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Espinoza v. United States Department of Justice

United States District Court, D. Colorado

December 5, 2013


Page 1095

For Eppie Espinoza, Plaintiff: Randall M. Weiner, Randall M. Weiner, P.C., Law Offices of, Boulder, CO.

For United States Department of Justice, Defendant: Joseph W. Mead, U.S. Department of Justice-DC-Mass. Ave., Washington, DC.

Page 1096


William J. Martí nez, United States District Judge.

This appeal from an administrative denial of benefits under the Radiation Exposure Compensation Act (" RECA" ) is before the Court under 42 U.S.C. § 2210 note, Sec. 6(l). Plaintiff Eppie Espinoza (" Plaintiff" ) challenges the final decision of Defendant, the Department of Justice (" DOJ" ), denying his application for benefits under RECA. The Court held Oral Argument in this case on November 22, 2013.

After carefully considering the evidence presented, counsel's arguments in their briefs and at the hearing, and the applicable law, the DOJ's decision denying Plaintiff's application for RECA benefits is AFFIRMED.


A. Statutory and Regulatory Background

The Radiation Exposure Compensation Act was enacted in 1990 to provide compensation

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to individuals who developed a qualifying illness following exposure to radiation from nuclear weapons tests, or as a result of employment in the uranium production industry during the Cold War era. See Pub. L. No. 101-426; 104 Stat. 920 (codified as amended in 42 U.S.C. § 2210 note (" RECA" )). RECA provides monetary benefits to, among others, individuals who developed a qualifying illness after being employed as uranium miners in specified states between January 1, 1942, and December 31, 1971, and either (1) were subjected to 40 working level months[1] (" WLMs" ), of radiation, or (2) worked in qualifying employment for at least 12 months. See id. § 5.

RECA claims are processed by the Radiation Exposure Compensation Program (" RECP" ), a unit within the Constitutional and Specialized Tort Litigation Section of the Civil Division of the Department of Justice (" DOJ" ). See RECA § 6(b)(1); 28 C.F.R. § 79.70. Under the federal regulations implementing RECA, a uranium miner or surviving beneficiary who seeks compensation must file a claim with the RECP. 28 C.F.R. § 79.72. A designated Assistant Director then adjudicates the claim and issues a written decision. Id. A claimant who is denied compensation may appeal to a designated Appeals Officer within 60 days of the initial decision. Id. at § 79.73(a). The Appeals Officer's decision is the final agency action on the claim, after which a denied claimant may seek judicial review in the district court. Id. at § 79.73(d)-(e). A claimant may also re-file a denied claim up to three times, where the claimant " obtains documentation that he or she did not possess when the claim was filed previously and that redresses the deficiency for which the claim was denied." Id. at § 79.71(j)-(k).

In 2000, Congress amended RECA in several ways, including expanding the ways in which claimants could demonstrate their eligibility for benefits. Pub. L. No. 106-245 § 3(e)(2); 114 Stat. 501 (codified at 42 U.S.C. § 2210 note). The 2000 Amendments permitted a claimant to rely on affidavits made by persons other than the claimant " in addition to any other material that may be used to substantiate employment history for purposes of determining working level months" . Id. The subsequently amended regulations specified that affidavits by third parties, made under penalty of perjury, would be accepted for only limited purposes, including " [t]o establish employment in a uranium mine" , and " [t]o substantiate the claimant's uranium mining employment history for purposes of determining working level months of radiation exposure" . 28 C.F.R. § 79.4(c)(3)-(4).

B. Procedural and Factual History

On May 28, 2008, Plaintiff filed pro se his first of two RECA claims requesting benefits as a former uranium miner. (Admin. Record (" R." ) (ECF No. 11) at 299-322.) This first claim was denied by the Assistant Director on December 18, 2008. (R. at 185-87.) Plaintiff appealed the denial, which was affirmed by the Appeals Officer on May 21, 2009. (R. at 172-81.)

In 2010, with the assistance of an attorney, Plaintiff re-filed his claim for RECA benefits, and provided more specific information with respect to his uranium mining employment history. (R. at 125-50.) Plaintiff stated that he had worked for the Kerr-McGee Corporation in New Mexico in two underground uranium mines, Section

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30 and Section 35, from March to December 1963 and from January to May 1965, for a total of 15 months. (R. at 132.) Plaintiff's re-filed claim included an affidavit by Plaintiff (" Plaintiff's Affidavit" ), and another by his aunt, Juanita Espinoza, with whom he lived while working as a uranium miner (" First Affidavit" ). (R. at 151-52.)

The DOJ evaluated Plaintiff's second claim and found that, based on the Social Security Administration (" SSA" ) earnings records for Plaintiff during the applicable time period, Plaintiff had established only 0.2 months of uranium mining employment, from which it was estimated that Plaintiff had been exposed to only 0.3 WLMs of radiation. (R. at 32-34.) After explaining this in a deficiency letter dated November 23, 2010,[2] the DOJ invited Plaintiff to submit additional documentation to establish the qualifying level of at least 40 WLMs, ...

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