Sheff v. United States Department of Justice

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

D.N.M.April 3, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO ___________________________________ : CLAY SHEFF, : : Petitioner, : : v. : CASE NO. 1:17-cv-00018 WPL/SCY : UNITED STATES DEPARTMENT : OF JUSTICE, Civil Division, Radiation : Exposure Compensation Program : : Respondent. : ___________________________________ : RESPONDENT’S MOTION TO DISMISS Pursuant to Federal Rule of Civil Procedure 12(b)(6), Respondent hereby moves to dismiss Petitioner’s Complaint (ECF No. 1) for the reasons set forth in the accompanying memorandum. Pursuant to D.N.M.LR-Civ. 7.1(a), Respondent made a good-faith request to Petitioner for his concurrence as to this motion, and Petitioner indicated that he opposes this motion. DATED this 3rd day of April, 2017. Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General United States Department of Justice, Civil Division JOHN R. TYLER Assistant Branch Director Federal Programs Branch Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 1 of 29 2 /s/ Emily B. Nestler EMILY B. NESTLER (D.C. Bar No. 973886) Trial Attorney United States Department of Justice, Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 Tel: (202) 616-8489 Fax: (202) 616-8470 emily.b.nestler@usdoj.gov Counsel for Respondent Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 2 of 29 i Table of Contents I. INTRODUCTION ................................................................................................................... 1 II. STATUTORY BACKGROUND ............................................................................................ 2 III. ADMINISTRATIVE BACKGROUND .................................................................................. 6 IV. LEGAL STANDARD ............................................................................................................. 8 V. ARGUMENT .......................................................................................................................... 9 Congress Has Made Clear its Intent that Time Spent In Utero Cannot Satisfy RECA’s Physical Presence Requirement ..................................................................................... 11 1. The Text and Context of RECA Do Not Contemplate Coverage for In Utero Exposure ............................................................................................................... 11 2. Congress Confirmed the DOJ’s Interpretation of the Downwinder Provision by Reenacting it, without Adding In Utero Coverage ............................................... 15 The DOJ’s Interpretation is Based on a Permissible Construction of RECA ................ 19 VI. CONCLUSION ..................................................................................................................... 20 Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 3 of 29 ii Table of Authorties Cases Arizona Public Serv. Co. v. EPA, 562 F.3d 1116 (10th Cir. 2009) .............................................................................................. 8, 9 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................................................... 8 Barnhart v. Walton, 535 U.S. 212 (2002) .............................................................................................................. 9, 19 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................................... 8 Bixler v. Foster, 596 F.3d 751 (10th Cir. 2010) .................................................................................................... 8 Chem. Mfrs. Ass’n v. Nat. Res. Def. Council, Inc., 470 U.S. 116 (1985) .................................................................................................................... 9 Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984) .......................................................................................................... 2, 9, 19 Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986) .................................................................................................................. 15 Curtis v. Peters, 107 F. Supp. 2d 1 (D.D.C. 2000) .............................................................................................. 10 Davis v. United States, 495 U.S. 472 (1990) .................................................................................................................. 10 Envtl. Def. v. Duke Energy Corp., 549 U.S. 561 (2007) .................................................................................................................. 14 Espinoza v. United States Dep’t of Justice, 20 F. Supp. 3d 1094 (D. Colo. 2013) ........................................................................................ 10 Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009) .................................................................................................................. 18 Hackwell v. United States, 491 F.3d 1229 (10th Cir. 2007) ...................................................................................... 2, 11, 15 J.H. Rutter Rex Mfg. Co. v. United States, 706 F.2d 702 (5th Cir. 1983) .................................................................................................... 17 Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 4 of 29 iii Kay v. FCC, 443 F.2d 636 (D.C. Cir. 1970) .................................................................................................. 17 Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44 (2011) .................................................................................................................... 19 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983) .................................................................................................................... 15 Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) .................................................................................................................. 10 Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 764 F.3d 1199 (10th Cir. 2014) .......................................................................................... 