UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
DANIEL BRINK, et al., )
)
Plaintiffs, )
) Civil Action No. 11-1733 (EGS)
v. )
)
XE HOLDING, LLC, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiffs, thirty-one civilian government contractor
employees (and/or their surviving relatives), bring this
purported class action against twenty-three defendants, which
include United States government contractors (the “Contractor
Defendants”) and their insurance carriers (the “Insurer
Defendants”) (collectively, “Defendants”).1 Plaintiffs allege
violations of the Longshore and Harbor Workers’ Compensation
Act, 33 U.S.C. § 948a, the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1861, et seq., the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et
seq., and several common law tort claims, based upon Defendants’
handling of Plaintiffs’ claims for medical benefits under the
1
Pursuant to a Stipulation filed on August 27, 2012,
Plaintiffs dismissed all claims against Defendant Parsons Group.
See Docket No. 108.
Defense Base Act. Pending before the Court are fourteen motions
to dismiss pursuant to Rules 12(b)(1), 12(b)(2), 12(b)(3), and
12(b)(6) of the Federal Rules of Civil Procedure.2 Upon
2
In resolving the pending motions, the Court has relied on
the following documents: Plaintiffs’ Second Amended Complaint
[Docket No. 50]; Contractor Defendants’ Joint Motion to Dismiss
[Docket No. 80]; Plaintiffs’ Opposition to Contractor
Defendants’ Joint Motion to Dismiss [Docket No. 114]; Contractor
Defendants’ Joint Reply [Docket No. 127]; Insurer Defendants’
Joint Motion to Dismiss [Docket No. 82]; Plaintiffs’ Opposition
to Insurer Defendants’ Joint Motion to Dismiss [Docket No. 115];
Insurer Defendants’ Reply [Docket No. 138]; Plaintiffs’
Opposition to Defendant KBR and Halliburton’s Motion to Dismiss
[Docket No. 121]; Defendants KBR and Halliburton’s Reply [Docket
No. 130]; Defendant Academi’s Motion to Dismiss [Docket No. 83];
Plaintiffs’ Opposition to Defendant Academi’s Motion to Dismiss
[Docket No. 109]; Defendant Academi’s Reply [Docket No. 133];
Defendants Wackenhut International and Ronco Consulting’s Motion
to Dismiss [Docket No. 85]; Plaintiffs’ Opposition to Defendants
Wackenhut International and Ronco Consulting’s Motion to Dismiss
[Docket No. 111]; Defendants Wackenhut International and Ronco
Consulting’s Reply [Docket No. 134]; Defendant Northrop
Grumman’s Motion to Dismiss [Docket No. 87]; Plaintiffs’
Opposition to Defendant Northrop Grumman’s Motion to Dismiss
[Docket No. 120]; Defendant Northrop Grumman’s Reply [Docket No.
140]; Defendant Global Linguist Solutions’ Motion to Dismiss
[Docket No. 88]; Plaintiffs’ Opposition to Defendant Global
Linguist Solutions’ Motion to Dismiss [Docket No. 117];
Defendant Global Linguist Solutions’ Reply [Docket No. 136];
Defendants AECOM Government Services and Combat Support
Associates’ Motion to Dismiss [Docket No. 89]; Plaintiffs’
Opposition to Defendants AECOM Government Services and Combat
Support Associates’ Motion to Dismiss [Docket No. 113];
Defendants AECOM Government Services and Combat Support
Associates’ Reply [Docket No. 135]; Defendant Exelis Systems’
Motion to Dismiss [Docket No. 91]; Plaintiffs’ Opposition to
Defendant Exelis Systems’ Motion to Dismiss [Docket No. 116];
Defendant Exelis Systems’ Reply [Docket No. 139]; Defendant L-3
Services’ Motion to Dismiss [Docket No. 93]; Plaintiffs’
Opposition to Defendant L-3 Services’ Motion to Dismiss [Docket
No. 119]; Defendant L-3 Services’ Reply [Docket No. 131];
Defendant US Investigations Services’ Motion to Dismiss [Docket
No. 94]; Defendant USIS International’s Motion to Dismiss
2
consideration of the motions, the responses and replies thereto,
the relevant law, and the entire record in this case, the Court
will GRANT the motions and DISMISS Plaintiffs’ claims.
I. BACKGROUND
A. Statutory Background
The Defense Base Act (“DBA”), 42 U.S.C. § 1651 et seq.,
establishes a uniform, federal compensation scheme for civilian
contractors and their employees for injuries sustained while
providing functions under contracts with the United States
outside its borders. The DBA applies “the provisions of the
Longshore and Harbor Workers’ Compensation Act [33 U.S.C. § 901
et seq. (the “LHWCA” or the “Longshore Act”)] . . . in respect
to the injury or death of any employee engaged in any employment
. . . under a contract entered into with the United States . . .
where such contract is to be performed outside the continental
United States . . . .” 42 U.S.C. § 1651(a)(4). As Plaintiffs
[Docket No. 95]; Plaintiffs’ Combined Opposition to Defendants
US Investigations Services and USIS International’s Motions to
Dismiss [Docket No. 122]; Defendant US Investigations Services’
Reply [Docket No. 128]; Defendant USIS International’s Reply
[Docket No. 129]; Defendant DynCorp International’s Motion to
Dismiss [Docket No. 99]; Plaintiffs’ Opposition to Defendant
DynCorp International’s Motion to Dismiss [Docket No. 112];
Defendant DynCorp International’s Reply [Docket No. 132];
Defendant CNA Financial’s Motion to Dismiss [Docket No. 90];
Plaintiffs’ Opposition to Defendant CNA Financial’s Motion to
Dismiss [Docket No. 110]; Defendant CNA Financial’s Reply
[Docket No. 137]; Defendant Khudairi Group’s Motion to Dismiss
[Docket No. 100]; Plaintiffs’ Opposition to Defendant Khudairi
Group’s Motion to Dismiss [Docket No. 118]; Defendant Khudairi
Group’s Reply [Docket No. 141].
3
note at the outset of their Complaint, “[the] DBA system is
administered according to statute by the United States
Department of Labor (DOL), in the administrative Office of
Workers’ Compensation Programs (OWCP), subject to hearing and
decision in contested cases by the Office of Administrative Law
Judges (OALJ) of the DOL, and administrative appeal to the
Benefits Review Board. If a matter works its way through the
OWCP, OALJ, and Board, only then can a party appeal into the
federal courts.” Second Am. Compl. (“SAC”) ¶ 2 (citing 33
U.S.C. §§ 919, 921(b)(3)).
