DOJ Challenged on Denial of Death Benefits to Widow of Public Safety Officer

When a public safety officer collapsed and died during training at the Border Patrol Academy, the Justice Department denied death benefits to his widow.

A public safety officer with the Border Patrol Academy collapsed and died during a training incident. The Justice Department then denied death benefits to his window.

The case is Afolayan v Department of Justice (CAFC No. 2021-1452 (nonprecedential) 4/15/2022). The facts are taken from the court opinion.

Agent Afolayan collapsed after completing a mandatory training run at the Artesia, New Mexico, Border Patrol Academy. He had finished almost all of his twelve week program, part of which required he complete a one-and-a-half mile run in thirteen minutes or less. At the time of his run in the afternoon, it was 88 degrees, humidity was around 6 to 7 percent, and the altitude of the course was around 3400 feet above sea level. Agent Afolayan finished his run in 11 minutes and six seconds, well within the required time. But shortly after finishing he said he did not feel well and he collapsed. He died the next day at a hospital in Lubbock, Texas where his death certificate, which the court called “less than clear,” indicated cause of death as “Heat Illness,” with “cardiomegaly” and “other significant condition contributing to death.” (Opinion, p. 3)

About two years prior to his death, genetic testing obtained by Agent Afolayan showed that he was a carrier of sickle cell trait. While most people with this trait lead normal lives, there are unusual circumstances where stress in low oxygen (such as training under extreme conditions perhaps like the ones Afolayan was training in) can lead to sickle cell crisis and even death. (P. 4)

If Justice determines under the Benefits Act that a public safety officer “has died as the direct and proximate result of a personal injury sustained in the line of duty,” a death benefit is required to be paid to the family. (P. 2)

When Ms. Afolayan filed a claim for this death benefit, attaching the death certificate that listed “Heat Illness” as the cause of her husband’s death, the agency denied her claim. A hearing was held as part of her appeal process, the hearing officer affirmed denial of her claim, and the reviewing agency official agreed. He concluded that Agent Afolayan did not die of an “injury,” but rather of “exertion, sickle cell trait, heat, altitude, and dehydration.” (P. 5)

Ms. Afolayan took her case to the appeals court. The court has ruled that the agency’s approach on climactic conditions in this case was not consistent with law. The agency’s regulations provide that “climactic conditions” that are unusual should give rise to paying compensation for death caused by those conditions. The court agreed that those conditions must be shown to be “unusual” but disagreed with the government’s argument that they must be shown to be “extreme.” In the court’s view “unusual” means “different from the typical conditions prevailing in the work environment…[to] include heat, humidity, and altitude.” (P. 7)

The court parsed the legislative history of the Benefits Act, the Justice Department’s regulations, and the commentary accompanying the issuance of those regulations. In short, the court concluded that a finding of “non routine or out-of-the-ordinary climactic conditions would qualify for compensation.” (P.9) Justice erred when it failed to determine if the climactic conditions in this case met that test. 

However, as to Ms. Afolayan’s argument that the sickle cell trait could not be taken into account as a contributing cause, the court declined to decide that, instead bouncing that question back to the agency for further determination. (P. 14)

It is now again up to the Justice Bureau responsible for deciding these death benefit claims as to whether Ms. Afolayan’s claim will be granted or denied based on the sickle cell trait.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.