COMPENSATING
AMERICANS’ TOXIC INJURIES FROM U.S. NUCLEAR WEAPONS PRODUCTION:
THE 106th CONGRESS SHOULD REJECTDOE’S “TROJAN HORSE” BILL
STATEMENT OF
EDWARD A. SLAVIN, JR.
Subcommittee on Immigration and Claims,
Committee on the Judiciary
U.S. House of Representatives
September 21, 2000
Hearing on the following bills:
·
Senate Amendment
3250 to S. 2549 (Defense Authorization)
(Sen. Thompson’s
DOE-Drafted Floor Amendment,
·
H.R. 5189, Title: Energy Employees Occupational Illness Compensation Act
of 2000 (based on Title 35, Senate Defense Authorization Act, FY 2001)
Table of Contents
INTRODUCTION....................................................................................................................... 1
DOE’s ILLUSORY COMPENSATION BILL:
QUESTIONS AND ANSWERS................ 6
Who would pay? ............................................................................................ 6
Who would receive benefits? ..................................................................... 6
Who would control the program? .............................................................. 7
What would be paid? ..................................................................................... 7
What would be taken away? ....................................................................... 7
Would benefits be reduced based on
other benefits? ........................ 7
Who would decide who gets paid? .......................................................... 8
Would there be any appeal? ....................................................................... 9
What physical or mental conditions
would be compensated? ...... 10
How many people would receive
benefits? ......................................... 10
Who would choose physicians? ............................................................ 11
Who would pay lawyers and how? ........................................................ 11
Would settlement “gag orders” be
allowed?......................................... 11
NUCLEAR WORKER AND RESIDENT COMPENSATION SHOULD FOLLOW BLACK LUNG AND LONGSHORE COMPENSATION LAWS AND PRECEDENTS............................................................................................................................ 12
END NOTES.................................................................................................... 26
THREE ATTACHMENTS:
FACT SHEET, SECTION-BY-SECTION
ANALYSIS AND TEXT OF PROPOSED LEGISLATION
COVERING ALL DOE VICTIMS AND REPEALING FEDERAL TORT CLAIMS ACT (FTCA) DISCRETIONARY
FUNCTION LOOPHOLE FOR ULTRAHAZARDOUS ACTIVITIES:
NUCLEAR WEAPONS WORKERS, ATOMIC VETERANS AND RESIDENTS COMPENSATION AND HEALTH ACT (NWWAVARCHA) OF 2000
Chairman
Smith, Ms. Jackson-Lee, members of the Subcommittee: Thank you for the honor of
asking me to provide testimony. Just
like the tobacco companies, DOE spent years lying to Congress and the American
people, saying no one ever got sick from a nuclear bomb factory. DOE this year admitted workers sickened and
died from toxic materials (toxicants).
DOE
is now trying to sell you the legislative equivalent of a recalled Firestone tire.
DOE wants a rigged system with DOE in charge, with no juries, no independent
judges, no judicial review. In a
perverse variation on the notion of administrative law “expertise,” DOE wants
to decide who DOE made sick. This is like
a plan that lets you ask the company that denied it caused your injury if it
will change its mind. DOE proposes
a flawed and phony form of “alternative dispute resolution” under the thumb of
DOE and DOJ lawyers. It is bogus.
Both
James Madison and William Blackstone would have roundly rejected DOE’s peculiar
institution of “old guard” administrative law.
James Madison wrote in The Federalist, Number 10: “No man is
allowed to be a judge in his own cause, because his interest would certainly
bias his judgment, and, not improbably, corrupt his integrity .... “ As Blackstone said, “it is unreasonable
that any man should determine his own quarrel.”[1] DOE’s proposal to decide its own cases
is, at best facetious and insults your intelligence. Congress should write its own bill. DOE cannot be trusted.
