Petition for Writ of Certiorari — Amber-Messick v. United States (No. 07-176)
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Supreme Court, U.S.
uP LE D
Vv
07-176AUG 09 2007
No.
K
IN THE
Supreme Court of the United States
JULIE AMBER-MESSICK, ADMINISTRATRIX OF THE
ESTATE OF CHRISTOPHER KANGAS, DECEASED,
PETITIONER
Vv.
UNITED STATES
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
PETITION FOR WRIT OF CERTIORARI
FRANK W. DALY
Counsel of Record
Daly & O Brien, P.C.
110 W. Front Street
P.O. Box 199
Media, PA 19063-0199
(610) 565-7520
Attorneys for Petitioner
CURRY & TAYLOR @ WASH O.C. @ (202) 393-4141 @ USSCINF0.COM
i
QUESTION PRESENTED
Are apprentice firefighters excluded from coverage
under the provisions of the Public Safety Officers Benefit Act
(“PSOBA”) 42 U.S.C.S. §3796 et seq.
li
TABLE OF CONTENTS
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TABLE OF AUTHORITIES
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CASES
Messick v. US, 483 F.3rd 1316 (2007)............cscceccsseseeecseeeess 1]
Messick v. US, 70 Fed. Cl. 319 (2006)...........0..cccscoscsseoscceeees l
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Julie Amber Messick, in her capacity as Administratrix
of the Estate of Christopher Kangas, deceased, respectfully
petitions that a Writ of Certiorari be issued to review the
judgment of the United States Court of Appeals for the Federal
Circuit entered on April 17, 2007, denying benefits and
recognition of the late Christopher Kangas as a “Firefighter”
under the Public Safety Officers Benefits Act (““PSOBA”). A
timely Petition for Rehearing and petition for Rehearing En
Banc was denied on May | 1, 2007 by the US Federal Court of
Appeals for the Federal Circuit.
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Federal Circuit is dated April 17, 2007 and is published at
483 F.3rd 1316 (2007). (App. p. lato 22a). The opinion of the
United States Federal Court of Claims is dated March 27, 2006
and the opinion can be found at 70 Fed. Cl. 319 (2006). (App.
p. 23a to 50a). The denial of the Petition for Rehearing is dated
May 11, 2007. (App. p. 51a to 52a). The final Agency decision
in this maiter is dated April 28, 2005. (App. p. 53a to 63a).
The denial of the claim by Hearing Officer Douglas Dodge is
dated April, 26, 2004. (App. p. 64a to 74a). The initial denial
of the claim by the Bureau of justice Assistance (“BJA”) is
dated September 16, 2002. (App. p. 75a to 78a). All of these
opinions and denials of the claim are found in the Appendix
which is attached hereto.
JURISDICTION
The judgment of the United States Court of Appeals for
the Federal Circuit was entered on April 17, 2007. A Petition
for Rehearing and Petition for Rehearing En Banc was timely
filed, and was denied on May 11, 2007. Pursuant to Supreme
2
Court Rule 13.1, this Petition has been filed within ninety (90)
days of the denial of rehearing.
The jurisdiction of this Court is invoked pursuant to 28
U.S.C. §1254 (1).
RELEVANT PROVISIONS INVOLVED
42 U.S.C. § 3796(c) Interim benefit payment
Whenever the Bureau determines upon showing of need
and prior to final action that the death of a public safety
officer is one with respect to which a benefit will
probably be paid, the Bureau may make an interim
benefit payment not exceeding $3,000 to the individual
entitled to receive a benefit under subsection (a) of this
section.
STATEMENT
Christopher Kangas, age fourteen (14), was an
apprentice firefighter (also called a junior firefighter under PA
Child Labor Laws, 43 PA. C.S. §48.3). Despite his young age,
he was a full Active Member of the Brookhaven Volunteer Fire
Department. He was killed in an accident when he was
responding to an alarm on his bicycle and was struck by a motor
vehicle.
His mother, Julie Amber Messick, the Petitioner herein,
filed a claim under the PSOBA and also sought to recognize his
memory by inscription of her son’s name on the National Fallen
Firefighters Foundation Monument in Emmitsburg, Maryland.
The BJA denied her claim to benefits which also had the effect
of denying his inscription onto the monument as PSOBA
approval is a prerequisite to such listing.
3
The ...on for the denial given by the BJA was that
Christopher, a. ai apprentice firefighter, was not authorized to
actively engage in the suppression of fires because of the
restrictions found in the PA Child Labor Laws.
The PSOBA definition of firefighter states:
“Firefighter: includes an individual serving as an
officially recognized or designated
member of a legally organized fire department . . ."42 U.S.C.
§3796 b (4). Volunteer firefighters, serving as needed and
without compensation, are included. /d., at §3796 b (8)(A) (a
“public safety officer means . . . an individual serving a public
agency in an official capacity, without compensation, as a law
enforcement officer, as a firefighter, as a chaplain, or as a
member of a rescue squad or ambulance crew”).
The PSOBA is administered by the Department of
Justice through its Bureau of Justice Assistance (“BJA”). The
BJA held that Christopher Kangas was not a “firefighter”
because of the restriction placed upon his activities at a fire
scene by the PA Child Labor Laws (Firefighters under age
sixteen (16) are prohibited from entering burning buildings and
from climbing ladders or operating high-pressure hose lines
other than during training).
Petitioner appealed the denial of her claim to the U.S.
Federal Court of Claims. The Court of Federal Claims found
that Kangas was a part of a firefighting team. At the hearing
before the BJA, the Brookhaven Fire Chief, Rob Montella,
testified as follows:
“The junior firefighter is a - - it’s part of a team. They
are .. . just as much a part of being a firefighter as
anybody else out there. They do all the jobs that they
need to do. They help out. The jobs that they do are
4
very important. If they're not there, somebody else has
to do the job. If you don’t have the manpower them jobs
aren't getting done. They're getting done by them other
guys that are doing different jobs that they're allowed to
do. So the junior firefighter is a vital part of the fire
department.”
This testimony was incorporated into the opinions of
both Judge Horn (App. p. 26a) and by Judge Newman in her
dissent. (App. p. 18a).
The United States appealed this reversal of the BJA’s
decision by Judge Horn to the U.S. Court of Appeals for the
Federal Circuit which in a two (2) to one (1) decision reinstated
the BJA’s denial of the claim on the basis that Christopher
Kangas was not a “firefighter” covered by the Act in that he was
not “authorized to actively engage in the suppression of fires.”
(App. p. 13a).
From this decision, the Petitioner files this Writ of
Certiorari.
REASONS FOR GRANTING THE PETITION
1. The Denial of this Claim Would Discourage Future
Recruitment of Firefighters, Which Contravenes the
Statutory Purpose of the PSOBA.
Fourteen (14) year old Christopher Kangas, despite his
apprentice status, was a “firefighter” whose death warranted
both compensation and recognition under the provisions of the
PSOBA. To deny him this status “contravenes the statutory
purposes of the Act which according to the legislative history,
included increasing the morale of fire departments assisting in
recruiting efforts showing appreciation for public service
officers, and alleviating economic and emotional burdens
5
placed upon public servants and their families.” (See Judge
Newman's dissent App. p. 19a). Such denial would also have
the opposite effect of its statutory purposes in that it will have a
chilling effect upon recruitment of “junior firefighters” which
will then have a direct effect on the recruitment of Senior
Firefighters. Getting started at a young age is the key to a
lifetime of commitment to the nation’s fire service.
In answer to Counsel’s question regarding the
percentage of firefighters who started out as “junior firefighters”
before Hearing Officer Dodge, Chief Rob Montella of the
\Brookhaven Volunteer Fire Department stated as follows:
A...”Approximately-I mean in our department alone I
can tell you three quarters of our department started out
as junior firefighters and every line officer in our fire
department was a junior firefighter when they started
from chief to captain to lieutenant to engineers to safety
officers and every single person on there was a junior
firefighter.”
(App. p. 79a).
Obviously getting started as a young age is the key toa
lifetime of commitment to the nation’s fire service. Denying
claims of “junior firefighters” will discourage recruitment.
2. The PSOBA’s definition of “Firefighter” is not
ambiguous.
The majority opinion in the U.S. Court of Appeals for
the Federal Circuit accepted the argument of the United States
that “Chevron deference” should be given to the interpretation
of the BJA that the term “firefighter” in the PSOBA is
ambiguous. Petitioner urges this Court to reject the majority
opinion and agree with the dissent of Judge Newman, that the
term “firefighter” in the Act is not ambiguous.
6
As Judge Newman stated in her dissent:
“An interpretation that excludes apprentice firefighters
who die while serving as apprentices, departs so
markedly from the statutory purpose to negate
deference.” See Whitman v. American Trucking Ass'n,
531 U.S. 457, 485, 121 S. Ct. 903, 149 L. Ed. 2d 1
(2001) (judicial deference is not warranted where an
agency “construe(d) the statute in a way that completely
nullifies textually applicable provisions meant to limit
{the agency’s] discretion”).
(App. p. 20a and 21a).
3.
The PSOBA does not limit benefit eligibility
according to duties performed, nor does the
legislative history of the Act or words of the
regulation.
Judge Horn of the U.S. Federal Court of Claims
included the following in her Opinion:
“The language of the PSOBA clearly does not
limit death benefits eligibility according to duties
performed at the scene of a fire; nor do the legislative
history of the Act or the words of the regulations. None
of these indicate that engaging in front-line activities is
a component of “firefighting” or “suppression of fires.”
In 1975, when the statute was first drafted to include
firefighters, the PSOBA was originally introduced as
House Resolution 365, which defined “eligible
firefighter” as one who was “actually and directly
engaged in fighting a fire [.]” H.R. 365, 94" Cong.
(1975). The Senate version of the bill, however, did not
include this requirement, but described a “fireman” as
“includ[ing] a person serving as an officially recognized
or designated member of a legally organized volunteer
7
fire department [.}” S. 2572, 94 Cong. (1975). Any
language requiring a firefighter to be authorized to
engage directly in the fighting of fires was omitted from
the final version of the Act. (Footnote omitted). In fact,
the Joint Explanatory Statement of the Conference
Committee specifically chose to follow the Senate’s
description of “fireman” and authorized payment “for all
line of duty deaths” and not just those sustained “while
actually and directly engaged in fighting fires or in other
activities determined by the Law Enforcement
Assistance Administration to be potentially dangerous.”
H.R. Rep. No. 94-1501, at 5-6 (1976). The words of
the statute and the regulations are easily understood
without adding duty-specific limitations, which,
contrary to any congressionally expressed intent, would
eliminate some eligible “firefighters” from death
benefits.”
(App. p. 39a and 40a).
Judge Newman also said in her dissent:
“The PSOBA does not limit “firefighter” to exclude all
persons who do not enter burning buildings. Observing
various federal laws with firefighting provisions, the
civil service law as to federal employees is explicit that
a “firefighter” can be an administrator or supervisor who
is not “actively engaged in the suppression of fires”-the
definition adopted by my colleagues. See 5 U.S.C.
section 8331(21). However according to the BJA’s
interpretation, an administrator or supervisor is not a
“firefighter”.”
(App. p. 21a).
8
4. The Majority Opinion in the Appeals Court decision
is flawed in its legal basis by:
A. Citing Legislative History of a version of a
House Bill that was not passed.
The majority opinion in the U.S. Court of Appeals for the
Federal Circuit decision cited the House Judiciary Committee
Report No. 94-1031 that contained a statement that coverage
should extend to firemen who are “actually and directly engaged
in fighting fires.” (H.R. Rep. No. 94-1031, at 4 (1976)) The
court relied upon the language in this Report as a basis for
deciding that the BJA’s interpretation of “firefighter” as one
who 1s “authorized to actively engage in the suppression of
fires” is a “permissible construction of the statute,” and is not
arbitrary and capricious.
This reliance is simply misplaced. The definition of a
firefighter in the original House version of the Act (
Firefighter's Benefit Act of 1975 (H.R. 365) included in its
definition of “eligible firefighters” an individual “...actually and
directly engaged in fighting a fire; or otherwise engaged in
performance of his duty which the activity is determined by the
Administration [LEAA, now BFAj to be potentially dangerous
to the firefighter.” See Cong. Rec. H. 3741, April 30, 1976.
However, the Act as finally passed, deleted the requirement of
“actually and directly engaged in fighting fires” and deleted the
delegation to the LEAA , now BJA, to determine if the activity
was dangerous. Its present definition of a “firefighter”:
“Includes an individual serving as an officially
recognized or designated member of a legally organized
volunteer fire department.”
42 U.S.C. §3696 b (4).
9
Simply put, coverage under the Act as enacted does not
require one to be actively involved in the suppression of fires or
involved in potentially dangerous activities. A significant
number of deaths covered by the Act each year involve firemen
dying in accidents on their way to the firehouse in responding to
an alarm, which is exactly how young Christopher Kangas died.
B. Citing Provisions of the PA. Administrative
Code which have been superceded by the
subsequent passage of the Child Labor Law
statute.
The majority opinion included an impermissible
reference to the provisions of 34 PA Code §1 1.67 (9) (5) which
stated that minors were prohibited “ . . and from riding an
official vehicle to the scene of a fire and participating in any
firefighting activities” as a basis for its conclusion “that BJA's
decision, that Christopher was not “authorized to engage in the
suppression of fires”, was reasonable.
However, the Director of the BJA in his final decision
had already conceded that 34 PA Code §11.67(a)(5) had been
effectively repealed and superceded by the passage of the
provision of the PA Child Labor Law found at 43 PA. Cons.
Stat. §4813(c). (App. p. 63a). Therefore, apprentice firefighters,
like Christopher Kangas, are permitted under PA state law to
ride on official vehicles to the scene of a fire and are not
prohibited from participation in firefighting activities.
Furthermore, even the restrictions of the present PA
Child Labor Law for firefighters under age sixteen (16) do
permit apprentice firefighters to be trained to operate high
pressure hoses and be trained to ascend ladders and other
dangerous activity. Under the BJA’s present interpretation of
the Act, a sixteen (16) years old firefighter trainee and member
of a volunteer fire company would not be covered under the Act
10
if he died while being trained to perform hazardous firefighting
activities. Clearly, this was not the intent or the purpose of the
Act.
5. The Majority Opinion Ignores PA's recognition of
Christopher Kangas as a “Firefighter.”
Pennsylvania has an analogous statute to the Act. It is
known as the PA Emergency Law Enforcement Personnel
Death Benefits Act and is found at 53 P.S. §891 et seq. Both
Acts (State and Federal) state that “this Act shall be broadly
construed to grant benefits to firefighters . . . for deaths related
to the performance of their duties.” 53 P.S. §892.1. As was
stated by Judge Newman in her dissent:
“Under PSOBA regulation 28 C.F.R. §32.5, the BJA
must give “substantial weight to evidence and finding of
fact” presented by state and local agencies.
Accordingly, when PA has recognized Christopher
Kangas as a fallen firefighter under a statute with almost
identical language to the federal statute, the United
States should not take a contrary position without
exceptional good reason. See 28 C.F.R. §32.4 (“[the
BJA] shall resolve any reasonable doubt arising from
the circumstances of the officer’s death . . . in favor of
the payment of the death . . . benefit”); Davis v. United
States, 46 Fed. Cl. 421, 427 (2000). See also Demultiis
v. United States, 48 Fed. Cl. 81 (2000). The PSOBA
must be construed in accord with its legislative intent
and applicable canons of construction “both of which
compel a conclusion that Congress desired this statute
to be applied liberally”), aff'd as modified 291 F.3d
1373 (Fed. Cir. 2002).
(App. p. 20a).
11
6. The Court of Federal Claims was correct that
apprentice firefighters are covered by the PSOBA.
The U.S. Supreme Court is urged to adopt the
conclusions of Judge Horn, who found that apprentice
firefighters are within the statutory purposes and are covered by
the Act:
“In conclusion, Christopher was a recognized apprentice
“firefighter” of the Brookhaven Volunteer Fire
Department. He was authorized to attend to the scene
of a fire, offload equipment, attach non-pressurized
hoses to water sources, administer first aid to victims,
assist in food services, roll hoses after a fire, remove
debris, provide support at hazardous materials scenes
and participate in search and rescue operations.
Christopher engaged in activities involved in the
“suppression of fires.” He was a “firefighter” in the
ordinary sense of the word.” (App. p. 43a).
CONCLUSION
For the foregoing reasons, a Writ of Certiorari should be
granted.
Respectfully submitted,
FRANK W. DALY
Counsel of Record
Daly & O Brien, P.C.
110 W. Front Street
P.O. Box 199
Media, PA 19063-0199
(610) 565-7520
la
(any footnotes trail end of each document)
2006-5087
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
JULIE AMBER-MESSICK, Administratrix of the Estate of
Christopher Kangas, deceased,
Plaintiff-Appellee,
V.
UNITED STATES,
Defendant-Appellant.
