Albert Nelson Lobo v. Department of Justice

United States Court of Appeals
for the Federal Circuit
______________________
ALBERT NELSON LOBO,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2024-1198
______________________
Petition for review of a decision of the Bureau of Justice
Assistance in PSOB Claim No. 2015-DIS-039.
______________________
Decided: June 9, 2025
______________________
BRIAN COLLINS , Law Offices of Brian W. Collins, APC,
Highland, CA, argued for petitioner.
ANNE D ELMARE , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by BRIAN
M. BOYNTON, ALBERT S. I AROSSI, P ATRICIA M. MCCARTHY .
______________________
Case: 24-1198 Document: 45 Page: 1 Filed: 06/09/2025

-- 1 of 13 --

LOBO v. DOJ 2
Before T ARANTO and STOLL , Circuit Judges, and SCARSI,
District Judge.1
T ARANTO, Circuit Judge.
In the winter and early spring of 2010, Albert Lobo was
a public safety officer (Deputy Sheriff, with Corporal rank)
for San Bernardino County in California and was working
at either or both of two county detention facilities (jails).
He came down with pneumonia, which, progressing to sep-
sis, led to multiple amputations that left him permanently
and totally disabled. Between 2012 and 2014, he was
granted a disability retirement at the county level and
workers’ compensation benefits at the state level.
Thereafter, in March 2015, Mr. Lobo filed the federal-
law claim at issue here—a claim for disability-based bene-
fits under the Public Safety Officers’ Benefits Act of 1976
(PSOB Act), 34 U.S.C. § 10281, filed with the Public Safety
Officers’ Benefits Office (PSOB Office) of the Bureau of Jus-
tice Assistance (Bureau) of the U.S. Department of Justice.
The PSOB Office (in May 2016), a hearing officer (in Octo-
ber 2017), and the Bureau’s Director (in August 2023)
found that Mr. Lobo was a public safety officer who was
permanently and totally disabled due to the severe compli-
cations caused by his pneumonia, but they nonetheless de-
nied the PSOB claim, finding that Mr. Lobo had not proven
that he caught the pneumonia in the line of duty, i.e., at
the jail(s) where he worked. On Mr. Lobo’s appeal, we hold
that the Bureau made insufficient efforts to obtain infor-
mation that, considering the other evidence before the Bu-
reau, could be highly material to a sound adjudication of
the decisive locus-of-origin issue. We therefore vacate the
Director’s decision and remand for further proceedings.
1 The Honorable Mark C. Scarsi, District Judge,
United States District Court for the Central District of Cal-
ifornia, sitting by designation.
Case: 24-1198 Document: 45 Page: 2 Filed: 06/09/2025

-- 2 of 13 --

LOBO v. DOJ 3
I
A
The Public Safety Officers’ Benefits Act of 1976 (PSOB
Act), as amended and recodified, states that “a benefit shall
be payable to [a] public safety officer” “in any case in which
the Bureau determines that [the] public safety officer has
become permanently and totally disabled as the direct and
proximate result of a personal injury sustained in the line
of duty.” 34 U.S.C. § 10281(b); see Pub. L. No. 101-647,
§ 1301, 104 Stat. 4834 (Nov. 29, 1990) (authorizing disabil-
ity benefits). The statute adds: “The Bureau, with all due
diligence, shall expeditiously attempt to obtain the infor-
mation and documentation necessary to adjudicate a bene-
fit claim filed under this subchapter.” 34 U.S.C. § 10288(a).
Specifically, “[i]f a benefit claim . . . is unable to be adjudi-
cated by the Bureau because of a lack of information or doc-
umentation from a third party, such as a public agency,
and such information is not readily available to the claim-
ant,” the Bureau “may use available investigative tools, in-
cluding subpoenas” to adjudicate a claim or obtain
information necessary to adjudicate the claim “if the Bu-
reau deems such use to be necessary to adjudicate or con-
ducive to expediting the adjudication of” the claim. Id.
§ 10288(b). The provisions of § 10288 became law on June
2, 2017, see Public Safety Officers’ Benefits Improvement
Act of 2017, Pub. L. No. 115-36, § 4, 131 Stat. 849, 852
(June 2, 2017), and applied to any claim, like Mr. Lobo’s,
that was “pending before the Bureau of Justice Assistance
on the date of enactment” (or received on or after that date),
id. § 6, 131 Stat. at 852–53.
The statute authorizes the Bureau “to establish such
rules, regulations, and procedures as may be necessary to
carry out the purposes” of the PSOB Act. 34 U.S.C.
§ 10285(a). An implementing regulation states: “Except as
otherwise may be expressly provided . . . , a claimant has
the burden of persuasion as to all material issues of fact,
Case: 24-1198 Document: 45 Page: 3 Filed: 06/09/2025

