BRB No. 93-1947
HELAL UDDIN )
)
Claimant-Respondent )
)
v. )
)
SAIPAN STEVEDORE COMPANY, )
INCORPORATED )
)
Self-Insured ) DATE ISSUED: 08/13/1996
Employer-Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order Awarding Benefits of G. Marvin Bober,
Administrative Law Judge, United States Department of Labor.
Jay H. Sorensen, Saipan, Northern Mariana Islands, for claimant.
Donald R. Hazlewood, Saipan, Northern Mariana Islands, and Ronald H.
Klein (Emard & Perrochet), San Francisco, California, for self-insured
employer.
Mark A. Reinhalter (J. Davitt McAteer, Acting Solicitor of Labor; Carol
A. DeDeo, Associate Solicitor; Samuel J. Oshinsky, Counsel for
Longshore), Washington, D.C., for the Director, Office of Workers'
Compensation Programs, United States Department of Labor.
Before: SMITH, BROWN and DOLDER, Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order Awarding Benefits (91-LHC-1510) of
Administrative Law Judge G. Marvin Bober 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. (the Act). We must affirm the
administrative law judge's findings of fact and conclusions of law if they are
supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965).
Claimant, who resides and works on the island of Saipan, in the Commonwealth
of the Northern Mariana Islands (CNMI), began working for employer on April 13,
1987, as a stevedore, performing all ship- and stevedore-related work. Tr. at 24-25. On June 13, 1987, claimant stood on top of a container to unhook it after it
was loaded on the ship. The crane and cable developed a problem and started
shaking. Claimant injured his back when he jumped from the container onto the deck
of the ship before the crane fell onto the container. Id. at 27-31. He
returned to work in July, but he soon quit because he was unable to perform heavy
work without pain. By November 1987, claimant had begun working as a security
guard with various agencies. Decision and Order at 2-3. Employer paid temporary
total disability and medical benefits from June 13 through July 8, 1987, and
claimant filed a claim for continuing benefits.
On November 24, 1992, the administrative law judge issued an order denying
employer's motion to dismiss the claim for lack of jurisdiction. Employer argued
that the Act does not apply to the CNMI because the Covenant establishing the CNMI,
see infra, does not mention the Act as applying and because the Act, by
definition, does not cover the CNMI. The administrative law judge determined that
the Act applies to territories of the United States (U.S.) and their waters and it
applies to Guam; therefore, he concluded it applies to the CNMI. In his decision
issued on June 4, 1993, prior to addressing the factual issues raised in the case,
he reaffirmed his conclusion that the Act applies to the CNMI. Decision and Order
at 4. Thereafter, the administrative law judge awarded claimant permanent partial
disability and medical benefits, interest, a Section 14(e) penalty, and an
attorney's fee. Id. at 6-9. On appeal, employer raises only the
jurisdiction issue. Both claimant and the Director, Office of Workers'
Compensation Programs (the Director), respond. Before addressing employer's
appeal, we shall outline the history of the CNMI and its political status in the
U.S.
The Northern Mariana Islands are a group of small islands located in the South
Pacific, in Micronesia, north of Guam. Saipan, Tinian, and Rota are the largest
and most populated islands of the group. See Hillblom v. United States, 896
F.2d 426 (9th Cir. 1990); S. Rep. No. 596, 94th Cong., 2d Sess.4-5 (1976),
reprinted in 1976 U.S.C.C.A.N. 448 (1976). From the beginning of World War
I until the U.S. invasion in 1944, Japan ruled the Marianas. From 1944 until 1947,
the islands were a U.S. possession. In 1947, the United Nations designated the
area as a Trust Territory to be administered by the U.S. Micronesian
Telecommunications Corp. v. NLRB, 820 F.2d 1097, 1098 (9th Cir. 1987)
(MTC).
