Richwalder v. U.S. Dep't of Labor, 13-CV-00325A(F)

CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
PartiesGERALDINE RICHWALDER as Executrix of the Estate of Helen Richwalder, deceased, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, Defendant.
Docket Number13-CV-00325A(F)
Decision Date18 September 2014

GERALDINE RICHWALDER as Executrix of the Estate of Helen Richwalder, deceased, Plaintiff,



September 18, 2014


Attorney for Plaintiff
1830 Liberty Building
420 Main Street
Buffalo, New York 14202

Attorney for Plaintiff
424 Main Street
Suite 1100
Buffalo, New York 14202

Attorney for Defendant
Assistant United States Attorney, of Counsel
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202


This case was referred to the undersigned by Honorable Richard J. Arcara on June 18, 2013, for all pretrial matters including preparation of a report and recommendation on dispositive motions. The matter is presently before the court on

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Defendant's motion to dismiss (Doc. No. 8), filed June 17, 2013, and Plaintiff's motion for summary judgment (Doc. No. 12), filed September 13, 2014.


On April 1, 2013, Plaintiff Geraldine Richwalder ("Plaintiff" or "Richwalder"), as Executrix of the Estate of Helen Richwalder, deceased, filed a complaint (Doc. No. 1) ("Complaint"), commencing this action against Defendant United States Department of Labor ("Defendant" or "DOL"), seeking relief pursuant to the Energy Employees Occupational Illness Compensation Program Act, 42 U.S.C. § 7384 et seq. ("EEOICPA" or "the Act"). In particular, Plaintiff, the daughter of Emil and Helen Richwalder, challenges the refusal by Defendant United States Department of Labor ("DOL" or "Defendant") to pay benefits under Part E of the Act awarded Plaintiff's mother, Helen RIchwalder ("Helen Richwalder"), as the surviving spouse of Emil Richwalder ("Emil Richwalder"), to Helen Richwalder's estate.

On June 17, 2013, Defendant filed a motion to dismiss (Doc. No. 8) ("Defendant's Motion"), seeking to dismiss the action under Fed.R.Civ.P. 12(b)(1) ("Rule 12(b)(1)"), for lack of subject matter jurisdiction or, alternatively, under Fed.R.Civ.P. 12(b)(6) ("Rule 12(b)(6)"), for failure to state a claim, and Defendant's Memorandum in Support of Motion to Dismiss (Doc. No. 9) ("Defendant's Memorandum"). In opposition to Defendant's Motion, Plaintiff filed on September 13, 2013, Plaintiff's Motion for Summary Judgment (Doc. No. 12), supported by the attached Plaintiff's Statement of Undisputed Material Facts (Doc. No. 12-1) ("Statement of Facts"), the Affidavit of Geraldine Richwalder in Opposition to Defendant's Motion to Dismiss and in Support of

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Plaintiff's Motion for Summary Judgment (Doc. No. 12-2) ("Plaintiff's Affidavit"), and Exhibits A through N (Doc. No. 12-3) ("Plaintiff's Exh(s). ___"), and the separately filed Plaintiff's Memorandum in Support of Motion for Summary Judgment and in Opposition to Defendant's Motion to Dismiss (Doc. No. 14) ("Plaintiff's Memorandum"). On September 30, 2013, Defendant filed Defendant's Reply Memorandum of Law in Response to Plaintiff's Opposition to Motion to Dismiss (Doc. No. 15) ("Defendant's Reply"). Oral argument was deemed unnecessary.

Based on the following, Defendant's Motion should be DENIED insofar as it seeks dismissal for lack of jurisdiction, and GRANTED as to the alternative request to dismiss for failure to state a claim; Plaintiff's Motion seeking summary judgment should be DISMISSED as moot.


The EEOICPA, enacted by Congress in 2000, is a compensation program for employees suffering from certain illnesses attributable to exposure to radiation and other toxic substances while performing work related to nuclear weapons production and testing programs for the United States Department of Energy ("DOE"), its predecessor agencies, and certain contractors and subcontractors. 42 U.S.C. §§ 7384, 7384(d). EEOICPA Part B ("Part B"), provides covered employees or their eligible survivors with a lump-sum payment and medical benefits for certain illnesses from radiation, beryllium, or silica exposure while working at DOE facilities, or contracted and subcontracted facilities, and EEOICPA Part E ("Part E"), provides covered employees or their eligible survivors lump-sum payments and medical benefits based on the worker's

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permanent impairment and calendar years of qualifying wage-loss. 20 C.F.R. § 30.0. Benefits under both Parts B and E are subject to the same administrative provisions for all claims under the EEOICPA. Id. Further, if there is no surviving spouse, Part B benefits can be paid in equal shares to all children of the covered employee alive at the time of payment, 42 U.S.C. § 7384s(e)(1)(B), whereas Part E benefits can be paid only to a covered child defined as a child of the covered employee who, at the time of the employee's death, was under the age of 18, a full-time student under the age of 23, or any age but incapable of self-support. 42 U.S.C. § 7385s-3(d)(2).

