[00:00:00] Speaker 03:
on behalf of Michael Roberts.

[00:00:03] Speaker 01:
You have to reset the clock.

[00:00:07] Speaker 03:
Again, Mr. Roberts' case, as a legal matter, is going to match Mr. Bethea's case almost exactly.

[00:00:13] Speaker 03:
Mr. Roberts answered the call of duty on the morning of September 11.

[00:00:17] Speaker 03:
He was employed by New York Presbyterian Hospital.

[00:00:21] Speaker 03:
The relationship between the hospital and the city of New York

[00:00:25] Speaker 03:
The contraction provisions were almost exactly the same as would apply.

[00:00:31] Speaker 03:
So basically, both men suffered catastrophic injuries as a result of their service on that day.

[00:00:38] Speaker 03:
And a lot of the same factors would apply.

[00:00:42] Speaker 03:
What's the difference?

[00:00:44] Speaker 03:
What are the differences?

[00:00:45] Speaker 03:
From a legal point of view, virtually none.

[00:00:49] Speaker 01:
There may be something.

[00:00:50] Speaker 01:
I mean, there are a number of differences from the victim.

[00:00:53] Speaker 01:
compensation fund.

[00:00:55] Speaker 03:
Yes, there was a difference of about $200,000 between the two cases.

[00:01:00] Speaker 03:
I'm not sure how they came up with those numbers or what they based those numbers on.

[00:01:05] Speaker 03:
But basically, both men are in the same position as a result of what happened to them on September 11th.

[00:01:18] Speaker 03:
in aqua products began looking more closely at the applicability of the Chevron doctrine.

[00:01:26] Speaker 03:
And as you're aware, this court had a plurality decision in aqua products where we had five different opinions that were generated as a result of that.

[00:01:36] Speaker 03:
But the language that I believe applies here that was in the plurality

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holding is that an agency has no power to tailor legislation to suit bureaucratic goals.

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And I believe that's basically what happened here.

[00:01:52] Speaker 03:
The 2006 regulation that, again, came five years after the fact, basically narrowed the term public safety officer and the term official capacity far narrower than Congress had intended when they adopted that act.

[00:02:10] Speaker 03:
The other problem that I believe the agency faces here is that in aqua products, this court said to be entitled to Chevron deference, an agency must cogently explain why it has exercised its discretion in a given manner.

[00:02:26] Speaker 03:
And from what I've been able to see, what the agency has basically said in the past is Groff, Moore, Chasson, these cases said it was okay for us to do this, and we have done it, and that's it.

[00:02:38] Speaker 03:
But there's never been an explanation as to why they made that distinction, why they're only counting people serving public agencies who are, in the language of the 2006 regulation, authorized, recognized, designates, make them functionally a part of the agency, cover them for any legal liability.

[00:03:02] Speaker 03:
This was an extremely, extremely narrow

[00:03:05] Speaker 03:
definition, which virtually changes the meaning of a statute.

[00:03:09] Speaker 02:
And I don't remember, I'm sorry if I should, when the regulations were promulgated.

[00:03:15] Speaker 02:
What, if any, explanation for some of these choices was there in the federal register?

[00:03:20] Speaker 03:
I didn't see those anything.

[00:03:22] Speaker 03:
They basically said, this is what we have done.

[00:03:24] Speaker 03:
The federal circuit has approved this approach in, well, the Groff case.

[00:03:30] Speaker 03:
I think they were citing Chasson.

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And of course, Chasson dealt with a prison inmate.

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And you could understand why we wouldn't include that.

[00:03:40] Speaker 02:
So these regulations predate 2001?

[00:03:42] Speaker 03:
No, actually the regulations came in in 2006.

[00:03:48] Speaker 03:
Under the Dale Long Act that was enacted in 2013, there was a specific provision that gave the agency the right to make retroactive regulations.

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So we have an unusual situation here where the act as it

[00:04:03] Speaker 03:
existed in 2001.

[00:04:05] Speaker 03:
The 2001 statute applies, but then we have to use the current regulatory application.

[00:04:14] Speaker 03:
And again, I believe the definition that the court approved in Grof, it may have been applicable in Grof.

[00:04:23] Speaker 03:
It might not have narrated too much, but I believe it narrated much too much for the sort of situation we have today.

[00:04:28] Speaker 02:
I guess what I was mistakenly

[00:04:32] Speaker 02:
conflating the 1981 legal interpretations opinion, which I think is what we deferred to in Grof.

[00:04:38] Speaker 03:
Yes, and that ended up later in the regulation.

[00:04:42] Speaker 02:
Right.

[00:04:42] Speaker 02:
So how does that differ from the regulation, the regulatory language?

[00:04:48] Speaker 03:
It's basically the same.

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And what I'm saying here is that even in the 1981 publication, which was not a regulation, but was a regulatory interpretation by the agency,

[00:05:01] Speaker 03:
They never actually came out and explained why they made that particular choice.

[00:05:05] Speaker 03:
They didn't give a cogent explanation, at least I didn't find one.

[00:05:09] Speaker 03:
And I think at this stage, especially with the language in aqua products, I think the agency basically has to give a cogent explanation as to why they have narrated this so closely.

[00:05:19] Speaker 03:
Because this definition basically wipes out anybody.

[00:05:23] Speaker 03:
As a practice, the agency is giving volunteer fire companies coverage.

[00:05:30] Speaker 03:
under this definition.

[00:05:32] Speaker 03:
But even then, if you looked at it closely, they're not required to do that.

[00:05:37] Speaker 03:
They've created a definition which goes far beyond what the statute had intended.

