DAVID SICKLE AND MATTHEW W. ELLIOTT, APPELLANTS v. TORRES ADVANCED ENTERPRISE SOLUTIONS, LLC, ALSO KNOWN AS TORRES AES, LLC AND SCOTT TORRES, APPELLEES
No. 14-7009
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 16, 2016 Decided March 9, 2018
Appeal from the United States District Court for the District of Columbia (No. 1:11-cv-02224)
Scott J. Bloch argued the cause and filed the briefs for appellants.
Rachel Hirsch argued the cause for appellees. With her on the brief was A. Jeff Ifrah.
Before: ROGERS, SRINIVASAN, and MILLETT, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT,
I
A
Congress enacted the Defense Base Act (“Base Act“),
In addition to providing a comprehensive compensation scheme for workplace injuries, the Base Act, via the Longshore Act, expressly prohibits retaliation against those who seek the statutorily authorized benefits.
The Longshore Act contains a somewhat differently worded exclusivity provision, directing that “[t]he liability of an employer * * * shall be exclusive and in place of all other liability of such employer to the employee * * * on account of such injury or death.”
B
This dispute started at Forward Operating Base Shield in Baghdad, Iraq. In 2010, both Matthew Elliott and David Sickle worked as subcontractors for Torres Advanced Enterprise Solutions (“Torres Solutions“), a military defense contractor providing security assistance to the United States Department of Defense and Department of State. Elliott worked as a kennel master for Torres Solutions, overseeing the base‘s canine unit. Sickle worked on site as a base medic. Both Sickle‘s and Elliott‘s employment contracts required Torres Solutions to provide twenty-eight days’ notice in the event of а termination without cause. Alternatively, the agreements permitted either side to sever the contract for cause if, after thirty days’ written notice, “the [c]ause remain[ed] uncured.” J.A. 122, 133.1
On March 15, 2010, both Elliott and Sickle found themselves on “sandbag duty” in the kennel area. After lifting several heavy sandbags, Elliott felt a pop in his back followed by a sharp radicular pain running down his leg. Sickle, as the resident medic, examined Elliott and diagnosed his injury as a disc herniation. After that initial examination, Elliott resumed his duties as kennel master. But continuing pain sent him back to Sickle for care twice more in April. On both occasions, Sickle provided temporary treatment, but recommended that Elliott return to the United States for more advanced medical care. At the end of April, Elliott took Sickle‘s advice and returned to the United States to obtain further treatment for his back. Elliott was hopeful that he would be able to return to the base in mid-May to complete his contract assignment.
That hope was dashed after Torres Solutions learned that Elliott was seeking workers’ compensation benefits under the Base Act for his back injury. On May 9th, one week before his planned return to the base, Elliott received an email from Scott Torres, the principal and owner of Torres Solutions, informing him that he was no longer needed as base kennel master and, for that reason, would not be permitted to complete his contract term. That termination decision was made without affording
Newly terminated, Elliott sought the continued payment of workers’ compensation benefits under the Base Act, but his claim was rejected. On May 12, 2010, Elliott received a fax containing an undated medical note drafted by Sickle that described Elliott‘s injuries, Sickle‘s efforts at on-site treatment, and Sickle‘s recommеndation that Elliott receive an MRI as soon as possible. Armed with that evidence and a lawyer, Elliott successfully obtained benefits under the Base Act and underwent spinal surgery in July 2010. According to Elliott, Torres Solutions represented to its insurance representatives that Elliott had falsified his benefits claim, and that was why the company had terminated his contract.
Meanwhile, on June 1, 2010, Matthew Sickle signed an additional one-year contract with Torres Solutions to continue his work as a base medic. According to Sickle, soon after signing this agreement, Torres Solutions’ affiliates began to “threaten and intimidate” him, insisting that hе recant his support for Elliott‘s workers’ compensation claim. J.A. 128. Sickle refused, and Scott Torres sent him home for thirty days to “think things over.” J.A. 19. When Sickle stuck to his guns, Torres Solutions terminated Sickle‘s contract. Like Elliott, Sickle‘s termination was abrupt, taking immediate effect without the contractually required thirty-day warning.
