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Adams v. United States Department of Labor

United States District Court, D. South Carolina, Aiken Division

December 18, 2018

Tempie L. Adams, Plaintiff,
v.
United States Department of Labor, Defendant.

          ORDER AND OPINION

         Plaintiff Tempie L. Adams (“Adams”) brings this action for review of the Department of Labor's (“DOL”) denial of her claim for benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000 (“EEOICPA”), 42 U.S.C. §§ 7384- 7385s-16, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. (ECF Nos. 1, 26.) Because DOL's decisions are arbitrary and capricious under the EEOICPA and the APA, Adams' claim is REMANDED to DOL for further administrative proceedings consistent with this decision.

         I. BACKGROUND

         A. Statutory and Regulatory Background

         The EEOICPA establishes a compensation program for “covered employees” and “survivors of such employees” for “illnesses incurred . . . in the performance of duty for the Department of Energy and certain of its contractors and subcontractors.” 42 U.S.C. § 7384d(b). Congress established the compensation program because “a large number of nuclear weapons workers at sites of the Department of Energy . . . were put at risk without their knowledge and consent . . . .” 42 U.S.C. § 7384(a)(2). Additionally, Congress found that “[s]tate workers' compensation programs do not provide a uniform means of ensuring adequate compensation” for employees at nuclear sites, and “[t]o ensure fairness and equity, . . . the Department of Energy and its predecessor agencies should have efficient, uniform, and adequate compensation for beryllium-related health conditions and radiation-related health conditions.” 42 U.S.C. §§ 7384(a)(7)-(8).

         Substantively, under Part E of the EEOICPA, covered employees[1] may obtain monetary compensation for an impairment and/or wage loss due to a “covered illness contracted . . . through exposure to a toxic substance at a Department of Energy facility.” 42 U.S.C. §§ 7385s-2(a)(1)(A)(ii), (a)(2)(A)(i). As opposed to the Department of Energy (“DOE”), DOL is tasked with determining whether an individual possesses a covered illness under the EEOICPA. 42 U.S.C. § 7385s-4(c)(2). In some instances, an employee is considered to have a covered illness if he or she establishes: (1) “it is at least as likely as not that exposure to a toxic substance at a [DOE] facility was a significant factor in aggravating, contributing to, or causing the illness”; and (2) “it is at least as likely as not that the exposure to such toxic substance was related to employment at a [DOE] facility.” 42 U.S.C. §§ 7385s-4(c)(1)(A)-(B). See also 20 C.F.R. § 30.900 (stating that, in order to receive benefits under Part E of the EEOICPA, an employee must show that they are a “covered employee” who has contracted a “covered illness through exposure to a toxic substance at a DOE facility” and possess an “impairment” that is the result of the covered illness). A claimant requesting benefits must show that he or she is entitled to those benefits by a preponderance of the evidence.[2] 20 C.F.R. § 30.111(a). DOL regulations require that the preponderance of the evidence standard be met for “each and every criterion necessary to establish eligibility” for compensation under Part E of the EEOICPA. Id.

         Regarding the procedural administration of the EEOICPA, Congress explicitly authorized the President of the United States to “carry out the compensation program through one or more [f]ederal agencies or officials, as designated by the President.” 42 U.S.C. § 7384d(a). In 2000, President William J. Clinton authorized DOL to adjudicate claims for benefits and administer the compensation program under the EEOICPA. Exec. Order. No. 13, 179, 65 Fed. Reg. 77, 487 (Dec. 7, 2000). In order for an individual to claim benefits, he or she must first file a claim in writing and submit it to DOL's Office of Workers' Compensation Programs (“OWCP”). 20 C.F.R. §§ 30.5(cc), 30.100(a). An individual submitting a claim is entitled to seek benefits “for only certain conditions that are potentially compensable” under the EEOICPA. 20 C.F.R § 30.100(b).

