Julie Amber-Messick, Administratrix of the Estate of Christopher Kangas, Deceased v. United States

NEWMAN, Circuit Judge,

dissenting.

Christopher Rangas, age 14, was an apprentice firefighter, also called a junior firefighter, at Brookhaven Fire Department No. 1. He was killed in an accident on his bicycle while responding to a fire call. His family requested the statutory compensation that is granted, in accordance with the Public Safety Officers’ Benefits Act (PSOBA), to families of firefighters and other public safety officers who die in the line of duty. The family also sought to recognize his memory by inscription on the National Fallen Firefighters Foundation’s Honor Roll of firefighters who die in service; this recognition was denied after the government denied firefighter benefits under the PSOBA.

The PSOBA definition states: “ ‘Firefighter’ includes an individual serving as an officially recognized or designated member of a legally organized fire department....” 42 U.S.C. § 3796b(4). Volunteer firefighters, serving as needed and without compensation, are included. Id. at § 3796b(8)(A) (a “‘public safety officer’ means ... an individual serving a public agency in an official capacity, with or without compensation, as a law enforcement *1326officer, as a firefighter, as a chaplain, or as a member of a rescue squad or ambulance crew”).

The PSOBA is administered by the Department of Justice through its Bureau of Justice Assistance (BJA). The BJA held that Kangas was not a “firefighter” because as a junior firefighter under the age of 16 he could not, in accordance with Pennsylvania law, engage in certain firefighting activities. Firefighters under the age of sixteen are prohibited, in Pennsylvania, from entering burning buildings and from climbing ladders or operating high-pressure hose lines other than during training.

The Court of Federal Claims, reviewing the testimony of Pennsylvania firefighting officials, agreed with these officials that Kangas was part of the firefighting team. At the hearing before the BJA, the Brook-haven Fire Chief, Rob Montella, testified as follows:

The junior firefighter is a — it’s part of the team. They are ... just as much a part of being a firefighter as anybody else out there. They do all the jobs that they need to do. They help out. The jobs that they do are very important. If they’re not there, somebody else has to do the job. If you don’t have the manpower them jobs aren’t getting done. They’re getting done by them other guys that are doing different jobs that they’re allowed to do. So the junior firefighter is a vital part of the fire department.

The Pennsylvania State Fire Commissioner also testified, stating that the Pennsylvania death benefits statute makes no distinction between junior/apprentice firefighters and other firefighters who die in the line of duty, and that Kangas had been so recognized and placed on the state’s Honor Roll of fallen firefighters. The Fire Commissioner testified that the state death benefits statute makes no distinction among junior, apprentice, or other firefighters and that age or service capacity ' are not barriers to state death benefits.

The Court of Federal Claims observed that the federal statute does not exclude apprentice firefighters who die under conditions in which a non-apprentice would be recognized.1 The testimony of the Brook-haven Fire Chief and Pennsylvania Fire Commissioner was clear that the duties performed by the apprentice firefighters freed the senior firefighters for other tasks, and that the apprentices’ tasks are a necessary and integral part of the team effort in fighting fires.

The Court of Federal Claims summarized the evidence as follows:

Christopher had been issued official firefighter equipment. He had completed 58.5 hours of in-house training and had trained in twenty-two different areas related to firefighting, including rescue operations, the functions of an air pack, electronics, carbon monoxide detection and hose rolling. Christopher also was certified in CPR and had responded to twenty-four house drills. The Brookha-ven Fire Department had authorized Christopher to be part of the firefighting team by participating at the scene of a fire, including bringing out portable equipment and fire hoses, providing food, drink and first aid to the other firefighters, and cleaning up after fires that were under control. After Christopher’s death, the Brookhaven, Pennsylvania, Volunteer Fire Department added *1327his name to the honor roll of its deceased members. Christopher was the only person on the honor roll to have died in what the Department determined was “the line of duty.”

70 Fed.Cl. at 321. The Court concluded that Kangas’ service was within the scope of the PSOBA, whose purpose was to encourage and recognize persons who formally participate in public safety activities.

