Hesson v. DOJ , 664 F. App'x 932 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JULIA A. HESSON, INDIVIDUALLY, AND AS
GUARDIAN AND ON BEHALF OF MINOR
CHILDREN M.H. AND R.H.,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2016-1029
______________________
Petition for review of a decision of the Bureau of Jus-
tice Assistance in PSOB Case No. 2010-081.
______________________
Decided: November 8, 2016
______________________
JAMES M. WILLIAMS, Krugliak, Wilkins, Griffiths &
Dougherty Co. L.P.A., Canton, OH, for petitioner.
COURTNEY D. ENLOW, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ELIZABETH M. HOSFORD; RAFAEL ALBERTO MADAN, JASON
P. COOLEY, Office of the General Counsel, Office of Justice
2 HESSON v. DOJ
Programs, United States Department of Justice, Wash-
ington, DC.
______________________
Before LOURIE, MOORE, and O’MALLEY, Circuit Judges.
PER CURIAM.
Julia Ann (née Bernhardt) Hesson (“Bernhardt”)
appeals, on behalf of herself and her minor children, from
the decision of the Department of Justice’s Bureau of
Justice Assistance (“BJA”) approving the claim of Julie
Ann (née Keady) Hesson (“Keady”) for spousal benefits
under the Public Safety Officers’ Benefits Act (the “PSOB
Act”), 42 U.S.C. §§ 3796 et seq. Corrected Joint Appendix
(“J.A.”) 1–6. Because the BJA correctly determined that
Keady was the surviving spouse under the PSOB Act, we
affirm.
BACKGROUND
On April 29, 2009, William Hesson (“Hesson”), a cor-
rections officer, was physically assaulted while on duty.
J.A. 14. He subsequently died as a result of injuries he
sustained in the assault. Id.Prior to his death, Hesson participated in three mar-
riage ceremonies and had six children. Id. at 3. Hesson
and his first wife, Donna (née Schmucker) Hesson, had
two children and were divorced on May 24, 1993. Id.On February 25, 1995, Hesson married Keady in
North Carolina; the couple had two children. Id. On
March 23, 1999, Hesson and Keady separated and Keady
moved to New York. Id. at 14. Keady attempted to
divorce Hesson by filing a petition for divorce in New
York; however, because she was unable to locate him, she
never served him with the divorce petition. Id. Thus,
Keady and Hesson were never legally divorced. Id. at 5.
HESSON v. DOJ 3
On August 14, 2004, a marriage ceremony between
Hesson and Bernhardt was performed in Ohio. Id. at 14.
Hesson and Bernhardt subsequently had two children
together. Id. at 3.
Following Hesson’s death, Bernhardt, Keady, and his
children sought death benefits under the PSOB Act. The
PSOB Act “provides a one-time cash payment to survivors
of ‘a public safety officer [who] has died as the direct and
proximate result of a personal injury sustained in the line
of duty.’” Juneau v. Dep’t of Justice, 583 F.3d 777, 779
(Fed. Cir. 2009) (quoting 42 U.S.C. § 3796(a)) (alteration
in original). The PSOB Act dictates the division of the
payment among survivors and provides, in relevant part:
if there is at least 1 child who survived the public
safety officer and a surviving spouse of the public
safety officer, 50 percent to the surviving child (or
children, in equal shares) and 50 percent to the
surviving spouse; [or] if there is no surviving
spouse of the public safety officer, to the surviving
child (or children, in equal shares) . . . .
42 U.S.C. § 3796(a). Thus, a surviving child’s payment
amount depends on the number of surviving children and
whether there is a surviving spouse.
On October 1, 2010, the Public Safety Benefits Officer
(“PSBO”) determined that the death of Hesson was cov-
ered by the PSOB Act and that each of Hesson’s six
children was entitled to an equal share of half of the
benefit amount. J.A. 31. The PSBO gave Bernhardt
additional time to investigate whether Hesson and Keady
had been legally divorced. Id. at 32.
On February 24, 2011, the PSBO determined that
Keady was Hesson’s surviving spouse and thus entitled to
the remainder of the benefit amount. Id. at 17. The
PSBO found that no evidence was submitted of a lawful
divorce between Hesson and Keady, and that Keady had
4 HESSON v. DOJ
not held herself out as divorced from, or not being married
to, Hesson. The PSBO explained that Hesson could not
have lawfully entered into marriage with Bernhardt in
Ohio on August 14, 2004 because, under Ohio law, “[o]ne
who is already married has no capacity to enter into
another marriage contract, either ceremonial or [at]
common law.” Id. at 15 (quoting Darling v. Darling, 335
N.E.2d 708, 710 (Ohio Ct. App. 1961)).
