[00:00:00] Speaker 01:
This morning is number 14-8006, Harrison against the Department of Justice, Mr. McGonigal.

[00:00:09] Speaker 04:
Good morning, Your Honor, and may it please the Court.

[00:00:11] Speaker 04:
I'd like to make three points, but first I wanted to address the Court's inquiry concerning the application of the case of Brooks Lee Dunlop Manufacturing.

[00:00:20] Speaker 04:
In the Brooks case, this Court concluded that the retroactive application of amended Section 202, 292, to pending actions

[00:00:29] Speaker 04:
was a rational means of pursuing a legitimate legislative purpose.

[00:00:34] Speaker 04:
In that case, the court allowed the statute to wipe out current pending claims under the QUITAM Act.

[00:00:45] Speaker 04:
In our case, we've got the same rule that would apply, but with a different result.

[00:00:50] Speaker 04:
With a rational basis analysis, the government still has to show that there was a legitimate legislative purpose and

[00:00:58] Speaker 04:
that they use a rational means for achieving this rational government purpose.

[00:01:03] Speaker 04:
In this case, there is a provision in the Day Along Act, which the government construes as giving it the right to apply retroactive regulations throughout the entire Act.

[00:01:17] Speaker 04:
throughout the entire Public Service Officers Benefits Act.

[00:01:21] Speaker 04:
We don't read it that way, but even if we were to take the government's reading of that act, they have identified as the only legitimate legislative purpose the need to have a uniform rule for these cases.

[00:01:37] Speaker 00:
I'll take you back to the basics here, because putting aside the retroactivity question and the due process question, your argument presupposes that the original regulations allow for recovery for mental health issues.

[00:01:57] Speaker 00:
Yes.

[00:01:57] Speaker 00:
That as long as they flowed from the physical traumatic injury.

[00:02:03] Speaker 04:
That's correct, Your Honor.

[00:02:05] Speaker 00:
But here, as I understand the factual record, you have a finding by the workers' compensation group saying that they're totally independent.

[00:02:17] Speaker 00:
In other words, that she may have suffered from PTSD, but it wasn't caused by her knee injury.

[00:02:24] Speaker 04:
That was a decision made by the Workers' Compensation Commission in South Carolina.

[00:02:28] Speaker 04:
This is a decision that would have to be made by the director of this particular agency in the Department of Justice

[00:02:35] Speaker 04:
after reviewing all of the facts and considering all of the factors involved in this case.

[00:02:41] Speaker 04:
Our client was severely injured physically on the job that she required knee replacement surgery seven years later.

[00:02:50] Speaker 04:
So we have a serious physical injury, but of course we've got a total psychiatric disability as a result.

[00:02:57] Speaker 00:
When you say total, what, 18%?

[00:03:02] Speaker 04:
18% was something that was quoted by a doctor back shortly after the accident.

[00:03:08] Speaker 04:
In the course of time, that 18% figure has proven to be false.

[00:03:12] Speaker 04:
However, where we are procedurally here, it would be up to the director, once he has actually weighed all the evidence in front of her, to determine if our client is totally and permanently disabled.

[00:03:26] Speaker 03:
She never made it.

[00:03:27] Speaker 03:
If you achieved a remand, then the director could

[00:03:32] Speaker 03:
make the decision that her pts disease was not caused by a physical injury.

[00:03:39] Speaker 03:
You're saying that fact-finding was made in carolina but not made in the federal?

[00:03:44] Speaker 04:
That's right.

[00:03:45] Speaker 04:
The director would have to make that decision independently.

[00:03:49] Speaker 03:
So that was your answer to Judge O'Malley's question.

[00:03:51] Speaker 03:
Yes it was.

[00:03:51] Speaker 00:
But what in the medical records?

[00:03:54] Speaker 00:
shows that the PTSD flowed from the knee injury.

[00:03:59] Speaker 00:
I can envision mental health illnesses flowing directly from a traumatic physical injury.

[00:04:08] Speaker 00:
But there's nothing in the medical record that indicates that her mental health problems flowed from the knee injury.

[00:04:15] Speaker 04:
Well, I think if you look at Dr. Beck's report, which the agency has put aside, basically, and not really given full weight to,

[00:04:24] Speaker 04:
I think that shows that the injury and all of the circumstances surrounding the injury were the cause of the psychiatric disability.

[00:04:34] Speaker 00:
That's the problem.

[00:04:35] Speaker 00:
is that even under the best scenario, you're arguing that in mental health disease that flows from the traumatic injury.

[00:04:46] Speaker 00:
But the fact that you might have an emotionally traumatic event and a physically traumatic event that are either close or even unified in time doesn't mean one flows from the other.

[00:04:59] Speaker 04:
But it would be difficult to try to divide this up.

[00:05:03] Speaker 04:
If we could imagine circumstances in which somebody was attacked and didn't have an injury, and that would take us, that's not this case.

[00:05:12] Speaker 04:
We have both the injury and the obvious psychiatric reaction to that injury.

[00:05:20] Speaker 04:
How one divides that up would be difficult to say, but again, that's a decision that the director would have to make on remand.

[00:05:28] Speaker 04:
She would have to basically try to, you know, how do you divide the line saying, Regina Harrison is totally disabled because of what happened because of the injury to her knee or she's totally disabled because four people attacked her.

[00:05:42] Speaker 04:
I don't think you can actually divide the two up.

[00:05:45] Speaker 04:
That's artificial.

[00:05:46] Speaker 04:
She was injured in the line of duty as a result of that injury.

[00:05:49] Speaker 04:
She's totally and permanently disabled.

[00:05:52] Speaker 04:
Now again, the director has not made that final finding.

[00:05:56] Speaker 00:
But again, what in the record would even allow the director to make that finding?

[00:06:00] Speaker 00:
Where in the record does the one, is there medical evidence that the one flowed directly from the other?

[00:06:06] Speaker 04:
At this stage, I don't think you...

[00:06:08] Speaker 04:
that anybody could say, Dr. Becker, anybody could say that she would have been totally disabled if nobody had actually touched her, if she hadn't received the injury.

