[00:00:02] Speaker 00:
Case number 13-7165, Daniel Brink at L, Appellant v. Continental Insurance Company at L. Ms.

[00:00:09] Speaker 00:
Gilliam for the appellant, Ms.

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Storm for the appellee.

[00:00:43] Speaker 04:
May it please the Court, I am Joshua Gilelin appearing on behalf of the plaintiffs whose, all of whose claims were dismissed by the District Court both for lack of jurisdiction and for failure to state a claim upon which relief could be granted.

[00:01:01] Speaker 04:
This Court, like the Supreme Court, has repeatedly emphasized that the Longshore Act, like other workers' compensation laws, affects a fundamental bargain in which workers and the survivors of workers who suffer injuries or deaths on the job are provided a prompt but limited remedy in return for which employers are relieved of liability

[00:01:27] Speaker 04:
that they might otherwise bear for full compensatory damages and tort for their negligence.

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First, of course,

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That bargain applies only to accidental injuries incurred on the job.

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It does not apply even for on-the-job injuries if the employer's – if the injury or death results from the employer's intentional.

[00:01:58] Speaker 01:
Before we get to this point, I'd like to interrupt.

[00:02:02] Speaker 01:
Apparently I don't.

[00:02:04] Speaker 01:
There's a jurisdictional problem, which I think we need to address before we get to this question.

[00:02:09] Speaker 01:
So you filed a notice of appeal, right?

[00:02:13] Speaker 01:
Yes.

[00:02:13] Speaker 01:
And the notice of appeal is jurisdictional.

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And the notice of appeal is from the final judgment entered into this action on the 26th day of September that denied plaintiff's motion for reconsideration of the earlier order.

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So on its face, the notice of appeal only applies to the decision of the court on a reconsideration.

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And in the Entrovision case, we said that when that is the only thing from which you apply,

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for appeal, that's the only thing you can appeal, unless there's some other thing that gives us an element, an understanding of your intent.

[00:03:03] Speaker 01:
So at the time you appealed, you only appeal from that, and the district court, the district, when you filed your notice of appeal in the district court, the clerk of the district court then sent to our court, as is required by the rules, the order from which you were appealing.

[00:03:23] Speaker 01:
And the only thing that the district court filed with us was the minute order denying the motion for reconsideration.

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And there was a service list and Mr. Block and Sir Skrepnik were on the service list.

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So as of that point,

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which by the way was the last day for filing under the rules.

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All we have is a notice that you're appealing from the decision about reconsideration.

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And as I said, in entrovision, we said when that's the case, that's the only thing we can consider.

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So how do we have jurisdiction to consider your complaint, which is really about the underlying decision of the district court, rather than the district court's determination to deny you reconsideration?

[00:04:16] Speaker 04:
Well, I think the opinions which we cite in our reply brief on that point from both the Supreme Court and this Court explain that that requirement of rule three should not be given a hyper-technical application as long as it was clear to all concerned and the intent to appeal from the underlying judgment was obvious to all concerned.

[00:04:41] Speaker 01:
But if we look only at the notice of appeal, I don't see how that would be clear.

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You don't list the other order as something from which you are appealing, you just note that the other order was denied reconsideration.

[00:04:57] Speaker 04:
I think that was true in those cases that we have cited as well, that the Notice of Appeal does refer to the earlier order.

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It says it's seeking review of the denial of the Rule 59 motion, but it also refers to that Rule 59 motion as denying the other.

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adhering to the court's earlier disposition.

[00:05:23] Speaker 01:
Well, it just says that's what it did.

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It denied the other one.

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The other cases that we've referred to are ones where there's been something else which provides information to indicate to everybody that you're actually appealing from both.

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And that could include the docking statement, which ultimately in this case does refer

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The only problem is, and it's a problem that this court has not previously considered, is that the docking statement is filed after it's too late.

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That is, the docking statement is filed after the time for appeal has passed.

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So if the docking statement had never been filed, no one would know that you wanted to reconsider anything other than the reconsideration motion.

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And the docking statement was filed too late, not from the point of view of our rules of when you file a docking statement, but of being outside the jurisdictional period.

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What's the answer?

[00:06:21] Speaker 01:
How do we resolve that problem?

[00:06:23] Speaker 04:
I think we resolve it by the test of whether anyone could have been misled.

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None of the defendants has said, oh, we misunderstood.

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We thought you were only seeking a review of the denial of

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reconsideration of the denial of the Rule 59 motion, the defendants knew perfectly well of the appeal related to the contentions which the district court had rejected in its earlier order.

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And again, they have never alleged that any confusion resulted from the imprecision under Rule 3 of the Notice of Appeal.

[00:07:06] Speaker 01:
Well, I thought that prejudice is a second and independent requirement, but doesn't there have to be an actual statement?

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It's not just a question of whether they were misled or not.

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There has to be something that puts people on notice.

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The jurisdictional rule isn't, are you misled?

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The jurisdictional rule is, what are you appealing from?

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and the defendants.

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The circumstances make it perfectly plain, I think, in situations just like this.

[00:07:39] Speaker 04:
You know, the earlier order was referred to in the Notice of Appeal.

[00:07:43] Speaker 04:
Yes, there was an imprecision in its phraseology.

[00:07:46] Speaker 01:
Well, in Entrovision, the Notice said, Entrovision petitions this Court for review of the FCC's memorandum.

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in which the FCC denied the petition for partial reconsideration of the FCC's earlier report and order in which it decided not to protect low-power television.

[00:08:08] Speaker 01:
That's virtually exactly the same as what's happened here.

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In other words, they ask for review of a denial of reconsideration of an earlier order that went against them.

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And in that case, perhaps there was a possibility of confusion.

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Perhaps the explanation is that the grounds urged for reconsideration in that case were different from those which had been rejected by the district court previously.

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So that there was a possibility of confusion, that the intent to appeal may have been limited to the additional arguments that were urged under Rule 59.

[00:08:52] Speaker 01:
And you don't think the fact that the order that was then submitted to the court, to this court, on our docket is of that date, which is only the minute order, would enhance confusion?

[00:09:07] Speaker 04:
No, I don't think it would.

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give rise to any confusion.

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And again, as I say, the defendants have never alleged any confusion on what we were appealing.

[00:09:17] Speaker 04:
They have relied on a technical defect alone, and the Supreme Court and this Court have indicated that it should not be read in a technical – that Rule 3 should not be applied in a technical manner where the intent to appeal was clear.

