*1 CONCLUSION reasons, foregoing
For the we reverse portion of the district court’s order
granting motion for judgment Southwest’s law,
as a matter of vacate portion
the district court’s order denying Carmo- reinstatement,
na’s motion for and remand
the case with judgment instructions that
be entered for Carmona in accordance jury’s
with the verdict and that Carmona’s
motion reinstatement be reconsidered
in light holding. of our part,
REVERSED in VACATED
part, and REMANDED. INC.; SHIPYARDS,
BOLLINGER Longshore
American Mutual
Association, Petitioners,
DIRECTOR, OFFICE OF WORKER’S PROGRAMS,
COMPENSATION U.S.
Department Labor; Jorge Rodri-
guez, Respondents.
No. 09-60095.
United States Court of Appeals,
Fifth Circuit.
April
As April Revised *3 AND PROCEEDINGS
I. FACTS
A. Facts 2003, Rodriguez fell and in- In October performing welding jured himself while At Bollinger, employer. his job for injury, Rodriguez had been time of (argued), Marks Jessie Andrew Kevin Bollinger for working pipefitter Johnson, Tomp- Galloway, Haynes, Schott months, eight having initial- approximately Orleans, LA, Smith, kins, Burr & New with af- ly obtained *4 Petitioners. falsely that he was a U.S. citi- stating ter Baj- Sean Boyle (argued), Matthew W. company with a providing zen and Sol., James, kowski, Ellen Associate Rae Security Bollinger false Social number. Reinhalter, Counsel, U.S. Ambrose Mark dispute Rodriguez’s not does Sol., Labor, Thomas O. Office of Dept, of scope in the course and of his occurred Bd., Jr., Clerk, Rev. Benefits Shepherd, that, were it not for his Duhon, DC, Dept, U.S. Washington, David immigrant, he status as an undocumented Orleans, LA, Labor, for Director. New under the be entitled to benefits would Jr., Wanko, Mark Richard Daniel Steven Rather, Bollinger contends LHWCA. Firm, L.L.C., (argued), Wanko Law Ladd that, Rodriguez’s undocu- by virtue of LA, Rodriguez. for Covington, use of a false Social mented status and his employment, he Security number to obtain Rosenbaum, New Orleans Jean Jennifer recovering any Justice, precluded from Legal should for Racial Ctr. Workers’ LA, Curiae; Orleans, benefits. for Amici New LHWCA-related Dept., for Racial Jus- Ctr. New Orleans Workers’ initially paid Rodriguez tempo- Bollinger Justice, tice, Pro Bono Interfaith Worker disability benefits and reimbursed rary Orleans, Poverty Project of New Southern expenses. medical portion him for a of his Ctr., Project, Immigrant Justice Law however, Bollinger years, almost two After Advocacy Group Injury Law & Workers in November 2005 payments all terminated Project. Law Employment and National an Rodriguez was when it discovered Rodriguez immigrant.
undocumented Bollinger un- then filed for benefits from LHWCA, proceeded and the case der the GARWOOD,WIENER, and Before trial. to an administrative BENAVIDES, Judges. Circuit Proceedings B. WIENER, Judge: Circuit trial 1. The administrative (“Bollinger”), Inc. Bollinger Shipyards, ALJ, Rod- Proceeding pro se before for review of an order petitions that he had first come to riguez testified (“BRB”) awarding Board Benefits Review in 1990 and had illegally States United and Harbor Longshore under the benefits Security number to (“the used a false Social Act Compensation Workers’ working first as a (“Rodri- jobs, a series of LHWCA”) obtain Rodriguez Jorge to operator a forklift and then as bartender who immigrant guez”), an undocumented Louisiana in moving before in Texas injured employed himself while fell and Louisiana, worked for Rodriguez deny the pipefitter. a We Bollinger as in the marine employers different several petition. to work industry beginning Security before as a number.1 Barker stated for pipefitter Bollinger March primary Bollinger’s verifying method of eligibility employee’s to work in this coun- According was Rodriguez, welding he try to send the employee’s was Social Se- night ship an inclined wall of a on number to curity the IRS at the end of the accident when he fell landed on his and then year and wait if the see IRS Rodriguez lay he back. testified that on report indicating returned that the num- ground approximately for 10 to 15 invalid. up Rodriguez minutes before he was to stand ber was As had able report supervisor. the incident to Bollinger worked from March No- According Rodriguez, his immediate su- vember, however, Bollinger had sub- go instructed him to home that pervisor Security mitted his Social number report night following day back the prior injury. IRS to his un- Barker was treatment, that it explaining medical would able to confirm whether had at- Bollinger significantly to have cost more tempted verify Rodriguez’s legal status evening. him treated that means, other company’s as the Rodriguez further that the personnel destroyed testified fol- records had been dur- *5 lowing day Tim Hargrove, Bollinger’s ing Hurricane Katrina. man,” “safety report filled out an accident regarding Stokes testified his vocational directed seek Rodriguez and to medical report Rodriguez’s on earning capacity and physician treatment from Dr. That Tate. job Stokes skills. noted that efforts in his recommended that be Rodriguez reas- compiling report were complicated signed light-duty work in the tool room. Rodriguez’s refusal participate any Rodriguez for light duty worked less than vocational counseling. rehabilitation He month, however, a eventually stopping be- acknowledged, however, that it was not cause his back progressively had worsened entirely plaintiffs uncommon for in Rodri- point longer to the that he could no work guez’s position to counseling. decline such any capacity. provided Rodriguez began analysis Stokes his by observing reports with physicians,
