On November 17, 2014, Representative Stephen F. Lynch (MA) introduced H.R. 5721, the Overseas Security Personnel Fairness Act. Rep. Lynch’s news release states that the purpose of H.R. 5721 is to “remove a significant penalty in federal law that currently prohibits the families of overseas federal contractors who are killed in the line of duty from receiving full death benefits if the deceased employee is unmarried with no children or other dependents.” To achieve his its goal, H.R. 5721 proposes an amendment to the Defense Base Act (“DBA”). Ultimately, H.R. 5721 appears destined to fail.
The Reason for H.R. 5721:
Representative Lynch proposed H.R. 5721, the Overseas Security Personnel Fairness Act, to address an issue that arose from the September 2012 terrorist attack on the U.S. Consulate in Benghazi, Libya. Glen Doherty, a security contractor and former Navy SEAL, was killed during the attack. He was unmarried, with neither children nor other dependents. Yet, he had activated a mandatory Defense Base Act insurance policy before deploying to Libya wherein he had designated a beneficiary.
The Text of H.R. 5721:
The Overseas Security Personnel Fairness Act is short. It states, in full:
To amend the Defense Base Act (42 U.S.C. 1651 et seq.) to require death benefits to be paid to a deceased employee’s designated beneficiary or next of kin in the case of death resulting from a war-risk hazard or act of terrorism occurring on or after September 11, 2001.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the “Overseas Security Personnel Fairness Act”.
SECTION 2. DEFENSE BASE ACT AMENDMENTS RELATING TO DEATH BENEFITS
The Defense Base Act (42 U.S.C. 1651 et seq.) is amended by adding at the end of the following new section:
“SEC. 6. DEATH BENEFITS.
“(a) In General.–In the case of a person covered by this Act who dies as a result of a war-risk hazard or act of terrorism, if there is no person eligible for a death benefit of the deceased under section 9 of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 909), then the benefits provided under section 9(b) of such Act to a widow or widower of the deceased shall be paid–
“(1) to a beneficiary designated by the deceased; or
“(2) if there is no designated beneficiary, to the next of kin of the estate of the deceased under applicable State law.
“(b) Payment of Benefits.–Benefits found to be due under this section shall be paid from the compensation fund established pursuant to section 8147 of title 5, United States Code.
“(c) War-Risk Hazard Defined.–In this section, the term ‘war-risk hazard’ has the meaning provided in section 201(b) of the War Hazards Compensation Act (42 U.S.C. 1711(b)).
“(d) Effective Date.–The death benefit payable under this section shall apply with respect to deaths occurring on or after September 11, 2001.”.
Implicated Statutory Schemes:
Phew. There is a lot going on in H.R. 5721. It references the Defense Base Act, the Longshore and Harbor Workers’ Compensation Act, the War Hazards Compensation Act, and by reference to 5 U.S.C. 8147, the Federal Employees’ Compensation Act.
To understand what H.R. 5721 is doing, start at section 9 of the Longshore Act. In the event of a work-related death of an employee covered by the Longshore Act, benefits are paid according to section 9. Potential beneficiaries are defined by statute, with some classes of beneficiaries (e.g., widow and kids) preferred over other classes of beneficiaries (e.g., parents). If a preferred class exists, then the preferred class takes benefits to the exclusion of the less preferred classes.
The Defense Base Act is an extension of the Longshore Act that applies to overseas federal contractors. It has equal force for citizens of the United States and non-citizens, non-residents of the United States. The DBA applies the Longshore Act exactly as the Longshore Act is written, except where the Defense Base Act says differently.
H.R. 5721 proposes adding a section to the DBA that would create more potential death benefits beneficiaries. But the new beneficiaries would only receive benefits if (1) there are no statutory beneficiaries as defined by the Longshore Act and (2) the death was caused by a “war-risk hazard.”
