Amber-Messick v. United States - Opposition

No. 07-176

In the Supreme Court of the United States

JULIE AMBER-MESSICK, ADMINISTRATRIX OF
THE ESTATE OF CHRISTOPHER KANGAS, DECEASED, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
JEANNE E. DAVIDSON
TODD M. HUGHES
J. REID PROUTY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly determined that the Bureau of Justice Assistance's interpretation of the term "firefighter," as used in the Public Safety Officers' Benefits Act of 1976, 42 U.S.C. 3796 et seq., was entitled to deference.

In the Supreme Court of the United States

No. 07-176

JULIE AMBER-MESSICK, ADMINISTRATRIX OF
THE ESTATE OF CHRISTOPHER KANGAS, DECEASED, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The judgment of the court of appeals (Pet. App. 1a- 22a) is reported at 483 F.3d. 1316. The opinion of the United States Court of Federal Claims (Pet. App. 23a- 50a) is reported at 70 Fed. Cl. 319.

JURISDICTION

The judgment of the court of appeals was entered on April 17, 2007. A petition for rehearing was denied on May 11, 2007 (Pet. App. 51a-52a). The petition for a writ of certiorari was filed on August 9, 2007. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(l).

STATEMENT

1. The Public Safety Officers Benefit Act of 1976 (PSOBA or Act), 42 U.S.C. 3796 et seq., provides for the payment of a one-time, lump-sum benefit of $250,000 "[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 di rect and proximate result of a personal injury sustained in the line of duty." 42 U.S.C. 3796(a) (Supp. IV 2004).

At the time in question, the Act defined "pub- lic safety officer" as including "an individual serving a public agency in an official capacity, with or with- out compensation, as * * * a firefighter." 42 U.S.C. 3796b(7)(A) (current version to be codified at 42 U.S.C. 3796b(9)(A) (2006)); accord 28 C.F.R. 32.2(j) (2001); cf. 28 C.F.R. 32.3 (2007). The Act further provides that "'firefighter' includes an individual serving as an offi cially recognized or designated member of a legally or ganized volunteer fire department." 42 U.S.C. 3796b(4) (Supp. IV 2004).

The Bureau of Justice Assistance (BJA) is authorized to establish such rules, regulations, and procedures as may be necessary to carry out the Act. 42 U.S.C. 3796c(a). In determining whether a public safety officer is entitled to a benefit, the BJA gives "substantial weight to the evidence and findings of fact presented by State, local, and Federal administrative and investiga tive agencies." 28 C.F.R. 32.5.

2. Christopher Kangas was a fourteen-year old "ap prentice firefighter" with the Brookhaven, Pennsylva nia, Volunteer Fire Department. Pet. App. 54a. On May 4, 2002, Kangas rode his bicycle toward the fire station in response to a fire alarm. He ran through a stop sign and was struck by an automobile. He died as a result of the accident. Id. at 54a-55a.

At the time of Kangas' death, Pennsylvania child la bor laws specifically limited the types of activities in which minors who were associated with of a volunteer fire department could participate. See 43 Pa. Cons. Stat. Ann. § 48.3 (West Supp. 2001). Minors under the age of sixteen were permitted to participate only in training, first aid, clean-up activities after a fire is under control, and food and drink services. Id. § 48.3(b). Fur ther, minors under the age of sixteen were specifically prohibited from operating high pressure fire hoses or climbing ladders, except in training. Id. § 48.3(c). And no minors could operate an aerial ladder, platform, or jack; use wire cutters and other cutting devices; operate fire pumps at any fire scene; or enter a burning struc ture. Id. § 48.3(a)(3).

3. In June 2002, petitioner, Kangas' mother, filed a claim for death benefits pursuant to the PSOBA. Pet. App. 55a. On September 16, 2002, the BJA issued an initial determination denying the claim because Kangas was not a "public safety officer" within the meaning of the Act. Id. at 75a. The BJA explained that the "evi dence presented shows that [Kangas] was not a pub- lic safety officer with Brookhaven Fire Company No. 1 in[ ] an official capacity as a firefighter[.] * * * [Kangas] was a trainee but did not possess authority to act as an official firefighter." Id. at 78a. Petitioner ap pealed the initial denial of benefits to a BJA hearing officer. Id. at 55a, 65a.

The BJA conducted a hearing on January 22, 2004. Pet. App. 66a. After hearing several witnesses and re viewing the submitted documents, the hearing officer determined that Kangas was not a "firefighter" within the meaning of the Act, because, pursuant to Pennsylva nia law, fourteen- and fifteen-year old individuals "do not have authority to engage in fire suppression activi ties." Id. at 74a. Petitioner appealed the hearing offi cer's determination to the BJA Director.

