Barrie v. United States Department of Labor
Filing
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MEMORANDUM OPINON AND ORDER granting 4 Defendant's Motion to Dismiss. All parties shall bear their own fees and costs, by Judge John L. Kane on 8/17/11.(gmssl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 11-cv-1181-AP
GEORGE W. BARRIE,
Plaintiff,
v.
U.S. DEPARTMENT OF LABOR,
Defendant.
MEMORANDUM OPINION AND ORDER
Kane, J.
From the advent of the Manhattan Project, the United States has invested heavily in the
design and development of a sizable nuclear arsenal. Although terrible in power, these weapons
are often credited with winning two wars, World War II and the Cold War. These weapons were
not, however, developed without a significant cost; many of the civilian contract employees
responsible for their design and construction were exposed to significant quantities of radiation
and/or toxins, which led to an increased incidence of radiation and toxin-related illnesses.
Although state workers’ compensation plans should have provided adequate compensation
for any occupational injuries suffered by these individuals, the Department of Energy’s
longstanding practice of litigating occupational illness claims deterred most employees from
seeking compensation. 42 U.S.C. § 7384(a)(4). In recognition of the great debt owed these
individuals and the inadequate compensation for their disproportionately born burden, Congress
passed the Energy Employee Occupational Illness Compensation Program Act of 2000
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(“EEOICPA”) to provide a compensation mechanism for men and women suffering injury related
to their employment in the nuclear defense industry. 42 U.S.C. § 7384 et seq.
Plaintiff George W. Barrie, a former contract employee of the Department of Energy,
worked as a contract machinist at the Rocky Flats Plant in Golden, Colorado from 1982 to 1989.
Barrie v. U.S. Dep’t of Labor, 597 F. Supp. 2d 1235, 1237 (D. Colo. 2009). He claims to have
suffered numerous illnesses resulting from his exposure to toxic compounds during the course of
his employment, and he filed a variety of claims with the Department of Labor for compensation
under the EEOICPA. Id. Most relevant to the instant challenge, he filed a wage-loss claim under
Part E of the EEOICPA, claiming that his exposure to toxins at Rocky Flats caused atrophic
gastritis, a condition that precludes him from seeking employment.1 Although his wage-loss
claim was denied by the Department of Labor, that decision was reversed and remanded to the
agency for further proceedings. Id. at 1245.
On remand, the Department of Labor again denied Mr. Barrie’s wage-loss claim, asserting
that the medical evidence of record was insufficient to establish that he had suffered a
compensable loss of wages. See Final Appeals Board’s Final Decision (doc. 4-2) at 13. Mr.
Barrie timely filed a request for reconsideration of that decision, and on March 3, 2011, the Final
Appeals Board denied his request for reconsideration. See Final Appeals Board’s Denial of
Request for Reconsideration (doc. 4-3) at 3. After his request to re-open his claim was denied, on
May 3, 2011, Mr. Barrie filed the instant action seeking review of the Department of Labor’s
1
Under the terms of the EEIOCPA, Part E provides compensation and medical benefits
for Department of Energy contractor and subcontractor employees whose illnesses were caused
by exposure to any toxic substance while working at a Department of Energy facility.
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denial of his wage-loss claim.
This matter is currently before me on Defendant the Department of Labor’s Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1).2 For the reasons stated below, the Department of
Labor’s motion is GRANTED.
ANALYSIS
The Department of Labor argues that I lack jurisdiction because Mr. Barrie’s complaint
was filed beyond the sixty-day period for filing a petition for review of a final decision by the
Department of Labor. See 42 U.S.C. § 7385s-6(a) (a plaintiff may seek review of the Department
of Labor’s denial of his wage-loss claim by filing a request for review “within 60 days after the
date on which that final decision was issued a written petition praying that such decision be
modified or set aside . . .”). Neither party disputes that Mr. Barrie’s complaint was filed 61 days
after the Final Appeals Board denied his request for reconsideration. Instead, Mr. Barrie argues
that his claim is not time-barred because: (1) the agency’s action did not become “final” until his
request to reopen his claim was denied on April 12, 2011 and (2) the statutory deadline for filing
his notice of appeal is not jurisdictional and may be equitably tolled. I address each argument in
turn.