In 1969, the U.S. began negotiations with representatives of the Micronesian
islands of the Trust Territory to determine their future political status. In
1972, representatives of the Northern Mariana Islands entered into separate
negotiations with the U.S. because they desired a closer tie to the U.S. than did
the remaining island communities.[1] United
States v. De Leon Guerrero, 4 F.3d 749, 751 (9th Cir. 1993); Temengil v.
Trust Territory of the Pacific Islands, 881 F.2d 647, 650 (9th Cir. 1989). In
1976, the U.S. and the Northern Mariana Islands entered into a "Covenant to
Establish a Commonwealth of the Northern Mariana Islands in Political Union with
the United States of America" (Covenant). The Covenant was approved by the
legislature and citizens of the Northern Mariana Islands and was enacted into law
by the U.S. Congress. Joint Resolution of March 24, 1976, Pub.L. No. 94-241, 90
Stat. 263, reprinted in 48 U.S.C. §1681 note; see De Leon
Guerrero, 4 F.3d at 751. Some of the provisions of the Covenant became
effective in 1976, others in 1978 by Presidential Proclamation, and as of November
3, 1986, the Covenant took full effect.[2]
Covenant §1003(b), 48 U.S.C. §1801 (Supp. 1995); MTC, 820 F.2d at
1099; Proclamation No. 4534, 42 Fed. Reg. 56,593. Despite the staggered effective
dates, the U.S. generally treated the Northern Mariana Islands as a commonwealth
since 1978. Temengil, 881 F.2d at 650.
Employer contends that the Act, by definition, does not cover the CNMI because
the Act's silence on the matter indicates the CNMI is not included in the
definition of "United States." Employer argues that the status of the CNMI is like
that of Puerto Rico and, as the Act is not applicable to Puerto Rico, it should not
apply to the CNMI. The Director, however, maintains that the CNMI falls within the
coverage of the Act and the definition of "United States" in Section 2(9), 33
U.S.C. §902(9), as the term "Territory" has a broad meaning, and that the
Act's silence on the matter merely indicates the CNMI is not excluded. Section
3(a) of the Act, 33 U.S.C. §903(a), provides that it covers injuries or deaths
which occur "upon the navigable waters of the United States. . . ." Section 2(9)
defines the term "United States" as follows: "The term `United States' when used
in a geographical sense means the several States and Territories and the District
of Columbia, including the territorial waters thereof." 33 U.S.C. §902(9).
Employer contends the CNMI is not a "Territory" and thus does not fall within the
Act's realm of coverage.
The term "territory" (or "Territory") does not have a fixed and technical
meaning and is not defined in the Act. As the Board stated in Tyndzik v.
University of Guam, 27 BRBS 57, 61 (1993) (Smith, J., dissenting on other
grounds), rev'd in part on other grounds sub nom. Tyndzik v. Director, OWCP,
53 F.3d 1050, 29 BRBS 83 (CRT) (9th Cir. 1995), the meaning "may vary and further
analysis is required to determine the applicable usage." Although the terms
"possession," "territory,"[3] and
"commonwealth,"[4] have been used to label the
islands, the "political and sovereign status of the Trust Territory . . . puzzled
legislators, courts, and commentators from the beginning." Temengil, 881
F.2d at 650. Currently, the CNMI and Puerto Rico are commonwealths while Guam and
the Virgin Islands are territories. See Tyndzik, 27 BRBS at 62 (Board finds
status of Guam closer to that of the Virgin Islands than to that of Puerto Rico);[5] Jon M. Van Dyke, The Evolving Legal
Relationships Between the United States and Its Affiliated U.S.-Flag Islands,
14 U. Haw. L. Rev. 445, 450-451 (1992).
Senate Report 94-596 describes the CNMI as follows:
Although described as a commonwealth, the relationship is territorial in
nature with final sovereignty vested in the United States and plenary
legislative authority vested in the United States Congress. The
essential difference between the Covenant and the usual territorial
relationship, such as that of Guam, is the provision in the Covenant
that the Marianas constitution and government structure will be a
product of a Marianas constitutional convention, as was the case with
Puerto Rico, rather than through an organic act of the United States
Congress.
