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)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
DISTRICT OF NEVADA
8
***
)
)
)
)
)
)
)
)
)
)
)
9
WILLIAM G. LOTT
10
Plaintiff,
11
v.
12
U.S. DEPARTMENT OF LABOR,
13
Defendant.
3:12-CV-0228-LRH-VPC
ORDER
14
15
Before the court is defendant the U.S Department of Labor, Division of Energy Employees
16
Occupational Illness Compensation’s (“Labor”) motion to dismiss for lack of subject matter
17
jurisdiction. Doc. #7.1 Plaintiff William G. Lott (“Lott”) filed an opposition (Doc. #9) to which
18
Labor replied (Doc. #10).
19
I.
20
Facts and Procedural History
Plaintiff Lott initiated the underlying civil action seeking judicial review of defendant
21
Labor’s final administrative determination regarding his eligibility for certain wage-loss benefits
22
under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000
23
(“EEOICPA”), as amended, 42 U.S. § 7384 et seq. Doc. #1.
24
///
25
26
1
Refers to the court’s docket number.
1
EEOICPA is a federal compensation statute for employees of the Department of Energy, its
2
predecessor agencies, and certain contractors, subcontractors, and vendors who incurred illness as a
3
result of their exposure to radiation and other toxic substances at facilities covered under the act.
4
Pursuant to Part E of EEOICPA, covered employees are eligible to be awarded payment of medical
5
expenses and/or variable monetary compensation based upon an employee’s level of permanent
6
impairment and/or qualifying calendar years of wage-loss.
7
An individual asserting entitlement benefits under EEOICPA must file a claim with
8
defendant Labor’s Office of Workers’ Compensation Programs. 20 C.F.R. §§ 30.100 and 30.101
9
(2012). The office reviews the claim and issues a recommendation. After the office’s
10
recommendation, the claimant may file written objections within sixty (60) days. The
11
recommendation, along with any objections, are then submitted to the Office of Workers’
12
Compensation Programs Final Adjudication Branch which issues a final agency decision on the
13
claim. A dissatisfied claimant may then seek judicial review of the agency’s decision, but must file
14
the petition for judicial review within sixty (60) days of the agency’s final decision. 42 U.S.C.
15
§ 7385s-6(a).2
16
Lott filed an initial claim with defendant Labor under Part E of EEOICPA. On February 11,
17
2011, Labor issued its final decision denying his wage-loss claim. Doc.#1, Exhibit 1. Subsequently,
18
on April 25, 2012, more than sixty days after the final decision, Lott filed the underlying action for
19
judicial review. Doc. #1. Thereafter, Labor filed the present motion to dismiss for lack of
20
jurisdiction. Doc. #7.
21
II.
22
23
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
24
25
26
2
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).
2
1
unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville
2
Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).
3
Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a claim for lack
4
of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Although the defendant is the moving party
5
in a motion to dismiss, the plaintiff is the party invoking the court’s jurisdiction. As a result, the
6
plaintiff bears the burden of proving that the case is properly in federal court. McCauley v. Ford
7
Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors Acceptance Corp.,
8
298 U.S. 178, 189 (1936)).
9
III.
Discussion
10
In its motion, defendant Labor argues that the court is without jurisdiction to hear Lott’s
11
petition for judicial review because it was not filed within the sixty day period after the agency’s
12
final decision. See Doc. #7.
13
The court has reviewed the documents and pleadings on file in this matter and finds that
14
although Lott filed the present complaint outside of the sixty day deadline, he is entitled to
15
equitable tolling of the jurisdictional period. First, the court notes that Lott filed a timely, initial
16
civil action for judicial review of Labor’s decision within the sixty day period. See Lott v. U.S.
17
Dep’t of Labor, Case no. 3:11-cv-0258-ECR-WGC. Although that action was eventually dismissed
18
for Lott’s failure to obtain and serve a summons, Lott did serve Labor with a copy of his petition
19
for judicial review. As such, Labor was on notice of Lott’s intent to seek judicial review of its final
20
decision. Second, the court notes that Lott filed the present action less than two (2) weeks after his
21
initial action was dismissed on service of process grounds. Thus, the court finds that Labor would
22
not be prejudiced by allowing the petition to move forward. Therefore, the court finds that
23
equitable tolling is appropriate under these circumstances and shall deny Labor’s motion to dismiss
24
for lack of jurisdiction accordingly.
25
///
26
3
1
2
IT IS THEREFORE ORDERED that defendant’s motion to dismiss for lack of subject
matter jurisdiction (Doc. #7) is DENIED.
3
IT IS SO ORDERED.
4
DATED this 28th day of January, 2013.
5
6
__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?