April 17, 2007, Decided
COUNSEL: Frank W. Daly, Daly & O'Bren, P.C., of
Media, Pennsylvania, argued for plaintiff-appellee.
Nancy M. Kim, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of Justice,
of Washington, DC, argued for defendant-appellant. With her
on the brief were Peter D. Keisler, Assistant Attorney
General, David M. Cohen, Director, and Todd M. Hughes,
Assistant Director. Of counsel on the brief were Rafael A.
Madan, General Counsel, and Gregory C. Brady, Deputy
General Counsel, Office of Justice Programs, United States
Department of Justice, of Washington, DC.
JUDGES: Before NEWMAN, SCHALL, and BRYSON,
Circuit Judges. Opinion for the court filed by Circuit Judge
SCHALL. Circuit Judge NEWMAN dissents.
OPINION BY: SCHALL
OPINION
SCHALL, Circuit Judge.
Julie Amber-Messick is the mother of Christopher Kangas,
who was a fourteen-year old "apprentice firefighter" with the
Brookhaven, Pennsylvania, Volunteer Fire Department
("Brookhaven Fire Department"). Following her son's death
in a traffic accident, Mrs. Amber-Messick submitted a claim
to the Department of Justice's Bureau of Justice Assistance
("BJA") seeking death benefits under the Public Safety
Officers' Benefits Act of 1976 ("PSOBA" or "Act"), Pub. L.
No. 94-430, 90 Stat. 1346 (codified as amended at 42 U.S.C.
§§ 3796-3796c (2000)). After BJA denied her claim based on
the conclusion that Christopher was not a "firefighter" under
PSOBA, Mrs. Amber-Messick brought suit in the United
States Court of Federal Claims. The parties then cross-moved
for judgment based upon the administrative record.
The Court of Federal Claims granted judgment on the
administrative record in favor of Mrs. Amber-Messick. The
court ruled that BJA's denial of benefits was an arbitrary
exercise of its authority and held that Mrs. Amber-Messick
could recover under PSOBA because Christopher was a
"firefighter" who had died "in the line of duty" within the
meaning of the statute and implementing regulations. Messick
v. United States, 70 Fed. Cl. 319, 332 (2006). Accordingly,
the court entered judgment, awarding Mrs. Amber-Messick
the sum of $ 250,000, adjusted in accordance with 42 U.S.C.
§ 3796(h). The United States has appealed the Court of
Federal Claims’ decision. Because we conclude that the court
erred in failing to defer to BJA's interpretation of
"firefighter," the judgment in favor of Mrs. Amber-Messick
is reversed. The case is remanded to the Court of Federal
Claims with the instructions that it enter judgment in favor of
the United States and dismiss the complaint.
BACKGROUND
I.
PSOBA provides a one-time cash payment to survivors of
public safety officers who die in the line of duty. The
program is administered by BJA. In relevant part, section
3796(a) states:
In any case in which the Bureau of Justice Assistance. . .
determines, under regulations issued pursuant to this part that
a public safety officer has died as the direct and proximate
result of a personal injury sustained in the line of duty, the
Bureau shall pay a benefit of $ 250,000 . . . as follows:
(1) if there is no surviving child of such officer, to the
surviving spouse of such officer;
(2) if there is a surviving child or children and a surviving
spouse, one-half to the surviving child or children of such
officer in equal shares and one-half to the surviving spouse;
(3) if there is no surviving spouse, to the child or children of
such officer in equal shares;
(4) if there is no surviving spouse or surviving child, to the
individual designated by such officer as beneficiary under
such officer's most recently executed life insurance policy,
provided that such individual survived such officer; or
(5) if none of the above, to the parent or parents of such
officer in equal shares.42 U.S.C. § 3796(a) (2000) (amended
2006).
For a survivor or survivors to be entitled to payment, the
public safety officer must have suffered a "personal injury"
within the meaning of the Act, the injury must have been
4a
suffered "in the line of duty," and the death must have been
"the direct and proximate result" of the personal injury. /d.;
see also Cassella v. United States, 469 F.3d 1376, 1378 (Fed.
Cir. 2006); Yanco v. United States, 258 F.3d 1356, 1359
(Fed. Cir. 2001). The 2000 version of the Act, applicable
here, defined "public safety officer" as "an individual serving
a public agency in an official capacity, with or without
compensation, as a law enforcement officer, as a firefighter,
as a chaplain, or as a member of a rescue squad or ambulance
crew." 42 U.S.C. § 3796b(8) (2000) (current version at 42
U.S.C. 3796b(9) (2006)). The Act additionally defined
"firefighter" as "includ[ing] an individual serving as an
officially recognized or designated member of a legally
organized volunteer fire department." 42 U.S.C. § 3796b(4)
(2000 & Supp. I 2002).
The Act also sets forth specific restrictions upon entitlement.
Section 3796a states in pertinent part:
No benefit shall be paid under this subchapter—
(1) if the death or catastrophic injury was caused by the
intentional misconduct of the public safety officer or by such
officer's intention to bring about his death or catastrophic
injury;
(3) if the public safety officer was performing his duties in a
grossly negligent manner at the time of his death or
catastrophic injury.42 U.S.C. § 3796a (2000).
I.
Christopher Kangas was a fourteen-year-old "apprentice
firefighter" with the Brookhaven Fire Department. Messick,
70 Fed. Cl. at 321. The Brookhaven Fire Department
Sa
authorized fourteen- and fifteen-year old apprentice
firefighters to participate in training activities; to provide first
aid care to victims at emergency scenes; to engage in canteen
(food service) activities; to participate in a support capacity
in connection with search and rescue operations, wild fires,
hazardous materials incidents, and water supply opcrations;
and to assist with clean-up activities, such as rolling hoses,
putting away portable tools, and removing debris outside of
fire buildings and collapse zones. Christopher, who had been
an apprentice firefighter since May 15, 2001, was issued
official firefighting equipment and had completed 58.5 hours
of in-house training in a variety of areas related to
firefighting. /d.
On May 4, 2002, an automobile struck Christopher at an
intersection. At the time of the accident, Christopher was
riding his bicycle from his house to the Brookhaven fire
station in response to a fire alarm. Jd. at 321-22. As a result
of the accident, Christopher sustained serious injuries and
died. /d. at 322. According to the November 20, 2002 report
of the National Institute for Occupational Safety and Health
("NIOSH"), Christopher was not wearing a helmct and
crossed the intersection without stopping at the stop sign.
II.
On May 28, 2002, Mrs. Amber-Messick filed a claim with
BJA for PSOBA death benefits. Jd. at 321. On September 11,
2002, BJA issued an initial determination denying the claim.
Id. BJA determined that Christopher "was a trainee but did
not possess authority to act as an official firefighter” and thus
was not a "public safety officer" pursuant to PSOBA. /d. BJA
noted that Christopher was only permitted to participate in
training activities, to provide first aid care, to assist with
Clean-up activities, to support canteen activities, and to
participate in a support capacity for operations such as
searches and rescues. BJA also noted that Christopher "was
6a
not permitted to operate equipment or assist with fire
suppression at fire scenes or enter hazardous atmospheres."
Id.
On March 4, 2003, Mrs. Amber-Messick sought
reconsideration of the initial denial of benefits. /d In
accordance with BJA regulations, the matter was referred to a
Hearing Officer, who received evidence and held a hearing.
nl In his April 26, 2004 decision, the Hearing Officer
sustained the initial denial of benefits based on his conclusion
that Christopher was not a "firefighter" under PSOBA. /d. at
322. The Hearing Officer acknowledged that PSOBA did not
define "firefighter" as one "engaged in the suppression of
fires," but concluded that Congress intended the term
"firefighter" to mean an individual "authorized to actively
engage in the suppression of fires." /d. The Hearing Officer
based his conclusion on the plain meaning of the term
"firefighter" n2 as well as his interpretation of legislative
intent. n3 /d. Additionally, the Hearing Officer cited to the
definition of "line of duty” in BJA's implementing regulations
n4 to support his conclusion that one must be authorized to
fight or suppress fires to be a "firefighter" under the statute.
Id. The Hearing Officer also noted that under Pennsylvania
law, n5 fourteen- and fifteen-year old junior firefighters are
prohibited from being directly involved in the suppression of
fires. Id.
On June 29, 2004, in accordance with 28 C.F.R.
32.24(i)(1)(i), Mrs. Amber-Messick requested that BJA
reconsider the Hearing Officer's denial of death benefits. See
28 C.F.R. § 32.24(i)(1) (2002) ("A claimant determined
ineligible by a hearing officer . . . may, within 30 days after
notification of the hearing officer's determination: (i) request
the BJA Director to review the record and the hearing
officer's determination . . . .") (current version at 28 C.F.R. §
32.46 (2006)). On April 28, 2005, the Director of BJA, in the
Final Agency Decision, affirmed the Hearing Officer's denial
Ta
of benefits based on the conclusion that Christopher was not
a "firefighter" or "public safety officer" within the meaning
of PSOBA. Id. at 323. The Director additionally concluded
that “[e]ven if Christopher were a ‘firefighter’ within the
meaning of the PSOB Act (which he was not), his tragic
death did not occur in the line of duty, as defined in the
PSOB regulations, because Pennsylvania law . . . did not
obligate or authorize him to engage in fire-fighting or fire-
suppression activity." /d.
IV.
On June 27, 2005, Mrs. Amber-Messick filed a complaint in
the Court of Federal Claims to challenge BJA's denial of her
claim under PSOBA. n6 As noted above, the parties, in due
course, cross-moved for judgment based upon the
administrative record. The court concluded that BJA's denial
of death benefits was "arbitrary and capricious and founded
on an unreasonably restrictive reading of the words of
PSOBA and implementing regulations." /d. at 331. The court
found that Christopher was a "firefighter" who died in the
"line of duty" because Christopher's "primary function’ was
to be a part of the team that engaged in ‘the suppression of
fires."" Jd. The court therefore granted Mrs. Amber-Messick's
motion for judgment on the administrative record and denied
the government's cross-motion. /d. at 332.
The United States timely appealed the judgment of the Court
of Federal Claims to this court on May 26, 2006. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a\3).
DISCUSSION
I,
Our review of BJA's denial of a claim for death benefits is
limited to three inquiries: (1) whether there has been
8a
substantial compliance with statutory requirements and
provisions of implementing regulations; (2) whether there has
been any arbitrary or capricious action on the part of the
government officials involved; and (3) whether substantial
evidence supports the decision denying the claim. Yanco, 258
F.3d at 1362; Chacon v. United States, 48 F.3d 508, 511
(Fed. Cir. 1995). We review the judgment of the Court of
Federal Claims de novo, applying this deferential standard
anew. Greeley v. United States, 50 F.3d 1009, 1010-11 (Fed.
Cir. 1994).
The government argues on appeal that we should defer to
BJA's permissible construction of "firefighter" in line with
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843-44, 104 S.
Ct. 2778, 81 L. Ed. 2d 694 (1984). The government contends
that because the term "firefighter" is ambiguous with respect
to whether it covers a minor apprentice firefighter, we must
inquire, under step two of the Chevron analysis, whether
BJA's conclusion that Christopher was not a firefighter
because he was not authorized to fight fires was reasonable.
According to the government, BJA's interpretation of
"firefighter" was permissible in light of Pennsylvania state
law; the ordinary, common meaning of the term; and the
legislative history of PSOBA.
Additionally, the government makes two _ alternative
arguments. First, the government argues that even if
Christopher was a "firefighter" pursuant to PSOBA, BJA's
interpretation of "line of duty” is reasonable and therefore we
should uphold its determination that Christopher did not die
in the "line of duty." Second, the government contends that
even if Christopher was a "firefighter" who died in the "line
of duty,” the government is entitled to a remand of the case
for a determination by BJA as to whether the circumstances
of Christopher's death--his failure to wear a helmet and to
stop before entering the intersection--constituted intentional
9a
misconduct or gross negligence so as to preclude the payment
of a benefit under the statute. See 42 U.S.C. § 3796a.
In response to the government's arguments, Mrs. Amber-
Messick argues that PSOBA is clear and unambiguous in its
broad definition of "firefighter." Further, she contends that
even if the term "firefighter" is ambiguous, BJA's
interpretation of the term is arbitrary and capricious, given
that the statute and regulations are easily understood without
adding duty-specific limitations. Mrs. Amber-Messick also
directs our attention to the fact that she received benefits
under the Pennsylvania Emergency Law Enforcement
Personnel Death Benefits Act, 53 Pa. Stat. Ann. § 891, as
support for her argument that she should have received
benefits under PSOBA. Specifically, Mrs. Amber-Messick
argues that 28 C.F.R. § 32.5 n7 requires BJA to give
"substantial weight" to state and local agencies' findings.
With respect to the government's "line of duty" alternative
argument, Mrs. Amber-Messick contends that because
Christopher's primary function was to be a part of a team that
engaged in the "suppression of fires," Christopher died in the
"line of duty." Finally, Mrs. Amber-Messick urges that there
are three reasons why we should reject the government's
request for a remand. First, she notes that, under 28 U.S.C. §
1491(a)(2), n8 the lower court's decision whether to remand
is discretionary. Second, she contends that the record
contains insufficient evidence to support a determination of
intentional misconduct or gross negligence, given that the
NIOSH report is the only item in the record that mentions
Christopher's failure to wear a helmet and to stop at the stop
sign. Third, Mrs. Amber-Messick argues that the failure to
wear a helmet and to stop at the stop sign does not rise to the
level of intentional misconduct or gross negligence.
II.
10a
We hold that the Court of Federal Claims erred in granting
judgment on the administrative record in favor of Mrs.
Amber-Messick and in denying judgment on_ the
administrative record in favor of the United States. We agree
with the government's argument that BJA's construction of
the term "firefighter" is permissible.
In United States v. Mead Corp., the Supreme Court explained
that:
[A]dministrative implementation of a particular statutory
provision qualifies for Chevron deference when it appears
that Congress delegated authority to the agency generally to
make rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in the
exercise of that authority. Delegation of such authority may
be shown in a variety of ways, as by an agency's power to
engage in adjudication or notice-and-comment rulemaking,
or by some other indication of a comparable congressional
intent.533 U.S. 218, 226, 121 S. Ct. 2164, 150 L. Ed. 2d 292
(2001). The Supreme Court further noted, "We have
recognized a very good indicator of delegation meriting
Chevron treatment in express congressional authorizations to
engage in the process of rulemaking or adjudication that
produces regulations or rulings for which deference is
claimed." Id. at 229. Here, because Congress expressly
authorized BJA to issue regulations interpreting PSOBA and
to make determinations as to eligibility for benefits, we
conclude that Congress intended for a BJA pronouncement to
have the "force of law." See 42 U.S.C. § 3796c ("The Bureau
is authorized to establish such rules, regulations, and
procedures as may be necessary to carry out the purposes of
this subchapter."). We therefore will defer to BJA's
interpretation of "firefighter," so long as it is reasonable in
accordance with Chevron.
lla
When Chevron deference applies, the court must undertake a
two-step inquiry. First, the court must determine "whether
Congress has directly spoken to the precise question at
issue." Chevron, 467 U.S. at 842. "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." /d. If, however, "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." /d. at 843.
Here, the "precise question at issue" is whether the term
"firefighter" in 42 U.S.C. § 3796b(4) covers a minor
prohibited by law from engaging in certain firefighting
activities. In that regard, we are not persuaded by Mrs.
Amber-Messick's argument that PSOBA is clear and
unambiguous in its broad definition of "firefighter." Mrs.
Amber-Messick argues that neither the statute nor the
regulations supply age or duty requirements or add other
limitations to the definition of "firefighter." We think,
however, that this argument indicates Congress has not
directly spoken to the precise question of whether the term
"firefighter" covers a minor apprentice firefighter. We also
think Mrs. Amber-Messick's argument that the drafters of
PSORA chose to use "includes" rather than "means" or "is
defined" in the definition of "firefighter," 42 U.S.C. §
3796b(4), n9 because they intended for PSOBA to have a
broader interpretation fails. In our view, Congress used the
word "includes" in order to ensure that the Act covered
volunteer firefighters as well as professional firefighters.
H.R. Rep. No. 94-1031, at 4 (1976) ("The bill defines
‘firemen’ to include volunteer as well as_ professional
firemen."). If Congress had defined "firefighter" to "mean an
individual serving as an officially recognized or designated
member of a legally organized volunteer fire department,"
professional firefighters would have been excluded from
statutory coverage. Accordingly, we conclude that Congress
12a
has not "directly spoken" to the question of whether the term
"firefighter" in 42 U.S.C. § 3796b(4) covers a minor
apprentice firefighter prohibited by law from engaging in
certain firefighting activities.
Under the second prong of the Chevron analysis, we must
determine whether BJA's decision to exclude from the
definition of "firefighter" a minor apprentice firefighter not
authorized to fight fires represents "a permissible
construction of the statute." Chevron, 467 U.S. at 843. We
conclude that BJA's interpretation of "firefighter" as one who
is "authorized to actively engage in the suppression of fires"
is permissible based on the ordinary meaning of the term
"firefighter" as well as the legislative history of the Act.
