United States Court of Appeals for the Federal Circuit
2009-8004
CYNTHIA WOODWARD, on behalf of herself
and minor daughter MOLLY WOODWARD,
ASHLEY MARTIN individually and
BRANDON MARTIN individually,
Petitioners,
v.
DEPARTMENT OF JUSTICE,
Respondent.
Tara S. Emory and Joshua B. Smith, Skadden, Arps, Slate, Meagher & Flom,
LLP, of Washington, DC, argued for petitioners. With them on the brief were Ross W.
Tucker and Nicolas E. Boring.
Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. With
her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson,
Director, and Todd M. Hughes, Deputy Director. Of counsel on the brief were Rafael A.
Madan, General Counsel, and Gregory C. Brady and Rosemary Carradini, Deputy
General Counsel, Bureau of Justice Assistance, of Washington, DC.
Roncevert Almond, The Wicks Group, PLLC, of Washington, DC, for amicus
curiae National Volunteer Fire Council.
On petition from: Bureau of Justice Assistance
United States Court of Appeals for the Federal Circuit
2009-8004
CYNTHIA WOODWARD, on behalf of herself
and minor daughter MOLLY WOODWARD,
ASHLEY MARTIN individually and
BRANDON MARTIN individually,
Petitioners,
v.
DEPARTMENT OF JUSTICE,
Respondent.
On petition for review of a decision of the Bureau of Justice Assistance in PSOB Claim
No. 2004-13.
____________________
DECIDED: March 15, 2010
____________________
Before MAYER, FRIEDMAN, and GAJARSA, Circuit Judges.
GAJARSA, Circuit Judge.
Petitioners Cindy Woodward and her children, Ashley Martin, Brandon Martin
and minor Molly Woodward (“Petitioners”), are the family of Daniel Neil Woodward, a
volunteer firefighter with the Blackman Florida Volunteer Fire Department.
Mr. Woodward died in 2001 shortly after fighting a fire. Petitioners submitted a claim to
the Bureau of Justice Assistance (“BJA”) seeking death benefits under the Public Safety
Officers’ Benefits Act (“PSOBA”), 42 U.S.C. § 3796. The BJA Director (“Director”)
denied Petitioners’ claim based on the conclusion that smoke inhalation was not a
“substantial factor” in Mr. Woodward’s death. For the reasons stated below, we reverse
and remand.
BACKGROUND
On the evening of September 6, 2001, Mr. Woodward reported a fire occurring in
the bathroom of his own home. The fire department responded with two fire engines
within ten minutes. Mr. Woodward did not have his protective gear with him, but pulled
the fire hose from the engine and assisted another firefighter for about fifteen to thirty
minutes. After the fire was extinguished, Mr. Woodward walked around the lawn,
leaned against his vehicle, and talked on his cell phone with his wife. About half an
hour later, Mr. Woodward reported minor chest pain to the emergency medical
technician on the scene. Initially, his pain responded to oxygen treatment, but returned
several minutes later. Subsequently, Mr. Woodward had a seizure and stopped
breathing. He was taken by ambulance to the hospital, but after significant efforts to
revive him, he was pronounced dead.
The Florida State Medical Examiner’s Office conducted an autopsy. Dr. Michael
Berkland, the medical examiner who performed the autopsy, determined that
Mr. Woodward died of natural causes. Shortly thereafter, the State of Florida completed
an investigation of Dr. Berkland and found he had falsified several autopsy reports,
including that of Mr. Woodward. The investigation revealed that the toxicology evidence
cited by Dr. Berkland, allegedly showing no smoke inhalation, was entirely fabricated.
The toxicology tests were never requested or performed. The State of Florida
disciplined Dr. Berkland and amended Mr. Woodward’s autopsy report to find that he
died of probable smoke inhalation.
Before Dr. Berkland’s falsification was discovered, the National Institute for
Occupational Safety & Health (“NIOSH”) had issued a report regarding Mr. Woodward’s
death. The report relied on medical conclusions consistent with the falsified findings of
2009-8004 2
Dr. Berkland. The report also contained discussion of interviews of eyewitnesses by an
independent investigator. It did not state whether any firefighters reported that
Mr. Woodward inhaled smoke during the incident. After discovering Dr. Berkland’s
falsification of the autopsy report, NIOSH retracted the 2002 report and issued a revised
report. The revised report advises that Mr. Woodward’s cause of death cannot be
determined with certainty, and speculates that one possible cause was smoke
inhalation “either by itself or as a triggering agent for a heart attack or a cardiac
arrhythmia.” It also states that at least one firefighter reported that Mr. Woodward
inhaled smoke during the fire, and notes that Mr. Woodward’s electrocardiogram was
not consistent with a heart attack. Due to the fact that Mr. Woodward’s remains were
cremated upon his death, it is impossible to perform a new autopsy to determine his
cause of death with certainty.
On October 31, 2003, Petitioners filed a claim for death benefits with the Public
Safety Officers’ Benefit Office (“Office”). On February 9, 2004, the Office denied the
claim concluding that Mr. Woodward’s death was not a result of a personal injury
covered by the PSOBA, but was the result of preexisting coronary artery disease.
Petitioners then requested a hearing officer review of their claim. Petitioners waived
their right to a hearing before an independent hearing officer, but submitted affidavits in
support of their claim.
