Plaintiffs’ DBA Claims Dismissed By Federal Court For Failure to Exhaust Administrative Remedies

Plaintiffs, both former military subcontractors, sued Employer in federal court, alleging that Employer fired Plaintiffs in retaliation for one of the Plaintiffs filing a workers’ compensation claim.  Employer argued that Plaintiffs failed to exhaust their administrative remedies by failing to adjudicate their Defense Base Act (“DBA”) claim before the Division of Longshore and Harbor Workers’ Compensation or the Office of Administrative Law Judges (“OALJ”).  The United States District Court for the District of Columbia agreed and dismissed the Plaintiffs complaints.

The Defense Base Act (“DBA”) is an extension of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).  As such, the provisions of the LHWCA apply to DBA claims unless the DBA contains specific provisions to the contrary.  For this case, the court addressed the LHWCA’s discrimination provision, 33 U.S.C. § 948a, which applies to DBA claims.  Section 948a states:

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.

The Code of Federal Regulations sets out the administrative procedure for Section 948a discrimination claims.  The District Director must review the discrimination complaint to open an inquiry into the matter.  After due investigation, the District Director makes a recommendation whether any retaliation occurred.  If either the employee or employer disagrees with the District Director’s recommendation, the District Director must refer the claim to the OALJ for adjudication.  From there, an appeal may be taken to the Benefits Review Board (“BRB”), and then to the appropriate United States Court of Appeals.

Here, Plaintiffs failed to exhaust their administrative remedies prior to seeking judicial intervention.   The court refused to allow Plaintiffs to side-step the carefully crafted administrative process for LHWCA/DBA claims, and dismissed as “nonsensical” Plaintiffs allegations that the Section 948a remedies were “nominal” and “inadequate.”

On a final note, the court also dismissed Plaintiffs’ common law claims.  In their complaint, Plaintiffs alleged breach of contract and the covenant of good faith and fair dealing, retaliatory discharge under common law, and conspiracy and prima facie tort.  The court noted that the DBA’s exclusive remedy provision, the doctrine of field preemption, and the doctrine of conflict preemption all barred Plaintiffs’ common law claims.

Sickle v. Torres Advanced Enterprise Solutions, LLC, No. 11-cv-2224, — F.Supp.2d —- (D.D.C. 12/24/13).

Note: One thing to keep in mind is that the district court did not address the circuit split in DBA claims as to the proper appellate court after the BRB level.  Some federal circuits hold that an initial post-BRB appeal must go to the federal district court and then the appellate court, whereas other circuits hold that a post-BRB appeal may go directly to the appropriate federal appellate court.  Although it does not change the outcome of the decision, the administrative procedure for appellate courts differs from the regulations for some DBA claims.