Lucero v. U.S. Dep't of Labor

Decision Date05 August 2016
Docket NumberCase. No.14-cv-00999
PartiesMARY AGNES LUCERO Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, Energy Employees Occupational Illness Compensation Program, Office of Workers Compensation Defendant.
CourtU.S. District Court — District of New Mexico


For Plaintiff Mary Agnes Lucero:


219 9th St., NW

Albuquerque, NM 87102

For Defendant United States Department of



United States Attorney

201 3rd Street NW

Suite 900

Albuquerque, NM 87114


Assistant United States Attorney

P.O. Box 607

Albuquerque, NM 87103


U.S. Department of Labor

Office of the Solicitor

200 Constitution Avenue, N.W.

Suite S-4325

Washington, D.C. 20210


THIS MATTER comes before the Court on Plaintiff Mary Agnes Lucero's Petition for Review of Final Decision and Memorandum in Support Thereof [Docs. 1, 23]. Defendant United States Department of Labor opposed Ms. Lucero's petition on August 24, 2015 [Doc. 25]. Ms. Lucero replied in support of her petition on September 14, 2015 [Doc. 26].

The Court, having considered the motions, briefs and relevant law, and being otherwise fully informed, finds that Ms. Lucero's Petition will be GRANTED.


This case involves a relatively straightforward issue of statutory interpretation set against the backdrop of a complicated federal regulatory scheme and a highly unusual fact pattern. In essence, the federal government has created a compensation system for the domestic victims of the United States nuclear weapons program who have suffered severe health problems as a consequence of their exposure to nuclear materials. Mr. Lucero (deceased) was the Plaintiff's husband, and both parties admit that Mr. Lucero was entitled to a particular $42,500 in compensation for injuries suffered as a uranium miner working for the United States. Unfortunately, Mr. Lucero died on the same day his compensation claim was granted. Ms. Lucero claims that, as Mr. Lucero's surviving spouse, she is entitled to the same $42,500. The Department of Labor, relying on its own interpretations of the relevant statutes, disagrees.

I. Statutory and Regulatory Background

In the mid-20th century, the United Sates employed uranium miners to collect raw materials used to construct nuclear weapons and conducted substantial nuclear testing in the American West. 42 U.S.C. § 2210 note (2012); UNITED STATES DEPARTMENT OF JUSTICE, RADIATION EXPOSURE COMPENSATION ACT, (last accessed July 27, 2016). In 1990, Congress passed the Ration Exposure Compensation Act ("RECA"), which, in combination with the Energy Employees Occupational Illness Compensation Program Act of 2000 ("EEOICPA"), established a compensation fund and provides compensation for some of the collateral victims of the United States' nuclear weapons program, including uranium miners. Id. When enacting RECA, Congress noted that:

(3) radiation released in underground uranium mines that were providing uranium for the primary use and benefit of the nuclear weapons program of the United States Government exposed miners to large doses of radiation and other airborne hazards in the mine environment that together are presumed to have produced an increased incidence of lung cancer and respiratory diseases among these miners;
(4) the United States should recognize and assume responsibility for the harm done to these individuals; and
(5) the Congress recognizes that the lives and health of uranium miners and of individuals who were exposed to radiation were subjected to increased risk of injury and disease to serve the national security interests of the United States.
(b) PURPOSE. — It is the purpose of this Act to establish a procedure to make partial restitution to the individuals described in subsection (a) for the burdens they have borne for the Nation as a whole.
(c) APOLOGY. The Congress apologizes on behalf of the Nation to the [collateral domestic victims of the United States nuclear weapons program] and their families for the hardships they have endured.

Radiation Exposure Compensation Act of 1990, Pub. L. 101-426, 104 Stat. 920, as amended by Pub. L. 101-510, Nov. 5, 1990 (1990) (codified at 42 U.S.C. § 2210 note).

In conjunction with the compensation fund established by RECA, EEOICPA is a federal compensation statute providing benefits to employees or agents of the Department of Energy with illnesses caused by exposure to radiation and other toxic substances. Congress enacted EEOICPA in order to "provide for timely, uniform, and adequate compensation of covered employees and, where applicable, survivors of such employees, suffering from illnesses incurred by such employees in the performance of duty for the Department of Energy and certain of its contractors and subcontractors." 42 U.S.C. §7384d(b).