Petitioners submitted affidavits from Kenneth Finkel, the Fire Chief, Stephen
Marcotte, a member of the fire department, and Larry Matthews, the emergency medical
technician who treated Mr. Woodward on the night of his death. Petitioners also
submitted declarations from two physicians, Dr. DeSimone and Dr. Picketing, who
provided medical opinions regarding the cause of Mr. Woodward’s death. The two
2009-8004 3
physicians opined that, considering the evidence other than the autopsy report, it was
“impossible” to determine the cause of Mr. Woodward’s death. Nonetheless, both
physicians concluded that smoke inhalation was a “substantial factor” in
Mr. Woodward’s death. After reviewing Petitioners’ evidence, the hearing officer
determined that Mr. Woodward’s death was not covered by the PSOBA. The hearing
officer found that “the weight of the evidence shows that VFF Woodward had only been
exposed to smoke for a short time, and for the next half-hour he did not show any
respiratory effects of carbon monoxide inhalation as he engaged in salvage and
overhaul activities.”
On October 20, 2006, Petitioners appealed the hearing officer’s determination to
the Director and sought to introduce new evidence. Petitioners submitted the amended
autopsy report, death certificate, and related documents. Given the unusual
circumstance of an amended autopsy report and death certificate, the Director
suggested remanding the case to a hearing officer for consideration of additional
evidence. Petitioners waived their right to a new hearing, explaining that “additional
factual discovery could not affect the result of the Final Agency Determination.”
Accordingly, the Director considered the claim for a final determination based on the
existing evidence in the record.
On October 28, 2008, the Director issued a final determination denying benefits.
The Director found it more likely than not that Mr. Woodward died as a result of
atherosclerotic cardiovascular disease. Although the Director acknowledged that the
original autopsy was no longer credible, he found the Woodward family did not
sufficiently prove that Mr. Woodward died of smoke inhalation. The Director relied
almost entirely on the NIOSH report, despite the fact that the report relied on
2009-8004 4
Dr. Berkland’s falsified autopsy. Moreover, the Director applied 28 C.F.R. § 32.4
(2007), a regulation implemented in 2006 which provides a more burdensome standard
of proof for certain aspects of claims made under the amended version of the PSOBA.
Thus, Petitioners were denied the death benefits due to their inability to produce certain
medical evidence, which is unavailable as a result of Dr. Berkland’s misconduct.
Petitioners timely appealed the Director’s determination. We have jurisdiction
over the appeal pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
The PSOBA provides death and education benefits to survivors of public safety
officers killed in the line of duty. To qualify for benefits, a petitioner must show that “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). In this case, the Director was
required to determine whether Mr. Woodward suffered a “personal injury” as defined by
the PSOBA. If the stress associated with fighting the fire was the proximate cause of
Mr. Woodward’s heart attack, the death is excluded from the PSOBA’s coverage.
However, if smoke inhalation was a substantial factor in triggering Mr. Woodward’s
heart attack, then it constitutes a “personal injury” covered by the PSOBA. Ultimately,
the Director concluded that the evidence on the record showed that Mr. Woodward died
of a heart attack, not smoke inhalation.
In 2003, when the Woodward family first filed its claim, the following regulation
was in effect: “[T]he [BJA] shall resolve any reasonable doubt arising from the
circumstances of the officer’s death . . . in favor of payment of the death . . . benefit.”
28 C.F.R. § 32.5(a) (1999) (“original regulation”). In 2006, during the pendency of the
Woodward’s appeal, the federal regulations were amended. The amended regulations
2009-8004 5
were intended to implement the Hometown Heroes Act of 2003 (“HHA”), which creates
a presumption that the benefit must be paid to the family of any public safety officer who
dies within twenty-four hours of engaging in non-routine activity in the line of duty,
without regard to whether there was a traumatic personal injury. 42 U.S.C. § 3796
(2004). The HHA presumptively permits death benefits in cases where a safety officer
suffers a heart attack while engaged in fire suppression, but it is not retroactive. Most
notably, the amendment changed a petitioner’s burden of proof for a claim brought
pursuant to the PSOBA: “a claimant has the burden of persuasion as to all material
issues of fact, and by the standard of proof of ‘more likely than not.’” 28 C.F.R. § 32.5
(2007) (“amended regulation”). The amended regulations took effect in August 2006,
about three years after the Woodward family filed their claim. During their appeal, the
Director required the Woodward family to carry the burden of proving Mr. Woodward’s
personal injury by a “more likely than not” standard.
Petitioners assert that the BJA incorrectly applied the amended regulation during
their appeal, changing their burden of proof midstream through the agency proceedings.
Petitioners argue that application of the amended regulation is strongly disfavored in
this case because it represents a significant change in the burden of proof.
In Princess Cruises v. United States, we found that a change in evidentiary presumption
resulted in a significant change in the law, disfavoring retroactive application of the new
law.
397 F.3d 1358, 1364 (Fed. Cir. 2005). In this case, the amended regulation
changed the burden of proof from a lenient standard resolving any reasonable doubt in
favor of the claimant to the more stringent standard requiring that a claimant prove all
material issues of fact by a “more likely than not” standard. This is a significant change
in the law that disfavors retroactive application of the amended regulation.
2009-8004 6
Petitioners further argue that retroactive application of an amended regulation is
disfavored where claimants made strategic decisions in reliance on the old standard,
before the new standard existed. See
id. at 1366. We agree. Petitioners made
strategic decisions in reliance on the “reasonable doubt” burden of proof. Petitioners
waived the remand hearing, believing that the evidence on the record was sufficient to
show that Mr. Woodward died of smoke inhalation. Moreover, Petitioners chose not to
supplement the record upon learning that the initial autopsy report was falsified,
believing that the evidence before the Director was sufficient to satisfy the original
burden of proof. When the BJA changed Petitioners’ burden of proof during the course
of their appeal, Petitioners had no opportunity to introduce additional evidence to satisfy
the heightened burden of proof.
CONCLUSION
Accordingly, we reverse and remand the case for application of the original
regulation to Petitioners’ appeal.
REVERSED and REMANDED.
COSTS
Costs to Petitioners.
2009-8004 7