-- 3 of 13 --

LOBO v. DOJ 4
and by the standard of proof of ‘more likely than not.’” 28
C.F.R. § 32.5(a).
B
In 1997, Mr. Lobo began working as a public safety of-
ficer at the San Bernardino County Sheriff’s Office. J.A. 4,
50. In late 2009, he was assigned to work at the Adelanto
Detention Center and, later, to the Victor Valley Jail (col-
lectively, the jails). J.A. 4, 50, 234; Oral Arg. at 0:30–1:00,
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=24
-1198_05072025.mp3. In January 2010, Mr. Lobo devel-
oped “flu-like symptoms, including a cough and runny
nose,” and in March 2010, he “sought outpatient treatment
for an earache and sore throat.” J.A. 4; see J.A. 372–73,
391–92. On April 24, 2010, Mr. Lobo went to the emer-
gency department at the San Antonio Community Hospi-
tal, where he was diagnosed with, among other conditions,
community-acquired pneumonia (i.e., “pneumonia ac-
quired outside of the hospital”) and sepsis. J.A. 4, 26; see
J.A. 377. Mr. Lobo’s condition worsened, and he “sustained
interstitial lung disease, myocardial infarction, and ampu-
tations of portions of four limbs due to disseminated intra-
vascular coagulation.” J.A. 4; see J.A. 118–22, 376–77.
When Mr. Lobo sought workers’ compensation from the
County, he and the County agreed to have Dr. Mark Hy-
man review his medical records and perform medical ex-
aminations—one on May 2, 2011, and another on
November 14, 2012. J.A. 5. After the first examination,
Dr. Hyman opined that Mr. Lobo was “100% disabled” and
that his severe medical complications and disability were
caused by pneumonia. J.A. 377–78; see J.A. 5–6. In a July
2011 deposition, Dr. Hyman opined that there was a “far
greater” likelihood that Mr. Lobo acquired pneumonia
through his work environment, i.e., the jails, than through
his visits to urgent-care clinics. J.A. 129; see also J.A. 128–
31. He noted that California’s workers’ compensation stat-
ute establishes an applicable legal presumption that
Case: 24-1198 Document: 45 Page: 4 Filed: 06/09/2025

