Richard J. Malin v. Department of Justice

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD J. MALIN,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2015-8001
______________________
Petition for review of a decision of the Bureau of Jus-
tice Assistance in PSOB Claim No. 2010-DIS-028.
______________________
Decided: August 6, 2015
______________________
RICHARD J. MALIN, Cairo, NY, pro se.
J OSHUA A. MANDLEBAUM , Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, R OBERT E. K IRSCHMAN, J R.,
ELIZABETH M. H OSFORD; RAFAEL ALBERTO MADAN, J ASON
P. COOLEY , J OEL F EIL , Office of General Counsel, Office of
Justice Programs, United States Department of Justice,
Washington, DC.
______________________

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MALIN v. DOJ 2
Before REYNA, WALLACH , and HUGHES , Circuit Judges.
P ER CURIAM
Richard Malin appeals the Board of Justice Assis-
tance’s final determination that he has not established
that the deterioration of his medical condition was the
“direct and proximate” result of alleged exposures to
contaminants in the line of duty, as is required by the
Public Safety Officer’s Benefits Act. See 42 U.S.C.
§ 3796(b). Because substantial evidence supports the
BJA’s final determination, we affirm.
BACKGROUND
Mr. Malin served as an environmental-conservation
police officer for the New York State Department of
Environmental Conservation from May 1977 to December
1996. His primary duties included investigating envi-
ronmental crimes dealing with the illegal application of
toxins and toxic wastes. In the fall of 1988, Mr. Malin
was diagnosed with carcinoid tumors affecting his liver
and small intestines. After taking leave to treat the
tumors, Mr. Malin returned to work in early 1989.
In 1993, Mr. Malin was assigned to the Region 3 office
in New Paltz, NY. The Region 3 office was built on land
that had previously been used as an apple orchard and
had allegedly been contaminated with pesticides. During
this assignment, Mr. Malin worked at the Region 3 office
between three and five days a week. By the fall of 1996,
Mr. Malin’s condition had worsened significantly.
Mr. Malin testified that he began to experience shortness
of breath, wheezing, diarrhea, and energy loss. According
to Mr. Malin, his primary doctor, Dr. Richard Warner,
informed him that he had developed seven tumors in his
liver and small intestine. Following Dr. Warner’s advice,
Mr. Malin stopped working in December 1996.
Mr. Malin’s condition appears to have continued to deteri-
orate and, as of August 2014, he was experiencing a deep

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MALIN v. DOJ 3
venous thrombosis, a complication of his chemotherapy
for his liver cancer.
Mr. Malin claims that his condition deteriorated as a
result of his work at the Region 3 office. He cites a Feb-
ruary 1997 memorandum from Ward B. Stone, the head of
wildlife pathology for New York, stating that the New
Paltz office grounds were “contaminated with arsenic,
lead, and DDT [dichlorodiphenyl trichloroethane]” and
that Mr. Malin “had many exposures to carcinogens when
investigating chemical spills, visiting dumps containing
chemicals, and while working in the orchards in the New
Paltz area.” In 2009, Mr. Stone sent Mr. Malin an email
stating that Mr. Malin had “a potential to be exposed on a
daily basis to toxins at the office as well as in the field.”
The New York State Department of Health also in-
spected the New Paltz offices and issued a report in April
1995. That report found that the potential for employees
to be exposed to lead, arsenic, and DDT at the Region 3
office was “low.” The report explained that the property is
generally covered by grass, and employees are not likely
to come into contact with contaminants during “routine
activities such as walking and picnicking on the grounds.”
Shortly after the Department of Health’s report was
issued, the Director of Occupational Health and Safety,
Jean C. Edouard, issued a memorandum concurring with
the Department of Health’s findings. Jean Edouard
specifically questioned Mr. Stone’s conclusions, stating
that elevated levels of contaminants on the Region 3
grounds “cannot be related to any risk of occupational
exposures because there is no evidence that these sub-
stances are actually present where employees might come
into contact with them.” In response to a request from
Jean Edouard, the New York State Department of Labor,
Public Employee Safety and Health Bureau took air and
surface wipe samples for lead and DDT inside the Region
3 office. The resulting Contamination Report found that

