Shipyard Must Pay Benefits to Undocumented Alien Worker

contained an exclusivity provision protecting the employer from liability in tort.67 workers' compensation under the lhwca is a non-discretionary, statutory inc., the d.c. circuit looked to new york law to determine whether an illegally- see potomac elec. power co. v. director, owcp, 449 u.s. 268, 274 (1980). as the68 exceptions to the term "employee," none of those exceptions deterring unauthorized immigration that is embodied in the [immigration and case: 09-60095 document: 00511089706 page: 10 date filed: 04/22/2010 threshold matter, the brb held that undocumented immigrants such as case: 09-60095 document: 00511089706 page: 26 date filed: 04/22/2010 immigration laws, and encourage future violations. however broad on all unpaid benefits, as well as the district director's award of attorney's fees to become nonresidents) of the united states or canada shall be the same in alj but was instead decided by a district court. not too much to demand of an administrative body that it undertake a report indicating that the number was invalid. as rodriguez had only worked future lost wages should be based upon speculation regarding what he might "in answering any statutory question, we begin with the language of the 8 u.s.c. � 1324a(f)(1).32 mendoza v. monmouth recycling corp., 672 a.2d 221, 225 (n.j. super. ct. app. div.66 id.74 case: 09-60095 document: 00511089706 page: 22 date filed: 04/22/2010 an administrative trial. was an employee within the intendment of the statute and is thus eligible for no. 09-60095 work, he had suffered no loss of legal earning capacity, as he had had no legal while it is true that hernandez was a suit under 33 u.s.c. � 905(b), that does not serve to and is in accordance with the law." as sole factfinder, the alj "is entitled to77 5 beginning to work as a pipefitter for bollinger in march 2003. error and were not supported by substantial evidence in the record. according residents and/or citizens of the united states. consequently, we 18 u.s.c. � 1546(b).34 another equally important congressional objective -- to wit, the objective of immediate supervisor instructed him to go home that night and report back the that he lay on the ground for approximately 10 to 15 minutes before he was able (5th cir. 1988). must verify the identity and eligibility of all new hires by examining specified rodriguez further testified that the following day tim hargrove, irca and hire illegal workers."74 policies." according to the court, the nlrb's order ran "counter to policies54 discretion by awarding backpay "to an illegal alien for years of work not case: 09-60095 document: 00511089706 page: 1 date filed: 04/22/2010 in interpreting a statute, undefined words are given their plain and ordinary "a person covered under [the lhwca] ... may bring an action against [the] see smith v. city of jackson, 351 f.3d 183, 188 (5th cir. 2003) ("the construction of a statute brb affirms an order of the alj, we need only inquire whether the brb mendoza v. marine pers. co., inc., 46 f.3d 498, 500-01 (5th cir. 1995) (internal78 case: 09-60095 document: 00511089706 page: 21 date filed: 04/22/2010 undocumented immigrants not eligible for benefits would be bound by the lhwca's deemed ineligible to recover lost future united states wages and united states had worsened progressively to the point that he could no longer work in any right to sue "at law or in admiralty" in exchange for gaining "a certain, but remedies for unfair labor practices, the [nlrb] is obliged to take into account support of rodriguez's eligibility for benefits under the lhwca. based on ill-gotten `wages,' [and] then telling the employer that it better find id. at 147.52 has the brb deferred to the alj's fact-finding or has it undertaken de novo criminally punishable for an alien to obtain employment with false rodriguez's injury caused him no loss of wage-earning capacity because he had meaning. when unmodified, the term "alien" is broad enough in scope to 25 27 no. 09-60095 compensation should not be reduced or denied because to do so would encourage hiring of the benefits review board ("brb") awarding benefits under the longshore and employer can demonstrate that the employee is physically capable of returning according to rodriguez, he was welding an inclined wall of a ship on the id. at 904.45 no. 09-60095 a. the statutory language of the lhwca b. proceedings extent of those benefits. as stated above, if the brb has affirmed an order of the their vessel was midway through its voyage. in southern s.s., the court36 employees to submit a valid driver's license and a social security number.1 owner under section 5(b) of the lhwca [33 u.s.c. � 905(b)], which states that likely to cause in the future. once hernandez proved his prior wages in the bollinger initially paid rodriguez temporary disability benefits and under the pretext of [pursuing] its spirit. had the legislature subject to the act's provisions.17 barker testified about bollinger's company practices to safeguard against hiring b. fifth circuit precedent administer." the court explained:55 c. the immigration reform and control act of 1986 define the term "alien" and makes no reference to "illegal" or "undocumented" u.s.c. � 902(3)] in pertinent part, states that "the term `employee' association, 1. the administrative trial ("rodriguez"), an undocumented immigrant who fell and injured himself while the labor relations act so single-mindedly that it may wholly id.58 948 f.2d 774, 775 (d.c. cir. 1991).3 mandatorily states that "compensation shall be payable under this chapter in backpay-reinstatement orders by the national labor relations board ("nlrb") id.41 no. 09-60095 under the lhwca and was thus subject to the lhwca's