The Defense Base Act and the Longshore Act preempt claims for retaliatory discharge, but not contractual claims arising from the discharge, according to the U.S. District of Columbia Court of Appeals.
In Sickle v. Torres Advanced Enterprise Solutions, LLC, 884 F.3d 338 (D.C. Cir. 2018), 52 BRBS 7(CRT), Matthew Elliot and David Sickle worked in Iraq for Torres Advanced Enterprise Solutions. Elliot sustained an injury to his back, and Sickle, a medic, documented and treated the injury, and recommended that Elliot return to the U.S. for further treatment. Torres learned that Elliot was seeking workers’ compensation and terminated Elliot, alleging that his position in Iraq was no longer needed. Thereafter, according to Sickle, Torres began to “‘threaten and intimidate’ him, insisting that he recant his support for Elliot’s workers’ compensation claim.” Soon after these threats, Sickle was fired. Elliot was awarded benefits, but both men filed suit in federal district court, alleging retaliatory discharge, breach of contract, and other common law claims.
Torres moved to dismiss the complaint, alleging preemption under the Defense Base Act and the Longshore Act. The district court agreed and dismissed the complaint, determining that Sickle and Elliot failed to exhaust their administrative remedies and that their common law claims were preempted. On appeal, the D.C. Circuit ruled that Elliot’s tort claims were preempted because they arose out of his application for workers’ compensation benefits. However, the D.C. Circuit found that his contract claims, arising out of Torres’ failure to adhere to the employment contract when it fired Elliot, were viable. As to Sickle, the D.C. Circuit determined that none of his claim were preempted, because his claims were “divorced from any claim for benefits.”
As a predicate to its determination, the D.C. Circuit determined that preemption is not a jurisdictional issue, but instead is a merits-based defense. The court found that preemption “does not implicate the power of the forum to adjudicate the dispute,” but instead is an affirmative defense. “Preemption under the Base Act and Longshore Act speaks to the legal viability of a plaintiff’s claim, not the power of the court to act.”
Examining the preemption issue the court determined that neither the Defense Base Act nor the Longshore Act expressly preempt state tort or contract claims. However, the court believed that the two acts impliedly preempt state common law claims arising from workplace injuries, as part of the “legislated compromise” of surrendering tort claims in exchange for “an expeditious statutory remedy.” However, the court stated that implied preemption 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.’”
Summarizing its decision, the D.C. Circuit observed that 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 not. Sickle, for his part, never set foot into the Base Act’s regulatory arena, so both his tort and contract claims can proceed.”
An injury occurring when a claimant fell while stepping out of a shower is covered under the Defense Base Act, according to the Benefits Review Board. The Board applied the zone of special danger doctrine to reach this decision.
The claimant was assigned to force protection duties in Israel. He lived in an apartment selected by and paid for by his employer, and he had to be available for assignment 24 hours a day. His work required him to wear heavy equipment, in a sandy environment, which caused him to become sweaty and dirty by the end of a shift. Yet, his employer required that the claimant maintain his personal appearance and hygiene. This required the claimant to shower every day at the end of his shift. The administrative law judge determined, and the Board affirmed, that ““the obligations or conditions of [claimant’s] employment create[d] the zone of special danger out of which the injury arose,” resulting in the claim being compensable under the zone of special danger doctrine. The zone of special danger doctrine provides that a DBA employee may be within the course of employment when injured, even if the injury did not occur within the space and time boundaries of work, if the “obligations or conditions of employment” create a “zone of special danger” out of which the injury arose. The Board rejected the employer’s argument that showering was an activity purely personal in nature, even though the claimant admitted he would shower daily regardless of any work responsibilities.
Ritzheimer v. Triple Canopy, Inc., BRB No. 15-0233 (2/23/16)
The zone of special danger doctrine of the Defense Base Act applies to local nationals working in their home country who are injured during their off-duty hours, the Benefits Review Board recently held.
The DBA covers employees who are neither citizens nor residents of the United Stated States and who are employed in their homelands by DBA employers. The zone of special danger doctrine provides that a DBA employee may be within the course of employment when injured, even if the injury did not occur within the space and time boundaries of work, if the “obligations or conditions of employment” create a “zone of special danger” out of which the injury arose.
At one time in the 1950s, the DBA was amended to remove non-U.S. citizens from coverage. However, later amendments restored this coverage. The Board held as a matter of law that these Congressional changes to the DBA did not prohibit application of the zone of special danger doctrine to local nationals, because the doctrine was first announced by the Supreme Court in 1951, prior to the amendment removing non-U.S. citizens from coverage. Moreover, the Board noted, when Congress later restored coverage, it did not include any restrictions against covering local nationals.
The Board further explained that the application of the zone of special danger doctrine to cases involving local nationals who are injured while working in their home countries involves a factual determination. “The zone of special danger doctrine may or may not be applicable to a local national working for a DBA employer in his home country, depending on the specific circumstances presented by the individual case. As is generally true for DBA cases involving the application of the zone of special danger doctrine, the question of whether the doctrine is applicable to a claim filed by a local national is a factual determination ….”
In this case, the claimant, a citizen of the Republic of the Marshall Islands, lived on a small island in the Republic. He worked at the U.S. Army Space and Missile Defense Command’s Ronald Reagan Ballistic Missile Defense Test Site near the Island, for employers providing logistical support for the missile site. At times, the claimant worked on an island only accessible by boat or helicopter. Work assignments on this island required that employees remain on the island during off-duty hours. While employees worked on the island, the employer provided food and ice. However, the claimant, who suffers from diabetes, had been advised by his doctor to eat fish whenever possible. One day after work, while wearing “flip-flop style sandals,” the claimant went fishing on the reef on the island for his dinner. He slipped and cut his right foot on the coral. After a few days, the cut required significant medical attention, and a claim resulted.
The Board affirmed the ALJ’s determination that “claimant’s presence on Gagan Island for four days was due solely to the fact that the obligations and conditions of his employment required it; he could not have been there otherwise, as access to the island was restricted and claimant could leave the island only by utilizing the transportation provided by employer. Thus, contrary to employer’s argument, the fact that claimant was working in his home country is not dispositive of the zone of special danger inquiry in this case as claimant’s presence at the particular place of his injury, Gagan Island, was due solely to the obligations and conditions of his employment.”
Jetnil v. Chugach Management Services, BRB No. 14-0361 (7/21/15)
© 2018 Ira J. Rosenzweig