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