Lott v. U.S. Department of Labor

Filing 13

ORDER denying 7 Motion to Dismiss. Signed by Judge Larry R. Hicks on 1/28/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WILLIAM G. LOTT

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Plaintiff,

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v.

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U.S. DEPARTMENT OF LABOR,

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Defendant.

3:12-CV-0228-LRH-VPC
ORDER

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Before the court is defendant the U.S Department of Labor, Division of Energy Employees

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Occupational Illness Compensation’s (“Labor”) motion to dismiss for lack of subject matter

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jurisdiction. Doc. #7.1 Plaintiff William G. Lott (“Lott”) filed an opposition (Doc. #9) to which

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Labor replied (Doc. #10).

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I.

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Facts and Procedural History
Plaintiff Lott initiated the underlying civil action seeking judicial review of defendant

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Labor’s final administrative determination regarding his eligibility for certain wage-loss benefits

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under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000

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(“EEOICPA”), as amended, 42 U.S. § 7384 et seq. Doc. #1.

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Refers to the court’s docket number.

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EEOICPA is a federal compensation statute for employees of the Department of Energy, its

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predecessor agencies, and certain contractors, subcontractors, and vendors who incurred illness as a

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result of their exposure to radiation and other toxic substances at facilities covered under the act.

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Pursuant to Part E of EEOICPA, covered employees are eligible to be awarded payment of medical

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expenses and/or variable monetary compensation based upon an employee’s level of permanent

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impairment and/or qualifying calendar years of wage-loss.

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An individual asserting entitlement benefits under EEOICPA must file a claim with

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defendant Labor’s Office of Workers’ Compensation Programs. 20 C.F.R. §§ 30.100 and 30.101

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(2012). The office reviews the claim and issues a recommendation. After the office’s

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recommendation, the claimant may file written objections within sixty (60) days. The

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recommendation, along with any objections, are then submitted to the Office of Workers’

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Compensation Programs Final Adjudication Branch which issues a final agency decision on the

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claim. A dissatisfied claimant may then seek judicial review of the agency’s decision, but must file

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the petition for judicial review within sixty (60) days of the agency’s final decision. 42 U.S.C.

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§ 7385s-6(a).2

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Lott filed an initial claim with defendant Labor under Part E of EEOICPA. On February 11,

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2011, Labor issued its final decision denying his wage-loss claim. Doc.#1, Exhibit 1. Subsequently,

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on April 25, 2012, more than sixty days after the final decision, Lott filed the underlying action for

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judicial review. Doc. #1. Thereafter, Labor filed the present motion to dismiss for lack of

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jurisdiction. Doc. #7.

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II.

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Legal Standard
Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger,

437 U.S. 365, 374 (1978). “A federal court is presumed to lack jurisdiction in a particular case

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Compliance w ith the sixty-day filing deadline is a jurisdictional prerequisite for judicial review . See
Barrie v. U.S. Dept. of Labor, 805 F. Supp. 2d 1140, 1144 (D. Col. 2011).

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unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville

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Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).

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Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a claim for lack

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of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Although the defendant is the moving party

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in a motion to dismiss, the plaintiff is the party invoking the court’s jurisdiction. As a result, the

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plaintiff bears the burden of proving that the case is properly in federal court. McCauley v. Ford

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Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors Acceptance Corp.,

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298 U.S. 178, 189 (1936)).

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III.

Discussion

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In its motion, defendant Labor argues that the court is without jurisdiction to hear Lott’s

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petition for judicial review because it was not filed within the sixty day period after the agency’s

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final decision. See Doc. #7.

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The court has reviewed the documents and pleadings on file in this matter and finds that

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although Lott filed the present complaint outside of the sixty day deadline, he is entitled to

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equitable tolling of the jurisdictional period. First, the court notes that Lott filed a timely, initial

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civil action for judicial review of Labor’s decision within the sixty day period. See Lott v. U.S.

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Dep’t of Labor, Case no. 3:11-cv-0258-ECR-WGC. Although that action was eventually dismissed

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for Lott’s failure to obtain and serve a summons, Lott did serve Labor with a copy of his petition

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for judicial review. As such, Labor was on notice of Lott’s intent to seek judicial review of its final

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decision. Second, the court notes that Lott filed the present action less than two (2) weeks after his

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initial action was dismissed on service of process grounds. Thus, the court finds that Labor would

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not be prejudiced by allowing the petition to move forward. Therefore, the court finds that

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equitable tolling is appropriate under these circumstances and shall deny Labor’s motion to dismiss

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for lack of jurisdiction accordingly.

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IT IS THEREFORE ORDERED that defendant’s motion to dismiss for lack of subject
matter jurisdiction (Doc. #7) is DENIED.

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IT IS SO ORDERED.

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DATED this 28th day of January, 2013.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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