’s

judgment as to whether pneumoconiosis is a cause of a miner’s disability is

necessarily influenced by the accuracy of his underlying diagnosis.” Id. Because

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the doctor is essentially engaging in a counterfactual exercise as to the causal

method, the Hobet court concluded, “opinions that erroneously fail to diagnose

pneumoconiosis may not be credited at all, unless an ALJ is able to identify

specific and persuasive reasons for concluding that the doctor’s judgment on the

question of disability causation does not rest upon the predicate misdiagnosis.” Id.

at 505 (quotation marks and citations omitted). That seems eminently sensible to

us. And here, the ALJ didn’t find any “specific or persuasive reasons” to think that

Dr. Postma’s and Dr. Goldstein’s erroneous empirical-method conclusions hadn’t

infected their causal-method analysis—nor has U.S. Steel identified any such

reasons.

Enough. We hold that the ALJ’s determination that Luther was eligible for

benefits under the Act was consistent with the law and supported by substantial

evidence. We turn, then, to the question whether Luther’s widow, Cassandra—and

with her, Lee Terry’s widow, Carrie—qualifies for survivor benefits under §

932(l)’s automatic-entitlement provision.

III

If Part II of this opinion seemed sloggy, that’s because it was. The

eligibility-determining process that it chronicles is not just fact- and context-

intensive but also fiscally and emotionally exhausting. The object of 30 U.S.C.

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§ 932(l) is to free the survivors of a deceased miner whose benefits claim has

already run the eligibility gauntlet from the burden of having to run it again.

As already noted—twice now, but the language is critical—§ 932(l) states

that “[i]n no case shall the eligible survivors of a miner who was determined to be

eligible to receive 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.”

The key phrase for our purposes—the hinge on which the dispute here turns—is “a

miner who was determined to be eligible to receive benefits . . . at the time of his

or her death.” There are two ways to understand that bit of text. Either “at the

time of his or her death” modifies the word “eligible”—such that a miner need

only have been eligible at the time he died, not formally determined to be

eligible—or it modifies the word “determined”—such that an eligibility

determination must have been made before the miner died. It matters here, of

course, because Lee Ferguson and Luther Terry were formally determined to be

eligible for benefits only after their deaths. They were eligible at the times that

they died, but only posthumously determined so.

Carrie and Cassandra—supported by the government—advocate the former

reading: The phrase “at the time of his or her death,” they say, modifies the term

“eligible.” Accordingly, their argument goes, it’s sufficient that their husbands

were eligible for benefits under the Act at the times of their deaths, and it doesn’t

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matter that the formal determinations of their husbands’ eligibility came only later.

That, they say for starters, is the most natural reading of the statute’s text. If “at

the time of his or her death” was intended to modify the word “determined,” the

provision would have been framed differently: “a miner who was determined at the

time of his or her death to be eligible to receive benefits at the time of his or her

death.” Relatedly, Carrie and Cassandra cite the “rule of the last antecedent,”

pursuant to which “‘a limiting clause or phrase . . . should ordinarily be read as

modifying only the noun or phrase that it immediately follows.’” Kehoe v. Fidelity

Fed. Bank & Trust, 421 F.3d 1209, 1215 (11th Cir. 2005) (quoting Barnhart v.

Thomas, 540 U.S. 20, 26 (2003)). They emphasize that the word nearest the

prepositional phrase “at the time of his or her death” (setting aside the irrelevant

“to receive benefits under this subchapter”) is “eligible,” not “determined.”

Finally, they point to the perverse consequences that would ensue from the

contrary reading: Imagine that two miners apply for benefits, and ALJs grant their

applications on the same day—say, a Tuesday. The lone difference is that the first

miner dies on Monday, just before his ALJ’s decision, whereas the second dies on

Wednesday, just afterward. There’s no rational basis, Carrie and Cassandra

contend, for treating the two miners’ survivors differently—particularly given that

doing so could well yoke a widow’s entitlement to benefits to the (in)efficiency of

the administrative process.