C
Elliott and Sickle jointly filed suit against both Scott Torres, individually, and Torres Solutions (collectively, “Torres“). Their amended complaint alleged that Torres had improperly discharged them in retaliation for Elliott‘s workers’ compensation claim. They asserted: (1) discrimination and retaliatory discharge in violation of the Longshore Act,
Torres moved to dismiss under
The district court bypassed the question of personal jurisdiction and granted Torres‘s motion to dismiss for failure to state a claim. Sickle v. Torres Advanced Enter. Sols., LLC, 17 F. Supp. 3d 10, 26-27 (D.D.C. 2013). The court agreed that Elliott and Sickle had failed to exhaust their administrative remedies under the Base Act. Id. at 20 (quoting
The parties have now returned, asking this court to decide whether the Base Act preempts Elliott‘s and Sickle‘s common-law tort and contract claims.
II
We pause at the outset to address Scott Torres‘s assertion that the district court lacked personal jurisdiction over him because he lacks the requisite minimum contacts with the District of Columbia. Unlike subject matter jurisdiction, personal jurisdiction is a personal defense that can be waived or forfeited. Insurance. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982). At least for purposes of this appeal, Scott Torres has deliberately chosen not to brief or argue the question of personal jurisdiction, stating instead that the personal jurisdiction “issue is not presently on appeal.” Torres Br. 1. Accordingly, for purposes of this appeal, this court has personal jurisdiction over Scott Torres. See Gilmore v. Palestinian Interim Self-Gov‘t Auth., 843 F.3d 958, 964-965 (D.C. Cir. 2016) (failure to assert a personal jurisdiction defense waives the objection); see generally CTS Corp. v. EPA, 759 F.3d 52, 61 (D.C. Cir. 2014) (argument forfeited where party made only “oblique” and “conclusory” statements in its opening brief).
III
Torres argues that the Base Act preempts both Elliott‘s and Sickle‘s common-law tort and contract claims. Torres is partly right. Elliott‘s tort claims are squarely foreclosed because they arise directly out of his own application for workers’ compensation benefits. But Elliott‘s contract claim turns on Torres‘s failure to provide the promised notice before termination for any cause and thus exists independently of the workers’ compensation benefit process. As for Sickle, none of his contract or tort claims is preemрted because each is divorced from any claim for benefits. Accordingly, we reverse the district court‘s dismissal of Elliott‘s contract claim and of all of Sickle‘s tort and contract claims, and we remand to the district court for further proceedings.
A
We review de novo a district court‘s dismissal of a complaint under
A
We note that, in dismissing the case, the district court was uncertain whether preemption under the Base Act and Longshore Act is a jurisdictional or merits-based barrier to Elliott‘s and Sickle‘s claims. Sickle, 17 F. Supp. 3d. at 15-16. To eliminate any further confusion in this area, we hold that preemption under the Base Act and Longshore Act is not jurisdictional. Rather, preemption forecloses a plaintiff from stating a legally cognizable claim for recovery. Preemption ordinarily is an affirmative defense forfeitable by the party entitled to its benefit. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987) (“Federal pre-emption is ordinarily a federal defense to the plaintiff‘s suit.“);
Preemption under the Base Act and Longshore Act speaks to the legal viability of a plаintiffs claim, not the power of the court to act. See Fisher v. Halliburton, 667 F.3d 602, 609 (5th Cir. 2012) (“[T]he applicability of the [Base Act‘s] exclusivity provision, like the applicability of the [Longshore Act‘s] exclusivity provision, presents an issue of preemption, not jurisdiction. Federal preemption is an affirmative defense that a defendant must plead and prove” and is properly addressed under
Notably, neither the Base Act nor the Longshore Act contains any indicia that Congress intended their exclusivity provisions to have jurisdictional force.
B
1
The decision whether a federal law should preempt or operate alongside state law is Congress‘s to make. As a result, congressional purpose is “the ultimate touchstone in every pre-emption case.” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). The starting assumption, moreover, is that federal law does not override “the historic police powers of thе States,” absent the “clear and manifest” intent of Congress. Arizona v. United States, 567 U.S. 387, 400 (2012) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)).
Congress‘s preemption of state law can take two forms: express or implied. See Geier v. American Honda Motor Co., 529 U.S. 861, 884 (2000). Express preemption arises when the federal statute itself announces its displacement of state law through “an express preemption provision.” Arizona, 567 U.S. at 399.