[00:09:32] Speaker 01:
Well, again, on the question of the confusion, we said in Southwestern Bell that prejudice is a necessary but not a sufficient condition.

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Lack of prejudice is a necessary but not a sufficient condition for excusing failure to correctly specify what you're appealing from.

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I think the reference in the notice of appeal to that earlier order, despite the fact that the district court clerk did not attach the earlier order,

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The fact that the early order was explicitly referenced in the notice of appeal should be good enough where the circumstances make clear that that's the only thing there was to appeal.

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The rulings that had been made in the earlier order are the only things there were to appeal.

[00:10:17] Speaker 01:
Well, you have a reasonably good argument that you've made with respect to the ADA claims on the petition for reconsideration, right?

[00:10:27] Speaker 01:
Those, the only way you actually

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managed to get out this fight here is by appealing from the refusal to reconsider them and to permit you to while amended so it's not true that you have nothing just have nothing on the dvd claims but i think it claims to do it well and uh... well and and the there are there are no dvd claims well i'm sorry that is a shorthand you understand i do understand absolutely uh... i don't believe in this after i raise it because

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jurisdiction is something we have to raise.

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So I understand.

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The district court acknowledged that the allegations of the complaint are extremely troubling.

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There is nothing in the Defense Base Act exclusive remedy provision on which the district court relied that applies to anything other than state workers' compensation claims.

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It was plain error for the district court.

[00:11:25] Speaker 03:
Yes, absolutely.

[00:11:34] Speaker 03:
Yes, it does indeed.

[00:11:44] Speaker 04:
Well, it's material only in that the district court misread the DBA laws as well.

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But yes, you're absolutely correct.

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Is there a value to this exclusive remedy that goes beyond the workers' comp?

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In fact, it does not encompass workers' compensation claims under state laws, but long-sure action.

[00:12:05] Speaker 04:
It covers about everything else.

[00:12:07] Speaker 04:
Well, no, it includes any claim that is based on an accidental injury

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incurred in the course of employment.

[00:12:31] Speaker 03:
addressing the handling of the injury by accident?

[00:12:36] Speaker 04:
In most instances, that's correct.

[00:12:39] Speaker 04:
Some of the plaintiffs never were compensation claimants under the act.

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They never were employees of the defendants.

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Who were they?

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They were medical providers with whom the defendants contracted and authorized the provision of services and said they would pay for them, and then did not pay for them.

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In one instance, resulting in the loss of a business, a bankruptcy, and a great deal of financial loss.

[00:13:12] Speaker 04:
That, if it was intentional... Is that properly a part of this placement?

[00:13:20] Speaker 04:
Well, yes, certainly so.

[00:13:22] Speaker 04:
It's... How many claimants like that were there?

[00:13:27] Speaker 04:
Two or three.

[00:13:29] Speaker 04:
Two or three?

[00:13:29] Speaker 03:
Two or three.

[00:13:30] Speaker 03:
What is the certified class?

[00:13:33] Speaker 04:
Oh, there is no certified class.

[00:13:34] Speaker 04:
We never got to that point.

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There's not a certified class.

[00:13:37] Speaker 03:
For present purposes, it's not... Why is the description of a class that would include those two or three claimants in numerosity as a terminology?

[00:13:47] Speaker 04:
Perhaps they don't qualify for class action status.

[00:13:50] Speaker 04:
But that, I think, is, we never even reached that point.

[00:13:53] Speaker 03:
The district court said none of these plaintiffs has... Aside from those, everybody else's claims, the intentional acts that you, or what you call intentional acts, are not the tort from which the law built the horizon.

[00:14:07] Speaker 03:
Yes, that is correct.

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And the notion in some of the cases that have been decided with respect

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and dismissed under the exclusive remedy provision for actions taken in the course of administration of the claim, if you will, have been simply incorrect in characterizing the act as providing an exhaustive and comprehensive scheme for that.

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There are no provisions of the act nor any authorities of the Department of Labor that go to policing the conduct of the insurer

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in handling the claim.

[00:14:53] Speaker 01:
Can I ask, when you say that all these cases are incorrect, does that include our Hall case?

[00:15:00] Speaker 04:
It does indeed, and I fully understand that this panel is not able to do anything about that for us.

[00:15:07] Speaker 01:
And in fact, that one obviously deals with intentional infliction, not just

[00:15:12] Speaker 01:
some theory about negligence, right?

[00:15:14] Speaker 01:
Oh yes, negligence is... So assume for the moment that, well, you don't have to assume, you've already told us it's correct that the panel can't do anything about Hall.

[00:15:23] Speaker 01:
What's left, which kinds of claims in the complaint are left if Hall is the law?

[00:15:32] Speaker 04:
Certainly all of those, all of those plaintiffs who were not compensation claimants.

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The actions taken by the defendants with respect to those non-claimants could not possibly be within the scope of this supposedly comprehensive remedy that Paul posited.

[00:15:55] Speaker 01:
So I understand.

[00:15:56] Speaker 01:
So those are just the two or three that you're talking about?

[00:16:00] Speaker 01:
You have three, two or three plaintiffs who are not counted.

[00:16:03] Speaker 04:
Besides the medical providers, there are also spouses of injured workers disabled.

[00:16:10] Speaker 03:
That arises from the worker's point.

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That's the derivative of the cop type point.

[00:16:16] Speaker 04:
No, I think not, because it is based on deliberate and intentional actions by the defendants that

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which arose out of the handling of the underlying coptap point, right?

[00:16:29] Speaker 03:
Yes, they did.

[00:16:31] Speaker 04:
Yes, yes, absolutely.

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But those plaintiffs have no remedies whatsoever under the Act.

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The Act does not apply to them at all.

[00:16:41] Speaker 01:
I just want to be sure I understand.

[00:16:42] Speaker 01:
You agree that if Hall is the law, that the only plaintiffs here who have a claim

[00:16:53] Speaker 01:
that survives are the ones who are not compensation act recipients, right?

[00:17:01] Speaker 01:
Those who are not the injured contractors.

[00:17:06] Speaker 01:
Yes, injured employees.

[00:17:09] Speaker 01:
So only the non-injured employees do it.

[00:17:13] Speaker 01:
For this panel, your claim is only about the non-injured, about the non-employees.

[00:17:18] Speaker 01:
Is that right?

[00:17:19] Speaker 01:
Yes, that is true.