-- 4 of 13 --

LOBO v. DOJ 5
“upper respiratory infections and pneumonia in a peace of-
ficer are presumed to be industrially related,” J.A. 378; see
Cal. Lab. Code § 3212, and explained that, in forming his
opinion, he relied on “medical literature that identifies in-
mate and prison populations as having high degrees of in-
fectious agents” and high rates of transmission, J.A. 130.
On November 28, 2012, an administrative law judge
assigned by the Workers’ Compensation Appeals Board of
California awarded Mr. Lobo various workers’ compensa-
tion benefits. J.A. 83. On August 1, 2014, the Workers’
Compensation Appeals Board in relevant part affirmed
that decision. J.A. 88–101; see J.A. 5. Meanwhile, on April
4, 2013, the San Bernardino County Employees’ Retire-
ment Association granted Mr. Lobo a service-connected dis-
ability retirement with accompanying benefits, effective
January 12, 2013. J.A. 567, 570; see J.A. 4.
C
On March 9, 2015, Mr. Lobo filed with the PSOB Office
of the Department of Justice’s Bureau of Justice Assistance
a claim for disability benefits under 34 U.S.C. § 10281(b).
J.A. 2. In late September 2015, the PSOB Office engaged
Dr. William Oetgen to review Mr. Lobo’s medical records
and provide opinions on Mr. Lobo’s disability. J.A. 137–40.
Dr. Oetgen responded in mid-October with a “Preliminary
Opinion.” J.A. 141–42.
Dr. Oetgen opined that while “[t]here is medical cer-
tainty that Mr. Lobo’s pneumonia directly caused his sub-
sequent medical complications and led to his amputations
. . . . [and] that Mr. Lobo is now totally and permanently
disabled,” Mr. Lobo’s file “is devoid of evidence that [his]
illness was work related or that he contracted pneumonia
from an infected inmate.” J.A. 142. He observed that “[i]t
is true that people who live and work in crowded places,
such as . . . prisons, have a higher risk of contracting com-
munity acquired pneumonia.” J.A. 142. “However,” he
added, “those with diabetes, such as Mr. Lobo, also are
Case: 24-1198 Document: 45 Page: 5 Filed: 06/09/2025

-- 5 of 13 --

LOBO v. DOJ 6
more susceptible to infections such as pneumonia,” without
saying or explaining how such greater susceptibility bears
on the locus-of-origin question. J.A. 142. He concluded
that “[t]here is no medical certainty in this case that the
performance of the claimant’s law enforcement duties was
a substantial factor in his development of pneumonia.”
J.A. 142. The “medical certainty” standard Dr. Oetgen
used was defined in the PSOB Office’s instruction to be
higher than a more-likely-than-not standard: The instruc-
tion defined “medical certainty” to require “convincing evi-
dence,” with a footnote after that phrase equating it
(“[i].e.”) to “clear and convincing evidence,” defined as
“highly probable or reasonably certain,” “a greater burden
than preponderance of the evidence.” J.A. 139 & n.2.
On May 5, 2016, the PSOB Office, relying on Dr.
Oetgen’s opinion, denied the claim. J.A. 2, 163–66.
Mr. Lobo timely filed a request for a determination by
a Hearing Officer under 28 C.F.R. § 32.29. J.A. 577; see
J.A. 3. Mr. Lobo provided a supplemental report from Dr.
Hyman, dated March 28, 2017, in which Dr. Hyman reiter-
ated his opinion that Mr. Lobo’s pneumonia was “industri-
ally related,” i.e., caused by “his work as a public safety
personnel in the jails.” J.A. 294–95; see J.A. 213. On April
4, 2017, the assigned Hearing Officer held a hearing. J.A.
214–16, 231–34; see J.A. 3 n.9. On October 23, 2017, the
Hearing Officer ruled that Mr. Lobo “ha[d] not established
by a standard of more likely than not that he contracted
pneumonia in the line of duty.” J.A. 584; see J.A. 577–85.
Mr. Lobo then timely filed a request for review by the
Bureau Director under 28 C.F.R. §§ 32.46–54. J.A. 597; see
J.A. 3. The Bureau Director sought out another medical
opinion, this time from Dr. James Diaz. J.A. 610, 611–16.
Dr. Diaz did not offer an opinion about where the pneumo-
nia was more likely contracted—outside the jails versus in
the jails. J.A. 617–34; see J.A. 8 & n.51. He did not say
that the two possibilities were equally likely. He went no
Case: 24-1198 Document: 45 Page: 6 Filed: 06/09/2025

