The petitioner, for herself and her minor children, petitions for review of the denial of her application for benefits under the Public Safety Officers Death Benefits Act, 42 U.S.C. §§ 3796-3796c (1976) (Benefits Act). The benefits were sought on account of her police sergeant husband's death in the line of duty. We take jurisdiction under 42 U.S.C. §§ 3758(a), 3759 (1976), and reverse.

* FACTS

Sergeant Edward Russell worked as a detective for the Los Angeles County Sheriff's Department. He was required to bring his own car to work and used it extensively during investigations.

On January 15, 1977, he was working as the weekend duty detective, handling custodial cases and responding to emergency investigative needs. He reported to work at 8:00 a. m., worked on investigations at the station and in the field all day, and left for home at 11:00 p. m. At about 11:45, his car was forced out of its lane by an errant auto, colliding head-on with an oncoming car. Russell was killed.

Russell's wife and children received county employee death benefits and state workers' compensation payments. Mrs. Russell then applied for payments under the Benefits Act, which provides a death benefit of $50,000 to the dependents of a police officer who dies from an injury sustained "in the line of duty." The Law Enforcement Assistance Administration (LEAA), which administers the Benefits Act, denied the application on the ground that Sergeant Russell did not die in the line of duty. Mrs. Russell petitions for review of that denial.

The threshold question is whether we have jurisdiction to review LEAA denials of applications for Benefits Act payments.

The jurisdiction of the United States courts of appeals is limited to that conferred by statute. Young Properties Corp. v. United Equity Corp., 534 F.2d 847, 849-50 (9th Cir.), cert. denied, 429 U.S. 830, 97 S. Ct. 90, 50 L. Ed. 2d 94 (1976). We turn to the LEAA statute, chapter 46 of title 42 of the United States Code, to determine whether Congress has directed us to review Benefits Act denials. This examination is a frustrating exercise, because Congress has delivered a set of opaque and conflicting signals. Nevertheless, we must try to ascertain and apply the legislative intent.

In order to understand the judicial review provisions of the LEAA Act it is necessary to understand the structure of the Act, which comprises chapter 46 of title 42 of the United States Code, 42 U.S.C. §§ 3701-3796c (1976). Chapter 46 has nine subchapters. Subchapter I, section 3711, charters LEAA. Subchapters II-IV, sections 3721-3750d, authorize grants for various state and local law enforcement programs. Subchapter V, sections 3751-3774, establishes the procedural regime; its key provisions are section 3751, authorizing promulgation of rules and regulations, section 3758, authorizing administrative review, and section 3759, authorizing judicial review. Subchapters VI-VII, sections 3781-3795, contain minor technical provisions. Subchapter IX, sections 3796-3796c, is the Benefits Act.

Russell contends that jurisdiction is straightforwardly conferred by the judicial review provision, section 3759, which provides in pertinent part:

(a) If any applicant or grantee ... is dissatisfied with (LEAA's) final action under section 3757 or section 3758 of this title, such applicant or grantee 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 grantee is located a petition for review of that action.

In order to decide whether judicial review is available under this section, we must apply the "throwback" clause and determine whether denial of an application for Benefits Act payments constitutes "final action under section 3757 or section 3758."1 The answer hinges on our interpretation of section 3758.2

Section 3758 has three subsections. Subsection (a) precludes review except as "hereafter provided." Subsections (b) and (c) establish the procedure for administrative review of denials of financial and technical assistance grants.

The government insists that section 3758 applies only to actions covered by subsections (b) and (c): applications by state and local law enforcement agencies for financial and technical assistance grants. It then characterizes an application for Benefits Act payments not as an "application for a grant" but rather as a "claim for a benefit," which, it contends, is outside the scope of subsections (b) and (c). We disagree.

We conclude that subsection 3758(a), read in conjunction with section 3759, authorizes review independent of subsections 3758(b) and (c). Subsection (a) provides:

In carrying out the functions vested by this chapter in (LEAA), the determinations, findings, and conclusions of (LEAA) shall be final and conclusive upon all applicants, except as hereafter provided.

