NOTE: This disposition is nonprecedential.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 Justice Assistance in PSOB Claim No. 2010-DIS-028.

______________________ 

Decided: August 6, 2015

______________________ 

 RICHARD J. MALIN, Cairo, NY, pro se. 

 JOSHUA A. MANDLEBAUM, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for respondent. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,

ELIZABETH M. HOSFORD; RAFAEL ALBERTO MADAN, JASON 

P. COOLEY, JOEL FEIL, Office of General Counsel, Office of 

Justice Programs, United States Department of Justice, 

Washington, DC.

______________________ 
2 MALIN v. DOJ

Before REYNA, WALLACH, and HUGHES, Circuit Judges.

PER CURIAM

Richard Malin appeals the Board of Justice Assistance’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 environmental 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 deteriorate and, as of August 2014, he was experiencing a deep 
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 February 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 inspected 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 substances 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 
4 MALIN v. DOJ

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 contaminants.” 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 debilitated.” 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.” Nevertheless, the Board credited Dr. Warner’s testimony and

awarded Mr. Malin workers’ compensation benefits. 

1 The Contamination Report did not describe arsenic levels because the applicable occupational safety 

standards exempted arsenic exposure from pesticide 

applications. 

 
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 disability 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 medical 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 denied 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 sustained 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 
6 MALIN v. DOJ

could not conclude that “Officer Malin suffered any exposure, 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 Director 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 Contamination 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. 

DISCUSSION

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 decision 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 evidence 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 whether substantial evidence supports its finding that 

Mr. Malin did not establish that he was exposed to con-
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] determines 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 proximately 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 routinely 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 “sufficient 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 evidence he cited clearly supports a finding that the exposure 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 
8 MALIN v. DOJ

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 contaminants outside of the Region 3 office because the 

property is generally covered by grass. S.A. 48. Similarly, 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 development 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, substantial 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, 
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 determination of the BJA.

AFFIRMED

No Costs.