  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 Jus-
tice 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 Wash-
ington, DC, for petitioners.

    TARA K. HOGAN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment 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’ Bene-
fits Office (“Benefits Office”) denied the claims, and peti-
tioners 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 mone-
tary 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 firefight-
er, 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 gov-
ernmental entities, including the state of Oregon’s De-
partment 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 Assign-
ments 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 Agree-
ment”) 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 signa-
tories 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 For-
est. 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 pur-
suant 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 capaci-
ty 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 be-
cause 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 empha-
sized 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 determi-
nation 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 sub-
stantial 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” be-
cause 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 sus-
tained in the line of duty, the [BJA] shall pay a benefit” to
the officer’s surviving relatives. 42 U.S.C. § 3796(a) (em-
phasis 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’ in-



    1   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 of-
    ficial capacity, with or without compensation, as a
    law enforcement officer, as a firefighter, or as a
    chaplain;
    (B) an employee of the Federal Emergency Man-
    agement 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 emer-
    gency 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 res-
    cue activity or in the provision of emergency med-
    ical 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 other-
wise 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 neces-
sary 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). Amber-
Messick, 483 F.3d at 1323–25 (upholding the BJA’s inter-
pretation of “public safety officer” to exclude minor ap-
prentices 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 estab-
lished 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 inde-
pendently 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 offi-
    cial 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 Assis-
tance, Research, and Statistics, Legal Interpretations of
the Public Safety Officers’ Benefits Act 9 (1981) (reprinting
Holstine decision)). We concluded that the BJA’s interpre-
tation was permissible and entitled to Chevron deference
because the statute was silent, the legislative history
supported the BJA’s interpretation, and the BJA’s inter-
pretation 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 employ-
ers’ public agency contracts. Id. at 1346, 1347. Under the
terms of those contracts, the companies and their employ-
ees were independent contractors, not officers, employees,
or agents of the government. Id. at 1355. Although the
relevant agencies pre-approved the contract pilots, re-
quired 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 gov-
ernment 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 argu-
ing that the Benefits Act specifically references firefight-
ers, 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. Differ-
ent 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 govern-
ment’ includes officers or employees of any federal agen-
cy . . . 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 fire-



court 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 relation-
ships with private companies that have independent
contractual relationships with government agencies.
Groff, 493 F.3d. at 1353. We deferred to that interpreta-
tion. 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 em-
ployed 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 Copy-
right Act absent specific definition). Contemporary stat-
utes 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 perfor-
mance 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 be-
cause 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 govern-
ment actively supervised individual First Strike person-
nel. 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 actual-
ly 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 em-
ployment relationship with the decedents. First Strike
was exclusively responsible for obtaining workers’ com-
pensation and liability insurance for its employees, in-
cluding 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 termi-
nate its employees at any time for any reason not prohib-
ited 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 deci-
sion denying petitioners’ claims. 5
                       AFFIRMED

                          COSTS
No costs.




   4    Petitioners argue that the BJA utilized an errone-
ous 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.