[00:05:48] Speaker 01:
Yes?

[00:05:49] Speaker 01:
The distinction may be, and this is pure speculation on my part, that the concern was that

[00:05:59] Speaker 01:
As a general rule, ambulance drivers and firefighters might be responding in different ways to different activities.

[00:06:13] Speaker 01:
And that's pure speculation.

[00:06:15] Speaker 01:
I don't know.

[00:06:16] Speaker 03:
It's hard to know.

[00:06:18] Speaker 03:
The Dale Long Act basically now covers ambulance crews.

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and that are not part of the government agency.

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Because so many ambulance crews in rural areas are organized as non-profit corporations.

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And the only reason that our gentlemen aren't covered under that is that they put a provision in that act that says, well, this only dates back to 2009.

[00:06:42] Speaker 03:
The Congress more or less arbitrarily chose 2009 as the date to look back on.

[00:06:48] Speaker 02:
Does that congressional choice play a kind of ratification role?

[00:06:54] Speaker 03:
I don't think it does.

[00:06:55] Speaker 03:
I think why they made that choice, who knows.

[00:07:01] Speaker 02:
There's line drawing of all sorts for all kinds of compromises.

[00:07:07] Speaker 03:
At the agency level, I was saying they should apply that definition and ignore the 2009, which they chose not to do, which is why I'm now arguing that if we actually look at the language of the act that was in effect on September 11, 2001,

[00:07:24] Speaker 03:
That would cover basically all of the ambulance crews that were on that scene taking orders from the New York Fire Department.

[00:07:33] Speaker 01:
If you want to reserve the rest of your time.

[00:07:38] Speaker 01:
I will reserve the rest of the time.

[00:07:39] Speaker 01:
Let me just say, as a personal matter, everybody was covered in gray and there wasn't any physical distinction.

[00:07:49] Speaker 01:
That has nothing to do with the law or how we're going to decide this case.

[00:07:53] Speaker 01:
But just from a person observing it, everybody was serving it.

[00:07:58] Speaker 01:
Thank you.

[00:07:59] Speaker 01:
Do you have anything to add on this one?

[00:08:06] Speaker 00:
Very short points.

[00:08:07] Speaker 00:
Sure.

[00:08:13] Speaker 00:
First of all, McHalee questions the definition of instrument.

[00:08:19] Speaker 00:
I'll start by saying we agree that these cases are virtually identical.

[00:08:21] Speaker 00:
I'll just touch quickly on some of the points raised.

[00:08:24] Speaker 00:
I'm sorry.

[00:08:26] Speaker 00:
So I'll just touch quickly on some of the points raised.

[00:08:27] Speaker 00:
The cases are virtually identical.

[00:08:29] Speaker 00:
Aqua products does not affect the outcome of this case.

[00:08:34] Speaker 00:
My colleague questions the definition of instrumentality, said it's never been explained.

[00:08:40] Speaker 00:
We set forth the definition.

[00:08:42] Speaker 00:
At least that's the argument as they raise it in their reply brief.

[00:08:46] Speaker 00:
We provided the Federal Register discussion

[00:08:48] Speaker 00:
of the agency's reasons for defining instrumentality as it does.

[00:08:55] Speaker 00:
That's at page 18 of our red brief.

[00:08:59] Speaker 00:
And the purpose of the definition was that both individuals and entities must be accepted as part of a public agency for purposes of the act's applicability.

[00:09:13] Speaker 00:
So there has been a rational explanation.

[00:09:19] Speaker 00:
And the final point, if I may, to touch on the applicability of the 2017 law, which my colleague brought up in relation to the Bethea case.

[00:09:31] Speaker 00:
Section 6 of that law, public law 115-36, states that the act applies only to claims that were pending to the Bureau of Justice Assistants on the date of enactment.

[00:09:44] Speaker 00:
The date of enactment was June 2, 2017.

[00:09:47] Speaker 00:
Both Mr. Mathias and Mr. Roberts' claim here had been resolved by the director of the Bureau of Justice Assistance by that date.

[00:09:55] Speaker 00:
So they were no longer pending, and the 2017 act does not apply.

[00:09:58] Speaker 02:
But that act would apply if they were remanded?

[00:10:08] Speaker 00:
No, because, well, Section B,

[00:10:15] Speaker 00:
Yes.

[00:10:16] Speaker 00:
Part two of section six of that act states that it applies to benefit claims received by the Bureau on or after the date of enactment of that act.

[00:10:24] Speaker 00:
I don't know whether a remand would qualify as a claim being received.

[00:10:30] Speaker 00:
I'm sure they would make that argument, but I can't say.

[00:10:35] Speaker 00:
Thank you.

[00:10:36] Speaker 03:
Mr. McGonigal.

[00:10:40] Speaker 03:
Just one last point, Your Honor.

[00:10:42] Speaker 03:
As you know, the Supreme Court dealt with the question of Chevron deference again last week in the case of SAS Institute.

[00:10:49] Speaker 03:
And I believe the court needs to examine that case.

[00:10:52] Speaker 03:
I think we have.

[00:10:54] Speaker 03:
I believe you have, yes.

[00:10:55] Speaker 03:
But apparently, we're going to have to reexamine that case again.

[00:10:58] Speaker 03:
But I think the court said some very important things in that case about the scope of Chevron deference at this time.

[00:11:04] Speaker 03:
And I would ask the court to examine that case and apply it to Mr. Roberts' case as well.

[00:11:14] Speaker 03:
Thank you, Your Honor.

[00:11:15] Speaker 01:
Don't leave yet.