Claims filed under the EEOICPA are administered by the DOL's Division of Energy Employees Occupational Illness Compensation ("DEEOIC"). 42 U.S.C. § 7384d(a) (providing "[t]he President shall carry out the compensation program through one or more Federal agencies or officials, as designated by the President."); and Exec. Order No. 13179, 65 Fed.Reg. 77487 (Dec. 7, 2000) (delegating authority to the Secretary of Labor to "[a]dminister and decide all questions arising under the Act . . . including determining the eligibility of individuals with covered occupational illnesses and their survivors and adjudicating claims for compensation and benefits."). Congress has appropriated $ 250 million to the Energy Employees Occupational Illness Compensation Fund for payment of such claims. 42 U.S.C. § 7384g(b). A person seeking EEOICPA benefits must file a claim with the DOC's Office of Workers' Compensation Programs ("OWCP"). 20 C.F.R. §§ 30.100 & 30.101. See 20 C.F.R. § 30.2(a) (providing that because "the Secretary of Labor has been assigned primary responsibility for administering EEOICPA, almost the entire claims process is within the

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exclusive control of OWCP, and OWCP is responsible for granting or denying compensation under the Act.").

After reviewing a claim a recommended decision is issued by OWCP, 20 C.F.R. § 305, after which the claimant has 60 days to file objections with the DEEOIC's Final Adjudication Branch ("FAB") and request a hearing. 20 C.F.R. § 30.310. Alternatively, the claimant can submit a written waiver of the right to object to the FAB, thereby permitting the FAB to issue its final decision prior to the end of the 60-day period for filing objections. 20 C.F.R. § 30.311. If the claimant fails to timely file any objections or waiver, the FAB issues it final decision at the end of the 60-day period in which to object or waive. Id. After the FAB issues its final decision, a request for reconsideration must be made by the claimant within 30 days and if a timely request is made, the decision is no longer considered final. 20 C.F.R. § 30.319(a). If no timely request is made, the decision is considered final at the end of the 30-day period to request review. 20 C.F.R. § 30.319(b). Because no hearing is available as part of the reconsideration process, after granting a request for reconsideration of a final decision, a new final decision is issued which is considered final as of the date the new final decision issues. 20 C.F.R. § 30.319(c). If a claimant agrees with the OWCP's award of benefits under the EEOICPA, the claimant must complete an Acceptance of Payment form EN-20 ("EN-20 form"), on which the claimant can designate whether payment should be by direct deposit into the claimant's account at a financial institution, or by check. 20 C.F.R. § 30.316. Failure to return a completed EC-20 to the OWCP within 60 days of the final decision is deemed a rejection of payment. Id.

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A claimant may qualify for compensation under the Act based on a claim of cancer caused by exposure to radiation during employment at a DOE facility by demonstrating the cancer is "at least as likely as not," i.e., at least a 50% probability, that the cancer was caused by such exposure. Upon filing such claim with the OWCP, the claim is forwarded to the National Institute for Occupational Safety and Health ("NIOSH"), for a reconstruction or estimation of the amount of radiation exposure during the claimant's employment. 20 C.F.R. §§ 30.100, 30.101, 30.115, and 30.210. The NIOSH's dose reconstruction considers such factors as duration of employment. Causation, however, is statutorily presumed if the claimant qualifies as a member of the Special Exposure Cohort ("SEC") as defined under 42 U.S.C. §§ 7384l(14), 7384o, and 7384q. In other words, if a claimant meets the criteria of an SEC and has a specified cancer, a recommended decision awarding EEOICPA benefits will issue without requiring any further documentation and development of the claim. The Department of Health and Human Services ("HHS") "has exclusive control of the process for designating classes of employees to be added to the [SEC] . . . ." 20 C.F.R. § 30.2.


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