Barrosse v. Huntington Ingalls

Case: 21-30761 Document: 00516782736 Page: 1 Date Filed: 06/12/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
June 12, 2023
No. 21-30761 Lyle W. Cayce
Clerk
Lynn Barrosse; Raegan Holloway; Makenzie Stricker,
Plaintiffs—Appellants,
versus
Huntington Ingalls, Incorporated, formerly known as
Northrop Grumman Shipbuilding, Incorporated, formerly
known as Northrop Grumman Ship Systems, Incorporated,
formerly known as Avondale Industries, Incorporated,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-2042
Before Richman, Chief Judge, and Ho and Engelhardt, Circuit
Judges.
Kurt D. Engelhardt, Circuit Judge:
Federal law is the “supreme Law of the Land.” U.S. Const. art.
VI. When a state law looks like it might conflict with a federal statute or
regulation, courts consider preemption to see if the state law in question must
yield. Perry v. Mercedes Benz of N. Am., Inc., 957 F.2d 1257, 1261 (5th Cir.
1992). Here, Defendant-Appellee argues that Plaintiffs-Appellants’ state-law
tort claims are preempted by the federal Longshore and Harbor Workers’
1
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Compensation Act (“LHWCA” or “the Act”). But, under the specific facts
of this case and applicable Supreme Court caselaw, they are not. We
therefore REVERSE and REMAND.
I
A
Ronald Barrosse1 worked for Defendant-Appellee Huntington Ingalls
(formerly “Avondale”) as a shipyard electrician from February 1969 to June
1977. In March 2020, Barrosse was diagnosed with mesothelioma. Following
his diagnosis, he filed a state-law tort suit in the Civil District Court for the
Parish of Orleans alleging that Avondale, among other defendants, caused
Barrosse to contract mesothelioma by exposing him to asbestos in a negligent
manner. Because Barrosse primarily worked on United States Navy ships
when he was exposed, Avondale removed the case to federal district court
under the federal officer removal statute. See 28 U.S.C. § 1442; Latiolais v.
Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. 2020) (en banc). Barrosse
never claimed benefits under the LHWCA, which provides a no-fault
compensation remedy to injured workers. 33 U.S.C. § 904.
Avondale moved for summary judgment. Relevant here, Avondale
argued that Barrosse’s state-law tort claims were preempted by the
LHWCA because they directly conflicted with and frustrated the purposes
of the Act. The district court agreed and held that the claims are preempted.
Barrosse v. Huntington Ingalls Inc., 563 F. Supp. 3d 541, 559 (E.D. La. 2021).
Barrosse appeals.
1
Barrosse unfortunately passed away mid-litigation, so his survivors substituted
themselves as Plaintiffs-Appellants. To avoid confusion, they will collectively be referred
to herein as “Barrosse.”
2
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B
While cases about statutes typically begin with the text, recounting the
development of federal maritime compensation law is necessary to
understand the nuances presented in this case. In 1917, the Supreme Court
“declared that States were constitutionally barred from applying their
compensation systems to maritime injuries.” Sun Ship, Inc. v. Pennsylvania,
447 U.S. 715, 717 (1980) (citing S. Pac. Co. v. Jensen, 244 U.S. 205 (1917)).
After failed efforts to delegate compensation matters to the states, Congress
passed the LHWCA in 1927 to provide compensation for maritime workers.
Id. The original LHWCA expressly limited its application to those cases
where state worker’s compensation laws did not apply. Id. at 717–18.