-- 6 of 13 --

LOBO v. DOJ 7
further than saying that Mr. Lobo “may have” or “could
have” contracted pneumonia outside the jails. J.A. 623
(“Mr. Lobo could have been exposed to [the pathogen] ei-
ther by contact with infected asymptomatic inmates at the
jail facilities or by contact with infected patients, especially
children and adolescents, waiting to be seen at the same
urgent care center he frequented for months . . . .”), 626; see
also J.A. 623 (the pneumonia “may not have been 100% in-
dustrially related as asserted by Dr. Hyman”). Two specific
portions of Dr. Diaz’s report warrant mention. Dr. Diaz
discussed one study of a pneumonia outbreak in an over-
crowded Texas prison and said that the two jails at issue
here “did not appear to be overcrowded” or comparable to
the Texas prison, J.A. 623, but he did not address whether
even jails like those at issue here are more likely to foster
pneumonia than other potential sources of the disease here
(specifically, urgent-care clinics). And Dr. Diaz included in
his evidence summary the following language: “I am not
aware of other inmates or staff being diagnosed with pneu-
monia during my assignment at the Victor Valley Jail.”
J.A. 624 (citing a passage, not supplied to this court, in the
transcript of the April 4, 2017 hearing before the Hearing
Officer, with no clear attribution of the statement).
On August 21, 2023, the Bureau Director denied Mr.
Lobo’s benefits claim. J.A. 1–17, 25; see also J.A. 18–24
(listing of record material). In the final paragraph, the Di-
rector stated the reason for denial—that the Director was
not persuaded that it was more likely than not that Mr.
Lobo “contracted his disabling pneumonia in the course of
performing line of duty activities”—and highlighted the fol-
lowing bases for that conclusion: “the lack of evidence in
the record as to any pneumonia-infected inmate in the jail
where [Mr. Lobo] worked and any opportunity for trans-
mission of infection to [Mr. Lobo]”; “Dr. Oetgen’s statement
that ‘the file is devoid of evidence that [Mr. Lobo’s] illness
was work related or that he contracted pneumonia from an
infected inmate’”; and “Dr. Diaz’s inability to identify a
Case: 24-1198 Document: 45 Page: 7 Filed: 06/09/2025

-- 7 of 13 --

LOBO v. DOJ 8
particular source of [Mr. Lobo]’s pneumonia.” J.A. 17 (cita-
tions omitted). The Director relied on Dr. Oetgen and Dr.
Diaz after having discounted Dr. Hyman’s causation opin-
ion for relying on the presumption under California’s work-
ers’-compensation law and for relying on correctional-
setting medical literature without providing “specific con-
sideration of whether the conditions that contributed to an
increased risk of infection” in that literature “actually ex-
isted in the particular jail where [Mr. Lobo] worked.” J.A.
15–16.
Mr. Lobo timely appealed the Director’s determination
to us. We have jurisdiction under 34 U.S.C. § 10287.
II
We review the Bureau’s application of its own regula-
tions to determine “(1) whether there has been substantial
compliance with statutory requirements and provisions of
implementing 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. Department
of Justice, 947 F.3d 804, 807 (Fed. Cir. 2020) (quoting Am-
ber-Messick v. United States, 483 F.3d 1316, 1321 (Fed. Cir.
2007)). Substantial evidence “means such relevant evi-
dence as a reasonable mind might accept as adequate to
support a conclusion.” Consolidated Edison Co. v. National
Labor Relations Board, 305 U.S. 197, 229 (1938).
The parties do not dispute that Mr. Lobo was a public
safety officer and that his pneumonia caused his perma-
nent and total disability. The only issue in contention is
whether Mr. Lobo contracted his pneumonia “in the line of
duty,” and the question before us is whether the Bureau
adjudicated that issue properly. We conclude that there is
a deficiency of potentially dispositive significance that war-
rants a remand.
Case: 24-1198 Document: 45 Page: 8 Filed: 06/09/2025

