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Langston v. U.S. Department of Labor

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

March 26, 2018

GALEN E. LANGSTON PLAINTIFF
v.
U.S. DEPARTMENT OF LABOR DEFENDANT

          MEMORANDUM OPINION & ORDER

          Greg N. Stivers, Judge United States District Court

         Plaintiff Galen E. Langston (“Langston”) brings this action for judicial review of two decisions issued by the Department of Labor (“DOL”). For the reasons discussed below, neither decision is reviewable, and Langston's claim is DENIED.

         I. BACKGROUND

         A. Statutory and Regulatory Background

         The Energy Employees Occupational Illness Compensation Program Act of 2000 (“EEOICPA”), 42 U.S.C. §§ 7384 to 7385s-16, allows individuals who suffer from illnesses as a result of exposure to toxic substances during the course of their work for the Department of Energy (“DOE”) and its predecessor agencies to seek monetary benefits. To obtain benefits under Part B of the Act, a claimant must file a claim with the DOL's Office of Workers' Compensation Programs (“OWCP”) demonstrating that he developed chronic beryllium disease (“CBD”) or cancer as a result of his exposure to beryllium or other toxic substances while employed at a DOE facility.[1] Id. §§ 7384s(a)(1), 7384l(7), 7384l(8), 7384l(15); 20 C.F.R. §§ 30.100, -.101. Similarly, a claimant may receive benefits under Part E of EEOICPA if he files a claim with the OWCP establishing that he has suffered permanent impairment as a result of “any illness” caused by “exposure to a toxic substance” at a DOE facility. Id. § 7385s(2).

         After a claimant submits an application for benefits, the OWCP district office issues a recommended decision informing the claimant of its recommended findings of fact and conclusions of law. 20 C.F.R. §§ 30.300, -.306. Thereafter, the claimant may file written objections to the recommended decision with the Final Adjudication Branch (“FAB”). Id. § 30.310. The FAB will consider any objections and issue a final decision on the claim. Id. §§ 30.300, -.316. The claimant then has 30 days to request that the FAB reconsider its decision. Id. § 30.319(a). “If the FAB denies the request for reconsideration, the FAB's original decision is considered ‘final' on the date the request is denied . . . .” Id. § 30.319(c)(2).

         At any time thereafter, a claimant may file a written request with the Director of the OWCP's Division of Energy Employees Occupational Illness Compensation to reopen a claim based on new evidence demonstrating covered employment or exposure to a toxic substance. Id. § 30.320(b). If the Director decides that the matter raised by the request is material to the claim, the Director will reopen the claim and return it to the district office for further development. Id. § 30.320(b)(1). The Director's decision as to whether to reopen a claim is discretionary and not subject to administrative review, and the decision to deny a reopening request is not subject to judicial review when based on the fact that the claimant submitted no new evidence. Id. § 30.320(c); Berry v. U.S. Dep't of Labor, 832 F.3d 627, 636 (6th Cir. 2016).

         B. Factual and Procedural Background

         Langston worked for the DOE in various roles at the Paducah Gaseous Diffusion Plant (“PGDP”) from March 18, 1973 until September 17, 2002. (Administrative R. 1546-47, 2731 [hereinafter AR]). He claims that he was exposed to toxic substances during that time, and that he developed several illnesses as a result. (See, e.g., Compl. ¶ 9, DN 1). Over the past seventeen years, Langston has sought-but been unable to obtain-EEOICPA benefits for his illnesses. (See, e.g., Compl. ¶ 10). The attempts relevant to his claims for judicial review are as follows:

         In July 2001, Langston filed a claim under Part B, alleging that he developed brain cancer as a result of his exposure to toxic substances while working at the PGDP. (AR 1585). On November 25, 2002, the FAB denied his claim, reasoning that the medical evidence he submitted in support of this claim was insufficient to establish a diagnosis of brain cancer. (AR 1504).

         Langston then submitted two new claims. First, Langston filed a claim for Part B benefits, arguing that he developed CBD as a result of his work at the PGDP. (AR 1070-72). The district office denied this claim, as did the FAB.[2] (AR 916-21, 986, 988-92). Second, he submitted a claim under Part E, alleging that he suffered from myasthenia gravis, heart attacks, chronic bronchitis, and central blepharospasm (the “Part E claims”). (AR 954). In response, the district office explained to Langston that it had already processed the Part E claims-along with others, including one for CBD-under the formerly titled Part D of the EEOICPA, and that, at that time, it concluded that Langston was not entitled to benefits. (AR 886-87). In addition, the district office advised Langston that it intended to review the Part E claims, along with all other claims he submitted under the formerly titled Part D, and asked him to submit new evidence substantiating these claims. (AR 885-87). Langston never responded, and, on July 25, 2007, the FAB issued a final decision denying his Part E claims and deferring decision on his Part E claim for CBD. (AR 807-13). On October 31, 2011, the FAB denied Langston's claim for CBD under Part E because the medical evidence failed to show that he had CBD. (AR 714-16).

         On October 6, 2011, Langston's representative, Gary Vander Boegh (“Vander Boegh”) asked the District Director to reopen a few of Langston's claims, including his: (1) Part B claim for brain cancer, (2) Part E claim for chronic bronchitis, [3] and (3) Part B claim for CBD. (AR 725-31). In the reopening request, Vander Boegh submitted medical evidence showing that Langston developed brain cancer as a result of his work at the PDGP. (AR 674-75).

         In response, the District Director granted in part and denied in part Langston's reopening request. Specifically, on May 3, 2012, the District Director reopened Langston's brain cancer and chronic bronchitis claims. (AR 652-56). On May 6, 2012, however, the District Director denied Langston's request to reopen his Part B claim for CBD. (AR 644-50).

         Despite having reopened Langston's Part B claim for brain cancer and Part E claim for chronic bronchitis, the district office denied both claims on the merits, and, in a decision issued August 23, 2013, the FAB concurred. (AR 290-307, 467-77). With respect to Langston's claim for brain cancer, the FAB concluded that the medical evidence was insufficient to establish that Langston had brain cancer. (AR 303). In addition, ...


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