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Young v. United States Department of Labor

United States District Court, District of Columbia

August 16, 2018

SHANNON YOUNG and KEVIN YOUNG, Plaintiffs,
v.
U.S. DEPARTMENT OF LABOR and U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants.

          MEMORANDUM OPINION

          JOHN D. BATES, UNITED STATES DISTRICT JUDGE

         Shannon and Kevin Young, sons of a former Department of Energy (“DOE”) contract employee, seek to set aside a Department of Labor (“DOL”) decision denying them benefits under the Energy Employees Occupational Illness Compensation Program Act (“EEOICPA”), 42 U.S.C. § 7384 et seq. DOL denied plaintiffs' claims after finding a less-than-even chance that their father's cancer was caused by radiation exposure during his employment. Plaintiffs argue that DOL based its decision on an inaccurate radiation dose reconstruction prepared by the National Institute for Occupational Safety and Health (“NIOSH”), a component agency of the Department of Health and Human Services (“HHS”). DOL used this dose reconstruction to calculate a probability of causation (“POC”) of 49.18%, just shy of the 50% required for compensation. Plaintiffs ask the Court to set aside DOL's decision, order HHS to prepare a new dose reconstruction, and order DOL to readjudicate plaintiffs' claim using the updated reconstruction. The government seeks to dismiss HHS as a party for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). For the reasons that follow, the government's motion will be granted.[1]

         BACKGROUND

         Congress passed the EEOICPA in 2000 to ensure that former DOE and DOE contract employees who “performed duties uniquely related to the nuclear weapons production and testing programs” receive “efficient, uniform, and adequate compensation for . . . radiation-related health conditions.” 42 U.S.C. § 7384(a)(8). Part B of the EEOICPA provides, among other things, for a payment of $150, 000 to survivors of employees who have died from cancer related to radiation exposure in the performance of their duties at DOE “covered facilities.” Id. §§ 7384l(1)(B), (9), 7384n(b), 7384s(a)(1). DOL determines eligibility and adjudicates claims for EEOICPA compensation and benefits through the Office of Workers Compensation Programs (“OWCP”). See Exec. Order. No. 13, 179, 65 Fed. Reg. 77, 487 (December 7, 2000); 20 C.F.R. § 30.1. To be eligible for compensation for radiogenic cancer-related illness, an employee or survivor must show (1) that the employee was diagnosed with cancer; (2) that he was a DOE employee or contractor who contracted cancer after employment at a covered facility; and (3) that the cancer was “at least as likely as not” related to his employment at the covered facility, or that the POC was at least fifty percent. 20 C.F.R. §§ 30.210-.213; see 42 U.S.C. § 7384n(b).

         For the third criterion, causation, OWCP relies on dose reconstructions prepared by NIOSH. 42 C.F.R. § 82.26. Dose reconstructions are “reasonable estimates of the radiation doses received by individuals . . . for whom there are inadequate records of radiation exposure.” Exec. Order No. 13, 179, 65 Fed. Reg. at 77, 488; see 42 U.S.C. § 7384n(d)(1). NIOSH uses radiation monitoring data from various sources to estimate the dosages of individual employees. 42 C.F.R. §§ 82.2, 82.14. Without sufficient data, NIOSH cannot prepare dose reconstructions. Id. § 82.12. OWCP uses NIOSH dose reconstructions with other information including medical evidence “to calculate an estimated [POC].” 42 C.F.R. § 82.4; 20 C.F.R. §§ 30.213(a)-(b), 30.305; see 42 U.S.C. § 7384n(d)(1). A POC greater than or equal to fifty percent satisfies the third criterion for compensation under the EEOIPCA. 20 C.F.R. § 30.213. OWCP also presumes causation for members of “Special Exposure Cohorts” (“SECs”), who “likely were exposed to radiation” but were inadequately monitored such that “it is not feasible to estimate with sufficient accuracy the dose they received.” 42 U.S.C. §§ 7384(9)(A), 7384q; see 42 C.F.R. § 82.12(d) (“[A] claimant for whom a dose reconstruction cannot be completed . . . may have recourse to seek compensation under provisions of the [SEC].”).[2]

         After determining POC, OWCP issues a recommended decision; a claimant may object within sixty days to OWCP's Final Adjudication Branch (FAB). 20 C.F.R. § 30.310(a). FAB then issues a “Final Decision, ” although a claimant may request reconsideration within thirty days and the EEOICP Director can reopen the claim as a matter of discretion. Id. §§ 30.316, 30.319, 30.320.

         Arnold Young, plaintiffs' father, was a DOE contract employee at Electro Metallurgical Company (“Electro Metallurgical”) from 1941 to 1945 and at another facility from 1956 to 1971. Compl. [ECF No. 1] ¶¶ 4, 61; Notice of Final Decision Following a Hr'g, Ex. 1 to Compl. (“Final Decision”) [ECF No. 1-6] at 1. Both were covered DOE facilities under the EEOICPA. Final Decision at 1. Young was diagnosed with prostate cancer on March 21, 1984 and died on August 5, 1985. Id. Dorothy Young, plaintiffs' mother, filed a claim for benefits under Part B of the EEOICPA as his surviving spouse. See id.; Defs.' Reply to Pl.'s Opp'n to Mot. to Dismiss (“Gov't's Reply”) [ECF No. 14] at 9. Her claim was denied on April 18, 2012 because DOL, using a 2011 NIOSH dose reconstruction, determined that the POC that Young's cancer was related to his employment was “less than the 50% or greater threshold.” Final Decision at 2-3 & n.1; see 2011 NIOSH Report of Dose Reconstruction Under the EEOICPA, Ex. B to Gov't's Reply [ECF No. 14-2] at 4.

