                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0346n.06

                                          No. 15-6189

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                Jun 22, 2016
LYNDA L. FREEMAN,                                       )                   DEBORAH S. HUNT, Clerk
                                                        )
       Plaintiff-Appellant,                             )
                                                        )     ON APPEAL FROM THE
v.                                                      )     UNITED STATES DISTRICT
                                                        )     COURT FOR THE WESTERN
UNITED STATES DEPARTMENT OF LABOR,                      )     DISTRICT OF KENTUCKY
                                                        )
       Defendant-Appellee.                              )
                                                        )



BEFORE: KEITH, CLAY, and WHITE, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. Appellant Lynda L. Freeman (“Freeman”) appeals

the district court’s affirmance of a United States Department of Labor (“DOL”) decision. The

DOL denied Freeman’s claim for compensation under the Energy Employees Occupational

Illness Compensation Program Act of 2000 (“EEOICPA” or “the Act”). Freeman sought review

of this decision, asserting that the DOL’s denial of her claim for survivor benefits under the Act

was arbitrary and capricious. She also sought review of the DOL’s denial of her motion to

reopen. The district court held that the DOL’s denial of Freeman’s claim was not arbitrary or

capricious. The court also concluded that the DOL’s denial of her motion to reopen is not

subject to judicial review. For the following reasons, we AFFIRM.
No. 15-6189, Freeman v. U.S. Dep’t of Labor


                                     I.      BACKGROUND

   A. Statutory and Regulatory Background

       The EEOICPA established a federal compensation program. See 42 U.S.C. § 7384. The

program provides benefits to individuals who have illnesses that were caused by exposure to

radiation or beryllium in the course of their work for the Department of Energy (“DOE”). Id.

Under Part B of the Act, covered employees (or their eligible survivors) can receive a lump-sum

payment of $150,000 (and coverage of medical expenses) for covered beryllium illnesses,

specified cancers, and other specified illnesses. See 42 U.S.C. §§ 7384n-s. Chronic Beryllium

Disease (“CBD”) is one of the covered beryllium illnesses. See 42 U.S.C. § 7384l.

       A claimant seeking compensation under Part B based on CBD must first provide the

Department of Labor (“DOL”)1 with proof of an employee’s qualification as a “covered

beryllium employee.” See id. at §§ 7384s, 7384l(1). This means proof that the employee was

potentially exposed to beryllium in the performance of duty at a covered facility. See id. at

§ 7384l(7). When documentation establishes employment at a DOE facility “during a period of

time when beryllium dust, particles, or vapor may have been present,” an employee’s exposure

to beryllium is presumed in the absence of substantial evidence to the contrary. See id. at

§ 7384n.




       1
          The DOL is the adjudicatory agency for claims under the Act. See Watson v. Solis,
693 F.3d 620, 623 (6th Cir. 2012). The DOL has delegated its responsibilities under the Act to
the Office of Workers’ Compensation Programs (OWCP). 20 C.F.R. § 30.1. Therefore, “[a]n
employee, or the employee’s survivor, files a claim for EEOICPA benefits with the [OWCP].”
Gomez v. United States, 459 F. App’x 701, 703 (10th Cir. 2012); accord 20 C.F.R. § 30.100(a).
Once the OWCP district office renders a recommendation on a claimant’s case, the claimant may
file written objections with the Final Adjudication Branch (FAB) within the OWCP. 20 C.F.R.
§ 30.310. For simplification, the agency rendering the decision before the court is referred to as
the DOL throughout this opinion. Cf. Watson, 693 F.3d at 623.
                                                2
No. 15-6189, Freeman v. U.S. Dep’t of Labor


        Once beryllium exposure is established, recovery under the Act then depends on when

the person was alleged to have been diagnosed with CBD. See id. at § 7384l(13). Those who

were allegedly diagnosed with CBD before January 1, 1993 must satisfy different criteria than

those were allegedly diagnosed after that date. See id. It is undisputed that the pre-1993 criteria

apply here. See Appellant Br. at 31. In order to meet the pre-1993 requirements, the claimant

must show “occupational or environmental history, or epidemiologic evidence of beryllium

exposure,” and satisfy:

        any three of the following criteria [through medical evidence]: (I) Characteristic
        chest radiographic (or computed tomography (CT)) abnormalities. (II) Restrictive
        or obstructive lung physiology testing or diffusing lung capacity defect. (III)
        Lung pathology consistent with [CBD]. (IV) Clinical course consistent with a
        chronic respiratory disorder.         (V) Immunologic tests showing beryllium
        sensitivity (skin patch test or beryllium blood test preferred).

See 42 U.S.C. § 7384l(13); 20 C.F.R. § 30.100(c)(2) (noting that, with the exception of a covered

uranium employee, the claimant must submit medical evidence of the employee’s covered

illness).