The DBA includes a provision that makes an employer’s
liability under the statutory scheme exclusive:
The liability of an employer, contractor (or any
subcontractor or subordinate subcontractor with respect to
the contract of such contractor) under this chapter shall
be exclusive and in place of all other liability of such
employer, contractor, subcontractor, or subordinate
contractor to his employees (and their dependents) coming
within the purview of this chapter, under the workmen’s
compensation law of any State, Territory, or other
jurisdiction, irrespective of the place where the contract
of hire of any such employee may have been made or entered
into.
42 U.S.C. § 1651(c); see also 33 U.S.C. § 905(a) (“The liability
of an employer prescribed in section 4 [of the LHWCA, 33 U.S.C.
§ 904] shall be exclusive and in place of all other liability of
such employer to the employee, his legal representative, husband
or wife, parents, dependents, next of kin, and anyone otherwise
entitled to recover damages from such employer at law . . . on
4
account of [an employee’s] injury or death.”). Like the LHWCA
and other workers’ compensation statutes, the DBA represents a
compromise between employees and their employers: “[e]mployers
relinquish[] their defenses to tort actions in exchange for
limited and predictable liability,” and “[e]mployees accept the
limited recovery because they receive prompt relief without the
expense, uncertainty, and delay that tort actions entail.”
Morrison-Knudsen Constr. Co. v. Dir., Office of Workers’ Comp.
Programs, 461 U.S. 624, 636 (1983).
The DBA incorporates the LHWCA’s detailed administrative
procedures for the filing, adjudication, and payment of workers’
compensation claims. An injured employee or decedent is
required to give written notice of injury or death within thirty
days after either the date of the injury or death, or the date
the employee or beneficiary becomes aware or should have been
aware of the injury or death. See 33 U.S.C. § 912; 20 C.F.R. §
702.212. A claimant then has one year within which to file a
claim for compensation on account of that injury or death. See
33 U.S.C. § 913(a). Within ten days of learning that an
employee has been injured, an employer must send a report to the
Department of Labor “District Director.” See 33 U.S.C. §
930(a); 20 C.F.R. § 702.201. Unless the employer is self-
insured, the employer’s DBA insurance carrier is responsible for
processing and payment of an injured employee’s claim. See 33
5
U.S.C. § 935; 20 C.F.R. § 703.115. The District Director must
be notified when payments commence and if payment is suspended
for any reason. See 20 C.F.R. § 702.234. If the right to
compensation is controverted by the employer, 33 U.S.C. §
914(d); 20 C.F.R. § 702.251, no benefits are due until a
compensation award is made by the District Director. Upon
receiving a notice of controversion or an employee’s challenge
to reduction, suspension, or termination of benefits, the
District Director commences adjudication proceedings. See 20
C.F.R. §§ 702.252, 702.261-262. There is a mandatory three-tier
process for adjudicating claims: (1) informal mediation before
the District Director; (2) formal hearings and fact-finding
proceedings before an Administrative Law Judge; and (3)
appellate review by the Department of Labor Benefits Review
Board, which is subject to further appellate review by a court
of competent jurisdiction. See 33 U.S.C. § 921; 20 C.F.R. §§
702.311-319 (“Action by District Directors”); 702.331-351
(“Formal Hearings”); 702.371-373 (“Interlocutory Matters”);
702.391-394 (“Appeals”); see also 42 U.S.C. § 1653(b). An
employee who successfully prosecutes a controverted claim is
entitled to attorneys’ fees. See 33 U.S.C. § 928; 20 C.F.R. §
702.134.
The LHWCA’s administrative scheme also provides for a
number of penalties, which include, inter alia:
6
penalties for failure to timely report employee
injuries, see 33 U.S.C. § 930(e); 20 C.F.R. § 702.204;
penalties paid directly to the employee for failure to
timely pay pre-award or post-award compensation, see
33 U.S.C. §§ 914(e)-(f); 20 C.F.R. §§ 702.233,
702.350;
penalties for making false statements or
misrepresentations in reporting employee injuries, see
33 U.S.C. § 930(e); 20 C.F.R. § 702.204;
criminal penalties and imprisonment for false
statements or misrepresentations made to reduce, deny,
or terminate benefits, 33 U.S.C. § 931(c); 20 C.F.R. §
702.217(b);
criminal penalties, imprisonment, and other remedies
for failure to pay compensation, see 33 U.S.C. § 938;
judicial enforcement of a final compensation order,
see 33 U.S.C. § 921(d); and
penalties and the payment of lost wages for
retaliation, wrongful discharge or discrimination with
regard to employees who claim or attempt to claim
benefits, see 33 U.S.C. § 948a; 20 C.F.R. § 702.271.
B. Factual and Procedural Background
This action arises out of Defense Base Act claims filed by
civilian government contractor employees who suffered injuries
while working in Afghanistan and Iraq. Plaintiffs, the
contractor employees and/or their surviving relatives,3 purport
to bring this action on behalf of more than 10,000 similarly
situated individuals who were denied benefits under the DBA.
3
One plaintiff, Nicky Pool, is the nurse for another
Plaintiff, Daniel Brink. See SAC ¶¶ 477-88. Ms. Pool alleges
that CNA has refused to pay medical invoices that she sent for
care of Mr. Brink.
7
According to the SAC, Defendants, in conspiracy with
others, have sought to defeat the rights of American citizens
and foreign nationals to receive their lawful compensation under
the DBA. SAC ¶ 2. Throughout the two hundred page Complaint,
Plaintiffs allege that Defendants:
failed or refused to provide medical benefits owed to
Plaintiffs under the DBA, see, e.g., SAC ¶¶ 41, 57,
59, 62, 83, 103, 123, 133, 158, 178, 186, 210, 225,
260, 282, 315, 343, 366, 375, 382, 401, 422-24, 450,
495, 533, 546-47;
cut off medical benefits owed under the DBA, see,
e.g., SAC ¶¶ 59, 61, 62, 75, 81, 106, 175, 200, 205,
214, 227, 240, 273, 276, 351, 377, 394;
delayed the provision of medical benefits or
compensation owed under the DBA, see, e.g., SAC ¶¶ 59,
61, 87, 145, 262, 361, 376, 408, 423, 434, 540, 545;
made false statements and misrepresentations to the
DOL and Plaintiffs regarding the payment of their DBA
benefits while actually reducing, denying or ignoring
Plaintiffs’ medical needs, see, e.g., SAC ¶¶ 6, 59,
103, 109-10, 122, 135, 146, 150, 154, 163, 179, 202,
214, 273-74, 277, 283, 351, 357, 378, 461-62;
failed to comply with DOL orders to pay DBA benefits,
see, e.g., SAC ¶¶ 59, 82, 242, 261, 316, 357, 384;
threatened or discouraged workers from making DBA
claims, see, e.g., SAC ¶¶ 54, 55, 78-79, 132, 137,
250, 269; and
terminated Plaintiffs after they were disabled by
their DBA-covered injuries, see, e.g., SAC ¶¶ 13, 62,
84, 111, 203, 215, 252-54, 260, 420.
