[Congressional Record Volume 154, Number 148 (Wednesday, September 17, 2008)]
[Extensions of Remarks]
[Page E1829]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page E1829]]
SUPPORTING PROPOSED REGULATIONS TO THE PUBLIC SAFETY OFFICERS' BENEFIT 
                                PROGRAM

                                 ______
                                 

                        HON. DONALD A. MANZULLO

                              of illinois

                    in the house of representatives

                     Wednesday, September 17, 2008

  Mr. MANZULLO. Madam Speaker, I rise to recognize the Department of 
Justice for recently proposed regulations relating to the Public Safety 
Officers' Benefit Program. The program provides death benefits for the 
survivors of public safety officers who die in the line of duty; and 
disability benefits to those officers who have been permanently and 
totally disabled by a catastrophic personal injury sustained in the 
line of duty, and thereby prevented from performing any gainful work; 
and also educational assistance benefits for surviving family members. 
Among other things, these proposed regulations will help to shore up 
the program against fraud and abuse by clarifying the requirements for 
certifications and their effect. I strongly support the mission of the 
Public Safety Officers' Benefit Program, and I commend the Department 
of Justice for keeping the regulations up to date and for taking action 
to ensure that the funds available go to those public safety officers 
(and their survivors) that deserve them. I would like to take a moment 
to comment on the statutory predicate for some of these regulations.
  As the Ninth Circuit Court of Appeals recognized, Public Law 94-430 
creates a ``limited program,'' whose principal purpose is to help 
ensure that the families of ``public'' officers be protected from 
financial calamity that is likely to result from the death or permanent 
and total disability, in the line of duty, of the primary money-maker. 
The statute (including the two parallel 2001 benefits statutes, which 
do not, strictly speaking, amend the Public Law or directly affect the 
precise program it creates) enshrines various and competing policy 
considerations and purposes that it proposes to achieve by particular 
means that have been worked out, over the last 30 years and more, in 
the legislative process. Because no law pursues its ends at all costs, 
the limitations expressly or implicitly contained in its text and 
structure are no less an articulation of its purposes (and the intent, 
goals, and policies that inform it), than its substantive grants of 
authority are. Benefits under these statutes--charges on the public 
fisc--are to be granted fairly, but not speculatively, or beyond what 
the statutory language unequivocally requires and unequivocally 
expresses, or beyond the letter of the difficult judgments reached in 
the legislative process and clearly reflected in the statutory text. It 
is precisely to enable the Department to balance and harmonize these 
various considerations into a single workable and coherent program that 
the law confers extraordinary administrative and interpretive authority 
on the Department. For example, at least seven distinct statutory 
provisions--42 U.S.C. 3796c(a) (twice), 3796(a) & (b), 3796d-3(a) & 
(b), 3782(a)--expressly authorize the Department to issue program 
regulations and policies here, and the law expressly provides that 
those regulations and policies are determinative of conflict of law 
issues relating to the program, and that responsibility for making 
final determinations shall rest with the Department. Under the Public 
Law (as under the parallel 2001 statutes), the very right to a death or 
disability benefit, which the Supreme Court correctly has recognized as 
a legal ``gratuity'' (and thus not ``remedial'' in nature), is not 
freestanding, but contingent, rather, upon a determination by the 
Department.
  When Public Law 94-430 was enacted in 1976, only the Circuit Courts 
or the old Court of Claims (of similar rank) heard appeals from final 
rulings of the Department of Justice thereunder, which meant that only 
one level of judicial review ordinarily was available to claimants and 
the Department, alike. In 1982 (when the appellate functions of the 
Court of Claims generally were merged into the newly-created Court of 
Appeals for the Federal Circuit), jurisdiction over these appeals--
apparently as a result of an oversight--was not transferred to the 
Federal Circuit, and thus (unlike the case with other administrative 
appeals, see, e.g., 28 U.S.C. 1295, 1296), by default, lay in what is 
now the Court of Federal Claims, established under Article I of the 
Constitution, rather than Article III, with an additional level of 
appeals available in the Federal Circuit. Although there are notable 
and distinguished exceptions, over the past decade or so, many of the 
Federal Claims Court's rulings on these appeals applied the law 
incorrectly, sometimes disregarding the express terms of the relevant 
statute or implementing regulations, or binding and applicable Federal 
Circuit/Court of Claims precedent, and even Supreme Court precedent. To 
order the administering agency to pay on a claim when payment is not 
clearly warranted by the programmatic statutes and their implementing 
regulations and administrative interpretive superstructure is as much 
an affront to the law as for the agency not to pay when payment is 
clearly required by those statutes and regulations.
  Overall, the 16 opinions issued to date by the Federal Circuit (and 
its predecessor) under the statute indicate a proper understanding of 
the law and the application of the Chevron doctrine to the Department's 
determinations. (All but two of these opinions were affirmances of the 
administering agency; in Demutiis, the agency was affirmed on all 
points but a very minor one (relating to application of a (now-
repealed) regulation), and the 1980 holding in Harold, which reversed 
the Department's determination, itself soon thereafter was rendered 
moot, as a practical matter, by a statutory amendment consonant with 
the Department's position.) For these reasons, the corrective proviso 
in the consolidated appropriations legislation, entrusting judicial 
appeals under Public Law 94-430 (and the two 2001 statutes) exclusively 
to the Federal Circuit (and returning to a single level of judicial 
review, as originally intended) should further the purposes of the 
program, reduce litigation costs for claimants and the taxpayers, and 
serve the interests of justice.

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