    B. Freeman Seeks Compensation

        Freeman’s father, Ezra Freeman (“Ezra”), was an employee at Paducah Gaseous

Diffusion Plant (the “Plant”).     Ezra died in 1991.      In 2003, Freeman filed a claim for

compensation under Parts B and E of the EEOICPA. She asserted that her father developed lung

cancer and emphysema as a result of hazardous exposure to “beryllium and/or welding fumes” at

the Plant. This claim was denied in 2006.

        In that same year, Freeman filed another claim for compensation under Part B only. She

submitted additional medical evidence and alleged that her father had CBD. A District Medical

Consultant reviewed the evidence submitted by Freeman and opined that the records showed a

clinical course consistent with chronic respiratory disorder and a diffusion lung capacity defect.


                                                3
No. 15-6189, Freeman v. U.S. Dep’t of Labor


However, the doctor opined that Ezra’s medical records—although they showed findings

consistent with CBD—did not support a diagnosis of CBD. Taking into account this medical

opinion, the DOL applied the presumption of beryllium exposure, but found that only two of the

five pre-1993 criteria were met: restrictive or obstructive lung physiology testing and a clinical

course consistent with a chronic respiratory disorder. Because Freeman failed to show three of

the five criteria, Freeman’s claim was denied in 2007.

       Thereafter, Freeman submitted additional medical evidence, and the DOL vacated its

2007 denial to determine whether this new evidence made a difference to Freeman’s claim. The

DOL then had a second District Medical Consultant review Freeman’s claim. This medical

doctor concluded that the records reflected a clinical course consistent with a chronic respiratory

disorder and the pulmonary function tests showed an obstructive physiology and a diffusion

capacity defect consistent with CBD, but that Ezra’s x-rays and CT scans did not “show

characteristic abnormalities of CBD,” nor did his lung pathology reports show findings

consistent with CBD, “even on an at least as likely as not basis.” Based on this report, a Claims

Examiner issued a recommended decision denying Freeman’s claim.

       Freeman objected to the recommendation and requested a hearing. After a hearing, the

DOL denied Freeman’s claim again in August 2009, the “Final Decision.” Freeman then filed a

request for reconsideration which was denied in October 2009. After an unsuccessful attempt at

reopening her case, Freeman filed a second request to reopen based upon more evidence of

beryllium exposure, but that request was denied in April 2014.

   C. Freeman Seeks Judicial Review

       Thereafter, Freeman filed a complaint in federal district court, seeking review of the

DOL’s 2009 denial of her claim for compensation and review of the DOL’s 2014 denial of her



                                                4
No. 15-6189, Freeman v. U.S. Dep’t of Labor


second request to reopen.     Freeman argued that Ezra qualified as a member of a “special

exposure cohort” (“SEC”) because he “worked for more than 250 days at the” Plant, “performed

all of his work ‘at a gaseous diffusion plant located in Paducah, Kentucky[,]’” and developed

lung cancer, which ultimately led to his death. Freeman asserted that lung cancer is a specified

cancer that qualifies a person for membership in the “special exposure cohort,” and therefore she

is entitled to survivor benefit compensation under the Act as his only surviving child. Freeman

argued, in the alternative, that even if Ezra did not qualify as a member of the special exposure

cohort, she is nonetheless entitled to benefits under the Act because Ezra had Chronic Beryllium

Disease.

       With respect to Freeman’s CBD argument, the district court concluded that the DOL’s

decision was not arbitrary or capricious because two medical consultants concluded that Freeman

failed to satisfy the criteria for showing a diagnosis of CBD. The court concluded that the

DOL’s decision was based on “consideration of the relevant factors” and there was no clear error

of judgment.

       The district court further concluded that Freeman’s “special exposure cohort” argument

was irrelevant. In so concluding, the district court reasoned that SEC status is relevant only for

compensation for cancer, and the judicial review “encompasse[d] only Freeman’s claim for

CBD, not her prior claim for cancer.” Lastly, the district court concluded that the DOL’s denial

of Freeman’s motion to reopen was not subject to judicial review, but even if it was, the district

court concluded that this claim failed on the merits. Freeman timely appealed to this court.

                              II.    APPELLATE JURISDICTION

       The district court had jurisdiction over this matter pursuant to 28 U.S.C. § 1331 federal

question jurisdiction because a federal question under the Administrative Procedure Act



                                                5
No. 15-6189, Freeman v. U.S. Dep’t of Labor


(“APA”) was presented. See Jama v. Dep’t of Homeland Sec., 760 F.3d 490, 494 (6th Cir.

2014). The district court’s order resolving the question was a final order, so this court has

jurisdiction to review it pursuant to 28 U.S.C. § 1291.

