United States District Court, D. New Mexico
ORDER GRANTING MOTION TO DISMISS
William P. Lynch United States Magistrate Judge.
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.)
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.
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.
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.
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
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 §
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 . . . .
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 . . .
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