Truczinskas v. Dir., Office of Workers' Comp. Programs

• Citation: 699 F.3d 672
• Decision Date: 20 November 2012
• Docket Number: No. 11–2503.,11–2503.
• Parties: Terri TRUCZINSKAS, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, G.D. Arabia Ltd., and Insurance Company of the State of Pennsylvania/AIG, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

699 F.3d 672

Terri TRUCZINSKAS, Petitioner,

v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, G.D. Arabia Ltd., and Insurance Company of the State of Pennsylvania/AIG, Respondents.

No. 11–2503.

United States Court of Appeals, First Circuit.

Heard Oct. 1, 2012.

Decided Nov. 20, 2012.

Joshua T. Gillelan II, Longshore Claimants Nat'l Law Center, with whom Donald E. Wallace and MacDonald & Wallace were on brief for petitioner.

Roger A. Levy with whom James Ralph and Laughlin, Falbo, Levy & Moresi, LLP were on brief for respondents G.D. Arabia Ltd., and Insurance Company of the State of Pennsylvania/AIG.

Matthew W. Boyle, United States Department of Labor, Office of the Solicitor, for respondent Director, Office of Workers' Compensation Programs, United States Department of Labor.

Before LYNCH, Chief Judge, BOUDIN, Circuit Judge, and McCONNELL, JR., ^* District Judge.

BOUDIN, Circuit Judge.

Michael Truczinskas, age 46, was employed until his death by GD Arabia, Ltd. (“GD”) as a military trainer in Tabuk, Saudi Arabia. On the morning of December 5, 2008, according to the testimony of a co-worker, Truczinskas was found inside his villa hanging from a cross-beam with a noose around his neck. Shortly thereafter, a doctor at a nearby hospital pronounced Truczinskas dead and identified “asphyxiation by hanging” as the cause of death.

Five months later, Michael Truczinskas' widow, Terri Truczinskas, filed a claim for death benefits on behalf of herself and the couple's three children under the Defense Base Act (“DBA”), 42 U.S.C. §§ 1651–1654 (2006). Pursuant to agency policy and as authorized by statute, the matter was transferred to the district director's office based in Boston, the location closest to Terri Truczinskas' Connecticut home, and adjudicated there. ¹ An administrative law judge (“ALJ”) denied Terri Truczinskas' claim on November 18, 2010. A three-judge panel of the Department of Labor's Benefits Review Board affirmed the ALJ's order on December 13, 2011, with one member of the panel dissenting.

Terri Truczinskas now seeks direct review in this court, raising an issue of jurisdiction on which the circuit courts are divided. Terri Truczinskas, GD (and its insurance carrier) and the Department of Labor are all satisfied that we have jurisdiction, but as the parties cannot confer such jurisdiction where it does not exist, we must still address the issue. García–Velázquez v. Frito Lay Snacks Caribbean, 358 F.3d 6, 8 (1st Cir.2004). It turns out to be a close call even though the sensible result, consistent with Congress' policy, clearly supports our jurisdiction.

When Congress adopted the DBA in 1941, it aimed to provide workers' compensation covering, among others, individuals employed outside the continental United States under contracts with or approved by the federal government. DBA § 1(a)(4)–(5), 42 U.S.C. § 1651(a)(4)–(5). Drawing on the federal model in the already established Longshoremen's and Harbor Workers' Compensation Act (the “Longshore Act,” or “LHWCA”), the DBA adopted the earlier act by cross-reference, saying that “[e]xcept as herein modified, the provisions of the [Longshore Act], as amended, shall apply in respect to the injury or death of any employee” within the scope of the DBA. DBA § 1(a), 42 U.S.C. § 1651(a).

In 1941, compensation decisions under the Longshore Act were made by deputy commissioners whose decisions were then initially reviewed by the district court located in the district where the injury or death occurred. 33 U.S.C. § 921(b) (1940). But because the harms under the DBA would in many cases occur outside the United States where no district court had jurisdiction, the DBA provided that judicial review of DBA awards should commence “in the United States district court of the judicial district wherein is located the office of the deputy commissioner whose compensation order is involved,” DBA § 3(b), 42 U.S.C. § 1653(b).

The “as amended” language in section 1 of the DBA has been regularly read to mean that the DBA would incorporate “not only the version of the [Longshore Act] in force at the time the DBA was enacted, but all subsequent LHWCA amendments as well.” E.g., AFIA/CIGNA Worldwide v. Felkner, 930 F.2d 1111, 1113 n. 3 (5th Cir.), cert. denied,502 U.S. 906, 112 S.Ct. 297, 116 L.Ed.2d 241 (1991). Thus, presumptively a change Congress thinks suitable for the Longshore Act also applies to the DBA, unless otherwise provided in the new Longshore Act amendment. And Congress included no such provision precluding application to the DBA when, in 1972, it amended the Longshore Act to modernize the ordinary scheme for awarding compensation.