         After submitting the necessary documents to develop a claim, the OWCP issues a recommended decision, including findings of fact and conclusions of law, as it relates to a claim. 20 C.F.R. §§ 30.300, 30.306. A claimant is permitted to file an objection with the Final Adjudication Branch (“FAB”) regarding the OWCP's recommended decision. 20 C.F.R. § 30.306. In addition to objecting to the OWCP's recommended decision, a claimant may request a live hearing before the FAB. Id. The FAB is required to consider objections to a recommended decision and issue a final decision. 20 C.F.R. §§ 30.312, 30.316(b). Upon the date of issuance of a final decision, a claimant has thirty (30) days to request the FAB to reconsider its final decision. 20 C.F.R. § 30.319(a). If a timely request for reconsideration is made, the final decision from the FAB is no longer deemed “final.” Id. A hearing is not available during the reconsideration process, but “[i]f the FAB grants the request for reconsideration, it will consider the written record of the claim again and issue a new final decision on the claim.” 20 C.F.R. § 30.319(c). However, “[i]f the FAB denies the request for reconsideration, the FAB decision that formed the basis for the request will be considered ‘final' upon the date the request is denied, and no further requests for reconsideration of that particular final decision of the FAB will be entertained.” 20 C.F.R. § 30.319(c)(2). While a claimant is barred from pursuing a second reconsideration decision, he or she may file a written request for a claim to be reopened based on “new evidence of either covered employment or exposure to a toxic substance[] . . . .” 20 C.F.R. § 30.320.

         B. Factual Background

         Adams was employed at the Savannah River Site (“SRS”), by contractors[3] for DOE, from August 28, 1978, to May 9, 2005. (ECF No. 26 at 2; ECF No. 28 at 4 n.3.) During her time at SRS, Adams was an electrical and instrumentation mechanic (“E&I mechanic”) for approximately three (3) months, a clerk/typist for approximately ten (10) years, and a financial analyst for approximately sixteen (16) years and five (5) months. (ECF No. 22-4 at 209-10.) During Adams' tenure as a financial analyst, she performed field audits as a precious metals auditor.[4] (ECF No. 22-1 at 249; ECF No. 22-4 at 63, 112, 219.) Well before initiating this suit, Adams filed claims for breast cancer and beryllium sensitivity with the OWCP.[5] (ECF No. 22-5 at 41, 159, 351.) On April 4, 2006, DOL denied Adams' claim for breast cancer. (ECF No. 22-5 at 291.) Respectively, on November 20, 2013, and June 30, 2014, Adams' claims for beryllium sensitivity were approved, and she was awarded medical monitoring benefits and sixty thousand dollars ($60, 000.00) under Part B and Part E of the EEOICPA. (Id. at 80, 233.) Along with the aforementioned claims, Adams also pursued a claim for chronic obstructive pulmonary disease (“COPD”), [6] the claim at issue, on August 28, 2014.[7] (Id. at 61.)

         Also occurring on August 28, 2014, and in support of her claim for COPD, Adams provided DOL with a bronchochallenge report, pulmonary function test (“PFT”), and a medical report from Dr. R. Hal Hughes (“Dr. Hughes”). (Id. at 61-68.) Dr. Hughes' report, from May 6, 2014, diagnosed Adams with occupational COPD and specifically opined that Adams' “[o]ccupational exposures [to beryllium] . . . at least likely as not contributed” to her occupational COPD.[8] (Id. at 65.) On February 12, 2015, DOL “was not able to establish that beryllium exposure [had] a known link to COPD” and requested that Dr. Hughes provide a “detailed [and scientific] rationalization” for his conclusion that Adams' COPD was linked to beryllium exposure. (Id. at 53.) Dr. Hughes responded to DOL on February 19, 2015, with a handwritten note, stating: “In my group of [b]eryllium sensitive patients-41% have documented asthma compared to the general population of 6% asthma. My opinion is that the asthma is occupational due to beryllium exposures.” (Id.) Once again, on May 11, 2015, Dr. Hughes diagnosed Adams with “mild COPD” and concluded “[o]ccupational exposures . . . at least as likely as not contributed to her COPD.” (Id. at 14.) After receiving more submissions from Adams regarding her occupational history, subjective complaints, and work duties, DOL confirmed her various jobs at SRS, including the length of time she spent on each specific job. (Id. at 26-37, 48; ECF No. 22-4 at 209-12.)

