UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) DAVID SICKLE, et. al. , ) ) Plaintiff s , ) ) v. ) Civil No. 11

- cv
- 2224 (KBJ) ) TORRES ADVANCED ENTERPRISE SOLUTIONS, LLC, et. al. , ) ) ) Defendant s
. ) )
MEMORANDUM OPINION
Plaintiffs David Sickle and Matthew Elliot (“Plaintiffs”) are former military sub

contractors for Torres Advanced Enterprise Solutions, LLC (“Torres AES”). Plaint iffs
maintain that Torres AES

— acting through one of the principals, Scott Torres

— improperly discharged them in retaliation for Elliot’s having lodged a workers’ compensation claim after he suffered a back injury while on the job. Plaintiffs have brought the instant action aga inst Defendants Torres AES and Scott Torres (“Defendants”) , alleging retaliatory discharge for Elliot’s having soug ht worker s’ compensation benefits under the Defense Base Act (“D BA”), in violation of 33 U.S.C. § 948a, and also claiming several tort and contract breaches in violation of common
law. (First Amended Compl

. (“Am. Compl.”), ECF No. 7, ¶ 1.)
Before this C ourt at present is Defendants’ motion to dismiss the complaint for failure to state a claim upon which relief can be granted under Rule 12(b)(6). (Defs

. ’2 Mot

. to Dismiss First Amended Compl

. (“ Def s
. ’ Mot. ”), ECF No. 10, at 1.) 1
Defendants’ motion to dismiss is primarily predicated on the argument that Plaintiffs’
federal action is procedurally improper because the DBA and the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), on which the DBA is based, establish the
exclusive remedy for Plainti ffs’ alleged injuries. The Court agrees, and for the specific

reasons discussed below, Defendants’ motion to dismiss the amended complaint is
GRANTED

. A separate order consistent with this opinion will follow.

I. BACKGROUND
A. Facts Alleged In The Complaint
Torres AES is a military defense contractor that contracts with the Department of Defense, the Department of State, and Saber Security International (another defense contractor) to provide security and other services at United States installations abroad. (Am. Compl. ¶ 4.) Sickle and Elliot are both sub

- contractors who worked for Torres
AES at Forward Operating Base Shield (“FOB Shield”) in Iraq during 2010. ( Id. ¶ 7

- 8. )
Torres AES first hired Sickle as a medic at FOB Shield in February 2009, and it
executed a new, one
- year contract with Sickle on June 1, 2010. ( Id. ¶ 7.) Torres AES
contracted with Elliot to work at FOB Shield as a kennel master , managing trained dogs used for explosive detection; this employment contract commenced on February 16,
2 010, and was effective through December 31, 2010. ( I d. ¶¶ 8

- 9.) On March 15, 2010, approximately one month after beginning work at FOB Shield, Elliot injured his b ack while on base. ( Id

. ¶ 1 0

- 11 .) According to the amended

1 Defendants have also moved to dismiss the complaint against Scott Torres for lack of personal jurisdiction under Rule 12(b)(2). ( See Defs.’ Motion at 1). The Court need not reach this alternative ground for dismissal , see infra Part III(C), and declines to do so

.3 complaint, Elliot was asked to help place sandbags on the base, and he suffered what was later though t to be a herniated disc after handling and stacking nearly 400 sandbags that were approximately 60 pounds each. ( I d. ¶ 10.) As the Medical Officer that Torres AES employed on base, Sickle examined Elliot ’s back injury, treated him with pain medication, and recommended that Elliot obtain further medical treatment in the United
States

. ( I d. ¶¶ 10, 12.) On April 30, 2010, Elliot returned to the United States. ( I d. ¶ 16

. ) Sickle wrote
an undated report about Elliot ’s injury that was faxed on May 12, 2010. ( Id. ¶11; Ex. A, ECF No. 7

- 1.) After a failed first attempt to obtain DBA workers’ compensation
benefits as a result of his injury , Elliot received medical coverage and temporary total disability benefits pursuant to the DBA’s administrative process

. (Am. Compl. ¶ 13.)
Plaintiffs allege that Elliot was set to return to duty on May 16, 2010, but that
Scott Torres terminated Elliot by email and without advance written notice on May 9, 2010, after learning of Elliot’s DBA workers’ compensation claim

. ( I d. ¶ 16.) 2
Plaintiffs further maintain that Torres AES and Scott Torres represented to insurance
company representatives that the benefits claim was false and that Elliot was fired for filing a false claim. ( I d. )
As concerns Sickle, Plaintiffs allege that Torres AES and Scott Torres “ were aware of Mr. Sickle’s accident report verifying Mr. Elliot’s injury on the job prior to
his return home,” ( id. ¶ 16) , and that they dispatched agents in Iraq during June 2010,

to “intimidate[] and threaten[]” Sickle to retract his report about Elliot ’s injury ( i d.

2 The amended complaint states that Elliot’s contract was a year

- long agreement that “requires a 28 day notice by certified mail to Mr. Elliot to terminate the contract.” (Am. Compl. ¶ 16.) Whether the c ontract requires written notice for effec tive termination is a fact in dispute, the resolution of which is irrelevant to the resolution of this action

.4 ¶ 15)

. When Sickle refused, Defendants allegedly expressed “great anger” and sent Sickle back to the United States for thirty days to “think things over.” ( I d. ¶¶ 1 6

- 17.)
After Sickle again refused to withdraw his report regarding Elliot’s injury, Scott Torres allegedly terminated Sickle without the required notice, and also in retaliation for assisting Elliot with his DBA claim. ( I d. ¶ 16.)
B. Procedural History Plaintiffs filed a complaint in this court on December 14, 2011. (ECF No. 1.) On April 9, 2012, P la intiffs filed an amended complaint, claiming that Elliot and Sickle were improperly discharged in retaliation for the filing of a workers’ compensation
claim that was valid under the DBA “but which Scott Torres regarded as faked.” (Am. Compl. ¶ 17.) The amended complaint alleges four counts against Defendants Torres AES and Scott Torres; to wit: (1) discrimination and retaliatory discharge in violation of 33 U.S.C. § 948a (Count I); (2) breach of contract and the covenant of good faith and fair dealing (Count II); (3) common law improper retaliatory discharge for the filing of a worker’s compensation claim (Count I II ), and (4) “[c]onspiracy and prima facie tort” on the grounds that Defendants conspired with their workers’ compensation insurance
carrier to commit the acts alleged in the amended complaint (Count IV). ( Id. ¶¶ 20