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MALIN v. DOJ 4
the levels of these two contaminants did not rise above
“the detection limits of the testing methodologies.”1
In October 1997, Mr. Malin filed a claim for workers’
compensation benefits before the Workers’ Compensation
Board of New York State. Two months later, Dr. Warner,
wrote a letter stating that throughout Mr. Malin’s career,
Mr. Malin had “repeated exposures” to arsenic, lead, and
DDT. He further stated that he felt that it was “logical to
conclude that deterioration of [Mr. Malin’s] condition has
been accelerated by exposure to these toxic contami-
nants.” During a deposition conducted as a part of the
workers’ compensation claim, Dr. Warner was asked,
assuming that “tests . . . would indicate that there was
arsenic and lead and DDT in the place in which
[Mr. Malin] worked at least three days a week, seven to
eight hours a day,” could he render an opinion on whether
this exposure contributed to the worsening of Mr. Malin’s
symptoms. Dr. Warner answered that “nobody can give
you a definite answer” but that he could “give you an
opinion, which is probably yes.” Dr. Warner also opined
that it was “possible” that Mr. Malin’s condition worsened
without additional exposure to contaminants, but that “it
would have been a little bit unusual to abruptly do so over
that period of time to the extent that he became debilitat-
ed.” As a part of the workers’ compensation proceeding,
Dr. Justin Scheer also rendered a report, concluding that,
because the cause of carcinoid tumors is unknown, “it is
not possible, with any degree of certainty, to attribute
[Mr. Malin’s] cancer to toxic exposure at work.” Neverthe-
less, the Board credited Dr. Warner’s testimony and
awarded Mr. Malin workers’ compensation benefits.
1 The Contamination Report did not describe arse-
nic levels because the applicable occupational safety
standards exempted arsenic exposure from pesticide
applications.

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MALIN v. DOJ 5
In connection with a separate claim for benefits before
the New York State and Local Retirement System,
Dr. Jeffrey Perkins testified that, having reviewed records
provided by the State, Mr. Malin had been exposed to
contaminants. He further testified that he would be
comfortable stating that Mr. Malin’s occupation was
“causally connected” to his development of carcinoid
tumors. Based mainly on Dr. Perkins’ testimony,
Mr. Malin was awarded disability retirement benefits.
In December 2009, Mr. Malin filed a claim for disabil-
ity benefits under the Public Safety Officer’s Benefits
(PSOB) Act with the Bureau of Justice Assistance (BJA).
To evaluate Mr. Malin’s claim, the BJA obtained a medi-
cal report from Dr. William Oetgen. Dr. Oetgen stated
that the cause of carcinoid tumors is unknown and that
Drs. Warner’s and Perkins’s assertions linking
Mr. Malin’s cancer with exposures to contaminants at the
Region 3 office “represent speculation” that “are not
supported by hard evidence in the medical literature.” In
Dr. Oetgen’s view, “there is no reasonable certainty that
Mr. Malin’s occupational exposure was a substantial
factor in either his development of carcinoid tumors or
their progression.” On the contrary, “[i]t appears likely
that other underdetermined factors contributed to the
development of his disease to a greater extent than this
occupational exposure.”
Based on Dr. Oetgen’s findings, the BJA initially de-
nied Mr. Malin’s claim, determining, among other things,
that “[t]he record does not demonstrate . . . that Officer
Malin’s disability was the direct result of an injury sus-
tained in the line of duty . . . .” Mr. Malin then requested
a determination of his claim by a hearing officer, who also
concluded that Mr. Malin did not establish the requisite
causation.
Mr. Malin appealed the Hearing Officer’s decision to
the BJA Director. The Director affirmed, finding that she

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MALIN v. DOJ 6
could not conclude that “Officer Malin suffered any expo-
sure, or traumatic condition attributable to an exposure
at the New Paltz Office such that it would constitute an
‘injury’ under the PSOB program.” J.A. 154. The Direc-
tor noted that although there was evidence of arsenic,
lead, and DDT in the soil around the Region 3 office, there
was no evidence that these contaminants were present in
locations where employees would come into contact with
them. It was significant, according to the Director, that
the air and surface samples detailed in the Contamina-
tion Report had no detectable levels of contaminants.
Even assuming that Mr. Malin’s field work put him at
increased risk for developing or worsening carcinoid
tumor, such increased risk is, according to the Director,
“equivalent to ‘occupational disease,’” which is not an
“injury” under the PSOB Act. J.A. 155.
Mr. Malin appeals the BJA’s final determination. We
have jurisdiction under 42 U.S.C. § 3796c-2.
D ISCUSSION
We review the BJA's final determination to deny
claims under the PSOB Act to determine “(1) whether
there has been substantial compliance with statutory
requirements and provisions of implementing regulations;
(2) whether there has been any arbitrary or capricious
action on the part of the government officials involved;
and (3) whether substantial evidence supports the deci-
sion denying the claim.” Moore v. Dep’t of Justice, 760
F.3d 1369, 1372 (Fed. Cir. 2014) (internal quotations
omitted). “Substantial evidence” is “such relevant evi-
dence as a reasonable mind might accept as adequate to
support a conclusion.” Consolo v. Fed. Mar. Comm’n, 383
U.S. 607, 620 (1966) (quoting Consolidated Edison Co. of
New York v. NLRB, 305 U.S. 197, 229 (1938)). Here, we
review the BJA’s final determination to determine wheth-
er substantial evidence supports its finding that
Mr. Malin did not establish that he was exposed to con-