But that limited application caused problems because it was unclear
where “the boundary at which state remedies gave way to federal remedies”
was. Id. at 718. Injured workers had to guess whether to file a claim under
state or federal law, and “the price of error was unnecessary expense and
possible foreclosure from the proper forum.” Id. The Supreme Court
responded with the creation of the so-called “twilight zone,” an area of
concurrent jurisdiction that applies on a case-by-case basis. Id. (discussing
Davis v. Dep’t of Labor, 317 U.S. 249, 253–56 (1942)).2 Notably, it did so over
a strong dissent which argued that the plain language of the Act “left no room
for an overlapping dual system” of concurrent jurisdiction. Davis, 317 U.S.
at 261 (Stone, C.J., dissenting). According to the dissent, the majority
interpreted the LHWCA to “not mean what it says”—that “[i]f there is
liability under the federal act, that liability is exclusive.” Id.2
The district court noted that “there appears to be no genuine [dispute] of material
fact that this is a twilight zone case,” and the parties do not contest that conclusion on
appeal. Barrosse, 563 F. Supp. 3d at 556.
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Nevertheless, the twilight zone prevailed. Among other cases, the
Supreme Court decided Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272,
273 (1959) (per curiam). In Hahn, the plaintiff brought a state-law tort claim.
Id. Because the plaintiff was in the twilight zone and compensation “could
have been, and in fact was, validly provided by [s]tate law,”3 the LHWCA
“did not bar” the claim. Id. (quotation marks omitted). Like Davis, Hahn was
decided over a dissent which argued that the twilight zone’s regime of
concurrent jurisdiction extended only to “a state workmen’s compensation
act or the [LHWCA],” and not to torts. Id. at 274 (Stewart, J., dissenting).
“In 1972, Congress . . . extend[ed] the LHWCA landward beyond the
shoreline of the navigable waters of the United States.” Sun Ship, 447 U.S.
at 719. Rather than “resurrecting the jurisdictional monstrosity” of pre-
Davis longshore compensation law, the Supreme Court reaffirmed the
twilight zone because it remained unclear where federal jurisdiction ended
and state jurisdiction began, even though that point “is fixed upon land.” Id.at 719–20. The upshot is that despite the text of the Act expressly providing
that employer liability for injuries falling under its ambit is “exclusive and in
place of all other liability of such employer to the employee . . . at law or in
admiralty,” the Supreme Court has limited that exclusivity to cases outside
the so-called twilight zone. 33 U.S.C. § 905(a).
3
This particular phrase is in reference to the pre-1972 version of the LHWCA,
which extended LHWCA coverage only if the state does not—and could not—validly
provide recovery. See Newport News Shipbuilding & Dry Dock Co. v. Dep’t of Labor, 583 F.2d
1273, 1277 (4th Cir. 1978) (discussing the language and its subsequent removal). The
district court held that the post-1972 version of the LHWCA applies here, and Barrosse
does not challenge that holding on appeal. Barrosse, 563 F. Supp. 3d at 548–52.
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C
The pertinent development of Louisiana compensation law is shorter,
but just as relevant in this case of concurrent jurisdiction. Louisiana passed
the applicable version of its Workers’ Compensation Act (“WCA”) in 1952.
See La. Rev. Stat. § 23:1031.1 (1952). Like most workers’ compensation
statutes, the WCA gave an injured worker a remedy that was “exclusive of
all other rights and remedies.” Id. The pertinent portion of the statute took
a schedule approach, only covering the diseases listed in the statutory text.
See Rando v. Anco Insulations Inc., 16 So. 3d 1065, 1072–73 (La. 2009). If a
disease was not listed, an afflicted worker could only bring a tort suit as
neither the compensation nor the exclusivity provisions of the WCA applied.
Id. at 1071.
Barrosse is one of those workers. Mesothelioma, the disease Barrosse
suffered from, was not covered by the WCA until it was amended in 1975.
Id.; see Williams v. Lockheed Martin Corp., 990 F.3d 852, 864 (5th Cir. 2021).
When survivors of a decedent bring state-law claims “based on asbestos
exposure,” we apply “the law in effect when the exposure occurred.” Savoie
v. Huntington Ingalls, Inc., 817 F.3d 457, 464 (5th Cir. 2016), overruled on other
grounds Latiolais, 951 F.3d at 296 n.9.4 Barrosse’s claims are based on alleged
exposure, as mesothelioma injuries in Louisiana are deemed to occur “at the
time of significant exposure to asbestos, not later when [the] disease . . .
manifest[s] itself.” Rando, 16 So. 3d at 1083; see Williams, 990 F.3d at 865.
