Gloria Wydra, Petitioner, v. Law Enforcement Assistance Administration, U.S. Departmentof Justice, Office of Justice Assistance, Researchand Statistics, and United States Ofamerica, Respondents, 722 F.2d 834 (D.C. Cir. 1983)

This is an appeal from a denial of benefits under the Public Safety Officers' Benefits Act (PSOBA), 42 U.S.C. §§ 3796-3796c, by the Law Enforcement Assistance Administration (LEAA). We must first determine whether we have jurisdiction to review the LEAA's decision. Two courts of appeals have previously determined that they did not have jurisdiction to review decisions under the PSOBA, see Russell v. Law Enforcement Assistance Administration, 637 F.2d 354 (5th Cir. 1981) [hereinafter cited as Elaine Russell ]; Lankford v. Law Enforcement Assistance Administration, 620 F.2d 35 (4th Cir. 1980), while one court has come to the opposite conclusion. See Russell v. Law Enforcement Assistance Administration, 637 F.2d 1255 (9th Cir. 1980) [hereinafter cited as Donna Sue Russell ]. Since these three decisions, Congress has made minor revisions in the sections construed. We conclude that under the statute as it now stands we do not have jurisdiction to hear this appeal. However, because the United States Claims Court does have jurisdiction, we will transfer this action to the Claims Court.

William Wydra, a member of the Metro-Dade County, Florida, Public Safety Department, accidentally shot and killed himself on or about September 4, 1981, in the course of an overnight trip made in order to accompany an extradited prisoner from New Jersey to Florida. His widow filed a claim with the LEAA for death benefits pursuant to the Public Safety Officer's Benefits Act of 1976, 42 U.S.C. §§ 3796-3796c.¹  The claim was initially denied on April 29, 1982, on the basis of a determination that the injury did not occur "in the line of duty" as required by the statute.²  This determination was reversed by a hearing officer after a hearing conducted pursuant to agency regulations.³  However, on January 24, 1983, the Acting Administrator of the LEAA rendered a final agency decision against the claimant, finding that Officer Wydra's death did not occur in the line of duty.⁴  The petitioner then filed an action in this court for judicial review of the LEAA's denial of benefits.II. JURISDICTION

The LEAA contends that this court is without jurisdiction to review its decision. It argues that no provision for judicial review appears in the PSOBA and that the legislative history indicates no congressional intent to provide for judicial review in this court. It argues further that section 3785, relied on by the petitioner, establishes jurisdiction in the court of appeals only to review decisions concerning the various law enforcement grants administered pursuant to subchapters I through VII, and not decisions concerning benefits under the PSOBA, contained in subchapter XII. We agree.

This court has only the jurisdiction conferred upon it by Congress. See, e.g., American Federation of Labor v. NLRB, 308 U.S. 401, 404, 60 S. Ct. 300, 302, 84 L. Ed. 347 (1940); Elaine Russell, 637 F.2d at 355. There is nothing in the language or legislative history of the PSOBA, 42 U.S.C. §§ 3796-3796c, concerning judicial review or the forum in which it shall be granted. The claimant therefore relies on 42 U.S.C. § 3785,⁵  the provision governing appellate review under certain sections of chapter 46, concerning "Justice System Improvements," in which the PSOBA is codified. Although section 3785 does not explicitly apply to benefits decisions under section 3796, the claimant argues that it may reasonably be construed to extend to those decisions.

Under the predecessor of section 3785, 42 U.S.C. § 3759,⁶  the circuits were divided on the question of whether its provisions for judicial review applied to final LEAA decisions denying benefits under the PSOBA sections of chapter 46. The Fourth Circuit decided in Lankford, 620 F.2d 35, that neither section 3759 nor any other section of chapter 46 conferred jurisdiction on the circuit courts to review decisions under the PSOBA.