                                 III.    STANDARD OF REVIEW

       “When reviewing an administrative agency’s final decision under the APA, this court

reviews the district court’s decision de novo.” Latin Ams. for Soc. & Econ. Dev. v. Adm’r of

Fed. Highway Admin., 756 F.3d 447, 462 (6th Cir. 2014). In other words, “we do not defer to

the district court’s decision, but instead review the administrative decision as if we were the first

reviewing court.” Meister v. U.S. Dep’t of Agric., 623 F.3d 363, 370 (6th Cir. 2010). Our

review of the agency’s decision is governed by the APA. See Ky. Waterways All. v. Johnson,

540 F.3d 466, 473 (6th Cir. 2008). “The APA directs that when reviewing the decision of an

administrative agency, a court shall ‘hold unlawful and set aside the agency action’ if the action

is ‘arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.’” Id.

(quoting 5 U.S.C. § 706(2)(A)). “A court reviewing an agency’s adjudicative action should

accept the agency’s factual findings if those findings are supported by substantial evidence on

the record as a whole.” Id. (quoting Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992)). The court

must also “consider whether the decision was based on a consideration of the relevant factors

and whether there has been a clear error of judgment.” Id. (internal quotation marks and citation

omitted).

       “Review under the arbitrary and capricious standard is deferential[.]” Nat’l Ass’n of

Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 (2007). This standard “is the least

demanding review of an administrative action.” Coal. for Gov’t Procurement v. Fed. Prison

Indus., Inc., 365 F.3d 435, 475 (6th Cir. 2004). However, the standard does not require that we



                                                 6
No. 15-6189, Freeman v. U.S. Dep’t of Labor


“merely . . . rubber stamp the [agency’s] decision.”      Ky. Waterways All., 540 F.3d at 474

(internal quotation mark omitted) (second alteration in original) (quoting Jones v. Metro. Life

Ins. Co., 385 F.3d 654, 661 (6th Cir. 2004)). We will vacate the agency’s decision if the agency:

       has relied on factors which Congress had not intended it to consider, entirely
       failed to consider an important aspect of the problem, offered an explanation for
       its decision that runs counter to the evidence before the agency, or is so
       implausible that it could not be ascribed to a difference in view or the product of
       agency expertise.

Nat’l Ass’n of Home Builders, 551 U.S. at 658 (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc.

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

                                       IV.     DISCUSSION

   A. The Denial of Freeman’s Claim

       The crux of the DOL’s decision was that Freeman failed to show that her father had been

diagnosed with CBD. On appeal, Freeman argues that the DOL admitted that Ezra’s “medical

records showed findings consistent with” CBD, yet it arbitrarily denied Freeman’s claim for

survivor benefits. See Appellant Br. at 36. She asserts that “interstitial fibrosis” is a diagnosis

that establishes CBD, and Ezra’s medical records show that he was diagnosed with “interstitial

lung disease” with “basilar fibrosis,” and with “interstitial infiltration.” See id. Freeman’s

argument is unavailing for a number of reasons.

       First, Freeman relies too heavily on the DOL’s conclusion that her father’s medical

records “showed findings consistent with CBD.” See 2009 Final Decision, R. 44, Page ID 463

(emphasis added). While the DOL noted that some findings in Ezra’s records were consistent

with CBD, it also noted that two doctors on two separate occasions opined that—notwithstanding

some consistencies—the medical evidence “was insufficient to support a diagnosis of CBD[.]”

Id. at Page ID 465 (emphasis added).



                                                  7
No. 15-6189, Freeman v. U.S. Dep’t of Labor


       Second, Freeman’s argument regarding Ezra’s diagnosis for interstitial lung disease is

unpersuasive. The District Medical Consultant reviewed the medical records and concluded that

although “[a] few readings of conventional chest radiographs refer to signs of fibrosis in several

areas of the lung[,]” “[t]he reports of the chest CT scans” showed no interstitial fibrosis or other

abnormalities characteristic of or consistent with CBD. Freeman essentially asks this court to re-

interpret the medical evidence despite the medical consultant’s opinion and the DOL’s reliance

on that opinion—something this court cannot do. See McAlister v. Liberty Life Assur. Co. of

Boston, No. 15-5801, 2016 WL 2343030, at *8 (6th Cir. May 4, 2016) (“[W]e are not medical

specialists and that judgment is not ours to make.”) (quoting Elliott v. Metro. Life Ins. Co.,

473 F.3d 613, 622-23 (6th Cir. 2006)); see also Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43

(noting that under arbitrary and capricious review, “a court is not to substitute its judgment for

that of the agency”). Therefore, this argument is similarly unavailing.

