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

• Publication year: 2022

44 Creighton L. Rev. 769. 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

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

Heather Ruhlman -1'2

I. INTRODUCTION

Congress enacted the Defense Base Act(fn1) ("DBA") in 1941 to provide workers' compensation benefits to employees who sustained injuries or died while working on government projects overseas.(fn2) Congress enacted the DBA as an extension of the already existing Longshore and Harbor Workers' Compensation Act(fn3) ("LHWCA"), and intended that the DBA follow the LHWCA's provisions except where specific DBA language deviated from that of the LHWCA.(fn4) Initially, under both acts, the United States District Courts reviewed benefits determinations.(fn5) However, this parallel system changed when Congress amended the LHWCA in 1972 to provide for United States Courts of Appeals review of benefits determinations.(fn6) Congress left the DBA's parallel judicial review provisions unchanged.(fn7) 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.(fn8)

In 2010, the United States Court of Appeals for the Second Circuit in Service Employees International, Inc. v. Director, Office of Workers' Compensation Programs(fn9) addressed which courts have jurisdiction to hear DBA appeals.(fn10) The Second Circuit determined that United States Courts of Appeals have jurisdiction to hear appeals of Benefits Review Board decisions under the DBA.(fn11) 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.(fn12) 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.(fn13) 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.(fn14) 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.(fn15)

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.(fn16) 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.(fn17) 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 lan-guage.(fn18) 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.(fn19)

II. FACTS AND HOLDING

In Service Employees International, Inc. v. Director, Office of Workers' Compensation Programs,(fn20) the United States Court of Appeals for the Second Circuit confronted for the first time the issue, under the Defense Base Act(fn21) ("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.(fn22) Jesse Barrios ("Barrios"), an employee of Service Employees International ("Service Employees"), worked in Iraq delivering fuel and gasoline throughout the country.(fn23) While working in Iraq, Barrios experienced eye symptoms including burning, itching, and dryness that caused him to seek medical attention.(fn24) 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.(fn25) 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).(fn26) Dr. Abdullah noted that both of Barrios' conditions were more likely to occur in dry climates and in sunlight.(fn27)

Barrios continued to work after his examination, but his symptoms persisted even after Dr. Abdullah prescribed eye drops and protective sunglasses.(fn28) Eventually, Service Employees returned Barrios to the United States to obtain treatment for his condition, although it characterized the condition as non-work-related.(fn29)

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.(fn30) Service Employees requested that an outside ophthalmologist, Dr. Charles A. Garcia ("Dr. Garcia") review Barrios's medical records.(fn31) Dr. Garcia, without examining Barrios, concluded that environmental factors in Iraq probably did not cause Barrios' con-dition.(fn32) Rather, he concluded that years of exposure to dry conditions and extreme sunlight generally were required to bring on symp-toms.(fn33) Yet, Dr. Garcia did note that the dry and irritating environment in Iraq possibly made the condition worse.(fn34)

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.(fn35) Service Employees denied his claim on the ground that his condition was not associated with his employment in Iraq.(fn36) Following Service Employees' denial, Barrios filed a claim with the United States Department of Labor under the Longshore and Harbor Workers' Compensation Act(fn37) ("LHWCA"), as extended by the DBA.(fn38)

After an administrative hearing, an Administrative Law Judge ("ALJ"), acting on behalf of the Department of Labor, granted Bar-rios'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.(fn39) Service Employees appealed the ALJ's decision to the Benefits Review Board, which affirmed the ALJ's issuance of the order.(fn40) Service Employees again appealed, this time to the Second Circuit.(fn41)

The Second Circuit first addressed whether the court had jurisdiction to hear Service Employees' appeal of the Benefits Review Board decision.(fn42) The Second Circuit discussed the history of the DBA and the LHWCA, noting that Congress enacted the DBA to extend the LHWCA.(fn43) 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.(fn44)

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.(fn45) One of those modifications in the DBA was the provision outlining which court had jurisdiction to review administrative decisions.(fn46) The original LHWCA, as enacted in 1927, provided for review in the United States District Court where the injury occurred.(fn47) 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.(fn48) 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 oc-curred.(fn49) Congress did not, however, amend the DBA, and, thus, the DBA retained the language providing for judicial review in the United States District Courts.(fn50)

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.(fn51) The Second Circuit reasoned that Section 3(b) of the DBA was ambiguous.(fn52) 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 Ap-peals.(fn53) Since judicial review could not exist simultaneously in both courts, the Second Circuit concluded that the statute was ambiguous.(fn54) 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.(fn55)

After identifying the DBA provision as ambiguous...