David Sickle v. Torres Advanced Enterprise , 884 F.3d 338 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 16, 2016 Decided March 9, 2018
No. 14-7009
DAVID SICKLE AND MATTHEW W. ELLIOTT,
APPELLANTS
v.
TORRES ADVANCED ENTERPRISE SOLUTIONS, LLC, ALSO
KNOWN AS TORRES AES, LLC AND SCOTT TORRES,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-02224)
Scott J. Bloch argued the cause and filed the briefs for
appellants.
Rachel Hirsch argued the cause for appellees. With her on
the brief was A. Jeff Ifrah.
Before: ROGERS, SRINIVASAN, and MILLETT, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: The Defense Base Act, 42 U.S.C.
§ 1651, establishes a workers’ compensation scheme for
civilian government employees and contractors injured on
2
overseas military bases. This case addresses the preemptive
reach of that scheme. Torres Advanced Enterprise Solutions
terminated both Matthew Elliott’s and David Sickle’s contracts
after Elliott sought workers’ compensation benefits under the
Defense Base Act, and Sickle medically documented Elliott’s
claim. Elliott and Sickle sued the company for breach of
contract and common-law torts. We hold that the Defense Base
Act preempts Elliott’s tort claims because they derive from his
efforts to obtain Defense Base Act benefits. The Act, however,
does not preempt Sickle’s claims or Elliott’s contract claim
because those injuries arose independently of any claim for
workers’ compensation benefits.
I
A
Congress enacted the Defense Base Act (“Base Act”), 42
U.S.C. § 1651, to provide workers’ compensation benefits to
civilian government and contracted employees stationed at
overseas military bases, id. § 1651(a). The Act does so by
extending to those employees key provisions of the workers’
compensation benefit program established in the Longshore
and Harbor Workers’ Compensation Act (“Longshore Act”),
33 U.S.C. §§ 901 et seq., and by broadly incorporating the
terms and provisions of the Longshore Act “[e]xcept as herein
modified.” 42 U.S.C. § 1651(a).
In addition to providing a comprehensive compensation
scheme for workplace injuries, the Base Act, via the Longshore
Act, expressly prohibits retaliation against those who seek the
statutorily authorized benefits. 33 U.S.C. § 948a; see 42
U.S.C. § 1651(a). The Longshore Act specifically provides
that “[i]t shall be unlawful for any employer * * * to discharge
or in any other manner discriminate against an employee as to
his employment because such employee has claimed or
3
attempted to claim compensation from such employer.” 33
U.S.C. § 948a. The Longshore Act also prohibits retaliating in
any way against an employee “because he has testified or is
about to testify in a proceeding under this chapter.” Id.
Violators can be assessed penalties ranging from $1,000 to
$5,000. Id. In addition, improperly dismissed employees may
seek reinstatement and back-pay to the extent that they remain
capable of performing their prior duties. Id.
In addition to its substantive provisions, the Base Act
contains an exclusivity provision limiting the scope of an
employer’s potential liability to an employee who collects
workers’ compensation benefits. Specifically, the Act provides
that the “liability of an employer * * * shall be exclusive and
in place of all other liability of such employer, contractor,
subcontractor, or subordinate contractor to his employees (and
their dependents) * * *, under the work[ers’] 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).
The Longshore Act contains a somewhat differently
worded exclusivity provision, directing that “[t]he liability of
an employer * * * shall be exclusive and in place of all other
liability of such employer to the employee * * * on account of
such injury or death.” 33 U.S.C. § 905(a). The statute offers
just one exception: “[I]f an employer fails to secure payment
of compensation * * *, an injured employee * * * may elect to
claim compensation under the chapter, or to maintain an action
at law or in admiralty for damages on account of such injury or
death.” Id.B
This dispute started at Forward Operating Base Shield in
Baghdad, Iraq. In 2010, both Matthew Elliott and David Sickle
4
worked as subcontractors for Torres Advanced Enterprise
Solutions (“Torres Solutions”), a military defense contractor
providing security assistance to the United States Department
of Defense and Department of State. Elliott worked as a kennel
master for Torres Solutions, overseeing the base’s canine unit.