Barrosse claims that his significant exposure first occurred vis-à-vis Avondale
in 1969. Thus, the applicable version of the WCA does not cover the injury
4
We do not address the district court’s interpretation of Savoie or its holding that
the post-1972 LHWCA applies to this dispute. Those issues are not presented here.
5
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he suffered. See Rando, 16 So. 3d at 1071.5 As a result, Barrosse’s only state-
law remedy is a tort suit. Id.
The upshot of these parallel events and their timing6 is that once
Barrosse discovered his injury, he could seek relief under either the LHWCA
or state tort law.7 The question presented in this case is whether state tort law
5
The plaintiff in Rando was injured in 1970, but the 1952 WCA applied. Rando, 16
So. 3d at 1072.
6
Condensing these developments, the following timeline emerges:
• 1927: Congress passes the LHWCA, providing workers’ compensation
remedies to maritime workers.
• 1942: The Supreme Court decides Davis, creating a regime of concurrent
jurisdiction in twilight zone cases.
• 1952: Louisiana passes the applicable version of the WCA, which neither covers
mesothelioma nor prohibits tort claims based on mesothelioma injuries.
• 1959: The Supreme Court decides Hahn, permitting a state-law tort claim in a
twilight zone case when that tort claim was included in the state-law regime.
• 1969: Barrosse begins working for Avondale and suffers injury in the twilight zone
for purposes of his present claims.
• 1972: Congress amends the LHWCA, expanding its coverage landward.
• 1975: Louisiana amends the WCA to cover mesothelioma injuries.
• 1980: The Supreme Court decides Sun Ship, reaffirming Davis and its twilight-
zone progeny after the 1972 LHWCA amendment.
• 2020: Barrosse is diagnosed with mesothelioma and brings this suit.
7
We do not address whether a plaintiff who brings a tort claim could subsequently
obtain relief under the LHWCA. On at least one occasion, the Supreme Court has
sanctioned LHWCA compensation after the beneficiary received state-law compensation,
but only when the state payments were credited against LHWCA relief. See Calbeck v.
Travelers Ins. Co., 370 U.S. 114, 131 (1962) (upholding compensation payments under both
the LHWCA and state law where the state payments were credited against the LHWCA
payments so “no impermissible double recovery [wa]s possible”). Whether that holding
extends to tort remedies is a question we leave for another day.
6
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is preempted by the LHWCA in the twilight zone under those
circumstances.
II
We review the district court’s grant of summary judgment de novo
and affirm if “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
Renfroe v. Parker, 974 F.3d 594, 599 (5th Cir. 2020). Here, the sole issue is
preemption, which “is a question of law.” Baker v. Farmers Elec. Co-op., Inc.,
34 F.3d 274, 278 (5th Cir. 1994). “Preemption of state law may be the result
of either express preemption, field preemption, or conflict preemption.”
Wright v. Allstate Ins. Co., 415 F.3d 384, 389 (5th Cir. 2005).
Express preemption applies “[w]here Congress expresses an explicit
intent to preempt state law.” Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 363
(5th Cir. 1995). “Conflict preemption applies (1) where complying with both
federal law and state law is impossible; or (2) where the state law creates an
unacceptable obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” Janvey v. Democratic Senatorial
Campaign Comm., Inc., 712 F.3d 185, 200 (5th Cir. 2013) (quotation omitted).
Courts may not conduct “a freewheeling judicial inquiry into whether a state
statute is in tension with federal objectives [because] such an endeavor would
undercut the principle that it is Congress rather than the courts that pre-
empts state law.” Chamber of Com. v. Whiting, 563 U.S. 582, 607 (2011)
(quotation omitted). For a state law to be conflict preempted, “a high
threshold must be met.” Id. (quotation omitted).
III
Avondale argues that both express and conflict preemption bar
Barrosse’s claims.
