Demutiis v. U.S., 01-5041.

• Decision Date: 30 May 2002
• Docket Number: No. 01-5041.,01-5041.
• Citation: 291 F.3d 1373
• Parties: Maria DEMUTIIS and Nicolas Demutiis, Plaintiffs-Appellees, v. UNITED STATES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

291 F.3d 1373

Maria DEMUTIIS and Nicolas Demutiis, Plaintiffs-Appellees, v. UNITED STATES, Defendant-Appellant.

No. 01-5041.

United States Court of Appeals, Federal Circuit.

May 30, 2002.

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John P. Tynan, Worth, Longworth, Bamundo & London, LLP, of New York, NY, argued for plaintiffs-appellees.

Kyle E. Chadwick, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellant. With him on the brief were Stuart E. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director; and Bryant G. Snee, Assistant Director. Of counsel was Deborah A. Bynum, Attorney.

Before GAJARSA Circuit Judge, FRIEDMAN, Senior Circuit Judge, and LINN, Circuit Judge.

FRIEDMAN, Senior Circuit Judge.

This appeal presents questions relating to the way the Department of Justice ("Department") determined whether a local police officer's death occurred "in the line of duty" and therefore met the standard for an award of death benefits under the Public Safety Officers' Benefits Act (the "Benefits Act") of 1976, Pub.L. No. 94-430, 90 Stat. 1346 (codified as amended at 42 U.S.C. §§ 3796-3796c (1994)). The Court of Federal Claims reversed the Department's denial of benefits and remanded for further proceedings. The court ruled that (1) the Department's hearing officer had an affirmative obligation to develop the record in support of a claim for benefits, and that the Department failed to give proper weight to both (2) the local police department's decision that the officer's death occurred in the line of duty and (3) factual determinations in the police department's reports of the event. We disagree with the court's first two rulings, but affirm the third. Accordingly, we modify the remand decision of the Court of Federal Claims and, as thus modified, affirm it.

I

A. The Benefits Act provided for a Federal payment of $100,000 to the surviving spouse and children of a public safety officer (which includes a police officer, 42 U.S.C. § 3796b(5)) who "ha[d] died as the direct and proximate result of a personal injury sustained in the line of duty." 42 U.S.C. § 3796 (1994). Administration of the Act is assigned to the Department of Justice's Bureau of Justice Assistance ("Bureau"). Id. Pursuant to statutory authority, id. § 3796c(a), the Bureau has promulgated detailed regulations that define various terms in the statute and prescribe the administrative procedures the Bureau will follow in adjudicating claims under the Act. 28 C.F.R. § 32.1.40 (2001). Those regulations provide that a police officer's injury occurred "in the line of duty" if it arose out of "[a]ny action which [the] officer... [was] obligated or authorized by rule, regulations, condition of employment or service, or law to perform." Id. § 32.2(c)(1).

A claimant seeking death benefits under the Act must file a claim with the Bureau, which will preliminarily determine eligibility for benefits. Id. § 32.23. A claimant who is ruled ineligible for benefits may obtain a hearing before a Departmental Hearing Officer, whose decision is reviewable by the Director of the Bureau. Id. § 32.24(a), (h)(1). The Director's decision is the Bureau's final decision. Id. § 32.24(h)(2). That decision is judicially reviewable by suit in the Court of Federal Claims. See, e.g., Davis v. United States, 169 F.3d 1196, 1197 (9th Cir.1999); Wydra v. Law Enforcement Assistance Admin., 722 F.2d 834, 837 (D.C.Cir.1983); see also Yanco v. United States, 258 F.3d 1356 (Fed.Cir.2001).

B. The underlying facts are set out in detail in the Court of Federal Claims' opinion. See Demutiis v. United States, 48 Fed. Cl. 81 (2000). Only a brief recitation follows.

Police Officer Nicholas R. Demutiis ("Demutiis"), off duty and out of uniform, was driving to work in his personal vehicle on January 24, 1994, around eleven p.m. A few blocks from the precinct house, he entered an intersection on a green light and was struck by a vehicle entering the intersection against a red light. That vehicle was being pursued by police officers from Demutiis' precinct in police vehicles, and, according to civilian eyewitnesses, was traveling about seventy to ninety miles an hour with its lights off in the darkness when it collided with Demutiis' car. Demutiis was killed as a result of the crash.

