# United States **Court of Appeals**  **for the Federal Circuit**

______________________ CATHY MOORE, RICHARD MOORE, KIM CARLSON, TIFFANY ADK INS, DALE RANSDELL, CAROL RANSDELL, KOLB Y JAMES, TORI RUIZ, GLEN GIBSON, MARY GIBSON, BRIAN HENGEL , AND JUDY HENGEL, Petitioners,

v.

DEPARTMENT OF JUSTIC E, Respondent.

______________________

2013

- 8001

______________________

Petition for review of a decision of the Bureau of Ju stice Assistance in PSOB Clai m Nos. 2004

- 225, 2004

- 226, 2004

- 227, 2004

- 228, 2004

- 229, 2004

- 230, 2004

- 231, 2004

- 232.

______________________

Decided: July 25, 2014

______________________

D ENISE M. C LARK , Clark Law Group, PLLC, of Was hington, DC, for petitioners.

T ARA K. H OGAN , Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, for respondent. With her on the brief were S TUART F. D ELERY , Assistant Atto r-MOORE v. DOJ 2

ney General, B RYANT G. S NEE , Acting Director, and S COTT D. A USTIN , Assistant Director. Of counsel on the brief were R AFAEL A. M ADAN , General Counsel, R OSEMARY C ARRADINI , Deputy General Counsel, and J ASON C OOLEY , Senior Litigation Counsel, Office of the General Counsel, Office of Justice Programs, United States Department of Justice, of Washington, DC.

______________________

Before N EWMAN , D YK , and R EYNA , Circuit Judges.

D YK , Circuit Judge.

Petitioners are survivors of eight firefighters who died in 2003. They seek survivors’ benefits under the Public Safety Officers’ Benefits Act (“Benefits Act ”), 42 U.S.C. § 3796 et seq

. The Public Safety Officers’ Ben efit s Office (“Benefits Office”) denied the claims, and pet itioners filed requests for redetermination by the Director of the Bureau of Justice Assistance (“ BJA”), which also denied the claims . P etitioners seek review of th e BJA ’s decision

. T he BJA did not err in concluding that the firefighters were not public safety officers within the meaning of the Benefits Act.

B ACKGROUND The Benefits Act authorizes the BJA to pay a mon etary benefit to certain surviving relative s of a “ pub lic safety officer” who has died because of an injury sustained in the line of duty. 42 U.S.C. § 3796(a). The category of

“ public safety offic er” includ es “an individual serving a public agency in an official capacity, with or without compensation, as a law enforcement officer, as a fire figh ter, or as a chaplain .” Id. § 3796b(9)(A). The question is whether the decedents were “firefighters” within the “publi c safety officer” category. In order to fall within that category , an individual must be “serving a publi c agency in an official capacity

. . . as a firefighter. ” Id. Public agencies include federal and state agencies.MOORE v. DOJ 3

Id . § 3796b(8). Before the BJA, the p etitioners claimed that the decedents were employed by the State of Oregon. Here, they contend that the decedents were serving the United States Forest Service (“Forest Ser vice”) in an official capacity.
In October 1998, a number of state and federal go vernmental entities, including the state of Oregon’s D epartment of Forestry (“O regon ”) and the Forest Service

, entered into the Master Cooperative Fire Protection Agreement (“Master Agreement ”). T he Master Agreement was designed to enable the signatories to “coordinate efforts for the prevention, detection, and suppression of wild fires.” Pet’r ’s App

. (“ P .A.”) 557

. In 2003, Oregon invited bids from contractors to provide “one or more twenty (20)

- person . . . wildfire firefighting Crews for initial attack, sup pression, mop

- up, and Severity Assig nments within the States of Oregon and Washington and elsewhere.” P .A. 173. Oregon accepted the bid submitted by First Strike Environmental (“ First Strike ”) for the 2003 fire season

. First Strike is a private company tha t works with governmental and private entit ies to help suppress wildfires.
The Interagency Crew Agreement (“ Crew Agre ement”) between Oregon and First Strike stated that “[t]he service(s) rendered by [First Strike] under this Agreement are those of an indep endent contractor. [First Strike ] is not an officer, employee or agent of the State