Implied preemption supplants state law not through an explicit statutory provision, but through the substantive nature and reach of the federal regulatory scheme that Congress adopts. See Crosby v. National Foreign Trade Council, 530 U.S. 363, 388 (2000) (“Because the state Act‘s provisions conflict with Congress‘s specific delegation to the President of flexible discretion” in managing the United States’ relations with Burma, Massachusetts’ law regulating state commerce with Burma “is preempted, and its application is unconstitutional, under the Supremacy Clause.“). Both field and conflict preemption are forms of implied preemption. See Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1595 (2015) (“[E]ven where, as here, a statute does not refer expressly to pre-emption, Congress may implicitly pre-empt a state law, rule, or other state action * * * either through ‘field’ pre-emption or ‘conflict’ pre-emption.“); Waterview Mgmt. Co. v. Federal Deposit Ins. Corp., 105 F.3d 696, 700 (D.C. Cir. 1997) (distinguishing between express, field, and conflict preemption).
Field preemption will be found where “a framework of regulation” is “so pervasive” that it leaves no space for state supplementation, or where the federal interest is “so dominant” that the existence of a federal scheme can “be assumed to preclude enforcement of state laws on the same subject.” Arizona, 567 U.S. at 399 (comprehensive federal regime for alien registration preempts state regulation) (citation omitted); Boyle v. United Techs. Corp., 487 U.S. 500, 504-505 (1988) (procurement of military equipment is an area of “uniquely federal interest” that preempts state regulation). Field preemption thus forecloses state regulatiоn altogether in an area of law, such as alien deportation or nuclear safety regulation, irrespective of a state law‘s compatibility with the federal regime. See Oneok, 135 S. Ct. at 1595.
By contrast, conflict preemption—true to its name—exists when the operation of federal and state law clash in a way that makes “compliance with both state and federal law * * * impossible,” or when “state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.‘” Oneok, 135 S. Ct. at 1595 (quoting California v. ARC America Corp., 490 U.S. 93, 100 (1989)).
2
Applying those preemption principles here, we hold that the Bаse Act does not expressly preempt Sickle‘s or Elliott‘s tort or contract claims. The Act provides only that its workers’ compensation benefit scheme “shall be exclusive and in place of all other liability of” employers and contractors to “employees (and their dependents) coming within the purview of this chapter, under the work[ers‘] compensation law of any State, Territory, or other jurisdiction.”
Our textual analysis cannot stop there, however, because Brink held that the Base Act also incorporates the exclusivity provision of the Longshore Act. Brink, 787 F.3d at 1125. That statute provides that the liability of covered employers “prescribed in section 904 * * * shall be exclusive and in place of all other liability of such employer to the employee” for the “recover[y] [of] damages from such employer at law or in admiralty on account of such injury or death.”
While the Longshore Act‘s exclusivity provision is broader than the Base Act‘s, it still is not broad enough to expressly foreclose the tort and contract claims at issue here. That is because the Longshore Act makes exclusive an employer‘s liability as “prescribed in section 904” of the Longshore Act.
But Elliott‘s and Sickle‘s contract and tort claims do not seek to impose additional or further liability on Torres for medical
3
Implied preemption is a different story. This time we are not writing on a clean slate: This court has already held that the Longshore Act‘s exclusivity provision impliedly precludes “common-law tort remedies against employers for work-related injuries.” Hall v. C&P Tel. Co., 809 F.2d 924, 926 (D.C. Cir. 1987). Hall explained that the Longshore Act established a ”comprehensive scheme for compensating employeеs who are injured or killed in the course of employment.” Id. (emphasis in original). Under the statute, “employees relinquish” any common-law tort claims in exchange for “the guarantee of a practical and expeditious statutory remedy” for their workplace injuries. Id. To allow separate common-law actions, we concluded, would unravel the calibrated compromise that Congress wove. Id.
Then in Brink, we held that the Base Act embodies the same type of “legislated compromise“—a “quid pro quo” surrender of tort claims arising out of workplace injuries in exchange for an expeditious statutory remedy. 787 F.3d at 1125 (internal quotation marks omitted). Accordingly, we held that the Base Act‘s exclusivity provision impliedly preempted state tort claims of conspiracy, bad faith, outrage, and wrongful death because those claims were “directly relate[d] to [the plaintiffs‘] claims for Base Act benefits.” Id.
Implied preemption has its limits, however. As Brink noted, the Act does “not preclude [individuals] from pursuing claims that arise independently of a statutory entitlement to benefits, such as a common-law assault claim,” or a “breach of contract” claim “based on a separate agreement to make payments * * * to provide care.” 787 F.3d at 1126 (citations omitted).
