Hand v. Perez, Civil Action No. 14-0880 (BAH)

CourtUnited States District Courts. United States District Court (Columbia)
PartiesDONNA HAND, Plaintiff, v. THOMAS E. PEREZ, Secretary of the Department of Labor, et al., Defendants.
Docket NumberCivil Action No. 14-0880 (BAH)
Decision Date05 June 2015

DONNA HAND, Plaintiff,
THOMAS E. PEREZ, Secretary of the Department of Labor, et al., Defendants.

Civil Action No. 14-0880 (BAH)


June 5, 2015

Judge Beryl A. Howell


The plaintiff, Donna Hand, proceeding pro se, filed this lawsuit against defendant Thomas E. Perez, the Secretary of the U.S. Department of Labor ("DOL"), and four officials of DOL's Office of Workers' Compensation Programs ("OWCP"),1 seeking judicial review of certain DOL policies and procedures implementing the Energy Employees Occupational Illness Compensation Program Act of 2000 ("EEOICPA"), 42 U.S.C. § 7384 et seq. More specifically, the plaintiff asks the Court "to interpret and clarify the implementing federal regulations and the statute as it applies to the policy procedures issued by the Division of Energy Employee Occupational Illness Compensation Program Director, [Defendant] Rachel Leiton. . . . [to] determine if the policy is in compliance with the Statute, implementing federal regulations, the Administrative Procedure Act, and the Constitutional right of due process." Pet. at 2, ECF No. 1. The defendants have moved to dismiss this action for lack of subject matter jurisdiction, pursuant

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to Federal Rule of Civil Procedure 12(b)(1). Defs.' Mot. Dismiss ("Defs.' Mot.") at 1, ECF No. 5. For the reasons set forth below, the motion is granted.


The plaintiff's Petition is critical of policies and procedures employed by the Division of Energy Employee Occupational Illness Compensation ("DEEOIC"), which is the component of DOL's OWCP responsible for processing claims and administering benefits to eligible claimants under the EEOICPA. This statute is briefly reviewed before turning to a summary of the plaintiff's Petition.

A. The Energy Employees Occupational Illness Compensation Program Act ("EEOICPA")

The EEOICPA, enacted in 2000, provides a compensation program for individuals or their survivors, who suffer from illnesses caused by exposure to radiation, beryllium, or silica while working at Department of Energy ("DOE") facilities or at certain contractor, subcontractor, or designated beryllium vendor facilities. See 42 U.S.C. § 7384s(a)-(b). Individuals who seek benefits, including a lump-sum payment of $150,000 and medical benefits, under the EEOICPA must file a claim with the OWCP. 20 C.F.R. §§ 30.100, 30.101. Following review of the claim, OWCP makes a recommendation, based upon express findings of fact and conclusions of law, to the Final Adjudication Branch ("FAB"), whether the claimant qualifies for the program benefits. 20 C.F.R. §§ 30.300, 30.305, 30.306, 30.314, 30.316. The claimant has sixty days to file with the FAB any objections to the OWCP's recommended decision. 20 C.F.R. § 30.310. Upon consideration of the written record, any objections filed, and, if requested, an informal oral hearing, the FAB may either issue a final decision or return the claim to the district office for additional factual development. 20 C.F.R. §§ 30.113, 30.114, 30.316, 30.317. A claimant dissatisfied with the final decision may, within 30 days, request reconsideration by the

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FAB. 20 C.F.R. § 30.319(a). The FAB may grant reconsideration and issue a new final decision, 20 C.F.R. § 30.319(c), or reject the request, in which case the decision becomes "final" on the date that the request for reconsideration is denied. 20 C.F.R. § 30.319.