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The companies, by contrast, assert that “at the time of his or her death”

modifies the word “determined,” such that the formal determination of a miner’s

eligibility—and not just eligibility in the abstract—must have preceded his or her

death. Accordingly, they say, because Lee and Luther weren’t determined to be

eligible until after they died, Carrie and Cassandra aren’t entitled to benefits under

§ 932(l). The employers contend that an eligibility-focused reading violates the

rule against surplusage by depriving the phrase “at the time of his or her death” of

any real effect. See, e.g., United States v. Butler, 297 U.S. 1, 65 (1936) (“These

words cannot be meaningless, else they would not have been used.”). The reason,

they say, is that a miner’s eligibility is necessarily based on his or her condition

while alive—a deceased miner can’t be eligible—and so it adds nothing to specify

that the miner must have been eligible “at the time of his or her death.”

In our judgment, Carrie and Cassandra have the better of the interpretive

argument. On balance—and particularly in light of the “last antecedent” canon—

the phrase “at the time of his or her death” is most naturally read as modifying the

word “eligible” rather than the word “determined.” If Congress had intended

otherwise, it would (or should) have drafted the statute differently, and more

precisely, to refer to a “a miner who was determined at the time of his or her death

to receive benefits.” Moreover, as the Supreme Court has emphasized, “[w]e need

not leave our common sense at the doorstep when we interpret a statute,” Price

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Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded by statute on other

grounds, Civil Rights Act of 1991, Tit. I § 107(a), 105 Stat. 1075, as recognized in

Burrage v. United States, 571 U.S. 204 (2014), and we can think of no common-

sense reason why Congress would have wanted to differentiate between two

otherwise-identical survivors solely by virtue of the fact that the ALJ in charge of

one miner’s case got around to determining eligibility before he died while the ALJ

handling the other’s case didn’t. The statutory language doesn’t require (or on

balance even support) that cruel-happenstance result, and we decline to insinuate it.

As to the employers’ surplusage-based argument, we think it enough to say

two things. First, linking “at the time of his or her death” to eligibility, rather than

to a formal determination, doesn’t render the phrase wholly meaningless—it just

makes the provision a little clumsy (in a “duh!” kind of way). Second, there are

instances in which a court may validly “prefer ordinary meaning to an unusual

meaning that will avoid surplusage.” Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 176 (2012). This is just one such instance.

There is one final point: Because we find that § 932(l)’s language is clear—

and that it clearly favors Carrie and Cassandra’s position—we have no occasion to

resort to the principles of deference embodied in Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984), and its progeny. Even so,

we note—are fortified in our view by the fact—that the Department of Labor sees

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it the same way. To obtain benefits under 20 C.F.R. § 725.212, which implements

§ 932(l), an otherwise eligible survivor must show (as relevant here) that the

deceased miner either:

(i) Is determined to have died due to pneumoconiosis; or

(ii) Filed a claim for benefits on or after January 1, 1982, which
results or resulted in a final award of benefits, and the surviving
spouse . . . filed a claim for benefits after January 1, 2005 which was
pending on or after March 23, 2010.

20 C.F.R. § 725.212 (2013) (emphasis added). The regulation thus mirrors the two

means that the Act itself specifies by which a survivor can demonstrate eligibility:

(1) proving that the deceased miner died as a result of pneumoconiosis, see 30

U.S.C. §§ 922(a), 932(c); and (2) satisfying the requirements of the automatic-

entitlement provision, see id. § 932(l). The Department’s interpretation of § 932(l)

in 20 C.F.R. § 725.212(ii) squares with our own. The logic runs as follows: The

regulation pertains to “surviving spouse[s]”—and thus, by definition, to deceased

miners. Within that class, there are claims that “resulted”—past tense—in an

award of benefits; those might (or might not) refer to pre-death eligibility

determinations. But there are also claims that “result[]”—present tense—in an

award; of necessity—the miner having died, such that he or she has a “surviving

spouse”—those refer to posthumous determinations. Indeed, that is exactly what

the Benefits Review Board said here; it construed the phrase “which results or

resulted in” as authorizing benefits regardless of whether the miner died before or
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after he was formally determined to be eligible. See Oak Grove, Doc. 23 at 18–19

(“In accord with the prior versions of the regulation, the plain language of the

current regulation covers awards that occur before a miner’s death (i.e., a miner’s

claim which ‘resulted’ in an award), as well as awards that occur after a miner’s

death (i.e., a miner’s claim which ‘results’ in an award).”).

