good morning everyone please be seated the court is privileged pleased to welcome again for a second day of sitting with us district judge t s ellis the third from the eastern district of virginia based in alexandria twenty years member of that trial court and also sat frequently with the fourth circuit court of appeals and we crafted him very grateful for his  participation and assistance the panel has before today four cases for argument and two cases are being submitted without argument on the briefs later today the latter two cases are in appeal number zero six tash thirty thirty six kane versus merit system protection board and appeal zero six dash thirty one sixty one tennis purses veterans administration first on the argument list his appeal number zero six fifty thirteen hawkins versus united states stern good morning welcome please begin your view on the regulations or could you simply on the language of the statute for example you used in your opening portion of your argument here is the word involved as i recall the word involved is that in the statute the individual has to be or a multi part test the individual has to be a law enforcement officer involved and force me to get killed in the line of duty so of course we can make our arguments solely based on all of those different aspects you take it to be conceded by the other side that the specie of the genus public safety officer that the two that you're mrs hawkins could fall into would only be a law enforcement officer she would also really critical issue would seem to be what's the proper definition of law enforcement officer that's correct and there we have essentially one sentence in the statute and then some further definition  regulation pertaining to law enforcement officer mimics the original language of the statute defining a law enforcement officer as an individual involved in the enforcement of the criminal law there was a time when of course the word criminal was dropped from the statute and that's the statute that was in effect at the time this hawkins was killed the current version of the statute which was passed in effect of two thousand and six just after this case was decided reinserted the word criminal  mean a force of the criminal law is at the heart of your position that in correctly construing the phrase and foresman of the laws the rig writers properly you should look ahead to look at the rest of the sentence the preceding and subsequent language which talk in terms of things like crime control absolutely your honor i didn't see anywhere in the opinion below or that preceding language about crime control was discussed or distinguished or explained away that i missed something i don't believe so your honor the court below did not analyze the phrase enforcing the laws in the context in which it appears to really examine it in my legislative history of the statute simply i'm certain that enforcing the laws must mean both civil and criminal law but we we would argue that the plain language the context in which it appears as well as the legislative history  that b j a's regulation was an attempt to preclude recovery for access to that suit to something it could achieve when statue has been passed but the p g a regulations don't have anything to do with accidental death they don't exclude recover accidental death they only go to the definition of law enforcement officer and line of duty said that really was a red herring on the part of the trial court mr and isn't the line of duty point also for a parent because if you lose on the criminal law point  and the statute is interpreted to cover non criminal law activities she was within the line of duty i mean she was she was not engaged in entertainment or anywhere in the statute and leaving the bureau of justice administration to fill in that gap as we age the charles river long forstmann off her out of uniform doing something not in the line of duty and line of duty would matter but his she was clearly doing something in the line of duty the question was is whether it was for needs to be involved in criminal activity was well she wasn't doing something within the line of duty under statute of the phrase line of duty i don't believe it's any dispute about that here and so then your argument is essentially this is the important phrase may be outcome determinative in many cases that congress if there is no definition in the statute the only basis i can think of for overthrowing the regulation would be if it's unreasonable that i could not have put it on a hike yes that's exactly correct and i would like t these persons let's teach them how to arrest people and give them arrests arrest responsibilities and the whole thing would have been turned around oh absolutely your honor actually talking to have had those actual crime nevada statute seemed to say all deputy sheriffs have all the law enforcement powers so if she was a deputy sheriff duly appointed under that statute then in terms of authority this is  power etc etc but maybe she wasn't assigned to use such powers who are equipped with a weapon etc to use such powers so i'm trying to understand to what extent you're depending on a conferral of authority by  e to what extent you're depending on an assignment by a superior where the line is drawn well we're looking at one thing superior actually well delegates being the reason for that is the statute says to carry a firearm have to make arrests and certainly never assigned her duties that would indicate that he had delegated that authority to her and if she were such a police officer like that even if she were injured or hurt in our parade or something she'd get choice and you said no i'm sorry every man would not be necessary around is what i intended to say because the facts below are really not in dispute and it's just a matter of law and the trial court erred as a matter of law in finding that ms hawkin civil plea answers we should reverse we should reverse honor absolutely this turn to you can see that mrs hawkins was actually appointed in accordance with the terms of the nevada statute to be a deputy sheriff i don't think there's any evidence to the contrary i'm so i would say well you refer to your brief to a ceremonial swearing in and this sort of dismissive way as if well it was just kind of a gesture it wasn't really any serious appointment under a is required for appointment of mrs hawkins to be a deputy sheriff under the expressed