Irby v. Blackwater Security Consulting
| Decision Date | 14 April 2010 |
| Docket Number | 09-0548 |
| Parties | PATRICIA IRBY (on behalf of the minor children of STEPHEN S. HELVENSTON, deceased), Claimant-Petitioner v. BLACKWATER SECURITY CONSULTING and FIDELITY AND CASUALTY COMPANY OF NEW YORK/CNA INTERNATIONAL, Employer/Carrier-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order Granting Summary Decision and the Order on Reconsideration of William Dorsey, Administrative Law Judge, United States Department of Labor.
Marc P. Miles and Kristy A. Schlesinger (Callahan & Blaine APLC), Santa Ana, California, for claimant.
Keith L. Flicker (Flicker, Garelick & Associates, LLP), New York, New York, and Roger A. Levy (Laughlin, Falbo, Levy & Moresi, LLP), San Francisco, California, for employer/carrier.
Matthew W. Boyle, (M. Patricia Smith, Solicitor of Labor; Rae Ellen Frank James, Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION and ORDER
Claimant appeals the Decision and Order Granting Summary Decision and the Order on Reconsideration (2006-LDA-00015) of Administrative Law Judge William Dorsey rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C §901 et seq. (the Act), as extended by the Defense Base Act, 42 U.S.C. §1651 et seq. (the DBA). We must affirm the administrative law judge's findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
This case is on appeal for the second time. Irby v. Blackwater Security Consulting, LLC, 41 BRBS 21 (2007). The claim for death benefits under the Defense Base Act arises out of the death of Stephen Helvenston, as well as three other men, in an ambush in Fallujah, Iraq, on March 31, 2004. The decedent worked for Blackwater Security Consulting (employer), which apparently assigned him to its contract with Regency Hotel and Hospital Company. Regency had a contract with ESS Support Services Worldwide to provide security services for ESS in Iraq and Kuwait. Claimant, on behalf of decedent's minor children, filed a claim for death benefits under the Act, 33 U.S.C. §909, but also filed suit against employer in state court in North Carolina, alleging causes of action for wrongful death and fraud under North Carolina law.[1] See Nordan v. Blackwater Security Consulting, LLC, 382 F.Supp.2d 801 (E.D. N.C. 2005), appeal dismissed sub nom. In re Blackwater Security Consulting, LLC, 460 F.3d 576 (4th Cir. 2006), cert. denied, 549 U.S. 1260 (2007). This case was subsequently submitted to arbitration. See Blackwater Security Consulting, LLC v. Nordan, No. 2:06-CV-49-F (E.D. N.C. Apr. 20, 2007), appeal dismissed, No. 07-1508 (4th Cir. Oct. 17, 2008).
With regard to the death benefits claim filed under the Act, employer accepted liability for the claim and began paying appropriate death benefits. Claimant, however, would not agree to the district director's entry of a compensation order. Employer therefore sought referral of the claim to the Office of Administrative Law Judges (OALJ) for a formal hearing. Employer filed with the administrative law judge a "Confession to Entry of Order Awarding Benefits, " and sought remand of the case to the district director for the entry of a compensation order pursuant to the withdrawal of controversion regulation, 20 C.F.R. §702.351. Claimant resisted the entry of a compensation order, and the district director therefore declined to issue a compensation order due to the lack of agreement between the parties. See 20 C.F.R. §702.316. The administrative law judge subsequently ordered employer to file a motion for summary decision, which it did. Claimant did not respond to the motion, but instead filed a motion for withdrawal of the claim pursuant to 20 C.F.R. §702.225. The administrative law judge denied the motion to withdraw, finding it was not for a proper purpose or in claimant's best interests.