[00:06:18] Speaker 04:
I think that two of them work together.

[00:06:20] Speaker 04:
And I think if we actually look at the language and the exception in the Yankel case, it said stress arising from the injury should be considered.

[00:06:31] Speaker 04:
And it would be difficult to imagine a circumstance in which somebody

[00:06:35] Speaker 04:
was suffering stress that wasn't the result of the actual confrontation itself.

[00:06:42] Speaker 04:
We could be stressed out by the fact that you have a bad knee, but I think... And your bottom line point is that the question hasn't really been presented for adjudication.

[00:06:53] Speaker 03:
So the reason why you haven't made a record yet to connect the physical harm to the PTS disease is you haven't had a forum in which anyone would listen to that argument.

[00:07:05] Speaker 04:
So far, that's correct.

[00:07:07] Speaker 03:
In the federal system.

[00:07:08] Speaker 04:
in the federal system.

[00:07:09] Speaker 01:
So your position and also that it doesn't matter, the record has a dozen different theories and different witnesses attributing different stories of the events that occurred.

[00:07:24] Speaker 01:
Your position is that it doesn't matter which of those is accurate because there is no question that some disability, some injury, some change had taken place.

[00:07:36] Speaker 04:
I think that the agency would have to find that she was, in fact, the hearing officer in 2006, or excuse me, in 2004, found that she had been assaulted.

[00:07:49] Speaker 04:
That finding was not adopted by the director.

[00:07:53] Speaker 04:
She referenced that finding in her findings and facts, but that was never adopted.

[00:07:57] Speaker 01:
There was no adoption, no finding, no balancing of these various theories.

[00:08:05] Speaker 01:
No doubt that there was an injury of some sort, but that's what we're concerned with.

[00:08:10] Speaker 04:
That's correct.

[00:08:11] Speaker 04:
And it's impossible, I think, to separate the physical injury and the psychiatric injury in this particular case.

[00:08:19] Speaker 04:
They all arose out of the same incident.

[00:08:22] Speaker 04:
And it would be up to the director to make that determination.

[00:08:26] Speaker 03:
to see if I've got your case in a nutshell.

[00:08:30] Speaker 03:
My understanding is that in order for you to prevail, you have to get access to the earlier regulation, because under the current regulation... I think that's correct, Ron.

[00:08:40] Speaker 03:
...and in order to gain access to the old regulation,

[00:08:45] Speaker 03:
you have to demonstrate either that the statute is not retroactive, or that if it is retroactive, it doesn't pass rational basis review.

[00:08:55] Speaker 04:
That's correct.

[00:08:56] Speaker 04:
And we would argue on both.

[00:08:57] Speaker 03:
So let me just say from the point of view on rational basis review, my understanding is that the government, which we'll hear from in a minute,

[00:09:05] Speaker 03:
Its theory, its best and only theory coming out of the legislative history, is that the reason for retroactive effect, if it exists, was to have a uniform application and regulation.

[00:09:17] Speaker 03:
That's correct, Your Honor.

[00:09:18] Speaker 03:
So at the time the 2012 statute is enacted, that arguing provides for the retroactivity, the Congress knew that there had been a previous regulation that possibly would have allowed for recovery

[00:09:34] Speaker 03:
for a disease as a result of a physical injury.

[00:09:37] Speaker 03:
That's the legal fiction.

[00:09:38] Speaker 03:
Congress also knew that there had been a subsequent regulation that would preclude such a recovery.

[00:09:45] Speaker 04:
Right.

[00:09:46] Speaker 03:
We know that in the legislative history that Congress had expressed a view that throughout from the very get-go, the object of these awards had been not only for the basis of physical, not mental, implications.

[00:10:02] Speaker 03:
So isn't that possible that when

[00:10:05] Speaker 03:
Legislative history says we want uniform regulations.

[00:10:08] Speaker 03:
What the Congress is saying is we want to have all the regulations interpreted the same going backwards.

[00:10:17] Speaker 03:
And our case law had said these regulations are essentially the same.

[00:10:23] Speaker 04:
Your Honor, the problem with the test right now is this talk about a uniform rule.

[00:10:31] Speaker 04:
That's the only basis they have for it.

[00:10:34] Speaker 04:
They never said anywhere in the legislative history, they never used the word retroactive in the legislative history.

[00:10:40] Speaker 04:
They never pointed out what the scope of this regulation would be.

[00:10:44] Speaker 03:
In my understanding of how rational basis review works is that the Congress doesn't even have to say in the legislation or in the legislative history what its rational basis is.

[00:10:55] Speaker 03:
A court simply has to be able to divine a rational basis.

[00:11:00] Speaker 03:
What I'm saying is I would like you to address why

[00:11:04] Speaker 03:
Why can't there be a rational basis when you say we have known for the longest time that it was the intent of Congress not to have awards for mental impairments, only for physical impairments?

[00:11:20] Speaker 03:
And we know that at the time the legislation was enacted, the regulation clearly

[00:11:25] Speaker 03:
provided the result that there would only be recovery for physical, not for mental impairment?

[00:11:31] Speaker 04:
Well, first of all, the statute itself says personal injury, not physical injury.

[00:11:38] Speaker 04:
I understand, but you know what I'm talking about.

[00:11:41] Speaker 04:
I know what you're talking about.

[00:11:43] Speaker 04:
If there had been something in the legislative history that said, we're going to make the entire act retroactive, allow us to apply retroactive regulations to the entire act,

[00:11:53] Speaker 04:
And then it would have been clear on its face.

[00:11:55] Speaker 04:
But there was none of that anywhere in the legislative history.

[00:11:58] Speaker 04:
This was a provision that nobody understood.

[00:12:02] Speaker 04:
And if you read it, the entire statute as it was presented, as Congress voted on it,

[00:12:11] Speaker 04:
It would appear to apply to the people who are applying under the Dale-Long Act itself.