The ordinary, common meaning of the term "firefighter" as
"a person who fights fires” is consistent with BJA's
interpretation of "firefighter." See Merriam-Webster's
Collegiate Dictionary (10th ed. 2002); see also The New
Shorter Oxford English Dictionary (1993) ("a person whose
task is to extinguish fires"); Webster's Third New Int'l
Dictionary (1981) ("one who fights fires"). We agree with the
government's argument that there is no indication in the Act
itself of any legislative intent to depart from this ordinary
meaning. The legislative history, moreover, supports BJA's
interpretation of the term "firefighter" in accoidance with its
ordinary meaning. The House Judiciary Committee Report
No. 94-1031 contains the following statement: "Since fire
fighting has been determined to be one of the most hazardous
professions, the Committee is of the opinion that coverage
should extend to all activities performed by firemen when
they are actually and directly engaged in fighting fires." H.R.
Rep. No. 94-1031, at 4 (1976). We thus conclude that BJA's
interpretation of the term "firefighter" as one who is
"authorized to actively engage in the suppression of fires" is a
“permissible construction of the statute,” and is not, as argued
by Mrs. Amber-Messick, arbitrary and capricious.
13a
Based on our conclusion that BJA's interpretation of
"firefighter" is permissible, the only remaining question is
whether BJA's decision that Christopher is not "authorized to
actively engage in the suppression of fires" and therefore not
a "firefighter" pursuant to PSOBA is reasonable. According
to Pennsylvania state law, as a minor under sixteen years of
age, Christopher's activities were expressly limited to: (1)
training, (2) first aid, (3) clean-up, and (4) providing coffee
wagon and food services. 43 Pa. Cons. Stat. § 48.3(c). The
authorization to engage in these limited activities does not
equate to the authorization "to actively engage in the
suppression of fires." Further, given that Pennsylvania state
law prohibits minors under the age of sixteen from operating
high pressure hose lines except during training, from
ascending ladders except during training, from entering a
burning structure, 43 Pa. Cons. Stat. § 48.3(c), and from
riding an official vehicle to the scene of a fire and
participating in any fire fighting activities, 34 Pa. Code §
11.67(a)(S), we conclude that BJA's decision that Christopher
was not "authorized to engage in the suppression of fires"
was reasonable.
Additionally, we find unpersuasive Mrs. Amber-Messick's
contention that the fact she received benefits under the
Pennsylvania Emergency Law Enforcement Personnel Death
Benefits Act supports her claim under PSOBA. BJA's
implementing regulation, 28 C.F.R. § 32.5, only applies to
findings of fact and does not apply to the ultimate conclusion
of whether a claimant is entitled to a benefit. nlO See
Demutiis v. United States, 291 F.3d 1373, 1379 (Fed. Cir.
2002). BJA was not required to give "substantial weight" to
the state agency's legal conclusion that Mrs. Amber-Messick
was entitled to receive death benefits under state law.
In sum, we hold that BJA's interpretation of the term
"firefighter" as one who is "authorized to actively engage in
the suppression of fires" is permissible in light of the
l4a
ordinary, common meaning of the term "firefighter" and the
legislative history of PSOBA. We also hold that BJA did not
err in its determination that Christopher was not a
"firefighter" under PSOBA, given that Pennsylvania state law
does not authorize him to participate in firefighting activities
and, instead, expressly limits his activities to non-firefighting
activities.
Finally, in view of our disposition of the appeal based upon
our holding that Christopher was not a "firefighter" pursuant
to PSOBA, we do not need to reach the government's two
alternative arguments noted above.
CONCLUSION
For the foregomg reasons, the judgment of the Court of
Federal Claims in favor of Mrs. Amber-Messick is reversed.
The case is remanded to the Court of Federal Claims, which
is instructed to enter judgment in favor of the United States
and to dismiss the complaint.
COSTS
Each party shall bear its own costs.
REVERSED and REMANDED
Footnotes
fnl"A claimant may, within thirty (30) days after notification
of ineligibility by the Bureau, request the Bureau to
reconsider its finding of ineligibility. The Bureau shall
provide the claimant the opportunity for an oral hearing
which shall be held within 60 days after the request for
reconsideration." 28 C.F.R. § 32.24(a) (2002) (current
version at 28 C.F.R. § 32.29 (2006)).
lSa
fn2The Hearing Officer cited Webster's Dictionary (10th ed.)
for the definition of "firefighter" as a "person who fights
fires." Messick, 70 Fed. Cl. at 322.
fn3The Hearing Officer stated that "[t]his plain meaning of
‘firefighter’ was apparently so obvious that Congress did not
bother to add any further definition.” The Hearing Officer
further explained that:
The original House Bill for the Firefighters Benefits Act of
1975 (H.R. 365), which later evolved into the PSOB Act of
1976, included in its definition of "eligible firefighter" an
individual ". . . actually and directly engaged in fighting a
fire; or otherwise engaged in performance of his duty where
the activity is determined by the Administration [LEAA] to
be potentially dangerous to the firefighter." See Cong. Rec. H
3741, Apr. 30, 1976.
fn428 C.F.R. § 32.2(c)(1) defines “line of duty" as "any
action which an officer whose primary function is crime
control or reduction, enforcement of the criminal law, or
suppression of fires is obligated or authorized by rule,
regulations, condition of employment or service, or law to
perform." 28 C.F.R. § 32.2(c)(1) (2002) (current version at
28 C.F.R. § 32.3 (2006)).
fnSThe Pennsylvania Administrative Code _ expressly
prohibits fourteen- and fifteen-year olds from "(i) Rid[ing] an
official vehicle to the scene of a fire[,] (11) Participat[ing] in
any fire fighting activities." 34 Pa. Code § 11.67(a)(5).
Additionally, the Pennsylvania Child Labor Law expressly
limits minors under sixteen years of age to the following
activities: "(1) Training{;] (2) First aid[;] (3) Clean-up service
at the scene of a fire, outside the structure, after the fire has
been declared by the fire official in charge to be under
control[;] (4) Coffee wagon and food services." 43 Pa. Cons.
16a
Stat. § 48.3(b). The Pennsylvania Child Labor Law further
explicitly prohibits minors under sixteen years of age from
"(1) Operat[ing] high pressure hose lines, except during
training activities; (2) Ascend[ing] ladders, except during
training activities; or (3) Enter[ing] a burning structure." 43
Pa. Cons. Stat. § 48.3(c).
fn6The Court of Federal Claims had jurisdiction over the suit
under the Tucker Act, 28 U.S.C. § 1491(a)(1) (2000).
fn7The regulation states:
The Bureau will give substantial weight to the evidence and
findings of fact presented by State, local, and Federal
administrative and investigative agencies. The Bureau will
request additional assistance or conduct its own investigation
when it believes that the existing evidence does not provide
the Bureau with a rational basis for a decision on a material
element of eligibility.28 C.F.R. § 32.5.
fn8Section 1491(a)(2) provides in relevant part: "[The Court
of Federal Claims] shall have the power to remand
appropriate matters to any administrative or executive body
or official with such direction as it may deem proper and
just.” 28 U.S.C. § 1491(a)(2).
fn9As noted above, the statute states that the term firefighter
"includes an individual serving as an officially recognized or
designated member of a legally organized volunteer fire
department.” 42 U.S.C. § 3796b(4).
fnl0As noted, the regulation states in pertinent part that BJA
"will give substantial weight to the evidence and findings of
fact presented by State, local, and Federal administrative and
investigative agencies." 28 C.F.R. § 32.5.
DISSENT BY: NEWMAN
17a
DISSENT
NEWMAN, Circuit Judge, dissenting.
Christopher Kangas, age 14, was an apprentice firefighter,
also called a junior firefighter, at Brookhaven Fire
Department No. 1. He was killed in an accident on his
bicycle while responding to a fire call. His family requested
the statutory compensation that is granted, in accordance with
the Public Safety Officers' Benefits Act (PSOBA), to families
of firefighters and other public safety officers who die in the
line of duty. The family also sought to recognize his memory
by inscription on the National Fallen Firefighters
Foundation's Honor Roll of firefighters who die in service;
this recognition was denied after the government denied
firefighter benefits under the PSOBA.
The PSOBA definition states: "Firefighter' includes an
individual serving as an officially recognized or designated
member of a legally organized fire department .. . ." 42
U.S.C. § 3796b(4). Volunteer firefighters, serving as needed
and without compensation, are included. Jd. at § 3796b(8)(A)
(a "public safety officer’ means . . . an individual serving a
public agency in an official capacity, with or without
compensation, as a law enforcement officer, as a firefighter,
as a chaplain, or as a member of a rescue squad or ambulance
crew").
The PSOBA is administered by the Department of Justice
through its Bureau of Justice Assistance (BJA). The BJA held
that Kangas was not a "firefighter" because as a junior
firefighter under the age of 16 he could not, in accordance
with Pennsylvania law, engage in certain firefighting
activities. Firefighters under the age of sixteen are prohibited,
in Pennsylvania, from entering burning buildings and from
climbing ladders or operating high-pressure hose lines other
than during training.
18a
The Court of Federal Claims, reviewing the testimony of
Pennsylvania firefighting officials, agreed with these officials
that Kangas was part of the firefighting team. At the hearing
before the BJA, the Brookhaven Fire Chief, Rob Montella,
testified as follows:
The junior firefighter is a--it's part of the team. They are . . .
just as much a part of being a firefighter as anybody else out
there. They do all the jobs that they need to do. They help
out. The jobs that they do are very important. If they're not
there, somebody else has to do the job. If you don't have the
manpower them jobs aren't getting done. They're getting done
by them other guys that are doing different jobs that they're
allowed to do. So the junior firefighter is a vital part of the
fire department.The Pennsylvania State Fire Commissioner
also testified, stating that the Pennsylvania death benefits
statute makes no distinction between junior/apprentice
firefighters and other firefighters who die in the line of duty,
and that Kangas had been so recognized and placed on the
state's Honor Roll of fallen firefighters. The Fire
Commissioner testified that the state death benefits statute
makes no distinction among junior, apprentice, or other
firefighters and that age or service capacity are not barriers to
state death benefits.
The Court of Federal Claims observed that the federal statute
does not exclude apprentice firefighters who die under
conditions in which a non-apprentice would be recognized.’
The testimony of the Brookhaven Fire Chief and
Pennsylvania Fire Commissioner was clear that the duties
performed by the apprentice firefighters freed the senior
firefighters for other tasks, and that the apprentices’ tasks are
a necessary and integral part of the team effort in fighting
fires.
The Court of Federal Claims summarized the evidence as
follows:
19a
Christopher had been issued official firefighter equipment.
He had completed 58.5 hours of in-house training and had
trained in twenty-two different areas related to firefighting,
including rescue operations, the functions of an air pack,
electronics, carbon monoxide detection and hose rolling.
Christopher also was certified in CPR and had responded to
twenty-four house drills. The Brookhaven Fire Department
had authorized Christopher to be part of the firefighting team
by participating at the scene of a fire, including bringing out
portable equipment and fire hoses, providing food, drink and
first aid to the other firefighters, and cleaning up after fires
that were under control. After Christopher's death, the
Brookhaven, Pennsylvania, Volunteer Fire Department added
his name to the honor roll of its deceased members.
Christopher was the only person on the honor roll to have
died in what the Department determined was "the line of
duty." 70 Fed. Cl. at 321. The Court concluded that Kangas'
service was within the scope of the PSOBA, whose purpose
was to encourage and recognize persons who formally
participate in public safety activities.
On appeal by the United States, my colleagues now endorse
the federal government's position that Christopher Kangas
was not a "firefighter" and that his death warrants neither
compensation nor recognition. This position contravenes the
statutory purposes, summarized in the leyislative history as
including increasing the morale of fire departments, assisting
in recruiting efforts, showing appreciation for public service
officers, and alleviating economic and emotional burdens
placed upon public servants and their families. The Senate
Committee Report accompanying amendments in 2000
explained that the national goal "to reduce loss of life and
property and protect the nation's critical infrastructure from
all types of hazards, through a comprehensive, risk-based
emergency management program . . ." with a broad mission
focusing on four areas: preparedness (e.g., emergency
planning and training), mitigation, response, and recovery. S.
20a
Rep. 106-295 (2000) at 1-2, the Disaster Mitigation Act of
2000, 114 Stat. 1552, Pub. L. No. 106-390. My colleagues'
reliance on Christopher Kangas' exclusion from some senior
firefighting activities as the basis for barring his recognition
as a fallen firefighter is in direct conflict with the statutory
purpose of recognizing the role of the firefighter and others
serving the public.
The analogous Pennsylvania Emergency Law Enforcement
Personnel Death Benefits Act, 53 P.S. § 891 et seq. states, as
does the PSOBA, that: "This Act shall be broadly construed
to grant benefits to firefighters . . . for deaths related to the
performance of their duties." 53 P.S. § 892.1. Under PSOBA
regulation 28 C.F.R. § 32.5 the BJA must give "substantial
weight to evidence and findings of fact" presented by state or
local agencies. Accordingly, when Pennsylvania has
recognized Christopher Kangas as a fallen firefighter under a
statute with almost identical language to the federal statute,
the United States should not take a contrary position without
exceptional good reason. See 28 C.F.R. § 32.4 ("[the BJA]
shall resolve any reasonable doubt arising from the
circumstances of the officer's death . . . in favor of the
payment of the death . . . benefit"); Davis v. United States, 46
Fed. Cl. 421, 427 (2000). See also Demutiis v. United States,
48 Fed. Cl. 81 (2000) (the PSOBA must be construed in
accord with its legislative intent and applicable canons of
construction "both of which compel a conclusion that
Congress desired this statute to be applied liberally"), aff'd as
modified, 291 F.3d 1373 (Fed. Cir. 2002).
Although the United States urges Chevron deference to the
interpretation of the BJA, the term "firefighter" in the
PSOBA is not ambiguous. An interpretation that excludes
apprentice firefighters who die while serving as apprentices,
departs so markedly from the statutory purpose as to negate
deference. See Whitman v. American Trucking Ass‘ns, 531
U.S. 457, 485, 121 S. Ct. 903, 149 L. Ed. 2d 1 (2001)
2la
(judicial deference is not warranted where an agency
"construe[d] the statute in a way that completely nullifies
textually applicable provisions meant to limit [the agency's]
discretion").
The PSOBA does not limit "firefighter" to exclude all
persons who do not enter burning buildings. Observing the
various federal laws with firefighter provisions, the civil
service law as to federal employees is explicit that a
"firefighter" can be an administrator or supervisor who is not
“actively engaged in the suppression of fires"--the definition
adopted by my colleagues. See 5 U.S.C. § 8331(21).
However, according to the BJA's interpretation, an
administrator or supervisor is not a "firefighter."
The Court of Federal Claims correctly concluded that
apprentice firefighters are within the statutory purposes and
entitled to the death benefits of the PSOBA:
In conclusion Christopher was a recognized apprentice
"firefighter" of the Brookhaven Volunteer Fire Department.
He was authorized to attend the scene of a fire, offload
equipment, attach non-pressurized hoses to water sources,
administer first aid to victims, assist in food services, roll
hoses after a fire, remove debris, provide support at
hazardous materials scenes and participate in search and
rescue operations. Christopher engaged in activities involved
in the "suppression of fires." He was a "firefighter" in the
ordinary sense of the word. 70 Fed. Cl. at 331. The exclusion
of apprentices who are killed in the line of duty is inimical to
the purpose of this statute that was designed to encourage and
enlarge such public service. The PSOBA "should not be
applied grudgingly, but rather should be construed liberally
to avoid frustration of its beneficial legislative purposes."
Bice v. United States, 72 Fed. Cl. 432 (2006). See Baltimore
& Philadelphia S.B. Co. v. Norton, 284 U.S. 408, 414, 52 S.
Ct. 187, 76 L. Ed. 366 (1932) (remedial laws "are deemed to
22a
be in the public interest and should be construed liberally in
furtherance of the purpose for which they were enacted and,
if possible, so as to avoid incongruous or harsh results")
(citations omitted).
Logic and justice add their weight to the plain reading of this
statute. The federal restriction of "firefighter" to exclude
apprentices who die in the line of duty is untenable, and in
striking contrast to Pennsylvania's recognition of the death of
such apprentices. From my colleagues’ endorsement of this
statutory interpretation I must, respectfully, dissent.
Footnote
fn lit is undisputed that accidental death while traveling to or
from a fire is deemed compensable; indeed, a large number
of such unfortunate accidents occur. "According to the U.S.
Fire Administration, of the 106 fire fighters who died in the
line of duty in 2005, 26 were the result of vehicle accidents."
http://www. iaff.org/media/02 1 506health. pdf.
