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Sheff v. United States Department of Justice

United States District Court, D. New Mexico

July 17, 2017

CLAY SHEFF, Petitioner,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Division, Radiation Exposure Compensation Program, Respondent.

          ORDER GRANTING MOTION TO DISMISS

          William P. Lynch United States Magistrate Judge.

         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 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 . . .

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 ...


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