Cassella v. U.S., 06-5035.

• Citation: 469 F.3d 1376
• Decision Date: 01 December 2006
• Docket Number: No. 06-5035.,06-5035.
• Parties: Leonard E. CASSELLA, Plaintiff-Appellee, v. UNITED STATES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

469 F.3d 1376

Leonard E. CASSELLA, Plaintiff-Appellee, v. UNITED STATES, Defendant-Appellant.

No. 06-5035.

United States Court of Appeals, Federal Circuit.

December 1, 2006.

Gordon C. Lane, Lane & Young, of Charleston, WV, argued for plaintiff-appellee.

Dawn S. Conrad, 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 Donald E. Kinner, Assistant Director. Of counsel on the brief was Jason P. Cooley, Attorney Advisor, Office of General Counsel, Office of Justice Programs, United States Department of Justice, of Washingtion, DC.

Before MICHEL, Chief Judge, LOURIE, Circuit Judge, and ELLIS,^* District Judge.

MICHEL, Chief Judge.

The claim at issue in this case was brought under the Public Safety Officers' Benefits Act ("PSOBA" or "Act") of 1976, Pub.L. No. 94-430 (codified as amended at 42 U.S.C. §§ 3796-96c (2000)). The United States appeals an October 19, 2005 order of the United States Court of Federal Claims holding that Mrs. Mildred W. Cassella, a part-time Special School Zone Police Officer ("SSZPO") employed by the City of Weirton (WV) Police Department ("WPD"), was a "public safety officer" who died as a direct and proximate result of a personal injury sustained in the "line of duty," and therefore met the Act's requirements for an award of a death benefit to her survivor, plaintiff. Cassella v. United States, 68 Fed.Cl. 189 (Fed.Cl.2005). In the opinion accompanying the order, the Court of Federal Claims invalidated 28 C.F.R. § 32.2(m), a portion of the regulation in which the Bureau of Justice Assistance ("BJA"), a unit of the Department of Justice charged with implementing the Act, further defined terms of the Act, particularly "law enforcement officer," a species of the statutory term "public safety officer." We reverse the court's judgment of entitlement and vacate the court's invalidation of 28 C.F.R. § 32.2(m).

I. BACKGROUND

A.

The PSOBA provides a one-time cash payment to survivors of public safety officers who die in the line of duty. In relevant part, § 3796(a) provides that "[i]n any case in which the Bureau of Justice Assistance determines ... 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...." 42 U.S.C. § 3796(a). 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 suffered in the line of duty, and the death must have been the direct and proximate result of the personal injury. Id.; see also Yanco v. United States, 258 F.3d 1356, 1359 (Fed.Cir.2001).

A "public safety officer" was statutorily defined in the 2000 version of the Act, applicable here, as "an individual serving a public agency in an official capacity, with or without compensation, as a law enforcement officer, as a firefighter, or as a member of a rescue squad or ambulance crew[.]" 42 U.S.C. § 3796b(7)(A). A "law enforcement officer," in turn, was defined as "an individual involved in crime and juvenile delinquency control or reduction, or enforcement of the laws, including, but not limited to, police, corrections, probation, parole, and judicial officers[.]" 42 U.S.C. § 3796b(5) (emphasis added). The Act, however, does not define "line of duty."

The BJA is authorized under § 3796c(a) to "establish such rules, regulations, and procedures as may be necessary to carry out the purposes of" the PSOBA. 42 U.S.C. § 3796c(a). Pursuant to this authority, the BJA promulgated the regulations set forth in Part 32 of Title 28 of the Code of Federal Regulations (28 C.F.R. §§ 32.1 et. seq.). Section 32.2(c)(1) defined "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, regulation, 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 he 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) (emphases added). In § 32.2(m), the statutory definition of "law enforcement officer" was clarified to mean an "individual involved in crime and juvenile delinquency control or reduction or enforcement of the criminal law ...." 28 C.F.R. § 32.2(m) (emphasis added).

B.