The Ninth Circuit reached a contrary conclusion, however, in Donna Sue Russell, 537 F.2d 1255. The court assumed that if it were without jurisdiction then no court would have jurisdiction. Id. at 1259. Relying heavily upon the presumption against the wholesale preclusion of review of agency action,⁷  the court construed what it read as the ambiguous language and inconclusive legislative history of section 3759 to confer jurisdiction on the circuit courts to review decisions under the PSOBA. See id. at 1259-60.

Shortly thereafter, the Fifth Circuit decided Elaine Russell, 637 F.2d 354, in which it agreed with the Fourth Circuit decision in Lankford that it had no jurisdiction. Id. at 356-57. Although the court in Elaine Russell did not take note of the Donna Sue Russell decision, it noted, contrary to that decision, that the case could be heard by the United States Court of Claims; it was thus unencumbered by the presumption against precluding judicial review. The court accordingly transferred the action to the Court of Claims.⁸ 

We are faced with a slightly different statutory scheme than that which gave rise to this split among the circuits. On December 27, 1979, Congress enacted the Judicial System Improvement Act, which revised and reorganized statutes governing the LEAA and related federal agencies. Pub. L. No. 96-157, 93 Stat. 1167-1223, 42 U.S.C. §§ 3701-3797. This enactment did not change PSOBA sections 3796 through 3796c. However, it did reorganize the sections to which the Fourth, Fifth and Ninth Circuits looked to determine whether the circuit courts had jurisdiction. There is no evidence in the legislative history that Congress intended to affect, or even considered, the application of those sections to PSOBA claims. We must therefore turn to an examination of the language and structure of those sections.

Before undertaking this inquiry, however, we note our agreement with the conclusion of the Fifth Circuit in Elaine Russell, 637 F.2d at 356, that we need not invoke the strong presumption against precluding judicial review. There can no longer be any doubt that the Claims Court, as it is now called,⁹  has jurisdiction to review decisions under the PSOBA. 28 U.S.C. § 1491 provides that " [t]he United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded upon ... any Act of Congress." Appellate courts, the former Court of Claims and the new Claims Court have recognized the application of this language to claims for benefits under the PSOBA. See, e.g., Elaine Russell, 637 F.2d at 356; North v. United States, 555 F. Supp. 382 (Cl.Ct.1982); Smykowski v. United States, 647 F.2d 1103 (Ct. Cl. 1981); Harold v. United States, 634 F.2d 547 (Ct. Cl. 1980). Indeed, the LEAA has taken the position before this court that jurisdiction lies in the Claims Court.¹⁰  In our examination of the language and legislative history of the relevant statutory sections, therefore, we need not focus upon whether there is a clear expression of congressional intent to preclude review.¹¹  We must determine simply whether the statute is most reasonably construed as conferring jurisdiction on this court to review claims under the PSOBA.

Section 3785 provides in part, as follows:

(a) If an applicant or recipient is dissatisfied with a final action with respect to section 3783, 3784, or 3789(c) (2) (G) of this title, such applicant or recipient may, within sixty days after notice of such action, file with the United States court of appeals for the circuit in which such applicant or recipient is located, or in the United States Court of Appeals for the District of Columbia, a petition for review of the action.

We begin with the obvious, though not decisive, observation that Congress could have clearly expressed its intent to afford judicial review in the courts of appeals either by explicitly providing for it in the PSOBA itself or by adding the PSOBA--sections 3796 through 3796c--to the list in section 3785 of statutory sections under which review is provided. It did neither, however. Although it is still possible that section 3785 implicitly provides for review of final agency action under the PSOBA, we investigate this possibility in light of Congress' failure to take either of two very simple steps to avoid any ambiguity or misunderstanding about the availability of review in the circuit courts.

We must determine whether any of the three designated statutory sections for which review is authorized--3783, 3784, or 3789d(c) (2) (G)--can fairly be read to encompass decisions under the PSOBA.¹²  The last statutory section referred to in section 3785, section 3789d(c) (2) (G), provides for sanctions against discrimination in programs funded under the chapter, and is not relevant here. Section 3783, set forth in the margin,¹³  cannot reasonably be construed to apply to decisions concerning PSOB death benefits. First, such a construction would require us to read "grant application" to apply to benefits claims under the PSOBA although "recipient" or "grantee," as used in the same paragraph, cannot possibly encompass successful claimants under the PSOBA: Section 3783 provides for termination of grants for failure to fulfill certain ongoing requirements; benefits awarded under the PSOBA, however, are one-time lump sum payments not subject to any conditions or limitations on the successful claimant's subsequent conduct.

