SERVICE EMPLOYEES INTERNATIONAL V. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS: INCREASING THE UNCERTAINTY REGARDING THE PROPER COURTS FOR JUDICIAL REVIEW OF CLAIMS UNDER THE DEFENSE BASE ACT

Creighton Law Review

April, 2011

44 Creighton L. Rev. 769

NOTE: SERVICE EMPLOYEES INTERNATIONAL V. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS: INCREASING THE UNCERTAINTY REGARDING THE PROPER COURTS FOR JUDICIAL REVIEW OF CLAIMS UNDER THE DEFENSE BASE ACT

NAME: Heather Ruhlman – ’12

SUMMARY:
… Cabranes dissented from the majority opinion, asserting that the DBA provisions unambiguously required United States District Courts to initially review Benefits Review Board compensation decisions. … Felkner, the United States Court of Appeals for the Fifth Circuit confronted the issue of whether the 1972 amendments to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) applied to Defense Base Act (“DBA”) claims. … Director, Office of Workers’ Compensation Programs: The Ninth Circuit Found Jurisdiction Proper in the United States Courts of Appeals In Pearce v. … Director, Office of Workers’ Compensation Programs, the United States Court of Appeals for the Ninth Circuit decided the issue of whether appeals of Benefits Review Board decisions under the Defense Base Act (“DBA”) must be brought in the district court, as the language of the DBA provided, or in the United States Courts of Appeals, as the language of the amended Longshore and Harbor Workers’ Compensation Act (“LHWCA”) provided. … In particular, the Eleventh Circuit in Hickson looked to DBA Section 1, which stated that Congress intended that the DBA incorporate the LHWCA and that the LHWCA’s provisions apply to DBA claims except where the provisions of the DBA modify those of the LHWCA. … An Administrative Law Judge (“ALJ”) determined that Barrios’s condition was related to his work in Iraq and issued a compensation order requiring that Service Employees pay Barrios disability benefits.

TEXT:
[*769]

I. INTRODUCTION

Congress enacted the Defense Base Act n1 (“DBA”) in 1941 to provide workers’ compensation benefits to employees who sustained injuries or died while working on government projects overseas. n2 Congress enacted the DBA as an extension of the already existing Longshore and Harbor Workers’ Compensation Act n3 (“LHWCA”), and intended that the DBA follow the LHWCA’s provisions except where specific DBA language deviated from that of the LHWCA. n4 Initially, under both acts, the United States District Courts reviewed benefits determinations. n5 However, this parallel system changed when Congress amended the LHWCA in 1972 to provide for United States Courts of Appeals review of benefits determinations. n6 Congress left the DBA’s parallel judicial review provisions unchanged. n7 Since the LHWCA amendments, the courts of appeals have not agreed on whether the DBA language or the LHWCA language directs which courts have jurisdiction to review DBA benefits determinations. n8

[*770]  In 2010, the United States Court of Appeals for the Second Circuit in Service Employees International, Inc. v. Director, Office of Workers’ Compensation Programs n9 addressed which courts have jurisdiction to hear DBA appeals. n10 The Second Circuit determined that United States Courts of Appeals have jurisdiction to hear appeals of Benefits Review Board decisions under the DBA. n11 The Second Circuit stated also that the language of the DBA was ambiguous because it provided for review in both the United States District Courts and the United States Courts of Appeals. n12 The Second Circuit also looked to the context and purpose of the DBA and the LHWCA, and determined that Congress intended the DBA’s judicial review provision to parallel the LHWCA’s judicial review provision. n13 Congress only intended that the DBA modify the LWHCA’s process for determining which particular court had jurisdiction, since following the LHWCA’s procedure with regard to DBA claims would leave no court with jurisdiction. n14 The Second Circuit reasoned that Congress intended the DBA language to mirror that of the LHWCA, and, thus, intended to amend that language at the same time it amended the LHWCA. n15

This Note will first discuss the Service Employees decision and the reasoning that led the Second Circuit to conclude that the United States Courts of Appeals are the proper courts to hear DBA appeals. n16 Second, this Note will review the LHWCA and the DBA, as well as other circuit court decisions that have analyzed the issue of which courts have jurisdiction over DBA appeals. n17 Third, this Note will argue that the Second Circuit’s decision was incorrect when it found ambiguity in the DBA’s judicial review provision and when it considered legislative history and intent when interpreting the DBA’s language. n18 Finally, this Note will discuss the possible consequences of the Second Circuit’s decision and the action Congress should take to definitively say which courts have jurisdiction over DBA appeals. n19

[*771]

II. FACTS AND HOLDING

In Service Employees International, Inc. v. Director, Office of Workers’ Compensation Programs, n20 the United States Court of Appeals for the Second Circuit confronted for the first time the issue, under the Defense Base Act n21 (“DBA”), of the proper court to hear appeals from decisions of the Benefits Review Board and found that the courts of appeals had jurisdiction to hear these appeals. n22 Jesse Barrios (“Barrios”), an employee of Service Employees International (“Service Employees”), worked in Iraq delivering fuel and gasoline throughout the country. n23 While working in Iraq, Barrios experienced eye symptoms including burning, itching, and dryness that caused him to seek medical attention. n24 Barrios had experienced these eye symptoms prior to his employment in Iraq and had disclosed the symptoms during a medical exam, but his symptoms worsened while in Iraq. n25 After conducting an eye exam, Dr. Abdussammad Abdullah (“Dr. Abdullah”), a consultant in ophthalmology, concluded that Barrios had dry eye and Pterygium (a tissue mass on the eye that causes vision problems). n26 Dr. Abdullah noted that both of Barrios’ conditions were more likely to occur in dry climates and in sunlight. n27

Barrios continued to work after his examination, but his symptoms persisted even after Dr. Abdullah prescribed eye drops and protective sunglasses. n28 Eventually, Service Employees returned Barrios to the United States to obtain treatment for his condition, although it characterized the condition as non-work-related. n29

In the United States, Barrios met with another ophthalmologist, Dr. Charles D. McMahon, who confirmed Dr. Abdullah’s diagnosis and stated that he believed a combination of genetic predisposition for the growths and the dry, dusty environment and sunlight in Iraq caused Barrios’ condition. n30 Service Employees requested that an outside ophthalmologist, Dr. Charles A. Garcia (“Dr. Garcia”) review Barrios’s medical records. n31 Dr. Garcia, without examining Barrios, concluded  [*772]  that environmental factors in Iraq probably did not cause Barrios’ condition. n32 Rather, he concluded that years of exposure to dry conditions and extreme sunlight generally were required to bring on symptoms. n33 Yet, Dr. Garcia did note that the dry and irritating environment in Iraq possibly made the condition worse. n34

Barrios first applied for disability benefits from Service Employees, both for the time when he was completely disabled and unable to work, and for his reduced earnings thereafter since he was unable to obtain similar compensation. n35 Service Employees denied his claim on the ground that his condition was not associated with his employment in Iraq. n36 Following Service Employees’ denial, Barrios filed a claim with the United States Department of Labor under the Longshore and Harbor Workers’ Compensation Act n37 (“LHWCA”), as extended by the DBA. n38

After an administrative hearing, an Administrative Law Judge (“ALJ”), acting on behalf of the Department of Labor, granted Barrios’s claim for compensation and ordered Service Employees to pay Barrios for the time during which he was totally disabled and for his medical bills and decreased earnings. n39 Service Employees appealed the ALJ’s decision to the Benefits Review Board, which affirmed the ALJ’s issuance of the order. n40 Service Employees again appealed, this time to the Second Circuit. n41

The Second Circuit first addressed whether the court had jurisdiction to hear Service Employees’ appeal of the Benefits Review Board decision. n42 The Second Circuit discussed the history of the DBA and the LHWCA, noting that Congress enacted the DBA to extend the LHWCA. n43 The LHWCA’s purpose, the Second Circuit stated, was to provide workers’ compensation to maritime employees, and the DBA extended that coverage to employees working either on military bases or on defense projects outside the United States. n44

[*773]  The Second Circuit noted that the DBA required the provisions of the LHWCA apply to the DBA except where the DBA’s language explicitly deviated from the LHWCA. n45 One of those modifications in the DBA was the provision outlining which court had jurisdiction to review administrative decisions. n46 The original LHWCA, as enacted in 1927, provided for review in the United States District Court where the injury occurred. n47 Since injuries under the DBA only occur outside of the United States, the DBA provided for review in the district court where the office of the commissioner issuing the compensation order was located. n48 In 1972, Congress amended the LHWCA by creating a new Benefits Review Board to initially review decisions on an employee’s claim, and by providing for appeals of Benefits Review Board decisions directly to the Court of Appeals where the injury occurred. n49 Congress did not, however, amend the DBA, and, thus, the DBA retained the language providing for judicial review in the United States District Courts. n50

After discussing the histories of the LHWCA and the DBA and the context in which the jurisdictional issue arose, the Second Circuit concluded that jurisdiction was proper in the United States Courts of Appeals. n51 The Second Circuit reasoned that Section 3(b) of the DBA was ambiguous. n52 The DBA provision, the Second Circuit pointed out, if read literally, allowed jurisdiction for initial review in both the United States District Courts and the United States Courts of Appeals. n53 Since judicial review could not exist simultaneously in both courts, the Second Circuit concluded that the statute was ambiguous. n54  [*774]  The Second Circuit opined that the difference in opinions among circuits spoke to the ambiguity of the statute because it would be difficult to argue the statute was not ambiguous in the face of such different opinions. n55

