Docket Number: 10043931-2006

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 10043931-2006

DECISION DATE: March 10, 2008

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) on the employee’s claim for benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the employee’s claim is denied.

 

STATEMENT OF THE CASE

 

On May 31, 2002, the employee filed a claim for benefits under Part B of EEOICPA and alleged that he had contracted beryllium sensitivity, chronic beryllium disease (CBD) and pulmonary insufficiency due to occupational exposure to beryllium as a mechanical engineer at the Massachusetts Institute of Technology campus in Cambridge, Massachusetts (MIT). In support of his claim, he filed a Form EE-3 on which he alleged that he had been employed by “U.S. Army, (T-4) Special Engineering Detachment, Manhattan District, Corps of Engineers, assigned to Metallurgical Project, U of Chicago, Mass. Inst. of Tech Location,” at Oak Ridge, Tennessee, and as a radiation monitor at Bikini Atoll from May through August 1946. On that form, the employee alleged that he was assigned to the “Beryllium Group” at MIT from November 1945 to May 1946.

 

By letter dated June 10, 2002, the Denver district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) confirmed receipt of the employee’s claim and informed him that coverage under EEOICPA is limited to civilian employees of the Department of Energy (DOE), its predecessor agencies and certain of its contractors and subcontractors, and that military personnel are not similarly covered. The employee then submitted several documents regarding his employment, including a June 17, 2002 letter in which he clarified that: (1) he joined the Army in 1942; (2) he was called to active duty in May 1943; and (3) he was assigned to the K-25 Gaseous Diffusion Plant in Oak Ridge in September 1944. He stated that shortly afterward, he was transferred to the “Metallurgical Project” at MIT, still as an enlisted member of the Army, and worked there until May 1946 when he was transferred back to Oak Ridge and trained for his subsequent job at Operation Crossroads in the Pacific.

 

Employment records provided by MIT on April 24, 2003 indicate: (1) that the employee was initially assigned to work at MIT as an enlisted member of the U.S. Army on December 1, 1944; (2) that on January 26, 1945, a change in his Army status allowed MIT to hire him directly as a civilian employee on the same project; and (3) that he was recalled to active military duty in the Army on October 22, 1945, but continued to work on the project at MIT until May 2, 1946. In a letter dated May 10, 2003, the employee provided a detailed work history, with supporting documents, that was consistent with the information provided by MIT and confirmed that he was a civilian employee of MIT at MIT’s Cambridge campus from January 26, 1945 to October 22, 1945. Neither DOE nor its Oak Ridge Operations Office was able to verify the employee’s alleged employment at Oak Ridge or at Bikini Atoll, but the enlistment records in his case file are consistent with his claim of military employment at these two locations.

 

On May 15, 2003, the Denver district office issued a recommended decision to accept the employee’s claim for beryllium sensitivity, and on May 30, 2003 the FAB issued a final decision consistent with the district office’s recommendation. In that decision, the FAB awarded the employee medical benefits and monitoring for his beryllium sensitivity, retroactive to his filing date of May 31, 2002. Thereafter, on September 11, 2003, the Denver district office issued a recommended decision to accept the employee’s Part B claim for CBD, based on the recommended findings that he had covered civilian employment at MIT from January 26, 1945 to October 22, 1945, and that he had been diagnosed with CBD on July 2, 2003. On September 22, 2003, the FAB issued a final decision accepting the employee’s Part B claim for CBD and awarding him a lump-sum of $150,000.00 plus medical benefits for his CBD, retroactive to May 31, 2002. In this final decision, the FAB concluded that the employee was a “covered beryllium employee” and that he had been diagnosed with CBD consistent with the criteria set out in EEOICPA.

 

Following the 2004 amendments to EEOICPA that included the enactment of new Part E[1], the employee filed a claim based on his CBD under Part E of EEOICPA on November 25 , 2005. Shortly thereafter, the employee’s new Part E claim was transferred to the Cleveland district office of DEEOIC for adjudication. By letter dated March 9, 2006, the Cleveland district office informed the employee that he did not meet the eligibility requirements under Part E of EEOICPA. The district office explained that Part E differs from Part B in that Part E only provides benefits for civilian employees of DOE contractors and subcontractors (or their eligible survivors), but does not provide benefits for employees of the other types of employers that are covered under Part B, i.e., atomic weapons employers or beryllium vendors. The letter provided the employee with an opportunity to submit additional evidence “[i]f you intend to claim additional employment or intend to provide evidence that MIT should be designated as a DOE facility. . . .” Included with the letter was a print-out of the Department of Energy (DOE) Facility List entry for MIT, which indicated that at that time, MIT’s Cambridge campus was designated only as an atomic weapons employer (AWE) facility and a beryllium vendor facility, but not a DOE facility.[2]

