[Federal Register Volume 73, Number 206 (Thursday, October 23, 2008)]
[Notices]
[Pages 63196-63198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25230]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

[CIV Docket No. 109]


 Civil Division; Radiation Exposure Compensation Act: Allowance 
for Costs and Expenses; Combination of Work Histories

AGENCY: Civil Division, Department of Justice.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Department of Justice (``the Department'') is publishing 
this Notice to inform the public of two matters related to the 
adjudication of claims filed under the Radiation Exposure Compensation 
Act (``RECA'' or ``the Act''). First, in light of the Tenth Circuit 
Court decision in Hackwell v. United States, 491 F.3d 1229 (10th Cir. 
2007), the Department will no longer enforce its regulation concerning 
attorney's fees whereby attorneys are prohibited from receiving 
reimbursement for expenses and costs above the statutory fee limits 
specified in the Act. The Notice further explains that the Department 
will not limit attorneys from receiving reimbursement for such expenses 
and costs from their clients, even when a claim is unsuccessful. 
Finally, the Department intends to initiate a rulemaking to strike the 
existing regulation at Sec.  79.74(b) and revise the language, 
consistent with the Court's decision and this policy statement.
    Second, the Department has an ongoing policy of combining uranium 
industry work histories, consistent with the plain language of the Act. 
By statute, to be eligible for compensation as a result of exposure to 
radiation due to employment in the uranium production industry, a 
claimant must demonstrate that he or she was, for at least one year, 
employed in a uranium mine, employed in a uranium mill, or employed in 
the transportation of uranium ore or vanadium-uranium ore. This Notice 
articulates the Department's policy that, assuming all other 
eligibility criteria are satisfied, claimants may satisfy this one-year 
statutory requirement by combining different periods of employment in 
uranium mining, uranium milling, and ore transporting.

DATES: This notice is effective on October 23, 2008.

FOR FURTHER INFORMATION CONTACT: Gerard W. Fischer (Assistant 
Director), 202-616-4090 or Dianne S. Spellberg (Senior Counsel), 202-
616-4129, Constitutional and Specialized Tort Litigation Section, Torts 
Branch, Civil Division.

SUPPLEMENTARY INFORMATION:

Background

    On October 5, 1990, Congress passed the Radiation Exposure 
Compensation Act. See also Claims Under the Radiation Exposure 
Compensation Act, 28 CFR 79 (2006). The Act offers an apology and 
monetary compensation to individuals (or their survivors) who have 
contracted certain cancers and other serious diseases following 
exposure to radiation released during above-ground atmospheric nuclear 
weapons tests or following their employment in the uranium production 
industry during specified periods. On July 10, 2000, the RECA 
Amendments of 2000 were enacted, providing expanded coverage to 
individuals who developed one of the compensable diseases in the Act, 
adding two new claimant categories (uranium millers and ore 
transporters), and lowering the amount of attorney's fees from 10% of 
the lump sum compensation award to 2% of the award in connection with 
the filing of an initial claim.
    This unique program was designed as an alternative to litigation in 
that the statutory criteria do not require claimants to establish 
causation. Rather, if the claimant can satisfy the requirements 
outlined in the statute, which include demonstrating that he or she 
contracted a compensable disease after working or residing in a 
designated location for a specific period of time, he or she qualifies 
for compensation. Congress charged the Attorney General with 
responsibility for adjudicating claims under the Act. The Attorney 
General delegated this function to the Constitutional and Specialized 
Tort Litigation Section of the Torts Branch of the Civil Division of 
the United States Department of Justice.

I. Attorney's Fees and Costs

    On July 10, 2000, Congress amended RECA by lowering the permissible 
fee limitation for attorneys from 10% to 2% of the compensation award, 
in

