Sheff v. United States Department of Justice
Filing
27
ORDER by Magistrate Judge William P. Lynch granting 13 Motion to Dismiss. (mej)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CLAY SHEFF,
Petitioner,
v.
CV 17-0018 WPL/SCY
UNITED STATES DEPARTMENT
OF JUSTICE, Civil Division, Radiation
Exposure Compensation Program,
Respondent.
ORDER GRANTING MOTION TO DISMISS
Clay Sheff has filed a petition for judicial review of the Department of Justice’s (DOJ)
denial of his claim for payment of benefits under the Radiation Exposure Compensation Act
(RECA or the Act), 42 U.S.C. § 2210 note (2012). The parties dispute whether Sheff qualifies
for benefits under the “downwinder” provision of the Act, which allows DOJ to award benefits
to an “individual who was physically present” in a designated downwind geographic area when
the United States conducted atmospheric nuclear testing. RECA § 4(a)(2). Sheff has been
diagnosed with cancer of the pharynx, one of RECA’s specified compensable diseases. DOJ has
moved to dismiss Sheff’s claim on the ground that his in utero presence during the designated
exposure period does not meet the criteria for compensation under the Act. (Doc. 13.)
Sheff raises both procedural and substantive defenses to DOJ’s motion. Sheff first claims
that DOJ’s motion to dismiss is not consistent with the standard of review of agency actions
under the Administrative Procedures Act (APA), 5 U.S.C. § 500 et seq. (2017). He relies upon
Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994), to argue that the
Federal Rules of Appellate Procedure control his appeal, and that summary disposition by
motions to affirm or to dismiss are conceptually incompatible with the nature and purpose of an
appeal. He further claims that the resolution of this case requires me to review the facts in the
administrative record relating to his physical presence in an affected area.
I will address the last issue first. Sheff states in his Response that he was born in the early
part of January 1963, while DOJ admits that Sheff’s mother was present in a downwind area
during the exposure period beginning on June 30, 1962 and ending on July 31, 1962. Thus, there
is no dispute that he was in utero during the exposure period, so there is no need to review the
administrative record on this issue.
Further, although Olenhouse outlined the principles of judicial review of agency action
under the APA, “nothing in Olenhouse (or, for that matter, other controlling case law or the APA
itself) precludes an APA-based complaint from being summarily dismissed pursuant to Federal
Rule of Civil Procedure 12(b). Indeed, Olenhouse is silent with respect to the propriety of
motions to dismiss APA-based claims.” Kane Cty. Utah v. Salazar, 562 F.3d 1077, 1086 (10th
Cir. 2009). “Olenhouse aside, case law firmly establishes that APA-based claims can, if
appropriate, be summarily dismissed.” Id.; see also Hackwell v. United States, 491 F.3d 1229,
1233 (10th Cir. 2007). There is no merit to Sheff’s procedural argument that I must review the
administrative record to decide whether he is entitled to compensation because he was present in
utero during the exposure period.
The parties are in essential agreement as to the statutory and regulatory background for
this case. RECA was enacted on October 15, 1990, to establish an administrative program for
claims relating to the United States’ atmospheric nuclear testing, and claims relating to uranium
industry employment. RECA of 1990, Pub. L. No. 101-426, § 2, 104 Stat. 920. Recognizing that
certain individuals were “subjected to increased risk of injury and disease to serve the national
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security interests of the United States,” the Act provides for partial restitution to individuals who
were exposed to increased health risks and who later developed serious illnesses. Id. at § 2(a)(5);
see generally, Tori Ballif, Note, Political Fallout: Designing a Radiation Exposure
Compensation Scheme, 31 STAN. ENVTL. L. J. 253 (2012); NATIONAL RESEARCH COUNCIL,
ASSESSMENT
OF THE
SCIENTIFIC INFORMATION
FOR THE
RADIATION EXPOSURE SCREENING
AND
EDUCATION PROGRAM (2005), https://www.nap.edu/read/11279. RECA established a system for
awarding lump-sum compensation to persons contracting certain diseases following presumed
exposure relating to: 1) downwind fallout (downwinder claims), RECA § 4(a)(2)(A) & (B); 2)
certain uranium industry employment (uranium worker claims), id. at § 5; and 3) participation at
atmospheric nuclear testing sites (onsite participant claims), id. at § 4(a)(2)(C).
In the context of Sheff’s claim, Section 4(a)(2) of RECA defines the eligibility for
downwinder claims as:
Any individual who (B) was physically present in the affected area for the period
beginning on June 30, 1962, and ending on July 31, 1962;
....
and who submits written medical documentation that he or she, after such
period of physical presence . . . contracted a specified disease . . . .
