[00:00:00] Speaker 03:
McGonigal?

[00:00:05] Speaker 03:
Good morning, Your Honor.

[00:00:06] Speaker 03:
Are you ready to proceed?

[00:00:08] Speaker 03:
We've got two related cases being argued today.

[00:00:13] Speaker 03:
Mr. McGonigal is arguing both of them, as is Mr. Long.

[00:00:20] Speaker 03:
You're going to have two arguments, Mr. McGonigal, but I'll expect you won't plow the same ground twice.

[00:00:26] Speaker 02:
I will try not to, Your Honor, although there

[00:00:28] Speaker 02:
Virtually identical.

[00:00:29] Speaker 02:
Seemed to be, yeah.

[00:00:32] Speaker 03:
Thank you.

[00:00:33] Speaker 02:
Let's go.

[00:00:34] Speaker 02:
Good morning, Your Honor, and may it please the court.

[00:00:37] Speaker 02:
This case turns on the true meaning of one word and two phrases in the applicable statute.

[00:00:45] Speaker 02:
The first phrase is the meaning of the word public safety officer.

[00:00:50] Speaker 02:
That was the section that was in effect when the petitioners were nearly killed in the terrorist attacks of September 11.

[00:00:58] Speaker 03:
This is what the statute actually... If we affirm the BJA's determination that Mr. Bethea was not a public safety officer, everything else is moot, isn't it?

[00:01:10] Speaker 02:
Everything else... Well, there are two issues here.

[00:01:13] Speaker 02:
One is, is he a public safety officer and was the ambulance crew on which he was serving an instrumentality of the New York Fire Department, and we're contending that

[00:01:25] Speaker 02:
He was both a public safety officer under the plain definition of the statute, and also that the ambulance crews that both Mr. Pathea, well, Mr. Pathea in this particular case was serving on was that morning an instrumentality of the New York Fire Department.

[00:01:41] Speaker 03:
Well, for the first one, we've got Graf and Moore.

[00:01:45] Speaker 03:
Yes, sir.

[00:01:47] Speaker 03:
And they're pretty clear precedent in their federal circuit.

[00:01:53] Speaker 02:
The distinction in Groff is that in the contract in which Groff had him serving in an independent capacity at all times.

[00:02:01] Speaker 02:
That was clear.

[00:02:02] Speaker 02:
This was a case where the state of California had contracted out to the firm that Mr. Groff worked for, and he was paid by that firm, and he was under their orders at all times.

[00:02:14] Speaker 02:
And it says right in the opinion that he was working in an independent capacity at all times when he was killed

[00:02:23] Speaker 02:
In Mr. Bethea's case, as soon as the call came in from the New York Fire Department that morning, he was taking orders from the New York Fire Department under life and death conditions.

[00:02:33] Speaker 03:
He was taking orders from them, but he was still working for the hospital, wasn't he?

[00:02:37] Speaker 02:
He was working for them.

[00:02:38] Speaker 02:
And the distinction that I want to make here, and I think it's clear in the statute, is the statute covers not just people who are employed by a public agency, but also people who are serving a public agency.

[00:02:49] Speaker 02:
That's an important distinction.

[00:02:50] Speaker 02:
And I think the way the 2006 regulation is written, it is much, much too narrow.

[00:02:58] Speaker 03:
I was five blocks away when the planes hit, serving as a federal judge.

[00:03:04] Speaker 03:
If I had rushed down there and helped pull people out, I'm serving in a public capacity.

[00:03:13] Speaker 02:
I think the distinction there is, well, I'm not so certain that you would not have been serving in a public capacity.

[00:03:20] Speaker 02:
But the question would be, are you serving under the command structure of the New York Fire Department under those conditions, which, as you know, are battlefield conditions.

[00:03:30] Speaker 02:
And these men were risking their lives at the time.

[00:03:33] Speaker 02:
So I think the distinction is that they were not working in an independent capacity.

[00:03:39] Speaker 02:
Once the call came in that morning, Mr. Bethea was basically

[00:03:43] Speaker 02:
taking orders straight from the New York City Fire Department.

[00:03:47] Speaker 02:
And I think that's the distinction that makes this a different case.

[00:03:50] Speaker 03:
Supposing the hospital had called them on the way down and said, this is too dangerous.

[00:03:56] Speaker 03:
Turn around.

[00:03:57] Speaker 03:
Come back.

[00:04:00] Speaker 02:
Well, that would have been a violation of the agreement that the hospital had with the city of New York at that time.