ALJ from several that, matter, a Rodriguez as threshold was including Hamsa, Dr. diagnosed who had employable legal the U.S. in Rodriguez as being temporarily disabled capacity because of his status as an undoc- and unable to perform any work unless he that, result, immigrant; umented and as back surgery, had underwent additional have improper would been unethical and open testing, MRI and received various for him to Rodriguez assist in vocational orthopedic supplies, such a cane and Nevertheless, support. purposes back rehabilitation. of comparison, Stokes a voca- performed Ray called two witnesses: Rodriguez’s tional evaluation of earning Barker, Bollinger’s representa- corporate capacity status, without regard to legal his tive; Stokes, and Larry Bollinger’s voca- concluding Rodriguez capable was of expert. tional rehabilitation Barker testi- performing a variety light-to-medium- of fied about Bollinger’s practices company duty jobs that would earn him between safeguard against hiring undocumented Barker, salary. and in average weekly According $250 $600 workers. the com- reiterated, however, pany required Stokes if prospective employees that even submit a valid driver’s and a Rodriguez’s injury prevented license Social perform- Rodriguez’s employment 1. At the time of with license. Bollinger, apparently he a Texas had driver’s levels, work, and pain past factors such as work, no he had suffered light-duty ing by the capacity as considered working as he had capacity, earning legal of loss Fifth to be- and the Circuit.” capacity prior earning [BRB] legal no had injured. ing (1) sum, Bol- the ALJ ordered temporary total pay Rodriguez linger ruling The ALJ’s the date of the disability from benefits on Rodriguez ruled in favor The ALJ with benefits to present, accident unable to issues, he was concluding that all Rodriguez reached maxi- until continue maximum “not at he was and that work (2) improvement; pay- mum medical a need because improvement medical the base using calculated should be ment conducting a After surgery.” for back week, with two-thirds per rate of $568.00 and of the evidence thorough review (3) $378.67; statute, totaling per benefits witness, the ALJ ex- testimony of each Rodriguez compensate Bollinger should Rodriguez found that he plained and future medi- past all reasonable that, although he was and witness credible treatment, surgery, including back cal and witness physician each impressed or- testing, appropriate and open MRI he reports, or submitted had testified who by Dr. as recommended thopedic devices of Rodri- Dr. Hamsa’s assessment found (4) Hamsa; be as- and interest should accurate the most condition to be guez’s After the unpaid all benefits. sessed on Dr. agreed ALJ with diagnosis. decision, the district di- issued his ALJ Rodriguez recommendation Hamsa’s attorney’s fees to Rodri- awarded rector necessary receive reasonable should prior counsel. guez’s devices, including back procedures *6 and or- testing, MRI additional surgery, BRB appeal to the Bollinger’s supplies. thopedic ruling ALJ’s to Bollinger appealed the Rodriguez’s eligibility respect With BRB, that the ALJ had contending the LHWCA, the ALJ under for benefits concluding in that fundamentally erred such immigrants that undocumented held immigrant, an Rodriguez, undocumented eligible for such are indeed Rodriguez as under to benefits was entitled in Hernandez opinion our Citing benefits. alternative, Bollinger In the LHWCA. that ALJ concluded Rajaan,2 the v. M/V BRB to conclude that the ALJ’s urged the under entitled to benefits Rodriguez was in error and were not findings factual were LHWCA, Bollinger because largely in evidence by substantial supported any evidence present failed to had Bollinger, the ALJ According record. or deported “about to be Rodriguez was alia, had, give adequate failed inter also The ALJ surely deported.” would report to Stokes’s vocational consideration opinion the D.C. Circuit’s persuasive found employment alternate identifying suitable Masonry, in in Rivera v. United Inc.3 Rodriguez. to take into con that court declined which review of conducting complete After undocumented immigrant’s sideration submit- and the evidence the trial record eligibility determining status when ALJ, BRB affirmed the ted to that he had explained ALJ benefits. a thresh- respects. in all As ALJ’s order in legal status Rodriguez’s not considered that undocu- matter, the BRB held old compen in computing a factor any way “as Rodriguez are such as immigrants other mented sation, considered rather [had] but (D.C.Cir.1991). rehearing, 3. 948 F.2d amended 2. 