Under Brink and Hall, Elliott‘s tort claims are foreclosed because they would undo the legislated quid pro quo under which a benefits claimant like Elliott exchanges common-law tort litigation for the ease of expeditious and predictable recovery of the Base Act‘s statutory benefits. Elliott‘s tort claims relate to and arise directly out of his entitlement to and recovery of statutory workers’ compensation benefits. His retaliatory discharge, conspiracy, and prima facie tort claims all address the same conduct: Torres‘s allegedly unlawful discharge of him in retaliation for filing a Base Act benefits claim. Part of the lеgislated compromise, however, is that the Base Act provides its own remedy for claims that an employer retaliated “because such employee has claimed or attempted to claim compensation from such employer.”
Elliott objects that the Base Act‘s statutory remedies fall short because he is no longer “capable of performing” his pre-existing duties, which is a prerequisite for back-pay under the Act.
Elliott also argues that implied preemption does not apply to “intentional” torts. Not so. Brink specifically held that the Base Act‘s preemptive bar “clearly encompasses intentional tort claims of the kind alleged” in this action. 787 F.3d at 1124, 1126.
The preemption answer is different for Sickle. Unlike Elliott, Sickle‘s tort claims arise “independently of an entitlement to benefits” under the Base Act. Brink, 787 F.3d at 1126. Sickle was never physically injured on the job; he never had a Base Act claim to pursue; he neither sought nor obtained benefits under the Act; and he claims no “entitlement to benefits” under the statute. Id.
Neither does the Base Act‘s retaliation provision apply to Sickle. The Act only speaks to retaliation against an employee “because he has testified or is about to testify in a proceeding under this chapter.”
Torres argues that Sickle‘s filing of a medical report amоunts to testimony “in a proceeding,” for purposes of the retaliation provision. That wrenches the language of Section 948a out of context and strains its ordinary meaning. The statute speaks of testimony ”in a proceeding under this chapter.”
Common sense confirms the point. One would not reasonably think, for example, that a paramedic filling out paperwork in an ambulance or a doctor taking notes in a medical office is participating in an administrative “proceeding.” See generally BLACK‘S LAW DICTIONARY (8th ed. 1979) (defining “testimony” as “evidence given under oath or affirmation; as distinguished from evidence derived from writings, and other sources,” and defining “proceeding” as “the form and manner of conducting juridical business before a court or judicial officer“); THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (New College ed. 1976) (defining “testify” as “[t]o make a declaration of truth or fact under
In short, unlike Elliott, Sickle has not asserted any claim for or entitlement to workers’ compensation benefits, and he has not participated in or been aided by the “legislated compromise” that the Base Act effectuates. Brink, 787 F.3d at 1124; see also Washington Metro. Area Transit Auth. v. Johnson, 467 U.S. 925, 931 (1984). Accordingly, for all relevant intents and purposes, Sickle stands outside of the Base Act‘s benefits scheme, and his tort claims are untouched by the Act‘s preemptive reach.
Finally, the Base Act does not preempt either Elliott‘s or Sickle‘s contract claims. Brink recognized that claims of contractual liability that exist independently of a claim for benefits are not foreclosed. 787 F.3d at 1126. The only issue raised by the contract claims is whether Torres provided the required advance notice of termination, and resolution of that specific question has no bearing on either Elliott‘s or Sickle‘s entitlement to or recovery of workers’ compensation benefits under the Base Act. Instead, that contract claim rises оr falls on the language of the contract, which is completely untethered to Base Act eligibility. Put another way, the question of whether Torres provided the contractually required notice prior to terminating Elliott and Sickle has nothing to do with Elliott‘s receipt of benefits under the Base Act.
*****
The touchstone for implied preemption under the Base Act is a claim‘s nexus to the statutory benefits scheme. Because Elliott sought and obtained workers’ compensation under the Base Act, his tort claims arising from that benefits process are preempted, but his independent claim of contractual injury is nоt. Sickle, for his part, never set foot into the Base Act‘s regulatory arena, so both his tort and contract claims can proceed. Accordingly, we affirm the district court‘s dismissal of Elliott‘s tort claims (Counts III and IV of the Amended Complaint), but reverse as to Sickle‘s tort claims (Count III and IV of the Amended Complaint) and as to both Elliott‘s and Sickle‘s remaining contract claims (Count II of the Amended Complaint), and remand to the district court for further proceedings consistent with this decision.
So ordered.