Daniel Brink v. Continental Insurance Company

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 13, 2015 Decided June 2, 2015

No. 13-7165

DANIEL BRINK, ET AL.,

APPELLANTS

v.

CONTINENTAL INSURANCE COMPANY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-01733)

Joshua T. Gillelan II argued the cause and filed the briefs

for appellants.

Richard J. Doren argued the cause for appellees. With

him on the brief were Geoffrey M. Sigler, Thomas M.

Johnson, Holly P. Smith, Molly S. Carella, Christopher E.

Appel, Roderick L. Thomas, Mark B. Sweet, Lawrence S.

Ebner, Raymond B. Biagini, Tami L. Azorsky, Alejandro L.

Sarria, David I. Ackerman, Kenneth Pfaehler, Avi D. Schick,

Sandra D. Hauser, Leslie Paul Machado, Robert B. Wallace,

David M. Ross, Matthew W. Carlson, F. Greg Bowman,

2

David Randall J. Riskin, Charles C. Platt, Dina B. Mishra,

John B. Rudolph, Brannon C. Dillard, Tara M. Lee, Joseph C.

Davis, and Sara Z. Moghadam. Timothy W. Bergin and

Daniel P. Rathbun entered appearances.

Before: GARLAND, Chief Judge, BROWN, Circuit Judge,

and SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

SENTELLE, Senior Circuit Judge: Appellant Daniel

Brink, joined by thirty-one other individuals, brought a class

action lawsuit stemming from the workers’ compensation

benefits owed to class members under the Defense Base Act,

42 U.S.C. § 1651 et seq., for injuries suffered while working

for United States government contractors in Iraq and

Afghanistan. In connection with their Base Act claims,

appellants alleged that several government contractors,

insurance companies, and third parties (collectively

“contractors”) committed torts and violated the Longshore

and Harbor Workers’ Compensation Act, the Racketeer

Influenced and Corrupt Organizations Act (“RICO”), and the

Americans with Disabilities Act (“ADA”). The district court

dismissed all of appellants’ claims. We affirm the dismissal

of appellants’ class-wide tort claims as well their RICO and

Longshore Act claims. This dismissal, however, does not

preclude any individual appellants from bringing independent

claims outside of the Base Act’s statutory scheme. With

respect to the ADA claims brought by three individual

appellants, we remand to the district court to reconsider and

explain its denial of leave to amend the complaint.

3

I.

Members of the plaintiff class suffered severe injuries.

They lost limbs in massive explosions, suffered traumatic

brain injuries from “concussive blasts, mortars, rockets, and

bombs,” and developed post-traumatic stress disorder after

witnessing “gruesome scenes of carnage.” Second Am.

Compl. ¶¶ 12, 48, Brink, et al. v. Xe Holding, LLC, et al., 910

F. Supp. 2d 242 (D.D.C. 2012) (No. 11-cv-01733) (“SAC”).

Because they were injured while working “under contracts or

subcontracts” with the United States government in Iraq and

Afghanistan, appellants alleged that class members are

covered by the Base Act. Id. ¶ 562.

Enacted in 1941, the Defense Base Act, 42 U.S.C. § 1651

et seq., provides relief to employees of government

contractors whose death or injuries occurred while

accompanying military forces overseas. The Base Act builds

upon and incorporates provisions of the Longshore Act,

which was enacted to provide workers’ compensation

coverage to maritime employees. See 42 U.S.C. § 1651(a); 33

U.S.C. § 902(3). As with the Base Act, Congress passed the

Longshore Act “to strike a balance between the concerns of

[the employees] on the one hand, and their employers on the

other.” Morrison-Knudsen Constr. Co. v. Dir., Office of

Workers’ Comp. Programs, 461 U.S. 624, 636 (1983).

“Employers relinquished their defenses to tort actions in

exchange for limited and predictable liability,” and employees

accepted “limited recovery because they receive prompt relief

without the expense, uncertainty, and delay that tort actions

entail.” Id. Both the Longshore Act and the Base Act contain

exclusivity provisions stating that employer liability under the

statutes “shall be exclusive and in place of all other liability.”

33 U.S.C. § 905(a) (Longshore Act); 42 U.S.C. § 1651(c)

(Base Act).