- 43.) On April 27, 2012, Defendants filed a m otion to dismiss the complaint in its entirety. Defendants’ arguments expressly rely on Federal Rule of Civil Procedure 12(b)(6), dismissal for failure to state a claim upon which relief can be granted, and also Rule 12(b)(2), lack of personal jurisdiction in regard to Scott Torres. ( Def s
. ’ Mot

. at 1.) As explained further below, in regard to the 12(b)(6) argument, Defendants first
maintain that the DBA provides the exclusive remedy for the injury that Plaintiffs5 allege they have suffered such that Plaintiffs are precluded from bringing an action seeking redress in this Court. Notably, this “exclusivity” argument implicates both
exhaustion and preemption principles. ( S ee Mem

. in Support of Defs

. ’ Mot

. to Dismiss
First

- Amended Complaint (“ Def s
. ’ Mem

. ”), ECF No. 10, at 13 , 15. 3 ) Defendants argue, in the alternative, that even if it is legally proper for Plaintiffs to have brought a § 948a
claim in federal court, Plaintiffs have failed to allege facts sufficient to demonstrate retaliatory termin ation under the DBA. ( I d. at 19.) Defendants also argue, in regard to Plaintiffs’ common law claims, that Plaintiffs have failed to state claims for breach of
contract/breach of the covenant of good faith and fair dealing ( id. at 22), and for retaliatory termination in violation of public policy, and that the District of Columbia does not recognize a cause of action for a “prima facie tort” ( id. at 29).
Defendants’ motion to dismiss became ripe on June 1, 2012

. The case was
transfer red to the undersign ed on April 5, 2013, and th is Court held a hearing on June 6,
2013.

II. LEGAL LANDSCAPE

A. Motion to Dismiss Standards Although Defendants have expressly grounded their motion to dismiss on Rules 12(b)(6) and 12(b)(2), their primary dismissal argument s are that a ny claims arising from Plaintiffs’ allegedly retaliatory discharges must be resolved through the DBA’s
administrative claims process, and that the DBA preempts Counts II

- IV of Plaintiffs’
amended c omplaint. It is unclear in this District whether a defendant should assert such

3 Page numbers refer to the original document numbers at the bottom of each page, and not the numbers that the Court’s electronic filing system assigns.6 exhaustion and preemption defenses in a Rule 12(b)(1) motion, as jurisdictional defects,
or in a Rule 12(b)(6) motion for failure to state a claim. See, e.g. , Hansen v. Billington , 644 F. Supp. 2d 97, 102 (2009); In re Rail Fr eight Fuel Surcharge Anti t rust Litig. , 593 F. Supp. 2d 29, 40 n.5 (D.D.C. 2008). The Court will therefore lay out the governing
standard for each rule. A Rule 12(b)(1) motion tests whether this Court has subject matter jurisdiction over the complaint. Under Rule 12(b)(1 ), the plaintiff bears the burden of establishing the existence of jurisdiction by a preponderance of the evidence. See Erby v. United
States , 424 F. Supp. 2d 180, 18 2 (D.D.C. 2006); see also Grand Lodge of Fraternal Order of Police v. A shcroft , 185 F. Supp. 2d 9, 13 (D.D.C. 2001) ( noting that a court has an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority”). When considering a facial challenge to subject matter jurisdiction, such as the one Defendants make, a court must accept as true all factual allegations contained in the complaint, and the plaintiff should receive the benefit of all
favorable inferences that can be drawn from the alleged facts. See Flores v. District of
Columbia , 437 F. Supp. 2d 22, 28 (D.D.C. 2006) (quoting Erby , 424 F. Supp. 2d at 181)

. The court may, however, look beyond the complaint’s allegations when deciding
a facial challenge so long as it “ still accept [ s ] the factual allegations in [ t ] he complaint

as true.” Jerome Stevens Pharm., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005) (internal quotation marks and citations omitted). A Rule 12(b)(6) motion, by contrast, tests the legal sufficiency of a complaint. Browning v. Clinton , 292 F.3d 235, 242 (D.C . Cir. 2002). “To survive a motion to dismiss, a complaint must contain sufficient factual matter

. . . to state a claim to relief7 that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). In deciding a Rule 12(b)(6) motion to dismiss, the Court must “accept the plaintiff’s factual allegations as true and construe the complaint liberally, grant[ing] plaintiff[] the benefit of all inferences that can be
derived from the facts alleg ed[.]” Browning , 292 F.3d at 242 (alterations in original) (internal quotation marks and citation omitted). “But the Court need not accept inferences drawn by plaintiff if those inferences are not supported by the facts set out in the complaint, nor must t he court accept legal conclusions cast as factual allegations.” Hettinga v. U nited States , 677 F.3d 471, 476 (D.C. Cir. 2012) (citation omitted)

. Moreover, if the facts as alleged and liberally construed fail to establish that a plaintiff
has stated a cl aim upon which relief can be granted, the Rul e 12(b)(6) motion must be granted. See, e.g. , Am. Chemi stry Council, Inc. v. U.S. Dep’ t of Health & Human
Servs. , 922 F. Supp. 2d 56, 61 (D.D.C. 2013).
Under either standard and as a matter of law , the Court finds that Plaintiffs cannot pursue a DBA retaliation claim in this Court without first utilizing the DBA’s administrative process ( which neither Plaintiff has done) and that the DBA preempts the
causes of action that Plaintiffs assert in Counts II

- IV of t heir amended c omplaint. Consequently, the Court need not, and will not , weigh in on the Rule 12(b)(1) versus Rule 12(b)(6) debate. See , e.g., In re Rail Freight Fuel Surcharge Anti