Legislation
to compensate nuclear weapons plant workers was first proposed four decades ago
by Senator Albert Gore, Sr.[2] While the idea of federal compensation
legislation is not new, what is new is that after decades of lying to you, DOE
now admits toxic materials have killed workers[3]
at its facilities. Yet in response to
the Oak Ridge health crisis, DOE proposes only flummery. DOE’s proposal is a Kafkaesque nuclear compensation bill that is defective by
design -- long on rhetoric and short on fairness, with no medical benefits, no
independent health clinics, no hearings, no Administrative Procedure Act
rights, no independent Administrative Law Judges, no appeal rights, and no Due
Process. The Voinovich-Strickland
(PACE) bill is a marginal improvement.
After
consultation with affected workers and residents throughout the country, I have
drafted and hereby propose an alternative, the Nuclear Weapons Workers, Atomic
Veterans and Residents Compensation and Health Act, (NWWAVARCHA).[4] NWWAVARCHA treats all of DOE’s victims
equally, and fairly, emphasizing lifetime health care and benefits -- not just cash payoffs (in the wake of
layoffs), all just to make DOE’s victims “go away” and bar them from suing big
corporations responsible for ruining their health.
Rep.
John Duncan, Jr. of Knoxville has written workers that “many” of his
constituents have been made sick by DOE in Oak Ridge. DOE would only compensate a few of those “many.” Rep. Zach Wamp, who represents Oak Ridge,
said at the May 12 press conference that sick residents should be covered too:
Secretary Richardson’s response was to frown at him. I think that both Rep. Duncan and Rep. Wamp are correct, and that
this legislation needs to compensate the “many” who are sick, including nearby
residents (Downwinders) and children in places like the Scarboro community in
Oak Ridge, an African-American community located close to the Y-12 nuclear
weapons plant. DOE wants you to ignore
these people and pass legislation that helps only a few, not the “many” who are
sick.
It
has taken a long time for this Subcommittee to address these issues: one is
reminded of the Michael Moore Film, Roger & Me: DOE victims have
been waiting for four months.[5] Having waited so long, let me suggest that
at this late date in this session, that the bipartisan Members of this
Subcommittee kindly work to kill and defeat the Thompson-DOE “Trojan Horse”
bill. DOE’s bill (Senate Amendment 3250
to S. 2549, the Thompson-DOE amendment, also introduced last week as H.R. 5189)
does not require:
1. Coverage
of all sick workers and residents hurt by DOE toxicants.
2. Full
funding of lifetime compensation and medical benefits by making the polluters
pay.
3. Open
public hearings with testimony under oath before independent DOL administrative
law judges, as provided for Black Lung claims (instead, the Thompson amendment
uses government doctors to decide claims).
4. Subpoena
power and easy access to documents and answers from DOE and contractor managers
(incredibly, Thompson amendment requires a separate federal court lawsuit to
force discovery, after first waiting 180 days!).
5. Appeals
to the DOL Benefits Review Board and judicial review by the Court of Appeals,
as provided for Black Lung and Longshore workers' compensation claims.
6. Strict
action-forcing deadlines for government action, with claims being granted if
the government waits too long.
7. Payment
of full reasonable attorney fees, expert witness fees and other litigation
expenses at market rates and a ban on attorney solicitation and percentage
contingency fees, as in Black Lung (instead, attorneys would be free to charge
contingency fees, reducing the $200,000 lump sum to as little as $100,000 after
expenses).
8. An
end to the Federal Tort Claims Act discretionary function exemption for
ultrahazardous activities, preserving worker rights to sue.
9. Coverage
for genetic injuries to spouses, families, children and grandchildren of workers
and for injuries caused by dangerous chemicals and heavy metals like cyanide,
mercury and hydrogen fluoride.
10. Decisional
Independence of DOE in deciding compensation, with independent lifetime medical
care and clinical research, free of influence by DOE and its contractors.
Rather than a fitting memorial to sick workers and residents whose
suffering made the Cold War victory possible, the DOE-Thompson bill is
guaranteed to result in denials and delays.
DOE wants its polluting contractors unscathed: DOE
wants to give them the Colgate invisible shield of immunity. Congress should reject this indecent demand
for immunity, just like it rejected that of the tobacco industry in the first
“settlement” of tobacco tort litigation.
