Afolayan v. DOJ

Case: 21-1452 Document: 53 Page: 1 Filed: 04/15/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

LISA AFOLAYAN, WIDOW OF NATHANIEL
AFOLAYAN, DECEASED, ON BEHALF OF
HERSELF AND HER TWO MINOR DAUGHTERS,
Petitioner

v.

DEPARTMENT OF JUSTICE,
Respondent
______________________

2021-1452
______________________

Petition for review of a decision of the Bureau of Justice
Assistance in PSOB Claim No. 2010-022.
______________________

Decided: April 15, 2022
______________________

KYLE LYONS-BURKE, Arnold & Porter Kaye Scholer
LLP, Washington, DC, argued for petitioner. Also repre-
sented by JOHN PATRICK ELWOOD.

GEOFFREY MARTIN LONG, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent. Also repre-
sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
TARA K. HOGAN; JASON P. COOLEY, RAFAEL ALBERTO
Case: 21-1452 Document: 53 Page: 2 Filed: 04/15/2022

2 AFOLAYAN v. DOJ

MADAN, Office of the General Counsel, Office of Justice Pro-
grams, United States Department of Justice, Washington,
DC.
______________________

Before NEWMAN, DYK, and HUGHES, Circuit Judges.
DYK, Circuit Judge.
On April 30, 2009, Agent Nathaniel Afolayan collapsed
after completing a mandatory training run at the Border
Patrol Academy in Artesia, New Mexico. A day later, he
died. His widow, Lisa Afolayan, appeals from the Bureau
of Justice Assistance’s (“Bureau’s”) denial of death benefits
under the Public Safety Officers’ Benefits Act (“PSOBA” or
“Benefits Act”). 34 U.S.C. § 10281. We vacate the decision
and remand for further proceedings consistent with this
opinion.
BACKGROUND
Under the Benefits Act, when the Bureau determines
that “a public safety officer has died as the direct and prox-
imate result of a personal injury sustained in the line of
duty,” the Bureau must pay a death benefit to the surviving
family of the officer. § 10281(a). The Bureau is authorized
to “establish such rules, regulations, and procedures as
may be necessary” to administer the death and disability
benefits under the Benefits Act. § 10285(a).
The regulations define “injury” to include “a traumatic
physical wound (or a traumatized physical condition of the
body) directly and proximately caused by external force
(such as bullets, explosives, sharp instruments, blunt ob-
jects, or physical blows), chemicals, electricity, climatic
conditions, infectious disease, radiation, virus, or bacteria.”
28 C.F.R. § 32.3 (emphasis added). The definition of “in-
jury” excludes “[a]ny occupational disease” or “[a]ny condi-
tion of the body caused or occasioned by stress or strain.”
Id. Under the current regulations, a death “results directly
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AFOLAYAN v. DOJ 3

and proximately from an injury if the injury is a substan-
tial factor in bringing it about.” Id. (emphasis added). The
regulations use the word “factor” to describe the type of in-
jury covered. A factor “substantially brings about a death”
if the factor “alone was sufficient to have caused the death”
or “[n]o other factor (or combination of factors) contributed
to the death . . . to so great a degree as it did.” Id. The key
questions here concern whether “a traumatized physical
condition of the body” was “directly and proximately caused
by . . . climatic conditions” and whether this injury was a
“substantial factor in bringing [Agent Afolayan’s death]
about.”
At the time of his death, Agent Afolayan was in the last
week of a twelve-week training program at the Border Pa-
trol Academy in Artesia, New Mexico. At approximately
2:45 p.m. on April 30, 2009, Agent Afolayan and other
agents-in-training performed their final physical-fitness
test, which included a one-and-a-half mile run to be com-
pleted in thirteen minutes or less. The run took place at
approximately 3,400 feet above sea level, with the temper-
ature at approximately 88 degrees Fahrenheit and relative
humidity between six and seven percent. After completing
the run in eleven minutes and six seconds, Agent Afolayan
indicated that he did not feel well and thereafter collapsed.
He was initially brought to the Border Patrol Academy’s
Health Unit for medical assistance. As his condition de-
clined, he was taken first to Artesia General Hospital, then
to Covenant Medical Center in Lubbock, Texas. Agent
Afolayan died at 10:41 p.m. the next day. His death certif-
icate, as amended in September 2009, listed the immediate
cause of death as “Heat Illness” and identified “cardiomeg-
aly (cardiac disease)” as an “other significant condition[]
contributing to death.” The meaning of the death certifi-
cate is less than clear.
Approximately two years before his death, Agent
Afolayan had obtained genetic testing which revealed that
he was a carrier of sickle cell trait. Sickle cell trait “is not
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4 AFOLAYAN v. DOJ