Sickle worked on site as a base medic. Both Sickle’s and
Elliott’s employment contracts required Torres Solutions to
provide twenty-eight days’ notice in the event of a termination
without cause. Alternatively, the agreements permitted either
side to sever the contract for cause if, after thirty days’ written
notice, “the [c]ause remain[ed] uncured.” J.A. 122, 133. 1
On March 15, 2010, both Elliott and Sickle found
themselves on “sandbag duty” in the kennel area. After lifting
several heavy sandbags, Elliott felt a pop in his back followed
by a sharp radicular pain running down his leg. Sickle, as the
resident medic, examined Elliott and diagnosed his injury as a
disc herniation. After that initial examination, Elliott resumed
his duties as kennel master. But continuing pain sent him back
to Sickle for care twice more in April. On both occasions,
Sickle provided temporary treatment, but recommended that
Elliott return to the United States for more advanced medical
care. At the end of April, Elliott took Sickle’s advice and
returned to the United States to obtain further treatment for his
back. Elliott was hopeful that he would be able to return to the
base in mid-May to complete his contract assignment.
That hope was dashed after Torres Solutions learned that
Elliott was seeking workers’ compensation benefits under the
Base Act for his back injury. On May 9th, one week before his
planned return to the base, Elliott received an email from Scott
Torres, the principal and owner of Torres Solutions, informing
1
We take the facts in the light most favorable to Elliott and Sickle,
as we must at this procedural stage. Settles v. United States Parole
Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005).
5
him that he was no longer needed as base kennel master and,
for that reason, would not be permitted to complete his contract
term. That termination decision was made without affording
Elliott the thirty days’ advance notice required by the contract. 2
Newly terminated, Elliott sought the continued payment of
workers’ compensation benefits under the Base Act, but his
claim was rejected. On May 12, 2010, Elliott received a fax
containing an undated medical note drafted by Sickle that
described Elliott’s injuries, Sickle’s efforts at on-site treatment,
and Sickle’s recommendation that Elliott receive an MRI as
soon as possible. Armed with that evidence and a lawyer,
Elliott successfully obtained benefits under the Base Act and
underwent spinal surgery in July 2010. According to Elliott,
Torres Solutions represented to its insurance representatives
that Elliott had falsified his benefits claim, and that was why
the company had terminated his contract.
Meanwhile, on June 1, 2010, Matthew Sickle signed an
additional one-year contract with Torres Solutions to continue
his work as a base medic. According to Sickle, soon after
signing this agreement, Torres Solutions’ affiliates began to
“threaten and intimidate” him, insisting that he recant his
support for Elliott’s workers’ compensation claim. J.A. 128.
Sickle refused, and Scott Torres sent him home for thirty days
to “think things over.” J.A. 19. When Sickle stuck to his guns,
Torres Solutions terminated Sickle’s contract. Like Elliott,
Sickle’s termination was abrupt, taking immediate effect
without the contractually required thirty-day warning.
2
Because Torres alleges it terminated Elliott for filing a false claim,
we assume that it claims to have acted “for cause.” If not, the
contract requires twenty-eight days’ notice, a warning period Elliott
also did not receive.
6
C
Elliott and Sickle jointly filed suit against both Scott
Torres, individually, and Torres Solutions (collectively,
“Torres”). Their amended complaint alleged that Torres had
improperly discharged them in retaliation for Elliott’s workers’
compensation claim. They asserted: (1) discrimination and
retaliatory discharge in violation of the Longshore Act, 33
U.S.C. § 948a, as incorporated into the Base Act, 42 U.S.C. §
1651(a); (2) breach of contract and the covenant of good faith
and fair dealing under District of Columbia common law; (3)
common-law retaliatory discharge for the filing of a workers’
compensation claim; and (4) conspiracy and what the
complaint called “prima facie tort” based on Torres’s asserted
“conspir[acy] with their insurance carrier * * * to commit the
[alleged tortious] acts.” J.A. 23.
