[00:00:00] Speaker 02:
Our next case is number 24-1692 of Folliant v. Department of Justice.

[00:00:07] Speaker 02:
Okay, Ms.

[00:00:07] Speaker 02:
Masiela.

[00:00:08] Speaker 00:
May I please the court?

[00:00:10] Speaker 00:
Nicole Masiello for Petitioners.

[00:00:12] Speaker 00:
16 and a half years ago, Nate Afalayan, a husband and father, tragically passed away while serving his country.

[00:00:18] Speaker 00:
He died at the end of a mandatory time training run on a hot day with low humidity and a location at high altitude.

[00:00:24] Speaker 00:
This is precisely the type of injury for which Congress intended to provide a death benefit when it passed the Public Safety Officers Benefit Act.

[00:00:30] Speaker 02:
Really?

[00:00:31] Speaker 02:
What's the evidence of that?

[00:00:34] Speaker 02:
If you look at the statute, Congress... It's his personal injury, right?

[00:00:38] Speaker 00:
It does say personal injury and the statute specifically says a public safety officer has died as a direct and proximal result of a personal injury sustained in the line of duty.

[00:00:50] Speaker 02:
The definition from Blacks doesn't sound like climate conditions.

[00:00:56] Speaker 00:
It does not sound like climate conditions, but heat illness does fall within that definition from Blacks.

[00:01:01] Speaker 00:
Blacks says an injury speaks to a traumatic condition of the body and that's what happened here.

[00:01:08] Speaker 00:
If you look at the words Congress used, it had to be a personal injury and the officer died as a direct approximate result of that personal injury.

[00:01:19] Speaker 00:
So under that statutory text, what happened here would fall within those terms.

[00:01:25] Speaker 02:
You've relied on the regulation that refers to climatic conditions, right?

[00:01:31] Speaker 02:
That's your primary argument.

[00:01:33] Speaker 00:
So we have multiple arguments here.

[00:01:38] Speaker 00:
First, we believe that

[00:01:40] Speaker 00:
The regulation that lists climatic conditions as one of the requisite causes of injury here is not in line with that statutory text.

[00:01:51] Speaker 02:
If you look at the statute, and especially after Loper-Bright just... Regulations reference to climatic conditions is impermissible under the statute?

[00:02:01] Speaker 00:
We think if you look at... Is that what you're saying?

[00:02:05] Speaker 00:
Yes, that is one of our arguments here.

[00:02:07] Speaker 03:
What if the regulation didn't mention climactic conditions at all?

[00:02:12] Speaker 03:
Would that violate the statute?

[00:02:15] Speaker 00:
If the regulation, to back up a bit, we believe that the Bureau overstepped what Congress gave it authority to do when it listed here.

[00:02:24] Speaker 03:
You don't think Congress gave them the authority to define what constituted a personal injury?

[00:02:30] Speaker 00:
No.

[00:02:31] Speaker 00:
So if you look at the Public Safety Officers Benefit Act statute, there is a definition section there where Congress defined a number of terms.

[00:02:40] Speaker 03:
And where did they define personal injury?

[00:02:41] Speaker 00:
They did not feel the need to because they meant that term to have its plain meaning.

[00:02:46] Speaker 03:
And they meant... Didn't they delegate a lot of authority to the BJA to implement the statute?

[00:02:53] Speaker 03:
And wouldn't that normally include defining what a personal injury is?

[00:02:56] Speaker 00:
So I think Loper-Bright actually speaks to this question.

[00:02:59] Speaker 00:
In there, the Supreme Court talked to different types of delegations of authority.

[00:03:03] Speaker 00:
If you look at the delegation here, Congress wrote that the Bureau is authorized to establish rules that may be necessary to carry out the purposes of the sub-chapter.

[00:03:11] Speaker 00:
That's very similar to the delegation that was at issue in Loper-Bright.

[00:03:15] Speaker 00:
And the Court specifically discusses in Loper-Bright, there are statutes where Congress said... I'm not sure why this argument you think is helping you because

[00:03:22] Speaker 03:
The regulation includes climactic injury or climactic conditions, which is what you're relying on.