- Trust Litig. , 593 F. Supp. 2d at 40 n.5; Temples v. U.S. Postal Serv. , No. 3:12

- 34, 2012 WL 1952655, at *2 ( D.S.C. May 8, 2012) (report and recommendation) , adopted by 2012 WL 1952299 ( D.S.C. May 30, 2012).8 B. The Defense Base Act & The Longshore and Harbor Workers’ Compensation Act Congress enacted the DBA , 42 U.S.C. §§ 1651

- 1655, in 1941 , to create a federal workers’ compensation system for civilian employees stationed at military installations
“outside the continental United States [

. ] ” 42 U.S.C. § 1651(a)(2). Congress later expanded the DBA to cover contractors working at these bases. See Univ. of Rochester
v. Hartman , 618 F.2d 170, 172

- 73 (2d Cir. 1980). Notably, i nstead of fashioning a new workers’ compensation system for workers stationed overseas at foreign military bases , Congress incorporated into the DBA provisions of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901

- 950 , a federal workers’ compensation system for maritime workers enacted in 1927. See 42 U.S.C. § 1651(a) (providing that “ the provisions of the [LHWCA] shall apply in resp ect to the injury or death of any employee engaged in any employment” at military, air, and naval bases
outside the United States )

. As a workers’ compensation system, the DBA/LHWCA scheme forges a compromise between employees and employers. See Morrison

- Knudsen C o nst. Co. v. Dir., Office of Workers’ Co mp. Programs, U.S. Dep’ t of Labor , 461 U.S. 624, 636 (1983). “Employers relinquish[] their defenses to tort actions in exchange for limited and predictable liability. Employees accept the limited recovery because they receive prompt relief without the expense, uncertainty, and delay that tort actions entail.” I d.
Claims for benefits under the DBA are processed under a six

- step administrative procedure through the Department of Labor (“DOL”) , including available hearings before an Administrative Law Judge (“ALJ”) , appeals to the Department of Labor’s9 Benefits Review Board (“BRB”) , and ultimate appellate review in federal court. See Brink v. XE Holding, LLC , 910 F. Supp. 2d 242, 24 6 (D.D.C. 201 2) (citation omitted)

. The LHWCA, and thus the DBA, expressly prohibits discrimination against employees who claim benefits and those who assist such employees with their claims:
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 ch apter. 33 U.S.C. § 948a. The Deputy Commission er of Labor m ust impose a penalty ranging
from $1,000 to $5,000 on employers who violate these anti

- retaliation provisions and order that employees who continue to be qualified to perform their jobs be reinsta ted
and receive back pay. Id. The regulations implementing the LHWCA/ DBA lay out the administrative procedure for the DOL ’s Office of Workers’ Compensation Programs (“OWCP”) to
process claims alleging discrimination or retaliation in violation of Section 948a. See
20 C.F.R. §§ 702.271

- .274. Within five days of an employee submitting a discrimination complaint, a DOL district director must notify the employer and begin an inquiry into the matter, which may include interviews with the employee, employer, a nd others; the d istrict director may also convene an informa l conference between the employee and employer. Id. § 702.271(b), (c). The district director will then make a
recommendation on whether any retaliation has occurred and, if so, whether OWCP
shou ld assess any penalty against the employer and/or order that the employer make the employee whole through reinstatement and back compensation. I d. §§ 702.271(d), 707.272(a). If either party disagree s with the district director’s recommendation, the
district director must refer the matter to the Office of the Chief Administrative Law10 Judge for a formal hearing and final determination of any disputed issues. I d. § § 702.272(b), 702.273. Appeal from thi s determination may be taken to the BRB. I d. §§ 702.273, 702.391

- 702 .394. Within sixty days of receiving the BRB’s final order , “[a]ny person adversely affected or aggrieved by [the order] may obtain a review of that
order in the United States court of appeals for the circuit in which the injury occurred[.]” 33 U.S.C. § 921(c). 4 Finally, “[i]f any employer or his officers or agents
fails to comply with a [final] compensation order making an award,

. . . any beneficiary
of such award or the deputy commi ssioner making the order, may apply for the
enforcement of the order to the Federal district court for the judicial district in which the injury occurred[.]” Id. § 921(d).
The DBA also conta ins a broad exclusivity clause : The liability of an employer, contractor (or any subcontractor or subordinate subcontractor with respect to the contract of such contractor) under this chapter shall be exclusive and in place of all other liability of such employer, contractor, subcontract or, or subordinate contractor to his employees (and their dependents) coming within the purview of this chapter, under the workmen’s compensation law of any State, Territory, or other jurisdiction, irrespective of the place where the contract of hire of an y such employee may have been made or entered into. 42 U.S.C. § 1651(c) (emphasis added) ; see als o , e.g. , Brink , 910 F. Supp. 2d at 253

- 54 (DBA’s exclusivity provision bars plaintiffs’ tort claims); Martin v. Halliburton , 808 F. Supp. 2d. 983, 9 92 (S.D. Te x. 2011) (same). 5

4 There is a circuit split over whether circuit or district courts exercise appellate review over final BRB orders under the DBA. The LHWCA’s 1972 amendments vested the circuit courts with jurisdiction to review the D OL’s determinations

. 33 U.S.C. § 921(c). Some circuits, however, hold that this portion of the LHWCA’s 1972 amendments do es not apply to th e DBA, which originally vested jurisdiction with the local district courts under 42 U.S.C. § 1653(b). See Claire Been, Bypassing Redundancy: Resolving the Jurisdictional Dilemma under the Defense Base Act , 83 Wash. L. Rev. 219, 230

- 35 (2008).
5 The LHWC A contains a separate and arguably narrower exclusivity clause (33 U.S.C. § 905(a) ) , that courts likewise have held bars plaintiffs from seeking remedies beyond those the that LHWCA11 III. DISCUSSION The gravamen of Defendants’ motion to dismiss appears to be two

