McNeely v. U.S. Dep't of Labor, Case No. 5:13-cv-03484-PSG

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtPAUL S. GREWAL
Docket NumberCase No. 5:13-cv-03484-PSG
Decision Date08 July 2014

ET AL., Defendants.

Case No. 5:13-cv-03484-PSG


Dated: July 8, 2014


(Re: Docket Nos. 30, 31)

Plaintiff Martha J. McNeely, pro se, brings this action challenging the Department of Labor's decision denying her application for survivor benefits under the Energy Employees Occupational Illness Compensation Program Act. She also seeks to reverse the DOL's decisions on her claims under the Privacy Act and Freedom of Information Act. The parties cross-moved for summary judgment based on the administrative record and appeared for a hearing. Having considered the papers and arguments of the parties, the court DENIES Plaintiff's motion for summary judgment and GRANTS Defendants' motion for summary judgment.


Plaintiff seeks survivor benefits for her father, Harold O. McNeely, Sr., under the Energy Employees Occupational Illness Compensation Program Act. The EEOICPA compensates

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Department of Energy workers who contract certain medical conditions1 because of their exposure to radiation or toxic substances on the job.2 EEOICPA also provides benefits to the workers' families if the workers pass away from the illness. Workers and their families can seek recovery under any of several "Parts" of the Act, each of which has distinct eligibility requirements.3

Mr. McNeely worked for the DOE for a total of six years, split between two separate periods. His first employment period ran from October 13, 1947 to January 23, 1952, and his second from August 29, 1955 to August 4, 1956.4 Twenty-four years after he left the DOE, Mr. McNeely was diagnosed with skin cancer.5 According to Plaintiff, at some point, he also suffered from salivary gland, esophageal, lung, thyroid, and oral cancer, as well as mesothelioma and asbestosis.6 Nine months after his skin cancer diagnosis, Mr. McNeely died of arteriosclerosis.7After his death, Plaintiff filed three separate claims for survivor benefits under the EEOICPA: two under Part B and one under Part E.8 Ultimately, the DOL denied all three of these claims.9

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While one of her claims was pending before the DOL, Plaintiff requested an amendment to Mr. McNeely's employment records under the Privacy Act.10 She sought to establish that Mr. McNeely had spent almost three more years in jobs covered by the EEOICPA than the record reflected.11 Because the sources of Plaintiff's information were beyond those that the DOL is required to consider, the DOL denied this request.12 Plaintiff appealed, and the Solicitor of Labor upheld the DOL's decision to deny amendment on December 20, 2013.13

Plaintiff then brought her case to federal court on July 29, 2013.14 She asks the court to reverse the DOL's decisions regarding her benefit claims under the EEIOCPA. She also seeks amendment to the DOL's record of Mr. McNeely's employment and damages for alleged violations of the Privacy Act and the Freedom of Information Act.15 Both parties now cross-move for summary judgment based on the administrative record.16


A. Standard For Reviewing the DOL's Decisions

This court has the authority to review the DOL's denials of benefits under the Administrative Procedure Act.17 Where the district court is reviewing an agency determination

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under the APA,18 the scope of the court's review is "confined to the administrative record" and the court generally does not engage in fact finding.19

Under the APA, the court must "hold unlawful and set aside" any agency action it finds to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law."20 The arbitrary and capricious standard is highly deferential, requiring the court to affirm administrative decisions so long as the agency articulates a rational connection between the facts found and decisions made.21 The court grants particular deference if the challenged administrative decision required a heightened degree of technical expertise.22

Summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure is appropriate where "there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law." As there are no disputes of material fact, summary judgment is appropriate for resolution of this case.

1. Standard For Part B Benefits

To recover benefits under Part B of the EEOICPA, "[t]he claimant bears the burden of proving by a preponderance of the evidence the existence of each . . . criterion necessary to establish eligibility."23 One such criterion is that DOE employment caused the employees illness.24

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Causation is presumed if the employee is member of a Special Exposure Cohort. To qualify as a member of an SEC, the claimant must provide proof of (1) at least 250 days of employment in covered facilities or classes, and (2) diagnosis of a specified cancer.25 The DOL may require a claimant to provide specific medical records to substantiate the diagnosis of the specified cancer.26

If the employee does not qualify for SEC membership, causation may still be established. The Department of Health and Human Services has set forth guidelines for calculating the probability of causation if an employee is not an SEC member.27 According to the guidelines, a software program calculates the probability using information like the dose-response relationship and the claimant's radiation exposure.28 The calculation requires a reasonable estimate of the radiation dose that the claimant received.29 This estimate comes from a dose reconstruction done by the National Institute for Occupational Safety and Health.30 A dose reconstruction characterizes the radiation environment to which an employee was exposed and translates the exposure into quantified radiation doses.31 NIOSH uses a hierarchy of methods to do this, using data like results

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from group monitoring only when data like the claimant's dosimetry records-recorded measures of exposure to radiation-are unavailable or inadequate.32 The data may come from any relevant source, including the DOE, interviews with the claimant, and NIOSH's records.33 NIOSH uses reasonable scientific assumptions and default values when necessary.34

2. Standards For Part E Benefits

EEOICPA Part E sets a higher bar for survivor benefit claimants than Part B.35 Of particular relevance to this action, if the DOL denies a Part E claim, the claimant has only 60 days from the administrative agency's final decision to seek judicial review in the United States district court. 36 If a claimant files suit seeking review after the 60-day period, the district court must dismiss the suit for lack of jurisdiction.37

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B. Standard For Reviewing Privacy Act And Freedom Of Information Act Claims

This court undertakes a de novo review of administrative decisions denying relief under both the Privacy Act and the Freedom of Information Act.38 However, as with other administrative actions, a claimant is required to exhaust his or her administrative remedies before initiating an action in federal court.39


A. The DOL's Denials of Plaintiff's Claims Were Neither Arbitrary Nor Capricious

Although Plaintiff's prayer for relief indicates that she seeks relief from all decisions rendered against her by the DOL,40 the operative complaint only raises substantive arguments regarding the Part B claims.41 Plaintiff argues that those decisions were arbitrary and capricious for two reasons: (1) the DOL failed to recognize that Mr. McNeely qualified as an SEC member based on his qualifying cancers;42 and (2) the DOL failed to properly calculate the probability that Mr. McNeely's workplace radiation exposure caused his cancer.43 In response, Defendants point out that each denial under Part B was tied to specific evidence in the record, or lack thereof.44 As for the Part E claim, Defendants argue that even if Plaintiff had raised appropriate, substantive

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arguments about the denial of benefits, the court lacks jurisdiction to consider the issue based on Plaintiff's failure to timely file suit.45 As explained below, Defendants have the better of each argument.

1. The Court Lacks Jurisdiction to Consider Plaintiff's Part E Claim

Turning first to the jurisdictional question, Defendants are correct that this court cannot consider Plaintiff's appeal of her Part E claim. Part E of the EEOICPA contains a firm 60-day statute of limitations for seeking judicial review that runs from the date that the DOL issues a final decision denying benefits.46 In this case, the DOL issued its final decision on Plaintiff's Part E claim on March 3, 2012.47 Plaintiff did not file this action until July 29, 2013, well after the 60-day period.48 On this...

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