After identifying the DBA provision as ambiguous, the Second Circuit interpreted the provision. n56 The Second Circuit began its analysis by looking to the context and purpose of the DBA. n57 This purpose, the Second Circuit stated, was to extend workers’ compensation benefits under the LHWCA to employees working overseas on United States military bases or defense projects. n58 Based on the language in Section 1(a), the Second Circuit opined that Congress intended the DBA to track the LHWCA except where DBA provisions modified those of the LHWCA. n59

When Congress enacted the DBA, the Second Circuit explained, both the LHWCA and the DBA required United States District Courts review administrative decisions, the only modification being that the DBA designated judicial review be in the district where the applicable commissioner was located rather than in the district where the injury occurred. n60 Since Section 21 of the LHWCA already provided for United States District Court review, the DBA language designating jurisdiction in the district court was superfluous. n61

The purpose of the LHWCA amendments, the Second Circuit stated, was to provide for faster processing of compensation claims. n62 The amendments accomplished this purpose by creating the Benefits Review Board to review administrative decisions and by allowing parties to appeal the decisions of the Benefits Review Board directly to the court of appeals, eliminating the need for district court review. n63  [*775]  The Second Circuit explained that based on the language of Section 1(a), which provided that the LHWCA’s provisions as amended applied to covered injuries under the DBA, the 1972 amendments to the LHWCA applied to the DBA. n64 Since jurisdiction in the circuit where the injury occurred was not applicable under the DBA, Court of Appeals review under the DBA would lay in the circuit where the office of the Deputy Commissioner was located. n65

Judge Jose A. Cabranes dissented from the majority opinion, asserting that the DBA provisions unambiguously required United States District Courts to initially review Benefits Review Board compensation decisions. n66 Judge Cabranes opined that the DBA provision stated that jurisdiction lay in the United States District Courts, and that consideration of the DBA’s purpose was inappropriate given the fact that the words of the DBA were unambiguous. n67 Judge Cabranes also pointed out that the only circuit to have supported jurisdiction in the United States Courts of Appeals was the United States Court of Appeals for the Ninth Circuit, and that other circuits that had considered the question had decided in favor of jurisdiction in the United States District Courts. n68 Although Judge Cabranes noted that the difference in judicial review provisions was possibly a mistake on the part of Congress, he pointed out that courts were not entitled to make that determination when the language of the statute is unambiguous. n69 Only if the mistake produced an absurd result, Judge Cabranes noted, would that sort of speculation be proper. n70 Judge Cabranes stated that it was not an absurd result to continue to apply the DBA as it existed before the 1972 amendments. n71 Thus, Judge Cabranes concluded that the Second Circuit should have followed the plain language of the DBA. n72

[*776]

III. BACKGROUND

A. The Longshore and Harbor Workers’ Compensation Act and the Defense Base Act

1. The Longshore and Harbor Workers’ Compensation Act

The Longshore and Harbor Workers’ Compensation Act n73 (“LHWCA”) provides workers’ compensation to employees injured or killed while working on navigable waters in the United States. n74 Under the LHWCA, an employee injured while working on United States waters may file a claim for benefits with the deputy commissioner of the United States Department of Labor, who initially determines whether someone should receive workers’ compensation benefits. n75 As originally enacted, an interested party could bring proceedings to set aside the deputy commissioner’s decisions in the United States District Court where the injury occurred. n76 However, Congress amended the LHWCA in 1972 such that an interested party had to first appeal to a Benefits Review Board. n77 Thereafter, a party could bring judicial review proceedings of the Benefits Review Board decision only in the United States Court of Appeals for the circuit in which the injury occurred. n78

2. The Defense Base Act

Congress enacted the Defense Base Act n79 (“DBA”) in 1941 to extend workers’ compensation coverage under the Longshore and Harbor Workers’ Compensation Act n80 (“LHWCA”) to employees working outside the United States on military bases or on government contracts. n81 The DBA provides that the provisions of the LHWCA apply, except as modified by the DBA. n82 Section 1653(b) provides that claimants can bring judicial proceedings in the United States District Court where the office of the commissioner issuing the compensation order is located. n83

[*777]

B. United States Court of Appeals Decisions Finding that the United States District Courts had Jurisdiction to Review Benefits Review Board Decisions Under the Defense Base Act

1. Home Indemnity Co. v. Stillwell: The Sixth Circuit was the First Court of Appeals to Determine Jurisdiction Proper in the District Courts

In Home Indemnity Co. v. Stillwell, n84 the United States Court of Appeals for the Sixth Circuit decided judicial review for compensation orders under the Defense Base Act n85 (“DBA”) was proper in the United States District Courts, rather than in the United States Courts of Appeals. n86 In Home Indemnity, Jackie Stillwell (“Stillwell”), an employee of Robert E. Lee Electric Company (“Lee”), died after sustaining an electric shock while working at Guantanamo Bay. n87 Stillwell’s widow applied for benefits under the DBA, and Home Indemnity, the company that provided workers’ compensation coverage for Lee, denied that its coverage extended to work performed at Guantanamo Bay. n88 After an administrative hearing, an Administrative Law Judge (“ALJ”) found that Home Indemnity did provide coverage and that Home Indemnity was liable for Stillwell’s benefits. n89 Home Indemnity appealed to the Benefits Review Board, which affirmed that Home Indemnity was liable. n90 Home Indemnity appealed the Benefits Review Board decision to the United States Court of Appeals for the Sixth Circuit. n91

The Sixth Circuit determined that it did not have jurisdiction to hear Home Indemnity’s appeal. n92 The Sixth Circuit noted that Congress intended the DBA to adopt the Longshore and Harbor Workers’ Compensation Act’s n93 (“LHWCA”) provisions, except for certain modifications. n94 The Sixth Circuit pointed out that one of these modifications related to judicial review of compensation orders and provided that this review should commence in the United States District Court  [*778]  where the office of the commissioner who issued the compensation order was located. n95 This language, the Sixth Circuit pointed out, was on its face unambiguous. n96 Prior to 1972, the Sixth Circuit noted, both the DBA and the LHWCA provided for judicial review in the United States District Courts. n97 In 1972, however, Congress amended the LHWCA’s judicial review provision to provide for review in the United States Courts of Appeals, but did not amend the DBA’s judicial review provision. n98 Since Congress had not amended the DBA provision, the Sixth Circuit reasoned, it must continue to follow the provision as written, which provided the United States District Courts with jurisdiction for judicial review. n99 Thus, the Sixth Circuit dismissed Home Indemnity’s petition on the ground that the district court was the proper court to hear its appeal. n100

2. AFIA/CIGNA Worldwide v. Felkner: The Fifth Circuit Adopted the Sixth Circuit’s Position that the United States District Courts Had Jurisdiction Over Defense Base Act Appeals

In AFIA/CIGNA Worldwide v. Felkner, n101 the United States Court of Appeals for the Fifth Circuit confronted the issue of whether the 1972 amendments to the Longshore and Harbor Workers’ Compensation Act n102 (“LHWCA”) applied to Defense Base Act n103 (“DBA”) claims. n104 The Fifth Circuit stated that LHWCA procedures governed DBA claims, except where the DBA specifically modified LHWCA provisions. n105 Thus, the Fifth Circuit determined that the DBA’s judicial review provision modified the LHWCA’s provision, and, therefore, review proceedings should commence in the United States District Courts. n106

In Felkner, Wanda Frazier (“Frazier”) sustained injuries and became permanently disabled while working for American Express on an Air Force base in West Germany. n107 A deputy commissioner awarded Frazier workers’ compensation benefits under the DBA. n108  [*779]  American Express and its insurer, AFIA/CIGNA Worldwide (“AFIA/CIGNA”), sought review of the decision both in the United States District Court for the Southern District of Texas, and from the Benefits Review Board as required under the LHWCA. n109 The district court dismissed AFIA/CIGNA’s claim, stating that the district court did not have subject matter jurisdiction, and that jurisdiction lay with the Benefits Review Board. n110 AFIA/CIGNA appealed the district court’s decision to the United States Court of Appeals for the Fifth Circuit. n111

When deciding whether the district court had jurisdiction to hear AFIA/CIGNA’s appeal, the Fifth Circuit initially noted that the first section of the DBA stated that the LHWCA’s provisions applied to the DBA except where the DBA’s provisions modified those of the LHWCA. n112 The Fifth Circuit reasoned that legislative history did not suggest Congress intended the DBA to follow only the provisions of the LHWCA as in effect when Congress enacted the DBA. n113 Thus, the Fifth Circuit found that the LHWCA amendments applied to the DBA except where DBA provisions modified those of the LHWCA. n114

The Fifth Circuit concluded that the DBA adopted the LHWCA amendments and then turned specifically to Section 21 of the LWHCA, as amended in 1972. n115 These amendments changed the procedures for reviewing compensation orders by creating a Benefits Review Board to initially review compensation orders and by providing for judicial review of Benefit Review Board decisions in the Courts of Appeals. n116 Congress did not, however, concurrently amend the DBA’s judicial review provision, which provided for review of compensation orders in the United States District Courts. n117

The Fifth Circuit concluded that the LHWCA amendment providing for initial review of decisions in the Benefits Review Board applied to DBA claims. n118 Following Benefits Review Board review of compensation orders, the Fifth Circuit concluded, judicial review of compensation orders under the DBA should begin in the district courts. n119 The Fifth Circuit pointed out that the DBA provision was unambiguous in requiring judicial review of DBA compensation orders in the United States District Courts and that modifying this unambiguous  [*780]  language was equivalent to judicial legislation. n120 The Fifth Circuit noted that to interpret the statute differently would require some express showing that the legislature intended a different interpretation. n121