Plaintiff is the surviving husband of the late Mrs. Mildred W. Cassella. Mrs. Cassella was employed by the WPD for seven years as a part-time SSZPO. Mrs. Cassella held her position as a SSZPO pursuant to West Virginia Statute § 8-14-5, which provides:

Every municipality shall have plenary power and authority to provide by ordinance for the appointment of special school zone police officers, who shall have the duty of controlling and directing traffic upon designated parts of the streets, avenues, roads, alleys or ways at or near schools, and who, in the performance of such duty, shall be vested with all the powers of local police officers. Such special school zone police officers shall be in uniform, shall display a badge or other sign of authority, shall serve at the will and pleasure of the appointing authority, and shall not come within the civil service provisions of this article or the policemen's pension and relief fund provisions ....

W. Va.Code § 8-14-5 (emphasis added).

At approximately 2:25 p.m. on April 12, 2002, Mrs. Cassella was on duty at the intersection of West Virginia 105 (Pennsylvania Avenue) and California Avenue in Weirton. Mrs. Cassella entered the eastbound lane of Pennsylvania Avenue from California Avenue to stop traffic so that a school bus could pull away from the curb. She was wearing her police-issued orange vest and carrying a whistle and stop sign. While standing in the eastbound traffic lane, Mrs. Cassella was fatally struck from the side by a sport utility vehicle traveling eastward. Mrs. Cassella was taken by ambulance to a local hospital where she was pronounced dead by reason of blunt force traumatic injury at 2:50 p.m. The individual who was driving the vehicle that struck and killed Mrs. Cassella was charged and convicted of two traffic violations.

C.

Following Mrs. Cassella's death, plaintiff filed a PSOBA death benefit claim with the BJA on July 30, 2002. The BJA reviewed the claim and issued a decision in May 2003 that plaintiff was not entitled to receive the death benefit authorized to be paid under the Act. The BJA concluded that Mrs. Cassella was not a "public safety officer" within the meaning of the Act, because as a SSZPO, Mrs. Cassella did not meet the definition of "law enforcement officer," the only type of "public safety officer" applicable here, because she did not have the duty to control or reduce crime and juvenile delinquency or to enforce criminal law.

Plaintiff appealed the decision within the Department of Justice, and in accordance with BJA regulations, an appeal hearing was held on February 26, 2004 before an independent Hearing Officer. Mr. Michael D. Gordon, Weirton's Chief of Police at the time of Mrs. Cassella's death, provided detailed testimony as to Mrs. Cassella's duties and responsibilities as a SSZPO for the WPD.

Chief Gordon testified at the hearing that Mrs. Cassella was responsible for directing and controlling traffic at a particular street intersection in Weirton during the times of the day when school buses and children were entering and leaving school. Chief Gordon testified that Mrs. Cassella also had "an implied responsibility" to be watchful for the welfare of children at her crossing and could intervene and report to the police any problems such as suspected child abuse and bullying between children.

Chief Gordon further testified that Mrs. Cassella was neither a "sworn" officer nor a state-certified law enforcement officer and that she did not attend a police academy or undergo any formal police training. Rather, Chief Gordon stated, Mrs. Cassella was trained for her position as a SSZPO by going through an "informal on-the-job break-in-period" with another SSZPO. As a SSZPO, Mrs. Cassella was outfitted with an orange vest, whistle, and stop sign, but did not carry a communications device or a firearm or other type of weapon.

Chief Gordon testified that Mrs. Cassella was the "face of the police" and a "figure of authority" during the specific time that she was instructed to be on duty, but, unlike other officers who had attended the police academy, she did not have the power to make an arrest or stop a crime in progress. Rather, Chief Gordon asserted, Mrs. Cassella had "indirect arrest power" in that "she could gather information regarding an offense" and then report it to "other police officers within the department [who] would proceed against the violators." Although Chief Gordon testified that Mrs. Cassella was a "law enforcement officer in that she was responsible for the enforcement of traffic laws," she would actually report any traffic violations she observed to regular officers of the WPD. Further, when asked if she was vested with all the powers of local police, Chief Gordon stated, "For her job description as a special school zone officer, yes."

The Hearing Officer issued a Determination on April 12, 2004, affirming the BJA's prior denial of benefits. The Hearing Officer first concluded that Mrs. Cassella was not a "law enforcement officer" because she did not possess the requisite law enforcement authority, nor was her primary function that of crime control or reduction. The Hearing Officer...