Which Court Has Jurisdiction for DBA Claims?

The United States Court of Appeals for the Second Circuit recently addressed the Defense Base Act’s Judicial Proceedings provision, 42 U.S.C. § 1653(b), to determine whether the initial review of decisions of the Benefits Review Board (“BRB”) must occur in courts of appeals or in district courts.  The DBA incorporates by reference Sections 18 (enforcement) and 21 (review of compensation orders) of the Longshore and Harbor Workers’ Compensation Act, but those statutes were revised more recently than the DBA’s Judicial Proceedings provision.  Drawing upon this conflict, the Second Circuit determined that the DBA was ambiguous as it pertained to the initial review of Orders.  Accordingly, the court could engage in an interpretation of the meaning of 42 U.S.C. § 1653. 

Ultimately, the Second Circuit determined that “the location of the ‘office of the Deputy Commissioner [now designated the District Director] whose compensation order is involved,’ as set forth in the DBA, establishes the pertinent geographical jurisdiction of the appropriate court of appeals.  It is because the District Director who served the orders in this case is located in New York that [the Second Circuit had] jurisdiction here.”  Finally, the Second Circuit determined that it, and not the district court, had jurisdiction to conduct the initial review of the BRB decisions.

Service Employees Int’l, Inc. v. Dir., OWCP, — F.3d —-, 2010 WL 547517 (2d Cir. 2010).

Comment: If jurisdiction can only exist in the Circuit in which a Department of Labor Compensation District exists, then only the First, Second, Fourth, Fifth, Ninth, Eleventh and D.C. Circuits would ever have jurisdiction.  This is because there are only Compensation Districts in Boston, New York, Baltimore, Norfolk, Jacksonville, New Orleans, Houston, San Francisco, Honolulu, Seattle, Long Beach and the District of Columbia.  In other words, the Third, Sixth, Seventh, Eighth and Tenth Circuits would never have jurisdiction.

Longshore Injury Occurred Over Water, Not in the Twilight Zone

The plaintiff alleged that he developed malignant mesothelioma following his exposure to asbestos during his twenty-year employment with Defendant.  The Defendant argued that because plaintiff’s only exposure to asbestos occurred while the plaintiff was indisputably on a vessel situated over water, plaintiff’s exclusive remedy was under the Longshore and Harbor workers’ Compensation Act (“LHWCA”).  Both the trial court and Louisiana’s Third Circuit Court of Appeals agreed. 

The LHWCA, which was originally enacted and 1927 and most recently revised in 1984, contains an exclusivity provision holding that the LHWCA “shall be exclusive and in place of all other liability of such employer…at law or in admiralty on account of injury or death.”  The plaintiff, desiring to take this case out of the scope of the LHWCA, argued that this case should be viewed as a “twilight case.”

In a “twilight case,” a claim shares concurrent state and federal jurisdiction.  These types of claims involve employees who “occupy that shadowy area” separating the scope of state and federal compensation acts.   In other words, a claim could potentially be a “twilight case” when a plaintiff straddles the line dividing state and federal jurisdictions.

Here, however, the plaintiff acknowledged in deposition testimony that the relevant work he performed for the defendant occurred over navigable waters.  As such, he clearly delineated the area of exposure: over navigable waters.  Without a locational controversy, the plaintiff could not cognizably argue that he was in the “shadowy area” separating the LHWCA from the Louisiana Workmen’s Compensation Act.   Consequently, the trial court’s grant of Defendant’s motion for summary judgment was affirmed on appeal.

Bourque v. Anco Insulations, Inc., 25 So.3d 1008 (La. App. 3 Cir. 12/09/09).

Disclosure: Mouledoux, Bland, Legrand & Brackett represented Defendant, Lake Charles Stevedores, Inc.