Torres moved to dismiss under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). The motion asserted that
(i) the court lacked personal jurisdiction over Scott Torres,
(ii) Elliott and Sickle had failed to state viable claims for relief
because the Base Act preempted their common-law claims, and
(iii) Elliott and Sickle failed to properly exhaust their Base Act
claims. Torres also argued that Elliott and Sickle had failed to
allege facts plausibly supporting their common-law claims, and
that District of Columbia law does not recognize a generalized
cause of action for “prima facie tort.”
The district court bypassed the question of personal
jurisdiction and granted Torres’s motion to dismiss for failure
to state a claim. Sickle v. Torres Advanced Enter. Sols., LLC,
17 F. Supp. 3d 10, 26–27 (D.D.C. 2013). The court agreed that
Elliott and Sickle had failed to exhaust their administrative
remedies under the Base Act. Id. at 20 (quoting 20 C.F.R.
§ 707.272(a)). As for the common-law claims, the district
7
court found them preempted by the Base Act and the
Longshore Act. Id. at 21–26.
Elliott and Sickle appealed, and the case then made a round
trip journey from this court to the district court and back here
again. In the first appeal, we held the case in abeyance pending
this court’s decision in Brink v. Continental Insurance Co., 787
F.3d 1120 (D.C. Cir. 2015). Following that decision, we
dismissed Elliott’s and Sickle’s statutory claims for retaliatory
discharge under the Base Act and Longshore Act because they
had not exhausted the necessary administrative remedies, as
Brink required, 787 F.3d at 1128. See Sickle v. Torres
Advanced Enterprise Solutions, LLC, 653 Fed. App’x 763
(D.C. Cir. 2016) (citing Brink, 787 F.3d at 1128). Having
dismissed the sole federal claim in the case, we remanded to
the district court to determine whether that court would
exercise jurisdiction over the remaining common-law claims.
On remand, Torres acknowledged the existence of diversity
jurisdiction under 28 U.S.C. § 1332, and the district court
agreed.
The parties have now returned, asking this court to decide
whether the Base Act preempts Elliott’s and Sickle’s common-
law tort and contract claims.
II
We pause at the outset to address Scott Torres’s assertion
that the district court lacked personal jurisdiction over him
because he lacks the requisite minimum contacts with the
District of Columbia. Unlike subject matter jurisdiction,
personal jurisdiction is a personal defense that can be waived
or forfeited. Insurance. Corp. of Ireland v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 703 (1982). At least for
purposes of this appeal, Scott Torres has deliberately chosen
not to brief or argue the question of personal jurisdiction,
8
stating instead that the personal jurisdiction “issue is not
presently on appeal.” Torres Br. 1. Accordingly, for purposes
of this appeal, this court has personal jurisdiction over Scott
Torres. See Gilmore v. Palestinian Interim Self-Gov’t Auth.,
843 F.3d 958, 964–965 (D.C. Cir. 2016) (failure to assert a
personal jurisdiction defense waives the objection); see
generally CTS Corp. v. EPA, 759 F.3d 52, 61 (D.C. Cir. 2014)
(argument forfeited where party made only “oblique” and
“conclusory” statements in its opening brief).
III
Torres argues that the Base Act preempts both Elliott’s and
Sickle’s common-law tort and contract claims. Torres is partly
right. Elliott’s tort claims are squarely foreclosed because they
arise directly out of his own application for workers’
compensation benefits. But Elliott’s contract claim turns on
Torres’s failure to provide the promised notice before
termination for any cause and thus exists independently of the
workers’ compensation benefit process. As for Sickle, none of
his contract or tort claims is preempted because each is
divorced from any claim for benefits. Accordingly, we reverse
the district court’s dismissal of Elliott’s contract claim and of
all of Sickle’s tort and contract claims, and we remand to the
district court for further proceedings.