Plaintiffs further state that the “[c]ontractors and their
insurance carriers . . . have utilized fear, threats, implied
threats, and elaborate ruses to deprive whole classes of . . .
persons injured from effectively obtaining any benefits, have
8
employed devices and artifices to prevent any medical treatment
for PTSD, [and have] accus[ed] persons of faking or of
malingering . . . .” SAC ¶ 12. According to Plaintiffs, all of
these actions exacerbated the harm that Plaintiffs had already
suffered based on their DBA-covered injuries and caused
additional financial and emotional harm. See, e.g., SAC ¶¶ 52,
88, 126, 166, 182, 206, 217, 228, 245, 256, 268, 278, 283, 292,
320, 344, 394, 403, 412, 439, 463, 476, 523, 534. Plaintiffs
emphasize that the damages they seek in this action are not
related to what they claimed in their DBA actions. See id.
Plaintiffs filed their initial Complaint in this matter on
September 26, 2011. They filed an Amended Complaint on November
22, 2011. On April 23, 2012, the Court granted Plaintiffs’
unopposed request to file a Second Amended Complaint
(hereinafter “SAC”) pursuant to Federal Rule of Civil Procedure
15(a)(2). The SAC alleges claims for: retaliatory discharge and
discrimination under the LHWCA, 33 U.S.C § 948a (Count I);
violations of RICO, 18 U.S.C. § 1961 et seq. (Count II); bad
faith, tortious breach of the covenant of good faith (Count
III); unconscionable, fraudulent and deceptive trade practices
(Count IV); civil conspiracy (Count V); violations of the ADA,
42 U.S.C. § 12101 et seq. (Count VI); outrage (Count VII); and
9
wrongful death (Count VIII).4 The Complaint seeks $2 billion in
damages, as well as injunctive relief in order to prevent harm
to Plaintiffs and those similarly situated, “and to require
Defendants to comply with their legal obligations here and
around the world, as to all past, present and future individuals
who work in support of America’s wars.” SAC ¶ 1.
On July 13 and 16, 2012, Defendants filed fourteen motions
to dismiss, including two joint motions filed by the Contractor
Defendants and the Insurer Defendants. See n.2 supra. The
motions are ripe for determination by the Court.
II. LEGAL STANDARDS
Federal district courts are courts of limited jurisdiction,
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994),
and a Rule 12(b)(1) motion for dismissal presents a threshold
challenge to a court’s jurisdiction, Haase v. Sessions, 835 F.2d
902, 906 (D.C. Cir. 1987). On a motion to dismiss for lack of
subject matter jurisdiction, the plaintiff bears the burden of
establishing that the court has jurisdiction. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). In evaluating
such a motion, the Court must “accept as true all of the factual
allegations contained in the complaint,” Wilson v. Dist. of
4
Plaintiffs additionally include a request for preliminary
and permanent injunctive relief, which is titled Count IX but is
properly construed as a claim for relief, rather than a separate
cause of action.
10
Columbia, 269 F.R.D. 8, 11 (D.D.C. 2010) (citation omitted), and
should review the complaint liberally while accepting all
inferences favorable to the plaintiff, Barr v. Clinton, 370 F.3d
1196, 1199 (D.C. Cir. 2004). Because subject matter
jurisdiction focuses on the court’s power to hear the claim,
however, the court must give the plaintiff’s factual allegations
closer scrutiny when resolving a Rule 12(b)(1) motion than would
be required for a Rule 12(b)(6) motion. Macharia v. United
States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003). Thus, to
determine whether it has jurisdiction over a claim, the court
may consider materials outside the pleadings where necessary to
resolve disputed jurisdictional facts. Herbert v. Nat’l Acad.
of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
Faced with motions to dismiss under Rule 12(b)(1) and Rule
12(b)(6), a court should first consider the Rule 12(b)(1) motion
because “[o]nce a court ‘determines that it lacks subject matter
jurisdiction, it can proceed no further.’” Sledge v. United
States, 723 F. Supp. 2d 87, 91 (D.D.C. 2010) (quoting Simpkins
v. Dist. of Columbia, 108 F.3d 366, 371 (D.C. Cir. 1997)).
A motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of the complaint. Browning v. Clinton, 292 F.3d
235, 242 (D.C. Cir. 2002). A complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief, in order to give the defendant fair notice
11
of what the . . . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks and citations omitted). “[W]hen ruling on
defendant’s motion to dismiss, a judge must accept as true all
of the factual allegations contained in the complaint.”
Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C.
Cir. 2009) (quoting Erikson v. Pardus, 551 U.S. 89, 94 (2007)).
The court must also grant the plaintiff “the benefit of all
inferences that can be derived from the facts alleged.” Kowal
v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). A
court need not, however, “accept inferences drawn by plaintiffs
if such inferences are unsupported by the facts set out in the
complaint.” Id. In addition, “[t]hreadbare recitals of
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009). Only a complaint that states a plausible
claim for relief survives a motion to dismiss. Id.
III. ANALYSIS
All of the Defendants argue that the Second Amended
Complaint should be dismissed in its entirety because the
Defense Base Act provides the exclusive process and forum to
resolve Plaintiffs’ claims. See, e.g., Contractor Defs.’ Joint
Mem. at 10-22; Insurer Defs.’ Joint Mem. at 7-21; Khudairi
Group’s Mem. at 13-17. Defendants further argue that Plaintiffs
12
fail to state a claim under RICO, the ADA, or any of their
common law causes of action. See, e.g., Contractor Defs.’ Joint
Mem. at 23-37; Insurer Defs.’ Joint Mem. at 21-36. Finally,
several Defendants argue (1) that this Court lacks personal
jurisdiction over them and that venue is improper, see Global
Linguist Solutions’ Mem. at 4-11; AECOM and CSA’s Mem. at 4-7;
USIS International’s Mem. at 3-4, 9; CNA Financial’s Mem. at 8-
9; (2) that they are not proper parties to this action because
there are no claims alleged directly against them, see Northrop
Grumman’s Mem. at 10-11; CNA Financial’s Mem. at 5-8; Khudairi
Group’s Mem. at 17-22; and (3) that they were improperly named
in the Complaint because they settled all claims with the
relevant plaintiff (and counsel of record in this action) months
before the initial Complaint was filed, see Exelis Systems’ Mem.
at 10-11. As discussed in more detail below, the Court
concludes that the Defense Base Act preempts all of Plaintiffs’
state law claims, as well as Plaintiffs’ RICO and retaliatory
discharge claims. The Court further concludes that Plaintiffs
fail to state a claim under the ADA. The Court therefore does
not reach the Defendants’ alternative arguments.