23a
No. 05-697C
UNITED STATES COURT OF FEDERAL CLAIMS
JULIE AMBER MESSICK, Administratnx, Estate of
Christopher Kangas, Deceased,
Plaintiff,
V.
UNITED STATES,
Defendant.
March 27, 2006, Filed
COUNSEL: Frank W. Daly, Daly, Gorbey & O'Brien, P.C.,
Media, Pennsylvania, for plaintiff.
Nancy M. Kim, Trial Attorney; Todd M. Hughes, Assistant
Director; David M. Cohen, Director; Peter D. Keisler,
Assistant Attorney General, Department of Justice,
Washington, DC, for defendant. Gregory C. Brady, Deputy
General] Counsel, Office of Justice Programs, of counsel.
JUDGES: MARIAN BLANK HORN, Judge.
OPINION BY: MARIAN BLANK HORN
OPINION
HORN, J.
Plaintiff, Julie Amber Messick, upon behalf of her
deceased son, Christopher Nicholas Kangas, filed for death
benefits pursuant to the Public Safety Officers’ Death
Benefits Act, Omnibus Crime Control and Safe Streets Act of
24a
1968, § 1201, as amended, 42 U.S.C. §§ 3796-3796c (2000 &
Supp. II 2002) (PSOBA).
FINDINGS OF FACT
This case involves the tragic and untimely death of
Christopher Nicholas Kangas, a volunteer apprentice
firefighter, also known as a volunteer junior firefighter, for
the Brookhaven, Pennsylvania, Volunteer Fire Department.
On May 4, 2002, Christopher was riding his bicycle to the
fire station in response to a fire alarm when he was struck by
an automobile. He sustained serious injuries, including head
trauma, and was flown to Children's Hospital in Philadelphia,
where he died from his injuries the next day. He was fourteen
years old.
In a Joint Stipulation of Facts submitted to the court, the
parties have stipulated that at the time of his death,
Christopher was "an officially recognized member of the
Brookhaven, Pennsylvania Volunteer Fire Department, and
was serving as an ‘apprentice firefighter."" Moreover,
according to Brookhaven, Pennsylvania, Fire Chief Rob
Montella:
The junior firefighter is a - it's part of the team.
They are just as part - just as much as a part of
being a firefighter as anybody else out there.
They do all the jobs that they need to do. They
help out. The jobs that they do are very
important. If they're not there, somebody else has
to do the job. If you don't have the manpower
them jobs aren't getting done. They're getting
done by them other guys that are doing different
jobs that they're allowed to do. So the junior
firefighter is a vital part of the fire department.
25a
Christopher had been issued official firefighter
equipment. He had completed 58.5 hours of in-house training
and had trained in twenty-two different areas related to
firefighting, including rescue operations, the functions of an
air pack, electronics, carbon monoxide detection and hose
rolling. Christopher also was certified in CPR and had
responded to twenty-four house drills. The Brookhaven Fire
Department had authorized Christopher to be part of the
firefighting team by participating at the scene of a fire,
including bringing out portable equipment and fire hoses,
providing food, drink and first aid to the other firefighters,
and cleaning up after fires that were under control. After
Christopher's death, the Brookhaven, Pennsylvania,
Volunteer Fire Department added his name to the honor roll
of its deceased members. Christopher was the only person on
the honor roll to have died in what the Department
determined was "the line of duty."
On May 28, 2002, Julie Amber Messick, Christopher's
mother, filed a claim with the Bureau of Justice Assistance
(BJA), for death benefits under the PSOBA. On September
11, 2002, after a review of her claim, the BJA issued an
initial determination denying Mrs. Amber Messick's claim
for benefits. In that initial determination, he BJA recognized
that Christopher was an "Apprentice Volunteer Firefighter"
and was authorized to:
participate in training activities, provide first
aid care to victims at emergency scenes, and
assist with clean-up activities such as rolling
hose, putting away portable tools, and removing
debris under supervision of the officer in charge
and outside of fire buildings and collapse zones.
He was allowed to provide canteen (food
service) activities and participate in a support
capacity for searches, rescues, wild fires,
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hazardous materials incidents, and water supply
operations.
However, according to the BJA determination, Christopher
“was not permitted to operate equipment or assist with fire
suppression at fire scenes or enter hazardous atmospheres."
The BJA determined that "Apprentice VFF Kangas was a
trainee but did not possess authority to act as an official
firefighter." Accordingly, the BJA found that Christopher
was not a "public safety officer" as defined in 42 U.S.C. §
3796b(8) ' and that, therefore, the claimant was ineligible to
receive PSOB death benefits.
On March 4, 2003, Mrs. Amber Messick appealed the
BJA's initial determination. The BJA subsequently held an
appeal hearing on January 22, 2004. After reviewing the
documents submitted and the testimony offered by the
witnesses, the Hearing Officer issued a decision on April 26,
2004, sustaining the BJA's initial determination and
confirming the denial of death benefits to the claimant. The
Hearing Officer made the following findings of fact:
1. On May 4, 2002, Christopher Kangas was
responding to a fire call on his bicycle and he
was struck by a car. He subsequently died from
the injuries sustained in this accident.
2. On that date Kangas was a junior
(apprentice) firefighter with the Brookhaven,
Pennsylvania VFD.
3. Junior firefighter Kangas had been an
active member of the volunteer fire company
since May 15, 2001, when he was voted in by the
Brookhaven FVD Association. He had received
at least 58.5 hours of training at the time of his
death. He had been issued gear and went on
numerous fire calls.
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4. Junior firefighter Kangas was permitted . .
? to ride to fires on the fire truck. He was also
allowed to perform various activities at the scene
of the fire, including off-loading equipment,
attaching non-pressurized hoses to a water
source, administering first aid to victims,
assisting with the canteen for the line
firefighters, cleaning up (rolling hoses) and
removing of debris under supervision of the fire
commander. He could provide support at
hazardous materials scenes but he could not
participate in dealing with the hazardous
materials. He could also participate in search and
rescue operations.
5. Junior Firefighter Kangas was not
permitted by Pennsylvania statute (43 P.S. §
48.3) and fire company regulations to operate
heavy equipment, pressure hoses of any kind,
ascend ladders, enter burning buildings or fire or
hazardous materials zones; all of which are
fundamental fire suppression activitics.
The Hearing Officer concluded that Christopher was not a
"firefighter" as defined in the PSOBA. ° As is discussed more
fully below, the Hearing Officer acknowledged that the
PSOBA did not define "firefighter" as one "engaged in the
suppression of fires." The Hearing Officer noted that the
original regulations implementing the Act had contained this
language, but "for unknown reasons," the language had been
removed in 1985. Despite the absence of this language
("engaged in the suppression of fires") in the PSOBA, and
the removal of that same language from the implementing
regulations’ definition of "firefighter," the Hearing Officer
still concluded that an "individual must be authorized to
actively engage in the suppression of fires to be a
"firefighter" under the Act." The Hearing Officer apparently
did so based on his own reading of the legislative intent and
28a
what he concluded was the plain or ordinary meaning of the
word "firefighter," as a "person who fights fires,"" for which
he cited WEBSTER'S DICTIONARY (10th ed.). The
Hearing Officer stated that Congress intended the word
"firefighter" to be one who is "authorized to fight fires."
The Hearing Officer also cited to the definition of "line of
duty" in the regulations issued pursuant to the PSOBA, which
states:
Any action which an officer whose primary
function is crime control or reduction,
enforcement of the criminal law, or suppression
of fires is obligated or authorized by rule,
regulations, condition of employment or service,
or law to perform ....
28 CF.R. § 32.2(c)(1) (2002).
In addition, the Hearing Officer relied on a Pennsylvania
Statute-the Pennsylvania Child Labor Law, 43 PA. CONS.
STAT. ANN. § 48.3-as limiting the ability of junior
firefighters to engage in certain activities at the scene of the
fires and, therefore, limiting Christopher's ability to engage in
the "suppression of fires." Consequently, the Hearing Officer
denied Mrs. Amber Messick's claim and concluded that
Christopher was not a firefighter who died in the line of duty
because "one cannot be acting in the line of duty’ unless he or
she is authorized to be engaged in the suppression of fires-in
other words, to be a firefighter."
On June 29, 2004, Mrs. Amber Messick requested the
BJA to reconsider the Hearing Officer's determination. On
April 28, 2005, after reviewing the record, the Director of the
BJA issued a Final Agency Decision, affirming the Hearing
Officer's determinations and denying death benefits to the
claimant. In the decision, the Director affirmed the denial of
the claim, based on the conclusion that Christopher was not a
29a
public safety officer or a "firefighter" within the meaning of
the PSOBA and the implementing regulations. Furthermore,
the Director wrote: "Even if Christopher were a ‘firefighter'
within the meaning of the PSOB Act (which he was not), his
tragic death did not occur in the line of duty, as defined in the
PSOB regulations, because Pennsylvania law (discussed
above) did not obligate or authorize him to engage in fire-
fighting or fire-suppression activity."
On June 27, 2005, Mrs. Amber Messick filed a complaint
in this court, seeking review of the BJA's determination. In
her complaint, plaintiff states that the BJA improperly denied
her benefits since it was undisputed that Christopher was
serving as an Officially recognized member of the
Brookhaven Volunteer Fire Department at the time of his
death. Further, plaintiff claims that the BJA "exceeded its
regulatory powers by promulgating regulations _ that
impermissibly narrow the definition of ‘firefighter’ to require
that the claimant ‘engaged in the suppression of fires . . . .""
On September 16, 2005, in response to plaintiff's
complaint, defendant filed a motion for judgment upon the
administrative record. In the motion, defendant states that
Congress demonstrated no intent to depart from the plain
meaning of "firefighter" as one "authorized to engage in fire-
fighting activities." Furthermore, even if the meaning of the
word "firefighter" were found tu be ambiguous, defendant
argues that the BJA's interpretation of the word is reasonable
and, therefore, entitled to deference. Finally, defendant
reiterated that Christopher was prohibited from performing
fire suppression activities by Pennsylvania State law and,
thus, he did not die in the “line of duty,” as defined by the
BJA's implementing regulations.
This court has jurisdiction to review final decisions of the
BJA pursuant to 28 U.S.C. § 1491 (2000). See United States
v. Mitchell, 463 U.S. 206, 216, 103 S. Ct. 2961, 77 L. Ed. 2d
580 (1983); Yanco v. United States, 258 F.3d 1356, 1358-59
30a
(Fed. Cir. 2001), cert. denied, 534 U.S. 1114, 122 S. Ct. 921,
151 L. Ed. 2d 885 (2002). Plaintiff has standing to bring an
action on behalf of the deceased as the sole legal parent at the
time of his death pursuant to 42 U.S.C. § 3796(a)(5) (2000 &
Supp. II 2002). The parties have filed cross-motions seeking
judgment on the administrative record pursuant to Rule 56.1
of the Rules of the United States Court of Federal Claims
(RCFC).
DISCUSSION
Judicial review of BJA decisions is limited to the
following inquiries:
(1) whether there has been substantial
compliance with statutory requirements and with
the requirements of implementing regulations;
(2) whether there has been any arbitrary or
Capricious action on the part of the government
officials involved; and
(3) whether the decision denying the claim is
supported by substantial evidence.
Yanco v. United States, 258 F.3d at 1362 (citing Chacon v.
United States, 48 F.3d 508, 511 (Fed. Cir. 1995)); see also
Greeley v. United States, 50 F.3d 1009, 1010 (Fed. Cir.
1995) (quoting Morrow v. United States, 227 Ct. Cl. 290,
296, 647 F.2d 1099, 1102, cert. denied, 454 U.S. 940, 102 S.
Ct. 475, 70 L. Ed. 2d 247 (1981)).
The Public Safety Officers' Death Benefits Act states:
In any case in which the Bureau of Justice
Assistance (hereinafter in this subchapter
referred to as the "Bureau") determines, under
regulations issued pursuant to this subchapter,
that a public safety officer has died as
3la
the direct and proximate result of a personal
injury sustained in the line of duty, the Bureau
shall pay a benefit of $ 250,000, adjusted in
accordance with subsection (h) of this section. . .
4
42 U.S.C. § 3796(a) (2000 & Supp. II 2002) (emphasis
added).
The PSOBA defines "public safety officer" as "an
individual serving a public agency in an official capacity,
with or without compensation, as a law enforcement officer,
as a firefighter, as a chaplain, or as a member of a rescue
squad or ambulance crew[.]|" 42 U.S.C. § 3796b(8)(A)
(redesignated in 2006 as § 3796b(9)(A)) (emphasis added).
Whether a fourteen-year old “apprentice firefighter" is a
"firefighter" for purposes of the PSOBA appears not to have
been addressed in this circuit. Neither party has brought
relevant case authority to the court's attention, nor has the
court identified directly applicable case law.
The first step in statutory construction is "to determine
whether the language at issue has a plain and unambiguous
meaning with regard to the particular dispute in the case."
Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450, 122 S.
Ct. 941, 151 L. Ed. 2d 908 (2002) (quoting Robinson v. Shell
Oil Co., 519 U.S. 337, 340, 117 S. Ct. 843, 136 L. Ed. 2d 808
(1997)). The inquiry ceases "if the statutory language is
unambiguous and ‘the statutory scheme is coherent and
consistent.” Id. (quoting Robinson v. Shell Oil Co., 519 U.S.
at 340). in interpreting the plain meaning of the statute, it is
the court's duty, if possible, to give meaning to every clause
and word of the statute. See TRW Inc. v. Andrews, 534 U.S.
19, 31, 122 S. Ct. 44], 151 L. Ed. 2d 339 (2001) ("It is ‘a
cardinal principle of statutory construction’ that ‘a statute
ought, upon the whole, to be so construed that, if it can be
32a
prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.) (quoting Duncan v. Walker, 533 U.S.
167, 173, 121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001));
Williams v. Taylor, 529 U.S. 362, 404, 120 S. Ct. 1495, 146
L. Ed. 2d 389 (2000) (describing as a "cardinal principle of
statutory construction” the rule that every clause and word of
a statute must be given effect if possible). Similarly, the court
must avoid an interpretation of a clause or word which
renders other provisions of the statute inconsistent,
meaningless, or superfluous. See Duncan v. Walker, 533 U.S.
167, 121 S. Ct. 2120, 150 L. Ed. 2d 251, (noting that courts
should not treat statutory terms as "surplusage"). "When two
statutes are capable of co-existence, it is the duty of the
courts . . . to regard each as effective." Radzanower v. Touche
Ross & Co., 426 U.S. 148, 155, 96 S. Ct. 1989, 48 L. Ed. 2d
540 (1976); see also Hanlin v. United States, 214 F.3d 1319,
1321 (Fed.Cir.), reh'g denied (2000).
When the statute provides a clear answer, the court's
analysis is at an end. See Barnhart v. Sigmon Coal Co., 534
U.S. at 450. Thus, when the "statute's language is plain, 'the
sole function of the courts is to enforce it according to its
terms."" Johnson v. United States, 529 U.S. 694, 723, 120 S.
Ct. 1795, 146 L. Ed. 2d 727 (2000) (quoting United States v.
Ron Pair Enters., 489 U.S. 235, 241, 109 S. Ct. 1026, 103 L.
Ed. 2d 290 (1989) (quoting Caminetti v. United States, 242
U.S. 470, 485, 37 S. Ct. 192, 61 L. Ed. 442 (1917))). In such
instances, the court should not consider "conflicting agency
pronouncements" or "extrinsic evidence of a contrary intent."
Weddel v. Sec'y of Dep't of Health and Human Servs., 23
F.3d 388, 391 (Fed.Cir.) (citing Estate of Cowart v. Nicklos
Drilling Co., 505 U.S. 469, 476, 112 S. Ct. 2589, 120 L. Ed.
2d 379 (1992) (noting that courts must not defer to agency
interpretation contrary to the intent of Congress evidenced by
unambiguous language) and Darby v. Cisneros, 509 U.S.
137, 147, 113 S. Ct. 2539, 125 L. Ed. 2d 113 (1993)), reh'g
denied, en banc suggestion declined (1994). "Only language
33a
that meets the constitutional requirements of bicameralism
and presentment has true legal authority." Weddel v. Sec'y of
Dep't of Health and Human Servs., 23 F.3d at 391 (citing INS
v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317
(1983)). "Courts have no authority to enforce [a] principle
gleaned solely from legislative history that has no statutory
reference point." Shannon v. United States, 512 U.S. 573,
583-84, 114 S. Ct. 2419, 129 L. Ed. 2d 459 (1994) (quoting
Int'l Bhd. of Elec. Workers, Local Union No. 474 v. NLRB,
814 F.2d 697, 712, 259 U.S. App. D.C. 168 (D.C. Cir.
1987)). Consequently, if a statute is plain and unequivocal on
its face, there is usually no need to resort to the legislative
history underlying the statute. See Whitfield v. United States,
543 U.S. 209, 125 S. Ct. 687, 160 L. Ed. 2d 611 (2005)
("Because the meaning of [the statute's] text is plain and
unambiguous, we need not accept petitioners’ invitation to
consider the legislative history . . . ."); Chamberlain Group,
Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1196 (Fed. Cir.
