Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA )
DAVID SICKLE, et. al. , )
)
Plaintiffs, )
) v. ) Civil No. 11-cv-2224 (KBJ)
)
TORRES ADVANCED ENTERPRISE )
SOLUTIONS, LLC, et. al. , )
)
Defendants. )
) MEMORANDUM OPINION
Plaintiffs David Sickle and Matthew Elliot (“Plaintiffs”) are former military sub- contractors for Torres Advanced Enterprise Solutions, LLC (“Torres AES”). Plaintiffs maintain that Torres AES—acting through one of the principals, Scott Torres— improperly discharged them in retaliation for Elliot’s having lodged a workers’ compensation claim after he suffered a back injury while on the job. Plaintiffs have brought the instant action against Defendants Torres AES and Scott Torres (“Defendants”), alleging retaliatory discharge for Elliot’s having sought workers’ compensation benefits under the Defense Base Act (“DBA”), in violation of 33 U.S.C. § 948a, and also claiming several tort and contract breaches in violation of common law. (First Amended Compl. (“Am. Compl.”), ECF No. 7, ¶ 1.)
Before this Court at present is Defendants’ motion to dismiss the complaint for failure to state a claim upon which relief can be granted under Rule 12(b)(6). (Defs.’ *2 Mot. to Dismiss First Amended Compl. (“Defs.’ Mot.”), ECF No. 10, at 1.) [1] Defendants’ motion to dismiss is primarily predicated on the argument that Plaintiffs’ federal action is procedurally improper because the DBA and the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), on which the DBA is based, establish the exclusive remedy for Plaintiffs’ alleged injuries. The Court agrees, and for the specific reasons discussed below, Defendants’ motion to dismiss the amended complaint is GRANTED . A separate order consistent with this opinion will follow.
I. BACKGROUND
A. Facts Alleged In The Complaint
Torres AES is a military defense contractor that contracts with the Department of Defense, the Department of State, and Saber Security International (another defense contractor) to provide security and other services at United States installations abroad. (Am. Compl. ¶ 4.) Sickle and Elliot are both sub-contractors who worked for Torres AES at Forward Operating Base Shield (“FOB Shield”) in Iraq during 2010. ( Id. ¶ 7-8.) Torres AES first hired Sickle as a medic at FOB Shield in February 2009, and it executed a new, one-year contract with Sickle on June 1, 2010. ( Id. ¶ 7.) Torres AES contracted with Elliot to work at FOB Shield as a kennel master, managing trained dogs used for explosive detection; this employment contract commenced on February 16, 2010, and was effective through December 31, 2010. ( Id. ¶¶ 8-9.)
On March 15, 2010, approximately one month after beginning work at FOB Shield, Elliot injured his back while on base. ( Id . ¶ 10-11.) According to the amended *3 complaint, Elliot was asked to help place sandbags on the base, and he suffered what was later thought to be a herniated disc after handling and stacking nearly 400 sandbags that were approximately 60 pounds each. ( Id. ¶ 10.) As the Medical Officer that Torres AES employed on base, Sickle examined Elliot’s back injury, treated him with pain medication, and recommended that Elliot obtain further medical treatment in the United States. ( Id. ¶¶ 10, 12.)
On April 30, 2010, Elliot returned to the United States. ( Id. ¶ 16.) Sickle wrote an undated report about Elliot’s injury that was faxed on May 12, 2010. ( Id. ¶11; Ex. A, ECF No. 7-1.) After a failed first attempt to obtain DBA workers’ compensation benefits as a result of his injury, Elliot received medical coverage and temporary total disability benefits pursuant to the DBA’s administrative process. (Am. Compl. ¶ 13.)
Plaintiffs allege that Elliot was set to return to duty on May 16, 2010, but that Scott Torres terminated Elliot by email and without advance written notice on May 9, 2010, after learning of Elliot’s DBA workers’ compensation claim . ( Id.¶ 16.) [2] Plaintiffs further maintain that Torres AES and Scott Torres represented to insurance company representatives that the benefits claim was false and that Elliot was fired for filing a false claim. ( Id. )
As concerns Sickle, Plaintiffs allege that Torres AES and Scott Torres “were aware of Mr. Sickle’s accident report verifying Mr. Elliot’s injury on the job prior to his return home,” ( id. ¶ 16), and that they dispatched agents in Iraq during June 2010, to “intimidate[] and threaten[]” Sickle to retract his report about Elliot’s injury ( id. *4 ¶ 15). When Sickle refused, Defendants allegedly expressed “great anger” and sent Sickle back to the United States for thirty days to “think things over.” ( Id. ¶¶ 16-17.) After Sickle again refused to withdraw his report regarding Elliot’s injury, Scott Torres allegedly terminated Sickle without the required notice, and also in retaliation for assisting Elliot with his DBA claim. ( Id. ¶ 16.)