[00:04:09] Speaker 03:
Would he have been subject to

[00:04:11] Speaker 03:
penalties for failure to obey orders?

[00:04:15] Speaker 02:
I don't think he would have, Your Honor.

[00:04:18] Speaker 02:
But again, he didn't have that choice.

[00:04:21] Speaker 02:
If his employer had pulled him out, that would be a different situation altogether.

[00:04:27] Speaker 02:
But he didn't have that choice.

[00:04:28] Speaker 02:
Once he was there, he had to do what he was told, and he was willing to do it.

[00:04:32] Speaker 02:
And he almost got killed as a result.

[00:04:35] Speaker 02:
And the question is, how narrowly can the agency read that definition?

[00:04:41] Speaker 02:
They've been approved in the past under different circumstances, but it virtually requires the person to be employed by the public agency.

[00:04:52] Speaker 02:
The actual language is that it has to be authorized, recognized, or designates them, and they have to be functionally a part of the agency.

[00:05:00] Speaker 01:
Where are you reading from?

[00:05:01] Speaker 02:
This is in the definition of... I need a page number of a document.

[00:05:06] Speaker 02:
Okay.

[00:05:07] Speaker 02:
It's in the government's brief on page 13.

[00:05:10] Speaker 02:
And it would be in the appendix as well.

[00:05:18] Speaker 02:
This is cited in the government's brief on page 13.

[00:05:22] Speaker 02:
Again, this is a definition that the agency promulgated in 2006, five years after the fact.

[00:05:29] Speaker 02:
They are given the right to do this under the Dale Long Act to write retroactive regulations.

[00:05:37] Speaker 02:
Again, I think the court needs to look very closely at that language because it appears to virtually eliminate anybody who isn't an actual employee.

[00:05:47] Speaker 02:
I think as a practice, they're carving out volunteer, members of volunteer fire companies.

[00:05:52] Speaker 02:
But if you read that language, it basically rewrites the statute so that the statute must be employed by the public agency rather than just serving a public agency.

[00:06:07] Speaker 02:
So the court would have to re-examine the scope of the Graff case.

[00:06:13] Speaker 02:
We would also ask the court to look at the word instrumentality, because in addition to serving a public agency, are they serving an instrumentality of a public agency?

[00:06:25] Speaker 02:
And again, all of the ambulance crews that were on the scene at 9-11 were effectively instrumentalities of the New York Fire Department that morning.

[00:06:35] Speaker 02:
They were taking orders.

[00:06:37] Speaker 02:
from the New York Fire Department, again, under battlefield conditions.

[00:06:41] Speaker 02:
And so if we construe the term instrumentality, I think it clearly covers that situation.

[00:06:51] Speaker 02:
Again, this is a case in which the court's going to have to decide how much it wants to examine the agency's definition.

[00:06:58] Speaker 01:
And that is- And you think that reading the regulatory language the way the director here has read it

[00:07:07] Speaker 01:
would render the regulation inconsistent with certain statutory language?

[00:07:13] Speaker 02:
I think it would.

[00:07:14] Speaker 01:
And that statutory language is what?

[00:07:17] Speaker 02:
Yes.

[00:07:17] Speaker 01:
Is what?

[00:07:18] Speaker 01:
I'm sorry.

[00:07:19] Speaker 01:
What is the statutory language that you think the directors reading of the regulation would run counter to?

[00:07:25] Speaker 02:
Well, they were defining the term official capacity.

[00:07:28] Speaker 02:
Official capacity, right?

[00:07:29] Speaker 02:
They were defining the term official capacity in the 2006 regulation.

[00:07:33] Speaker 02:
And that's narrowing the scope of the statute far beyond what Congress intended.

[00:07:40] Speaker 02:
The plain language that Congress put in the act, Congress actually defined this term.

[00:07:45] Speaker 02:
This isn't a case where Congress left a gap.

[00:07:48] Speaker 02:
They actually came out and defined the term public safety officer.

[00:07:53] Speaker 02:
And they said it is somebody who is serving a public agency or serving an instrumentality of a public agency and is a member of an ambulance crew.

[00:08:03] Speaker 02:
And I think that Congress made it clear that just taking traditional termed tools of statutory construction, that you would find that Congress intended to cover the sort of situation that arose on 9-11 with the voluntary hospital.

[00:08:19] Speaker 03:
Would it matter if St.