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A
Express preemption does not apply. There is no dispute that this is a
twilight zone case. Id. at 556. In the twilight zone, “although the LHWCA’s
exclusivity language would seem to express congressional intent to preempt
state law, the Supreme Court has found that total preemption was not
intended.” Hetzel, 50 F.3d at 363.8 Thus, despite the clear proclamation of
exclusivity in the LHWCA’s text that prohibits any liability “at law or in
admiralty” for injuries covered by the Act, there is no express preemption
here. 33 U.S.C. § 905(a).
Fundamental tension between the plain text of the Act and twilight-
zone concurrent jurisdiction has been apparent and controversial from the
very beginning. Indeed, Davis itself created the twilight zone over a dissent
which argued that the twilight zone “is plainly not permissible” and
“controverts the words of the statute,” which “left no room for an
overlapping dual system” of concurrent jurisdiction. Davis, 317 U.S. at 261–
64 (Stone, C.J., dissenting). Avondale would have us agree, but a dissent is
just that. Perhaps time and Supreme Court reconsideration will ultimately
conclude that the twilight zone’s creation was beyond “judicial
competence,” id. at 260, but until then, there is no express preemption in the
twilight zone. Hetzel, 50 F.3d at 363.
B
Neither does conflict preemption apply under these circumstances.
The Supreme Court has recognized that LHWCA remedies exist
8
It is apparent from context that the Hetzel panel was discussing express
preemption despite using the phrase “total preemption.” See Hetzel, 50 F.3d at 363. We
clarify this point only to ensure that Hetzel’s imprecise language is not confused with
“complete” preemption, an entirely different doctrine. See Mitchell v. Advanced HCS,
L.L.C., 28 F.4th 580, 585 n.2 (5th Cir. 2022).
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concurrently with state-law remedies, including at least some state-law tort
claims, in the twilight zone. Consistent with that binding recognition, we
cannot find that the limited and unusual circumstances that gave rise to
Barrosse’s state-law tort claims pose “an unacceptable obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress.” Janvey, 712 F.3d at 200. A contrary holding would, at least as far
as Barrosse and similarly situated plaintiffs are concerned, have the LHWCA
“supplant” rather than “supplement” state law by effectively eliminating
the twilight zone and contradicting the Supreme Court’s instruction in Sun
Ship, 447 U.S. at 720. Indeed, Avondale concedes that if Barrosse’s claims
are preempted, his “exclusive remedy for any injury he suffered working for
Avondale was—and is—available under the LHWCA.” State law is nowhere
to be found.
We begin our analysis by noting that existing caselaw is of little
assistance. Numerous cases address LHWCA preemption of tort claims, but
none address the situation before us—an injured employee, in the twilight
zone, who declines to invoke the LHWCA but, under state law, is limited to
a tort claim for relief.9
The most on-point case is Hahn, but Hahn neither prohibits nor
endorses the claims at issue here. Hahn does not endorse claims like
Barrosse’s because it did not address a freestanding tort claim. The state
statute in Hahn permitted employers to “elect[] to reject” the statute’s
“automatic compensation provisions,” in which case an injured employee
could bring “a negligence action for damages.” Hahn, 358 U.S. at 273. Thus,
9
Some district court cases address a similar fact pattern but neither acknowledge
nor analyze the complications presented by a concurrent-jurisdiction regime where the only
state-law remedy is a tort claim. See, e.g., Hulin v. Huntington Ingalls, Inc., 2020 WL
6059645, at *5–7 (E.D. La. Oct. 14, 2020).
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Hahn only sanctioned a state-law tort claim that was expressly contemplated
by state statute. Here, Barrosse’s tort claims arise under state law because
they are not included in the relevant statute, i.e., the WCA. Barrosse cannot
obtain automatic compensation for mesothelioma, but neither does the
WCA’s exclusivity provision apply to any tort claims he might bring for that
injury. Hahn does not prohibit claims like Barrosse’s either. Nothing in Hahn
holds that tort claims are only permissible when expressly contemplated by
state compensation statutes. Hahn clearly opens the door to at least some tort
claims, but it is ultimately inapposite.