DOE wants to make only small payments to a token
number of the sick. As President
Clinton said in his Second Inaugural, “no one ever accomplished anything great
by being small.”
DOE’s proposal is small-minded and petty. Daniel Burnham, architect of Union Station
in Washington, D.C., said, “Make no little plans, for they do not inspire
people to carry them out.” Like a
bikini that does not quite cover its subject, DOE’s “itsy bitsy teeny weeny”
compensation proposal should be rejected on the grounds of public decency.
DOE’s perverse brand of “tort deform” is unfair.
It fails the “laugh test.” DOE’s
offer is not unlike some insurance companies’ first settlement offer in an auto
wreck case -- ludicrous posturing in hopes that it can settle for pennies on
the dollar with victims who do not know their rights.
DOE’s bill is unadorned by the decency of an apology,
as Secretary Richardson made and as is set forth in Rep. Kanjorski’s bill, H.R.
674, the proposed Beryllium Exposure Compensation Act. The DOE bills are a snare and a delusion,
not Due Process: no person (and no Chief Justice or agency) may sit in judgment
on their own case.[6]
DOE’s proposals should be rejected by the House. The House should draft a fair bill modeled
on Black Lung and Longshore compensation legislation, while eliminating the
FTCA “discretionary function” loophole for ultrahazardous activities. The House should also reform the
whistleblower laws to provide genuine protection, not just empty promises.
For DOE-poisoned sick workers and residents[7],
this should be a happy day. However,
hastily passed Senate legislation and the threat of a “Trojan Horse” bill (H.R.
5189) make this a day fraught with danger for the Constitution and for worker rights. DOE demands to adjudicate its own claims,
made by workers that DOE made sick.
This is a conflict of interest, like making Dracula manager of the Blood
Bank. It would be wrong for DOE to
“adjudicate” DOE’s own toxic torts and worker compensation claims.[8] This conflict of interest would violate Due
Process.[9] The
Judiciary Committee is wise to learn the ways of DOE before legislating about
compensation for DOE’s toxic torts in a manner that would restrict worker
rights to sue, as DOE would do, while winking at you on this Committee.
DOE’s legislation would deprive workers of jury
trials and full and fair remedies against DOE and its contractors. DOE rejects independent adjudications before
DOL Administrative Law Judges, who currently hear Black Lung and Longshore
cases. DOE should be asked critical
questions: “What is the value of a human life?” “Why not make the polluters
pay?” “How many people deserve compensation” “What kind of proof should be
required?” “Why no jury trials?” “What
about children and genetic damage in the African-American community of Scarboro
and elsewhere in Oak Ridge and other DOE-polluted communities?” “What about residents (Downwinders?)” “What
about justice?
DOE’s lowball compensation proposal is a snowjob,
with a snowball’s chance of achieving justice for injured workers and
residents.
Sadly, the DOE proposal vastly undervalues human
life. In any jurisdiction in the
United States, a human life is worth more than $100,000 to $200,000. We know this because that is what juries
tell us all the time in personal injury, wrongful death and discrimination
cases. DOE’s demeaning monetization of
the life of a human being is less than the annual salary of the Secretary of
Energy. DOE’s petty proposal is, at
best, scandalous.
In the interests of full disclosure, does DOE plan to
put its human life dollar value on the signs outside of the K‑25 Gaseous
Diffusion Plant or Y‑12 Nuclear Weapons Plant? (Get sick and die here and your life is worth only $100,000 to
DOE). Where does DOE get its absurdly
low value of the worth of a human life?
Certainly not from research on jury verdicts in wrongful death and
personal injury cases, which can be for millions of dollars. Members of this
Committee should ask DOE about its low
value on human life. DOE cruelly assumes bomb plant workers are “worth
more dead than alive,” as the villain told Jimmy Stewart’s character in the
movie, “It’s a Wonderful Life.” The Chicago
Tribune has reported earlier about hospitals and others selling human body
parts:
One body can yield more than 130 pieces of tissue
once it is extracted, sterilized, cut up, packaged and sold. The total worth of
all the usable tissue in a body is more than $230,000.