4

Appellants brought this action on behalf of themselves

and an estimated 10,000 similarly situated workers,

SAC ¶¶ 560–62, seeking $2 billion in damages as well as

declaratory and injunctive relief to require the contractors “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,” id. ¶ 1. Appellants alleged the

contractors “failed or refused to provide medical benefits

owed to [them] under the [Base Act];” “cut off medical

benefits;” delayed providing benefits; “made false statements

and misrepresentations” regarding payment of Base Act

benefits “while actually reducing, denying or ignoring

[appellants’] medical needs;” failed to comply with orders to

pay benefits; “threatened or discouraged workers from

making [Base Act] claims;” and terminated appellants’

employment “after they were disabled by their [Base Act]-

covered injuries.” Brink, 910 F. Supp. 2d at 247. Appellants

asserted class-wide claims for discrimination and retaliatory

discharge under the Longshore Act (Count I); violations of

RICO (Count II); bad faith and 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 (Count VI);

outrage (Count VII); and wrongful death (Count VIII). See

SAC ¶¶ 564–631. In addition, appellants sought preliminary

and permanent injunctive relief (Count IX). Id. ¶¶ 632–39.

The extensive factual allegations in the complaint include

some assertions that could be predicates for independent legal

claims, falling outside this class action. For example, Ronald

Bell alleged that employees from Kellogg Brown & Root

“intimidated and threatened” him and that he reported the

assault to a local sheriff’s department. Id. ¶ 79. Christine

Holguin-Luge alleged she was sexually assaulted in Iraq.

5

Id. ¶¶ 321–35. Nicky Pool, the owner of a nursing care

company, alleged that CNA Global Insurance “approved

numerous medical treatments” but then refused to pay for

them, causing her company to lose $200,000. Id. ¶¶ 351,

477–88. We note, however, that the complaint before us

includes no separate counts or claims for relief for any of

these individuals.

The contractors moved to dismiss appellants’ second

amended complaint in its entirety, and the district court

granted the contractors’ motions pursuant to Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6). Relying on “this

Circuit’s binding precedent” in Hall v. C&P Telephone

Company, 809 F.2d 924 (D.C. Cir. 1987) (per curiam), the

district court concluded that appellants’ “state law causes of

action all arise out of their underlying claims to [Base Act]

benefits and thus are barred by the exclusive scheme set forth

in the [Base Act] and [Longshore Act].” Brink, 910 F. Supp.

2d at 249–50, 252 (dismissing Counts III, IV, V, VII, and

VIII). The district court similarly held that the comprehensive

statutory scheme barred appellants’ RICO claims as well as

their discrimination and retaliatory discharge claims arising

under the Longshore Act, 33 U.S.C. § 948a. Id. at 254–56

(dismissing Counts I and II).

Three individuals—Merlin Clark, Harbee Kreesha, and

Mohsen Alsaleh—alleged violations of the ADA. Id. at 256

(citing SAC ¶¶ 111, 113, 203, 215, 608–18). The district

court “interpret[ed] these allegations as including two

possible claims under the ADA: (1) failure to accommodate,

and (2) disability discrimination for firing Plaintiffs.” Id. at

256–57. Under either theory, the district court concluded that

Clark, Kreesha, and Alsaleh failed to state a claim under the

ADA. Id. at 258. The district court held that their allegations

were “insufficient . . . to meet their burden of demonstrating

6

that their injuries substantially limited a major life activity

and thus qualified them as disabled under the ADA.” Id.

Therefore, the district court dismissed their ADA claims

(Count VI).

Appellants moved for reconsideration pursuant to Federal

Rule of Civil Procedure 59(e), and sought leave to file an

amended complaint under Federal Rule of Civil

Procedure 15(a) to correct the defects in their ADA claims.

The district court denied both motions with prejudice.

Appellants timely appealed.

II.

On appeal, appellants raise three issues: (1) whether the

statutory scheme bars appellants’ tort claims; (2) whether the

district court erred in dismissing appellants’ federal claims;

and (3) whether the district court abused its discretion when it

denied the motion for leave to allow some of the appellants to

amend their ADA claims. For the reasons discussed below,

we conclude that the statutory scheme bars appellants’ class-

wide tort claims; the district court did not err in dismissing

appellants’ RICO and Longshore Act claims; and the district

court abused its discretion by denying without explanation the

motion for leave to allow some of the appellants to amend

their ADA claims.