The report of the New York City Police Department ("Police Department") on the incident, which was used to determine eligibility for worker's compensation and accidental death benefits, stated that Demutiis entered the intersection in "an apparent attempt to assist the On-Duty officers in apprehending the suspect vehicle," and thus that his death was "in the line of duty." Demutiis, 48 Fed. Cl. at 84. The Bureau, however, preliminarily denied benefits under the Act, based on its finding that Demutiis was most likely unaware of the chase, and probably had not been attempting to assist the other officers. Id. It ruled that Demutiis' death was not in the line of duty, and thus did not qualify for benefits under the Act. Id.

Demutiis' wife and son, the appellees here, administratively appealed the preliminary determination. After an evidentiary hearing, the hearing officer concluded that the evidence did not show that Demutiis had entered the intersection in an attempt to aid the other officers, and thus that his death was not "in the line of duty." Id. at 84-85. After the Director of the Bureau upheld that ruling the appellees filed the present suit in the Court of Federal Claims, seeking benefits under the Act. They contended that "Demutiis was assisting his fellow officers by obstructing the path of the fleeing vehicle." Id. at 83.

On cross-motions for summary judgment, the Court of Federal Claims ruled that the Bureau's decision was "in some respects, contrary to law, and, in others, not supported by substantial evidence." Id. at 98. It reversed that decision and remanded for the Bureau to conduct "further proceedings leading to a redetermination of plaintiffs' eligibility for compensation under the [Benefits Act] and its implementing regulations." Id.

The government's appeal challenges only three of the court's rulings: (1) the hearing officer did not comply with the requirement in the Bureau's regulation that the hearing be conducted "in such manner as to best ascertain the rights of the claimant" because he did not discharge his "active and affirmative responsibility to develop the record." Id. at 93. (2) The hearing officer failed to give adequate weight, as required by the Bureau's regulations, to the Police Department's determination that Demutiis' death occurred in the line of duty. (3) "[I]n several other instances" the hearing officer improperly "failed to attach any weight to the fact findings of the city officials." Id. at 91.

The court also made two additional rulings, which the government does not challenge: (1) The Bureau misinterpreted and misapplied its regulation requiring it to resolve "any reasonable doubt arising from the circumstances of the officer's death or permanent and total disability in favor of payment of the death or disability benefit." Id. at 88. (2) Various findings of the Bureau were not supported by substantial evidence. Id. at 95-98.

II

There is a preliminary jurisdictional question: whether the Court of Federal Claims' decision, which remanded the case to the Bureau for redetermination of Demutiis' eligibility for benefit payments, is a "final decision" over which we have appellate jurisdiction under 28 U.S.C. § 1295(a)(3). Generally, remand orders are not final and hence are not appealable. Cabot Corp. v. United States, 788 F.2d 1539, 1542 (Fed.Cir.1986) (noting that "an order remanding a matter to an administrative agency for further findings and proceedings is not final"); see also Caesar v. West, 195 F.3d 1373, 1374 (Fed.Cir.1999). A remand order is appealable, however, "when a court determines that an agency's statutory or regulatory interpretation is unreasonable or contrary to law, and remands the matter to the agency to implement the court's alternative interpretation." Southern Cal. Edison Co. v. United States, 226 F.3d 1349, 1355 (Fed.Cir.2000) (citing Travelstead v. Derwinski, 978 F.2d 1244, 1248-49 (Fed.Cir.1992)).

That is precisely the basis on which the Court of Federal Claims remanded to the Bureau in this case. The court concluded that the Bureau had misinterpreted its regulations, and remanded for "redetermination of plaintiff's eligibility for compensation under the [Benefits Act] and its implementing regulations, consistent with this opinion," Demutiis, 48 Fed. Cl. at 99, i.e., for the Bureau to reapply the Act and the regulations as the court had interpreted them.

In many, perhaps most, cases in which such remand orders have been held final, the result of a successful appeal is a reversal of the remand. Here, however, even if we were to accept all of the government's contentions, the remand order would still stand — although the scope of the remand would be narrower. This is because the government's appeal has not challenged some of the grounds on which the Court of Federal Claims based the remand.

This result, however, does not render the remand order non-final and non-appealable. The government's failure to challenge the other portions of the remand order does not change the nature of the portions the government does challenge, and those portions themselves make the order final and appealable. If the Bureau were to reconsider the case under the Court of Federal Claims' interpretation of the regulations, its decision on remand might not be reviewable. The government then would have the unfavorable precedent of the Court of Federal Claims in this case without opportunity to challenge it on appeal. See Dambach v. Gober, 223 F.3d 1376, 1379 (Fed.Cir.2000) ("Because this interpretation will alter the evidentiary burdens ... in the remand proceedings and the remand may make...