IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10024

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

July 16, 2008

Charles R. Fulbruge III

Clerk
No. 08-10024

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.

2

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 relevantfactors 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
No. 08-10024

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.

3

relevant factual and medical information and transfers it to the National

Institute for Occupational Safety and Health (NIOSH)2to 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-computersoftware 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
No. 08-10024

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.

4

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 ofthe 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
No. 08-10024

5

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 complaintin the Northern District of Texas,

alleging thatthe DOLacted arbitrarily and capriciously in refusing to adjustthe

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
No. 08-10024

6

the administrative record showed thatthe 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 notto “weigh the evidence pro and con butto 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
No. 08-10024

7

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
No. 08-10024

8

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. NIOSHIREP 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 doserisk 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
No. 08-10024

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?

9

uncertainty abouttheir 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.
No. 08-10024

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.

10

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
No. 08-10024

11

U.S. 194, 203 (1947) (noting that agencies “must retain power to deal with [ ]

problems on a case-by-case basis ifthe 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.