A. Tort Claims

Appellants contend that neither the Base Act nor the

Longshore Act bars their tort claims. In their view, the Base

Act “does not extend tort immunity to intentional torts of the

employer, the insurance carrier, or third parties.” Appellants’

Br. 20. Appellants also suggest their injuries, caused by the

contractors’ intentional post-employment acts, are not

7

covered by the Longshore Act because they are not

“accidental.” See 33 U.S.C. § 902(2) (defining the term

“injury” as “accidental injury or death arising out of and in

the course of employment”); Martin v. Travelers Ins. Co., 497

F.2d 329, 330–31 (1st Cir. 1974).

We reject appellants’ arguments. As previously noted,

the statutory scheme represents a “legislated compromise

between the interests of employees and the concerns of

employers.” Wash. Metro. Area Transit Auth. v. Johnson,

467 U.S. 925, 931 (1984). In other words, “there is a quid pro

quo.” Id. “In return for the guarantee of compensation, the

employees surrender common-law remedies against their

employers for work-related injuries,” while the employers

gain “immunity from employee tort suits.” Id. The statutory

text codifies this legislative compromise by making statutory

remedies exclusive. The Longshore Act provides:

The liability of an employer prescribed in section 904

of this title 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 or in admiralty on

account of such injury or death . . . .

33 U.S.C. § 905(a) (emphasis added). The Base Act

expressly incorporates this exclusivity provision, see 42

U.S.C. § 1651(a), and includes an additional exclusivity

provision. Under a subsection titled, “Liability as exclusive,”

the statute states:

The liability of an employer, contractor (or any

subcontractor or subordinate subcontractor with

respect to the contract of such contractor) under this

8

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) (emphasis added).

In the Hall decision we construed the District of

Columbia Workers’ Compensation Act, which, like the Base

Act, incorporates the exclusive remedy provision of the

Longshore Act. The plaintiff in Hall, “[u]nsatisfied with the

statutory quid pro quo,” contended that “employees should be

permitted to bring tort claims when the employer refuses to

make timely compensation payments with an intent to

injure.” 809 F.2d at 926 (emphasis added). We rejected

Hall’s argument and refused to undo the “legislated

compromise” codified in the statutory scheme. Id. (quoting

Johnson, 467 U.S. at 931). All the tort claims—including

intentional tort claims—“fall within the [statutory] exclusivity

provisions.” Id.

As the district court rightly discerned, the reasoning of

Hall governs this case. First, the complaint alleges that all

class members “were covered by the Defense Base Act.”

SAC ¶ 562. Second, based on appellants’ own allegations,

their class-wide tort claims (including the alleged intentional

torts) directly relate to their claims for Base Act benefits. See

id. ¶¶ 59, 61; Brink, 910 F. Supp. 2d at 252 (summarizing

appellants’ claims). Consequently, appellants’ class-wide tort

claims are barred by the exclusive statutory scheme set forth

in the Base Act and Longshore Act. Hall, 809 F.2d at 926;

9

see also Oral Arg. Recording 15:00–16:33 (acknowledging

that Hall bars appellants’ class-wide tort claims).

Appellants suggest that Martin v. Travelers Insurance

Co., a First Circuit case decided in 1974, identifies an

exception to Hall. See Appellants’ Br. at 43–44 (discussing

Martin, 497 F.2d at 330–31). The First Circuit in Martin

permitted a narrow exception to the Longshore Act’s

exclusivity because “the crux of the complaint [was an]

insurer’s callous stopping of payment without warning when

it should have realized that acute harm might follow.”

