IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 16, 2008
No. 08-10024 Charles R. Fulbruge III
Summary Calendar Clerk
MARGARET A. HAYWARD
Plaintiff-Appellant
v.
UNITED STATES DEPARTMENT OF LABOR, Secretary of Labor
Defendant-Appellee
Appeal from the United States United States District Court for the Northern
District of Texas, Fort Worth Division
Before HIGGINBOTHAM, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:
Margaret Hayward appeals the decision of the district court affirming the
Department of Labor’s (DOL) decision to deny survivor benefits for the death of
her husband. The Energy Occupational Illness Compensation Program Act, 42
U.S.C. § 7384 et seq. (the Act), provides, among other things, for the lump-sum
payment to survivors of persons who contracted cancer as a result of exposure
to radiation during employment in the United States nuclear weapons program.
Survivors may receive benefits under the Act “only if” there is a 50% or greater
probability that the decedent contracted cancer from exposure to radiation
during employment in a covered facility. Id. at §§ 7384l(9)(B), 7384n(b). To
No. 08-10024
make this determination, the DOL is required to use interactive software that
estimates the probability of causation for various types of cancer using certain
“default settings.” 42 C.F.R. §§ 81.20, 81.21. The sole issue in this appeal is
whether the DOL acted arbitrarily and capriciously in refusing to adjust these
default settings in light of the decedent’s exceedingly rare form of prostate
cancer. Under the deferential standard of review required, because the DOL set
forth a rational connection between the relevant factors and its decision to retain
the default settings, the district court did not err in granting summary judgment
upholding the DOL’s decision. As a result, we affirm.
I. STATUTORY SCHEME
Congress enacted The Energy Occupational Illness Compensation Program
Act to provide benefits to employees with illnesses caused by exposure to
radiation and other toxic substances in the course of their work for the
Department of Energy (DOE) or its predecessor agencies, and certain of its
contractors and subcontractors. See 42 U.S.C. § 7384. Under Part B of the Act,
employees or their eligible survivors can receive a lump-sum payment of
$150,000 for certain illnesses, including cancer, caused by exposure to radiation
in the course of employment at Department of Energy facilities. Id. at §§
7384l(9)(A) and (B), 7384s(a)(1). An employee or his or her survivors are entitled
to compensation under Part B of the Act “if, and only if, the cancer . . . was at
least as likely as not related to employment” in a covered facility. Id. at §
7384n(b).
An individual seeks benefits under Part B of the Act by filing a claim with
the DOL’s Office of Workers’ Compensation Programs (OWCP). 1 See 20 C.F.R.
§§ 30.100, 30.101. When a claim is made, the OWCP gathers the employee’s
1
The President assigned primary responsibility for administering Part B of the Act to
the DOL. Providing Compensation to America’s Nuclear Weapons Workers, 65 Fed. Reg.
77487, 77488 (Dec. 11, 2000). The DOL in turn delegated its responsibilities under Part B to
the OWCP.
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No. 08-10024
relevant factual and medical information and transfers it to the National
Institute for Occupational Safety and Health (NIOSH)2 to perform a radiation
dose reconstruction. The dose reconstruction estimates the amount of radiation
received by the employee during covered employment using a variety of factors
including the employee’s age, gender, employment history, workplace
characterization data, and any other information useful for characterizing
workplace radiation exposure. 42 C.F.R. § 82.14. The OWCP uses the completed
dose reconstruction to determine whether the employee’s cancer is “at least as
likely as not related to employment” in a covered facility. See 42 U.S.C. §
7384n(b).
The OWCP bases its probability calculation on an interactive-computer-
software program specifically designed for adjudication of claims under Part B
of the Act, the NIOSH-IREP. 42 C.F.R. § 81.20. The NIOSH-IREP “models the
dose-response relationship between ionizing radiation and 33 cancers using
morbidity data from the . . . Japanese atomic bomb survivor cohort.” Id. at §
81.10(a). The program uses these models coupled with NIOSH’s dose
reconstruction to calculate the probability that the employee developed cancer
due to radiation exposure during employment in a covered facility. The
program’s default settings account for uncertainty from several sources,
including statistical uncertainty in the various cancer risk models. Id. at §
81.11. The program, however, contains a feature entitled “User Defined
Additional Uncertainty” that “can be adjusted to account for the presence of
additional uncertainty and bias correction not presently” accounted for by the
program’s default settings. The program’s manual states that the default
2
The Department of Health and Human Services (HHS) was directed to develop
guidelines for the DOL to use in determining, based upon the radiation dose reconstruction,
the likelihood that an employee contracted cancer as a result of exposure to radiation while
employed in a covered facility. HHS has delegated its responsibilities under the Act to NIOSH.