Because not all the tissue from a single donor is usually taken, the average
market yield per cadaver is closer to $80,000, industry executives say.[10] (Emphasis added).
Why $100,000? Why not look at jury trial verdicts in
wrongful death and personal injury cases for guidance? DOE
lawyers’ thinking is crabbed: be careful because it can be contagious.
Like tobacco companies, DOE managers lied for
years. Now DOE admits it killed and
crippled Americans with its nuclear weapons plants. It just doesn’t want to allow fair procedures or make its
contractors pay fair compensation. What
chutzpa.
Seattle plaintiffs’ lawyer Leonard Schroeter writes:
Much like the tobacco industry, the nuclear industry,
which was wholly indemnified by the United States government, has a policy
of full-scale war against any person with the temerity to suggest that
radiation might be bad for their health.
Thus, despite the new O’Leary policy of disclosing what a half century
of nuclear secrecy, questions still remained as to whether the United States
government continued to be committed to no accountability, no responsibility,
and no compensation for the powerless victims. (Emphasis added)[11]
What is this weak DOE-drafted Senate Floor amendment
going to accomplish? Do DOE and Sen. Thompson
think that U.S. government doctors lacking in independence could fairly decide
cases? He must not remember the Reagan administration's efforts to pressure
independent Social Security Administration administrative law judges to deny
benefits, sending SSA judges those who found too many workers disabled to what
Rep. Frank called "remedial judging school." As a sound, independent alternative to DOE
control and the potential for case-fixing, please consider NWWAVARCHA
(attached).
DOE does not want Congress to question DOE’s
assumptions. Instead, DOE wants
Congress to pass DOE’s “Trojan Horse” bill, which is exactly what the “other
body” did.
DOE wants Congress to dust off the Radiation Exposure
Compensation Act (RECA), a 1990 compromise that monetizes the worth of selected
Downwinders and uranium miners at scandalously low amounts, with long delays
and unappealable decisions by unaccountable DOJ lawyers in the Torts
Branch). RECA is a perverse model of
failure, and its extension to DOE site workers compensation legislation asks
too much -- DOE asks Congress to make the same mistake all over again, one more
time, with feeling. DOE asks Congress
to value workers’ lives at low values, as if DOE wants to treat them as Third
World Country residents.
DOE asks Congress to cut off worker rights to sue DOE
contractors and managers. That is
wrong. Workers’ lives are worth more
than DOE wants to pay.
We must be fair to all nuclear weapons workers and
residents. DOE should not be permitted
to rush things, foisting off a “Son of RECA” bill on the American people. Let’s develop full and fair remedies, with
fair procedures (including jury trials and administrative law judges), and
lifetime medical care. Congress should
not pass a pig in a poke, or foist off a Trojan Horse on the American people.
In August 1986, I was sworn in as a law clerk for the
United States Department of Labor Office of Administrative Law Judges. After a few months, I was assigned to spend most of my working and
waking hours assisting The Chief Administrative Law Judge, the Honorable Nahum
Litt. Chief Judge Litt was responsible for assuring that American
workers received the full benefit of Due Process adjudications under
whistleblower statutes and the DOL compensation system for coal workers’
pneumoconiosis (Black Lung) and Longshore and Harbor Workers. For three decades, DOL’s Black Lung program
has successfully used a per-ton tax on coal to fund disability compensation and
health care. It is self-supporting. A CBO or GAO study would be helpful to your
deliberations.
