Petition for Writ of Certiorari — Jeffrey G. Carswell, et al., Petitioners v. E. Pihl & Sons, et al.

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court of

Appeals for the First Circuit

(May 27, 2021). . . . . . . . . . . . . . . . . . . A1

Appendix B Order Denying Rehearing in the

United States Court of Appeals for the

First Circuit

(August 11, 2021) . . . . . . . . . . . . . . . A29

Appendix C Order Denying Certification in the

United States Court of Appeals for the

First Circuit

(October 18, 2019) . . . . . . . . . . . . . . . A31

Appendix D Order of Transfer in the United States

Court of Appeals for the Second Circuit

(June 18, 2019) . . . . . . . . . . . . . . . . . A33

Appendix E Decision and Order of the Benefits

Review Board

(December 11, 2018) . . . . . . . . . . . . . A35

Appendix F Order Denying Director’s Motion for

Joinder; and Denying Claimants’

Cross-Motion for District Court

Certification; and Addressing Role of

Director by the Office of

Administrative Law Judges

(July 23, 2014). . . . . . . . . . . . . . . . . . A54

ii

Appendix G E-mail

from Kromann-Reumert,

Employer’s Copenhagen Bankruptcy

Trustees to the Director discounting

any settlement due to his $200 million

claim

(January 6, 2014) . . . . . . . . . . . . . . . A83

A1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 19-1630

[Filed: May 27, 2021]

__________________________________________

JEFFREY G. CARSWELL;

)

HEINZ ERIKSEN;

)

SVENNING TVEDE JUHL,

)

)

Petitioners,

)

)

v.

)

)

E. PIHL & SONS; TOPSOE-JENSEN &

)

SCHROEDER LTD.; DANISH

)

CONSTRUCTION CORPORATION;

)

DIRECTOR, OFFICE OF WORKERS’

)

COMPENSATION PROGRAMS, UNITED )

STATES DEPARTMENT OF LABOR,

)

)

Respondents.

)

__________________________________________)

PETITION FOR REVIEW OF AN ORDER OF THE

BENEFITS REVIEW BOARD, UNITED STATES

DEPARTMENT OF LABOR

Before Lynch, Lipez, and Thompson, Circuit Judges.

A2

Ian Anderson, for petitioners.

Matthew W. Boyle, Attorney, U.S. Department of

Labor, Office of the Solicitor, with whom Kate

O'Scannlain, Solicitor of Labor, Barry H. Joyner,

Associate Solicitor, Kevin Lyskowski, Deputy Associate

Solicitor, Mark Reinhalter, Counsel for Longshore, and

Gary K. Stearman, Counsel for Appellate Litigation,

were on brief for respondent Director, Office of

Workers’ Compensation.

Sarah B. Biser, with whom Fox Rothschild LLP was

on brief, for respondent E. Pihl & Sons.

THOMPSON, Circuit Judge. In 1968, a United

States military aircraft carrying nuclear weapons

crashed near Thule, Greenland, releasing radioactive

materials into the area. In the aftermath, military and

civilian personnel assisted in the cleanup efforts. In

2010, some of the civilian personnel (Petitioners) filed

claims for compensation under the Defense Base Act,

alleging that they were exposed to plutonium radiation

while working on the cleanup, leading to the

development of various illnesses. Following a series of

extensive evidentiary hearings, an Administrative Law

Judge (“ALJ”) denied Petitioners’ claims, finding that

they did not establish a causal connection between

their illnesses and the alleged plutonium exposure.

Petitioners appealed to the Benefits Review Board,

which affirmed. We now deny the petition for review.

I. Background

On January 21, 1968, a United States Air Force

B-52 bomber carrying four nuclear weapons crashed

A3

eight miles from the Thule Airbase in Greenland. The

crash destroyed the nuclear weapons on board,

releasing radioactive materials including plutonium.

Soon thereafter, the Air Force began a cleanup effort

dubbed operation “Crested Ice,” wherein military

personnel extracted contaminated debris, snow, and ice

from the crash site and Danish civilian personnel

assisted in packaging and transporting the materials

out of Greenland. The operation spanned from January

to September 1968.

In anticipation of the cleanup effort, the United

States military instituted various precautions for the

workers. The military established a “hazard control” or

“zero line” near the crash site, which indicated the last

point at which radiation levels remained at zero. The

military then cordoned-off the “hot zone” where

radiation levels existed. Danish civilian personnel were

not allowed to enter the hot zone, and the United

States military personnel who did enter the hot zone

wore protective gear and were decontaminated upon

their return.

The United States military then began the cleanup

operation which consisted of three phases. During

Phase I, United States military personnel collected

debris from the crash site, returned it to the Thule

Airbase, and packed it into drums and large containers.

Phase II consisted of the removal of contaminated ice

and snow from the hot zone, transportation of the ice

and snow to the base, and the sealing of the materials

in large metal tanks. During this phase, United States

military personnel worked in the hot zone and used a

variety of equipment to move the snow and ice. They

A4

then loaded the snow and ice into plywood boxes and

then onto trucks which took the boxes to a material

transfer point on the zero line. Once on the zero line,

military personnel transferred the boxes to a different

set of trucks driven by Danish civilian employees. The

Danish employees then returned to Thule Airbase with

the materials onboard. At the base, airmen transferred

the contaminated snow and ice into modified fuel tanks

inside a hangar. Once the tanks were full, employees

welded them shut and moved them to another area

known as the “tank farm.” Finally, Phase III consisted

of transferring the melted snow and ice to smaller

tanks and transporting them to the United States by

ship.

Petitioners participated in the cleanup efforts as

civilian employees of the now-defunct Danish

Construction Corporation (“DCC”).

A. The ALJ Proceedings

In 2010, Petitioners filed claims under the Defense

Base Act (“DBA”), an extension of the Longshore and

Harbor Workers’ Compensation Act (“LHWCA”),

seeking compensation for medical conditions that they

allegedly developed as a result of their exposure to

plutonium radiation at Thule, arising out of and in the

course of their employment with DCC. Since DCC was

no longer operational in 2010, Petitioners filed their

claims against two constituent companies: E. Pihl &

Sons (“E. Pihl”) and Topsoe-Jensen & Schroeder Ltd.

(“Topsoe-Jensen”) (collectively, “Respondents”).1

1

E. Pihl was the only company that participated in the

proceedings. Topsoe-Jensen refused to accept service.

A5

In response to the Petitioners’ claims, the Director

of the Office of Workers’ Compensation Programs

(“Director”) joined the claim proceedings. Petitioners

objected to the Director’s participation but to no avail.

In response to their objections, the ALJ explained that

20 C.F.R. § 702.333(b) explicitly authorizes the

Solicitor of Labor’s designee -- in this case, the Director

of the Office of Workers’ Compensation Programs

(“OWCP”) -- to “appear and participate in any formal

hearing held pursuant to these regulations on behalf of

the Director as an interested party.” The ALJ rejected

Petitioners’ arguments a second time, explaining that

the Director’s participation was especially warranted in

this case because E. Pihl had filed for bankruptcy

during the litigation and thus any compensation

awarded would potentially be paid from the Longshore

Special Fund.2

Following months of sparring, the ALJ held a series

of extensive hearings beginning on December 4, 2012,

wherein the parties presented evidence, made

arguments, and resolved a host of procedural and

evidentiary issues. It was also during these hearings

that E. Pihl filed for bankruptcy in Denmark.

2

The Special Fund is part of the LHWCA’s compensation scheme

and is ultimately administered by the Secretary of Labor. Most

importantly for our purposes, the LHWCA permits the Secretary

to compensate employees with money from the Special Fund in

cases where an employer’s insolvency precludes payment from the

employer. B.S. Costello, Inc. v. Meagher, 867 F.2d 722, 724-25 (1st

Cir. 1989); 33 U.S.C. § 918(b) (stating that the Director may pay an

award from the Special Fund “where judgment cannot be satisfied

by reason of the employer’s insolvency”).

A6

Notwithstanding, E. Pihl’s counsel continued

participating in the proceedings through the close of

the evidentiary record.

During the evidentiary hearings, the parties

presented significant amounts of evidence primarily

consisting of testimony from the Petitioners and the

testimony and reports of several experts and fact

witnesses. We recount the most relevant evidence

below.

i. Petitioners’ Testimony

Petitioners Jeffrey G. Carswell, Heinz Eriksen, and

Bent Hansen3 took the stand to explain their roles in

the cleanup operation and describe their medical

conditions. Carswell testified that he worked at the

Thule Airbase as a shipping clerk. During the cleanup,

his position required him to assist with the preparation

of descriptive labels that were then attached to the

sealed drums and tanks containing contaminated snow

and ice from the crash. He was also responsible for the

logistics of shipping the closed tanks to the United

States and, as a result, frequently went to the tank

farm (the area where the sealed tanks were held),

although he did not handle the tanks himself. Carswell

explained that military and civilian personnel worked

closely together on the base and that he traveled near

the crash site on several occasions. Carswell also

explained that he frequently added ice from a nearby

fjord to his drinks while working on the cleanup.

3

Bent Hansen passed away on October 23, 2019. On January 8,

2021, this court granted counsel’s motion to substitute Hansen

with his son, Svenning Tvede Juhl, as his personal representative.

A7

Carswell developed a series of stomach and esophageal

issues in 1984 and has undergone several surgeries.4

He also developed thyroid issues in 2005.

Eriksen, for his part, worked as a fireman at the

Thule Airbase. During the cleanup operation, he

observed the welding of the tanks which contained

contaminated snow and ice and put out fires that

resulted from the welding. Eriksen explained that

when he worked in the hangars, the floor was often wet

with, ostensibly, contaminated melted snow and ice

from the crash site and that a fog formed in the hangar

when the snow and ice were transferred into the tanks.

Eriksen witnessed, and put out, several fires while

working on the cleanup. He stated that he was

diagnosed with kidney cancer and had surgery to

remove his tumorous left kidney in 2005.

Hansen worked as a carpenter at the airbase.

During the cleanup, he constructed the “scoops” that

military personnel used to remove material from the

crash site and also built the chutes that personnel used

to funnel snow and ice into the fuel tanks. Like

Eriksen, Hansen explained that when he built or

delivered materials, the hangar floor was covered with

water from the melting contaminated ice and snow,

and there was often a fog in the hangar during the

tank-filling process. Additionally, Hansen witnessed at

least three fires in Hangar #2, which were caused by

the interaction between the heat from the welding and

4

Carswell suffers from various stomach- and esophageal-related

ailments. Chief among them, he has been diagnosed with stomach

cancer and Barrett’s esophagus.

A8

the petrochemical residue in the tanks. On occasion,

Hansen also brought timber to the tank farm. Hansen

was diagnosed with kidney cancer and had his left

kidney removed in 2002.

ii. Battle of the Experts

Petitioners, E. Pihl, and the Director also offered

several expert witnesses and reports on the central

issue of whether there was a causal nexus between

Petitioners’ alleged exposure to plutonium radiation

and their respective illnesses.

E. Pihl presented the testimony of four experts and

one fact witness. We begin with Dr. Lynn Anspaugh.

Dr. Anspaugh testified as an expert in the field of

radiation dosimetry -- that is, the science of measuring

radiation exposure. In addition to testifying, Dr.

Anspaugh submitted a thorough report concluding

that, given Petitioners’ responsibilities at Thule, it is

“likely” that the Petitioners “did not receive any dose

[of radiation] from the cleanup activities.” At the

hearing, Dr. Anspaugh explained that plutonium

radiation -- which mostly emits alpha particles -cannot penetrate most materials, including a piece of

paper or skin. Accordingly, given the physical

properties of plutonium radiation, and the type of work

Petitioners performed, if the Petitioners had been

exposed to plutonium at all, the exposure would have

been extremely small. Moreover, Dr. Anspaugh

calculated that if Petitioners had been exposed, their

radiation dose would not have exceeded a small

fraction of the radiation dose humans generally receive

from one year’s exposure to background radiation in

their everyday lives.

A9

Dr. Fred Mettler also testified as an expert and

submitted a report. Dr. Mettler is a physician in

Radiology and Nuclear Medicine at the New Mexico

Federal Regional Medical Center, Professor and Chair

Emeritus of the Department of Radiology and Nuclear

Medicine at the University of New Mexico, and an

expert in the effects of plutonium radiation on the

human body. Based on his extensive experiences and

relevant scientific authority, he explained that

Petitioners’ illnesses are simply not caused by

plutonium exposure. Relying on his expertise and

authoritative scientific sources, he explained that

plutonium radiation exposure had been extensively

studied and that “if you’re going to be looking for

cancers from plutonium, you’re going to look in . . . the

liver, and skeleton, and lung.” Even more, Dr. Mettler

explained that “there is no association between

plutonium and kidney or stomach cancer.” In his view,

there was good reason for that conclusion based on both

the physical properties of plutonium particles and

because plutonium exposure typically occurs through

inhalation and would, therefore, not affect the kidney

or stomach. He also explained that the ingestion of

plutonium, on the other hand, presented few concerns

because plutonium is very insoluble and, therefore,

cannot enter the bloodstream, and also passes through

the stomach quickly. He reiterated that plutonium has

not been linked to stomach or kidney cancer even after

significant exposures over long periods of time. Finally,

he concluded that the likelihood that Petitioners’

cancers were not due to plutonium exposure was higher

than 99.9%.

A10

Dr. Mettler also opined on Carswell’s thyroid issues,

explaining that the dose of radiation required to make

a thyroid non-functional would result in a much higher

dose to the lungs, which would prove fatal. Therefore,

in his opinion, Carswell’s thyroid issues were

“absolutely not” related to radiation.

E. Pihl also presented the expert testimony of Dr.

Paul Russo. Dr. Russo is an attending surgeon in the

Urology Service at the Memorial Sloan-Kettering

Cancer Center and is also a professor of Urology at the

Weill Cornell Medical College. His research and clinical

work focus on kidney cancer. In his report, he

explained that he was tasked with reviewing the

opinion of Petitioners’ expert, Dr. Albert Robbins,

concerning Eriksen’s and Hansen’s kidney tumors and

cancers. After reviewing Petitioners’ medical records,

Dr. Russo concluded that it was not possible to

determine the etiology of Eriksen’s and Hansen’s

kidney tumors, and although Dr. Robbins linked their

kidney issues to plutonium exposure, it was “equally if

not more probable that [Petitioners had] sporadic renal

tumors” that are common across the world. Moreover,

Dr. Russo explained that specifically for Eriksen, his

history as a heavy smoker “could have easily been a

causative factor in the formation” of the tumor.