[00:17:20] Speaker 01:
Now, of the non-employees,

[00:17:25] Speaker 01:
Assume we take the position, which I think Judge Santel is hinting at and that other courts have taken, which is that where the injury depends on

[00:17:40] Speaker 01:
the validity or not of the right of somebody to a payment, that that's also precluded.

[00:17:47] Speaker 01:
So, for example, a late payment to a medical provider or a late payment to a spouse in the end depends on whether a payment was required and on whether the payment was late, both of which can be litigated by the employee before the board.

[00:18:10] Speaker 01:
So assume for the moment you lose on that point.

[00:18:13] Speaker 04:
I'm sorry.

[00:18:13] Speaker 04:
I have to interject very briefly that the fact that it was late does not provide any – there's nothing to litigate before the administrative tribunals for a late payment because there is no remedy for late payment.

[00:18:29] Speaker 01:
Well, I thought that the statute requires the timely payment.

[00:18:35] Speaker 01:
Is that wrong?

[00:18:37] Speaker 04:
It requires either the timely payment or the filing of a one-page form.

[00:18:43] Speaker 01:
But nonetheless, the statute takes into consideration, one way or the other, the timeliness.

[00:18:49] Speaker 01:
And I don't want to debate that question.

[00:18:51] Speaker 01:
I'm just trying to figure out what's left if you lose certain things.

[00:18:54] Speaker 01:
I'm not saying you're going to lose them, but I want to know.

[00:18:56] Speaker 01:
I understand.

[00:19:01] Speaker 01:
If we were to conclude that you're precluded in raising any claim relating to the validity or the lateness of a payment, what do you have left among the non-employees because they're the only ones who are left?

[00:19:22] Speaker 04:
promise of a payment, the assurance by an insurance carrier, we will pay for the wheelchair.

[00:19:30] Speaker 04:
We will pay for the medical treatment.

[00:19:35] Speaker 04:
As a result of which, a business incurs expenses for those medical treatments and supplies

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And then, having guaranteed beforehand the payment will be made, the carrier does not make the payment, that results in damages that are completely separate from the damages resulting from the employment injury itself.

[00:20:03] Speaker 01:
Even if there was no entitlement to the payment in the first place, the fact that the carrier said, I will pay

[00:20:13] Speaker 01:
That's a clause, a claim.

[00:20:15] Speaker 01:
Yes, indeed.

[00:20:17] Speaker 01:
So how many of those cases are there?

[00:20:21] Speaker 04:
And I think in at least two of those cases, there was not a dispute that those payments were due.

[00:20:28] Speaker 04:
They said they would make them.

[00:20:29] Speaker 04:
Indeed, they said they had made them when they had not and continued to represent to the Department of Labor and to the plaintiffs that they had paid them when, in fact, they had not.

[00:20:40] Speaker 01:
OK, other than that category, are there others?

[00:20:44] Speaker 01:
You have some claims in there here up in the here meaning the very long complaint about threats which seem to be in a way unrelated to payments.

[00:20:55] Speaker 01:
I'll kill you if you continue this.

[00:20:58] Speaker 01:
Do you have those?

[00:20:59] Speaker 01:
Do you have those kind of?

[00:21:01] Speaker 01:
I can't tell whether for sure the way you read this but you have things like

[00:21:05] Speaker 01:
use of third-party administrators to threaten to physically harm.

[00:21:10] Speaker 01:
Yes.

[00:21:11] Speaker 01:
You have those threats claims.

[00:21:12] Speaker 01:
Yes, we do.

[00:21:13] Speaker 01:
Those would be unrelated, I take it.

[00:21:15] Speaker 04:
Well, it depends on how broad of a view you take of what is related to the claim.

[00:21:22] Speaker 01:
Yeah, but that's not an argument about claims are due, claims aren't timely, etc.

[00:21:29] Speaker 01:
Those are basically a torrent of a threat to assault somebody.

[00:21:34] Speaker 01:
Yes.

[00:21:34] Speaker 01:
Is that right?

[00:21:34] Speaker 04:
Yes.

[00:21:35] Speaker 04:
And we have explicitly disavowed any claim in these proceedings for payments that should have been made.

[00:21:44] Speaker 04:
Those are not the damages we're seeking.

[00:21:46] Speaker 04:
It is the independent results of post-injury actions, deliberate actions, that we seek to regulate.

[00:21:54] Speaker 01:
I get it, but I'm trying to get injury and post-injury actions unrelated to payments, failure to pay, timeliness, et cetera.

[00:22:01] Speaker 01:
So now you have a claim about medical malpractice, is that right, or not?

[00:22:07] Speaker 01:
No.

[00:22:08] Speaker 01:
So there's no claim that the employer provided the wrong kind of care.

[00:22:18] Speaker 01:
Is that right?

[00:22:18] Speaker 01:
There are some claims about medical care, and I wasn't sure I understood them.

[00:22:23] Speaker 04:
There are claims for denial of medical care, refusal to provide medical care.

[00:22:28] Speaker 04:
And by that you mean to pay for.

[00:22:29] Speaker 01:
When you say provide, you mean pay for?

[00:22:31] Speaker 01:
uh... provide well yes pay for or authorize the i see are some of its there's no you don't the i shouldn't be reading these as a some of these as essentially uh... medical malpractice cases of uh... uh... not off not actually

[00:22:48] Speaker 01:
I don't know, of the nurse or doctor that the company has on staff giving bad care, which itself led to damages, unrelated to payment or non-payment?

[00:23:00] Speaker 04:
There are a couple of the plaintiffs who were indeed limited by the employer to inadequate medical care in country, despite the fact that they needed more specialized care in their own.

[00:23:15] Speaker 01:
When they say limited, you mean they wouldn't pay for it?

[00:23:17] Speaker 01:
Not that the company doctor.

[00:23:19] Speaker 01:
It's a little hard for me to tell from the complaint whether what you're saying is the companies provided bad doctors?

[00:23:26] Speaker 01:
No.

[00:23:27] Speaker 01:
No, you're not saying?

[00:23:28] Speaker 04:
No.

[00:23:28] Speaker 04:
They did not provide doctors at all.

[00:23:30] Speaker 04:
In some instances, for these defense-based workers, the only medical care that was available without transporting them out of the country in which they were working.

[00:23:41] Speaker 04:
was inadequate and was known to be inadequate and nevertheless the employers refused to transport.

[00:23:49] Speaker 01:
So it's the refusal to pay for the transport that's the issue in that one.

