Todd v. U.S. Department of Labor, Employment Standards Administration, Office of Workers Compensation Programs, Division of Energy Employees Occupational Illness Compensation, Final Adjudication Branch

Filing 44

MEMORANDUM OPINION & ORDER by Judge Greg N. Stivers on 5/13/2016 Dismissing Case. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:14-CV-00164-GNS-LLK

NETTIE M. TODD

PLAINTIFF

v.

U.S. DEPARTMENT OF LABOR

DEFENDANT

MEMORANDUM OPINION & ORDER
Plaintiff brings this action for review of the Department of Labor decisions denying her
claims for compensation under the Energy Employees Occupational Illness Compensation
Program Act of 2000 (“EEOICPA” or “Act”), 42 U.S.C. §§ 7384 to 7385s-16. Because the only
decision for which review is available is not arbitrary or capricious, Plaintiff’s claim is
DENIED. As such, Defendant’s Motion for District Court Review of Magistrate’s Ruling (DN
39) and Plaintiff’s Motion to Strike (DN 41) are DENIED AS MOOT.
I.

STATEMENT OF FACTS AND CLAIMS

This matter comes before the Court regarding the challenge of Plaintiff Nettie M. Todd
(“Todd”) to the denial of benefits to her under the EEOICPA. (Compl. ¶ 3, DN 1). The
Department of Labor (“Department”) administers the compensation program that the statute
creates. Todd’s husband purportedly worked from January 1, 1952 to June 30, 1952, at the
Paducah Gaseous Diffusion Plant (“PGDP”). (Pl.’s Br. Ex. 3, at 3, DN 25-2). According to
Plaintiff’s complaint, Todd’s husband was exposed to hazardous substances, specifically
beryllium, that ultimately resulted in chronic beryllium disease (“CBD”). (Compl. ¶ 5). Todd
claims she is entitled to compensation and benefits under EEOICPA Part B. (Compl. ¶ 15).

After denying her initial claim, the Department denied her request to re-open the decision on
June 17, 2014. (Compl. ¶ 17).
II.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1331 as a federal question under the
Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-706, is presented.
III.

STANDARD OF REVIEW

Where no statutory provisions provide otherwise, administrative decisions are reviewed
under the APA. 5 U.S.C. § 704. Courts reviewing administrative action under the APA may
only set aside decisions that are “arbitrary, capricious, an abuse of discretion or otherwise not in
accordance with law . . . . .” 5 U.S.C. § 706(2)(A). “Under this APA standard, the reviewing
court ‘must consider whether the decision was based on a consideration of the relevant factors
and whether there has been a clear error of judgment.’” Ky. Waterways All. v. Johnson, 540 F.3d
466, 473 (6th Cir. 2008) (quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989)).
“The arbitrary and capricious standard is the most deferential standard of judicial review of
agency action, upholding those outcomes supported by a reasoned explanation, based upon the
evidence in the record as a whole.” Mich. Bell Tel. Co. v. MCIMetro Access Transmission
Servs., Inc., 323 F.3d 348, 354 (6th Cir. 2003) (citation omitted). Those contesting an agency’s
decision must “show that the action had no rational basis or that it involved a clear and
prejudicial violation of applicable statutes or regulations.” Coal. for Gov’t Procurement v. Fed.
Prison Indus., Inc., 365 F.3d 435, 475 (6th Cir. 2004) (citation omitted) (internal quotation
marks omitted). “If there is any evidence to support the agency’s decision, the decision is not
arbitrary or capricious.” Whaley v. U.S. Dep’t of Labor, No. 3:07-CV-212, 2008 WL 2446680,
at *3 (E.D. Tenn. June 17, 2008) (quoting Coal. for Gov’t Procurement, 365 F.3d at 475).
“When it is possible to offer a reasoned explanation, based on the evidence, for a particular
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outcome, that outcome is not arbitrary or capricious.” Perry v. United Food & Commercial
Workers Dist. Unions 405 & 442, 64 F.3d 238, 242 (6th Cir. 1995) (citation omitted) (internal
quotation marks omitted).
IV.