Martin, 497 F.2d at 331. Appellants read Martin as creating

an exception to exclusivity for intentional tort claims, and ask

us to reverse the district court’s dismissal because their class-

wide tort claims were “clearly pleaded outside of the

exclusive remedy setting.” Appellants’ Br. at 43. We

disagree with appellants’ broad reading of Martin. In fact, we

implicitly rejected Martin in Hall. There we stated explicitly

that the D.C. Court of Appeals had been “clearly correct” in

Garrett v. Washington Air Compressor Co., 466 A.2d 462

(D.C. 1983), in concluding that the tort claims before it “[fell]

within the Act’s exclusivity provisions.” Hall, 809 F.2d at

926. In the citations following that conclusion, we suggested

our rejection of Martin by introducing it with the negative

“but see” signal. Id. We were not then, nor are we now,

bound to follow the decisions of other circuits. We are,

however, bound to follow those of our own. Therefore, as the

appellants recognize, they must petition for rehearing en banc

in order to make the case for narrowing or overruling Hall.

And, whatever the scope of the First Circuit’s Martin

decision, Hall clearly encompasses intentional tort claims of

the kind alleged in this class action. 1

1

We are not alone in declining to follow Martin. Other courts

have done so, including even the First Circuit, which gave it birth

10

Appellants argue that the statutory scheme does not

provide remedies for the tortious injuries caused by the

contractors’ intentional actions. That is incorrect. The Base

Act penalizes employers for failing to pay (or timely pay)

benefits. See 33 U.S.C. § 914(e), (f). If an employer fails to

comply with a Department of Labor compensation order,

federal courts have jurisdiction to enforce the compensation

order, id. § 921(d), and assess criminal penalties, id. § 938.

Additionally, the employer is criminally liable for knowingly

making false statements to reduce, deny, or terminate

benefits. Id. § 931(c). Even though some of these remedies

sound in criminal law and not in tort, the statute provides

remedy against contractors and insurers who do not comply

with statutory obligations.

Appellants complain that the Base Act’s “minuscule”

penalties are provided by “a bureaucratic system of

government administration . . . that is complex and slow,”

SAC ¶ 58, but that does not empower us to disturb the

“legislatively enacted compensation scheme,” Duke Power

Co. v. Carolina Env’t Study Grp., Inc., 438 U.S. 59, 88

(1978). “While it may be that the penalty provisions are

inadequate to fully compensate a worker who has been

harmed by an employer’s refusal to pay when due, the

but subsequently limited its application closely to its facts. See

Barnard v. Zapata Haynie Corp., 975 F.2d 919, 920–21 (1st Cir.

1992); see also Sample v. Johnson, 771 F.2d 1335, 1347 (9th Cir.

1985) (criticizing Martin as an “opinion free of citation to

authority” and stating that the “bulk of authority” contradicts it);

Atkinson v. Gates, McDonald & Co., 838 F.2d 808, 813 n.6 (5th

Cir. 1988) (deciding to “follow Sample and Hall” instead of

Martin).

11

problem requires a political solution.” Sample, 771 F.2d at

1347.

As the district court correctly opined, the precedent of

Hall requires that we apply the exclusivity provision of the

Longshore Act as incorporated in the Base Act according to

the statutory terms. We affirm the district court’s dismissal of

appellants’ class-wide tort claims (Counts III, IV, V, VII, and

VIII).

We note, as the appellees acknowledge, that Hall does

not preclude individual appellants from pursuing claims that

arise independently of an entitlement to benefits under the

Longshore Act, such as a common-law assault claim based on

a threat against a Longshore Act claimant, see Oral Arg.

Recording 34:15-35:15, or a claim by a Longshore Act care-

provider sounding in contract and based on a separate

agreement to make payments to her to provide care to the

Longshore Act claimant, see id. 40:01-57. We reiterate that

such claims are not encompassed in this class-action

complaint. See SAC ¶¶ 564–639; Oral Arg. Recording

38:43-39:04, 49:29–50:25, 52:39–54. Therefore, our decision

does not preclude separate proceedings for Ronald Bell to

allege assault, SAC ¶ 79, Christine Holguin-Luge to allege

sexual assault, id. ¶¶ 321–35, and Nicky Pool to allege a

breach of contract, id. ¶¶ 351, 477–88.

B. Federal Claims

1. RICO Claims

Because the statutory scheme of the Base Act and

Longshore Act contains exclusive remedies, it “leaves no

room” for appellants’ RICO claims. Danielsen v. Burnside-

Ott Aviation Training Ctr., Inc., 941 F.2d 1220, 1226 (D.C.

