Amicus Curiae Brief — Groff v. United States (No. 07-460)

MOTION FILED 9 ~7/ >)

OCT 3 { 2007 No. 07-460

——---—

a

Gn The

Supreme Court of the Gnited States

+

CHRISTINE WELLS GROFF

and MICHAEL WELLS,

Petitioners,

V.

UNITED STATES,

Respondent

———

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

”

MOTION OF ASSOCIATED AIR TANKER

PILOTS AND AERIAL FIREFIGHTERS AND

CALIFORNIA FIRE PILOTS ASSOCIATION FOR

LEAVE TO FILE BRIEF AS AMICI CURIAE IN

SUPPORT OF PETITION FOR WRIT OF

CERTIORARI AND BRIEF OF AMICI CURIAE

ASSOCIATED AIR TANKER PILOTS AND

AERIAL FIREFIGHTERS AND CALIFORNIA

FIRE PILOTS ASSOCIATION IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

*

ROBERT E. THOMPSON

110 Sutter Street, Suite 501

San Francisco, CA 94104

(415) 543-2818

Counsel for Amici Curiae

Associated Airtanker Pilots and

Aerial Firefighters and

California Fire Pilots Association

1

MOTION OF ASSOCIATED AIR TANKER

PILOTS AND AERIAL FIREFIGHTERS

AND CALIFORNIA FIRE PILOTS

ASSOCIATION FOR LEAVE TO FILE BRIEF

AS AMICI CURIAE IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Associated Air Tanker Pilots and Aerial Fire-

fighters (“AAP”) and California Fire Pilots Associa-

tion (“CFPA”) respectfully move this Court for leave

to file the accompanying brief amici curiae in support

of the Petition for a Writ of Certiorari submitted by

Petitioners Christine Wells Groff and Michael Wells,

the wife and stepson of the deceased air tanker

firefighter, Larry Groff.

Counsel for Petitioners has consented to the

filing of this brief. There has been no response from

counsel for Respondent at this time, and this motion

is being made out of an abundance of caution since it

is presumed likely that Respondent will not agree to

the filing of this brief.

The interest of AAP and CFPA in this case is

immediate. AAP and CFPA represent aerial firefight-

ers who serve under contract with the California

Department of Forestry and Fire Protection (“CDF”)

and under the United States Department of Agricul-

ture Forest Service National Airtanker Service Con-

tract. If one of these firefighters is killed in the line of

duty, the Department of Justice Bureau of Justice

Assistance (“BJA”) has taken the position that the

families of the deceased pilots are not entitled to the

federal death benefit provided under the Public

2

Safety Officers’ Benefits Act of 1976, 42 U.S.C.

§ 3796(a) (“PSOBA”). The BJA maintains that they

are not entitled to the benefit because the pilots are

working through a contract with a third party.

Since 1980, about 87 professional firefighter

pilots have been killed in the line of duty. The BJA,

the administering agency, systematically denies

PSOBA benefits in these instances.

For budgetary reasons, and the root of the BJA

exclusion, national agencies decided not to maintain

these fleets of aircraft nor their pilots and crew.

Instead, they decided to contract these responsibili-

ties to private industry for the duration of each fire

season. CDF owns its planes.

The BJA’s exclusion of aerial firefighters em-

ployed through a contract with a third party from

PSOBA benefits is arbitrary and capricious. It con-

tradicts the language of the statute and BJA’s own

reading of the statute. It also contradicts the very

statutory purposes of the legislation.

The aerial firefighters are recognized as being

part of the firefighting agencies and function as part

of the agencies. The proposed brief examines the role

of the airtanker pilots in firefighting and in the

agencies, and demonstrates how BJA’s position is

contrary to the intent behind the PSOBA benefit, to

provide recognition to the firefighters, support to the

families, and to assist in recruitment.

3

As dramatically demonstrated in the recent

Southern California fires, the role of the air tanker

pilots is critical in modern firefighting. Moreover,

when the President of the United States visited the

fires last week, the air tanker pilots were permitted

to operate and fly in the no-fly zone surrounding the

Presidential party. This is in graphic contradistinc-

tion to the BJA’s position that the pilots do not “serve

. in an official capacity.” The aerial firefighters

function as an integral part of the firefighting force,

yet the BJA refuses to acknowledge this, myopically

focusing on the employment contract when the stat-

ute is broader, encompassing “service”, which BJA

concedes extends beyond employment. These pilots

serve in an official capacity and when they die in the

line of duty, their families are entitled to the PSOBA

benefit being denied them by the BJA.

The foregoing considered, AAP and CFPA request

that this motion be granted.