Under Part B of EEOICPA, employees and agents are awarded lump-sum payments of either $50,000 or $150,000 as compensation for designated occupational illnesses resulting from their exposure to certain hazardous materials, including uranium, in the performance of their duties. 42 U.S.C. §§ 7384l-7384w-1. Under Section 7384u(a) of EEOICPA, the Department of Labor awards lump-sum payments of $50,000 to individuals who previously have received an award of $100,000 from the Department of Justice under section 5 of the Radiation Exposure Compensation Act (RECA) to supplement the compensation the collateral victims of the United States nuclear weapons program had already received. 42 U.S.C. § 7384u(a).

Part E of EEOICPA provides additional, variable lump-sum payments to Department of Energy contractors based on a worker's percentage of permanent impairment and qualifying calendar years of established wage-loss and medical benefits; Part E further provides variable lump-sum payments to survivors of such employees who sustain illnesses due to their work-related exposure to toxic substances. 42 U.S.C. §§ 7385s-7385s-16. Part E extends these benefits to uranium miners and, in case of a uranium miner's death, to their survivors. 42 U.S.C. § 7385s-5. Furthermore, Section 7385s-4(a) provides that a determination under Part B that an employee is entitled to Part B benefits is presumed to be a determination under Part E that the employee contracted a covered illness due to work-related exposure to a toxic substance at a covered facility. 42 U.S.C. § 7385s-4(a).

Mr. and Ms. Lucero's Part E impairment claim under EEOICPA is the subject of this appeal.

Part E impairment claims are determined by the Department of Labor based on a determination of an employee's "impairment percentage" based on a $250,000 maximum. See 42 U.S.C. § 7385s-12. This is essentially a determination of how much impairment an employee has suffered due to their exposure to radiation as a uranium miner. See 42 U.S.C. § 7385s-12. For each impairment percentage point an employee suffers, the Department of Labor pays $2,500.00. Thus, the formula for determining compensation is: (%Percentage Impairment) x $2,500.00 = Compensation. Doc. 23, Brief ISO Pet., at 3-4.

After an initial compensation amount is set, a uranium miner can file an additional impairment claim every two years based on either "an increase in impairment rating" or "illness [resulting] from the impairment rating that formed the basis for the last award[.]" DoE Employees' Benefits Rule, 20 C.F.R. § 30.912 (2006).

The question of statutory interpretation at issue in this lawsuit is whether the EEOICPA (or subsequent Department of Labor regulation) lawfully precludes a surviving spouse from claiming her spouse's additional benefits under the Part E when her spouse has already received some benefits under Part E.

A. The Statutory Provisions and Agency Interpretations at Issue

After the death of a collateral victim contracted by the United States for its nuclear weapons program (such as a uranium miner), monetary benefits from the United States cannot be paid directly to that victim's estate under Section 7385s-2 or Section 7385s-1(1). 42 U.S.C. § 7385s-1(2). Instead, the survivor of the deceased must file her own claim under a different section of EEOICPA, 42 U.S.C. § 7385s-1(2). That Section states:

(1) CONTRACTOR EMPLOYEES - A covered DOE contractor employee shall receive contractor employee compensation under this part in accordance with section 7385s-2.1
(2) SURVIVORS - After the death of a covered DOE contractor employee, compensation referred to in paragraph (1) shall not be paid. Instead, the survivor of that employee shall receive compensation as follows:
(A) Except as provided in subparagraph (B), the survivor of that employee shall receive contractor employee compensation under this part in accordance with section 7385s-3.2
(B) In a case in which the employee's death occurred after the employee applied under this part and before compensation was paid under paragraph (1), and the employee's death occurred from a cause other than the covered illness of the employee, the survivor of that employee may elect to receive, in lieu of compensation under subparagraph (A), the amount of contractor employee compensation that the employee would have received in accordance with section 7385s-2 if the employee's death had not occurred before compensation was paid under paragraph (1).

42 U.S.C. § 7385s-1(emphasis added).3 The meaning of the highlighted language is the matter at issue in this case. It has been interpreted by Department of Labor regulations as follows:

(a) If a covered Part E employee dies after filing a claim but before monetary benefits are paid under Part E of the Act, and his or her death is from a cause other than a covered illness, his or her survivor can choose to receive either the survivor benefits payable on account of the death of that covered Part E employee, or the monetary benefits that would otherwise have been payable to the covered Part E employee.
(b) For the purposes of this section only, a death "from a cause

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