A
We review de novo a district court’s dismissal of a
complaint under Federal Rule of Civil Procedure 12(b)(6). See,
e.g., El Paso Natural Gas. Co. v. United States, 750 F.3d 864,
874 (D.C. Cir. 2014).
A Rule 12(b)(6) motion tests the legal sufficiency of a
claim or complaint. Browning v. Clinton, 292 F.3d 235, 242
(D.C. Cir. 2002). “To survive a motion to dismiss, a complaint
9
must contain sufficient factual matter * * * to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks and citation
omitted). In evaluating the sufficiency of a complaint, we
“accept the plaintiff’s factual allegations as true and construe
the complaint liberally, grant[ing] plaintiff[] the benefit of all
inferences that can [reasonably] be derived from the facts
alleged.” Browning, 292 F.3d at 242 (alterations in original;
internal quotation marks and citation omitted). But the court
will not credit “legal conclusions cast as factual allegations.”
Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012)
(citation omitted).
We note that, in dismissing the case, the district court was
uncertain whether preemption under the Base Act and
Longshore Act is a jurisdictional or merits-based barrier to
Elliott’s and Sickle’s claims. Sickle, 17 F. Supp. 3d. at 15–16.
To eliminate any further confusion in this area, we hold that
preemption under the Base Act and Longshore Act is not
jurisdictional. Rather, preemption forecloses a plaintiff from
stating a legally cognizable claim for recovery. Preemption
ordinarily is an affirmative defense forfeitable by the party
entitled to its benefit. See Metropolitan Life Ins. Co. v. Taylor,
481 U.S. 58, 63 (1987) (“Federal pre-emption is ordinarily a
federal defense to the plaintiff’s suit.”); FED. R. CIV. P. 8(c)
(affirmative defenses must be made in defendant’s responsive
pleading); see also Wolf v. Reliance Standard Life Ins. Co., 71
F.3d 444, 449 (1st Cir. 1995) (“[W]e hold that ERISA
preemption in a benefits-due action is [forfeitable], not
jurisdictional, because it concerns the choice of substantive law
but does not implicate the power of the forum to adjudicate the
dispute.”); Dueringer v. General American Life Ins. Co., 842
F.2d 127, 130 (5th Cir. 1988) (same); Gilchrist v. Jim Slemons
Imports, Inc., 803 F.2d 1488, 1497 (9th Cir. 1986) (same).
10
Preemption under the Base Act and Longshore Act speaks
to the legal viability of a plaintiff’s claim, not the power of the
court to act. See Fisher v. Halliburton, 667 F.3d 602, 609 (5th
Cir. 2012) (“[T]he applicability of the [Base Act’s] exclusivity
provision, like the applicability of the [Longshore Act’s]
exclusivity provision, presents an issue of preemption, not
jurisdiction. Federal preemption is an affirmative defense that
a defendant must plead and prove” and is properly addressed
under Federal Rule of Civil Procedure 12(b)(6), 12(c), or 56.). 3
Notably, neither the Base Act nor the Longshore Act
contains any indicia that Congress intended their exclusivity
provisions to have jurisdictional force. Congress did not label
those provisions as jurisdictional or otherwise indicate that the
requirement of exclusivity stripped state or federal courts of
3
See also Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d.
458, 464 n.1 (3d Cir. 2013) (“Preemption arguments, other than
complete preemption, relate to the merits of the case. Therefore, the
appropriate procedural device for reviewing the § 2680(j)
preemption argument is not a motion pursuant to Rule 12(b)(1), but
rather a motion under either Rule 12(b)(6) or for summary
judgment.”) (internal citations omitted); Trollinger v. Tysons Foods,
Inc., 370 F.3d 602, 608 (6th Cir. 2004) (“Preemption, moreover, does
not normally concern the subject-matter jurisdiction of a court to hear
a claim, which is what is relevant to the resolution of a Rule 12(b)(1)
motion. Rather, the doctrine generally concerns the merits of the
claim itself—namely, whether it is viable and which sovereign’s law
will govern its resolution.”); see generally Morrison v. National
Australia Bank Ltd., 561 U.S. 247, 254 (2010) (concluding that the
extraterritorial reach of the Securities Exchange Act “is a merits
question,” whereas subject matter jurisdiction “refers to a tribunal’s
power to hear a case.”) (internal quotation marks and citations
omitted); Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
11
their authority to act. 4 In the absence of any such jurisdictional
indicia, the Base Act’s and Longshore Act’s exclusivity clauses
should be treated as substantive rather than jurisdictional
barriers to relief. See Morrison, 561 U.S. at 254. 5
B
1
The decision whether a federal law should preempt or
operate alongside state law is Congress’s to make. As a result,
congressional purpose is “the ultimate touchstone in every pre-
emption case.” Wyeth v. Levine 555 U.S. 555, 565 (2009)
(quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)).