Next up is Dr. Allen Turnbull, emeritus attending

surgeon and member of the Memorial Sloan-Kettering

Cancer Center and its Gastric and Mixed Tumor

Surgery Service. His work focuses on general and

thoracic surgical oncology and critical care medicine.

Testifying as an expert, Dr. Turnbull explained that

Carswell’s stomach cancer and esophagus issues were

A11

likely not caused by exposure to plutonium. Dr.

Turnbull testified that assuming Carswell had stomach

cancer and esophagus issues (which he, based on

Petitioners’ proffered evidence, described as Barrett’s

esophagus), those conditions were extremely unlikely

to be related to plutonium exposure. Dr. Turnbull

explained that it was more likely than not that his

stomach cancer was caused by an H. pylori infection or

acid reflux -- two common causes of stomach cancer.

Dr. Turnbull further explained that plutonium

ingestion is unlikely to have any ill effect on the

stomach because plutonium particles pass through the

stomach quickly and because the cells of the stomach

lining are replaced every seven days.

E. Pihl also presented the fact testimony of Dr.

Knud Juel.5 Dr. Juel works for the Southern Danish

University’s National Institute for Public Health. Dr.

Juel has a master’s degree in statistics and a Ph.D. in

epidemiology and has conducted several

epidemiological studies concerning the health effects of

the aircraft crash in Thule, including his Ph.D. thesis

and three published articles. Dr. Juel compared DCC

workers in Thule during the cleanup to those workers

who worked at Thule before the crash and after the

cleanup ended. The study concluded that there was no

difference in illness or mortality rates between the

DCC workers who were at Thule during the cleanup

and the DCC workers who were at Thule at other times

before or after the cleanup.

5

As an employee of the Danish government, Dr. Juel was

prohibited from testifying as an expert witness.

A12

Petitioners, however, produced experts of their own.

Drs. Albert Robbins, Graeme Edwards, and Frank

Barnaby all agreed that Petitioners’ illnesses were

caused by their work at Thule.

Dr. Robbins is a medical doctor who specializes in

preventive, occupational and environmental medicine.

He submitted a report in support of Hansen and

Eriksen. In both reports, Dr. Robbins asserted, without

much support, that after reviewing their medical

records, and reading their statements concerning their

involvement in the clean-up operation, it was

reasonably probable that each of their kidney tumors

and diagnosed cancers were associated with the risk of

plutonium inhalation. Dr. Robbins did not offer live

testimony.

Next up, Dr. Edwards. Dr. Edwards is a general

practitioner with interests in Dermatology, Obstetrics,

Gynecology, and Fertility issues. He was also

Carswell’s treating physician “for several years for a

number of medical conditions.” Dr. Edwards submitted

a one-page letter stating that Carswell suffered from

hypothyroidism since 2005, and that there is a

“reasonable degree of probability that his

hypothyroidism is attributable to the long term effects

of exposure to such radiation.” Dr. Edwards did not

offer live testimony either.

Together, Petitioners also provided the testimony,

and report authored by Dr. Frank Barnaby. Dr.

Barnaby has a Ph.D. in nuclear physics and has

worked extensively in that field. He submitted a report

and testified as to the general properties of nuclear

weapons, plutonium, and how much plutonium he

A13

believed was dispersed in the Thule crash. In his

report, he concluded that “[p]articipation in search and

rescue and/or ‘clean-up’ operations, in the manner

described by the former Thule workers, would have

seriously exposed them to the risks of plutonium

inhalation and the long-term development of cancer.”6

Finally, the Director submitted the reports of Dr.

Jerome Siegel, a specialist in occupational and internal

medicine, and a certified medical examiner. Dr. Siegel

examined the Petitioners and submitted written

reports for each one of them as an independent medical

examiner. Following thorough interviews and

examinations, Dr. Siegel found that Petitioners

suffered no acute illnesses or health effects from

radiation exposure.

B. The ALJ and Board’s Decision

Following the hearings, the ALJ denied Petitioners’

claims in a 164-page decision and reached two

conclusions that are relevant to us today. First, after

carefully reviewing the evidence and applying the

correct legal standard, the ALJ found that Petitioners

did not establish a causal nexus between their illnesses

and plutonium radiation. Relying on the expert

testimony of Drs. Mettler, Russo, and Turnbull, the

6

Dr. Barnaby opined, as a general matter, that long-term exposure

to plutonium radiation could be hazardous and result in some form

of cancer. He also commented that the inhalation of plutonium

particles could lead to the development of lung cancer, and that it

was possible that plutonium particles in the lungs could make

their way to other organs, thereby increasing the risk of cancer in

those areas.

A14

ALJ concluded that even if the Petitioners had been

exposed to a detectable dose of plutonium radiation, the

weight of the scientific consensus was that plutonium

radiation does not cause the illnesses that the

Petitioners suffered from.7 The ALJ explained that in

order to find otherwise, she would have to “discount the

opinions of highly credentialed physicians and ignore

a multitude of medical and epidemiological studies, in

favor of the ‘vague’ . . . [or] ‘conclusory’ opinion[s] [of

the Claimants’ experts.]”

Second, the ALJ once again found that the Director

properly participated in the litigation. She relied on her

prior decisions and additionally noted that the

“Director acted prudently to safeguard the potential

liability of the Longshore Act’s Special Fund.”8

Petitioners appealed to the Benefits Review Board

alleging, among other things, error in the ALJ’s

causation analysis and the ALJ’s decision to allow the

Director to participate in the proceedings. The Board

affirmed, holding that the ALJ’s finding that

Petitioners’ illnesses were not attributable to

plutonium exposure was supported by substantial

evidence. The Board likewise affirmed the ALJ’s

7

Although not relying on the testimony, the ALJ first explained,

based on the expert testimony of Dr. Anspaugh, that it was

unlikely that the Petitioners were exposed to high levels of

radiation at all.

8

The ALJ also found that certain portions of the Petitioners’ DBA

claim were untimely. By proceeding to the merits of the entirety of

the DBA claim, the ALJ also denied the purported untimely claims

on the merits as well.

A15

decision allowing the Director to participate in the

proceedings, relying on the explicit language of the

applicable regulations.9

Petitioners filed a petition for review of the Board’s

decision.10

II. Standard of Review

We review the Board’s decisions on questions of law

de novo and determine “whether the Board adhered to

the ‘substantial evidence’ standard when it reviewed

the ALJ’s factual findings.” Bath Iron Works v. Brown,

194 F.3d 1, 3 (1st Cir. 1999). “In reviewing for

substantial evidence, we assess the record as a whole,

and we will affirm so long as we are satisfied that the

record contains ‘such relevant evidence as a reasonable

mind might accept as adequate to support a

9

The Board did not address the ALJ’s decision on the timeliness

of Petitioners’ claims, finding the causal connection point

dispositive.

10

Petitioners timely filed their petition with the United States

Court of Appeals for the Second Circuit. Soon thereafter, upon the

Director’s motion, the Second Circuit transferred the petition to

this court. We have jurisdiction because Petitioners filed their

claims with the District Director, Office of Workers’ Compensation

Programs, in Boston, Massachusetts. See Truczinskas v. Dir.,

OWCP, 699 F.3d 672, 674-76 (1st Cir. 2012); 42 U.S.C. § 1653(b)

(stating that petitions for review should be filed “wherein is located

the office of the deputy commissioner whose compensation order is

involved”). Petitioners suggest that their petition for review should

be filed in the district court, not the court of appeals. We have

rejected this same argument in the past and reiterate that we have

jurisdiction over petitions for review of a Benefits Review Board

decision under the Defense Base Act. Id.

A16

conclusion.’” Peña-Garcia v. Dir., OWCP, 917 F.3d 61,

64 (1st Cir. 2019) (quoting Bath Iron Works Corp. v.

U.S. Dep’t of Labor, 336 F.3d 51, 56 (1st Cir. 2003)).

Substantial evidence is “more than a scintilla” and does

not approach the familiar preponderance of the

evidence standard found in civil cases. Bath Iron Works

Corp., 336 F.3d at 56. Moreover, on review, “we will

accept the findings and inferences drawn by the ALJ,

whatever they may be, unless they are ‘irrational.’” Id.

(quoting Barker v. U.S. Dep’t of Labor, 138 F.3d 431,

434 (1st Cir. 1998)). It is the ALJ’s prerogative, in the

first instance, “to draw inferences and make credibility

assessments, and we may not disturb [their] judgment

and the Board’s endorsement of it so long as the

findings are adequately anchored in the record.” Bath

Iron Works Corp. v. Dir., OWCP, 244 F.3d 222, 231 (1st

Cir. 2001). The substantial evidence standard is

“notoriously difficult to overcome.” Bath Iron Works

Corp., 336 F.3d at 56.

III. The Director’s Participation in the

Proceedings

As they did before the ALJ and the Board,

Petitioners assert that the Director improperly

participated in the proceedings below. Petitioners take

on a variety of positions, essentially arguing that

Supreme Court precedent as well as both the purpose

and text of the LHWCA and relevant regulations

prohibit the Director from joining LHWCA and DBA

litigation as a party. Further, Petitioners argue that

by permitting the Director to participate, the ALJ and

Board committed reversible error. Reviewing de novo,

we find Petitioners’ arguments meritless.

A17

In 1927, the LHWCA established a comprehensive

federal workers’ compensation scheme requiring

certain employers to compensate covered employees

injured in the course of their employment. Dir., OWCP

v. Newport News Shipbuilding and Dry Dock Co., 514

U.S. 122, 125 (1995) (hereinafter “Harcum”); 33 U.S.C.

§§ 902(2), 903(a). The Act aimed to produce “fair and

efficient resolution of a class of private disputes,

managed and arbitered by the Government” and is best

understood as a compromise between the competing

interests of employers and injured workers. Harcum,

514 U.S. at 131. In 1941, Congress enacted the DBA

which, drawing upon the LHWCA, “aimed to provide

workers’ compensation covering, among others,

individuals employed outside the continental United

States under contracts with or approved by the federal

government.” Truczinskas v. Dir., OWCP, 699 F.3d

672, 674 (1st Cir. 2012) (citing 42 U.S.C.

§ 1651(a)(4)-(5)). The DBA incorporated much of the

LHWCA scheme, and with limited exceptions “the

provisions of the [LHWCA], . . . as amended, . . . apply

in respect to the injury or death of any employee” under

the DBA. 42 U.S.C. § 1651(a).

Apart from the compensation scheme, the LHWCA

also assigns a variety of responsibilities to the

Secretary of the Department of Labor, one of which

includes the authority to make rules and regulations

“as may be necessary in the administration of this

[Act].” 33 U.S.C. § 939(a). One of those regulations, 20

C.F.R. § 702.333(b), permits “[t]he Solicitor of Labor or

his designee [to] appear and participate in any formal

hearing held pursuant to these regulations on behalf of

the Director as an interested party.” See also 20 C.F.R.

A18

§ 701.101(a) (making § 702.333 applicable to the DBA).

The Secretary of Labor has also charged the Director of

the OWCP with both the administration and

enforcement of the LHWCA/DBA and, as a result, the

Director often appears as “a litigant in LHWCA cases

as a representative of the Department of Labor.”

Cunningham v. Dir., OWCP, 377 F.3d 98, 105 n.6 (1st

Cir. 2004) (internal citation omitted); see 20 C.F.R.

§ 701.201.

Despite the regulation’s explicit language,

Petitioners argue that the Director inappropriately

participated as a litigant below. Petitioners rely on the

Supreme Court’s decision in Harcum and insist that it

stands for the proposition that the LHWCA does not

“confer party-litigant standing on the Secretary, (hence

the Director), in ALJ or [Board] proceedings.” But

Harcum says no such thing. In Harcum, the Director

petitioned the court of appeals to review an ALJ and

Board ruling granting only partial benefits to a

claimant under the LHWCA. 514 U.S. at 124-25. The

Supreme Court found that the Director did not have

standing to challenge the ruling before the court of

appeals because the Director was not adversely affected

or aggrieved by the decision within the meaning of

§ 921(c) of the LHWCA. Id. at 136. That decision did

not involve the Director’s ability to join LHWCA

litigation before the ALJ or the Board and does not

support Petitioners’ argument.

Indeed, relevant precedent establishes that the

Director may participate as a litigant before the ALJ

and the Board. Following Harcum, the Supreme Court

explained that the Director plays a significant role

A19

before the ALJ and Board in LHWCA cases, noting that

“the Director has also been authorized by the Secretary

of Labor to appear as a litigant before the relevant

adjudicative branches of the Department of Labor, the

ALJ, and the Benefits Review Board.” Ingalls

Shipbuilding, Inc. v. Dir., OWCP, 519 U.S. 248, 263

(1997) (citing 20 C.F.R. § 702.333(b)). We have also

explained that “[t]he Director is charged with the

administration and enforcement of the LHWCA, and

also is often a litigant in LHWCA cases as a

representative of the Department of Labor.”

Cunningham, 377 F.3d at 105 n.6 (internal citation

omitted).

Faced with the weight of this precedent, Petitioners

press an alternative argument. They posit that the ALJ

and Board erred by allowing the Director to participate

as an interested party for the specific reason of

protecting possible Special Fund payments. But, again,

we are unconvinced. As the administrator of the

Special Fund, the Director may provide compensation

from the fund to an aggrieved employee when the

employer is unable to pay due to insolvency. 33 U.S.C.

§§ 944(a), 918(b). Given that DCC had ceased

operations, it was reasonable for the Director to

assume that the Special Fund could be implicated if

Petitioners’ claims were successful. Cf. Dir., OWCP v.

Newport News Shipbuilding and Dry Dock Co., 8 F.3d

175, 181 (4th Cir. 1993) (explaining that the Director

“has an obligation to protect [the fund] from unjustified

claims” (alteration in original) (quoting Dir., OWCP v.