Finality of the Agency’s Decision
The Department of Labor’s regulations provide that when a claimant files a request for
reconsideration of the Final Appeals Board’s denial of his claim and that request is denied, “the
[Final Appeals Board] decision that formed the basis for the request will be considered ‘final’
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In its Motion to Dismiss, the Department of Labor also argued that dismissal was
appropriate under Fed. R. Civ. P. 12(b)(5). Mr. Barrie has, however, cured the deficiency in his
service of the government, and this argument is MOOT.
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upon the date the request is denied.” 20 C.F.R. § 30.319(c)(2).3
Mr. Barrie argues that the Final Appeals Board’s denial of his claim was not final until the
Department of Labor denied his request to reopen his claim, at which point his administrative
remedies were effectively exhausted. Although in some cases the exhaustion of administrative
remedies is a prerequisite to filing a petition for review of an agency’s action, the Administrative
Procedures Act, “by its very terms, has limited the availability of the doctrine of exhaustion of
administrative remedies to that which the statute or rule clearly mandates.” Darby v. Cisneros,
509 U.S. 137, 146 (1993). The EEOICPA does not require a plaintiff to exhaust his
administrative remedies in order to seek judicial review, and I may not imply one. Simply put,
Mr. Barrie’s request to reopen his claim is irrelevant to the finality of Defendant’s denial of his
wage-loss claim and his ability to seek judicial review;4 his belief to the contrary does not alter
the statutory and regulatory framework. Plaintiff’s claim became final on March 3, 2011, when
the Final Appeals Board denied his request for reconsideration.
Nature of the Statutory Deadline
Even though the statutory deadline expired before Plaintiff filed his complaint, he argues
that the deadline may be tolled because the deadline is not jurisdictional. Although the Supreme
Court has repeatedly held that statutory deadlines for filing suit are jurisdictional in nature, it has
not consistently applied this rule, at times reaching the opposite conclusion. Compare Stone v.
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Plaintiff has not challenged this regulation, and absent any evidence that it is arbitrary,
capricious, or manifestly contrary to the statute I must afford it deference. Chevron v. Natural
Res. Def. Council, 467 U.S. 837, 844 (1984).
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Further underscoring this conclusion, Plaintiff could not have filed a request to reopen
his claim until the Final Appeals Board’s decision was “final”. 20 C.F.R. § 30.320(a).
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INS, 514 U.S. 386, 405 (1995) (“Judicial review provisions . . . are jurisdictional in nature and
must be construed with strict fidelity to their terms”), and Missouri v. Jenkins, 495 U.S. 33, 45
(1990) (statutory provisions specifying the timing of review are “mandatory and jurisdictional”),
with Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006) (“time prescriptions, however emphatic,
are not properly typed jurisdictional”). Unfortunately, the Court’s attempts to reconcile its
previous rulings have proven, for the most part, ineffective. It is with this uncertainty in mind
that I wade into the precedential abyss.
The parties focus their argument primarily on the Court’s two most recent relevant
decisions: Bowles v. Russell and Henderson v. Shinseki. In Bowles, a sharply divided Court
invoked the jurisdictional nature of statutory time limits in denying a defendant’s right to appeal
from a district court’s denial of his petition for habeas corpus review. 551 U.S. 205, 210-13
(2007). The Court reached this seemingly harsh result even though the defendant’s failure to
comply with the statutory deadline resulted directly from the district court’s error. In a vigorous
dissent, Justice Souter questioned the majority’s abandonment of the Court’s recent efforts to
“confine jurisdictional rulings to jurisdiction proper.” Id. at 216. Quite presciently, Justice
Souter observed that “limits on the reach of federal statutes, even nontemporal ones, are only
jurisdictional if Congress says so . . . .” Id.
Astonishingly, and somewhat confoundingly, a unanimous Court seemed to adopt Justice
Souter’s dissenting opinion in Bowles four years later in Henderson. Echoing Justice Souter, the
Court noted its attempt in recent cases “to bring some discipline to the use of [the term
“jurisdictional”].” Henderson, 131 S. Ct. 1197, 1202 (2011). Begging the question, the Court
noted that “a rule should not be referred to as jurisdictional unless it governs a court’s
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adjudicatory capacity, that is, its subject-matter or personal jurisdiction.” Id. Although the court
did not fully retreat from its seemingly unequivocal holding in Bowles, it did recognize an
exception for rules properly classified as “claim-processing rules.” Id. at 1203. Such rules, the
Court stated, are those which “seek to promote the orderly progress of litigation by requiring that
the parties take procedural steps at certain specified times.” Id. The Court noted, however, that
its own classification of a rule is not dispositive; “Congress is free to attach the conditions that go
with the jurisdictional label to a rule that we would prefer to call a claim-processing rule.” Id.