1976 U.S.C.C.A.N. at 449. Thus, there is some support for employer's analogy
between the CNMI and Puerto Rico, wherein the Act is inapplicable. Garcia v.
Friesecke, 597 F.2d 284 (1st Cir.), cert. denied, 444 U.S. 940 (1979)
(Court concluded that workers' compensation law is a local matter to be addressed
by the Puerto Rican legislature); Guerrido v. Alcoa Steamship Co., 234 F.2d
349 (1st Cir. 1956). The CNMI has agreed it is an "unincorporated territory" which
resembles Puerto Rico; however, it claims it is different from other unincorporated
territories such as Puerto Rico because it has a right to self-government which is
guaranteed by the mutual consent provisions of the Covenant and no other territory
has this guarantee. Commonwealth of the Northern Mariana Islands v. Atalig,
723 F.2d 682, 691 n.28 (9th Cir.), cert. denied, 467 U.S. 1244 (1984);
see also Covenant §§101-105, 48 U.S.C. §1801 (Supp. 1995);
Garcia, 597 F.2d at 293 n.11. Nonetheless, despite the similarity between
the status of Puerto Rico and the status of the CNMI, we conclude the
administrative law judge properly relied on the terms of the Covenant which created
the CNMI to determine that the Act applies therein.
Article I of the Covenant defines the relationship between the U.S. and the
CNMI. Section 102 states that relations will be governed by the "Covenant which,
together with those provisions of the Constitution, treaties and laws of the United
States applicable to the Northern Mariana Islands, will be the supreme law of the
Northern Mariana Islands."[6] Covenant §102,
48 U.S.C. §1801 (Supp. 1995). Article V of the Covenant concerns the
applicability of U.S. laws. Section 501 discusses the portions of the U.S.
Constitution which apply to the CNMI and Section 502 discusses which laws apply.
Specifically, Section 502 provides:
(a) The following laws of the United States in existence on the
effective date of the Section and subsequent amendments to such laws
will apply to the Northern Mariana Islands, except as otherwise provided
in this Covenant:
(1) those laws which provide federal services and financial
assistance programs and the federal banking laws as they apply to
Guam; Section 228 of Title II and Title XVI of the Social Security
Act as it applies to the several States; the Public Health Service
Act as it applies to the Virgin Islands; and the Micronesian Claims
Act as it applies to the Trust Territory of the Pacific Islands;
(2) those laws not described in paragraph (1) which are
applicable to Guam and which are of general application to the
several States as they are applicable to the several States;
Covenant §502(a)(1), (2), 48 U.S.C. §1801 (Supp. 1995) (emphasis added).
Section 502 of the Covenant became effective on January 9, 1978. Proclamation No.
4534. The authority of the U.S. towards the CNMI arises solely under this
Covenant. Hillblom, 896 F.2d at 429.
Pursuant to Section 504, a commission was appointed to survey U.S. laws and
make recommendations regarding which laws should apply to the CNMI. Covenant
§504, 48 U.S.C. §1801 (Supp. 1995). In its report, the Commission
determined that the Act would cover injuries on the navigable waters of Guam, and
therefore, the Act would apply to the CNMI.[7]
Later, the research staff studied the Act in more depth and appears to have drawn
the conclusion that the Act pertains to the CNMI.[8]
The administrative law judge relied on Section 502 of the Covenant and the
Commission's findings to conclude that, as the Act is applicable to Guam, it,
therefore, is applicable to the CNMI. Order at 2. Employer contends this reliance
is improper. It argues that the Act does not apply to the CNMI because the Act and
Covenant are silent on the matter and it is impossible to know the intent of the
Covenant or of Congress. Consequently, it argues, there is no evidence to show
that the Act should be included in the laws covering the CNMI.[9] Employer maintains that the lack of case law,
memoranda, etc., applying the Act to the CNMI reflects the intent to exclude
the CNMI from coverage. We reject employer's argument. Silence on the matter
should not be interpreted as an intent to exclude or an intent to include, but
should be considered on a case-by-case basis. See generally United States v.