11, 12 NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) .................................................................................................................. 15 Oxendine v. Kaplan, 241 F.3d 1272 (10th Cir. 2001) .................................................................................................. 2 Pauley v. BethEnergy Mines, Inc., 501 U.S. 680 (1991) .................................................................................................................... 9 Pub. Citizen, Inc. v. FAA, 988 F.2d 186 (D.C. Cir. 1993) .................................................................................................. 18 Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2012) .................................................................................................. 10 Ron Peterson Firearms, LLC v. Jones, 760 F.3d 1147 (10th Cir. 2014) .................................................................................................. 9 Sedgwick v. U.S. Dep’t of Justice, No. CV-11-8073-PCT-FJM, 2011 WL 5828217 (D.Ariz. Nov. 18, 2011) ................................ 2 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994) .................................................................................................................. 14 United States v. Colahan, 635 F.2d 564 (6th Cir. 1980) .................................................................................................... 17 United States v. Montgomery, 635 F.3d 1074 (8th Cir. 2011) .................................................................................................. 12 United States v. Philip Morris, Inc., 116 F. Supp. 2d 131 (D.D.C. 2000) .......................................................................................... 10 Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 5 of 29 iv United States v. Rutherford, 442 U.S. 544 (1979) .................................................................................................................. 17 Your Home Visiting Nurse Servs., Inc. v. Shalala, 525 U.S. 449 (1999) .................................................................................................................. 10 Statutes 1 U.S.C. § 1 ................................................................................................................................... 12 1 U.S.C. § 8 ............................................................................................................................. 12, 13 The Vaccine Act, 42 U.S.C. 300aa-11 ............................................................................................................. 15, 19 Radiation Exposure Compensation Act (RECA), 42 U.S.C. § 2210 note (2012) ............................................................................................ passim 5 U.S.C. § 706 ................................................................................................................................. 8 Pub. L. No. 101-426, 104. Stat. 920 (1990) .................................................................................... 2 Radiation Exposure Compensation Act Amendments of 2000, Pub. L. No. 106-245, 114 Stat. 501 ...................................................................................... 5, 16 The 2002 Supplemental Appropriations Act for Further Recovery From and Response to Terrorist Attacks on the United States, Pub. L. No. 107-206, 116 Stat. 820 (2002) ............................................................................... 16 21st Century Department of Justice Appropriations Authorizations Act, Pub. L. No. 107-273, 116 Stat. 1758 (2002) ............................................................................... 5 21st Century Cures Act, Pub. L. No. 114-255, 130 Stat. 1033 (2016) ............................................................................. 15 Regulations 28 C.F.R. §§ 79.20, et seq. .................................................................................................... 4, 6, 14 Other Authorities 114 Cong. Rec. S6143 (daily ed. July 29, 2015) .......................................................................... 17 145 Cong. Rec. 30946 (1999)..........................................................................................................3 151 Cong Rec. S. 454 (daily ed. Apr. 28, 2005) ........................................................................... 17 151 Cong. Rec. S13775 (daily ed. Dec. 16, 2005) ........................................................................ 17 Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 6 of 29 v 151 Cong. Rec. S13776-S13777 (daily ed. Dec. 16, 2005)...........................................................18 155 Cong. Rec. E772-E723 (daily ed. Mar. 19, 2009)..................................................................18 H.R. Rep. 106-697 (2000)..............................................................................................................16 H.R. Rep. No. 107-480 (2002).......................................................................................................16 Individual, BLACK’S LAW DICTIONARY (10th Ed. 2014).............................................................................12 Individual, MERRIAM-WEBSTER’S NEW COLLEGIATE DICTIONARY (9th ed. 1986)...................................12 Merriam-Webster, Inc., Individual, Merriam-Webster.com (2017), https://www.merriam-webster.com/dictionary/individual.......................................................12 NRC, Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program” (Apr. 27, 2005), https://www.nap.edu/read/11279/chapter/1................................................................16, 17, 18 Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 7 of 29 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO ___________________________________ : CLAY SHEFF, : : Petitioner, : : v. : CASE NO. 1:17-cv-00018 WPL/SCY : UNITED STATES DEPARTMENT : OF JUSTICE, Civil Division, Radiation : Exposure Compensation Program : : Respondent. : ___________________________________ : RESPONDENT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS I. INTRODUCTION Petitioner Clay Sheff (“Petitioner”) challenges the Department of Justice’s (“DOJ”) denial of his claim for payment under the “downwinder” provision of the Radiation