[00:12:16] Speaker 03:
It's a very convoluted... Right, but I mean, doesn't your case get to the same, get down to rational based review and the end run no matter how you get it, because even if the statute on its face

[00:12:27] Speaker 03:
isn't clearly retroactive, then we have to ask whether or not the regulation is having a retroactive effect, which is what your lead blue brief said, and in order for the regulation to have retroactive effect, it has to pass constant due process muster.

[00:12:44] Speaker 03:
It seems to me that whether or not the legislation is retroactive on its face

[00:12:51] Speaker 03:
or whether only we're talking about a retroactive application of a subsequent regulation.

[00:12:58] Speaker 03:
The process question boils to the same kettle.

[00:13:03] Speaker 04:
The problem is that the legitimate legislative goal that was identified in the legislative history and in the government's brief says that we're trying to establish a uniform rule.

[00:13:12] Speaker 04:
We already had a uniform rule.

[00:13:14] Speaker 04:
There was a uniform rule for this case that was in place when Regina Harrison filed her claim.

[00:13:20] Speaker 04:
The government is now claiming the right to change that rule at any time.

[00:13:23] Speaker 04:
It was changed in her case.

[00:13:25] Speaker 04:
It can be changed in any future case.

[00:13:27] Speaker 04:
So the rational basis that is being put forward to achieve the legislative end is, in fact, the opposite.

[00:13:36] Speaker 04:
It's not providing clarity.

[00:13:39] Speaker 03:
Aren't I also correct in thinking that the Supreme Court has said to us that the rational basis can be actually pretty thin?

[00:13:48] Speaker 03:
I mean the threshold level of rationality doesn't have to be overwhelming for a retroactive measure to pass a due process mustard.

[00:14:02] Speaker 04:
My problem is that outside of Justice Kennedy's concurrence in Eastern enterprises, nobody seems to have found that there was no rational basis in almost any case.

[00:14:12] Speaker 04:
But I think this is one of those cases because, again, there was only one rational basis found, the need for a uniform rule.

[00:14:20] Speaker 04:
We already had a uniform rule.

[00:14:22] Speaker 03:
The rational basis... When your case comes right down to the very, very bottom, the question is whether or not disease in the earlier regulation means a physical-based disease, like a bone disease or a disease in your ear, or whether it can include a mental disease.

[00:14:41] Speaker 04:
That's correct, Your Honor.

[00:14:43] Speaker 04:
And part of our argument, and we brought up the King v. Burwell case, is that this is a very important case because the way the government is reading this statute is deliberately discriminating against the mentally disabled, which is totally against national policy.

[00:14:59] Speaker 04:
And basically, they have attempted to write out the exception in the Yankel case so that they can basically say that

[00:15:06] Speaker 04:
Personal injury only refers to physical injury.

[00:15:08] Speaker 03:
Discrimination in this particular case because discrimination has already been decided that that discrimination will be in the future.

[00:15:15] Speaker 03:
Anyone who is physically injured who has a residual mental disease going forward isn't going to get any recovery under this statute.

[00:15:25] Speaker 04:
And I don't think that was the intention of Congress when they passed it.

[00:15:28] Speaker 04:
That's clearly not the plan.

[00:15:29] Speaker 03:
The question is whether I can snuff out the previous.

[00:15:32] Speaker 00:
I'm sorry.

[00:15:32] Speaker 00:
When you say it's not the intention of Congress, I mean, the House report is very detailed and basically makes it clear that at least the report says this statute is not intended to and was never intended to cover mental stress or strain, even if it comes in conjunction with the physical injury and even if it's post-traumatic or otherwise.

[00:15:54] Speaker 04:
The House report was written in the summer of 2012, and our client filed her claim seven years before that.

[00:16:02] Speaker 04:
That is not legislation.

[00:16:04] Speaker 04:
That is a verbiage that was put in.

[00:16:07] Speaker 04:
If you actually look at the positions that the agency has taken, the Yanko exception was based on a written agency position, and we think that at the very least the Yanko exception should be enforced and the case should be remanded back to the agency.

[00:16:23] Speaker 04:
and requiring him to enforce that exception and not go with whatever law was supposedly created in the committee report that was written seven years after the claim was filed.

[00:16:34] Speaker 01:
Okay, let's hear from the government.

[00:16:37] Speaker 01:
We'll take the rebuttal time.

[00:16:44] Speaker 02:
Good morning, Your Honors.

[00:16:45] Speaker 02:
May it please the Court?

[00:16:46] Speaker 02:
I think Judge O'Malley has precisely identified the narrowest and correct grounds upon which this Court can and should

[00:16:53] Speaker 02:
resolve this case and that is that the record makes clear that the petitioner is not entitled to benefits in this case under either version of the regulations.

[00:17:03] Speaker 02:
And I would like to respond to some of the court's concerns about that point.

[00:17:08] Speaker 02:
And the first thing that I think it's important to emphasize is that the Bureau has already repeatedly addressed and rejected Ms.

[00:17:16] Speaker 02:
Harrison's claim under the previous regulations.

[00:17:20] Speaker 02:
first in 2005, when the office ruled on and rejected her claim under the previous regulations.

[00:17:27] Speaker 02:
And that determination... Well, where does that get us?

[00:17:30] Speaker 03:
I mean, sure the matter is that Ms.

[00:17:33] Speaker 03:
Harrison is very clear in what she wants.

[00:17:35] Speaker 03:
She wants to be able to establish that she has a current disease, PTSD, and that that disease has resulted from a physical injury in the line of duty.

[00:17:45] Speaker 03:
Now, I haven't seen any rejection of that particular theory by the agency at any step along the way.

[00:17:55] Speaker 02:
I think that the initial determination of the Bureau's office in 2005

[00:18:04] Speaker 02:
and then the first level only show me not just talk to talk to me somewhere in the record theory that the person now has in front of us previously indicated certainly in your correct honor that it hasn't been done it has not expressly been rejected in so many words but at a minimum it has implicitly been considered and rejected and i and and the reason for that

[00:18:30] Speaker 03:
So, assuming for purposes of argument that the 2012 statute is retroactive, okay?

[00:18:38] Speaker 03:
And that as a retroactive statute it would have to pass due process must be under rational basis review.