DISCUSSION

Todd seeks review both of the denial of her Part B claim and the denial of the request to
reopen that claim. (Pl.’s Br., DN 25). Because this Court lacks jurisdiction to review the denial
of the request to reopen, this ruling is limited to the final decision. Nonetheless, because denial
of the request to reopen illustrates the fallacy of Todd’s arguments, it is briefly addressed below.
In short, compensation was denied not because of a failure to link the decedent’s CBD to his
exposure at PGDP, but for failure to establish his diagnosis with CBD in the first place.
A.

Requests to Reopen Are Unreviewable

In accordance with the Court’s earlier decisions in Lanier v. U.S. Department of Labor,
No. 5:14-CV-228-GNS-LLK, 2015 WL 3607650 (W.D. Ky. June 8, 2015), and Berry v. U.S.
Department of Labor, No. 5:14-CV-168-GNS, 2015 WL 1638495 (W.D. Ky. Apr. 13, 2015),
requests to reopen the EEOICPA Part B claims are not subject to judicial review. See Berry,
2015 WL 3607650, at *2-4; Lanier, 2015 WL 1638495, at *3-4 (citing Cottrell v. Sullivan, 987
F.2d 342 (6th Cir. 1992)). Todd cites the recent U.S. Supreme Court case in Perez v. Mortgage
Bankers Association, 135 S. Ct. 1199 (2015), for the proposition that her request to reopen is
reviewable. (Pl.’s Reply Br. 3, DN 27). Perez does not support Todd’s position. The Perez
Court held that a D.C. Circuit judicial doctrine which forced agencies to reinterpret rules through
formal notice-and-comment process was invalid under the APA, 5 U.S.C. §§ 500-596. Perez,
135 S. Ct. 1199, 1207-10. This ruling makes it easier for agencies to change their interpretive
rules which works against Todd’s position. Todd’s reliance upon the basics of administrative

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law recited in that opinion does not change the outcome in this instance. Todd also cites Kucana
v. Holder, 558 U.S. 233 (2010), relating the statutory right to reopen with the regulatory right to
reopen at issue here. (Pl.’s Reply Br. 8). Todd largely ignores the significant differences
between a statutory right to reopen and the regulatory one at issue in the present case. Kucana
indicates that a statutory right administered by an agency is subject to judicial review, absent
explicit preclusion. Without this statutory right, judicial review is unavailable.
This Court reads the Kucana decision in its specific statutory and historical context.
Kucana noted the lengthy history of federal court review of denials of requests to reopen
immigration proceedings (“back to at least 1916”), including its own opinions. Id. at 242. The
historical, contextual, and statutory factors that guided the Court in Kucana are not present in the
EEOICPA claims.

Further, Kucana’s analysis focused on the specific statutory language

proscribing judicial review of certain other agency decisions under the statute. Id. at 243-53.
Absent a statute providing plaintiffs procedural rights or limiting judicial review in the case at
bar, Kucana offers little guidance. This conclusion parallels the Sixth Circuit’s holding in Your
Home Visiting Nurse Services, Inc. v. Secretary of Health & Human Services, 132 F.3d 1135 (6th
Cir. 1997), that no presumption of judicial review is warranted when an agency has created
adjudicatory procedures beyond that required in the governing statute. Id. at 1140. In Your
Home Visiting Nurse Services, Inc., the court deferred to the agency’s interpretation of
jurisdiction in finding that none existed. Id. at 1139. That same conclusion, even absent
heightened deference, applies with equal force in this case.
B.

Part E Claims

Under the EEOICPA, final decisions of DOL are reviewable under Part E as follows:
A person adversely affected by a final decision of the Secretary under [Part E]
may review that order in the United States district court . . . . by filing in such
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court 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 . . . . Upon
such filing, the court shall have jurisdiction over the proceeding and shall have the
power to affirm, modify, or set aside, in whole or in part, such decision.
42 U.S.C. § 7385s-6(a).
This Court has previously ruled that compliance with the 60-day filing deadline under
Section 7385s-6(a) is a jurisdictional prerequisite for judicial review of the DOL’s final decisions
denying claims under Part E. See Lanier, 2015 WL 1638495, at *2-3. Here, the Department’s
July 15, 2011 decision denied Todd’s Part B claim for her husband’s alleged CBD and her Part E
claim for his death allegedly due to CBD, which ruling became final on September 14, 2011.
(Administrative R. 240-248, 196 [hereinafter AR]). Under 42 U.S.C. § 7385s-6(a), this Court’s
jurisdiction to review that denial expired 60 days after September 14, 2011. Todd’s request for
review was filed with this Court almost three years later on August 20, 2014, well beyond 60
days after the decision became final. Thus, the Court lacks jurisdiction to review the decision
denying her Part E claim.
C.