Standard Oil Co. of Cal., 404 U.S. 558 (1972).
Other statutes which are not identified in the Covenant have been held to
apply to the CNMI. For example, relying on Section 502 of the Covenant and the
Commission's recommendation, the United States Court of Appeals for the Ninth
Circuit, which has jurisdiction over this case, held that the National Labor
Relations Act (NLRA) applies to the CNMI. MTC, 820 F.2d at 1100-1101.
Moreover, the court rejected the argument that Congress did not contemplate
including the CNMI under the NLRA's coverage. It quoted the following from the
Supreme Court's decision in Standard Oil, 404 U.S. at 559 (Sherman Act is applicable to American Samoa):
if the acquisition of that insular dependency had been foreseen,
Congress would have so varied it (sic) comprehensive language as to
exclude it from the operation of the act
to conclude that lack of foresight alone is not enough to exclude coverage;
therefore, the term "Territory," which has been read broadly, includes the CNMI.
MTC, 820 F.2d at 1100. The Ninth Circuit has held that the civil rights
statutes, 42 U.S.C. §§1981, 1983, and the Jones Act, 46 U.S.C. §688,
also cover the CNMI. Misch v. Zee Enterprises, Inc., 879 F.2d 628 (9th Cir.
1989) (Jones Act); Fleming v. Dep't of Public Safety, 837 F.2d 401 (9th
Cir.) (§§1981, 1983), cert. denied, 488 U.S. 889 (1988); see
also Temengil, 881 F.2d at 651.
Employer also contends the Act does not apply to Guam and, consequently,
cannot apply to the CNMI under Section 502 of the Covenant. It argues that the
Board's decision regarding application of the Act to Guam in Tyndzik need
not be followed because it is "merely dicta." Alternatively, employer
argues that if it is not dicta, it was decided incorrectly. Contrary to
employer's assertion, the Board's holding is not dicta. Dicta refers
to an observation made by a court which is not necessary to the disposition of the
case before it. Cole Energy Development Co. v. Ingersoll-Rand Co., 8 F.3d
607 (7th Cir. 1993); Burroughs v. Holiday Inn, 621 F.Supp. 351 (D.C.N.Y.
1985); 1B Moore's Federal Practice, 0.402[2] at 38 (2d Edition, 1984). In
Tyndzik, two issues were raised before the Board. Both issues were
discussed and decided and it was necessary to resolve the issue of whether the Act
applies to Guam before it could address the issue of whether the University of Guam
was exempt under Section 3(b) of the Act, 33 U.S.C. §903(b). Consequently,
the Board's holding that the Act applies to Guam is controlling. Further, on
appeal in Tyndzik, the Ninth Circuit addressed only whether the University
of Guam was a "subdivision" of the Territory of Guam at the time Tyndzik was
injured. See Tyndzik, 53 F.3d at 1050, 29 BRBS at 83-84 (CRT). Thus, the
court did not disturb the Board's holding that the Act applies to Guam.
Employer also contends the Act should not apply to the CNMI because the CNMI,
like Puerto Rico, has provided its own coverage to injured workers. Claimant
responds, arguing that the CNMI statute did not exist at the time of his injury,
and therefore, the Act must apply in the absence. Employer replies, maintaining
there were other legal remedies available to claimant at that time. This issue is
not dispositive, as state workers' compensation laws and the Act may have
concurrent jurisdiction over maritime employees. Sun Ship, Inc. v.
Pennsylvania, 447 U.S. 715, 12 BRBS 890 (1980). Regardless of whether there
was a local workers' compensation act in effect at the time of claimant's injury,
the Act can only apply if it fulfills the provisions of Section 502 of the Covenant,
as we conclude it does.[10]
Given the broad definition of the term "territory," the Covenant provision
requiring that laws applicable to Guam and the several States also apply to the
CNMI, the Commission's recommendation that the Act applies to the CNMI, and the
Board's decision that the Act applies to Guam, it is reasonable for the
administrative law judge to have concluded that the Act also applies to the CNMI.