Avondale would nevertheless have us read Hahn to limit state-law tort
claims in the twilight zone to claims “provided for by state workers’
compensation law” as a sanction for failing to secure coverage. But Hahn
doesn’t say that, and the lone federal court of appeals case that Avondale
cites for that proposition is distinguishable. In Peter v. Hess Oil Virgin Islands
Corp., the Third Circuit considered an injured worker’s negligence action
under Virgin Islands law. 903 F.2d 935, 936–37 (3d Cir. 1990). The employer
had obtained coverage under both the LHWCA and the relevant Virgin
Islands workers’ compensation act. Id. at 953. The court held that “where an
employer has obtained workmen’s compensation coverage for its LHWCA
employee under both [the] LHWCA and the state or territorial statute,” tort
claims are preempted. Id. On its own terms, Peter does not apply where, as
here, an employer has obtained coverage under the LHWCA but not under
a state or territorial statute. Thus, contrary to Avondale’s assertion at oral
argument, permitting Barrosse’s claims under these circumstances does not
create a circuit split.10
10
The district court supposed that Barrosse “could have sought compensation
under Louisiana’s Workers’ Compensation Act.” Barrosse, 563 F. Supp. 3d at 556. If that
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Other cases likewise do not bear on the question before us. Some
permit claims against alleged third-party tortfeasors, not employers. Norfolk
Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 819–20 (2001)
(permitting general maritime negligence claim against a third party);
McLaurin v. Noble Drilling (US) Inc., 529 F.3d 285, 292–93 (5th Cir. 2008)
(holding that plaintiff did not have a vessel negligence claim but could bring
a state-law tort claim against the vessel owner as a third-party tortfeasor).
Others address injuries that occurred on the Outer Continental Shelf, which
is outside the twilight zone. Hebron v. Union Oil Co., 634 F.2d 245, 246 (5th
Cir. 1981) (per curiam); Gaudet v. Exxon Corp., 562 F.2d 351, 354 (5th Cir.
1977); see LeSassier v. Chevron USA, Inc., 776 F.2d 506, 509 (5th Cir. 1985)
(noting that Outer Continental Shelf claims do not involve the twilight zone
or any other “confusing concurrent jurisdictional realm”).
Most of Avondale’s cited cases concern plaintiffs attempting to obtain
both LHWCA compensation and damages in tort. See Hetzel, 50 F.3d at 367;
Levene v. Pintail Enters., Inc., 943 F.2d 528, 530 (5th Cir. 1991) (plaintiff filed
suit under the LHWCA); Rosetti v. Avondale Shipyards, Inc., 821 F.2d 1083,
1084 (5th Cir. 1987) (plaintiff received LHWCA benefits from his nominal
employer then sued his borrowing employer); White v. Bethlehem Steel Corp.,
222 F.3d 146, 148 (4th Cir. 2000) (same); Langfitt v. Fed. Marine Terminals,
Inc., 647 F.3d 1116, 1119 (11th Cir. 2011) (same); In re Buchanan Marine, L.P.,
874 F.3d 356, 362 (2d Cir. 2017) (plaintiff received LHWCA benefits but
filed a tort suit anyways). But an injured worker cannot eat his cake and have
it too. Once a worker “receives LHWCA benefits,” he “may not sue his
employer under state law for any additional compensatory damages.” Jowers
were true, Peter would be applicable and potentially persuasive authority. But the district
court’s assumption was incorrect. See Rando, 16 So. 3d at 1071.
