Brink v. Xe Holding, LLC

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