## United States Court of Appeals for the Federal Circuit

2009-8002 SUSAN JUNEAU, KEVIN JUNEAU, RYAN JUNEAU, and STEVEN JUNEAU, As Surviving Spouse and Children of JOHN ROSS JUNEAU, Petitioner,

v. DEPARTMENT OF JUSTICE, Respondent.

Joseph P. Durham, Jr. , Langley & Lee, LLC, of Albany, Georgia, for petitioner. Jeffrey A. Regner , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, fo r respondent. With him on the brief were Tony West , Assistant Attorney General, Jeanne E. Davidson , Director, and Todd M. Hughes , Deputy Director. Appealed from: Public Safety Officers’ Benefits

## United States Court of Appeals for the Federal Circuit

2009-8002 SUSAN JUNEAU, KEVIN JUNEAU, RYAN JUNEAU, and STEVEN JUNEAU, As Surviving Spouse and Children of JOHN ROSS JUNEAU, Petitioner,

v. DEPARTMENT OF JUSTICE, Respondent.

On petition for review of a decision of the Bureau of Justice Assistance in PSOB claim no. 2004-110.

__________________________ DECIDED: September 29, 2008

__________________________ Before MICHEL, Chief Judge , NEWMAN, and PROST, Circuit Judges

. Opinion for the court filed by Chief Judge MICHEL. Dissenting opi nion filed by Circuit Judge NEWMAN. MICHEL, Chief Judge

. The Department of Justice’s Bureau of Ju stice Assistance (BJA) denied the claim of Susan Juneau and her three children (Claim ants) for benefits under the Public Safety Officers’ Benefits Act (the PSOB Ac t), 42 U.S.C. §§ 3796 et seq. Because the BJA correctly determined that Mrs. Juneau’s dec eased husband did not suffer a “personal injury” as contemplated by the PSOB Act, this court affirms.I. BACKGROUND The City of Albany, Georgia, employed Jo hn Ross Juneau as the Safety Chief at the Southwest Georgia Regiona l Airport, a position that required Mr. Juneau to be a law enforcement officer certified by the State of Georgi a. In addition to his employment as the airport Safety Chief, Mr. Juneau also worked part time as a security guard for Dillard’s, Inc., a department store located in the Albany Mall. On March 2, 2003, while working at Dillard’s, Mr. Juneau noticed two people who he believed were shoplifting. As Mr. Juneau approached the suspects, they began to flee, and a chase on foot ensued. After chasing the suspects out of the store and across the Albany Mall parking lot, Mr. J uneau caught one suspect and brought him to an interview room at Dillard’s for interrogation. After sitting down, Mr. Juneau slumped over in his chair and lost consciousness. Mr. Juneau was taken to a hospital, but he was pronounced dead shortly after arriving there. Mr. Juneau’s death certificate lists his c ause of death as “[c]omplications of coronary atherosclerotic disease . . . in a background of insuli n dependent diabetes mellitus.” An autopsy was performed by Dr. Anthony Clark, the same doctor who completed the death certificat e; Dr. Clark’s autopsy report listed the same cause of death as the death certificate and stated that “no evidence of significant recent or remote traumatic injuries” was present. After Mr. Juneau’s death, his wife and ch ildren applied to the Georgia State Indemnification Commission, which ultimately held t hat, because Mr. Juneau had died in the line of duty, his estate should receive benefits from the State of Georgia. Key in the Georgia State Indemnifi cation Commission’s decision was an opinion from the