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MALIN v. DOJ 7
taminants at the Region 3 office and that this exposure
caused the deterioration of his condition.
The PSOB Act provides that where “the [BJA] deter-
mines that a public safety officer has become permanently
and totally disabled as the direct and proximate result of
a personal injury sustained in the line of duty, the Bureau
shall pay the same benefit to the public safety office . . . .”
42 U.S.C. § 3796(b) (emphases added). The PSOB Act’s
implementing regulations provide that an “injury” means:
a traumatic physical wound (or a traumatized
physical condition of the body) directly and proxi-
mately caused by external force (such as bullets,
explosives, sharp instruments, blunt objects, or
physical blows), chemicals, electricity, climatic
conditions, infectious disease, radiation, virii, or
bacteria, but does not include—
(1) Any occupational disease; or
(2) Any condition of the body caused or occasioned
by stress or strain.
28 C.F.R. § 32.3. An “occupational disease” is “a disease
(including an ailment or condition of the body) that rou-
tinely constitutes a special hazard in, or is commonly
regarded as a concomitant of, an individual’s occupation.”
Id. The implementing regulations further define “direct
and proximate cause” as a “substantial factor.” Id. A
factor is a “substantial factor” if it is one that was “suffi-
cient to have caused” the injury or “[n]o other factor (or
combination of factors) contributed to the [injury] to so
great a degree as it did.” Id.
Mr. Malin argues that the BJA erred because the evi-
dence he cited clearly supports a finding that the expo-
sure to contaminants at the Region 3 office exacerbated
his carcinoid tumors. Appellant’s Br. 7–8. As Mr. Malin
points out, Dr. Warner stated in his December 1997 letter
that it was “logical” to conclude that the deterioration of

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MALIN v. DOJ 8
Mr. Malin’s condition was accelerated by exposure to
contaminants at the Region 3 office. J.A. 11. Dr. Warner
further testified that Mr. Malin’s alleged exposure to the
contaminants played some role in the worsening of his
symptoms. J.A. 86–87.
Dr. Warner’s testimony, however, assumed that
Mr. Malin had been exposed to contaminants. See J.A.
86. The Contamination Report calls this assumption into
question as it found no detectable levels of lead or DDT in
the Region 3 office. Supplemental App’x. (S.A.) 58. The
New York State Department of Health also found that it
was unlikely that an employee would be exposed to con-
taminants outside of the Region 3 office because the
property is generally covered by grass. S.A. 48. Similar-
ly, Jean Edouard concluded that contaminated soil was
“bound by vegetation and not free to become airborne.”
S.A. 53. It was not clear that the contaminants posed a
threat for occupational exposures because there was “no
evidence that these substances are actually present where
employees might come into contact with them.” Id.
Based on these findings, Dr. Oetgen concluded “there is
no reasonable certainty that Mr. Malin’s occupational
exposure was a substantial factor in either his develop-
ment of carcinoid tumors or their progression.” S.A. 44.
Substantial evidence thus supports the BJA’s finding that
Mr. Malin has not established that he was exposed to
contaminants at the Region 3 office. Because such an
exposure is a prerequisite to Mr. Malin’s claim, substan-
tial evidence supports the BJA’s determination that the
deterioration of Mr. Malin’s condition was not a “direct
and proximate” result of his work at the Region 3 office.
Mr. Malin also suggests that he should receive PSOB
benefits based on the fact that he was granted workers’
compensation and disability retirement benefits. See
Appellant’s Br. 5–6. The workers’ compensation award,
however, was expressly predicated on a finding that
Mr. Malin suffered an “occupational disease,” J.A. 103,

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MALIN v. DOJ 9
which is not an “injury” under the PSOB Act. 28 C.F.R.
§ 32.3. The disability retirement award was similarly
based on various unspecified exposures, J.A. 107–08,
which amount to an occupational disease. 28 C.F.R.
§ 32.3. Accordingly, Mr. Malin’s successful claims for
workers’ compensation and disability retirement benefits
do not establish error in the BJA’s decision.
CONCLUSION
For the foregoing reasons, we affirm the final deter-
mination of the BJA.
AFFIRMED
No Costs.

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