B. The Plaintiff's Petition

The plaintiff identifies herself as "a qualified representative under the EEOICP" with "prudential standing" to challenge "the DEEOIC actions or inactions." Pet. at 4, ¶ D. She alleges that the Director of DEEOIC "has changed the application of the federal regulations" promulgated to implement the EEOICPA "by issuing memos, conference calls, policy clarifications and restrictive interpretation of the . . . Act." Pet. at 2. According to the plaintiff, these actions have resulted in "new policy procedures" for adjudicating potential claims that "chang[e] the substantial rights of claimants," without regard for earlier interpretations of the EEOICPA or the requirements of the Administrative Procedure Act ("APA"). Id. The plaintiff "disagrees with the DEEOIC['s]" interpretation of the EEOICPA and the policies flowing from that interpretation. Pet. at 4, ¶ C. To resolve these disagreements, the plaintiff seeks clarification of the Act and, to that end, proposes a number of questions for judicial resolution. These questions address: (1) whether DEEOIC's policies are too restrictive, in light of the statute's definition of Chronic Beryllium Disease, id. at 7; (2) whether DEEOIC has the authority to determine and define DOE facilities, id. at 11, and/or deny "sending all cancers to [National Institute of Occupational Safety and Health] . . . for a dose reconstruction," id. at 14; and (3) whether DEEOIC's administrative review procedure comports with due process, id. at 16, and burdens of proof, id. at 19-20.

In addition to resolving these legal questions, the plaintiff requests that the Court declare that: (1) "the policy procedures and memos used and issued by DEEOIC [are] not binding;" (2)

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"the DDEOIC's action is in excess of the DEEOIC's delegated powers;" and (3) "the DEEOIC's ongoing action plainly cannot result in a valid DEEOIC order." Id. at 23, ¶ 48.


In evaluating a motion to dismiss for lack of subject matter jurisdiction, under Federal Rule of Civil Procedure 12(b)(1), federal courts must be mindful that they "are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute." Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)) (internal quotation marks omitted). Indeed, federal courts are "forbidden . . . from acting beyond our authority," NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), and, therefore, "have an affirmative obligation to consider whether the constitutional and statutory authority exist for us to hear each dispute." James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)) (internal quotation marks omitted). Absent subject matter jurisdiction over a case, the court must dismiss it. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006); FED. R. CIV. P. 12(h)(3).

Article III of the Constitution restricts the power of federal courts to hear only "Cases" and "Controversies." U.S. CONST. art. III, § 2, cl. 1; see Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014) ("Article III of the Constitution limits the jurisdiction of federal courts to actual cases or controversies between proper litigants." (quoting Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 661 (D.C. Cir. 1996)) (internal quotation marks omitted)). "The doctrine of standing gives meaning to these constitutional limits by identify[ing] those disputes which are appropriately resolved through the judicial process." Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (alteration in original) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,

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560 (1992)) (internal quotation marks omitted). Absent standing by the plaintiff, the court lacks subject matter jurisdiction to hear the claim and dismissal is mandatory. See FED. R. CIV. P. 12(h)(3).

When the purported lack of jurisdiction stems from a lack of standing, the court "must assume that [the plaintiff] states a valid legal claim." Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003); see also Mendoza, 754 F.3d at 1010 ("In evaluating plaintiffs' standing at the motion to dismiss stage we must assume that the plaintiff[s] state[ ] a valid legal claim and must accept the factual allegations in the complaint as true." (alterations in original) (quoting Holistic Candlers & Consumers Ass'n v. FDA, 664 F.3d 940, 943 (D.C. Cir. 2012)) (internal quotation marks omitted)). The proponent of jurisdiction bears the burden of proving that it exists by "support[ing] each element of [his or her] claim to standing by affidavit or other evidence" and "show[ing] a substantial probability that [he or she has] been injured, that the defendant caused [his or her] injury, and that the court could redress that injury." Carbon Sequestration Council v. EPA, Nos. 14-1046, 14-1048, 2015 WL 3461419, at *2 (D.C. Cir. June 2, 2015) (quoting Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002)) (internal quotation marks omitted); see also Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). In determining jurisdiction, "the district court may consider materials outside the pleadings." Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005); see also Belhas v. Ya'Alon, 515 F.3d 1279, 1281 (D.C. Cir. 2008) (examining materials outside the pleadings in ruling on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction); Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (noting that courts may consider materials outside the pleadings in ruling on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction).

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The defendants assert that this Court lacks subject...

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