Newport News Shipbuilding & Dry Dock Co., 676 F.2d

110, 113 (4th Cir. 1982))). Indeed, that assumption

proved correct when E. Pihl declared bankruptcy

A20

during the evidentiary proceedings before the ALJ,

rendering the Special Fund potentially responsible for

any compensation due. Acknowledging the Director’s

responsibility, the ALJ and the Board permissibly

allowed the Director to participate for the purpose of

protecting the Special Fund.11

As a last resort, Petitioners insist that the

Director’s participation below was ultra vires and

would result in the Director reviewing the Board’s

decision. Petitioners do not give us much to go on as to

why the Director’s participation would be ultra vires or

an unlawful delegation of power. What we do know,

however, is that Congress explicitly authorized the

Secretary of Labor to make needful rules and

regulations and that Petitioners have not explained

how Congress or the Secretary of Labor went beyond

their authority by doing so. The argument is, therefore,

waived. See United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990) (“[I]ssues adverted to in a perfunctory

manner, unaccompanied by some effort at developed

argumentation, are deemed waived. It is not enough

merely to mention a possible argument in the most

skeletal way, leaving the court to do counsel’s work,

create the ossature for the argument, and put flesh on

its bones.”) (internal citation omitted). Further, as we

have previously explained, by statute, the Director does

not review the decisions of the Board. Neely v. Benefits

Review Bd., 139 F.3d 276, 281 (1st Cir. 1998). That

11

Moreover, the relevant statutes and regulations governing

appeals to the Board permit the Director to participate in the

appeal as a party. See, e.g., 20 C.F.R. §§ 801.102(a), 801.2(a)(10);

33 U.S.C. § 921(b)(3).

A21

responsibility rests with the circuit court of appeals.

Truczinskas, 699 F.3d at 674-75; Wood v. U.S. Dep’t of

Labor, 112 F.3d 592, 595 (1st Cir. 1997).

Accordingly, we find that the Director properly

participated in the proceedings below.

IV. The Defense Base Act Claim

Petitioners also challenge the Board’s merits

decision. In denying Petitioners’ claims, the ALJ found

that the weight of the medical and scientific evidence

established that the Petitioners’ illnesses were not

related to their alleged exposure to plutonium radiation

at Thule. The Board, in affirming, found that the ALJ’s

conclusion was supported by substantial evidence.

Petitioners now claim before us that the Board’s

decision was erroneous, raising a litany of arguments.

The LHWCA provides compensation for certain

injuries “arising out of and in the course of

employment.” 33 U.S.C. § 902(2); Battelle Mem’l Inst.

v. DiCecca, 792 F.3d 214, 217 (1st Cir. 2015). The Act

defines injury, in part, as “such occupational disease or

infection as arises naturally out of such employment or

as naturally or unavoidably results from [an]

accidental injury.” 33 U.S.C. § 902(2). To receive

compensation, a claimant must establish a “causal

nexus between [his] malady and his employment

activities.” Bath Iron Works Corp. v. Fields, 599 F.3d

47, 52 (1st Cir. 2010) (alteration in original) (quoting

Sprague v. Dir., OWCP, 688 F.2d 862, 865 (1st Cir.

1982)).

We analyze LHWCA and DBA claims through a

burden-shifting framework, which ultimately places

A22

the burden of proving the requisite elements of

coverage with the claimant. Id. at 52-53, 53 n.1. Under

this framework, the claimant must first make out a

prima facie case by establishing “(1) that he ‘sustained

physical harm’ and (2) ‘that conditions existed at work

which could have caused the harm.’” Bath Iron Works

Corp. v. Preston, 380 F.3d 597, 605 (1st Cir. 2004)

(quoting Susoeff v. S.F. Stevedoring Co., 19 Ben. Rev.

Bd. Serv. 149, 151 (1986)). The question at this stage is

not whether there is a causal nexus, but rather,

whether the claimant can show merely “that the harm

could have been caused by his working conditions.” Id.

Once the claimant establishes a prima facie case,

§ 920(a) kicks in, which affords claimants a

presumption that the injury was caused by his working

conditions and is compensable under the DBA. See id.;

33 U.S.C. § 920(a). That presumption, we have

explained, attaches to the Petitioners’ injury being

causally related to their employment. Fields, 599 F.3d

at 51-52. Next, the employer may rebut that

presumption by demonstrating with substantial

evidence -- that is, “such relevant evidence as a

reasonable mind might accept as adequate to support

a conclusion,” Brown, 194 F.3d at 5 (quoting Sprague,

688 F.2d at 865) -- “that the injury was not caused by

the claimant’s working conditions,” Preston, 380 F.3d

at 605. If the employer severs the causal connection

between the injury and the claimant’s working

conditions, “the presumptions ‘falls’ out of the case.” Id.

(quoting Sprague, 688 F.2d at 866 n.7). Then, the

burden shifts back to the claimant who must show, by

a preponderance of the evidence, that the injuries were

in fact caused by the working conditions “based on the

record as a whole.” Brown, 194 F.3d at 5.

A23

Down below, Petitioners successfully established a

prima facie case, triggering the § 920(a) presumption.

E. Pihl, in turn, successfully rebutted that presumption

through the testimony of Drs. Mettler, Turnbull, and

Russo. The ALJ then reviewed the evidence as a whole

and found that Petitioners did not establish a causal

connection between their illnesses and the alleged

plutonium radiation exposure at Thule. According to

Petitioners, however, the ALJ’s finding was not

supported by substantial evidence. The record,

however, does not support their position.

E. Pihl produced significant amounts of evidence

establishing that plutonium radiation does not cause

Petitioners’ illnesses. The ALJ found that Dr. Mettler

was highly qualified to comment on these issues as a

physician in Radiology and Nuclear Medicine who

focused on the effects of plutonium radiation on the

human body. Notably, Dr. Mettler explained that

plutonium radiation primarily manifests in lung, liver,

and bone cancer, and that plutonium has never been

shown to cause kidney or stomach cancer. As for

Carswell’s thyroid issues, Dr. Mettler explained that

the dose of plutonium radiation needed to make a

thyroid non-functional would have resulted in a higher

dose to the lungs, which would have proved fatal.

Dr. Russo provided validating testimony. A surgeon

at Memorial Sloan-Kettering Cancer Center and

professor of Urology, he explained that, unlike

Petitioners’ expert’s claim, it was not entirely possible

to determine the etiology of Eriksen’s and Hansen’s

kidney tumors. But given the type of kidney tumors

they had, it was “equally if not more probable that

A24

[Petitioners had] sporadic renal tumors” that are

common across the world, and therefore not caused by

plutonium radiation. Importantly, Dr. Russo explained

that Eriksen’s smoking history could have also been

the cause of his kidney cancer. Then, Dr. Turnbull, who

is a member of the Memorial Sloan-Kettering Gastric

and Mixed Tumor Surgery Service, explained that

Carswell’s illnesses are not caused by plutonium

radiation. He explained with precision that Carswell’s

stomach cancer and esophagus issues were likely due

to acid reflux or an H. pylori infection. Taken together,

the testimony of E. Pihl’s experts certainly provided

substantial evidence from which a reasonable person

could conclude that plutonium radiation, if any, did not

cause the ailments suffered by the Petitioners, and

therefore rebutted the § 920(a) presumption. See

Sprague, 688 F.2d at 867 (finding that the testimony of

two expert doctors provided substantial evidence on

causation question); Bath Iron Works Corp. v. Dir.,

OWCP, 137 F.3d 673, 675-76 (1st Cir. 1998) (finding

that the testimony of one doctor provided substantial

evidence on causation question).

There is likewise substantial evidence to conclude

that following the rebuttal of the presumption,

Petitioners did not establish, on the record as a whole,

a causal nexus between their alleged plutonium

exposure and their illnesses. The ALJ found that

Petitioners’ expert witnesses offered vague and

conclusory testimony and that in order for the ALJ to

have relied on that testimony, she had to credit the

“vague opinions” of Dr. Robbins and Dr. Edwards and

the “conclusory opinion of Dr. Barnaby” over the

Respondents’ “highly-credentialed physicians and

A25

ignore a multitude of medical and epidemiological

studies.” That finding, as we have recounted, was

rational and supported by substantial evidence.

Faced with this reality, Petitioners urge us to revisit

the proceedings themselves. Petitioners complain that

neither the Respondents’ expert witnesses, nor the

independent medical examiner, subjected the

Petitioners to a urine test in order to determine

whether they were in fact exposed to plutonium

radiation.12 Given that failure, Petitioners insist that

no medical testimony proffered by E. Pihl was

sufficient to rebut causation. We are not convinced. E.

Pihl’s medical experts established that even if

Petitioners were exposed to plutonium radiation,

plutonium does not cause the types of illnesses that

Petitioners suffer from. Moreover, Petitioners were

free to conduct urine tests of their own accord and,

ultimately, it was Petitioners, not E. Pihl, who bore the

burden of proof.13

12

The use of a urine test was the subject of spirited argumentation

before the ALJ because it would have likely established

whether Petitioners were exposed to plutonium radiation.

During those arguments, Petitioners moved to compel Dr. Siegel,

the independent medical examiner, to conduct a urine analysis,

but the ALJ denied that petition, deferring to Dr. Siegel’s

medical expertise in choosing which exams to conduct. The Board

affirmed.

13

Moreover, the ALJ did not abuse her discretion by deferring to

the independent medical examiner -- an experienced medical

examiner -- as to what type of exams would be helpful in his

evaluation. In any event, Petitioners could have sought the

opinion of a second independent medical examiner under 20 C.F.R.

§ 702.409.

A26

Next, Petitioners attack the substance of E. Pihl’s

expert’s testimony. They fault Dr. Mettler for relying

on an “atomic bomb model of single instance exposure”

instead of a long-term model in assessing cancer risk,

and they argue that his testimony was undermined by

his purported admission that it was statistically

difficult to ascertain cancer risks in populations that

are exposed to low levels of radiation. They also point

to one of their exhibits, a report by the Center for

Environmental Health Studies, for the proposition that

radiation from plutonium could be shown to cause

kidney and stomach cancer and thyroid issues, and

suggest that it, too, undermined Dr. Mettler’s

testimony. Finally, Petitioners attack the credibility of

Drs. Russo and Turnbull, claiming that their testimony

should be given little weight because they are not

experts in the medical effects of radiation. By doing so,

Petitioners invite this court to reweigh the evidence

which we, of course, cannot do. See Bath Iron Works

Corp., 244 F.3d at 231; Peña-Garcia, 917 F.3d at 64. In

any event, the ALJ’s findings were rational and firmly

anchored in the record. Despite Petitioners’ attacks,

Dr. Mettler’s testimony did in fact rely on various

modes of exposure which he discussed and attached to

his report; none of which have established an

association between plutonium exposure and kidney or

stomach cancer. Second, Dr. Mettler did not admit to

the statistical difficulty Petitioners assert. In fact, Dr.

Mettler explained that at low doses of radiation, if

there is a risk, it is so minuscule that no scientist has

been able to identify it after sixty years of targeted

studies. As for Petitioners’ proffered exhibit, the ALJ

explained that the article did not “differentiate between

radiation in general and plutonium radiation

A27

specifically, which was the type of radiation released in

the Thule incident.” The ALJ was free to weigh the

probative value of the article in light of the rest of the

testimony and did so here. Finally, Drs. Turnbull and

Russo testified well within the bounds of their

expertise, opining on the likely causes of Carswell’s

stomach cancer and esophagus issues and Eriksen’s

and Hansen’s kidney tumors respectively.

Petitioners also complain that the ALJ erroneously

permitted Dr. Juel to testify as a fact witness.

Remember, Dr. Juel could only testify as a fact witness

because his employment by a Danish state university

prohibited him from testifying as an expert. He instead

testified about the facts concerning his several

epidemiological studies of the Thule workers.

Petitioners do not posit any good reason for why the

ALJ abused her discretion. See Pan Am Rys., Inc. v.

U.S. Dep’t of Labor, 855 F.3d 29, 36 (1st Cir. 2017)

(applying abuse of discretion standard to ALJ’s decision

to exclude evidence). Dr. Juel’s testimony was relevant

to the occupational hazards of civilian employees

working at Thule, and the ALJ also limited Dr. Juel’s

testimony to the facts concerning the work he and his

colleagues performed in those studies. Even so, Dr.

Juel’s testimony was not a necessary part of the ALJ’s

decision, and only bolstered E. Pihl’s expert’s

testimony.

Petitioners finally claim that the ALJ erred by

refusing to admit evidence regarding the 1988 death of

Karl Banz -- a civilian employee who also worked at

Thule during Operation Crested Ice. We again perceive

no abuse of discretion in that decision. See id. Banz

A28

was not a party to the litigation and had different

responsibilities during the cleanup. Any testimony

concerning his work or illnesses would have little

relevance and probative value to the question of

whether the Petitioners’ ailments were caused by

plutonium radiation.

V. Conclusion

For the foregoing reasons, we deny the petition for

review.

A29

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 19-1630

[Filed: August 11, 2021]

__________________________________________

JEFFREY G. CARSWELL;

)

HEINZ ERIKSEN; BENT HANSEN

)

)

Petitioners

)

)

v.

)

)

E. PIHL & SONS; TOPSOE-JENSEN &

)

SCHROEDER LTD; DANISH

)

CONSTRUCTION CORPORATION;

)

DIRECTOR, OFFICE OF

)

WORKERS’ COMPENSATION

)

PROGRAMS, UNITED STATES

)

DEPARTMENT OF LABOR

)

)

Respondents

)

__________________________________________)

Before

Howard, Chief Judge,

Lynch, Lipez, Thompson,

Kayatta and Barron, Circuit Judges.

A30

ORDER OF COURT

The petition for rehearing having been denied by

the panel of judges who decided the case, and the

petition for rehearing en banc having been submitted

to the active judges of this court and a majority of the

judges not having voted that the case be heard en banc,

it is ordered that the petition for rehearing and the

petition for rehearing en banc be denied.

By the Court:

Maria R. Hamilton, Clerk

cc:

Ian Anderson

Sarah B. Biser

Matthew W. Boyle

Mark A. Reinhalter

Thomas O. Shepherd, Jr.

Gary K. Stearman

A31

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 19-1630

[Filed: October 18, 2019]

__________________________________________

JEFFREY G. CARSWELL;

)

HEINZ ERIKSEN;

)

BENT HANSEN,

)

)

Petitioners,

)

)

v.

)

)

E. PIHL & SONS; TOPSOE-JENSEN &

)

SCHROEDER LTD.; DANISH

)

CONSTRUCTION CORPORATION;

)

DIRECTOR, OFFICE OF WORKERS’

)

COMPENSATION PROGRAMS, UNITED )

STATES DEPARTMENT OF LABOR,

)

)

Respondents.

)

__________________________________________)

ORDER OF COURT

“Petitioners’ motion for 28 U.S.C. § 1254(2)

certification, alternatively for a stay pending certiorari”

having been denied, the clerk’s office will enter an

updated briefing schedule in the ordinary course.

A32

By the Court:

Maria R. Hamilton, Clerk

cc:

Ian Anderson

Sarah B. Biser Mark A. Reinhalter

Gary K. Stearman

Thomas O. Shepherd Jr.