3. Lee v. Boeing Co., Inc.: The Fourth Circuit Followed the Majority of Circuits and Found United States District Courts Had Jurisdiction to Hear Appeals Under the Defense Base Act

In Lee v. Boeing Co., Inc., n122 the United States Court of Appeals for the Fourth Circuit considered Boeing’s argument that jurisdiction for Defense Base Act n123 (“DBA”) claims rested in the United States District Courts rather than in the United States Courts of Appeals, and concluded that judicial review of DBA claims was proper in the district courts. n124 In Lee, Raymond Lee (“Lee”) was an employee of United Support and Services Company (“USAS”), a subcontractor of Boeing, who worked on a United States Department of Defense project in Saudi Arabia. n125 Lee sustained injuries while working in Saudi Arabia, and, as a result, became paralyzed from the neck down. n126 Lee received benefits under the DBA, but also received benefits from Saudi Arabia under its social insurance laws. n127 Since Lee was receiving benefits from both Saudi Arabia and from Boeing, Boeing requested a credit for the benefits Lee received from Saudi Arabia. n128 The district director of the Office of Workers’ Compensation Programs vacated Boeing’s compensation order, and Lee requested a hearing before an Administrative Law Judge (“ALJ”). n129 The ALJ, after a hearing, granted Boeing’s motion for summary decision on the ground that Boeing was entitled to the credit because Lee was receiving other workers’ compensation under Saudi Arabian law. n130 Lee appealed to the Benefits Review Board, which affirmed the ALJ’s decision. n131 Lee  [*781]  appealed the Benefits Review Board decision to the Fourth Circuit. n132 Boeing then challenged the Fourth Circuit’s jurisdiction to hear Lee’s appeal, arguing that only the United States District Court for the District of Maryland had jurisdiction. n133

On the jurisdictional question, the Fourth Circuit noted that the DBA adopted all provisions of the Longshore and Harbor Workers’ Compensation Act n134 (“LHWCA”) except where the DBA modified those provisions. n135 The Fourth Circuit pointed out that prior to 1972, both the DBA and the LHWCA provided for review of compensation orders in the United States District Courts, but each contained a different provision for determining which district court had jurisdiction. n136 In 1972, Congress amended the LHWCA’s judicial review provision to provide for review in the United States Courts of Appeals and to create a new Benefits Review Board as an initial administrative review. n137 Since no provision of the DBA modified the new Benefits Review Board provision, the Fourth Circuit explained that the 1972 amendment applied to DBA claims as well as LHWCA claims. n138 The Fourth Circuit noted, however, that Congress had not amended the DBA judicial review provision, so that judicial review remained in the United States District Courts rather than the United States Courts of Appeals, as the LHWCA provided. n139

Although it noted that the difference in judicial review procedures between DBA and LHWCA claims might have been an accident, the Fourth Circuit reasoned that it was bound to follow the unambiguous language of the statute. n140 This requirement, the Fourth Circuit noted, was based on the rule articulated by the United States Supreme Court that courts must follow the unambiguous language of a statute, and must presume when interpreting statutes that the legislature said what it intended to say. n141 The Fourth Circuit concluded, based on the unambiguous language in the DBA, that judicial review must lie in the United States District Courts. n142 In support of its conclusion, the Fourth Circuit referenced the decisions of the United States Court of Appeals for the Fifth and Sixth Circuits, both of which also had held that United States District Courts had jurisdiction to  [*782]  hear appeals of Benefits Review Board decisions. n143 The Fourth Circuit in Lee also noted that the United States Court of Appeals for the Ninth Circuit had reached the opposite result, but refused to follow the Ninth Circuit’s decision on the ground that it was based on speculation and was not in line with the plain language of the statute. n144 Thus, the Fourth Circuit in Lee concluded that jurisdiction for review of DBA cases lies in the United States District Courts, and transferred Lee’s case to the district court. n145

4. ITT Base Services v. Hickson: The Eleventh Circuit Solidifies the Majority Position by Following the Fourth, Fifth, and Sixth Circuit Holdings

In ITT Base Services v. Hickson, n146 the United States Court of Appeals for the Eleventh Circuit considered the issue of whether United States District Courts or United States Courts of Appeals had jurisdiction to hear appeals under the Defense Base Act n147 (“DBA”) and held that only district courts could review these claims. n148 In Hickson, Whit Hickson (“Hickson”), an employee of ITT Base Services (“ITT”), sustained physical and psychological injuries as a result of a boating accident while Hickson was working near a naval base on Midway Island. n149 Hickson applied for disability benefits under the DBA, but ITT challenged Hickson’s claim on the grounds that the boating accident was not the cause of Hickson’s injuries and that Hickson’s injuries were not as severe as Hickson claimed. n150 After a hearing, an Administrative Law Judge (“ALJ”) found that Hickson suffered from post-traumatic stress disorder as a result of his accident and was permanently and totally disabled as a result of his psychological injuries. n151 As a result, the ALJ awarded Hickson disability benefits. n152 ITT appealed, again arguing the boat accident did not cause Hickson’s injuries. n153 The Benefits Review Board affirmed the ALJ’s decision based on a provision that required the Benefits Review Board to automatically affirm all appeals that had been pending for more  [*783]  than one year. n154 ITT again appealed, this time to the United States Court of Appeals for the Eleventh Circuit. n155

On appeal, Hickson argued that the Eleventh Circuit lacked jurisdiction, and that ITT should have brought its appeal in the district court. n156 The Eleventh Circuit noted that the DBA adopted all provisions of the Longshore and Harbor Workers’ Compensation Act n157 (“LHWCA”) except where modified by any DBA provision. n158 While the LHWCA provided for review in the United States Courts of Appeals, the DBA provided for review of benefits decisions in the United States District Courts. n159 The Eleventh Circuit noted that although the provisions had initially both provided for district court review of compensation orders, Congress had not amended the DBA at the same time it amended the LHWCA to provide for United States Court of Appeals review. n160 This fact, along with the DBA’s incorporation of all LHWCA provisions that the DBA did not modify, led the Eleventh Circuit to hold that appeals of DBA decisions should commence in the district courts. n161

Although the Director of the Office of Workers’ Compensation Programs argued that by deciding that the court’s holding would create a difference in procedures that Congress did not intend, the Eleventh Circuit maintained that Congress would have to correct any unintended disparity, not the courts. n162 The Eleventh Circuit concluded that it lacked jurisdiction to hear ITT’s appeal, and transferred the case to the district court. n163

C. Pearce v. Director, Office of Workers’ Compensation Programs: The Ninth Circuit Found Jurisdiction Proper in the United States Courts of Appeals

In Pearce v. Director, Office of Workers’ Compensation Programs, n164 the United States Court of Appeals for the Ninth Circuit decided the issue of whether appeals of Benefits Review Board decisions under the Defense Base Act n165 (“DBA”) must be brought in the  [*784]  district court, as the language of the DBA provided, or in the United States Courts of Appeals, as the language of the amended Longshore and Harbor Workers’ Compensation Act n166 (“LHWCA”) provided. n167 The Ninth Circuit concluded that the United States Courts of Appeals were the proper courts to hear DBA appeals. n168 In Pearce, Gerry Pearce (“Pearce”) became permanently disabled as a result of injuries sustained while he was working near an air force base in Thailand. n169 A deputy commissioner (“commissioner”) in Chicago, where the Department of Labor transferred Pearce’s claim after he moved from Hawaii to Illinois, found Pearce permanently disabled and increased Pearce’s benefits. n170 Pearce later applied to receive his benefits as a lump sum rather than in biweekly installments, but the commissioner denied Pearce’s request. Pearce appealed the commissioner’s decision to the Benefits Review Board, which affirmed. n171 Pearce then appealed to the United States Court of Appeals for the Ninth Circuit. n172

The Director of the Office of Workers’ Compensation Programs (“Director”) argued that jurisdiction was proper in the United States Court of Appeals for the Seventh Circuit, while Pearce argued that jurisdiction was proper in the Ninth Circuit. n173 The Ninth Circuit noted that three possible courts could have jurisdiction over Pearce’s petition: under the Director’s argument, the Seventh Circuit should have jurisdiction; under Pearce’s argument, jurisdiction would be proper in the Ninth Circuit; and under a recent Sixth Circuit decision, jurisdiction would lay in the United States District Court for the Northern District of Illinois. n174 The Ninth Circuit noted that to determine in which court jurisdiction was proper, it would first need to determine the applicability of LHWCA amendments to provisions of the DBA. n175

In deciding that jurisdiction for DBA claims was proper in the United States Courts of Appeals, the Ninth Circuit noted that Congress enacted the DBA as an extension of the LHWCA and intended the DBA to track the LHWCA’s provisions except where provisions of  [*785]  the DBA expressly differed. n176 As originally enacted, both the DBA and the LHWCA provided for review of the commissioner’s decision in the United States District Courts. n177 One difference between the statutes was that under the DBA, the district where the commissioner was located was the proper district for the claim, while under the LHWCA, the district where the injury occurred was the proper district for the claim. n178 Congress amended the LHWCA in 1972 to allow a party to appeal to a Benefits Review Board and to provide for appeals of Benefits Review Board decisions directly to the United States Courts of Appeals. n179 Congress did not amend the DBA, however, and the LHWCA amendments did not specifically state that they also applied to the DBA. n180 This resulted, the Ninth Circuit pointed out, in the issue of whether the United States District Courts or the United States Courts of Appeals had jurisdiction to hear DBA appeals. n181