According to the Court, in order to determine whether a rule is truly jurisdictional,
reviewing courts should ascertain whether “there is any ‘clear’ indication that Congress wanted
the rule to be ‘jurisdictional.’” The Court’s enclosure of the word clear with quotation marks is
telling; seldom does Congress reveal its intent with any degree of clarity. In recognition of the
familiar challenge of discerning Congressional intent from the text of a statute, the Court noted
that “Congress, of course, need not use magic words in order to speak clearly on this point.
‘[C]ontext, including this Court’s interpretation of similar provisions in many years past, is
relevant.’” Id. (quoting Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1248 (2010)).
Unsurprisingly, the parties urge divergent interpretations of the Court’s decision in
Henderson. Mr. Barrie argues that Henderson loosens the stringent jurisdictional restrictions
imposed in Bowles, requiring me to consider the 60-day filing deadline within the context of the
EEOCIPA as a whole in order to determine whether Congress intended the filing deadline to be
jurisdictional. The Department of Labor, on the other hand, argues that Henderson and Bowles
are readily distinguishable, in essence representing the culmination of two separate lines of cases.
According to the Department of Labor, the key distinction between these cases is the fact that the
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review provision at issue in Henderson limited a claimant’s right to appeal an adverse decision to
an Article I tribunal, while Bowles addressed Congressional limits on the right to appeal an
adverse decision to an Article III court. Because the EEOICPA provides for judicial review of
adverse decisions by Article III courts, the Department of Labor agues that the Bowles line of
cases governs Mr. Barrie’s challenge and Henderson is inapposite.
Although I am sympathetic to Mr. Barrie’s situation, the distinction posited by the
Department of Labor is well-taken. Indeed, it provides the only discernible means of reconciling
the Court’s otherwise haphazard jurisprudence. The distinction between Article I tribunals and
Article III courts is not, however, merely one of convenience. In fact, it is essential to the
separation of powers dictated by the Constitution. As Justice Thomas noted in Bowles:
Within constitutional bounds, Congress decides what cases the federal courts
have jurisdiction to consider. Because Congress decides whether federal courts
can hear cases at all, it can also determine when, and under what conditions,
federal courts can hear them. Put another way, the notion of “subject-matter”
jurisdiction obviously extends to classes of cases falling within a court’s
adjudicatory authority, but it is no less “jurisdictional” when Congress prohibits
federal courts from adjudicating an otherwise legitimate “class of cases” after a
certain period has elapsed from final judgment.
551 U.S. at 213.5 The EEOICPA requires that a claimant appeal an adverse decision to an
Article III court within 60 days after the date on which the Final Appeals Board’s decision
becomes final. Accordingly, Bowles governs Mr. Barrie’s appeal, and the Court’s decision
leaves no room for doubt. The EEOICPA’s 60-day filing deadline is jurisdictional. Because Mr.
Barrie filed his claim after the expiration of the 60-day filing deadline, his claim is time-barred
and I lack jurisdiction over his complaint.
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The more relaxed approach taken by the Court in Henderson is most likely due to the
fact that there are no similar constitutional limitations on congressionally created Article I
tribunals.
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CONCLUSION
I recognize the harshness of denying Mr. Barrie relief because he missed the statutorily
imposed filing deadline by one day. This result is, however, dictated by the separation of powers
inherent in the Constitution. Mr. Barrie’s failure to timely file his complaint defeats jurisdiction
in this matter, and I may not apply equitable doctrines in circumvention of this express
Congressional limitation on my jurisdiction. Accordingly, Defendant’s Motion to Dismiss is
GRANTED. All parties shall bear their own fees and costs.
Dated: August 17, 2011
BY THE COURT:
s/John L. Kane
Senior U.S. District Judge
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