Matthew W. Boyle

A33

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

19-151

[Filed: June 18, 2019]

___________________________

Jeffrey G. Carswell, et al., )

)

Petitioners,

)

)

v.

)

)

E. Pihl & Sons, et al.,

)

)

Respondents. )

___________________________)

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 18th day of June, two

thousand nineteen.

Present:

Ralph K. Winter,

José A. Cabranes,

Reena Raggi,

Circuit Judges.

A34

Respondent United States Department of Labor,

through its Director of the Office of Workers’

Compensation Programs, moves to transfer this case to

the United States Court of Appeals for the First

Circuit. Petitioners cross-move to certify questions of

law to the Supreme Court pursuant to 28 U.S.C.

§ 1254. Upon due consideration, it is hereby ORDERED

that Petitioners’ cross-motion is DENIED. See

Wisniewski v. United States, 353 U.S. 901, 902 (1957)

(per curiam); Taylor v. Atl. Mar. Co., 181 F.2d 84, 85

(2d Cir. 1950) (per curiam). It is further ORDERED

that Respondent’s motion is GRANTED. See 28 U.S.C.

§ 1631; Serv. Emps. Int’l, Inc. v. Dir., Office of Workers

Comp. Program, 595 F.3d 447, 454 (2d Cir. 2010).

FOR THE COURT:

Catherine O’Hagan Wolfe,

Clerk of Court

/s/ Catherine O’Hagan Wolfe

A35

APPENDIX E

[SEAL]

U.S. Department of Labor

Benefits Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

BRB No. 18-0091

BRB No. 18-0092

BRB No. 18-0093

[Filed: December 11, 2018]

____________________________________

JEFFREY G. CARSWELL

)

)

Claimant-Petitioner

)

)

BENT HANSEN

)

)

Claimant-Petitioner

)

)

HEINZ ERIKSEN

)

)

Claimant-Petitioner

)

)

v.

)

)

E. PIHL & SONS,

)

TOPSOE-JENSEN & SCHROEDER, )

A36

LIMITED, and DANISH

CONSTRUCTION CORPORATION

)

)

)

Employers-Respondents

)

)

DIRECTOR, OFFICE OF

)

WORKERS’ COMPENSATION

)

PROGRAMS, UNITED STATES

)

DEPARTMENT OF LABOR

)

)

Respondent

)

____________________________________)

NOT-PUBLISHED

DECISION and ORDER

Appeals of the Decision and Order – Denying

Benefits of Adele H. Odegard, Administrative Law

Judge, United States Department of Labor.

Ian Anderson, Kew Gardens, New York, for

claimants.

Sarah B; Biser (Fox Rothschild, LLP), New York,

New York, for E. Pihl & Sons.

Matthew W. Boyle (Kate S. O’Scannlain, Solicitor of

Labor; Kevin Lyskowski, Acting Associate Solicitor;

Mark A. Reinhalter, Counsel for Longshore),

Washington, D.C., for the Director, Office of

Workers’ Compensation Programs, United States

Department of Labor.

A37

Before: HALL, Chief Administrative Appeals Judge,

GILLIGAN and ROLFE, Administrative Appeals

Judges.

PER CURIAM:

Claimants appeal the Decision and Order – Denying

Benefits (2012-LDA-00540, 2012-LDA-00541, 2012LDA-00543) of Administrative Law Judge Adele H.

Odegard rendered on a claim filed pursuant to the

provisions of the Longshore and Harbor Workers’

Compensation Act, as amended, 33 U.S.C. §901 et seq.,

as extended by the Defense Base Act, 42 U.S.C. § 1651

et seq. (the Act).1 We must affirm the administrative

law judge’s findings of fact and conclusions of law if

they are rational, supported by substantial evidence,

and in accordance with law. 33 U.S.C. §921(b)(3);

O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc.,

380 U.S. 359 (1965).

Each claimant contends his injury occurred as a

result of the same event. On January 21, 1968, a

United States Air Force B-52 bomber crashed near

Thule Airbase in Greenland. The plane carried nuclear

weapons, and the crash released radioactive plutonium

(Pu-239). The U.S. military commenced clean-up

operations to remove aircraft debris as well as

contaminated ice and snow, loading it into storage

tanks to transport back to the United States. Clean up,

1

The Board granted claimants’ motion to consolidate these cases

for purposes of decision in its Order dated April 9, 2018. The

claims were consolidated for decision by the administrative law

judge as well. The Board denies claimants’ motion for oral

argument, filed September 19, 2018. 20 C.F.R. §§802.305-802.306.

A38

designated “Operation Crested Ice,” lasted from

January to September 1968. Claimants worked for the

Danish Construction Corporation (DCC), a joint

venture of Danish companies. They were assigned to

the airbase and assisted with the clean-up operations.

Claimants allege they were exposed to plutonium

radiation which caused their cancers and resulted in

losses of wage-earning capacity. They filed claims

under the Act in the summer of 2010.2 Decision and

Order at 3-5, 118-119; CX 1; DX 1(a); HX 1.

Claimant Carswell was a shipping clerk responsible

for verifying freight and for preparing documentation

and labels to enable transport and identification of

container contents. He alleges he was exposed to Pu239 while he worked in the hangar in the vicinity of the

loading operations and when he accompanied

inspectors to the “tank farm” where workers

transferred contaminated snow and ice from storage

tanks to transport tanks. Carswell testified he was

diagnosed with stomach and esophageal cancer in 1984

and underwent surgery. Tr. at 114-116. In 2005, he was

diagnosed with a thyroid problem.

Claimant Hansen was a carpenter responsible for

constructing shelters for workers at the crash site,

2

Only two venture companies of the DCC were viable at the time

claimants filed their claims: Pihl & Sons (Pihl or employer) and

Topsoe-Jensen & Schroeder (Topsoe). Topsoe refused service and

refused to participate in the proceedings. While this case was

pending before the administrative law judge, Pihl filed for

bankruptcy in Denmark; the bankruptcy court permitted Pihl’s

counsel to continue in these proceedings, Decision and Order at 34.

A39

shovels for scooping contaminated materials, and

chutes for filling the storage tanks. He alleges he was

exposed to Pu-239 when he delivered timbers and built

shelters at the crash site and when he worked on the

chutes in the vicinity of the loading operations. HX 6.

Hansen was diagnosed with kidney cancer, and he

underwent surgery in 2002 to remove his tumorous left

kidney. HX 3.

Claimant Eriksen was a fireman assigned to

observe the welding of the tanks and put out fires. He

alleges he was exposed to Pu-239 while working in and

near the hangar where the loading operations took

place.3 He testified that the floor of the hangar was

often wet with contaminated melted ice and snow. Tr.

at 176-180, 192-196, 285-290. In 2005, he was

diagnosed with kidney cancer and had surgery to

remove his tumorous left kidney. EX 3; Tr. at 203-209.

The administrative law judge, inter alia, found that:

1) the claims of Carswell and Hansen were untimely

filed;4 2) claimants invoked the Section 20(a), 33 U.S.C.

§920(a), presumption linking their harms to the

3

Eriksen did not work at the crash site; the fire that resulted from

the crash was left to bum itself out. Tr. at 218-219.

4

The administrative law judge also found Eriksen’s claim for

disability due to his surgery to be untimely filed, but his claim for

benefits following his retirement in 2008 is presumed timely.

Decision and Order at 134. At the time of the hearings, Carswell

was working in human resources for a cruise line; Hansen and

Eriksen were retired. Id. at 10, 18, 25.

A40

exposure to Pu-239;5 3) employer rebutted the

presumption; 4) claimants failed to establish a causal

relationship between their exposures and their cancers

on the record as a whole; 5) claimants were not entitled

to a default judgment against Topsoe; and 6) the

Director, Office of Workers’ Compensation Programs

(the Director), was a proper party to the proceedings.

Decision and Order at 139-146, 158-161. She denied the

claims. Id. at 163-164.

Claimants appeal, challenging the administrative

law judge’s findings that two of the claims were not

timely filed, that there is not a causal connection

between their injuries and their employment exposure

to plutonium radiation, and that default judgment was

not warranted against Topsoe.6 Employer responds,

5

The administrative law judge acknowledged employer’s argument

that, although the Thule incident occurred and caused the

dispersion of plutonium radiation, the amount of exposure was

small and could not have caused claimants’ conditions. Decision

and Order at 145.

6

Claimants also appeal “all related motions” decided during the

proceedings before the administrative law judge; however, in

addition to the denial of a default judgment, they specifically

challenge only two other orders. Claimants first contend the

administrative law judge erred in admitting Dr. Juel’s testimony

and reports into evidence because he was not an expert witness.

Tr. at 1755-1766. The administrative law judge has great

discretion concerning the admission of evidence and the issuance

of a motion to compel, and any decisions in this regard are

reversible only if arbitrary, capricious, or an abuse of discretion.

See Mugerwa v. Aegis Defense Services, 52 BRBS 11 (2018), recon.

denied, BRB No. 17-0407 (Oct. 4, 2018); McCurley v. Kiewest Co.,

22 BRBS 115 (1989). Because of Dr. Juel’s status as a government

employee at the University of Southern Denmark, the Danish

A41

urging affirmance, to which claimants filed a reply

brief. The Director also responds to the petition for

review and urges affirmance of the administrative law

judge’s denial of benefits.7

government prohibited his testimony as an expert witness. Tr. at

1755-1766. The administrative law judge did not abuse her

discretion in permitting Dr. Juel to testify as a “fact witness” as

claimants’ counsel was permitted to cross-examine him. See

generally Casey v. Georgetown Univ. Med. Ctr., 31 BRBS 147

(1997).

Claimants also challenge the administrative law judge’s order

declining to compel Dr. Siegel to conduct urinalyses. The

administrative law judge permitted the doctor to decide which

objective tests would assist him in drawing his conclusions. Order

at 7 (June 10, 2013). We reject claimants’ contentions that the

administrative law judge abused her discretion in this regard. See

generally Augillard v. Pool Co., 31 BRBS 62 (1997). As claimants

are the proponents of the compensability of their claims, nothing

prevented them from obtaining and submitting urinalysis evidence

themselves.

7

We acknowledge receipt of claimants’ pleading wherein claimants

reject the Director’s brief and reserve any rights they may have

against the Director and the agency should the Board accept and

give weight to the Director’s brief and arguments. We reject

claimants’ contention that the Director is not a proper party in

proceedings under the Act before the administrative law judge and

the Board. The Act’s regulations establish the Director’s standing.

See 20 C.F.R. §§701.201, 702.321(b)(3), 702.333(b); 801.2(a)(10); see

Shaller v. Cramp Shipbuilding & Dry Dock Co., 23 BRBS 140

(1989); Powell v. Brady Hamilton Stevedore Co., 17 BRBS 1 (1984);

see also Weber v. S.C. Loveland Co., 35 BRBS 190 (2002), aff’g and

modifying on recon. 35 BRBS 75 (2001); Ahl v. Maxon Marine, Inc.,

29 BRBS 125 (1995); Ricker v. Bathiron Works Corp., 24 BRBS 201

(1991); Board’s Order (October 11, 2018).

A42

We first address claimants’ contentions regarding a

causal nexus between their work and their injuries as

it is the dispositive issue.8 Claimants contend the

administrative law judge erred in finding that

employer rebutted the Section 20(a), 33 U.S.C. §920(a),

presumption linking their cancerous conditions to their

plutonium exposures.9 Once the Section 20(a)

presumption is invoked, as here, the relevant inquiry

is whether the employer produced substantial evidence

of the lack of a causal nexus. Rainey v. Director, OWCP,

517 F.3d 632, 42 BRBS 11(CRT) (2d Cir. 2008); see

Ceres Gulf, Inc. v. Director, OWCP [Plaisance], 683

F.3d 225, 46 BRBS 25(CRT) (5th Cir. 2012); Bath Iron

Works Corp. v. Preston, 380 F.3d 597, 38 BRBS

60(CRT) (1st Cir. 2004); see also American Grain

Trimmers v. Director, OWCP, 181 F.3d 810, 33 BRBS

71(CRT) (7th Cir. 1999) (en banc), cert. denied, 528 U.S.

1187 (2000). An employer’s burden on rebuttal is one of

production, not persuasion; it is an “objective test,” and

the determination of whether the employer has

produced “substantial evidence” that a reasonable mind

would accept as evidence of the non-work-relatedness

8

While claims for disability benefits must be filed within a specific

period following a claimant’s awareness of the relationship

between his injury, work, and disability, claims for medical

benefits are never time-barred. Siler v. Dillingham Ship Repair, 28

BRBS 38 (1994) (decision on recon. en banc).

9

The administrative law judge invoked the Section 20(a)

presumption based upon the opinions of Drs. Barnaby, Edwards,

and Rollins that claimants’ cancers were caused by their exposure

to Pu-239, in conjunction with claimants’ testimony and the

evidence establishing the occurrence of the plane crash and the

potential for plutonium exposure. Decision and Order at 140-144.

A43

of the injury is a legal judgment and is not dependent

on the relative credibility of competing evidence. Bath

Iron Works Corp. v. Fields, 599 F.3d 47, 44 BRBS

13(CRT) (1st Cir. 2010); Rainey, 517 F.3d 632, 42

BRBS 11(CRT).

Employer presented, inter alia, the medical opinions

of Drs. Mettler and Turnbull and the plutonium

radiation dosage estimates of Dr. Anspaugh. The

administrative law judge found this evidence rebuts

the Section 20(a) presumption. Decision and Order at

145-146. Dr. Anspaugh, who has a Ph.D. in biophysics

and is an expert in the field of radiation dosimetry,

relied on documents from and about the Thule incident,

as well as studies on plutonium radiation and his own

expertise to conclude that the uppermost dose of

radiation claimants’ organs could have received from

the Thule incident was far less than the average

exposure a person is subjected to each year from

background radiation. DX 23 at 8, 13; see Decision and

Order at 47-49, 89-101. He considered the amount of

radiation dispersed from weapons-grade plutonium and

explained that plutonium must enter the body through

inhalation, ingestion, or an open wound in order to be

hazardous, and its normal targets are the lungs, the

liver, and the bones. Further, he stated that, because

none of the urine samples from the 1988 studies of nonAmericans who were at Thule at the time of the 1968

incident met the detection limit of the test (no positive

results of radiation), claimants, likewise, would have

received no demonstrable dose from the cleanup

activities. DX 23 at 1, 9-14; see also DXs 26-30.