[00:23:54] Speaker 04:
Well to provide the transport or pay for it, I don't think there's a meaningful distinction.

[00:24:03] Speaker 01:
Well, I don't know if there's a meaningful distinction.

[00:24:05] Speaker 01:
I'm just trying to figure out if there is.

[00:24:07] Speaker 01:
If I'm now properly characterizing it.

[00:24:10] Speaker 01:
And apparently that is how I am.

[00:24:12] Speaker 04:
Yes, I think there are both kinds of cases where they refuse to pay for it and where they refuse to provide it or authorize payment for it in advance.

[00:24:23] Speaker 01:
But when you use provide, you mean spending money in some way, right?

[00:24:29] Speaker 01:
Spending money for the transportation.

[00:24:31] Speaker 01:
Yes, surely so.

[00:24:32] Speaker 01:
I mean, sir, the reason I ask is you have here, DynCorp medics would issue medication to employees unlicensed, unqualified.

[00:24:41] Speaker 01:
And you don't.

[00:24:41] Speaker 01:
I take it you're not suing DynCorp for providing

[00:24:47] Speaker 01:
for having medics who were unqualified.

[00:24:50] Speaker 04:
No, in fact, I think they were not DynCorp medics.

[00:24:53] Speaker 04:
To begin with, they were the United States military medics on site.

[00:24:56] Speaker 04:
I'm just quoting from the complaint.

[00:24:58] Speaker 04:
All right.

[00:25:00] Speaker 03:
You fooled us into believing you knew what you were talking about.

[00:25:03] Speaker 01:
Apparently I did not, Judge Sandel.

[00:25:07] Speaker 01:
So, but back on the threats, Mr. McContay's life was threatened by a member of Black Water's management.

[00:25:14] Speaker 01:
Yes.

[00:25:14] Speaker 01:
So, you would say that that's an assault.

[00:25:18] Speaker 01:
That's a tort of assault.

[00:25:21] Speaker 01:
Yes, it is.

[00:25:21] Speaker 01:
Unrelated to payment or not payment.

[00:25:24] Speaker 04:
Indeed, an intentional tort.

[00:25:27] Speaker 04:
Not negligence, but an intentional tort.

[00:25:30] Speaker 04:
And the act applies to no intentional conduct.

[00:25:35] Speaker 01:
We have to pass that question because Hall said it does apply to intentional conduct.

[00:25:39] Speaker 01:
So I'm asking you to, if we were to limit Hall to intentional conduct relating to payments, what is left?

[00:25:49] Speaker 01:
And I think you've provided me with that information.

[00:25:52] Speaker 04:
Yeah, most of the plaintiffs seek relief that is foreclosed by Hall.

[00:25:59] Speaker 04:
And all I can ask the panel to do is

[00:26:03] Speaker 04:
take the urge there the court to take another look at it on bonk.

[00:26:09] Speaker 03:
I want to go back to those non-claimant plaintiffs you referred to, the two or three.

[00:26:14] Speaker 03:
I had a description of the class of claimants.

[00:26:17] Speaker 03:
I guess it's on 233 of J.A., page 188 of your complaint.

[00:26:22] Speaker 03:
I don't see anything in there about the people you're talking about as non-claimant plaintiffs.

[00:26:27] Speaker 03:
Where are they described in your complaint?

[00:26:30] Speaker 04:
Oh, well, each individual plaintiff's facts are set forth in the complaint.

[00:26:37] Speaker 04:
The description of the main class... Where do I find the plaintiffs who are not plaintiffs?

[00:26:47] Speaker 04:
I think our reply brief specifies which ones they were.

[00:26:51] Speaker 04:
Tell me about your complaint.

[00:26:54] Speaker 04:
Well, the reply brief, I think, cites to where in the complaint they are.

[00:26:58] Speaker 04:
Give me a second.

[00:27:04] Speaker 03:
And I found all of these claimants.

[00:27:07] Speaker 04:
It's really a pro-lax complaint to say the least, Counselor.

[00:27:12] Speaker 04:
There are 40 plaintiffs.

[00:27:18] Speaker 04:
The prolixity did not keep the district court from saying we had not adequately pleaded some of the claims, and I think that was error.

[00:27:28] Speaker 04:
We had indeed fully set forth the facts in the first 300 counts of the complaint, and the district court was looking only to some of the later paragraphs in saying we had not adequately pleaded.

[00:27:46] Speaker 03:
Yes, you are.

[00:27:50] Speaker 04:
The enterprise is the combination of the claims agent with the insurance company and the employer.

[00:28:02] Speaker 03:
Now, in some cases, the employer was not a partner.

[00:28:07] Speaker 03:
I believe so, yes.

[00:28:19] Speaker 04:
I'm not going to be able to quickly provide you with the... What is the legal type injury that you'll end up with?

[00:28:26] Speaker 04:
Injuries to property, to business and property include, for example, the aforementioned medical coordinator who was promised payment and incurred $20,000 of expenses in reliance on that promise.

[00:28:44] Speaker 04:
a promise which the employer, the insurance carrier, the claims agent, we believe, never did intend to provide and did not provide.

[00:28:56] Speaker 03:
And who do you, once you identify, if you do, this enterprise, who do you allege controls the enterprise among its members?

[00:29:06] Speaker 04:
Well, the insurance companies, in fact, control... Where do you allege me?

[00:29:11] Speaker 03:
Now, control, we've held in the yellow bus and the Supreme Court, I think, in the Minnesota telephone where it was, if the control is a necessary allegation, a necessary element of a recoup claim.

[00:29:25] Speaker 03:
Where do you allege that?

[00:29:27] Speaker 04:
The district court didn't rely on the lack of such an allegation anywhere that I can see.

[00:29:34] Speaker 04:
Otherwise, I'd be prepared to answer your question very directly.

[00:29:39] Speaker 04:
But I don't think that was the basis for the district court's rejection of the RICO claims.

[00:29:44] Speaker 04:
The district court reasoned... If you don't adequately allege the claim, do you really seriously think we should send it back for the proceeding?

[00:29:51] Speaker 03:
Well, we did ask for leave to amend the complaint to... Did that amendment contain anything about the recoup control?

[00:29:59] Speaker 04:
No, because the district court had not identified any pleading deficiency with respect to the recoup plans.

[00:30:05] Speaker 03:
Thank you.

[00:30:07] Speaker 04:
Other questions?