- fold: ( 1 ) that Plaintiffs are precluded from filing an original action in this Court for an alleged
violation of the DBA/LHWCA’s retaliation provision , and must instead exhaust their
administrative remedies before the DOL ; and ( 2 ) that, because the DBA/LHWCA administrative process is the “exclusive” remedy for injuries involving workers’ compensation claims of this nature, all of Plaintiffs’ claims, including thei r common law claims, are preempted and must be dismissed. At the outset, with respect to Defendants’ first contention, the Court notes a lack of clarity in the briefing regarding whether Plaintiffs are actually bringing a claim for retaliatory termination in violation of the DBA. Count I of Plaintiffs’ amended complaint is entitled “Discriminatory and Retaliatory Discharge, 33 U.S.C. § 948a” and, thereby, clearly signals Plaintiffs’ intent to bring a claim of retaliatory termination
under the DBA/LHWCA. (This makes sense because, as noted above, section 94 8 a of
the D B A prohibits discrimination against employees who file or assist with a DBA
claim. ) However, after Defendants argued in their motion to dismiss that the
DBA/LHWCA “provide the exclusive remed ies for Plaintiffs’ alleged injuries, and those

r emedies must be exhausted on an administrative level and not in an original action
instituted before this Court” ( Defs.’ Mem

. at 13) , Plaintiffs responded in a manner that suggests an intention to back away from asserting any DBA retaliation claim. ( See Pls

. ’
Mem

. i n Support of Opp ’ n to Defs

. ’ Mot

. to Dismiss Compl

. (“Pl s
. ’ Opp’n”), ECF. No.

provides. See, e.g. , Hall v. C & P Tele

. Co ., 809 F.2d 924, 926 (D

. C

. Cir . 1987); Barnard v. Xapata Haynie Corp. , 975 F.2d 919, 921 (1 st Cir. 1992); Atkinson v. Gates, McDonald & Co ., 838 F.2d 808, 812 (5th Cir. 1988).12 11

- 1, at 17 (“ Plaintiffs make no claims in this case for an injury under the DBA/LHWCA.”).) Adding to th e confusion about what is being claimed and argued in this case is
the fact that Defendants do not employ “exhaustion” or “preemption” analyses explicitly in their memorandum in support of dismissal, and they repeatedly conflate
their exhaustion

- related and preemption

- like arguments to suggest ( mistakenly ) that Plaintiffs’ common law claims are precluded precisely because Plaintiffs have asserted

a statutory DBA retaliation claim and have failed to exhaust their administrative remedies in regard to that claim. ( See Defs.’ Mem. at 15 (“Given that the First

Amended Complaint is brought under the DBA/LHWCA, Plaintiffs are limited to
exclusive remedies available to them under the statutes.”) ; id. at 1 8 (“Plaintiffs may not
for e go the administrative remedies available to them under the DBA/LHWCA in favor of obtaining recovery against Defendants on the claims asserted in the First

- Amended Complaint.”).) These arguments sound primarily as exhaustion arguments generally do , but insofar as Defendants’ chorus of dismissal contentions also assails Plaintiffs’
common law claims , the se assertions have an added ( though not expressly stated ) tone ; namely, that the DBA/LHWCA framework preempts any claim for tort or breach of contract arising out of circumstances in whic h the DBA would otherwise apply. ( See
id. at 13 (“Plaintiffs are subject to the prescriptions of the DBA and the exclusive remedies it provides.”); id. at 17 (“[T]he DBA/LHWCA, like most workers’ compensation regimes, provide the exclusive remedies and fo rum for employees alleging claims arising from injuries sustained while working under a government contract performed outside of the United States.” (citation omitted) ) )

.13 To rule on Defendants’ motion to dismiss, this Court must first get to the bottom
of the claims at issue. And although the Court is required to constru e the amended complaint in the light most favorable to the Plaintiffs at this stage of the litigation , it cannot fashion new and different claims, nor can it deem conceded an oppo sition to a
stated count absent a clear indication that Plaintiffs have abandoned the questioned
claim. Accordingly, this Court will presume that Plaintiffs intend to press a claim under § 948 a, as the amended complaint clearly states, and will also enter tain the opposite assumption

— i.e., that Plaintiffs do not wish to trigger the DBA/LHWCA’s
administrative scheme and thus have attempted to craft a series of common law claims that fall outside of the statute’s parameters. This dual inquiry involves consideration of (1) whether Plaintiffs are entitled to bring a § 948a claim in federal court without first following the prescribed administrative procedure s , and (2) whether Plaintiffs are permitted to bring common law retaliation claims arising out of f acts and circumstances
that the DBA/LHWCA scheme arguably covers. The Court concludes on both accounts
that Plaintiffs cannot do so , and thus, that Plaintiffs’ amended complaint must be
dismissed

.
A. Plaintiffs Were Required To Exhaust Administrative Remedies Before Bringing A DBA Retaliat ion Claim In Federal Court The first question at issue is whether Plaintiffs may bring an original cause of
action under 33 U.S.C. § 948a in district court without exhausting the LHWCA’s administrative procedure as in corporated into the DBA. ( Defs.’ Mem. at 16.) By styling their Count I claim as one for retaliatory termination in violation of § 948a, t he
Court understands Plaintiffs

— who have not alleged exhaustion and indisputably have
failed to follow the administrative procedures that the DBA/LHWCA prescribes

— to14 argue that they are authorized to bring an original action under 33 U.S.C. § 948a in
federal district court. But neither the DBA’s language nor the federal jurisprudence interpreting the DBA/LHWCA support s Plaintiffs’ position.
The well

- established doctrine of exhaust ion of administrative remedies provides

“ that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administra tive remedy has been exhausted.” Myers v. Bethlehem Shipbuilding Corp ., 303 U.S. 41, 50

- 51 (1938). Th is doctrine prevents courts from prematurely interrupting the administrative process and allows agencies to exercise autonomously their expertise and discretion. See McKart v. United States , 395 U.S. 185, 193 (1969) ; Randolph