[00:18:44] Speaker 03:
Certainly.

[00:18:45] Speaker 03:
What is the government's explanation of the rational basis?

[00:18:49] Speaker 02:
I think there are at least two rational bases.

[00:18:54] Speaker 02:
The first has already been mentioned and is discussed in our brief and that is

[00:18:58] Speaker 02:
Congress's rational mandate to uniformly and consistently apply the current regulations and claims.

[00:19:06] Speaker 03:
That's not exactly what the legislative history says.

[00:19:10] Speaker 03:
It just says uniform application regulations, right?

[00:19:14] Speaker 02:
Well, the House report also specifically mentions that in the year before the House report,

[00:19:19] Speaker 02:
that the bureau was working with over 700 claims and that the bureau has, quote, struggled to keep abreast and must be provided adequate means to enable it to administer the program and determine claims under the law more efficiently than it does at the present.

[00:19:36] Speaker 02:
And the House report went on to say that this legislation makes certain changes of a technical or administrative nature

[00:19:43] Speaker 02:
to the PSOBA and related law that should help to expedite the administrative processing of these legal claims against the federal government and clarify congressional intent with regard to certain matters.

[00:19:55] Speaker 02:
And by mandating the consistent application of current regulations without regard to when claims accrued or when claims were filed... Do you remember to say consistent application of current regulations?

[00:20:07] Speaker 03:
Are you reading from the legislative history?

[00:20:09] Speaker 03:
I'm I'm I'm not now read it was a moment ago you work that business about applying current regulations that's the department's gloss isn't it?

[00:20:22] Speaker 02:
No the the that is Congress's gloss in the House report your honor.

[00:20:27] Speaker 03:
And I just I just I didn't see the House report actually said they were going to wanted to have application of current regulations.

[00:20:36] Speaker 02:
The House report defines.

[00:20:38] Speaker 03:
Is that in the record?

[00:20:40] Speaker 02:
The House report does not specifically say that the justification applies to that particular aspect of the amendments.

[00:20:48] Speaker 02:
What the House report says is that that rational basis justifies in general

[00:20:54] Speaker 02:
the day-long Public Safety Act of 2012, which includes, among other things, the retroactivity provision, and has already been pointed out earlier this morning, even if Congress had made no statement whatsoever about the purpose for the amendments at that time, all that is necessary under rational basis review is for the Bureau to identify or for the Court to divide such a rational provision.

[00:21:21] Speaker 03:
What you're saying is the dots are there to be connected?

[00:21:23] Speaker 02:
at a minimum.

[00:21:24] Speaker 02:
And I also think it's important to point out that there's another rational basis that this Court should consider in addition to simply streamlining and expediting claims in uniform fashion.

[00:21:34] Speaker 02:
Retroactivity also serves the rational purpose of allowing the Bureau to promptly and efficiently adjust the terms or procedures of the program, consistent with the statute and with the Bureau's broad grant of rulemaking authority, to promote the fair and judicious allocation of limited funds

[00:21:52] Speaker 02:
under the program, which is something that Congress very well could have rationally concluded would be desirable in response to potentially changing nature of claims or questions about the meaning of certain regulations as has arisen in this case.

[00:22:07] Speaker 02:
Now getting back to the diseases which may arise as a result of physical injury clause in the pre-2006 version of the regulation, which is the only basis upon which petitioner argues

[00:22:21] Speaker 02:
that she is entitled to relief.

[00:22:24] Speaker 02:
There are a few points I would like to make.

[00:22:26] Speaker 02:
First, by definition, PTSD, like the vast majority of psychological and psychiatric conditions, is a disorder, not a disease.

[00:22:39] Speaker 01:
and from what you've read to us, there were 800 pending cases.

[00:22:44] Speaker 01:
Were those cases immediately taken up, reviewed, and resolved insofar as any psychiatric component or other than physical injury was involved?

[00:22:58] Speaker 02:
Well, to clarify, Your Honor, I believe the House report stated in excess of 700 claims were pending at that time, and that was prior to the House report.

[00:23:05] Speaker 02:
To answer your question, the

[00:23:08] Speaker 02:
The regulations in question went into effect on September 11, 2006.

[00:23:14] Speaker 02:
And before and after the new regulations went into effect, the Bureau,

[00:23:21] Speaker 02:
And this court and Congress have only consistently ever said that no claimant is entitled to benefits under the Public Safety Officers Benefits Act for any sort of... Whether then all of the pending cases were promptly reviewed and to the extent that they would have been changed based on the interpretation that you're presenting... I don't know... I'm sorry, Your Honor.

[00:23:50] Speaker 01:
in order to the contemporaneous response of the agency that undoubtedly had a hand in explaining to the Congress why new legislation was needed but that's my question did they immediately impose it retroactively or let those cases that were present and unresolved take their course?

[00:24:11] Speaker 02:
Meaning did they immediately oppose the new regulations retroactively or the yes my understanding and this is that the

[00:24:20] Speaker 02:
the 2006 regulations which went into effect on September 11, 2006 have consistently been applied to cases pending before the board as of that date and later, as of the date when the new regulations were enacted, consistent with... Even before the 2012 amendments?

[00:24:44] Speaker 02:
Oh, I apologize.

[00:24:46] Speaker 02:
I had missed your honor's point.

[00:24:48] Speaker 03:
2006 regulations, right?

[00:24:49] Speaker 03:
Which were planning an earlier regulation that had the disease possibility in it.

[00:24:54] Speaker 02:
I don't know, your honor, and I don't know that there's anything in the record to answer that question.

[00:25:00] Speaker 03:
I think what Judge Newman, the presiding judge, was asking about what happened in 2012 when you enact legislation.

[00:25:07] Speaker 03:
in which the agency has said to Congress, we've got these 700 cases that are burning.

[00:25:11] Speaker 03:
Yeah, they're really difficult.

[00:25:13] Speaker 03:
And I think what she was asking was what happened to them?

[00:25:16] Speaker 03:
Did somebody go through them and say, whoops, this has got a mental claim in it.

