     Case: 12-50164       Document: 00512103289         Page: 1     Date Filed: 01/07/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          January 7, 2013

                                       No. 12-50164                        Lyle W. Cayce
                                                                                Clerk

OMAR NADHEER,

                                  Plaintiff - Appellant

v.

THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA;
AMERICAN INTERNATIONAL GROUP, INC.; L-3 COMMUNICATIONS
CORPORATION,

                                 Defendants - Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CV-182


Before HIGGINBOTHAM, CLEMENT, and HAYNES, Circuit Judges.
PER CURIAM:*
       Omar Nadheer appeals the district court’s dismissal of this action against
his former employer, his workers’ compensation insurance carrier, and his
insurance adjuster for breach of contract, breach of fiduciary duty, fraud, and
conspiracy to defraud. We AFFIRM.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                       FACTS AND PROCEEDINGS
      Defense contractor L-3 Communications Corporation (“L-3”) hired Nadheer
as an interpreter in Iraq in April 2006. With respect to his employment with
L-3, Nadheer was subject to the Defense Base Act (“DBA”), 42 U.S.C. §§ 1651-
1655, which extends the workers’ compensation scheme set out in the Longshore
and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-950, to
cover employees injured or killed, inter alia, “outside the continental United
States by an American employer providing welfare or similar services for the
benefit of the Armed Forces,” 42 U.S.C. § 1651(a)(6).
      On December 17, 2007, Nadheer was seriously injured in a roadside bomb
attack that struck a vehicle in which he was riding in the course of his
employment. Nadheer was treated initially at a combat support hospital in
Baghdad before being transferred to a hospital in Erbil in Iraqi Kurdistan.
Pursuant to the requirements of the LHWCA, Nadheer’s medical care was
covered by L-3’s workers’ compensation insurance, and he was also provided
with disability benefits. After being discharged from the hospital in Erbil,
Nadheer eventually emigrated to the United States and was admitted as a
refugee.
      In addition to claims for health and disability benefits he had brought
pursuant to the LHWCA with the Department of Labor’s Office of Workers’
Compensation Programs, Nadheer brought this action in the United States
District Court for the Western District of Texas in March 2011. His amended
complaint asserted common law claims for breach of contract, breach of fiduciary
duty, fraud, and conspiracy to defraud against various combinations of three
defendants: L-3; the Insurance Company of the State of Pennsylvania (“ICSOP”),
his insurer; and ICSOP’s parent corporation American International Group, Inc.
(“AIG”), whose employees Nadheer alleged were the claims adjusters for his
treatment. His amended complaint also requested that the district court enjoin

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the defendants from contesting his claims before the Department of Labor on
timeliness grounds.
      Nadheer alleged that, before his transfer to Erbil, he had requested
transfer to a hospital in Jordan and that his insurance provider had denied this
request. He claimed that this violated a provision in the LHWCA that allows
patients to select their own physicians and that he was never informed of this
and various other rights of his under the LHWCA. He further asserted that, as
a result of deficient medical treatment he received in Erbil, he had suffered
horrific pain and a degree of potentially permanent disability to his right arm.
      The defendants moved to dismiss Nadheer’s claims for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). They
argued that the exclusivity provisions of the DBA and the LHWCA deprived the
district court of jurisdiction over Nadheer’s claims. The district court granted
this motion with respect to all of Nadheer’s claims save his breach of contract
claim, on which it withheld judgment because the contract in question was not
at the time in the record. After this deficiency was remedied, the district court
granted a subsequent motion to dismiss with respect to the breach of contract
claim as well. Nadheer appeals both of these orders.
                          STANDARD OF REVIEW
      We review a district court’s grant of a motion to dismiss de novo. Jebaco
Inc. v. Harrah’s Operating Co., 587 F.3d 314, 318 (5th Cir. 2009). However, “the
applicability of the DBA’s exclusivity provision, like the applicability of the
LHWCA’s exclusivity provision, presents an issue of preemption, not
jurisdiction.” Fisher v. Halliburton, 667 F.3d 602, 609 (5th Cir. 2012). Since
preemption is an affirmative defense and does not create a jurisdictional bar, we
consider the defendants’ Rule 12(b)(1) motions as Federal Rule of Civil
Procedure 56 motions for summary judgment. See id. Summary judgment is
warranted when “there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law,” FED. R. CIV. P. 56(a), and a
district court’s ruling as to the preemptive effect of federal law presents a
question of law that this court reviews de novo, Tex. Midstream Gas Servs. LLC
v. City of Grand Prairie, 608 F.3d 200, 206 (5th Cir. 2010).
                                  DISCUSSION
      1. Statutory framework
      The DBA provides that
      the provisions of the [LHWCA] shall apply in respect to the injury
      or death of any employee engaged in any employment . . . outside
      the continental United States by an American employer providing
      welfare or similar services for the benefit of the Armed Forces
      pursuant to appropriate authorization by the Secretary of Defense.