13
A. Exclusivity of the DBA and the LHWCA
1. State Law Claims (Counts III, IV, V, VII, and
VIII)
The D.C. Circuit has held that the LHWCA, which is
incorporated into the DBA, “provides a comprehensive scheme for
compensating employees who are injured or killed in the course
of employment.” Hall v. C&P Tel. Co., 809 F.2d 924, 926 (D.C.
Cir. 1987) [Hall II] (emphasis in original). In Hall, the
plaintiff alleged that his employer had wrongfully delayed and
denied his benefits under the D.C. Workers’ Compensation Act,
which at the time incorporated the LHWCA’s statutory framework.
The plaintiff filed suit for intentional infliction of emotional
distress and bad-faith refusal to make timely workers’
compensation benefits payments. See Hall v. C&P Tel. Co., 793
F.2d 1354, 1355 (D.C. Cir. 1986) [Hall I]. On rehearing, the
D.C. Circuit stated that the plaintiff, “[u]nsatisfied with the
[LHWCA’s] statutory quid pro quo . . . contend[ed] that
employees should be permitted to bring tort claims when the
employer refuses to make timely compensation payments with an
intent to injure.” Hall II, 809 F.2d at 926 (emphasis added).
The court found, however, that recognizing such a cause of
action would “undo[] the legislated compromise between the
interests of employees and the concerns of employers.” Id.
(internal quotation marks and citation omitted). Therefore, the
14
court held that tort claims based upon delayed or denied
benefits “fall within the Act’s exclusivity provisions,” and it
affirmed the district court’s dismissal of the suit for lack of
subject matter jurisdiction. See id.
Courts in several other circuits have likewise found this
exclusive remedy scheme to bar state tort claims like those
alleged here. See Barnard v. Zapata Haynie Corp., 975 F.2d 919,
920 (1st Cir. 1992) (holding that the LHWCA preempts state tort
claims for intentional failure to make timely compensation
payments, as well as willful and malicious refusal to pay);
Atkinson v. Gates, McDonald & Co., 838 F.2d 808, 809-12 (5th
Cir. 1988) (same); Sample v. Johnson, 771 F.2d 1335, 1344-47
(9th Cir. 1985) (same); Nauert v. Ace Prop. & Cas. Ins. Co., No.
04-cv-2547, 2005 WL 2085544, at *3-5 (D. Colo. Aug. 27, 2005)
(dismissing claims for bad faith failure to pay compensation
based on exclusivity of DBA and LHWCA); see also Brown v. Gen.
Servs. Admin., 425 U.S. 820, 834-35 (1976) (“We have
consistently held that a narrowly tailored employee compensation
scheme preempts the more general tort recovery statutes.”).5
5
Courts recognize that the LHWCA “grants the employer’s
insurance carrier . . . the same immunity which it grants the
employer . . . .” Atkinson, 838 F.2d at 811; see also Barnard,
975 F.2d at 921 (finding nonpayment claims against insurer
preempted by LHWCA); Johnson v. Am. Mut. Liab. Ins. Co., 559
F.2d 382, 383 (5th Cir. 1977) (finding that the LHWCA’s
exclusivity provision barred a negligence claim against an
insurer).
15
In addition, the LHWCA precludes state tort claims alleging
“false statement[s] or representation[s] for the purpose of
reducing, denying, or terminating” a claimant’s benefits.
Tipton v. Northrop Grumman Corp., No. 08-1267, 2008 WL 5378129,
at *4 (E.D. La. Dec. 22, 2008). As several courts have
recognized, Section 931(c) of the LHWCA, as incorporated by the
DBA, establishes an employer’s exclusive liability for such
alleged conduct in the form of criminal penalties and liability.
See Barnard, 975 F.2d at 921 n.4; Atkinson, 838 F.2d at 811.
Further, courts have found that the exclusive remedies and
adjudication processes in the LWHCA preempt claims of
retaliation or discrimination in connection with a claim for
benefits. See LeSassier v. Chevron USA, Inc., 776 F.2d 506,
509-10 (5th Cir. 1985) (holding that exclusive administrative
remedy 33 U.S.C. § 948a preempted state law retaliatory
discharge claim); Ravencraft v. Sundowner Offshore Servs., No.
97-3572, 1998 WL 246699, *2 (E.D. La. May 14, 1998) (same).
Plaintiffs do not address or acknowledge this Circuit’s
binding precedent set forth in Hall. Instead, they make several
arguments in an attempt to avoid the exclusivity of the DBA.
None of these arguments are persuasive.
First, Plaintiffs rely on a purported exception recognized
in Martin v. Travelers Insurance Co., 497 F.2d 329 (1st Cir.
16
1974). See Pls.’ Opp’n to Contractor Defs.’ Joint Mem. at 9-11;
Pls.’ Opp’n to Insurer Defs.’ Joint Mem. at 24-26. There, after
the defendant insurer had issued a benefits check to the
plaintiff, and the plaintiff had deposited and substantially
drawn on the check, the defendant stopped payment without
warning. The First Circuit held that this constituted an
independent wrong, and that the plaintiff was not precluded
under the LHWCA from pursuing independent state law remedies.
497 F.2d at 330-31. However, in a later opinion, the First
Circuit distinguished Martin, stating that the crux of the
complaint in Martin was “the insurer’s callous stopping of
payment without warning when it should have realized that acute
harm might follow. A stop payment on a sizable compensation
check which may have been deposited and drawn upon carries the
obvious possibility of embarrassment and distress.” Barnard,
975 F.2d at 920 (citing Martin, 497 F.2d at 331); see also
Atkinson, 838 F.2d at 814 n.6 (“[I]t is perhaps possible to
construe Martin as involving a situation where the conduct
complained of . . . would be actionable even if the compensation
benefits for which the drafts were given were not actually owing
to begin with. In other words, it might be possible to construe
Martin as presenting a situation where the plaintiff’s recovery
would not depend on a determination that he was owed
compensation under the LHWCA . . . if this is not a correct
17
reading of Martin, then we expressly decline to follow that
decision.”).6 Departing from Martin, the court in Barnard found
that the refusal to pay benefits and the failure to make timely
payments, irrespective of defendants’ intent, were the types of
claims that fell under the exclusive remedies of the LWHCA. See
975 F.2d at 920.7 In doing so, the First Circuit relied upon
other circuits, including the D.C. Circuit, which had rejected
similar attempts to bring state law tort claims based upon the
failure to pay LHWCA benefits. See id. at 921 (citing Hall, 809
F.2d at 924; Atkinson, 838 F.2d at 812; Sample, 771 F.2d at
1347); see also Fisher v. Halliburton, 667 F.3d 602, 619 (5th
Cir. 2012) (“[A]llowing an injured employee to recover from his
employer under this theory of intentional-tort liability would
6
Given the Fifth Circuit’s statement in Atkinson that it
“expressly decline[d] to follow” Martin -- to the extent that it
was inconsistent with the Fifth Circuit’s holding that the LWHCA
preempts claims for intentional torts -- Plaintiffs’ reference
to a “Martin/Atkinson” exception is puzzling, to say the least.