[00:30:10] Speaker 02:
I thank the court.

[00:30:41] Speaker 02:
worth every tax dollar this cost.

[00:30:44] Speaker 02:
May it please the Court.

[00:30:45] Speaker 02:
Richard Dorn, on behalf of Appellees.

[00:30:49] Speaker 02:
As an initial matter, we agree with Judge Garland your concerns regarding the notice of appeal and jurisdiction of this Court to hear this appeal.

[00:30:59] Speaker 02:
We believe that the Court correctly references the introvision decision and the concerns raised there about the need to, as Rule 3 states, specifically designate

[00:31:10] Speaker 02:
the judgment order or part thereof being appealed.

[00:31:13] Speaker 02:
In this instance, the notice of appeal simply refers, as the Court noted, to the order of 26 September 2013, which was a motion for reconsideration of an earlier order that dismissed all claims.

[00:31:30] Speaker 02:
It does not, in fact, specifically seek to appeal that earlier order.

[00:31:36] Speaker 02:
We specifically stated that in our statement of jurisdiction to this court.

[00:31:40] Speaker 01:
But in the cases surrounding introvision, we have allowed, we have looked at the docketing statements to see whether they indicated what actually was appealed.

[00:31:55] Speaker 01:
Docking statements are always filed at least 30 days or so after.

[00:31:59] Speaker 01:
I don't think we've addressed the question, and we've always said that if the docking statement's clear enough,

[00:32:06] Speaker 01:
Now, and in this case, the docking statement is clear enough that they're appealing from both, that that's enough.

[00:32:11] Speaker 01:
What we haven't addressed is the question of whether the docking statement has to be filed within the jurisdictional period or not.

[00:32:18] Speaker 01:
Are there any cases on that?

[00:32:20] Speaker 02:
Your Honor, we're not aware of any authority on that point.

[00:32:23] Speaker 02:
But we, again, the docking statement, as the Court notes, having been filed later than the notice of appeal, to the extent that would serve any purpose of expanding the scope of the appeal, it was not timely.

[00:32:36] Speaker 02:
And we contend, Your Honor, that the docketing statement itself simply lists the date of the reconsideration.

[00:32:42] Speaker 01:
Actually, yeah.

[00:32:44] Speaker 01:
The docketing statement itself also only talks about the reconsideration.

[00:32:47] Speaker 01:
Yes, Your Honor.

[00:32:47] Speaker 01:
But there's a certificate of rulings, which is attached.

[00:32:51] Speaker 01:
And the certificate of rulings mentions both.

[00:32:54] Speaker 02:
Right.

[00:32:54] Speaker 02:
And again, Your Honor, we're not aware of any authority on that point.

[00:32:57] Speaker 02:
But we agree with the court's reading of the docketing statement.

[00:33:02] Speaker 02:
OK.

[00:33:02] Speaker 02:
Turning to the merits.

[00:33:05] Speaker 01:
Could you address the question that I was asking, which is assuming that, well, of course, assuming that Hall's law here, and assuming that Hall extends to matters relating to timely payment, withholding of payment, which were entitled under the DBA, are there any remaining items?

[00:33:34] Speaker 01:
They've identified, closing council just identified two kinds, and I have a bunch more to ask you about.

[00:33:40] Speaker 01:
But I don't think I need, I might ask me to roll up to make your whole pitch.

[00:33:46] Speaker 01:
Understood.

[00:33:46] Speaker 01:
But I'm just trying to try it.

[00:33:47] Speaker 01:
So imagine that the Blackwater did, as they say, threaten somebody.

[00:33:55] Speaker 01:
That, as on page 47,

[00:34:03] Speaker 01:
third-party administrators threatened to physically harm or abscond with the employees.

[00:34:15] Speaker 01:
Are you suggesting that because these have something to do with payments, that an employee in a state, for example, couldn't, in a state court, couldn't file a simple assault claim?

[00:34:26] Speaker 02:
There's a difference between couldn't and didn't, Your Honor.

[00:34:29] Speaker 02:
Go ahead.

[00:34:31] Speaker 02:
To the extent... Stick with the couldn't for just a moment.

[00:34:33] Speaker 02:
Do you agree that they could?

[00:34:35] Speaker 02:
under certain facts, if there is a tort or a crime, if there is criminal action or tortious action by someone who happens to be an employee of a contractor and there happens to be a DBA claim pending, but that tort or crime stands independent of the claim adjudication process or the evaluation of benefits.

[00:34:56] Speaker 02:
It would be a crime or a tort with or without that claim pending.

[00:34:59] Speaker 02:
then that claim may well be able to be brought in standalone.

[00:35:02] Speaker 02:
If, for example, someone assaults someone else, there may well be a tort claim for assault and battery and personal injuries, but those claims are not asserted here.

[00:35:12] Speaker 01:
They're not asserted or?

[00:35:14] Speaker 02:
Well, no causes of action are alleged that would encompass it.

[00:35:18] Speaker 02:
As the Court noted, the threats allegations may well become an assault claim or could constitute an assault claim.

[00:35:27] Speaker 02:
But the way those allegations are used here, first of all, we don't have enough facts in the allegations to determine whether or not there is, in fact, a tort claim there.

[00:35:36] Speaker 02:
But second, and separate and apart from that far more importantly, the gravamen of this complaint, as counsel told you a few moments ago,

[00:35:44] Speaker 02:
is a dissatisfaction with the structure and the remedies available under the DBA.

[00:35:53] Speaker 02:
And that is the gravamen of the complaint.

[00:35:55] Speaker 02:
You can see it throughout the complaint.

[00:35:57] Speaker 02:
You can read it in paragraph 2 of the complaint where they say this complaint is filed because of dissatisfaction with the DBA.

[00:36:03] Speaker 02:
You can see it on the first page of their opening brief where they say that we are here essentially to ask this court to rewrite the DBA.

[00:36:10] Speaker 02:
And the causes of action here, each tort claim, each of the state tort claims to which the issue of preemption applies is

[00:36:20] Speaker 02:
brought within the constraints of the DBA and it is alleging tortious injury because of the dissatisfaction with the claim adjudication process within the DBA.

[00:36:32] Speaker 02:
As counsel said a few moments ago, their concerns are that there is not recourse for intentional injuries that may arise in the course of the claim adjudication.

[00:36:42] Speaker 02:
Your Honor just pointed out that to the extent there are independent courts, that's a separate matter, but there may be separate recourse there.