42 U.S.C. § 1651(a). The LHWCA provides that covered employers are required
to provide various categories of medical care to their covered employees and that
those employees “shall have the right to choose an attending physician . . . to
provide medical care under this chapter.” 33 U.S.C. § 907(a)-(b). Both the DBA
and the LHWCA state that the various remedies they provide to injured
employees are exclusive of other legal remedies. 42 U.S.C. § 1651(c) (“The
liability of an employer . . . under [the DBA] shall be exclusive and in place of all
other liability of such employer . . . to his employees . . . coming within the
purview of [the DBA].”); 33 U.S.C. § 905(a) (“The liability of an employer [under
the LHWCA] . . . shall be exclusive and in place of all other liability of such
employer to the employee.”). The parties agree that Nadheer was subject to the
DBA and LHWCA with respect to his employment with L-3.
      2. Scope of LHWCA exclusivity
      Nadheer advances three arguments on appeal for why his claims are not
preempted by the DBA and LHWCA. First, he argues that the exclusivity
provisions of the DBA and LHWCA do not apply in this case because they do not
immunize insurers from damages caused by intentional misrepresentations to

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insured employees that cause injury outside the scope of the DBA and damages
not recoverable under the DBA.             Second, he asserts that the exclusivity
provisions of the DBA and LHWCA do not immunize insurance carriers from
breach of contract claims for breaches that occur during the adjustment of a
DBA claim when the breach causes consequential damages not recoverable
under the DBA. Third, he contends that we should revisit our long line of cases
holding that the LHWCA’s exclusivity provision applies to insurers as well as
employers, in light of the Supreme Court’s recent opinion in Pacific Operators
Offshore LLP v. Valladolid, 565 U.S. ---, 132 S. Ct. 680 (2012).
              A. Intentional misrepresentation
       Nadheer alleges that he suffered damages as a result of the defendants’
intentional misrepresentation that his only option for further medical care was
to go to the hospital in Erbil, despite his request to go instead to Jordan. He
asserts that, because these damages are non-compensable under the DBA and
LHWCA and arise from a breach of an insurer’s general duty not to deceive its
insured, and not from a statutorily created duty, his tort claims should not be
preempted.
       However, we have previously held that state law claims for bad faith
withholding or termination of compensation benefits are preempted by the
LHWCA. See Atkinson v. Gates, McDonald & Co., 838 F.2d 808, 811 (5th Cir.
1988) (holding tort claims for bad faith termination of LHWCA benefits to be
preempted); Texas Emp’rs Ins. Ass’n v. Jackson, 820 F.2d 1406, 1411-14 (5th Cir.
1987), vacated and rev’d on other grounds, 862 F.2d 491, 494 (5th Cir. 1988) (en
banc).1 We see no meaningful distinction between torts arising from the bad


       1
         In an en banc sitting, we reversed Jackson. However, in doing so, we emphasized that
the conclusion with respect to preemption in the panel opinion was still good law as a result
of our similar opinion in Atkinson, 838 F.2d at 811. Tex. Emp’rs Ins. Ass’n, 862 F.2d at 496
n.7. This court has since cited the panel opinion in Jackson as stating the law with respect
to LHWCA preemption. See Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 364 n.4 (5th Cir.