Arbitrary and Capricious Review

Part B of the EEOICPA does not contain any specific provision either allowing for or
precluding judicial review. This Court has federal question jurisdiction to review DOL’s final
decisions to deny claims for benefits under Part B of the EEOICPA pursuant to 28 U.S.C. §
1331. Califano v. Sanders, 430 U.S. 99, 105 (1977). Since the EEOICPA is silent on the
procedures to be employed in adjudicating claims for compensation under the Act, courts have
employed the APA’s “arbitrary or capricious” standard when reviewing the DOL’s final
decisions denying claims for compensation under Part B of the EEOICPA. See Yatsko v. U.S.
Dep’t of Labor, 439 F. App’x 122, 124 (3d Cir. 2011); Hayward v. U.S. Dep’t of Labor, 536
F.3d 376, 379-80 (5th Cir. 2008) (per curiam). Under the APA’s “arbitrary or capricious”
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standard, a reviewing court “must consider whether the decision was based on a consideration of
the relevant factors and whether there has been a clear error of judgment.” Johnson, 540 F.3d at
473 (citation omitted).
Todd argues “[t]he Record clearly establishes that [the decedent] had Chronic Beryllium
Disease . . . .” (Pl.’s Br. 7). Even if this were true, this is not the standard to evaluate the
Department’s actions. Todd must “show that the action had no rational basis or that it involved a
clear and prejudicial violation of applicable statutes or regulations.”

Coal. for Gov’t

Procurement, 365 F.3d at 475. Todd has made no such showing.
The EEOICPA establishes a statutory diagnostic standard for CBD:
For diagnoses before January 1, 1993, the presence of—
(i) occupational or environmental history, or epidemiologic evidence of
beryllium exposure; and
(ii) any three of the following criteria:
(I) Characteristic chest radiographic (or computed tomography
(CT)) abnormalities.
(II) Restrictive or obstructive lung physiology testing or diffusing
lung capacity defect.
(III) Lung pathology consistent with chronic beryllium disease.
(IV) Clinical course consistent with a chronic respiratory disorder.
(V) Immunologic tests showing beryllium sensitivity (skin patch
test or beryllium blood test preferred).
42 U.S.C. § 7384l(13)(B). Generally, when the documentation purporting to establish CBD is
dated before 1993, the pre-1993 statutory definition may be used. See Federal (EEOICPA)
Procedure Manual, ch. 2-1000.6 (“depends on the totality of the medical evidence”).1 The
EEOICPA Procedure manual provides a list on documentation which the DOL may base a
finding of a clinical course consistent with CBD. Here, Todd’s husband worked at PGDP and
was diagnosed with lung defects prior to 1993. (AR 454). Therefore, the DOL properly applied
the pre-1993 statutory definition using his medical documentation. The parties neither dispute
1

http://www.dol.gov/owcp/energy/regs/compliance/PolicyandProcedures/proceduremanualhtml/u
nifiedpm/Unifiedpm_part2/Chapter2-1000EligibilityCriteria.htm (last accessed 4/11/2016).
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that this is the applicable statutory definition nor that Todd’s husband satisfies the occupational
history requirement. He was employed at a covered facility where beryllium was present. (AR
95). Therefore, the employee meets the occupational requirement of criterion (i).
The Department’s final decision found two of five criteria were satisfied for a pre-1993
diagnosis. Criterion (II) was satisfied as the decedent exhibited a diffused lung capacity defect.
(Def.’s Br. 10).