a disease, but having it means that a person has inherited
the sickle cell gene from one of his or her parents.” Centers
for Disease Control and Prevention, What You Should
Know About Sickle Cell Trait,
https://www.cdc.gov/ncbddd/sicklecell/documents/scd%20f
actsheet_sickle%20cell%20trait.pdf. Sickle cell trait af-
fects approximately one in twelve African Americans in the
United States, though most people with the trait usually
do not have any symptoms of sickle cell disease and live a
normal life. Id. In rare cases, people with the trait “might
experience complications of [sickle cell disease, i.e., a sickle
cell crisis] . . . and, in extreme circumstances, sudden
death.” Id. In a sickle cell crisis, “the different organs
throughout the body, including the brain and the heart and
muscles, all start to be deprived of oxygen because the
blood is clogged up by the sickle cells and not flowing
freely.” J.A. 161. “In their extreme form and in rare cases,”
conditions that could be harmful for people with sickle cell
trait include “[l]ow oxygen levels in the air (e.g., when
mountain climbing, exercising extremely hard in military
boot camp, or training for an athletic competition)[,]”
“[d]ehydration,” and “[h]igh altitudes (e.g., flying, moun-
tain climbing, or visiting a city at a high altitude).” Id.
Ms. Afolayan filed a claim for death benefits under the
Benefits Act in October 2009, relying on the death certifi-
cate listing “Heat Illness” as the cause of death. The Bu-
reau denied her claim in March 2012. Ms. Afolayan
appealed this denial and requested a determination of her
claim by an independent hearing officer. The hearing of-
ficer denied Ms. Afolayan’s appeal in January 2014. In
February 2019, Ms. Afolayan appealed the hearing officer’s
determination to the Bureau’s Director. 1 In September

1 The appeal to the Director, which would otherwise
have been out-of-time, was accepted after Ms. Afolayan
provided good cause for extending the filing deadline.
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AFOLAYAN v. DOJ 5

2020, the Acting Director of the Bureau denied Ms.
Afolayan’s appeal, concluding from the medical evidence in
the record that “Agent Afolayan died—not from a wound or
condition shown to have itself been ‘the direct and proxi-
mate result’ of climatic conditions, such as heat, or another
external force/factor cognizable as an ‘injury’ under
PSOB[A] regulations—but, rather, as a result of several
factors acting together, including physical exertion, sickle
cell trait, heat, altitude, and dehydration.” J.A. 1. As a
consequence, the Acting Director concluded that Ms.
Afolayan failed to “establish[] that Agent Afolayan suffered
an ‘injury’ within the meaning of [the Benefits Act] and its
implementing regulations.” J.A. 21. Ms. Afolayan appeals.
We have jurisdiction under 34 U.S.C. § 10287.
DISCUSSION
We review the Bureau’s denial of a claim for death ben-
efits for: “(1) whether there has been substantial compli-
ance with statutory requirements and provisions of
implementing regulations; (2) whether there has been any
arbitrary or capricious action on the part of the government
officials involved; and (3) whether substantial evidence
supports the decision denying the claim.” Amber-Messick
v. United States, 483 F.3d 1316, 1321 (Fed. Cir. 2007).
The Bureau contends that under the regulations, it was
entitled to consider whether sickle cell trait contributed to
Agent Afolayan’s death more than any other factor and
that the Acting Director properly concluded that “the med-
ical evidence failed to persuade him that climatic condi-
tions contributed to Agent Afolayan’s sickle cell crisis as
much as, or more than, other factors.” Gov’t Br. at 16. Ms.
Afolayan argues that the Acting Director erred by consid-
ering Agent Afolayan’s sickle cell trait as a factor in deny-
ing her claim because it was a “benign condition” that did
not cause his death. Afolayan Br. at 38. Though we do not
agree with Ms. Afolayan in all respects, we agree with her
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6 AFOLAYAN v. DOJ