Bernhardt appealed the PSBO’s determination and
requested review by a Hearing Officer. Bernhardt alleged
that Keady had held herself out as being divorced from, or
not married to, Hesson and thus Keady was not the
surviving spouse. The Hearing Officer conducted a de
novo review of the record, subpoenaed additional docu-
ments from Keady, and held a hearing where he exam-
ined Keady. Prior to the hearing, the Hearing Officer
denied Bernhardt’s request for certain documents from
Keady. Id. at 2.
On July 15, 2013, the Hearing Officer found that
Bernhardt did not provide any evidence showing that
Keady was ever divorced from, held herself out as di-
vorced from or not married to, or married to someone
other than, Hesson. Id. at 25. The Hearing Officer de-
nied Bernhardt’s claim and concluded that Keady, not
Bernhardt, was Hesson’s lawful spouse at the time of his
death and was entitled to the spousal benefit under the
PSOB Act. Id. at 29.
Bernhardt then requested a determination of the
claim by the Director of the BJA. Bernhardt also submit-
ted a letter “reiterating” the request for “a hearing and
the right to examine Julie Keady” and requesting docu-
ments. Id. at 2. The Director found that the information
sought was unnecessary to determining whether Keady
was divorced under the PSOB regulations and that its
“sensitive nature . . . suggests that it should not be dis-
closed to [Bernhardt].” Id. at 3. The Director conducted a
HESSON v. DOJ 5
de novo review of the record and concluded that, under
the PSOB Act, Bernhardt was not entitled to benefits
because she was not a “spouse” and that Hesson’s lawful
“surviving spouse” was Keady. Id. at 6.
Bernhardt appealed to this court on behalf of herself
and her minor children. We have jurisdiction pursuant to
42 U.S.C. § 3796c–2. Juneau, 583 F.3d at 780.
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 compliance 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 deci-
sion denying the claim.’” Id. (quoting Amber-Messick v.
United States, 483 F.3d 1316, 1321 (Fed. Cir. 2007)).
Bernhardt argues that the BJA failed to substantially
comply with the PSOB Act’s statutory requirements and
implementing regulations by misapplying the term “di-
vorce” in 28 C.F.R. § 32.3. Appellant’s Br. 10. She asserts
that the BJA should have considered the actions of Hes-
son, in addition to those of Keady, to determine that
Keady and Hesson were divorced and that Hesson died
unmarried. Bernhardt does not contest on appeal the
BJA’s conclusion that she was not a “spouse” under the
PSOB Act. J.A. 4. Instead, Bernhardt argues that Keady
was not Hesson’s surviving spouse for purposes of the
PSOB Act and that the entire PSOB Act benefit should
therefore be divided equally among Hesson’s children.
The government responds that the BJA’s interpreta-
tion of its own regulation is entitled to substantial defer-
ence and that the interpretation was consistent with the
regulation and reasonable. Appellee’s Br. 12.
6 HESSON v. DOJ
We agree with the government that the BJA substan-
tially complied with the statutory requirements and the
provisions of the implementing regulations. “The Su-
preme Court has held that an agency’s interpretation of
its own regulations is entitled to substantial deference by
the courts.” Smith v. Nicholson, 451 F.3d 1344, 1349
(Fed. Cir. 2006) (collecting cases); see also Groff v. United
States, 493 F.3d 1343, 1350 n.2 (Fed. Cir. 2007). The
BJA’s “interpretation of its own rule or regulation is
entitled to ‘controlling weight unless it is plainly errone-
ous or inconsistent with the regulation.’” White v. United
States, 543 F.3d 1330, 1333–34 (Fed. Cir. 2008) (quoting
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414
(1945)).
The PSOB Act authorizes a benefit for a “surviving
spouse,” but does not define that term. Congress author-
ized the BJA to “establish such rules, regulations, and
procedures as may be necessary to carry out the purposes
of [the Act].” 42 U.S.C. § 3796c(a); see also Groff, 493 F.3d
at 1350. The BJA promulgated regulations defining
“spouse” and “divorce.” “Spouse means someone with
whom an individual entered into marriage lawfully . . .
and from whom the individual is not divorced, and in-
cludes a spouse living apart from the individual, other
than pursuant to divorce. . . .” 28 C.F.R. § 32.3 (emphasis
added).