841 F.2d after 1988). (5th Cir. F.2d 498 indeed entitled to benefits under [Bollinger’s] contention that [Rodri- Citing in guez’s] LHWCA. our decision Hernan- status an illegal pre- alien dez, BRB agreed with the cludes [his] ALJ entitlement to benefits. Rodriguez was entitled to respect With the ALJ’s factual find- given Bollinger’s failure to show that Rod- ings, the BRB reviewed the evidence in riguez’s deportation was “imminent.” detail before concluding that findings Further, the BRB approved the ALJ’s re- supported by were substantial evidence in liance on the D.C. Circuit’s decision in the According BRB, record. proposition Rivera for the that “the issue “rationally ALJ had greatest accorded illegal alienage compen- does not affect weight [Rodriguez’s] description of the sation entitlement under the [LHWCA].” pain back experienced he ... along with Finally, the BRB reviewed plain lan- opinion treating of his physician, Dr. guage of the LHWCA and concluded that Hamsa, who has consistently stated that the text of the Congress’s statute reflected 22, 2003, the October back prevents provide intent coverage for undocu- [Rodriguez] from performing any work.” immigrants. mented As the BRB ex- The BRB also affirmed the ALJ’s award of plained, benefits, interest all unpaid on as well as
[t]he definition of “employ- [LHWCA’s] the district director’s attorney’s award of ee” does not differentiate between indi- Rodriguez’s counsel, fees to prior explain- viduals based on citizenship their status. ing Bollinger’s “arguments on both Rather, 902(3)] pertinent [33 U.S.C. premised issues [were] on its position that part, states that ‘employee’ “the term the administrative judge law improperly any person means engaged case, maritime awarded benefits this which we added). ...” (emphasis rejected.”4 have Additionally, while the in- definition petitions now for review of the specific cludes exceptions to the term BRB’s decision. Both Rodriguez and the “employee,” none exceptions of those Director for the Office of Workers’ Com- precludes coverage based on an individ- pensation Programs of the United States ual’s citizenship status. (“the Director”) Department of Labor have *7 Furthermore, § 909(g)] [33 U.S.C. and responses. addition, filed In several amici its implementing regulation ... state curiae, including the Project Pro Bono of that compensation paid to aliens not res- Orleans, New the New Orleans Workers’ idents, nonresidents, or about to become Justice, Center for Racial the Southern Canada, of the United or States “shall Poverty Center, Law and the National be in the same amount provided as for Employment Project, joined Law have residents,” with certain exceptions relat- the filing of a brief in support of Rodri- ing to a dependents claimant’s in a for- guez’s eligibility for benefits under the eign country provision and a allowing LHWCA. Secretary
the pay- commute future II. STANDARD OF REVIEW Thus, ments. the Act does not differen- tiate between disability compensa- reviewing a decision of the paid tion to illegal aliens paid and that to BRB, “only our function is to correct er legal residents citizens of the and/or rors of law and to determine if BRB United Consequently, reject States. we review, has adhered to its proper scope of noted, however, 4. The BRB review, also that the dis- before the Bollinger BRB on as had trict attorney's director’s award of fees to appealed not that issue. Rodriguez's prior properly counsel was not ‘wages,’ ill-gotten based on drug a dealer to the ALJ’s e., BRB deferred has i. employer telling then [and] de novo has it undertaken fact-finding or illegal enterprise for another better find for the its views substituted review and dealer, a there be found drug lest BRB differently, once ALJ’s.”5 Stated wage[-]earning capaci- loss of permanent ALJ, need of the we an order affirms style, Bol- In the same melodramatic ty.” con “correctly BRB inquire whether awarding benefits to Rod- linger compares sup order was the [ALJ’s] cluded pirate to a riguez “awarding benefits on the rec evidence by substantial ported a Mafioso.” with and is accordance as a whole ord ques all Although we review law.”6 and the Director re- Rodriguez Both novo, inter the Director’s of law de
tions undocu- spond straightforwardly entitled to the LHWCA is of pretation are immigrants Rodriguez such as mented As for find of deference.7 degree LHWCA, some to benefits under the entitled fact, acknowl repeatedly have ings of we statutory text of the relying on factfinder, ALJ, sole “is that the as edged precedent Fifth Circuit as LHWCA and credibility infer consider all entitled to for such an award. Fur- support direct among inferences selection ther, his] ences Bollinger’s [and describes at- the Director supported by if the evidence conclusive Rodriguez to a “cocaine tempts compare thief,” dealer,” “pirate,” the law.”8 and a a “car “offensive, misleading as “Mafioso” AND ANALYSIS III. LAW reality of the gross manipulation that undocumented contends Moreover, the amici several situation.” per are se Rodriguez alia, such as immigrants that, “failing inter curiae reason un- indemnity benefits to receive immi- ineligible compensation for require workers’ LHWCA, benefits such encourages employers grant der workers illegally based on obtained “would be workers.” hire undocumented that Rodri- Bollinger reasons wages.”9 language A. The wage- caused him no loss of guez’s legal he had no earning capacity because any statutory answering time he was “In at the wage-earning capacity language with the compares question, begin we Bollinger histrionically injured. terms, By express its to the statute itself.”10 “awarding benefits ruling BRB’s Vinson, views and is owed to the Director’s Shipyards, 623 F.2d deference Inc. v. 5. Avondale [Board].”). (5th 1980). the views of the n. 1 Cir. *8 OWCP, Director, Shipbuilding, 498, v. Ingalls Co., Inc. 6. 