7
The First Circuit noted one additional distinction:
“Martin was decided by this court in 1974. In 1984, Congress
passed extensive amendments to the LHWCA following a debate over
Union concerns regarding abuse by insurers arbitrarily
withholding payment of benefits under the Act. Congress
ultimately enhanced the criminal penalty for such arbitrary
withholdings from a misdemeanor to a felony, increasing the
maximum fine to $ 10,000 and the maximum imprisonment to five
years.” Barnard, 975 F.2d at 921 n.4 (citing 33 U.S.C. § 931(c)
(1988); Longshoremen’s and Harbor Worker’s Compensation Act
Amendments of 1981: Hearings on S. 1182 Before the Subcommittee
on Labor of the Senate Committee on Labor and Human Resources,
97th Cong., 1st Sess. 433, 516-23, 545 (1981)).
18
inject into the DBA’s workers’ compensation scheme an element of
uncertainty at odds with the statute’s basic purpose: providing
prompt relief for employees, and limited and predictable
liability for employers.”).8 Martin thus conflicts with the
precedent of this Circuit, as well as several others.
Even were the Court persuaded that Martin provided an
exception to Hall -- which does not appear to be the case -–
because Plaintiffs’ claims all depend on a determination that
they were owed compensation under the DBA, they do not fall
under any such exception. Each of Plaintiffs’ state law causes
of action directly relates to Plaintiffs’ claims for DBA
benefits:
With respect to Count III (Bad Faith and Tortious
Breach of Covenant of Good Faith), Plaintiffs allege
that Defendants engaged in “bad faith denial of
claims, and bad faith refusal to pay reasonable and
necessary medical bills” by, e.g., “unreasonably
denying claims . . . , failing to properly and
adequately investigate claims, delaying payments for
medical bills and disability,” SAC ¶¶ 587-92;
8
Ross v. Dyncorp, 362 F. Supp. 2d 344 (D.D.C. 2005), is not
to the contrary. There, another Judge in this District
concluded that the DBA barred plaintiffs’ negligence-based
claims regarding the death of their son; however, the
intentional infliction of emotional distress claim, which the
court determined failed as a matter of law, was based upon the
employer’s communication with the family about the decedent’s
remains, and thus did not arise out of an entitlement to
benefits under the DBA. See 362 F. Supp. 2d at 358-59. It does
not appear that any party there argued that the DBA barred the
intentional infliction of emotional distress claim.
19
With respect to Count IV (Unconscionable, Fraudulent
and Deceptive Trade Practices), Plaintiffs allege that
Defendants “engaged in deceptive, unconscionable acts
and practices by representing they provided all
benefits covered under law, when in fact they did not
intend to provide such, and . . . act[ed] with
deception toward Plaintiffs concerning the
characteristics of their . . . medical and disability
benefits,” SAC ¶¶ 593-601;
With respect to Count V (Civil Conspiracy), Plaintiffs
allege that Defendants engaged in a “conspiracy to
deprive injured and disabled workers of DBA benefits
in violation of the DBA,” SAC ¶¶ 602-07;
With respect to Count VII (Outrage, or Intentional
Infliction of Emotional Distress), Plaintiffs allege
that Defendants intended to inflict emotional distress
on Plaintiffs or knew or should have known that
emotional distress was likely to result from their
denial of DBA benefits, SAC ¶¶ 619-25; and
With respect to Count VIII (Wrongful Death),
Plaintiffs allege that those Plaintiffs who are
deceased died as a result of the neglect and
intentional misconduct of Defendants, SAC ¶¶ 626-31.9
As Plaintiffs reaffirm in their own Opposition briefs, the
crux of their Complaint is that “Defendants’ failure to make the
proper compensation payments resulted in the infliction of harm
on Plaintiffs, which Defendants could have reasonably
anticipated . . . . Defendants’ delay, termination, and/or
minimization of compensation have aggravated Plaintiffs’
injuries.” Pls.’ Opp’n to Contractor Defs.’ Joint Mem. at 16;
9
Plaintiffs also allege that their claims for detrimental
reliance and breach of contract are valid. See, e.g., Pls.’
Opp’n to Contractor Defs.’ Joint Mem. at 14-15, 22; Pls.’ Opp’n
to Insurer Defs.’ Joint Mem. at 14-15, 21. Plaintiffs did not
include these claims in their Complaint and cannot add them in
their Opposition briefs.
20
see also Pls.’ Opp’n to Insurer Defs.’ Joint Mem. at 16.
Plaintiffs claim that Defendants, in conspiracy with each other,
refused to pay for Plaintiffs’ medical benefits, terminated
their medical benefits, repeatedly lied and made
misrepresentations to DOL regarding payments for medical
treatment, wrongfully terminated certain Plaintiffs, and
provided inadequate care. See Pls.’ Opp’n to Contractor Defs.’
Joint Mem. at 20-22. Although Plaintiffs allege that these
actions exacerbated their underlying employment-related injuries
and/or that the claims process itself caused them undue stress
and financial hardship, it is clear that Plaintiffs’ state law
causes of action all arise out of their underlying claims to DBA
benefits and thus are barred by the exclusive scheme set forth
in the DBA and LHWCA.
Plaintiffs also argue that the exclusive remedy bar only
exists as to damages “on account of the injury or death” claimed
under the DBA, not for damages intentionally, fraudulently, and
in bad faith inflicted by Defendants after they have accepted
the claim and are paying benefits. See Pls.’ Opp’n to
Contractor Defs.’ Joint Mem. at 7-8; Pls.’ Opp’n to Insurer
Defs.’ Joint Mem. at 7. According to Plaintiffs, because their
injuries occurred outside the scope of their employment, the
exclusive remedy is inapplicable to their claims. See Pls.’
Opp’n to Contractor Defs.’ Joint Mem. at 26-27; Pls.’ Opp’n to
21
Insurer Defs.’ Joint Mem. at 10-11, 23-24, 30-31. But the D.C.
Circuit rejected these identical arguments in Hall, as did the
Fifth Circuit in Atkinson. See Hall, 809 F.2d at 926; Atkinson,
838 F.2d at 811; see also Nauert, 2005 WL 2085544, at *3-5. As
the court stated in Atkinson:
[Plaintiff] asserts that the exclusivity provision of
section 5(a) applies only to liability “on account of such
injury,” and that . . . the damages which she claims for
the subsequent failure to pay compensation benefits cannot
possibly arise out of her employment. . . . Th[is]
contention overlooks the fact that [plaintiff’s] claim
necessarily presupposes an obligation to pay LHWCA
benefits, and hence necessarily arises out of her on-the-
job injury.
