[Congressional Record Volume 154, Number 149 (Thursday, September 18, 2008)]
[Extensions of Remarks]
[Pages E1833-E1834]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




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 9th Circuit Court of Appeals recognized,\1\ 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. Sec. Sec. 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'' \2\ (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. Sec. Sec. 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,\3\ over the past decade or so, many of 
the Federal Claims Court's rulings on these appeals applied the law 
incorrectly,\4\ sometimes disregarding the express terms of the 
relevant statute \5\ or implementing regulations,\6\ or binding and 
applicable Federal Circuit/Court of Claims precedent,\7\ and even 
Supreme Court precedent.\8\ 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 sixteen opinions issued to date by the Federal Circuit 
(and its predecessor) under the statute \9\ 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),\10\ 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

[[Page E1834]]

2001 statutes) exclusively to the Federal Circuit \11\ (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.


                                ENDNOTES

       1. Russell, 637 F.2d 1261 (1980); Holstine, No. 80-7477 
     (Aug. 4, 1982), 688 F.2d 846 (table).
       2. Rose v. Arkansas State Police, 479 U.S. 1, 4 (1986) 
     (quoting legislative history).
       3. E.g., Dawson, 75 Fed. Cl. 53 (2007); LaBare, 72 Fed. Cl. 
     111 (2006); Cook, No. 05-1050C (Jun. 15, 2006); Porter, 64 
     Fed. Cl. 143 (2005); One Feather, 61 Fed. Cl. 619 (2004); 
     Davison, No. 99-361C, (Apr. 19, 2002); Brister, No. 01-180C 
     (Mar. 27, 2002); Yanco, 45 Fed. Cl. 782 (2000); Ramos-Velez, 
     No. 93-588C (Jan. 31, 1995); Chacon, 32 Fed. Cl. 684 (1995); 
     Nease, No. 91-1518C (Mar. 29, 1993); see also Cartwright, 16 
     Cl. Ct. 238 (1989); Durco, 14 Cl. Ct. 423 (1988); Wydra, No. 
     764-83C (Jan. 31, 1986); Tafoya, 8 Cl. Ct. 256 (1985); North, 
     555 F.Supp. 832 (1982). When appealed, these decisions 
     invariably have been affirmed.
       4. E.g., Winuk, 77 Fed. Cl. 207 (2007) (holding that the 
     Department was required to accept, as legally sufficient 
     certifications, instruments and language that would have been 
     insufficient even for an ordinary certificate of service in 
     court); White, 74 Fed. Cl. 769 (2006), appeal filed, No. 
     2007-5126; Hillensbeck, 74 Fed. Cl. 477 (2006) (holding that 
     the position of the Department (which was actually correct, 
     see, e.g., Nease, supra, slip op. at 5 n.4; 132 Cong. Rec. 
     27,928-929 (1986) (colloquy between Sens. Sasser and 
     Thurmond)) was ``substantially unjustified''); Bice, 72 Fed. 
     Cl. 432 (2006); Groff, 72 Fed. Cl. 68 (2006); Messick, 70 
     Fed. Cl. 319 (2006); Hillensbeck, 69 Fed. Cl. 369 (2006) 
     (this holding immediately occasioned the enactment of 
     corrective legislation, Pub. L. 109-162, Sec. 1164(a)(2)); 
     Cassella, 68 Fed. Cl. 189 (2005); Hawkins, 68 Fed. Cl. 74 
     (2005) (this holding immediately occasioned the enactment 
     of corrective legislation, see Pub. L. 109-162, 
     Sec. 1164(a)(4)); Hillensbeck, 68 Fed. Cl. 62 (2005); 
     Bice, 61 Fed. Cl. 420 (2004); Davis, 50 Fed. Cl. 192 
     (2001); Demutiis, 48 Fed. Cl. 81 (2000); Davis, 46 Fed. 
     Cl. 421 (2000); Greeley, 30 Fed. Cl. 721 (1994); see also 
     Canfield, No. 339-79C (July 27, 1982).
       5 E.g., Winuk, 77 Fed. Cl. at 225 (directing the agency to 
     pay only one of two living parents the full benefit amount, 
     despite the statutory command that the amount be divided 
     between living parents ``in equal shares''), and at 224 
     (holding certain instruments to be legally sufficient 
     certifications, even though they did not contain elements 
     expressly required by the statute--e.g., ``identification of 
     all eligible payees of benefits,'' and acknowledgment that 
     the decedent actually was ``employed by [the certifying] 
     agency'' itself), and at 220-21 (holding that ``under the 
     statute the [agency] is directed to expedite payment without 
     further inquiry upon the requisite certification,'' even 
     though the statute distinguishes between ``eligible payees of 