-- 8 of 13 --

LOBO v. DOJ 9
Mr. Lobo in this court focuses on the assertion that the
Director violated statutory provisions that require the Bu-
reau to “give substantial weight to the evidence and all
findings of fact” on eligibility issues presented by an “ad-
ministrative or investigative agency,” 34 U.S.C.
§ 10285(b)(2), and to adopt certain certified facts (from
such an agency) regarding eligibility if “supported by sub-
stantial evidence,” id. § 10285(b)(3). Insofar as those pro-
visions concern findings of fact, we reject Mr. Lobo’s
assertion of error by the Director. Legal conclusions are
outside the ambit of those provisions. See Amber-Messick,
483 F.3d at 1325; Demutiis v. United States, 291 F.3d 1373,
1379–80 (Fed. Cir. 2002); see also Malin v. Department of
Justice, 623 F. App’x 995, 999 (Fed. Cir. 2015). And the
only factual issue in dispute in the present matter is
whether the pneumonia more likely than not came from
the jails, and it suffices here to say that Mr. Lobo has not
pointed to any finding on that specific fact in the agency
determinations on which he relies. California workers’-
compensation law establishes a legal presumption of work
connection, and Mr. Lobo has identified no finding of fact
on the issue here that is independent of that presumption.
The remaining aspect of the above-cited provisions is
the requirement that the Director give “substantial weight”
to evidence presented by a covered agency. Regarding the
issue now in dispute, that requirement extends at most to
Dr. Hyman’s opinion on the likely origin of Mr. Lobo’s
pneumonia in the jails. And the Director undoubtedly ad-
dressed that opinion in detail, providing reasons to dis-
count the opinion. But determining whether an
adjudicator has prejudicially denied “substantial weight”
to evidence must involve consideration of the other evi-
dence, much as applying “[t]he substantial evidence stand-
ard . . . involves examination of the record as a whole,
taking into account evidence that both justifies and de-
tracts from an agency’s decision.” OSI Pharmaceuticals,
LLC v. Apotex Inc., 939 F.3d 1375, 1381 (Fed. Cir. 2019)
Case: 24-1198 Document: 45 Page: 9 Filed: 06/09/2025

-- 9 of 13 --

LOBO v. DOJ 10
(internal quotation marks and citation omitted). Here, Mr.
Lobo in effect presents “substantial weight” and “substan-
tial evidence” challenges to the Director’s decision. Those
issues are best considered together. We also conclude that
such consideration requires a remand for further efforts at
record development and further analysis by the Director
(which, of course, could lead to a grant of benefits that
moots the challenges now before us).
A remand is warranted based on what the Director em-
phasized is missing from the record. The Director stressed,
in reaching a conclusion, the absence of evidence of
whether there was “any pneumonia-infected inmate in the
jail[s] where [Mr. Lobo] worked”—or, we add, non-inmate
persons present in the jails at the relevant time—along
with “any opportunity for transmission of infection to [Mr.
Lobo].” J.A. 17. The Director obviously recognized the po-
tential significance of such evidence. And for good reason:
The other evidence on the causation issue, particularly the
evidence against Mr. Lobo’s position, is thin.
As we have recounted above, of the three physicians to
address the issue, only Dr. Hyman expressed an opinion on
whether the jails or other places were more likely the
source of the pneumonia. He opined that the jails were the
more likely source. Dr. Oetgen did not express a view on
which source was more likely. Dr. Diaz also did not do so.
Moreover, neither Dr. Diaz nor Dr. Oetgen even said that
the two possibilities were equally likely; the Director said
otherwise as to Dr. Diaz, J.A. 3 & n.16 (citing J.A. 623);
J.A. 8 & n.51 (same), but neither the cited page nor any-
thing else in Dr. Diaz’s report supports that characteriza-
tion. Further, Dr. Oetgen seems to have used the wrong
standard—“medical certainty” understood as a clear-and-
convincing-evidence standard, which is more demanding
than the preponderance standard of more likely than not.
J.A. 139 & n.2, 142. At the same time, the Director found
Dr. Hyman’s opinion itself to be insufficiently supported
“[i]n the absence of evidence that anyone in [Mr. Lobo’s]
Case: 24-1198 Document: 45 Page: 10 Filed: 06/09/2025