[00:25:23] Speaker 03:
It's no good, no good, no good down the line.

[00:25:26] Speaker 01:
If I may try responding to Judge Newman's question accurately.

[00:25:38] Speaker 01:
legislative intent.

[00:25:40] Speaker 01:
I think nothing speaks more clearly than how they administered it the day after it was enacted.

[00:25:45] Speaker 02:
Certainly, meaning the regulations.

[00:25:47] Speaker 02:
So Your Honor is referring to the gap between 2006 when the regulations were amended and 2012 when Congress expressly mandated retroactive application.

[00:25:59] Speaker 02:
I do not know how the Bureau handled individual cases in the intervening period, but what is clear from the case law and the record

[00:26:07] Speaker 02:
is that the practical result was no different because whether the previous regulation was applied or whether the new regulations were applied, the Bureau has always consistently denied claims for disability benefits, hinging on psychological or psychiatric injuries, whether or not there is an alleged associated physical injury.

[00:26:31] Speaker 01:
Well, then what was the purpose of the change of law if it wasn't intended to make a change?

[00:26:37] Speaker 02:
The purpose of the change was to clarify, to make more clear that, consistent with the Bureau's historical practice, that these are not the sorts of injuries which are compensable under the Act.

[00:26:51] Speaker 02:
And this gets to a second point that I wanted to make.

[00:26:55] Speaker 03:
Why didn't Mrs. Harrison's claim sit with DOJ for six years?

[00:26:59] Speaker 03:
There are several reasons.

[00:27:01] Speaker 03:
She comes up in 2006, right?

[00:27:03] Speaker 03:
Yes.

[00:27:04] Speaker 03:
And then we don't get an answer until after this Court gets passed.

[00:27:07] Speaker 02:
There are several reasons for that, Your Honor.

[00:27:09] Speaker 02:
There were extensions requested by both sides at various points in the intervening seven years.

[00:27:16] Speaker 02:
Ms.

[00:27:17] Speaker 02:
Harrison had to be examined by several doctors.

[00:27:22] Speaker 02:
So there's no one reason that we can point to.

[00:27:25] Speaker 02:
I would say that there were several reasons.

[00:27:29] Speaker 02:
To get back to the meaning of the

[00:27:32] Speaker 02:
of the deleted diseases clause in the in the original regulation in the pre-2006 version of the regulation.

[00:27:40] Speaker 02:
I mentioned that post-traumatic stress disorder is a disorder not a disease, but even assuming that it is a disease.

[00:27:49] Speaker 02:
No, the definition, just the post-traumatic stress disorder.

[00:27:53] Speaker 03:
Who decided it's not a disease and that it's a disorder?

[00:27:58] Speaker 02:
I'm strictly reading the term at face value, but even if it were a disease, I think the more important point is that... Schizophrenia is a disorder, isn't it?

[00:28:15] Speaker 02:
It may be.

[00:28:17] Speaker 02:
And I think that most psychological and psychiatric conditions are disorders and not diseases because psychological and

[00:28:23] Speaker 02:
Psychiatric conditions tend to be harder to diagnose, I think.

[00:28:27] Speaker 00:
Does it serve disease defined in the statute?

[00:28:30] Speaker 02:
No.

[00:28:31] Speaker 02:
Occupational disease is defined, but not disease.

[00:28:33] Speaker 03:
And the agency hasn't, by regulation, provided that PTSD is not an occupational disease, right?

[00:28:41] Speaker 02:
Well, that is something that may come up on remand if, for whatever reason, this court were to remand.

[00:28:47] Speaker 02:
I don't believe that has been addressed.

[00:28:49] Speaker 02:
But the second point I wanted to make is that even if PTSD were a disease, it still would not qualify under the diseases clause because by definition, post-traumatic stress disorder is caused by exposure to traumatic stress, not necessarily physical injury.

[00:29:05] Speaker 02:
And in this case,

[00:29:07] Speaker 02:
there is a minimum substantial evidence in the record which is in the end of the post-traumatic stress disorder, right?

[00:29:13] Speaker 03:
Yes.

[00:29:14] Speaker 03:
And so it means you're supposed to have some stress, right?

[00:29:16] Speaker 03:
Yes.

[00:29:17] Speaker 03:
And those of us that have lived, for example, with having to have a hip replaced, we know what stress is because you can't sleep at night.

[00:29:26] Speaker 03:
because of the physical disorder.

[00:29:28] Speaker 02:
Absolutely.

[00:29:29] Speaker 02:
And is it possible?

[00:29:30] Speaker 03:
You're not suggesting that it's frivolous to suggest that PTSD is a stress that could emanate from a physical impairment.

[00:29:40] Speaker 02:
No, certainly not frivolous, Your Honor.

[00:29:43] Speaker 02:
And indeed, is it possible that a physical injury could, in some cases, cause traumatic stress, which in turn... The point of Ms.

[00:29:49] Speaker 03:
Harrison's case here is that she'd like to have an adjudication in a forum about these things we're talking about right now.

[00:29:56] Speaker 02:
well i think there are two answers that the first as i mentioned is that this that this is already been decided twice by by by the board you've admitted to me that the precise question hasn't been decided you said it was decided by implication and that just from my vote won't cut the mustard well i i i appreciate that your honor well the other point i would make then is that

[00:30:19] Speaker 02:
At a minimum, regardless of how this court reads the office's initial determination and regardless of how this court reads the administrative hearing's subsequent determination and the final decision, in any event, the standard of review under Amber Messick is simply whether there is substantial evidence in the record to support

[00:30:40] Speaker 02:
the bureau's final determination.

[00:30:42] Speaker 02:
And if you read the director's final determination, and if you particularly look at the appendix to that final determination, there is at a minimum substantial evidence in the record to show

[00:30:53] Speaker 02:
to support the conclusion that Ms.

[00:30:55] Speaker 02:
Harrison's PTSD was caused by, if anything, the justifiable and understandable trauma of being exposed to this very stressful assault and not by the physical injury of her... Well, I mean, substantial evidence is that amount of evidence that anyone can make a reasonable decision on.