Dated: October 31, 2007 Respectfully submitted,

ROBERT E. THOMPSON

110 Sutter Street, Suite 501

San Francisco, CA 94104

(415) 543-2818

Counsel for Associated

Airtanker Pilots and

Aerial Firefighters and

California Fire Pilots

Association

QUESTION PRESENTED

1. Whether the families of professional fire-

fighters killed in the line of duty and serving a public

agency through a contract with a third party provider

should be denied the federal death benefit provided

under the Public Safety Officers’ Benefits Act of 1976,

42 U.S.C. § 3796(a) (“PSOBA”) based on a blanket per

se exclusion created by the Department of Justice

Bureau of Justice Assistance (“BJA”) (that they are

not entitled to the benefit because they are working

through a contract with a third party) which is con-

trary to Congress’s legislative intent, BJA’s regula-

tions and BJA’s own interpretation of the statute?

i

TABLE OF CONTENTS

Page

QUESTION PRESENTED occscsesececscessesscvsvscesensessess i

pe SR G8) Foy y. 8) hg) | -. SE eeneerer ere iv

INTERESTS OF AMICI CURIAE................... eee 1

FEIT, Sevisstiitriecistinciertharineintennnmennnaens 2

A. THE PER SE EXCLUSION OF AERIAL

CONTRACT FIREFIGHTERS UNDER-

MINES THE VERY PURPOSE OF PSOBA.... 2

Air Tanker Pilots Are Integral to National

PE craninssaxdccsotissensenunmanbiaenene 4

Devastating Fires in the Wildlands De-

mand Aerial Firefighting...................006 7

The BJA Exclusionary Rule Is Contrary to

the Intent of the PSOBA......................... 11

1. BJA’s Exclusionary Policy Hinders

Recruitment At A Critical Time........ 13

2. BJA’s Exclusionary Policy Denies

Respect and Recognition................... 14

B. THE PILOTS ARE PUBLIC SAFETY

OFFICERS SERVING PUBLIC AGEN-

CIES IN AN OFFICIAL CAPACITY ........... 16

C. AS THE FEDERAL CLAIMS COURT

FOUND IN GROFF, THE PILOTS HAVE A

SIMILAR RELATIONSHIP TO AN EM-

PLOYMENT OR VOLUNTEER RELATION-

SHIP AND ARE OFFICIALLY RECOGNIZED

AS FUNCTIONALLY PART OF THE

PRMITOFE seticcrsteretecsetcsuiavicteiniiesennennaneitn 20

ill

TABLE OF CONTENTS -— Continued

Page

1. Mr. Groff was in a Similar Relation-

ship to An Employee of a Public

Agency at the Time of His Death.......... 21

2. Mr. Groff was Officially Recognized

and Designated as Functionally Within

Si MIEIET ‘sucsiadieyseaoseninetebiednicetaeebamrsennsl 24

Soe aL EDEITTNT Gini vssipdutebcdundogeocindwihiceuaiendasahedeiglinieiens 26

iv

TABLE OF AUTHORITIES

Page

CASES:

Davis v. United States, 50 Fed.Cl. 192 (Ct. Cl.

| RE eran eects ene crea RnE Me I Ar enRI TER 12,15

Demutiis v. United States, 291 F.3d 1373 (Fed.

aie, Ute icsiikcnincpeasekcouteainonsudeasshaianaidnaddadiatuddiaicodaas 23, 25

United States v. R.F: Ball Constr. Co., 355 U.S.

587, 78 S.Ct. 442, 2 L. Ed. 2d 510 (1958),

reh’g denied, 356 U.S. 934, 78 S.Ct. 770, 2

eR Ey Ee en 21

STATUTES:

Public Safety Officers’ Benefits Act of 1976

EF i te aE sc ceiccnsasteisiatenlidnceibennienisnavcnanetecebianesaies 12

re Oe i tkcisncitdueunsesobantcateddviseiaiiedcitaxtedenceial 16

42 U.S.C. § 3796b(9)A) (formerly codified at

er i Oe MINE cictccisecitneetovnectsedsdinceietnemiens 16

AUTHORITIES:

122 Cong. Rec. 12002, 12009 (1976).......................00 20

S. Rep. No. 94-816, at 3-4, reprinted in 1976

AR ad oct FA | ERD orn NE HOO 12,14

Global Business Council for Sustainable Devel-

opment, Global Warming Amplifies Western

Forest Fire Seasons, www.wbcsd.org, July 6,

Vv

TABLE OF AUTHORITIES - Continued

National Airtanker Service Contract 2007,

C.1.1fe), Gtectiven, Pate TF ..ccsccccscrscesscscesssesssesse

National Interagency Fire Center, Interagency

Standards for Fire and Aviation Operations

2007, Chapter 17, Aviation Operations/

Resources, Purpose and Scope, pages 17-1

GE BO dccticicseciseadeeitieirane aa

Testimony of James F. Jarboe, Domestic Terror-

ism Section Chief, Counterterrorism Divi-

sion, Federal Bureau of Investigation, before

the House Resources Committee, Subcom-

mittee on Forests and Forest Health hearing

on “Eco-terrorism and Lawlessness in the

National Forests”, February 12, 2002 ..............

Testimony of James B. Hull, President, Na-

tional Association of State Foresters Before

the Senate Committee on Energy and Na-

tional Resources Subcommittee on Public

Lands and Forests, February 15, 2006.............

United States Department of Agriculture,

Forest Service, Accomplishing and Applying

National Fire Plan Research and Develop-

ment From 2001-2005, Section 4:15, page 35,

and section 4:16, page 37 (May 2007)...............