2009-8002 2Georgia Attorney General co nsidering whether “an off-duty law enforcement officer [who] is working as a security guard a nd [who] dies from a heart attack pursuing shoplifters” could be said to have died “in the line of duty.” The Claimants also applied to the BJA for benefits under the PSOB Act, which provides a one-time cash payment to survivors of “a public safety officer [who] has died as the direct and proximate resu lt of a personal injury sustai ned in the line of duty.” 42 U.S.C. § 3796(a). In October 2004, the Public Safety Officers’ Benefits (PSOB) Office denied this claim on two groun ds: (1) Mr. Juneau was serving as a private security guard rather than as a public safety officer at the time of his death, and (2) Mr. Juneau’s death was not the result of a traumatic injury. On the latter point, the PSOB Office relied on the decision of this court’s pr edecessor in Smykowski v. United States , 647 F.2d 1103 (Ct. Cl. 1981), to find that Mr. Juneau’s death, re sulting from “a chronic, congenital, or progressive dis ease or other condition,” was not a death resulting from a “personal injury,” as that te rm is used in the PSOB Act. In February 2005, Claimant s appealed the initial dete rmination to a hearing officer. The hearing officer heard testimony from Mr. Juneau’s wife and from employees of Dillard’s and the Southwest Georgia Regional Airport. He also received documentary evidence from Dr. Clark, who had performed the autopsy on Mr. Juneau; Dr. Laurence T. Crimmins, Mr. Juneau’s family physician; and two physicians from the Armed Forces Institute of Pathology, Dr. Dzuy Nguyen a nd Dr. Craig Mallak. Dr. Nguyen and Dr. Mallak agreed with Dr. Clark that “Mr. Juneau died from ather osclerotic cardiovascular disease, a natural process.” Dr. Crimmi ns, though, argued that he believed that Mr.

2009-8002 3Juneau “died as a result of tr auma, specifically the trauma to his body caused by the chase and apprehension of the shoplifting suspec t in the minutes before his collapse.” In March 2007, the hearing officer reve rsed the October 2004 determination, finding both that “the physical nature of th e lengthy chase . . . as well as the energy exerted while chasing the suspect . . . were substantial factors contributing to John Ross Juneau’s death” and that, “when Mr. Juneau exited the doors of Dillard’s, he was acting within the scope of his duties as a State of Georgia law enfo rcement officer, not as a security guard.” Having thus dis posed of both problems found in the initial determination, the hearing officer held that Mr. Juneau’s survivors were “eligible for coverage under the [PSOB] Program.” In October 2008, the director of the BJA reviewed the hearing officer’s decision. The director agreed with the hearing officer that Mr. Juneau was a “pub lic safety officer” within the meaning of that term as used in the PSOB Act, but the director reversed the hearing officer’s determination that Mr. Juneau died as a result of an “injury,” as that term is used in the PSOB Ac t. Because the director’s finding that Mr. Juneau did not die as the result of an injury required denia l of benefits, the direct or did not make any finding regarding whether Mr. Juneau was acting in the line of duty at the time of his death. Claimants have appealed the director’s final decision that Mr. Juneau did not die as a result of an “injury,” as that term is used in the PSOB Act. This court has jurisdiction over Claimants’ appe al under 42 U.S.C. § 3796c-2.

2009-8002 4II. DISCUSSION Our review of a denial of benefits under the PSOB Act by the BJA is limited to three inquiries: “(1) whether there has been substantial complia nce with statutory requirements and provisions of implementing regulations; (2) whether there has been any arbitrary or capricious action on the par t of the government officials involved; and(3) whether substantial evidence supports the decision denying the claim.” AmberMessick v. United States , 483 F.3d 1316, 1321 (Fed. Cir. 2007). The BJA has promulgated regulations impl ementing the requirement of 42 U.S.C. § 3796(a) that it pay a benefit of $250,000 to survivors of any public safety officer who “die[s] as the direct and proximate result of a personal injury sustained in the line of duty.” Among Claimants’ arguments is that, in determining that Mr. Juneau did not die of an “injury” within the m eaning of the PSOB Act, the BJA improperly applied versions of its regulations that were not promulgated until after Claimants filed their claim. In particular, Claimants argue that the BJA should have applied th e versions of 28 C.F.R. § 32.4, providing that “any reasonable doubt arising from the circumstances of the officer’s death” should be resolved “in favor of payment of the death . . . benefit,” and 28 C.F.R. § 32.5, providing that the BJA should “give substantial weight to the evidence and findings of fact pres ented by State, local, and Federal administrative and investigative agencies,” that were in effect in 2004, rather than applying the versions of these regulations presently in effect, which do not contain these provisions. Chiefly, Claimants believe that, had the BJ A applied the 2004 version of 28 C.F.R. § 32.5 to give “substantial weight” to the findings of t he Georgia State Indemni fication Commission, the BJA could not have then foun d, as it did, that Mr. Ju neau’s death was anything other