[00:31:16] Speaker 03:
And the fact that the evidence you're talking about is in the record, there's also the evidence in the record that Ms.

[00:31:22] Speaker 03:
Harrison has suffered a great deal as a result of a physical injury and has therefore had stress.

[00:31:30] Speaker 02:
I think that is precisely my point, Your Honor.

[00:31:32] Speaker 03:
The record that you tell me lacks substantial evidence to support her physical disease theory, I'm just saying there's plenty of evidence in the record that would support that theory.

[00:31:47] Speaker 02:
But this court's standard of review is not whether there is arguably some evidence to support her theory.

[00:31:52] Speaker 02:
The standard of review under Amber Messick is whether there is any substantial evidence to support the Bureau's finding.

[00:31:58] Speaker 01:
But you're not telling us that the substantial evidence standard applies to the statutory or regulatory interpretation.

[00:32:07] Speaker 01:
You're just saying forget all that, take the government's view, and then see if it's supported.

[00:32:13] Speaker 02:
Right, I'm saying, even assuming that retroactivity is out of the picture, and even assuming that the board were to look at this a fourth time under the deleted other diseases clause, that there is at a minimum substantial evidence to support the decision that the Bureau has already made three times.

[00:32:34] Speaker 01:
On the government's theory that it's not retroactive, it is retroactive.

[00:32:38] Speaker 02:
No, Your Honor, this assumes that the court finds that it's not retroactive because at a minimum what the evidence shows is that Ms.

[00:32:47] Speaker 02:
Harrison's PTSD, at a minimum substantial evidence to support the Bureau's finding that her PTSD was not caused by

[00:32:59] Speaker 02:
physical injury in and of itself, in so much as it was caused by the traumatic exposure, the very stressful and understandably traumatic circumstances of responding to a prison fight.

[00:33:08] Speaker 00:
So you're saying even if we accept the proposition that we're operating under the old regulation, and we accept the proposition that the old regulation says what Miss Harrison Council says that it does,

[00:33:19] Speaker 00:
you think there's still substantial evidence to justify the rejection?

[00:33:23] Speaker 02:
Absolutely, and I think that's very clear in the director's final determination and in the appendix attached to the director's final determination where he discusses... But there wasn't a decision on that.

[00:33:33] Speaker 03:
A decision on... Just as you've described it.

[00:33:37] Speaker 02:
I would say there was a decision.

[00:33:38] Speaker 02:
The director cited all of the evidence.

[00:33:40] Speaker 02:
and as your honor has pointed out, there is some evidence in the record to go both ways.

[00:33:45] Speaker 03:
My point is the director didn't say, assuming that what Ms.

[00:33:49] Speaker 03:
Harrison is trying to do is to say, I have a disease, the disease is connected to a physical injury, and then the response to that is, oh no no, your disease is connected not to the physical injury, but to something else.

[00:34:01] Speaker 03:
There isn't, that specific finding isn't in the record.

[00:34:04] Speaker 02:
I don't know if

[00:34:05] Speaker 03:
if there's a transfer from every proceeding and i heard from the record so i you have to live with what we have run uh... right here in cheney problem with you here aren't you asking us to uh... from the agency on ground with the agency didn't sell expressly design on this particular point you're talking your honor our position is that the director's final determination just answer my question you know what he really said he really said we can't firm

[00:34:35] Speaker 03:
on a ground that was not articulated by the agency, especially where factual considerations and the expertise of the agency is what would have driven the decision, right?

[00:34:46] Speaker 03:
Yes.

[00:34:46] Speaker 03:
So on your alternative ground position there at the end, you put it was well summed up by Judge O'Malley.

[00:34:54] Speaker 03:
I wonder why there isn't a chainery problem with that.

[00:34:58] Speaker 03:
all i can see in response to that your honor is is that i believe that all of the facts are in the director's final decision and in the appendix and that those facts are right and that's what keener is all about the facts the facts are always in a record and what an appellate court did for a while was to say well boy if i had been looking at those facts i would have made a specific decision a and i'm going to apply that from the bench and the supreme court said you're not supposed to do that

[00:35:24] Speaker 03:
you're supposed to go back where especially words driven by the facts, you're supposed to let the agency speak first.

[00:35:32] Speaker 03:
Well, I would also point out that... I mean, I'd sort of say, nice try on that one, but I think there's a machinery problem.

[00:35:40] Speaker 02:
I would also point out, Your Honor, that the Bureau repeatedly referred to the Yanko decision in justifying the decision that was made three times to deny petitioners' claim for benefits.

[00:35:53] Speaker 02:
And

[00:35:53] Speaker 00:
the the import of yanko is clearly the the sort that this type of psychological is not a straightening the fact that we're just because i think that one of the country that we have to pre-suppose here

[00:36:07] Speaker 00:
that there is a physical injury, and now we're sort of operating under the question.

[00:36:11] Speaker 00:
You said even for purposes of this argument, you're willing to say, okay, even if we're under the old regulation, and even if the old regulation contemplates mental health issues that flow directly from the physical injury.

[00:36:25] Speaker 00:
That takes us out of Yanko, doesn't it?

[00:36:27] Speaker 02:
Yes, but the point that I was trying to make, Your Honor, is that the Bureau repeatedly cited Yanko and applied Yanko to the facts of this particular case in denying Ms.

[00:36:37] Speaker 02:
Harrison's claim.

[00:36:38] Speaker 02:
So it's not as if the Bureau simply cited all of these facts in a vacuum and denied her claim without any explanation at any step of the way.

[00:36:51] Speaker 03:
No, the Bureau sort of ties up tighter to your rational basis review argument.

[00:36:58] Speaker 03:
but this is the agency consistently has been saying over and over and over again, our awards have to be totally and exclusively based on physical impairments.

[00:37:09] Speaker 02:
That's exactly right, Your Honor, and not just the agency, but also the Congress, and also this court, not just in Yankel, but also in the Curtis and in the Porter decisions.