The starting assumption, moreover, is that federal law does not
override “the historic police powers of the States,” absent the
“clear and manifest” intent of Congress. Arizona v. United
4
See Gonzalez v. Thaler, 565 U.S. 134, 141–142 (2012) (holding
that courts should look to the “clear jurisdictional language” of the
statute, if any, to determine whether or not a bar to litigation is
jurisdictional (internal quotation marks omitted)); Arbaugh, 546 U.S.
at 516 (“[W]hen Congress does not rank a statutory limitation on
coverage as jurisdictional, courts should treat the restriction as
nonjurisdictional in character.”); see also Sebelius v. Auburn Reg’l
Med. Ctr., 568 U.S. 145, 153 (2013) (noting that courts may consider
“‘context, including [the] Court’s interpretations of similar
provisions * * *,’ as probative [evidence] of whether Congress
intended a particular provision to rank as jurisdictional”).
5
Cf. International Longshoremen’s Ass’n v. Davis, 476 U.S. 380,
387–388 (1986) (indicating that preemption may be jurisdictional in
the narrow context of a federal statute, like the National Labor
Relations Act, 29 U.S.C. § 151 et seq., that not only displaces state
law, but also affirmatively ousts state courts of jurisdiction to even
adjudicate the federal law claims).
12
States, 567 U.S. 387, 400 (2012) (quoting Rice v. Santa Fe
Elevator Corp., 331 U.S. 218 (1947)).
Congress’s preemption of state law can take two forms:
express or implied. See Geier v. American Honda Motor Co.,
529 U.S. 861, 884 (2000). Express preemption arises when the
federal statute itself announces its displacement of state law
through “an express preemption provision.” Arizona, 567 U.S.
at 399.
Implied preemption supplants state law not through an
explicit statutory provision, but through the substantive nature
and reach of the federal regulatory scheme that Congress
adopts. See Crosby v. National Foreign Trade Council, 530
U.S. 363, 388 (2000) (“Because the state Act’s provisions
conflict with Congress’s specific delegation to the President of
flexible discretion” in managing the United States’ relations
with Burma, Massachusetts’ law regulating state commerce
with Burma “is preempted, and its application is
unconstitutional, under the Supremacy Clause.”). Both field
and conflict preemption are forms of implied preemption. See
Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1595 (2015)
(“[E]ven where, as here, a statute does not refer expressly to
pre-emption, Congress may implicitly pre-empt a state law,
rule, or other state action * * * either through ‘field’ pre-
emption or ‘conflict’ pre-emption.”); Waterview Mgmt. Co. v.
Federal Deposit Ins. Corp., 105 F.3d 696, 700 (D.C. Cir. 1997)
(distinguishing between express, field, and conflict
preemption).
Field preemption will be found where “a framework of
regulation” is “‘so pervasive’” that it leaves no space for state
supplementation, or where the federal interest is “so dominant”
that the existence of a federal scheme can “be assumed to
preclude enforcement of state laws on the same subject.”