Employer appealed the refusal to enter a compensation order pursuant to the withdrawal of its controversion. Claimant appealed the denial of her motion to withdraw the claim. The Board first addressed employer's contention that the administrative law judge lacked jurisdiction to rule on claimant's motion to withdraw because employer withdrew its controversion of the claim before claimant moved to withdraw. The Board held that Section 702.351 of the regulations presupposes that the parties are in agreement as to the disposition of the case. As the parties were not in agreement here, with employer seeking a compensation order and claimant resisting one, the Board stated that the administrative law judge properly declined to remand the case to the district director and retained authority over the case at the time claimant filed her motion to withdraw the claim. Irby, 41 BRBS at 24.
The Board next addressed whether the administrative law judge properly denied claimant's motion to withdraw her claim pursuant to 20 C.F.R. §702.225. The Board held that the administrative law judge erred in finding that claimant's motion to withdraw was not for a proper purpose, as a claimant has the right to choose in which forum she will first litigate her claim. However, the Board affirmed the finding that withdrawal was not in claimant's best interest as claimant's recovery in the state forum was uncertain, both on the claims asserted and on a monetary basis. Irby, 41 BRBS at 26-28. The Board thus remanded the case to the administrative law judge to address employer's motion for summary decision.[2]
On remand, the administrative law judge granted employer's motion for summary decision. Relevant to this appeal, employer's motion asserted that: (1) decedent was subject to the DBA as he was employed on a "public work" project pursuant to a contract subordinate to one with the United States, 42 U.S.C. §1651(a)(4); and (2) the DBA covers all those who work under a contract covered by Section 1651(a), 42 U.S.C. §1651(a), regardless of one's status as an employee or an independent contractor. Claimant responded that decedent's work was not within the coverage of the DBA such that summary decision is not appropriate as a matter of law. Specifically, she contended that employer did not establish that decedent worked pursuant to a contract with the United States, that only employees are covered under the DBA and that she raised an issue of material fact as to whether decedent was an "employee" of employer's or an independent contractor, and that employer had a willful intent to injure decedent such that employer is not entitled to tort immunity pursuant to Section 1651(c), 42 U.S.C. §1651(c).[3]
The administrative law judge found that decedent was working under the "public work" provision of the DBA, as this section covers "operations under service contracts and projects in connection with . . . war activities." 42 U.S.C. §1651(a)(4), (b)(1), (3). The administrative law judge found that no issues of fact were raised with regard to this issue and that DBA coverage exists as a matter of law. The administrative law judge also found that decedent was covered under the DBA regardless of whether he was an "employee" or an "independent contractor." Lastly, the administrative law judge found that claimant did not put forth sufficient evidence to establish that employer intended to injure the decedent. Thus, the administrative law judge found that the Act is claimant's exclusive remedy. Accordingly, the administrative law judge granted employer's motion for summary decision and entered an award of death benefits to decedent's minor children.
The Director, Office of Workers' Compensation Programs (the Director), moved for reconsideration. He contended that the administrative law judge failed to make a finding that decedent's work for employer was pursuant to a contract with the United States. The Director also contended that the DBA applies only to "employees" and not to independent contractors; in this regard, the Director maintained that if there was a genuine issue of fact on this issue, employer's motion for summary decision must be denied and a hearing held.
In his decision on reconsideration, the administrative law judge found that decedent was working pursuant to a string of contracts ultimately tied to a contract with the Department of Defense. The administrative law judge also stated that the Director's opinion that one must be an "employee" would create a class of DBA workers without a remedy short of a tort action. The administrative law judge concluded that if an "employee" requirement exists, then decedent was an "employee" of employer.[4]
Claimant appeals the administrative law judge's grant of employer's motion for summary decision. Claimant contends the administrative law judge erred in failing to allow claimant to withdraw her claim. Claimant also contends the administrative law judge erred in failing to allow sufficient discovery. Claimant contends the grant of summary decision was improper because she raised genuine issues of material fact and that the DBA does not apply as a matter of law because: none of the DBA's coverage elements was met; the DBA does not apply to independent contractors; and the exclusive DBA compensation remedy does not apply when the injury is caused by the intentional misconduct of employer.
The Director has filed a response brief, agreeing with claim...
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