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v. Lincoln Elec. Co., 617 F.3d 346, 357 (5th Cir. 2010). Instead, once a worker
“elect[s] the LHWCA remedy, he is bound by the provisions of the Act,”
including the exclusivity provision of § 905(a). Hetzel, 50 F.3d at 367. That
comports with the Supreme Court’s instruction that § 905(a)’s exclusivity
provision “gains meaning only after a litigant has been found to occupy one
side or the other of the doubtful jurisdictional line.” Davis, 317 U.S. at 256;
see Sun Ship, 447 U.S. at 722 n.4 (clarifying that, in the twilight zone, § 905(a)
“does not exclude remedies offered by other jurisdictions”); see also Calbeck
v. Travelers Ins. Co., 370 U.S. 114, 131 (1962) (upholding compensation
payments under both the LHWCA and state law where the state payments
were credited against the LHWCA payments, so “no impermissible double
recovery [wa]s possible”); Hahn, 358 U.S. at 273 (holding that the exclusivity
provision did not “prevent[] recovery” via a state-law tort claim). Barrosse
did not engage in double-dipping. He has eschewed the LHWCA entirely and
is only seeking compensation in tort.
Thus, even considering the cases raised by the parties and the district
court, this is a sui generis case. We resolve this issue of first impression by
holding that, on these facts and pursuant to binding jurisprudential authority,
Barrosse’s state-law tort claims are not preempted. As a preliminary matter,
we emphasize that the category of claims we address here is small. Our
holding concerns only: 1) maritime workers; 2) injured in the twilight zone;
3) in Louisiana; 4) who neither seek nor obtain LHWCA compensation; and
5) whose injuries are not covered by the relevant version of the WCA.11
Recall that “[c]onflict preemption applies (1) where complying with
both federal law and state law is impossible; or (2) where the state law creates
11
The situation presented here, where a plaintiff’s choices are the LHWCA or
state-law tort, may arise under other states’ laws. Whether such claims are preempted
should be determined on a case-by-case and state-by-state basis, so our holding is limited.
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an unacceptable obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” Janvey, 712 F.3d at 200. But we may
not conduct “a freewheeling judicial inquiry” to find such an obstacle, and
the threshold for finding conflict preemption is “high.” Whiting, 563 U.S. at
607. This dispute concerns only the second species of conflict preemption,
so we look to whether the operation of state tort law in this case “creates an
unacceptable obstacle” to the purpose of the LHWCA. Janvey, 712 F.3d at
200. And, in the twilight zone, the Supreme Court has interpreted the
LHWCA to avoid “resurrecting the jurisdictional monstrosity that existed”
prior to Davis. Sun Ship, 447 U.S. at 720. Thus, we consider conflict
preemption with the understanding that the LHWCA “supplements, rather
than supplants, state compensation law” and runs “concurrently with state
remedies.” Id.The purpose that Barrosse’s tort claims must not unacceptably
obstruct is the “balance” between employer and employee wherein
“[e]mployers relinquish[] their defenses to tort actions in exchange for
limited and predictable liability,” while “[e]mployees accept the limited
recovery because they receive prompt relief without the expense,
uncertainty, and delay that tort actions entail.” Morrison-Knudsen Constr. Co.
v. Dep’t of Labor, 461 U.S. 624, 636 (1983) (citations omitted). Permitting
Barrosse’s claims upsets that balance to some extent. But conflict
preemption is not triggered by ordinary incongruities or minor annoyances,
only by “unacceptable obstacle[s].” Janvey, 712 F.3d at 200. Here, the
Supreme Court has expressly carved out space for concurrent operation of
often-asymmetrical state and federal law in the twilight zone, lessening any
concern that obstacles posed by state law are “unacceptable.” Id.; see Sun
Ship, 447 U.S. at 723–25 (noting that “state remedial schemes” often differ
from the LHWCA).
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Indeed, if tort claims themselves visited any inherent frustration on
Congress’ goals sufficient to trigger conflict preemption, the Supreme Court
would have sided with the dissent in Hahn, which argued that permitting tort
claims in the twilight zone would “frustrate th[e] very purpose” of the
LHWCA. Hahn, 358 U.S. at 275 (Stewart, J., dissenting). But it did not.