[00:36:50] Speaker 02:
And Your Honor, within the constraints of the DBA, there are in fact criminal sanctions against employers or their agents who make misrepresentations or who materially impede the ability to obtain benefits or who diminish, delay, or deny benefits based on misrepresentations.

[00:37:10] Speaker 02:
And to the extent an employer fails to abide by an order to pay benefits or fails to controvert its obligation to pay benefits, it simply doesn't.

[00:37:23] Speaker 01:
I'm telling you, I'm not asking you to remake the whole argument.

[00:37:26] Speaker 01:
So if we were to rule in your favor,

[00:37:29] Speaker 01:
We could appropriately say that by dismissing this complaint, this doesn't mean that independent tort actions that don't depend on the DBA couldn't be filed separately, right?

[00:37:44] Speaker 01:
Correct, Your Honor.

[00:37:45] Speaker 02:
To the extent there are independent courts such as assault or battery or sexual assault that are not dependent on a DBA claim being filed or adjudication, the adjudicative steps in the process of evaluating the right or adequacy of DBA benefits, simply because there's a DBA claim pending, it doesn't mean that a battery is not a battery.

[00:38:05] Speaker 01:
And that's sort of based on a reading of the complaint as, because it's a class action really, being tied to the DBA system, right?

[00:38:13] Speaker 02:
Well, it is, Your Honor, I think, lands upon the logic of why it's framed as it is.

[00:38:18] Speaker 02:
There can be no class action if this is about people parking SUVs on the front lawn or assaulting individuals.

[00:38:25] Speaker 02:
That is not a class action.

[00:38:26] Speaker 02:
That is why it's pled as broadly as it is.

[00:38:29] Speaker 02:
But even if it were individual claims, which is a putative class action, as pled, it is a programmatic assault on the DBA.

[00:38:40] Speaker 01:
It is, it is... So if all they had said, if they had found a separate complaint against, in this example that I'm citing, Blackwater, for threatening to kill somebody, I'm not saying it happened or didn't happen, that would not be precluded by our

[00:38:54] Speaker 01:
dismissal of this particular complaint, which mentions that in a set of factual descriptions, but which you say is not part of the actual claims.

[00:39:02] Speaker 01:
Is that right?

[00:39:02] Speaker 01:
I think that's correct, Your Honor.

[00:39:05] Speaker 02:
Okay.

[00:39:05] Speaker 02:
Also, there was discussion about what claimants may remain, and there were discussion of two categories.

[00:39:12] Speaker 02:
The first were medical providers.

[00:39:16] Speaker 02:
And, in fact, there is one medical provider in the complaint referenced, and it's Ms.

[00:39:20] Speaker 02:
Nikki Poole, and that's at JA 213, where you'll find the allegations regarding Ms.

[00:39:24] Speaker 02:
Poole.

[00:39:25] Speaker 02:
Ms.

[00:39:26] Speaker 02:
Poole was a nurse for Mr. Brink, a South African gentleman, and... Sir, could you say the page again?

[00:39:32] Speaker 02:
I'm sorry.

[00:39:32] Speaker ?:
213.

[00:39:33] Speaker 02:
And the allegations are that CNA quote-unquote authorized Ms.

[00:39:38] Speaker 02:
Poole to provide care for Mr. Brink.

[00:39:41] Speaker 02:
This claim is a derivative of Mr. Brink's rights as a DBA claimant.

[00:39:47] Speaker 02:
If Mr. Brink has no right to DBA benefits, his medical providers have no right to payment from CNA pursuant to those benefits.

[00:39:55] Speaker 01:
Well, let me just think about that.

[00:39:56] Speaker 01:
Sure.

[00:39:56] Speaker 01:
I'm thinking about that as whether that could be brought independently, OK?

[00:40:00] Speaker 01:
So imagine CNA

[00:40:03] Speaker 01:
sends a letter to Ms.

[00:40:06] Speaker 01:
Poole saying, we promise to pay you, regardless of whether he's entitled to the money or not, we promise to pay you, please go ahead and buy the x-ray machine.

[00:40:19] Speaker 01:
That's a contractual claim.

[00:40:21] Speaker 01:
She agrees.

[00:40:22] Speaker 01:
I will provide the payment.

[00:40:25] Speaker 01:
I will spend money.

[00:40:27] Speaker 01:
Would she not have a claim in quantum merit, at least for the value of the x-ray machine that they promised, regardless of whether

[00:40:36] Speaker 01:
CNA was correct or not in deciding to pay?

[00:40:39] Speaker 02:
Possibly.

[00:40:40] Speaker 01:
Okay.

[00:40:40] Speaker 01:
And you're not excluding that from... Correct, Your Honor.

[00:40:42] Speaker 02:
That is simply not a claim asserted in this lawsuit.

[00:40:45] Speaker 02:
Obviously, we'd be dependent on the facts of that claim.

[00:40:47] Speaker 02:
Yes.

[00:40:48] Speaker 02:
But if there is an independent contract, a new and separate contract from the DBA policy, that there may be a claim there, but it's not alleged here.

[00:40:58] Speaker 02:
Also, there was discussion of survivors and family members, and the exclusivity provision of the Longshore Act plainly encompasses liability prescribed that is exclusive and in place of all other liability to the employee, the legal representatives, husband or wife, parents, dependents next of kin, and anyone otherwise entitled to recover damages from such employers at law.

[00:41:24] Speaker 02:
And in fact, the Halls were husband and wife plaintiffs in this case.

[00:41:29] Speaker 02:
So you had Mrs. Hall asserting her own claim for intentional infliction based on the treatment of her husband, and this court found that to fall within the exclusivity provisions.

[00:41:41] Speaker 01:
Okay, I'd like to move on to another topic if you're finished with that.

[00:41:46] Speaker 01:
Yes.

[00:41:47] Speaker 01:
That's the ADA claims.

[00:41:49] Speaker 01:
Yes, Your Honor.

[00:41:50] Speaker 01:
So this requires a little sort of buildup, but you'll bear with me for a second.

[00:41:56] Speaker 01:
Of course.

[00:41:57] Speaker 01:
We've said in Belazan and in Firestone, if you put the two together, that it is a clear abuse of discretion to fail to

[00:42:10] Speaker 01:
give a reason for refusing to permit an amendment and that that failure is itself sufficient to overturn a 59E decision.

[00:42:27] Speaker 01:
So my question, in this case, the district court denied the ability to amend the ADA claim, file an amendment to that part of the complaint.