To decide this issue, the Ninth Circuit first concluded that the DBA was a statute of general reference. n182 The Ninth Circuit reached this conclusion based on the language of the DBA itself, which stated that provisions of the LHWCA should apply except where modified by the DBA. n183 The Ninth Circuit reviewed the legislative committee reports that referred to the DBA as an extension of the LHWCA. n184 As an extension of the LHWCA, the Ninth Circuit opined, Congress intended the DBA to incorporate both the LHWCA as it existed when Congress enacted the DBA, and any subsequent amendments to the LHWCA. n185 The Ninth Circuit also noted that the Supreme Court of the United States and other courts had already applied many of the other LHWCA amendments to DBA cases, and that this further supported the finding that Congress intended the DBA to generally incorporate the LWHCA. n186

The Ninth Circuit explained that, generally, the language of the statute is the starting point to interpreting the statute and its purpose. n187  [*786]  The Ninth Circuit reasoned that Congress intended the DBA’s judicial review provision as a specific reference to the LHWCA. n188 As such, the Ninth Circuit reasoned, the DBA provision’s purpose was to introduce the language that provided guidance for determining which district court had jurisdiction. n189 Thus, the Ninth Circuit reasoned that the DBA provision should follow the LHWCA provision regarding judicial review with a modification in the language for determining which court of appeals would have jurisdiction. n190 Under this interpretation, the Ninth Circuit opined, the LHWCA amendments applied to the DBA, and would now provide for judicial review in United States Courts of Appeals. n191 After deciding that the circuit courts were the proper courts to hear the appeal, the Ninth Circuit concluded that the Seventh Circuit was the proper court to hear Pearce’s appeal, and transferred the case to that court. n192

IV. ANALYSIS

In Service Employees International v. Director, Office of Workers’ Compensation Programs, n193 the United States Court of Appeals for the Second Circuit examined the issue of whether the United States Courts of Appeals or the United States District Courts had jurisdiction under the Defense Base Act n194 (“DBA”) to review Benefits Review Board decisions regarding benefits claims and determined that the Courts of Appeals had jurisdiction over these claims. n195 The DBA provided for district court review of Benefits Review Board decisions. n196 However the DBA, enacted as an extension of the Longshore and Harbor Workers’ Compensation Act n197 (“LHWCA”), adopted nearly all the provisions of the LHWCA. n198 The LHWCA, as amended in 1972, provided for United States Court of Appeals review of Benefits Review Board decisions. n199

[*787]  The Second Circuit concluded that the United States Courts of Appeals were the proper courts to hear appeals from Benefits Review Board decisions and engaged in a two part analysis to reach its conclusion. n200 First, the Second Circuit determined that the language of the judicial review provision of the DBA was ambiguous, and thus had to interpret the statute’s correct meaning. n201 Next, the Second Circuit analyzed the broader context and purpose of the DBA and determined that the United States Courts of Appeals were the proper courts to review Benefits Review Board decisions. n202

This Analysis will argue that the Second Circuit’s decision in Service Employees was incorrect for two reasons. n203 First, the Analysis will argue that the Second Circuit in Service Employees erred in finding that the language of the DBA’s judicial review provision was ambiguous. n204 Particularly, the Analysis will show that the Second Circuit failed to follow the plain meaning rule when interpreting the language of the DBA and failed to consider the DBA’s other provisions, both of which supported a finding that the DBA was unambiguous. n205 Second, this Analysis will argue that, in light of the unambiguous nature of the DBA provisions, the Second Circuit in Service Employees incorrectly considered the DBA’s purpose and intent in making its determination regarding the proper court to hear Benefits Review Board appeals. n206

A. The Second Circuit Erred in Finding that the Defense Base Act’s Judicial Review Provision was Ambiguous

The United States Court of Appeals for the Second Circuit in Service Employees International v. Director, Office of Workers’ Compensation Programs, n207 considered the meaning of the Defense Base Act’s n208 (“DBA”) jurisdictional provision and determined that the provision was ambiguous because, when considered in conjunction with Section 21 of the Longshore and Harbor Workers’ Compensation Act n209 (“LHWCA”), the provision conferred jurisdiction on both the United States Courts of Appeals and the United States District  [*788]  Courts. n210 This finding was incorrect for two reasons. n211 First, the Second Circuit failed to interpret the language of the statute according to its plain meaning. n212 Second, the Second Circuit did not consider the broader context and language of the DBA, which would have removed any ambiguity regarding the statute’s application. n213

1. The Second Circuit Failed to Interpret the Language of the Defense Base Act’s Judicial Review Provision According to its Plain Meaning

In Service Employees International v. Director, Office of Workers’ Compensation Programs, n214 the United States Court of Appeals for the Second Circuit failed to interpret the language of the Defense Base Act’s n215 (“DBA”) judicial review provision according to its plain meaning, because it looked to the Longshore and Harbor Workers’ Compensation Act n216 (“LHWCA”) to interpret the meaning of the DBA, rather than relying on the relevant language of the DBA provision. n217 That DBA provision stated that jurisdiction for appeals of compensation orders was proper in the United States District Courts where the office of the commissioner who issued the compensation order was located. n218

In Lee v. Boeing Co., n219 the Fourth Circuit found that, under the DBA, the United States District Courts were the proper courts to review benefits determinations. n220 The court in Lee relied on the rule, articulated by the United States Supreme Court, that a court must begin its analysis of a statute by considering the statute’s plain language, and that courts must assume that the legislature said in the statute what it intended to say. n221 The Fourth Circuit further clarified that a court determines the plain language of a statute by interpreting  [*789]  words according to their common use and by looking to the statute as written, not outside sources. n222 The Fourth Circuit also indirectly cited to the United States Supreme Court decision of Caminetti v. United States, n223 where the Court stated that if the language of a statute was clear and otherwise constitutional, a reviewing court’s only role would be to apply the statute as written. n224 Based on these Supreme Court guidelines, the Fourth Circuit in Lee found that the language of the DBA’s judicial review provision stated that jurisdiction for judicial review of DBA claims rested in the United States District Courts, and that this language was unambiguous. n225

In Service Employees, the Second Circuit began its analysis by articulating similar rules to those stated in Lee. n226 The court in Service Employees stated that if a statute was ambiguous, the court would then consider the purpose and context behind the statute. n227 The Second Circuit in Service Employees also noted that the language of the provision itself determined whether ambiguity existed. n228 If the language had a plain, unambiguous meaning, further inquiry was unnecessary. n229 The Second Circuit in Service Employees proceeded to consider the language of the provision, and determined that the statute was ambiguous because the language of the DBA provision, when read with Section 21 of the LHWCA, provided for judicial review in both the United States Courts of Appeals and the United States District Courts. n230

While the court in Service Employees articulated the correct rules for determining a statute’s ambiguity, it incorrectly applied those rules to the language of the DBA. n231 Under the Supreme Court’s guidance,  [*790]  the court in Lee examined only the DBA provision. n232 In contrast, the Second Circuit examined the “plain language” of the DBA provision in conjunction with Section 21 of the LHWCA. n233 Thus, unlike the court in Lee, had the Second Circuit looked only at the DBA language, the court would have determined that the DBA clearly and plainly called for United States District Courts to review DBA claims brought under Section 21 of the LHWCA. n234 Accordingly, had the Second Circuit correctly followed Supreme Court statutory construction rules, as the Lee court did previously, the court would have ignored any separate jurisdictional provision in the LHWCA and found the DBA’s provisions unambiguous. n235

2. The Second Circuit Incorrectly Found Ambiguity in the Defense Base Act Where None Existed By Failing to Consider the Other Provisions of the Defense Base Act When Interpreting the Meaning of the Judicial Review Provision

Even if the United States Court of Appeals for the Second Circuit in Service Employees International v. Director, Office of Workers’ Compensation Services n236 had found that the Defense Base Act n237 (“DBA”) provision calling for judicial review in the United States District Courts ambiguous in isolation, the court should still have found the statute unambiguous after examining that section of the DBA within the context of the rest of the DBA. n238 The Second Circuit noted that in  [*791]  determining whether a statute is ambiguous, courts should consider the particular section of the statute within the broader context of the statute itself. n239 The court in Service Employees, however, did not consider any other portions of the DBA to help clarify whatever ambiguity it had found in the language of the DBA’s judicial review provision itself. n240 Instead, the Second Circuit clarified the language of the provision itself by going outside of the context of the statute with the related provision of the Longshore and Harbor Workers’ Compensation Act n241 (“LHWCA”). n242

In the DBA, § 1653(b) provides that claimants can bring judicial proceedings in the United States District Court. n243 While the DBA was enacted as an extension of the LHWCA, the DBA clearly provides that the DBA provision should control in the face of any provision inconsistent with that of the LHWCA. n244 Thus, under Section 1 of the DBA, LHWCA provisions control only to the extent they are consistent with the DBA. n245

In ITT Base Services v. Hickson, n246 the United States Court of Appeals for the Eleventh Circuit noted that the language of the DBA judicial review provision was unambiguous after considering the DBA as a whole and, thus, determined that courts should apply the DBA’s judicial review provision over that of the LHWCA. n247 In particular, the Eleventh Circuit in Hickson looked to DBA Section 1, which stated that Congress intended that the DBA incorporate the LHWCA and that the LHWCA’s provisions apply to DBA claims except where the provisions of the DBA modify those of the LHWCA. n248 Thus, the Eleventh Circuit stated that if a provision of the DBA differs from that of the LHWCA, the DBA provision controls. n249