The petitioner's reading of "grant application" also conflicts with the consistent use, both in the PSOBA and in the LEAA regulations passed pursuant to the PSOBA, of the terms "benefit" rather than "grant,"¹⁴  "claimant" or "beneficiary" rather than "applicant" or "recipient,"¹⁵  and "claim" rather than "application."¹⁶  Both the Lankford and Elaine Russell decisions emphasized this same discrepancy between the terms used in the PSOBA and those used in the sections on which jurisdiction was purportedly based, invoking the common sense principle of statutory construction that "clear use of different terminology within a body of legislation is evidence of an intentional differentiation." Lankford, 620 F.2d at 36; accord Elaine Russell, 637 F.2d at 356.

In addition, in order to construe section 3783 in petitioner's favor we would have to ignore the inconsistency between the specific requirements in parts (b) and (c) of section 3783 of notice and a hearing "on the record," and the general mandate to the LEAA in section 3796c "to establish such rules, regulations, and procedures as may be necessary to carry out the purposes of this subchapter." Not surprisingly, the regulations passed by the LEAA pursuant to the PSOBA contain procedural provisions inconsistent with the requirements of section 3783 for decisions concerning law enforcement grants. For example, section 3783(c) provides for a second hearing, whereas PSOBA regulations provide only for a review of the record by the LEAA administrator after an opportunity for additional comment by the claimant.¹⁷  The existence of two different sets of administrative machinery undermines the claimant's attempt to fit PSOBA claims within section 3783.

The petitioner relies primarily on section 3784, set out in the margin,¹⁸  which concerns finality of determinations. This section cannot reasonably be construed to encompass decisions on PSOBA claims. Although its language may initially appear sufficiently general to take in functions vested in the LEAA by the PSOB provisions of the chapter, it is more reasonable to read section 3784 as coextensive with the preceding section 3783. We do not believe it is reasonable to read a provision that purports to limit review, by providing that agency determinations shall "be final and conclusive upon all applications, except as provided herein," as expressing the intent to broaden review by bringing all agency decisions within the scope of the judicial review provisions of section 3785. The reference in section 3784 to "applications" further bolsters the narrower reading.

Finally, the entire structure of chapter 46 on Justice System Improvement is consistent with the interpretation of the judicial review provisions of section 3785 as applying only to decisions concerning grants for law enforcement activities and not extending to the PSOBA. Sections 3783, 3784, 3785, and 3789a are all contained in subchapter VIII entitled "Administrative Provisions." This subchapter follows subchapters I through VII, each of which concerns, in part, the administration of various grants to state and local governments and community groups for criminal law enforcement activities.¹⁹  The PSOBA is contained in subchapter XII, which has its own separate section devoted to administrative provisions--section 3796c.

It is clear from our examination of the language, structure, and legislative history of the PSOBA and section 3785 that Congress did not confer jurisdiction on this court to review LEAA decisions concerning death benefits under the PSOBA. However, as we indicated earlier, the Claims Court does have jurisdiction to review the LEAA's decision.

When Congress passed the Federal Courts Improvement Act of 1982, it enacted a broad provision permitting "transfer to cure lack of jurisdiction." 28 U.S.C. § 1631.²⁰  The Act empowers any federal court, when an action or appeal is filed over which it lacks jurisdiction, to transfer such action to the appropriate court whenever "it is in the interest of justice." The action or appeal then proceeds in that court as if it had been filed on the same date on which it was actually filed in the transferring court. Transfer to the Claims Court would clearly be "in the interest of justice" in this case.²¹  Accordingly, the case is hereby transferred to the United States Claims Court.

Judgment accordingly.