Berry v. United States Department of Labor, 081116 FED6, 15-6316

Docket Nº:15-6316
Opinion Judge:GRIFFIN, CIRCUIT JUDGE.
Party Name:Clarence S. Berry, Plaintiff-Appellant, v. United States Department of Labor, Defendant-Appellee.
Attorney:D. Sean Nilsen, FURMAN & NILSEN, PLLC, Louisville, Kentucky, for Appellant. Terry M. Cushing, UNITED STATES ATTORNEY'S OFFICE, Louisville, Kentucky, for Appellee. D. Sean Nilsen, FURMAN & NILSEN, PLLC, Louisville, Kentucky, for Appellant. Monica Wheatley, UNITED STATES ATTORNEY'S OFFICE, Louisvil...
Judge Panel:Before: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.
Case Date:August 11, 2016
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Clarence S. Berry, Plaintiff-Appellant,

v.

United States Department of Labor, Defendant-Appellee.

No. 15-6316

United States Court of Appeals, Sixth Circuit

August 11, 2016

          Argued: June 15, 2016

         Appeal from the United States District Court for the Western District of Kentucky at Paducah. 5:14-cv-00228-Gregory N. Stivers, District Judge.

         ARGUED:

          D. Sean Nilsen, FURMAN & NILSEN, PLLC, Louisville, Kentucky, for Appellant.

          Terry M. Cushing, UNITED STATES ATTORNEY'S OFFICE, Louisville, Kentucky, for Appellee.

         ON BRIEF:

          D. Sean Nilsen, FURMAN & NILSEN, PLLC, Louisville, Kentucky, for Appellant.

          Monica Wheatley, UNITED STATES ATTORNEY'S OFFICE, Louisville, Kentucky, for Appellee.

          Before: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.

          OPINION

          GRIFFIN, CIRCUIT JUDGE.

         The Administrative Procedure Act authorizes judicial review of "final agency action, " subject to certain limitations. One of those limitations applies to decisions "committed to agency discretion by law." Plaintiff Clarence Berry challenges the Department of Labor's refusal to reopen his claim for compensation benefits based on new evidence. The Department contends the APA does not authorize judicial review of such decisions, both because they are not a "final agency action" and because they are "committed to agency discretion by law." We disagree on both points. The decision not to reopen Berry's claim for benefits based on new evidence satisfies the Supreme Court's litmus test for "final agency action, " and it is not the type of decision the Supreme Court has recognized as being "committed to agency discretion by law." However, we nonetheless conclude that the district court properly dismissed plaintiff's complaint because his reopening request was not actually based on new evidence. It instead alleged a material error in the agency's initial decision. That distinction is critical because, under Supreme Court precedent, reopening requests based on material error are "committed to agency discretion by law" and therefore unreviewable. Accordingly, we affirm the judgment of the district court.

         I.

         In 2000, Congress enacted the little-known Energy Employees Occupational Illness Compensation Program Act, 42 U.S.C. § 7384 et seq. ("EEOICPA" or "the Act"). The purpose of the Act was to provide compensation and other services to current and former U.S. Department of Energy ("DOE") employees and contractors (or their survivors) who developed illnesses relating to exposure to ultra-hazardous substances at DOE sites. See 42 U.S.C. § 7384. In its current form, the Act establishes two compensation programs, creatively referred to as "Part B" and "Part E" for their placement in the statutory taxonomy. See 42 U.S.C. §§ 7384l- 7384w-1 (Part B) & §§ 7385s-7385s-16 (Part E). This case involves a claim under Part B.

         Under Part B, a "covered employee" (or his or her survivor) is entitled to a lump sum payment of $150, 000 "for the disability or death of that employee from that employee's occupational illness." 42 U.S.C. § 7384s(a)(1). To claim benefits under Part B, a person must file a claim with the Office of Workers' Compensation Programs (OWCP), submitting evidence verifying employment at a "DOE facility, " as well as a recognized occupational illness. See, e.g., 20 C.F.R. § 30.205. The adjudication process culminates in a final decision by the Final Adjudication Branch (FAB), 20 C.F.R. §§ 30.300, 30.316, which the claimant has an opportunity to challenge in federal court, 20 C.F.R. § 30.319(d).

         Pertinent here, the process also allows for reopening of claims. See 20 C.F.R. § 30.320. A claimant may request to reopen his or her claim "[a]t any time after the FAB has issued a final decision" by submitting "new evidence of either covered employment or exposure to a toxic substance" or identifying a change in the medical guidelines. Id. § 30.320(b); see also id. § 30.320(a) (authorizing the Director of the compensation program to reopen a claim at any time). The Director must then determine whether the new evidence "is material to the claim." Id. § 30.320(b)(1). If so, the Director will reopen the claim and return it to the OWCP for a new recommended decision. Id. The regulations provide that "[t]he decision whether or not to reopen a claim under this section is solely within the discretion of the Director . . . and is not reviewable." Id. § 30.320(c).

         II.

         Plaintiff Clarence Berry is the son of Leslie Berry, Jr. In the early 1950s, Leslie worked for various construction subcontractors, including installing insulation for the Breiding Insulation Company between October and December 1952. During that time, Breiding did subcontracting work at the Paducah Gaseous Diffusion Plant. Everyone agrees the Paducah Plant is a "DOE facility" within the meaning of the Act. Less clear, however, is whether Leslie actually performed work at the Paducah Plant. Breiding's employment records were destroyed in a fire. And the local Insulators Union has no record of Leslie's work history because he was not a member of that union; he worked on a temporary permit and, according to the union, "records were not kept on the temporary workers." As a result, there are no records of the specific job sites on which Leslie performed work for Breiding in 1952.

         Fast-forward fifty years. Leslie died in 1995. Five years later, Congress passed the EEOICPA. Three years after that, on December 12, 2003, Leslie's son, Clarence Berry, filed a claim under Part B of the EEOICPA, seeking compensation as a survivor of a "covered beryllium employee." See 42 U.S.C. § 7384l(1)(A). Berry submitted his father's medical records and employment history information, including a Social Security Administration record identifying Leslie's employers during the relevant time period. After investigating the claim, the OWCP determined it could not verify Leslie's employment at a DOE facility. It recommended Berry's claim be denied because he failed to "establish[] that Leslie A. Berry, Jr., was a covered employee, by providing the employment evidence required to establish that he worked at a covered DOE facility." On September 2, 2004, the FAB accepted the recommendation and denied Berry's claim.

         Berry did not ask the Department to reconsider its denial or seek judicial review of the agency's decision. Instead, ten years later, on July 2, 2014, Berry filed a request to reopen his claim under 20 C.F.R. § 30.320. He contended that new employment evidence confirmed that Leslie was employed by Breiding at the Paducah Plant. Here is how Berry explained this "new evidence": Mr. Leslie Berry was employed by Breiding/Breeding Insulation from October 1952 - December 1952 (attached statement of social security earnings). Breeding Insulation held a contract with Paducah Gaseous Diffusion Plant from July 1952 - October 1953 (attached Paducah Gaseous Diffusion Plant sub-contractor list).

When Mr. Berry's employment verification was researched by CPWR [the Center for Protection of Worker's Rights] it was found that Breiding Insulation records were destroyed in a fire. Mr. Berry belonged to Cement Masons Local 125 but worked on a permit through the Insulators Local. Because he was not a member of the Insulators Union, records are unavailable (attached CPWR research results).

         On October 29, 2014, the Director denied the reopening request ...

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