2009-8002 5than the result of an “injury.” Claimants al so suggest that, had the BJA applied the 2004 version of 28 C.F.R. § 32.4 to resolve reasonable doubt in Claim ants’ favor, the disagreement between Mr. Juneau’s family physician and the th ree pathologists who presented opinions on the caus e of Mr. Juneau’s death would have been resolved by agreeing with Dr. Crimmins that the trauma experienced by Mr. Juneau constituted an “injury” within the m eaning of the PSOB Act. We disagree on both counts. First, the findings of the Georgia State Indemnification Commission were irrelevant to the BJA’s dec ision regarding whether or not Mr. Juneau suffered an “injury.” The Georgia State Indemnification Commission focused entirely on the question of whethe r Mr. Juneau died in t he line of duty, no surprise given that the relev ant Georgia statute contains no requirement that an officer have died as the result of an “injury,” but rat her only a requirement t hat the officer have been “killed in the line of duty.” Ga. Code A nn. § 45-9-82(a)(1). Thus, the state agency made no findings relevant to any issue other than whether Mr. Juneau died in the line of duty, an issue not presented by this appeal . Regardless of whether Claimants are correct that the 2004 version of the BJA re gulations should have been used instead of the present version, the outco me of the BJA’s analysis w ould have been identical either way. Given the irrelevance of this issue to the appeal, the Court need not reach the question of which version of 28 C.F.R. § 32.5 should have been used. A similar problem exists with respect to Claimants’ argument t hat the BJA should have applied the 2004 version of 28 C.F.R. § 32.4. Even if Claimants were correct, the old version of the regulation merely require d that the BJA resolv e “reasonable” doubt in Claimants’ favor. Given t hat two pathologists appointed by the BJA agreed with the

2009-8002 6pathologist who performed the autopsy on Mr. Juneau that Mr. Juneau did not suffer any traumatic injury, the te stimony of Mr. Juneau’s fam ily physician—who had not seen Mr. Juneau for two years before his death—t hat Mr. Juneau experienced trauma is not sufficient in our view to create reasonabl e doubt about whether that trauma was the result of an “injury” withi n the meaning of the PSOB Act. Given the lack of reasonable doubt, even application of the 2004 version of 28 C.F.R. § 32.4 would not have required the BJA to adopt the fi ndings of Dr. Crimmins. Again, then, the Court need not reach the question of which version of t he regulations should have been applied. This leaves only the issue of whether the bodily condition that killed Mr. Juneau, which counsel for the BJA characterize as a “heart attack” and whic h Claimants refer to as a “traumatized condition of the body” caused by the body being in “a hypoxic state,” constitutes an “injury,” as that term is defined in the regulations promulgated by the BJA to implement the PSOB Act. Once again we are faced with a c hange in the language of the regulations. Both the 2004 version and the present version of the regulations provide a definition of “injury,” but, as with the other regulations discussed above, it makes no difference which version of the regulations we apply. The present version of the PSOB regulations provides def initions at 28 C.F.R. § 32.3 and defines the term “injury” as: a traumatic physical wound (or a tr aumatized physical condition of the body) directly and proximately caused by external force (such as bullets, explosives, sharp instruments, bl unt objects, or physical blows), chemicals, electricity, clim atic conditions, infectious disease, radiation, virii [sic], or bacteria, but does not include -- (1) Any occupational disease; or (2) Any condition of the body caused or occasioned by stress or strain.

