Lisa Afolayan, Widow of Nathaniel Afolayan, Deceased, on Behalf of Herself v. Department of Justice

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LISA AFOLAYAN, WIDOW OF NATHANIEL
AFOLAYAN, DECEASED, ON BEHALF OF
HERSELF AND HER MINOR DAUGHTER;
NATALEE AFOLAYAN, DAUGHTER OF
NATHANIEL AFOLAYAN,
Petitioners
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2024-1692
______________________
Petition for review of a decision of the Bureau of Justice
Assistance in PSOB Claim No. 2010-022.
______________________
Decided: April 17, 2026
______________________
N ICOLE MASIELLO, Arnold & Porter Kaye Scholer LLP,
New York, NY, argued for petitioners. Also represented by
J OHN P ATRICK ELWOOD, J ILLIAN M. W ILLIAMS , Washington,
DC.
G EOFFREY M. L ONG, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
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AFOLAYAN v. DOJ 2
Washington, DC, argued for respondent. Also represented
by BRIAN M. B OYNTON, T ARA K. H OGAN , P ATRICIA M.
MCCARTHY ; J ASON P. COOLEY , RAFAEL ALBERTO MADAN,
Office of Justice Programs, Office of General Counsel,
United States Department of Justice, Washington, DC.
______________________
Before D YK, HUGHES , and STOLL , Circuit Judges.
STOLL , Circuit Judge.
This case returns to us for a second time. Lisa Afolayan
petitioned the Bureau of Justice Assistance’s denial of
death benefits following the death of her husband, Agent
Nathaniel Afolayan. In Ms. Afolayan’s first petition for re-
view, we remanded the case for the Bureau to determine
whether the climatic conditions at the time of Agent
Afolayan’s death were unusual, nonroutine, or unusually
adverse. On remand from this court, the Bureau deter-
mined that because the climatic conditions on April 30,
2009, in Artesia, New Mexico, were not unusual, nonrou-
tine, or unusually adverse, Agent Afolayan did not sustain
a compensable injury. We affirm.
BACKGROUND
I
Under the Public Safety Officers’ Benefits Act (“Bene-
fits Act”), when the Bureau determines that “a public
safety officer has died as the direct and proximate result of
a personal injury sustained in the line of duty,” the Bureau
must pay a death benefit to the surviving family of the of-
ficer. 34 U.S.C. § 10281(a). The regulation defines “injury”
to include:
[A] traumatic physical wound (or a traumatized
physical condition of the body) directly and proxi-
mately caused by external force (such as bullets,
explosives, sharp instruments, blunt objects, or
physical blows), chemicals, electricity, climatic
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AFOLAYAN v. DOJ 3
conditions, infectious disease, radiation, virus, or
bacteria.
28 C.F.R. § 32.3 (emphasis added).
II
Because this case is before us for a second time, the fol-
lowing facts have been taken from our prior decision in
Afolayan v. Department of Justice, No. 2021-1452,
2022 WL 1124965 (Fed. Cir. Apr. 15, 2022) (“Afolayan I”).
At the time of his death, Agent Afolayan was in the last
week of a twelve-week training program at the Border Pa-
trol Academy in Artesia, New Mexico. At approximately
2:45 p.m. on April 30, 2009, Agent Afolayan and other
agents-in-training performed their final physical-fitness
test, which included a one-and-a-half mile run to be com-
pleted in thirteen minutes or less. The run took place at
approximately 3,400 feet above sea level, with the temper-
ature at approximately 88 degrees Fahrenheit and relative
humidity between six and seven percent. After completing
the run in eleven minutes and six seconds, Agent Afolayan
indicated that he did not feel well and thereafter collapsed.
He was initially brought to the Border Patrol Academy’s
Health Unit for medical assistance. As his condition de-
clined, he was taken first to Artesia General Hospital, then
to Covenant Medical Center in Lubbock, Texas. Agent
Afolayan died at 10:41 p.m. the next day. Agent Afolayan’s
death certificate listed his “immediate cause of death as
‘Heat Illness’ and identified ‘cardiomegaly (cardiac dis-
ease)’ as an ‘other significant condition[ ] contributing to
death.’” Afolayan I at *1 (alteration in original).