46 F.3d v. Marine Pers. Mendoza 163, (5th 1993). Cir. F.2d 165 (5th Cir.1995) (internal 991 quotation 500-01 omitted). and citation marks Ibos, v. 317 F.3d 7. New Orleans Stevedores Cir.2003). 480, (5th previ As we have 483 brief, Bollinger reply narrowed its In its of ously explained, appropriate amount somewhat, contending argument analy given to the Director’s deference to be immigrants falsify who those undocumented upon thoroughness evi depend sis "will precluded be employment documents should consideration, validity of its dent its receiving such benefits. from reasoning, consistency with earlier and its Co., Stevedoring v. Cooper/T. Inc. Smith all those factors pronouncements, and later 741, (5th Cir.2002); Liuzza, 745 see 293 F.3d power persuade ...” See id. give it which Jackson, 183, 188 City 351 F.3d (internal Smith v. quotation and citation omit marks of Cir.2003) ("The Quinones, (5th of a statute ted); construction Zachry H.B. Co. see also itself.”). Cir.2000) ("Indeed, (5th begins text of the statute with the 206 F.3d 478 872 provides compensa- workers’ and whether the alien is documented or undocumented is irrelevant.”15 “employees”
tion benefits to who are in- jured “upon navigable waters of the persuasive We also find the section of “Aliens,” (including any the LHWCA entitled adjoining United States which states that “[c]ompensation under [the dock, wharf, terminal, pier, dry building- (or LHWCA] aliens not residents way, railway, marine or other adjoining nonresidents) about to become customarily area used employer United or States Canada shall be the loading, unloading, repairing dismantling, same in provided amount as resi- vessel).”11 building The LHWCA de- Although dents:”16 the statute does not “employee” “any person fines an en- expressly define the term “alien” and gaged employment, maritime including “illegal” makes no reference to or “undoc- any longshoreman person or other en- immigrants, coverage umented” its of non- ”12 gaged in longshoring operations .... resident significant. “aliens” is Other The statute contains excep- several limited interpreted courts that have similar work- definition, tions to exception this but each ers’ statutes have concluded on an the unmodified job based individual’s term “alien” encom- description passes both documented and undocu- and makes no reference to the individual’s immigrants. mented example, For immigration status.13 Court, Supreme Minnesota in interpreting In reviewing similar federal labor and that statute, state’s workers’ compensation laws, both Supreme Court explained: and this court have concluded that language The clear of the Act does not subject laws provide coverage to undocu- distinguish between authorized and un- Sure-Tan, immigrants. mented Inc. v. authorized aliens. Following our rules NLRB, Supreme Court reviewed the statutory construction, of when the words of a language of the law are clear and National free from Labor all ambiguity, the letter of the law shall (“NLRA”) Act Relations and concluded disregarded pretext under the that, because “undocumented aliens are [pursuing] spirit. its Had the legisla- not among the few groups of ex- workers ture intended to exclude unauthorized pressly exempted by Congress [in that coverage [statute], aliens from under the statute], they plainly come within the easily so, could have done as it did ”14 broad statutory definition ‘employee.’ types with certain of farm workers who Similarly, in In Reyes, re we reviewed the explicitly are excluded from the defini- statutory language of the Fair Labor Stan- “employee,” tion of but it did not. Ap- (“FLSA”) dards Act and concluded that plying written, “aliens,” the Act as it is the statute’s use of the broad term “em- whether unauthorized, authorized or are ployees” reflected the Congress intent of employees subject and thus are apply that it alike, “citizens and aliens provisions.17 Act’s 903(a). 883, 981-82, § 11. 33 U.S.C. 14. 467 U.S. 104 S.Ct. L.Ed.2d 732 902(3) added). (emphasis 12. 33 U.S.C. (5th Cir.1987). F.2d example, 13. For the LHWCA’s definition of *9 "employee” encompass, an does e.g., not "in- added). 909(g) (emphasis § 16. 33 U.S.C. employed exclusively perform dividuals of- clerical, secretarial, security, fice or data Farms, Inc., Waymouth work,” 17. Correa v. 664 processing 902(3)(A), § 33 U.S.C. or 324, (Minn.2003). club, N.W.2d 329 employed by "individuals Several other camp, re- restaurant, museum, operation, creational courts have considered this same issue and outlet,” 902(3)(B). § retail 33 U.S.C. have reached similar conclusions. For exam-