12

Cir. 1991). Appellants alleged the contractors violated RICO

by conspiring “to misrepresent” information related to Base

Act claims “to injured parties and the [Department of Labor],”

and “by denying claims using fraud.” SAC ¶ 573. The Base

Act, however, already provides a remedy for the alleged

misconduct. Titled “Penalty for misrepresentation,” § 931 of

the Longshore Act (which the Base Act incorporates)

provides an exclusive remedy for false statements made by

“an 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, or

his dependents.” 33 U.S.C. § 931(c). The violator “shall be

punished by a fine not to exceed $10,000, by imprisonment

not to exceed five years, or by both.” Id. These exclusive

remedies leave no room for appellants’ RICO claims.

Appellants further alleged the contractors violated RICO

by conspiring to “delay payments to providers or to

claimants” and to “stop payments on checks.” SAC ¶ 573.

However, § 914 of the Longshore Act, as incorporated by the

Base Act, already provides a penalty for employers who do

not make on-time payments. See § 914(e)–(f) (increasing the

amount due by 10 and 20 percent). Thus, there is no room for

a RICO claim based on delayed or stopped compensation

payments.

Even if the statutory scheme left room for appellants’

RICO claims, the district court stated another ground for

dismissing these claims: Appellants “fail[ed] to state a cause

of action under RICO.” Brink, 910 F. Supp. at 255 n.12. We

agree. To state a RICO claim, appellants needed to allege

four elements: “(1) conduct (2) of an enterprise (3) through a

pattern (4) of racketeering activity.” W. Assocs. Ltd. P’ship v.

Mkt. Square Assocs., 235 F.3d 629, 633 (D.C. Cir. 2001)

13

(citations and internal quotation marks omitted). Appellants’

claims fail on the second element because they alleged an

indeterminate “RICO enterprise of individuals” broadly

consisting of “insurance companies, attorneys, adjusters, third

party medical providers, third party case administrators, third

party investigators and contractors.” SAC ¶ 576 (emphasis

omitted). Appellants did not allege any facts establishing

required elements of a RICO enterprise: “(1) a common

purpose among the participants, (2) organization, and

(3) continuity.” United States v. Richardson, 167 F.3d 621,

625 (D.C. Cir. 1999). Thus, they failed to allege a RICO

enterprise.

Appellants also failed to plead predicate acts with

particularity to satisfy Federal Rule of Civil Procedure 9(b).

See Danielson, 941 F.2d at 1229. Neither appellants’ mail

nor wire fraud claims contain any reference to “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.” Brink, 910 F.

Supp. 2d at 255 n.12. Appellants’ “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements, do not suffice” for Rule 12(b)(6), let alone Rule

9(b). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Accordingly, we affirm the dismissal of appellants’ RICO

claims.

2. Longshore Act Claims

The Longshore Act prohibits an employer from

discriminating against or discharging an employee who has

filed (or attempted to file) a claim for compensation benefits.

See 33 U.S.C. § 948a; 20 C.F.R. § 702.271(a)(1). Appellants

alleged that the contractors violated the Longshore Act

because they “discriminated against,” SAC ¶ 565, and

14

terminated employees who filed claims, id. ¶ 567. Appellants

sought “reinstatement or damages,” id. ¶ 570, the same

remedy available under the statute, see § 948a, as well as

attorney’s fees. However, the district court dismissed

appellants’ claims for failing to exhaust their administrative

remedies. Brink, 910 F. Supp. 2d at 256.

We affirm the dismissal of appellants’ Longshore Act

claims. The Base Act incorporates the Longshore Act’s

administrative procedures for the filing, adjudication, and

payment of workers’ compensation claims. Appellants

explained: “Th[e] [Base Act] 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.” SAC ¶ 2 (citing 33 U.S.C.

§§ 919, 921(b)(3)). Only after “a matter works its way

through the OWCP, OALJ, and [the] Board,” can a claimant

“appeal into the federal courts.” Id. Appellants have not even

attempted to comply with the statutory requirements. There is

no evidence appellants followed the administrative process set

forth in the statute and related regulations. See 33

U.S.C. § 948a; 20 C.F.R. §§ 702.271–274. In particular, there

is no evidence that any appellants filed a complaint with the

district director of the applicable compensation district, or that

a district director conducted an investigation of the complaint.

