United States District Court, District of Columbia
D. BATES, UNITED STATES DISTRICT JUDGE
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.
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. §
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
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.
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.
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.
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.
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.
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).
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 ...