[*792]  Similarly, in Lee v. Boeing Co. n250 and AFIA/CIGNA Worldwide v. Felkner, n251 both the United States Courts of Appeals for the Fourth and Fifth Circuits concluded that the language of the DBA’s judicial review provision controlled in light of a consideration of the DBA as a whole. n252 Both courts looked to the language in DBA Section 1, which stated that where DBA provisions diverged from LHWCA provisions, the language of the DBA should control. n253 Since the language in the DBA’s judicial review provision diverged from the language in the parallel provision of the LHWCA, both the Fourth and Fifth circuits concluded that this was a modification under DBA Section 1. n254 Thus, both courts concluded that the DBA language controlled and jurisdiction was proper in the United States District Courts. n255

In Service Employees, on the other hand, the Second Circuit completely failed to consider Section 1 of the DBA. n256 Despite acknowledging that it should consider the jurisdiction provision of the DBA within the broader context of the DBA statute, the Second Circuit did not do so as the Eleventh Circuit, Fourth Circuit, and Fifth Circuit correctly did. n257 Accordingly, had the Second Circuit found that the jurisdictional provision by itself was ambiguous, the court could have  [*793]  eliminated any ambiguity, as the other circuits did, by examining the provision within the context of the entire DBA. n258

B. The Second Circuit Improperly Relied on Legislative History and Intent to Determine the Proper Meaning and Application of the Judicial Review Provision

In light of the lack of ambiguity in the language of the Defense Base Act n259 (“DBA”), n260 the United States Court of Appeals for the Second Circuit in Service Employees erred when it considered the historical context and purpose of the DBA to interpret the DBA’s jurisdictional provision. n261 The Supreme Court of the United States has stated that absent ambiguity in a statute’s language, courts may not consider legislative intent or interpret a statute in any way not in line with its plain meaning. n262 Since the plain language of the DBA’s jurisdictional provision was unambiguous, n263 the court in Service Employees improperly considered the context and purpose of the statute. n264

In AFIA/CIGNA Worldwide v. Felkner, n265 after determining that the language of the DBA’s judicial review provision was unambiguous,  [*794]  the United States Court of Appeals for the Fifth Circuit noted that it must interpret the statute according to its plain meaning. n266 The United States Court of Appeals for the Eleventh Circuit in ITT Base Services v. Hickson, n267 and the United States Court of Appeals for the Fourth Circuit in Lee v. Boeing Co., n268 similarly noted that courts had an obligation to apply the DBA as written and could not consider Congress’s intent when interpreting the DBA provision. n269 While all three courts noted the possibility that the disparity between the DBA and the LHWCA was due to a mistake of Congress, all three courts also stated that Congress must remedy congressional mistakes, not the courts. n270 As such, the Fourth, Fifth, and Eleventh Circuits applied the statute as written, finding that jurisdiction rested in the United States District Courts. n271

The United States Court of Appeals for the Second Circuit in Service Employees International v. Director, Office of Workers’ Compensation Programs, n272 noted that to interpret the DBA’s judicial review provision, it had to consider the broader historical context and purpose of the statute. n273 The Second Circuit did this by considering the reasons behind the creation of DBA and determining whether those reasons supported a particular interpretation of the judicial review language of Section 3. n274 As the Fifth Circuit stated in Felkner, however, the rule the Supreme Court set forth was that courts may not interpret a statute in any way inconsistent with its plain meaning absent some ambiguity in the language of the statute. n275 As discussed  [*795]  above, both the plain language of the DBA’s jurisdictional provision, and Section 1 of the DBA, established that the DBA’s jurisdictional provision was unambiguous. n276 As a result, the court in Service Employees should have ended its inquiry after its discussion of the statute’s ambiguity, and, therefore, its consideration of the broader historical context and purpose of the statute was improper. n277

V. CONCLUSION

The United States Court of Appeals for the Second Circuit found in Service Employees International v. Director, Office of Workers’ Compensation Programs n278 that jurisdiction for appeals of Defense Base Act n279 (“DBA”) compensation orders was proper in the United States Courts of Appeals. n280 In Service Employees, Jesse Barrios (“Barrios”) applied for workers’ compensation benefits under the DBA after becoming disabled from an eye condition that he claimed resulted from exposure to dry, sunny conditions in Iraq. n281 His employer, Service Employees International (“Service Employees”), contested whether Barrios’s condition was in fact caused by Barrios’s exposure to the dry conditions in Iraq. n282 An Administrative Law Judge (“ALJ”) determined that Barrios’s condition was related to his work in Iraq and  [*796]  issued a compensation order requiring that Service Employees pay Barrios disability benefits. n283 The Benefits Review Board, tasked with hearing initial appeals of compensation orders, affirmed the decision of the ALJ. n284 Service Employees appealed to the United States Court of Appeals for the Second Circuit, which confronted the issue of whether it had jurisdiction to hear the appeal under the DBA. n285

The Second Circuit’s decision in Service Employees broke with the majority of other circuits that have held that jurisdiction was proper in the United States District Courts. n286 The Second Circuit interpreted the language of the DBA jurisdictional provision as vesting jurisdiction in both the United States District Courts and the United States Courts of Appeals, allowing the court to find ambiguity in the language of the statute and to look to historical purpose and context to interpret the meaning of that DBA provision. n287 Ultimately, the Second Circuit concluded that, based on the fact that Congress intended the DBA to follow the provisions of the LHWCA, the DBA jurisdictional provision modified only the procedure for choosing a district court, not the LHWCA’s grant of jurisdiction itself. n288 As a result, the DBA’s district court reference, as merely a mirror of the LHWCA’s language, became inoperative when Congress amended the LHWCA in 1972, and those amendments applied to DBA claims through DBA Section 1. n289

The Second Circuit in Service Employees erred in two ways when it determined that the DBA judicial provision was ambiguous. n290 First, the Second Circuit failed to follow the plain meaning of the statute when it interpreted the DBA’s judicial review provision. n291 Second, the Second Circuit failed to consider other provisions of the DBA to resolve any ambiguity present in the language of the judicial review  [*797]  provision. n292 Since the language of the DBA was unambiguous, the Second Circuit erred when it considered the historical purpose and context of the DBA to interpret its judicial review provision. n293

The Service Employees decision widened the circuit split and added uncertainty to the issue of whether United States Courts of Appeals or United States District Courts have jurisdiction to review DBA benefits decisions. As a result, a larger number of injured workers and families will have to pursue district court review of Benefits Review Board decisions before being able to take advantage of court of appeals review. Although requiring claimants to first pursue district court review does not prevent them from obtaining judicial review of compensation decisions, this added step of review does add a great deal of time and expense for persons who may already be financially struggling because of a DBA-related injury or death. It is inequitable to require this added time and expense for only DBA claimants, since the only difference between DBA claims and LHWCA claims is that DBA claims occur outside the United States.

In order to remedy this discrepancy, Congress must clarify whether it intended the LHWCA’s judicial review provision to apply to the DBA. n294 If failure to change the DBA’s judicial review amendment was merely an oversight, Congress should pass legislation to rectify the error. However, given the long span of time since Congress amended the LHWCA, Congress’s failure to change the DBA may be a clear message that it meant to leave DBA judicial review in the United States District Courts rather than moving the jurisdiction to the United States Courts of Appeals. Until Congress or the United States Supreme Court takes some action, however, the jurisdictional uncertainty may force many DBA claimants to first pursue district court review of compensation decisions before they may appeal those decisions to the courts of appeals.

Legal Topics:

For related research and practice materials, see the following legal topics:
Admiralty LawPersonal InjuriesMaritime Workers’ ClaimsLongshore & Harbor Workers’ Compensation ActWorkers’ Compensation & SSDIDefensesGeneral OverviewWorkers’ Compensation & SSDIMaritime Workers’ ClaimsCompensabilityLongshore & Harbor Workers’ Compensation ActJudicial Review

FOOTNOTES:

n1. 42 U.S.C. § 1651 (2006). See Serv. Emps. Int’l, Inc. v. Director, Office of Workers’ Compensation Programs, 595 F.3d 447, 452, 453 (2d Cir. 2010).

n2. 42 U.S.C. § 1651(a). See Serv. Emps., 595 F.3d 447, 452, 453 (2d Cir. 2010).

n3. 33 U.S.C. § 901 (2006).

n4. See 42 U.S.C. at 1651(a).

n5. Longshore and Harbor Workers’ Compensation Act, ch. 509, § 21, 44 Stat. 1436 (1927) (current version at 33 U.S.C. § 921 (2006)); 42 U.S.C. § 1653(b) (2006).

n6. 33 U.S.C. § 921(a)(1), (a)(3), (a)(5)(c).

n7. Compare 33 U.S.C. § 921 (2006) (providing for court of appeals review of compensation orders), with 41 U.S.C. § 1653(b) (providing for district court review of compensation orders).

n8. Compare Serv. Emps., 595 F.3d 447, 452 (2nd Cir. 2010) (stating that judicial review of DBA compensation orders lies in the Courts of Appeals), and Pearce v. Director, Office of Workers’ Compensation Programs, 603 F.2d 763, 770-71 (9th Cir. 1979) (holding that judicial review of DBA compensation orders should be conducted in the Courts of Appeals), with Home Indem. Co. v. Stillwell 597 F.2d 87, 89 (6th Cir. 1979) (noting that judicial review of DBA compensation orders should be in the district courts), AFIA/CIGNA Worldwide v. Felkner, 930 F.2d 1111, 1116 (5th Cir. 1991) (finding that district courts are the proper courts to conduct review of compensation orders under the DBA), Lee v. Boeing Co., 123 F.3d 801, 805 (4th Cir. 1997) (determining that judicial review of DBA claims should take place in the district courts), and ITT Base Servs. v. Hickson, 155 F.3d 1272, 1275 (11th Cir. 1998) (determining that judicial review of DBA compensation order should take place in the United States District Courts).