 

On April 17, 2006, the Cleveland district office issued a recommended decision to deny the employee’s Part E claim for his CBD, based on their recommended finding that the evidence in the file was insufficient to establish that he was a “covered DOE contractor employee,” as that term is defined in § 7384l(11) of EEOICPA, because it failed to establish that his civilian employment at MIT was at a “Department of Energy facility,” as that second term is defined in § 7384l(12) of EEOICPA. The employee filed objections to the recommended decision in letters to the FAB dated May 4, 2006, June 26, 2006, September 17, 2006 and October 26, 2006, and submitted several affidavits, exhibits and other factual evidence in support of his objections. All of the employee’s objections were made in support of his position on one point—that DEEOIC should determine that MIT’s Cambridge campus, or a portion thereof, is a “DOE facility” for the purposes of his Part E claim.

 

On June 6, 2006, the FAB referred the employee’s Part E claim to DEEOIC’s Branch of Policy, Regulations and Procedures (BPRP) for guidance on the issue of whether the evidence submitted by the employee warranted the requested determination regarding MIT’s Cambridge campus. On December 21, 2006, BPRP referred the issue to the Office of the Solicitor of Labor (SOL). On March 14, 2007, SOL issued an opinion in which it concluded that the evidence in the case file was insufficient to establish that MIT’s campus meets the statutory definition of a “Department of Energy facility.” Based on that conclusion, SOL advised BPRP that DEEOIC could reasonably determine that the employee was ineligible for benefits under Part E as he was not a “covered Department of Energy contractor employee.”

 

On May 4, 2007, the FAB issued a final decision denying the employee’s Part E claim. In its final decision, the FAB restated both the employee’s objections and the opinion of SOL. The FAB found that while MIT’s Cambridge campus was recognized as both an AWE facility and a beryllium vendor facility during the period of the employee’s civilian employment there, the evidence was insufficient to establish that it also satisfied the statutory definition of a “DOE facility” during that time period. Thus, the FAB concluded that the employee was not a “covered DOE contractor employee,” as that term is defined in EEOICPA.

 

By letter dated May 24, 2007, the employee filed a request for reconsideration of the FAB’s final decision and on July 17, 2007, the FAB issued a denial of the employee’s request. In its denial, the FAB restated the employee’s objections and based its denial on the conclusion that he had not submitted any new evidence or arguments that would justify reconsidering the May 4, 2007 final decision. On January 25, 2008, the Director of DEEOIC issued an Order vacating both the FAB’s May 4, 2007 final decision on the employee’s Part E claim and its July 17, 2007 denial of the employee’s request for reconsideration. In his Order, the Director indicated that while the FAB had restated the employee’s objections in its final decision, it had not explicitly analyzed each of those objections. Because of this, the Director vacated the FAB’s decisions and returned the employee’s Part E claim to the FAB “for issuance of a new final decision that gives appropriate consideration to the employee’s objections to the Cleveland district office of DEEOIC’s recommended denial of his Part E claim.”

 

OBJECTIONS

 

As noted above, the employee objected to the recommended denial of his Part E claim in a letter dated May 4, 2006 and urged that MIT’s Cambridge campus was misclassified and should be determined to be a DOE facility. The employee’s first argument urged that the work of the Metallurgical Project at MIT was “nuclear weapons related.” The evidence supports this argument. The DOE Facility List entry for MIT describes the uranium metallurgical work and beryllium work performed at MIT in support of the U.S. Army Corps of Engineers Manhattan Engineer District (MED) during the period 1942 through 1946.[3] This work—a portion of which was performed by the employee—supports the determination that MIT’s Cambridge campus is both an AWE facility from 1942 through 1946, and a beryllium vendor facility from 1943 through 1946.