Exposure Compensation Act (“RECA” or the “Act”), 42 U.S.C. § 2210 note (2012). That provision allows the DOJ to award a lump sum payment to a claimant who meets specified criteria, including that he is an “individual who was physically present” in a designated (downwind) geographic area when the United States conducted atmospheric nuclear testing. See RECA § 4(a)(2). Petitioner concedes that he was not yet born during the relevant time period (e.g., at the time of the nuclear testing). Nonetheless, Petitioner still insists that he is entitled to RECA compensation, because his mother was physically present while he was in utero. Petitioner’s entire case is predicated on a misapprehension of the physical presence Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 8 of 29 2 requirement in RECA’s downwinder provision. Since RECA was enacted twenty-seven years ago, the DOJ has consistently determined that RECA is limited to claimants who were born natural persons during the designated exposure period, and does not cover those who were in utero at that time. The agency’s well-reasoned interpretation is based on RECA’s text and legislative history. Under the familiar standard set forth in Chevron, U.S.A., Inc. v. NRDC, Inc. 467 U.S. 837 (1984), the DOJ’s interpretation of RECA is entitled to deference. Plaintiff has put forth no basis to upend the agency’s longstanding interpretation of a statute it administers. Accordingly, Petitioner’s case fails as a matter of law, and this action should be dismissed.1 II. STATUTORY BACKGROUND 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. See Radiation Exposure Compensation Act (“RECA”), Pub. L. No. 101- 426, § 2, 104. Stat. 920 (1990) (codified at 42 U.S.C. § 2210 note). In recognition that individuals were “subjected to increased risk of injury and disease to serve the national security 1 RECA provides that “[t]he court shall review the denial on the administrative record and shall hold unlawful and set aside the denial if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” RECA § 6(l). The apparent logic behind using the administrative record for review, however, presupposes that resolution implicates the contents of the administrative record. Defendant’s motion does not depend upon the contents of any documents other than the statute, the DOJ’s regulation, and Petitioner’s Complaint and the attachment thereto. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (“[I]n deciding a motion to dismiss pursuant to Rule 12(b)(6), a court may look both to the complaint itself and to any documents attached as exhibits to the complaint.”). Thus, resolving the dispositive legal issue here does not require the administrative record. Compare Hackwell v. United States, 491 F.3d 1229, 1233 (10th Cir. 2007) (reviewing on motion to dismiss plaintiff’s challenge to DOJ’s regulation interpreting RECA’s attorney-fee limitation), with Sedgwick v. U.S. Dep’t of Justice, No. CV-11-8073-PCT-FJM, 2011 WL 5828217, at *1 (D. Ariz. Nov. 18, 2011) (reviewing on the administrative record plaintiff’s challenge to DOJ’s determination as to the sufficiency of the evidence). Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 9 of 29 3 interests of the United States,” the Act provides for partial restitution to some individuals who were exposed to that increased risk, and who later developed serious illness. RECA § 2(a)(5). RECA was intended to serve as an expeditious, low-cost alternative to litigation. See 145 Cong. Rec. 30946 (1999) (“RECA was intended to provide fair and swift compensation . . . .”). Thus, the Act does not require claimants to establish that actual radiation exposure caused their illness, nor does it purport to cover every person who may have been exposed to radiation as a result of the United States’ nuclear testing and/or uranium industry employment. Instead, Congress established a system for awarding lump-sum compensation to those 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. § 5; and (3) participation at atmospheric nuclear testing sites (“onsite participant” claims), id. § 4(a)(2)(C). RECA provides various eligibility criteria as to each of these three categories of claims.2 In this case, Petitioner seeks compensation based solely on the downwinder provision of RECA, as set forth in Section 4(a)(2) of the Act. In relevant part, Section 4(a)(2) of RECA defines the eligibility criteria for downwinder claims as follows: Any individual who – (A) was physically present in an affected area for a period of at least 2 years during the period beginning on January 21, 1951, and ending on October 31, 1958; [or] 2 The RECA eligibility criteria for uranium miners are the only statutory provisions that contemplate an estimate of actual radiation exposure. Specifically, a uranium miner may demonstrate exposure to 40 or more working level months of radiation during employment in a uranium mine to establish eligibility. RECA § 5(a)(1)(A)(ii)(I). The provisions of RECA pertaining to claims by downwinders, onsite participants, and other uranium workers, including uranium millers and uranium ore transporters, do not require a similar dose reconstruction. Instead, a claimant under these provisions is eligible for compensation if the statute’s bright-line criteria are satisfied. Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 10 of 29 4 (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, shall receive $50,000 . . . . Id. § 4(a)(2) (the “downwinder provision”). DOJ also has promulgated regulations (the “downwinder regulations”) that “describe the criteria for eligibility for compensation” to downwinders, in accordance with Congress’s direction that the Attorney General issue “such regulations as are necessary to carry out RECA.” RECA § 6(j); see 28 C.F.R. §§ 79.20, et seq. (the “downwinder regulations”). Among other things, the downwinder regulations provide: To establish eligibility for compensation under this subpart, a claimant or eligible surviving beneficiary must establish each of the following: (a) (1) That the claimant was physically present at any place within the affected area for a period of at least two years (24 consecutive or cumulative months) during the period beginning on January 21, 1951, and ending on October 31, 1958; or (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 . . . . Id. § 79.22. In other words, the regulations reinforce that to establish eligibility for downwinder compensation, a claimant must show that he or she: (1) meets RECA’s “physical presence” requirement; and (2) meets RECA’s “medical eligibility” criteria. As to whether RECA’s “physical presence” requirement encompasses persons who were in utero during the exposure period, the regulations do not directly address that issue. However, the DOJ’s interpretation of Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 11 of 29 5 RECA nonetheless has been consistent and clear on that point. Since RECA was enacted in 1990, the DOJ has repeatedly denied claims on the basis that time spent in utero is not included for purposes of determining eligibility under Section 4 of the Act. See Compl., Ex. B at 3-4 (ECF No. 1-3).3 Congress amended RECA in 2000, broadening the scope of coverage in several ways. See Radiation Exposure Compensation Act Amendments of 2000, Pub. L. No. 106-245, 114 Stat. 501 (“RECA 2000 Amendments”) (codified at 42 U.S.C. § 2210 note).4 Some changes included providing compensation to new claimant populations (i.e., “uranium millworkers” and “uranium ore transporters”), identifying additional compensable diseases, establishing lower radiation exposure thresholds for uranium miners, adding additional covered geographic regions to the downwinder provisions, and removing certain disease restrictions. See id. However, Congress did not expand the scope of coverage for downwinders in any other respects, and the language at issue in this case – that is, Section 4(a)(2)(B) – was left unchanged. On November 2, 2002, legislation was enacted to refine certain technical aspects of RECA. See 21st Century Department of Justice Appropriations Authorizations Act, Pub. L. No. 107-273, 116 Stat. 1758 (2002). *** 3 While there is not a reported district court decision directly addressing this issue, the RECP has issued and affirmed numerous past decisions denying ‘downwinder’ claims based on in utero exposures. Id. at 4 n.2. As described in the RECA Appeal Memorandum attached to the Complaint, and discussed further at Part IV.A.2 infra, this longstanding interpretation of RECA, which is consistent with Congressional intent, also has been confirmed by a scientific report to Congress. 4 All references to “RECA” in this memorandum refer to the statute as amended, unless otherwise indicated. Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 12 of 29 6 Congress vested broad authority in the Attorney General to “establish procedures whereby individuals may submit claims for payments under [RECA]” and to “determine whether each claim filed under this Act meets the requirements of this Act.” RECA §§ 6(a) & (b). The Attorney General established such procedures. RECA is administered by the Radiation Exposure Compensation Program (“RECP”), a “component of the Constitutional and Specialized Torts Litigation Section of the Torts Branch of the Civil Division of the United States Department of Justice . . . .” 28 C.F.R. § 79.2(n) (2016). RECP’s Assistant Director reviews the claim and its supporting documentation, and renders a decision on eligibility for compensation. Id. § 79.72(a). If dissatisfied with the decision rendered, the claimant may appeal that decision to the designated Appeals Officer. Id. § 79.73. The Appeals Officer’s decision is the final action of the DOJ. III. ADMINISTRATIVE BACKGROUND On September 4, 2015, Petitioner applied to the RECP for an award under RECA’s downwinder provision, seeking a compensation payment of $50,000. See Compl. ¶¶ 4, 8. Petitioner claimed that “he contracted primary cancer of the pharynx following his exposure to radiation while physically present in an affected area downwind from the atmospheric nuclear tests conditioned [sic] by the United States government.” Id. ¶ 8. Specifically, Petitioner claimed that he was “present in utero in the County of Coconino, Arizona . . . for the entire period beginning on June 30, 1962 and ending on July 31, 1962 . . .” Id. ¶ 14.5 In other words, 5 For purposes of this motion only, the period “beginning on June 30, 1962, and ending on July 31, 1962” is hereafter referred to as the “exposure period.” Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 13 of 29 7 Petitioner claims that he was in utero throughout the entire exposure period for which he seeks RECA compensation.6 On, July 8, 2016, the Assistant Director determined that Petitioner does not meet the criteria for compensation under the Act. Compl., Ex. A (ECF No. 1-2). Although Petitioner had “provided evidence establishing that he was diagnosed with primary cancer of the pharynx, a covered disease under Section 4 of the Act,” the Assistant Director found that “the evidence does not establish that Mr. Sheff was physically present in the affected area for the period of time required under Section 4 of the Act.” Id. at 2. While the evidence confirmed that Petitioner’s mother was physically present in the affected area during the exposure period, it also indicates that Petitioner himself “was born after [the] exposure period concluded on July 31, 1962.” Id. at 2. Thus, any “finding that Mr. Sheff fulfills the Act’s exposure eligibility criteria would have to be premised on his exposure in utero.” Id. Because time spent “in utero does not satisfy the exposure eligibility criteria of the Act,” the Assistant Director sent Plaintiff a Notice of Statutory Deficiency on September 15, 2015 (the “Notice”). See id. at 5. In response to the Notice, Petitioner did not dispute that he was in utero during the relevant time period. Id. at 6. Rather, Petitioner argued that “an unborn child” should be considered an “individual” who was “physically present” under RECA. Id. at 6-7. The Assistant Director determined that Petitioner’s interpretation was incorrect as a matter of law because “Congress has spoken to the precise question at issue,” specifically that time in utero does not satisfy the exposure eligibility criteria of the Act, id. at 3, and, because even were the statutory language ambiguous, the agency’s longstanding interpretation to that effect is entitled to 6 Petitioner does not include his date of birth in the Complaint, and has redacted his date of birth from the attachments thereto. Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 14 of 29 8 deference. See id. at 4. Accordingly, the Assistant Director issued a decision on July 8, 2016, denying Petitioner’s claim because “the evidence does not establish that Mr. Sheff was physically present in an affected area for the period of time required under Section 4 of the Act.” Id. at 8. On August 31, 2016, Petitioner filed an administrative appeal, challenging the Assistant Director’s determination that in utero exposure does not satisfy the Act’s physical presence requirement. On November 14, 2016, the Appeals Officer affirmed the decision, adopting the same reasoning as the Assistant Director, and further noting that “the RECP’s longstanding interpretation of the statutory language lends additional support to the Assistant Director’s ultimate conclusion in this case.” Compl. Ex. B at 5 (ECF 1-3). On January 9, 2017, Petitioner filed the instant lawsuit, once again urging his broad construction of RECA’s downwinder provision that time spent in utero satisfies RECA’s physical presence requirement. IV. LEGAL STANDARD The Court should dismiss this action because Petitioner fails to state a claim upon which relief can be granted. As the Supreme Court explained, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although the court must accept as true all factual allegations in the complaint, that tenet is “inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.; see also Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010) (same). Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 15 of 29 9 V. ARGUMENT Petitioner contends that “DOJ’s actions in denying his claim for downwinder benefits was arbitrary, capricious, an abuse of discretion, or not in accordance with law . . . .” Compl. ¶ 25; see Arizona Public Serv. Co. v. EPA, 562 F.3d 1116, 1122 (10th Cir. 2009) (explaining that under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, a Court should aside agency action only when it is “procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.”). Petitioner does not, and could not, dispute the DOJ’s general authority to interpret RECA and to “determine whether each claim filed under [the] Act meets the requirements of [the] Act.” RECA § 6(b). Rather, Petitioner challenges only a narrow aspect of the DOJ’s construction of RECA, which resulted in the denial of his claims in his underlying administrative proceedings. Specifically, Petitioner disputes the DOJ’s interpretation of RECA’s physical presence requirement to exclude time spent in utero. When reviewing a federal agency’s construction of a statute that it administers, the court must apply the standard set forth in Chevron, 467 U.S. at 837. See Arizona Public Serv. Co., 562 F.3d at 1123. Under Chevron, 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). Chevron requires a two-step inquiry. First, the Court must determine whether Congress has directly spoken to the precise question at issue, and “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.” Chevron, 467 U.S. at 842-43. Second, “if ‘the statute is silent or ambiguous with respect to the specific issue,’” the Court must “uphold the agency’s interpretation if it ‘is based on a permissible construction of the statute.’” Ron Peterson Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 16 of 29 10 Firearms, LLC v. Jones, 760 F.3d 1147, 11545 (10th Cir. 2014) (quoting Chevron, 467 U.S. at 843). To meet this deferential test, the DOJ’s reading need not be the “only permissible” one, Chem. Mfrs. Ass’n v. Nat. Res. Def. Council, Inc., 470 U.S. 116, 125 (1985), or even “the best or most natural one by grammatical or other standards.” Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702 (1991). Rather, the DOJ’s construction need only fall “within the bounds of reasonable interpretation.” Your Home Visiting Nurse Servs., Inc. v. Shalala, 525 U.S. 449, 453 (1999). 7 If the DOJ’s “construction is reasonable, Chevron requires that [the Court] accept this construction, ‘even if the agency’s reading differs from what the court believes is the best statutory interpretation.’” Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir. 2012) (quoting Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005)). Moreover, an agency’s “interpretations and practices” should be given “considerable weight” when, as is the case here, “they involve the contemporaneous construction of a statute and where they have been in long use.” United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 140 (D.D.C. 2000) (quoting Davis v. United States, 495 U.S. 472, 484 (1990)); see also Curtis v. Peters, 107 F. Supp. 2d 1, 6 (D.D.C. 2000) (“[W]hen the agency’s interpretation of a statute is ‘longstanding and consistent,’ the Court should defer to the agency’s interpretation.”). The DOJ’s interpretation of RECA meets this deferential standard. First, it is clear that Congress did not intend to include time spent in utero when it required that an “individual” be 7 Applicability of the Chevron standard is not affected by RECA’s provision that “[a]ll reasonable doubt with regard to whether a claim meets the requirements of this Act shall be resolved in favor of the claimant.” RECA Section 6(b)(1). As another court has explained, that “language merely suggests that all facts subject to reasonable doubt must be viewed in the light most favorable to the claimant; that is, if there is a fact material to eligibility that is reasonably in doubt, such fact must be interpreted in support of the claim.” Espinoza v. United States Dep’t of Justice, 20 F. Supp. 3d 1094, 1100 (D. Colo. 2013) (emphases added). But, that provision does not allow Petitioner to change the law as to what is required to establish a RECA claim. Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 17 of 29 11 “physically present” in an affected area under RECA. But even if the statute were ambiguous, the DOJ’s determination, that time spent in utero does not satisfy the exposure eligibility criteria of RECA, is both permissible and reasonable. Accordingly, the agency’s decision is valid and must be upheld. Congress Has Made Clear its Intent that Time Spent In Utero Cannot Satisfy RECA’s Physical Presence Requirement Congress clearly intended RECA’s physical presence requirement to encompass only claimants who were born natural persons throughout the exposure period, not those who were in utero at that time. RECA’s downwinder provision only covers an “individual” who was “physically present” during the exposure period. RECA § 4(a)(2). Since RECA itself does not expressly define those terms, the Court must discern Congress’s intent by “employ[ing] traditional tools of statutory construction, includ[ing] examination of the statute’s text, structure, purpose, history, and relationship to other statutes.” Hackwell, 491 F.3d at 1233. An examination into these factors shows that Congress unambiguously intended to limit compensation under RECA’s downwinder provision to claimants who were natural born persons throughout the designated exposure period, not to those who were in utero at that time. 1. The Text and Context of RECA Do Not Contemplate Coverage for In Utero Exposure It is clear on the face of RECA that its downwinder provision does not encompass in utero exposure. RECA’s text nowhere includes the phrase “in utero,” but rather refers only to an “individual who was physically present” at the time of nuclear testing. Taking into account the ordinary meaning of the language used in RECA, as well as the statutory context, Congress’s intent can be readily discerned. Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 18 of 29 12 When interpreting a statute, the 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, 1227 (10th Cir. 2014). The distinction between 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 words’ common meaning. For example, 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). Likewise, Webster’s Dictionary defines “individual” 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);8 see also generally Nat’l Credit Union Admin. Bd., 764 F.3d at 1227 (“Courts often begin an ordinary meaning analysis by consulting contemporary dictionary definitions.”). These definitions demonstrate that the ordinary meaning of “individual” does not encompass a fetus, but refers only to an entity that is a “distinct,” “singular,” and “separate” person. This reading of the term “individual” is further confirmed by the Dictionary Act, whereby 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 requires that “in determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word[] . . . ‘individual’ [] shall include every infant member of the species homo sapiens who is born 8 The definition of individual has remained the same since the time when RECA was enacted in 1990. Compare Merriam-Webster, Inc., Individual, Merriam-Webster.com (2017), https://www.merriam-webster.com/dictionary/individual Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 19 of 29 13 alive at any stage of development.” 1 U.S.C. § 8(a) (emphasis added).9 Conspicuously absent from the Dictionary Act is any similar requirement, or even suggestion, that a fetus also would be encompassed by the word “individual.” See United States v. Montgomery, 635 F.3d 1074, 1086 (8th Cir. 2011) (“Under a literal reading of the [Dictionary Act], the terms ‘person’ [and individual] do[] not include fetuses.”). Since, petitioner was not “born alive at any stage of development” during the relevant time period here, he was not an “individual” within the meaning of the Dictionary Act.10 This construction of the term “individual” in RECA’s downwinder provision likewise is the only interpretation that is consistent with the other parts of the statute. Both RECA’s “onsite participation” provision and its “uranium worker” provision clearly contemplate that the word “individual” refers to born natural persons. RECA provides for compensation to an “individual” who “participated onsite” in an atmospheric nuclear test. RECA § 4(a)(2)(C). And, the Act provides compensation for an “individual” who was “employed in a uranium mine or uranium mill,” or “employed in the transport of uranium ore.” Id. § 5(a)(1)(A)(i). The only practical understanding of the word “individual” in those parallel provisions is that it refers to natural 9 The statute further states that an infant is “born alive” after complete expulsion or extraction from his or her mother . . . [and] who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles . . . .” Id. § 8(b). 10 Plaintiff points to a clarifying provision in the Dictionary Act, which states: “[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,’” Compl. ¶ 20B (quoting 1 U.S.C. § 8(c)). That provision has no bearing here. The DOJ is not relying on the Dictionary Act to “deny” or “contract” Petitioner’s legal status or rights. Rather, the point is that RECA does not create any legal rights based on in utero exposure in the first place. Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 20 of 29 14 persons who were already born during the designated exposure period – e.g., those who could “participate” in tests or who could be “employed” at that time. Petitioner does not, and cannot, dispute that RECA’s “onsite participation” and “uranium worker” provisions refer to natural born persons. Rather, he argues that the “downwinder provision” should be treated differently from those other parts of the Act, because “unlike the provisions of the Act covering claims by onsite participants and uranium workers, the provision of the Act covering ‘downwinders’ simply requires physical presence . . .” Compl. ¶ 20C. Petitioner’s argument is without merit. Because the three separate eligibility categories under RECA are designed to encompass three different populations, each has its own distinct criteria. But, to the extent the Act’s distinct provisions also use common language, those common words should be read symmetrically. See Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007) (“[I]dentical words used in different parts of the same act are intended to have the same meaning.”). Just as an “individual” whose pregnant mother worked with uranium would not be eligible for RECA compensation, nor would an “individual” whose pregnant mother was an “onsite participant” in nuclear tests. A symmetrical construction of the word “individual” in the downwinder provision warrants the same conclusion.11 11 In reaching its administrative decision in this case, the DOJ also noted that its interpretation