On Wednesday, President Barack Obama nominated the D.C. Circuit’s Chief Judge, Merrick Garland, to fill the Supreme Court vacancy left after Justice Antonin Scalia’s passing. I thought it would be fun to see if Garland authored or participated in any Longshore or Defense Base Act decisions. It turns out that he did.
Brink v. Continental Insurance Company:
The most recent decision in which Garland was involved is Brink v. Continental Insurance Company, 787 F.3d 1120 (D.C. Cir. 2015). Garland did not author the opinion, but he was one of the judges on the three-judge panel.
In Brink, a number of civilian government contractor employees, or their survivors, brought a class action lawsuit against a Defense Base Act employers and insurance carriers. The plaintiffs alleged violations of the Longshore and Harbor Workers’ Compensation Act, the Racketeer Influenced and Corrupt Organizations Act (RICO), the Americans with Disabilities Act (ADA), and common law tort claims. In a nutshell, the Brink opinion stated:
- Plaintiffs’ state law tort claims were precluded by the Longshore Act;
- Plaintiffs’ RICO claims were barred by the Defense Base Act;
- Plaintiffs did not state that defendants had formed a RICO enterprise;
- Plaintiffs did not plead predicate mail nor wire fraud with particularity;
- Plaintiffs did not exhaust their administrative remedies; and
- The district court did abuse its discretion by not allowing plaintiffs to amend their claims under the ADA.
The big problem with trying to sue employers and insurance carriers under a tort theory is the exclusivity provision. Both the Longshore Act and the Defense Base Act are exclusive remedies. The Defense Base Act’s exclusivity provision states:
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.
See 42 U.S.C. § 1651(c) (emphasis added). The Brink court did note, however, that individuals may still pursue claims that arise independently of an entitlement to Longshore Act benefits, such as common-law assault or a claim in contract.
Evans Financial Corporation v. Director, OWCP:
Judge Garland did author the opinion in Evans Financial Corp. v. Dir., OWCP, 161 F.3d 30 (D.C. Cir. 1998). In Evans Financial, the dispute arose as to an employer’s right to reduce its Longshore Act liability by claimant’s net recover from a third-party tortfeasor. In other words, whether the employer could take a discount because the claimant received money for the same injury from another source.
It is completely possible for a claimant to sue a third party if that third party contributed to the injury. See 33 U.S.C. § 933. The same statute that allows a claimant to sue a third party also says that an “employer has the right to reduce its liability by the amount of the employee’s net recovery from the third-party tortfeasor.” See also 33 U.S.C. § 933(f). But, there’s a trap for the unwary. If the claimant does not get written consent to the settlement, then it is possible to waive the right to further recovery of compensation or medical benefits from the employer. See 33 U.S.C. § 933(g).
The third part tortfeasor in Evans Financial was the owner of the building in which the claimant was injured. That lawsuit was settled for $275,000. After the money was divided to pay various setoffs, funds, and attorneys, there was $55,000 remaining. Then, claimant received additional medical bills totaling $1,160.50. The employer “refused to pay these bills, asserting that it was entitled to a credit against them in the amount of the $55,000 [the claimant] retained from the settlement.” The claimant argued that the employer had waived any right to the reimbursement. It didn’t help things that there was a very convoluted paper trail because, not only had the claimant received benefits from the employer, but she had also received benefits from the Special Fund.
Long story short: Judge Garland held that (1) the employer did not waive its right to credit against the claimant’s future medical expenses; but (2) employer was not also entitled to complete relief from its obligation to make additional medical payments. Sort of a split-the-baby decision.
Carson v. Director, OWCP:
For sake of completeness, I am including Carson v. Dir., OWCP, 1997 WL 573483 (D.C. Cir. Aug. 26, 1997). Judge Garland was one of the three circuit judges who issued the per curiam opinion. It stated:
FURTHER ORDERED that the motion to dismiss be granted. Petitioner seeks review of the Benefits Review Board’s (BRB) denial of his claims under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-50. The injury that is the subject of petitioner’s claims occurred in California, which is located geographically within the jurisdiction of the United States Court of Appeals for the Ninth Circuit. Because a petition for review of a BRB decision must be filed int he United States court of appeals for the circuit in which the injury occurred, this court lacks jurisdiction. See 33 U.S.C. § 921(c). Transfer, pursuant to 28 U.S.C. § 1631, would not be necessary because petitioner has filed an identical petition with the Ninth Circuit.
Conclusion:
There is one more decision that Garland wrote but I chose not to include it because the Longshore Act was only mentioned in a footnote. That decision involved the Federal Mine Safety and Health Review Commission.
Another post–or perhaps series of posts–could be written on Judge Garland’s take on agency deference. Agency deference is the idea that “considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). Prior to his death, Justice Scalia started questioning certain aspects of agency deference. It would be interesting to study Judge Garland’s take on agency deference because the Director of the Department of Labor has considerable pull with his interpretation of the Longshore Act.
Attribution: Photo from Wikipedia.