(emphasis added). Admittedly, this language is susceptible of two interpretations. The government asserts that it precludes judicial review of any LEAA action except to the extent that the action is subject to the administrative review provisions of subsections (b) and (c), thus restricting review to applications for grants. Alternatively, it merely establishes the manner and extent of review of all LEAA final actions, including those under the Benefits Act, limiting review to the manner and extent provided by section 3759.3 We adopt the latter interpretation.4

Our conclusion is supported by the recent revision of the LEAA statute contained in the Justice System Improvement Act of 1979, Pub.L.No.96-157, 93 Stat. 1167 (1979) (Revised Act).5 The Revised Act makes no substantive changes in the judicial review provisions of the LEAA statute or in the Benefits Act, and neither the Revised Act nor its legislative history mentions judicial review of Benefits Act cases. There is, however, a significant reorganization of the relevant provisions. Former subsections 3758(b) and (c), establishing the procedure for administrative review of grant application denials, are now subsections 3783(a) and (b). Former subsection 3758(a), limiting the manner and extent of review, is now an independent section, 3784. Former subsection 3759, providing judicial review, is now section 3785. It authorizes judicial review if "any ... recipient is dissatisfied with a final action with respect to section 3783, 3784, or 3789(c)(2)(G) ..." (emphasis added).6B. Legislative History

LEAA contends that, to the extent that the statute is ambiguous regarding judicial review of denials of applications for Benefits Act payments, the legislative history reveals that judicial review was not intended. We find the legislative history at best inconclusive. As noted above, the statutory provisions relating to LEAA are all contained in chapter 46 of title 42 of the United States Code, 42 U.S.C. §§ 3701-3796c (1976). Most of chapter 46 was enacted as title I of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L.No.90-351, 82 Stat. 197 (1968) (Omnibus Act). The Omnibus Act created LEAA and authorized it to provide financial and technical assistance grants to state and local law enforcement agencies. It was rewritten, without substantive change in any of the provisions relevant here, by the Crime Control Act of 1973, Pub.L.No.93-83, 87 Stat. 197 (1973). In 1976, the Benefits Act was added to chapter 46, as subchapter IX. There is little discussion of judicial review in the legislative history of either the Omnibus Act or the Crime Control Act, and judicial review is not mentioned in either the text or the legislative history of the Benefits Act.

LEAA insists that because the Omnibus Act and the Benefits Act are substantively different and use different language, Congress would have made explicit an intention to extend the judicial review provisions of the Omnibus Act to Benefits Act cases. It is, however, just as logical to argue that because the Benefits Act was added to chapter 46 and the existing programs in that chapter were all subject to judicial review, Congress would have made explicit an intention to withhold review of Benefits Act cases. Such barren legislative history, susceptible as it is to easy syllogistic manipulation, does not aid our inquiry.

Since section 3758(a) precludes judicial review of all LEAA final actions except in the manner and to the extent provided by 42 U.S.C. § 3759, were we to find that a denial of an application for Benefits Act payments was nonreviewable under section 3759, it could not be reviewed at all. Courts have always disfavored such a result, and the Supreme Court has stated that " 'judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.' " Morris v. Gressette, 432 U.S. 491, 501, 97 S. Ct. 2411, 2418-2419, 53 L. Ed. 2d 506 (1977) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S. Ct. 1507, 1511, 18 L. Ed. 2d 681 (1967)). See also Barlow v. Collins, 397 U.S. 159, 166-67, 90 S. Ct. 832, 837-838, 25 L. Ed. 2d 192 (1970); Legal Aid Soc'y of Alameda County v. Brennan, 608 F.2d 1319, 1330-31 (9th Cir. 1979), cert. denied, --- U.S. ----, 100 S. Ct. 3010, 65 L. Ed. 2d 1112 (1980); Hahn v. Gottlieb, 430 F.2d 1243, 1249-51 (1st Cir. 1970). In the face of the ambiguity of the LEAA statute and its legislative history, we find no clear expression of an intention to withhold review.

