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,
DEPARTMENT OF JUSTICE, Respondent
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.
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 Attorney 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.
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. 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 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 ...