Therefore, we reject employer's arguments and affirm the administrative law judge's
award of benefits.
Accordingly, the administrative law judge's Decision and Order is affirmed.
SO ORDERED.
_______________________________
ROY P. SMITH
Administrative Appeals Judge
_______________________________
JAMES F. BROWN
Administrative Appeals Judge
_______________________________
NANCY S. DOLDER
Administrative Appeals Judge
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Footnotes.
1)The remaining communities eventually formed the Federated
States of Micronesia, the Marshall Islands, and Palau, all of which entered into
Compacts of Free Association with the U.S. Temengil v. Trust Territory of the
Pacific Islands, 881 F.2d 647, 650 (9th Cir. 1989).
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2)As of November 3, 1986, the Trusteeship Agreement was
terminated with respect to the Northern Marianas. MTC, 820 F.2d at 1099.
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3)A "territory" is defined as the land and waters under the
jurisdiction of a state, nation, or sovereign. Webster's II New Riverside
University Dictionary (1984). A "Territory" is considered to be a part of the U.S.
that is not admitted as a state, but is administered by a governor and a
legislature. Id. Technically, incorporated territories ("Territories") are
destined for statehood. Tyndzik, 27 BRBS at 60; Jon M. Van Dyke, The
Evolving Legal Relationships Between the United States and Its Affiliated U.S.-Flag
Islands, 14 U. Haw. L. Rev. 445, 449 (1992).
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4)A "commonwealth" is defined as a nation or state that is self-governing and autonomous and has a voluntary relationship with a larger political
unit. Webster's II New Riverside University Dictionary (1984).
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5)The Act applies to the Virgin Islands. Peter v. Hess Oil
Virgin Islands Corp., 903 F.2d 935, reh'g denied, 910 F.2d 1179 (3rd
Cir. 1990), cert. denied, 498 U.S. 1067 (1991).
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6)In accordance with the Covenant, the CNMI has the right to
local self-government, while the responsibilities relating to foreign matters and
defense rest with the U.S. Government. Covenant §104, 48 U.S.C. §1801
(Supp. 1995); Hillblom, 896 F.2d at 428.
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7)Northern Mariana Islands Commission on Federal Laws,
Welcoming America's Newest Commonwealth: The Second Interim Report of the
Northern Mariana Islands Commission on Federal Laws to the Congress of the United
States (1985) at 52.
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8)3 Legal Analysis of Selected Titles of the United States
Code: Research by the Staff of the Northern Mariana Islands Commission on Federal
Laws (1985) at 1019.
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9)We reject employer's assertion that the Commission report is
not persuasive because the introduction to the research staff report concludes with
a disclaimer of the materials. The research committee's introduction also states:
Caveats aside, the research compiled in these volumes is sufficiently
valuable to justify its photocopying and distribution to institutions
especially concerned with the applicability of federal laws to the
Northern Mariana Islands.
Moreover, the comments therein do not encompass the recommendations reported in the
Second Interim Report, which were "widely circulated for critical comment. . .
."
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10)We also reject employer's remaining "practical" challenges
to the application of the Act in the CNMI, as administration of the Act is the
responsibility of the Director, who, in this case, promotes application therein.
Moreover, we disagree with employer's allegation that administration of the Act
over such a great distance would be difficult. By operation of its extensions, the
Act covers great distances. See 43 U.S.C. §1301 et seq. (Outer
Continental Shelf Lands Act); 42 U.S.C. §1651 et seq. (Defense Base
Act); 5 U.S.C. §8171 et seq. (Nonappropriated Fund Instrumentalities
Act).
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NOTE: This is a PUBLISHED LHCA Document.
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