[[Page 63197]]

connection with the filing of an initial claim. Pursuant to the law, 
claimants who were previously denied compensation may re-file their 
claim up to three times. In cases where a claim has been re-filed, 
Congress directed that attorneys may receive 10% of the compensation 
award. Specifically, section 9 of RECA, titled ``Attorney Fees,'' 
provides:
    (a) General Rule. Notwithstanding any contract, the representative 
of an individual may not receive, for services rendered in connection 
with the claim of an individual under this Act, more than that 
percentage specified in subsection (b) of a payment made under this Act 
on such claim.
    (b) Applicable Percentage Limitations. The percentage referred to 
in subsection (a) is--
    (1) 2 percent for the filing of an initial claim; and
    (2) 10 percent with respect to--
    (A) any claim with respect to which a representative has made a 
contract for services before the date of the enactment of the Radiation 
Exposure Compensation Act Amendments of 2000; or
    (B) a resubmission of a denied claim.
    (c) Penalty. Any such representative who violates this section 
shall be fined not more than $5,000.
    Source: 42 U.S.C. 2210 note (2006), Sec. 9 (emphasis added).
    In its implementation of the amendments, the Department determined 
that costs and expenses, which primarily involved obtaining medical 
tests and purchasing and transmitting copies of documents required for 
RECA claims, were included within the meaning of ``services rendered in 
connection with the claim of an individual under this Act.'' 
Accordingly, the Department promulgated regulations consistent with 
this interpretation of the statutory language.
    On March 23, 2004, the Department published a final rulemaking to 
implement the ``2000 Amendments.'' See 28 CFR 79 (2006). The regulation 
at Sec.  79.74(b) states:
    (b) Fees.
    (1) Notwithstanding any contract, the attorney of a claimant or 
beneficiary, along with any assistants or experts retained by the 
attorney on behalf of the claimant or beneficiary, may not receive from 
a claimant or beneficiary any fee for services rendered, including 
costs incurred, in connection with an unsuccessful claim.
    (2) Notwithstanding any contract and except as provided in 
paragraph (b)(3) of this section, the attorney of a claimant or 
beneficiary, along with any assistants or experts retained by the 
attorney on behalf of the claimant or beneficiary, may receive from a 
claimant or beneficiary no more than 2% of the total award for all 
services rendered, including costs incurred, in connection with a 
successful claim.
    (3)(i) If an attorney entered into a contract with the claimant or 
beneficiary for services before July 10, 2000, with respect to a 
particular claim, then that attorney may receive up to 10% of the total 
award for services rendered, including costs incurred, in connection 
with a successful claim.
    (ii) If an attorney resubmits a previously denied claim, then that 
attorney may receive up to 10% of the total award to the claimant or 
beneficiary for services rendered, including costs incurred, in 
connection with that subsequently successful claim. Resubmission of a 
previously denied claim includes only those claims that were previously 
denied and refiled under the Act.
    (4) Any violation of paragraph (b) of this section shall result in 
a fine of not more than $5,000.
    Id. (emphasis added).
    The Department, in adopting a regulation that included costs and 
expenses within the interpretation of the fee limitation for attorneys, 
sought to comply with the congressional intent in amending RECA as a 
whole.

The Hackwell Litigation

    On April 21, 2004, the plaintiff alleged that her co-plaintiff, a 
law firm, had refused to represent her because of the Department's 
regulation, 28 CFR 79.74(b), that limits attorney compensation for 
representation of claimants seeking to file a claim under RECA. The 
plaintiffs challenged the regulation as contrary to the RECA statute, 
an invalid preemption of state law, and a violation of the Fifth and 
Tenth Amendments. The district court dismissed the suit for failure to 
state a claim, holding that the regulation was a ``reasonable 
interpretation'' of the statute and that the Department ``did not 
exceed its statutory authority in implementing Congress's compensation 
limitation.'' Hackwell, et al v. United States, et al., Civil Action 
No. 04-cv-00827-EWN (D. Colo. Sept. 28, 2005).
    On appeal, the Tenth Circuit held that the plain meaning of 
``services rendered'' revealed Congress's unambiguous intent to exclude 
``costs incurred'' from the attorney fee limitation and invalidated 28 
CFR 79.74(b) as ``contrary to the RECA's plain language.'' Hackwell, 
491 F.3d at 1241. The case was remanded to the district court for 
further proceedings. On remand, plaintiffs sought an injunction against 
enforcement of the regulation, which defendants opposed. In its July 
23, 2008 remand decision, the district court granted the injunction and 
directed that attorneys may recover expenses and costs from their 
clients even in regard to claims under the Act that are unsuccessful.