See 42 C.F.R. § 82.1.
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No. 08-10024
settings should only be adjusted “after sufficient justification accompanied by a
written rationale.”
After OWCP finishes its probability of causation calculation, it issues a
recommended decision on the claim. 20 C.F.R. § 30.305(a). The claimant can file
objections within 60 days of the date of the recommended decision. Id. at §
30.310(a). Once adjudication of the claim is complete, the Final Adjudication
Branch within the OWCP issues the DOL’s final decision.
II. FACTUAL AND PROCEDURAL BACKGROUND
Margaret Hayward is the surviving widow of Milton Hayward. Mr.
Hayward worked in the DOE’s nuclear weapons program for over fifteen years,
during which time he was exposed to ionizing radiation. On February 3, 1997,
doctors diagnosed Mr. Hayward with sarcomatoid carcinoma, an exceedingly
rare form of prostate cancer.3 The cancer spread rapidly and he died shortly
thereafter.
Ms. Hayward filed a claim for compensation under Part B of the Act based
on her husband’s death. As required by the Act, the OWCP gathered Mr.
Hayward’s relevant factual and medical information and transferred the claim
to NIOSH to perform a radiation dose reconstruction. OWCP then used the dose
reconstruction and the NIOSH-IREP program to calculate a 21.41% probability
that Mr. Hayward developed cancer from radiation exposure during his
employment with the DOE. Based on this figure, the OWCP issued a
recommended decision denying Ms. Hayward’s claim.
Ms. Hayward objected to the OWCP’s recommended decision and
requested a hearing. Although she lodged several objections, she primarily
contended that the OWCP significantly underestimated the probability that
radiation caused Mr. Hayward’s cancer due to its failure to consider the rarity
3
The medical literature contained in the record indicates that less than 50 cases of
sarcomatoid carcinoma of the prostate have ever been reported in the English language.
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No. 08-10024
of sarcomatoid carcinoma and its alleged higher correlation with radiation
exposure (as compared to other forms of prostate cancer). At the hearing, Ms.
Hayward provided medical literature regarding cancer patients treated with
radiation therapy and a letter from Mr. Hayward’s doctor to support these
claims. Ms. Hayward contended that this evidence justified adjusting the
default settings of the “User Defined Uncertainty Distribution” within the
NIOSH-IREP program.
Following the hearing, the DOL hearing representative sought guidance
from a DOL physicist concerning the propriety of adjusting the default settings
of the NIOSH-IREP program based on Ms. Hayward’s objections. Nearly a
month later, and after consulting with a representative of the developer of the
program, the DOL physicist concluded that Ms. Hayward’s objections did not
justify altering the program’s default settings. Thereafter, the OWCP’s Final
Adjudication Branch issued a final decision denying Ms. Hayward’s survivor
claim.
Ms. Hayward filed an original complaint in the Northern District of Texas,
alleging that the DOL acted arbitrarily and capriciously in refusing to adjust the
default settings of the NIOSH-IREP program to account for the rarity of Mr.
Hayward’s cancer. Subsequently, the Director of the Division of Energy
Employees Occupational Illness Compensation Program, acting under his
regulatory authority, vacated the OWCP’s final decision and returned Ms.
Hayward’s claim to the Final Adjudication Branch for a revised final decision
addressing in more detail Ms. Hayward’s objections. The revised final decision
more thoroughly addressed Ms. Hayward’s objections by incorporating the
findings of the DOL physicist. Ms. Hayward then filed an amended complaint
in the Northern District, again arguing that the DOL acted arbitrarily and
capriciously in denying her claim. The DOL moved for summary judgment on
this claim, arguing that it was entitled to judgment as a matter of law because
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the administrative record showed that the OWCP considered the relevant factors
and issued a final decision rationally related to those factors. The district court
granted summary judgment for the DOL. Ms. Hayward appeals that decision.
III. STANDARD OF REVIEW
This Court reviews the grant of summary judgment de novo, applying the
same standard to review the DOL decision as the district court. Templet v.
HydroChem Inc., 367 F.3d 473, 477 (5th Cir. 2004). Because Part B of the Act
does not contain a standard of review and does not require that a formal hearing
be held, the district court correctly reviewed the OWCP’s final decision under
the arbitrary and capricious standard set forth in section 706(2)(A) of the
Administrative Procedures Act.
The arbitrary and capricious standard is “highly deferential,” and we must
afford the agency’s decision “a presumption of regularity.” United States v.
Garner, 767 F.2d 104, 116 (5th Cir. 1985) (citation omitted). We limit our review
to whether the agency “articulated a rational connection between the facts found
and the decision made,” Pension Benefit Guar. Corp. v. Wilson N Jones Mem’l
Hosp., 374 F.3d 362, 367 (5th Cir. 2004), and “it is well-settled that an agency’s
action must be upheld, if at all, on the basis articulated by the agency itself.”