 

The employee’s second argument was that DEEOIC previously determined that MIT’s Cambridge campus was a DOE facility. In support of this position, the employee correctly pointed out that in its May 15, 2003 recommended decision on his Part B claim, the Denver district office stated that “Massachusetts Institute of Technology initially became a DOE facility in 1942.” The FAB acknowledges that the Denver district office made that erroneous historical statement in its recommended decision on the employee’s Part B claim; however, that error was not carried forward in any of the subsequent recommended decisions on the employee’s several claims, nor was it repeated in any finding of fact or conclusion of law in any of the FAB’s final decisions issued on the employee’s several claims. In issuing a final agency decision on a claim under EEOICPA, the FAB is not bound by a historical inaccuracy contained in a recommended decision issued by a DEEOIC district office. See EEOICPA Fin. Dec. No. 10028664-2006 (Dep’t of Labor, August 24, 2006).

 

The employee also argued that the MED was a predecessor agency of DOE. The FAB agrees with this historical point. 42 U.S.C. § 7384l(10).

 

The employee argued that “beryllium work was done at MIT and that acute beryllium disease resulted.” The FAB agrees. The DOE Facility List description of the work that was performed at MIT describes beryllium work performed at the MIT Cambridge campus, and that work supports the designation of MIT as a beryllium vendor during the period 1943 through 1946. That description also refers to “a number of cases of beryllium disease at MIT” prior to the fall of 1946.[4]

 

The employee submitted evidence that the Metallurgical Laboratory (Met Lab) in Chicago, Illinois, is classified as an AWE facility, a beryllium vendor facility and a DOE facility, and argued that the work performed at MIT’s Cambridge campus “was just an extension of” the work performed under Dr. Arthur Compton at the Met Lab. The FAB agrees that the Met Lab was designated as an AWE facility (1942-1952), a beryllium vendor facility (1942-1946) and a DOE facility (1982-1983, 1987).[5] The FAB notes, however, that like MIT’s Cambridge campus, the Met Lab is classified only as an AWE facility and a beryllium vendor facility during the time of their early uranium and metallurgical work in the 1940s. The Met Lab is classified as a DOE facility only during the periods of remediation work that was performed there in the 1980s. These classifications are consistent with those for MIT’s Cambridge campus. The FAB concludes that the evidence in the file is insufficient to establish that the work performed at MIT’s Cambridge campus “was just an extension of” the work performed at the Met Lab. The work performed at MIT’s Cambridge campus was performed pursuant to a contract between the MED and MIT, and there is no evidence in the file to corroborate the employee’s claim that the Met Lab directed or controlled the MIT Metallurgical Project.

 

The employee also submitted evidence showing that the Ames Laboratory in Ames, Iowa, is classified as a DOE facility, but made no argument in his May 4, 2006 letter as to the relevance of this information. In a letter dated February 7, 2008, the employee clarified his argument regarding the Ames Laboratory by asserting that the Met Lab and the Ames Laboratory “were both classified as DOE Employers while MIT was not, even though the work was analogous and facilities in all cases were owned by the universities. . . . The precedents established by these classifications seems not to have been considered.” The FAB acknowledges that the Ames Laboratory is designated as a DOE facility (1942-present),[6] but points out that there is no probative evidence in the case file that corroborates the employee’s argument that the work performed at the Ames Laboratory was analogous to the work that was performed at MIT’s Cambridge campus, or that the contracts for such work were similar in type to the pertinent MED contract with MIT, or that the buildings used at the Ames Laboratory were owned by the associated university.[7] The regulations governing EEOICPA place upon the claimant the burden to produce evidence necessary to establish all criteria for benefits and to prove the existence of all elements necessary to establish eligibility for benefits. 20 C.F.R. § 30.111(a). The employee’s bare assertions regarding the Met Lab and the Ames Laboratory are not, without supporting factual evidence, sufficient to establish his precedent argument and, thus, do not provide probative support for his claim.

 

The employee also argued that his work was recognized by the Secretary of War as “essential to the production of the Atomic Bomb.” The FAB does not dispute this point.

