John S. Yatsko; Samuel H. Moatz v. OFFICE OF WORKERS COMPENSATION PROGRAMS, U.S. Department of Labor

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-2546
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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
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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
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Submitted Pursuant to Third Circuit LAR 34.1(a)
May 26, 2011
Before: FUENTES, FISHER and NYGAARD, Circuit Judges.
(Filed: July 22, 2011)
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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.

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