United States Fire Service, Healthy Forests, the

National Fire Plan — Healthy Forests Initia-

Sid, QOOR WRN, FO 6, cnccissssadsscnvintesistpecinieusains

1

INTERESTS OF AMICI CURIAE'

Associated Airtanker Pilots and Aerial Firefight-

ers (“AAP”) is a non-profit organization whose mis-

sion is to provide a safe and efficient working

environment for personnel involved with aerial! fire

suppression, whether on federal or state contracts. Its

members include pilots under the California Depart-

ment of Forestry and Fire Protection (“CDF”) con-

tract for airtanker pilots as well as the pilots under

the United States Department of Agriculture Forest

Service National Airtanker Service Contract.

California Fire Pilots Association (“CFPA”) is a

non-profit organization whose goal is to promote a

safe and fair work place for pilots working under the

CDF contract focusing on issues such as safety, pay,

benefits and the work environment. The CFPA’s

membership includes 100% of the airtanker and air

tactical pilots working under the CDF contract.

Amici have a common interest in this case: they

represent the contract aerial professional firefighters

whose families are being denied, and will be denied

PSOBA benefits by the BJA if the Court permits the

current BJA exclusionary policy to stand.

— +

’ Counsel of record for all parties received notice of the

intention to file this brief seven days before Respondent's

opposition brief is due. Counsel for Petitioners have granted

consent, and the response of Respondent is pending. Counsel for

Petitioners assisted in authoring parts of this brief. No one other

than Amici Curiae made any monetary contribution intended to

fund the preparation or submission of the brief.

2

ARGUMENT

A. THE PER SE EXCLUSION OF AERIAL

CONTRACT FIREFIGHTERS UNDERMINES

THE VERY PURPOSE OF PSOBA

The PSOBA provides for the award of benefits,

and a one time death benefit, to firefighters injured or

killed in the line of duty serving a public agency in an

official capacity. The BJA, the administering agency,

has created a per se exclusion of pilots technically

employed by the agency through a contract with a

third party. The BJA uniformly denies PSOBA bene-

fits in these instances. Since 1980, about 87 profes-

sional firefighter pilots have been killed in the line of

duty.

The BJA’s exclusion of aerial firefighters em-

ployed through a contract with a third party from

PSOBA benefits is arbitrary and capricious. It con-

tradicts the language of the statute and BJA’s own

reading of the statute. It also contradicts the very

statutory purposes of the legislation.

The typical fire season lasts only six months each

year. For budgetary reasons, and the root of the BJA

exclusion, national agencies decided not to purchase,

operate, and maintain these fleets of aircraft nor

their pilots and crew. Instead, they decided to con-

tract these responsibilities to private industry for the

duration of each fire season. The principal national

contractor is the USFS and most States obtain the

aerial firefighting support they need from the USFS.

On the other hand, CDF does own, maintain and

3

support its firefighting and observation planes,

although it also obtains the professional pilot services

though a contractor. The CDF supplies the planes

under its contract, while the contractor supplies the

plane under the national contract.

These aircraft, and their pilots, are an integral

part of wildland fire incident response operations by

public agencies. Retardant drops are typically used to

slow the expansion of a fire, i.e., to contain or channel

it, rather than put it out. These air activities are

closely coordinated with the ground strike teams and

controlled by the incident commander. The public

agency requesting airtanker support has total tactical

control over air operations at a fire site. Aerial fire

fighting crews under the contracts do the same kind

of work as non-contract employees, yet they are

denied benefits by the BJA. They do the same kind of

work and take the same risks as other fire crews, yet

they are denied the benefits of PSOBA, not by statute

but because of the BJA exclusionary policy.

The BJA policy is obviously capricious. For

instance, a CDF air tactical or observation aircraft

has two occupants, a pilot (who is employed through

the contract) and a spotter (who is a CDF employee).

If that air tactical plane crashed and its occupants

were killed while giving directions to the airtankers

dropping suppressant on a fire, the family of the CDF

employee acting as spotter would be granted the

PSOBA death benefit by the BJA, but the pilot’s

family would be denied it. Similarly, if an airtanker

collided with a helicopter killing the pilots of both

4

aircraft, the airtanker pilot’s family would be denied

benefits while the helicopter pilot’s family would be

granted benefits (helicopter pilots are employed

directly by CDF since these aircraft can be used

during the “off season” for non-firefighting purposes).

Permitting this BJA per se exclusion to persist

will have the opposite effect of the statutory purposes

articulated by Congress for the death benefit under

the PSOBA of increasing morale of fire departments,

assisting in recruiting efforts, showing appreciation

for public service personnel, and alleviating economic

and emotional burdens on the families of the de-

ceased public safety officers, including professional

firefighters.

Air Tanker Pilots Are Integral to National

Firefighting

Air tanker pilots are an integral part of fire-

fighting tactics throughout the country, not just in the

wildlands or the western United States. As James B.

Hull, President, National Association of State Forest-

ers (‘NASF”) testified before the Senate Committee

on Energy and National Resources Subcommittee on

Public Lands and Forests, February 15, 2006:

Aerial firefighting resources are essential to

the fire protection programs of most states

and territories represented by NASF. Over

two-thirds of the forests in the United States

are in state and private ownerships.