. . . .” P .A. 179. The Crew Agreement also provid ed that other sign atories to the Master Agreement, including the Forest Service , could request personnel, supplies, or equipment from First Strike

. On August 12, 2003, the Forest Service asked First Strike to send a crew to a fire in the Boise National Fo rest

. F irst Strike dispatched a 20

- person crew, including its employees Richard Moore, David K. Hammer, Leland Price, Mark Ransdell, Jesse James, Ricardo Ruiz, PaulMOORE v. DOJ 4

Gibson, and Jeff Hengel (collectively, the “decedents”) and the crew boss, Justin Kru eger

. The First Strike crew worked there for nearly two weeks . During that time , the Forest Service supervisor, Rick Martin, c ommunicated orders only to the First Strike crew boss. The Forest Service s upervisor transmitted orders via handheld radio

, but w as not on

- site with the First Strike crew and did not direct the activities of individual crew members

. In stead, the First Strike crew boss directed and supervised the individual crew members ’ activities

. At some points, the First St rike crew worked alongside “Hot Shot” crews made up of Forest Service employees. After nearly two weeks of work, t he crew was demobilized on Augus t 24, 200 3

. While the eight decedents were returning home, the van carrying them collided with a tractor trailer

, and all eight died

. Petitioners , the decedents’ survivors, filed claim s pursua nt to the Benefits Act. The Benefits Office de nied the claims

. T he petitioners sought re determinations from the BJA , which upheld the denial of each of the claims on t he ground that “ [c] laimants have failed to establish that the decedent was serving a public agency in an official capac ity and, therefore, have failed to establish that he was a publ ic safety officer under the [Benefits] Act.” P .A. 10

. The BJA explained the decedents could not qualify b ecause they were employe es of First Strike, a private company, and First Strike was an independent contractor of Oregon

. F irst Strike’s employees therefore “ could not be understood to be serving [Oregon] in an official capacity under the [Benefits] Act and regulations.” P .A. 9 (citing 42 U.S.C. § 3796b(8); 28 C.F.R. § 32. 3 ). The BJA emph asized that its determination was not m eant to detract from “the great value of the decedent’s service to his community and to other communities that he helped, or the tremendous loss borne by the Claimants.” P.A. 10.

Petitioners sought review of the BJA ’s final determ ination in this court. We have jurisdiction pursuant to 42MOORE v. DOJ 5

U.S.C. § 3796c

- 2. Juneau v. Dep’t of Justice , 583 F.3d 777, 780 (Fed. Cir. 2009).

D ISCUSSION

We review the BJA’ s d ecision to deny claims under the Benefits Act 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 su bstantial evidence supports the decision denying the claim.’” Id. (quoting Amber

- Messick v. United States , 483 F.3d 1 316, 1321 (Fed. Cir. 2007)); see also Groff v. United States , 493 F.3d 1343, 1349 (Fed. Cir. 2007) ; Chacon v. United States

, 4 8 F.3d 508, 511 (Fed. Cir. 1995)

. Here , w e must decide whether the BJA complied with the Benefits Act and its own regulations in determin ing that the decedents did not qua lify as “public safety officers” because they were formally employed by a private company that had an independent contractual relationship with the government.

The Benefits Act provides that “[i] n any case in whi ch the [BJA] determines, under regulations issued pursuant to this subchapter, that a public safety officer has died as the direct and proximate result of a personal injury su stained in the line of duty, the [BJA] shall pay a benefit ” to the officer’s surviving relatives. 42 U.S.C. § 3796 (a) (e mphasis added)

. As defined by the statute , a “public safety officer” i s “ an individual serving a public agency in an official capacity , with or without compe ns ation, as a law enforcement officer , as a firefighter, or as a chaplain .” Id. § 3796b(9)(A) (emphasis added)

. 1 A “‘firefighter’ i n1 The full text of § 3796b(9) reads:
(9) “public safety officer” means —MOORE v. DOJ 6

