                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                            May 2, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
CLAY SHEFF,

      Plaintiff - Appellant,

v.                                                          No. 17-2153
                                               (D.C. No. 1:17-CV-00018-WPL-SCY)
UNITED STATES DEPARTMENT OF                                  (D.N.M.)
JUSTICE - CIVIL DIVISION, Radiation
Exposure Compensation Program,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, HOLMES, and EID, Circuit Judges.
                  _________________________________

      Clay Sheff appeals the district court’s dismissal of his claim for benefits under

the Radiation Exposure Compensation Act (“RECA”). Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

                                           I

      Congress enacted RECA in 1990 to establish an administrative compensation

system for individuals affected by above-ground nuclear testing and uranium industry

employment. Radiation Exposure Compensation Act of 1990, Pub. L. No. 101-426,

§ 2, 104 Stat. 920. Under RECA, individuals diagnosed with certain diseases are

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
eligible for lump-sum payments if they were physically present in specified areas at

particular times, employed in the uranium industry, or participated in on-site testing.

See RECA §§ 4-5.1 The Act directs the Attorney General to “establish procedures

whereby individuals may submit claims for payments” and states that the Attorney

General “may issue such regulations as are necessary to carry out this Act.” RECA

§ 6(a), (j).

       The Attorney General has designated the Radiation Exposure Compensation

Program (“RECP”), part of the Department of Justice (“DOJ”) Civil Division, to

administer RECA. 28 C.F.R. § 79.2(n). Claims are initially decided by the Assistant

Director of RECP, with an intra-agency appeal to an Appeals Officer available.

§§ 79.2(n), 79.3. An individual whose claim for compensation is denied may file suit

in district court. RECA § 6(l).

       Sheff submitted a “downwinder claim” under § 4(a)(2) of RECA, which

provides for compensation to

       [a]ny individual who . . . 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 . . . .

RECA § 4(a)(2). Sheff has been diagnosed with cancer of the pharynx, one of the

statutorily specified diseases. RECA § 4(b)(2). He was born in Coconino County,

Arizona, which is an affected area under RECA. RECA § 4(b)(1)(C). However,




       1
           RECA is codified in a note to 42 U.S.C. § 2210.
                                             2
Sheff was born after the end of the statutory exposure period. He bases his claim on

his presence in Coconino County while in utero during the exposure period.

      Concluding that the plain language of RECA did not provide compensation for

in utero exposure, the Assistant Director of RECP denied Sheff’s claim. The Appeals

Officer affirmed. Sheff then filed suit in federal district court. The district court

granted DOJ’s motion to dismiss, holding that DOJ’s interpretation was permissible.

Sheff timely appealed.

                                            II

      We review a district court’s dismissal under Fed. R. Civ. P. 12(b)(6) de novo.

Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1149 (10th Cir.

2001). RECA provides that district courts “review the denial [of benefits] 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). This is the same standard of review set forth in the Administrative Procedure

Act. 5 U.S.C. § 706(2)(A).

      In reviewing an agency’s interpretation of a statute that it administers, we

apply the two-part test set forth in Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842 (1984). First, “[i]f 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

                                            3
the statute.” Id. at 843. An agency’s construction is permissible if it falls “within the

bounds of reasonable interpretation.” Your Home Visiting Nurse Servs., Inc. v.

Shalala, 525 U.S. 449, 453 (1999).

       At the first step, we “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). “We may consult a dictionary to determine the plain meaning of a

term. We also take into account the broader context of the statute as a whole when

ascertaining the meaning of a particular provision.” Conrad v. Phone Directories

Co., 585 F.3d 1376, 1381 (10th Cir. 2009) (quotation and citation omitted).

       We conclude that the government advances a better interpretation of the

statutory terms. The phrase “individual who was physically present” as used in

§ 4(a)(2) would not, in ordinary usage, apply to in utero exposure. Moreover, the

Dictionary Act, which provides the meaning of common words “unless the context

indicates otherwise,” provides that the term “individual” includes “every infant

member of the species homo sapiens who is born alive at any stage of development.”

1 U.S.C. §§ 1, 8(a). This is strong evidence that RECA does not apply prior to birth.

As Sheff notes, that section further states it is not intended 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.’” 1 U.S.C. § 8(c). But the

Dictionary Act nevertheless suggests that the statutory term “individual” applies only

after birth.



                                            4
       DOJ also identifies other statutes in which Congress expressly included in

utero benefits. The National Childhood Vaccine Injury Act, which also provides

compensation and is administered by DOJ, states 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.” 42 U.S.C.

§ 300aa-11. And the Unborn Victims of Violence Act of 2004 applies to “a child

who is in utero.” 18 U.S.C. § 1841(a)(1). Had Congress intended to include in utero

exposure in RECA, it could have done so explicitly.

       Sheff’s primary argument against DOJ’s interpretation is that RECA was

intended to be construed broadly. In 2000, the statute was amended to state: “All

reasonable doubt with regard to whether a claim meets the requirements of this Act

shall be resolved in favor of the claimant.” RECA § 6(b)(1); RECA Amendments of

2000, Pub. L. No. 106-245, § 3(d)(2), 114 Stat. 501, 506. But the reasonable doubt

standard typically applies to facts. See Espinoza v. U.S. Dep’t of Justice, 20 F. Supp.

3d 1094, 1100 (D. Colo. 2013) (“[T]he 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.”). Congress generally uses different language

when indicating that a statute should be construed in favor of certain parties. See,

e.g., Tribal General Welfare Exclusion Act of 2014, Pub. L. No. 113-168, § 2(c), 128

Stat. 1883, 1884 (“Ambiguities in section 139E of such Code . . . shall be resolved in

                                             5
favor of Indian tribal governments.”); 15 U.S.C. § 375 (note) (“Any ambiguity

between the language of this section or its application and any other provision of this

Act shall be resolved in favor of this section”).

      To the extent the statutory language is ambiguous, we would be compelled to

uphold DOJ’s interpretation because it is, at the very least, reasonable. Your Home

Visiting Nurse Servs., Inc., 525 U.S. at 453. We agree with the district court that

DOJ’s reading cannot be deemed “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” RECA § 6(l).

                                           III

      AFFIRMED.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




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