       Lastly, there is no indication that the agency relied on improper factors, entirely failed to

consider an important aspect of Freeman’s claim, offered an explanation for its decision that runs

counter to the evidence before the agency, or that its decision was implausible. See Nat’l Ass’n

of Home Builders, 551 U.S. at 658. Indeed, it appears the agency gave Freeman opportunity

after opportunity to succeed on her claim—it vacated its first denial after receiving more

evidence from Freeman, it held a hearing, had two independent doctors review Freeman’s file on

two separate occasions, and gave Freeman the benefit of the presumption of beryllium exposure.

Ultimately, Freeman was unable to provide evidence showing three out of the five criteria

required to establish CBD for diagnoses before January 1, 1993, foreclosing her claim.2 Under



       2
        We do not find persuasive Freeman’s argument—made for the first time in her reply
brief—that the DOL “improperly” relied on the opinions of the District Medical Consultants
because the medical records clearly met the statutory criteria, and to the extent they were
                                                 8
No. 15-6189, Freeman v. U.S. Dep’t of Labor


these circumstances, we cannot conclude that the agency acted arbitrarily or capriciously in

denying Freeman’s claim. See Watson v. Solis, 693 F.3d 620, 626 (6th Cir. 2012) (where the

claimant fails to provide evidence that is required under the Act, the DOL does not act arbitrarily

or capriciously in denying benefits).3

   B. The Denial of Freeman’s Motion to Reopen

       The district court concluded that judicial review of a denial of a motion to reopen under

the EEOICPA is precluded. Here, the DOL argues that the decision to deny a motion to reopen

under Part B is not reviewable because 1) it is not a “final agency action” subject to review under

the APA, and 2) it is a decision “committed to agency discretion by law,” and thus is

unreviewable pursuant to 5 U.S.C. § 701(a)(2). See Appellee Br. at 22-29. Neither this court nor

any court of appeals has decided this precise judicial review question. However, we need not

decide this question today.

unclear, the DOL should have sought clarification from the treating physician. This argument is
waived. Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010) (“We have consistently held . . .
that arguments made to us for the first time in a reply brief are waived.”). Even if we were to
consider the argument, it would fail. Freeman’s argument ignores the section of the procedure
manual that provides, regarding referrals to medical consultants, that although “[claims
examiners] should refer claims to a [medical consultant] for a medical review after all means of
obtaining the evidence from the treating physician is exhausted,” they “may also refer cases to a
[medical consultant] when the medical reports and/or tests do not include a clear interpretation
and/or if there is a specific question(s) about the medical evidence.” EEOICPA Procedure
Manual, ch. 2-1000.8 (emphasis added). Further, despite Freeman’s insinuations, the DOL did
not fail to send relevant medical records to Dr. Beckett—the first medical consultant to review
Ezra’s file. Rather, Dr. Beckett reviewed the file before Freeman submitted the additional
medical records, and once they were submitted, the DOL reopened the claim and referred the
new records to another medical consultant.
       3
         Freeman’s argument that she is entitled to benefits for her father’s alleged CBD based
on his alleged membership in the “special exposure cohort” is without merit. As the district
court properly determined, this argument is irrelevant to the claim before the court, which
encompasses the denial of benefits under Part B based on a diagnosis of CBD. By contrast,
inclusion in the “special exposure cohort” entitles members who contracted specified cancers to
compensation under Part B. See 42 U.S.C. §§ 7384l(9)(A), 7384l(14). The Final Decision of
which Freeman seeks review denied her survivor claim under Part B “for the condition of
[CBD],” not cancer.
                                                9
No. 15-6189, Freeman v. U.S. Dep’t of Labor


          As we have done under similar circumstances, “we assume without deciding, for

purposes of argument, that the issue is reviewable[.]” See Amezola-Garcia v. Lynch, No. 15-

3328, 2016 WL 1399347, *3 n.2 (6th Cir. April 11, 2016) (collecting cases).               “Such an

assumption does not run afoul of” the Supreme Court’s “prohibition against ‘hypothetical

jurisdiction,’” because “arguments that a court may not review agency action that is ‘committed

to agency discretion by law’ under 5 U.S.C. § 701(a)(2) do not go to the jurisdiction of the

court.”     Id.; see also Jama, 760 F.3d at 494 n.4 (noting that the APA does not confer

jurisdiction).

          In support of her request to reopen, Freeman submitted additional evidence of her father’s

exposure to beryllium. But as stated above, additional evidence of his exposure to beryllium was

of no consequence to Freeman’s claim because the DOL had already presumed that her father

had been exposed to beryllium. Accordingly, even assuming judicial review of the denial of her

request to reopen is proper, Freeman still loses. Cf. Vasha v. Gonzales, 410 F.3d 863, 876 (6th

Cir. 2005) (assuming without deciding that judicial review was proper, and concluding that the

claimant was not entitled to have her claim reviewed by a three-member panel of the BIA

because her claim nonetheless lacked merit).

                                        V.      CONCLUSION

          For the foregoing reasons, the judgment of the district court is AFFIRMED.




                                                  10