         In May 2012, HHS designated an SEC class at Electro Metallurgical for certain employees who worked between August 13, 1942 and December 31, 1947. See HHS Designation of Addt'l Members of the SEC under the EEOICPA, Ex. E to Gov't's Reply [ECF No. 14-5] at 2. NIOSH reviewed the effects of this change on previously-completed claims and determined that twenty-five of these claims met the criteria for SEC inclusion while thirty-nine did not. See Div. of Comp. Analysis and Supp., Program Evaluation Report: Electro Metallurgical Co., Ex. F to Def.'s Reply (“SEC Program Evaluation Report”) [ECF No. 14-6] at 1-2. Because Mr. Young was not diagnosed with a covered cancer, he was not included in the SEC. See 2016 NIOSH Report of Dose Reconstruction Under the EEOICPA, Ex. H to Gov't's Reply (“2016 Dose Reconstruction”) [ECF No. 14-8] at 2, 6; see also 20 C.F.R. § 30.5(ff). However, the SEC designation had affected NIOSH dose reconstructions for all Electro Metallurgical employees, including those not eligible for the SEC. NIOSH generated a new “technical basis document” to use in preparing dose reconstructions for Electro Metallurgical workers. See Div. of Comp. Analysis and Supp., Tech. Basis Doc. For the Electro Metallurgical Co., Ex. G to Def.'s Reply (“Rev. 01”) [ECF No. 14-7] at 4. Because NIOSH concluded “that it is not feasible to estimate internal exposures with sufficient accuracy for all workers at the site, ” it eliminated the use of dose reconstruction for internal exposure. Id. at 4. At the same time, the revised technical basis document led to “an increased external dose estimate for all claims completed using” a previous technical basis document. SEC Program Evaluation Report at 1.

         In 2014, plaintiffs filed separate claims under Part B and Part E of EEOICPA as surviving children of a covered employee. Final Decision at 1. On December 6, 2016, NIOSH prepared a new dose reconstruction for Young using the new technical basis document. Compl. ¶ 67; see 2016 Dose Reconstruction. Under the new guidelines, Young's 2016 reconstruction did not include an estimate of his internal radiation dose from August 13, 1942 to December 31, 1947 but did “increase his external dose estimate” and, as a result, his total dose estimate increased from the 2011 reconstruction. Compl. ¶ 6 (citing 2016 Dose Reconstruction at 5). However, even with the newly-increased total dose, OWCP calculated Young's POC at 49.18%. Final Decision at 3; Compl. ¶ 68. Based in part on this POC, OWCP recommended that plaintiffs' claims be denied on January 26, 2017. Final Decision at 3. Plaintiffs objected to the denial and the reconstruction, arguing that NIOSH had used insufficient data, and requested a hearing. Id. After an independent review, FAB issued a Final Decision denying plaintiffs' claims on September 12, 2017. Id. at 1, 4-7; Compl. ¶ 14.

         Plaintiffs then brought this lawsuit, asking the Court to compel DOL to readjudicate their claims after a “complete dose reconstruction” by HHS. Compl. ¶ 105. Plaintiffs assert that NIOSH “lacked the statutory authority” to refuse to calculate an internal dose for the period from August 13, 1942 to December 31, 1947. Id. ¶ 7. The government now seeks to dismiss plaintiffs' claims against HHS for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The government argues that plaintiffs have not challenged a “final agency action” as required under the Administrative Procedure Act (APA) and have thus failed to overcome HHS's sovereign immunity. Defs.' Mot. to Dismiss [ECF No. 8] at 2; Gov't's Reply. Plaintiffs contend that this Court has subject-matter jurisdiction because they are challenging HHS's decision to apply the standard for determining a SEC-“a finding that it is not ‘feasible' to perform a dose estimate with ‘sufficient accuracy'”-to individuals who do not qualify for SEC compensation. See Pls.' Mem. in Opp'n to Defs.' Mot. to Dismiss (“Pls.' Opp'n”) [ECF No. 12] at 19 (quoting 42 U.S.C. § 7384q). The government's motion to dismiss is now fully briefed and ripe for decision.

         LEGAL STANDARD

         “Federal courts are courts of limited jurisdiction” and “possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). On a Rule 12(b)(1) motion, “the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence.” Judicial Watch, Inc. v. Nat'l Archives & Records Admin., 845 F.Supp.2d 288, 294 (D.D.C. 2012) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). “It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1105 (D.C. Cir. 2005) (citation omitted). Likewise, “‘[d]efects of standing' constitute ‘defects in subject matter jurisdiction.'” Abulhawa v. U.S. Dep't of the Treasury, 239 F.Supp.3d 24, 31 (D.D.C. 2017) (alterations and citation omitted). “The plaintiff must demonstrate standing for each claim . . . and for each form of relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S.Ct. 1645, 1650 (2017) (citation and quotation marks omitted).

         At the motion-to-dismiss stage, plaintiffs must plead facts that, taken as true, render it plausible that the Court has subject-matter jurisdiction. See Humane Soc'y of the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015). The Court must take all facts alleged in the ...


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