United States Court of Appeals 

for the Federal Circuit ______________________ 

CATHY MOORE, RICHARD MOORE, KIM 

CARLSON, TIFFANY ADKINS, DALE RANSDELL, 

CAROL RANSDELL, KOLBY JAMES, TORI RUIZ, 

GLEN GIBSON, MARY GIBSON, BRIAN HENGEL,

AND JUDY HENGEL,

Petitioners,

v.

DEPARTMENT OF JUSTICE,

Respondent.

______________________ 

2013-8001

______________________ 

Petition for review of a decision of the Bureau of Justice Assistance in PSOB Claim Nos. 2004-225, 2004-226, 

2004-227, 2004-228, 2004-229, 2004-230, 2004-231, 2004-

232.

______________________ 

Decided: July 25, 2014 

______________________ 

DENISE M. CLARK, Clark Law Group, PLLC, of Washington, DC, for petitioners. 

TARA K. HOGAN, Senior Trial Counsel, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With 

her on the brief were STUART F. DELERY, Assistant Attor-
2 MOORE v. DOJ

ney General, BRYANT G. SNEE, Acting Director, and SCOTT

D. AUSTIN, Assistant Director. Of counsel on the brief 

were RAFAEL A. MADAN, General Counsel, ROSEMARY 

CARRADINI, Deputy General Counsel, and JASON COOLEY, 

Senior Litigation Counsel, Office of the General Counsel, 

Office of Justice Programs, United States Department of 

Justice, of Washington, DC.

______________________ 

Before NEWMAN, DYK, and REYNA, Circuit Judges.

DYK, 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’ Benefits Office (“Benefits Office”) denied the claims, and petitioners filed requests for redetermination by the Director 

of the Bureau of Justice Assistance (“BJA”), which also 

denied the claims. Petitioners seek review of the BJA’s

decision. The BJA did not err in concluding that the 

firefighters were not public safety officers within the 

meaning of the Benefits Act.

BACKGROUND

The Benefits Act authorizes the BJA to pay a monetary benefit to certain surviving relatives of a “public 

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 officer” includes “an individual serving a 

public agency in an official capacity, with or without 

compensation, as a law enforcement officer, as a firefighter, or as a chaplain.” Id. § 3796b(9)(A). The question is 

whether the decedents were “firefighters” within the 

“public safety officer” category. In order to fall within that 

category, an individual must be “serving a public 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 petitioners 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 Service”) in an 

official capacity.

In October 1998, a number of state and federal governmental entities, including the state of Oregon’s Department of Forestry (“Oregon”) and the Forest Service, 

entered into the Master Cooperative Fire Protection 

Agreement (“Master Agreement”). The Master Agreement 

was designed to enable the signatories to “coordinate 

efforts for the prevention, detection, and suppression of 

wildfires.” 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, suppression, mop-up, and Severity Assignments 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 that 

works with governmental and private entities to help 

suppress wildfires.

The Interagency Crew Agreement (“Crew Agreement”) between Oregon and First Strike stated that “[t]he 

service(s) rendered by [First Strike] under this Agreement 

are those of an independent contractor. [First Strike] is 

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

179. The Crew Agreement also provided that other signatories 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 Forest. First Strike dispatched a 20-person crew, including

its employees Richard Moore, David K. Hammer, Leland 

Price, Mark Ransdell, Jesse James, Ricardo Ruiz, Paul 
4 MOORE v. DOJ

Gibson, and Jeff Hengel (collectively, the “decedents”) and 

the crew boss, Justin Krueger. The First Strike crew 

worked there for nearly two weeks. During that time, the 

Forest Service supervisor, Rick Martin, communicated 

orders only to the First Strike crew boss. The Forest 

Service supervisor transmitted orders via handheld radio, 

but was not on-site with the First Strike crew and did not 

direct the activities of individual crew members. Instead, 

the First Strike crew boss directed and supervised the 

individual crew members’ activities. At some points, the 

First Strike crew worked alongside “Hot Shot” crews 

made up of Forest Service employees. After nearly two 

weeks of work, the crew was demobilized on August 24, 

2003. 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 claims pursuant to the Benefits Act. The Benefits Office denied the 

claims. The petitioners sought redeterminations from the 

BJA, which upheld the denial of each of the claims on the 

ground that “[c]laimants have failed to establish that the 

decedent was serving a public agency in an official capacity and, therefore, have failed to establish that he was a 

public safety officer under the [Benefits] Act.” P.A. 10. 