B. Procedural History
Plaintiffs filed a complaint in this court on December 14, 2011. (ECF No. 1.) On April 9, 2012, Plaintiffs filed an amended complaint, claiming that Elliot and Sickle were improperly discharged in retaliation for the filing of a workers’ compensation claim that was valid under the DBA “but which Scott Torres regarded as faked.” (Am. Compl. ¶ 17.) The amended complaint alleges four counts against Defendants Torres AES and Scott Torres; to wit: (1) discrimination and retaliatory discharge in violation of 33 U.S.C. § 948a (Count I); (2) breach of contract and the covenant of good faith and fair dealing (Count II); (3) common law improper retaliatory discharge for the filing of a worker’s compensation claim (Count III), and (4) “[c]onspiracy and prima facie tort” on the grounds that Defendants conspired with their workers’ compensation insurance carrier to commit the acts alleged in the amended complaint (Count IV). ( Id. ¶¶ 20-43.)
On April 27, 2012, Defendants filed a motion to dismiss the complaint in its entirety. Defendants’ arguments expressly rely on Federal Rule of Civil Procedure 12(b)(6), dismissal for failure to state a claim upon which relief can be granted, and also Rule 12(b)(2), lack of personal jurisdiction in regard to Scott Torres. (Defs.’ Mot. at 1.) As explained further below, in regard to the 12(b)(6) argument, Defendants first maintain that the DBA provides the exclusive remedy for the injury that Plaintiffs *5 allege they have suffered such that Plaintiffs are precluded from bringing an action seeking redress in this Court. Notably, this “exclusivity” argument implicates both exhaustion and preemption principles. ( See Mem. in Support of Defs.’ Mot. to Dismiss First-Amended Complaint (“Defs.’ Mem.”), ECF No. 10, at 13, 15. [3] ) Defendants argue, in the alternative, that even if it is legally proper for Plaintiffs to have brought a § 948a claim in federal court, Plaintiffs have failed to allege facts sufficient to demonstrate retaliatory termination under the DBA. ( Id. at 19.) Defendants also argue, in regard to Plaintiffs’ common law claims, that Plaintiffs have failed to state claims for breach of contract/breach of the covenant of good faith and fair dealing ( id. at 22), and for retaliatory termination in violation of public policy, and that the District of Columbia does not recognize a cause of action for a “prima facie tort” ( id. at 29).
Defendants’ motion to dismiss became ripe on June 1, 2012. The case was transferred to the undersigned on April 5, 2013, and this Court held a hearing on June 6, 2013.
II. LEGAL LANDSCAPE
A. Motion to Dismiss Standards
Although Defendants have expressly grounded their motion to dismiss on Rules
12(b)(6) and 12(b)(2), their primary dismissal arguments are that any claims arising
from Plaintiffs’ allegedly retaliatory discharges must be resolved through the DBA’s
administrative claims process, and that the DBA preempts Counts II-IV of Plaintiffs’
amended complaint. It is unclear in this District whether a defendant should assert such
*6
exhaustion and preemption defenses in a Rule 12(b)(1) motion, as jurisdictional defects,
or in a Rule 12(b)(6) motion for failure to state a claim.
See, e.g.
,
Hansen v. Billington
,
A Rule 12(b)(1) motion tests whether this Court has subject matter jurisdiction
over the complaint. Under Rule 12(b)(1), the plaintiff bears the burden of establishing
the existence of jurisdiction by a preponderance of the evidence.
See Erby v. United
States
,
A Rule 12(b)(6) motion, by contrast, tests the legal sufficiency of a complaint.
Browning v. Clinton
,
Under either standard and as a matter of law, the Court finds that Plaintiffs
cannot pursue a DBA retaliation claim in this Court without first utilizing the DBA’s
administrative process (which neither Plaintiff has done) and that the DBA preempts the
causes of action that Plaintiffs assert in Counts II-IV of their amended complaint.