(A) an individual serving a public agency in an o fficial capacity, with or without compensation, as a law enforcement officer, as a firefighter, or as a chaplain;
(B) an employee of the Federal Emergency Ma nagement Agency who is performing official duties of the Agency in an area, if those official duties — (i) are related to a major disaster or emergency that has been, or is later, declared to exist with respect to the area under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq. ); and
(ii) are determ ined by the Administrator of the Federal Emergency Management Agency to be hazardous duties;
(C) an employee of a State, local, or tribal eme rgency management or civil defense agency who is performing official duties in cooperation with the Federal Emergen cy Management Agency in an area, if those official duties — (i) are related to a major disaster or emergency that has been, or is later, declared to exist with respect to the area under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq. ); and
(ii) are determined by the head of the agency to be hazardous duties; or
(D) a member of a rescue squad or ambulance crew who, as authorized or licensed by law and by the applicable agency or entity, is engaging in re scue activit y or in the provision of emergency me dical services.MOORE v. DOJ 7

cludes an individual serving as an officially recognized or designated member of a legally organized volunteer fire department

. ” Id. § 3796b(4). T he statute does not othe rwise define the term “firefighter” or the phrase “ in an official capaci ty, ” but authorizes the BJA “ to establish such rules, regulations, and procedures as may be nece ssary to carry out the purposes of this subchapter.” 42 U.S.C. § 3796c(a).

We have previously held that Congress intended that BJA pronouncem ent s interpreting the Benefits Act would have the force of law

, and ther efore that we must defer to the BJA’s interpretation of the statute as long as it is reasonable

, in accordance with Chevr on U.S.A. Inc. v. Nat’l Res

. Def. Council, Inc. , 467 U.S. 837 (1984)

. Amber

Messick , 483 F.3d at 1 3 23

– 25 (upholding the BJA’s inte rpretation of “ public safety officer ” to exclude minor a pprentice s not authorized to engage directly in firefighting activit y) ; see also Chacon , 48 F.3d at 512 ( upholding BJA’s interpretation of “public safety of ficer” to exclude prison inmates serving on firefighting detail ). We have esta blished that Chevron deference ap plies equally to the

“ BJA’s statutory interpretations announced through adjudication

. ” Groff , 493 F.3d at 1350

. We addressed the independent contractor issue i n Groff . There, the BJA had denied Benefits Act claims brought by s urvivors of pilots who died while providing aerial fire suppression services

. Id

. at 1346. The pilots

were employees of private companies that had ind ependently contracted with state and federal government agencies. Id. The BJA concluded that “the employee of a private contractor does not qualify as a ‘public safety officer’ within the meaning of [the Benefits Act] .” Id

.

42 U.S.C. § 3796b(9).MOORE v. DOJ 8

at 1346. On review, we recognized that the statute did not directly address the status of employees of independent contractors, but that the BJA’s predecessor agency had previously addressed the question in adjudicatory rulings. Id. at 1353 (discussing Public Safety Officers’ Benefits Determination re: Holstine, No. 78

- 338 (July 8, 1980)

, aff’d without published op.

, Holstine v. Dep’t of Justice

, No. 80

- 7477, 688 F.2d 846 (9th Cir. 1 982) ( unpublished table decision )). U nder that interpreta tion:

“I n order to be serving a public agency in an official capacity one must be an officer, employee, volunteer, or similar relationship of performing services as part of a public agency. To have s uch a relationship with a public agency, an individual must be officially recognized or designated as functionally within or a part of the public agency. ”

Id. (quoting U.S. Dep ’ t of Justice, Office of Justice Assi stance, Research, and Statistics, Legal Interpreta tions of the Public Safety Officers’ Benefits Act 9 (1981) (reprinting Holstine decision)). We concluded that t he BJA’s interpr etation wa s permissible and entitled to Chevron deference because t he statute was silent, the legislative history supported the BJA’s interpretation, and the BJA’s inte rpretation was reasonable. Id. at 1353