- Sheppard Vendors of Am. v. Weinberger , 795 F.2d 90, 105 (D.C. Cir. 1986). Requiring exhaustion also promotes judicial efficiency by ensuring
that judicial review “ is of a fully developed factual record , and undertaken with the benefit of the agency ’ s exercise of discretion or application of expertise.” Weinberger , 795 F.2d at 105 (citations omitted)

. Moreover, the decision an agency reaches during the administrative process “ may obviate the need for a judicial decision on the issue.”
Id

. (citations omitted) ; see also Hawkins v. Hall , 537 A.2d 571, 573 (D.C. 1988) ( “[T] he administrative process may afford complete relief and [] eliminate the need for any judicial involvement [

. ] ” ( citation s omitted) )

. T here is no doubt that the DOL has established a comprehensive administrative procedure for DBA/LHWCA discrimination and retaliation claims that enables the
agency to exercise i ts expertise and discretion in resolvin g those claim s , w hile also allowing for eventual federal court review. See 20 C.F.R. §§ 702.271

- 702 .274; 33 U.S.C §§ 921(c)

- (d) ; 42 U.S.C. § 1653(b)

. If Plaintiffs had taken advantage of the15 process that t he applicable regulations afford, a DOL district director would have been required to investigate their retaliation complaint s and to make a recommendation as to
the appropriate disposition, including employer penalties and employee remedies. 20
C.F.R. § 702.271 (a)(2) (employers who violate § 948a liable for penalties and must restore qua lified employees to their positions and pay lost wages ) ; id. § 707.272 (a) (district director will recommend that an employer reinstate a qualified employee “and/or make such restitution as is indicated by the circumstances of the case, including compensation for any wage loss suffered as the result of the discharge or discrimination”)

. And the regulations provide for several layers of review: i f the parties do not agree with the district director’s recommendation, they are entitled to a formal h earing before an ALJ, and the losing party can appeal the ALJ’s decision to the
BRB , i d. § 702.273 , before proceeding to file a complaint seeking adjudication of the
merits of the retaliation claim in federal court

. See 33 U.S.C. § 921(c) ; 42 U.S.C. § 165 3(b)

. This Court sees no reason to allow Plaintiffs to sidestep this process, particularly where the regulations broadly empower the DOL to require reinstatement and back pay and to “make such restitution as is indicated by the circumstances of the case,” (§707.272(a)), which is in large part what Plaintiffs seek in this action. Plaintiffs have not cited, nor is this Court aware of, any federal court decisions
that entertain an or iginal cause of action under the § 948a in district court without
exhaustion of the se DOL administrative remedies

. Indeed, r elatively few federal courts
have considered whether a plaintiff can file a stand

- alone action under the DBA and § 948a because fed eral courts generally exercise only appellate review of final DOL workers’ compensation decisions. See 33 U.S.C. §§ 921(c)

- (d) ( vest ing federal courts16 with jurisdiction to review BRB orders and to enforce final compensation orders) ; 42 U.S.C. § 1653 (b) (vesting federal district courts with jurisdiction to enforce DBA compensation orders) ; see also, e.g. , Robinson v. Newport News Shipbuilding & Dry
Dock Co ., No. 96

- 2603, 1998 U.S. App. LEXIS 7701 (4th Cir. Apr. 20, 1998) (review of BRB order) ; Blanchette v. Office of Workers’ Comp. Programs, U.S. Dep’t of Labor , 998 F.2d 109 (2d Cir. 1993) (same) ; Gen. Dynamics Corp. v. Horrigan , 848 F.2d 321 (1st Cir. 1988) (same)

. Insofar as federal courts have considered this question, they consistently have dismissed claims brought under § 948a where the plaintiff has not
exhausted DOL administrative remedies. See , e.g., Brink , 910 F. Supp. 2d at 256 (“Plaintiffs may not pursue their claims for retaliation and discrimination in the federal courts without first exhausting their administrative remedies through the exclusive process provided in the LHWCA.” (citations omitted) ); see also Slightom v. Nat’l
Maint

. & Repair, Inc ., 747 F. Supp. 2d 1032, 1038 (S.D. Ill. 2010) ( finding that the LHWCA “provides a unique and necessary means of addressing retaliation claims related thereto,” and dismissing plaintiff’s retaliation claim for failure to exhaust those remedies)

. Plaintiffs in the instant case have admittedly not exhausted administrative remedies, and instead go to great lengths to argue why they need not utilize the DOL
process. ( See Pls. ’ Opp’n at 21

- 2 4

. ) Their primary argument in this regard

— that the § 948a remedy is “nominal” and “inadequate” ( id. at 21)

— is nonsensical given that
Plaintiffs themselves have brought a claim in federal court that alleges a violation of § 948a and seeks remedies thereunder

. (Comp. ¶¶ 20

- 23.) Moreover, the “inadequat e remedy” cases upon which Plaintiffs rely ( see id. at 21

- 2 3 ) generally relate to the17 continued viability of state or common law compensation claims other than the federal statute, and t here is no indication that the parties in th ose cases litigated exhaus tion of
remedies for a retaliation claim brought in federal court under § 948a

. Consequently , to the extent Plaintiffs here have assert ed a retaliation claim under § 948a ( as Count I of the amended complaint appears to do ) , the Court finds that this
claim must be dismissed for failure to exhaust administrative remedies.