[00:08:23] Speaker 03:
Vincent's had been a public hospital as opposed to a private hospital?

[00:08:29] Speaker 02:
I haven't thought.

[00:08:29] Speaker 02:
I'm not sure that that would be.

[00:08:33] Speaker 02:
the case, if it was a public or private hospital.

[00:08:36] Speaker 02:
I think there would be some discrimination problems there, but I haven't really examined that problem.

[00:08:42] Speaker 02:
Sorry, Your Honor.

[00:08:44] Speaker 01:
Can I ask you a... I think this is an issue nobody has raised, so maybe there's a really easy answer.

[00:08:51] Speaker 01:
Do you view Public Law 10737 as falling under the Public Safety Officer Benefits Act or as separate and apart?

[00:09:01] Speaker 01:
And the reason I ask...

[00:09:02] Speaker 01:
is that it might make a difference for whether this court actually has jurisdiction.

[00:09:12] Speaker 01:
Certain PSOBA Act decisions are reviewable directly in this court under, I forget, the numbers keep changing.

[00:09:23] Speaker 01:
But I'm not sure, so if the public law 10737 benefits

[00:09:29] Speaker 01:
were part of that, then you're in the right place for that claim.

[00:09:34] Speaker 01:
I think you have two separate claims right here, right?

[00:09:38] Speaker 01:
But if the 10737 claim is not part of the PSOBA, I'm not sure you're in the right place for that claim.

[00:09:47] Speaker 02:
Actually, Mr. Bethea is asking for consideration under both 107 and also under the part of the fast track

[00:09:57] Speaker 02:
provisions that are part of the PSOBA.

[00:09:59] Speaker 01:
What happened is that... The Patriot Act 611?

[00:10:02] Speaker 01:
Yes.

[00:10:02] Speaker 01:
Right, and that clearly is part of it, but it's not quite as clear to me whether 10737, and I think maybe in some earlier case, La Barre or something, the government said it was not part of PSOBA.

[00:10:16] Speaker 02:
Right.

[00:10:17] Speaker 02:
I'm not sure if it's... I don't have the answer, Your Honor, but again, Mr. Bethea is asking for consideration under both provisions, the 10737

[00:10:26] Speaker 02:
Act which was enacted immediately after 9-11, and then the broader Act which was made part of the PSOBA, which includes any terrorist attack.

[00:10:35] Speaker 01:
But the ground of the ruling here are the definitional provisions, so the answer would be the same in your view?

[00:10:43] Speaker 02:
It would be in my view, but I think Mr. Bethea has a better case under the later Act, under the Act that was later made a part of the PSOBA, because that specifically says

[00:10:54] Speaker 02:
members of ambulance crews, and I believe he falls under that definition no matter what, no matter what the argument is in the other parts of the case.

[00:11:04] Speaker 01:
One other, how do things relate to each other kind of question.

[00:11:10] Speaker 01:
If we thought that the director was right about the offset issue,

[00:11:18] Speaker 01:
Is there anything that do the other issues here matter?

[00:11:22] Speaker 01:
The director I think had a footnote, I forget whether it's in both decisions or at least it's in the Roberts decision that says there might be some educational or survivor benefits that might be unaffected by the offset.

[00:11:35] Speaker 01:
But neither of the briefs made it obvious to me how these issues relate to each other.

[00:11:42] Speaker 01:
Well, on the offset... Because the offset, they both received from the Victim's Compensation Fund more than the 250 available here, right?

[00:11:51] Speaker 02:
The way the agency is trying to apply the offset, I believe our client's case would get wiped out.

[00:12:00] Speaker 02:
If you include benefits that have already been paid under the 9-11 Act, then I think the offset... In both cases?

[00:12:08] Speaker 02:
In both cases.

[00:12:10] Speaker 02:
However, if you look at the actual statutory language of the so-called offset provision, it says, may be due.

[00:12:17] Speaker 02:
And that's future conditional tense.

[00:12:19] Speaker 02:
They're trying to extend that to any benefits that have been paid in the past.

[00:12:23] Speaker 02:
But the actual language of the statute says that we're going to disregard benefits that may be due.

[00:12:34] Speaker 02:
But then it doesn't say anything about the past benefits.

[00:12:37] Speaker 01:
So I was thinking a little bit about that.

[00:12:40] Speaker 01:
And the following sort of seemed odd to me.

[00:12:44] Speaker 01:
So tell me if I'm just thinking about this wrong.