– 54

. Here, as in Groff , “we must defer to the agency’s construction of the
statute

. ” Id. at 1354. 2

2 The government relies on a regulation under 28 C.F.R. § 32.3 promulgated in 2006, after the 2003 accident involving the decedents. The regulation states: “Employee does not incl ude

— (1) Any independent contractor;” and “No individual shall be understood to be functionally within or part of a public agency solely by virtue of an independent contractor relationship.” 28 C.F.R. § 32.3. While not directly applicable here, that regulat ion isMOORE v. DOJ 9

The facts in Groff were similar to those here. In Groff

, the contract pilots were formally employed by private companies that had independently contracted with public agencies. Id. at 1356. At the time of their deaths, the pilots were performing operations pursuant their emplo yers’ public agency contracts. Id. at 1346, 1347. Under the terms of those contracts, the companies and their emplo yees were independent contractors, not officers, employees, or agents of the government. Id. at 1355. Although the relevant agencies pre

- approved the contract pilots, r equired compliance with state and federal regulations, and described the pilots as agency personnel after their death s, the pilots were formally employed by the private independent contractors that hired them , paid them, and could terminate their employment

. Id. at 1354

– 1355.
Groff squarely governs this case. Like the pilots in Groff , t he decedents here were formally employed by a private company that had independently contracted to provide fire suppression services to public agencies

. Petitioners admit that First Strike independently agreed
to provide fire fighting crews to the state and other go vernment agencies for a fee

, and under that agreement, F irst Strike ’s ser vices were “those of an independent
contractor

. . . not an officer, employee or agent of the State.” P .A. 1 79. 3

consistent with the BJA’s longstanding position that individuals who are employed by a company that has its own contractual relationship with the government are not public safety officers under the Benefits Act. See Groff

, 493 F.3d at 1350 n.2

. As we held in Groff , the BJA’s adjudicatory rulings are entitled to Chevron deference. Id

. at 135 0

. 3 Petitioners attempt to distinguish Groff by arg uing that the Benefits Act specifically references firefigh ters, not pilots. This is not a meaningful di stinction. TheMOORE v. DOJ 10

Petitioners argue that even if First Strike formally employed the decedents, the government was also their employer . Petitioners cite as an example 29 C.F.R. § 791.2, which pertains to joint empl oyment under the Fair Labor Standards Act of 1938 (“FLSA”) , 29 U.S.C. §§ 201

– 219. The FLSA’s definition does not control the definition of a “public safety officer” under the Benefits Act

. Diffe rent s tatutes define employment relationships differently. See , e.g. , Walling v. Portland Terminal Co. , 330 U.S. 148, 150 (1947) (common law definition of “employee” does not control for the purposes of the FLSA, which “contains its own definitions, comprehensive enough to require its application to many persons and working relationships” beyond the scope of common law categories (citing United States v. Rosenwasser , 323 U.S. 360, 362, 363 (1945))); Logue v. United States , 412 U.S. 521, 526 (1973) (under the Federal Tort Claims Act, “‘[e]mployee of the gover nment’ includes officers or employees of any federal age ncy

. . . and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensatio n’” (quoting 28 U.S.C. § 2671)) . Neither the definition of “employee” in the FLSA nor the definition in the Federal Tort Claims Act ap plies here. Rather, the Benefits Act is the governing statute

, and it has defined a “public safety officer” as “ an individual serving a public

age ncy in an official capacity.” 42 U.S.C. § 3796b(9)(A).
Our court’s precedent has recognized that the BJA has interpreted the Benefits Act’s definition of “public safety officer” as excluding individuals who provide fir ecourt assumed that the p ilots in Groff were firefighters because they were specifically involved in “rendering fire suppression assistance.” Groff , 493 F.3d at 1353. It makes no difference that they did so from the air rather than the ground

.MOORE v. DOJ 11

fighting services pursuant to formal employment relatio nships with private companies that have independent contractual relationships with government agencies. Groff

