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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1549%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1549%3A4. Public record. Not legal advice.