Consequently, the Court need not, and will not, weigh in on the Rule 12(b)(1) versus
Rule 12(b)(6) debate.
See, e.g., In re Rail Freight Fuel Surcharge Anti-Trust Litig.
, 593
F. Supp. 2d at 40 n.5;
Temples v. U.S. Postal Serv.
, No. 3:12-34,
B. The Defense Base Act & The Longshore and Harbor Workers’ Compensation Act
Congress enacted the DBA, 42 U.S.C. §§ 1651-1655, in 1941, to create a federal
workers’ compensation system for civilian employees stationed at military installations
“outside the continental United States[.]” 42 U.S.C. § 1651(a)(2). Congress later
expanded the DBA to cover contractors working at these bases.
See Univ. of Rochester
v. Hartman
,
As a workers’ compensation system, the DBA/LHWCA scheme forges a
compromise between employees and employers.
See Morrison-Knudsen Const. Co. v.
Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor
,
The LHWCA, and thus the DBA, expressly prohibits discrimination against employees who claim benefits and those who assist such employees with their claims:
It shall be unlawful for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim compensation from such employer, or because he has testified or is about to testify in a proceeding under this chapter.
33 U.S.C. § 948a. The Deputy Commissioner of Labor must impose a penalty ranging from $1,000 to $5,000 on employers who violate these anti-retaliation provisions and order that employees who continue to be qualified to perform their jobs be reinstated and receive back pay. Id.
The regulations implementing the LHWCA/DBA lay out the administrative procedure for the DOL’s Office of Workers’ Compensation Programs (“OWCP”) to process claims alleging discrimination or retaliation in violation of Section 948a. See 20 C.F.R. §§ 702.271-.274. Within five days of an employee submitting a discrimination complaint, a DOL district director must notify the employer and begin an inquiry into the matter, which may include interviews with the employee, employer, and others; the district director may also convene an informal conference between the employee and employer. Id. § 702.271(b), (c). The district director will then make a recommendation on whether any retaliation has occurred and, if so, whether OWCP should assess any penalty against the employer and/or order that the employer make the employee whole through reinstatement and back compensation. Id. §§ 702.271(d), 707.272(a). If either party disagrees with the district director’s recommendation, the district director must refer the matter to the Office of the Chief Administrative Law *10 Judge for a formal hearing and final determination of any disputed issues. Id. §§ 702.272(b), 702.273. Appeal from this determination may be taken to the BRB. Id. §§ 702.273, 702.391-702.394. Within sixty days of receiving the BRB’s final order, “[a]ny person adversely affected or aggrieved by [the order] may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred[.]” 33 U.S.C. § 921(c). [4] Finally, “[i]f any employer or his officers or agents fails to comply with a [final] compensation order making an award, . . . any beneficiary of such award or the deputy commissioner making the order, may apply for the enforcement of the order to the Federal district court for the judicial district in which the injury occurred[.]” Id. § 921(d).
The DBA also contains a broad exclusivity clause: The liability of an employer, contractor (or any subcontractor or subordinate subcontractor with respect to the contract of such contractor) under this chapter shall be exclusive and in place of all other liability of such employer, contractor, subcontractor, or subordinate contractor to his employees (and their dependents) coming within the purview of this chapter, under the workmen’s compensation law of any State, Territory, or other jurisdiction, irrespective of the place where the contract of hire of any such employee may have been made or entered into.
42 U.S.C. § 1651(c) (emphasis added);
see also, e.g.
,
Brink
,
III. DISCUSSION
The gravamen of Defendants’ motion to dismiss appears to be two-fold: (1) that Plaintiffs are precluded from filing an original action in this Court for an alleged violation of the DBA/LHWCA’s retaliation provision, and must instead exhaust their administrative remedies before the DOL; and (2) that, because the DBA/LHWCA administrative process is the “exclusive” remedy for injuries involving workers’ compensation claims of this nature, all of Plaintiffs’ claims, including their common law claims, are preempted and must be dismissed.