Criterion (IV) was met because the decedent exhibited a clinical course

consistent with a chronic respiratory disorder. (Def.’s Br. 10). Three of the five criterion must
be met, however, to diagnose pre-1993 CBD under the statute. 42 U.S.C. § 7384l(13)(B).
Todd argues Criterion (I) (characteristic chest radiographic abnormalities) is also
satisfied. She points out that the Department’s procedure manual lists lung abnormalities as one
of the diagnostic indicators of CBD, and that the decedent’s medical records include effusion and
pneumonia. (Pl.’s Br. 10-13). She points to other findings in the medical records that the
Department’s guidelines list as indicative of CBD. Those findings, however, are not dispositive
of a CBD diagnosis because the Department’s guidelines provide that the diagnostic findings are
merely consistent with, rather than conclusive of CBD. Federal (EEOICPA) Procedure Manual,
ch. 2-1000.6(c) (“[T]he DEEOIC staff accepts these diagnostic findings as either being
characteristic of or denoting abnormalities consistent with CBD.” (emphasis added)). This
qualification is not present in all indicators listed which reflects the Department’s conclusion that
those particular findings do not always evidence the “characteristic chest radiographic
abnormalities” required to diagnose CBD by statute.
The Department had a medical consultant examine Todd’s husband’s x-rays and other
diagnostic scans to determine whether criterion (I) was met. Examining all available reports, the

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consultant concluded the available chest radiography does not show characteristic abnormalities
of CBD (AR 240-242).
This Court concludes the Department’s decision was neither illogical nor in
contravention of its published procedures.

The procedure manual which Plaintiff cites as

contradictory to the medical consultants’ results does not dictate that the results indicated always
meet criterion (I). The medical consultant’s explanation for determining some findings were
inconsistent with CBD was explained logically, and the Department’s decision followed from the
conclusions of these medical consultants. (AR 897). “The court is not empowered to substitute
its judgment for that of the agency.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402,
416 (1971). Because the Department’s decision was based on a consideration of the relevant
factors and there was no clear error of judgment, the decision is neither arbitrary nor capricious.
Id. Therefore, all arguments based on the presumption that Plaintiff was improperly denied
benefits based on her husband’s CBD are moot.
D.

Special Exposure Cohort Status Is Irrelevant

Todd argues the Department erred in its decision because the decedent’s employment at
the PGDP qualified him as a member of the Special Exposure Cohort (“SEC”). (Pl.’s Reply Br.
6). Among other workers, those who worked at the PGDP for at least 250 days prior to February
1, 1992, (with special exposure requirements) are included in this group.

42 U.S.C. §

7384l(14)(A). Inclusion entitles members who contract specified cancers to compensation under
EEOICPA Part B without an additional demonstration of causation. 42 U.S.C. § 7384l(9)(A).
SEC status is irrelevant to Todd’s claim for two reasons. First, SEC status is relevant
only for compensation for cancer. SEC members are “a class of employees at any Department of
Energy facility who likely were exposed to radiation at that facility but for whom it is not

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feasible to estimate with sufficient accuracy the radiation dose they received.” 42 U.S.C. §
7384q(a)(1). Inclusion in the group exempts members from demonstrating causation of cancer
from radiation through a radiation dose reconstruction.2

Because this judicial review

encompasses only Todd’s claim for CBD—not her prior claim for cancer—SEC status is
irrelevant to this analysis. Second, employment history and SEC status are irrelevant because the
statutory definition of CBD assumes causation once the disease has been diagnosed and the
covered employee worked “for at least one day” at a covered facility.

See 42 U.S.C. §

7384l(13)(B)(i); Federal (EEOICPA) Procedure Manual ch. 2-1000.4. If Todd’s husband had
been found to have CBD, his work at the PGDP would have been assumed to be the cause. His
claim was denied not due to lack of causation of the CBD, but because he was not diagnosed
with CBD in the first place.
V.

CONCLUSION

Todd’s husband’s medical records did not establish the statutory criteria for a diagnosis
of CBD. The Department’s decisions so concluding were logical and based on evidence in the
record, so that its decision was not arbitrary and capricious. Consequently, Todd’s claim was
properly denied, and this case must be DISMISSED. As such, Defendant’s Motion for District
Court Review of Magistrate’s Ruling (DN 39) and Plaintiff’s Motion to Strike (DN 41) are
DENIED AS MOOT.

Greg N. Stivers, Judge
United States District Court
cc:

counsel of record

May 13, 2016

2

http://www.dol.gov/owcp/energy/regs/compliance/law/SEC-Employees.htm (accessed
4/12/2015).
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