Case: 19-2195     Document: 17     Page: 1    Filed: 04/10/2020




         NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                   ______________________

                   PATRICIA WATKINS,
                        Petitioner

                              v.

                DEPARTMENT OF JUSTICE,
                         Respondent
                   ______________________

                         2019-2195
                   ______________________

    Petition for review of a decision of the Bureau of Justice
 Assistance in PSOB Claim No. 2014-002.
                   ______________________

                   Decided: April 10, 2020
                   ______________________

     PATRICIA WATKINS, Jackson, MS, pro se.

     LAUREN MOORE, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, for respondent. Also represented by JOSEPH H.
 HUNT, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR.
                  ______________________

  Before PROST, Chief Judge, MAYER and TARANTO, Circuit
                         Judges.
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 2                                             WATKINS   v. DOJ



 PER CURIAM.
     Patricia Watkins (“Watkins”) appeals the final deter-
 mination of the Director of the Bureau of Justice Assis-
 tance (“BJA”) denying her claim seeking a death benefit
 pursuant to the Public Safety Officers’ Benefits Act of 1976
 (“PSOBA”), Pub. L. No. 94-430, 90 Stat. 1346 (codified as
 amended at 34 U.S.C. §§ 10281–88). We affirm.
                       I. BACKGROUND
     In August 2013, Leo Watkins (“Officer Watkins”) was
 employed both by the Hinds Community College Police De-
 partment and the City of Raymond, Mississippi Police De-
 partment (“Raymond Police Department”). A. 2. On
 August 2, 2013, he “fell unconscious while on a lunch break
 from performing traffic and crowd control at graduation
 ceremonies for Hinds Community College.” A. 1. Although
 Officer Watkins was rushed to the hospital, he never re-
 gained consciousness and died on August 19, 2013. A. 3.
 His death certificate lists his cause of death as “cardiopul-
 monary failure due to brain hemorrhage due to hyperten-
 sion.” A. 7.
      Watkins, who is Officer Watkins’ sister, subsequently
 filed a claim seeking a death benefit pursuant to the
 PSOBA. * After the Public Safety Officers’ Benefits Office
 denied her claim, A. 22–24, Watkins requested a hearing
 officer determination pursuant to 28 C.F.R. § 32.17. Wat-
 kins was permitted to submit evidence in support of her
 claim when she appeared before the hearing officer. A. 25.
 The hearing officer determined that although Officer Wat-
 kins “was a long-term, dedicated police officer,” there was
 insufficient evidence to establish that his death was the



     *  The BJA determined that Officer Watkins was not
 married and had no children at the time of his death. A.
 4–5.
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 WATKINS   v. DOJ                                             3



 direct and proximate result of an injury sustained in the
 line of duty. A. 34.
      Watkins then appealed to the BJA. She presented ev-
 idence that Officer Watkins had responded to a domestic
 disturbance call when he was on duty with the Raymond
 Police Department on March 6, 2013. A. 7. As Officer Wat-
 kins was attempting to make an arrest, the suspect pushed
 him “against a wall . . . causing his head to hit the wall with
 sufficient force to break the drywall.” A. 7 (footnote omit-
 ted). Watkins supplied photographs showing that Officer
 Watkins sustained bruises on his head as a result of this
 incident and testified that he had complained of headaches
 for several months after the incident occurred. A. 7.
     On April 11, 2019, the BJA denied Watkins’ claim. A.
 1–17. It explained that a claimant seeking a PSOBA death
 benefit “must demonstrate that it is more likely than not
 that the decedent was a public safety officer, who died as
 the direct and proximate result of an injury sustained in
 the line of duty.” A. 4 (footnotes, citation and internal quo-
 tation marks omitted). Although the BJA agreed with the
 hearing officer that Officer Watkins was a public safety of-
 ficer, A. 5, it concluded that there was no “competent med-
 ical evidence” showing that Officer Watkins’ fatal stroke
 was the direct and proximate result of the head injury he
 sustained in March 2013. A. 8. The BJA determined,
 moreover, that Watkins was not entitled to rely on 34
 U.S.C. § 10281(k), which creates a rebuttable presumption
 that a stroke suffered by a public safety officer while en-
 gaged in “nonroutine stressful or strenuous physical law
 enforcement . . . activity” qualifies as a personal injury
 “sustained in the line of duty” for PSOBA purposes. See A.
 9–11. The BJA concluded that Officer Watkins’ duties in
 the period immediately prior to his stroke did not involve
 nonroutine or strenuous physical law enforcement activity.
 A. 11–12. According to the BJA, “in the 24-hour period pre-
 ceding the onset of his fatal stroke, Officer Watkins con-
 ducted routine patrol activities and did not engage in any
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 4                                             WATKINS   v. DOJ