838 F.2d at 811 (internal citation omitted).10
Alternatively, Plaintiffs argue that Defendants’ “failure
to secure payment of compensation,” through false statements and
representations estops them from asserting preemption. Pls.’
Opp’n to Contractor Defs.’ Joint Mem. at 11; see also Pls.’
Opp’n to Insurer Defs.’ Joint Mem. at 26-27.11 The LHWCA
provides an exception to the exclusivity-of-remedy provision
when “an employer fails to secure payment of compensation as
10
Plaintiffs’ reliance on numerous state court cases
interpreting either state worker’s compensation acts or state
law regarding adequate remedies are neither relevant nor
persuasive.
11
The DBA requires that a contractor must “provide for . .
. the payment of compensation and other benefits under the
provisions of” the Act and must “maintain in full force and
effect during the terms of such contract . . . the said security
for the payment of such compensation and benefits.” 42 U.S.C. §
1651(a)(4); see also 33 U.S.C. § 932(a).
22
required by” the Act. 33 U.S.C. § 905(a). However,
implementing regulations to the DBA make clear that an employer
“secures payment of compensation” by obtaining a DBA “workers’
compensation insurance” policy “before commencing performance,”
and maintaining that insurance “until performance is completed.”
48 C.F.R. § 52.228-3. Plaintiffs do not allege that any of the
Defendants failed to obtain and maintain such an insurance
policy, and this argument thus fails.
Finally, Plaintiffs argue quite perplexingly that the
exclusive remedy provision of the DBA does not apply to them
because they are independent contractors, not employees, and
thus are not covered by the DBA. They also assert that they are
suing certain Defendants who were not their actual employers or
insurers. See Pls.’ Opp’n to Contractor Defs.’ Joint Mem. at
24-25; Pls.’ Opp’n to Insurer Defs.’ Joint Mem. at 28-29. These
arguments undermine the premise of the claims set forth in the
Complaint, all of which allege that Plaintiffs were harmed by
Defendants’ refusal or failure to timely provide the DBA
benefits to which Plaintiffs were entitled.
The allegations in the Complaint are extremely serious and
deeply disturbing. However, Congress has expressly set forth
its intention that employers’ liability under the DBA “shall be
exclusive and in place of all other liability.” 42 U.S.C. §
1651(c); see also Hall, 809 F.2d at 925-26. Based on the
23
binding authority from this Circuit, as well as persuasive
authority from several other circuits, the Court finds that all
of Plaintiffs’ state law claims are barred by the exclusive
scheme set forth in the DBA and the LHWCA. Accordingly, Counts
III, IV, V, VII, and VIII are hereby DISMISSED.
2. Federal Claims (Counts I and II)
Defendants further argue that Plaintiffs’ federal claims
are barred. As the D.C. Circuit and several others have
recognized, federal enabling statutes that provide exclusive
administrative remedies bar RICO actions for alleged violations
of those schemes. See Danielsen v. Burnside-Ott Aviation
Training Ctr., Inc., 941 F.2d 1220 (D.C. Cir. 1991) (affirming
dismissal of RICO claims as barred by exclusive statutory
remedies under the Federal Services Contract Act); Bridges v.
Blue Cross & Blue Shield Ass’n, 935 F. Supp. 37, 43 (D.D.C.
1996) (finding that the Federal Employees Health Benefits Act’s
administrative remedy bars RICO claims); see also, e.g., Ayres
v. Gen. Motors Corp., 234 F.3d 514, 522-25 (11th Cir. 2000)
Bodimetric Health Servs., Inc. v. Aetna Life & Cas., 903 F.2d
480, 486-87 (7th Cir. 1990); Norman v. Niagara Mohawk Power
Corp., 873 F.2d 634, 637-38 (2d Cir. 1989); cf. Brown v. Cassens
Transport Co., 675 F.3d 946, 954-55 (6th Cir. 2012) (noting that
federal courts “have held RICO inapplicable to claims that
should have been raised before federal agencies that had
24
exclusive-remedy clauses in their enabling statutes,” but
finding that state statute did not preempt RICO claim).
In Danielsen, the D.C. Circuit held that the plaintiffs’
claims against their government contractor employer were
precluded by the comprehensive statutory scheme under the
Service Contract Act, 41 U.S.C. § 351, et seq. There, the
plaintiff-employees alleged that the defendants had entered into
contracts with the government using improper wage
classifications (in violation of the Service Contract Act), and
had repeatedly used the mails to further the contracts, thus
constituting to mail fraud under RICO. See 941 F.2d at 1225-26.
However, the court held that because the Act provided “an
extensive series of regulations governing the wage determination
process, including procedures for enforcement and review,” the
administrative remedies available under the Service Contract Act
were “exclusive” and did not give rise to a separate cause of
action under RICO. See id. at 1226-29. This Court later
applied the holding in Danielsen to the Federal Employee Health
Benefits Act (“FEHBA”), 5 U.S.C. § 8901 et seq., which
authorizes the U.S. Office of Personnel Management “to procure
and administer health benefits plans for federal workers by
contracting with private health insurance carriers.” Bridges,
935 F. Supp. at 39. The court stated, “[a]lthough the governing
statute in this case is different [from that in Danielsen], the
25
underlying principles are the same, and the claims cannot
stand.” Id. at 40 (citing Danielsen, 941 F.2d 1220). Because
the FEHBA created a “comprehensive administrative enforcement
mechanism for review of disputed claims,” the court found that
the RICO claims were precluded and must be dismissed. See id.
at 41-43 (“The FEHBA leaves no room for a remedy under RICO; the
broad enforcement and oversight powers of the OPM established in
the statute indicate that the exclusive remedy for an action
cognizable under the FEHBA lies under the FEHBA, not under
another federal statute.”).
Plaintiffs do not respond to this argument or this
authority whatsoever. For this reason alone, the Court could
treat this argument as conceded and dismiss all of the federal
claims. See Hopkins v. Women’s Div., Gen. Bd. of Global
Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff’d, 98 F.
App’x 8 (D.C. Cir. 2004) (“It is well understood in this Circuit
that when a plaintiff files an opposition to a dispositive
motion and addresses only certain arguments raised by the
defendant, a court may treat those arguments that the plaintiff
failed to address as conceded.” (citation omitted)). However,
the Court has analyzed the arguments with respect to each of
Plaintiffs’ federal claims individually.
The allegations that form the basis of Plaintiffs’ RICO
claim (Count II) are directly addressed by the comprehensive
26
administrative procedures and remedies available under the DBA.
