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Berry v. United States Department of Labor

United States District Court, W.D. Kentucky, Paducah Division

June 8, 2015

CLARENCE S. BERRY, Plaintiff,
v.
UNITED STATES DEPARTMENT OF LABOR, Defendant.

MEMORANDUM OPINION & ORDER

GREG N. STIVERS, District Judge.

Before the Court is the United States' Motion to Dismiss. Fully briefed, the matter is ripe for disposition. Along similar rationale as the Court's previous ruling in Lanier v. U.S. Department of Labor, Case No. 5:14-CV-168-GNS (W.D. Ky. Apr. 10, 2015), the Motion to Dismiss (DN 10) is GRANTED.

I. STATEMENT OF FACTS AND CLAIMS

Plaintiff Clarence S. Berry ("Berry") challenges his denial of benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000 ("EEOICPA" or "Act"), 42 U.S.C. § 7384, et seq. The Department of Labor ("Department") administers the compensation program that statute creates. Berry's father purportedly worked for some period at the Paducah Gaseous Diffusion Plant. According to the complaint, his father was exposed to hazardous substances that ultimately resulted in illness. (Compl. ¶¶ 8-9, DN 1). Berry claims entitlement to compensation and benefits under EEOICPA Part B. (Compl. ¶ 15).

After denying his initial claim, the Department denied his request to re-open the decision on October 28, 2014. (Compl. ¶ 17). Berry seems to concede that judicial review of the initial denial is barred by the applicable statute of limitations. (Resp. to Mot. to Dismiss 5-6, DN 15). He contends, however, that the denial of the request to re-open is entitled to judicial review and is jurisdictionally proper before this Court.

II. JURISDICTION

Plaintiff claims federal question jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 7385s-6(a).

III. STANDARD

The Department moves to dismiss Berry's complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Attacks on subject matter jurisdiction may be facial, questioning the sufficiency of the basic jurisdictional allegation in the complaint, or factual, questioning the facts underlying that allegation. Genetek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). Courts analyzing facial attacks utilize the same safeguard as that employed in analyzing motions under Rule 12(b)(6), accepting all allegations in the complaint as true. Id. Nonetheless, a court need not accept "conclusory allegations or legal conclusions masquerading as factual conclusions...." Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005) (citation omitted). Accepting properly pleaded facts, the Court then determines whether the basis for jurisdiction is sufficient.

IV. DISCUSSION

The Department challenges the Court's subject matter jurisdiction to hear Berry's complaint, claiming the original denial is barred based on the statute of limitations and the denial of the request to reopen is exempt from judicial review. Initially, the Court notes that Berry has challenged only the denial of the request to reopen his EEOICPA Part B claim.[1] The Court finds it unnecessary to address the earlier decisions as they are not raised in the Complaint. In Lanier v. U.S. Department of Labor, this Court held that EEOICPA Part B and Part E decisions to reopen were not subject to judicial review because they were not final agency action. The conclusion relied on the traditional rule of administrative law that denials of requests to reopen are not reviewable, and the absence of articulated factors that would demand a departure from the rule. See Lanier, 2015 WL 1638495 at *3-4. The Court's opinion has not changed in examining EEOICPA Part B alone.

EEOICPA Part B has no provisions governing judicial review. As such, and unlike Part E, Part B claims are reviewed under the Administrative Procedures Act ("APA"). Lanier, 2015 WL 339301 at *2; see also Gomez v. United States, 459 F.Appx. 701, 704 (10th Cir. 2012). In Califano v. Sanders, 430 U.S. 99 (1977), the Supreme Court held "a refusal to reopen is not an agency action for which judicial review is available. The Administrative Procedure Act... is not an independent grant of subject-matter jurisdiction." Gosnell v. Califano, 625 F.2d 744, 745 (6th Cir. 1980). Accordingly, the judicial review sought by Berry must be founded upon an independent basis of jurisdiction.

Sanders is not dispositive of jurisdiction here. Under the APA, judicial review is permitted for final agency actions except where prohibited by statute or where "agency action is committed to agency discretion by law." 5 U.S.C. §§ 701(a), 704. These provisions of the APA provide a cause of action to the extent they present a federal question. See Chelsea Cmty. Hosp., SNF v. Mich. Blue Cross Ass'n, 630 F.2d 1131, 1133 (6th Cir. 1980). The Sanders Court found the statute at issue precluded judicial review and, absent a constitutional claim, federal question jurisdiction under 28 U.S.C. 1331. Sanders, 430 U.S. at 104-09. While many of the underlying policies are similar in the EEOICPA context, unlike the Social Security Act at issue in Sanders, EEOICPA Part B's total silence on judicial review offers no statutory guidance.

Nonetheless, this Court concludes both tradition and the regulations themselves disqualify Part B denials of requests to reopen from judicial review. The Department's regulations provide for reopening requests and maintain that "[t]he decision whether or not to reopen a claim under this section is solely within the discretion of the Director for Energy Employees Occupational Illness Compensation and is not reviewable." 20 C.F.R. § 30.320(c) (2007). The Department has not argued this particular regulation should be afforded any particular variety of deference, though the regulation appears to have been adopted through the formal notice-and-comment process. See 71 Fed. Reg. 78520-01, 78525-56. Even without affording any special weight to the regulations, requests to reopen are not a typical subject for judicial review. "[T]he traditional rule of administrative law [is] that an agency's refusal to reopen a ...


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