2009-8002 728 C.F.R. § 32.3 (2009). The 2004 version of the regulations provides a definition of “injury” at 28 C.F.R. § 32.2(e) as “any traum atic injury, as well as diseases which are caused by or result from such an injury, but not occupational di seases.” The 2004 regulations further define “traumatic injury ” as “a wound or a c ondition of the body caused by external force, including injuries inflicted by bullets, explosives, sharp instruments, blunt objects or other physical blows, chemic als, electricity, climatic conditions, infectious diseases, radiation, and bacteria, but excluding stress and strain.” 28 C.F.R. § 32.2(g). Thus, the 2004 regula tions can be synthes ized to provide a definition of injury as “any [wound or condition of the body caused by external force, including injuries inflicted by bullets, expl osives, sharp instruments, blunt objects or other physical blows, chemicals, electricity, climatic conditions, infectious diseases, radiation, and bacteria, but ex cluding stress and strain], as well as diseases which are caused by or result from such [a wound or condition of the body], but not occupational diseases.” But for the addition in the pres ent regulation of wounds or bodily conditions caused by viruses, this definition is essentia lly identical to that presently in effect. Here, we agree with the BJA that Mr. Juneau’s death was not caused by an “injury” falling within this defin ition. There is no dispute that Mr. Juneau’s chasing the shoplifting suspects on foot gave rise to a traumatic condition that, given his “coronary atherosclerotic disease” and “insulin-depen dent diabetes mellitus,” caused his heart to fail. But a traumatic condition, even one caused by actions taken in the line of duty as a law enforcement officer, is not sufficient to warrant payment of benefits under the PSOB Act. The traumatic condition must also be caused by an injury, and such was not the case here.

2009-8002 8Among other things, both the 2004 definition and the pres ent definition have in common that conditions caused by “stress or strain” are excluded fr om the definition of “injury,” even if those conditions can be c haracterized as “traumatic.” Here, Mr. Juneau’s traumatic bodily cond ition was caused by the stre ss and strain occasioned by his chasing the shoplifting susp ects out of Dillard’s and ac ross the mall parking lot, physically apprehending one sus pect, and bringing that suspect back into the department store for interrogation. This conc lusion is supported by all four physicians who presented opinions to the BJA. Dr. Cla rk, who performed the autopsy, stated that Mr. Juneau’s death was natural and a result of “complications of coronary artery disease in a background of insulin-depe ndent diabetes mellitus,” and he found “no evidence of significant recent or remote trau matic injuries.” Dr. Nguyen and Dr. Mallak, who were asked by the BJA to answer t he question of whether Mr. Juneau’s death could be “attributed to the dire ct or proximate result of t he traumatic injury he sustained in the line of duty,” answered that “[t]here was no evidence of a traumatic injury” and that death could be expected for someone with “severe ather osclerotic cardiovascular disease . . . when the heart is subject ed to increased oxygen demand such as strenuous work.” Finally, even Dr. Crimmi ns, Mr. Juneau’s own physician, stated only that Mr. Juneau “died as a resu lt of trauma . . . caused by the chase and apprehension of the shoplifting suspect in the minutes before his collapse,” providing no opinion regarding any injury that Mr. Juneau sustai ned that might have caused the trauma. Given this consistent medica l evidence, we cannot say that the BJA’s decision fails the requirement that it be supported by substantial evidence. Amber-Messick , 483 F.3d at 1321.