, 493 F.3d . at 1353. We deferred to that interpret ation. Id. 1354, 1355. Here, as in Groff , we must again defer to the BJA’s interpretation, under which employees of independent contractors do not qualify as “public safety officers” for the purposes of the Benefits Act

. Firefighters are public safety officers only if they are formally e mployed by a public age ncy, i.e. , officially recognized or designated as functionally within or part of the public

agency they serve

. Even if the B enefits Act were read to adopt a common law standard, the evidence does not support a finding that the decedents here qualif ied as government employees under the common law definition

. The common law term “employee” is “understood in light of the general common law of agency.” Community for Creative Non

- Violence v. Reid , 490 U.S. 730, 74 0–41 (1989) ( applying common- law of agency to the term “scope of employment” in the Cop yright Act absent specific definition ). Contemporary sta tutes use “employee” to refer to the common

- law “servant.” Restatement (Second) of Agency § 2, comment (d). The Restatement r equires that the servant be emplo yed to perform services for another who controls or has the right to control the servant ’s “physical conduct in the perfo rmance of the services.” Id. § 220(1) ; s ee also Logue , 412 U.S. at 527 , 530 (sheriff’s employees were employees of an independent contr actor because government personnel had no authority to control their activities) ; Reid , 490 U.S.
at 751

– 53 (sculptor was an independent contractor because community organization did not supervise his activities, re tained his services for only two months , a nd did not provide employee benefits).
Petitioners have made no showing that the gover nment activ ely supervised individual First Strike perso nnel

. While the agreement was in force, the Forest ServiceMOORE v. DOJ 12

dealt exclusively with First Strike supervisors when requesting a crew and determining what services the crew would p rovide

. During the firefighting operation

, a Forest Service supervisor communicated by handheld radio with the First Strike crew boss, but “was not on

- site with the [First Strike] crew and thus could not direct the crew what tools to use, where to stage personnel or otherwise how to accomplish the goal.

. . . The crew members actua lly took direction from and were supervised by [First Strike] directly.” P .A. 884 (determination of BJA Hearing Off icer). During a two or three day period, the First Strike

c rew worked alongside two “Hot Shot” crews of elite Forest Service

- employed firefighters

, but did not intermix with those crews while fighting the fire . First Strike’s chain of command c hart confirms that the supervision of individual crew members was the responsibility of the company’s crew boss, not government personnel.

First Strike , not the Forest Service, had a formal e mployment relationship with the decedents. First Strike was exclusive ly responsible for obtaining workers’ co mpensation and liability insurance for its employees , i ncluding the decedents in this case

. The government paid First Strike for services rendered under its contract, and First Strike separately paid its employees fo r their work. T he First Strike Employee Manual directs employees to submit timecards to and retrieve paychecks from the company’s headquarters. First Strike is entitled to term inate its employees at any time for any reason not prohi bited by law

. By contras t, the Crew Agreement only permits the government to demobilize a n individual crew member for a violation of the terms of the agreement

. The Forest Service’s inclusion of the First Strike crew in

an organizational chart and assignment list and letters of condolence from government officials to the individual decedents does not show that they were employees of theMOORE v. DOJ 13

Forest Service. The decedents were not Forest Service employees under the common law definition

. 4

C ONCLUSION For the foregoing reasons

, we affirm the BJA’s dec ision denying petitioners’ claims. 5

AFFIRMED

C OSTS

No costs.

4 Petitioners argue that the BJA utilized an erron eous preponderance burden of proof, and instead should have utilized the burden provided in the regulation at the time of the accident and when the claims were filed. 28 C.F.R. § 32.4 then provided that “[t]he [BJA] shall resolve any reasonable doubt arising from the circumstances of the officer's death or permanent and total disability in favor of payment of the death or disability benefit.” 28 C.F.R. § 32.4 (2006) . This regulation, however, concerns th e question of whether the death was “the direct and proximate result of a personal injury sustained in the line of duty,” 42 U.S.C. § 3796(a), not the threshold question of whether an individual qualifies as a public safety officer.

5 P etitioners cite con tentions they made during the administrative proceeding before the BJA as if they were equivalent to established facts. This is improper.