     benefits'' (i.e., individuals--potentially eligible for 
     payment of benefits under the statute--for whom the 
     certifications are made by the public safety agencies), on 
     the one hand, and ``qualified beneficiaries'' (i.e., 
     individuals whose claims the Department of Justice determines 
     to qualify for benefits under the statute and implementing 
     regulations, upon considering those certifications as prima 
     facie evidence), on the other), and at 218-225 (holding that 
     a certification under the 2001 statutes could go to status 
     (i.e., that they authorize certification that an individual 
     was an officer at the time of injury), even though, under 
     those statutes, such certifications may go only to line-of-
     duty (i.e., properly speaking, they authorize certification 
     only that an individual, acknowledged otherwise to have the 
     requisite status, ``was killed or suffered a catastrophic 
     injury'' under the required circumstances); Hillensbeck, 69 
     Fed. Cl. 381-82 and 68 Fed. Cl. at 73-74 (holding, despite an 
     express statutory reference to ``public employee member of a 
     rescue squad or ambulance crew,'' that the agency committed 
     legal error in understanding the statute to require members 
     of rescue squads or ambulance crews to be public employees).
       (6) E.g., Winuk, 77 Fed. Cl. at 222 (holding the agency to 
     have committed legal error, ``in the absence . . . of a 
     regulatory definition of service to a public agency in an 
     official capacity''); but see 28 C.F.R. Sec. 32.3 (containing 
     a highly relevant definition of ``Official capacity'')), and 
     at 220-21 (holding that ``under the statute the [agency] is 
     directed to expedite payment without further inquiry upon the 
     requisite certification''); but see 28 C.F.R. Sec. Sec. 32.3 
     (definitions of ``Eligible payee''  (1), ``Employed by a 
     public agency'' (1), & ``Qualified beneficiary''  (1)(i)), 
     32.6(b)(2)(ii), 32.53(b)(2)); Bice, 61 Fed. Cl. at 434 
     (finding the agency to have committed prejudicial legal error 
     when it declined to consider action by a private non-profit 
     memorial foundation chartered under State law to be 
     ``evidence [or a] finding[] of fact presented by [a] State, 
     local, [or] Federal administrative [or] investigating 
     agenc[y]'' under since-repealed 28 C.F.R. Sec. 32.5).
       (7) E.g., (a) Winuk, 77 Fed. Cl. at 221-22, 225 (giving 
     dispositive effect to post-hoc State government action 
     purporting to alter the actual facts at issue; but see 
     Chacon, 48 F.3d 508, 513 (1995) (post-hoc State government 
     actions ``do not erase the fact[s]''); cf. also Groff, 493 
     F.3d 1343, 1355 (2007) (``post-mortem statements'' of 
     government agencies do not ``transform [private parties] into 
     government employees'')), and at 218-21 (declaring it 
     erroneous for the agency not to have understood ``should'' to 
     mean ``must''; but see Maggit, 202 F.3d 1370, 1378 (2000) 
     (``should'' in benefits law not understood to mean 
     ``must'')), and at 224 (holding the decedent's lack of any 
     legal authority or legal duty to engage in public safety 
     activity to be irrelevant to whether he was a public 
     safety officer (as opposed to being a good Samaritan); but 
     see Amber-Messick, 483 F.3d 1316, 1323-25 (2007) (public 
     safety officer status turns on actual legal authority to 
     engage in requisite public safety activity); Cassella, 469 
     F.3d 1376, 1386 (2006) (public safety officer status turns 
     on whether one is ``appointed for and given the 
     authorization or obligation to perform [requisite public 
     safety] duties''); Hawkins, 469 F.3d 993 (2006) (the 
     decedent's ``actual responsibilities or obligations as 
     appointed, rather than some theoretical authorizations, 
     are controlling'' for determining public safety officer 
     status); Howard, 231 Ct. Cl. 507, 510 (1981) 
     (``eligibility under the Act turns on whether the specific 
     activity causing death was an inherent part of employment 
     as an officer and whether it was required'' of the 
     decedent); Budd, 225 Ct. Cl. 725, 726-27 & n.6 (1980) (the 
     activity causing ``the death must be `authorized, 