A44

Dr. Mettler, a medical doctor board certified in

radiology and nuclear medicine and an expert on the

effects of radiation on humans, opined that claimants’

diseases were not due to plutonium radiation from the

Thule incident given Dr. Anspaugh’s dosage estimates.

DX 32. Based on the studies he attached to his report,

and with a high degree of certainty, Dr. Mettler stated

there is extremely low probability of a causal

relationship because there is no evidence in the

literature of increased incidents of stomach, esophagus,

and kidney cancers with exposure to plutonium

radiation. Id. at 9-10; DX 33; see Decision and Order at

55-61, 101-106. Similarly, Dr. Turnbull, an emeritus

oncology surgeon from Sloan-Kettering Cancer Center

specializing in the gastric and mixed tumor service,

testified that Carswell’s stomach and esophagus cancer

is more likely to be related to his Barrett’s esophagus

and reflux syndrome, or to an H. pylori infection, than

to exposure to plutonium. He also stated that any

thyroid problems Carswell may have (which he found

to be unclear) are age-related. DX 35 at 3-4; DX 42; see

Decision and Order at 63-65, 109-113.

An expert’s opinion, given to a reasonable degree of

medical or scientific certainty, that a claimant’s

condition is not causally related to an injurious

exposure at his work constitutes substantial evidence

rebutting the Section 20(a) presumption. Bath Iron

Works Corp. v. Director, OWCP [Harford], 137 F.3d

673, 32 BRBS 45(CRT) (1st Cir. 1998); Sprague v.

Director, OWCP, 688 F.2d 862, 15 BRBS 11(CRT) (1st

Cir. 1982); Cline v. Huntington Ingalls, Inc., 48 BRBS

5 (2013). Therefore, the administrative law judge

correctly found that the opinions of Drs. Anspaugh,

A45

Mettler, and Turnbull constitute substantial evidence

rebutting the Section 20(a) presumption linking

claimants’ cancers to plutonium radiation. Truczinskas

v. Director, OWCP, 699 F.3d 672, 46 BRBS 85(CRT)

(1st Cir. 2012); Cline, 48 BRBS 5. We affirm the

administrative law judge’s finding that employer

rebutted the Section 20(a) presumption in each case.

Once the Section 20(a) presumption has been

rebutted, it drops from the case, and the question of a

causal relationship must be decided on the record as a

whole with each claimant bearing the burden of

establishing the work-relatedness of his injury by a

preponderance of the evidence. Sprague, 688 F.2d 862,

15 BRBS 11(CRT); see Marinelli v. American

Stevedoring, Ltd., 248 F.3d 54, 35 BRBS 41(CRT) (2d

Cir. 2001); Universal Maritime Corp. v. Moore, 126

F.3d 256, 31 BRBS 119(CRT) (4th Cir. 1997); see also

Director, OWCP v. Greenwich Collieries, 512 U.S. 267,

28 BRBS 43(CRT) (1994). On the record as a whole, the

administrative law judge found that claimants

provided little evidence linking plutonium exposure

and their respective cancers, though they demonstrated

the risks of plutonium exposure in general. She gave

little weight to claimants’ experts, specifically noting

the lack of detailed explanations or evidentiary support

from either Dr. Robbins, who reviewed Hansen’s and

Eriksen’s records, or Dr. Edwards, Carswell’s treating

physician.10 Decision and Order at 152-154; CXs 3, 5;

10

Dr. Robbins stated only that it is “reasonable” to conclude kidney

cancer is associated with the “potential risk of plutonium

inhalation during the period [they were] involved in contamination

clean-up operations at Thule.” DX 7a; EX 5; HX 5. Dr. Edwards

A46

DXs 7a, 11, 14-15; EXs 3-5; HXs 3, 5. She also

acknowledged that employer’s experts are better

credentialed, with greater experience and expertise on

the topics of cancer and radiation, than claimants’

experts.11 Id. at 152. The administrative law judge

found:

[I]n order for me to conclude that the Claimants’

health conditions were due to any plutonium

radiation exposure at Thule, I would have to

discount the opinions of highly-credentialed

physicians and ignore a multitude of medical

and epidemiological studies, in favor of the

vague opinions of Dr. Robbins and Dr. Edwards,

as well as the conclusory opinion of Dr. Barnaby.

I would also have to ignore the testimony of Dr.

stated “it is widely accepted that exposure to ionizing radiation can

cause many cancers-carcinoma of the stomach being one of them.”

DX 11. He also stated “there is a reasonable degree of probability”

that Carswell’s hypothyroidism is “attributable to the longterm

effect of radiation exposure.” CX 5; DX 14. Neither doctor provided

scientific support for their conclusory statements. Additionally, Dr.

Turnbull disputed Dr. Robbins’s categorization of Hansen’s and

Eriksen’s kidney cancers as “advanced” because “advanced”

generally refers to widespread cancer, and, here, the tumors were

contained and removed with good results. DX 35 at 6.

11

The qualifications of Drs. Robbins and Edwards are not in the

record, but Dr. Turnbull looked them up. Decision and Order at

152 n.241. Per Dr. Robbins’s letterhead and Dr. Turnbull’s

research, Dr. Robbins specializes in allergies and environmental

health, and Dr. Edwards is a general practitioner with a special

interest in dermatology, obstetrics, gynecology, and fertility. Id;

DX 35; EX 5; HX 5. Employer’s experts, on the other hand, all

specialize in studying cancer or radiation and their effects on the

human body.

A47

Mettler and others regarding the specific health

effects of plutonium radiation, in favor of reports

and studies that addressed the health effects of

radiation, but did not specify the type of

radiation involved.

Decision and Order at 158;12 see id. at 155-157;13 see

also CX 9; DOLXs 2-3, 10; EX 9; HX 8.

12

Claimants submitted the report of Dr. Barnaby, who has a Ph.D.

in nuclear physics and specializes in nuclear weapons. He

discussed weapons-grade plutonium and toxicity due to

radioactivity and chemicals, stating, in general, that it is cancercausing. He concluded that participation in the clean-up operations

“would have seriously exposed [claimants] to the risk of plutonium

inhalation and the long-term development of cancer.” GX 3. Dr.

Anspaugh questioned Dr. Barnaby’s summary conclusion, as his

report was less than three pages long, did not contain any

quantitative information or supporting studies, and was vague. DX

23 at 10.

13

The administrative law judge acknowledged the large number of

studies presented by the parties but specifically noted “there

cannot be an epidemiological study more relevant to the issues

before me than Dr. Juel’s study of the DCC workers at Thule”

during the time of the crash and clean-up. Decision and Order at

157 n.257. Dr. Juel holds a Ph.D. in epidemiology and is the head

of a research program on health and morbidity at the National

Institute of Public Health in Denmark. DX 38; Tr. at 1766-1769.

Having conducted multiple studies concerning the health effects,

cancer incidence, and morbidity rate of Thule crash workers and

compiled data from other studies as well as from Danish hospital

and death registries, he concluded there is no difference in total

mortality rates or hospital admission rates between those Danes

who worked at Thule at the time of the crash and clean-up and

those who worked at Thule at other times. Dr. Juel concluded

there were no harmful effects from having participated in the

Thule clean up. DXs 5, 38, 45; see Decision and Order at 50-53,

113-116.

A48

Having exhaustively set forth the evidence and

having permissibly identified the evidence she deemed

probative, Decision and Order at 7-117, we reject

claimants’ assertions that the administrative law judge

erred in giving greater weight to employer’s evidence.

The fact-finder has the discretion to weigh, credit, and

draw her own inferences from the evidence of record;

she is not bound to accept the opinion or theory of any

particular expert. See Todd Shipyards Corp. v.

Donovan, 300 F .2d 741 (5th Cir. 1962); Perini Corp. v.

Heyde, 306 F. Supp. 1321 (D.R.L 1969). The Board may

not reweigh the evidence but may assess only whether

there is substantial evidence to support the

administrative law judge’s decision. John W. McGrath

Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961); see also

Cordero v. Triple A Machine Shop, 580 F.2d 1331, 8

BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S. 911

(1979); Calbeck v. Strachan Shipping Co., 306 F.2d 693

(5th Cir. 1962), cert. denied, 373 U.S. 954 (1963);

Miffleton v. Briggs Ice Cream Co., 12 BRBS 445 (1980),

aff’d, No. 80-1870 (D.C. Cir. 1981).

The administrative law judge found that claimants

did not satisfy their burden of proving the causal nexus

between their employment at the Thule airbase and

their medical conditions. She gave greater weight to

the evidence of record refuting any causal connection

between any exposure to Pu-239 and claimants’

cancers. These findings are rational and supported by

substantial evidence.14 Victorian v. International-Matex

14

Claimants assert that employer’s evidence conflicts with other

federal laws recognizing that radiation is cancer-forming. CL Br.

at 11, 22-23. The enactment of other laws, which have their own

A49

Tank Terminals, 52 BRBS 35 (2018); Sistrunk v.

Ingalls Shipbuilding, Inc., 35 BRBS 171 (2001);

Santoro v. Maher Terminals, Inc., 30 BRBS 171 (1996).

Therefore, we affirm the administrative law judge’s

denial of benefits.15

criteria for applicability, does not negate the requirements for

establishing entitlement to benefits for a specific injury in a claim

under the Act. See 42 U.S.C. §1651(c) (exclusivity of liability); 33

U.S.C. §905(a) (exclusivity of liability); Vilanova v. US., 851 F.2d

1, 21 BRBS 144(CRT) (1st Cir. 1988), cert. denied, 488 U.S. 1016

(1989) (exclusivity); see also O’Connor v. Yezukevicz, 589 F.2d 16

(1st Cir. 1978) (absent subject matter jurisdiction, statute does not

apply). Nor does such other law interfere with an administrative

law judge’s authority to weigh the evidence before her. 5 U.S.C.

§554 et seq.; 33 U.S.C. §§919, 923, 927.

15

We reject claimants’ contention that the administrative law

judge should have immediately granted their motion for a default

judgment against Topsoe. Section 18.21(c) of the Rules of Practice

and Procedure of the Office of Administrative Law Judges

provides:

Failure to appear. When a party has not waived the right

to participate in a hearing, conference or proceeding but

fails to appear at a scheduled hearing or conference, the

judge may, after notice and an opportunity to be heard,

dismiss the proceeding or enter a decision and order

without further proceedings if the party fails to establish

good cause for its failure to appear.

29 C.F.R. §18.21(c) (emphasis in original). The language makes

clear that the decision to issue an order against a party who has

failed to appear or establish good cause is discretionary. Id.

Generally, courts are to issue default judgments sparingly but set

them aside readily. McCracken v. Spearin, Preston & Burrows,

Inc., 36 BRBS 136, 140 (2002) (citing Enron Oil Corp. v.

Diakuhara, 10 F.3d 90 (2d Cir. 1993)). FRCP 55 provides guidance

for determining whether a party has established good cause such

A50

Accordingly, the administrative law judge’s Decision

and Order is affirmed.

SO ORDERED.

that default should not be ordered or should be set aside. Fed. R.

Civ. P. 55; see also McCracken, 36 BRBS at 140. One factor to

consider is whether the party has a meritorious defense. Id.; see

Indigo Am., Inc. v. Big Impressions, LLC, 597 F.3d 1, 3 (1st Cir.

2010).

By virtue of their relationship as members of the DCC joint

venture, the administrative law judge recognized that Pihl and

Topsoe have the same liability such that Pihl’s defense can be

attributed to Topsoe. Decision and Order at 160: Order Denying

Claimants’ Motion for Default Judgment at 5; see generally U.S. v.

BDO Seidman, LLP, 492 F.3d 806 (7th Cir. 2007) (members of

joint venture have common legal interest in venture’s defense);

Edens v. Hannigan, 87 F.3d 1109 (10th Cir. 1996) (representation

of multiple defendants poses no conflict unless there is a

divergence of interests with respect to a material fact or legal

issue); ALJX 1 By not addressing claimants’ motion for default

judgment until after she considered all the evidence and rendered

her decision, the administrative law judge determined Pihl’s nonliability and, consequently, Topsoe’s. Decision and Order at 160;

see Fed. R. Civ. P. 55(b)(2); see Transatlantic Marine Claims

Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young, Inc., 109

F.3d 105 (2d Cir. 1997) (court may conduct a hearing to ensure

there is a basis for damages and to ascertain the amount for which

the defendant would be liable); see also Indigo Am., Inc. v. Big

Impressions, LLC, 597 F.3d 1 (1st Cir. 2010) (court set aside

default judgment after considering factors). The granting of default

judgment is discretionary; claimants have not shown that the

administrative law judge abused her discretion by delaying a

decision on the motion until she determined the compensability of

the claims based on the evidence presented by the appearing

parties. See Indigo Am., Inc., 597 F.3d at 3; McCracken, 36 BRBS

at 140. The finding in favor of Pihl means there is no basis to

render judgment against Topsoe.

A51

/s/ Betty Jean Hall

BETTY JEAN HALL, Chief

Administrative Appeals Judge

/s/Ryan Gilligan

RYAN GILLIGAN

Administrative Appeals Judge

/s/Jonathan Rolfe

JONATHAN ROLFE

Administrative Appeals Judge

A52

NOTICE OF APPEAL RIGHTS

A decision of the Benefits Review Board, shall become

final sixty (60) days after its issuance unless a written

petition for review is filed with the Appropriate United

States Court of Appeals prior to the expiration of the

sixty (60) day period, or unless a timely request for

reconsideration is filed with the Board. 33 U.S.C.

Section 921; 30 U.S.C. Section 932(a); 20 C.F.R.

Sections 802.406, 802.407. Therefore, you are advised

that you may SEEK RECONSIDERATION OF, OR

APPEAL, a final decision of the Board within the time

limits set forth below. THE TIME LIMITS CANNOT

BE EXTENDED, AND YOU MUST SUBMIT YOUR

REQUEST TO THE PROPER PLACE WITHIN

THE TIME PROVIDED.

If you seek RECONSIDERATION by this Board (that

is, if you want the Board to reconsider its decision), you

must submit to the Board a written Motion for

Reconsideration within THIRTY 30 DAYS OF THE

DATE STAMPED ON THE FRONT OF THIS

DECISION. Your motion should identify any error you

find in the Board’s opinion and state the reasons you

believe warrant further consideration of your case. If

you file a timely motion for reconsideration, you will

have sixty (60) days from issuance of the Board’s

decision on reconsideration to file an appeal with a

Court of Appeals, as set forth below.