DOJ issued downwinder regulations to describe the criteria for eligibility for compensation to
downwinders. As pertinent, these regulations require:
(2) That the claimant was physically present at any place within
the affected area for the entire, continuous period beginning on June 30,
1962 and ending on July 31, 1962; and
(b) That after such period of physical presence the claimant contracted one
of the following specified compensable diseases . . .
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28 C.F.R. § 79.22. Neither the statute nor the regulations specifically address whether persons
who were in utero during the exposure period were “physically present.”
When Congress amended RECA in 2000 it broadened the scope of coverage in several
ways. See RECA Amendments of 2000, Pub. L. No. 106-245, 114 Stat. 501. The amendments
provided compensation to new claimant groups (i.e., uranium millworkers and uranium ore
transporters), identified additional compensable diseases, established lower radiation thresholds
for uranium miners, added additional geographic regions to the downwinder provisions, removed
certain disease restrictions, and extended RECA’s sunset provision to year 2022. See id. at § 3;
Ballif, supra, at 279-80. However, Congress did not expand the scope of coverage for
downwinders in any other respect, and § 4(a)(2)(B) was left unchanged. While DOJ promulgated
regulations following enactment of the 2000 Amendments, the issue of downwinder in utero
exposure was not addressed.
In evaluating DOJ’s motion to dismiss, I must accept as true all well-pled factual
allegations in Sheff’s Petition and must view them in the light most favorable to him. Brokers’
Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014). But purely
conclusory allegations are not entitled to be presumed true. Ashcroft v. Iqbal, 556 U.S. 662, 681
(2009). I may take judicial notice of the Radiation Exposure Compensation Program Decision
and Appeal Memorandum attached to the Petition without converting the motion to a motion for
summary judgment. Pace v. Swerdlow, 519 F.3d 1067, 1072-73 (10th Cir. 2008). When
evaluating the motion to dismiss, I may not weigh potential evidence that the parties may present
at trial, but focus on whether Sheff’s Petition is legally sufficient to state a claim for which relief
may be granted. Brokers’ Choice, 757 F.3d at 1135.
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On September 4, 2015, Sheff applied to the Radiation Exposure Compensation Program
for an award of compensation under the downwinder provision. Sheff claimed that he was
diagnosed with cancer of the pharynx, one of RECA’s covered diseases, and that he was in utero
in Coconino County, Arizona, one of the designated areas downwind from atmospheric nuclear
testing conducted by the United States government, during the exposure period. On July 8, 2016,
the Assistant Director of the Program denied Sheff’s claim. Although he found that Sheff had
established that he was diagnosed with one of RECA’s covered diseases, and that his mother was
physically present in an affected area during the exposure period, he concluded that “time spent
in utero does not satisfy the exposure eligibility criteria of the Act.” (Doc. 1 Ex. 2 at 5.) Sheff
filed an administrative appeal on August 31, 2016, challenging this conclusion, but the Appeals
Officer affirmed the denial of compensation on November 14, 2016.
RECA provides that an individual who has been denied compensation under the Act may
seek judicial review of that decision in a United States District Court. RECA § 6(l). The court
shall “set aside the denial if it is arbitrary, capricious, an abuse of discretion or otherwise not in
accordance with law.” Id. Sheff claims that DOJ did not properly interpret RECA when it
concluded that he was not eligible for compensation.
When reviewing an agency’s construction of a statute that it administers, a court first
determines whether Congress has directly spoken to the precise question at issue. Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). “If the intent of Congress
is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Id. at 842-43. Second, “if the statute is silent or
ambiguous with respect to the specific issue, the question for the court is whether the agency’s
answer is based on a permissible construction of the statute.” Id. at 843. In this situation, the
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court must uphold the agency’s interpretation if it “is based on a permissible construction of the
statute.” Id. The agency’s interpretation is entitled to deference unless the text “unambiguously
forbids” that interpretation, or the interpretation “exceeds the bounds of the permissible” for
some other reason. Barnhart v. Walton, 535 U.S. 212, 218 (2002). To meet this standard, DOJ’s
interpretation need not be the only permissible one, or even “the best or most natural one by
grammatical or other standards.” Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702 (1991);
Chem. Mfrs. Ass’n v. Nat. Res. Def. Council, Inc., 470 U.S. 116, 125 (1985). Rather, DOJ’s
interpretation need only fall “within the bounds of reasonable interpretation.” Your Home
Visiting Nurse Servs., Inc. v. Shalala, 525 U.S. 449, 453 (1999). Further, where the agency’s
interpretation of a statute is longstanding and consistent, that interpretation should be given
considerable weight by the court. Davis v. United States, 495 U.S. 472, 484 (1990). But a court
will not defer to an agency’s interpretation that is “arbitrary, capricious, or manifestly contrary to
the statute.” United Keetowah Band of Cherokee Indians of Okla. v. U.S. Dept. of Housing &
Urban Dev., 567 F.3d 1235, 1240 (10th Cir. 2009) (quotation omitted).