[00:03:29] Speaker 03:
I mean, to me, if we're just looking at personal injury, the weather doesn't count at all.

[00:03:35] Speaker 03:
So if you're asking me to just look at the statute and determine whether these kinds of weather conditions can be an injury, I would say no.

[00:03:43] Speaker 03:
I think your argument has to be that.

[00:03:46] Speaker 03:
This regulation, they decided that climactic conditions could, in certain circumstances, constitute an injury.

[00:03:53] Speaker 00:
Well, our argument is that if the agency for whom you're working subjects you to an intensive training exercise in high heat, and heat illness is a foreseeable and direct result.

[00:04:09] Speaker 02:
There's no other.

[00:04:10] Speaker 02:
This was high heat.

[00:04:11] Speaker 02:
Quite the contrary.

[00:04:13] Speaker 00:
As usual.

[00:04:17] Speaker 00:
88 degrees, we would submit is high heat.

[00:04:21] Speaker 00:
Even if you look at the regulation and we accept that the regulation is a valid exercise of discretion under the statute.

[00:04:30] Speaker 03:
So are you saying, are you agreeing then that climactic conditions has to be something other than ordinary weather?

[00:04:38] Speaker 00:
We, to some extent, yes, in terms that... What does that mean?

[00:04:43] Speaker 03:
It's either yes or no.

[00:04:45] Speaker 03:
Is it if, you know,

[00:04:47] Speaker 03:
It's a snow, a regular snowy day, maybe not the last week we've had here, but a regular snowy day and somebody is out chasing somebody and falls on the snow and tragically hits their head and dies.

[00:05:00] Speaker 03:
Is that climactic conditions?

[00:05:02] Speaker 00:
We would submit that under our view is that it is.

[00:05:07] Speaker 00:
Under the government's view, it may not be.

[00:05:09] Speaker 03:
Well, regular weather then is good enough.

[00:05:14] Speaker 03:
Say we're in Buffalo.

[00:05:15] Speaker 03:
It snows all the time in Buffalo.

[00:05:17] Speaker 03:
If somebody does anything that's connected to snow or ice, even though it's normal weather, that that's an injury.

[00:05:26] Speaker 00:
We do think that would be a compensable injury.

[00:05:29] Speaker 00:
If you took any other view, the government could...

[00:05:36] Speaker 00:
Craft it would just lead to disparate results someone could you know say in North Carolina?

[00:05:41] Speaker 00:
I just know they're not used to some of someone who slips on the ice there would have a Compensable injury, but the person in Buffalo who suffered the same exact injury with a person who slipped on the ice there have a compensable injury unless it was unusually severe weather if you

[00:05:58] Speaker 00:
So they would have a compensable injury.

[00:05:59] Speaker 03:
You've got to look at this in the context of everything else when you're defining injury.

[00:06:03] Speaker 03:
And we're talking normally about gunshots and knife wounds and stabbings and stuff like that.

[00:06:10] Speaker 03:
Ordinary weather that's common for the area is outside of if you send somebody to Death Valley, that's probably a problem.

[00:06:24] Speaker 03:
This was the weather was ordinary for this area, a little on the high heat as the Bureau found, but not out of the ordinary.

[00:06:32] Speaker 00:
So I think Death Valley really exemplifies what went wrong.

[00:06:37] Speaker 00:
This isn't Death Valley, though.

[00:06:38] Speaker 00:
But if Agent Afalion had done his training run in Death Valley, the BGA would have looked at, here's what the weather was like in Death Valley that month.

[00:06:47] Speaker 00:
That is what they did here, and that is where we think they went wrong.

[00:06:51] Speaker 00:
There is no basis to look.

[00:06:52] Speaker 01:
How do you know that that's what they would do with Death Valley?

[00:06:55] Speaker 01:
I mean, I had the same thought myself.

[00:06:58] Speaker 01:
I don't know that that's what they do with Death Valley.

[00:07:01] Speaker 01:
Maybe if the training was in Death Valley at 110 degrees, this would be a very different case.