13
Arizona, 567 U.S. at 399 (comprehensive federal regime for
alien registration preempts state regulation) (citation omitted);
Boyle v. United Techs. Corp., 487 U.S. 500, 504–505 (1988)
(procurement of military equipment is an area of “uniquely
federal interest” that preempts state regulation). Field
preemption thus forecloses state regulation altogether in an
area of law, such as alien deportation or nuclear safety
regulation, irrespective of a state law’s compatibility with the
federal regime. See Oneok, 135 S. Ct. at 1595.
By contrast, conflict preemption—true to its name—exists
when the operation of federal and state law clash in a way that
makes “compliance with both state and federal law * * *
impossible,” or when “state law ‘stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.’” Oneok, 135 S. Ct. at 1595 (quoting
California v. ARC America Corp., 490 U.S. 93, 100 (1989)).
2
Applying those preemption principles here, we hold that
the Base Act does not expressly preempt Sickle’s or Elliott’s
tort or contract claims. The Act provides only that its workers’
compensation benefit scheme “shall be exclusive and in place
of all other liability of” employers and contractors to
“employees (and their dependents) coming within the purview
of this chapter, under the work[ers’] compensation law of any
State, Territory, or other jurisdiction.” 42 U.S.C. § 1651(c).
Express preemption under that provision thus is limited to
claims “under the work[ers’] compensation law of any State,
Territory, or other jurisdiction.” Id. Sickle’s and Elliott’s
contract and tort claims do not fit that bill. They arise under
the common law, not the District’s statutory workers’
compensation law. See D.C. CODE § 32-1501 et seq.
14
Our textual analysis cannot stop there, however, because
Brink held that the Base Act also incorporates the exclusivity
provision of the Longshore Act. Brink, 787 F.3d at 1125. That
statute provides that the liability of covered employers
“prescribed in section 904 * * * shall be exclusive and in place
of all other liability of such employer to the employee” for the
“recover[y] [of] damages from such employer at law or in
admiralty on account of such injury or death.” 33 U.S.C.
§ 905(a), incorporated into the Base Act, 42 U.S.C. § 1651(a).
While the Longshore Act’s exclusivity provision is
broader than the Base Act’s, it still is not broad enough to
expressly foreclose the tort and contract claims at issue here.
That is because the Longshore Act makes exclusive an
employer’s liability as “prescribed in section 904” of the
Longshore Act. 33 U.S.C. § 905(a). Section 904, in turn,
makes employers liable for “compensation payable under
sections 907, 908, and 909.” Id. § 904. Respectively, those
sections refer to: (1) medical treatment, id. § 907; (2)
disability, id. § 908; and (3) death, id. § 909.
But Elliott’s and Sickle’s contract and tort claims do not
seek to impose additional or further liability on Torres for
medical treatment or ongoing disability, and certainly not for
wrongful death. They seek only damages for breach of
contract, retaliatory discharge, and conspiracy to commit those
torts. To be sure, the Longshore Act covers retaliatory
discharge. But it does so in Section 948a, a Section omitted
from the Longshore Act’s exclusivity provision. 6 Accordingly,
none of Elliott’s and Sickle’s claims is expressly preempted.
6
Cf. Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 716 (1980)
(holding that, even as to state workers’ compensation regimes, the
Longshore Act does not preempt claims arising from “land-based
injuries”).
15
3
Implied preemption is a different story. This time we are
not writing on a clean slate: This court has already held that
the Longshore Act’s exclusivity provision impliedly precludes
“common-law tort remedies against employers for work-
related injuries.” Hall v. C&P Tel. Co., 809 F.2d 924, 926
(D.C. Cir. 1987). Hall explained that the Longshore Act
established a “comprehensive scheme for compensating
employees who are injured or killed in the course of
employment.” Id. (emphasis in original). Under the statute,
“employees relinquish” any common-law tort claims in
exchange for “the guarantee of a practical and expeditious
statutory remedy” for their workplace injuries. Id. To allow
separate common-law actions, we concluded, would unravel
the calibrated compromise that Congress wove. Id.Then in Brink, we held that the Base Act embodies the
same type of “legislated compromise”—a “quid pro quo”
surrender of tort claims arising out of workplace injuries in
exchange for an expeditious statutory remedy. 787 F.3d at
1125 (internal quotation marks omitted). Accordingly, we held
that the Base Act’s exclusivity provision impliedly preempted
state tort claims of conspiracy, bad faith, outrage, and wrongful
death because those claims were “directly relate[d] to [the
plaintiffs’] claims for Base Act benefits.” Id.
