2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-22-2011

John Yatsko v. United States Dept of Labor Of

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2546

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 10-2546

____________

JOHN S. YATSKO;

SAMUEL H. MOATZ,

 Appellants

v.

OFFICE OF WORKERS COMPENSATION PROGRAMS, U.S. Department of Labor;

SHELBY HALLMARK, In His Official Capacity as

Director of the OWCP, U.S. Department of Labor;

PETER M. TURIC, In His Official Capacity as Director of the

Energy Employees Occupational Illness Compensation Program,

U.S. Department of Labor, Director of the OWCP

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 5-09-cv-00141)

District Judge: Honorable Thomas M Golden

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 26, 2011

Before: FUENTES, FISHER and NYGAARD, Circuit Judges.

(Filed: July 22, 2011)

____________

OPINION OF THE COURT

____________
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FISHER, Circuit Judge.

John S. Yatsko and Samuel H. Moatz appeal from the final order of the District 

Court disposing of all claims and denying their request for declaratory and injunctive 

relief against the Office of Workers Compensation Programs (“OWCP”). They sought to 

enjoin OWCP from terminating their benefits under the Energy Employees Occupational 

Illness Compensation Program Act (“EEOICPA”), 42 U.S.C. § 701 et seq. For the 

reasons set forth below, we will affirm.

I.

We write exclusively for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we set forth only those facts necessary to our 

analysis.

Yatsko and Moatz are former employees of a beryllium manufacturing facility, 

NGK Metals Corporation in Reading, Pennsylvania (“Reading Plant”). Both are also 

residents of the Reading area. Yatsko was diagnosed with a beryllium sensitivity illness 

on December 22, 2000, later confirmed to be chronic beryllium disease (“CBD”). Yatsko 

filed a claim for benefits under the EEOICPA with the OWCP, an agency within the 

Department of Labor tasked with hearing such claims and awarding compensation, and 

he was awarded benefits in February 2002. Moatz was diagnosed with beryllium 

sensitivity on March 6, 1998. He filed a claim for benefits, which the OWCP awarded in 

October 2002.
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On June 4, 2003, Yatsko and Moatz joined a suit against several beryllium 

suppliers and manufacturers, including the Reading Plant, seeking compensation for 

beryllium-based illnesses. The OWCP found that the suit was a “covered tort case” 

under the EEOICPA, which violated the terms of their benefits pursuant to 42 U.S.C. 

§ 7385d. They continued their suit, and the OWCP vacated its earlier benefits awards.

Yatsko and Moatz challenged the OWCP decision in the United States District 

Court for the Eastern District of Pennsylvania by filing motions for declaratory judgment 

and an injunction to prevent the agency from terminating their benefits. The District 

Court denied their motions.

II.

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction 

under 28 U.S.C. § 1291. In reviewing the District Court, we review the agency record 

directly and apply the same standard of review as correctly applied by the District Court. 

Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d 161, 169 (3d Cir. 1999); 

Fertilizer Inst. v. Browner, 163 F.3d 774, 777 (3d Cir. 1998). Accordingly, we review 

the OWCP’s decision to terminate Yatsko and Moatz’s benefits to determine if it was 

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 

U.S.C. § 706(2)(A).

III.

Yatsko and Moatz argue that the OWCP’s decision to terminate their ongoing 

EEOICPA benefits was arbitrary and capricious. They contend that the tort action of 
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June 4, 2003 alleged only environmental exposure, not occupational, and thus did not 

constitute a “covered tort case” which would disqualify them from EEOICPA benefits 

under 42 U.S.C. § 7385d(c).

A covered tort case is one in which an employee seeks compensation for a covered 

illness – such as beryllium sensitivity and CBD – caused in whole or in part by exposure 

to beryllium incurred as a result of their work at a “beryllium vendor.” 42 U.S.C. 

§ 7384l(6)-(8), (15); 7385b. Section 7385d(c) provides that filing covered tort cases after 

2001 will disqualify an otherwise eligible employee from receiving EEOICPA benefits 

unless that person dismisses the tort case on or before April 30, 2003 or 30 months after 

his initial diagnosis with a covered illness, whichever is later. Id.

It is undisputed that Yatsko and Moatz were plaintiffs in a suit filed on June 4, 

2003, alleging illnesses from beryllium exposure arising from the Reading Plant and that 

neither party dismissed the complaint within the mandated timeframe for covered tort 

claims. It is also undisputed that a party may bring a tort suit alleging environmental and 

non-occupational exposure and still maintain their EEOICPA benefits under Part B. (See

Depenbrock Memorandum, App. at 204-08.) However, while a party may file a claim, 

even against his employer, for environmental exposure to beryllium, any claims of 

occupational exposure would render the action a covered tort case under EEOICPA. (Id.

at 206, 208.)

Yatsko and Moatz contend that the OWCP arbitrarily mischaracterized their 

complaint as containing claims of both environmental and occupational exposure. But 
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this appears to be the only reasonable interpretation of their suit. The complaint clearly 

includes claims of occupational exposure, stating that their illnesses were “the direct and 

proximate result of the aforesaid acts and omissions of [the defendants], the air at 

plaintiffs’ residences and places of employment, including those employed at the Reading 

Plant itself” (id. at 457 (emphasis added); see also id. at 466, 469) and alleging 

“occupational and non-occupational exposure resulting in [beryllium sensitivity/CBD].” 

(Id. at 458, 462.) We conclude that the OWCP did not arbitrarily mischaracterize Yatsko 

and Moatz’s complaint.

Yatsko and Moatz further argue that the OWCP improperly disregarded 

subsequent pleadings made by the appellants. However, the subsequent measures taken 

to alter the pleadings after the deadline had passed are irrelevant, as the claims asserting 

occupational injury existed at the time of the statutory deadline. The wording of statute is 

clear that one is disqualified from benefits under EEOICPA unless “such individual 

dismisses such tort case on or before the last permissible date.” 42 U.S.C. § 7385d(c). 

The covered tort case must cease to exist by the specified date, and it is of no issue how a 

complaint is subsequently modified. (See Depenbrock Memorandum, App. at 206-08.)

Lastly, Yatsko and Moatz argue that their complaint did not contain occupational 

elements because Pennsylvania state law prohibited them from doing so. See 77 P.S. 

§ 481(a). Yatsko and Moatz claim that this means that the June 4th suit did not cover 

occupational harm. We are not persuaded. Their suit clearly alleged occupational harms.
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IV.

For the foregoing reasons, we will affirm the order of the District Court.