Brigham v. Office of Workers Compensation Programs, Civil Action No. 06-0958 (JR).

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtRobertson
Citation477 F.Supp.2d 160
PartiesJames Douglas BRIGHAM, Plaintiff, v. OFFICE OF WORKERS COMPENSATION PROGRAMS, et al., Defendants.
Decision Date14 March 2007
Docket NumberCivil Action No. 06-0958 (JR).
477 F.Supp.2d 160
James Douglas BRIGHAM, Plaintiff,
Civil Action No. 06-0958 (JR).
United States District Court, District of Columbia.
March 14, 2007.

Brian Wolfman, Public Citizen Litigation Group, Washington, DC, Steven Robert Baughman Jensen, Baron & Budd, P.C., Dallas, TX, for Plaintiff.

Daniel Edward Bensing, U.S. Department of Justice, Claire M. Whitaker, United States Attorney's Office, Washington, DC, for Defendants.


ROBERTSON, District Judge.

James Brigham challenges a final decision by the Office of Workers' Compensation Programs (OWCP), a branch within the Department of Labor (DOL), which denied him benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA), 42 U.S.C. § 7384. Pending before the court is the government's motion to dismiss, which asserts that Brigham's claim is barred by a DOL regulation, and that this regulation is a "permissible" agency inter

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pretation of the EEOICPA to which I must defer.


The EEOICPA establishes a compensation program for workers who have suffered illnesses caused by their exposure to radiation, beryllium, or silica while working at Department of Energy (DOE) facilities, or at the facilities of certain DOE contractors, subcontractors, and designated beryllium vendors, The program provides qualified workers with a uniform lump-sum payment of $150,000 and medical benefits for care associated with the illness. 42 U.S.C. § 7384s(a-b). Of central relevance to this case, "covered beryllium employee" is a defined term that includes any "current or former employee of a beryllium vendor ... during a period when the vendor was engaged in activities related to the production or processing of beryllium for sale to, or use by, the Department of Energy." 42 U.S.C. § 73841 (7)(c).

Brigham is a former employee of the Coors Porcelain facility in Golden, Colorado. That facility produced beryllium under contract with the Atomic Energy Commission, a predecessor agency of the Department of Energy,1 from 1947 to 1975. Had Brigham worked at that facility at any time during that period, the parties agree that he would be a "covered beryllium employee" entitled to compensation under the Act. Brigham's tenure at Coors Porcelain, however, was from 1983 to 1995, after its beryllium production contract with DOE had ended. In 1985, while Brigham was employed there, Coors Porcelain conducted environmental remediation to clean up residual beryllium from its production efforts. The Department of Energy was not a party to this remediation contract.2 Brigham subsequently was diagnosed with chronic beryllium disease, a compensable illness under the Act. 42 U.S.C. § 73741(8)(B). He alleges, and defendant concedes for purposes of this motion, that his illness could only have been caused by his presence at the Coors Porcelain facility while the remediation work was being done.

In order to receive benefits under the EEOICPA program, an individual must file a claim with the OWCP. 20 C.F.R. §§ 30.100. An OWCP district office reviews the factual and medical record and issues a recommended decision containing findings of fact and conclusions of law. 20 C.F.R. §§ 30.300, 30.305, 30.306. It then forwards the claim to the OWCP's Final Adjudication Branch (FAB). 20 C.F.R. § 30.307(b).

The claimant has sixty days following the recommended decision to object to its findings and request that the FAB conduct either a hearing or a review of the written record. 20 C.F.R. §§ 30.310(a), 30.312. Following a review of the written record, any additional submissions by the claimant and, in some cases, its own investigation, see 20 C.F.R. §§ 30.313(a), 30.314(a), the FAB may either return the claim to the district office for further development or issue a decision. 20 C.F.R. §§ 30.316, 30.317. That decision becomes final unless the claimant requests reconsideration within thirty days. 20 C.F.R. §§ 30.316(d)

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and 30.319(a). If the FAB accepts such a request, it reconsiders the written record and issues a new final decision. 20 C.F.R. § 30.319(c). If the FAB rejects the request, its decision is considered "final" as of the date reconsideration is denied. 20 C.F.R. § 30.319(c).

Brigham filed a claim for EEOICPA benefits with the OWCP's Denver district office on February 19, 2002. On September 12, 2002, the district office issued a recommended decision, to deny Brigham's claim on the grounds that he was not a "covered beryllium employee" as defined by the Act, because his employment at the Coors Porcelain facility took place outside the period during which the facility had a contract with DOE. On February 20, 2003, the FAB issued a final decision denying his claim on the same grounds. Brigham's request for reconsideration was denied.

On February 15, 2005, Brigham filed a civil suit in this court, Civ. No. 05-0325(JR), appealing the final decision on his claim. On April 8, 2005, the director of OWCP vacated the FAB's decision, reopened Brigham's claim, and directed the Denver district office to decide whether Brigham was a "covered beryllium employee" because he worked at Coors Porcelain during a period of environmental remediation. Brigham then voluntarily dismissed his lawsuit as moot.

While his reopened administrative claim was pending, the Department of Labor promulgated a new regulation regarding eligibility for benefits under the EEOIPA. See 20 C.F.R. § 30.205 ("What are the criteria for eligibility for benefits relating to beryllium illnesses covered under Part B of EEOICPA."). The regulation is an almost word-for-word recitation to the statute, save for one exception of direct relevance to Brigham. Under its definition of "covered beryllium employee," the regulation provides...

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