[00:42:40] Speaker 01:
Why don't we have to send this back, as we did in Bello's hand, and require the district court at least to explain why its dismissal should be with prejudice?

[00:42:51] Speaker 01:
I mean, it could have dismissed without prejudice.

[00:42:53] Speaker 01:
Mr. Court dismissed with prejudice.

[00:42:55] Speaker 01:
Why don't we have to do that?

[00:42:56] Speaker 02:
Your Honor, the Court set out its reasoning in the original order on the motion to dismiss, and in evaluating the motion for reconsideration, found the proposed amendments to be inadequate to address the elements of the ADA claim.

[00:43:12] Speaker 01:
Where on reconsideration?

[00:43:13] Speaker 01:
That's the minute order we're talking about?

[00:43:15] Speaker 01:
It is the minute order, Your Honor.

[00:43:16] Speaker 01:
Where did he give a reason for not saying he didn't?

[00:43:21] Speaker 02:
At JA 44, Your Honor.

[00:43:23] Speaker 02:
Midway through the lengthy paragraph, you'll see that one carryover line ends with at 29 to 33.

[00:43:31] Speaker 02:
The discussion begins in the next sentence.

[00:43:35] Speaker 01:
Plaintiffs also seek leave.

[00:43:36] Speaker 01:
I've got to print out, I guess.

[00:43:37] Speaker 01:
What was the JAA page again?

[00:43:39] Speaker 01:
44, Your Honor.

[00:43:44] Speaker 02:
Okay, where is it?

[00:43:46] Speaker 02:
Midway down the lengthy paragraph, you'll see again the line begins at 29-33.

[00:43:51] Speaker 02:
The next sentence picks up the discussion.

[00:43:58] Speaker 01:
Right, so what I'm not following is why this amended complaint at least isn't sufficient to state an ADA claim.

[00:44:13] Speaker 02:
And Your Honor, the Court found that the statements regarding the impairment of fundamental life functions and the request for accommodations were not adequately pled.

[00:44:27] Speaker 01:
That's what I'm having trouble with.

[00:44:29] Speaker 01:
This is 12b6.

[00:44:34] Speaker 01:
under iqbal, all requires is plausibility as to the ABA claim, as to the ABA claim, as under Swierkowitz, which the Supreme Court has not overruled, it's not necessary to have the elements of McDonald Douglas in the complaint.

[00:44:47] Speaker 01:
All you have to do is provide enough evidence, enough

[00:44:49] Speaker 01:
allegations to make it plausible.

[00:44:53] Speaker 01:
On the disability, they're talking about people who've lost arms, who've lost legs, who can't sleep at night.

[00:45:00] Speaker 01:
It's not plausible to believe that those people are disabled within the meaning of the ADA.

[00:45:04] Speaker 01:
That seems implausible to me.

[00:45:06] Speaker 02:
I understand your Honor's comments.

[00:45:10] Speaker 02:
I think the point that Judge Sullivan was making, that they weren't specifically expressed in terms of the ADA, in terms of whether or not they were impairment to life functions, and whether or not accommodations from an employment perspective.

[00:45:25] Speaker 01:
I'll leave the accommodations for one moment.

[00:45:29] Speaker 01:
that requirement that they repeat the words of the statute, that's not, the court has made clear that's not required, not only that's not required, it's not enough.

[00:45:39] Speaker 01:
And the only question is whether there is allegations from which you could plausibly see that a claim like that could be made.

[00:45:47] Speaker 01:
And they do then, in the amended complaint, repeat the words of the statute.

[00:45:53] Speaker 01:
So both are covered.

[00:45:58] Speaker 01:
I understand your desire to win this, but this looks like we would be totally remaking our law about the ADA if we were to say that somebody who's lost arms and legs and can't sleep and all these other things, that there's no plausible claim that that person is disabled in a major life activity.

[00:46:18] Speaker 02:
In your honor.

[00:46:19] Speaker 02:
Judge Sullivan's reasoning was set out as an initial order, and as you say, the proposed amendment simply recited the statutory language.

[00:46:28] Speaker 02:
You found that to be an inadequate solution.

[00:46:31] Speaker 02:
To the extent this Court requires Judge Sullivan to offer further explanation as to the three plans of springing ADA plans against three defendants, you know, we defer to the Court on that.

[00:46:44] Speaker 02:
Okay, got it.

[00:46:44] Speaker 02:
Thank you.

[00:46:45] Speaker 02:
Certainly.

[00:46:46] Speaker 02:
May I address Rico if Your Honor's interested?

[00:46:50] Speaker 02:
First of all, as we have briefed, Rico is, while obviously not preempted, the claim would violate the exclusivity provisions under this Court's authority.

[00:47:02] Speaker 02:
in Danielson, in that it would essentially replace what is already an exhaustive, exclusive set of remedies with a potential treble damage claim, thereby creating the risk of inconsistent findings between the two judicial entities and also the risk of gutting, if you will, the administrative remedy

[00:47:23] Speaker 02:
as everyone goes to try their luck at treble damages.

[00:47:26] Speaker 02:
We think based on Danielson, the RICO claim is a non-starter.

[00:47:30] Speaker 02:
As to the elements alleged as we briefed on the injury to business or property, it's very clear and in fact the authority relied on

[00:47:41] Speaker 02:
plaintiffs below.

[00:47:43] Speaker 02:
Brown out of the Sixth Circuit has recently been reversed on appeal, finding that workers' compensation claims cannot, and that their denial cannot constitute damage to business or property for RICO because it is derivative of personal injury and you cannot have a RICO claim based on any pecuniary damage caused which is derivative of personal injury.

[00:48:07] Speaker 02:
As to the elements, the other elements of RICO, the trial court did in fact address those in a lengthy footnote in the motion to dismiss order, identifying correctly why enterprise as well as predicate acts were not adequately fled.

[00:48:22] Speaker 02:
Unless the panel has any other questions, we would ask that the trial court be affirmed.

[00:48:29] Speaker 01:
No further questions, thank you.

[00:48:31] Speaker 01:
Fair rebuttal time?

[00:48:32] Speaker 01:
All right, we've let everybody go over a little bit, so we'll let you go over some more too.

[00:48:37] Speaker 01:
Two minutes, please.

[00:48:43] Speaker 04:
Thank you, Mr. Chief Judge.

[00:48:45] Speaker 04:
I will be very brief.