2004) ("Though 'we do not resort to legislative history to
cloud a statutory text that is clear,’ Ratzlaf v. United States,
510 U.S. 135, 147-48, 114 S. Ct. 655, 126 L. Ed. 2d 615
(1994), we nevertheless recognize that 'words are inexact
tools at best, and hence it is essential that we place the words
of a statute in their proper context by resort to the legislative
history."") (quoting Tidewater Oil Co. v. United States, 409
U.S. 151, 157, 93 S. Ct. 408, 34 L. Ed. 2d 375 (1972)), reh'g
and reh'g en banc denied (2004).
"If Congress has explicitly left a gap for the agency to
fill, there is an express delegation of authority to the agency
to elucidate a specific provision of the statute by regulation.
Such legislative regulations are given controlling weight
unless they are arbitrary, capricious, or manifestly contrary to
the statute." Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837,
844, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (footnote omitted),
reh'g denied, 468 U.S. 1227, 105 S. Ct. 28, 105 S. Ct. 29, 82
L. Ed. 2d 921 (1984). The Supreme Court also has written
34a
that “administrative implementation of a particular statutory
provision qualifies for Chevron deference when it appears
that Congress delegated authority to the agency generally to
make rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in the
exercise of that authority." United States v. Mead Corp., 533
U.S. 218, 226-27, 12] S. Ct. 2164, 150 L. Ed. 2d 292 (2001)
(quoted in Yanco v. United States, 258 F.3d at 1362). The
United States Court of Appeals for the Federal Circuit has
found that "Congress has expressly delegated to BJA the task
of promulgating regulations to implement the [Public Safety
Officers' Death] Benefits Act." Yanco v. United States, 238
F.3d at 1362 (citing 42 U.S.C. § 3796c(a)). The regulations
at issue in the case currently before the court are set forth in
28 C.F.R. §§ 32.2(c), (j) and (n) and were promulgated in
exercise of that authority. See 28 C.F.R. § 32.1 (1997).
"BJA's implementing regulations thus qualify for Chevron
deference." Yanco v. United States, 258 F.3d at 1362.
Chevron deference requires that a court ask two questions
when reviewing an agency's construction of a statute: First,
the court must ask "whether Congress has directly spoken to
the precise question at issue." Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. at 842-43. If congressional
intent is clear, then the court looks no further, "for the court,
as well as the agency, must give effect to the unambiguously
expressed intent of Congress." /d. at 842-43 (footnote
omitted). However, if Congress is silent, or if it has left the
statute "ambiguous with respect to the specific issue," the
court must ask the second question: “whether the agency's
answer is based on a permissible construction of the statute."
Id. at 843 (footnotes omitted).
With respect to an agency's statutory construction: "The
court need not conclude that the agency construction was the
only one it permissibly could have adopted to uphold the
construction, or even the reading the court would have
reached if the question had arisen in a judicial proceeding.”
35a
Id. at 843 n.11 (citations omitted). However, "deference does
not mean acquiescence." Presley v. Etowah County Comm'n,
502 U.S. 491, 508, 112 S. Ct. 820, 117 L. Ed. 2d 51 (1991).
"The judiciary is the final authority on issues of statutory
construction and must reject administrative constructions
which are contrary to clear congressional intent. If a court,
employing traditional tools of statutory construction,
ascertains that Congress had an intention on the precise
question at issue, that intention is the law and must be given
effect." Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. at 843 n.9 (citations omitted). Thus, this court
should defer to an agency's construction of the statute if it
"reflects a plausible construction of the plain language of the
statute and does not otherwise conflict with Congress’
express intent." Rust v. Sullivan, 500 U.S. 173, 184, 111 S.
Ct. 1759, 114 L. Ed. 2d 233 (1991) (citing Chevron U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. at 842-43).
The converse is likewise true that the court should only defer
to the agency's interpretation if it is not in conflict with the
congressional intent.
Plaintiff asserts that because Christopher was an officially
recognized member of the Brookhaven, Pennsylvania,
Volunteer Fire Department, he should be considered a public
safety officer and "firefighter" pursuant to the statute for all
purposes, including death benefits. Defendant responds that
being a member of a "legally organized fire department" is a
necessary, but not a sufficient condition to being a
"firefighter." According to the defendant, to be eligible for
death benefits, Christopher also must fit the statutory
definition of "firefighter" according to the plain meaning of
the word, and the definition of "line of duty" in the
implementing regulations.
The PSOBA definition of the term "firefighter" states:
"firefighter" "includes an individual serving as an officially
recognized or designated member of a legally organized
volunteer fire department..." ° 42 U.S.C. § 3796b(4)
36a
(emphasis added). It is a broad and encompassing definition
included in a death benefits statute intended to compensate
grieving family members, in small part, for their loss. The
BJA regulations written to implement the PSOBA similarly
state that: "Firefighter includes any individual serving as an
officially-recognized or designated member of a legally-
organized volunteer fire department." 28 C.F.R. § 32.2(n)
(2002) (emphasis added). The only difference between the
statute and the implementing regulation in the definition of
"firefighter" is a one-word change from “an individual
serving as an Officially recognized or designated member of a
legally organized volunteer fire department" in the statute to
"any individual serving as an officially recognized or
designated member of a legally organized volunteer fire
department" in the regulations. Neither the statute nor the
regulations apply age or duty requirements, or add other
limitations to the definition of the term firefighter.
The key words chosen by the legislators in the PSOBA
definition of "firefighter" are "includes an individual." The
drafters of the statute did not choose to employ such terms as
"means" or "is defined as." The PSOBA also defines the term
"chaplain" to "“include{] any individual serving as an
officially recognized or designated member of a legally
organized volunteer fire department ... ." 42 US.C. $
3796b(2). In contrast, other definitions in 42 U.S.C. § 3796b
consciously do use the word "means" to define the terms
"child," “law enforcement officer," “member of a rescue
squad or ambulance crew," and “public safety officer." 42
U.S.C. §§ 3796b(2)-(9). Therefore, when Congress chose to
use the word "includes" rather than a term such as “means" or
"is defined as" in reference to "firefighter" and "chaplain,"
Congress signaled a broader, more expansive interpretation
aS appropriate to understand the terms "firefighter" and
"chaplain." The terms "firefighter" and "chaplain" are
appropriately considered umbrella terms for those officially
recognized or designated as individuals serving in an
37a
organized fire department. See 42 U.S.C. § 3796b(2),(4). The
absence of a more specific definition in section 3796b of the
term "firefighter" indicates that Christopher's age and more
limited duties within the Brookhaven, Pennsylvania,
Volunteer Fire Department do not eliminate his
categorization as a "firefighter" under the _ statute.
Furthermore, the age restrictions on duties allowed to be
performed are imported into the case, as discussed more fully
below, from the Pennsylvania Child Labor Law, not the
federal statute. Moreover, the Pennsylvania statute sets no
limitations on categorization of an individual as a firefighter,
but only addresses limits on tasks which a minor
"firefighter," is permitted to perform in Pennsylvania. In fact,
the Pennsylvania statute, which sets those limitations,
specifically begins the statutory section with the words
"Minors who are members of a volunteer fire company." 43
PA. CONS. STAT. ANN. § 48.3 (West 2006).
Since Congress chose not to define "firefighter" more
specifically, the court addresses the ordinary, plain meaning
of the word. Williams v. Taylor, 529 U.S. 420, 431, 120 S. Ct.
1479, 146 L. Ed. 2d 435 (2000) ("We give the words of a
statute their ‘ordinary, contemporary, common meaning,'
absent an indication Congress intended them to bear some
different import." (quoting Walters v. Metro. Ed. Enters.,
Inc., 519 U.S. 202, 207, 117 S. Ct. 660, 136 L. Ed. 2d 644
(1997) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P'ship, 507 U.S. 380, 388, 113 S. Ct. 1489, 123 L. Ed. 2d
74 (1993))). Defendant argues that the word "firefighter"
means a "person who fights fires," CITING MERRIAM-
WEBSTER'S COLLEGIATE DICTIONARY (10th ed.
2002). Although there are undoubtedly many somewhat
different dictionary definitions of the word "firefighter," even
the defendant's own dictionary choice would not exclude
Christopher as one who "fights fires."
The language of the PSOBA clearly does not limit death
benefits eligibility according to duties performed at the scene
38a
of a fire; nor do the legislative history of the Act or the words
of the regulations. None of these indicate that engaging in
front-line activities is a component of "firefighting" or
"suppression of fires." In 1975, when the statute was first
drafted to include firefighters, the PSOBA was originally
introduced as House Resolution 365, which defined "eligible
firefighter" as one who was "actually and directly engaged in
fighting a fire[.]" H.R. 365, 94th Cong. (1975). The Senate
version of the bill, however, did not include this requirement,
but described a "fireman" as "including a person serving as
an officially recognized or designated member of a legally
organized volunteer fire department{.}" S. 2572, 94th Cong.
(1975). Any language requiring a firefighter to be authorized
to engage directly in the fighting of fires was omitted from
the final version of the Act. ° In fact, the Joint Explanatory
Statement of the Conference Committee specifically chose to
follow the Senate's description of "fireman" and authorized
payment “for all line of duty deaths" and not just those
sustained "while actuaily and directly engaged in fighting
fires or in other activities determined by the Law
Enforcement Assistance Administration to be potentially
dangerous." H.R. REP. NO. 94-1501, at 5-6 (1976). The
words of the statute and the regulations are easily understood
without adding duty-specific limitations, which, contrary to
any congressionally expressed intent, would eliminate some
eligible "firefighters" from death benefits. Defendant,
therefore, fails to demonstrate that in the legislation passed,
Congress intended to limit coverage to firefighters who
directly place themselves in danger when fighting fires. In
fact, in the defendant's response brief, the defendant even
concedes at one point that the proper test for coverage is the
person's authority to act as a firefighter, law enforcement
officer, or chaplain, not whether the person is involved in an
inherently dangerous activity. '
Additionally, and of interest, in 2002, Congress amended
the PSOBA to include chaplains as public safety officers. ®
39a
Pub. L. No. 107-196, 116 Stat. 719 (2002). The term
"chaplain" under the PSOBA "includes * any individual
serving as an officially recognized or designated member of a
legally organized volunteer fire department or legally
organized police department, or an officially recognized or
designated public employee of a legally organized fire or
police department who was responding to a fire, rescue, or
police emergency." 42 U.S.C. § 3796b(2). Moreover, the
plain meaning of the word "chaplain" does not require such
an individual to fight fires or enforce laws. '° By including
chaplains as public safety officers along with firefighters and
law enforcement officers, Congress expanded the eligibility
for PSOBA benefits to include a larger group of individuals,
such as chaplains, who clearly are not directly engaged in the
suppression of fires and crime prevention activities. Since
chaplains need not be authorized to engage in firefighting or
crime preventing activities, or place themselves in danger
while at a fire or crime scene, or even participate in
firefighter or anti-crime activities, allowing recovery only to
individuals authorized to engage in specifically hazardous
activity (thereby excluding Christopher) impermissibly
restricts the scope of the statute. Moreover, inasmuch as the
BJA's regulation, 28 C.F.R. § 32.2(c) (2002), requires public
safety officers to have their "primary function" as fire
suppression or enforcement of the criminal law, the
regulation is internally inconsistent, and _ therefore
disregarded, since the primary function of a chaplain is
neither suppression of fires or law enforcement and yet
chaplains are still entitled by statute to recover.
Although there are many tasks involved in firefighting,
defendant's counsel tries to narrow the definition of the term
"firefighter." Consistent with the conclusions of the BJA,
defendant's counsel again asserts that in order to be a
"firefighter," one must have the authority to engage in the
“suppression of fires," which the defendant argues excluded
Christopher due to the restrictions on his activities based on
40a
Pennsylvania law. In order for Christopher to be an
apprentice firefighter, his activities had to conform with the
Brookhaven Fire Company's Rules and Regulations for
Apprentice Firefighters. Those rules and regulation state that
“apprentice firefighters must abide by all rules and
regulations, standard operating procedures of the Brookhaven
Fire Company and the Child Labor Laws of the State of
Pennsylvania." The Pennsylvania's Child Labor Law, with
respect to minors and volunteer fire companies, states:
(a Minors who are members of a volunteer fire
company and volunteer forest fire crew may
participate in training and fire-fighting activities
as follows:
(1 Drivers of trucks, ambulances or other
official fire vehicles must be eighteen years of
age.
(2 Minors sixteen and seventeen years of age
who have successfully completed a course of
training equal to the standards for basic fire-
fighting established by the Department of
Education and the Department of Environmental
Resources, may engage in fire-fighting activities
provided that such minors are under the direct
supervision and control of the fire chief, an
experienced line officer or a designated forest
fire warden.
(3) No person under eighteen years of age
shall be permitted to (1) operate an aerial ladder,
aerial platform or hydraulic jack, (ii) use rubber
electrical gloves, insulated wire gloves, insulated
wire cutters, life nets or acetylene cutting units,
(111) operate the pumps of any fire vehicle while
at the scene of a fire, or (iv) enter a burning
structure.
4la
(b) The activities of minors under sixteen
years of age shall be limited to:
(1) Training.
(2) First aid.
(3) Clean-up service at the scene of a fire,
outside the structure, after the fire has been
declared by the fire official in charge to be under
control.
(4) Coffee wagon and food services.
(c) In no case, however, shall minors under
sixteen years of age be permitted to:
(1) Operate high pressure hose lines, except
during training activities;
(2) Ascend ladders, except during training
activities; or
(3) Enter a burning structure.
(d) All other activities by minors who are
members of a volunteer fire company or a
volunteer forest fire crewman shall be
permissible unless specifically prohibited by this
act.
43 PA. CONS. STAT. ANN. § 48.3 (West 2006) (footnote
omitted; emphasis added).
Initially, as the court noted above, section (a) of the
Pennsylvania statute begins with the phrase, "minors who are
members of a volunteer fire company," thereby
acknowledging as a given that minors can be "members of a
volunteer fire company." Defendant argues, however, that "as
a fourteen-year old, under Pennsylvania law, he [Christopher]
could not engage in any firefighting activities; his activities
424
were limited to training, first aid, clean-up, and food services.
These activities cannot be considered firefighting activities,
as firefighting is understood in its ordinary and common
usage.” (emphasis in original). Interestingly, the description
of Christopher's firefighting duties offered by the BJA in its
initial denial of the claimant's original claim is more
expansive than the definition the defendant's counsel now
offers to this court. The BJA's initial denial stated:
The activities permitted by the position
description for apprentice volunteer firefighters
submitted by the fire company allowed minors
14 and 15 years old (including Apprentice VFF
Kangas) to participate in training activities,
provide first aid care to victims at emergency
scenes, and assist with clean-up activities such as
rolling hose, putting away portable tools, and
removing debris under supervision of the officer
in charge and outside of fire buildings and
collapse zones. He was allowed to provide
canteen (food service) activities and participate
in a support capacity for searches, rescues, wild
fires, hazardous materials incidents, and water
supply operations.
Similarly, the definition of Christopher's firefighting
duties included in the BJA Hearing Officer's report also is
broader than the defendant's counsel's current description to
this court.
4. Junior firefighter Kangas was permitted . . .
to ride to fires on the fire truck. He was also
allowed to perform various activities at the scene
of the fire, including off-loading equipment,
attaching non-pressurized hoses to a water
source, administering first aid to victims,
assisting with the canteen for the line
43a
firefighters, cleaning up (rolling hoses) and
removing of debris under supervision of the fire
commander. He could provide support at
hazardous materials scenes but he could not
participate in dealing with the hazardous
materials. He could also participate in search and
rescue operations.
Defendant also cites to three other definitions of
firefighter in unrelated federal statutes and regulations in
support of its position. First, defendant cites to the Fair Labor
Standards Act (FLSA) of 1938 which defines "Employee in
fire protection activities" as "an employee, including a
firefighter . . . who- is trained in fire suppression, has the
legal authority and responsibility to engage in fire
suppression, and is employed by a fire department . . .; and
(2) is engaged in the prevention, control, and extinguishment
of fires or response to emergency situations where life,
property, or the environment is at risk." 29 U.S.C. § 203(y)
(2000). As discussed above, Christopher had the legal
authority to be part of a team that engaged in fire
suppression. Moreover, this FLSA definition is inapposite as
it deals only with employees of public agencies and
specifically "does not include any individual who volunteers
to perform services for a public agency... ." 29 U.S.C. §
203(e)(4)(A). Next, defendant cites to the Federal Employees
Retirement System which defines firefighter as "an employee
occupying a rigorous position, whose primary duties are to
perform work directly connected with the control and
extinguishment of fires... .£" 5 CF.R. § 842.802 (2005).