The BJA explained the decedents could not qualify because they were employees of First Strike, a private 

company, and First Strike was an independent contractor 

of Oregon. First 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 emphasized that its determination was not meant 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 determination in this court. We have jurisdiction pursuant to 42 
MOORE v. DOJ 5

U.S.C. § 3796c-2. Juneau v. Dep’t of Justice, 583 F.3d 777, 

780 (Fed. Cir. 2009). 

DISCUSSION

We review the BJA’s decision 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 substantial evidence supports the decision denying the 

claim.’” Id. (quoting Amber-Messick v. United States, 483 

F.3d 1316, 1321 (Fed. Cir. 2007)); see also Groff v. United 

States, 493 F.3d 1343, 1349 (Fed. Cir. 2007); Chacon v. 

United States, 48 F.3d 508, 511 (Fed. Cir. 1995). Here, we 

must decide whether the BJA complied with the Benefits 

Act and its own regulations in determining that the 

decedents did not qualify 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 which 

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 sustained in the line of duty, the [BJA] shall pay a benefit” to 

the officer’s surviving relatives. 42 U.S.C. § 3796(a) (emphasis added). As defined by the statute, a “public safety 

officer” is “an individual serving a public agency in an 

official capacity, with or without compensation, as a law 

enforcement officer, as a firefighter, or as a chaplain.”

Id. § 3796b(9)(A) (emphasis added).1 A “‘firefighter’ in1 The full text of § 3796b(9) reads:

(9) “public safety officer” means— 

 
6 MOORE v. DOJ

(A) an individual serving a public agency in an official capacity, with or without compensation, as a 

law enforcement officer, as a firefighter, or as a 

chaplain;

(B) an employee of the Federal Emergency Management 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 determined by the Administrator of the 

Federal Emergency Management Agency to be 

hazardous duties;

(C) an employee of a State, local, or tribal emergency management or civil defense agency who is 

performing official duties in cooperation with the 

Federal Emergency 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 rescue activity or in the provision of emergency medical 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). The statute does not otherwise define the term “firefighter” or the phrase “in an 

official capacity,” but authorizes the BJA “to establish 

such rules, regulations, and procedures as may be necessary to carry out the purposes of this subchapter.” 

42 U.S.C. § 3796c(a). 

We have previously held that Congress intended that

BJA pronouncements interpreting the Benefits Act would 

have the force of law, and therefore that we must defer to 

the BJA’s interpretation of the statute as long as it is 

reasonable, in accordance with Chevron U.S.A. Inc. v. 

Nat’l Res. Def. Council, Inc., 467 U.S. 837 (1984). AmberMessick, 483 F.3d at 1323–25 (upholding the BJA’s interpretation of “public safety officer” to exclude minor apprentices not authorized to engage directly in firefighting 

activity); see also Chacon, 48 F.3d at 512 (upholding BJA’s 

interpretation of “public safety officer” to exclude prison 

inmates serving on firefighting detail). We have established that Chevron deference applies equally to the 

“BJA’s statutory interpretations announced through 

adjudication.” Groff, 493 F.3d at 1350. 

We addressed the independent contractor issue in 

Groff. There, the BJA had denied Benefits Act claims 

brought by survivors of pilots who died while providing 

aerial fire suppression services. Id. at 1346. The pilots 

were employees of private companies that had independently 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).