[00:12:48] Speaker 01:
In the situation where benefits are, the VCF benefits have already been paid, the decision maker for these claims actually know whether there is an offset.

[00:12:59] Speaker 01:
And you're saying in the case where they actually know the offset provision wouldn't apply, but where they're still uncertain because the other process hasn't

[00:13:10] Speaker 01:
reached a conclusion, it would apply.

[00:13:13] Speaker 01:
That seems odd.

[00:13:16] Speaker 02:
It does seem odd.

[00:13:17] Speaker 02:
I think it may be a case of just bad statutory drafting, that they should have said, if that was the contention of Congress, they should have said, maybe do or has been paid.

[00:13:26] Speaker 02:
But the words or has been paid never made it into the statute.

[00:13:31] Speaker 02:
In a lot of the cases, what will happen is that whether or not somebody qualifies for it.

[00:13:36] Speaker 03:
Do you have an authority for that?

[00:13:37] Speaker 03:
I mean, a similar statute where a court is held

[00:13:40] Speaker 03:
that there's a distinction between them.

[00:13:43] Speaker 03:
Those two phrases.

[00:13:44] Speaker 02:
If you look at the Carr case in footnote five, which the government cited in its brief, it deals with the Dictionary Act.

[00:13:55] Speaker 02:
How do we deal with different dictionary tenses?

[00:13:57] Speaker 02:
And basically what the Supreme Court said in Carr is that for the most part, yes, you have to take the tense as it is written.

[00:14:07] Speaker 02:
And the one exception was a coalition for clean air, which was criticized in the Carr case.

[00:14:14] Speaker 02:
You're into your rebuttal time.

[00:14:16] Speaker 02:
I'm sorry.

[00:14:17] Speaker 02:
Reserve it.

[00:14:18] Speaker 02:
So if I could reserve.

[00:14:19] Speaker 02:
If I could answer your question, that would be great.

[00:14:24] Speaker 02:
OK, I'm trying to get back to it.

[00:14:26] Speaker 02:
You're going to have cases where the applications are going to be pending at basically the same time, that both the

[00:14:33] Speaker 02:
Justice Department and the Victims Compensation Fund are going to be deciding, are going to have the same coordinated applications in front of them.

[00:14:43] Speaker 02:
And so these are cases where they could apply the offset.

[00:14:47] Speaker 02:
And there will be quite a few cases like that that would come through the system.

[00:14:51] Speaker 02:
This could have some application, although I think perhaps the statute wasn't drafted the way

[00:14:57] Speaker 02:
it had been intended to apply.

[00:15:01] Speaker 02:
Thank you.

[00:15:02] Speaker 03:
If we have your time, we'll let you have your two minutes for your rebuttal.

[00:15:06] Speaker 03:
Thank you, Your Honor.

[00:15:19] Speaker ?:
Mr. Long?

[00:15:20] Speaker ?:
Thank you, Your Honor.

[00:15:22] Speaker 00:
May it please the Court

[00:15:23] Speaker 00:
Court should sustain the BJA's determination.

[00:15:27] Speaker 00:
We believe that Groff and Moore squarely apply here and compel the conclusion that Mr. Bethea was not a public safety officer within the meaning of the Act.

[00:15:41] Speaker 00:
I, like Your Honor, was downtown on that day in Manhattan and I understand the circumstances.

[00:15:49] Speaker 00:
of the day, but as a legal matter, nothing changed about the relationship between St.

[00:15:55] Speaker 00:
Vincent's and Mr. Bethea and the fire department of New York on that date.

[00:15:59] Speaker 01:
So just to be clear, I think I understand this, but tell me if I'm wrong.

[00:16:04] Speaker 01:
In your view, the provision does not cover somebody who was fully under the direction during the hours of that day of the fire department.

[00:16:18] Speaker 01:
because there was an organizational separation.

[00:16:22] Speaker 00:
Right.

[00:16:22] Speaker 00:
I think, you know, the difference would be between a good Samaritan who might have run downtown and was answering to a firefighter that day versus that person clearly would not be a public safety officer.

[00:16:34] Speaker 01:
Well, that person presumably could have decided, I've had enough, I'm leaving.

[00:16:40] Speaker 01:
This guy was working for an organization that had a contract that said, you're kind of obliged to

[00:16:47] Speaker 01:
perform these services.

[00:16:50] Speaker 00:
That is correct, but the limit of that relationship was defined by the agreement.

[00:16:56] Speaker 00:
And the agreement states that Mr. Bethea remained at all times an employee of St.