Statement of Policy

    In light of the decision in Hackwell, the Department will not 
enforce its regulatory provision, 28 CFR 79.74(b), prohibiting 
attorneys from receiving reimbursement for expenses and costs from 
their clients in connection with claims filed under the Radiation 
Exposure Compensation Act, in addition to the statutory attorney's fee. 
Moreover, attorneys may collect expenses and costs regardless of 
whether a claim is approved or denied. Finally, the Department intends 
to initiate a rulemaking to strike the existing regulation at 28 CFR 
79.74(b) and revise the language, consistent with the Court's decision 
in Hackwell and this policy statement.

II. Combination of Employment for Uranium Worker Claimants

    The Department has been requested to publish its longstanding 
policy regarding the combination of different types of employment--
mining, milling, and ore transporting--to satisfy the Act's statutory 
one-year duration of employment requirement.
    The Act provides compensation to individuals exposed to radiation 
released during above-ground atmospheric nuclear weapons tests or to 
individuals exposed to radiation as a result of their employment in the 
uranium production industry. With respect to individuals employed in 
the uranium production industry, the Act specifically provides 
compensation for: (1) Individuals either exposed to 40 or more working 
level months of radiation while employed in a uranium mine or employed 
for at least one year in a uranium mine (``miners''); (2) individuals 
employed for at least one year in a uranium mill (``millers''); or (3) 
individuals employed for at least one year in the transport of uranium 
ore or vanadium-uranium ore from such a mine or mill (``ore 
transporters'').
    To be eligible for compensation under the Act as a miner, miller, 
or ore transporter, the claimant must have been employed in that 
position at any time during the period January 1, 1942 to December 31, 
1971. Additionally, the claimant must have been employed as a miner, 
miller, or ore transporter in Colorado, New Mexico, Arizona,

[[Page 63198]]

Wyoming, South Dakota, Washington, Utah, Idaho, North Dakota, Oregon, 
or Texas. Finally, all three categories of uranium workers must have 
been diagnosed with a compensable disease. For all three categories of 
uranium workers (miners, millers, and ore transporters), the Act 
specifies the following six compensable diseases: Primary cancer of the 
lung, fibrosis of the lung, pulmonary fibrosis, cor pulmonale related 
to fibrosis of the lung, silicosis, and pneumoconiosis. In addition to 
those compensable diseases applicable to all three categories of 
uranium workers, the Act specifies the following two additional 
compensable diseases for claimants who were employed as millers and ore 
transporters (but not as miners): Primary renal cancer and chronic 
renal disease including nephritis and kidney tubal tissue injury.

Statement of Policy

    The issue has been raised whether claimants can combine periods of 
employment as a miner, miller, and ore transporter. In order to be 
eligible for compensation, the Act requires claimants to have been 
employed for one year as a miner, miller, or ore transporter. In some 
instances, a claimant may have worked in separate positions as a miner, 
miller, or ore transporter for less than one year, but the claimant's 
total, cumulative period of employment in these positions exceeds one 
year. The question is whether the Act's eligibility criteria may be 
satisfied by such a combination of periods of employment.
    The Department is publishing this Notice to articulate its policy 
that claimants can combine periods of employment as miners, millers, 
and ore transporters to meet the one-year requirement. For all three 
categories of uranium workers (mining, milling, and ore transporting), 
the Act specifies six common diseases: Primary cancer of the lung, 
fibrosis of the lung, pulmonary fibrosis, cor pulmonale related to 
fibrosis of the lung, silicosis, and pneumoconiosis. Therefore, in 
cases involving those six illnesses, the Act's exposure criteria can be 
satisfied by combining periods of employment that include mining, 
milling, and ore transporting. For millers and ore transporters (but 
not miners), the Act specifies two additional compensable diseases: 
Primary renal cancer and chronic renal disease including nephritis and 
kidney tubal tissue injury. In cases involving those two illnesses, the 
Act's exposure criteria can be satisfied by combining periods of 
employment that include only milling and ore transporting.
    This Notice is intended to inform the public of the Department's 
longstanding policy regarding the calculation of the referenced 
employment periods. In addition, the Department will continue to 
announce this policy at outreach events and in communications with 
claimants, counsel, and support groups.

    Dated: October 14, 2008.
Gregory G. Katsas,
Assistant Attorney General, Civil Division.
[FR Doc. E8-25230 Filed 10-22-08; 8:45 am]
BILLING CODE 4410-12-P