[00:07:07] Speaker 01:
I don't know that you can assume that that's what they would do.

[00:07:09] Speaker 01:
It might be here that what they did is they said, look at the weather.

[00:07:13] Speaker 01:
I forget exactly what it was.

[00:07:14] Speaker 01:
80 something?

[00:07:16] Speaker 01:
And you know, what was it?

[00:07:18] Speaker 00:
It was 88 degrees today.

[00:07:20] Speaker 01:
And they looked at that.

[00:07:23] Speaker 01:
But I don't know that we can assume that if it were Death Valley, they would just say, well, it's always 110 in Death Valley.

[00:07:31] Speaker 00:
I think that comes back to if you look at how they're interpreting the words climatic conditions because here if on page six of their decision below they went through the average and daily temperature in artesia and that is what they looked at here.

[00:07:47] Speaker 00:
They didn't just look at 88 degrees.

[00:07:48] Speaker 03:
All they're doing is assuming that the weather there is within normal human

[00:07:54] Speaker 03:
limits, and that it's not impermissible to have people do training exercises.

[00:07:59] Speaker 03:
Death Valley is always, by definition, unusually harsh, isn't it?

[00:08:04] Speaker 00:
It would be.

[00:08:06] Speaker 03:
And I do think here, if you... But if you agree that there's an unusually harsh aspect, then your Death Valley problem goes away, because it's almost always unusually harsh there.

[00:08:17] Speaker 03:
So it didn't matter if it's their average temperature.

[00:08:20] Speaker 03:
By definition, the average temperature is unusually hard.

[00:08:23] Speaker 03:
Here,

[00:08:24] Speaker 03:
It could be unusually harsh or it could be normal.

[00:08:27] Speaker 03:
And the Bureau found it was normal.

[00:08:29] Speaker 03:
And don't we review that for substantial evidence?

[00:08:32] Speaker 00:
Well, the Bureau found it was normal based on what was usual in that specific location.

[00:08:39] Speaker 00:
It wasn't looking at the entire waterfront.

[00:08:42] Speaker 03:
Right, because it was an area of the country that's not inhospitable to human life.

[00:08:48] Speaker 03:
So if it's a normal temperature in an area where people live, then

[00:08:52] Speaker 03:
It's a normal temperature, and that's not an injury.

[00:08:54] Speaker 02:
Well, it is a temperature that... They didn't just look at that, either.

[00:08:57] Speaker 02:
They looked at, you know, sports criteria, military criteria, you know.

[00:09:04] Speaker 02:
They didn't just focus on whether this was unusual for this particular geographic area.

[00:09:11] Speaker 02:
They looked more broadly at the issue of what's unusual.

[00:09:16] Speaker 01:
On that note... Can you also look at where Mr. Ifilligan lived or grew up?

[00:09:20] Speaker 00:
He lived in California.

[00:09:23] Speaker 00:
No, but they talked about how the weather was very similar.

[00:09:29] Speaker 00:
One thing I will note in that regard is what the agency did not look at here, and that is the difference it makes when you're at a high altitude.

[00:09:38] Speaker 00:
They did not consider what temperature feels like, what low humidity feels like at that 3,400 feet of altitude.

[00:09:46] Speaker 00:
88 degrees is a hot day.

[00:09:50] Speaker 00:
If you look at the statements in the record from his classmates over and over again, they said it was a hot day.

[00:09:56] Speaker 00:
When he was brought to the hospital in Artesia, they wrote that he had symptoms of heat illness when he passed away at the hospital in Lubbock, Texas.

[00:10:05] Speaker 00:
These are areas that are familiar with the climate there.

[00:10:08] Speaker 00:
They again said it was heat illness.

[00:10:10] Speaker 01:
Is it a question of substantial evidence, the determination

[00:10:14] Speaker 01:
that it was not unusual climatic conditions?

[00:10:22] Speaker 00:
I think there is substantial evidence in the record that the climatic conditions, specifically the combination of the three created.

[00:10:31] Speaker 01:
This is a different question.

[00:10:33] Speaker 01:
So on appeal.