[00:17:01] Speaker 00:
Vincent's and was never an employee of the fire department.

[00:17:05] Speaker 00:
And if you look at the definition of acting in an official capacity as defined in the regulation, it's an individual who's functioning with you.

[00:17:13] Speaker 01:
You're reading from where now?

[00:17:14] Speaker 00:
I'm sorry.

[00:17:17] Speaker 00:
28 CFR.

[00:17:18] Speaker 01:
No, no, no.

[00:17:18] Speaker 01:
I mean a piece of paper.

[00:17:19] Speaker 00:
I can look at it.

[00:17:30] Speaker 00:
This definition is in...

[00:17:48] Speaker 00:
I apologize.

[00:17:49] Speaker 03:
Which 28 CFR are you reading?

[00:17:52] Speaker 03:
32.3, Your Honor.

[00:17:54] Speaker 00:
It's on 13 of your red brief.

[00:17:56] Speaker 00:
It's on 13 of the red brief.

[00:17:57] Speaker 00:
That's correct.

[00:17:58] Speaker 00:
I apologize.

[00:18:00] Speaker 00:
And under that definition, an individual is serving a public agency in an official capacity only if he is officially recognized as functioning within the agency and the agency legally recognizes his acts as its own.

[00:18:17] Speaker 00:
And that

[00:18:18] Speaker 00:
is not the case here, because at all times, as demonstrated by the letter from the MS Chief of the Fire Department of New York, which is at page six of the supplemental appendix, at all times, Mr. Bethea's acts remained the responsibility of St.

[00:18:34] Speaker 00:
Vincent's and not the fire department.

[00:18:37] Speaker 00:
It did not accept tort liability, and his acts were not the fire department's for purposes of sovereign immunity.

[00:18:43] Speaker 00:
And so he was not acting in an official capacity at that time.

[00:18:49] Speaker 00:
Your Honor asked about the impact of Public Law 107-37 and the jurisdictional question.

[00:18:59] Speaker 00:
I confess that I have not examined that question.

[00:19:03] Speaker 00:
As you know, it wasn't raised in the briefs.

[00:19:07] Speaker 00:
But it does not matter because the certification, well, jurisdiction always matters, but I also note that the certification that would be required from

[00:19:17] Speaker 00:
the fire department of New York is absent here and so there's been no certification that he's eligible.

[00:19:22] Speaker 01:
What is the government's position about whether 10737 is part of the PSOBA in the sense that is relevant to deciding whether the PSOBA provision referring to review by the federal circuit would or would not apply.

[00:19:42] Speaker 01:
I guess I have

[00:19:45] Speaker 01:
I guess a brief you guys filed in 2005 in the LeBarre case in the Court of Federal Claims, where you said Section 2 of Public Law 10737, as well as actually the Patriot Act 611B, indicate that benefits awarded pursuant to those acts are not benefits awarded pursuant to the PSOBA.

[00:20:09] Speaker 00:
I apologize, Your Honor.

[00:20:10] Speaker 00:
I can't answer the question.

[00:20:11] Speaker 00:
I would have to follow up.

[00:20:12] Speaker 00:
If you would like supplemental briefing, I'd be happy to provide it.

[00:20:16] Speaker 00:
I can't answer that here.

[00:20:19] Speaker 00:
And also going to the question of whether or not the offset would, the questions of whether Mr. Bethea was a public safety officer would end the case, I note the footnote that you brought up, footnote 63 and the director's determination.

[00:20:38] Speaker 00:
And another, we have not examined it.

[00:20:41] Speaker 00:
I have no reason to believe that the characterization is incorrect and that spouses and children might be eligible for educational benefits.

[00:20:48] Speaker 01:
I think Mr. McGonigal said, I think he said, as a practical matter, in this case that's theoretical and not real.

[00:20:59] Speaker 00:
That may be the case.

[00:21:00] Speaker 00:
I may have misunderstood.

[00:21:04] Speaker 00:
OK, I'll take that concession.

[00:21:05] Speaker 03:
Mr. Long, supposing Mr. Bethea had said, gotten to the site, began work, and then said to the fire department commander on the scene, this is just too dangerous.

[00:21:18] Speaker 03:
I'm leaving.

[00:21:20] Speaker 03:
And the fire department commander said, I order you to stay.

[00:21:25] Speaker 03:
One of two things happened.

[00:21:27] Speaker 03:
He stays or he leaves.