At the outset, with respect to Defendants’ first contention, the Court notes a lack
of clarity in the briefing regarding whether Plaintiffs are actually bringing a claim for
retaliatory termination in violation of the DBA. Count I of Plaintiffs’ amended
complaint is entitled “Discriminatory and Retaliatory Discharge, 33 U.S.C. § 948a”
and, thereby, clearly signals Plaintiffs’ intent to bring a claim of retaliatory termination
under
the DBA/LHWCA. (This makes sense because, as noted above, section 948a of
the DBA prohibits discrimination against employees who file or assist with a DBA
claim.) However, after Defendants argued in their motion to dismiss that the
DBA/LHWCA “provide the
exclusive
remedies for Plaintiffs’ alleged injuries, and those
remedies must be exhausted on an administrative level and not in an original action
instituted before this Court” (Defs.’ Mem. at 13), Plaintiffs responded in a manner that
suggests an intention to back away from asserting any DBA retaliation claim. (
See
Pls.’
Mem. in Support of Opp’n to Defs.’ Mot. to Dismiss Compl. (“Pls.’ Opp’n”), ECF. No.
provides.
See, e.g.
,
Hall v. C & P Tele. Co
.,
11-1, at 17 (“Plaintiffs make no claims in this case for an injury under the DBA/LHWCA.”).)
Adding to the confusion about what is being claimed and argued in this case is the fact that Defendants do not employ “exhaustion” or “preemption” analyses explicitly in their memorandum in support of dismissal, and they repeatedly conflate their exhaustion-related and preemption-like arguments to suggest (mistakenly) that Plaintiffs’ common law claims are precluded precisely because Plaintiffs have asserted a statutory DBA retaliation claim and have failed to exhaust their administrative remedies in regard to that claim. ( See Defs.’ Mem. at 15 (“Given that the First- Amended Complaint is brought under the DBA/LHWCA, Plaintiffs are limited to exclusive remedies available to them under the statutes.”); id. at 18 (“Plaintiffs may not forego the administrative remedies available to them under the DBA/LHWCA in favor of obtaining recovery against Defendants on the claims asserted in the First-Amended Complaint.”).) These arguments sound primarily as exhaustion arguments generally do, but insofar as Defendants’ chorus of dismissal contentions also assails Plaintiffs’ common law claims, these assertions have an added (though not expressly stated) tone; namely, that the DBA/LHWCA framework preempts any claim for tort or breach of contract arising out of circumstances in which the DBA would otherwise apply. ( See id. at 13 (“Plaintiffs are subject to the prescriptions of the DBA and the exclusive remedies it provides.”); id. at 17 (“[T]he DBA/LHWCA, like most workers’ compensation regimes, provide the exclusive remedies and forum for employees alleging claims arising from injuries sustained while working under a government contract performed outside of the United States.” (citation omitted))).
To rule on Defendants’ motion to dismiss, this Court must first get to the bottom of the claims at issue. And although the Court is required to construe the amended complaint in the light most favorable to the Plaintiffs at this stage of the litigation, it cannot fashion new and different claims, nor can it deem conceded an opposition to a stated count absent a clear indication that Plaintiffs have abandoned the questioned claim. Accordingly, this Court will presume that Plaintiffs intend to press a claim under § 948a, as the amended complaint clearly states, and will also entertain the opposite assumption— i.e., that Plaintiffs do not wish to trigger the DBA/LHWCA’s administrative scheme and thus have attempted to craft a series of common law claims that fall outside of the statute’s parameters. This dual inquiry involves consideration of (1) whether Plaintiffs are entitled to bring a § 948a claim in federal court without first following the prescribed administrative procedures, and (2) whether Plaintiffs are permitted to bring common law retaliation claims arising out of facts and circumstances that the DBA/LHWCA scheme arguably covers. The Court concludes on both accounts that Plaintiffs cannot do so, and thus, that Plaintiffs’ amended complaint must be dismissed.
A. Plaintiffs Were Required To Exhaust Administrative Remedies Before Bringing A DBA Retaliation Claim In Federal Court The first question at issue is whether Plaintiffs may bring an original cause of action under 33 U.S.C. § 948a in district court without exhausting the LHWCA’s administrative procedure as incorporated into the DBA. (Defs.’ Mem. at 16.) By styling their Count I claim as one for retaliatory termination in violation of § 948a, the Court understands Plaintiffs—who have not alleged exhaustion and indisputably have failed to follow the administrative procedures that the DBA/LHWCA prescribes—to *14 argue that they are authorized to bring an original action under 33 U.S.C. § 948a in federal district court. But neither the DBA’s language nor the federal jurisprudence interpreting the DBA/LHWCA supports Plaintiffs’ position.