Again, this definition deals with employees, not volunteers,
and similarly defines firefighters for purposes of pay and
retirement benefits eligibility. Moreover, regardless of
definitions chosen by Congress in the FLSA or in a federal
retirement statute, the PSOBA definition of the term
"firefighter" is not limited by duties to be performed.
44a
Finally, defendant cites to the Federal Emergency
Management Agency (FEMA), Department of Homeland
Security Fire Prevention and Control Assistance to
Firefighters Grant Program, which defines "active firefighter"
as "a member of a fire department or organization in good
standing that is qualified to respond to and extinguish fires or
perform other fire department emergency services and has
actively participated in such activities during the past year."
44 C.F.R. § 152.2 (2005). The agency opinions issued by the
BJA agree that Christopher was a member of a fire
department in good standing and was qualified to perform
certain fire department response and other emergency
services. This third alternative definition applicable to
FEMA, contrary to defendant's position, appears to include
Christopher as a firefighter based on his status as a "member
of a fire department in good standing that is qualified to . . .
perform other fire department emergency services."
Aside from defendant's bald assertion that Christopher's
responsibilities "cannot be considered firefighting activities,
as firefighting is understood in its ordinary and common
usage,” defendant fails to demonstrate how Christopher's
authorized duties do not constitute important functions of
"fire suppression" by the Brookhaven, Pennsylvania,
Volunteer Fire Department team. Nothing in the dictionary
definition or statutory language requires a "firefighter" to be
authorized to enter burning buildings, or describes how
deeply and how soon an individual must penetrate a fire
scene to qualify as a firefighter.
As a member of the Brookhaven, Pennsylvania,
Volunteer Fire Department, Christopher was authorized to
attend the scene of a fire. Although he was not authorized to
hold a high pressure hose or run into a burning building,
consistent with the Pennsylvania statute, he was authorized to
perform a variety of critical firefighting functions at the scene
of uncontrolled fires. As testified to by the Brookhaven Fire
Chief, without the assistance of volunteer firefighters like
45a
Christopher, those firefighters entering uncontrolled, burning
buildings would not have had the same resources available at
the scene of a fire. Christopher was part of a team dedicated
to the suppression of fires and control of fire scenes. That
team depended on the contributions from each member of the
team, including junior firefighters, so that the other members
of the team also could carry out their responsibilities. As the
BJA's predecessor, the Law Enforcement Assistance
Administration, pointed out in 1977 when the implementing
regulations of the PSOBA were in their promulgation phase:
"Even those officers performing desk assignments are
primarily involved, even though indirectly, in . .
firefighting." 42 Fed. Reg. No. 88 at 23252 (May 6, 1977). "
The same principle operates in any corporation or
government agency, including the military.
In conclusion, Christopher was a recognized apprentice
"firefighter" of the Brookhaven Volunteer Fire Department.
He was authorized to attend the scene of a fire, off-load
equipment, attach non-pressurized hoses to water sources,
administer first-aid to victims, assist in food services, roll
hoses after a fire, remove debris, provide support at
hazardous material scenes, and participate in search and
rescue operations. Christopher engaged in activities involved
in the "suppression of fires." He was a "firefighter" in the
ordinary sense of the word. Therefore, this court concludes
that the BJA decisions, which did not recognize Christopher
as a "firefighter," were unreasonable, arbitrary and
capricious. The BJA's interpretation was unreasonably and
impermissibly restrictive in light of the language of the
PSOBA.
Defendant also argues that because Christopher was not
authorized to engage in fire suppressivn, he did not die in the
"line of duty." The PSOBA states that to be eligible for death
benefits under the statute, a public safety officer must have
died “as the direct and proximate result of a personal injury
sustained in the line of duty{.]" 42 U.S.C. § 3796(a). The
46a
PSOBA does not contain a definition for the term “line of
duty" nor does it contain the words "suppression of fires."
The House and Senate Conference Committee prior to the
enactment of the PSOBA concluded that "the ‘line of duty’ is
a well established concept and that it is appropriate to extend
coverage te all acts performed by the public safety officer in
the discharge of those duties which are required of him in his
capacity as a law enforcement officer or as a fireman." H.R.
REP. NO. 94-1501, at 6 (1976) (emphasis added).
The implementing regulations to the PSOBA define "line
of duty" as follows:
(c) Line of duty means:
(1) Any action which an officer whose primary
function is crime control or _ reduction,
enforcement of the criminal law, or suppression
of fires is obligated or authorized by rule,
regulations, condition of employment or service,
or law to perform, including those social,
ceremonial, or athletic functions to which the
officer is assigned, or for which the officer is
compensated, by the public agency he serves.
For other officers, "line of duty" means any
action the officer is so obligated or authorized to
perform in the course of controlling or reducing
crime, enforcing the criminal law, or suppressing
fires[ .]
28 C.F.R. § 32.2(c)(1) (2002) (emphasis added).
As described above, as a junior firefighter, Christopher's
primary function was to be part of the team that engaged in
"the suppression of fires." He was authorized to mide in fire
engines to the scene of a fire. At the scene of a fire,
Christopher was tasked with laying out and attaching fire
hoses to water sources, maintaining equipment when not in
47a
use, and providing a variety of other services at the scene of a
fire. His "primary function,” like those directing the hoses on
the fires or rushing into burning buildings, was "the
suppression" of fires. The court concludes that the decisions
by the BJA which impermissibly limited the definition of
"line of duty" under the statute and, therefore, denied death
benefits to the plaintiff, were arbitrary and capricious and
founded on an unreasonably restrictive reading of the words
of the PSOBA and the implementing regulations. In sum,
Christopher met the PSOBA and regulatory tests for death
benefits eligibility as a "firefighter" who died in the "line of
duty."
Finally, the fact that Christopher was en route to a fire
and not at the scene does not preclude plaintiff from
recovery. The court in Davis v. United States, 46 Fed. Cl. 421
(2000) adopted an "on duty" standard for recovery, id. at 426,
and held that a police officer did not have to be "acting to
intervene in a law enforcement capacity" to be "in the line of
duty" under the PSOBA, id. at 427. In Davis v. United States,
the officer had left work early before his shift ended and was
struck by another car which was fleeing another police
officer. Id. at 422. In the instant case, Christopher was
responding to and on his way to a fire alert when he was
struck by a car. Christopher was "in the line of duty" while
responding to a fire.
CONCLUSION
For the foregoing reasons, the court finds that pursuant to
section 3796(a) of the Public Safety Officers’ Death Benefits
Act and the implementing regulations, Christopher Kangas
died "in the line of duty" and was a "firefighter" authorized to
be at a fire scene and perform duties as part of a team
engaged in "the suppression of fires" at the time of his death.
Therefore, the BJA's decision to deny benefits to Christopher
Kangas was an arbitrary exercise of its authority. Plaintiff's
motion for judgment on the administrative record is
48a
GRANTED, and defendant's cross-motion is DENIED. The
Clerk of the Court is directed to enter JUDGMENT in the
amount of $ 250,000.00, adjusted in accordance with 42
U.S.C. § 3796(h), in favor of the plaintiff.
IT IS SO ORDERED.
MARIAN BLANK HORN
Judge
Footnotes
fnl1The PSOBA was amended in 2006 and the definition for
"public safety officer" is now found at 42 U.S.C.A. §
3796b(9) (West, Westlaw through 2006 amendments).
fn2The omitted language here read "in violation of
Pennsylvania statute (43 P.S. § 48.3)." However, the
Pennsylvania Bureau of Labor Law Compliance provided a
clarification of the Pennsylvania Child Labor Law (CLL) in a
letter which states: "It is our opinion that the CLL law does
not prohibit 14- and 15- year -olds from riding fire apparatus
to the scene of a fire or other emergency." Letter from
Pennsylvania's Bureau of Labor Law Compliance to Edward
Mann, Pennsylvania State Fire Commissioner (April 21,
2003) (on file with the court). The BJA subsequently
amended its findings in its final determination to be
consistent with the Pennsylvania state opinion.
fn3The PSOBA defines firefighter as “including an
individual serving as an officially recognized or designated
member of a legally organized fire department...." 42 U.S.C.
§ 3796b(3) (2000 & Supp. II 2002
fn4Section 3796(h) provides that: "On October 1 of each
fiscal year beginning after June 1, 1988, the Bureau shall
adjust the level of the benefit payable immediately before
49a
such October | under subsection (a) of this section, to reflect
the annual percentage change in the Consumer Price Index
for All Urban Consumers, published by the Bureau of Labor
Statistics, occurring in the l-year period ending on June |
immediately preceding such October 1." 42 U.S.C. § 3796(h)
(2000 & Supp. II 2002).
fnSThe definition of firefighter in 2002 also included "an
officially recognized or designated public employee member
of a rescue squad or ambulance crew." 42 U.S.C. § 3796b(4)
(2000 & Supp. II 2002). Congress removed this language by
amendment in 2006 and added section 3796b(7), which
defined "member of a rescue squad or ambulance crew"
separately from a firefighter. Pub. L. No. 109-162, 119 Stat.
2960 (2006).
fn6As noted above, the final version of the Public Safety
Officers’ Death Benefits Act of 1976 states: "fireman’
includes a person serving as an Officially recognized or
designated member of a legally organized volunteer fire
department[.]" H.R. 366, 94th Cong. (1976) (enacted).
fn7The defendant's counsel wrote: "Again, Mrs. Amber-
Messick errs by failing to recognize that the proper test for
coverage under the Act is the person's authority to act as a
firefighter, or law enforcement officer, or chaplain, etc., not
whether the person is engaging in an inherently dangerous
activity." (emphasis in original).
fn8Congress also included members of rescue squads and
ambulance crews as public safety officers in 1986. Pub. L.
99-591, 100 Stat. 3341 (1986).
fn9As discussed above, when Congress has used the term
"includes" to describe a public safety officer, it did not
specifically define the term.
50a
fnl0The Merriam-Webster Online Dictionary defines
chaplain as "1: a clergyman in charge of a chapel [;] 2: a
clergyman officially attached to a branch of the military, to
an institution, or to a family or court{;] 3: a person chosen to
conduct religious exercises (as at a meeting of a club or
society)[;] 4: or a clergyman appointed to assist a bishop (as
at a liturgical function)." MERRIAM-WEBSTER ONLINE
DICTIONARY, available at http://www.m-
w.com/dictionary/chaplain (as of March 24, 2006).
fnilThe preamble to the rule, however, does contain
somewhat inconsistent language: "Because LEAA believes
the broad concept of making coverage dependant on the
officer's authority should be applied to firefighters as well,
the proposed definition of "firefighter" has been amended to
include ‘all fire service personnel authorized to engage in the
suppression of fires, including any individual serving as an
officially-recognized or designated member of a legally-
organized volunteer fire department’ (amendment
emphasized).” Id. (citing 28 C.F.R. § 32.2(j) (1977)). As
noted above, however, the concept of "suppression of fires"
was removed from the regulatory definition of "firefighter"
prior to the time of Christopher's death and has not been
reincorporated in the regulations except in the definition of
"line of duty."
5la
2006-5087
UNITED STATES COURT OF APPEALS FOR THE
FEDERAL CIRCUIT
JULIE AMBER-MESSICK, Administratrix of the Estate of
Christopher Kangas, deceased,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant-Appellant.
May 11, 2007, Decided
May 11, 2007, Filed
NOTICE: THIS DECISION WAS ISSUED AS
UNPUBLISHED OR NONPRECEDENTIAL AND MAY
NOT BE CITED AS PRECEDENT. PLEASE REFER TO
THE RULES OF THE FEDERAL CIRCUIT COURT OF
APPEALS FOR RULES GOVERNING CITATION TO
UNPUBLISHED OR NONPRECEDENTIAL OPINIONS
OR ORDERS.
COUNSEL: For Julie Amber Messick, Administratrix of
the Estate of Christopher Kangas, Plaintiff-Appellee: DALY,
FRANK W., PRINCIPAL ATTORNEY, Daly, Gorbey,
Media, PA.
For United States, Defendant-Appellant: KIM, NANCY,
PRINCIPAL ATTORNEY, Department of Justice,
Washington, DC; MADAN, RAFAEL A., HUGHES, TODD
52a
M., COHEN, DAVID M., BRADY, GREGORY C., OF
COUNSEL ATTORNEY, Department of Justice,
Washington, DC.
JUDGES: Before Newman, Circuit Judge, Schall, Circuit
Judge, and Bryson, Circuit Judge.
OPINION
ORDER
A petition for rehearing having been filed by the Appellee,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for rehearing be, and the same
hereby is, DENIED.
The mandate of the court will issue on June 8, 2007.
53a
4/28/05
Mr. Frank W. Daly
Dly, Gorbey & O'Brien, P.C,
110 West Front Street
Post Office Box 199
Media, Pennsylvania 19063-0199
Regarding: Apprentice Volunteer Firefighter Christopher
Kangas; PSOB Claim No. 2002-117
Dear Mr. Daly:
This is to notify you that following a careful review
of the case file and the appeal record, the Director of the
Office of Justice Programs’ Bureau of Justice Assistance
(BJA), has upheld the determinations made by the Public
Safety Officers’ Benefits (PSOB) Office and Hearing Officer
Douglas C. Dodge, that this claim is ineligible for benefits
pursuant to the PSOB Act (42 U.S.C. 3796). A copy of the
Director's determination is enclosed.
Consistent with Section. 32.24(1)(2) of PSOB's
implementing regulations (28 CFR 32), the Director's
decision represents the Agency's final determination.
For additional questions you might have, please call
the PSOB Office at 202/307-0635 or toll free at 1/888-744-
6513).
Sincerely,
Hope D. Janke
Director
Public Safety Officers’ Benefits Office
Date: April 28, 2005
From: Domingo S. Herraiz Director
54a
Bureau of Justice Assistance
Subject: Christopher Kangas
PSOB Claim # 02-117
Appeal to the Director
Final Agency Decision
In response to the appeal of Julie Amber-Messick (the
"Claimant"), in connection with the above-referenced claim,
to me as Director of the Bureau of Justice Assistance
("BJA"), as authorized under 28 C.F.R. § 32.24(i), I have
reviewed the record, including the decisions of the Hearing
Officer and the Public Safety Officers’ Benefits ("PSOB")
Office, and the Claimant's comments on the record dated
June 29, 2004, and August 9, 2004. Based on this review, it is
my determination that the claim must be denied.
The death of young Christopher Kangas, the
Claimant's son, undeniably is a tragedy. The deep sympathy
that [ feel for the loss of this fine young teenager, however,
does not allow me to deviate from my duty as administrator
of the PSOB program and award his family the sizable PSOB
death benefit (almost $260,000), when young Christopher's
death is not covered under the program's authorizing statute.
Simply stated, although young Christopher may have been a
member of the firefighting community in some sense, he was
not a "firefighter" within the meaning of the PSOB Act,
because he had no legal authority to fight fires.
Background
On May 4, 2002, Christopher, a 14-year old "junior
(apprentice) volunteer firefighter" with the Brookhaven,
Pennsylvania, Volunteer Fire Department, was stick by an
automobile when he ran a stop sign while riding his bicycle,
helmetless, to the fire station in response to an alarm,
Christopher died on May 5, 2002, of injuries sustained in this
55a
accident.
In June, 2002, the Claimant filed the instant claim pursuant to
the PSOB Act, 42 U.S.C. § 3796(a). On September 16, 2002,
the PSOB Office denied the claim, based on the legal
conclusion that Christopher was not a "public safety officer"
within the meaning of the PSOB Act, 42 U.S.C. § 3796b(8).
The Claimant appealed the denial on March 4, 2003, and the
appeal was assigned to a PSOB Hearing Officer on
September 26, 2003. A hearing was held on the appeal on
January 22, 2004, in Brookhaven, Pennsylvania. The Hearing
Officer's Determination, dated April 26, 2004, denied the
claim on the grounds that Christopher was not a "firefighter"
within the meaning of the PSOB Act definition of "public
safety officer,” because he had no authority to engage in fire-
fighting activities, a fundamental eligibility requirement
under the PSOB Act.
Claimant requested a final agency review by the
Director on June 29, 2004. Accompanying that request were
Claimant's comments on the record and arguments on the
relevant issues. Claimant submitted an additional argument
on August 9, 2004. Claimant presented no new evidence in
support of her request.
Findings of Fact
1. On May 4, 2002, 14-year-old Christopher Kangas was
struck by an automobile when he ran a stop sign (entering a
"T" intersection without stopping) while riding his bicycle,
helmetless, to the fire station in response to an alarm.
Christopher died on May 5, 2002, of injuries sustained in this
accident.
2 On the date of has fatal injury, Christopher was a
"junior (apprentice) volunteer firefighter" with the
Brookhaven, Pennsylvania, Volunteer Fire Department
56a
("V FD").
3. Christopher had been an active junior apprentice with
the Brookhaven VFD since May 15, 2001, when he was
voted in by the Brookhaven VFD Association. He had
received at least 58.5 hours of training at the time of his
death. He had been issued gear and went on numerous fire
calls, within the limits prescribed by the apprenticeship
program.