terms of the nevada statute to recall is there another point was that i think for in the i don't know that's what you're asking your honor and i don't recall seeing an appointment papers so i i can't i can't say conclusively i can only say that i don't recall seeing it there was certainly a sworn statement from sheriffs we need to scribing miss hawkins and saying that she was appointed as sheriff's deputy and then going on to describe her activities on the day that she was killed and he testified that he appointed her or just that he's for her he didn't testify at the hearing well he provided it he provided racial his sworn declaration which let me just i recall the that he said he personally for her in but i don't recall deposition testimony declaration testimony saying that he didn't specifically say but is there any dispute at all about what her actual duties were of the tree now your honor and what it was that she wasn't a son absolutely not the court below found that a duty she actually was assigned performed included social and welcome good morning  before in the record she had full on force with orders including the power to arrest and the power to carry a firearm if she so chose but didn't the court interpret law enforcement officer is not laws as the statute was at that time that that was sufficient but a statement by mr boies that we have somehow conceded that it wouldn't need to be remanded on the issue of whether it's criminal l and if you're in the opinion the court said well it's an interesting dialogue that you are having on the subject it's totally irrelevant to the determination and so they made no decision about whether she was in force and criminal laws in fact in the in the case notes on page ninety six where the statute is laid out for the court if there is a case cite and i don't have my glasses  but because he has the right to do anything that a deputy sheriff and not the why no matter then we have hearings in the back regarding this particular deputy on the issue of workers compensation and that's part of the record in that factual hearing determination which was contested because the outcome was that she was a reserve deputy sheriff because you asked the question what she actually appointed they had determined that she was appointed that she was cook as a reserve deputy she was statutorily considered to be a paid member of what was your exactly then are you disagreeing with the government's position are you saying that the reference by mr into primary duty is the wrong test when i see exact disagree or early in the big picture you are i believe it would be at the time of this statute works as a force for the lawyers to have promised mr mrs hopkins that her family would be protected in the event that she was killed that she would get this death benefit in the big picture conferred by a statute and primary duties as a matter of assignment by your superiors now are you saying that it has no legal significance what one's primary assigned duties are there are i'm not saying that all was awarded the which is ten arrests actually factually were there instances in which she made arrests or investigated crime or interrogated prisoners or did other undeniably cop like if you'll pardon the expression x absolutely i think she was engaged one hundred she died she was engaged in a crime fighting activity a warrant for an activity in this particular case property owners whose property was being damaged complying the sheriff said i must act and he compelled me antiochians as his deputy in one of the most experienced writers to be there on a day she did not want to be there and that's in the because you're a deputy sheriff you carry a gun doesn't say to carry it since you have all the rights of the sheriff may have all rights it says he may appoint bar and point and go on read the rest me no fine it's important it's free when the proceeding was here i was under the impression that this was a review on an administrative record is that court of claims have the record before and it deters it made a factual determination they can make factual determinations that's the whole point of my question it can review the factual determinations of the agency and it can draw a legal conclusions but it can't make findings of i understand without saying your honor i believe the court made that made the decision that determining whether or not it was a crime was not necessary for them is that was a time of eighty's when crime was becoming a big concern across the country so they decided to improve more law enforcement officers and my understanding of the legislative history here is that it was purposely expanded by taking out the limitation on this particular matter what is your evidence from legislative history of any john that when the word criminal was removed from the phrase the criminal law that congress intended for civil only enforcement people to be added to the potential category of beneficial i think that's as you characterize that a red herring in the sense that when you talk about civil  so the question the question is you say your understanding the legislative history if they wanted to expand the coverage so i'm saying when they remove the word criminal from the phrase the criminal law so we just read enforce the law without the adjective criminal what can you point to in the legislative record when that change was made that the intent of congress was to greatly expand the category of benefi y i think of it in the legislative record where some of which is what report what testimony what floor state what manager's explanation of the content of the bill in the opinion of the  claims they actually read that's not legislative history i'm talking about what i see night congress when congress took a word out of a phrase you said they intended to enlarge coverage i'm saying where did anybody speaking for expand and or restrict and baby lost and and that's what it says they made an effort to restrict it right my question from you is what are you depending on i don't care for the moment what the trial judge is depending on what legislative history are you depending on for saying congress intend to enlarge the beneficiary well i think just this destruction the change in the statute itself is clear in its meaning if you have the word criminal then it is restricted to criminal and if you purposely take it out of the the key is purposely so what judgement shall wants to know is can