     required, or normally associated with' an officer's . . . 
     duties''));
       (b) White, 74 Fed. Cl. at 776-79 (terming ``ridiculous'' 
     the agency's position that the inchoate right to the gratuity 
     expired upon the death of the statutory beneficiary prior to 
     actually receiving it); but see Semple, 24 Ct. Cl. 422 (1889) 
     (the inchoate right to a legal gratuity expires upon the 
     death of a statutory beneficiary prior to actually receiving 
     it); cf. also 16 Att'y Gen. 408 (1879));
       (c) Hillensbeck, 74 Fed. Cl. at 481 (directly contrary to 
     the precise rationale that informs the Federal Circuit's 
     reversal of the same judge, a few days earlier, in a 
     substantially-similar case, Hawkins, 469 F.3d 993, 1002 
     (2006)), and at 482-84 (adjusting and awarding attorney fees 
     in a manner directly contrary to the holding in Levernier 
     Constr., 947 F.2d 497, 503-04 (1997)); and
       (d) Davis, 50 Fed. Cl. at 211 and 46 Fed. Cl. at 424-25 
     (declaring controlling language in Budd, 225 Ct. Cl. at 727 
     n.6, to be mere ``dicta'' and ``non-precedential,'' and 
     either ``erroneous[]'' or ``mistaken[]''); but see Howard, 
     229 Ct. Cl. at 510 (holding that same Budd language to be 
     legally ``dispositive'')).
       (8) E.g., Winuk, 77 Fed. Cl. at 225 (declaring the 2001 
     statutes to be ``remedial laws''); White, 74 Fed. Cl. 773 
     (declaring P.L. 94-430 to be a ``remedial statute''); LaBare, 
     72 Fed. Cl. at 124 (a correct ruling, overall, but 
     unfortunately describing P.L. 94-430 as ``remedial 
     legislation''); Bice, 72 Fed. Cl. at 450 (declaring P.L. 94-
     430 to be a ``remedial statute''); Groff, 72 Fed. Cl. at 79 
     (declaring P.L. 94-430 to be ``remedial in nature''); Bice, 
     61 Fed. Cl. at 435 (declaring P.L. 94-430 to be a ``remedial 
     statute''); Davis, 50 Fed. Cl. at 208 (describing P.L. 94-430 
     in remedial terms); Demutiis, 48 Fed. Cl. at 86 (declaring 
     P.L. 94-430 to be ``remedial in nature''); but see Rose, 479 
     U.S. at 4 (holding the program benefit to be a legal 
     ``gratuity'' (cf. Lynch, 292 U.S. 571, 577 (1934); 36 Att'y 
     Gen. 227, 230 (1930))). No opinion of the Federal Circuit/
     Court of Claims describes the program as ``remedial.''
       (9) Groff, 493 F.3d 1343 (2007) (two cases); Amber-Messick, 
     483 F.3d 1316 (2007); Cassella, 469 F.3d 1376 (2006); 
     Hawkins, 469 F.3d 993 (2006); Demutiis, 291 F.3d 1373 (2002); 
     Yanco, 258 F.3d 1356 (2001); Greeley, 50 F.3d 1009 (1995); 
     Chacon, 48 F.3d 508 (1995); Canfield, No. 339-79 (Dec. 29, 
     1982); Russell, 231 Ct. Cl. 1022 (1982); Melville, 231 Ct. 
     Cl. 776 (1982); Howard, 231 Ct. Cl. 507 (1981); Smykowski, 
     647 F.2d 1103 (1981); Morrow, 647 F.2d 1099 (1981); Budd, 225 
     Ct. Cl. 725 (1980); Harold, 634 F.2d 547 (1980). No opinion 
     was issued in Bice, 227 Fed. App'x 927 (2007); Porter, 176 
     Fed. App'x 111 (2006); or One Feather, 132 Fed. App'x 840 
     (2005).
       (10) Without opinion, in Bice, the Federal Circuit affirmed 
     the Federal Claims Court judgment, which was based entirely 
     on a misapplication of this same now-repealed regulation.
       (11) In providing that the ``appeals from final decisions 
     of the Bureau'' that it refers to specifically include those 
     ``under any statute authorizing payment of benefits described 
     under subpart 1'' of Pub. L. 90-351, title I, part L (i.e., 
     the 2001 statutes), the legislation (among other things) is 
     framed to counter the holding in Winuk, 77 Fed. Cl. at 220-
     21, that ``under the statute the [agency] is directed to 
     expedite payment without further inquiry upon the requisite 
     certification,'' as a result of which holding the Department 
     was ordered by the court to accept as ``certified'' purported 
     ``facts'' that were known not to be true, and, further, to 
     accept such ``certification'' not as mere prima facie 
     evidence (rebuttable by other evidence) of those purported 
     ``facts,'' but as dispositive and binding on the Department, 
     thus purporting to deny it its legal authority to render 
     meaningful, substantive ``final decisions'' under those 
     statutes.

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