Implied preemption has its limits, however. As Brink
noted, the Act does “not preclude [individuals] from pursuing
claims that arise independently of a statutory entitlement to
benefits, such as a common-law assault claim,” or a “breach of
contract” claim “based on a separate agreement to make
payments * * * to provide care.” 787 F.3d at 1126 (citations
omitted).
16
Under Brink and Hall, Elliott’s tort claims are foreclosed
because they would undo the legislated quid pro quo under
which a benefits claimant like Elliott exchanges common-law
tort litigation for the ease of expeditious and predictable
recovery of the Base Act’s statutory benefits. Elliott’s tort
claims relate to and arise directly out of his entitlement to and
recovery of statutory workers’ compensation benefits. His
retaliatory discharge, conspiracy, and prima facie tort claims
all address the same conduct: Torres’s allegedly unlawful
discharge of him in retaliation for filing a Base Act benefits
claim. Part of the legislated compromise, however, is that the
Base Act provides its own remedy for claims that an employer
retaliated “because such employee has claimed or attempted to
claim compensation from such employer.” 33 U.S.C. § 948a.
Allowing Elliott two bites at the retaliation apple would upset
the balance that Congress struck.
Elliott objects that the Base Act’s statutory remedies fall
short because he is no longer “capable of performing” his pre-
existing duties, which is a prerequisite for back-pay under the
Act. 33 U.S.C. § 948a. But that argument just disagrees with
how Congress balanced competing interests. Allowing
employees to take Base Act benefits while escaping any Base
Act limitation they find too confining would transform the
give-and-take that Congress legislated into a take-and-take for
employees.
Elliott also argues that implied preemption does not apply
to “intentional” torts. Not so. Brink specifically held that the
Base Act’s preemptive bar “clearly encompasses intentional
tort claims of the kind alleged” in this action. 787 F.3d at 1124,
1126.
The preemption answer is different for Sickle. Unlike
Elliott, Sickle’s tort claims arise “independently of an
17
entitlement to benefits” under the Base Act. Brink, 787 F.3d at
1126. Sickle was never physically injured on the job; he never
had a Base Act claim to pursue; he neither sought nor obtained
benefits under the Act; and he claims no “entitlement to
benefits” under the statute. Id.
Neither does the Base Act’s retaliation provision apply to
Sickle. The Act only speaks to retaliation against an employee
“because he has testified or is about to testify in a proceeding
under this chapter.” 33 U.S.C. § 948a. Sickle was not involved
in or asked to testify in any matter, let alone in a “proceeding
under this chapter.” Id. Instead, Sickle was terminated simply
because, according to his complaint, he truthfully documented
Elliott’s medical injuries. Nor could the preemption of Sickle’s
claims be chalked up to legislative compromise because Sickle
was not a Base Act claimant and has no legal entitlement to
such benefits. He thus never participated in any quid pro quo.
As Brink explained, the Base Act’s field of exclusive federal
authority stops where the claims at issue “arise independently
of an entitlement to benefits” under the Base Act. 787 F.3d at
1126; see also Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715,
716 (1980) (holding that state workers’ compensation schemes
fall outside the Longshore Act’s preemptive reach).
Torres argues that Sickle’s filing of a medical report
amounts to testimony “in a proceeding,” for purposes of the
retaliation provision. That wrenches the language of Section
948a out of context and strains its ordinary meaning. The
statute speaks of testimony “in a proceeding under this
chapter.” 33 U.S.C. § 948a (emphasis added). The Longshore
Act identifies the types of “proceedings” available under the
chapter, and they are healthcare provider adjudications, id.