In sum, we hold that careful attention to § 932(l)’s text requires a decision in

favor of Carrie and Cassandra: Because their husbands were eligible for benefits

under the Act at the times of their respective deaths—and despite the fact that the

men were only thereafter formally determined to be eligible—Carrie and

Cassandra are due survivor benefits under § 932(l)’s automatic-entitlement

provision.6

6
Separate from—and in addition to—their arguments from statutory text, the parties offer
dueling citations to off-point decisions and extensive examinations of § 932(l)’s drafting history.
As to the former, we think it sufficient to say that none of the parties’ cases squarely addresses
the issue before us today. The companies rely principally on U.S. Steel Mining Co., LLC v.
Director, OWCP [Starks]—where, in fairness to their position, the court did say that “[w]e hold
that, to obtain benefits under the amended § 932(l),” the widow there “was required to show only
that she met the appropriate relational and dependency requirements rendering her an ‘eligible
survivor’ and that [her deceased husband] was receiving benefits when he died.” 719 F.3d 1275,
1284 (11th Cir. 2013) (emphasis added). The italicized language might seem to suggest that
§ 932(l) requires proof of pre-death payments and, accordingly, a pre-death “determin[ation].”
But Starks had nothing to do with the “at the time of his or her death” issue; rather, it addressed
the separate question whether the survivor had to “prove that the miner spouse died due to
pneumoconiosis.” Id. at 1280. It so happened that the miner there had been determined to be
eligible before his death, but nothing in Starks turned on that fact, and we therefore reject the
suggestion that our “was receiving benefits when he died” reference binds us here. See Dantzler
v. I.R.S., 183 F.3d 1247, 1251 (11th Cir. 1999) (“A judicial opinion is not a statute, and not every
sentence in a judicial opinion is law.”). For their part, Carrie and Cassandra point to Drummond
Co., Inc. v. Dir., OWCP [Allred], 650 F. App’x 690, 691 (11th Cir. 2016). But Allred, too—in
addition to being unpublished—is distinguishable. It’s true, as one of the ALJs here explained,

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IV

For the foregoing reasons, the Board’s decisions in both cases before us are

AFFIRMED.

that Allred “affirmed a benefits award pursuant to the automatic entitlement provision where a
miner was awarded benefits posthumously.” U.S. Steel, Doc. 23 at 3. But the question presented
in Allred was different—namely, whether the ALJ in that case had applied the proper legal
standard in determining whether the employer had rebutted the presumption in 20 C.F.R. §
718.305 that the miner there had clinical or legal pneumoconiosis.
We can make even quicker work of the parties’ protracted battle over § 932(l)’s
legislative history. That history—which comprises amendments on top of amendments on top of
amendments—“could hardly be more complicated,” B & G Const. Co. v. Dir., Office of Workers’
Comp. Programs, 662 F.3d 233, 239 (3d Cir. 2011) (quoting Helen Mining Co. v. Dir., OWCP,
924 F.2d 1269, 1271 (3d Cir. 1991) (en banc)), and perhaps not surprisingly, we find it utterly
unenlightening. Hence our quaint fixation on § 932(l)’s enacted text. See generally CRI-Leslie
v. Comm’r, 882 F.3d 1026, 1033 (11th Cir. 2018) (“As a formal matter, it is of course only the
statutory text . . . that is ‘law’ in the constitutional sense—that’s all that was enacted through the
bicameral legislative process and presented to the President for his signature.”) (citing U.S.
Const. art. I § 7, cls. 2–3).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4386584. Public record. Not legal advice.