-- 10 of 13 --

LOBO v. DOJ 11
work setting actually had pneumonia, and that [Mr. Lobo]
actually had some contact with infected individuals.” J.A.
16.
We agree with the Director’s own apparent recognition
that this evidence, if available, could be crucial to the adju-
dication given the sparseness of the other evidence in the
record. Whether there were inmates or others in the jails
at the relevant time who were documented to have the
pneumonia-causing agent—and, if so, whether Mr. Lobo’s
work assignments created opportunities for encounters
with such persons—would clearly be important to answer-
ing the question of where he contracted pneumonia. Yet
the health information about persons in the jails is not in
the record before us, and it appears that neither party
sought to obtain it. See Oral Arg. at 1:00–4:22; 14:10–
19:52. Of course, the information might not exist or be ob-
tainable, but we have no present basis for so concluding.
Even outside the PSOB context, the Supreme Court
has recognized that sometimes a reviewing court may “set
aside agency action under the Administrative Procedure
Act because of failure to adduce empirical data that can
readily be obtained.” Federal Communications Commis-
sion v. Fox Television Stations, Inc., 556 U.S. 502, 519
(2009) (citing Motor Vehicle Manufacturers Association of
the United States, Inc. v. State Farm Mutual Automobile
Insurance Co., 463 U.S. 29, 46–56 (1983)). In the PSOB Act
specifically, Congress imposed an information-seeking
duty on the Bureau, declaring that, “with all due diligence,”
it “shall expeditiously attempt to obtain the information
and documentation necessary to adjudicate a benefit
claim.” 34 U.S.C. § 10288(a). It added that, if such a ben-
efit claim “is unable to be adjudicated by the Bureau be-
cause of a lack of information or documentation from a
third party, such as a public agency, and such information
is not readily available to the claimant,” the Bureau “may
use available investigative tools, including subpoenas,” to
obtain information “from third parties, including public
Case: 24-1198 Document: 45 Page: 11 Filed: 06/09/2025

-- 11 of 13 --

LOBO v. DOJ 12
agencies,” if it deems doing so “necessary to adjudicate or
conducive to expediting the adjudication of a claim,” and
the Bureau “may not abandon the benefit claim” unless it
has tried using such tools to obtain information deemed
necessary. Id. § 10288(b).
In the narrow circumstances presented here, we con-
clude that the Bureau, before ruling on the cause of Mr.
Lobo’s pneumonia, was required to make reasonable efforts
to seek the records at issue from the jails. Mr. Lobo has
not made this argument to us, but we will exercise our dis-
cretion not to apply the principle of forfeiture here. Single-
ton v. Wulff, 428 U.S. 106, 121 (1976).
Given the sparseness of evidence on the origin of Mr.
Lobo’s pneumonia and the Director’s acknowledgement of
the importance of evidence from a third party to resolve the
origin issue, we conclude that an effort to secure records
from the jails is “necessary to adjudicate” Mr. Lobo’s bene-
fits claim within the meaning of § 10288. That information
directly bears on the substantial weight and substantial
evidence issues raised, and it could be outcome-determina-
tive. The importance of such information became particu-
larly apparent only after the Director, having solicited yet
another medical expert in 2021, received a report that pro-
vided only a we-just-don’t-know opinion and left the Direc-
tor, who was faced with the thin record we have discussed,
emphasizing that a sound determination of the causation
question could not be made in the absence of information
about pneumonia in the jails at the relevant time.
In the particular circumstances of this case, the Bu-
reau had a duty to seek this information, but it did not. We
vacate the Director’s decision and remand the case for the
Bureau to make reasonable efforts, consistent with the
above-cited authorities, to obtain information about pneu-
monia in the jails at the relevant time. What efforts suffice
can hardly be prescribed in advance. If information is se-
cured, a new decision must account for it, including by
Case: 24-1198 Document: 45 Page: 12 Filed: 06/09/2025

-- 12 of 13 --

LOBO v. DOJ 13
performing any relevant correlation of the information
with Mr. Lobo’s work assignments. In addition, and in any
event, a new decision should newly account for the limits
on the current record evidence, e.g., concerning what Dr.
Diaz said and the standard Dr. Oetgen seemingly used,
that we have identified in this opinion.
III
For the foregoing reasons, we vacate the Bureau’s de-
nial of benefits and remand the case for additional proceed-
ings consistent with this opinion.
The parties shall bear their own costs.
VACATED AND REMANDED
Case: 24-1198 Document: 45 Page: 13 Filed: 06/09/2025

-- 13 of 13 --