[00:48:48] Speaker 04:
I am reminded that there is an additional one of the plaintiffs whose assertion was against an employer other than her employer, another one that was operating in the same theater, for sexual assault.

[00:49:05] Speaker 04:
That

[00:49:07] Speaker 04:
That sexual assault did indeed furnish a basis for a workers' compensation claim under the Defense Base Act, not against the defendant against whom she seeks damages in this proceeding.

[00:49:22] Speaker 04:
Her own employer... Could you say that again?

[00:49:24] Speaker 04:
Yes.

[00:49:26] Speaker 04:
The claimant was sexually assaulted by an employee of another employer operating in the same theater.

[00:49:33] Speaker 04:
She

[00:49:34] Speaker 04:
was entitled to Defense Base Act benefits for the disability that resulted

[00:49:41] Speaker 04:
that has nothing to do with and raises no exclusivity of her remedy against the company who negligently hired the employee who assaulted her.

[00:49:55] Speaker 01:
It seems to me that the other side has conceded that, that that's an independent claim and that if we were to dismiss your

[00:50:07] Speaker 01:
class action complaint here, you could still bring that separately, that that wouldn't apply to that.

[00:50:12] Speaker 01:
But this is not going to get you anywhere with respect to the class action, unless you have a class action of people who were sexually assaulted.

[00:50:18] Speaker 04:
No, and that claim is distinct from the class claim.

[00:50:23] Speaker 04:
She is the only one in that situation.

[00:50:25] Speaker 01:
Does she have a separate... I, like the defendants, are having a little trouble exactly understanding the

[00:50:36] Speaker 01:
the nature of the complaint that you filed.

[00:50:39] Speaker 01:
And the various counts, you don't have a separate count for her and for the sexual assault, do you?

[00:50:45] Speaker 04:
Yes, I think so.

[00:50:46] Speaker 01:
Just for her?

[00:50:46] Speaker 01:
It applies only to her?

[00:50:48] Speaker 04:
I think that is so, yes.

[00:50:49] Speaker 04:
Which one is that?

[00:50:51] Speaker 04:
Again, I'm not able to point to end of the unanimous complaint to which those, but it is the claim of Christine Holowen, the plaintiff Christine Holowen.

[00:51:02] Speaker 01:
Right, but there's a count of the

[00:51:06] Speaker 01:
Count one, count two, which one is it that is specifically about her and only about her?

[00:51:12] Speaker 01:
I guess I didn't.

[00:51:17] Speaker 01:
I'm sorry.

[00:51:18] Speaker 01:
I'll work with you through the counts.

[00:51:20] Speaker 01:
Count one says retaliatory discharge and discrimination.

[00:51:23] Speaker 01:
That clearly isn't it.

[00:51:25] Speaker 01:
Count two was Rico.

[00:51:26] Speaker 01:
That clearly isn't it.

[00:51:28] Speaker 01:
Count three was bad faith, tortuous breach of covenant of good faith.

[00:51:31] Speaker 01:
That's not it.

[00:51:33] Speaker 01:
Which one is it?

[00:51:34] Speaker 01:
Which count is it?

[00:51:39] Speaker 04:
The intentional torts count should include that, I think.

[00:51:48] Speaker 04:
Which one is it?

[00:51:49] Speaker 04:
15 and 21.

[00:51:51] Speaker 01:
I'm sorry, which count?

[00:51:53] Speaker 04:
15 and 21.

[00:51:55] Speaker 01:
Well, unfortunately, I only have counts up to nine on mine.

[00:51:58] Speaker 01:
Am I looking at the wrong thing?

[00:52:03] Speaker 01:
I'm sorry, I'm not able to... I'm not saying it wasn't a... I mean, I noticed the same thing as one of the paragraphs.

[00:52:09] Speaker 01:
I didn't see it listed as a separate count of the offense.

[00:52:13] Speaker 01:
I appreciate everything that's incorporated over and over again, but it's hard to read, at least I didn't read any of these counts as being a separate independent count, just about one woman who had

[00:52:26] Speaker 01:
made what if she seems like a perfectly acceptable independent tort, which the other side agrees would be if it had been made.

[00:52:36] Speaker 04:
If that is not a separate count, then no, I acknowledge it.

[00:52:42] Speaker 04:
And if the dismissal below would not bar that count.

[00:52:45] Speaker 01:
I think that even the other side agrees it wouldn't bar that count.

[00:52:50] Speaker 01:
So we raise again.

[00:52:51] Speaker 01:
What's her name again?

[00:52:52] Speaker 01:
Christine Holtwin.

[00:52:57] Speaker 04:
I do need to point out once again, though this is in the briefs, that once again this morning my brother has read to you part of the exclusive remedy provision and has excluded the critical qualifier at the end, which is obviously a critical part of that clause.

[00:53:19] Speaker 04:
It's exclusive of remedies otherwise available to the employee or anyone claiming through the employee on account of such injury.

[00:53:31] Speaker 04:
So it is only claims for the employment injury that are barred.

[00:53:41] Speaker 04:
The employer – the insurance companies or its claims agents' subsequent conduct causing additional injury is an intervening cause of that later injury.

[00:53:52] Speaker 04:
And that is not encompassed – it may not even be a liability of the employer if the employer was not a participant in that separate subsequent tort.

[00:54:05] Speaker 04:
The notion that recognizing the ability to secure a remedy

[00:54:17] Speaker 04:
intentional conduct in the claims handling procedure would be inimical to the purposes of the Longshore Act itself or the Defense Base Act, simply has no validity at all.

[00:54:31] Speaker 04:
That, again, that goes to Hall and this

[00:54:36] Speaker 04:
The court has presently constituted, cannot do anything about Hall, but we will be seeking, and we recognize that many of these claims, if Hall is correct, were properly dismissed.

[00:54:51] Speaker 04:
We will be asking the court to take another look at that, and I hope... I think you've certainly preserved that argument.

[00:54:56] Speaker 01:
Yes.

[00:54:56] Speaker 01:
That would have to be in a petition for... Yes, absolutely.

[00:54:59] Speaker 01:
...rehearing.

[00:55:00] Speaker 04:
We have understood that coming forward.

[00:55:03] Speaker 01:
Okay, fine.

[00:55:03] Speaker 01:
All right.

[00:55:03] Speaker 01:
We'll take the matter under submission, and we'll take a brief break.

[00:55:05] Speaker 01:
Thank you all.