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43
(1983). Although we must conduct a “searching and careful review” of the
administrative record to determine whether the agency acted in an arbitrary and
capricious manner, we may not substitute our judgment for the agency’s.
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-416 (1971).
Our mandate is not to “weigh the evidence pro and con but to determine whether
the agency decision was based on a consideration of relevant factors and whether
there was a clear error of judgment.” Delta Found., Inc. v. United States, 303
F.3d 551, 562 (5th Cir. 2002) (internal quotations omitted). Courts will “uphold
a decision of less than ideal clarity if the agency’s path may reasonably be
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discerned.” Nat'l Ass'n of Home Builders v. Defenders of Wildlife, ___ U.S. ___,
127 S. Ct. 2518, 2530 (2007) (quoting Bowman Transp., Inc. v. Arkansas-Best
Freight System, Inc., 419 U.S. 281, 286 (1974)). In reviewing technical agency
decisions such as these, “[w]e must look at the decision not as a chemist,
biologist, or statistician that we are qualified neither by training nor experience
to be, but as a reviewing court exercising our narrowly defined duty of holding
agencies to certain minimal standards of rationality.” Gulf Restoration Network
v. United States Dep’t of Transp., 452 F.3d 362, 368 (5th Cir. 2006) (citation
omitted).
IV. DISCUSSION
This case presents the very circumstance contemplated by Gulf
Restoration. Ms. Hayward asks the court to disregard the agency’s expertise and
substitute its own judgment of scientific literature unaccompanied by expert
analysis. Ms. Hayward’s sole contention is that the OWCP acted arbitrarily and
capriciously in refusing to adjust the default settings of the NIOSH-IREP
program to account for the rare nature of her deceased husband’s cancer. She
bases this argument on two related grounds. First, she argues that sarcomatoid
carcinoma, because of its rarity, cannot be fairly compared to the typical
adenocarcinoma, the type of prostate cancer most represented in the dose-risk
relationship model used by the NIOSH-IREP program to determine the
probability of causation for all types of prostate cancer. Second, she argues that
sarcomatoid carcinoma should be treated differently than other forms of prostate
cancer because, she contends, it is far more likely to be caused by exposure to
radiation.
Having reviewed the administrative record, we agree that the OWCP did
not engage in arbitrary and capricious decision making when it chose to retain
the default settings of the NIOSH-IREP program. The OWCP, after consulting
with a DOL physicist, issued a final decision that specifically addressed both of
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Ms. Hayward’s objections. With respect to Ms. Hayward’s objection concerning
the rarity of sarcomatoid carcinoma, the OWCP responded that the excess
relative risk (ERR) of prostate (or any) cancer is determined by the following
formula: ERR/dose [Cancer risk attributable to radiation exposure] [divided by]
[base-link risk (of that cancer to the general population) [plus] cancer risk
attributable to radiation exposure]. It further stated:
The prostate cancer morphology (i.e., adenocarcinoma or
sarcomatoid carcinoma) does not affect the ERR/dose and the
resultant NIOSH-IREP result. Any difference (or rarity) in the type
of prostate cancer is already accounted for in the definition of
ERR/dose; the incidence rate of each of these prostate cancers is
inherently reflected within the ‘general population’ cohort. NIOSH-
IREP uses the ERR/does data for ‘All Male Genitalia’ from the
Japanese Atomic Bomb survivors, and therefore, would be inclusive
of all types of prostate cancers.
Thus, the OWCP specifically considered Ms. Hayward’s objection
concerning the rarity of sarcomatoid carcinoma but determined that the dose-
risk model that the NIOSH-IREP program uses to calculate the probability of
causation for all types of prostate cancer already accounts for this factor. In
other words, the general prostate cancer data used by the OWCP, while based
primarily on adenocarcinoma (because it is more common), includes cases of
sarcomatoid carcinoma as well and thus yields an accurate probability of
causation for both types of prostate cancer.
Indeed, the practice of grouping rare cancers in more general cancer
categories was specifically intended by HHS–the agency charged with the task
of developing a method of computing causation under the Act. HHS regulations
indicate that the failure to group rare cancers with more common cancers would
provide the rare cancers with an unfair advantage due to the high level of
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uncertainty about their dose-risk relationship.4 See Guidelines for Determining
Probability of Causation Under the Employees Energy Occupational Illness
Compensation Program Act of 2000; Final Rule, 67 Fed. Reg. 22296, 22302 (May
2, 2002). To counter this uncertainty, HHS noted that the dose-risk models used
by NIOSH would group rarer cancers into more general cancer categories. Id.