Ms. Afolayan filed a claim for death benefits under the
Benefits Act in October 2009, relying on the death certifi-
cate listing “Heat Illness” as the cause of death. The Bu-
reau denied her claim in March 2012. Ms. Afolayan
appealed this denial and requested a determination of her
claim by an independent hearing officer. The hearing of-
ficer denied Ms. Afolayan’s appeal in January 2014. In
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AFOLAYAN v. DOJ 4
February 2019, Ms. Afolayan appealed the hearing officer’s
determination to the Bureau’s Director. In Septem-
ber 2020, the Acting Director of the Bureau concluded from
the medical evidence in the record that:
Agent Afolayan died—not from a wound or condi-
tion shown to have itself been ‘the direct and prox-
imate result’ of climatic conditions, such as heat, or
another external force/factor cognizable as an ‘in-
jury’ under [Benefits Act] regulations—but, rather,
as a result of several factors acting together, in-
cluding physical exertion, sickle cell trait, heat, al-
titude, and dehydration.
Id. at *2 (citation omitted). This led the Acting Director to
conclude that Ms. Afolayan failed to “establish[ ] that
Agent Afolayan suffered an ‘injury’ within the meaning of
[the Benefits Act] and its implementing regulations.” Id.
(alterations in original) (citation omitted). Ultimately, the
Acting Director denied Ms. Afolayan’s claim, after which
Ms. Afolayan filed a petition for review in this court. Id.
In Afolayan I, we held that “climatic conditions” refers
to conditions that are “unusual” or “nonroutine”—“that is,
conditions different from the typical conditions prevailing
in the work environment.” Id. at *3. We then remanded
the case back to the Bureau to determine whether the tem-
perature, humidity, and altitude “were the type of unusual
or out-of-the-ordinary climatic conditions that would qual-
ify for compensation under the regulations.” Id. at *4.
III
On remand, the Director of the Bureau examined past
weather patterns and medical opinions and concluded that
it was “more likely than not” that the climatic conditions
did not cause Agent Afolayan’s medical crisis. J.A. 27. Ac-
cordingly, the Director again denied Ms. Afolayan’s claim.
Ms. Afolayan petitions for review of the Bureau’s deci-
sion. We have jurisdiction under 34 U.S.C. § 10287.
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AFOLAYAN v. DOJ 5
D ISCUSSION
Before us, Ms. Afolayan asserts that the Bureau erred
in its determination that Agent Afolayan did not sustain
an injury because the climatic conditions were not unusual,
nonroutine, or unusually adverse. We disagree. Because
we affirm the Bureau’s conclusion that Agent Afolayan did
not sustain a compensable “injury” due to unusual, nonrou-
tine, or unusually adverse climatic conditions, we need not
address the other issues raised by Ms. Afolayan’s petition.
We review the Bureau’s denial of a claim for death ben-
efits for: “(1) whether there has been substantial compli-
ance 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.” Amber-Messick
v. United States, 483 F.3d 1316, 1321 (Fed. Cir. 2007) (first
citing Yanco v. United States, 258 F.3d 1356, 1362
(Fed. Cir. 2001); and then citing Chacon v. United States,
48 F.3d 508, 511 (Fed. Cir. 1995)). “Substantial evidence
is defined as ‘[t]he degree of relevant evidence that a rea-
sonable person, considering the record as a whole, might
accept as adequate to support a conclusion even though
other reasonable persons might disagree.’” Giove v. Dep’t
of Transp., 230 F.3d 1333, 1338 (Fed. Cir. 2000) (alteration
in original) (citation omitted).