B. The DBA/LHWCA Preempts State Common Law Claims Arising Out Of Workers’ Compensation Injuries The second question at issue is whether the DBA/LHWCA preempts Plaintiffs’

state commo n law claims for b reach of contract and the covenant of good faith and fair dealing (Count II) , retaliatory discharge under common law (Count III) , and conspiracy and prima facie tort (Count IV). Under the U.S. Constitution, the laws of the federal
govern ment are “the supreme Law of the Land [,]” U.S. Const. art. VI , and this supremacy principle “ is implemented through the doctrine of federal preemption, under which state and local law may be stripped of its effect.” United Distribution Cos. v.
FERC , 88 F.3d 1105, 1155 (D.C. Cir. 1996) (internal quotation marks and footnote omitted)

. Courts have recognized three different types of preemption: express preemption ( i.e ., Congress states in express terms that state law is preempted) ; field preemption ( i.e ., Congress authorizes a scheme of regulation so pervasive that intent to preempt can be inferred) ; and conflict preemption ( i.e ., compliance with both federal
and state laws is either impossible or w ould undermine the Congressional purposes and objectives b ehind the federal law). See, e.g. , United Distribution Cos. , 88 F.3d at 1155 (citing Pac

. Gas & Elec. Co. v. State Energy Res

. Conserv ation & Dev. Comm’n , 461 U.S. 190, 203

- 04 (1983) ) ; Himmelstein v. Comcast of the Dist., L

. L

. C

. , 931 F. Supp. 2d18 48, 56 (D.D.C. 2013). As explained below, the state common law claims in the instant

case are preempted under each of these three doctrines.

1. T he Doctrine O f Express Preemption Bars Plaintiffs’ State Common Law Claims When a statute contains an express exclusi vity clause, a court’s focus is on the
clause’s “plain wording” because that “necessarily contains the best evidence of Congress’ preemptive intent.” CSX Transp., Inc. v. Easterwood , 507 U.S. 658, 664 (1993). As noted above, the DBA’s exclusivity clause is broadly worded: The liability of an employer, contractor (or any subcontractor or subordinate subcontractor with respect to the contract of such contractor) under this chapter shall be exclusive and in place of all other liability of such employer, co ntractor, subcontractor, or subordinate contractor to his employees (and their dependents) coming within the purview of this chapter , under the workmen’s 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) . Courts evaluating this language have found that it clearly expresses Congress’s intent that the DBA preempt any and all claims that fall within the
ambit of tha t statute

. See, e.g. , Fisher v. Halliburton , 667 F.3d 602 (5th Cir. 2012) ( “[T]he coverage provisions of the Defense Base Act clearly evidence the intent that the act shall afford the sole remedy for injuries or death suffered by employees in the

course o f employments which fall within its scope.” (citation omitted) ) ; Brink , 910 F. Supp. 2d at 249

- 51 ( concluding that the DBA’s exclusivity language bars state law causes of action related to claims for DBA benefits); Nauert v. Ace Props. & Cas. Ins.
Co. , No. 104CV02547, 2005 WL 2085544 , at *3 (D. Colo. Aug. 27, 2005) ( holding that
the “plain language of the DBA” preempts state law claims arising from alleged bad faith handling of LHWCA claims) ; Martin , 808 F. Supp. 2d at 989 ( finding that the19 language of the DBA’s exclusivity provision preempts common law claims that fall within the statute’s scope)

. Because Plaintiffs ’ common law claims , which allege retaliation for Elliot’s filing of a workers’ compensation claim, fall squarely within the scope of § 948a of the DBA , this Court likewise concludes th ese claims are plainly preempted under the statute’s express exclusivity provision

. See Brink , 910 F. Supp. 2d at 250 (“[C]ourts have found that the excl usive remedies and adjudication processes in the LHWCA preem pt claims of retaliation or discrimination in connection with a claim
for benefits.” (citing L eSassier v. Chevron USA, Inc. , 776 F.2d 506, 50 9

- 10 (5th Cir. 1985) , Ravencraft v. Sundowner Offshore Servs., Inc ., No. 97

- 3572, 1998 WL 246699, at *2 (E.D. La. M ay 14, 1998) ) )

. In arguing to the contrary, Plaintiffs attempt to construe the DBA’s exclusivity
clause narrowly , homing in on the “under this chapter” language and contending that

“ t he DBA only provides liability for compensation for injuries , and has no other provisions directed at discrimination for loss of [ a ] job.” (Pls.’ Opp’n at 18

. (emphasis added) ). Even setting aside the fact that Plaintiffs make precisely the opposite assertion in Count I of the amended complaint , ( s ee Compl. ¶ 21 ( “Under the DBA, which incorporates the LHWCA, it is unlawful to retaliate against any employee for claiming an injury on the job under these laws, or for assisting such an individual in making or reporting of such a claim.”) ) , the argument that the DBA con tains no retaliation provision finds no support in the text of the governing statutes.
A s explained above, the DBA incorpo rates the LHWCA, see 42 U.S.C. § 1651(a) , including the LHWCA’s language prohibit ing retaliation against employees
who claim benefits and those who testify on a claimant’s behalf , see 33 U.S.C. § 948a ;20 see also Brink , 910 F. Supp. 2d at 250 (collecting cases)

. The re is no doubt that the
anti

- retaliation provision of the LHWCA applies to employers who hire ci vilians and post them at foreign military installations, see Brink , 910 F. Supp. 2d at 245

- 47 , and it
is also well

- established that the DOL has the power to impose penalties on employers who violate this provision, as well as the power to award employees back pay and to reinstate employees to their former positions. 33 U.S.C. § 948a. Plaintiffs point to
Martin v. Travelers Ins urance Co ., 497 F.2d 329 , 330 (1st Cir. 1974) , which allow ed a plaintiff to proceed with a state law tort claim wh ere an insurer stopp ed payment on a
DBA benefits check , in support of their argument that retaliation claims somehow fall
outside of the DBA and its exclusivity provision

. (Pls

. ’ Opp’n at 25

- 26

. ) But the D.C.
Circuit subsequently contradicted the First Circuit’s Martin opinion when it held that the LHWCA preempts all claims relating to a failure to pay LHWCA benefits. See
Hall , 809 F.2d at 92 6 4. In a similar vein , this Court is not persuaded by the decisions
of other court s allowing employee s to pursue myriad state law claims based on the
conclusion that certain intentional torts fall outside the scope of the DBA (Pls. Opp’n at
25