5

Fire protection in America is neither

uniquely a western states’ event nor is it con-

fined predominately to federal lands. More

than 80,000 wildfires occur annually across

our nation. Well over 60% of those occur in

non-western states and over 75% occur on

non-federal lands. The key point, however, is

that no single entity, including federal, state,

or local government, has the capacity to

handle all responses to wildfires within their

jurisdictional area of responsibility. All fire

protection programs are thus, by necessity,

strategically integrated to most effectively

and economically serve all rural lands of the

nation. Aerial firefighting resources are util-

ized in exactly the same way; in other words,

we are all in this together. Therefore, at this

time it is critical that we all work together,

federal and state, in developing an inter-

agency, long-term strategy for our nation’s

aerial firefighting resources. We need a

strategy that will provide a diverse fleet of

helicopters and fixed-wing aircraft that will

meet the needs of our wildfire suppression

mission, and do so in a safe and airworthy

and sustainable manner over the long-term.

(www.stateforesters.com/testimony/2. 15.06)

The aircraft and their pilots are an integral part

of national and CDF firefighting capabilities and

operations, and are just one part of the integrated

forces used. “Aviation resources are one of a number

of tools available to accomplish fire related land

management objectives.” National Interagency Fire

Center, /nteragency Standards for Fire and Aviation

6

Operations 2007 (“Interagency Standards”), Chapter

17, Aviation Operations/Resources, Purpose and

Scope, page 17-1. As the Interagency Standards, at

Chapter 1, at 01-5, graphically summarize the com-

plexity of fire and the response to it:

The Nature of Fire Operations

Fire is a complex, dynamic, and often unpre-

dictable phenomenon. Fire operations re-

quire mobilizing a complex organization that

includes management, command, support,

and firefighting personnel, as well as air-

craft, vehicles, machinery and communica-

tions equipment. While the magnitude and

complexity of the fire itself, and of the hu-

man response to it, will vary, the fact that

fire operations are inherently dangerous will

never change. A firefighter utilizing the best

available science, equipment, and training,

and working within the scope of agency doc-

trine and policy, can still suffer serious injury

or death.

As a matter of national policy, air tankers are a

national resource. Interagency Standards, Chapter

17, Aviation Operations/Resources, Airtankers, page

17-9. This is even though they are obtained through

contract. 2007 National Airtanker Service Contract,

C.1.l(c), Objectives, page 7: “Airtankers awarded

under this contract are considered national re-

sources.”

In the context of PSOBA benefits, the logic is

devastating. The plane under contract is a national

7

resource, but, according to the BJA, the family of the

contracted pilot killed flying that plane while fighting

a fire threatening people, public and private property

is not entitled to the PSOBA benefit.

Airtankers are capable of being the initial

weapon against fires in remote or difficult terrain.

They can get to the fire before the ground personnel

are able to reach the fire. Airtankers also support the

efforts of the ground personnel, and act in a coordi-

nated support capacity.

Devastating Fires in the Wildlands Demand

Aerial Firefighting

Of course, it is the wildland areas that are pri-

marily increasingly susceptible to large fires. Of

significant concern is the rapidly expanding interface

zone between wildlands and developed areas, the so-

called wildland-urban interface (“WUI”), and chang-

ing climate conditions are producing longer fire

seasons and more catastrophic fires.

As the on-going fires throughout Southern Cali-

fornia have dramatically demonstrated, the airtanker

fleet is of critical importance in fighting fires in the

WUI where a significant amount of the major fires

are happening. 60% of new housing was built in the

WUI between 1990-2000, and as many as 42 million

homes are located in the WUI. (The wildland-urban

interface “the area where structures and other human

developments meet or intermingle with undeveloped

wildland.”) United States Department of Agriculture,

8

Forest Service, Accomplishing and Applying National

Fire Plan Research and Development From 2001-

2005, Section 4:15, page 35, and section 4:16, page 37

(May 2007).

Moreover, the bulk of expert opinion is that there

is a strong correlation between the increase in large

scale wildland fires in the Western states and the

changing climate conditions. As published in Global

Warming Amplifies Western Forest Fire Seasons,

Global Business Council for Sustainable Develop-

ment, www.wbcsd.org, July 6, 2006 states:

Climate models show that warmer springs

and summers will likely continue to inten-

sify, further increasing large wildfires and

making forest management techniques such

as thinning and fire suppression ineffective,

according to the report by scientists at the

Scripps Institution of Oceanography and the

University of Arizona, to be published later

today in the journal Sciencexpress.

“The projected regional warming and conse-

quent increase in wildfire activity in the

Western U.S. is likely to magnify the threats

to human communities and ecosystems, and

significantly increase the management chal-

lenges in restoring forests and reducing

greenhouse gas emissions,” the report states.

The Forest Service, National Oceanic and

Atmospheric Administration and California

Energy Commission funded the research.

The average number of wildfires increased

by a factor of four in the mid-1980s, burning

9

an area 6.5 times greater than in the 1970s,

as the fire season expanded and fires became

more frequent and burned longer than in

previous years. Annual changes in wildfire

frequency appears “to be strongly linked to

annual spring and summer” temperatures

with “many more wildfires burning in hotter

years than in cooler years,” the report states.