We hold that substantial evidence supports the Bu-
reau’s finding that the climatic conditions were not unu-
sual, nonroutine, or unusually adverse. The climatic
conditions that existed on the day of Agent Afolayan’s run
include an elevation approximately 3,400 feet above sea
level, with the temperature at approximately 88 degrees
Fahrenheit and relative humidity between six and
seven percent. The evidence considered by the Bureau
showed that the temperatures during the month of April
for every year between 2000 to 2009 in Artesia, New Mex-
ico, could reach at least 87 degrees Fahrenheit. J.A. 5–6 &
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AFOLAYAN v. DOJ 6
nn.12–16.1 Past humidity patterns in Artesia, New Mexico
showed that for most days in April 2009, the humidity fell
below 10 percent. J.A. 6 & nn.19–20. Evidence regarding
the effect of the combination of temperature and humidity
on the body in outdoor conditions was shown via the heat
index, in particular the wet bulb black globe temperature
(WBGT), which at 88 degrees Fahrenheit and seven per-
cent humidity is 71 degrees. J.A. 7 & n.26. Based on a
WBGT of 71 degrees, the guidelines from the U.S. Army,
U.S. Soccer, and the American College of Sports Medicine
did not identify any risks to individuals participating in
outdoor work or activities. J.A. 7–10 & nn.28–36. Litera-
ture regarding altitude and its effect on the human body
identified that an altitude of 3,400 feet above sea level
would not typically create adverse physiological reactions.
J.A. 12–14. Here, considering all the evidence together,
substantial evidence supports the Bureau’s determination
that the climatic conditions, individually and in combina-
tion, were not unusual, nonroutine, or unusually adverse
at the time of Agent Afolayan’s medical crisis.
Ms. Afolayan argues that the Bureau’s decision is erro-
neous because it failed to consider whether the combina-
tion of temperature, humidity, and altitude was unusual
for the “work environment” of a Border Patrol Officer. Pet.
Br. 50. Ms. Afolayan argues that the Bureau’s decision
lacks any discussion regarding typical working conditions
and that the sources cited by the Bureau are silent regard-
ing the effect of temperature and humidity on altitude.
Pet. Br. 51–53. We are not persuaded. The Bureau specif-
ically addressed the combination of temperature, humidity,
and altitude and determined that the combination of these
1 The evidence that the Bureau relied on consists of
various websites, databases, and guidelines that are cited
in the Bureau’s decision. See J.A. 5–14 & nn.12–16, 19–22,
24–36. There is no dispute that this evidence was proper
for the Bureau to rely on in its analysis.
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AFOLAYAN v. DOJ 7
factors was not unusual, nonroutine, or unusually adverse
when Agent Afolayan went on his outdoor physical fitness
run. J.A. 14. While the Bureau did not rely on a reference
that examined temperature, humidity, and altitude to-
gether, the Bureau’s analysis sufficiently considered these
three factors and its determination is supported by sub-
stantial evidence.
Ms. Afolayan also asserts that 28 C.F.R. § 32.3, the
regulation defining “injury,” uses the bare term “climatic
conditions,” and does not require conditions that are unu-
sual, nonroutine, or unusually adverse. Pet. Br. 43–49.
But we already resolved this very question in Afolayan I,
when we held that “climatic conditions,” as defined in the
Benefits Act and its implementing regulations, must be
“unusually adverse” or “different from the typical condi-
tions prevailing in the work environment.” Afolayan I
at *3 (quoting Juneau v. Dep’t of Just., 583 F.3d 777, 783
(Fed. Cir. 2009)). Because this question was resolved in
our previous decision in Afolayan I, law of the case prohib-
its Ms. Afolayan from reraising this issue. See Suel v. Sec’y
of Health & Hum. Servs., 192 F.3d 981, 984–986 (Fed. Cir.
1999) (explaining that under the law of the case doctrine,
what was previously decided in an earlier stage of the case
is applied to subsequent stages in the litigation).
We have tremendous sympathy for Agent Afolayan’s
family. However, because substantial evidence supports
the Bureau’s decision, we cannot say that the Bureau erred
in its determination that Agent Afolayan did not sustain
an “injury” as contemplated by the Benefits Act.
CONCLUSION
For the reasons stated above, we affirm the Bureau’s
decision denying Ms. Afolayan’s claim.
AFFIRMED
COSTS
No costs.
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