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IN RE METRO SUBWAY ACCIDENT REFERRAL

December 18, 1984

IN RE: METRO SUBWAY ACCIDENT REFERRAL


The opinion of the court was delivered by: PRATT

Pratt, United States District Judge

 MEMORANDUM OPINION

 In the latest court action of this protracted litigation, Judge Gerhard A. Gesell on July 31, 1984 issued a show cause order, directing plaintiffs to provide "a detailed legal and factual explanation" in support of their position opposing dismissal of the filed cases. *fn1" Proceedings in these cases had been stayed since December 23, 1982. WMATA had moved to dismiss.

 The Gesell order was predicated on the action of the Supreme Court in Washington Metropolitan Area Transit Authority v. Johnson, et al., 467 U.S. 925, 104 S. Ct. 2827, 2836, 81 L. Ed. 2d 768 (1984) (hereinafter Johnson). In Johnson, decided June 20, 1984, the court reversed the United States Court of Appeals for the District of Columbia Circuit, *fn2" and held that the term "employer" used in § 5(a) of the Longshore and Harbor Workers' Compensation Act (LHWCA or 1927 Act) was intended to include general contractors as well as direct employers, that WMATA qualified for § 5(a) immunity as a general contractor as long as it did not fail to meet its obligation to secure compensation for subcontractor employees under § 4(a), and that WMATA not only did not fail to meet its statutory obligation but acted above and beyond such obligation by purchasing "wrap-up" insurance on behalf of all of its subcontractors. Therefore, WMATA was immune from liability in the tort actions asserted by respondents.

 Johnson, on its face, would have been dispositive of the issues raised by the "show cause" order of July 31, 1984, except that Congress on September 28, 1984, amended the LHWCA to provide that a general contractor in WMATA's position would not be entitled to immunity under § 5(a) of that Act. *fn3" Section 5(a) of the LHWCA was amended by adding the following new sentence:

 
For the purposes of this subsection, a contractor shall be deemed the employer of a subcontractor's employees only if the subcontractor fails to secure the payment of compensation as required by section 4.

 Congress specifically expressed its disapproval of Johnson by providing that a general contractor in WMATA's position would be amenable to suit and furthermore that the amendment would apply retroactively to all pending cases. *fn4" The plaintiffs' Response to the Show Cause Order was filed on August 31, 1984 and therefore did not address the problems raised by the amendments subsequently enacted on September 28, 1984. Instead, plaintiffs rely on claims which were either disposed of in Johnson5 or have become moot because of the amendments by Congress. Plaintiffs also attempt to distinguish Johnson on the grounds that Johnson was predicated on the mistaken assumption that these cases were governed by the 1928 Act which made the original 1927 Act applicable to the District of Columbia rather than on the 1979 Act (New Act) which became effective July 24, 1982. With the passage on September 28, 1984 of the amendments to the LHWCA, they have retreated from this position and now concede the applicability of the 1928 Act. *fn6"

 The basic issue is the ultimate reach of the 1984 amendments to the LHWCA and whether they require us to disregard the Supreme Court's decision in Johnson. WMATA in its submission of October 12, 1984 faces this issue head-on. *fn7" It claims that (1) the 1984 amendments are simply not applicable to these cases because they reach no further than the 1927 Act, which no longer governs the compensation claims of non-maritime employees in the District of Columbia and (2) if held to be retroactive, the amendments would be unconstitutional. We address ourselves to the first of these two contentions.

 The Relevant Legislation

 The original Longshoremen's and Harbor Workers' Compensation Act of 1927, as the title would imply, concerns the compensation for injuries suffered by maritime workers, such as harbor workers, longshoremen, and other maritime employees. 33 U.S.C. §§ 901, et seq. It was nationwide in coverage and did not cover non-maritime employees. It is appropriately listed under Chapter 33-Navigation and Navigable Waters of the United States Code. When enacted, the LHWCA therefore did not apply to non-maritime employees in the District of Columbia.

 This situation was soon to change. In 1928 Congress, acting as legislature for the District of Columbia and desiring to provide protection for workers in the District, passed the District of Columbia Workers' Compensation Act of 1928. D.C. Code, §§ 36-501, et seq. (1973 ed.) (Old or 1928 Act). It accomplished this result by making reference to the provisions of the 1927 Act and, where relevant, making them applicable to the District of Columbia. It used the following language for this purpose:

 D.C. Code § 36-501 (1973 ed.). *fn8" In passing the 1928 Act, Congress did not amend or purport to amend the LHWCA, but enacted a separate law making the LHWCA's requirements applicable to all workers in the District of Columbia. Until July 24, 1982, workmen's compensation protection for non-maritime workers in the District of Columbia was provided under the 1928 Act, which, while incorporating the standards of the 1927 Act, is applicable only to this particular jurisdiction.

 Matters remained in this posture until 1973. In that year Congress, again acting as legislature for the District of Columbia, passed the District of Columbia Self-Government and Governmental Reorganization Act, known commonly as the "Home Rule Act." D.C. Code §§ 1-201, et seq. Reflecting a desire to relieve Congress of its long-time burden of having to legislate on local District matters and to provide the powers of self-government to District residents, this Act gave the District of Columbia City Council the power, subject to certain specified exceptions not here relevant, to amend or repeal any provision in the District of Columbia Code. D.C. Code § 1-208(b). At the same time, Congress reserved ...


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