2009-8002 9Claimants argue that, merely because Mr. Juneau died from a “traumatic condition of the body” that was “directly attributable [to] the events” following Mr. Juneau’s detection of the alleged shoplifting at Dillard’s, his death satisfies the injury requirement of the PSOB Act. This ignores t he portion of the definition that lays out the causes of traumatic bodily c onditions that render those cond itions “injuries” under the PSOB Act. The definition limits these caus es to “external force (such as bullets, explosives, sharp instruments, blunt objects, or physical blows), chemicals, electricity, climatic conditions, infectious disease, radiation, [viruses], or bacteria.” 28 C.F.R. § 32.3 (2009). None of these c auses was present in Mr. Juneau ’s case; the record shows no evidence of Mr. Juneau’s having been shot, stabbed, hit, involved in an explosion, exposed to chemicals, electricity, or unusua lly adverse climatic conditions, infected with any disease-causing agent, or subjected to radiation. Instead, the record amply demonstrates, as the BJA held, that Mr. Juneau’s traumatic bodily condition stemmed directly from the stress and strain of c hasing and apprehending the shoplifting suspects. To avoid this conclusion, Claimants argue that this case is factually similar to that presented to the Court of Federal Claims in Bice v. United States , 72 Fed. Cl. 432 (2006), in which the court aw arded PSOB benefits to a firefighter who died of a heart attack a little more than one month after having been exposed to heavy smoke while fighting a forest fire. Claimants suggest that here, Mr. Juneau’s death is attributable to what happened to him on the job, just as Ms. Bice’s death wa s attributable to the smoke she inhaled in Bice . But this misses the point. In Bice , the issue was whether the firefighter’s death was attributable to her sm oke inhalation, or w hether it was instead attributable solely to her pre-existing heart di sease. 72 Fed. Cl. at 436. There was no

2009-8002 102009-8002 11 issue regarding whether there was an appropriate injury that occurred in the line of duty, only whether that injury was actually t he cause of the firefighter’s death. Id. ; see also Bice v. United States , 61 Fed. Cl. 420, 430-31 (2004) ( decision pre-dating remand to the BJA, finding that smoke inhalation constitutes a traumatic injury, because smoke is a climatic condition). Here , we encounter precisely the op posite scenario: there is no dispute that Mr. Juneau’s death was caused by activities he performed in chasing down the shoplifting suspects, but there is a questi on whether he suffered any “injury” in the course of those activities that entitles his su rvivors to benefits. We answer this question in the negative. The situation here is factually mo st similar to that in Smykowski , in which this court’s predecessor found no benefits payable where a police officer died of a heart attack after he entered a house in which a suspect was hiding, found the suspect, and struggled with the suspect for a few minutes. 647 F.2d at 1106. The Court of Claims noted that it could not “accept . . . that physical struggle represents a form of traumatic injury. . . . At most, a physi cal struggle can serve as the occasion for the sustaining of injuries.” Id. Similarly, Mr. Juneau in this case chased and apprehended a suspect. Just as our predecessor court found it difficult to accept that a struggle could be called an injury, we have trouble seeing how a foot chase can be called an injury. Thus, we agree with the BJA that Mr. Juneau did not die as a result of the type of “injury” that is compensable under the PSOB Act. COSTS No costs. AFFIRMED

## United States Court of Appeals for the Federal Circuit

2009-8002

SUSAN JUNEAU, KEVIN JUNEAU, RYAN JUNEAU, and STEVEN JUNEAU, As Surviving Spouse and Children of JOHN ROSS JUNEAU, Petitioner,

v. DEPARTMENT OF JUSTICE, Respondent.