DOJ argues that this case can be decided at the first Chevron step, because Congress
clearly intended RECA’s physical presence requirement to encompass only claimants who were
already born during the exposure period. Because RECA does not expressly define the term
“individual who was physically present” during the exposure period, DOJ claims that I may
discern Congress’s intent on this issue by “employing traditional tools of statutory construction,
includ[ing] examination of the statute’s text, structure, purpose, history and relationship to other
statutes.” (Doc. 13 at 18 (quoting Hackwell, 491 F.3d at 1233).)
When interpreting a statute, a court “must give all undefined terms their ordinary
meaning.” Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 764 F.3d 1199,
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1227 (10th Cir. 2014) (alteration and quotation omitted). DOJ asserts that what it means to be “in
utero” and what it means to be an “individual who was physically present” can be plainly
discerned based on the common meaning of the words. DOJ cites several dictionary definitions
in support of its argument that the ordinary meaning of “individual” does not encompass a fetus.
Black’s Law Dictionary defines “individual” to mean “[e]xisting as an indivisible entity,” or
“[o]f, relating to, or involving a single person or thing, as opposed to a group,” Individual,
BLACK’S LAW DICTIONARY (10th Ed. 2014), while Webster’s Dictionary defines it to mean
“inseparable,” “being an individual or existing as an indivisible whole,” or “existing as a distinct
entity: SEPARATE,” Individual, MERRIAM-WEBSTER’S NEW COLLEGIATE DICTIONARY (9th ed.
1986). DOJ also cites the Dictionary Act, in which Congress has provided definitions for a
number of common statutory terms that courts must apply “unless the context indicates
otherwise.” 1 U.S.C. § 1. The Dictionary Act defines “individual” to “include every infant
member of the species homo sapiens who is born alive at any stage of development.” Id. at §
8(a). DOJ also cites a fairly recent case from the Eighth Circuit, which concluded that “[u]nder a
literal reading of the [Dictionary Act], the term ‘person’ [or ‘individual’] does not include
fetuses.” United States v. Montgomery, 635 F.3d 1074, 1086 (8th Cir. 2011).
DOJ further asserts that its interpretation of the term “individual” is the only
interpretation that is consistent with the other parts of the Act. In addition to compensation for
downwind claims, RECA also provides compensation for an “individual” who was employed in
a uranium mine or mill, who transported uranium ore, and who participated onsite in an
atmospheric nuclear test. RECA §§ 5(a)(1)(A)(i), 4(a)(2)(C). According to DOJ, the only
practical understanding of the word “individual” in these provisions is that it refers to natural
persons who were already born during the exposure period – those who could be employed in an
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appropriate category or could participate onsite in atmospheric nuclear tests. DOJ argues that, to
the extent the Act’s distinct provisions use common language, those common words should be
read symmetrically. Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007).
DOJ also argues that where Congress intends to extend benefits to cover the in utero
stage, it does so expressly. DOJ points out that Congress recently amended the statute governing
the Vaccine Injury Compensation Program to clarify that “a woman who received a covered
vaccine while pregnant and any child who was in utero at the time such woman received the
vaccine shall be considered persons to whom the covered vaccine was administered and persons
who received the covered vaccine.” 21ST Century Cures Act, Pub. L. No. 114-255 § 3093(f)(1)
(2016) (amending 42 U.S.C. § 300aa-11). Similarly, in the Unborn Victims of Violence Act of
2004, Congress recognized unborn children as a class of victims not previously protected under
federal law, and then expressly criminalized the killing or injuring of “a child, who is in utero”
during the commission of certain federal offenses. 18 U.S.C. § 1841(a)(1). There is no similar
language in RECA.
DOJ’s final argument in support of its position that this case can be decided at the first
Chevron step is that, since RECA was enacted in 1990, DOJ has repeatedly and consistently
denied downwinder claims on the basis that time spent in utero is not included for purposes of
determining eligibility for compensation under the Act. Yet, when RECA was amended in 2000,
broadening the scope of coverage in several respects, Congress did not add coverage for in utero
exposure, nor did it clarify what it means to be an “individual” who was “physically present.”
According to DOJ, it is well-established that “an agency’s interpretation of a statute may be
confirmed or ratified by subsequent congressional failure to change that interpretation.” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 45 (1983).
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Congress has also failed to address the in utero issue since the 2000 RECA amendments, despite
the fact that the issue has been brought to its attention. See NATIONAL RESEARCH COUNCIL,
supra, at 203. DOJ concludes that its interpretation of the in utero issue has been confirmed or
ratified by the failure of Congress to change that interpretation.