873 earnings during prior the his statutory language of plain As the in while the United States.21 “em- the term broadly defines LHWCA that nonresident specifies and ployee” the vessel owner contended appeal, On in the to benefits are entitled “aliens” be deemed ineli- employee that the “should claimants, we are other amount as same recover lost future United States gible to Rodriguez was beyond cavil that convinced expenses medical wages and United States intendment of within the employee an present he was not entitled to be because for workers’ eligible and is thus statute in for the employed the United States benefits. compensation Rejecting of his life.”22 the ves- remainder affirmed the dis- argument, owner’s we sel precedent B. Circuit Fifth damages plain- trict court’s award of statutory text interpretation Our tiff, including expenses, future medical loss with our hold is consistent of the LHWCA earning capacity, and lost future of future The Rajaan.18 ing in Hernandez explained, primary As wages.23 M/V we was an undocu whether, in Hernandez plaintiff appeal given on was issue long- as a immigrant employed mented im- status as an undocumented plaintiffs injured during the and was shore worker decision to migrant, “the district court’s plaintiff The employment.19 of his damages wages course ... for future lost grant Sec and its owner under plaintiffs] employment sued the vessel upon [the based 5(b) U.S.C. [33 tion at the time of and for the status 905(b)], person that “a cov lengthy period preceding injury which states was clear- may bring reviewing ... the rec- ly LHWCA] under erroneous.”24 After [the ered as a third text of the against action vessel ord evidence and [the] ”20 LHWCA, court awarded we concluded that the district .... The district party Thus, although including future court had not so erred.25 damages, plaintiff in our directly address the issue based on we did wages and lost expenses medical 582, rehearing, 848 F.2d amended Economy Packing v. Illinois Work 18. 841 ple, Co. in after Commission, (5th Cir.1988). appel F.2d 498 Compensation state er’s explained: late court statute, words interpreting a undefined at 19. 841 F.2d 585. ordinary meaning. given plain are their unmodified, the term "alien” is When plaintiff had sued 20. Id. As Hernandez enough scope encompass broad tort, proceed did not to an ALJ but the case the borders of a "person who resides within by a district court. was instead decided subject of country but is not a citizen or aliens, plain meaning country.” 21. Id. therefore, foreign-born includes not legally in the United citizens that can work Id. at 588. States, that cannot. Had the but also those otherwise, legislature it could intended did, however, Id. We reduce some of or modified it with have defined the term damages For exam- as excessive. individual Consequently, we specific language. more award of ple, we ruled that the district court’s in the service of conclude that all aliens $800,000 wages was than in lost future more hire, pursuant a contract another excessive, and, reviewing evi- after the record status, regardless are of their testimony, we reduced dence and the "employees” the mean- within considered $190,296. amount law, and, ing Illinois are of the Act under to receive workers' entitled Id. benefits. Ill.App.3d 327 Ill.Dec. Id. N.E.2d *10 874 proposi- policy immigration Congress stands for the of law.”28
opinion, Hernandez immigrants are tion that undocumented on employer.29 thus focused foremost workers’ eligible to recover IRCA, employers verify Under the must benefits LHWCA.26 under the eligibility of all identity new hires by examining specified documents before Immigration C. The Control Reform each work.30 If employee begins pro- Act 1986 of spective produce new hire is unable to Undeterred, Bollinger insists that documentation, required the employer may analysis must not end our with either we Employers not hire the individual.31 that of statutory the LHWCA or our text are punished by violate the IRCA civil issue, precedential on this decisions but subject may fines and to criminal prose- interpret that we must now LHWCA cution.32 light Immigration of the Reform and does make it a IRCA crime (“the IRCA”), Control Act of a “com 1986 immigrant for an undocumented to subvert prehensive prohibiting employ scheme employer-verification system this by ten illegal ment of aliens in the United dering false or fraudulent documents for According to Bollinger, regard States.”27 obtaining purposes employment of in the less whether text of the Specifically, United States.33 the IRCA supports LHWCA or our precedent subjects Rodriguez, any award of such an individual who uses or at benefits award would undermine tempts to use such documents to fines and policies expressed by Congress in the prosecution, providing nothing criminal agree IRCA. we with Although Bolling regarding civil effects.34 More to the premise thorough er’s basic that a review point, the parties dispute do that Rod prudent, disagree IRCA is we riguez IRCA when prof violated the he ruling any way the BRB’s undermines fered a Security false Social number to congressional policies embedded in the obtain with Bollinger. Rath IRCA. er, question is whether that violation precludes eligibility to receive IRCA, workers’ enacting
In
Con
gress
compensation benefits under the
“forcefully
combating
made
the em
LHWCA.
ployment
illegal
aliens central
To
question,
answer this
we must consider
Compounds,
contends
is dis-
27. See
Plastic
Inc. v.
Hernandez
Hoffman
137, 147,
NLRB,
tinguishable from the instant case because the
U.S.
S.Ct.
primary
issue in
was whether the
L.Ed.2d 271
Hernandez
residency”
claimant’s
"continuous
in the
(internal
qualified
United
quotation
States
him to receive
Id.
marks and citation
omitted).
Bollinger’s
argument,
LHWCA benefits.
however,
portion
is based
on
Hernandez
("Unlawful
rehearing.
employ-
§
was later withdrawn on
29. See 8 U.S.C.
See
1324a
(5th
aliens”).