Nor do we find present in this case any of the factors on which courts have relied to infer an intention to withhold review. Two considerations are relevant here: (1) the appropriateness and necessity of judicial review and (2) the impact judicial review will have on the agency's ability to carry out its mission. See Hahn v. Gottlieb, 430 F.2d 1243, 1249 (1st Cir. 1970). Regarding the first, Benefits Act cases are well suited to review because there is a clear legal standard to apply: whether a death occurred "in the line of duty." Analysis of the legal issues which arise as LEAA applies this standard is within the special competence of courts, and review is necessary to insure that LEAA correctly interprets and applies the statute.7 The appropriateness of review is indicated also by the fact that three similar federal programs provide direct review in the courts of appeals: the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 921(c) (1976); the Railroad Unemployment Compensation Act, 45 U.S.C. § 355(f) (1976); and the Railroad Retirement Act, 45 U.S.C. § 231g (1976).8 The second consideration also brings us down on the side of review. Judicial review of Benefits Act cases will not interfere with agency policymaking. It will simply augment the internal adjudicative process which the agency has devised to handle Benefits Act applications.

For the foregoing reasons we conclude Congress has mandated appellate court review of LEAA denials of applications for Benefits Act payments. We are not unmindful that the United States Court of Appeals for the Fourth Circuit has reached the opposite conclusion. Lankford v. Law Enforcement Assistance Administration, 620 F.2d 35 (4th Cir. 1980). We have carefully considered the reasoning underlying that decision, but we are persuaded otherwise.9

42 U.S.C. § 3796(a) (1976) provides a $50,000 payment to the survivors of any police officer10 who dies from a personal injury sustained "in the line of duty."11 Mrs. Russell contends that Sergeant Russell's death in a commuting accident was in the line of duty. She makes two supporting points. First, she argues that the standard for determining whether a death occurred in the line of duty is the same as the standard for determining whether an injury is job-related under workers' compensation law. Second, she argues that under workers' compensation law Sergeant Russell's death was within an exception to the ordinary rule against compensating for injuries sustained while commuting.12 LEAA contests only the first point. It argues that the standard for determining whether a death occurred in the line of duty is more rigorous than the workers' compensation job-relatedness standard. It does not dispute that Sergeant Russell's death is covered under that standard.

In order to ascertain the standard established by the Benefits Act it is necessary to understand the purposes Congress sought to promote by it. Congress was concerned that states and municipalities did not provide adequate death benefits to police officers and their families and that the low level of benefits impeded recruitment efforts and impaired morale.13 By increasing the level of benefits it sought to remedy these defects and thereby assist in the national fight against crime.

The most direct and effective method of compensating for inadequate state and local death benefits would have been adoption of a comprehensive federal police officers' death benefits program compensating the families of every deceased police officer. Congress did not go that far. Constrained by budgetary considerations and by fears that federal assumption of full responsibility for compensating the families of deceased officers would weaken the federal system and allow states and municipalities to evade their responsibility,14 it adopted a limited program. Our task is to discern its limits.

There are four groups of police officers that Congress could cover by passing a death benefits statute. Listed from narrowest to broadest, they are:

(1) All officers who die as the result of a criminal act or hazardous activity;

(2) All officers who die from an injury sustained in the course of employment as the result of an accident or a criminal act (expanding the first group to include victims of job-related accidents);(3) All officers who die from any job-related cause (expanding the second group to include victims of diseases and stress-induced infirmities which are job-related);

(4) All officers who die, from any cause (i.e., a de facto life insurance program).

The fourth group was clearly not covered by the Benefits Act,15 and the question of whether the third group was covered is not raised in this case. The only issue here is whether, by covering deaths occurring "in the line of duty," Congress limited coverage to the first group, or extended it to the second group as well.

It is clear that Congress was concerned primarily with the first group: officers who fall victim to the special risks attending police duty. Murders of police officers dramatize the vital service police officers render and the great dangers they face. The congressional debates and legislative history are replete with stories of young officers who were killed by violence while protecting the public16 and with statistics indicating the number of police officers killed by violence annually.17 The original House version of the Benefits Act, H.R. 366, 94th Cong., 2d Sess. (1976), U.S.Code Cong. & Admin.News, 1976 p. 2504, was directed at only these cases. It limited coverage to officers whose deaths resulted from criminal acts or from the performance of hazardous duties,18 and the legislative history is explicit that coverage was not extended to officers whose deaths resulted from routine accidents, even job-related ones.19