         Eventually, DOL engaged in several important administrative actions, all of which are relevant to this dispute. First, on March 18, 2015, DOL conducted a search on its Site Exposure Matrices (“the SEM”) in order to determine the toxic substances present at SRS and the effect of those substances on specific workers.[9] (ECF No. 22-4 at 112.) The SEM “contains information regarding scientifically established links between toxic substances and illnesses.” EEOICP Site Exposure Matrices Website-Home Page DOE Facilities and RECA Sites Data, U.S. Dep't of Labor, https://www.sem.dol.gov (last updated May 22, 2018). Quite importantly, while “DOL continually updates these relationships in [the] SEM as new disease associations are published in Haz-Map[, ] [t]he causal links shown in [the] SEM do not represent an exclusive list of the pathways necessary for an affirmative Part E causation determination.”[10] Id. (emphasis added). DOL's initial search on the SEM found that Adams was potentially exposed to, among many others, the following toxins while working at SRS: ammonia, asbestos, cement, chlorine, coal dust, diesel exhaust, nitrogen dioxide, sulfur dioxide, welding fumes, and wood dust.[11] (ECF No. 22-5 at 45-46.) At this stage, the SEM's results did not suggest that Adams was exposed to beryllium, and there is no indication that DOL conducted any inquiry into Adams' potential exposure to beryllium. (See id.)

         Second, after conducting the general, initial search on the SEM, DOL forwarded Adams' case to a certified industrial hygienist (“IH”). (ECF No. 22-4 at 102.) DOL only asked the IH whether Adams' position as an E&I mechanic would have brought her “into contact” with specific toxic substances, “how much exposure [was] likely for each substance[, ]” and the “likely exposure scenarios.”[12] (Id. at 207-08.) In regard to specific toxic substances, DOL did not question the IH about Adams' exposure to beryllium, but requested information relating to asbestos, cement, chlorine, coal dust, nitrogen dioxide, phosgene, and silicon dioxide (crystalline). (See Id. at 208.) The IH issued his report on September 28, 2015, and determined that “there [was] no evidence to suggest that [] Adams, in her capacity as an E&I mechanic, would have had significant exposures to cement, chlorine, coal dust, nitrogen dioxide, phosgene, or silicon dioxide (crystalline).” (Id. at 103, 105.) According to the IH, exposure to those toxic substances “would have been incidental in nature . . . and not significant.” (Id. at 105.) However, the IH did conclude that Adams, as an E&I mechanic for three (3) months, was “exposed to asbestos at greater than incidental levels[, ] [but] [h]er exposures to asbestos would have been infrequent in nature . . . and would have ranged from low to moderate levels.” (Id.) The IH did not make any conclusions or findings pertaining to Adams' exposure to beryllium. (See Id. at 103-105; ECF No. 22-1 at 252.)

         Third, after the assessment by the IH, DOL referred Adams' case to a contract medical consultant (“CMC”). (ECF No. 22-4 at 130.) DOL asked the CMC whether, given the IH report, Adams' work history “make[s] it at least as likely as not that exposure to toxic substances during [her] course of employment was a significant factor in aggravating, contributing to, or causing [her] claimed condition of COPD. (Id.) The CMC issued his report on October 15, 2015.[13] (Id. at 122-24.) In response to DOL's inquiries, the CMC ultimately opined that Adams' “work history does not make it at least as likely as not that exposure to toxic substances[, ] during the course of employment[, ] was a significant factor in aggravating, contributing to[, ] or causing the claimed condition of COPD.” (Id. at 124.) The CMC reached this conclusion by first reasoning that Adams did not have COPD because her PFTs failed to meet the required airflow limitation for a COPD diagnosis. (Id.) The CMC also cast doubt on the relationship between asbestos and COPD and found Adams' three (3) month exposure to asbestos to be “a trivial loss of lung function.” (Id.) The CMC did not make any findings in regard to whether Adams' exposure to beryllium would have aggravated, contributed to, or caused her occupational COPD.[14] (See id.)