On April 28, 2005, the BJA Director issued the agency's final decision denying the claim. Pet. App. 53a. The Director concluded that, "although young [Kangas] may have been a member of the firefighting community in some sense, he was not a 'firefighter' within the mean ing of the PSOB Act, because he had no legal authority to fight fires [under Pennsylvania law]." Id. at 54a. The Director further determined that, "[e]ven if [Kangas] were a 'firefighter' within the meaning of the PSOB Act, his tragic death did not occur in the 'line of duty,' as de fined in the PSOB regulations, because Pennsylvania law did not obligate or authorize him to engage in fire- fighting or fire-suppression activity." Id. at 58a. In view of those determinations, the Director noted that it was unnecessary to decide whether Kangas' possible negligence would preclude payment of the claim, see 42 U.S.C. 3796a(1) and (3). Pet. App. 63a n.9.

4. On June 27, 2005, petitioner filed a complaint in the Court of Federal Claims (CFC) seeking review of the agency's final decision. Pet. App. 29a. The CFC possesses jurisdiction to review BJA decisions to deter mine (1) whether there has been substantial compliance with statutory requirements and provisions of imple menting regulations; (2) whether there has been any arbitrary or capricious action by government officials involved; and (3) whether substantial evidence supports the decision. Chacon v. United States, 48 F.3d 508, 511 (Fed. Cir. 1995).

The CFC set aside the BJA's determination and awarded benefits to petitioner. Pet. App. 47a-48a. The CFC concluded that Kangas was a "firefighter" for pur poses of the Act because he was "part of a team dedi cated to the suppression of fires and control of fire scenes." Id. at 45a. The CFC further concluded that Kangas died in the "line of duty" because his "primary function was to be part of the team that engaged in 'the suppression of fires.'" Id. at 46a. The court granted judgment in favor of petitioner in the amount of $250,000, adjusted in accordance with 42 U.S.C. 3796(h). Pet. App. 48a.

5. The court of appeals reversed. Pet. App. 1a-22a. The court concluded that Christopher was not a fire fighter under the PSOBA. Id. at 14a. In reaching that conclusion, the court applied the two-step inquiry di rected in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) (Chevron). Pet. App. 11a.

The court of appeals first held that "Congress has not directly spoken to the precise question of whether the term 'firefighter' covers a minor apprentice fire fighter" prohibited by law from engaging in certain firefighting activities. Pet. App. 11a. The court rejected petitioner's (and the CFC's) argument that the PSOBA established an unambiguous definition of "firefighter" by providing that "firefighter includes an individual serving as an officially recognized or designated mem ber of a legally organized volunteer fire department." Ibid. (citing 42 U.S.C. 3796b(4) (Supp. IV 2004)). As the court explained, that language in the Act was meant to include volunteer firefighters in the PSOBA's coverage, not to define "firefighter." Ibid. Moreover, the court of appeals explained that, if the language were interpreted as a comprehensive definition of the term "firefighter," firefighters serving in professional fire departments would have been excluded from the Act's coverage-an obviously absurd result. Ibid.

The court of appeals next determined that the BJA's conclusion that Kangas was not a "firefighter" was per missible. Pet. App. 12a-13a. The court concluded that the BJA's interpretation of "firefighter" as one who is "authorized to actively engage in the suppression of fires" is consistent with the ordinary meaning of the word. Id. at 12a. Moreover, the court held that this in terpretation is consistent with the PSOBA's legislative history. Ibid. Applying that definition to petitioner's case, the court concluded that, as a minor "apprentice firefighter," Kangas was not authorized, by operation of Pennsylvania child labor laws, to participate in firefighting activities. Id. at 12a-13a. The court of ap peals additionally noted that the BJA need not defer to the state agency's determination that petitioner was eligible for a death benefit under state law, because 28 C.F.R. 32.5 mandates "substantial weight" be given only to a state agency's findings of facts, not its legal conclu sions. Pet. App. 13a. Accordingly, the court of appeals concluded that the BJA had permissibly decided that Kangas was not entitled to PSOBA benefits. Ibid.

Judge Newman dissented, arguing that the BJA's determination conflicted with the Act's "purpose of rec ognizing the role of the firefighter and others serving the public." Pet. App. 20a.

ARGUMENT

The court of appeals properly applied well-estab lished principles of Chevron deference to conclude that the BJA's interpretation of "firefighter" in the PSOBA is permissible and entitled to deference. The decision of the court of appeals does not conflict with any decision of this Court or any other court of appeals. Further re view is unwarranted.

1. a. The court of appeals correctly determined (Pet. App. 11a) under Chevron's first step that Congress has not "directly spoken to the precise question" whether a minor apprentice firefighter, whom state law does not authorize to engage in fire suppression duties, is a "firefighter" under the Act. See 467 U.S. at 842.