Alternatively, if you wish to APPEAL to a United

States Court of Appeals, you must insure that a

petition for review is received by THE

APPROPRIATE COURT (NOT THIS BOARD)

WITHIN SIXTY (60) DAYS OF THE DATE

A53

STAMPED ON THE FRONT OF THIS DECISION.

The petition for review should contain the case number

and the date of the Board’s decision. The petition

should be sent to the court of Appeals which covers the

state in which the employee’s injury occurred. In a

black lung claim, any state in which the miner had coal

mine employment may be considered the state in which

the injury occurred (i.e., for a black lung appeal, you

may file in any Court of Appeals covering any state in

which you worked as a miner). Listed on the back of

this page are the twelve Courts of Appeals and the

states they cover. You should identify the court

covering the state of injury (including all states of mine

employment for black lung claims) and file your

petition with that court. If you appeal directly to the

court of Appeals you may not later get reconsideration

by the Board. However, if you seek Board

reconsideration you may later appeal the Board’s

ruling on reconsideration to the Court of Appeals.

IF YOU HAVE ANY QUESTIONS ABOUT THE

PROCEDURES TO BE FOLLOWED IN YOUR

CASE, CALL THE OFFICE OF THE CLERK OF

THE BOARD, (202) 693-6300.

**

In Defense Base Act cases, The United States

Courts of Appeals for the Fourth, Fifth, Sixth and

Eleventh Circuits have held that decisions must

initially be appealed to the United States District

Court where the office of the appropriate district

director is located.

A54

APPENDIX F

U.S. Department of Labor

Office of Administrative Law Judges

2 Executive Campus, Suite 450

Cherry Hill, NJ 08002

(856) 486-3800

(856) 486-3806 (FAX)

[Dated: July 23, 2014]

Issue Date: 23 July 2014

CASE NO.: 2012-LDA-00540

OWCP NO.: 01-171435 f

_________________________________________

In the Matter of:

)

JEFFREY G. CARSWELL

)

Claimant

)

v.

)

)

E. PIHL & SONS

)

TOPSOE-JENSEN & SCHROEDER LTD

)

DANISH CONSTRUCTION CORPORATION)

Employers

)

)

CASE NO.: 2012-LDA-00541

)

OWCP NO.: 01-171580

)

)

In the Matter of:

)

BENT HANSEN

)

Claimant

)

v.

)

)

A55

E. PHIL & SONS

)

TOPSOE-JENSEN & SCHROEDER LTD

)

DANISH CONSTRUCTION CORPORATION)

Employers

)

)

CASE NO.: 2012-LDA-00543

)

OWCP NO.: 01-171579

)

)

In the Matter of:

)

HEINZ H. ERIKSEN

)

Claimant

)

v.

)

)

E. PIHL & SONS

)

TOPSOE-JENSEN & SCHROEDER LTD

)

DANISH CONSTRUCTION CORPORATION)

CORPORATION

)

Employers

)

__________________________________________)

ORDER DENYING DIRECTOR’S MOTION FOR

JOINDER; AND DENYING CLAIMANTS’

CROSS-MOTION FOR DISTRICT COURT

CERTIFICATION; AND ADDRESSING ROLE

OF DIRECTOR

This matter involves three claims for compensation

under the Defense Base Act, 42 U.S.C. § 1651, an

extension of the Longshore and Harbor Workers’

Compensation Act (LHCWA), 33 U.S.C. § 901 et seq.

Sessions of hearing were held before me in New York

City on December 4, 2012; July 15 and 16, and August

12, 13, and 14, 2013; and March 7 and April 3, 2014, in

New York City. The Claimants are represented by

A56

counsel. The Director, Office of Workers’ Compensation

Programs, (hereinafter, “Director”), has participated in

this matter as a party in interest.

Background

In this matter, the Claimants asserted occupational

illnesses relating to their exposure to radioactive

elements in 1968, when they were employed by the

Danish Construction Corporation (DCC) in Thule,

Greenland. LS-18s. Initially, this matter involved two

Employers — E. Pihl & Son (Pihl) and Topsoe-Jensen

& Schroeder, Ltd. (Topsoe-Jensen) — because these

were the employers the Claimants named.1 Id.

By Order dated May 13, 2014, I directed that the

case captions be amended to add the Danish

Construction Corporation as a party.

Motion for Joinder, and Responses to Motion

By Motion dated February 12, 2014, the Director

sought to join Bravida Danmark A/S, MT Hojgaard A/S

and Hoffmann A/S as parties—that is, as

Employers—in this matter (hereinafter, “Joinder

1

Presumably, the Claimants identified these employers because,

in the Claimants’ view, these companies are successors to the

DCC’s component companies: Topsoe-Jensen, a Danish

corporation, has refused to enter any appearance in this matter.

See, e.g., Order of May 15, 2013 (directing Topsoe-Jensen

representative to enter appearance). By Order dated March 5,

2014, I denied, without prejudice, the Claimants’ Motion to enter

a default judgment in Claimants’ favor against Topsoe-Jensen.

A57

Motion”).2 In the Director’s view, these companies are

successors to companies that were component

companies of the DCC’s joint venture. Motion at 1. In

the Motion, the Director stated that, of the DCC’s

component companies, only one — Pihl — has appeared

to defend against the Claimants’ claims, but this

company filed for bankruptcy in August 2013. Id. at 2.

The Director stated that, if benefits or compensation

are awarded, Special Fund liability may arise pursuant

to Section 18(b) of the LHCWA. Id.; see also 33 U.S.C.

§ 918(b). As the Director asserted:

Now, after the recent bankruptcy filing of E Pihl

& Son, the Director is compelled to move to join

the other remaining members of the Danish

Construction Corp. as defending employers. The

Director is compelled to do so because if the

claims are held to be meritorious, then such

liability may involve the Special Fund created

under the Act over which the Director exercises

control and bears fiduciary responsibility.

Id.

The Claimants responded in opposition to the

Joinder Motion on February 17, 2014 (hereinafter,

Claimants’ opposition).3

On March 18, 2014, Bravida Danmark A/S

2

The Director’s Motion also sought to join the Danish Construction

Corporation as a party. Motion at 4-5. I find that my Order dated

May 13, 2014 moots this portion of the Director’s Motion.

3

Claimants’ submission also included a cross-motion, which will

be discussed below.

A58

responded in opposition to the Joinder Motion

(hereinafter, Bravida opposition).4

On April 7, 2014, through counsel, MT Hojgaard A/S

and Hoffmann A/S submitted their opposition to the

Director’s Joinder Motion (hereinafter,

Hojgaard/Hoffmann opposition).5.

The Employers Pihl and Topsoe-Jensen did not

respond to the Motion.

Pursuant to my authorization, the Director

submitted a reply to the oppositions to the Joinder

4

On February 26, 2014, Bravida’s counsel filed an “Assented-To

Motion for Extension of Time in Which to Respond to Motion for

Joinder of Necessary Parties,” in which he stated that the

Director’s representative assented to Bravida’s request for an

extension of time, until March 20, 2014, to file a response to the

Joinder Motion. Claimants’ counsel submitted, upon receipt of this

item, a letter, dated February 28, 2014. I will construe Claimants’

submission as an opposition to any extension, as well as a

supplement to Claimants’ opposition to the Joinder Motion.

Notwithstanding the Claimants’ opposition, I GRANT Bravida’s

Motion for Extension of Time, and I will consider Bravida’s

response.

5

On March 26, 2014, counsel for Hojgaard and Hoffmann filed an

“Assented-to Motion for Extension of Time in Which to Respond to

Motion for Joinder of Necessary Parties.” In the Motion, counsel

requested an extension of time, until April 8, 2014, to respond to

the Joinder Motion, and stated that the Director’s representative

assented to the request. At my direction, my law clerk telephoned

counsel for Hojgaard and Hoffmann and informed him that the

Motion for Extension of Time was granted. My law clerk also

informed counsel that I would not issue an Order memorializing

my grant of the Motion but would address it in the order

adjudicating the Joinder Motion.

A59

Motion.6

On June 11, 2014, MT Hojgaard A/S and Hoffmann

A/S filed a Motion for Leave to File Sur-Reply to the

Director’s Response to the Opposition of Joinder of

Necessary Parties, and attached the proposed surreply. No party submitted any opposition, and I

granted their Motion by Order dated June 27, 2014.7

I find that the issue of whether Bravida Danmark,

MT Hojgaard A/S and Hoffmann A/S should be joined

as parties is now ripe for adjudication.

Arguments in Support of and Opposing Joinder

In the Joinder Motion, the Director asserted that,

upon information and belief, the DCC component

company Wright Thomsen and Kier is now known as

the extant corporation MT Hojgaard, and that it

altered its name about 1990. Joinder Motion at 4.

Regarding DCC component company H. Hoffmann &

Sons, the Director asserted, upon information and

belief, that it is now known as the extant corporation

Hoffmann A/S, and stated: “Danish historical corporate

records indicate that the company merely dropped the

‘and Sons’ from its appellation.” Id. As to DCC

component company A/S Delmec, the Director stated

6

By Order dated May 5, 2014, I directed the Director to inform me,

by May 9, 2014, whether he wished to submit a reply and, if he

chose to do so, I authorized him to submit the reply by May 30,

2014. Order of May 5, 2014, at 2.

7

These companies asserted their sur-reply was necessary because

of my May 13, 2014 Order amending the case caption to add DCC

as an Employer.

A60

that, upon information and belief, this company is now

known as the extant corporation Bravida Danmark,

and stated that the company may have changed its

name three times, most recently in 2003. Id. All of

these current companies, the Director indicated, are

located in Denmark. Id. The Director stated that

Bravida Danmark is “now owned by Bain Capital

Private Equity of Boston, MA” but did not indicate

whether MT Hojgaard A/S or Hoffman A/S have any

presence in the United States. Id.

Documents the Director submitted in support of the

Motion are as follows: the Danish Construction

Corporation partnership contract, dated January 1959

with revision dated June 1963 (in Danish with English

translation).8 (Attachment 1); Documents relating to

Bravida Danmark, from the website of Bain Capital

(www.baincapitalprivateequity.com/investments)

(Attachments 2, 3, and 4); claims documents (LS-201,

LS-203, LS-18s and transmittal memoranda from

OWCP to OALJ) pertaining to the claims filed by

Claimant Carswell (Attachment 5), Claimant Eriksen

(Attachment 6), and Claimant Hansen (Attachment 7)9

In the Joinder Motion, the Director stated that the

Claimants should have identified all potentially

responsible employers at the time they filed their

claims, but failed to do so. Joinder Motion at 2.

8

9

The English translation is not certified

The Director also submitted documents pertaining to Claimant

Erling Nochen (Attachment 8). However, because I have dismissed

Claimant Nochen’s claim, I will not consider these documents. See

Order of Sept. 16, 2013.

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However, because of the bankruptcy filing of E Pihl &

Son, the Director stated, he “is compelled” to move to

join other potential employers because, “if the claims

are held to be meritorious, then such liability may

involve the Special Fund ... over which the Director

exercises control and bears fiduciary responsibility.” Id.

Regarding the legal necessity for joinder, the Director

asserted that the Benefits Review Board has held that

when the potential liability of unnamed employers in a

matter arising out of the LHWCA becomes apparent,

then proceedings should be halted to allow those

parties to be joined. Joinder Motion at 3. See Susoeff v.

San Francisco Stevedoring Co., 19 BRBS 149 (1986).

The Director also noted that throughout these

proceedings, all parties have presumed that the

component parts of the DCC bear “joint and several

liability.” Id. at 4.

Claimants’ counsel opposed joinder for multiple

reasons, including the following: the Joinder Motion is

“speculative”; it was filed to halt and obstruct the

conclusion of the proceeding; and it was intended to reopen and re-litigate the case. Claimants’ opposition at

2-3. Claimants’ opposition also pointed out that the

Director failed to file any affidavits in support of the

Joinder Motion, and that the Director provided no

details of the source of the “information and belief’ that

the three companies named in the Joinder Motion are,

in fact, successor entities to DCC component

companies.10 Id. at 6, 11-12.

10

Claimants also asserted that the Director’s statement that “H.

Hoffmann & Sons” was a DCC component member is inaccurate;

rather, the company that was a member of the DCC was “Hoffman

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In their opposition, contrary to the Director’s

assertions regarding surviving successor companies,

the Claimants stated that research on the Claimants’

behalf in 2010 indicated that the DCC dissolved in the

1970s and that E Pihl & Son and Topsoe Jensen were

the only “currently existing former members of the

DCC consortium.” Claimants’ opposition at 8-10. The

Claimants also asserted that the issue of potential

Special Fund liability was “tangential” and

“speculative” and was not properly before me, because

the Director did not file a Pre-Hearing Statement (LS18) on the issue of the Special Fund interest and

potential liability. Id. at 13-15. And the Claimants also

argued that Susoeff dealt with the joinder of

subsequent employers in an occupational exposure

case, and so was not relevant here, where there is no

issue of potential liability based on exposure to a

harmful substance during later employment. Id. at 5.

In its opposition, Bravida Danmark A/S stated that

there was no legal or evidentiary basis for joining it as

a party, and asserted that the Director’s Joinder

Motion was based “solely on an incomplete translation

of a 1963 revision of a 1959 ‘Partnership Contract’ for

the DCC listing A/S Delmac as a partner in the DCC

and his ‘information and belief’ that Bravida ‘may’ be

the successor to A/S Delmac.” Bravida opposition at 34. Bravida Danmark A/S also drew a distinction

between proper parties (who may join a lawsuit, see

Federal Rule of Civil Procedure (F. R. Civ. P. 20), and

necessary parties (without whose presence complete

International Contractors Ltd.”. Claimant’s opposition at 8; see

also Exhibit A to Claimants’ opposition.

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relief cannot be accorded, see F. R. Civ. P. 19). Bravida

opposition at 3. Bravida stated that, even if the

Director is correct in that Bravida is the corporate

successor to A/S Delmac, Bravida is not a necessary

party. Id. Bravida also asserted that compelling it to

join the litigation at this late stage in the proceedings

“would only invite addition, and unwarranted, delay in

a matter that is already several years old.” Id.

Similar to Bravida Danmark A/S, MT Hojgaard A/S

and Hoffman A/S argued that they need not be joined,

because they are not necessary parties under F.R.

Civ.P. 19. Hojgaard/Hoffmann opposition at 5-11.