[00:10:35] Speaker 01:
Our job is to review whether there's substantial evidence to support the fact-findings of the tribunal below.

[00:10:43] Speaker 01:
And here, the specific one we're talking about is that fact-finding that there weren't unusual climatic conditions.

[00:10:51] Speaker 01:
Is there substantial evidence to support that finding that it wasn't unusual?

[00:10:55] Speaker 01:
That's the question that we have to consider, right?

[00:10:58] Speaker 01:
It's a hard burden for you, to be honest.

[00:11:01] Speaker 00:
It is.

[00:11:02] Speaker 00:
And if you look at

[00:11:05] Speaker 00:
things in a vacuum, whether the weather was just looking at the specific temperature and humidity in Artesia on that specific day, if that was unusual, the evidence may point to that.

[00:11:18] Speaker 00:
But that, again, takes a step away from both the statute that Congress wrote and the regulations as they are written.

[00:11:25] Speaker 00:
And even further,

[00:11:30] Speaker 00:
While you do look at that finding for substantial evidence, the record also shows that the agency failed to consider, as mentioned, the important consideration of how altitude specifically comes into play here.

[00:11:45] Speaker 00:
That high altitude makes temperatures feel different.

[00:11:48] Speaker 00:
It has a different impact on the body.

[00:11:49] Speaker 00:
And that's something that the agency failed to consider.

[00:11:55] Speaker 00:
did not specifically take that into account.

[00:11:58] Speaker 00:
And again, if you go back to either the statute that Congress wrote or the regulation that the Bureau enacted, there's just no basis from the text of either the statute or the regulation to get into this sort of hair splitting of what was the temperature like in this specific location.

[00:12:16] Speaker 00:
At the end of the day, if you look at

[00:12:19] Speaker 00:
It was a hot day by all accounts.

[00:12:22] Speaker 00:
He died from heat illness by all accounts.

[00:12:26] Speaker 00:
And the government is asking you to determine whether that was 51% cause of death or 49%.

[00:12:33] Speaker 00:
That is just divorced from what Congress wrote and what the agency passed.

[00:12:38] Speaker 00:
And I see I'm into my rebuttal time.

[00:12:44] Speaker 02:
All right, Mr. Long.

[00:12:59] Speaker 04:
Good morning, and may it please the court.

[00:13:00] Speaker 04:
The key point here is that this is subject to a substantial evidence standard review.

[00:13:04] Speaker 03:
Well, let's back up.

[00:13:06] Speaker 03:
Why isn't it the case that it's just by definition an injury if the weather causes the body to react in a way that results in death?

[00:13:18] Speaker 04:
Well, if we go back to the court's prior decision, the first time this was here, the focus is on- Right, right.

[00:13:24] Speaker 03:
I understand.

[00:13:24] Speaker 03:
I think it is probably law of the case that it has to be unusually harsh weather.

[00:13:29] Speaker 03:
interested in the argument that it's an injury because the weather caused the body to react this way.

[00:13:40] Speaker 03:
And I understand there's a whole multitude of arguments that this is not what caused it, all that stuff.

[00:13:44] Speaker 03:
But just take hypothetically, if the weather causes somebody to die,

[00:13:49] Speaker 03:
Why isn't that a compensable injury under the statute?

[00:13:52] Speaker 04:
So I will leave aside the court's prior decision, but I will note one of the things that the court said there was that the purpose of this act is that compensation is limited to unusual circumstances.

[00:14:02] Speaker 04:
And so I think that the regulatory definition limiting climatic conditions to that which is unusual out of the ordinary is consistent with that in the sense that going on an ordinary training run in an environment where that's routinely done

[00:14:19] Speaker 04:
is not the sort of thing that the act is intended to do.

[00:14:21] Speaker 04:
Now, if a training run were ordered in Death Valley, that would be a different analysis.

[00:14:26] Speaker 04:
But that's not what this case is.

[00:14:27] Speaker 03:
So your view is this unusually harsh is just a consequence of the underlying purpose of the entire statute.