 

In his letter dated June 26, 2006, the employee modified his objection to the recommended decision by stating that the MIT Metallurgical Project (MMP), not the entire MIT Cambridge campus, should be classified as a DOE facility. In support of that objection, he argued that “if the MMP was reclassified to meet the requirements of ‘Department of Energy’ Facility,’” then he would satisfy the statutory requirements of a “Department of Energy contractor employee.” Based on the totality of the evidence in the case file, the FAB concludes that the evidence does not provide sufficient support for this argument. Even if the MMP were to be classified as a DOE facility during the employee’s period of civilian employment there, he would still have to submit factual evidence sufficient to establish that he was employed by “(i) an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or (ii) a contractor or subcontractor that provided services, including construction and maintenance, at the facility.” 42 U.S.C. § 7384l(11)(B). The evidence does not support a conclusion that he was so employed, because it does not establish that his employer, MIT, contracted with DOE (or any of its predecessor agencies) “to provide management and operating, management and integration, [] environmental remediation, [or] services, including construction and maintenance, at the facility.”

 

The employee also argued that the MMP meets the first part of the two-part statutory definition of a “DOE facility.” In support of this argument, he asserted that the evidence in the file proves that the MMP is a building, structure or premise “in which operations are, or have been, conducted by, or on behalf of, the Department of Energy,” pursuant to 42 U.S.C. § 7384l(12)(A). The FAB agrees that the evidence supports this conclusion. During the development of the employee’s Part E claim, his file was referred to the SOL, and on March 14, 2007, that office issued a memorandum in which it found that the evidence supports a conclusion that the employee’s “work on the Metallurgical Project was performed pursuant to Contract No. W-7405-eng-175 between MIT and the MED, thus meeting the test of § 7384l(12)(A).” The FAB agrees with that conclusion.

 

The employee then argued that the MMP also meets the second part of the two-part statutory definition of a “DOE facility,” in that the MED had “a proprietary interest” in the MMP, as required by subsection (i) of 42 U.S.C. § 7384l(12)(B). In support of this position, the employee alleged that “The MED paid all bills, provided all priorities, met all needs for civilian or military personnel, which would indicate a clear proprietary interest in the MMP.” As set forth more fully in the Conclusions of Law section of this final decision, the evidence in the file does not provide sufficient support for the employee’s argument that the MED had “a proprietary interest” in the MMP. In their March 14, 2007 memorandum, SOL concluded that there is no evidence in the employee’s case file that the MED had “a proprietary interest” in any of the buildings, structures or premises in which he worked as a civilian employee at MIT’s Cambridge campus. That conclusion is part of the totality of the evidence that FAB has considered in this case, and FAB agrees with that conclusion.

 

That conclusion is also supported by the employee’s own statements regarding ownership of the buildings in which he worked at MIT’s Cambridge campus. His first identification of the buildings in which he worked during his civilian employment at MIT’s Cambridge campus was more than two years after he filed his Part E claim. In a letter dated February 7, 2008, submitted after his claim was reopened by order of the Director of DEEOIC, the employee stated that all of his work for the MMP was performed in Buildings 4, 8 and 16 on MIT’s Cambridge campus. He also asserted that those buildings were analogous to the buildings used at the Met Lab and the Ames Laboratory for MED work during that same time period and argued that the classification of all three facilities should be the same because “facilities in all cases were owned by the universities.” Consistent with the employee’s assertion that MIT owned the buildings and laboratories in which MMP research was performed, there is no probative evidence in the file establishing that the MED had a proprietary interest in any of these three buildings.

 

Alternatively, the employee argued that the MMP meets the second part of the two-part statutory definition of a “DOE facility” because the MED “entered into a contract with [MIT] to provide management and operation,” as required by subsection (ii) of 42 U.S.C. § 7384l(12)(B). In support of this position, he argued that:

 

The MED clearly entered into a contract with MIT to provide management and scientific operations. I have never seen this contract. . . . However, the Division of Industrial Cooperation at MIT did not do pro bono work. A contract is certainly implied by analogy to other universities such as Chicago’s MetLab and Iowa State’s Ames Lab, both of which, by the way, have DOE classifications.