n9. 595 F.3d 447 (2d Cir. 2010).

n10. Serv. Emps. Int’l, Inc. v. Dir., Office of Workers’ Comp. Programs, 595 F.3d 447, 447, 452 (2d Cir. 2010).

n11. Serv. Emps., 595 F.3d at 447, 452.

n12. Id. at 453.

n13. Id. at 453-54.

n14. Id. (noting that jurisdiction rests in the Courts of Appeals). Id.

n15. Id. at 454.

n16. See infra notes 20-72 and accompanying text.

n17. See infra notes 73-192 and accompanying text.

n18. See infra notes 193-277 and accompanying text.

n19. See infra notes 278-94 and accompanying text.

n20. 595 F.3d 447 (2d Cir. 2010).

n21. 42 U.S.C. § 1651 (2006).

n22. Serv. Emps. Int’l, Inc. v. Dir., Office of Workers’ Comp. Programs, 595 F.3d 447, 449, 451-52 (2d Cir. 2010).

n23. Serv. Emps., 595 F.3d at 449.

n24. Id.

n25. Id.

n26. Id. at 449-50.

n27. Id. at 450.

n28. Id.

n29. Id.

n30. Id.

n31. Id. Service Employees consulted with Dr. McMahon for a review of Barrios’ medical records and to give his opinion regarding the cause of Barrios’ eye symptoms. Id.

n32. Id. at 450-51

n33. Id.

n34. Id.

n35. Id. at 451

n36. Id. After leaving the employment of Service Employees, Barrios found work with Groendyke Transport, but was not able to earn a salary comparable to his pay at Service Employees. Id.

n37. 33 U.S.C. § 901 (2006).

n38. Serv. Emps., 595 F.3d at 451.

n39. Id.

n40. Id.

n41. Id. at 447, 449.

n42. Id. 451-52.

n43. Id. at 452.

n44. Id.

n45. Id. at 454.

n46. Compare Longshore and Harbor Workers’ Compensation Act, ch. 509, § 21, 44 Stat. 1436 (1927) (current version at 33 U.S.C. § 921 (2006)) (providing for judicial review of compensation orders in the district court where the injury occurred), with 42 U.S.C. § 1653(b) (providing for review of compensation orders in the district court where the commissioner’s office is located.).

n47. Longshore and Harbor Workers’ Compensation Act, ch. 509, § 21, 44 Stat. 1436 (1927) (current version at 33 U.S.C. § 921 (2006)).

n48. Serv. Emps., 595 F.3d at 452.

n49. Id.; 33 U.S.C. § 921(b)(3) (2006).

n50. Serv. Emps., 595 F.3d at 452; 42 U.S.C. § 1653(b) (still providing for district court review of benefits decisions).

n51. See Serv. Emps., 595 F.3d at 452 (discussing the DBA’s enactment as an extension of the LHWCA meant to provide workers’ compensation to overseas employees and discussing the amendments made to the LHWCA in 1972 that were not also made to the DBA).

n52. Id. at 453 (citing three cases from other circuits concluding that the DBA was unambiguous).

n53. Id. (stating “read literally, § 3(b) of the DBA states: ‘Judicial proceedings provided under section[] … 21 of the Longshore and Harbor Workers’ Compensation Act [which provides for initial review in the courts of appeals] shall be instituted in the United States District Court.’ Initial review obviously cannot lie in both courts.”) Id.

n54. Id. at 453.

n55. Id.

n56. Id.

n57. Id.

n58. Id. at 453-54.

n59. Id.

n60. See 42 U.S.C. § 1653(b) (providing for judicial review in the district court where the office of the commissioner is located); Longshore and Harbor Workers’ Compensation Act, ch. 509, § 21, 44 Stat. 1436 (1927) (current version at 33 U.S.C. § 921 (2006)) (providing for judicial review in the district court where the injury occurred); see also Serv. Emps., 595 F.3d 447 at 453-54 (noting that when DBA was enacted no reference to the district courts was needed since the DBA adopted the provisions of the LHWCA and the LHWCA already provided for district court review, and noting that the only reason the language was included was to identify the district court where proceedings could be brought).

n61. Serv. Emps., 595 F.3d at 454. The court reasoned that the district court was mentioned in the DBA only to provide a means for determining which district court would have jurisdiction. Id.

n62. Id.

n63. Id.

n64. Id.

n65. Id. The court implied that because the DBA applied to overseas workers, jurisdiction could not exist in the circuit where the injury occurred, since DBA injuries necessarily occurred outside of any United States judicial district. Id. at 453, 454.

n66. Id. at 456-57 (Cabranes, J., dissenting).

n67. Id. at 457.

n68. Id.

n69. Id. at 458.

n70. Id.

n71. Id.

n72. Id.

n73. 33 U.S.C. § 901 (2006).

n74. Id. at § 903(a).

n75. See id. at § 919(a) (providing that compensation claims may be filed with the deputy commissioner who makes a determination on that claim).

n76. Longshore and Harbor Workers’ Compensation Act, ch. 509, § 21, 44 Stat. 1436 (1927) (current version at 33 U.S.C. § 921 (2006)).

n77. 33 U.S.C. § 921(a), (c).

n78. Home Indem. Co. v. Stillwell, 597 F.2d 87, 90 (6th Cir. 1979); 33 U.S.C. § 921(a)(1), (a)(3), (a)(5)(c) (2006).

n79. 42 U.S.C. 1651 (2006).

n80. 33 U.S.C. § 901 (2006).

n81. Serv. Emps. Int’l, Inc. v. Dir., Office of Workers’ Comp. Programs, 595 F.3d 447, 452, 453 (2d Cir. 2010); 42 U.S.C. § 1651(a) (2006).

n82. 42 U.S.C. § 1651(a).

n83. Id. at § 1653(b).

n84. 597 F.2d 87 (6th Cir. 1979).

n85. 42 U.S.C. § 1651 (2006).

n86. Home Indem. Co. v. Stillwell, 597 F.2d 87, 88, 89 (6th Cir. 1979).

n87. Home Indem., 597 F.2d at 88. Heyl & Patterson International had a contract with the United States Navy to perform electrical work at Guantanamo Bay and subcontracted with Lee to perform a portion of that work. Id.

n88. Id.

n89. Id. The ALJ found that Home Indemnity had agreed to provide coverage based on statements made by an authorized agent. Id.

n90. Id.

n91. Id. at 87, 88.

n92. Id. at 88.

n93. 33 U.S.C. § 901 (2006).

n94. Home Indem., 597 F.2d at 88-89.

n95. Id. at 89.

n96. Id.

n97. Id.

n98. Id. at 90.

n99. Id.

n100. Id.

n101. 930 F.2d 1111 (5th Cir. 1991).

n102. 33 U.S.C. § 901 (2006).

n103. 42 U.S.C. § 1651 (2006).

n104. AFIA/CIGNA Worldwide v. Felkner, 930 F.2d 1111, 1114 (5th Cir. 1991).

n105. Felkner, 930 F.2d at 1112-13.

n106. Id. at 1115-16.

n107. Id. at 1112.

n108. Id.

n109. Id.

n110. Id.

n111. Id. at 1111, 1112.

n112. Id. at 1112, 1114.

n113. Id. at 1113.

n114. Id.

n115. Id. at 1113-14

n116. Id.

n117. Id. at 1114.

n118. Id.

n119. Id.

n120. Id. at 1116 (citing Maine v. Thiboutot, 448 U.S. 1, 4 (1980)).

n121. See id. (noting that the court would interpret the DBA according to its clear wording).

n122. 123 F.3d 801 (4th Cir. 1997).

n123. 42 U.S.C. § 1651 (2006).

n124. Lee v. Boeing Co., 123 F.3d 801, 803 (4th Cir. 1997).

n125. Lee, 123 F.3d at 802.

n126. Id.

n127. Id. at 802, 803.

n128. See Id. at 803 & n.3 (providing that under LHWCA § 3(e) an employer may receive a credit for any amounts paid to the employee under any other workers’ compensation law for the same injury).

n129. Id. at 803.

n130. Id.

n131. Id. The Benefits Review Board affirmed based on a requirement that all appeals pending for more than one year be automatically affirmed. Id. at 803 n.4.

n132. Id. at 803.

n133. Id.

n134. 33 U.S.C. § 901 (2006).

n135. Lee, 123 F.3d at 803-04.

n136. Id. at 804

n137. Id.

n138. Id.

n139. Id. at 804-05.

n140. Id. at 805.

n141. Id. (quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)).

n142. Id.

n143. Lee, 123 F.3d 801 at 805-06 (citing Home Indem. Co. v. Stillwell, 597 F.2d 87 (6th Cir. 1979); AFIA/CIGNA Worldwide v. Felkner, 930 F.2d 1111 (5th Cir. 1991)).

n144. Lee, 123 F.3d 801 at 806 (citing Pearce v. Dir., Office of Workers’ Comp. Programs, 603 F.2d 763 (9th Cir. 1979)).

n145. Id. at 805, 808.

n146. 155 F.3d 1272 (11th Cir. 1998).

n147. 42 U.S.C. § 1651 (2006).