of “individual,” as one who was “physically present” in an exposure zone, is echoed in the Act’s implementing regulations. Compl., Ex. 1 at 4; Id., Ex. 2 at 4-5. Under 28 C.F.R. §§ 79.13(c), 79.23(a), “the Program will presume that an individual who resided or was employed on a full-time basis within the affected area was physically present during the time period of residence or full-time employment.” And, the regulations consistently refer to “physical presence” when discussing the types of evidence and presumptions that can be used to establish the Act’s eligibility criteria. Id. § 79.23(b). Based on these regulations, among other things, the DOJ determined that “time spent in utero simply cannot satisfy the Act’s physical presence criteria.” Compl., Ex. B at 6. Courts “must give substantial deference to an agency’s interpretation of its own regulations,” assigning that interpretation “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994). Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 21 of 29 15 By contrast, where Congress wishes to extend benefits to the in utero stage, it does so expressly. Congress’s recent amendment of the Vaccine Injury Compensation Program (“VICP”) demonstrates this point. On December 13, 2016, the statute governing the VICP was amended to clarify that: “(f)(1) 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), 130 Stat. 1033 (2016), amending 42 U.S.C. 300aa-11 (the “Vaccine Act”). Yet, no similar language has been included in RECA. See Hackwell, 491 F.3d at 1235 (looking “at a statute’s ‘relationship to other statutes’ to determine Congress’s intent.”). 2. Congress Confirmed the DOJ’s Interpretation of the Downwinder Provision by Reenacting it, without Adding In Utero Coverage Congress’s intent to exclude in utero coverage also has been expressed by its decision to leave RECA’s physical presence requirement unchanged since it was enacted twenty-seven years ago. Congress has declined to amend this aspect of RECA, despite the DOJ’s longstanding interpretation that it excludes in utero coverage, and despite broadening the scope of RECA in other respects through the RECA 2000 Amendments. 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); see also Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986) (“It is well established that when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the ‘congressional failure to Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 22 of 29 16 revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is one intended by Congress.’”) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-75 (1974)). Since RECA was enacted in 1990, the DOJ has repeatedly and consistently denied claims on the basis that time spent in utero is not included for purposes of determining eligibility under Section 4 of the Act. See Compl., Ex. B at 3-4. Yet, when Congress Amended RECA in 2000, broadening the scope of the statute’s coverage in several other 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” at all. See RECA 2000 Amendments. Notably, at the time of the RECA 2000 Amendments, Congress expressly considered scientific research that “provided a detailed summary of the current understanding of radiation-induced genetic effects, celegenesis, the effects of radiation on the fetus, and radiation epidemiology and risk modeling.” H.R. Rep. 106- 697, at 4 (2000) (emphasis added). Yet, rather than add any provisions to RECA that would alter the DOJ’s approach to in utero exposure, the RECA 2000 Amendments “attempt[ed] to broaden the covered individuals and diseases” in some ways (i.e., to cover additional types of uranium workers, add additional geographic regions, and removing certain disease restrictions), “while giving the DOJ greater latitude to implement the Program” in other respects. Id. Moreover, in the years since the 2000 RECA Amendments, the in utero issue has further been brought to Congress’s attention. In 2002, in response to a mandate from Congress,12 the National Research Council (“NRC”) Board on Radiation Effects Research (the “NRC Board”) was asked to study scientific evidence related to the health effects of radiation exposure and 12 This directive was contained in the House report to accompany the 2002 Supplemental Appropriations Act for Further Recovery From and Response to Terrorist Attacks on the United States, Pub. L. No. 107-206, 116 Stat. 820 (2002). See H.R. Rep. No. 107-480, at 38 (2002). Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 23 of 29 17 make recommendations to Congress, including, but not limited to, whether the RECA downwinder area should be expanded. On April 27, 2005, the NRC Board submitted its report to Congress. NRC, Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program” (Apr. 27, 2005) (the “NRC Report”), https://www.nap.edu/read/11279/chapter/1. Among other things, the NRC Report provided information to Congress about groups that, despite being at risk of radiation exposure, are not covered by RECA. Id. at 172-205. One such group identified in the NRC report was persons who were in utero during the relevant time period: [T]he length of time spent in an affected area or since the first exposure is determined by date of birth and does not include the period in utero. This discrepancy means that some people are ineligible for RECA compensation because they do not meet the existing “time-since-exposure” criterion even though they were in utero and their pregnant mothers were in the area and at risk for exposure during the testing period. Id. at 203.13 “It has been oft-stated that ‘a consistent administrative interpretation of a statute, shown clearly to have been brought to the attention of Congress and not changed by it, is almost conclusive evidence that the interpretation has congressional approval.’” J.H. Rutter Rex Mfg. Co. v. United States, 706 F.2d 702, 711 (5th Cir. 1983) (quoting Kay v. FCC, 443 F.2d 636, 646- 47 (D.C. Cir. 1970)); see also United States v. Colahan, 635 F.2d 564, 568 (6th Cir. 1980) (citing United States v. Rutherford, 442 U.S. 544, 554, n.10 (1979)). By taking no steps to alter the DOJ’s longstanding position that in utero exposure is not covered by RECA, Congress has made its intentions for the statute clear. 