However, when the Benefits Act was debated in the Senate several senators objected that its coverage was to uncertain and narrow.20 To cure this perceived defect, Senator Moss introduced an amendment broadening coverage to include any police officer who dies "as the direct and proximate result of a personal injury sustained in the line of duty." 122 Cong. Rec. 22643 (1976). The Senate manager of the bill, Senator McClellan, supported the Moss Amendment, explaining its effect as follows:

The effect of this amendment is to make the survivors of a law enforcement officer or fireman, as defined by the bill, eligible for receipt of benefits if the latter is killed in the line of duty. In other words, it is not health insurance, but it does provide for payment if an officer is killed in the line of duty, either by accidental or by willful assault by a criminal.

Id. at 22644-45. The amendment passed overwhelmingly. Id. at 22645. The conference committee accepted the Senate version, and the House expressly endorsed the change when approving the Conference Report. Id. at 30518. The House Conference Report explained:

The House bill authorized payment if the public safety officer's death was the result of a personal injury sustained in the line of certain hazardous duties which are specified in the bill. Such duties included: apprehending or guarding criminals; preventing crime; and other activities determined by (LEAA) to be potentially dangerous....

The Senate amendment authorized payment of the death benefit to the survivors of law enforcement officers ... for all line of duty deaths.

The Conference substitute conforms to the Senate amendment.

H.R.Conf.Rep.No.94-1501, 94th Cong., 2d Sess. 5-6, reprinted in (1976) U.S. Code Cong. & Ad. News pp. 2504, 2510-11.

It is beyond doubt that by deleting the references to criminal or inherently dangerous activity Congress meant to extend Benefits Act coverage to all victims of fatal injuries sustained in the line of duty.21 But we still must determine precisely what Congress intended by the phrase "line of duty."

We know Congress intended to cover all job-related accidental deaths22 and to incorporate an existing legal standard.23 Unfortunately, there is more than one source from which the standard might derive: LEAA regulations, the workers' compensation law of the relevant state, or general workers' compensation law.

LEAA argues that Congress delegated to it the responsibility of defining "line of duty" and hence job-relatedness. We reject this argument. The legislative history indicates that Congress used "line of duty" as a term of art, with substantive meaning. By its use, Congress fashioned a delicate political compromise striking a balance between the purposes of enhancing recruitment and morale and the need to limit federal expenditures. It would frustrate the intent of Congress and threaten to upset its compromise for LEAA to take unto itself the defining of the term. The terms of the Benefits Act do not expressly delegate to LEAA the authority to define job-relatedness. Each of the provisions authorizing LEAA to promulgate regulations are general provisions enabling the agency to erect the procedural framework it needs to carry out its mission. There is no indication that the regulations may reach substantive matters.24

We also reject LEAA's assertion that we should defer to its interpretation of the job-relatedness standard upon the theory that courts must defer to the interpretation of a statute rendered by the agency charged with administering it. See Udall v. Tallman, 380 U.S. 1, 16, 85 S. Ct. 792, 801, 13 L. Ed. 2d 616 (1965). Such deference is not appropriate when the particular interpretation is outside the agency's expertise. Amchem Products, Inc. v. GAF Corp., 594 F.2d 470, 476 (5th Cir. 1979), modified 602 F.2d 724 (5th Cir. 1979). Determining whether a death is job-related is surely not a matter about which LEAA has acquired an extensive store of experience.

Russell makes her argument in the alternative. She contends first that Congress has directed LEAA to defer to state workers' compensation law, i.e., that Benefits Act payments should be made if the death would be covered under the workers' compensation law of the state where the death occurred. We reject this contention. The Act enunciates a single standard and provides uniform payments by a single administrative entity. There is no indication in the text of the statute or its legislative history that Congress intended to fragment the administration of the Benefits Act by deferring to the laws of fifty states.25

We agree with Mrs. Russell's alternate argument that the workers' compensation standard is the more apt guide for measuring job-relatedness under the Benefits Act. There are two reasons for this conclusion. First, it appears that Congress was actually alluding to workers' compensation law when it adopted the "line of duty" standard and stated that it was a term of art. There are three common usages of the phrase "line of duty" in the case law: to describe a police officer's murder; to describe the agency doctrine of respondeat superior ; and to describe the workers' compensation job-relatedness test. Given the legislative history, the latter is the intended usage.26

Second, the purposes of workers' compensation laws and the Benefits Act have common elements. We discern no reasoned basis for distinguishing between whether an injury is job-related and therefore compensable under workers' compensation law and whether a death is job-related and therefore compensable under the Benefits Act.