[00:37:21] Speaker 02:
So at a minimum,

[00:37:23] Speaker 03:
congress uh... had a rational basis for me and i don't get to at least in one of our cases it says the regulations are centrally the same right that would be the only regulation in the new regulations precisely and they can't be essentially the same in your view if disease includes mental disease i'm sorry they can't be essentially the same in your view because the later regulations make clear that there's no room for mental disease

[00:37:51] Speaker 03:
Well, then the earlier regulation should be interpreted the same way.

[00:37:55] Speaker 02:
I would say that essentially the same is not the same as exactly the same, and certainly we acknowledge that a change was made to the regulation and the diseases clause was deleted.

[00:38:07] Speaker 02:
And it is conceivable that a certain claimant who has an identifiable disease that was caused by a physical injury could conceivably

[00:38:21] Speaker 02:
be entitled to compensation under the prior regulations, but not the current regulations.

[00:38:26] Speaker 02:
But that is not this case, and there is at a minimum substantial evidence in the record to support the Bureau's determination.

[00:38:32] Speaker 01:
So what is this case?

[00:38:33] Speaker 01:
In this case, is your position that there was a change and it's retroactive and that ends it?

[00:38:42] Speaker 02:
It's our position that the regulations were changed

[00:38:45] Speaker 02:
and that pursuant to Congress's mandate, they should be applied retroactively.

[00:38:49] Speaker 01:
And if the court agrees with us there, then there's no discus- We do not mandate that it be applied retroactively with silent.

[00:38:56] Speaker 01:
So, what are you telling us?

[00:39:01] Speaker 01:
Well, as we- As we address our- As the president was retroactive, that we wouldn't be having this debate.

[00:39:07] Speaker 02:
I'm saying that the narrowest ground for the courts to resolve this case, I think, is to hold that it doesn't matter which version of the regulations apply.

[00:39:14] Speaker 02:
If the court wishes to address the retroactivity question, I think that the provisions in 3796C2 clearly does apply to all regulations promulgated pursuant to the public safety officers.

[00:39:28] Speaker 03:
Even if the statute hadn't been written in 2012,

[00:39:35] Speaker 03:
which the government says is Congress saying apply the new regulation retroactively.

[00:39:42] Speaker 03:
They haven't done that.

[00:39:42] Speaker 03:
The agency here applied the new regulation retroactively.

[00:39:47] Speaker 02:
Yes.

[00:39:48] Speaker 03:
Right.

[00:39:48] Speaker 03:
And so isn't there a due process question right there?

[00:39:53] Speaker 03:
would apply the regular regulation retroactively yet in two thousand thirteen after uh... uh... uh... uh... uh... uh... uh... uh... uh...

[00:40:09] Speaker 03:
And the regulation that we would ordinarily apply would be the regulation extended at the time of your injury and the time when you filed your claim.

[00:40:16] Speaker 03:
But we've had our later regulations over and apply the later regulation.

[00:40:20] Speaker 02:
Yes.

[00:40:21] Speaker 03:
Agencies can't do that in an arbitrary and capricious way.

[00:40:26] Speaker 03:
Certainly not.

[00:40:27] Speaker 03:
So a due process comes into the case no matter how you look at it.

[00:40:30] Speaker 02:
Well, and not just due process, but in that case, in that scenario, then you would be in the Princess Cruises land draft world, which is not an issue here because there is.

[00:40:38] Speaker 03:
Yeah, but say we assume that we look at this situation and we just throw that 2012 Act out because it kind of messes up the analysis and say, it's perfectly clear here that Ms.

[00:40:49] Speaker 03:
Harrison has a claim that she wants to mount under the old regulation.

[00:40:53] Speaker 03:
And the agency said, I won't listen to it because under the new regulation, that argument won't fly.

[00:40:59] Speaker 03:
I don't think that the court should or could throw out the 2012 amendments because... No, but I'm just saying, the due process question to me is exactly the same, whether we're looking at it by saying, can this statute pass muster?

[00:41:17] Speaker 02:
Understood, Your Honor.

[00:41:18] Speaker 03:
Can the statute, can the regulation pass muster as a retroactive regulation?

[00:41:24] Speaker 02:
Understood in either scenario then, there would be a rational basis to support Congress's decision that the current regulations should be applied uniformly and consistently retroactively.

[00:41:38] Speaker 03:
I'm not sure that it's exactly the same due process review.

[00:41:41] Speaker 03:
We know that due process review on a retroactive statute has a fairly low threshold.

[00:41:47] Speaker 03:
And we know that the court can define the rational basis itself.

[00:41:51] Speaker 03:
When an agency is applying a regulation retroactively, I'm not certain that that same low threshold due process test works, or whether there's a higher measure of scrutiny.

[00:42:02] Speaker 02:
I'm not aware of any case law to suggest that there are any different standards.

[00:42:07] Speaker 03:
No, I'm just saying there's a vacuum.

[00:42:13] Speaker 01:
Thank you, Your Honor.

[00:42:14] Speaker 01:
Thank you.

[00:42:16] Speaker 01:
Thank you.

[00:42:21] Speaker 04:
Taking up with the due process issue that was just mentioned, when you're dealing with a retroactive statute, there is a much stricter analysis of those kinds of cases.

[00:42:34] Speaker 04:
If we go to the Bowen case, you're required to have express terms

[00:42:40] Speaker 04:
requiring the clear intent, requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.

[00:42:55] Speaker 04:
And there's none of that in the legislative history.

[00:42:58] Speaker 04:
There is nothing to show that Congress weighed the potential unfairness to the claimants and that they made an affirmative

[00:43:07] Speaker 04:
action in this case to decide to... Yes?

[00:43:11] Speaker 00:
Your concern is that she was treated unfairly.

[00:43:13] Speaker 00:
Why is it that she didn't show up for her hearing?

[00:43:16] Speaker 04:
It's because she suffers from a panic disorder, Your Honor.

[00:43:20] Speaker 04:
She's been diagnosed with agoraphobia, which is, again, beyond just the PTSD.

[00:43:26] Speaker 04:
We're dealing with somebody who basically is unemployable because she can't leave her house most mornings.