 activity that would constitute nonroutine stressful or
 strenuous physical law enforcement activity within the
 meaning of the [PSOBA] and its implementing regula-
 tions.” A. 11.
    Watkins then filed a timely appeal with this court. We
 have jurisdiction pursuant to 34 U.S.C. § 10287.
                        II. DISCUSSION
     This court’s authority to review a decision by the BJA
 to deny a claim for a PSOBA death benefit is limited. “We
 review the BJA’s application of its own regulations to de-
 termine ‘(1) whether there has been substantial compliance
 with statutory requirements and provisions of implement-
 ing regulations; (2) whether there has been any arbitrary
 or capricious action on the part of the government officials
 involved; and (3) whether substantial evidence supports
 the decision denying the claim.’” Li v. Dep’t of Justice, 947
 F.3d 804, 807 (Fed. Cir. 2020) (quoting Amber-Messick v.
 United States, 483 F.3d 1316, 1321 (Fed. Cir. 2007)).
     The PSOBA provides a one-time cash payment to the
 survivors of public safety officers who are killed as the re-
 sult of injuries sustained in the line of duty. 34 U.S.C.
 § 10281(a); see Amber-Messick, 483 F.3d at 1318. For a sur-
 vivor to qualify for this benefit, at least three requirements
 must be satisfied. First, the public safety officer must have
 suffered a “personal injury” within the meaning of the
 PSOBA. 34 U.S.C. § 10281(a). Second, the personal injury
 must have been suffered “in the line of duty,” and, finally,
 the officer’s death must have been the “direct and proxi-
 mate result” of that injury. Id.; see Cassella v. United
 States, 469 F.3d 1376, 1378 (Fed. Cir. 2006).
      On appeal, Watkins argues that her brother died as a
 result of the blow to the head he sustained in March 2013
 while making an arrest. See Pet. Corrected Informal Br.
 1–2; see also Pet. Mem. in Lieu of Reply Br. 1–5. Substan-
 tial evidence, however, supports the BJA’s determination
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 WATKINS   v. DOJ                                           5



 that Officer Watkins’ August 2013 death was not the “di-
 rect and proximate result,” 34 U.S.C. § 10281(a), of the
 head trauma he suffered in March 2013. See, e.g., Consolo
 v. Fed. Mar. Comm’n, 383 U.S. 607, 619–20 (1966) (“[S]ub-
 stantial evidence” is “such relevant evidence as a reasona-
 ble mind might accept as adequate to support a
 conclusion.” (citation and internal quotation marks omit-
 ted)); Intelligent Bio-Systems, Inc. v. Illumina Cambridge
 Ltd., 821 F.3d 1359, 1366 (Fed. Cir. 2016) (“Substantial ev-
 idence review asks whether a reasonable fact finder could
 have arrived at the agency’s decision and requires exami-
 nation of the record as a whole, taking into account evi-
 dence that both justifies and detracts from an agency’s
 decision.” (citation and internal quotation marks omitted)).
     In concluding that the head injury Officer Watkins sus-
 tained in March 2013 was not the direct and proximate
 cause of his death, the BJA relied on the opinion of Stephen
 J. Cina, M.D., an independent forensic pathologist, who
 concluded that “[t]he injuries received [by Officer Watkins]
 in March 2013 did not contribute to [his] death.” A. 7. Cina
 stated that there was “no evidence that [Officer Watkins]
 injured his brain or bled into the membranes around his
 brain when he received blunt force injuries to his head in
 March of 2013” and that it was “[m]ore likely than not
 [that] the superficial blunt force injuries received in March
 2013 [were] completely unrelated to his stroke in August
 2013.” A. 7–8; see also A. 38–39. Cina explained that Of-
 ficer Watkins suffered from “longstanding, poorly con-
 trolled hypertension,” and concluded that his stroke “was
 part of a natural disease process, namely high blood pres-
 sure.” A. 39.
     Significantly, moreover, the medical records associated
 with Officer Watkins’ hospitalization in the period prior to
 his death contain no indication that his death was caused
 by his March 2013 head injury. A. 8. As the BJA correctly
 noted, “[h]ospital treatment records from . . . Officer Wat-
 kins’ attending physician . . . make no mention of a head
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 6                                             WATKINS   v. DOJ



 injury” and the causes of death listed on his treatment dis-
 charge summary do not include traumatic head injury. A.
 8 (footnote omitted). Under such circumstances, the BJA
 had ample support for its conclusion that Watkins failed to
 establish that it was more likely than not that her brother’s
 August 2013 death was directly and proximately caused by
 the head injury he sustained in March 2013. A. 8–9; see 28
 C.F.R. § 32.5(a) (“Except as otherwise may be expressly
 provided in the [PSOBA] or this part, a claimant has the
 burden of persuasion as to all material issues of fact, and
 by the standard of proof of ‘more likely than not.’”).
     On appeal, Watkins argues that the BJA “failed to con-
 sider the facts about [Officer Watkins’] blunt force trauma
 head injury . . . that was sustained while answering a do-
 mestic disturbance call on March 6, 2013.” Pet. Mem. in
 Lieu of Reply Br. 4. We disagree. The BJA carefully con-
 sidered the record evidence showing that Officer Watkins
 had suffered a blow to the head while making an arrest in
 March 2013 and concluded that this head injury was “sus-
 tained in the line of duty.” A. 7. As the BJA correctly de-
 termined, however, Watkins did not present “competent
 medical evidence” showing that her brother’s August 2013
 fatal stroke was “directly and proximately caused” by the
 head injury he sustained in March 2013. A. 8.
      Watkins also points to an autopsy report prepared by
 Matthias Okoye, M.D., and asserts that it establishes that
 the cause of Officer Watkins’ death was the head injury he
 sustained in March 2013. Pet. Corrected Inf. Br. 2. Be-
 cause Okoye’s autopsy report was not presented to the
 BJA, however, it is “not part of the record on appeal and
 [is] not properly before us.” Turman–Kent v. Merit Sys.
 Prot. Bd., 657 F.3d 1280, 1283 (Fed. Cir. 2011); see, e.g.,
 Oshiver v. OPM, 896 F.2d 540, 542 (Fed. Cir. 1990) (“We
 will not consider the new evidence contained in the supple-
 mental papers because that evidence was not presented to
 the Board.”). We note, moreover, that Okoye conducted his
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 WATKINS   v. DOJ                                           7



 autopsy in October 2019, more than six years after Officer
 Watkins’ death.
                        III. CONCLUSION
     We have considered Watkins’ remaining arguments
 but do not find them persuasive. Accordingly, the final de-
 termination of the Director of the Bureau of Justice Assis-
 tance is affirmed.
                         AFFIRMED
                            COSTS
    No costs.