Other federal agencies -- like the Social Security
Administration -- often violated Due Process due to pressures, particularly
during the Reagan years.[12] At DOL, Chief Judge Nahum Litt protected
workers’ rights under the Administrative Procedure Act, standing as a bulwark
of democracy against the worst that three Administrations had in mind. He insulated judges from attempted improper
political pressures. One could not ask
for a better mentor or for a better introduction to the attempted pressures of
agency officials and the need for independent adjudications, guaranteed by the
Administrative Procedure Act. During
my clerkship, I met and talked with Administrative Law Judges at agencies where pressures were constant. In the early 1990s, I represented seven
Department of the Interior Administrative Law Judges subjected to such unseemly
pressures. Such mistreatment of ethical
federal employees is all too common.[13]
I have studied the DOE’s proposals on workers’
compensation for nuclear workers and compared it to the rights available to
coal miners and Longshore workers.
The DOE proposal envisions a compensation system like
the Office of Workers’ Compensation Programs (OWCP) and its Federal Employees
Compensation Act (FECA) cases, which has no Administrative Law Judges and no
judicial review. DOE refuses to agree
to legislation that would follow the precedent of the Black Lung and Longshore
Programs, which have hearings before independent Administrative Law Judges and
full rights to appeal.
It is my considered opinion that the DOE bills would
deny Due Process, and lack protections for worker rights. The Administration’s proposal is deeply
flawed, at best, and fails to guarantee the basic Due Process provided to coal
miners and longshoremen.
There is no principled reason why two East Tennessee
brothers should have differing rights when one gets sick from beryllium disease
at the Y-12 Nuclear Weapons Plant in Anderson County, and the other gets lung
disease from working in nearby coal
mines. Both brothers suffered diseases
of the lung caused by atrocious working conditions found by Congress. Both brothers’ illnesses were caused by
callous employers who failed to take adequate safety precautions. Both brothers deserve and require full
benefits, equal justice, open courts, fair appeals and judicial review. DOE would have you treat the brothers
unequally. This is cruelly unfair.
Nuclear weapons plant workers and residents
(Downwinders) were hurt by intentional acts of DOE contractors. Those acts were often covered up by DOE
using national security classification.
These victims are being offered by their Government a puny one-time cash
payment, one without lifetime health care -- instead of a right to a jury trial
or to an independent administrative law judge to decide their cases. Why?
This Committee should demand answers to key
questions: Who pays?
Who gets benefits? Who controls
the program? What is being paid? What rights are being taken away? Are
benefits reduced based on other workers’ compensation benefits? Who decides? Is there any appeal? What
physical and mental conditions are being compensated? How many would receive benefits.
Answers to these questions ineluctably lead to the conclusion that
Congress should write its own proposal, based upon legal principles established
in the Longshore and Harbor Workers Compensation Act (LHWCA) of 1928 and in the
Black Lung Benefits Act of 1969.
Not the polluters who made the workers sick --
companies like Lockheed Martin, Union Carbide and Goodyear Atomic. DOE does not propose Congress enact a tax
on DOE’s contractors to pay for compensation, as Congress did on coal companies
in passing Black Lung compensation.
Instead, the benefits will be
paid out of general revenues, making budget concerns tower over public health ab
initio, and using the budget mechanism to effectively limit the number of
persons awarded benefits.
This is an unfair, regressive subsidy from every
American to DOE’s contractors. Shame on
DOE for its insensitive approach, which makes compensation look more like a
bribe or welfare than compensation for workplace injuries. This sends the wrong message to government
contractors: make enough workers sick and the Government creates a
bailout. This is obscene and
absurd.
Vice President Al Gore has long favored a pollution
tax to “internalize external costs.” A
pollution tax should be levied upon every DOE operating contractor ever to
operate a DOE site. The tax should be
proportionate to the pollution and sick workers left behind. Funding should be based on taxing DOE’s
contractors, not innocent Americans.
Then Congress will be more likely to grant full rights to fair benefits
for all injured workers and residents (and less to trying to limit the number
of beneficiaries). The Black Lung
program is a pay-as you go program, based on the Longshore and Harbor Workers’
Compensation Act of 1928.[14]
By making compensation part of DOE’s budget --
instead of taxing its own contractors -- DOE managers ask Congress to create a
built-in conflict of interest: DOE budgetary pressures that would be well-known
to DOE decisionmakers who lack judicial independence.