[00:14:33] Speaker 03:
And that personal injury there may mean something different than just it may mean in other contexts.

[00:14:40] Speaker 03:
Because this is a special compensation program for people who have suffered traumatic events during the line of duty.

[00:14:48] Speaker 04:
Yes.

[00:14:49] Speaker 04:
And I think it's not.

[00:14:50] Speaker 02:
Suppose, take the Buffalo Snow example.

[00:14:53] Speaker 02:
The officer slips, hits his head, and dies as a result of a concussion.

[00:15:03] Speaker 02:
That's not a personal injury?

[00:15:07] Speaker 04:
In that instance, he has slipped and fallen.

[00:15:15] Speaker 04:
I mean, experienced trauma to his head.

[00:15:17] Speaker 04:
And so we understand that that is an injury.

[00:15:21] Speaker 04:
We probably put aside climatic conditions.

[00:15:23] Speaker 02:
So he could recover.

[00:15:24] Speaker 02:
That officer could recover under those circumstances.

[00:15:28] Speaker 04:
I'd have to think about it more, but I think that climatic conditions would not be the focus.

[00:15:31] Speaker 04:
There would be the injury to the head.

[00:15:33] Speaker 02:
Yeah, but the personal injury was hitting your head and dying.

[00:15:36] Speaker 04:
Right.

[00:15:36] Speaker 04:
And what we see here.

[00:15:37] Speaker 04:
That would be a personal injury.

[00:15:39] Speaker 04:
Right.

[00:15:39] Speaker 04:
And what we see here, if we go forward in the director's analysis, is that the director was unable, putting aside the remand question of unusual, the director was unable to conclude that climatic conditions were unfavorable and that they were a substantial factor in agent-affiliated injury and death.

[00:15:58] Speaker 02:
Is a heat illness a personal injury?

[00:16:02] Speaker 02:
I'm not sure that that would fall on the definition of a personal injury.

[00:16:08] Speaker 02:
It's not traumatic injury, really.

[00:16:10] Speaker 04:
So I think that if we look at the director's decision, when we think about heat illness, you need to be more specific about what exactly was occurring and what we understand to have impacted Agent F. Leon's body leading up to his crisis.

[00:16:30] Speaker 04:
There is a possibility that he had perhaps drank less than normal, if the director notes that.

[00:16:36] Speaker 04:
There is some discussion in the record about how he was feeling in the days prior.

[00:16:42] Speaker 04:
And so heat on this is sort of a generalized concept, I think.

[00:16:45] Speaker 04:
And the director's decision goes into more detail about what exactly was acting on his body and whether anything rose to the level of being a substantial factor.

[00:16:54] Speaker 03:
Well, also, doesn't the regulation itself exclude

[00:16:59] Speaker 03:
stress or strain on the body from the definition of injury, which is more akin to heat illness, whereas hitting your head is an actual... Right.

[00:17:09] Speaker 04:
That's right.

[00:17:10] Speaker 04:
I want to think about it more, but I think that that is going in the right direction, Your Honor.

[00:17:13] Speaker 04:
Yes.

[00:17:14] Speaker 03:
I mean, it's caused by external force, right?

[00:17:16] Speaker 03:
That's the definition of injury, and often it's bullets or knives, but the pavement, I guess, could be external force too.

[00:17:25] Speaker 03:
But then there's the cutout in the definition for

[00:17:29] Speaker 03:
stress or strength.

[00:17:30] Speaker 03:
I think we've had a lot of cases where sometimes people will have a heart attack and die.

[00:17:36] Speaker 03:
And we've found them noncompensable in certain circumstances.

[00:17:39] Speaker 04:
Right.

[00:17:39] Speaker 04:
And that is the moral case, I believe, where an agent had engaged in a chase.

[00:17:46] Speaker 04:
This was in 1981 and had a heart attack later.

[00:17:49] Speaker 04:
And it was found noncompensable, which was affirmed by this court.

[00:17:52] Speaker 03:
So this is a specific program that gives you special compensation for certain

[00:17:59] Speaker 03:
injuries, not every time somebody dies during the line of duty, they get a payout.