Sheff agrees that this case can be decided under Chevron’s first step. He maintains that
RECA unambiguously covers downwinder in utero physical presence. Sheff argues that he was
an individual when he contracted cancer of the pharynx, one of RECA’s specified compensable
diseases, and he was also an individual who was physically present in utero in an affected area
during the exposure period. According to Sheff, logic supports the notion that radioactive fallout
from atmospheric nuclear tests impacted all who were present in an affected area regardless of
their status of having been born or in utero. Further, Congress specifically directed that all
reasonable doubt with regard to whether a claim meets the requirements of RECA shall be
resolved in favor of the claimant. RECA § 6(b)(1). He notes that the Standard College Dictionary
defines “fetus” as: “The individual unborn organism carried within the womb in the later stages
of its development; especially, the unborn human organism from the end of the second month of
pregnancy until birth.” Fetus, STANDARD COLLEGE DICTIONARY (1963).
Sheff disputes that DOJ’s interpretation of the term “individual” is the only interpretation
consistent with other parts of the Act. He argues that onsite participants and uranium workers
must prove more than physical presence in an affected area to receive compensation, in contrast
to downwinders, who need only prove physical presence in an affected area. He claims that I
should not give much credence to Congress’s inclusion of benefits for a “person” in utero in a
recent amendment to the Vaccine Injury Compensation Program, suggesting instead that I should
look to the relationship between RECA and the Energy Employees Occupational Illness
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Compensation Program Act of 2000, 42 U.S.C. § 7384 et seq., to glean the intent of Congress to
broadly interpret RECA. See Murrietta v. U.S. Dept. of Justice, 217 F. Supp. 3d 1301, 1307-08
(D.N.M. 2016). Finally, he vigorously contests DOJ’s argument that its interpretation of the in
utero issue has been confirmed by actions of Congress.
I decline the parties’ invitation to decide this case at the first Chevron step. While I reject
Sheff’s argument that RECA unambiguously covers in utero exposure, I am not convinced that
the intent of Congress to limit compensation to claimants under RECA to those who were born
natural persons during the designated exposure period is unambiguously expressed. Neither
RECA nor DOJ’s regulations specifically address whether persons like Sheff, who were in utero
during the exposure period, were “physically present.” And the other traditional tools of statutory
construction do not all point in one direction. While DOJ relies in part on the Dictionary Act’s
definition of “individual,” the Dictionary Act also provides that “[n]othing in this section shall be
construed to affirm, deny, expand, or contract any legal status or legal right applicable to any
member of the species homo sapiens at any point prior to being ‘born alive’ as defined in this
section.” 1 U.S.C. § 8(c). Further, I agree with Sheff that DOJ’s interpretation of the in utero
issue has not been confirmed or ratified by the failure of Congress to change that interpretation.
Although DOJ maintains that it has repeatedly and consistently denied downwinder claims on
the basis that time spent in utero is not included for purposes of determining eligibility for
compensation, it has provided no proof in support of this claim. DOJ has not cited a single
reported decision on this issue, or any of its claimed “numerous past decisions denying
‘downwinder’ claims based on in utero exposures.” (Doc. 1 Ex. 3 at 4 n.2.) Without proof that
DOJ interpreted RECA concerning in utero presence, Congress’s failure to act on this issue is
immaterial.
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At step two, if a statute is silent or ambiguous about the precise question at issue, a court
must sustain an agency’s interpretation if it is based on a permissible construction of the statute.
Walton, 535 U.S. at 218. To make this determination, a court must decide 1) whether the statute
unambiguously forbids the agency’s interpretation, and if not, 2) whether the interpretation, for
other reasons, exceeds the bounds of the permissible. Id. Answering the first query is easy:
RECA does not unambiguously forbid DOJ’s interpretation. RECA simply never addresses
whether individuals who were in utero during the exposure period qualify for compensation.
Answering the second query is also fairly easy, because it is clear that DOJ’s
interpretation is based on a permissible construction of the statute. It is consistent with the
statutory language that an “individual who was physically present” may be entitled to
compensation. It finds support in the common meaning of the words “individual” and “fetus.” It
is consistent with other parts of the Act, which provide compensation to an “individual”
employed in specific occupations or who participated onsite in atmospheric nuclear testing. And
DOJ’s interpretation is bolstered by the fact that Congress has explicitly extended benefits to
cover the in utero stage in other statutes. The fact that DOJ could have interpreted RECA
differently on this issue does not mean that DOJ’s interpretation exceeds the bounds of the
permissible.
Because DOJ’s interpretation of the in utero issue is based on a permissible construction
of RECA, I must grant DOJ’s motion to dismiss.
IT IS SO ORDERED.
___________________________________
William P. Lynch
United States Magistrate Judge
A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.
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