The PSOBA elaborates the term "firefighter" only in 42 U.S.C. 3796b(4) (Supp. IV 2004), which states that "'firefighter' includes an individual serving as an offi cially recognized or designated member of a legally or ganized volunteer fire department." Section 3796b(4) plainly does not define "firefighter" as such, because it references solely persons associated with a volunteer fire department. Rather, as the court of appeals con cluded, Congress included that language in the PSOBA to ensure that volunteer firefighters were given the same benefits as professional firefighters, while leaving the term "firefighter" undefined. Pet. App. 11a-12a (cit ing H.R. Rep. No. 1031, 94th Cong., 2d Sess. 4 (1976)). Thus, "the statute is silent or ambiguous with respect to the specific issue" at hand. Chevron, 467 U.S. at 843.

Quoting a portion of Judge Newman's dissent (Pet. 5-6 (quoting Pet. App. 20a-21a)), petitioner argues that the term "firefighter" is not ambiguous in light of the Act's purpose of encouraging and recognizing public service and alleviating burdens placed on public ser vants and their families. Those broad legislative pur poses shed little if any light on the question whether Congress intended an apprentice firefighter, who is not authorized to fight fires, to be eligible for a death bene fit. Because "no legislation pursues its purposes at all costs," Rodriguez v. United States, 480 U.S. 522, 525- 526 (1987) (per curiam), petitioner's arguments based on general statements of purpose cannot overcome the gap in the statute's text.

b. Given that Congress did not define the term "firefighter" in the instant circumstances, the court of appeals properly applied principles of Chevron defer ence to the BJA's interpretation. See Pet. App. 12a; 467 U.S. at 843. The BJA has congressionally delegated authority to adjudicate claims and promulgate rules with legal force, see 42 U.S.C. 3796c(a), and issued its inter pretation through a relatively formal adjudicative pro cess. See United States v. Mead Corp., 533 U.S. 218, 226-227 (2001) (Chevron deference is available "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 defer ence was promulgated in the exercise of that author ity"); Groff v. United States, 493 F.3d 1343, 1350 (Fed. Cir. 2007) ("Congress intended for the BJA's statutory interpretations announced through adjudication to have the force of law, and * * * those interpretations are therefore entitled to deference under Chevron."); cf. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (grant ing Chevron deference to determinations made through adjudication by Board of Immigration Appeals). Ac cordingly, the BJA's legal conclusion that "firefighter" excludes one who "has no legal authority to engage in fire-fighting," Pet. App. 58a, is eligible for Chevron def erence.

c. The BJA's legal conclusion reflects a permissible construction of the PSOBA and is therefore deserving of deference. Petitioner argues (Pet. 6) that the Act's si lence regarding "firefighter" precludes the BJA from defining the term with reference to the duties performed by the claimant. "A fundamental canon of statutory con struction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42 (1979). The BJA reasoned that, in the absence of a statutory definition of "firefighter," the term should be given "its ordinary meaning; i.e., * * * someone who is authorized to 'fight fires.'" Pet. App. 58a. Defining "firefighter" by reference to the claimant's job duties is consistent with how one defines any job, and reflects the term's common usage. See id. at 12a (listing dictionary entries).

Petitioner relies on the Act's legislative history (Pet. 6-7 (quoting Pet. App. 37a-38a)) to contend that the du ties performed by the claimant are irrelevant to PSOBA benefits eligibility. The legislative history, however, suggests only that Congress did not limit benefits to firefighters who died while performing particularly dan gerous duties; it says nothing about who qualifies as a firefighter in the first place. The Conference Committee that negotiated the final bill rejected the House proposal which "authorized payment whenever a fireman sus tained fatal injuries while actually and directly engaged in fighting fires or in other activities determined * * * to be potentially dangerous." H.R. Conf. Rep. No. 1501, 94th Cong., 2d Sess. 5 (1976). The Committee instead chose the Senate proposal, which "authorized payment of the death benefit to the survivors of law enforcement officers and firemen for all line of duty deaths." Ibid. That choice was intended to broaden the qualifying cir cumstances of a public safety officer's death: "The Man agers believe that 'line of duty' is a well established con cept and that it is appropriate to extend coverage to all acts performed by the public safety officer in the dis charge of those duties which are required of him in his capacity as a * * * fireman." Id. at 6. Thus, the Act's legislative history is silent as to who qualifies as a "firefighter," and it certainly does not undermine the BJA's reasonable definition.