20 C.F.R. § 702.271(b). Nor is there any evidence that the

district director determined that discrimination occurred or

recommended reinstatement, restitution, or compensation for

lost wages. Id. § 702.272(a). Under these circumstances,

dismissal is warranted because appellants have not exhausted

their administrative remedies.

15

3. ADA Claims

As noted above, the district court ordered dismissal of the

ADA claims and denied appellants’ motions for

reconsideration under Rule 59(e) and for leave to file an

amended complaint under Rule 15(a). “When the district

court denies a motion for leave to amend under Rule 15(a),

we review its decision for abuse of discretion, bearing in mind

that the rule is to be construed liberally.” Belizan v. Hershon,

434 F.3d 579, 582 (D.C. Cir. 2006) (citation omitted).

Courts “should freely give leave” for a party to amend a

pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2).

In light of the “liberal intent of Rule 15(a)(2),” appellants

argue that the district court abused its discretion when it did

not provide them leave to amend their ADA claims.

Appellants’ Br. 57–58. We agree.

Appellants could amend their complaint after it was

dismissed with prejudice “only by filing, as they properly did,

a 59(e) motion to alter or amend a judgment combined with a

Rule 15(a) motion requesting leave of court to amend their

complaint.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.

Cir. 1996). We have said that denial of the Rule 59(e) motion

in that situation is an abuse of discretion if the dismissal of the

complaint with prejudice was erroneous; that is, the

Rule 59(e) motion should be granted unless “the allegation of

other facts consistent with the challenged pleading could not

possibly cure the deficiency.” Id. at 1209 (internal quotation

marks omitted); see also Belizan, 434 F.3d at 583 (same).

That high bar was not met here. “Turning . . . to the Rule

15(a) issue, we find error in the district court’s complete

failure to provide reasons for refusing to grant leave to

amend.” Firestone, 76 F.3d at 1209; see also Foman v. Davis,

16

371 U.S. 178, 182 (1962) (“[O]utright refusal to grant the

leave without any justifying reason appearing for the denial is

not an exercise of discretion; it is merely abuse of that

discretion and inconsistent with the spirit of the Federal

Rules.”). Moreover, although the contractors argue that the

proposed amendment would have been futile, it is at least

“plausible,” see Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

556 (2007), that the severe injuries described by Clark,

Kreesha, and Alsaleh could interfere with major life activities

within the meaning of the ADA, 42 U.S.C. § 12102(2)(A); see

also Adams v. Rice, 531 F.3d 936, 944 (D.C. Cir. 2008).

Kreesha and Alsaleh also expressly allege that they sought the

accommodation of doing translation work in the United

States, and it again seems facially plausible that translating

from home would be a “reasonable accommodation” under

the ADA. 42 U.S.C. § 12111(9).

We therefore remand for the district court to reconsider

and explain its decision to deny leave to amend. See Belizan,

434 F.3d at 584. The contractors do not resist this result. See

Oral Arg. Recording 46:30–43 (“To the extent this court

requires [the district court] to offer further explanation as to

the three plaintiffs bringing ADA claims against three

defendants, we defer to the court on that.”).

***

For the reasons stated, we affirm the district court’s

judgment dismissing appellants’ class-wide tort claims as well

17

as appellants’ RICO and Longshore Act claims. 2 We vacate

the district court’s denial of appellants’ motion for

reconsideration and leave to file an amended complaint, and

remand to the district court to explain its decision not to grant

leave to some of the appellants to correct the defects in their

ADA claims.

So ordered.

2

On February 10, 2015, Appellees US Investigations Services,

LLC and USIS International, Inc. (collectively “US Investigations”)

notified this Court that US Investigations had filed a petition under

chapter 11 of the Bankruptcy Code and that all judicial proceedings

against the debtor are stayed under 11 U.S.C. § 362. Suggestion of

Bankruptcy, Brink, et al. v. Continental Insurance Co., et al.,

No. 13-7165 (D.C. Cir. Feb. 10, 2015). We ordered all parties

except US Investigations to file responses. After reviewing the

suggestion of bankruptcy and responses thereto, we held this case

in abeyance as to US Investigations pending further order of the

court.