Thus, in refusing to adjust the default settings of the NIOSH-IREP program to
account for the rarity of sarcomatoid carcinoma, the OWCP operated the
program consistent with its intended use.
With respect to Ms. Hayward’s argument that the NIOSH-IREP program
failed to account for the greater probability that radiation exposure caused her
husband’s cancer, the OWCP’s final decision responded:
• Radiation is only one of many potentially cancer-causing agents; the
carcinogenic effects of radiation cannot be distinguished from any other
toxic agent. Further, it is a generally accepted fact that prostate cancer
is less radiogenic than many other cancers.
• There is no evidence that sarcomatoid carcinoma of the prostate is highly
correlated with radiation exposure, nor that this rare form of prostate
cancer (sarcomatoid) is more radiogenic than the more general form
(adenocarcinoma)
In its initial decision, the OWCP more fully explained its statement that there
is “no evidence” that sarcomatoid carcinoma is more radiogenic than
adenocarcinoma. The OWCP noted that the:
literature [Ms. Hayward] submitted on the correlation on this point refers
to radiation that was received as part of a therapeutic treatment for the
[adenocarcinoma] form of prostate cancer. Such treatment involves a
much more focused and localized administration of radiation than would
occur in an occupational setting.
4
Indeed, this problem inheres in Ms. Hayward’s argument. Given the extreme rarity
of Mr. Hayward’s cancer–only 50 or so cases–what scientifically valid studies could there be
that would support an adjustment that is not arbitrary?
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No. 08-10024
The literature submitted by Ms. Hayward suggests that individuals
already suffering from the adenocarcinoma form of prostate cancer are more
likely to develop sarcomatoid carcinoma if they undergo radiation therapy as
treatment. The OWCP specifically noted, and Ms. Hayward does not contest,
that Mr. Hayward was diagnosed with only one primary cancer, sarcomatoid
carcinoma. Thus, the OWCP could rationally conclude that this literature is
inapplicable to Mr. Hayward’s situation.5
Under our limited scope of review, the question is not whether
sarcomatoid carcinoma is more radiogenic than other forms of prostate cancer,
whether Mr. Hayward contracted cancer from radiation exposure during his
employment, or even whether the OWCP used the best method to make this
determination. Rather, the question is a narrow one: Whether the OWCP
considered the relevant factors and provided a reasoned basis for its decision to
deny Ms. Hayward’s claim? After reviewing the administrative record, we
conclude that the OWCP satisfied this minimum threshold and thus its denial
of Ms. Hayward’s survivor claim was not arbitrary or capricious.
Ms. Hayward also contends that the lack of specific standards for
adjusting the User Defined Additional Uncertainty feature of the NIOSH
renders any decision of the DOL arbitrary and capricious. Given Ms. Hayward’s
failure to establish that Mr. Hayward’s form of cancer warrants an adjustment,
this argument is unavailing. See Sierra Club v. U.S. Fish and Wildlife Service,
245 F.3d 434, 446 (5th Cir. 2001) (deferring to agency to resolve ambiguities).
Agencies are not required to proceed by set standards in order to avoid a finding
that their actions are arbitrary and capricious. See SEC v. Chenery Corp., 332
5
Mr. Hayward’s doctor suggested that his cancer was probably caused by his radiation
exposure. No basis for this conclusion is provided and the doctor’s credentials to give such an
opinion are not in the record before us. In any event, while this evidence could constitute some
evidence to support a decision in Ms. Hayward’s favor, it is not sufficient to render the DOL’s
decision arbitrary and capricious.
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U.S. 194, 203 (1947) (noting that agencies “must retain power to deal with [ ]
problems on a case-by-case basis if the administrative process is to be effective.”).
It is sufficient that the DOL considered the relevant factors and provided a
reasoned basis for its decision to retain the default settings in this case.
Finally, Ms. Hayward asserts that the Act must be liberally construed to
effectuate its remedial purpose of compensating workers that developed diseases
while serving in the nation’s nuclear weapons program. Although we do not
disagree with Ms. Hayward’s characterization of the Act, its remedial purpose
cannot expand the narrow scope of our review under the Administrative
Procedures Act. See Norfolk S. Railway Co. v. Sorrell, ___ U.S. ___, 127 S. Ct.
799, 808 (2007) (noting that a “statute’s remedial purpose cannot compensate for
the lack of statutory basis.”).
The administrative record in this case plainly reveals a rational connection
between the relevant facts and the DOL’s decision to deny Ms. Hayward’s Part
B claim. Our limited review ends there. Accordingly, we affirm the district
court’s summary judgment order.
AFFIRMED.
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