On petition for review of a dec ision of the Bureau of Justic e Assistance in PSOB Claim No. 2004-110.
NEWMAN, Circuit Judge , dissenting. On May 2, 2003, John Ross Juneau, an airport safety chief, while working as a parttime security guard at a department store, r an after two persons he believed had committed a crime and who were fleeing outside the st ore, and apprehended one of the suspects. A short time thereafter Mr. Juneau collapsed and died. Mr. Juneau’s surviving family members filed a claim pursuant to the Public Safety Officers’ Benefits Act (PSOBA), which provides for payment to beneficiaries when “a public safety officer has died as the direct and proximate result of a personal injury sustained in the line of duty.” 42 U.S.C. §3796(a). The medical examiner who per formed the autopsy stated that the “immediate precipitating factor contributing to the cause of death was the chase and surrounding events on May 2,2003.” Mr. Juneau’s family physician stated t hat “John Ross Juneau died as a result of trauma, specifically the tr auma to his body caused by t he chase and apprehension of the shoplifting suspect in the minutes before his collapse on May 2, 2003.” A Hearing Officer for the Bureau of Justice Assistance (BJA), Dr. Voncile B. Gowdy, heard live testimony at a hearing and then requested further documentary evidence, including an independent medical evaluation by two physicians from the Armed Forces Institute of Pathology. Dr. Gowdy consider ed all of the facts and circumstances of Mr. Juneau’s death and concluded that the requirement s of the statute were met. Dr. Gowdy remarked that there were discrepancies betw een the medical evaluation he had ordered (which was based solely on documentation of Mr. Juneau’s death) and the medical opinions of the coroner and Mr. Juneau’s fam ily physician (who had personally observed Mr. Juneau’s body). The Hearing Officer appli ed the BJA’s “reasonable doubt” regulation then in effect, to resolve the issue in favor of the claimants. See 28 C.F.R. §32.4 (2004) (“The Bureau shall resolve any reasonable doubt arising from the ci rcumstances of the officer’s death or permanent and total disability in favor of payment of the death or disability benefit.”). 1 The Hearing Officer concluded that “the physical nature of the lengthy chase, coupled with the condition of the weather that was pr esent that day, as well as the energy exerted while chasing the suspect on May 2, 2003 were substantial factors contributing to

1 The Department of Justic e argues in this appeal that a regulatory change in 2006 that removed the reasonable doubt standard had retroactive effect to the 2003 death of Mr. Juneau. That retroactivity argument has been rejected by this co urt and the Court of Federal Claims, which courts have applied the pre-2006 BJA regulation to claims that accrued before the regulatory change. See Amber-Messick v. United States , 483 F.3d 1316, 1325 (Fed. Cir. 2007); Winuk v. United States , 77 Fed. Cl. 207, 215 (2007).

2009-8002 2John Ross Juneau’s death.” The Director of the BJA, reversing the dec ision of the Hearing Officer, determined that Officer Juneau had suffered no in jury, despite his death from heart failure that all agree was caused by his strenuous pur suit and apprehension of an apparent criminal. This is an implausible conclusion, and is not reconc ilable with the purpose of the PSOBA. See Demutiis v. United States , 48 Fed. Cl. 81, 86 (2000) (“The PSOBA is likewise remedial in nature and thus should not be applied grudgingly, but rather should be construed liberally to avoid frustration of its beneficia l legislative purpose.”); see also Baltimore & Phila. Steamboat Co. v. Norton , 284 U.S. 408, 414 (1932) (l aws designed to compensate employees for “personal injuries and deaths o ccurring in the course of their work” are “deemed to be in the public interest and should be construed liberally in furtherance of the purpose for which they were enacted and, if possi ble, so as to avoid incongruous or harsh results”). The Department of Justice does not dispute that Mr. Juneau was acting “in the line of duty,” as required for benefits under the PSOBA. See 42 U.S.C. §3796(a). It is also not disputed that Mr. Juneau’s act of runni ng down and apprehending a person he believed had committed a crime was the dire ct and proximate cause of his death; that is, Mr. Juneau died from the physical trauma induced by the encounter. The Dir ector of the BJA nonetheless found that Mr. Juneau had not been injured in the line of duty. The Director apparently ignored or discounted the medical evidence that supported the petitioners’ claim, and did not take account of the reasonable doubt regulation. This was in violation of the BJA regulations that appli ed to the petitioners’ claim.

2009-8002 3The terms and purpose of the PSOBA are squar ely met on the facts of this case. The public interest served by this law is not in dispute. The Director’s decision, affirmed by my colleagues on this panel, is not the appropriate application of the PSOBA. I respectfully dissent.

2009-8002 4