4. At all relevant times hereto, Pennsylvania law
provided as fellows: (a) Minors who are members of a
volunteer fire company.. . may participate in training and
tire-fighting activities as follows:
(1) Drivers of trucks, ambulances or other official fire
vehicles must be eighteen years of age.
(2) Minors sixteen and seventeen years of age, who have
successfully completed a course of training equal to the
standards of basic fire-fighting established by the Department
of Education and the Department of Environmental
Resources, may engage in fire-fighting activities provided
that such minors are under the direct supervision and control
of the fire chief, an experienced line officer or a designated
forest fire warden.
(3) No perser under eighteen years of age shall be
permitted to (1) operate an aerial ladder, aerial platform or
hydraulic jack, (ii) use rubber electrical gloves, insulated
wire gloves, insulated wire cutters, life nets or acetylene
cutting units, (iii) operate the pumps of any fire vehicle while
at the scene of a fire, or (iv) enter a burning structure.
(b) The activities of minors under sixteen years of age,
shall be limited to
(1) Training.
S7a
(2) First aid.
(3) Clean-up services at the scene of the fire, outside the
structure, after the fire has been declared by the fire official
in charge to be under control.
(4) Coffee wagon and food services.
(c) In no case, however, shall minors under sixteen years
of age be permitted to:
(1) Operate high pressure hose lines, except during training
activities;
(2) Ascend ladders, except during training activities; or
(3) Enter a burning structure.
Thus, as a 14-year old minor, Christopher's Junior apprentice
activities were strictly limited to those specified in subsection
(b) (none of which involves fire suppression), and he was not
legally authorized - in fact, was expressly forbidden by law -
to engage in fire-suppression activities.’
The Public Safety Officers' Benefits Act
Pursuant to the PSOB Act,° "{i]n any case in which
the Bureau of Justice Assistance...determines, under
regulations issued pursuant to [the Act] that a public safety
officer has died as the direct and proximate result of a
personal injury sustained in the line of duty, the Bureau shall
pay" a death benefit in the amount established by law. 42
U.S.C § 3796(a). The Act defines “public safety officer" as
"an individual serving a public agency in an official capacity,
with or without compensation, . . , as a firefighter ...... Id. §
3796b(S)(A). In sharp contrast, the Act, properly speaking,
does not define the term, "firefighter"; under the Act, rather,
the term is given its plain, ordinary meaning,"* with the sole
specification that it “includes an individual serving as an
officially recognized or designated member of a legally
organized volunteer fire department." Id. § 3796b(4).
58a
To qualify under the PSOB, Act, a public safety
officer's death must have been "the direct and proximate
result of a personal injury sustained in the line of duty." Id. §
3796(a). The PSOB implementing regulations define "line of
reg a any "action which an officer whose primary function
. Suppression of fires is obligated or authorized by rule,
sain condition of employment or service, or law to
perform. . . by the public agency he serves. For other officers
‘line of duty' means any action the officer is so obligated or
authorized to perform in the course of. . . suppressing fires."”
Conclusions of Law
. Christopher Kangas was not a "firefighter" within the
meaning of the PSOB Act and its implementing regulations. I
agree with the Claimant that the term "firefighter,” as used in
the PSOB Act, is not ambiguous. As indicated above, the Act
leaves the term with its ordinary meaning; i.e., as a plain
reference to someone who is authorized to "fight fires."
Nothing in the Act provides the slightest suggestion of
departure from the common and usual understanding of the
term® which understanding is confirmed in the implementing
regulations, at 28 C.F.R. § 32.2(c) (quoted above), and in the
uniform practice of the PSOB program since its inception in
1976. Because Pennsylvania law (discussed above) is
unmistakbly clear that a 14-year old Junior apprentice has no
legal authority to engage in fire-fighting or fire-suppression
activity, I find that Christopher was not a "firefighter" within
the meaning of the PSOB Act.’
2. Even if Christopher were a "firefighter" within the
meaning of the PSOB Act (which he was not), his tragic
death did not occur in the "line of duty," as defined in the
PSOB regulations, because Pennsylvania law (discussed
above) did not obligate or authorize him to engage in fire-
fighting or fire-suppression activity.
3. Claimant suggests that I should defer to the views of
59a
the Hon. Wayne Curbs Weldon, a distinguished Member of
the U.S. House of Representatives, offered in his testimony at
the hearing and in a press release he issued on June 18, 2004,
after the Hearing Officer's decision, The Congressman
provided his thoughts as to the legislative intent in
connection with the Act, which was enacted nine years
before he was elected to the House of Representatives, and,
in particular, he opined that the legislative intention was that
Christopher's death be covered by the P SOB program.
Although | am appreciative of the Congressman's having
taken time from his busy schedule to offer his assistance in
this matter, I cannot accede to Claimant's suggestion. Even
assuming statutory construction to be appropriate in this
matter (which it is not), it is a fundamental axiom of statutory
interpretation that post-enactment statements of legislators a
to legislative intent- under any circumstances -- are of limited
legal value In determining the meaning and legal effect of
statutes® I see no warrant for statutory construction here, and,
in any event, | am unpersuaded by the construction offered.
3. Finally, Claimant alleges that the Hearing Officer had
"ex parte impermissible communication with the Department
of Justice," which created "an appearance of impropriety"
and "may have tainted [the Hearing Officers] objectivity." It
appears that the "communication" referred to is expressly
authorized by the PSOB implementing regulations, 28 CFR
part 32, app. b.3., which provides that "[a]n attorney from the
[OJP] Office of the General Counsel (OGC who has not
participated in the consideration of the claim will provide
legal advice to the hearing officer. The hearing officer is
encouraged to solicit the advice of the assigned OGC
attorney on all questions of law." The Hearing Officer
explained to me in the attached letter, dated January 26,
2005, that his only communication regarding his decision in
this case were with the OGC legal advisor duly assigned
under this provision and he stated emphatically that these
communications did not improperly influence his
60a
determination that the claim should he denied. Consequently,
I find that there was no improper ex parte communication.
Decision
Based on the foregoing findings of fact and
conclusions of law,’ it is my determination that Christopher
Kangas was not a public safety officer or firefighter within
the meaning of the PSOB Act and its implementing
regulations and, therefore , that the claim is denied.
Footnotes
Fnl 43 Pa. Cons. Stat. § 48.3(a) to (c). The obvious
prophylactic policy of this statute is to protect young
apprentices (particularly those under sixteen years of age)
from the risks and dangers inherent in fire-fighting and their
own lack of maturity, experience, and judgment. It is,
therefore, unsurprising; that none of the provisions
authorizing any actual firefighting activity - as opposed to the
activity described in subsection (b) - applies to fourteen-year-
olds.
Fn2The Hearing Officer's determination cited to
Pennsylvania Administrative Code Sec. 11.67(5)(i)7 which
provides that "[m]inors 14 and 15 years of age may not do
the following; (1) Ride an official vehicle to the scene of a
fire. (ii) Participate in any fire fighting activities." Based on
this statute, the Hearing Officer opined that the Brookhaven
VFD had allowed Christopher to ride on fire apparatus in
violation of Pennsylvania law. Since the date of the
Hearing Officer's determination, however, Claimant, through
her attorney, and the Brookhaven Fire Chief have provided
me with a letter dated April 21, 2003, from the Bureau of
Labor Law Compliance to the Pennsylvania State Fire
Commissioner stating that ". . . the Department [of Labor and
Industry has taken the position that 34 PA. Code § 11.67(5),
6la
promulgated in 1970, has been superseded by section 7.3 of
the CLL [PA Child Labor Law, codified as 43 Pa. Cons. Stat.
§ 48.3]." The letter concluded that 14- and 15-year olds are
allowed to ride to fires on emergency apparatus. Accordingly,
the record is amended to correct the Hearing Officer's
findings on this point.
fn3 42 U.S.C. §§ 3796 io 3796c-1.
fn4 See, e.g., 2A Norman J. Singer, Sutherland Statutes and
Statutory Construction §§ 47.67, .27 (6th ed. 2000)
("Sutherland') when the terms of a statute are not specifically
defined, the words must be given their ordinary and popularly
understood meanings, but the words must also he construed
with reference to the purposes and objects of the statute);
Glass v. Kemper Corp., 920 F.Supp. 928 (N.D. Ill. 1996),
aff'd 133 F.3d 999 (7" Cir. 1998)
fn5 28 C.F.R. § 32 .2 (c)(1)(emphases added). Of course, this
regulation., which was promulgated pursuant to at least four
express statutory grants of regulatory authority, 42 U.S.C.
Secs. 3796(a) (b), 3796c(a), and 1796d-3(a), "qualifies for
Chevron deference," see, e.g., Yanco v. United States, 258
F.3d 1356, 1362 (2001), to the extent that the rule of Chevron
U.S.A. v. Natural Resources Defense Council, 467 U.S. 867
(1984), may he implicated by any relevant ambiguity in the
statute.
Fn6 The use of "includes" in 42 U.S.C. § 3796b(4) merely
ensures that volunteers who otherwise meet the definition of
"firefighter" are not excluded from coverage under the PSOB
Act; it cannot properly be used to gut the term, "firefighter,"
of its plain meaning - someone legally authorized to "fight
fires." See, e.g., 2A Sutherland § 47.07; Federal Election
Comm'n v. Massachusetts Citizens for Life, "769 F.2d 13,17
(1st Cir. 1985), aff'd, 479 U.S. 238 (1986) (discussing the
term "includes" in a different statutory context).
62a
Additionally, to the extent that 42 U.S.C. § 3796b(4) might
arguably be understood to create some ambiguity (which it
does not), such ambiguity would be resolved by 28 C.F.R. §
32.2(c)(1), which expressly defines the relevant "line of duty”
activity for firefighters in terms of the obligation or authority
to "suppress[] fires," and by reference to other statutes and
regulations that deal with like subject matter, see 2A
Sutherland § 47.16; 2B id. §§ 51.01 to .03 (2000), and also -
commonsensically - relate the concept of firefighting to the
authority to fight fires. Pursuant to 29 U.S.C. § 203(7)(y), for
example, "Employee in fire protection activities’ means an
employee, including a firefighter, . . . who- (1) is trained in
fire suppression, has the legal authority and responsibility to
engage in fire suppression ... ; and (2) is engaged in the
prevention, control, and extinguishment of fires or response
to emergency situations where life, property, or the
environment is at risk." Similarly, 44 C.F..<. § 152.2 defines
"Active firefighter [a]s a member of a fire department or
organization in good standing that is qualified to respond to
and extinguish fires or perform other fire department
emergency services ."
Fn7 Claimant notes that the Commonwealth of Pennsylvania,
Bureau of Worker's Compensation, paid a "Public Safety
Worker Death Benefit" in the amount of $59,669 to the
Claimant as a result of Christopher's death. This fact is not
dispositive as to Claimant's eligibility to receive the PSOB
benefit, because, as the court observed in Tafoya v. United
States, 8 Cl. Ct. 256, 263 (1985) (citing North v. United
States, 555 F.Supp. 382, 387 (Cl. Ct. 1982)), "[a]lthough
differing Workmen's Compensation statutes in a multiplicity
of states would under their quite different standards often
reach a contrary result, they do not correspond to the specific
standards mandated by the Public Safety Officers’ Benefits
Act of 1976." Indeed, the provision in the Pennsylvania
Workers Compensation statute that provides coverage for
"minor volunteer firefighters" appears to be unique, see
63a
Hearing testimony, p. 75; and there is no special or
corresponding provision in the PSOB Act affording coverage
for apprentices who have no fire-fighting or fire-suppression
authority.
Fn8 See, e.g., 2A Sutherland § 48.20; Sullivan v.
Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J.,
concurring); Pierce v. Underwood, 487 U.S. 552 (1988);
United States v. Clark, 445 U.S. 23 (1984).
fn9 In view of my conclusions of law, above (particularly the
first, second, and third), it is unnecessary for me to determine
whether 42 U.S.C. § 3796a(1) or (3); see 28 C.F.R. §§ 32.6
and .7, which would preclude payment of the claim if
applicable, may be implicated by the circumstances of
Christopher's death, described above (particularly in my first
finding of fact). See, e.g., Brookhaven Police Department
Investigation Report (May 4, 2002); Commonwealth of
Pennsylvania Police Accident Report (May 5, 2002);
National Institute of Occupational Safety and Health Report
No. F2002-21 (November 20, 2002) (exhibit 25 at the
Claimant's hearing); see also Federal Emergency
Management Administration pamphlet (exhibit 24 at
Claimant's hearing).
Domingo S. Herraiz
Director
Bureau of Justice Assistance
U.S. Department of Justice Washington, D. C.
Re: Christopher Kangas
PSOB Claim # 02-11-7
Dear Director Herraiz:
I have been informed that the claimant in the above-
referenced PSOB claim has alleged improper ex parte
communications or involvement by Department of
Justice/Bureau of Justice Assistance (DOJ/BJA) officials in
my determination as hearing officer of the claimant's appeal
under 28 CFR 32.24. By his letter, I wish to state
unconditionally that my only communications in this matter
with DOJ/BJA officials concerning my determination was
with the attorney in the Office of the General Counsel (OGC)
who was assigned to provide nee legal advice pursuant to the
authority in section b.3 of the Appendix to the PSOB
regulations at 28 CFR Part 32. My communication with this
OCC legal advisor regarding the applicable law and
formatting questions did not taint my objectivity and did not
influence my determination that the claimant was not eligible
for the PSOB death benefit.
Sincerely,
Douglas C. Dodge
PSOB Hearing Officer
Date: 1/26/05
65a
APPEAL DETERMINATION FOR CHRISTOPHER
KANGAS
PSOB CASE NO: 02-117.
INTRODUCTION
On May 4, 2002, Christopher Kangas was riding his bike to
the Brookhaven Pennsylvania Volunteer Fire Department
(VFD) in response to a fire alarm call. He was struck by a car
and subsequently died on May 5, 2002, of the injuries from
this accident. At the time of this death, Christopher was 15-
years old and he was are apprentice (junior) volunteer
firefighter with the Brookhaven VFD.
A Public Safety Officers' Benefits claim was filed with the
Public Safety Officers’ Benefits Office, Bureau of Justice
Assistance (BJA), by Mrs. Julie Amber-Messick, junior
firefighter Kangas' mother, sometime after the accident
(there is no date on the form). An initial determination
memorandum was competed by the PSOB Office and a letter
denying benefits was sent to Mrs. Amber-Messick on
September 16, 2002. She appealed the denial of benefits on
March 4, 2003. The case was assigned to this hearing officer
on September 26, 2003. I was notified that the claimant
would be represented by a lawyer on November 6, 2003 and
a hearing on his appeal was conducted in Brookhaven,
Pennsylvania un January 22, 2004.
The PSOB Office denied benefits to Mrs. Amber-Messick,
stating:
"(T]he evidence presented shows that Apprentice VFF
Christopher Nicholas Kangas was not a public safety officer
with the Brook haven fire Company No. | in an official
capacity as a firefighter. The activities permitted by the
position description for apprentice volunteer firefighters
swimnited by the fire company allowed minor 14 and 15
years ol (including Apprentice VFF Kangas) to participate
66a
in training activities, provide first aid care to victims at
emergency scenes, and assist with clean-up activities such as
rolling hose, putting away portable tools, and removing
debris under the supervision of the office in charge and
outside the fire buildings and collapse zones. He was allowed
to provide canteen (food service) activities and participate in
a support capacity for searches, rescues, wild fires, hazardous
materials incidents, and water supply operations. However,
Apprentice VFF Kangas was not permitted to operate
equipment or assist with fire suppression at the fire scenes or
enter hazardous atmospheres. Apprentice VFF was a trainee
but did not possess authority to act as an official firefighter."
(Initial Determination Memo)
At the request of the claimant, a hearing was held at the
Brookhaven Fire Department on January 22, 2004. The
claimant presented seven witnesses and provided several
documents in support of the appeal of the denial of her claim
for PSOB benefits
FOCAL ISSUE
Was junior firefighter Christopher Kangas a "firefighter"
within the meaning of the PSOB Act and regulations at the
time of his death?
FINDINGS OF FACT
1. On May 4, 2002, Christopher Kangas was responding to a
fire call on his bicycle and he was struck by a car. He
subsequently died from the injuries sustained is this accident.
2. On that date Kangas was a junior (apprentice) firefighter
with the Brookhaven, Pennsylvania VFD.
3. Junior firefighter Kangas had been an active member of
the volunteer fire company since May 15, 2001, when he was
67a
voted in by the Brookhaven FVD Association. He had
received at least 58.5 hours of training at the time of his
death. He had been issued gear and went on numerous fire
calls. |
4. Junior firefighter Kangas was permitted, in violation of
Pennsylvania statute (43 P.S. § 48.3), to ride to fires on the
fire truck. He was also allowed to perform various activities
at the scene of the fire, including off loading equipment,
attaching non-pressurized hoses to a water source,
administering first aid to victims, assisting with the canteen
for the line firefighters, cleaning up (rolling hoses) and
removing of debris under supervision of the fire commander.