§ 907(j), settlement denials, id. § 908(i)(2), non-payment
investigations, id. § 914(h), and claims adjudications, id.
§ 919(c). No such proceeding—or anything bearing any
18
logical resemblance to a “proceeding”— took place in this
case. 7
Common sense confirms the point. One would not
reasonably think, for example, that a paramedic filling out
paperwork in an ambulance or a doctor taking notes in a
medical office is participating in an administrative
“proceeding.” See generally BLACK’S LAW DICTIONARY (8th
ed. 1979) (defining “testimony” as “evidence given under oath
or affirmation; as distinguished from evidence derived from
writings, and other sources,” and defining “proceeding” as “the
form and manner of conducting juridical business before a
court or judicial officer”); THE AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE (New College ed.
1976) (defining “testify” as “[t]o make a declaration of truth or
fact under oath,” and “proceeding” as “[l]egal action;
litigation.”); cf. Norris v. Lumbermen’s Mut. Casualty Co., 881
F.2d 1144, 1150 (1st Cir. 1989) (finding no preemption for
retaliatory discharge claim because whistleblowing did not fall
under “commenced, caused to be commenced, or is about to
commence or cause to be commenced a proceeding,” if no
proceeding ever occurred). 8
7
Hearings conducted under the Longshore Act are held in
accordance with 5 U.S.C. § 556. That subchapter defines an “agency
proceeding” as a rulemaking, adjudication, or licensing. 5 U.S.C.
§ 551(12).
8
See also Sexton v. Panel Processing, Inc., 754 F.3d 332, 336 (6th
Cir. 2014) (rejecting claim that an email sent complaining of a
violation of ERISA constituted participation in “an inquiry” and thus
fell within ERISA’s anti-retaliation provision); cf. Sasse v.
Department of Labor, 409 F.3d 773, 780 (6th Cir. 2005) (engaging
in normal job duties is not considered protected activity under federal
19
In short, unlike Elliott, Sickle has not asserted any claim
for or entitlement to workers’ compensation benefits, and he
has not participated in or been aided by the “legislated
compromise” that the Base Act effectuates. Brink, 787 F.3d at
1124; see also Washington Metro. Area Transit Auth. v.
Johnson, 467 U.S. 925, 931 (1984). Accordingly, for all
relevant intents and purposes, Sickle stands outside of the Base
Act’s benefits scheme, and his tort claims are untouched by the
Act’s preemptive reach.
Finally, the Base Act does not preempt either Elliott’s or
Sickle’s contract claims. Brink recognized that claims of
contractual liability that exist independently of a claim for
benefits are not foreclosed. 787 F.3d at 1126. The only issue
raised by the contract claims is whether Torres provided the
required advance notice of termination, and resolution of that
specific question has no bearing on either Elliott’s or Sickle’s
entitlement to or recovery of workers’ compensation benefits
under the Base Act. Instead, that contract claim rises or falls
on the language of the contract, which is completely untethered
to Base Act eligibility. Put another way, the question of
whether Torres provided the contractually required notice prior
to terminating Elliott and Sickle has nothing to do with Elliott’s
receipt of benefits under the Base Act.
*****
The touchstone for implied preemption under the Base Act
is a claim’s nexus to the statutory benefits scheme. Because
Elliott sought and obtained workers’ compensation under the
Base Act, his tort claims arising from that benefits process are
preempted, but his independent claim of contractual injury is
not. Sickle, for his part, never set foot into the Base Act’s
anti-retaliation statutes); Willis v. Department of Agric., 141 F.3d
1139, 1145 (Fed. Cir. 1998) (same).
20
regulatory arena, so both his tort and contract claims can
proceed. Accordingly, we affirm the district court’s dismissal
of Elliott’s tort claims (Counts III and IV of the Amended
Complaint), but reverse as to Sickle’s tort claims (Count III and
IV of the Amended Complaint) and as to both Elliott’s and
Sickle’s remaining contract claims (Count II of the Amended
Complaint), and remand to the district court for further
proceedings consistent with this decision.
So ordered.