We conclude that by using the "line of duty" language Congress meant to adopt a job-relatedness test akin to that developed under workers' compensation law. Although workers' compensation is a statutory rather than common law doctrine and jurisdictions with different statutes have occasionally developed different rules, there is considerable doctrinal uniformity. Therefore, LEAA and the courts should look to general workers' compensation law as a guide to the development of a federal law and interpret the Benefits Act job-relatedness test consistently with workers' compensation doctrines, unless there is a significant policy reason to diverge.

Adopting this approach, we conclude that Sergeant Russell's accident is compensable. Under general workers' compensation law, the basic rule, oft described as the "going and coming rule," denies compensation for injuries sustained en route to and from work.27 But there are several exceptions to this rule, which derive from an understanding that the employer sometimes controls the employee's commute. The Michigan Court of Appeals explains the state of the law as follows:

Having become riddled with exceptions, the general rule of noncompensability while going to and from work has evolved into a new rule which compensates injury where there is a sufficient nexus between the employment and the injury to conclude that it was a circumstance of employment.

Hicks v. General Motors Corp., Chevrolet Assembly Plant, 66 Mich.App. 38, 238 N.W.2d 194, 196 (1975). The requisite nexus has been found where the employer provides transportation to the employee, F.W.A. Drilling Co. v. Ulery, 512 P.2d 192, 194 (Okl.1973), and where the nature of the employment subjects the employee to special commuting risks, Hicks v. General Motors Corp., 238 N.W.2d at 197 (excessive traffic congestion); Briggs v. American Biltrite, 174 N.J. 185, 376 A.2d 1231, 1234 (1977) (late night overtime, fatiguing the employee).

Russell relies on a line of cases finding compensable injury where the employer had restricted the employee's choice of means of transportation, because the Los Angeles County Sheriff controlled Sergeant Russell's choice of means of transportation by requiring him to use his own car on the job. She is correct. Many jurisdictions have established an exception to the "going and coming rule" when the employee is required to use his own car at work. See, e.g., Rhodes v. Workers' Compensation Appeals Bd., 84 Cal. App. 3d 471, 148 Cal. Rptr. 713 (1978); Davis v. Bjorenson, 229 Iowa 7, 293 N.W. 829 (1940); Pittsburg Testing Laboratories v. Kiel, 130 Ind.App. 598, 167 N.E.2d 604 (1960); Begley v. International Terminal Operating Co., 114 N.J.Super. 537, 277 A.2d 422 (1971); Lutgen v. A. Conte Electrical, Inc., 50 App.Div.2d 624, 374 N.Y.S.2d 434 (1975); Bebout v. State Accident Ins. Fund, 22 Or.App. 1, 537 P.2d 563 (1975), aff'd, 273 Or. 487, 541 P.2d 1293 (1975); Bailey v. State Indus. Comm'n, 16 Utah 2d 208, 398 P.2d 545 (1965). See generally I A. Larson, Workmen's Compensation Law § 17.50 (1972). We find no jurisdiction which rejects the exception.28

Sergeant Russell was expressly required to have a driver's license and a car of his own to perform his job. He was required to bring the car to work and usually spent much of his work day on the road. He used his car for job-related activities on the day of the accident. When driving home he was rendering a service to his employer by transporting a piece of law enforcement equipment. In addition, his employment conditions increased the hazards of his commute, because as weekend duty detective he had to put in long hours and drive home at a particularly dangerous time-late on a Saturday night. We conclude that Russell was engaging in a job-related activity at the time of his death and therefore that his death occurred in the line of duty.29

In summary, LEAA applied an erroneous legal standard. We reverse and remand with instruction that LEAA pay a $50,000 death benefit to Mrs. Russell for herself and in her representative capacity for her children in accordance with the payment provisions of the Benefits Act.