Rajaan,
ment of
875
another,
it
much to de-
is not too
Supreme
the
framework of
in the
it
it
body
an administrative
Plastic Com-
mand of
decision
Court’s
Hoffman
NLRB,
this accommodation without
recent in a line
undertake
the most
pounds
emphasis on its immediate
excessive
reviewing backpay-reinstatement
of cases
Relations
the National Labor
by
orders
task.38
(“NLRB”)
are in tension with
Board
In
next decision in the
line
Hoffman
other federal
Sure-Tan,
NLRB,
Inc. v.
cases,
laws.35
of
providing
an NLRB order
is Court reviewed
of cases of which
The line
Hoffman
backpay
workers with
traced back to undocumented
most recent can be
NLRB,
Co. v.
employer’s
in which the
their
labor-law
Southern S.S.
violation.39
Sure-Tan,
several undocumented workers
II-era Court
reviewed
War
World
union,
to form a
and their
reinstating several seamen had elected
order
NLRB
by reporting them to
employer
while
retaliated
engaged in a labor strike
who had
voy-
immigrants
authorities as undocumented
midway through its
their vessel was
S.S.,
having them
The issue
In Southern
the Court con-
age.36
deported.40
whether, assuming
committed before the Court was
the seamen had
cluded that
had committed a labor viola-
employer
of the criminal
in direct violation
mutiny
tion,
were
employees
the undocumented
explained,
As the Court
code.37
backpay
period during
for the
eligible
rein-
difficulty with the [NLRB’s
[t]he
they
which
had been deported.41
ignores
is
order]
statement
mandate that a re-
Congressional
plain
analysis by
its
confirm-
began
The Court
their officers
against
seamen
bellion
immigrants
that undocumented
are
ing
within the
anywhere
a vessel
on board
within the intendment of the
“employees”
jurisdiction
maritime
of
admiralty and
protec-
to its
NLRA and are thus entitled
punished
to be
States is
United
explained, how-
tions.42 As the Court also
is to be
mutiny.
If
this mandate
ever,
unfair
devising remedies for
“[i]n
changed by Con-
changed, it must be
obliged
practices,
[NLRB]
labor
....
the Courts
gress and
equally impor-
into account another
take
wit,
objective
Congressional
tant
Board has not been commissioned
—to
immi-
objective
deterring unauthorized
of the Labor
of
policies
to effectuate
[Immigra-
in the
gration
that it
that is embodied
single-mindedly
Act
Relations
so
Nationality Act
Con-
tion and
ignore
equally
other and
may wholly
(TNA’)].”43
backpay award would
objectives.
cluding that
Congressional
important
policies
scope Congres-
have undermined
Frequently the entire
INA,
by Congress in the
expressed
accom-
purpose calls for careful
sional
Al-
vacated the NLRB’s order.44
statutory
of one
scheme
Court
modation
1275,
137, 138,
41.
Id.
122 S.Ct.
152
35. 535 U.S.
(2002).
271
L.Ed.2d
891-92,
("Since un-
42.
Id. at
though acknowledging
issue before
as whether
“[t]he
vailability of the
more effective
[NLRA’s]
the
by
NLRB had exceeded its discretion
workings
light
practical
remedies in
of the
awarding backpay
illegal
“to an
alien for
laws,”
immigration
the
ex-
Court
years
performed,
wages
of work not
plained
“[a]ny perceived
that
deficiencies
earned,
that
lawfully
could not
have been
in
existing
the NLRA’s
remedial arsenal
job
and for a
obtained in the first instance
by
can only
congressional
be addressed
fraud,”
aby
criminal
the Court in Hoff-
action.”45
man vacated the NLRB’s
The
order.51
recent
in this line
most
decision
began
analysis by summarizing
Court
its
Compounds,
cases
Inc.
is
Plastic
prior
its
decisions in Southern S.S. and
Hoffman
NLRB,
in which the Court held that Sure-Tan,
explaining that
those cases
immigration policy,
expressed
federal
that,
proposition
stand for the
“where the
IRCA,
in
Congress
precluded
the
remedy
upon
chosen
trenches
[NLRB’s]
awarding
an un-
backpay
NLRB from
to
federal
statute or policy outside the
immigrant
documented
who had never
administer,
competence
Board’s
to
legally
been
in
authorized
work
remedy may
required
Board’s
Sure-Tan,
United States.46 As in
the em- yield.”52 The Court then highlighted an
ployer
employee
had fired an
Hoffman
important
development
federal law that
for attempting
organize
a union—a clear
post-Sure-Tan:
had occurred
Congress’s
Among
violation of the NLRA.47
other
passage of the IRCA.53 As the Court not-
remedies, the NLRB ordered that the em-
ed,
regime,
impos-
“[u]nder
IRCA
it is
ployer
employee
offer the
reinstatement
sible for an undocumented alien to obtain
with
At
backpay.48
subsequent hearing
employment in the United States without
however,
ALJ,
employee
before the
party directly
some
contravening explicit
testified
he was an undocumented im-
congressional policies.”54 According to the
migrant
he had used fraudulent
Court, the NLRB’s order ran “counter to
employment.49
documents to obtain
Con-
IRCA,
policies underlying
policies
cluding that “the
way
most effective
Board
authority
has no
to enforce or ad-
accommodate and further the immigration
minister.”55
explained:
The Court
policies embodied in
pro-
[the
is to
IRCA]
What matters
...