Also demonstrating the permissibility of the BJA's interpretation is the current version of the PSOBA's implementing regulations. The current regulations, which the BJA promulgated after notice and comment, codify the position expressed by the BJA in this pro ceeding and warrant deference. See 28 C.F.R. 32.3 (2007) (defining "firefighter" as "an individual who is trained in suppression of fire or hazardous-materials emergency response and has the legal authority and responsibility to engage in the suppression of fires"); Smiley v. Citibank, N.A., 517 U.S. 735, 744 n.3 (1996) ("[I]t would be absurd to ignore the agency's current authoritative pronouncement of what the statute means."); United States v. Morton, 467 U.S. 822, 836 n.1 (1984) (deferring to regulation promulgated after suit was initiated because suit raised issue for which Con gress delegated authority to agency to address). Be cause the court of appeals correctly deferred to the BJA's interpretation, further review is unnecessary.

2. Petitioner also asserts (Pet. 8-10) that the court of appeals' opinion included legal errors regarding the PSOBA's legislative history and Pennsylvania's adminis trative code. Those assertions do not merit further re view.

a. The PSOBA's legislative history played a minor role in the court of appeals' ruling in this case, which was premised primarily upon the court's determination that the BJA's exercise of statutory interpretation was entitled to Chevron deference. See Pet. App. 11a-12a. Indeed, the court of appeals cited only one piece of legis lative history: a House Judiciary Committee Report which explained that, because "firefighting 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." Id. at 12a (quoting H.R. Rep. No. 1031, 94th Cong., 2d Sess. 4 (1976)). Petitioner does not allege that the court of appeals inaccurately read the Judiciary Committee Re port. Instead, petitioner advances (Pet. 8) the same ar gument regarding the legislative history that the CFC made, namely that subsequent Conference Committee action enlarged the definition of "firefighter." As dem onstrated above, however, the subsequent Committee action enlarged only the qualifying circumstances of death and has no bearing upon the definition of "firefighter."

b. As petitioner notes (Pet. 9), the court of appeals made a trivial error in misreading the Pennsylvania ad ministrative code as prohibiting Kangas from riding in an official vehicle to the scene of a fire. The court made that error in the course of detailing the numerous limita tions placed upon minor apprentice firefighters. As the court correctly observed, Kangas' activities were limited to training, first aid, clean-up after a fire is under con trol, and providing coffee wagon and food services; and he was prohibited from operating fire hoses or ascend ing a ladder (except in training), or from entering a burning structure. Pet. App. 13a.1 The fact that Kangas was permitted to ride in official fire vehicles, though contrary to the court of appeals' understanding, is of no significance to either the court of appeals' rationale or the BJA's determination, both of which focused on the dispositive fact that Kangas was not authorized to fight fires.

3. Petitioner also errs in contending (Pet. 10) that the court of appeals "ignore[d]" the Commonwealth of Pennsylvania's recognition of Kangas as a firefighter. The court correctly concluded that the PSOBA regula tions require the BJA to give weight only to a state agency's factual findings, and thus the state agency's legal conclusion that the claimant was eligible for state benefits was irrelevant. Pet. App. 13a; 28 C.F.R. 32.5; cf. Demutiis v. United States, 291 F.3d 1373, 1379 (Fed. Cir. 2002) (BJA not required to give weight to state agency's legal conclusion that death occurred in "line of duty"); Yanco v. United States, 258 F.3d 1356, 1360-1363 (Fed. Cir. 2001) (state finding of police officer's entitle ment to benefits not controlling because of different statutory benefits requirements), cert. denied, 534 U.S. 1114 (2002). Petitioner provides no reason why the BJA or the court of appeals should nevertheless have de ferred to the Pennsylvania benefits determination.

4. Petitioner's assertion (Pet. 4-5) that denying her claim would discourage the future recruitment of fire fighters provides no basis for review. Petitioner's asser tion rests upon the unsupported speculation that pay ment of PSOBA benefits to the survivors of minor ap prentice firefighters, who are statutorily forbidden to engage in hazardous fire suppression work, is necessary for their recruitment. To the contrary, because minor apprentice firefighters are forbidden from engaging in hazardous fire suppression duties, PSOBA benefits are unlikely to enter into any consideration of whether to become an apprentice firefighter. In any event, peti tioner's policy argument should be addressed to Con gress, not this Court.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
JEANNE E. DAVIDSON
TODD M. HUGHES
J. REID PROUTY
Attorneys

OCTOBER 2007

1 Although the court of appeals cited 34 Pa. Code § 11.67(a)(5) (1996), which had been superseded by 43 Pa. Cons. Stat. Ann. § 48.3(c) (West Supp. 2001) (see id. § 48.3(e)), in detailing the state law prohibitions upon apprentice firefighters, the superseding statutory provisions continued to prohibit apprentice firefighters under 16 years of age from ascending ladders or operating high pressure hose lines (except during training), or from entering a burning structure. Ibid.