you point to was where in the congressional record it is a purposeful exclusion of the word criminal rather than amended verdict on which under the briefs as well as in distraction that when the app you take out a word that is significant and then later you add it back in that it was done purposely they say it is recognized i understood it was right if the intent was to enlarge it to cover syllable only enforcers wouldn't the drifters have had to remove the phrase that's at the very beginning of the sentence be where did it ever say part of the rationale of the trial judge for her overturning the regulations as invalid compared to the statute i do not believe that anywhere it is a draft that somehow they made it civil only first the question is is it is their public safety officers or somebody in walker's then the issue becomes if it is a law enforcement officer that's involved no the issue is what is a law enforcement officer and the child judge hale that a lot of force an officer is somebody who either enforces criminal laws or enforces civil law covers both and you argue quite logically that that seems supported by the removal of the word criminal by the congress but the sentence in which the word criminal was removed starts out by talking about crime control so why wouldn't it have been necessary for a grafter with the purpose you impute to remove the phrase crime control and i understand good question the fact is that if you want someone to join  enforcement and the goal of florence foresman generally is crime control so our motivation for hiring them to sing people coming to the law enforcement is crime control but if you die if you're killed in the line of duty let me ask you whether you were enforcing a criminal let me ask you this that would have been a pretty big change wouldn't it to say ok now law enforcement officer includes some forcing civil laws it would have been so that would have been a big change would have been so significant your honor but it didn't need that extra dialogue oh i see so you're anticipating my question you concede that it's a big change but you're saying it's so big nobody needs to pay any attention to it or to call attention to i did i didn't say i didn't need tension to it it would be like state changing so many bars you do that if there's something minute or of a minor significance you might need to put it in the record to dial up why we did this to all of them letting the dogs that if you're making this big change to expand the universe of people who are entitled to these benefits that you might not want or call attention to that i mean this is a big change i think that's why they made the change this is is just for memories when they put the criminal law back that they then say all we want to change or did they just put criminal law back we're out in a comma but behind the scenes i think there's again you asked me to cite two of those there's the record of the dialogue to whether we're going to expand or retract and it's too inclusive and we don't want people that are law enforcement officers to get the money or we don't want people getting the money that or an ornaments on christmas trees but in this case in this very case why we're here is a mystery since nancy harkins was the county commission indicated she gave her awards and no force and effect here i don't have any doubt that this hawkins deserved all of the benefits and all of the praise and everything that the local authorities gave her but we're here to administer a statute and that the administrative process difficult to fathom as we pointed out that brief some of the issues that might come up in officers we pointed out investigating a traffic accident it's not a crime it's taken out on the on the road does he not get the benefit of the o the she wasn't didn't have the criminal law enforcement function but that's not true you are there are that that's what's ok to clear in the record by right i say you have to take a look at if the state of nevada says by its laws she said deputy reserve sheriff and she is a deputy researcher and they say concede that she's a deputy reserve chair and it says that she has all the powers of the sheriff once sworn in her and then the sheriff himself sheriff saying this was a law enforcement activity that could not have been engaged in by somebody that was not a sworn want if ms hawkins had been marching on her horse in a first question you ask this is she a law enforcement officer and if she is a law enforcement officer then the next question is what she killed in the line of duty and my understanding from the regulations that have been proffered is it's it's it's it's even a more extreme case she's compelled to come out to stop crime she arrives she's in uniform she has her badge she's working with other uniformed full time sworn officers they got a helicopter changed to say fourth and that was let me ask you this suppose the law had never changed to omit criminal then would you concede that you would have a claim crime fighting we do we we do you know acknowledge that the court said that it doesn't matter she was engaged in a bar prospectively even if it was a crime all right thank you thank you very much honor thank you you're honest with the court doesn't understand our arguments concerning the statutes and regulations issues in this case including the divided statute in the difference between allowing authority to be delegated versus whether it actually is so i'll limit my rebuttal to that one point that i believe was it was raised by hellenes and i did not address initially and then it was their argument that every man is necessary in this case because ms hawkins was in their view engaged in crime fighting activities on the day of her death and they point out that the trial court didn't find it necessary to resolve whether rounding up wild horses with that was involved in a crime or email is not necessary for the quarter res there's a purely legal question there is no dispute as to what this hearkens was doing she was part of a roundup of wild horses that belong to no one but were trampling on private property and so no one could be prosecuted for processing command ranking for two thousand and six i believe he was on the committee the main committee that handled that legislation that's my recollection but i don't remember beyond that to take the case under advisement we thank both counsel for now call appeal number zero six five zero