- 29), because, here, the injury that Plaintiffs claim

— retaliation

— is directly and unequivocally addressed in the D BA/LHWCA

. Finally, the Court notes that state court cases such as Hebert v. Mid South
Controls & Servs. , 688 So. 2d 1171 (La. Ct. App. 1996), and Moss v. Dixie Mach ine , Welding & Metal Works , 617 So.2d 959 ( La. Ct. App. 1993), which Plaintiffs also proffer ( s ee Pls.’ Opp’n at 22

- 23 , 26

- 28) , are either unpersuasive, or inapposite, or
both. The court in Hebert recognized that its decision rejecting defendant’s preemption argument and allowing a state law retaliatory discharge claim to proceed was in21 “complete conflict” with all federal authority on the question. 688 So. 2d at 1175. And
the court in Moss rested its conclusion that “the wrongful discharge remedy provide d under the LHWCA, § 948a, does not preempt a similar state law remedy [,] ” 617 So. 2d
at 961 , on decisions pertaining to the “twilight zone” of LHWCA coverage

— “a specie of maritime law in which overlapping jurisdictional spheres create concurrent jurisdiction between the LHWCA and state laws.” Wallace v. Ryan

- Walsh Stevedoring Co., Inc. , 708 F. Supp. 144, 153 (E.D. Tex. 1989). For reasons that relate to the separate and varied histories of the LHWCA and the DBA, n o such concurrent jurisdiction exists under the DBA. 6
2. The Doctrine of Field Preemption Bars Plaintiffs’ Common Law Claims Not only is there a clear express preemption clause at work in the instant case, but the doctrine of field preemption also establishes that Plaintiffs’ common law retaliation claims are barred. Under field preemption principles, even “ [a] bsent explicit
pr eemptive language, Congress ’[s] intent to su persede state law altogether may be inferred because ‘[t]he scheme of federal regulation may be so pervasive as to make
reasonable the inference that Congress left no room for the States to supplement it [

. ] ”
Fid

. Fed. Sav

. & Loan Ass’n v. de la Cuesta , 458 U.S. 141, 152 (1982) (alteration in original) (quoting Rice v. Santa Fe Elevator Corp ., 331 U.S. 218, 230 (1947)). That reasonable inference arises here. According to t he D.C. Circuit , the LHWCA and state

6 Because the LHWCA “supplements, rather than supplants, state compensation law” in certain areas, workers m ay pur sue either federal or state rem edies where the injury occurs in a “maritime but local” zone, such as a terminal or dry dock. Sun Ship, Inc. v. Pennsylvania , 447 U.S. 715, 720 (1980). By contrast, Congress enacted the DBA to create an exclusive workers’ compensation remedy for overseas workers, who are in circumstances in which no state remedy exists. Flying Tiger Lines, Inc. v. Landy , 370 F.2d 46, 52 (1966 ) (“[T]he coverage provisions of the Defense Base Act clearly evidence the intent that the act shall afford the sole remedy for injuries or death suffered by employees in the course of employments which fall within its scope.”).22 wor kers’ compensation law s modeled after th at statute, “provide [] a comprehensive scheme for compensating employees who are injured or killed in the course of employment.” Hall , 809 F.2d at 926 (emphasis in original) (citations omitted)

. 7 A nd a s the Court has already found, this comprehensive scheme even encompasses claims of
retaliation for having sought workers compensation benefits , allegations that the DOL resolves under a detailed administrative process. Indeed, “‘it is difficult to imagine a

more com prehensive scheme of federal regulation

— one that leaves no room for state
involvement

— than the LHWCA.’” Nadheer v. The Ins. Co. of Penn ., 506 F. App ’ x. 297 , 301 (5th Cir. 2013) (quoting Tex. Emp’rs’ Ins. Ass’n v. Jackson , 820 F.2d 1406,
141 2 (5th Cir. 1 98 7), vacated and rev ’ d on other grounds , 862 F.2d 491, 494 (5th Cir. 1988) (en banc) )

. The sheer breadth of the DBA/LHWCA strongly supports an inference that Congress intended to prohibit employees from bringing state law claims to recover for injuries tha t fall within the DBA’s parameters , such as the claims at issue
here.
3. The Doctrine of Conflict Preemption Bars Plaintiffs’ Common Law Claims Finally, dismissal of Plaintiffs’ common law claims is also warranted under the doctrine of conflict preemption. When a state law “‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’” that state law is preempted under the doctrine of conflict preemption. Arizona v. U.S ., 132
S. C t. 2492, 2501 (2012) (quoting H ines v. Davidowitz , 312 U.S. 52, 67 (1940)). In evaluating conflict preemption, “ it is not necessary that compliance with both state and

7 In Hall v. C & P Telep hone Co ., 809 F.2d 924, 925 (D.C. Cir. 1987), the D.C. Circuit interpreted the District of Columbia Compensation Act, D.C. Code §§ 32

- 1501

- 32

- 1545, a 1928 statute that Congress patterned after the LHWCA.23 federal law be impossible [,] ” Atkinson , 838 F.2d at 812 (citation omitted) ; r ather, the
concern is whether allow ing a state law cause of action would subvert the purposes of
the federal statutory scheme

. See Arizona , 132 S. Ct. at 2501

. The D.C. Circuit has long held that Congress’s purpose in enacting the LHWCA and, by implication the DBA, was to provide employers with “general immunity” from employee tort suits for injuries covered by the workers’ compensation scheme and to provide employees with a specific remedy for claims within its scope. Hall , 809 F.2d at
926 ; see also id. ( “In return for the guarantee of a practical and expeditious statutory remedy, employees relinquish their common

- law tort remedies against employers for
work

- related injuries.” (citations omitted) ). Permitting Plaintiffs to maintain their state
law claims would undermine this policy “ by af fording a choice of remedies which was
not intended.” Flying Tiger Lines , 370 F.2d at 52 ; see also Hall , 809 F.2d at 926 (allowing state law claims would “undo[] ‘the legislat ed compromise between the interests of employees and the concerns of employers.’ ” (quoting WMATA v. Johnson , 467 U.S. 925, 931 (1984) ) ); Brink , 910 F. Supp. 2d at 250 (same); Atkinson , 838 F.2d at 812 (“Surely when the LHWCA provides that there shall be a [certain penalty], it likewise inferentially, but nonetheless plainly, also prov ides that the penalty shall not be any different amount[