For example, Plaintiffs claim that Defendants conspired to
“[make] misrepresent[ations] to injured parties and the DOL and
commit crimes under the DBA by denying claims using fraud . . .
.” SAC ¶ 573. However, Section 931(c) of the LHWCA, which is
incorporated in the DBA, provides specific criminal penalties
against any “employer, his duly authorized agent, or an employee
of an insurance carrier who knowingly and willfully makes a
false statement or representation for the purpose of reducing,
denying, or terminating benefits to an injured employee . . . .”
33 U.S.C. § 931(c). Likewise, Plaintiffs’ allegation that
Defendants committed “various forms of wire and mail fraud” to
“delay payments to providers or to claimants” is addressed in
Sections 914(e) and (f) of the LHWCA, as incorporated by the
DBA, which provide financial penalties for delays in
compensation. See 33 U.S.C. §§ 914(e), (f); 20 C.F.R. §§
702.233, 702.350. Based upon the reasoning of Danielsen and
Bridges, the Court concludes that to permit Plaintiffs to
convert non-compliance with the DBA -- a statute with its own
comprehensive administrative remedies -- into mail and wire
fraud and thereby maintain a civil RICO action would contradict
the purpose and intent of the DBA.12 Accordingly, Plaintiffs’
RICO claim (Count II) is DISMISSED.
12
Even if Plaintiffs’ RICO claim were not barred by the
27
exclusive remedies in the DBA, the Court would find that
Plaintiffs fail to state a cause of action under RICO. In order
to make out a claim under RICO, a plaintiff must allege the
following elements: “(1) conduct (2) of an enterprise (3)
through a pattern (4) of racketeering activity.” Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). To show such a
pattern, RICO requires at least two predicate criminal
racketeering acts over a ten-year period. See 18 U.S.C. §
1961(5). “[T]hese predicate offenses are acts punishable under
certain state and federal criminal laws, including mail and wire
fraud.” Western Assocs. Ltd. P’ship ex rel. Ave. Assocs. Ltd.
v. Market Square Assocs., 235 F.3d 629, 633 (D.C. Cir. 2001)
(citing 18 U.S.C. § 1961(1)(B)). First, Plaintiffs fail to
allege the existence of a RICO enterprise. An “enterprise is an
entity, . . . a group of persons associated together for a
common purpose of engaging in a course of conduct.” United
States v. Turkette, 452 U.S. 576, 583 (1981). Plaintiffs allege
that Defendants associated with an undefined “RICO enterprise of
individuals” that included “insurance companies, attorneys,
adjusters, third party medical providers, third party case
administrators, third party investigators and contractors.” SAC
¶ 576. Plaintiffs completely fail to provide sufficient factual
allegations to suggest, however, that the Defendants combined as
a unit with any semblance of (1) a common purpose, (2)
organization, and/or (3) continuity. See Doe I v. State of
Israel, 400 F. Supp. 2d 86, 119-20 (D.D.C. 2005); see also In re
Ins. Brokerage Antitrust Litig., 618 F.3d 300, 374 (3d Cir.
2010); McCullough v. Zimmer, Inc., 382 F. App’x 225, 231 (3d
Cir. 2010) (“Simply listing a string of individuals or entities
that engaged in illegal conduct, without more, is insufficient
to allege the existence of a RICO enterprise.”). Second,
Plaintiffs fail to allege any predicate acts with particularity.
The predicate acts of an alleged RICO fraud must be pled with
particularity as required under the heightened pleading standard
of Rule 9(b) of the Federal Rules of Civil Procedure. See
Prunte v. Universal Music Grp., 484 F. Supp. 2d 32, 42 (D.D.C.
2007). Plaintiffs fail to allege with any specificity the “who,
what, when, where, and how” related to their mail and wire fraud
claims –- they fail to allege specific fraudulent statements,
who made the statements, what was said, when or where these
statements were made, and how or why the alleged statements were
fraudulent. See Insurer Defs.’ Joint Mem. at 27-29. Finally,
Plaintiffs fail to allege a RICO conspiracy under Section
1962(d). Even had Plaintiffs properly alleged two predicate
acts of mail, wire, or bank fraud, Plaintiffs nonetheless fail
to plead facts demonstrating that any of the Defendants reached
28
Furthermore, Count I, which alleges a violation of the
LHWCA’s anti-retaliation and discrimination provision, 33 U.S.C.
§ 948a, is also barred.13 Plaintiffs allege that they “were
discriminated against in the terms, conditions, and benefits of
employment, retirement, insurance, and status due to their
accessing or attempting to access the DBA system . . . .” SAC ¶
565. Yet Plaintiffs seek precisely the same remedies provided
by the DBA for such alleged conduct. Id. at ¶ 570 (seeking
reinstatement or damages and attorneys’ fees); cf. § 948a (“Any
employee so discriminated against shall be restored to his
employment and shall be compensated by his employer for any loss
of wages arising out of such discrimination.”). Plaintiffs may
not pursue their claims for retaliation and discrimination in
the federal courts without first exhausting their administrative
remedies through the exclusive process provided in the LHWCA.
See § 948a; 20 C.F.R. §§ 702.271-274; see also LeSassier, 776
F.2d at 508-10; Slightom v. Nat’l Maint. & Repair, Inc., 747 F.
an agreement to commit the two predicate acts. Plaintiffs’ RICO
allegations are precisely the type of threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, that the Supreme Court has found insufficient to
state a claim for relief under Rule 12(b)(6), let alone under
Rule 9(b). See Iqbal, 129 S. Ct. at 1949.
13
Section 948a provides, in pertinent part: “It shall be
unlawful for any employer or his duly authorized agent to
discharge or in any other manner discriminate against an
employee as to his employment because such employee has claimed
or attempted to claim compensation from such employer . . . .”
33 U.S.C. § 948a.
29
Supp. 2d 1032, 1037-38 (S.D. Ill. 2010). Plaintiffs nowhere
allege that they have exhausted their administrative remedies.
Moreover, Plaintiffs’ reliance on cases involving state law
wrongful discharge claims is irrelevant and not persuasive.14
Accordingly, Count I is also DISMISSED.