He could provide support at hazardous materials scenes but
he could not participate in dealing with the hazardous
materials. He could also participate in search and rescue
operations.
5. Junior Firefighter Kangas was not permitted by
Pennsylvania statute (43 P.S. § 48.3) and fire company
regulations to operate heavy. equipment, pressure hoses of
any kind, ascend ladders, enter burning buildings or fire or
hazardous materials zones; all of which are fundamental fm
suppression activities.
FINDINGS OF LAW
When it established the Public Safety Officers’ Death
Benefits program, Congress expressly provided that the
deceased person must be a "public safety officer" and die as
the result of a "personal injury" while in the "line of duty" in
order for his/her surviving relatives to receive the financial
payment provided for. In the PSOB Act. 42 U.S.C. §3796,
Pub.L.No. 90-351, as amended. ""Public safety officer" is
defined in the statue as "an individual serving a public
agency in an official capacity, with or without compensation,
as a law enforcement officer, as a firefighter, as a chaplain, or
68a
as a member of a rescue squad or ambulance crew, 42
U.S.C. § 3696 (b)(8). (emphasis added)
A firefighter is defined in the PSOB Act as "including an
individual serving as an Officially recognized designated
member of a legally organized volunteer fire department and
an officially recognized or designated public employee
member of a rescue squad or ambulance crew." 42 U.S.C. §
369(b)(4). The regulations implementing the PSOB Act use
the same language in defining a public safety officer and a
firefighter. 28 CFR 32.2 (j) and (n) respectively. However, at
one point the regulations elaborated on the definition of
firefighter by including The phrase "engaged in the
suppression of fires." For unknown reasons, this phrase was
omitted from the regulations when the regulations were
revised in 1985. There is no evidence in the record explaining
why this language was omitted. There is no evidence whether
the omission was by mistake or by design in order to make
the regulation match exactly the definition in the Act.
Importantly, at no time, as claimant asserts; did the PSOB
Act use the phrase "engaged in the suppression of fires" to
define firefighter.
Under Pennsylvania law, junior firefighters like Christopher
Kangas are permitted to engage in certain activities at fire
scenes and there are other activities in which their
participation is prohibited. The Pennsylvania Administrative
Code, 34 PA ADC § 11.67 (5) expressly prohibits 14 and 15
year olds from riding to fire scenes in official vehicles and
participating in any ‘fire fighting,, activity. The provision
prohibiting junior firefighters from riding to fires in official
vehicles was violated by the Brookhaven VFD, which,
according to hearing testimony, routinely allowed 14 and 15
year old junior firefighters to ride to fires on fire trucks, if
there was room.
Pennsylvania statue 43 P.S. §48.3 lists the activities that
69a
junior firefighters (under age 16) are permitted to do: "The
activities of minors under sixteen years of age shall be
limited to: (1) training; (2) first aid; (3) clean-up service at
the scene of a fire, outside the structure, after the fire has
been declared by the fire official in charge to be under
control; and (4) coffee wagon and food services.
DETERMINATION
This is indeed a tragic case in which a dedicated young man
lost his life while serving his community. Junior firefighter
Kangas clearly was an exemplary young man and junior
firefighter. Despite my personal empathy and I am certain,
the empathy and sadness of the Bureau of Justice Assistance
as well, the reality is that his survivors are not entitled to’ the
PSOB death benefit of over $260,000 unless they can
establish that he was a "firefighter" as defined in the PSOB
Act and regulations. My legal conclusion is that he was not a
"firefighter."
Claimant presented several arguments in support of her view
that junior firefighter Christopher Kangas was a firefighter
within the meaning of the PSOB Act and implementing
regulations. These arguments are discussed below.
Claimant argues that junior firefighter Christopher Kangas
was a firefighter within the meaning of the statute and
regulations. (Transcript, p. 17 and claimant exhibit No. 3),
Junior firefighter Kangas was an active member and had been
in this capacity since he was voted in on May 15, 2001.
(Transcript, p.18).
Claimant contends that the phrase “engaged in the
suppression of fires" was removed from the statute. Claimant
argues, therefore, that young Kangas did not have to be
authorized to fight fires in order to be a firefighter. This is
incorrect. This language was never a part of the definition of
firefighter in the PSOB Act. This language was, however, in
70a
the regulations implementing the PSOB Act until they were
revised in 1955. As noted above, this language was omitted
from the PSOB regulations for unknown reasons.
The claimant also argues that the requirement in the
regulations that claims in which there is reasonable doubt as
to the claimant's eligibility should be decided in favor of the
claimant, (28 CFR 32.4) This regulation states: "The Bureau
shall resolve any reasonable doubt arising from the
circumstances of the officer's death or permanent and total
disability in favor of the death or disability benefit." While I
have not found case law defining "circumstances," it is clear
that this regulation applies solely to factual issues related to
the death or disability and not to the application of the law,
Additionally, claimant raises the argument that the junior
firefighter program is a major recruitment mechanism for
volunteer fire departments. As such it meets the intent of
Congress to provide the Public Safety Officers’ Benefits as a
means to recruit individuals to the fire services This
argument was supported by the testimony of several
witnesses: Chief Rob Montella of the Brookhaven VFD; and
the State Fire Commissioner, Edward Mann; and
Congressman Curtis Weldon.
Finally, the Claimant argues that the Bureau of Justice
Assistance should give weight to the fact that Mrs. Amber-
Messick was paid under the Pennsylvania Public Safety
Worker Death Benefit Act of 1976. The State of
Pennsylvania’s Workers Compensation law specifically
makes minor volunteer firefighters eligible for Workers
Compensation.. (Transcript, p 75). While the Bureau of
Justice Assistance may consider the fact that worker's
compensation benefits were paid, this is ,not dispositive as to
her eligibility to receive the PSOB benefit. The purposes and
eligibility requirements of the PSOB Act are quite different
from the workers compensation act which covers scope of
work. See . Tafoya v. United States, 8 S.Ct. 256, 263 (1985),
Tila
citing North v. United States, I C1.Ct. 93, 98, 555 F.Supp.
382, 387 (1982). Unlike the Pennsylvania's Workers
Compensation statute, the PSOB Act has no special provision
affording coverage for junior firefighters who have no fire
suppression authority.
While these arguments may merit some consideration, the
fundamental issue here is what is meant by "firefighter" in
the PSQB Act and regulations. To determine this, it is
necessary to examine Congressional intent; The plain
language meaning of firefighter is a "person who fights
fires." (Webster’s Dictionary, 14 Ed.) When terms used in a
statute are undefined they are given their ordinary meaning.
Asgrow Seed Co. v. Winterboer, 513 U.S. 179 (1995) (the
Court relied on the dictionary definition of "marketing").
This plain meaning of "firefighter" was apparently so
obvious that Congress did not bother to add any further
definition. The original House Bill for the Firefighters
Benefits Act of 1975 (H.R 365), which later evolved into the
PSOB Act of 1976, included in its definition of " eligible
firefighter’ an individual ", . , actually and directly engaged in
fighting a fire; or otherwise engaged in performance of his
duty where the activity is determined by the Administration
[LEAA) to be potentially dangerous to the firefighter," See
Cong. Rec. H 3741, Apr. 30, 1976. "Since firefighting has
been determined to be one of the most dangerous professions,
it is the intention of the committee that coverage should
extend to all hazardous activities performed by firemen when
they are actually and directly engaged in fighting fires" Cong.
Rec. H 3738, Apr. 30, 1976.
Because the intent of Congress seems indisputable, there can
be no question that the term "firefighter" must be given its
plain meaning, i.e., one who is authorized to fight fires. One
must be authorized to actively engage in the suppression, of
fires to be a "firefighter" under the Act.
72a
In addition to the Act's legislative history, the "line of duty"
definition in the PSOB regulations clearly supports the
conclusion that one must be authorized to fight or suppress
fires to be a "firefighter" under the Act. The PSOB regulation
at 28 CFR 32(c)(1) provides that "line of duty" means "[A]ny
action which an officer whose primary function is crime
control or reduction, enforcement of the criminal law,
or...suppression of fires is authorized...to perform..."
(Emphasis added) This definition demonstrates that one
cannot be acting in the “line of duty" unless he or she is
authorized to be engaged in the suppression of fires--in other
words, to be a firefighter.
The Commentary accompanying the PSOB regulations as
issued by LEAA long ago in 1977 corroborates this
conclusion that "suppression of fires" is an integral element
of what constitutes a "firefighter" under the Act. The
Commentary provides: an-individual is covered by the Act if
they are performing an activity, or in a category of personnel
listed in the definitions of “law enforcement officer" or "fire
fighter, subject to the definition of "line of duty."
Commentary, 42 F.R. 23252, May 6, 1977.
Even assuming arguendo that the meaning of "firefighter" is
not plain and clear, an agency's interpretation of the law
where the law is not clear or it is ambiguous will be sustained
if it is a permissible interpretation. In Chacon v. US, 48 E.
3rd 509 (1995) the United States Court of Appeals Federal
Circuit,, was faced with an issue with regard to the
interpretation of the law It ,stated that under the circumstance
it would have to use the analytic framework from the
Supreme Court in Chevron US.A. Inc. v. Natural Resources
512 Defense Council Inc. 467 U.S. 837 (1984)
When a court reviews an agency's constriction of the statute
which it administers, it is Congress with two questions. First,
always, is the question whether Congress has directly spoken
73a
to the precise question at issue. 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. If, however, the court determines
Congress has not directly addressed the precise question at
issue, the court does not simply impose its own construction
of the statute, as would be necessary in the absence of an
administrative interpretation Rather, if the statute is silent or
ambiguous with respect to the specific issue, thc question for
the court is whether the agency's answer is based on a
permissible Construction of the statute. Id at 842-
843,144S.Ct. at 2782 (foatnotes omitted). Importantly, "[t]he
court need not conclude that the agency contruction was the
only one it permissibly could have adopted" in order to be
required to affirm. Id. At 843 n,11,.104 S.Ct. at 2782 n.11.
Where, as here, *‘the legislative delegation to an agency on a
particular question is implicit rather than explicit,"we must
affirm any reasonable interpretation made by the
administrator of [the] agency. Id at 844,104 S.Ct. at 2782
(footnote omitted). Accord Newman v Teigeler. 898 F.2nd
1574. 1576 (Fed.Cir.) 1990; Beneficial Corp and Subsidiaries
v. United Stares, 814 F2nd 1570, 1574 (Fed.Cir.)1987.
The Bureau of Justice Assistance bas construed the term
"firefighter" to mean a person with full authority to engage
in, f ighting and suppression of frees, including the authority
to enter burning buildings, put out car fires and handle
hazardous materials. Congress implicitly delegated authority
to interpret the PSOB Act to the Bureau of Justice .
Assistance (BJA) and this interpretation of the meaning of
"firefighter" is reasonable, permissible, and within the
authority of BJA to apply in claims involving firefighters. If
the term should be read as ambiguous, this interpretation of
"firefighter" meets the Chevron test discussed in Chacon of a
"reasonable _ interpretation made by the [agency]
administrator" and should be sustained by the courts. See
Chacon. supra, at 511-512.
74a
BJA's Interpretation of the term "firefighter" has always been
given its plain common, usual meaning - a person ‘who fights
fires. Both the legislative history as outlined above and
definitions of "firefighter" found in other Federal statutes and
regulations are consistent with the BJA interpretation of the
term. (Sec 29 U.S.C. § 203(7), Fair Labor Standards;, 5 CFR
Sec. 42.802, Feral Employees Retirement System; and 44
CFR 152.2, Federal Emergency Management Agency.)
The Pennsylvania Statue and regulation are very clear that 14
and 15 year old junior firefighter are prohibited from being
directly involved in the suppression of fires. These junior
firefighters do not have the authority engage in fire
suppression activities which is a fundamental eligibility
requirement under the PSOB Act, Therefore., the BJA denial
of benefits to the claimant in this case must be sustained.
75a
SEP 16 2002
U.S. Department of Justice
Office of Justice Programs
Bureau of Justice Assistance
Julie Amber-Messick
5200 Hilltop Drive BB9
Brookhaven, PA 19015
Dear Ms. Amber-Messick:
A comprehensive review has been conducted
. regarding the claim for death benefits you filed with the
Public Safety Officers’ Benefits (PSOB) Office following the
death of your son, Apprentice Volunteer Firefighter (VFF)
Christopher Nicholas Kangas. Unfortunately, based on this
review, which included independent analyses by legal and/or
medical experts of all information submitted in support of
your claim, it has been determined that the claim had to be
denied. While the PSOB Act (42 U.S.C. 3796) requires this
determination, such action does not diminish VFF Kangas'
distinguished record of public service.
We have enclosed a copy of the official determination
which specifies the legal basis far denial. In addition, copies
of the law governing the benefits program and the regulations
which guide its application are enclosed for your information.
Section 32.242) of the PSOB_ implementing
regulations (28 CFR 32) sets forth appeal procedures. Should
you choose this course of action, your request must be
submitted within 30 days of receipt of this letter. Appeals are
most often submitted based on the availability of new
relevant evidence that might support a finding of eligibility.
We regret the loss of VFF Christopher Kangas and
extend our best wishes to you and your family.
If you need any assistance, please contact this office
at (202) 307-0635 or 1-888-744-6513.
Sincerely,
76a
Marion C. Winfield
Division Director
Office of Benefits
Tla
U.S. Department of Justice
Office of Justice Programs
Bureau of Justice Assistance
PUBLIC SAFETY OFFICERS' BENEFTS ACT CLAIM
DETERNMATION
Case Number: 2002-117
Full Name: Christopher Nicholas Kangas Title: Apprentice
Volunteer Firefighter (VFF) §§Department/Agency:
Brookhaven Fire Company No. | Location: Brookhaven,
Pennsylvania 14015
Case Summary: On May 4, 2002, Apprentice Volunteer
Firefighter Christopher Nicholas Kangas was at home, when
he heard the Brookhaven fire alarm sound. While riding his
bicycle to the station, he was struck by a car. Apprentice VFF
Kangas was thrown onto the hood of the vehicle and struck
his head on the windshield. He was seriously injured with
head trauma and was transported to the local trauma unit.
Apprentice VFF Kangas was later flown to the Children's
Hospital in Philadelphia, where he was pronounced dead on
May 5, 2002 from multiple injuries.
Determination: Based, on the Report of Public Safety
Officer's Death submitted by Brookhaven Fire Company No.
1, the Claim for Depth Benefits submitted by his mother,
Julie Amber-Messick and an analysis of the evidence
presented in this case, the Bureau of Justice Assistance (BJA)
has determined that the death of Apprentice VFF Christopher
Nicholas Kangas, is not covered under the PSOB Act (42
U.S.C., Section 4796 et.seq. (as amended)) and its
implementing regulations, Apprentice Kangas was not a
public safety officer as defined under the PSOB Act.
Public safety officer is defined as "any individual sewing a
public agency in an official capacity, with a public agency in
78a
an official capacity, with or without compensation, as a law
enforcement officer, firefighter, rescue squad member or
ambulance crew member." 42 U.S.C., Section 3746b(8).
The evidence presented shows that Apprentice VFF
Christopher Nicholas Kangas was not a public safety officer
with Brookhaven Fire Company No. | in, an official capacity
as a firefighter. The activities permitted by the position
description for apprentice volunteer firefighters submitted by
the fire company allowed minors 14 and 15 years old
(including Apprentice VFF Kangas) to participate in training
activities, provide first aid care to victims at emergency
scenes and assist with clean-up activities such as rolling hose,
putting away portable tools, removing debris under
supervision of the officer in charge and outside of fire
buildings and collapse zones. He was allowed to provide
canteen (food service) activities and participle in a support
capacity for searches, rescues, wild fires, hazardous materials
incidents, and water supply operations. However, Apprentice
VFF Kangas was not permitted to operate equipment or assist
with fire suppression at fire scenes or enter hazardous
atmospheres. Apprentice VFF Kangas was a trainee but did
not possess authority to act as an official firefighter.
Accordingly, based on the evidence presented in this
case, BJA has determined that Apprentice VFF Christopher
Nicholas Kangas does not qualify as a public safety officer as
required by the PSOB Act. Therefore, Apprentice VFF
Kangas’ survivor is ineligible for the benefit authorized be
paid throught the PSOB Program.
79a
Q. Could you give us an estimate of what
percentage of firemen start out as junior firefighters?
A. Approximately -- I mean, in our department
alone I can tell you probably three-quarters of our department
started out as junior firefighters and every line officer in our
fire department was a junior firefighter when they started
from chiefs to captains to lieutenants to engineers to safety
officers and every single person on there was a Junior
firefighter.
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