 

However, the employee did not submit a contract or any other evidence that establishes that a “management and operation” contract was entered into between the MED and MIT for the work performed by the MMP. As noted above, SOL concluded in their March 14, 2007 memorandum that the work of the MIT Metallurgical Project was performed pursuant to a contract between MIT and the MED—Contract No. W-7405-eng-175. The employee’s case file does not include a copy of the actual contract and FAB has not been able to locate a copy of that contract.[8] However, the SOL memorandum cites a page from Book VII, Volume I, Appendix K of the Manhattan District History, which describes the contract as follows: “Contract W-7405 eng-175 with Massachusetts Institute of Technology is a research and development contract involving work with Be as well as other metals and compounds.”[9] Thus, based on available evidence, SOL concluded that the contract was not a contract “to provide management and operation,” but was, rather, a “research and development contract.” This conclusion is consistent with DOE’s description of the facility at MIT’s Cambridge campus in the DOE Facility List. That description references contract W-7405-eng-175 and the beryllium-related research that was conducted at MIT’s Cambridge campus pursuant to the contract.[10] There is no probative evidence in the file that the MIT-MED contract under which the employee worked was a “management or operation” contract, as asserted by the employee. Thus, based on the totality of the evidence, the FAB concludes that the evidence is insufficient to establish that MIT’s Cambridge campus satisfies the statutory requirements of § 7384l(12)(B)(ii).

 

By letter dated September 17, 2006, the employee supplemented his objection concerning the “proprietary interest” test of 42 U.S.C. § 7384l(11)(B)(i). In that letter, the employee argued that Roget’s Thesaurus lists several synonyms for the term “proprietary interest,” including “vested interest” and “beneficiary interest,” and that by these broader definitions, the MED had a “proprietary interest” in the MMP. The employee argued that since “all work of the MIT project was paid for by and directly benefited the MED,” the MED had a “proprietary interest” in the buildings in which the MMP work was performed.

 

The FAB finds that the evidence supports the employee’s statement that the work on the MMP project was paid for by and directly benefited the MED. Both the SOL memorandum and the DOE Facilities List support a finding that the MMP work was performed pursuant to Contract No. W-7405-eng-175 between MIT and the MED, and FAB will assume that the MED met its payment obligations to MIT under the contract. However, payment for work performed under the contract and receipt of benefits from the performance of the contract do not establish that the MED had a proprietary interest in the buildings in which the contract’s work was performed. The structure of the statutory definition of a “Department of Energy facility” supports this conclusion. The Act defines the term “Department of Energy facility” as:

 

[A]ny building, structure, or premise, including the grounds upon which such building, structure, or premise is located—

(A) in which operations are, or have been, conducted by, or on behalf of, the Department of Energy. . .; and

(B) with regard to which the Department of Energy has or had—

(i) a proprietary interest, or

(ii) entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.

 

42 U.S.C. § 7384l(12). Thus, in order to satisfy the requirements of subsection (B) of the statutory definition, it must be established that DOE (or its predecessors, including the MED) either (i) had a proprietary interest in the buildings in which [Employee] worked, or (ii) had a contract with MIT to provide at least one of the specific types of services listed in the definition. Thus, the “proprietary interest” test of subsection (B)(i) is an alternative to the “contract” test of subsection (B)(ii). If evidence of payment and receipt of benefits under a type (B)(ii) contract was sufficient to meet the “proprietary interest” test of (B)(i), as the employee urged, there would be no need to have the alternative subsection (B)(i) test. Thus, the meaning of “proprietary interest” proffered by the employee would render subsection (B)(i) superfluous.

 

Additionally, as set forth more fully in the Conclusions of Law section of this decision, the employee’s alternative definitions of the phrase “proprietary interest” are not consistent with its ordinary meaning, that is, an interest characterized by ownership, use and control. The employee has made no allegation, nor proffered any evidence, that the buildings in which he worked on MIT’s Cambridge campus during his civilian employment from January 26, 1945 to October 22, 1945, i.e., Buildings 4, 8 and 16, were owned, rented, or controlled by the MED for use by the MMP. In fact, he repeatedly refers to those buildings as labs of the MIT Metallurgical Department owned by MIT, not labs owned by the MED.[11]

 

Finally, under cover letter dated October 26, 2006, the employee supplied additional factual evidence in support of his argument that there was a contract between the MED and MIT for the MMP, and therefore the “contract” test of 42 U.S.C. § 7384l(11)(B)(ii) is satisfied and the MMP should be classified as a DOE facility. As described above, FAB acknowledges that the employee’s civilian work at MIT was performed pursuant to a contract between MIT and the MED, but concludes that there is insufficient evidence to establish that the contract in question meets the requirements of 42 U.S.C. § 7384l(12)(B)(ii), and therefore the buildings used for the MMP do not satisfy the statutory definition of a “DOE facility.”