The well-established doctrine of exhaustion of administrative remedies provides
“that no one is entitled to judicial relief for a supposed or threatened injury until the
prescribed administrative remedy has been exhausted.”
Myers v. Bethlehem
Shipbuilding Corp
.,
There is no doubt that the DOL has established a comprehensive administrative procedure for DBA/LHWCA discrimination and retaliation claims that enables the agency to exercise its expertise and discretion in resolving those claims, while also allowing for eventual federal court review. See 20 C.F.R. §§ 702.271-702.274; 33 U.S.C §§ 921(c)-(d); 42 U.S.C. § 1653(b). If Plaintiffs had taken advantage of the *15 process that the applicable regulations afford, a DOL district director would have been required to investigate their retaliation complaints and to make a recommendation as to the appropriate disposition, including employer penalties and employee remedies. 20 C.F.R. § 702.271(a)(2) (employers who violate § 948a liable for penalties and must restore qualified employees to their positions and pay lost wages); id. § 707.272(a) (district director will recommend that an employer reinstate a qualified employee “and/or make such restitution as is indicated by the circumstances of the case, including compensation for any wage loss suffered as the result of the discharge or discrimination”). And the regulations provide for several layers of review: if the parties do not agree with the district director’s recommendation, they are entitled to a formal hearing before an ALJ, and the losing party can appeal the ALJ’s decision to the BRB, id. § 702.273, before proceeding to file a complaint seeking adjudication of the merits of the retaliation claim in federal court. See 33 U.S.C. § 921(c); 42 U.S.C. § 1653(b). This Court sees no reason to allow Plaintiffs to sidestep this process, particularly where the regulations broadly empower the DOL to require reinstatement and back pay and to “make such restitution as is indicated by the circumstances of the case,” (§707.272(a)), which is in large part what Plaintiffs seek in this action.
Plaintiffs have not cited, nor is this Court aware of, any federal court decisions
that entertain an original cause of action under the § 948a in district court without
exhaustion of these DOL administrative remedies. Indeed, relatively few federal courts
have considered whether a plaintiff can file a stand-alone action under the DBA and
§ 948a because federal courts generally exercise only
appellate
review of final DOL
workers’ compensation decisions.
See
33 U.S.C. §§ 921(c)-(d) (vesting federal courts
*16
with jurisdiction to review BRB orders and to enforce final compensation orders); 42
U.S.C. § 1653(b) (vesting federal district courts with jurisdiction to enforce DBA
compensation orders);
see also, e.g.
,
Robinson v. Newport News Shipbuilding & Dry
Dock Co
., No. 96-2603,
Plaintiffs in the instant case have admittedly not exhausted administrative remedies, and instead go to great lengths to argue why they need not utilize the DOL process. ( See Pls.’ Opp’n at 21-24.) Their primary argument in this regard—that the § 948a remedy is “nominal” and “inadequate” ( id. at 21)—is nonsensical given that Plaintiffs themselves have brought a claim in federal court that alleges a violation of § 948a and seeks remedies thereunder. (Comp. ¶¶ 20- 23.) Moreover, the “inadequate remedy” cases upon which Plaintiffs rely ( see id. at 21-23) generally relate to the *17 continued viability of state or common law compensation claims other than the federal statute, and there is no indication that the parties in th ose cases litigated exhaustion of remedies for a retaliation claim brought in federal court under § 948a.
Consequently, to the extent Plaintiffs here have asserted a retaliation claim under § 948a (as Count I of the amended complaint appears to do), the Court finds that this claim must be dismissed for failure to exhaust administrative remedies.
B. The DBA/LHWCA Preempts State Common Law Claims Arising Out Of Workers’ Compensation Injuries
The second question at issue is whether the DBA/LHWCA preempts Plaintiffs’
state common law claims for breach of contract and the covenant of good faith and fair
dealing (Count II), retaliatory discharge under common law (Count III), and conspiracy
and prima facie tort (Count IV). Under the U.S. Constitution, the laws of the federal
government are “the supreme Law of the Land[,]” U.S. Const. art. VI, and this
supremacy principle “is implemented through the doctrine of federal preemption, under
which state and local law may be stripped of its effect.”
United Distribution Cos. v.
