1st Circuit Joins Deep Split Over Initial Judicial Review of Defense Base Act Awards

Last week in Truczinskas v. Director, Office of Workers’ Compensation Programs, the First Circuit pointed out that “the circuit courts are now almost evenly split on whether initial judicial review of [Defense Base Act] awards should be in the district or the circuit court.”

 The court summarized the split as follows:

Four circuits endorse review by the district court, ITT BaseServs. v. Hickson, 155 F.3d 1272, 1275 (11th Cir. 1998); Lee v. Boeing Co., 123 F.3d 801, 805 (4th Cir. 1997); AIFA/CIGNAWorldwide, 930 F.2d at 1116; Home Indem. Co. v. Stillwell, 597 F.2d 87, 89 (6th Cir.), cert. denied, 444 U.S. 869, 100 S. Ct. 145, 62 L. Ed. 2d 94 (1979), and three by the court of appeals, Serv. Emps. Int'l, Inc. v. Dir., Office of Workers' Comp. Programs, 595 F.3d 447, 452-55 (2d Cir. 2010); Pearce v. Dir., Office of Workers' Comp. Programs (Pearce II), 647 F.2d 716, 720 (7th Cir. 1981); Pearce v. Dir., Office of Workers' Comp. Programs (Pearce I), 603 F.2d 763, 766-71 (9th Cir. 1979).

The First Circuit, like the Supreme Court, has remained noncommittal on the issue:

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

Until now...

Nevertheless, the Defense Base Act can be legitimately read to confer such jurisdiction upon us, and this reading accords with the overall congressional policy reflected in the 1972 Longshore Act amendments. Congress likely gave no thought at all to the wrinkle that concerns us; but, where statutory language permits a given reading and Congress' policy will be fostered by it,⁵ we think that reading should prevail--even if, as here, that statutory language would also permit a contrary reading at odds with Congress' statutory policy.

You can read the full opinion here: Truczinskas v. Director, Office of Workers’ Compensation Programs, No. 11-2503 (1st Cir. Nov. 20, 2012).

Comments

[Defense Base Comp]

Thank you for sharing this very nice post, please keep continue the sharing of this types of information. Here we are waiting for more........

[Jon R.]

This is a great post. I handle a lot of DBA claims. Another DBA and Longshore Circuit split that is often litigated concerns attorneys fees. The Fourth, Fifth and Sixth Circuits interpret 33 U.S.C. Sec. 928(b) much differently than the Ninth Circuit. Whereas the Fourth, Fifth, and Sixth Circuits employ a strict statutory construction approach, the Ninth Circuit applies more of an "anything goes" approach. Compare, e.g., Andrepont v. Murphy Exploration & Prod. Co., 566 F.3d 415, 418, 421 (5th Cir. 2009) and Nat’l Steel & Shipbuilding Co. v. U.S. Dept. of Labor, OWCP, 606 F.2d 875, 882 (9th Cir. 1979). If anyone is interested, my firm's blog discusses DBA, Longshore and maritime topics. www.navwaters.com