Does the Defense Base Act apply to Non-Citizens

The Parties

Edward Jetnil is a citizen of the Republic of the Marshall Islands. Chugach Management Services, also known as the Chugash Alaska Corporation, is a business services company. Chugash provides general contracting and construction management services, among others. They also provide workers for energy industries such as oil and gas.

The Facts

Mr. Jetnil lived on Third Island, a part of the Kwajalein Atoll. This remote location is the home of the US Army Space and Missile Defense Command’s Ronald Reagan Ballistic Missile Defense Test Site. As a part of his employment with Chugash, he would work on either an island called Roi Namur or the smaller Gagan Island. The only living quarters on Gagan Island are a trailer provided by Chugash. The tiny island has no inhabitants beyond anyone working there for Chugash, and it is solely accessible by boat. In addition, no one is permitted to visit the island without the permission of Chugash.

In January of 2009, Jetnil and his coworkers were brought to Gagan Island with food, for a work detail. It was customary (and known to Chugash) that, at times, employees would go fishing in order to supplement their meals. The company even had a policy of not allowing reef fishing during working hours.

After hours, on January the 9th, Jetnil went reef fishing and cut his foot. He kept working on Gagan Island through the following day. On the 20th or the 21st, he traveled to Roi Namur and told a colleague he was taking the rest of the week off. It was not until the 26th that he sought medical attention. The nurse at the Roi Namur Dispensary noticed Jetnil’s foot was wrapped, soiled, and foul-smelling. He was then flown by helicopter to the Kwajalein Hospital where a doctor evaluated him for the first time. The doctor diagnosed gas gangrene and recommended a bel0w the knee amputation. The operation occurred on the following day. Jetnil did not inform his employer of his injury or his surgery until February the 2nd.

The Legal Timeline

On the 20th of February, Chugash filed a Notice of Controversion of Right to Compensation, claiming that the injury did not arise in the course of Mr. Jetnil’s employment. The case eventually made its way to an Administrative Law Judge, in 2014.

Results of the Initial Hearing

The Administrative Law Judge relied on the case of O’Leary vs. Brown-Pacific-Maxon, and determined that Mr. Jetnil’s unconventional employment conditions created an environment with unique risks, that is, a zone of special danger.

Chugash had argued that the zone of special danger doctrine only applies to persons working abroad, whereas Jetnil was a citizen of the Republic of the Marshall Islands. The ALJ rejected this line of reasoning, ruling that the existence of a zone of special danger is not dependent upon whether a worker is out of his or her home country.

The ALJ also concluded that Jetnil’s disability was temporary, as he could be fitted with a prosthesis which could improve his ability to care for himself. However, the disability was total, in that he could not return to his usual and customary employment.

Chugash appealed to the Benefits Review Board, but in 2015 the Benefits Review Board affirmed the ALJ’s ruling. The Board reasoned that the Defense Base Act does not distinguish between domestic and foreign employees. Further, Congress and the United States Supreme Court have not omitted foreigners from coverage under the Defense Base Act.

The Appeal

Chugash then appealed to the United States Court of Appeals for the Ninth Circuit, petitioning for review. The Ninth Circuit denied the petition.

The Ruling on Appeal

The Ninth Circuit noted that O’Leary clarified that there does not need to be a causal connection between an injury and a person’s employment, so long as the zone of special danger situation exists. However, they also noted that Kalama Services, Inc. vs. Director, Office of Workers’ Compensation Programs drew a distinction, indicating that some activities, such as leisure activities, would be so far afield that they should not fall under the zone of special danger, if they were neither reasonable nor foreseeable.

The court found that Congress had explicitly included local nationals under the Defense Base Act, so Chugash’s argument did not fly, that Jetnil was not covered due to his citizenship. Furthermore, the Defense Base Act tends to cover employees in remote locations where there are often limited choices for leisure and entertainment. These inconvenient and often dangerous conditions do not discriminate on the basis of citizenship. The court felt that singling out a person such as Mr. Jetnil simply because of his citizenship would lead to contradictory case law and irrational results.

The court also ruled, pursuant to the Director’s argument that the zone of special danger would by necessity apply to locals differently from foreign nationals working abroad. It would be another matter entirely if Mr. Jetnil had suffered an injury while fishing at home on his day off. Instead, he was hurt while fishing in the middle of a four day overnight work assignment undertaken at the behest of his employer.

The court found there were no material questions of fact requiring further clarification. Mr. Jetnil would not have been on Gagan Island, but for the requirements of his employment. The island was under the control of Chugash. In addition, because reef fishing is a common activity in the Marshall Islands, it was reasonable to operate under the assumption that a person such as Mr. Jetnil would engage in that activity.

The Takeaway

For local nationals working in inconvenient, remote, and often dangerous locales, the zone of special danger can apply to them as well as it applies to American citizens working abroad in these areas. The Defense Base Act covers both type of employee. The hazards in a zone of special dangers can affect all.

Chugach Management Services; Zurich American Insurance Company v. Edward Jetnil; Director, Office of Workers’ Compensation Program; US Department of Labor