As the United States Fire Service describes the

escalating situation in the Healthy Forests, the Na-

tional Fire Plan — Healthy Forests Initiative, Over-

view, Page 4:

In recent years, most of us have seen

televised pictures of wildland fires,

evacuated communities, burned homes, and

blackened forests, or witnessed these fires

first hand. In 2002, Arizona, Colorado,

Oregon and New Mexico, each had their

largest timber fire in a century. The most

devastating series of wildland fires in state

history swept Southern California during

October 2003. These fires killed 24 people,

destroyed more than 3,700 homes, and burned

750,000 acres. Alaska set a record for acres

burned in 2004. And, while fire has always

helped shape our landscape, today’s fires are

not those of the past; they are often hotter,

more destructive, and more dangerous to fight.

We know in part the reason for the difference.

Compared with earlier times, many of today’s

forests often have unprecedented levels of

flammable materials including among other

materials: underbrush, needles, and leaves.

10

In the interior West for example, Ponderosa

pine forests range from Arizona and New

Mexico northward into Idaho. A century ago

such a forest may have had some 25 mature

trees per acre and be easily traversed on

horseback or by a horse-drawn wagon. Today

that same forest may have more than 1,000

trees on the same acre creating conditions

that are much too thick for the passage of a

hiker. These tightly packed trees are smaller,

weaker, more disease prone, and more

susceptible to insect attack than their

ancestors. Such forests form huge reservoirs of

fuel awaiting ignition, and pose a particularly

significant threat when drought is also a

factor.

Fires in the WUI create their own problems for

the aerial firefighters. They are often in areas of hilly

terrain, with wires, trees, and the heat of the fires

themselves generate their own idiosyncratic winds.

These areas present especially challenging environ-

ments for the aerial firefighters, especially when their

concentration is on the pinpoint delivery of 1200 gallons

of fire retardant while flying at 120-140 knots. Flying

a fire suppression mission can be extremely hazard-

ous. Pilots fly heavily loaded aircraft, through thick

smoke and shifting winds, over rugged terrain with

tall trees and power lines. They often must make

tight turns to hit a fire drop zone in a mountain

ravine where the fire retardant is dropped from an

altitude of only 150 feet.

11

The demands of modern aerial firefighting are

intensive and call for a highly trained and disciplined

force. Fortunately the mortality rate has dropped,

from about 20 per 100,000 flight hours to about four

per 100,000 flight hours: about the same as a military

combat squadron. The rate reduction is due to a

combination of better pilot training, sturdier aircraft,

and refined flight policies. However, it is critically

important to maintain the firefighting force, to build

on the training and experience that has developed,

and to bring in and develop fresh recruits. The BJA

exclusion hinders these demands and national policy.

Besides natural causes, there is also the additional

concern of arson. This too has raised its head in the

recent Southern California fires. The F.B.I. has long

been concerned that domestic terrorists use arson in

the wildlands as a terrorist weapon. (Testimony of

James F. Jarboe, Domestic Terrorism Section Chief,

Counterterrorism Division, Federal Bureau of Investi-

gation, before the House Resources Committee, Sub-

committee on Forests and Forest Health hearing on

“Eco-terrorism and Lawlessness in the National For-

ests”, February 12, 2002.)

The BJA Exclusionary Rule Is Contrary to

the Intent of the PSOBA

The PSOBA is a recognition of the extraordinary

risks public safety officers face. In the course of

adopting the statute, Congress specifically expressed

12

Davis v. United States, 50 Fed.Cl. 192, 207 (Ct. Cl.

2001):

“The motivation for this iegislation is

obvious: The physical risks to public safety

officers are great; the financial and fringe

benefits are not usually generous; and the of-

ficers are generally young with growing

families and heavy financial commitments.

The economic and emotional burden placed

on the survivors of a deceased public safety

officer is often very heavy.

The dedicated public safety officer is con-

cerned about the security of his family, and

to provide the assurance of a Federal death

benefit to his survivors is a very minor rec-

ognition of the value our government places

on the work of this dedicated group of public

servants.

S. Rep. No. 94-816, at 3-4, reprinted in 1976

U.S.C.C_LA.N. at 2505. See also Demutiis, 48

Fed.Cl. at 85-86.” Davis v. United States, 50

Fed.Cl. 192, 208 (Ct. Cl. 2001)

As the BJA announces in its website on the

PSOBA:

Enacted in 1976, the Public Safety Offi-

cers’ Benefits (PSOB) Act (codified at 42

U.S.C. 3796, et seq.):

e Assists in the recruitment and reten-

tion of qualified public safety officers.

* Establishes the value that communi-

ties place on contributions from those

13

who are willing to serve their com-

munities during potentially danger-

ous circumstances.

Offers peace of mind to men and

women who are seeking careers in

public safety.

However, BJA’s exclusion of contract pilots directly

countermands this purpose.

1. BJA’s Exclusionary Policy Hinders

Recruitment At A Critical Time

Recruitment is an acknowledged problem in

firefighting generally. It is of particular concern for

staffing the airtanker fleet where the average per-

sonnel age is already far higher than ground fire-

fighting units. For instance, among the 53 pilots

under contract for the CDF in 2007, 74% were over 50

years old, with 35% over 60 (6% were 20-29; 10% 30-

39; 10% 40-49; 39% 50-59). The profile of the pilots

working under the national contract is similar. While

there is a benefit gained from experienced pilots,

there is a need to replenish the supply of pilots. This

is especially important at this time, when the number

of large scale wildland fires is increasing, and there is

increasing fire activity in the ever-growing WUI.