 
8 MOORE v. DOJ

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. 1982) (unpublished 

table decision)). Under that interpretation:

“In 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 such 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 Assistance, Research, and Statistics, Legal Interpretations of 

the Public Safety Officers’ Benefits Act 9 (1981) (reprinting 

Holstine decision)). We concluded that the BJA’s interpretation was permissible and entitled to Chevron deference 

because the statute was silent, the legislative history 

supported the BJA’s interpretation, and the BJA’s interpretation 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 include—(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 regulation is 

 
MOORE 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 employers’ public agency contracts. Id. at 1346, 1347. Under the 

terms of those contracts, the companies and their employees were independent contractors, not officers, employees, 

or agents of the government. Id. at 1355. Although the 

relevant agencies pre-approved the contract pilots, required compliance with state and federal regulations, and 

described the pilots as agency personnel after their 

deaths, 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, the 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 firefighting crews to the state and other government agencies for a fee, and under that agreement, 

First Strike’s services were “those of an independent 

contractor . . . not an officer, employee or agent of the 

State.” P.A. 179.3 

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 1350. 3 Petitioners attempt to distinguish Groff by arguing that the Benefits Act specifically references firefighters, not pilots. This is not a meaningful distinction. The 

 
10 MOORE v. DOJ

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 employment 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. Different statutes 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 government’ includes officers or employees of any federal agency . . . 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 

compensation’” (quoting 28 U.S.C. § 2671)). Neither the 

definition of “employee” in the FLSA nor the definition in

the Federal Tort Claims Act applies here. Rather, the 

Benefits Act is the governing statute, and it has defined a 

“public safety officer” as “an individual serving a public 

agency 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 firecourt assumed that the pilots 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 relationships with private companies that have independent 

contractual relationships with government agencies. 

Groff, 493 F.3d. at 1353. We deferred to that interpretation. 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 employed by a public agency, i.e., officially recognized or 

designated as functionally within or part of the public 

agency they serve.

Even if the Benefits Act were read to adopt a common 

law standard, the evidence does not support a finding that 

the decedents here qualified 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, 740–41 (1989) (applying common-law 

of agency to the term “scope of employment” in the Copyright Act absent specific definition). Contemporary statutes use “employee” to refer to the common-law “servant.” 

Restatement (Second) of Agency § 2, comment (d). The 

Restatement requires that the servant be employed to 

perform services for another who controls or has the right 

to control the servant’s “physical conduct in the performance of the services.” Id. § 220(1); see also Logue, 412 

U.S. at 527, 530 (sheriff’s employees were employees of an 

independent contractor 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, retained his services for only two months, and 

did not provide employee benefits). 

Petitioners have made no showing that the government actively supervised individual First Strike personnel. While the agreement was in force, the Forest Service 
12 MOORE v. DOJ

dealt exclusively with First Strike supervisors when 

requesting a crew and determining what services the crew 

would provide. 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 actually took direction from and were supervised by [First 

Strike] directly.” P.A. 884 (determination of BJA Hearing 

Officer). During a two or three day period, the First Strike 

crew 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 chart 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 employment relationship with the decedents. First Strike 

was exclusively responsible for obtaining workers’ compensation and liability insurance for its employees, including the decedents in this case. The government paid 

First Strike for services rendered under its contract, and

First Strike separately paid its employees for their work.

The First Strike Employee Manual directs employees to 

submit timecards to and retrieve paychecks from the 

company’s headquarters. First Strike is entitled to terminate its employees at any time for any reason not prohibited by law. By contrast, the Crew Agreement only 

permits the government to demobilize an 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 the 
MOORE v. DOJ 13

Forest Service. The decedents were not Forest Service 

employees under the common law definition.4

CONCLUSION

For the foregoing reasons, we affirm the BJA’s decision denying petitioners’ claims.5 

AFFIRMED

COSTS

No costs.

4 Petitioners argue that the BJA utilized an erroneous 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 

the 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 Petitioners cite contentions they made during the 

administrative proceeding before the BJA as if they were 

equivalent to established facts. This is improper.