13 The NRC Report also found that there was a wider area of radioactive fallout than previously understood, including several geographic areas that are not covered by RECA. Id. at 150-51. Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 24 of 29 18 There is no doubt that the NRC Report has been brought to the attention of Congress. In the years since the report was submitted to Congress, several Congressmen have relied on the NRC Report as support for bills proposing further amendments to RECA. See, e.g., 114 Cong. Rec. S6143 (daily ed. July 29, 2015) (statement of Sen. McCain) (relying on NAS Report to recommend expanding RECA geographically to cover Mohave County, AZ); 151 Cong. Rec. S. 454 (daily ed. Apr. 28, 2005) (statement of Sen. Burns) (same); 151 Cong. Rec. S13775 (daily ed. Dec. 16, 2005) (statement of Sen. Craig) (same re Idaho and Montana); 155 Cong. Rec. E772-E723 (daily ed. Mar. 19, 2009) (statement of Rep. Bordallo) (same re Guam); 151 Cong. Rec. S13776-S13777 (daily ed. Dec. 16, 2005) (statement of Sen. Burns) (same re Montana). Yet, despite findings in the NRC Report, Congress has not amended RECA to allow compensation based on time spent in utero, nor has it further amended the statute in any other respect. 14 In sum, through RECA, Congress chose to establish a bright-line, administrative claims system within DOJ, based on a set of delineated criteria. Congress did not, and could not, purport to compensate for every possible injury that may have been suffered injury as a result of the government’s nuclear tests – rather, it provided a set of rigid criteria as a proxy.15 And lest there were any doubt about the scope of the statute initially (which there should not be), 14 Even had the issue of in utero exposure not been placed expressly before Congress (which it was), that would not alter the conclusion here. “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re- enacts a statute without change.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40 (2009) (citation and quotation marks omitted); Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 194 (D.C. Cir. 1993). 15 On the other hand, RECA’s no-causation structure also means that the eligibility criteria may be overinclusive in some respects – i.e., because many of the diseases and ailments found in exposed populations also can occur in the absence of radiation. Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 25 of 29 19 Congress’s intent was further affirmed when it was informed that “some people are ineligible for RECA compensation . . . even though they were in utero and their pregnant mothers were in the area and at risk for exposure during the testing period,” NRC Report at 203, but did not change the statute accordingly. While RECA may be underinclusive in some respects – i.e., because a claimant lived outside the statutorily-defined geographic area, or because a claimant was in utero at the time – that is the choice Congress made. The DOJ’s Interpretation is based on a Permissible Construction of RECA Even if the Court determines that RECA is ambiguous on the issue of whether in utero exposure is covered by the Act, the DOJ’s interpretation must be upheld under the second step of the Chevron test. Under Chevron’s second step, the Court must sustain the agency’s interpretation if it is based on a “permissible construction of the [Act].” Chevron, 467 U.S. at 843; see also Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 54 (2011) (noting that under Chevron step two, “we may not disturb an agency rule unless it is arbitrary, capricious, or manifestly contrary to the statute”). Thus, at step two, the 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.” Barnhart, 535 U.S. at 218. The DOJ’s interpretation of RECA clearly meets this deferential standard. First, nothing in RECA requires compensation under the Act for persons whose only alleged radiation occurred while they were in utero. Compare RECA § 4 (making no mention of a person who was in utero at the time of exposure), with the Vaccine Act, 42 U.S.C. §300aa-11 (providing that, for purposes of compensation under the Vaccine Act, “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.”). To the Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 26 of 29 20 contrary, nothing in RECA mentions consideration of in utero exposure at all, much less in the downwinder provision, or with respect to “individuals” who were “physically present” during the designated exposure period. Second, the DOJ’s interpretation is consistent with RECA’s text and history, as described supra in Part IV.A. Notwithstanding whether those factors show that the DOJ’s construction is dictated by Congress’s clear intent (which it is), at a minimum they render the agency’s interpretation reasonable. The DOJ properly determined that RECA is limited to claimants who were born at the time of the designated exposure period, and does not cover those who were in utero. Nothing in the Act or its legislative history provides any basis for displacing the agency’s interpretation. This action should be dismissed. VI. CONCLUSION Accordingly, for all of the foregoing reasons, Respondent’s Motion to Dismiss should be granted and Petitioner’s Complaint should be dismissed with prejudice and without leave to amend. DATED this 3rd day of April, 2017. Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General United States Department of Justice, Civil Division JOHN R. TYLER Assistant Branch Director Federal Programs Branch /s/ Emily B. Nestler EMILY B. NESTLER (D.C. Bar No. 973886) Trial Attorney United States Department of Justice, Civil Division, Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 27 of 29 21 Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 Tel: (202) 616-8489 Fax: (202) 616-8470 emily.b.nestler@usdoj.gov Counsel for Respondent Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 28 of 29 CERTIFICATE OF SERVICE I hereby certify that on April 3, 2017, I electronically filed the foregoing document with the Clerk of the Court, using the CM/ECF system, which will send notification of such filing to the counsel of record in this matter who are registered on the CM/ECF system. Executed on April 3, 2017, in Washington, D.C. /s/ Emily B. Nestler Emily B. Nestler Case 1:17-cv-00018-WPL-SCY Document 13 Filed 04/03/17 Page 29 of 29