These companies also asserted that they cannot be

joined, because the Director has not established that

either company has sufficient contact within the

United States to establish personal jurisdiction. Id. at

11-16. They also stated that joinder at this point in the

proceedings would, in their view, cause unnecessary

delay and would prejudice the Claimants. Id. at 16-20.

In his reply, the Director stated that none of the

companies opposing joinder affirmatively stated they

are not successors to the DCC component companies.

Reply at 3. He requested that, in the event I find that

insufficient facts to establish that the companies are in

fact successors to DCC companies, the Director

requested that I grant him the authority to issue

subpoenas, to enable sufficient facts to be obtained. Id.

at 4. As to the issue of whether the companies are

necessary parties, the Director stated: “The only

defending Employer who may be held liable for

potential payment of claims in this matter is in

bankruptcy”; noted that default payments from the

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Special Fund are “a matter of Director discretion”; and

stated that complete relief likely cannot be granted to

the Claimants (presuming they succeed in their claims)

unless the parties sought to be joined are joined. Id. at

4-5.

In the sur-reply, MT Hojgaard and Hoffman A/S

asserted that the addition of the DCC as an Employer,

pursuant to my Order of May 13, 2014, buttressed their

position that they are not necessary parties under F.R.

Civ. P. 19.

Discussion

The DCC and its Components

The record establishes that the Claimants were

employees of the DCC at the time of their asserted

exposure to radiation in 1968. T. at 63, 168. The record

also establishes that the DCC was a partnership or

“joint venture” consisting of five component companies.

All-1; see also Exhibit E-2, Attachment 1 to Joinder

Motion. As noted above, in their claims, the Claimants

listed two employers: Pihl and Topsoe-Jensen. These

are both Danish companies. It is unclear whether

either of these companies currently has any presence in

the United States.

Included in the record is a certified translation of

the DCC’s “Partnership Agreement.” Exhibit AU-I.11

This document establishes that, as of 1963, the

members of the DCC were H. Hoffmann & Sonner A/S;

11

This item has not been formally admitted. By Order dated Feb.

27, 2014, I directed the parties to show cause why I should not

admit the item. No party responded.

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E. Pihl & Son; Topsoe-Jensen & Schroeder; Wright,

Thomsen & Kier; and A/S Delmac.12 13AUJ-1 at 1. Of

note, the DCC partnership agreement stated that all

partners were equally liable for the partnership’s

losses, and all were liable to the full extent of their

asserts. AUJ-1 at 2 (at II 4). In addition, the agreement

stated that any partner could withdraw from the DCC,

on six months’ notice. AUJ-1 at 3 (¶12).

Another item in the record is an employment

verification form for Claimant Eriksen, dated 1971, on

the letterhead of the DCC. Exhibit E-2. This item

states, in English, that the DCC is a “joint venture”

(not a partnership) and lists the component companies

as follows: A/S Delmac; Hoffmann International

Contractors Ltd. A/S; E Pihl & Son; Topsoe-Jensen &

Schroeder A/S; and Wright, Thomsen & Kier.14

During the course of this litigation, all parties have

presumed that the DCC is no longer in existence.

Notably, however, there is no document in the record

that verifies the dissolution or disestablishment of the

12

The original “partnership agreement was signed in January

1959; an addendum, dated June 1963, memorializes the departure

from the DCC of Larsen & Nielsen Construction in 1962 and the

addition of A/S Delmac in January 1963.

13

The certified translation stated the name of a component

company is “P. Pihl & Son” (not E. Pihl); the original Danish

document on which the translation is apparently based is a poor

copy; based on my perusal of the Danish version, I find the name

of the company could be either “P. Pihl” or “E. Pihl.”

14

The name of the Hoffmann company has changed from the 1959

partnership agreement.

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DCC. The presumption that the DCC is no longer a

viable enterprise formed the basis for the Claimants’

designation of Pihl and Topsoe-Jensen as employers,

and also, it appears, formed a basis for Pihl’s action in

defending against the claims. I must note that it also

has formed a basis for the Director’s appearance and

participation in these claims.15

Pihl entered an appearance in this matter and has

assertively mounted a defense against the Claimants’

claims. In August 2013, Pihl filed for bankruptcy in

Denmark. See, e.g., Order of Sept. 6, 2013. Pihl’s

bankruptcy caused a temporary suspension of

proceedings. Id.; see also Orders of Sept. 23, 2013, Oct.

30, 2013. Eventually the bankruptcy trustee authorized

Pihl’s counsel to continue its representation of Pihl in

defending these claims. See. e.g., Orders of Nov. 21,

2013, Dec. 11, 2013.

Because Exhibit ALJ-1 and Exhibit E-2 list the

same five DCC component companies for 1963 and

1971, respectively, I will presume that these five

companies were the partnership/joint venture

participants in the DCC in 1968, the date of the

Claimants’ asserted exposure. To the extent there may

be a difference between liability as a partner and

liability as a joint venture participant, I decline to draw

any distinction. I note that, pursuant to the DCC

partnership agreement, each partner has agreed that

it will be equally liable for the partnership’s losses.

Joint and Several Liability under the LHWCA

15

I will discuss the Director’s role in more detail below.

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Liability under the LHWCA and its associated

statutes, such as the Defense Base Act, flows from the

employer-employee relationship. 33 U.S.C. § 904(a).

The Court of Appeals for the Fifth Circuit has affirmed

the Benefits Review Board’s (hereinafter, Board)

position that, when a claimant is employed by more

than one employer at the time of an injury, then the

employers are jointly and severally liable for

compensation for the injury. Oilfield Safety and

Machine Specialties, Inc. v. Harman Unlimited, Inc.,

625 F.2d 1248, 14 BRBS 356 (5th Cir. 1980), aff’g

Hansen v. Oilfield Safety Inc., 8 BRBS 835 (1978) and

9 BRBS 490 (1979). In Oilfield Safety, the court stated:

Congress designed the LHWCA to provide

injured employees with certain and absolute

benefits instead of potential common-law

benefits obtainable only via tort actions against

the employer (citation omitted). This structure is

best served by a rule holding dual employers

jointly and severally liable for compensable

injuries incurred by employees. If the rule were

otherwise, an employee’s compensation would

undoubtedly be delayed in many instances while

the employers, not unreasonably, dissected his

actions to determine for whom the employee was

working at the exact moment the accident

occurred. Holding dual employers jointly and

severally liable guarantees that an injured

employee will not go without compensation

benefits while the employers battle to determine

which is liable.

625 F.2d at 1256.

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A claimant who is employed by a joint ‘venture is an

employee of all the entities that comprised the joint

venture, making all entities liable for compensation.

Davidson v. Enstar Group, 860 F.2d 167 (5th Cir.

1988), vacating 848 F.2d 574 (5th Cir. 1988).

Specifically, the Board has held that when a joint

venture’s entities “act as one,” they should be treated

as a single entity, thus making the employees of the

joint venture employees of all of its component entities

for purposes of the LHWCA. Newton-Sealey v. Armor

Group (Jersey) Services, Ltd., 47 BRBS 21 (2013), BRB

Nos. 12-0466, 12-0466A, slip op. at 12.16 The cases cited

in the previous paragraph, however, involved

companies that were already parties in a LHWCA

claim, not entities that had not been joined. This is a

critical distinction.

Notably, the concept of joint liability for employees

of a joint venture is fully consistent with the intention

of the DCC’s component companies, for in the

“Partnership Agreement” the companies agreed that

they would be jointly liable for all the partnership’s

“losses” up to the full extent of each company’s assets.

AUJ-1 at 3 (11 12). Accordingly, I conclude that, in the

event that Pihl were to be found liable to the

Claimants, the Employer could initiate legal action

against any or all of the other DCC component

companies (or their successors) to recoup its

16

Newton-Sealey cited, among other cases, Davidson. Slip op. at

12.

A69

payments.17

Identification of the Successor Companies

The initial burden to name all potentially

responsible employers in a claim under the LHWCA

lies with a claimant. 33 U.S.C. § 912(a); see also 20

C.F.R. §§ 702.211, 702.215. Notably, in this matter the

Claimants have opposed the Director’s Joinder Motion,

in part because the Claimants stated that they

conducted appropriate research before filing their

claims and they were satisfied that Pihl and TopsoeJensen were the only DCC component companies that

are still in existence. Claimants’ opposition at 8-10.18

The burden to establish that an entity should be

joined as a party rests with the party seeking joinder.

See generally 29 C.F.R. § 18.6 (requirements for

motions). In the Joinder Motion the Director has stated

only that “on information and belief’ that the

companies he has named in the Joinder Motion are

successor companies to companies that were DCC

component companies. Joinder Motion at 4. The

Director has provided no substantive information to

support this contention: for example, there are no

copies of filings with Danish government authorities

regarding changes of corporate name. Moreover, and

more pertinently, even presuming that the companies

17

Of course, under such circumstance it would be the responsibility

of the Employer to determine whether any successors to the DCC

component companies exist.

18

The Claimants did not provide any documentation in support of

their assertion.

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named in the joinder motion are successor companies

to the DCC component companies, there is no evidence

that these companies succeeded to the liabilities of

their predecessors. I find, accordingly, that the Director

has not met his burden that the companies he seeks to

join are, in fact, successors to the DCC component

companies. This is, in itself, a sufficient basis to deny

the Director’s motion.

The Director in his reply remarked that the

companies he seeks to join do not deny that they are

successors to the DCC components. However, the

Director misses the point, which is that it is the

Director’s burden to establish that these companies

should be joined, not the companies’ burden to fend off

the Director’s motion by asserting that they are not

successor entities. I have considered the Director’s

suggestion that I join the companies for the limited

purpose of permitting the Director to engage in

discovery to establish whether these companies are

successors to DCC component companies and, thus,

may properly be joined. See Joinder Motion at 4. I

decline to do so. For one thing, authorizing discovery on

this limited issue at this time will necessarily delay

this litigation, which already has been ongoing for an

exceptionally long time. Secondly, I find that the

Director has not offered any evidence, other than his

“information and belief,” that he has the companies

named in his Joinder Motion are, indeed, successor

companies to the DCC component companies.

Consequently, it appears that there is no basis, other

than speculation, upon which to authorize joinder and

its concomitant discovery.

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Necessary Parties

Under the LHWCA, the necessary parties for a

formal hearing include the claimant and the employer

or its insurance carrier. 20. C.F.R. § 702.333(a). The

regulation also states that the Solicitor of Labor may

appear and participate in any formal hearing “on

behalf of the Director as an interested party.” 20 C.F.R.

§ 702.333(b). If, during the course of proceedings, the

potential liability of an entity becomes apparent, then

that entity must be joined as a party. Susoeff v. San

Francisco Stevedoring Co., 19 BRBS 149, 152 (1986).

Proceedings should be halted to allow the parties to

participate in the proceedings, because an adjudication

of liability cannot be binding against an entity that was

afforded no opportunity to participate. Id.; see also

Scrudato v. River Pile and Foundation Co., BRB No.

06-0255 (Sept. 27, 2006)(unpub.), slip op. at 2, citing

Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306, 314 (1950).

In their opposition to the Joinder Motion, Bravida

Danmark A/S, MT Hojgaard A/S and Hoffmann A/S all

assert that, even if their status as successors to the

DCC component companies is established, they are not

“necessary parties” or “required parties” as defined in

F. R. Civ. P. 19., Bravida opposition at 6-7;

Hojgaard/Hoffmann opposition at 5. Under the

applicable procedural regulation, the Federal Rules of

Civil Procedure apply in situations not covered by

statute, executive order, regulation, or the Department

of Labor’s procedural rules. 29 C.F.R. § 18.1(a). And, as

discussed above, the LHWCA and the applicable

regulation require an employer to be a party. As the

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courts and the Board have enunciated, if a claimant is

an employee of a joint venture, then all of the

companies that comprise the joint venture are the

claimant’s employers.

The Director asserts that Susoeff stands for the

proposition that proceedings must be halted to allow an

employer to be joined as a party, and to participate in

proceedings. Susoeff was an occupational disease case

in which the claimant had multiple employers over a

period of years; but, it appears, the claimant was only

employed by a single employer at any point in time.

The claimant asserted “exposure to a deleterious

substance (asbestos), and the issue was which

employer was responsible for the exposure. Under such

circumstances, the Board held, all of the employers

must be joined as parties, even if the joinder delayed

the proceedings. The situation here is somewhat

different. Here, all parties recognize that any liability

to the Claimants would derive from the Claimants’

status as employees of the DCC and on events that

occurred during their employment. My May 13, 2014

Order, amending the case caption to include the DCC,

recognized this requirement.

I find that neither the LHWCA nor the Department

of Labor’s regulations address the issue of whether an

entity that was allegedly a member of a joint venture

must be joined when an entity that was another

member of the joint venture is already a party.

Consequently, I will look to F. R. Civ. P. 19 to

determine whether Bravida Danmark A/S, MT

Hojgaard A/S and Hoffmann A/S are to be joined as

A73

parties.19

This provision states that a person must be joined

if in that person’s absence, the tribunal “cannot accord

complete relief among existing parties.”20 21

F. R. Civ. P. 19(a)(1)(A). Bravida Danmark A/S states

that a defendant’s right to contribution or

indemnification from an absent party does not make

that party necessary under F. R. Civ. P. 19(a)(1)(A),

and asserts “it is black letter law that when a plaintiff

19

F.R. Civ. P. 20 concerns permissive joinder of parties, and states

that defendants may be joined as parties if any right to relief is

asserted against them “jointly, severally, or in the alternative with

respect to our arising out of the same transaction, occurrence, or

series of transactions or occurrences” and any question of law or

fact common to all defendants will arise. F. R. Civ. P. 20(a)(2).

20

There is a second type of situation in which joinder is necessary,

but this involves a person who claims an interest in the litigation.

F. R. Civ. P. 19(a)(1)(B). Bravida Danmark A/S, MT Hojgaard A/S

and Hoffmann A/S all assert this provision is inapplicable. Bravida

opposition at 7-9, Hojgaard/Hoffmann opposition at 9-11. Because

Bravida Danmark A/S, MT Hojgaard A/S and Hoffmann A/S

disclaim any interest whatsoever in this litigation, I find that this

provision is inapplicable and will not discuss it.

21

21 F. R. Civ. P. 19 is limited to persons who are subject to

service of process. In their opposition, MT Hojgaard A/S and

Hoffmann A/S assert that neither the Claimants nor the Director

has established that personal jurisdiction exists, because they are

overseas companies with insufficient contacts in the United States

to effect jurisdiction. Hojgaard/Hoffmann opposition at 12-16. I

have previously, with regard to Topsoe-Jensen, addressed the issue

of service of process on companies located in Denmark. See, e.g.,

Order of Mar. 11, 2013. I will not address this aspect of the

Hojgaard/Hoffmann opposition.