 

After reviewing the written record of the case file and the employee’s objections described above, the FAB hereby makes the following:

 

FINDINGS OF FACT

 

1. On May 31, 2002, the employee filed a claim for benefits under Part B of EEOICPA based on the allegation that he had contracted beryllium sensitivity, CBD and pulmonary insufficiency due to his occupational exposure to beryllium as a mechanical engineer at MIT’s campus in Cambridge, Massachusetts.

 

2. The employee was a civilian employee of MIT from January 26, 1945 to October 22, 1945, and worked on the MMP during that time period.

 

3. During his period of civilian employment by MIT, the employee worked in Buildings 4, 8 and 16 on MIT’s Cambridge campus. The MED did not have a “proprietary interest” in any of those three buildings, which were instead owned by MIT.

 

4. The employee’s work on the MMP was performed pursuant to Contract No. W-7405-eng-175 between MIT and the MED (a predecessor agency of DOE).

 

5. During the period of the employee’s civilian employment by MIT, Contract No. W-7405-eng-175 was a research and development contract and was not a contract to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services at MIT’s Cambridge campus.

 

6. Prior to January 26, 1945 and after October 22, 1945, the employee was an active enlisted member of the U.S. Army.

 

7. On May 30, 2003, the FAB issued a final decision accepting the employee’s Part B claim for beryllium sensitivity and awarding him medical benefits and sensitivity monitoring retroactive to his filing date of May 31, 2002.

 

8. The employee was diagnosed with CBD on July 2, 2003.

 

9. On August 5, 2003, the employee filed a second claim under Part B of EEOICPA for his CBD.

 

10. On September 22, 2003, the FAB issued a final decision accepting the employee’s Part B claim for CBD and awarding him a lump sum of $150,000.00, plus medical benefits for his CBD retroactive to May 31, 2002.

 

11. On November 25, 2005, the employee filed a claim under Part E of EEOICPA based on his CBD.

 

12. For purposes of EEOICPA, MIT’s Cambridge campus is classified as an AWE facility for the time period 1942 through 1946, and as a beryllium vendor facility for the time period 1943 through 1946. While MIT’s Cambridge campus is not classified as a DOE facility, the Hood Building, which was located adjacent to MIT’s Cambridge campus prior to its demolition, is classified as a DOE facility for the time period 1946 through 1963.

 

Based on the above findings of fact, the undersigned makes the following:

 

CONCLUSIONS OF LAW

 

Regulations governing the implementation of EEOICPA allow claimants 60 days from the date of the district office’s recommended decision to submit to the FAB any written objections to the recommended decision, or a written request for a hearing. See 20 C.F.R. §§ 30.310 and 30.311. On May 4, 2006, June 26, 2006, September 17, 2006 and October 26, 2006, the employee filed written objections to the recommended decision, but did not request a hearing. Pursuant to 20 C.F.R. §§ 30.312 and 30.313, the FAB has considered the objections by means of a review of the written record of this case. After a thorough review of the record in this case, the FAB concludes that no further investigation of the employee’s objections is warranted, and the FAB now issues a final decision on the employee’s Part E claim.

 

In order to be afforded coverage under Part E of EEOICPA, a claimant must establish that, among other things, he is a “covered DOE contractor employee.” 42 U.S.C. §§ 7385s(1), 7385s-1, 7385s-8. To prove that he is a “covered DOE contractor employee” for purposes of Part E eligibility, the employee must establish: (1) that he was a “DOE contractor employee” and (2) that he “contracted a covered illness through exposure at a Department of Energy facility.” 42 U.S.C. § 7385s(1). As a result of this statutory scheme, only DOE contractor employees are eligible for benefits under Part E, whereas employees of an AWE or a beryllium vendor are excluded from such coverage.[12]

 

The Act defines the term “Department of Energy contractor employee,” in pertinent part, as follows: “An individual who is or was employed at a Department of Energy facility by—(i) an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or (ii) a contractor or subcontractor that provided services, including construction and maintenance at the facility.” 42 U.S.C. § 7384l(11)(B) (emphasis added). Thus, in order to be considered a “Department of Energy contractor employee,” a claimant must have been employed at a DOE facility. The statutory definition of a “Department of Energy facility” is:

 

“[A]ny building, structure, or premise, including the grounds upon which such building, structure, or premise is located—

(A) in which operations are, or have been, conducted by, or on behalf of, the Department of Energy. . .; and

(B) with regard to which the Department of Energy has or had—

(i) a proprietary interest, or

(ii) entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.