The firefighting careers of these experienced

pilots extend beyond the individual periods of the

agency contracts. The pilots fly for the same public

firefighting agencies regardless of what entity is

awarded the services contract from one period to

14

another. There are not competing groups of pilots

available for contract. (For instance, most of the

pilots over 50 years old have been with the CDF for

over 20 years, although the contractor’s name has

changed about four times in that time.) The same

pilots work for whatever the name of the entity that

may have the CDF contract or the national contract

for that particular period.

Exclusion from the PSOBA benefits hinders

recruitment efforts. Significantly, most firefighting

pilots cannot obtain life insurance due to the inherent

dangers of the work. Although California has enacted

legislation that compels the contractor to provide life

insurance, there is no equivalent legislation for the

pilots under the national contract. In any case, the

PSOBA benefit was not an alternative to life insur-

ance, but a one time benefit in addition to any life

insurance, seen as a form of recognition and to en-

hance recruiting. These considerations are of special

significance to aerial firefighters.

2. BJA’s Exclusionary Policy Denies Re-

spect and Recognition

A central purpose of the PSOBA benefits was “to

provide the assurance of a Federal death benefit to

.. survivors” as “a very minor recognition of the

value our government places on the work of this

dedicated group of public servants.” S. Rep. No. 94-

816, at 3-4, reprinted in 1976 U.S.C.C._A.N. at 2505;

15

Davis v. United States, 50 Fed.Cl. 192, 208 (Ct. Cl.

2001).

The BJA’s exclusionary policy denies the families

of the deceased pilots these benefits. It robs them of

the peace of mind that Congress intended. Moreover,

it is only the BJA and its exclusionary policy that

does not recognize that airtanker pilots are serving a

public agency in an official capacity. For instance, the

fallen pilots are recognized by the United States

Congress. The families of the fallen firefighter pilots,

such as Mr. Lars Stratte and Mr. Larry Groff who

were both killed in 2001 and had their claims rejected

by the BJA, received from the United States Congress

a “Certificate of Special Congressional Recognition” in

memory of the fallen firefighter stating “I join with

the Community in recognizing Your Unselfish Public

service, and for Paying the Ultimate Price in Defend-

ing the People of this Great Nation.” The fallen

firefighters are memorialized at both the National

Fallen Firefighters Monument and the California

Firefighters Memorial.

For the pilots killed while flying under the CDF

contract, the Governor of California and the CDF

have recognized them as being members of the CDF.

The CDF uniformly refers to them as being part of its

forces.

The BJA policy is to not only deny the claims, but

to discourage the claims. It is routine for the family of a

fallen pilot to be told that contract pilots are not cov-

ered in response to an enquiry for PSOBA benefits. The

16

BJA also sends the family a copy of the Holstine

decision in response to a request for PSOBA benefits

and claim form. This clearly underscores that the

exclusion is a blanket policy employed by the BJA,

and that, even when it was bound to by its own

regulations, it did not.

B. THE PILOTS ARE PUBLIC SAFETY OFFI-

CERS SERVING PUBLIC AGENCIES IN AN

OFFICIAL CAPACITY

The PSOBA provides:

In any case in which the Bureau of Justice

Assistance (hereinafter in this subchapter re-

ferred to as the “Bureau”) determines, under

regulations issued pursuant to this subchap-

ter, that a public safety officer has died as

the direct and proximate result of a personal

injury sustained in the line of duty, the Bu-

reau shall pay a benefit of $250,000. [42

U.S.C. § 3796(a)]

A public safety officer is defined by PSOBA, in

relevant part, to be “an individual serving a public

agency in an official capacity, with or without com-

pensation, as a law enforcement officer, as a fire-

fighter, as a chaplain, or as a member of a rescue squad

or ambulance crew ... ” 42 U.S.C. § 3796b(9)(A) (for-

merly codified at 42 U.S.C. § 3796b(8)(A)). The opera-

tive definition of “firefighter” in the Groff case

“includes an individual serving as an officially recog-

nized or designated member of a legally organized

volunteer fire department”. 42 U.S.C. § 3796b(4). The

17

BJA acknowledged Mr. Groff as qualifying as a “fire-

fighter.”

The pilots working for the public agencies under

contract through the third party providers serve

these agencies in an official capacity. The differences

between a CDF helicopter pilot and an airtanker pilot

is the piece of equipment and where the paycheck

comes from. Both fly under CDF rules and are di-

rected by CDF personnel. For instance, a CDF con-

tract air tanker pilot completes the same pilot

application form as a CDF helicopter pilot. The

Interagency Card is also the same. This Interagency

Card gives the holder the right to fly a plane, or

helicopter as the case may be, for the CDF or USFS,

and also allows the pilot to operate as a firefighter

and take control of fire scenes. It also gives the pilot

the responsibility of initial attack on a fire, and is

entrusted with the public safety to act as initial

attack. The Interagency Card holder can close down

airspace and state and federal highways if they see

these actions as necessary. The Interagency Card is

issued by the agency, CDF or USFS, not the contrac-

tor. The Interagency Card entitles the pilot to operate

on fires on private and public lands, whether federal

or state, and under the interagency agreements. The

holder operates and is a State fire officer, and acts as

a pilot-in-command of a fire scene. In the recent

Presidential visit to Southern California during the

fires, the Interagency Card holder firefighters were

the only aircraft permitted to fly in the temporary no

fly area created for the President.