Under the 1972 amendments, the district director is empowered to refer cases to an administrative law judge, who then holds a formal hearing and makes the initial decision, subject to further administrative review by a Benefits Review Board.² The Board's decision, in turn, is reviewed not in the district court but instead in the circuit court where the injury occurred. Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, Pub.L. No. 92–576, §§ 14–15, 86 Stat. 1251, 1261 (codified as amended at 33 U.S.C. §§ 919(d), 921(b)– (c)).

This created a tension because the Longshore Act now embodied the increasingly common scheme for judicial review of administrative agency action and the Longshore Act changes presumptively carry over to the DBA, but Congress seemingly overlooked and did not repeal the earlier DBA provision for judicial review of DBA compensation decisions in the local district court. In resolving this tension, the circuit courts are now almost evenly split on whether initial judicial review of DBA awards should be in the district or the circuit court. ³

This circuit, e.g., Air America, Inc. v. Director, Office of Workers' Compensation Programs, 597 F.2d 773, 775 (1st Cir.1979), and the Supreme Court, Director, Office of Workers' Compensation Programs v. Rasmussen, 440 U.S. 29, 35, 99 S.Ct. 903, 59 L.Ed.2d 122 (1979), have both assumed jurisdiction over appeals of DBA compensation awards after 1972 that never passed through the district court. But in neither these or other like instances did either court pass from assumption to express consideration of jurisdiction, so strictly speaking we are not bound to find jurisdiction in this case. Ariz. Christian Sch. Tuition Org. v. Winn, ––– U.S. ––––, 131 S.Ct. 1436, 1448, 179 L.Ed.2d 523 (2011).

Nevertheless, the Defense Base Act can be legitimately read to confer such jurisdiction upon us, and this reading accords with the overall congressional policy reflected in the 1972 Longshore Act amendments. Congress likely gave no thought at all to the wrinkle that concerns us; but, where statutory language permits a given reading and Congress' policy will be fostered by it,⁴ we think that reading should prevail—even if, as here, that statutory language would also permit a contrary reading at odds with Congress' statutory policy.

The circuits that insist on district court jurisdiction have done so because they deem this compelled by the original DBA proviso that the Longshore Act, including any subsequent amendments, applies “[e]xcept as herein modified.” Because the DBA did adopt a separate provision for district court review where the compensation decision was made, these circuits see the just quoted “except” language as freezing in amber, and insulating from the 1972 Longshore Act amendments, the entire subject of judicial review of Review Board compensation decisions in DBA cases. See, e.g., Lee v. Boeing Co., 123 F.3d 801, 805 (4th Cir.1997).

By contrast, the Second Circuit, favoring jurisdiction in the circuit courts, offers a plausible alternative reading. See Serv. Emps. Int'l, Inc. v. Dir., Office of Workers Comp. Program, 595 F.3d 447, 452–55 (2d Cir.2010). Judge Miner pointed out that when Congress initially adopted the Longshore Act scheme for DBA awards in 1941, the statute already provided for review of a deputy commissioner's decisions by the district court; section 3(b) of the DBA did no more than identify for the DBA awards a different venue—the locus of the award (for DBA awards) rather than the locus of the injury (for Longshore Act awards). Id. at 454.

So read, the only thing frozen in amber by the “[e]xcept as herein modified” qualification is the specification of the reviewing court's location; and when Congress decided in 1972 that the proper court initially to review compensation orders should be the circuit rather than the district court, the modification is fully respected by providing that the location of the reviewing court (now circuit rather than district) shall be the one with authority where the initial compensation order was filed, as it was here.

This approach maintains, so far as possible, the congruence between the two schemes otherwise conjoined in 1941. And Congress' overall policy intentions can hardly be open to doubt: because a new layer of administrative review is now provided for DBA as well as Longshore Act award decisions and because judicial review will in both cases be on the administrative record, district court review—whether of DBA or Longshore compensation rulings—provides no benefit but merely adds expense and delay in getting around to a circuit court decision. Lee, 123 F.3d at 808 (Hall, J., dissenting).

The obvious efficiency of bypassing the district court likely explains why in this case the claimant, the company and the Department of Labor, while not all agreeing on the merits, all favor direct review jurisdiction in the circuit court. It explains too why this circuit and the Supreme Court found it easy to assume such direct review jurisdiction. In sum, this is a permissible reading as well as the reading that Congress would have wished us to give a complex set of provisions where loose ends are almost unavoidable. If the case had gone to the district court in Boston, our...