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faith withholding of benefits and those arising from the alleged bad faith mis-
administration of benefits at issue here; both are preempted by the LHWCA’s
comprehensive statutory scheme.
       Furthermore, we note that the LHWCA sets out criminal penalties for the
fraudulent denial, diminution, or termination of benefits, or the making of a
false statement for the purpose of denying, reducing, or terminating benefits.
33 U.S.C. § 931(c); see Jackson, 820 F.2d at 1412-13 (contrasting Congress’s
adding § 931(c) to the LHWCA in 1984 with its declining to create an analogous
civil cause of action). As a result, if his claims are true, Nadheer may in fact
have legal recourse against his insurers for the alleged malfeasance—but such
recourse would sound in criminal law and not in tort.
              4. Breach of contract
       Nadheer argues that his breach of contract claims should not be
preempted because language in his contract provided that his insurer would “pay
promptly when due all compensation and other benefits required by the workers’
compensation law.” In his view, this language imposes a contractual obligation
on his employer to provide LHWCA benefits separate from its statutory
obligations under the LHWCA.                An action for breach of this contractual
obligation, he contends, should not be deemed preempted by the LHWCA’s
exclusivity provision, because such a suit would not arise under the LHWCA.
       We disagree with this logic. Under Nadheer’s theory, contracting to
provide benefits under a comprehensive scheme—specifically designed to
preclude civil liability in excess of that provided for by the scheme—would itself
create civil liability in excess of that provided for by the scheme. “In a nutshell,
it is difficult to imagine a more comprehensive scheme of federal regulation—one
that leaves no room for state involvement—than that contained in the LHWCA.”



1995) (citing Jackson, 820 F.2d at 1406).

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Jackson, 820 F.2d at 1412. “[T]he whole theory of the [LHWCA], and of similar
compensation legislation, is to provide the injured workman with certain and
absolute benefits in lieu of all common law damages.” Haynes v. Rederi A/S
Aladdin, 362 F.2d 345, 350 (5th Cir. 1966). Allowing plaintiffs to recover
separately for breach of contractual provisions invoking the LHWCA would
subvert the very purpose of LHWCA. Therefore, Nadheer’s breach of contract
claims are preempted by the LHWCA.
            5. Insurers
      We have long held that claims against insurers, in addition to claims
against employers, are implicitly preempted by the LHWCA’s exclusivity
provision. See, e.g., Atkinson, 838 F.2d at 811 (“[T]he LHWCA impliedly grants
the employer’s insurance carrier . . . the same immunity which it grants the
employer.”); Johnson v. Am. Mut. Liab. Ins. Co., 559 F.2d 382, 388 (5th Cir.
1977) (“A reading of the Act shows that while the Congress did not specifically
grant immunity to a compensation insurer from liability as a third person tort
feasor, numerous provisions of the Act and the spirit of the Act as a whole,
equating the insurer with the employer, negate any intent to hold the insurer
liable to suit for damages as a third person.”).
      Nadheer argues that this longstanding rule is invalid in the wake of the
Supreme Court’s decision in Valladolid, a case involving the Outer Continental
Shelf Lands Act (“OCSLA”), which, like the DBA, incorporates the LHWCA. At
issue in Valladolid was a workplace death of an offshore drilling platform
employee that occurred in an onshore facility. The employee’s widow sought
LHWCA benefits because her husband had been a covered employee under
OCSLA, but his former employer argued that OCSLA was inapplicable because
the death occurred onshore. While Pacific Operators had urged the Supreme
Court to adopt a “situs-of-injury” test from this court’s decision in Mills v.
Director, Office of Workers’ Compensation Programs, U.S. Department of Labor,

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877 F.2d 356 (5th Cir. 1989) (en banc), it instead held that an injury was
compensable under OCSLA so long as it had a mere “substantial nexus” with the
offshore operations covered under the Act. See Valladolid, 132 S. Ct. at 684-90.
      Nadheer argues that, since the Supreme Court’s rejection of the Mills
situs-of-injury test was premised on that test’s lack of fidelity to the plain text
of the LHWCA, it also calls into question this court’s longstanding rule that
claims against insurers are implicitly preempted by the LHWCA’s exclusivity
provision, because insurers are not named alongside employers in that provision.
See 33 U.S.C. § 905(a) (“The liability of an employer [under the LHWCA]. . .
shall be exclusive and in place of all other liability of such employer to the
employee.” (emphasis added)).
      However, the provision at issue in Valladolid was wholly different than
the one at issue here, and Valladolid did not involve preemption.          That the
Supreme Court held that one provision of a statutory system should be strictly
construed does not require us to construe strictly every provision of that system.
In light of longstanding circuit precedent clearly on point, see, e.g., Atkinson, 838
F.2d at 811; Johnson, 559 F.2d at 388, this argument fails. Jacobs v. Nat’l Drug
Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (“It is a well-settled Fifth
Circuit rule of orderliness that one panel of our court may not overturn another
panel’s decision, absent an intervening change in the law, such as by a statutory
amendment, or the Supreme Court, or our en banc court.”).
                                 CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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