DOE sites have a history of conflict of interest[15]
-- environmental monitoring, radiation protection, self-policing -- leading to
legislation calling for “external regulation.”
Both Supreme Court Chief Justice Earl Warren and the Bible agree:
"A [person] cannot serve two masters."[16] Conflict of interest standards are intended
to “prevent dishonor.”[17] The DOE budget should not be tapped
for nuclear worker benefits, because this would give DOE personnel an incentive
to deny benefits for their own agency’s benefit. DOE contractors should be taxed to pay for the benefits, with a
tax system taking its cue from the Black Lung Benefits Act per ton coal tax or
Vice President Al Gore’s proposed pollution tax.
In DOE’s first draft, only a subset of the most
activist sick workers -- the beryllium workers, Oak Ridge and Paducah workers
-- would receive benefits. Local residents and all of the workers and residents
from all of the other sites are left behind.
Why?
DOE targeted the most vocal workers, hoping it won’t
have to do anything if they take its bait.
This is a cynical approach to workers compensation and public
health. Not even the coal industry
lobby dared propose such a cynical bill.
No coal company ever proposed that only those persons active in the
Black Lung Associations (BLA) should have received compensation in 1969. Buying off Oak Ridge DOE weapons site
pollution critics is not an appropriate basis for writing
legislation. In America, we call it
bribery.[18] The sick workers see through this Oak Ridge
critics-only compensation plan, and have rejected it -- every single one of
them. DOE should apologize for this
attempted manipulation.
Under DOE’s “Fantasy Island” approach, it would be
DOE and not DOL. This is the “control
game” DOE always plays. We don’t let
tobacco or asbestos companies decide who gets compensated. This control by DOE
over its own compensation program is contrary to the now well-established
principle of “external regulation” of every aspect of DOE. What other organization has its own in-house
workers’ compensation system? Would
outspoken DOE critics be targeted for benefit denials in retaliation for
criticism? Why should DOE being given a
choice by “contracting” with DOL to have DOL run the program. External regulation should be assured and
assumed.
Depending on the version of the bill, $100,000 or
$200,000 per person, taxable or tax-free, with lawyers fees to be paid from the
proceeds. There is no provision for
lifetime medical care and treatment.
Legal fees come out of awards, and are limited to 10%. In contrast, under the Black Lung
legislation, monthly benefits are paid to the miner and his or her surviving
spouse and children, along with lifetime health care and attorney fees based on
hours worked and reasonable hourly rates.
By capping legal fees and making them come out of the awards, DOE seeks
to discourage zealous legal representation.
In a true “compensation” system, workers should not have their awards
reduced by any percentage for fees -- legal fees should be calculated
separately. (Under the Federal Tort
Claims Act, fees are capped at 25% of awards). Total Black Lung compensation can reportedly reach $500,000,
including medical bills, in a typical Black Lung case.
All rights to sue DOE, the United States, DOE
contractors and subcontractors and employees, by the employee, representative,
spouse, dependents, survivors, next of kin, hospitals, doctors and insurance
companies in any civil action. DOE
retains the right to sue whoever made you sick to recover its costs, but you
give up all rights.
YES. Benefits would be reduced by payments under
any state or federal workers compensation system, excepting medical
expenses.
DOE and DOE doctors.
This is a blatant conflict of interest, and “tempts dishonor.”[19] DOE doctors getting DOE performance reviews
will perform what should be an adjudication function performed by independent
Administrative Law Judges appointed pursuant to 5 U.S.C. § 3105. Why should the polluter’s own personnel
decide who the polluter has made sick?
This is an outrage.
Under the legislation, DOE could hire DOL to do its decisionmaking
for it (presumably, a contract to pay the DOL Office of Workers Compensation
Programs to handle paperwork). In
contrast, Black Lung benefits are decided by
independent Administrative Law Judges, protected by lifetime tenure,
free to decide cases based on medical evidence and legal precedent. Government physicians have bosses and would
serve on “panels.” This is reminiscent
of the NRC Atomic Safety and Licensing Board (ASLIB), where “panels” of
technical “experts” were presided over by “judges” who are not independent
Administrative Law Judges. The purpose
of those panels was to approve every nuclear powerplant license ever placed in
front of them by the NRC staff. This is
not “science.” It is “junk science.”[20] This is not “adjudication.” It is yet
another administrative law “kangaroo court.”.