[00:43:30] Speaker 04:
And that was the problem, was that she is... But there's no indication that she provided any explanation.

[00:43:37] Speaker 00:
She simply didn't show.

[00:43:40] Speaker 04:
This is before I had the case, obviously, Your Honor, but she was actually in the building and could not bring herself to actually appear.

[00:43:48] Speaker 04:
And that is a symptom of her agoraphobia.

[00:43:53] Speaker 04:
and of her panic disorders and of the other related psychiatric disorders.

[00:43:58] Speaker 04:
So we're dealing with not just PTSD but a whole host of psychiatric disorders.

[00:44:03] Speaker 04:
And in this case, the

[00:44:06] Speaker 04:
Again, a council brought up the fact that our client has been examined by doctors, and that was part of the reason for the delay.

[00:44:13] Speaker 04:
She has never been examined by a government psychiatrist.

[00:44:16] Speaker 04:
The government apparently decided not to have a psychiatrist examine her.

[00:44:22] Speaker 04:
So there's no psychiatric finding from the government to show that our client's stress and psychiatric disorder

[00:44:30] Speaker 04:
was a result strictly of her knee injury or whether or not it was part and parcel of the knee injury and basically the circumstances surrounding how she suffered the knee injury.

[00:44:43] Speaker 04:
I will say this though, that part of the delay was attributable to our asking for more time.

[00:44:50] Speaker 04:
We needed more time to basically get everything together.

[00:44:53] Speaker 04:
So I want to give the agency credit for doing that.

[00:44:57] Speaker 04:
However, from the time that Dr. Beck's report was presented to the agency in January,

[00:45:01] Speaker 04:
It was a delay of more than three years before the agency rendered its decision in this case.

[00:45:09] Speaker 03:
You started off by your argument that you don't think that this particular 2012 statute is really a retroactive statute because it doesn't have on it the earmarks from case law.

[00:45:22] Speaker 03:
But where does that get you?

[00:45:24] Speaker 03:
I mean, what you have here is a later regulation that was applied to your case.

[00:45:30] Speaker 03:
Right.

[00:45:30] Speaker 03:
And am I wrong in thinking that if the question, due process question there is whether there's a rational basis for the agency to apply the statute, the regulation retroactively?

[00:45:46] Speaker 04:
If we take the 2012 act out of the picture, it's basically, is this agency allowed to engage in retroactive rulemaking without any express authority from Congress to do that?

[00:45:59] Speaker 04:
And I would say no under the Princess Cruises test.

[00:46:01] Speaker 04:
That runs against our understanding of how American law is supposed to work.

[00:46:10] Speaker 03:
Why is that so?

[00:46:12] Speaker 04:
If we look at the Princess Cruises test, there was a substantial change in the regulation after Regina Harrison filed her claim.

[00:46:22] Speaker 04:
It had a direct effect on basically what her behavior was, and it violates basic due process of fair notice.

[00:46:33] Speaker 04:
When Regina Harrison showed up to work on the 24th of October in 2001,

[00:46:39] Speaker 04:
This benefit existed for people who suffered some forms of stress under the ENCO exception.

[00:46:46] Speaker 04:
And that was eliminated after the fact.

[00:46:48] Speaker 04:
That was eliminated retroactively.

[00:46:51] Speaker 04:
And so I think that in all three parts of the Princess Cruises test,

[00:46:56] Speaker 04:
that the agency was required to apply the regulation as it existed on the day she filed her claim.

[00:47:04] Speaker 04:
Now, the government is now saying, well, we have this later statute that allows us to do what we've been doing all along anyway.

[00:47:12] Speaker 00:
Can I go back because I'm really disturbed by your response about somehow we're supposed to believe that she was in the building and afraid to go when there's actually statements in the record from your clinic saying

[00:47:23] Speaker 00:
to the director that the reason she didn't come is because her husband was controlling and he convinced her not to go.

[00:47:31] Speaker 00:
Now are you coming up with new facts that you think sound better?

[00:47:38] Speaker 00:
Why would you make that argument and not make your other arguments before the director and now try to tell us that it was a totally different circumstance?

[00:47:46] Speaker 04:
I think it was a comp.

[00:47:47] Speaker 04:
I was not there that day, so I cannot say for certain.

[00:47:51] Speaker 04:
The husband has been controlling over the years.

[00:47:53] Speaker 04:
They are no longer together.

[00:47:56] Speaker 00:
And she did have the advice of legal counsel, as they say right here, when she made the decision not to show up.

[00:48:03] Speaker 04:
Yes.

[00:48:04] Speaker 00:
She affirmatively declined to attend the hearing.

[00:48:09] Speaker 04:
I don't think she did, Your Honor.

[00:48:10] Speaker 04:
I think that's a fact question that would have to be developed.

[00:48:14] Speaker 00:
It's not a fact question that would have to be developed, because your clinic specifically told the director that she made a decision to decline not to come.

[00:48:23] Speaker 00:
And she did it because she was under the thumb of her husband, not because she was too incapable of showing up.

[00:48:31] Speaker 04:
I think there was a combination of reasons, Your Honor.

[00:48:33] Speaker 04:
But it is correct that the letter from my student attorneys did indicate that.

[00:48:38] Speaker 04:
That was one of the many factors.

[00:48:41] Speaker 04:
We're dealing with a client or with the petitioner here who is an extremely damaged woman.

[00:48:48] Speaker 04:
That's basically what Dr. Beck said.

[00:48:51] Speaker 04:
This is the most damaged patient that he's ever had to deal with in his 30 years of practice.

[00:49:01] Speaker 04:
I think that the letter was incomplete as to what the rationale was for her not appearing at the hearing.

[00:49:09] Speaker 04:
It was, I believe that if we look at social security hearings, that if a client is suffering from a mental disorder and does not show up for social security hearings, I believe it's the common practice to take that into consideration.

[00:49:26] Speaker 04:
I wish my client had been there, but she wasn't.

[00:49:29] Speaker 01:
I think we have the story as well as we can.

[00:49:32] Speaker 01:
Thank you both.

[00:49:33] Speaker 01:
The case is taken into submission.