FERC
,
1. he Doctrine Of Express Preemption Bars Plaintiffs’ State
Common Law Claims
T
When a statute contains an express exclusivity clause, a court’s focus is on the
clause’s “plain wording” because that “necessarily contains the best evidence of
Congress’ preemptive intent.”
CSX Transp., Inc. v. Easterwood
,
The liability of an employer, contractor (or any subcontractor or subordinate subcontractor with respect to the contract of such contractor) under this chapter shall be exclusive and in place of all other liability of such employer, contractor, subcontractor, or subordinate contractor to his employees (and their dependents) coming within the purview of this chapter , under the workmen’s compensation law of any State, Territory, or other jurisdiction, irrespective of the place where the contract of hire of any such employee may have been made or entered into.
42 U.S.C. § 1651(c). Courts evaluating this language have found that it clearly
expresses Congress’s intent that the DBA preempt any and all claims that fall within the
ambit of that statute.
See, e.g.
,
Fisher v. Halliburton
,
In arguing to the contrary, Plaintiffs attempt to construe the DBA’s exclusivity clause narrowly, homing in on the “under this chapter” language and contending that “the DBA only provides liability for compensation for injuries , and has no other provisions directed at discrimination for loss of [a] job.” (Pls.’ Opp’n at 18. (emphasis added)). Even setting aside the fact that Plaintiffs make precisely the opposite assertion in Count I of the amended complaint, ( see Compl. ¶ 21 (“Under the DBA, which incorporates the LHWCA, it is unlawful to retaliate against any employee for claiming an injury on the job under these laws, or for assisting such an individual in making or reporting of such a claim.”)), the argument that the DBA contains no retaliation provision finds no support in the text of the governing statutes.
As explained above, the DBA incorporates the LHWCA,
see
42 U.S.C.
§ 1651(a), including the LHWCA’s language prohibiting retaliation against employees
who claim benefits and those who testify on a claimant’s behalf,
see
33 U.S.C. § 948a;
*20
see also Brink
,
Finally, the Court notes that state court cases such as
Hebert v. Mid South
Controls & Servs.
,
2. The Doctrine of Field Preemption Bars Plaintiffs’ Common Law
Claims
Not only is there a clear express preemption clause at work in the instant case,
but the doctrine of field preemption also establishes that Plaintiffs’ common law
retaliation claims are barred. Under field preemption principles, even “[a]bsent explicit
preemptive language, Congress’[s] intent to supersede state law altogether may be
inferred because ‘[t]he scheme of federal regulation may be so pervasive as to make
reasonable the inference that Congress left no room for the States to supplement it[.]”
Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta
,
3. The Doctrine of Conflict Preemption Bars Plaintiffs’ Common Law
Claims Finally, dismissal of Plaintiffs’ common law claims is also warranted under the
doctrine of conflict preemption. When a state law “‘stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress,’” that
state law is preempted under the doctrine of conflict preemption.
Arizona v. U.S
., 132
S. Ct. 2492, 2501 (2012) (quoting
Hines v. Davidowitz
,
The D.C. Circuit has long held that Congress’s purpose in enacting the LHWCA
and, by implication the DBA, was to provide employers with “general immunity” from
employee tort suits for injuries covered by the workers’ compensation scheme and to
provide employees with a specific remedy for claims within its scope.
Hall
, 809 F.2d at
926;
see also id.
(“In return for the guarantee of a practical and expeditious statutory
remedy, employees relinquish their common-law tort remedies against employers for
work-related injuries.” (citations omitted)). Permitting Plaintiffs to maintain their state
law claims would undermine this policy “by affording a choice of remedies which was
not intended.”
Flying Tiger Lines
,
Moreover, in the instant case, there is also a risk of conflicting judgments regarding Plaintiff Elliot’s underlying injury if Plaintiffs are permitted to proceed with their common law retaliation claims. Defendants have consistently maintained that *24 Torres AES did not, in fact, terminate Sickle and Elliot for submission of a valid workers’ compensation claim, but instead terminated them because Elliott’s DBA claim was fraudulent. (Defs.’ Mem. at 21, 25, & 26 n.5.) However, when Elliot presented his claim for workers compensation to the DOL, the agency approved and paid it. ( Am. Compl. ¶ 13.) Therefore, if Plaintiffs’ common law retaliation claims proceed, Defendants would likely assert the defense of fraud, and this Court would be required to reassess the validity of Elliot’s initial workers’ compensation claim as part Plaintiffs’ action. The risk of a conflict between, on the one hand, the agency’s authorized claims process, and on the other, this Court’s evaluation of the claimed injury, is apparent. [8]
The bottom line is that, as federal courts across the country have found, the DBA
expressly and impliedly preempts other remedies state law affords to similarly-situated
plaintiffs.