[00:21:29] Speaker 03:
If he stays, is he now under fire department

[00:21:33] Speaker 03:
command as a firefighter?

[00:21:36] Speaker 00:
His actions are being directed by the Fire Department of New York, but the Fire Department of New York only has power over him to the extent of the agreement between the Fire Department and St.

[00:21:49] Speaker 00:
Vincent's.

[00:21:50] Speaker 00:
And so, yes, there are provisions, I believe, in the agreement that allow the Fire Department to provide instruction in emergencies.

[00:21:56] Speaker 00:
So he leaves.

[00:21:58] Speaker 03:
He's subject to any penalty other than

[00:22:01] Speaker 03:
by his employer for breach of contract?

[00:22:03] Speaker 00:
Not to my knowledge, Your Honor.

[00:22:04] Speaker 00:
I think it would only be a matter between him and his employer, and the fire department would have no recourse in that instance, as far as I understand things.

[00:22:13] Speaker 00:
The final point I just wanted to make with respect to the bird tense relating to the offset is simply that the proffered explanation of only applying to future payments is absurd.

[00:22:27] Speaker 00:
I think the panel sort of reached that point

[00:22:30] Speaker 00:
How could you only offset future payments that haven't occurred yet?

[00:22:34] Speaker 00:
It just doesn't make sense as a matter of practical application.

[00:22:39] Speaker 01:
There are no further questions.

[00:22:40] Speaker 01:
Just to, I think, restate something I said to McGonigal.

[00:22:44] Speaker 01:
This is back on this.

[00:22:46] Speaker 01:
Where does the 10737 provision fit?

[00:22:50] Speaker 01:
It might matter for jurisdiction.

[00:22:52] Speaker 01:
It might also matter for the offset.

[00:22:54] Speaker 01:
because I think the offset language in PSOBA may be limited to matters under the sub-chapter.

[00:23:02] Speaker 01:
And if 10737 is not under the sub-chapter, there might not be an offset.

[00:23:08] Speaker 00:
That may be correct, Ron.

[00:23:09] Speaker 00:
I don't have time to look into it.

[00:23:15] Speaker 03:
Thank you.

[00:23:15] Speaker 03:
Mr. McGowan, you have two minutes.

[00:23:18] Speaker 02:
Thank you, Ron.

[00:23:21] Speaker 02:
to address some of the issues that were raised on my esteemed counsel's argument.

[00:23:29] Speaker 02:
I don't believe that the fact that the agency regards the reading of maybe do as an absurd reading really matters here.

[00:23:37] Speaker 02:
That maybe do was the language that Congress chose to use.

[00:23:42] Speaker 01:
And if they'd... But you're familiar with at least some principle that absurdity

[00:23:49] Speaker 01:
can override what might be an interpretation of language that can't linguistically quite be avoided.

[00:23:59] Speaker 02:
But I don't think that would apply in this case.

[00:24:00] Speaker 02:
And again, a great many of these 9-11 claims are working their way through the system right now.

[00:24:08] Speaker 02:
And this is not in my brief, but that is the fact that a lot of these claims are still pending, both in front of the Victims Compensation Fund Agency and

[00:24:18] Speaker 02:
the Bureau of Justice Assistance and they're going to be considered at roughly the same time on roughly the same ground.

[00:24:26] Speaker 02:
So there will be some, the offset could apply in these maybe due situations where both claims are maturing at the same time.

[00:24:36] Speaker 02:
So I think we can get over the absurdity hurdle in that particular case.

[00:24:44] Speaker 02:
I think there are other matters that

[00:24:46] Speaker 02:
reasons why this court should be sending the case back to the agency.

[00:24:50] Speaker 02:
In 2017, last year, Congress made some major, major changes in the program.

[00:24:58] Speaker 02:
Two of the changes that should be applied in this case are that the agency has to give substantial weight to any of the findings made by another government agency, and in this case it would be the New York Fire Commissioner,

[00:25:12] Speaker 02:
It would be the Social Security Administration and other agencies that have dealt with Mr. Bethea's case.

[00:25:18] Speaker 02:
And they're also expected to adopt the well-founded findings of other government agencies.

[00:25:26] Speaker 02:
Whether or not they did or did not do that, we don't know.

[00:25:29] Speaker 02:
So at the very least, I believe the court needs to send Mr. Bethea's case back to the agency so that it can apply the provisions of the 2017 section.

[00:25:36] Speaker 02:
You want to ask this one?