ultimate conclusion that the Acting Director’s decision
must be set aside.
I
The statute and regulations require that a cognizable
“injury” be the “direct and proximate” cause of death as a
condition for recovery. For present purposes, this requires
that climatic conditions be a contributing factor and that
“[n]o other factor (or combination of factors) contributed . . .
to so great a degree as it did.” 28 C.F.R. § 32.3. 2 The first
questions here are whether the Bureau made a determina-
tion that climatic conditions were such an injury (or factor)
that could support recovery if it were the predominant fac-
tor and what the relevant standard is for making that de-
termination. The Bureau’s decision is less than clear as to
whether the climatic conditions qualified as a direct and
proximate cause if they were the predominant factor. At
the end of the day, it appears that the Bureau skipped
straight to concluding that Agent Afolayan’s death was not
“the direct and proximate result” of climatic conditions

2 The regulations state:
Substantial factor - A factor substantially brings
about a death, injury, disability, wound, condition,
cardiac-event, heart attack, or stroke if -
(1) The factor alone was sufficient to have
caused the death, injury, disability, wound,
condition, cardiac-event, heart attack, or
stroke; or
(2) No other factor (or combination of fac-
tors) contributed to the death, injury, disa-
bility, wound, condition, cardiac-event,
heart attack, or stroke to so great a degree
as it did.
28 C.F.R. § 32.3. Only the second test is at issue here.
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AFOLAYAN v. DOJ 7

because several factors, including sickle cell trait, “act[ed]
together” to cause his death and that Ms. Afolayan there-
fore failed to “establish[] that Agent Afolayan suffered an
‘injury’ within the meaning of [the Benefits Act] and its im-
plementing regulations.” J.A. 1, 21.
This approach is not consistent with the statute or reg-
ulations. The Bureau should first address a predicate
question—whether Agent Afolayan suffered a compensable
injury as a result of “climatic conditions.” In making that
determination, the government appears to take the view
that the climatic conditions must be unusual. The experts,
including the government’s, characterized the conditions
as “adverse” or “unfavorable.” J.A. 111, 300. The hearing
officer found that “while the temperature was what many
might consider ‘hot,’ it was not extremely hot or extraordi-
narily hot.” J.A. 287. The Bureau, however, elided this
question in the final determination on appeal.
While we express no view as to the correctness of the
hearing officer’s determination that the climactic condi-
tions were not extreme, we think that the Bureau’s ap-
proach to the standard by which to make this
determination is generally correct in requiring that condi-
tions be unusual. The reference to “climatic conditions” in
the regulations refers to nonroutine “climatic conditions,”
that is, conditions different from the typical conditions pre-
vailing in the work environment. This would here include
heat, humidity, and altitude.
Congress created the death benefit at issue in the Ben-
efits Act in 1976. The Senate Judiciary Committee initially
reported a bill providing a death benefit to the survivors of
a public safety officer whose death was “in the line of duty
from injuries directly and proximately caused by a criminal
act or an apparent criminal act.” S. Rep. No. 94-816, at 3
(1976). An amendment was offered on the Senate floor sub-
stituting “as the direct and proximate result of a personal
injury sustained in the line of duty” for the narrower
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8 AFOLAYAN v. DOJ

“criminal act” language. 122 Cong. Rec. 22,643 (1976). In
support of the amendment, which was ultimately accepted,
the bill’s sponsor clarified that the benefit “is not health
insurance; but it does provide for payment if an officer is
killed in the line of duty, either by accident or by willful
assault by a criminal.” Id. at 22,644–45.
In adopting the rules implementing the Benefits Act,
the Bureau’s predecessor (“LEAA”) noted that “the defini-
tion of ‘personal injury’ in the House Judiciary Committee
Reports [to include ‘all injuries to the body which are in-
flicted by an outside force . . . but not diseases which arise
merely out of the performance of duty’] manifests the Com-
mittee’s intent to limit coverage to deaths caused by trau-
matic injuries.” 42 Fed. Reg. 23,254 (May 6, 1977).
Accordingly, the LEAA exercised its statutory authority to
adopt regulations defining (1) “personal injury” to mean
“any traumatic injury, as well as diseases which are caused
by or result from such an injury, but not occupational dis-
eases” and (2) “traumatic injury” to mean “a wound or other
condition of the body caused by external force, including
injuries inflicted by bullets, explosives, sharp instruments,
blunt objects or other physical blows, chemicals, electricity,
climatic conditions, infectious diseases, radiation and bac-
teria, but excluding stress and strain.” Id. Which events
are the result of “climatic conditions” and which are in the
category of “stress and strain” is less than clear, since, by
their very nature, climatic conditions, e.g., heat, humidity,
and altitude, may often cause injury by imposing addi-
tional stress and strain. We think a clue to the correct con-
struction appears in commentary to the regulations, where
the LEAA explained that “[c]limatic conditions include at-
mospheric conditions, such as dense smoke, as well as pre-
cipitation and intensely high or low temperatures.” 42 Fed.
Reg. 23,260 (May 6, 1977). This commentary and the ex-
clusion of “stress and strain” in the regulation strongly sug-
gests that ordinary or routine conditions do not fall within
“climatic conditions.” This is particularly clear with
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AFOLAYAN v. DOJ 9

respect to temperature, which the commentary to the reg-
ulation states must be “intensely high or low.” Id. We note
that this court has previously construed the regulations as
requiring “unusually adverse” climatic conditions. Juneau
v. Dep’t of Justice, 583 F.3d 777, 783 (Fed. Cir. 2009).
This view is consistent with the overall statutory pur-
pose. Compensation under the Benefits Act is linked to un-
usual circumstances. In broadening the statute to extend
the benefit to include accidental deaths in the line of duty,
the sponsor of the bill noted that the benefit was not health
insurance, making clear that not all deaths occurring in the
line of duty were compensable. So too, when Congress es-
tablished a rebuttable presumption of entitlement for offic-
ers who died of a heart attack or stroke in 2003, it explicitly
excluded situations involving routine activities, even if
they were stressful or strenuous; “nonroutine” activity was
required. 34 U.S.C. 10281(k)(1). In a 2012 House Report
preceding an amendment of the statute to include rescue
and ambulance workers, Congress again emphasized that
“[t]he PSOBA program is not an insurance program, a
worker’s compensation program, or a remedial program,
and never has been.” H.R. Rep. No. 112-548 at 6 (2012).
The regulation, read in light of its history and the stat-
ute as a whole, requires a finding of nonroutine or out-of-
the-ordinary climatic conditions for compensation. Alt-
hough the Bureau noted the altitude and weather in which
Agent Afolayan completed the training run and collapsed,
it never determined whether the prevailing conditions
were the type of unusual or out-of-the-ordinary climatic
conditions that would qualify for compensation under the
regulations. This was error.
II
If the Bureau determines that Agent Afolayan’s death
was the “direct and proximate result” of an injury caused
by “climatic conditions,” then it must consider a second is-
sue, which is whether sickle cell trait is appropriately
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10 AFOLAYAN v. DOJ

considered in determining whether another “factor . . . con-
tributed to the death . . . to so great a degree” as unusual
climatic conditions. 28 C.F.R. § 32.3. Ms. Afolayan argues
that the Bureau’s consideration of Agent Afolayan’s sickle
cell trait is not permissible under the statute. Specifically,
Ms. Afolayan argues that “[i]t is a background principle in
laws passed to compensate employees that an employer
takes an employee as he finds him,” and, because Congress
is presumed to legislate with knowledge of existing com-
mon law, it must have “intended to maintain the back-
ground principles of worker’s benefit laws that law
enforcement agencies take their employees as they find
them.” Afolayan Br. at 34–35 (internal quotation marks
and citations omitted). In other words, Ms. Afolayan ar-
gues that the statute incorporates what is known as the
“eggshell plaintiff” doctrine in tort law. The “eggshell
plaintiff” doctrine provides:
[A] negligent actor is subject to liability for harm to
another although a physical condition of the other
which is neither known nor should be known to the
actor makes the injury greater than that which the
actor as a reasonable man should have foreseen as
a probable result of his conduct.
Restatement (Second) of Torts § 461 (Am. L. Inst. 1965); see
also Restatement (Third) of Torts § 31 reporters’ note cmt.
b (Am. L. Inst. 2005) (“Every United States jurisdiction ad-
heres to the thin-skull rule; more precisely, extensive re-
search has failed to identify a single United States case
disavowing the rule.”).
However, we disagree that the Benefits Act can be read
to incorporate the eggshell principle identified by Ms.
Afolayan. The decision of our predecessor court in Morrow
v. United States, 647 F.2d 1099 (Ct. Cl. 1981), involved the
LEAA’s denial of death benefits in a case involving a fire-
man inhaling smoke and subsequently dying of a heart at-
tack. At the time, the LEAA recognized “traumatic injury
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AFOLAYAN v. DOJ 11

to be a ‘substantial factor’ in an officer’s death when (1) the
injury itself would be sufficient to kill the officer, regard-
less of the officer’s physical condition at the time of death;
or (2) the injury contributes to the officer’s death to as great
a degree as any other contributing factor, such as pre-ex-
isting chronic, congenital, or progressive disease.” Id. at
1100–01. Our predecessor court affirmed the LEAA’s deci-
sion because “[t]he obvious and overwhelming cause of
death was heart disease—pre-existing, prolonged, and de-
generative.” Id. at 1103.
In light of Morrow and other similar cases, 3 the Depart-
ment of Justice “began to interpret the Program’s guide-
lines to exclude from benefits the survivors of public safety
officer[s] who die of a heart attack or stroke while acting in
the line of duty, arguing that the attack must be accompa-
nied by a traumatic injury.” 149 Cong. Rec. S2,855 (daily
ed. Feb. 26, 2003) (statement of Sen. Patrick Leahy). In
2003, Congress overruled Morrow’s holding in the specific
context of heart attack and stroke cases, closing the “loop-
hole” that excluded scenarios where an injury occurred
while the officer was on duty but did not trigger a heart
attack or stroke until later, such as in the case of a police

3 See Smykowski v. United States, 647 F.2d 1103,
1106 (Ct. Cl. 1981) (“The public policy questions whether,
and under what circumstances, heart attack deaths in the
line of duty should be made compensable under PSOBA in-
volve technical and fiscal judgments best left to Congress
and the agency.”); Russell v. United States, 231 Ct. Cl.
1022, 1025 (1982) (per curiam) (no benefit where officer
had pre-existing condition and injury was caused by “stress
and strain” inherent in police work); Greeley v. United
States, 50 F.3d 1009, 1011–12 (Fed. Cir. 1995) (no benefit
where firefighter died of heart attack after extinguishing a
fire); Juneau, 583 F.3d at 782 (no benefit where “traumatic
bodily condition was caused by stress and strain”).
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12 AFOLAYAN v. DOJ

officer who suffered a fatal heart attack two hours after
chasing and apprehending an escaped juvenile whom he
had been transporting. Id. Congress revised the statute to
create a rebuttable presumption that a heart attack or
stroke suffered by a public safety officer constituted a per-
sonal injury within the meaning of the statute. Hometown
Heroes Survivors Benefits Act of 2003, Pub. L. No. 108-182,
117 Stat. 2649–50 (codified at 34 U.S.C. § 10281(k)).
The heart attack presumption applies if the officer,
“while on duty[,] engages in nonroutine stressful or stren-
uous physical law enforcement, fire suppression, rescue,
hazardous material response, emergency medical services,
prison security, disaster relief, or other emergency re-
sponse activity” or “participates in a training exercise in-
volving nonroutine stressful or strenuous physical activity”
and suffers the injury during or within 24 hours of that ac-
tivity. § 10281(k)(1)–(2). The presumption has since been
broadened to cover “vascular rupture[s]” and may be rebut-
ted if “competent medical evidence establishes that the
heart attack, stroke, or vascular rupture was unrelated to
the engagement or participation or was directly and proxi-
mately caused by something other than the mere presence
of cardiovascular-disease risk factors.” § 10281(k).
Significantly, the statute has not been amended to in-
clude the sickle cell trait within the pre-existing conditions
exclusion. In other words, Congress did not make a more
general change to the Benefits Act eliminating all pre-ex-
isting conditions as a relevant alternative cause. Under
such circumstances, the judiciary cannot extend the stat-
ute to address issues left unaddressed by Congress. As the
Supreme Court ruled in Iselin v. United States:
The particularization and detail with which the
scope of each provision . . . w[as] specified, preclude
an extension of any provision by implication to any
other subject. . . . What [is asked] is not a construc-
tion of a statute, but, in effect, an enlargement of it
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AFOLAYAN v. DOJ 13

by the court, so that what was omitted, presumably
by inadvertence, may be included within its scope.
To supply omissions transcends the judicial func-
tion.
270 U.S. 245, 250–51 (1926).
While we conclude that the eggshell plaintiff doctrine
was not incorporated into the statute, this is not the end of
the necessary inquiry. Although we reject the broad prop-
osition that pre-existing conditions may not be taken into
account, petitioner argues in particular that “the Bureau
Director . . . improperly consider[ed] Agent Afolayan’s be-
nign sickle cell trait in denying his widow’s claim for bene-
fits” and that the decision should be remanded “[b]ecause
the Bureau improperly considered sickle cell trait as a fac-
tor in denying recovery.” Afolayan Br. at 30, 42. There is
support for the view that such genetic traits should not be
taken into consideration. The Genetic Information Nondis-
crimination Act (“GINA”) prohibits employers from
“fail[ing] or refus[ing] to hire, or to discharge, any em-
ployee, or otherwise [] discriminat[ing] against any em-
ployee with respect to the compensation, terms, conditions,
or privileges of employment of the employee, because of ge-
netic information with respect to the employee.” 42 U.S.C.
§ 2000ff-1 (emphasis added). This statute may be relevant
to the Bureau’s decision to deny death benefits on the
ground that Agent Afolayan possessed the sickle cell trait
if these benefits constitute “terms, conditions, or privileges
of employment.” Id. Although Ms. Afolayan raised the
sickle cell issue generally, neither Ms. Afolayan nor the Bu-
reau addressed the GINA. There is limited precedent in-
terpreting the statute. Under these circumstances, we
remand so that the Bureau may consider whether sickle
cell trait should be considered to be a relevant alternative
cause when such a benign trait is not disqualifying from
employment in the Border Patrol. We decline to opine in
the first instance whether the Bureau’s consideration of
Agent Afolayan’s sickle cell trait violates the statutory
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14 AFOLAYAN v. DOJ

prohibition against discrimination based on genetic infor-
mation.
CONCLUSION
The Bureau failed to determine whether the climatic
conditions surrounding Agent Afolayan’s death were a “di-
rect and proximate cause” of his injuries, and if climatic
conditions were a cause, whether Agent Afolayan’s sickle
cell trait could properly be considered in evaluating alter-
nate causation. We vacate the Bureau’s decision and re-
mand for further proceedings consistent with this opinion.
VACATED AND REMANDED
COSTS
No costs.