See, e.g
.,
Fisher
,
C. Other Grounds Asserted For Dismissal.
Defendants have argued that the Court has no personal jurisdiction over Scott Torres (Defs.’ Mem. at 8-13) and that the facts alleged in the amended complaint fail to state a claim under § 948a or state common law ( id. at 19-32). In light of this Court’s *26 ruling that (1) Plaintiffs cannot assert any claim under § 948a because they have failed to exhaust administrative remedies, and (2) the DBA preempts Plaintiffs’ common law claims, the entire complaint must be dismissed, and the Court need not reach these issues.
IV. Conclusion
For the forgoing reasons, this Court concludes that Plaintiffs have failed to exhaust administrative remedies with respect to their § 948a claim and that the DBA preempts their related state common law claims for breach of contract, breach of the covenant of good faith and fair dealing, retaliatory termination in violation of public policy, and conspiracy and prima facie tort. The Court therefore GRANTS Defendants’ motion to dismiss the complaint for failure to state a claim upon which relief can be granted and DISMISSES the amended complaint. A separate order accompanies this Memorandum Opinion. Ketanji Brown Jackson
DATE: December 24, 2013 KETANJI BROWN JACKSON
United States District Judge
Notes
[1] Defendants have also moved to dismiss the complaint against Scott Torres for lack of personal jurisdiction under Rule 12(b)(2). ( See Defs.’ Motion at 1). The Court need not reach this alternative ground for dismissal, see infra Part III(C), and declines to do so.
[2] The amended complaint states that Elliot’s contract was a year-long agreement that “requires a 28 day notice by certified mail to Mr. Elliot to terminate the contract.” (Am. Compl. ¶ 16.) Whether the contract requires written notice for effec tive termination is a fact in dispute, the resolution of which is irrelevant to the resolution of this action.
[3] Page numbers refer to the original document numbers at the bottom of each page, and not the numbers that the Court’s electronic filing system assigns.
[4] There is a circuit split over whether circuit or district courts exercise appellate review over final BRB orders under the DBA. The LHWCA’s 1972 amendments vested the circuit courts with jurisdiction to review the DOL’s determinations. 33 U.S.C. § 921(c). Some circuits, however, hold that this portion of the LHWCA’s 1972 amendments does not apply to the DBA, which originally vested jurisdiction with the local district courts under 42 U.S.C. § 1653(b). See Claire Been, Bypassing Redundancy: Resolving the Jurisdictional Dilemma under the Defense Base Act , 83 Wash. L. Rev. 219, 230-35 (2008).
[5] The LHWCA contains a separate and arguably narrower exclusivity clause (33 U.S.C. § 905(a)), that courts likewise have held bars plaintiffs from seeking remedies beyond those the that LHWCA
[6] Because the LHWCA “supplements, rather than supplants, state compensation law” in certain areas,
workers may pursue either federal or state remedies where the injury occurs in a “maritime but local”
zone, such as a terminal or dry dock.
Sun Ship, Inc. v. Pennsylvania
,
[7] In
Hall v. C & P Telephone Co
.,
[8] The potential for this type of conflict—which can be addressed through the doctrine of primary
jurisdiction,
see MCI Commc’n s Corp. v. AT&T Co.
,
[9] Section 948a makes it unlawful to “discharge or in any other manner discriminate against an
employee as to his employment . . . because he has testified or is about to testify in a proceeding under
this chapter.” 33 U.S.C. § 948a. In the absence of any authority from the DOL, this Court declines to
limit the reach of this provision to actual testimony, as Sickle suggests. Rather, it will construe this
language to extend to any employee who is terminated because he or she assists an injured employee
with his or her workers’ compensation claim. This is consistent with the comprehensive nature of the
DBA/LHWCA workers’ compensation scheme at issue and also with the liberal construction given
other, similar remedial statutes.
See, e.g.
,
Valerio v. Putnam Assocs., Inc.
,