n148. ITT Base Servs. v. Hickson, 155 F.3d 1272, 1274, 1275 (11th Cir. 1998).

n149. Hickson, 155 F.3d at 1273.

n150. Id.

n151. Id. at 1273, n.1.

n152. Id. at 1273.

n153. Id.

n154. Id. at 1273, n.2 (citing PL 104-134, Title I, § 101(d), 110 Stat 1321, 1321-219 (April 26, 1996)).

n155. Id. at 1274.

n156. Id.

n157. 33 U.S.C. § 901 (2006).

n158. Id. at 1274, n.3.

n159. Id. at 1274.

n160. Id.

n161. Id. at 1275.

n162. Id.

n163. Id. at 1275-76.

n164. 603 F.2d 763 (9th Cir. 1979).

n165. 42 U.S.C. § 1651 (2006).

n166. 33 U.S.C. § 901 (2006).

n167. Pearce v. Dir., Office of Workers’ Comp. Programs, 603 F.2d 763, 764 (9th Cir. 1979).

n168. See Pearce, 603 F.2d at 770 (discussing that the proper court to review compensation orders is the court of appeals where the commissioner’s office is located).

n169. Id. at 765.

n170. Id.

n171. Id.

n172. Id.

n173. Id. Both Pearce and the Director argued that jurisdiction was proper in the Courts of Appeals based on Section 1 of the DBA, which incorporates LHWCA provisions. Id. at 767.

n174. Id. (citing Home Indem. Co. v. Stillwell, 597 F.2d 87 (6th Cir. 1979)).

n175. Pearce, 603 F.3d at 765.

n176. Id.

n177. See generally LHWCA c. 509, § 21, 44 Stat. 1436 (1927) (current version at 33 U.S.C. § 921(b) (2006)) (providing for review in the district court where the injury occurred).

n178. Pearce, 603 F.2d at 766.

n179. Id.

n180. Id. at 767.

n181. See Id. (noting the fact that the amendments to the LHWCA did not specifically amend the provisions of the DBA, which would leave the DBA’s judicial review procedures unchanged unless the DBA incorporates LHWCA amendments).

n182. See Id. at 765-67. (noting that a statute is of general reference if it is meant to adopt a law as it exists at any time, including amendments, whereas a statute is of specific reference if it is meant to adopt only certain provisions of another statute).

n183. Id.

n184. Id. at 768.

n185. Id.

n186. Id.

n187. Id. at 769.

n188. Id. at 769-70.

n189. Id. at 770 (noting that the LHWCA provided for judicial review in the district court where the injury occurred, but since DBA injuries occurred outside any judicial district the DBA provided for review in the district where the commissioner’s office was located).

n190. Id.

n191. Id.

n192. Id. at 771.

n193. 595 F.3d 447 (2d Cir. 2010).

n194. 42 U.S.C. § 1651 (2006).

n195. Serv. Emps. Int’l v. Dir., Office of Workers’ Comp. Programs, 595 F.3d 447, 451-52 (2d Cir. 2010).

n196. Serv. Emps., 595 F.3d at 452.

n197. 33 U.S.C. § 901 (2006).

n198. Serv. Emps., 595 F.3d at 452.

n199. Id.

n200. Id. (stating that they would first look to whether the DBA was ambiguous and then address the jurisdictional issue).

n201. Id. at 453.

n202. Id. at 452, 453.

n203. See infra notes 207-77 and accompanying text.

n204. See infra notes 207-58 and accompanying text.

n205. See infra notes 215-58 and accompanying text.

n206. See infra notes 259-77 and accompanying text.

n207. 595 F.3d 447 (2d Cir. 2010).

n208. 42 U.S.C. § 1651 (2006).

n209. 33 U.S.C. § 901 (2006).

n210. Serv. Emps. Int’l v. Dir., Office of Workers’ Comp. Programs, 595 F.3d 447, 453 (2d Cir. 2010).

n211. See infra notes 214-58 and accompanying text.

n212. See infra notes 214-35 and accompanying text.

n213. See infra notes 236-58 and accompanying text.

n214. 595 F.3d 447 (2d Cir. 2010).

n215. 42 USC § 1651 (2006).

n216. 33 U.S.C. § 901 (2006).

n217. Compare Serv. Emps. Int’l. v. Dir., Office of Workers’ Comp. Programs, 595 F.3d 447, 453 (2d Cir. 2010) (considering both DBA Section 3(b) and LHWCA Section 21 when interpreting the language of DBA Section 3(b) and finding that the DBA provision was ambiguous), with 42 U.S.C. § 1653(b) (2006) (providing that claims brought under LHWCA Section 21 should be instituted in the district court where the commissioner’s office is located).

n218. 42 USC § 1653(b) (2006).

n219. 123 F.3d 801 (4th Cir. 1997).

n220. Lee v. Boeing Co., 123 F.3d 801, 803 (4th Cir. 1997).

n221. Lee, 123 F.3d at 805 (citing Connecticut Nat’l Bank v. Germain, 503 U.S. 249 (1992)).

n222. Id. at 806.

n223. 242 U.S. 470, 485 (1917).

n224. Lee, 123 F.3d at 805 (citing United States v. Murphy, 35 F.3d 143, 145 (4th Cir. 1994) (citing Caminelli v. United States, 242 U.S. 470, 485 (1917)).

n225. Id. at 806.

n226. Compare Lee, 123 F.3d at 805 (noting that statutes should be interpreted according to their plain language and if a statute is unambiguous judicial inquiry should end), with Serv. Emps., 595 F.3d at 453 (noting that further inquiry is required if the statute has an ambiguous meaning, and ambiguity is determined by looking to the language of the provision and context of the statute as a whole).

n227. Serv. Emps., 595 F.3d at 453.

n228. Id.

n229. Id. (citing Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)).

n230. See id. (arguing that read literally the DBA provision conferred jurisdiction on United States District Courts and United States Courts of Appeals because DBA claims were appealed under the LHWCA provision that provided for United States Court of Appeals review).

n231. See supra notes 226-30 and accompanying text. Compare Serv. Emps., 595 F.3d at 453 (noting that courts should start with plain meaning of the statute and inquiry ends if the statute’s language is unambiguous, but finding ambiguity by reading DBA and LHWCA provisions together), with Lee, 123 F.3d at 805 (finding no ambiguity in the DBA’s language and stating that the first canon of statutory construction is the plain language of the statute, and where the language is unambiguous, the court’s inquiry must end).

n232. See 123 F.3d at 805 (citing to both Fourth Circuit and Supreme Court authority which provides that statutory language should be considered according to the ordinary meaning of the statute’s words and if those words are not ambiguous and have only one ordinary meaning judicial inquiry should be complete).

n233. See Serv. Emps. 595 F.3d at 453 (reading DBA Section 3 and LHWCA Section 21 together and finding ambiguity as a result of the language differences between the two provisions).

n234. Compare Lee, 123 F.3d at 805 (following Supreme Court precedent and looking to only the language of the DBA in determining whether the jurisdictional provision was ambiguous, and finding no ambiguity in the language of the provision based on the statute’s plain meaning), with Serv. Emps., 595 F.3d at 453 (considering both DBA Section 3 and LHWCA Section 21 in determining whether DBA Section 3 was ambiguous, and finding ambiguity based on the conflict between the language of the two statutes).

n235. Compare Lee, 123 F.3d at 805 (following Supreme Court precedent requiring that courts begin statutory interpretation by considering only the language of the provision itself and the plain meaning of its words and finding no ambiguity in the jurisdictional provision of the DBA), with Serv. Emps., 595 F.3d at 453 (considering both DBA and LHWCA provisions in interpreting the language of DBA Section 3 and finding ambiguity based on the conflict between the language of the statutes).

n236. 595 F.3d 447 (2d Cir. 2010).

n237. 42 U.S.C. § 1651 (2006).

n238. See infra notes 238-58 and accompanying text.

n239. Serv. Emps. Int’l. v. Dir., Office of Workers’ Comp. Programs, 595 F.3d 447, 453 (2d Cir. 2010).

n240. Compare Serv. Emps., 595 F.3d at 453 (failing to consider other DBA provisions to determine ambiguity of the judicial review provision), with Hickson, 155 F.3d 1272, 1274, 1275 (11th Cir. 1998) (considering DBA Section 1 and finding that DBA must follow LHWCA provisions except where DBA provisions modify those of the LHWCA), and AFIA/CIGNA Worldwide v. Felkner, 930 F.2d 1111, 1112-14 (5th Cir. 1991) (concluding that DBA Section 1 requires that the DBA follow all provisions of the LHWCA except where DBA provisions modify those of the LHWCA).

n241. 33 U.S.C. § 901 (2006).

n242. See Id. (discussing DBA Section 3(b) and LHWCA Section 21 to find ambiguity in the statute).

n243. 42 U.S.C. § 1653(b) (2006).

n244. 42 U.S.C. § 1651(a) (2006).

n245. Id.

n246. 155 F.3d 1272 (11th Cir. 1998).

n247. ITT Base Servs. v. Hickson, 155 F.3d 1272, 1272 (11th Cir. 1998) (agreeing with circuits finding review in the district courts and determining that the DBA language mandates review in the district courts, not the courts of appeals). Id.

n248. Hickson, 155 F.3d at 1274, 1275.

n249. Id. at 1274.

n250. 123 F.3d 801 (4th Cir. 1997).

n251. 930 F.2d 1111 (5th Cir. 1991).