         On December 9, 2015, DOL's OWCP District Office (“District Office”) in Jacksonville, Florida, issued a Recommended Decision. (ECF No. 22-4 at 111-14.) The District Office reasoned that Dr. Hughes' response “lacked credible scientific documentation” and noted that the SEM database identified the potential toxic substances, those to which Adams was exposed, with a link to COPD. (ECF No. 22-4 at 113.) The District Office further opined that the findings of the IH and CMC, expanding upon the SEM's output, revealed that “Adams' workplace exposures to toxic substances were not a significant factor in causing, contributing to[, ] or aggravating [her] COPD.” (Id.) There is no indication that the District Office possessed any scientific literature from Adams when rendering its Recommended Decision. (See id.) The District Office informed Adams of her right to object to the Recommended Decision within sixty (60) days, which would require the FAB to issue a Final Decision regarding her claim. (Id. at 115.)

         On February 3, 2016, within the sixty (60) day time limit, Adams, through her counsel, filed objections to the Recommended Decision, urged the FAB to grant her claim for COPD, and requested a live hearing. (Id. at 61, 65.) Adams primarily objected to the IH and CMC because they allegedly “failed to consider the full extent of her occupational exposure to toxic substances while working at SRS” and “all of [her] potential exposures.” (Id. at 64.) Importantly, and a central issue before the court, Adams forcefully maintained that the IH did not identify beryllium as “a potential toxic [substance]” even though it “is associated with an increased risk of developing COPD.” (Id.) In the same vein, Adams submitted that the CMC “did not consider the effect of beryllium exposure upon her development of COPD.” (Id.) The essence of Adams' objection, which remains pertinent, concerns the failure of the District Office “to adequately develop [her] claim for COPD.” (Id. at 65.) Along with her objections, Adams included two scientific articles to support her COPD claim.[15] (See Id. 67-70, 72-73 (citing Nat'l Inst. for Occupational Safety & Health, Health Concerns for Workers Who Worked Around Beryllium (2011), https://www.cdc.gov/niosh/pgms/worknotify/pdfs/BerylliumNotification-508.pdf (last visited Nov. 26, 2018); Mary K. Schubauer-Berigan et al., Cohort Mortality Study of Workers at Seven Beryllium Processing Plants: Update and Associations with Cumulative and Maximum Exposure, 68 Occupational & Envtl. Med. 345 (2011).) Adams also requested “an informal hearing, ” and her request was granted on February 8, 2016. (Id. at 61, 56-57.) Before the hearing, Adams submitted additional evidence from her medical records. (ECF No. 22-1 at 252, 288.) Within those records, Dr. Hughes opined, in a medical report from February 18, 2016, that “approximately 40% of the beryllium sensitive patients and 50% of the chronic beryllium patients have asthma [and] COPD[, ] which is the basis for my concluding that Ms. Adams has occupational COPD.” (Id. at 288.) Dr. Hughes further suggested that Adams' “declining spirometry, abnormal scarring on [a] CT scan, and her clinical status is highly suggestive of CBD.”[16] (Id.)

         After a video hearing was held on March 29, 2016 (ECF No. 22-1 at 260-83), the FAB issued its Final Decision on May 25, 2016. (ECF No. 22-1 at 246-56.) The FAB's Final Decision denied Adams' claim for COPD. (Id. at 249.) The Final Decision began by recounting the lower administrative proceedings, summarizing Adams' scientific articles and objections, and detailing the video hearing that took place. (Id. at 249-53.) In regard to Adams' objection concerning the relationship between beryllium and COPD, the FAB's Final Decision noted that “[b]eryllium is not usually associated as a causative factor for development of COPD; therefore, the IH and CMC were not asked to evaluate your exposure potentials to beryllium in relationship [sic] to your COPD.” (Id. at 252.) Perplexingly, the Final Decision then stated that “[a]lthough the DOE recognizes that [] beryllium was present at [SRS], the levels of exposure that an employee would need to develop beryllium sensitivity is much different than [that] to contribute to the development of COPD.” (Id. at 253.) The FAB, contradicting its acceptance of Adams' beryllium sensitivity claim, further argued that “there [was] insufficient evidence in [her] case file to indicate that [she] work[ed] with beryllium during [her] DOE employment.”[17] (Id.) Besides briefly summarizing the two scientific articles explaining the relationship between beryllium and COPD, [18] the FAB's Final Decision only stated the following in response to Adams' submitted articles: “Although your authorized representative provided studies linking COPD to exposures to beryllium, the studies involved employee's [sic] working at beryllium plants that would have had major exposures to beryllium, which does not apply in your case.” (Id.) When deciding conclusions of law, the FAB maintained that Adams' claim “essentially boil[ed] down to which doctor's reports [were] of greater weight and credibility rejection.” (Id. at 255.) The FAB found the CMC's report as “better reasoned” and “well rationalized” in comparison to Dr. Hughes' medical opinion.[19] (See id.) According to the FAB, because Adams did not present sufficient evidence to meet her burden of proof “to establish [her] entitlement to benefits, ” her claim was denied under Part E of the EEOICPA. (Id. at 255-56.) DOL informed Adams that she was permitted to request reconsideration of its Final Decision within thirty (30) days of its issuance. (Id. at 246.)

         On June 21, 2016, within thirty (30) days of the FAB's Final Decision, Adams filed her Request for Reconsideration.[20] (Id. at 78-79.) In her Request for Reconsideration, Adams argued that she met her burden under Part E of the EEOICPA because she submitted medical literature supporting Dr. Hughes' opinion, showing that “beryllium exposure is associated with . . . the development of COPD.” (Id. at 78.) Adams also maintained that the District Office and the FAB “relied on an incomplete evaluation of her toxic exposures at [] SRS” and challenged DOL for concluding, in tension with her successful claim for beryllium sensitivity, that there was “insufficient evidence” of her beryllium exposure.[21] (Id.) In addition to arguing the foregoing, Adams submitted important, new evidence in support of her claim for COPD.[22] (Id. at 79-151.) First, Adams provided a medical opinion from Dr. Peter Frank (“Dr. Frank”), and he observed that Adams' occupational exposure to toxic substances, particularly beryllium, while at SRS was “the most significant risk factor[] for her development of COPD and other related pulmonary conditions.”[23] (Id. at 79.) In contrast to the findings of the IH and CMC, Dr. Frank suggested that beryllium exposure contributes to the development of COPD. (Id. at 83.) Secondly, Adams supplied DOL with new scientific documents detailing occupational COPD.[24] (Id. at 106-45 (citing Enrique Diaz-Guzman et al., Occupational Chronic Obstructive Pulmonary Disease: An Update, 33 Clinics Chest Med. 625, 626 (2012); DJ Hendrick, Occupation and Chronic Obstructive Pulmonary Disease (COPD), 51 Occupational Lung Disease 947 (1996); Piera Boschetto et al., Chronic Obstructive Pulmonary Disease (COPD) and Occupational Exposures, 1:11 J. Occupational Med. & Toxicology (2006), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1513231/; Respiratory Diseases-Input: Occupational Risks, Nat'l Inst. for Occupational Safety & Health, https://www.cdc.gov/niosh/programs/resp/risks.html (last visited Nov. 28, 2018).) Encouraging the FAB to either grant her claim for COPD or remand it to the District Office, Adams maintained that her “new argument and evidence” would have “altered the outcome of the [Final] [D]ecision and the scope of development of [her] claim.” (Id. at 79.)

         On August 19, 2016, the FAB denied Adams' Request for Reconsideration. (ECF No. 22-1 at 2-10.) The Order Denying Reconsideration first recounted the reasons for denying Adams' claim for COPD and examined her newly submitted evidence. (Id. at 2-3.) The Order then challenged Dr. Hughes' February 2016 conclusions by referring to his opinions as “anecdotal evidence, not subject to peer review, ” and suggesting that he did not thoroughly investigate his pool of patients. (Id. at 3.) Regarding the scientific articles submitted by Adams, the FAB only stated that “two previously submitted articles suggest but do not e[s]tablish that COPD can be linked to beryllium exposure[, ]” while “[t]he remaining articles list potential links between toxic substances and COPD and other lung disorders, such as cigarette smoke, cotton fibers, coal dust, and grain dust.” (Id.) The FAB also rejected three arguments put forth by Adams, including that the IH only considered her exposures as an E&I mechanic, she frequently visited construction sites with toxins linked to COPD, and her position as a precious metals auditor exposed her to toxic substances with links to COPD. (Id. at 4-6.) When accessing her arguments, the FAB concluded that Adams was not “on record” with the description, frequency, and nature of her construction visits and precious metals auditing. (Id. at 4-5.) The FAB described Dr. Frank's medical opinions, quite harshly, as “not well rationalized” and “based on assertions that have no factual basis.” (Id. at 5.) When the FAB handed down its Order Denying Reconsideration on August 19, 2016, its Final Decision became “final” on this same day for purposes of the EEOICPA.[25] See 20 C.F.R. § 30.319(c)(2).

         Pursuant to 42 U.S.C. § 7385s-6(a), Adams filed her Complaint against DOL on October 17, 2016. (ECF No. 1.) Adams submitted her Initial Brief on April 3, 2017, arguing that she was denied “[d]ue [p]rocess . . . because [] DOL disregarded substantial, probative evidence in support of her claim.”[26] (ECF No. 26 at 11.) Additionally, Adams contends that DOL failed to “properly develop” her claim as required by law, which made the FAB's Final Decision arbitrary and capricious. (Id. at 14-15.) She specifically suggests that the IH and CMC's conclusions regarding her COPD are flawed because they ignore her exposure to beryllium.[27] (Id. at 15.) Likewise, Adams also forcefully maintains that DOL's Order Denying Reconsideration was arbitrary and capricious because it was “clearly erroneous and unsupported by substantial evidence, ” and, unlike the CMC, Dr. Frank discussed her exposure to beryllium and its link to COPD. (Id. at 17.) Pointing to her scientific articles, Adams relentlessly concludes that “she met her burden of showing that [it] was at least as likely as not that her occupational exposures at [] SRS were . . . a significant factor in aggravating, contributing to, or causing her COPD.” (ECF No. 30 at 4.)

         Unsurprisingly, in its Responsive Brief filed on May 3, 2017, DOL starkly disagreed with Adams on multiple fronts. (ECF No. 28.) Maintaining that its Final Decision was not arbitrary and capricious, DOL claims that it adequately reviewed the “medical evidence and factual statements made by Adams, ” addressed each of her objections, and assisted her with the development of her claim. (Id. at 16-18.) DOL further submits that “[t]here was no basis for requesting an assessment of Adams' exposure to beryllium when the [D]istrict [O]ffice had no evidence of a causal link between beryllium and COPD, either from its search of the data in [the] SEM or as established by a well-rationalized medical opinion.” (Id. at 17.) DOL also argues that its Order Denying Reconsideration was not arbitrary and capricious because Dr. Frank's report was not supported by factual evidence, two scientific articles were previously submitted, four scientific articles were inconsequential, and Adams “did not sufficiently prove that her exposure to beryllium” was a significant factor in aggravating, contributing to, or causing her COPD. (Id. at 20.) Lastly, DOL contends that Adams' [d]ue [p]rocess argument is without merit because she does not have any property interest in benefits under the EEOICPA, and she was afforded “her notice and opportunity to respond.” (Id.)

         Upon receiving DOL's Responsive Brief, Adams attacked DOL's exclusive use of the SEM because it “was never intended to be utilized . . . as an exclusive measure of an employee's toxic exposures.” (ECF No. 3 at 6 (citing 20 C.F.R. § 30.231(b) (“OWCP site exposure matrices may be used to provide probative factual evidence that a particular substance was present at . . . a DOE facility . . . .”).) According to Adams, DOL acted arbitrarily by ignoring her previous exposure to beryllium when the SEM failed to identify it as related to COPD. (Id. at 3.) Adams adamantly refuted DOL's assertion that she failed to carry her burden under Part E of the EEOICPA. (Id. at 2-4.) Adams charges that her scientific articles, including from the National Institute for Occupational Safety and Health, show that beryllium is associated with COPD and at least as likely as not a significant factor in aggravating, contributing to, or causing her COPD. (Id. at 4-5.) In response, DOL continues to insist that it had no obligation to investigate Adams' beryllium exposure, let alone ask the IH or CMC for their opinions regarding beryllium, when Adams failed to provide sufficient evidence “to establish a causal link between her COPD and any potential beryllium exposure at [] SRS.” (ECF No. 32 at 3.)

         On May 25, 2017, this matter was completely and fully briefed by the parties. (See ECF Nos. 26, 28, 30, 32.) As of this date, there have been no further motions or responses from the parties. Therefore, this matter is ripe for judicial review. See generally Sauls v. Wyeth Pharm., Inc., 846 F.Supp.2d 499, 501 (D.S.C. 2012) (“The parties have fully briefed the issues, and this matter is ripe for consideration.”).

         II. SUBJECT-MATTER JURISDICTION

         A. DOL's Final Decision

         Subject-matter jurisdiction “involves a court's power to hear a case” and may never be “forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). A federal court has an “independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). Part E of the EEOICPA provides the following jurisdictional provision for federal courts:

A person adversely affected or aggrieved by a final decision of the Secretary under this part may review that order in the United States district court in the district in which the injury was sustained, the employee lives, the survivor lives, or the District of Columbia, by filing in such 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. The court may modify or set aside such decision only if the court determines that such decision was arbitrary and capricious.

42 U.S.C. § 7385s-6(a) (emphasis added). While this provision explicitly grants a federal court subject-matter jurisdiction to review final decisions by DOL, the EEOICPA's sixty-day (60) filing deadline is a jurisdictional prerequisite for judicial review. See Barrie v. U.S. Dep't of Labor, 805 F.Supp.2d 1140, 1144 (D. Colo. 2011) (“The EEOICPA's 60-day filing deadline is jurisdictional.”). See also Lahndorff v. U.S. Dep't of Labor, 289 F.Supp.3d 826, 832 (W.D. Ky. 2017); Meridieth v. Chao, 723 F.Supp.2d 1044, 1048 (E.D. Tenn. 2010). Therefore, in order for a federal court to fully possess subject-matter jurisdiction over an action arising under Part E of the EEOICPA, a claimant must file his or her action within sixty days of the FAB's final decision. See generally Taylor v. U.S. Dep't of Labor, CV 115-049, 2016 WL 4099214, at *2 (S.D. Ga. Aug. 2, 2016) (“Taylor's petition was filed more than sixty days after the FAB's final decision, and this [c]ourt has no subject matter jurisdiction with which to move forward.” (citing Barrie, 805 F.Supp.2d at 1144)).

         On May 25, 2016, the FAB informed Adams that her claim for COPD, brought pursuant to Part E of the EEOICPA, was denied. (ECF No. 22-1 at 246, 249.) On June 25, 2016, Adams, through her attorney, requested that the FAB reconsider its Final Decision denying her claim for benefits. (Id. at 77-79.) On August 19, 2016, the FAB denied Adams' request for review of its Final Decision. (Id. at 2, 7.) The FAB's Final Decision became “final” on August 19, 2016, the date on which it denied Adams' Request for Reconsideration. See 20 C.F.R. § 30.319(c)(2) (“If the FAB denies the request for reconsideration, the FAB decision that formed the basis for the request will be considered ‘final' upon the date the request is denied, and no further requests for reconsideration of that particular final decision of the FAB will be entertained.”). Accordingly, in order to meet her jurisdictional perquisite, Adams was required to file her Complaint within sixty (60) days of August 19, 2016. See 42 U.S.C. § 7385s-6(a) (“A person adversely affected or aggrieved by a final decision of the Secretary . . . may review that order in the United States district court . . . by filing in such court within 60 days after the date on which that final decision was issued . . . .”). Adams filed her Complaint on October 17, 2016, within sixty (60) days of the Order Denying Reconsideration. (Compare ECF No. 1 at 6, with ECF No. 22-1 at 2.) DOL has also agreed that Adams timely met her jurisdictional hurdle. (See ECF No. 28 at 12-13 (“Adams filed her [C]omplaint before this Court on October 17, 2016, within [sixty] days of the reconsideration denial.”).) Because the EEOICPA explicitly confers subject-matter jurisdiction to federal courts, and Adams timely filed her Complaint pursuant to the EEOICPA, this court fully possesses subject-matter jurisdiction to review DOL's Final Decision under 42 U.S.C. § 7385s-6(a).

         B. DOL's Order Denying Reconsideration & Adams' Due Process Challenge

         Adams also brings challenges to DOL's Order Denying Reconsideration and alleges violations of the Due Process Clause under the United States Constitution. (ECF No. 26 at 11, 17- 20.) DOL seems to suggest that a federal court is provided with subject-matter jurisdiction to review its Order Denying Reconsideration under Part E of the EEOICPA. (See ECF No. 28 at 12- 13.) Adams, on the other hand, is painstakingly silent as to the court's subject-matter jurisdiction over these claims, but has invoked the APA. (ECF No. 26 at 7-8 (citing 5 U.S.C. §§ 702, 706).) Neither party addresses the basis for the court's subject-matter jurisdiction for the alleged due process violation. (See ECF Nos. 26, 28.)

         First, examining the Order Denying Reconsideration, as noted previously, Part E of the EEOICPA only provides federal courts with subject-matter jurisdiction to review “a final decision of the Secretary.” 42 U.S.C. § 7385s-6(a). Part E of the EEOICPA, however, does not confer subject-matter jurisdiction upon a federal court to review a denial of reconsideration by DOL. See id. Therefore, the court does not have subject-matter jurisdiction to review the Order Denying Reconsideration under 42 U.S.C. § 7385s-6(a) because it is not “a final decision of the Secretary.” Notwithstanding this technical feature of the EEOICPA, the court possesses subject-matter jurisdiction to review the Order Denying Reconsideration under the APA, a federal statute, because whether DOL's Order Denying Reconsideration is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under the APA is a federal question under 28 U.S.C. § 1331.[28] 5 U.S.C. § 706(2)(A). See also Lee v. U.S. Citizenship & Immigration Servs., 592 F.3d 612, 619 (4th Cir. 2010) (holding that the APA does not confer jurisdiction and “the jurisdictional source” for the APA is 28 U.S.C. § 1331). See generally Lanier v. U.S. Dep't of Labor, 296 F.Supp.3d 834, 839 (W.D. Ky. 2017); Lahndorff, 289 F.Supp.3d at 830; Jeffords v. U.S. Dep't of Labor, C/A No. 5:14-cv-00165-GNS-LLK, 2016 WL 2745865, at *1 (W.D. Ky. May 10, 2016); Freeman v. U.S. Dep't of Labor, No. 5:14-cv-114-GNS-LLK, 2015 WL 5020697, at *2 (W.D. Ky. Aug. 24, 2015).

         Second, turning to Adams' due process challenge, 28 U.S.C. § 1331 provides that: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution . . . of the United States.” The Constitution has several provisions relating to due process. See U.S. Const. amends. V, XIV. As such, the court has subject-matter jurisdiction to review Adams' due process allegations under 28 U.S.C. § 1331.

         III. ...


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