Congress
here
is that
protections
vide the
and remedies of the
expressly
criminally
has
made it
punish-
to undocumented
[NLRA]
workers
able for an alien to obtain employees,”
same manner as to other
with false documents. There
no
rea-
NLRB ordered the employer
provide
son to think
Congress
employee
nonetheless
backpay
with
from the date
intended
permit backpay
of his termination to
the date the
where but
employer
first
learned of the
for an
employee’s
employer’s
undocu-
unfair
practices,
labor
mented status.50
an alien-employee would have remained
904,
152,
45.
Id. at
46. 535 U.S.
122 S.Ct.
147,
52.
Id. at
in the United (3) employee; all the while award- illegally, employer or to work tinued evading apprehension disability post benefits hoc to successfully ing death or authorities---- immigrant under an undocumented “unduly upon” trench that had the INS does admits The Board *13 IRCA, em- Congress or had chose to include employee], [the the as [the detained to departed the law and obeyed expressly autho- ployee] in the LHWCA provision to Mexico, right lost his would have “in [he] of benefits the same rizing the award qualifies thus employee] backpay. [The aliens. amount” to nonresident remaining only by Board’s award for the illegally. Simi- the compensation the United States 1. under
inside
Workers’
mitigate
cannot
employee]
non-discretionary
larly,
is a
[the
LHWCA
require, with-
duty
our cases
damages,
remedy
violations, ei-
IRCA
triggering new
out
in
decision
As the Court’s
Hoffman
to
tendering false documents
ther
clear, backpay under the NLRA is
makes
finding employers will-
byor
employers
discretionary reme-
merely one of several
illegal
hire
IRCA and
ing
ignore
addressing
NLRB in
dies available to the
Board here has failed
workers.
backpay,
In
violations.57
addition
labor
tension.
consider this
even
authority
NLRB has
order several
the
allowing
the
conclude
therefore
We
to ef-
“traditional remedies sufficient
other
aliens
backpay
illegal
Board to award
regardless of
policy
national labor
fectuate
statu-
unduly
upon explicit
trench
would
catalyst
backpay
spur
the
whether
immi-
critical to federal
tory prohibitions
example,
For
the
accompanies them.”58
in
expressed
as
IRCA.
gration policy,
concluded that
the
Court
Hoffman
the successful eva-
encourage
It would
remedies,
re-
e.g.,
other available
NLRB’s
immigration au-
apprehension
sion of
employer
post appropriate
the
quiring
thorities,
prior violations
condone
have effec-
workplace,
notices in the
would
laws,
encourage future
of the NLRA
tively promoted
goals
broad the Board’s
violations. However
unduly trenching
policy
on the
without
when
fashion remedies
discretion to
goals set forth
the IRCA.59
NLRA, it
not so
is
dealing
with
this sort of an
as to authorize
contrast,
unbounded
awarding
workers’
award.56
benefits under
LHWCA
compensation
Indeed,
non-discretionary remedy.
ais
interpreta-
the Director’s
Agreeing with
of the LHWCA
plain
text
case, we
in the instant
of the LHWCA
tion
“compensation
mandatorily states
line of cases is
that the
conclude
Hoffman
chapter
this
payable
under
shall
signifi-
least three
distinguishable for at
disability
employe
death of an
respect of
(1)
discretionary
Unlike
cant
reasons:
NLRA,
LHWCA, unlike the
e.”60 The
NLRA,
com-
workers’
backpay under
or alterna
optional
not contain
does
a non-
under
LHWCA
pensation
fulfill
(2)
that could otherwise
tive remedies
unlike
statutory remedy;
discretionary,
purpose.
NLRA,
the statute’s
is a substitute
the LHWCA
149-52,
(internal
Id.
58.
Id. at
122 S.Ct.
omitted).
citations
quotation marks and
Id.
S.Ct. 1275.
Id. at
added).
903(a) (emphasis
33 U.S.C.
precisely
2. The LHWCA was enacted as a sub-
fied as
early
possi-
and as
as
ble.64
stitute
tort claims
As we have previously held in
NLRA,
Unlike
but
like Hernandez that an
immi
undocumented
statutes,
most workers’ compensation
grant employed
a longshoreman
has the
remedial scheme is a substitute
LHWCA’s
right
to sue a vessel owner in tort for
injured
for the tort
that an
employ
negligence,
claims
it follows that Rodriguez must
viz.,
have the corresponding right,
ee
bring against
could otherwise
his em
right
to recover
workers’
Indeed,
ployer.
specifies
LHWCA
Indeed,
benefits under the LHWCA.65
employer’s liability
that an
under the stat
remedy provided by the
is mere
ute is “exclusive and in place of all other
ly a
negligence
substitute for the
claim
liability
employer
employee
of such
*14
employee
that an
bring
could otherwise
”61 Only
...