Given the limited circumstances permitting Barrosse’s claims under
Louisiana law, they pose little, if any, greater obstacle to congressional
purpose than the category of tort claims permitted by Hahn. The only
difference is that the Oregon legislature in Hahn expressly permitted
negligence claims under certain circumstances, while the Louisiana legislature
implicitly permitted negligence claims for certain injuries by excluding those
injuries from the expressed schedule of covered diseases in the WCA.
What is more, that distinction simply reflects the differing policy
choices of different states, a feature of any concurrent-jurisdiction regime.
Accepting Avondale’s arguments is, therefore, tantamount to eliminating
concurrent jurisdiction in cases like Barrosse’s.12 We do not think that
mesothelioma’s exclusion from the pre-1975 WCA’s schedule of covered
diseases “mandate[s] the result that [Barrosse] can only seek recovery under
the federal compensation scheme.” DiBenedetto v. Noble Drilling Co., 23 So.
3d 400, 406 (La. Ct. App. 2009).13 Instead, because the LHWCA does not
“supplant[]” state law, Sun Ship, 447 U.S. at 720, Barrosse may pursue the
12
As noted above, Avondale effectively concedes this point.
13
Although DiBenedetto is a state court case and not binding here, we find it
persuasive as it is the only case that we or the parties are aware of that addresses the factual
scenario before us head on. In DiBenedetto, the plaintiff was injured in Louisiana, in the
twilight zone, before 1975, was diagnosed with mesothelioma, did not seek LHWCA
benefits, and brought a tort suit. Id. at 404–05. Like Avondale, the defendants argued that
the LHWCA preempted his claims. Id. at 404. The court held that it did not. Id. at 405.
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remedy available to him under that law which, as state law applies here, is
only a tort claim. See DiBenedetto, 23 So. 3d at 406.
The Supreme Court has already rejected the principal arguments to
the contrary. Writing separately, Justices in Davis and Hahn criticized the
twilight zone as illogical, contrary to the text, beyond the power of the
judiciary to create, and unfair to employers who are deprived of the benefits
of the LHWCA’s quid pro quo and must instead secure compensation
coverage under both federal and state law. Hahn, 358 U.S. at 275 (Stewart,
J., dissenting) (characterizing the twilight zone as “illogic”); Davis, 317 U.S.
at 259 (Frankfurter, J., concurring) (same); id. at 260–62 (Stone, C.J.,
dissenting) (arguing that recognizing the twilight zone is not “within judicial
competence . . . [,] controverts the words of the statute,” and “imposes an
unauthorized burden on the employer” who will be subject to liability under
state law). These 80-year-old objections have yet to overcome the twilight
zone. We cannot hold that they do.
In sum, our conclusion that conflict preemption does not apply is
supported by the existence of concurrent jurisdiction and the acceptable
incongruity inherent therein, the Supreme Court’s consistent rejection of
arguments resisting that regime, the LHWCA’s role of supplementing
rather than supplanting state law, the limited category of claims at issue here,
and the similarity between these claims and those the Supreme Court has
already permitted in Hahn.
IV
The Supreme Court has recognized a twilight zone of concurrent
jurisdiction, permitted by the LHWCA, in cases like this one. We are duty-
bound to interpret and apply the law consistent with that guidance. Here, that
means preserving concurrent jurisdiction in the twilight zone and avoiding
the resurrection of a “jurisdictional monstrosity” by allowing Barrosse’s
15
Case: 21-30761 Document: 00516782736 Page: 16 Date Filed: 06/12/2023
No. 21-30761
state-law tort claims to proceed. Sun Ship, 447 U.S. at 720. We reiterate the
highly unusual fact pattern that brought Barrosse to this point and
reemphasize that our holding is narrow. It is only through the peculiar nature
and application of Louisiana’s pre-1975 worker’s compensation statute,
combined with the other characteristics of this case listed above, that
Barrosse’s claims survive preemption. We accordingly REVERSE and
REMAND for further proceedings consistent with this opinion.
16