18

The pilots perform an official function, flying a

public aircraft as part of the public firefighting force

to put out a fire threatening state owned property,

people’s lives and private homes. In the case of CDF

pilots, they are stationed at CDF air attack bases, fly

CDF planes as ordered by CDF controllers. They drop

fire retardant under CDF direction while fighting a

fire as part of the overall CDF incident response

effort where their actions are integrated with all

other CDF units on the ground and in the air. They

have the authority as a State firefighter pilot under

the Federal Aviation Regulations to close airspace to

civil aircraft, to get priority handling from the FAA on

airspace use, and to give orders as necessary to

suppress wildland fires. Except for the way they are

provided their paycheck, there is no difference be-

tween them and a direct CDF employee.

There is no restriction in the PSOBA that re-

stricts the benefits to direct employees only. Even in

the unpublished Holstine decision issued by the BJA

when it initially denied a contract pilot benefits, the

BJA employed a working definition that did not

restrict the benefits to employees only. As with the

language of the statute, “serving ... in an official

capacity”, the agency definition included in Holstine

is broader than “employee”, focusing on function and

a relationship “similar” to an officer, employee, or

volunteer. In Holstine, the BJA included a definition

of the meaning of “serving .. . in an official capacity.”

19

In order to be serving a public agency in an

official capacity one must be an officer, em-

ployee, volunteer, or similar relationship of

performing services as a part of a public

agency. To have such a relationship with a

public agency, an individual must be offi-

cially recognized or designated as function-

ally within or a part of the public agency.

In Holstine, the BJA ignored its own working

definition and denied a PSOBA benefits claim relat-

ing to a privately employed pilot who was killed while

performing state aerial firefighting duties. The BJA

relied upon two factors: (i) the contract between CDF

and the third party contractor, which included the pro

forma provision that the contractor, its agent and

employees “shall act in an independent capacity and

not as officers or agents of the State of California’,

and (2) one colloquy in the House as “proof” of Con-

gressional intent to exclude contractors from PSOBA

coverage, to wit:

Rep. Myers: “Could the gentleman tell me,

is there any way in which this bill would ap-

ply to privately employed safety or security

officers?”

Rep. Eilberg: “No, it would not.”

Rep. Myers: “What if they were called by a

local arm of the government or the local po-

lice organization to assist in any way?”

20

Rep. Eilberg: “It is my opinion that they

would not be included.”

122 Cong. Rec. 12002, 12009 (1976).

As set forth in detail in this brief, this isolated

reference to an ad hoc call for assistance to a private

security guard does not bear any resemblance to the

integrated role of the aerial firefighters in modern

firefighting.

In the face of its stated definition, the BJA’s

practice of holding that an official capacity per se

cannot exist when a contractor or privately-employed

individual provides service for the public agency is

erroneous and unreasonable. Someone serving a

public agency in an official capacity who is not an

employee but in a “similar relationship”, who is

functionally a part of the public agency is supposed to

be covered according to the BJA’s interpretation. The

BJA’s inquiry begins and ends with the fact that he

was employed through a contractor and they almost

exclusively focus on the face of the contract.

C. AS THE FEDERAL CLAIMS COURT FOUND

IN GROFF, THE PILOTS HAVE A SIMILAR

RELATIONSHIP TO AN EMPLOYMENT OR

VOLUNTEER RELATIONSHIP AND ARE OF-

FICIALLY RECOGNIZED AS FUNCTIONALLY

PART OF THE AGENCY

The BJA routinely ignores the facts showing the

nature of the work and the day-to-day control exerted

by the agencies, such as the CDF. Instead, the BJA

21

myopically focuses on the employer-employee rela-

tionship between the contractor and the pilot and the

contract language governing the relationship between

the agency and the contractor. In so doing, this ele-

vates form over substance and ignores the concept of

“service.” United States v. R.F. Ball Constr. Co., 355

U.S. 587, 593, 78 S.Ct. 442, 2 L. Ed. 2d 510 (1958)

(“Substance, not form or labels, controls the nature

and effect of legal instruments.”), reh’g denied, 356

U.S. 934, 78 S.Ct. 770, 2 L. Ed. 2d 763 (1958). Unfor-

tunately, this is a common occurrence with the BJA

and PSOBA benefits.

1. Mr. Groff was in a Similar Relationship

to An Employee of a Public Agency at the

Time of His Death

As the Federal] Claims court correctly noted in

the Groff case, the airtanker pilots like Mr. Groff are

“a clear example of a non-employee who nonetheless

is similarly providing services as part of a public

agency, much like a public employee.” As the Federal

Claims court pointed out in the Groff case, the BJA

“apparently chose to disregard the CDF’s official

recognition that Mr. Groff was a functional part of the

CDF.” This is what the BJA routinely does in the case

of the contract pilots. The BJA’s refusal to accept the

CDF’s clear official recognition that Mr. Groff was

functionally within the CDF has no support in the

representations of the CDF and “is unwarranted.”