if the employer “fails to se
against
employer
his
in tort. As one court
payment
compensation” may
cure
of
an
observed,
has
“it would
illogi
not
be
eligible employee “maintain an
at
action
cal
but would also serve no discernable
admiralty
law or
in
for damages.”62 purpose to accord illegal
right
aliens the
to
bring affirmative
in
person
claims
tort for
Therefore,
quid
under the
pro quo of the
al
deny
but
them
right
pur
the
LHWCA,
employee
an
eligible
who is
for
substitutionary
sue the
remedy
person
for
stripped
right
benefits is
of his
“at
sue
injuries
al
sustained in
workplace.”66
the
admiralty”
law or in
in exchange
gain
case,
In closely analogous
a
of
Court
certain,
ing
limited,
“a
but
recovery under
Appeals of New York held that a minor
a strict
liability regime.”63 As the Su
employee who had lied
age
about his
preme
explained,
Court has
employment
obtain
could not sue his em
ployer in tort because the employee
represents
the LHWCA
a compromise
—de
spite his illegal act in falsifying
age—
competing
between the
interests of dis-
was covered
that state’s workers’ com
abled laborers and their employers.
statute,
pensation
which contained an ex
The use of a schedule of fixed benefits
clusivity provision protecting
employer
as an
remedy
exclusive
in certain cases
liability
from
in tort.67 This venerable
is
employees’
consistent with the
inter-
holding
unchanged
remains
particu
and is
est in receiving
prompt
and certain
larly
today:
relevant
Supreme
As the
recovery for their
injuries
industrial
noted,
Court has
largely
LHWCA was
well as with
employers’
interest
patterned on New York’s workers’ com
having their contingent
pensation
Thus,
liabilities identi-
statute.68
in Mellen v.
905(a).
61. 33 U.S.C.
quid
Given that the LHWCA
pro
embodies a
quo,
question
-wealso
whether undocumented
62. Id.
immigrants
eligible
for benefits would be
bound
exclusivity provision.
LHWCA's
1323,
Taylor Bunge Corp.,
v.
845 F.2d
1326
(5th Cir.1988).
Bros.,
Vogel
See Noreen v. William
&
231
317, 319-22,
(1921).
N.Y.
ing as
parallel
There is no
tension
large-
Basing
analysis
its
in tort.69
ployer
case, however,
instant
because
interpretations of
York courts’
ly on New
required
claimants are not
LHWCA
statute,
compensation
that state’s workers’
damages by working.
their
Rath
mitigate
that the minor—
in Mellen held
the court
er,
provides
employ
that an
the LHWCA
child labor laws
despite having subverted
may
reduced if
ee’s
rate
under
covered
to obtain
—was
can demonstrate that
employer
subject
thus
and was
LHWCA
physically capable
returning
employee
barring
exclusivity provision
LHWCA’s
Moreover,
LHWCA, by
work.
its
in tort.70
proceeding
him from
terms,
express
require
does not
claimants
expressly provides
S. The LHWCA
Indeed,
to remain
the United States75
to nonresident
the award
specifies
that nonresident
of benefits
aliens
aliens who are
to become
aliens and
about
compen
“shall be” entitled to
nonresidents
importantly,
Finally,
perhaps
most
*15
provided
in the same amount as
sation
to an undocumented
awarding benefits
Thus, Rodriguez’s eligibility
residents.76
ap-
the LHWCA does
under
worker
way
in
contingent
receive benefits is
no
upon
statu-
“unduly
explicit
trench
pear to
continuing
on his
to violate the IRCA
immi-
to federal
critical
tory prohibitions
evade
authorities. Neither is
This is because the
gration policy.”71
Rodriguez being
past
“rewarded” for a
for the award
expressly provides
IRCA,
compen
as workers’
violation of
In
to nonresident aliens.72
of benefits
backpay,
compensation
is not
but
sation
particularly
noted as
Hoffman,
Court
injury incurred.
for an
the NLRB’s award of back-
troubling that
immigration policy
pay undermined federal
sum,
having
reviewed the
rewarding—
encouraging
even
by
—and
LHWCA, our
deci-
precedential
text of the
The
violations of the IRCA.73
continued
Hernandez,
Supreme
in
and the
sion
in
backpay
critical of the
award
Court was
Hoffman,
decision in
we are
Court’s recent
employee in that case
part because the
Rodriguez
eligible
is
to re-
convinced
“only by remaining
qualified for the award
under the LHWCA.
ceive benefits
The
illegally.”
States
inside
United
was
employee
also noted that
Court
findings
D. The ALJ’s factual
required
mitigate
damages
his
unable to
that,
if
urges
next
even
IRCA vio-
by
“triggering
without
new
law
eligible
to receive workers’
lations,
by tendering
Rodriguez
false docu-
either
72.
at
Rajaan, (5th Cir.1988). 848 F.2d then, deported” since “about to be There we stated: surely “would deported,” whether, question meaningful
“The here is makes no given contention otherwise. bound Hernandez. Accordingly, we are alien, illegal Hernandez’s status as an I would leave it at that. the district grant court’s decision to damages to Hernandez for future lost
wages upon based sta- at
tus the time of and for the
lengthy period preceding injury was Director, Co., Inc., Ingalls Shipbuilding, Inc. v. v. Marine Pers. 46 F.3d Mendoza 498 , OWCP, (5th Cir.1995) (internal (5th Cir.1993). quotation F.2d 500-01 omitted). marks and citations