[00:18:04] Speaker 04:
Correct.

[00:18:04] Speaker 04:
And there's a long line of precedent, non-presidential case law.

[00:18:10] Speaker 04:
And we could go to legislative history and regulatory history to understand that.

[00:18:13] Speaker 04:
But that's right.

[00:18:15] Speaker 04:
You can see on the face of the statute.

[00:18:16] Speaker 04:
No matter how tragic.

[00:18:18] Speaker 04:
Oh, absolutely.

[00:18:18] Speaker 04:
This is tragic.

[00:18:19] Speaker 04:
This is inarguably tragic.

[00:18:21] Speaker 04:
It is terrible.

[00:18:23] Speaker 04:
But it doesn't mean it's compensable under the statutory regime that Congress has established.

[00:18:30] Speaker 02:
There are no further questions we ask that you affirm.

[00:18:40] Speaker 00:
Just a few points of clarification, your honor.

[00:18:44] Speaker 00:
So first, 88 degree heat and low humidity and high altitude are unusual conditions for a time training run in the sun.

[00:18:52] Speaker 00:
And the agency here did not say that Artesia was inhospitable as a whole.

[00:18:56] Speaker 00:
It just said that those weather conditions were not unusual for the area.

[00:19:01] Speaker 00:
But here for a training run that had to happen at a fast pace, those are

[00:19:07] Speaker 01:
Unusual conditions and that is something difficult Earlier that there was an error because those conditions weren't considered in combination But when I look at the opinion at page a 14 I see multiple times where the fact-finder is saying in combination in combination

[00:19:28] Speaker 01:
What is your response to that?

[00:19:30] Speaker 00:
The fact finder says they were considered in combination, but if you look at what is actually being said there, they aren't actually being considered in combination.

[00:19:38] Speaker 00:
What the fact finder is essentially saying is 1 plus 2 does not equal 6, 3 does not equal 6, so 1 plus 2 plus 3 does not equal 6.

[00:19:48] Speaker 00:
They're saying

[00:19:49] Speaker 00:
Heat and low humidity are not unusual, altitude is not unusual, so all three of them combined are not unusual.

[00:19:58] Speaker 00:
There's nothing in the record that actually dives into how those could have impacted the body, what the temperature and the low humidity made

[00:20:08] Speaker 01:
There's nothing in the record is there nothing in the record Both ways saying that it's extreme and saying that it's not extreme and that was an overstatement your honor.

[00:20:18] Speaker 00:
I'm sorry There is extra testimony in the record if you look at dr. Malusnik Polchan on page 515 of the record says the heat low humidity and altitude combined for a dangerous triad and I believe

[00:20:35] Speaker 00:
The same doctor testified on page 517 that Nate Aflion was fit.

[00:20:43] Speaker 00:
He's used to exercise.

[00:20:44] Speaker 00:
The only new variable here was the temperature that day, the low humidity, and that this time training run happened at high altitude.

[00:20:56] Speaker 01:
And just one other point I wanted to... What about the point that similar training runs had been engaged in on prior games and there was no problem?

[00:21:06] Speaker 01:
Priorities with similar heat, similar environmental conditions.

[00:21:11] Speaker 00:
I don't believe the record specifically says that there were prior training runs that were at that high of temperature.

[00:21:17] Speaker 00:
He did go on prior training runs.

[00:21:21] Speaker 00:
But is never our contention and nowhere in the record do we contend that conditions only create a compensable injury if every single person dies under those conditions, if an injury always results from those conditions.

[00:21:39] Speaker 00:
It just has to be somewhat foreseeable.

[00:21:41] Speaker 00:
Okay, and just one last thing on that point We us council on the other side about stress and strain and heart attacks and as mentioned in our 28a letter and also in the record the agency has paid out claims for heart attacks and similar injuries the only difference here is that

[00:22:11] Speaker 00:
Nate had sickle cell trait and so the agency saw that as an out and a reason not to pay his family for his death in the line of duty.

[00:22:20] Speaker 02:
I think we're out of time.

[00:22:23] Speaker 02:
Thank you.