Hesson v. Department of Justice, 664 F. App'x 932

Background

William Hesson, a corrections officer, died from an on-duty assault in 2009. He had been married to Julie Ann (née Keady) in 1995 (two children) and later participated in a marriage ceremony with Julia Ann (née Bernhardt) in Ohio in 2004 (two children). Hesson had six children in total.
Keady and Hesson separated in 1999; Keady filed but never served a New York divorce petition, so no legal divorce was entered.
Under the PSOB Act, benefits are split 50% to surviving spouse and 50% to surviving child(ren) when both survive. The Bureau of Justice Assistance (BJA) administers regulations defining spouse and divorce.
The PSBO initially awarded equal shares of half the benefit to the six children and investigated marital status; the PSBO later determined Keady was the surviving spouse entitled to the spouse share.
Bernhardt appealed, arguing Keady had held herself out as divorced (or otherwise not married) so she was not the surviving spouse and the full spouse share should instead go to the children. A Hearing Officer found Keady credible; the Director of BJA upheld that Keady remained Hesson’s spouse.
The court reviews whether BJA complied with procedure, acted arbitrarily or capriciously, and had substantial evidence; the court affirms the BJA decision that Keady was the surviving spouse.

Issues

Issue	Plaintiff's Argument (Bernhardt)	Defendant's Argument (BJA/Government)	Held
Whether the BJA misapplied the PSOB regulation definition of "divorce" by ignoring the decedent's conduct	Benda (Bernhardt) argued BJA should consider Hesson’s conduct/representations in determining whether Keady was "divorced" for PSOB purposes	BJA argued its interpretation of the regulation properly focuses on the claimant’s (surviving spouse’s) conduct and is entitled to deference	Court held BJA’s interpretation reasonable and entitled to deference; decedent's actions need not be considered
Whether Keady held herself out as divorced, married to another, or participated in another marriage ceremony	Bernhardt contended Keady effectively represented herself as divorced or unmarried, disqualifying her as spouse	Government pointed to BJA hearing, Keady’s sworn testimony, absence of evidence she held herself out as divorced, and that tax status does not prove divorce under the regulation	Court found substantial evidence supporting BJA’s factual finding that Keady did not hold herself out as divorced; Keady is surviving spouse
Whether BJA acted arbitrarily by denying Bernhardt’s requests for subpoenas/documents and cross-examination	Bernhardt argued denial of subpoenas and cross-examination was arbitrary and prejudicial	Government contended BJA was not required to produce evidence for claimants or allow cross-examination under PSOB regulations; Hearing Officer did subpoena some materials and examined Keady	Court held BJA did not act arbitrarily; no requirement to grant all discovery or cross-examination requests and record was adequate
Whether the BJA substantially complied with PSOB statutory/regulatory requirements	Bernhardt asserted procedural/regulatory errors in BJA’s approach to "divorce" definition	Government argued BJA substantially complied and followed de novo review procedures	Court held BJA substantially complied with statutory/regulatory requirements and decision was supported by substantial evidence

Key Cases Cited

Juneau v. Dep’t of Justice, 583 F.3d 777 (2009) (explains PSOB benefit scope and appellate review)
Amber-Messick v. United States, 483 F.3d 1316 (2007) (standards for reviewing PSOB denials)
Smith v. Nicholson, 451 F.3d 1344 (2006) (agency interpretations of own regulations entitled to deference)
Groff v. United States, 493 F.3d 1343 (2007) (agency regulatory authority under PSOB Act)
White v. United States, 543 F.3d 1330 (2008) (deference to agency interpretations of regulations)
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) (agency interpretation of its own regulation controls unless plainly erroneous)