This is not democracy -- it is autocracy, or what Max Weber first called
“bureaucracy” or “technocracy.”
Congress should find that it would violate Due Process and reject the
DOE bill. DOE’s bill sets up not an
administrative-judicial process but a medical lottery. Government physicians have been harassed
and intimidated in the past for their outspokenness on medical conditions
ranging from Gulf War Syndrome to the Tuskegee, Alabama syphilis experiment. The “panels” could be filled by DOE clone
physicians who pretend that there is not enough “data” -- after DOE for years
concealed death rates by epidemiological flummery.
DOE employees should ever be involved in adjudicating
compensation decisions. If DOE decides
who gets compensation, it could easily use its power to punish those who are
its most vocal public critics, while buying off persons who agree to gag
orders. See infra. It is a conflict of interest for DOE
employees who gets compensation at DOE sites.
DOE’s abusive security clearance adjudication process should give this
Subcommittee pause for alarm.
The bill provides no principles of balance or
neutrality in selection of government physicians to sit in judgment on workers’
compensation claims, which are ultimately legal, not medical, determinations
for Congress to make, just as in the Black Lung interim presumption. Government physicians vary in quality and
integrity. Dr. Michaels will not always
be there: his successor could be someone with very different values and
views. Whoever hires, pays, evaluates
and promotes the physicians can influence the number of decisions awarding
benefits be paid.
It is all too common in Government for agencies to
try to influence the awarding of benefits to save money. The Immigration and Claims should
investigate this tendency, which too often dangerously borders on
“case-fixing,” as in the Social Security and security clearance cases.
Back in the 1980s, the Social Security Administration
kept sending its “independent” judges back to what Rep. Barney Frank of this
Subcommittee called “remedial judging school” if they ruled too often for
disabled workers. Congress wrote the
Administrative Procedure Act in 1946 to protect citizens’ rights to fair
treatment by their Government in administrative law. Not surprisingly, DOE asks Congress to exempt DOE from these
provisions. This Committee should not
only say “no,” but “never” to DOE’s insistence on being exempt from APA. Poisoning Oak Ridge workers does not come
under the military exemption in APA. No
logical basis exists for exempting nuclear worker and resident compensation
adjudications from APA. Any worker seeking
compensation for injuries from working at DOE sites should have an absolute
right to an open, public hearing before truly independent Administrative Law
Judges from DOL -- where workers’ witnesses can testify about actual working
conditions while they are all still alive, putting the facts on the record
forever. In contrast, DOE’s bill shows
a marked preference for “kangaroo courts,” which is all that federal employees
have under the FECA compensation
system. (Ask a DOE or TVA employee how
they like FECA).
No. In DOE’s bill, DOE’s decision is final and
unappealable. Why? DOE wants to maintain control, and avoid
lawyers and courts and judges and accountability.
In contrast, DOL has appeals to the Benefits Review
Board (BRB). BRB is subject to change
with administrations, but bases its decision on precedents and evidence. Anyone dissatisfied with a BRB decision can
go to the Court of Appeals and the Supreme Court, which has actually decided a
few Black Lung appeals in the past 25 years.
This assures a uniform body of precedents that the Government will have
to follow. DOE’s purpose in denying
worker appeals is to “ration justice.”
As Judge Learned Hand said, "If we are to keep our democracy, there
must be one commandment: thou shalt not ration justice."
Under DOE’s unfair “alternative dispute resolution”
system for compensating sick nuclear workers, DOE’s porcine contractors would
have more Due Process rights to appeal from an unreimbursable party expense
than a contractor worker and his/her family would from denial of compensation
for sickness and death.
&n