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seeks damages against one member of a partnership,

other jointly and severally liable partners are not

necessary parties.” Bravida opposition at 6 (citation

omitted). MT Hojgaard A/S and Hoffmann A/S also

assert that partners that may be jointly and severally

liable are not necessary parties under F. R. Civ. P.

19(a)(1)(A). Hojgaard/Hoffmann opposition at 6. They

also note that, although the Director has expressed

concern that the Special Fund may be implicated if Pihl

cannot or will not comply with a compensation order,

there is no indication that Pihl will not fulfill such an

obligation. Hojgaard/Hoffmann opposition at 6.

The Advisory Committee’s note to F. R. Civ. P. 19

stated that the Rule is consistent with “settled

authorities” holding that “a tortfeasor with the usual

‘joint-and-several’ liability is merely a permissive party

to an action against another with like liability,” and

remarked that joinder of these tortfeasors “continues to

be regulated by Rule 20,” the rule on permissive

joinder. Advisory Committee Note to F. R. Civ. P. 19

amended rule (1966). It has been said that F. R. Civ. P.

19 calls for courts to make “pragmatic, practical

judgments that are heavily influenced by the facts of

each case.” Bacardi Int’l Ltd., v. V. Suarez & Co., Inc.,

719 F.3d 1, 9 (1st Cir. 213). Moreover, a party that is

subject to joint and several liability may file a separate

suit for contribution or indemnity against absent

partners.22 See Sullivan v. Starwood Hotels & Resorts

22

In the event that the Pihl is found to be liable in this matter, it

may in fact be more feasible for it, a Danish company, to seek

indemnification against other Danish companies in Denmark

rather than in the United States. In such circumstance, it is likely

A75

Worldwide, Inc., 949 F. Supp. 2d. 324, 331 (D. Mass

2013).

I find the assertion that the companies the Director

seeks to join are not necessary parties as defined in F.

R. Civ. P. 19(a)(1)(A) to be persuasive. In this matter,

the only basis for liability stems from the long-ago

relationship between the Claimants and their former

employer, the DCC. Unlike the situation in Susoeff,

there is no independent (prior or subsequent) employeremployee relationship between the Claimants and any

of the companies that the Director seeks to join.

Moreover, the Pihl has not controverted its status as a

DCC component company, and so there exists a party

against which the Claimants can obtain complete relief.

In addition, as discussed above, general principles of

partnership/joint venture law, as well as the DCC’s

governing agreement, indicate that the DCC

components share liability: accordingly, in the event

that I issue a compensation order, Pihl (or its

bankruptcy trustees) will have the opportunity to seek

recoupment against the DCC component companies or

their successors.

The Director has expressed concern that Pihl, due

to its bankruptcy, may not have the funds to comply

with any compensation order. Joinder Motion at 2. I

certainly understand that Pihl’s bankruptcy may be of

concern to the Director in the Director’s oversight role

over the Special Fund (see 33 U.S.C. § 918(b)). This

statutory provision authorizes the Director, in his

that whether a company was joined in this matter is of minimal

relevance.

A76

discretion, to make payments from the Special Fund in

cases where an employer’s insolvency precludes

payment of claims.

It also states that such employer “shall be liable for

payment into such fund” and gives the Director

(“Secretary of Labor”) the power to enforce this

liability. Presuming the DCC component companies

were jointly and severally liable, it appears that in the

event that Pihl’s bankruptcy prevents it from paying

compensation orders, the Director will have the ability

to seek recoupment not just from Pihl, but from any of

the DCC component companies (or their successors),

whether or not such entities were parties in these

claims.23 The Hojgaard/Hoffmann sur-reply also makes

this point. Hojgaard/Hoffmann sur-reply at 4-5, 7-8. I

am not persuaded that an entity must be a party in

this matter, at this point in time, in order for the

Director to be able to take such action, should it

become necessary.

Other Considerations

The principal reason that the Claimants oppose

joinder is that it would delay the resolution of their

claims. Claimants’ opposition at 2-3. MT Hojgaard A/S

and Hoffmann A/S also assert that, if they were to be

joined, the litigation would have to “effectively begin

again” because (among other things) due process would

require them to have a full opportunity to confront the

evidence already offered. Hojgaard/Hoffmann

23

See 7 WRIGHT ET AL. FED. PRACTICE & PROCEDURE § 1623 (3d ed.

1998) (joinder of a partner is not necessary when partners are

jointly and severally liable).

A77

opposition at 17-19. Similarly, Bravida Danmark A/S

asserts that its joinder would cause substantial delay.

Bravida opposition at 9-11.

If it were necessary for these companies to be joined

in order for the Claimants’ claims to be fully

adjudicated, I would do so, notwithstanding that such

joinder would mean that the ultimate decision would be

delayed. However, for the reasons set forth above, I

find that it is not necessary for these companies to be

joined. As I have discussed, Pihl’s bankruptcy does not

preclude the Claimants from obtaining relief, and in

the event that the Director is required to use the

Special Fund, the Director is not necessarily precluded

from obtaining reimbursement from other DCC

component companies, whether or not they were

parties to the litigation before me.

I am cognizant that the Director’s joinder motion

was filed well after the litigation of these claims

commenced. Indeed, even though the Director’s

representative informed the litigants that he intended

to file a joinder motion as early as November 2013, he

did not in fact do so until February 2014.Transcript of

Nov. 6, 2013 conference at 18-19, 27. The Director’s

Joinder Motion does not explain the reason for the

several months’ delay.

This matter has been pending for an inordinate

length of time. Indeed, the first hearing session was in

December 2012. And the record has not yet closed.

Considering the interests involved, including the

interests of the Claimants in getting this matter to

adjudication, I find that the harm that would result

from the delay that would be incurred due to the

A78

joinder of additional Employers outweighs the potential

benefit that would result from additional parties that

could be held liable.

Conclusion

For all of the foregoing reasons, I DENY the

Director’s Joinder Motion.

Claimants’ Cross-Motion

With their response to the Director’s Joinder

Motion, the Claimants also filed a “Cross- Motion for

Penalties.” In this cross-motion, the Claimants asserted

that the actions of the District Director (David

Groeneveld) and the Director’s representative (Donald

d’Entremont) should be certified to the appropriate

United States District Court in accordance with 29

C.F.R. § 18.20(b), because the Joinder Motion was

“bogus,” “speculative” and “last-minute” and thus was

“obstructive and deliberately designed to halt and

impede the conclusion of hearings in the above cases.”

Cross-Motion at 16 (¶¶s 54, 55, 57); Notice of CrossMotion at 1. According to the Claimants, the purpose of

the Joinder Motion was “designed to ensure that any

determination of Claimants’ entitlement to benefits

under LHCWA, will be postponed indefinitely and

subject to several more years of litigation.” Id. (at ¶ 55;

see also ¶ 57). The Claimants stated that the actions of

these officials “brings the U.S. Department of Labor

into disrepute and must be penalized accordingly.” Id.

(at J 58).

Certification to District Court is a mechanism that,’

under the LHWCA, is available in the event a person

(not necessarily a party) disobeys or resists any lawful

A79

order, or “misbehaves” during a hearing, or engages in

other misconduct. 33 U.S.C. § 927(b). This provision is

also set forth at 29 C.F.R. § 18.29(b). Turning to the

language of the statute and regulation, I find that the

Director’s representative’s action in filing the Joinder

Motion does not constitute the type of conduct for

which certification to the District Court is appropriate

(“misbehaves during a hearing or so near the place

thereof as to obstruct the same”). Rather, from the

plain language of the provision, I find that it is

intended to provide a sanction when hearing attendees

or spectators are disruptive or otherwise engage in

misconduct at a hearing.

Additionally, based on the record before me, I find

there is no evidence that the Director’s Joinder Motion

was filed with the intent to delay this litigation

unnecessarily. Rather, I conclude that the record

reflects that the Employer’s (Pihl’s) bankruptcy in

August 2013 prompted the Joinder Motion. See Joinder

Motion at 2. The Employer’s insolvency increased the

likelihood that, in the event the Claimants were

successful in their claims, the Director would be

requested to make payments to the Claimants from the

Special Fund. See 33 U.S.C. § 918(b).

The filing of the Joinder Motion, and its timing, are

consistent with the Director’s fiduciary responsibility

over the Special Fund.24 See 20 C.F.R. § 702.321. The

Claimants’ assertion that the Director acted improperly

24

As noted above, though, the Director delayed from August 2013

(when Pihl declared bankruptcy) to February 2014 before filing the

Joinder Motion

A80

in bringing the Joinder Motion is based on nothing but

speculation.

Accordingly, I find that certification to the District

Court is not appropriate. And, therefore, I DENY the

Claimants’ Motion.

Director’s Role in this Matter

After careful consideration of the parties’

submissions relating to the Joinder Motion, including

the Joinder Motion itself and the responses in

opposition, I find it is appropriate for me to comment,

in a general way, on the Director’s role in this matter.

The Claimants contend that the Director’s status as

a party in LHWCA Act cases in general, and this

matter in particular, is inappropriate. They have raised

this issue not just in response to the Joinder Motion

but also in other filings. See, e.g., “Clarification of

Claimants’ Objections to OWCP Director’ [s] Proffer of

Evidence,” dated June 17, 2014. In sum, the Claimants

posit that the Director has “no adversarial role” in

LHCWA/Defense Base Act litigation, and so the

Director’s actions in participating in the instant matter

have been improper.25 Id. at 3. I find that the

Claimants’ position is not supported by the very

25

The Claimants have cited, in particular, the Director’s action in

supporting Pihl’s dismissal motions; obtaining a certified

translation of an Employer’s exhibit at government expense;

allegedly threatening the Danish bankruptcy trustee “with a $200

million claim”; and the Joinder Motion. Clarification of Claimants’

Objections to OWCP Director’ [s] Proffer of Evidence at 3.

A81

precedent the Claimants cite.26 In Dir., OWCP v.

Newport News Shipbuilding & Dry Dock Co., 514 U.S.

122, 130-31 (1995), the Court identified functions that

the Director must perform under the LHCWA. These

functions include “enforcing compensation orders and

administering payments to and disbursements from the

special fund established by the Act ...” I find that the

Newport News case indicates that the Supreme Court

specifically recognized the Director’s responsibility over

the Special Fund. Additionally, I find that the

Director’s role in administering the Special Fund

justifies the Director’s appearance and participation in

this matter.

Further, I find that the Director’s representative

(Solicitor of Labor) has a regulatory right to appear in

and participate in any formal hearing “on behalf of the

Director as an interested party.” 20 C.F.R. § 702.333(b).

Therefore, contrary to the Claimants’ contention, it is

not appropriate to infer that the Director has abused

the litigation process merely because the Director’s

representative has appeared as a party in this matter

and has participated in the litigation of the Claimants’

claims. I am aware of no precedent that articulates

that the Director’s role in formal hearings before

administrative law judges is circumscribed in any way.

Indeed, based on the regulation’s provision that the

26

I also find that, contrary to the Claimants’ position, the Newport

News case does not hold that the Director is foreclosed from

participating in LHCWA litigation; rather, this case relates to the

Director’s lack of standing to appeal a discrete type of case from

the Benefits Review Board to the federal courts because the

Director was not an aggrieved party as defined in 33 U.S.C.

§ 921(c), in such cases.

A82

Director’s representative may “participate” as an

“interested party,” I conclude that the decision on

whether to participate in any hearing, and to what

extent, is at the complete discretion of the Director.27

SO ORDERED.

s/ADELE H. ODEGARD

Administrative Law Judge

Cherry Hill, New Jersey

27

In addition, I remind the parties that I have issued multiple

orders that required the Director to take specific actions, based on

the Claimants’ assertions or allegations. See, e.g., Orders of Feb.19,

2014; May 13, 2014; July 8, 2014. Based on the Director’s

representative’s responses to my Orders, I am satisfied that the

Director and the Director’s representative have acted in

accordance with the applicable regulations throughout the course

of this litigation.

A83

APPENDIX G

Hoist, AdvokaterL = T T REL MERT

SOL1C[TORS CFFICE

cc w’T

KROMANN

REUMERT

lifili IA 13 P12:38

ADVOKAITIRIVIA

United States Department of Labor

Office of the Solicitor

John F. Kennedy Federal Building Rm. E

Boston, Massachusetts 02203

USA

SUNDMOGSGADC 5

DX-2100 KOBENI-JAVN 0

TEL+457012 12 11

FAX, +457012 13 D

PIHL@KROMANNREOMER.COM

LESPONISIBI, PARTNER:

January 6 2014

11.1. Legal proceedings in the USA concerning the

Thule Air base, Greenland. When the bankruptcy order

was made, the company was party to legal proceedings

pending in the USA. The legal proceedings arise from

a joint venture, Danish Construction Company US,

which was founded in 1959, in which the company

participated.

A84

In the period from 1963 to 1970, the joint venture

entered into a number of agreements concerning the

Thule Air Base in Greenland with the American state,

and in the period from 1967 to 1968 Danish

Construction Company I/S thus had about 1,000 staff

members at the Thule Air Base. Before the bankruptcy,

three of these former employees had filed a writ in the

USA against the now bankrupt company.

After reviewing the case documents and thorough

discussions with the company’s lawyer in the USA, the

trustees have chosen to become a party to the pending

litigation, If the bankrupt estate had chosen not to

continue the litigation, most likely the outcome would

have been the equivalent of a default judgment against

the company, on which basis the former employees can

probably request payment of the claimed compensation

amount from a state-administered fund which will

subsequently have recourse against the estate. The

case is a so-called “test case”, and if the case is lost it is

expected to result in a large number of lawsuits from a

large group of former employees of Danish

Construction Company 1/S.

The American authority which administers the fund

has consequently given notice to the bankruptcy estate

that a claim for contribution in the amount of USD 200

million would be filed, During the case, the trustees

have been assisted by the lawyer who previously

assisted the company.

A85

The trustees’ continuation of the legal proceedings has

been made following thorough contemplations and

discussions with the American lawyer. About three

fourths of the legal proceedings are completed, and

according to the estate’s American lawyer the outcome

of the proceedings is expected to be in favour of the

bankrupt estate, whereby the total liabilities can

probably be reduced by an amount in the range of USD

200 million.

The work has mainly consisted in continuing

examination of pleadings and discussions with the US

lawyer, The work is still ongoing.