According to the War Hazards Compensation Act, a “war-risk hazard” includes:
(1) the discharge of any missile (including liquids and gas) or the use of any weapon, explosive, or other noxious thing by a hostile force or person or in combating an attack or an imagined attach by a hostile force or person; or
(2) action of a hostile force or person, including rebellion or insurrection against the United States or any of its allies; or
(3) the discharge or explosion of munitions intended for use in connection with a war or armed conflict with a hostile force or person as defined [in the WHCA] (except with respect to employees of a manufacturer, processor, or transporter of munitions during the manufacture, processing, or transporting thereof, or while stored on the premises of the manufacturer, processor, or transporter); or
(4) the collision of vessels in convoy or the operation of vessels or aircraft without running lights or without other customary peacetime aids to navigation; or
(5) the operation of vessels or aircraft in a zone of hostilities or engaged in war activities.
So, if a death is caused by one of these things, and there are no other beneficiaries, then a beneficiary designated by the deceased could receive benefits. But not from the employer or carrier. And not from the Special Fund maintained by the Division of Longshore and Harbor Workers’ Compensation Act–the agency that administers the Defense Base Act. Instead, the designated beneficiary would be paid by the Employees’ Compensation Fund, which is the fund managed by the Division of Federal Employees’ Compensation–the agency that administers the War Hazards Compensation Act.
Why H.R. 5721 Won’t Work:
Really, a law review essay could be written about the reasons why H.R. 5721 will not work. For this blog post, I will pose just a few of the problems:
First, why is Representative Lynch trying to amend the Defense Base Act instead of amending the War Hazards Compensation Act–and only the WHCA? If the Defense Base Act does not apply to a particular claimant, yet the injury was caused by a “war-risk hazard,” then that claimant may file a claim for benefits pursuant to Section 101(a) of the WHCA. If H.R. 5721 requires payment out of the Employees Compensation Fund instead of payment from a Defense Base Act insurer pursuant to a DBA insurance policy, then the problem that Representative Lynch is trying to solve should be limited to the WHCA. In my opinion, H.R. 5721 goes out of its way to amend the DBA when the DBA should not have been implicated in the first place.
Second, what about aliens and nonnationals? Section 2(b) of the Defense Base Act, which addresses death benefits to foreign nationals, limits beneficiaries to the “surviving wife and child or children, or if there be no surviving wife or child or children, to surviving father or mother….” Does H.R. 5721 have any affect on the rights of aliens and nonnationals who may also designate a beneficiary?
Third, why is H.R. 5721 limited only to “war-risk hazard” deaths? Based on the language used, H.R. 5721 would not apply to the death of a DBA contractor unless the death was caused by a “war-risk hazard” or act of terrorism.
Fourth, retroactive to September 11, 2001? This would involve reopening closed cases where the applicable statute of limitations–section 13 of the Longshore Act–has long expired.
The Better–and Simpler–Course of Action:
Instead of amending the Defense Base Act, Representative Lynch should have taken a closer look at the War Hazards Compensation Act. Section 101(a) allows WHCA benefits when an employee specified in section 1(a)(5) of the DBA is injured or killed, yet no compensation is payable with respect to the injury or death. Further, section 102(a) of the WHCA provides information for the payment of death benefits, stating that “the scale of compensation benefits and the provisions for determining the amount of compensation and the payment thereof as provided in sections 8 and 9 of the Longshoremen’s and Harbor workers’ Compensation act . . . can be applied under the terms and conditions set forth therein . . . .”
All things considered, Representative Lynch could achieve the same result by amending only section 102 of the WHCA. Although the Division of Federal Employees’ Compensation may have a headache or two applying the amendment, at least Representative Lynch could avoid turning the Defense Base Act on its ear with respect to death benefits.
I doubt that H.R. 5721 will pass, despite the sympathetic reasons that led to Representative Lynch’s introduction of the Bill. Still, though, Representative Lynch could consider proposing new legislation in the future that amends section 102 of the WHCA, thus accomplishing the same results.
Finally, here is a hyperlink to the Glen Doherty Memorial Foundation. With the holiday season upon us, it is a good time for donating to the foundation.