. ]” (emphasis omitted) ); Nadheer , 506 F. App ’ x. at 301 (“ Allowing plaintiffs to recover separately for breach of contractual provisions invoking the LHWCA would subvert the very purpose of the LHWCA.”).
Moreover , in the instant case, there is also a risk of conflicting judgments regarding Plaintiff Elliot’s underlyin g injury if Plaintiffs are permitted to proceed with
their common law retaliation claims

. Defendants have consistently maintained that24 Torres AES did not, in fact, terminate Sickle and Elliot for submission of a valid workers’ compensation claim , but inste ad terminated them because Ellio tt’s DBA claim

was fraudulent

. ( Defs.’ Mem. at 21, 25 , & 26 n.5 .) However, when Elliot presented his claim for workers compensation to the DOL , the agency approved and paid it. ( Am. Compl. ¶ 13 .) Therefore, i f Plaintiffs’ common law retaliation claims proceed , Defendants would likely assert the defense of fraud, and this Court would be required to

re assess the validity of Elliot’s initial workers’ compensation claim as part Plaintiffs’
action

. T he risk of a c onflict between, on the one hand, the agency’s authorized claims process, and on the other, this Court’s evaluation of the claimed injury , is apparent

. 8 The bottom line is that, a s federal courts across the country have found, the DBA expressly and impli edly preempts other remedies state law affords to similarly

- situated plaintiffs

. See, e.g ., Fisher , 667 F.3d at 610; Flying Tiger Lines , 370 F.2d at 52; Vance
v. CHF Int’l , 914 F. S u p p. 2d 669, 681 (D. Md. 2012); Jones v. Halliburton Co. , 791 F. Sup p. 2d 567, 580 (S.D. Tex. 2011) . Those courts that have allowed an employee to proceed with common law claims have done so only after finding that the particular injury is outside the DBA/LHWCA’s scope, and thus the DBA/LHWCA provides no remedy. See, e.g ., Jon es , 791 F. Supp. 2d 58 7 (DBA’s exclusive remedies did not preclude civil litigation arising from a contractor’s sexual assault in her barracks in Iraq because her injuries were unrelated to her employment and therefore were “not injuries within the scope o f the DBA.”) ; Martin v. Halliburton , 808 F. Supp. 2d 983 , 992

- 93 (S.D. Tex. 2011) (holding th at DBA preempted claims arising out of employee’s death,

8 The potential for t his type of conflict

— which c an be addressed through the doctrine of primary jurisdiction , s ee MCI Commc’ n s C orp. v. AT&T Co. , 496 F.2d 214, 220 (3d Cir. 1974) (a court may refer a matter to an administrative agency for resolution where there is a risk of “contradictory rulings by th e agency and the court” )

— illustrates both the need for exhaustion of administrative remedies and the correctness of the conclusion that conflict preemption bars Plaintiffs’ common law claims

.25 but permitting daughter’s intentional infliction of emotional distress claim where the
claim arose from th e injury to her based on defendants’ misrepresentation s regarding the circumstances of her father’s death)

. The Court reads Sickle’s belated assertion that § 948a does not cover his particular retaliation claim ( Pls.’ Opp’n at 23

- 24 ) as an attempt to craft this kind of outside

- the

- scope argument, but Sickle’s characterization flatly contradicts both the fact that he seeks to recover under § 948a in Count I of the complaint, and the text of the statute, which should be construed broadly t o cover those who assist others in making a workers’ compensation claim. Cf. Tenn. Coal, Iron & R.
Co. v. Muscoda Local No. 123 , 321 U.S. 590, 597

- 98 (1944) (holding that a remedial statute “must not be interpreted or applied in a narrow, grudging manner” ); Valerio v. Putnam Assocs., Inc. , 173 F.3d 35, 43 (1st Cir. 1999) (refusing to narrowly construe the retaliation provision of FLSA to apply only to formal complaints). 9 As the Court explained above, t he particular injury that plaintiffs allege in each o f Counts II

- IV arises from their allegedly retaliatory discharge, which falls squarely within the scope
of the DBA.
C. Other Grounds Asserted For Dismissal. Defendants have argued that the Court has no personal jurisdiction over Scott
Torres (Defs.’ Mem. at 8

- 13) and that the facts alleged in the amended complaint fail to state a claim under § 948a or state common law ( id. at 19

- 32 )

. In light of this Court’s

9 Section 948a makes it unlawful to “discharge or in any other manner discriminate against an employee as to his employment . . . because he has testified or is about to testify in a proceeding under this chapter.” 33 U.S.C. § 948a . In the absence of any authority from the DOL, this Court declines to limit the reach of this provision to actual testimony, as Sickle suggests. Rather, it will construe this language to extend to any employee who is terminated because he or she assists an injured employee with his or her workers’ compensation claim. This is consistent w ith the comprehensive nature of the DBA/LHWCA workers’ compensation scheme at issue and also with the liberal construction given other, similar remedial statutes. See, e.g. , Valerio v. Putnam Assocs., Inc. , 173 F.3d at 43 (construing the FLSA).26 ruling that (1) Plaintiffs cannot assert any claim under § 948a because they have failed
to exhaust ad ministrative remedies, and (2) the DBA preempts Plaintiffs’ common law claims, the entire complaint must be dismissed, and the Court need not reach these
issues

.
IV. Conclusion For the forgoing reasons, this Court concludes that P laintiff s have failed to
exhaust administrative remedies with respect to their § 948a claim and that the DBA preempts their related state common law claims for breach of contract, breach of the

covenant of good faith and fair dealing, retaliatory termination in violation of public policy , and conspiracy and prima facie tort

. The Court therefore GRANTS Defendants’
motion to dismiss the complaint for failure to state a claim upon which relief can be granted and DISMISSES the a mended c omplaint. A separate o rder accompanies th is Memorandum Opinion.

DATE: December 24 , 2013 

## Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge