                           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.’
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


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
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.


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 effective termination is a fact in dispute, the resolution of which is
irrelevant to the resolution of this action.


                                                     3
¶ 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




                                            4
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


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.


                                                  5
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,

644 F. Supp. 2d 97, 102 (2009); In re Rail Freight Fuel Surcharge Antitrust Litig., 593

F. Supp. 2d 29, 40 n.5 (D.D.C. 2008). The Court will therefore lay out the governing

standard for each rule.

       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, 424 F. Supp. 2d 180, 182 (D.D.C. 2006); see also Grand Lodge of Fraternal

Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (noting that a court

has an “affirmative obligation to ensure that it is acting within the scope of its

jurisdictional authority”). When considering a facial challenge to subject matter

jurisdiction, such as the one Defendants make, a court must accept as true all factual

allegations contained in the complaint, and the plaintiff should receive the benefit of all

favorable inferences that can be drawn from the alleged facts. See Flores v. District of

Columbia, 437 F. Supp. 2d 22, 28 (D.D.C. 2006) (quoting Erby, 424 F. Supp. 2d at

181). The court may, however, look beyond the complaint’s allegations when deciding

a facial challenge so long as it “still accept[s] the factual allegations in [t]he complaint

as true.” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005)

(internal quotation marks and citations omitted).

       A Rule 12(b)(6) motion, by contrast, tests the legal sufficiency of a complaint.

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter . . . to state a claim to relief




                                              6
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

quotation marks and citation omitted). In deciding a Rule 12(b)(6) motion to dismiss,

the Court must “accept the plaintiff’s factual allegations as true and construe the

complaint liberally, grant[ing] plaintiff[] the benefit of all inferences that can be

derived from the facts alleged[.]” Browning, 292 F.3d at 242 (alterations in original)

(internal quotation marks and citation omitted). “But the Court need not accept

inferences drawn by plaintiff if those inferences are not supported by the facts set out in

the complaint, nor must the court accept legal conclusions cast as factual allegations.”

Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (citation omitted).

Moreover, if the facts as alleged and liberally construed fail to establish that a plaintiff

has stated a claim upon which relief can be granted, the Rule 12(b)(6) motion must be

granted. See, e.g., Am. Chemistry Council, Inc. v. U.S. Dep’t of Health & Human

Servs., 922 F. Supp. 2d 56, 61 (D.D.C. 2013).

       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, 2012 WL 1952655, at

*2 (D.S.C. May 8, 2012) (report and recommendation), adopted by 2012 WL 1952299

(D.S.C. May 30, 2012).




                                              7
      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, 618 F.2d 170, 172-73 (2d Cir. 1980). Notably, instead of fashioning a new

workers’ compensation system for workers stationed overseas at foreign military bases,

Congress incorporated into the DBA provisions of the Longshore and Harbor Workers’

Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-950, a federal workers’

compensation system for maritime workers enacted in 1927. See 42 U.S.C. § 1651(a)

(providing that “the provisions of the [LHWCA] shall apply in respect to the injury or

death of any employee engaged in any employment” at military, air, and naval bases

outside the United States).

      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, 461 U.S. 624, 636

(1983). “Employers relinquish[] their defenses to tort actions in exchange for limited

and predictable liability. Employees accept the limited recovery because they receive

prompt relief without the expense, uncertainty, and delay that tort actions entail.” Id.

Claims for benefits under the DBA are processed under a six-step administrative

procedure through the Department of Labor (“DOL”), including available hearings

before an Administrative Law Judge (“ALJ”), appeals to the Department of Labor’s




                                            8
Benefits Review Board (“BRB”), and ultimate appellate review in federal court. See

Brink v. XE Holding, LLC, 910 F. Supp. 2d 242, 246 (D.D.C. 2012) (citation omitted).

      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

                                            9
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, 910 F. Supp. 2d at 253-54

(DBA’s exclusivity provision bars plaintiffs’ tort claims); Martin v. Halliburton, 808 F.

Supp. 2d. 983, 992 (S.D. Tex. 2011) (same). 5


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


                                                    10
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., 809 F.2d 924, 926 (D.C. Cir. 1987); Barnard v. Xapata
Haynie Corp., 975 F.2d 919, 921 (1st Cir. 1992); Atkinson v. Gates, McDonald & Co., 838 F.2d 808,
812 (5th Cir. 1988).


                                                 11
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))).




                                            12
       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


                                              13
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., 303 U.S. 41, 50-51 (1938). This doctrine prevents courts from

prematurely interrupting the administrative process and allows agencies to exercise

autonomously their expertise and discretion. See McKart v. United States, 395 U.S.

185, 193 (1969); Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 105

(D.C. Cir. 1986). Requiring exhaustion also promotes judicial efficiency by ensuring

that judicial review “is of a fully developed factual record, and undertaken with the

benefit of the agency’s exercise of discretion or application of expertise.” Weinberger,

795 F.2d at 105 (citations omitted). Moreover, the decision an agency reaches during

the administrative process “may obviate the need for a judicial decision on the issue.”

Id. (citations omitted); see also Hawkins v. Hall, 537 A.2d 571, 573 (D.C. 1988)

(“[T]he administrative process may afford complete relief and [] eliminate the need for

any judicial involvement[.]” (citations omitted)).

       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




                                             14
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




                                            15
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, 1998 U.S. App. LEXIS 7701 (4th Cir. Apr. 20, 1998) (review

of BRB order); Blanchette v. Office of Workers’ Comp. Programs, U.S. Dep’t of Labor,

998 F.2d 109 (2d Cir. 1993) (same); Gen. Dynamics Corp. v. Horrigan, 848 F.2d 321

(1st Cir. 1988) (same). Insofar as federal courts have considered this question, they

consistently have dismissed claims brought under § 948a where the plaintiff has not

exhausted DOL administrative remedies. See, e.g., Brink, 910 F. Supp. 2d at 256

(“Plaintiffs may not pursue their claims for retaliation and discrimination in the federal

courts without first exhausting their administrative remedies through the exclusive

process provided in the LHWCA.” (citations omitted)); see also Slightom v. Nat’l

Maint. & Repair, Inc., 747 F. Supp. 2d 1032, 1038 (S.D. Ill. 2010) (finding that the

LHWCA “provides a unique and necessary means of addressing retaliation claims

related thereto,” and dismissing plaintiff’s retaliation claim for failure to exhaust those

remedies).

       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




                                            16
continued viability of state or common law compensation claims other than the federal

statute, and there is no indication that the parties in those 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, 88 F.3d 1105, 1155 (D.C. Cir. 1996) (internal quotation marks and footnote

omitted). Courts have recognized three different types of preemption: express

preemption (i.e., Congress states in express terms that state law is preempted); field

preemption (i.e., Congress authorizes a scheme of regulation so pervasive that intent to

preempt can be inferred); and conflict preemption (i.e., compliance with both federal

and state laws is either impossible or would undermine the Congressional purposes and

objectives behind the federal law). See, e.g., United Distribution Cos., 88 F.3d at 1155

(citing Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461

U.S. 190, 203-04 (1983)); Himmelstein v. Comcast of the Dist., L.L.C., 931 F. Supp. 2d


                                             17
48, 56 (D.D.C. 2013). As explained below, the state common law claims in the instant

case are preempted under each of these three doctrines.


             1.     The Doctrine Of Express Preemption Bars Plaintiffs’ State
                    Common Law Claims

      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, 507 U.S. 658, 664

(1993). As noted above, the DBA’s exclusivity clause is broadly worded:

      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, 667 F.3d 602 (5th Cir. 2012)

(“[T]he coverage provisions of the Defense Base Act clearly evidence the intent that the

act shall afford the sole remedy for injuries or death suffered by employees in the

course of employments which fall within its scope.” (citation omitted)); Brink, 910 F.

Supp. 2d at 249-51 (concluding that the DBA’s exclusivity language bars state law

causes of action related to claims for DBA benefits); Nauert v. Ace Props. & Cas. Ins.

Co., No. 104CV02547, 2005 WL 2085544, at *3 (D. Colo. Aug. 27, 2005) (holding that

the “plain language of the DBA” preempts state law claims arising from alleged bad

faith handling of LHWCA claims); Martin, 808 F. Supp. 2d at 989 (finding that the


                                           18
language of the DBA’s exclusivity provision preempts common law claims that fall

within the statute’s scope). Because Plaintiffs’ common law claims, which allege

retaliation for Elliot’s filing of a workers’ compensation claim, fall squarely within the

scope of § 948a of the DBA, this Court likewise concludes these claims are plainly

preempted under the statute’s express exclusivity provision. See Brink, 910 F. Supp. 2d

at 250 (“[C]ourts have found that the exclusive remedies and adjudication processes in

the LHWCA preempt claims of retaliation or discrimination in connection with a claim

for benefits.” (citing LeSassier v. Chevron USA, Inc., 776 F.2d 506, 509-10 (5th Cir.

1985), Ravencraft v. Sundowner Offshore Servs., Inc., No. 97-3572, 1998 WL 246699,

at *2 (E.D. La. May 14, 1998))).

       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;




                                            19
see also Brink, 910 F. Supp. 2d at 250 (collecting cases). There is no doubt that the

anti-retaliation provision of the LHWCA applies to employers who hire civilians and

post them at foreign military installations, see Brink, 910 F. Supp. 2d at 245-47, and it

is also well-established that the DOL has the power to impose penalties on employers

who violate this provision, as well as the power to award employees back pay and to

reinstate employees to their former positions. 33 U.S.C. § 948a. Plaintiffs point to

Martin v. Travelers Insurance Co., 497 F.2d 329, 330 (1st Cir. 1974), which allowed a

plaintiff to proceed with a state law tort claim where an insurer stopped payment on a

DBA benefits check, in support of their argument that retaliation claims somehow fall

outside of the DBA and its exclusivity provision. (Pls.’ Opp’n at 25-26.) But the D.C.

Circuit subsequently contradicted the First Circuit’s Martin opinion when it held that

the LHWCA preempts all claims relating to a failure to pay LHWCA benefits. See

Hall, 809 F.2d at 9264. In a similar vein, this Court is not persuaded by the decisions

of other courts allowing employees to pursue myriad state law claims based on the

conclusion that certain intentional torts fall outside the scope of the DBA (Pls. Opp’n at

25-29), because, here, the injury that Plaintiffs claim—retaliation—is directly and

unequivocally addressed in the DBA/LHWCA.

       Finally, the Court notes that state court cases such as Hebert v. Mid South

Controls & Servs., 688 So. 2d 1171 (La. Ct. App. 1996), and Moss v. Dixie Machine,

Welding & Metal Works, 617 So.2d 959 (La. Ct. App. 1993), which Plaintiffs also

proffer (see Pls.’ Opp’n at 22-23, 26-28), are either unpersuasive, or inapposite, or

both. The court in Hebert recognized that its decision rejecting defendant’s preemption

argument and allowing a state law retaliatory discharge claim to proceed was in




                                            20
“complete conflict” with all federal authority on the question. 688 So. 2d at 1175. And

the court in Moss rested its conclusion that “the wrongful discharge remedy provided

under the LHWCA, § 948a, does not preempt a similar state law remedy[,]” 617 So. 2d

at 961, on decisions pertaining to the “twilight zone” of LHWCA coverage—“a specie

of maritime law in which overlapping jurisdictional spheres create concurrent

jurisdiction between the LHWCA and state laws.” Wallace v. Ryan-Walsh Stevedoring

Co., Inc., 708 F. Supp. 144, 153 (E.D. Tex. 1989). For reasons that relate to the

separate and varied histories of the LHWCA and the DBA, no such concurrent

jurisdiction exists under the DBA. 6

               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, 458 U.S. 141, 152 (1982) (alteration in

original) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). That

reasonable inference arises here. According to the D.C. Circuit, the LHWCA and state

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, 447 U.S. 715, 720 (1980). By
contrast, Congress enacted the DBA to create an exclusive workers’ compensation remedy for overseas
workers, who are in circumstances in which no state remedy exists. Flying Tiger Lines, Inc. v. Landy,
370 F.2d 46, 52 (1966) (“[T]he coverage provisions of the Defense Base Act clearly evidence the intent
that the act shall afford the sole remedy for injuries or death suffered by employees in the course of
employments which fall within its scope.”).


                                                 21
workers’ compensation laws modeled after that statute, “provide[] a comprehensive

scheme for compensating employees who are injured or killed in the course of

employment.” Hall, 809 F.2d at 926 (emphasis in original) (citations omitted). 7 And as

the Court has already found, this comprehensive scheme even encompasses claims of

retaliation for having sought workers compensation benefits, allegations that the DOL

resolves under a detailed administrative process. Indeed, “‘it is difficult to imagine a

more comprehensive scheme of federal regulation—one that leaves no room for state

involvement—than the LHWCA.’” Nadheer v. The Ins. Co. of Penn., 506 F. App’x.

297, 301 (5th Cir. 2013) (quoting Tex. Emp’rs’ Ins. Ass’n v. Jackson, 820 F.2d 1406,

1412 (5th Cir. 1987), vacated and rev’d on other grounds, 862 F.2d 491, 494 (5th Cir.

1988) (en banc)). The sheer breadth of the DBA/LHWCA strongly supports an

inference that Congress intended to prohibit employees from bringing state law claims

to recover for injuries that fall within the DBA’s parameters, such as the claims at issue

here.

               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, 312 U.S. 52, 67 (1940)). In

evaluating conflict preemption, “it is not necessary that compliance with both state and


7
  In Hall v. C & P Telephone Co., 809 F.2d 924, 925 (D.C. Cir. 1987), the D.C. Circuit interpreted the
District of Columbia Compensation Act, D.C. Code §§ 32-1501-32-1545, a 1928 statute that Congress
patterned after the LHWCA.


                                                  22
federal law be impossible[,]” Atkinson, 838 F.2d at 812 (citation omitted); rather, the

concern is whether allowing a state law cause of action would subvert the purposes of

the federal statutory scheme. See Arizona, 132 S. Ct. at 2501.

       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, 370 F.2d at 52; see also Hall, 809 F.2d at 926

(allowing state law claims would “undo[] ‘the legislated compromise between the

interests of employees and the concerns of employers.’” (quoting WMATA v. Johnson,

467 U.S. 925, 931 (1984))); Brink, 910 F. Supp. 2d at 250 (same); Atkinson, 838 F.2d at

812 (“Surely when the LHWCA provides that there shall be a [certain penalty], it

likewise inferentially, but nonetheless plainly, also provides that the penalty shall not

be any different amount[.]” (emphasis omitted)); Nadheer, 506 F. App’x. at 301

(“Allowing plaintiffs to recover separately for breach of contractual provisions

invoking the LHWCA would subvert the very purpose of the LHWCA.”).

       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




                                            23
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, 667 F.3d at 610; Flying Tiger Lines, 370 F.2d at 52; Vance

v. CHF Int’l, 914 F. Supp. 2d 669, 681 (D. Md. 2012); Jones v. Halliburton Co., 791 F.

Supp. 2d 567, 580 (S.D. Tex. 2011). Those courts that have allowed an employee to

proceed with common law claims have done so only after finding that the particular

injury is outside the DBA/LHWCA’s scope, and thus the DBA/LHWCA provides no

remedy. See, e.g., Jones, 791 F. Supp. 2d 587 (DBA’s exclusive remedies did not

preclude civil litigation arising from a contractor’s sexual assault in her barracks in Iraq

because her injuries were unrelated to her employment and therefore were “not injuries

within the scope of the DBA.”); Martin v. Halliburton, 808 F. Supp. 2d 983, 992-93

(S.D. Tex. 2011) (holding that DBA preempted claims arising out of employee’s death,

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., 496 F.2d 214, 220 (3d Cir. 1974) (a court may
refer a matter to an administrative agency for resolution where there is a risk of “contradictory rulings
by the agency and the court”)—illustrates both the need for exhaustion of administrative remedies and
the correctness of the conclusion that conflict preemption bars Plaintiffs’ common law claims.


                                                   24
but permitting daughter’s intentional infliction of emotional distress claim where the

claim arose from the injury to her based on defendants’ misrepresentations regarding

the circumstances of her father’s death). The Court reads Sickle’s belated assertion that

§ 948a does not cover his particular retaliation claim (Pls.’ Opp’n at 23-24) as an

attempt to craft this kind of outside-the-scope argument, but Sickle’s characterization

flatly contradicts both the fact that he seeks to recover under § 948a in Count I of the

complaint, and the text of the statute, which should be construed broadly to cover those

who assist others in making a workers’ compensation claim. Cf. Tenn. Coal, Iron & R.

Co. v. Muscoda Local No. 123, 321 U.S. 590, 597-98 (1944) (holding that a remedial

statute “must not be interpreted or applied in a narrow, grudging manner”); Valerio v.

Putnam Assocs., Inc., 173 F.3d 35, 43 (1st Cir. 1999) (refusing to narrowly construe the

retaliation provision of FLSA to apply only to formal complaints). 9 As the Court

explained above, the particular injury that plaintiffs allege in each of Counts II-IV

arises from their allegedly retaliatory discharge, which falls squarely within the scope

of the DBA.

        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


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., 173 F.3d at 43 (construing
the FLSA).


                                                   25
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.


DATE: December 24, 2013                     Ketanji Brown Jackson
                                            KETANJI BROWN JACKSON
                                            United States District Judge




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