B. ADA Claims (Count VI)
Three individual Plaintiffs, Merlin Clark, Harbee Kreesha,
and Mohsen Alsaleh, bring claims for violation of the ADA
against their employers, Ronco Consulting (as to Clark) and
Global Linguist Solutions (as to Kreesha and Alsaleh). See SAC
¶¶ 111, 113, 203, 215, 608-618. Specifically, Plaintiffs allege
that they were fired after they became disabled, and that their
disabilities “were motivating factors in the decisions of
Defendant contractors not to offer jobs with accommodations, or
to fire persons who were . . . being treated for DBA injuries,
or to rehire but fail to accommodate restrictions or
disabilities reasonably.” SAC ¶¶ 611-13. The Court interprets
14
In addition, the plain text of Section 948a states that
“the employer alone and not his [insurance] carrier shall be
liable for such penalties and payments.” Plaintiffs explicitly
concede that this is so, and then attempt to argue that they may
nonetheless bring claims against the Insurer Defendants under
state statutes. See Pls.’ Opp’n to Insurer Defs.’ Joint Mem. at
32-33. However, the Complaint does not allege claims of
retaliation under state statutes, and Plaintiffs cannot escape
the explicit language of Section 948a, which precludes them from
asserting retaliation and discrimination claims against the
Insurer Defendants even had they exhausted their administrative
remedies.
30
these allegations as including two possible claims under the
ADA: (1) failure to accommodate, and (2) disability
discrimination for firing Plaintiffs.
The ADA prohibits an employer from discriminating against
an “individual with a disability” who can perform the essential
functions of his job with “reasonable accommodations.” 42
U.S.C. § 12112(a)-(b). As relevant here, to “‘discriminate’ is
defined to include ‘not making reasonable accommodations to the
known physical or mental limitations of an otherwise qualified
individual with a disability . . . , unless [the employer]
demonstrates that the accommodation would impose an undue
hardship on the operation of the business . . . .’” Woodruff v.
Peters, 482 F.3d 521, 527 (D.C. Cir. 2007) (quoting 42 U.S.C. §
12112(b)(5)(A)). A “qualified individual” is “an individual
who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such
individual holds or desires.” 42 U.S.C. § 12111(8). The ADA
defines “disability” as “a physical or mental impairment that
substantially limits one or more of the major life activities
of” an individual. 42 U.S.C. § 12102(2)(A).
To establish a prima facie case of unlawful discrimination
based on a failure to accommodate under the ADA, a plaintiff
must show that: (1) he is a qualified individual with a
disability within the meaning of the ADA; (2) that the employer
31
had notice of his disability; (3) there was some reasonable
accommodation denied to him; and (4) such accommodation would
have enabled him to perform the essential functions of this
job.” Saunders v. Galliher & Huguely Assocs., Inc., 741 F.
Supp. 2d 245, 248 (D.D.C. 2010) (citing Duncan v. Wash. Metro.
Area Transit Auth., 240 F.3d 1110, 1114 (D.C. Cir. 2001)). The
employee bears the burden of proving that he is qualified.
Miller v. Hersman, 759 F. Supp. 2d 1, 10 (D.D.C. 2011). In
addition, “[a]n underlying assumption of any reasonable
accommodation claim is that the plaintiff-employee has requested
an accommodation which the defendant-employer has denied.”
Flemmings v. Howard Univ., 198 F.3d 857, 861 (D.C. Cir. 1999);
Saunders, 741 F. Supp. 2d at 249 (“It is the employee’s burden
to identify reasonable accommodations which would allow him to
perform the essential functions of the job . . . .”).
A disability discrimination claim under the ADA is subject
to the familiar burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). First, the plaintiff must
establish a prima facie case of discrimination under the ADA by
showing that he: (1) had a disability; (2) was qualified for the
position with or without a reasonable accommodation; and (3)
suffered an adverse employment action because of the disability.
Swanks v. Wash. Metro. Area Transit Auth., 179 F.3d 929, 933-34
(D.C. Cir. 1999). If the plaintiff does so, the burden shifts
32
back to the employer to articulate a “legitimate non-
discriminatory reason for its action,” leaving the plaintiff an
opportunity to prove that the employer’s proffered justification
was not the true reason, but a pretext for discrimination. Id.
(citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir.
1998) (en banc)).
Plaintiffs have failed to state the essential elements of a
claim for either failure to accommodate or disability
discrimination under the ADA. First, Plaintiffs make only
conclusory allegations regarding each individual Plaintiff’s
status as a “qualified individual” under the ADA. Plaintiff
Kreesha alleges that he has Post-Traumatic Stress Disorder, and
that this “substantially limits his major life activities.”
Pls.’ Opp’n to Contractor Defs.’ Joint Mem. at 42; see also SAC
¶¶ 193-95. Plaintiff Clark alleges that he suffered numerous
physical injuries and a traumatic brain injury as a result of an
explosion, and that these injuries “qualify [him] as having a
disability under the ADA.” Pls.’ Opp’n to Contractor Defs.’
Joint Mem. at 42; see also SAC ¶¶ 90-100. Finally, Plaintiff
Alsaleh claims that he contracted Leishmaniasis after being
bitten by a sand fly. See SAC ¶¶ 209-210. Alsaleh also claims
that he has conditions including “cardiac issues, chest pain and
pressure, lung issues, shortness of breath and collapse, sleep
disorder . . . .” Id. ¶¶ 212-13. These allegations are
33
insufficient for Plaintiffs to meet their burden of
demonstrating that their injuries substantially limited a major
life activity and thus qualified them as disabled under the ADA.
Moreover, Plaintiffs completely fail to allege that they
requested any accommodation for their disabilities that their
employers then denied. They have therefore failed to state a
claim for either failure to accommodate or disability
discrimination under the ADA. See Hovsepyan v. Blaya, 770 F.
Supp. 2d 259, 266 (D.D.C. 2011); Reynolds v. U.S. Capitol Police
Bd., 357 F. Supp. 2d 2, 18 (D.D.C. 2004).
Accordingly, Plaintiffs’ ADA claims (Count VI) are
DISMISSED.15
IV. CONCLUSION
For the foregoing reasons, the Court concludes that the
exclusive remedies in the DBA preclude Plaintiffs’ state law
claims, their RICO claim, and their claim under Section 948a of
the LHWCA and must therefore be dismissed pursuant to Rule
12(b)(1). The Court further concludes that Plaintiffs’ ADA
15
Global Linguist Solutions (“GLS”) argues alternatively in
its motion to dismiss that “should any claims survive,” the
Court should dismiss the allegations against GLS pursuant to
either Rule 12(b)(2) or 12(b)(3) of the Federal Rules of Civil
Procedure because this Court lacks personal jurisdiction over
GLS and venue is improper in the District of Columbia. Global
Linguist Solutions’ Mem. at 1-2. Because the Court concludes
that none of Plaintiffs’ claims, including the two ADA claims
against GLS, survive, the Court does not reach GLS’s alternative
arguments.
34
claims fail to state a claim for relief under Rule 12(b)(6).
Accordingly, Defendants’ Motions to Dismiss are hereby GRANTED
and the Second Amended Complaint is DISMISSED. A separate Order
accompanies this Memorandum Opinion.
SIGNED: Emmet G. Sullivan
United States District Judge
December 21, 2012
35