(Groff Appendix ([“App.”] p. 70a.) Once again, despite

the fact the BJA was required to give substantial

22

weight to the CDF’s findings, it failed to do so. Based

on the above, the CDF clearly recognized Mr. Groff as

functionally within the CDF at the time of his death,

and, accordingly, the BJA’s own “official recognition”

test is satisfied. (App. p. 70a.)

First, the CDF procedures handbook for pilots

fighting fires for the CDF demonstrates that Mr.

Groff was “fully integrated into the firefighting ser-

vices of the CDF.” (App. p. 57a.) The Federal Claims

court analyzed the administrative record and found

that:

During operations, Mr. Groff was supervised

by a CDF air tactical supervisor who would

“ordinarily fly in an orbit above the level of

the airtankers and... describe targets to the

airtanker and helicopter pilots.” The CDF

dispatched the planes flown by pilots, includ-

ing Mr. Groff. The CDF specified what uni-

forms pilots would wear. Mr. Groff and

others were required to participate in mis-

sion debriefings and were evaluated by CDF

personnel. Contractor pilots had CDF credit

cards for refueling.

(App. p. 57a.)

Second, following Mr. Groff’s death, a CDF

official wrote two letters describing the nature of Mr.

Groff’s services and his relationship to the CDF. The

letters, written to the BJA from the CDF Deputy

Chief of Aircraft Maintenance and Engineering, set

forth various aspects of Mr. Groff’s services. Specifi-

cally, the CDF official noted that, among other things,

23

Mr. Groff was a carded airtanker pilot authorized to

operate State fire fighting aircraft, that the State of

Calitornia and the United States benefited from Mr.

Groff’s operations, that Mr. Groff was operating the

airtanker for the State of California on State fires,

that Mr. Groff operated the aircraft owned by the

State and at the direction of CDF dispatchers and

airborne air attack officers, that he slept in State

bases, ate State furnished meals, and was required to

wear a State supplied flight suit and helmet. (App. p.

59a-61a.)

Importantly, the CDF official noted that the CDF

sets pilot standards, approves hiring and training of

each pilot, and issues airtanker cards to the pilots

“for State duty.” (App. p. 61a.) The CDF noted that

the “sole function of the contractor (SJH, in this case)

was/is to provide a means of paying the pilots. .. .”

(App. p. 61a.) These are “recitations of fact” by a

governmental agency that should have been consid-

ered by the BJA. Based on these facts, the Federal

Claims court correctiy ‘ound that Mr. Groff was

functioning as a part of the CDF when he was per-

forming firefighting services, “much like a CDF

employee.” (App. p. 61a.) The BJA, however, failed to

give substantial weight to these findings, as it was

required to do. Demutiis v. United States, 291 F.3d

1373, 1379-80 (Fed. Cir. 2002).

The Federal Claims court correctly noted that the

BJA failed to give substantial weight to the CDF’s

findings. This is yet another example of the fact the

BJA erred finding that Petitioners were ineligible for

24

benefits and that the BJA’s failure to accord weight to

these facts was unreasonable.

2. Mr. Groff was Officially Recognized and

Designated as Functionally Within the

CDF

The record is replete with examples of official

recognition by the CDF of Mr. Groff’s services show-

ing he was officially recognized or designated as

functionally within the CDF or a part of the CDF. As

the Federal Claims court noted, the CDF referred to

Mr. Groff as “one of our pilots.” (App. p. 58a.) Mr.

Groff was identified as a “State firefighter pilot.”

(App. p. 60a.) Moreover, the CDF directly addressed

the issue of Mr. Groff’s official recognition and his

role within the CDF:

Captain Groff was, in our opinion, serving

as an officially recognized and designated

member of the California Department of

Forestry and Fire Protection. ... The follow-

ing facts support our claim. ...

1. Mr. Groff was an interagency “carded”

Airtanker Pilot. This designation authorized

Mr. Groff to operate a State fire fighting air-

tanker as Pilot-in-Command. Mr. Groff had

the authority, duty and obligation to respond

to wildland fires and to take immediate and

independent action to suppress and combat

wildfires.

25

8. [California] Governor Gray Davis issues

a Statewide proclamation designating Mr.

Groff as a firefighter and a hero.

9. Mr. Groff’s name has been added to the

State firefighter’s memorial located in the

State Capitol.

10. Mr. Groff’s name has been added to the

national firefighter’s memorial in Maryland.

(App. p. 65a-66a.)

As the Federal Claims court pointed out, the BJA

“apparently chose to disregard the CDF’s official

recognition that Mr. Groff was a functional part of the

CDF.” (App. p. 66a.) The BJA’s refusal to accept the

CDF’s clear official recognition that Mr. Groff was

functionally within the CDF has no support in the

representations of the CDF and “is unwarranted.”

(App. p. 70a.) Once again, despite the fact the BJA

was required to give substantial weight to the CDF’s

findings under Demutiis, it failed to do so. Based on

the above, the CDF clearly recognized Mr. Groff as

functionally within the CDF at the time of his death,

and, accordingly, the BJA’s own “official recognition”

test is satisfied. (App. p. 70a.)

S

26

CONCLUSION

For the reasons set forth above and in Peti-

tioner’s brief, this Court should grant the Petition for

a Writ of Certiorari requested in this case.

Dated: October 31, 2007.

Respectfully submitted,

ROBERT E. THOMPSON