 

42 U.S.C. § 7384l(12). Therefore, in order to be eligible for benefits under Part E, a claimant must prove that he is or was employed as a civilian employee of a DOE contractor or subcontractor at a facility that meets the requirements of both subsection (A) and subsection (B) of § 7384l(12).

 

The FAB concludes that the employee has established that he was a civilian employee of MIT from January 26, 1945 to October 22, 1945, and that he worked in various laboratories in Buildings 4, 8 and 16 on the MIT campus in Cambridge, Massachusetts, during that time period. The evidence further establishes that the employee’s work for the MMP during that period was performed pursuant to a contract that MIT entered into with the MED to perform research and development on beryllium and other metals and compounds in support of the Manhattan Project. Based on the totality of the evidence, FAB concludes that MIT’s Cambridge campus satisfies subsection (A) of the statutory definition of a “Department of Energy facility.” 42 U.S.C. § 7384l(12)(A).

 

The evidence in support of subsection (B) of § 7384l(12), however, is lacking. Subsection (B) requires that in order for a building, structure or premise to be deemed a “Department of Energy facility,” the evidence must establish that it is a building, structure, or premise “with regard to which the Department of Energy has or had—(i) a proprietary interest, or (ii) entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.” Neither the “proprietary interest” test nor the alternative “contract” test has been satisfied by a preponderance of the evidence in this claim.

 

The statute and the governing regulations do not define the term “proprietary interest,” as that term is used in subsection (B)(i) of § 7384l(12). Black’s Law Dictionary defines the term as: “The interest of an owner of property together with all rights appurtenant thereto such as the right to vote shares of stock and right to participate in managing if the person has a proprietary interest in the shares.” Black’s Law Dictionary, p.1098 (5th ed. 1979). See also Evans v. U. S., 349 F.2d 653, 658 (5th Cir. 1965) (holding that the phrase “proprietary interest” is “not so technical, or ambiguous, as to require a specific definition” and assuming that the jury in that case gave the phrase “its common ordinary meaning, such as ‘one who has an interest in, control of, or present use of certain property.’”) Employing the common accepted definition of the term, in order to meet the “proprietary interest” test, the evidence must establish that the MED had rights of ownership, use, or control in the buildings in which the employee worked at MIT’s Cambridge campus from January 26, 1945 to October 22, 1945. The employee has proffered no such evidence. To the contrary, in a letter dated February 7, 2008, he asserted that those buildings were owned by MIT, and in a May 30, 2006 email he referred to the laboratories in those buildings as “Metallurgical Dept labs.” He has likewise offered no probative evidence that the MED controlled the buildings in question or rented space in them.

 

With regard to the “contract” test of subsection (B)(ii) of § 7384l(12), there is evidence of the existence of a contract between MIT and the MED for the work that was performed by the employee’s group on the MMP; specifically, Contract No. W-7405-eng-175. However, based on the totality of the evidence, the FAB concludes that that contract was not entered into “to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services”; rather, it was a much narrower “research and development contract involving work with Be [beryllium] as well as other metals and compounds.” Since the contract was not one of the limited types enumerated by Congress in its statutory definition of “Department of Energy facility,” the FAB concludes that Congress did not intend buildings such as those in which the employee worked to be designated as DOE facilities for purposes of EEOICPA.

 

The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving “by a preponderance of the evidence” the existence of every criterion under any compensable claim category set forth in § 30.110. “Proof by a preponderance of the evidence means it is more likely than not that a given proposition is true.” 20 C.F.R. § 30.111(a). The FAB concludes that the totality of the evidence in the case file is insufficient to establish by a preponderance of the evidence that the employee meets the statutory definition of a “Department of Energy contractor employee” because the evidence is insufficient to establish that he was employed at a “Department of Energy facility” during his civilian employment at MIT’s Cambridge campus. Accord EEOICPA Fin. Dec. No. 10033981-2006 (Dep’t of Labor, November 27, 2006). Therefore, the employee has not established that he is a “covered DOE contractor employee” and he is not entitled to benefits under Part E of EEOICPA. As a result, the FAB hereby denies the employee’s claim under Part E.

 

Washington, DC

 

 

Thomas R. Daugherty

Hearing Representative

Final Adjudication Branch