On appeal by the United States, my colleagues now endorse the federal government’s position that Christopher Kan-gas was not a “firefighter” and that his death warrants neither compensation nor recognition. This position contravenes the statutory purposes, summarized in the legislative history as including increasing the morale of fire departments, assisting in recruiting efforts, showing appreciation for public service officers, and alleviating economic and emotional burdens placed upon public servants and their families. The Senate Committee Report accompanying amendments in 2000 explained that the national goal “to reduce loss of life and property and protect the nation’s critical infrastructure from all types of hazards, through a comprehensive, risk-based emergency management program ...” with a broad mission focusing on four areas: preparedness (e.g., emergency planning and training), mitigation, response, and recovery. S. Rep. 106-295 (2000) at 1-2, the Disaster Mitigation Act of 2000, 114 Stat. 1552, Pub.L. No. 106-390. My colleagues’ reliance on Christopher Kan-gas’ exclusion from some senior firefighting activities as the basis for barring his recognition as a fallen firefighter is in direct conflict with the statutory purpose of recognizing the role of the firefighter and others serving the public.

The analogous Pennsylvania Emergency Law Enforcement Personnel Death Benefits Act, 53 P.S. § 891 et seq. states, as does the PSOBA, that: “This Act shall be broadly construed to grant benefits to firefighters ... for deaths related to the performance of their duties.” 53 P.S. § 892.1. Under PSOBA regulation 28 C.F.R. § 32.5 the BJA must give “substantial weight to evidence and findings of fact” presented by state or local agencies. Accordingly, when Pennsylvania has recognized Christopher Kangas as a fallen firefighter under a statute with almost identical language to the federal statute, the United States should not take a contrary position without exceptional good reason. See 28 C.F.R. § 32.4 (“[the BJA] shall resolve any reasonable doubt arising from the circumstances of the officer’s death ... in favor of the payment of the death ... benefit”); Davis v. United States, 46 Fed.Cl. 421, 427 (2000). See also Demutiis v. United States, 48 Fed.Cl. 81 (2000) (the PSOBA must be construed in accord with its legislative intent and applicable canons of construction “both of which compel a conclusion that Congress desired this statute to be applied liberally”), aff'd as modified, 291 F.3d 1373 (Fed.Cir.2002).

Although the United States urges Chevron deference to the interpretation of the BJA, the term “firefighter” in the PSOBA is not ambiguous. An interpretation that excludes apprentice firefighters who die while serving as apprentices, departs so markedly from the statutory purpose as to negate deference. See Whitman v. American Trucking Ass’ns, 531 U.S. 457, 485, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (judicial deference is not warranted where an agency “construe[d] the statute in a way that completely nullifies textually applicable provisions meant to limit [the agency’s] discretion”).

The PSOBA does not limit “firefighter” to exclude all persons who do not enter burning buildings. Observing the various federal laws with firefighter provisions, the civil service law as to federal employees is *1328explicit that a “firefighter” can be an administrator or supervisor who is not “actively engaged in the suppression of fires” — the definition adopted by my colleagues. See 5 U.S.C. § 8331(21). However, according to the BJA’s interpretation, an administrator or supervisor is not a “firefighter.”

The Court of Federal Claims correctly concluded that apprentice firefighters are within the statutory purposes and entitled to the death benefits of the PSOBA:

In conclusion Christopher was a recognized apprentice “firefighter” of the Brookhaven Volunteer Fire Department. He was authorized to attend the scene of a fire, offload equipment, attach non-pressurized hoses to water sources, administer first aid to victims, assist in food services, roll hoses after a fire, remove debris, provide support at hazardous materials scenes and participate in search and rescue operations. Christopher engaged in activities involved in the “suppression of fires.” He was a “firefighter” in the ordinary sense of the word.

70 Fed.Cl. at 331. The exclusion of apprentices who are killed in the line of duty is inimical to the purpose of this statute that was designed to encourage and enlarge such public service. The PSOBA “should not be applied grudgingly, but rather should be construed liberally to avoid frustration of its beneficial legislative purposes.” Bice v. United States, 72 Fed.Cl. 432 (2006). See Balt. & Phila. Steamboat Co. v. Norton, 284 U.S. 408, 414, 52 S.Ct. 187, 76 L.Ed. 366 (1932) (remedial laws “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 possible, so as to avoid incongruous or harsh results”) (citations omitted).

Logic and justice add them weight to the plain reading of this statute. The federal restriction of “firefighter” to exclude apprentices who die in the line of duty is untenable, and in striking contrast to Pennsylvania’s recognition of the death of such apprentices. From my colleagues’ endorsement of this statutory interpretation I must, respectfully, dissent.

. It is undisputed that accidental death while traveling to or from a fire is deemed compen-sable; indeed, a large number of such unfortunate accidents occur. “According to the U.S. Fire Administration, of the 106 fire fighters who died in the line of duty in 2005, 26 were the result of vehicle accidents.” http://www.iaff.org/media/021506health.pdf.