n252. See Lee v. Boeing Co., 123 F.3d at 801, 804-05 (4th Cir. 1997) (noting that under DBA Section 1, DBA provisions control where they modify parallel provisions in the LHWCA and that since DBA Section 3(b) modifies the judicial review provision of the LHWCA, the DBA language controls), and AFIA/CIGNA Worldwide v. Felkner, 930 F.2d 1111, 1116 (5th Cir. 1991) (same).

n253. See 42 U.S.C. § 1651(a) (providing that provisions of the LHWCA control DBA claims except where DBA language modifies that of the LHWCA); Lee, 123 F.3d at 804 (noting that DBA Section 1 provides that DBA provisions should control where they differ from LHWCA provisions); Felkner, 930 F.2d at 1116 (same).

n254. See Lee, 123 F.3d at 805 (reasoning that when the LHWCA’s judicial review provision was modified but the DBA’s provision was not modified to match, the language of the DBA continued to control judicial review of DBA claims based on Section 1); Felkner, 930 F.2d at 1116 (reasoning that since the DBA language relating to judicial review specifically modifies the language of the LHWCA’s judicial review provision, the language of the DBA is controlling).

n255. See id. (concluding that since the DBA language unambiguously provides for judicial review in the district courts, the court must follow this language); Felkner, 930 F.2d at 1116 (same).

n256. See Serv. Emps. Int’l. v. Dir., Office of Workers’ Comp. Programs, 595 F.3d 447, 451-55 (2d Cir. 2010) (failing to consider Section 1 of the DBA in interpreting the DBA’s judicial review provision).

n257. Compare Serv. Emps., 595 F.3d at 451-55 (noting that the test for ambiguity requires consideration of the broader context of the statute as a whole, but failing to consider Section 1 of the DBA in interpreting the DBA’s judicial review provision), with Hickson, 155 F.3d at 1274, 1275 (noting that under DBA Section 1, DBA provisions control where they modify parallel provisions in the LHWCA and that since DBA Section 3(b) modifies the judicial review provision of the LHWCA, the DBA language controls), Lee, 123 F.3d at 805 (same), and Felkner, 930 F.2d at 1116 (same).

n258. Compare Serv. Emps., 595 F.3d at 451-55 (noting that the test for ambiguity requires consideration of the broader context of the statute as a whole, but failing to consider Section 1 of the DBA in interpreting the DBA’s judicial review provision and instead finding ambiguity based on a reading of only DBA Section 3 and LHWCA Section 21), with Hickson, 155 F.3d at 1274, 1275 (noting that under DBA Section 1, DBA provisions control where they modify parallel provisions in the LHWCA and that since DBA Section 3(b) modifies the judicial review provision of the LHWCA, the DBA language unambiguously providing for district court review controls), Lee, 123 F.3d at 805 (same), and Felkner, 930 F.2d at 1116 (same).

n259. 42 U.S.C. § 1651 (2006).

n260. See supra notes 214-58 and accompanying text.

n261. See infra notes 259-77 and accompanying text.

n262. AFIA/CIGNA Worldwide v. Felkner 930 F.2d 1111, 1116 (5th Cir. 1991) (citing Maine v. Thiboutot, 448 U.S. 1, 4 (1980)).

n263. See supra notes 207-58 and accompanying text.

n264. Compare Serv. Emps., 595 F.3d at 453-54 (finding that plain language of the DBA was ambiguous since reading with the LHWCA provision would provide for jurisdiction in both United States District Courts and United States Courts of Appeals, and then interpreting the statute to provide for United States Court of Appeals review based on DBA’s purpose as extension of the LHWCA and interpreting the DBA’s judicial review provision as a reference to the LHWCA’s provision), with Defense Base Act, 41 U.S.C. § 1651, 1653(b) (stating the LHWCA provisions control in DBA cases except where DBA modifies LHWCA provisions, and providing for judicial review of benefits decisions in the district court where commissioner’s office is located), and Hickson, 155 F.3d at 1274, 1275 (noting that the DBA specifically provides for judicial review in United States District Courts and DBA Section 1 states that DBA provisions control where they modify LHWCA provisions, and finding that the DBA language is unambiguous and thus must be followed).

n265. 930 F.2d 1111 (5th Cir. 1991).

n266. AFIA/CIGNA Worldwide v. Felkner, 930 F.2d 1111, 1116 (5th Cir. 1991).

n267. 155 F.3d 1272 (11th Cir. 1998).

n268. 123 F.3d 801 (4th Cir. 1997).

n269. See ITT Base Servs. v. Hickson, 155 F.3d 1272, 1275 (11th Cir. 1998) (stating that court’s conclusion was dictated by the unambiguous language of the statute and that court can’t speculate about Congress’s intent where a statute’s language is unambiguous); see also Lee v. Boeing, Co., 123 F.3d 801, 805 (4th Cir. 1997) (noting that although failure to amend the DBA may have been a mistake by Congress, court could not speculate about Congressional intent where the statute’s language is unambiguous).

n270. See Lee 123 F.3d at 805-06 (stating that the unambiguous language of the statute required the court to apply the DBA as written and concluding that jurisdiction is proper in the district courts); Hickson, 155 F.3d at 1275 (stating that the language of the DBA is unambiguous and the court must apply the statute as written and cannot speculate about congressional intent); Felkner, 930 F.2d at 1116-17 (stating that the language of the DBA is unambiguous and requires judicial review in the district courts, and noting that any modification of the statute’s plain meaning would be judicial legislation).

n271. See Hickson, 155 F.3d at 1275 (concluding that the plain language of the DBA provides for judicial review in the district courts and applying the plain language of the statute); Lee, 123 F.3d 801 at 805 (same); Felkner, 930 F.2d 1111 at 1114 (same).

n272. 595 F.3d 447 (2d Cir. 2010).

n273. Serv. Emps. Int’l. v. Dir., Office of Workers’ Comp. Programs, 595 F.3d 447, 453 (2d Cir. 2010).

n274. Serv. Emps., 595 F.3d at 453-54.

n275. Felkner, 930 F.2d at 1116 (citing Maine v. Thiboutot, 448 U.S. 1, 4 (1980)).

n276. See supra notes 236-58 and accompanying text; Compare 42 U.S.C. § 1651(a) (stating that LHWCA provisions control in DBA actions except where DBA provisions modify those of the LHWCA), and 42 U.S.C. § 1653(b) (stating that appeals of compensation orders should be brought in the United States District Courts), with Lee, 123 F.3d at 804, 805 (stating that courts must interpret an unambiguous statute according to its plain meaning, and finding that the DBA’s language expressly provides that its provisions control where they modify the provisions of the LHWCA, and that the DBA expressly provides for judicial review in the United States District Courts), and Felkner, 930 F.2d at 1116 (reasoning that courts must interpret a statute according to its unambiguous and plain meaning, and finding that the language of the DBA unambiguously provides for review in the United States District Courts).

n277. Compare Serv. Emps., 595 F.3d at 452, 453, 454 (finding that plain language of the DBA was ambiguous and then interpreting DBA to provide for United States Court of Appeals review based on DBA’s purpose as an extension of the LHWCA and interpretation of DBA’s judicial review provision as superfluous), with 41 U.S.C. § 1651(a), 1653(b) (stating that LHWCA provisions control in DBA cases except where the DBA modifies an LHWCA provision, and requiring judicial review of compensation orders in the district court where the commissioner’s office is located), and Hickson, 155 F.3d at 1275 (noting that the DBA unambiguously provides for judicial review in United States District Courts and also provides that DBA incorporates only consistent LHWCA provisions, and stating that court cannot consider Congress’s intent if a statute is unambiguous).

n278. 595 F.3d 447 (2d Cir. 2010).

n279. 42 U.S.C. § 1651 (2006).

n280. Serv. Emps. Int’l. v. Dir., Office of Workers’ Comp. Programs, 595 F.3d 447, 452 (2d Cir. 2010).

n281. See generally, Serv. Emps., 595 F.3d at 449-51 (explaining the circumstances surrounding Barrios’ application for disability benefits).

n282. Id. at 451.

n283. Id.

n284. Id.

n285. Id. at 451-52.

n286. See id. at 452 (both determining that jurisdiction lies in the United States Courts of Appeals); Pearce v. Dir., Office of Workers’ Comp. Programs, 603 F.2d 763, 770 (9th Cir. 1979) (same); see also Home Indem. Co. v. Stillwell, 597 F.2d 87, 89 (6th Cir. 1979) (concluding that jurisdiction lies in the United States District Courts); Felkner, 930 F.2d at 1116 (same); Lee, 123 F.3d at 805 (same); Hickson, 155 F.3d at 1275 (same).

n287. See id. at 453. (stating “read literally, § 3(b) of the DBA states: ‘Judicial proceedings provided under section[] … 21 of the Longshore and Harbor Workers’ Compensation Act [which provides for initial review in the courts of appeals] shall be instituted in the United States District Court.’ Initial review obviously cannot lie in both courts.”).

n288. Id. at 453-54.

n289. Pearce v. Dir., Office of Workers’ Comp. Programs, 603 F.2d 763, 770 (9th Cir. 1979); Serv. Emps., 595 F.3d at 454.

n290. See supra notes 207-58 and accompanying text.

n291. See supra notes 214-35 and accompanying text.

n292. See supra notes 236-58 and accompanying text.

n293. See supra notes 259-77 and accompanying text.

n294. See Hickson, 155 F.3d at 1275 (citing to Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) and noting that Congress must fix any disconnect between the DBA and the LHWCA); see also Home Indem., 597 F.2d at 90 (noting that the court must follow the DBA as written until Congress says otherwise).

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