Divorce means a legally-valid divorce from the
bond of wedlock (i.e., the bond of marriage), except
that, otherwise, and notwithstanding any other
provision of law, a spouse (or purported spouse) of
an individual shall be considered to be divorced
from that individual within the meaning of this
definition if, subsequent to his marriage (or pur-
ported marriage) to that individual (and while
that individual is living), the spouse (or purported
spouse)—(1) Holds himself out as being divorced
HESSON v. DOJ 7
from, or not being married to, the individual; (2)
Holds himself out as being married to another in-
dividual; or (3) Was a party to a ceremony pur-
ported by the parties thereto to be a marriage
between the spouse (or purported spouse) and an-
other individual.
Id. The BJA interpreted this regulation in relevant part
to mean “a surviving spouse is divorced if . . . the surviv-
ing spouse has held her or himself out as being divorced
or not married to the decedent spouse, being married to
another individual, or participated in a marriage ceremo-
ny with another individual.” J.A. 5; see also id. at 17.
Applying the relevant standard, we uphold the BJA’s
interpretation. The BJA explained that it did not consid-
er the decedent’s actions and representations to deter-
mine if the claimant was “divorced” under the PSOB Act
because that interpretation “all too often would have the
harmful consequence of barring innocent spouses from
payment.” Id. at 17. For example, if “a decedent husband
had gone about representing himself as single on week-
ends or on business trips” Bernhardt’s proposed construc-
tion would bar his widow from receiving the surviving
spouse benefit. Id. The BJA’s interpretation is neither
plainly erroneous, nor inconsistent with the regulation.
The BJA considered the actions of Keady and found
that she had not held herself out as divorced from Hesson.
At the BJA hearing, Keady testified under oath that she
never held herself out as being unmarried or divorced
from Hesson, that she never went through a marriage
ceremony to someone other than Hesson, and that she
always acknowledged her married status when dating
others. Id. at 26. The Hearing Officer found Keady’s
testimony “believable.” Id. at 28. Keady also testified
that she filed her tax returns as “head of household” and
never claimed to be divorced on insurance applications,
official financial documents, or employment paperwork.
8 HESSON v. DOJ
Id. at 5. Keady’s federal tax returns showed her filing
status as “head of household.” Id. at 26.
Bernhardt also argues that the BJA acted arbitrarily
by failing to permit the introduction or consideration of
additional materials she alleges are relevant to whether
Keady held herself out as being divorced. Appellant’s Br.
11. Bernhardt faults the BJA for denying her requests to
subpoena thirteen categories of documents from Keady
and to cross-examine Keady.
The government responds that the Director did not
act arbitrarily in denying Bernhardt’s requests for docu-
ments or to cross-examine Keady. The government ar-
gues that: nothing in the PSOB Act or its implementing
regulations requires the BJA to obtain evidence for a
claimant in support of her claim, Appellee’s Br. 25; the
BJA did not prohibit Bernhardt from submitting any
materials and there were no materials submitted by
Bernhardt that the BJA did not consider, id. at 28–29;
and the PSOB regulations do not provide the claimant
with the right to cross-examine witnesses, id. at 31–32.
We agree with the government that the BJA did not
act arbitrarily in denying Bernhardt’s requests. The BJA
did not prohibit Bernhardt from introducing any evidence
and there is no evidence that the BJA failed to consider
the evidence submitted. The BJA was not required to
permit Bernhardt to cross-examine Keady or subpoena
the requested categories of documents from Keady. In
any event, the Hearing Officer did subpoena documents
from Keady, some of which overlap with Bernhardt’s
requests, and examined Keady at a hearing. Based on its
consideration of all the evidence, the BJA determined that
Keady was Hesson’s surviving spouse and therefore
entitled to fifty percent of the PSOB Act payment amount.
The BJA did not act arbitrarily in reaching this conclu-
sion.
HESSON v. DOJ 9
We have considered Bernhardt’s remaining argu-
ments and conclude that they are without merit. For the
foregoing reason, the decision of the BJA is affirmed.
AFFIRMED
COSTS
No costs.