exclusivity provision against their officers on board a vessel anywhere within the 11 earnings stream. dianella is liable to make hernandez whole for the injury issues [were] premised on its position that the administrative law judge bollinger next urges that, even if rodriguez is eligible to receive workers' important development in federal law that had occurred post-sure-tan: reflected the intent of congress that it apply to "citizens and aliens alike, and discretionary remedy quotation marks and citations omitted). upon explicit statutory prohibitions critical to federal immigration policy." this71 given the plaintiff's status as an undocumented immigrant, "the district court's rodriguez. available remedies, e.g., requiring the employer to post appropriate notices in the maritime employment, including any longshoreman or other person engaged in along with the opinion of his treating physician, dr. hamsa, who has 467 u.s. 883, 981-82 (1984).14 additional open mri testing, and received various orthopedic supplies, such as counseling. he acknowledged, however, that it was not entirely uncommon for consequently, we conclude that all aliens in the service of another pursuant to lhwca, relying on the statutory text of the lhwca and fifth circuit no. 09-60095 during the course of his employment. the plaintiff sued the vessel and its19 the primary issue in hernandez was whether the claimant's "continuous residency" in the plastic compounds v. nlrb, the most recent in a line of cases reviewing federal authorities a violation of 18 u.s.c. � 1546(b) on the part of one of its employees, is processing work," 33 u.s.c. � 902(3)(a), or "individuals employed by a club, camp, recreational united states without some party directly contravening explicit congressional no. 09-60095 obtained in the first instance by a criminal fraud," the court in hoffman vacated no. 09-60095 erred. thus, although we did not directly address the issue in our opinion,25 repeatedly acknowledged that the alj, as sole factfinder, "is entitled to consider case: 09-60095 document: 00511089706 page: 12 date filed: 04/22/2010 id. at 43.37 whether the alien is documented or undocumented is irrelevant."15 successfully evading apprehension by immigration authorities.... states, but also those that cannot. had the legislature intended otherwise, it lengthy period preceding injury was clearly erroneous. . . . we conclude that compensation benefits to "employees" who are injured "upon the navigable in a closely analogous case, the court of appeals of new york held that a 841 f.2d at 585.19 longshoring operations...." the statute contains several limited exceptions to12 it at that.1 does not contain any optional or alternative remedies that could otherwise fulfill case: 09-60095 document: 00511089706 page: 9 date filed: 04/22/2010 2 following day for medical treatment, explaining that it would cost bollinger immigrants are "employees" within the intendment of the nlra and are thus been working as a pipefitter for bollinger for approximately eight months, entitled to compensation in the same amount as provided for residents. thus,76 respect of disability or death of an employee." the lhwca, unlike the nlra,60 point, the parties do not dispute that rodriguez violated the irca when he individual. employers that violate the irca are punished by civil fines and31 rodriguez's eligibility to receive benefits is in no way contingent on his `employee.'"). fifth circuit a contract for hire, regardless of their immigration status, are considered 14 no. 09-60095 employee could otherwise bring against his employer. indeed, the lhwca 4 id. at 152.72 deficiencies in the nlra's existing remedial arsenal can only be addressed by earning capacity prior to being injured. number to the irs at the end of the year and then wait to see if the irs returned prohibitions critical to federal immigration policy, as expressed in no. 09-60095 immigration status. furthermore, [33 u.s.c. � 909(g)] and its example, we ruled that the district court's award of more than $800,000 in lost future wages consider all inferences [and his] selection among inferences is conclusive if another illegal enterprise for the drug dealer, lest there be found a permanent was excessive, and, after reviewing the record evidence and the testimony, we reduced that available to those covered under the lhwca. bollinger does not dispute that. no. 09-60095 in re reyes, we reviewed the statutory language of the fair labor standards act potomac elec. power co. v. director, owcp, 449 u.s. 258, 282 (1980).64 in hernandez, the brb agreed with the alj that rodriguez was entitled to prohibiting the employment of illegal aliens in the united states." according27 159 f.2d 461, 461 (d.c. cir. 1947).69 and the testimony of each witness, the alj explained that he found rodriguez in sum, the alj ordered that (1) bollinger pay rodriguez temporary total no. 09-60095 amount to $190,296. determining his eligibility for benefits. the alj explained that he had not immigrant; and that, as a result, it would have been improper and unethical for stokes's vocational report identifying suitable alternate employment for ignores the plain congressional mandate that a rebellion by seamen of a need for back surgery." after conducting a thorough review of the evidence iv. conclusion court was critical of the backpay award in part because the employee in that case: 09-60095 document: 00511089706 page: 14 date filed: 04/22/2010 limited, recovery under a strict liability regime." as the supreme court has63 record evidence, we are satisfied that the brb correctly determined that the distinguish it for these purposes, because, as the director points out, � 905(b) actions are only and, if so, what a proper measure of damages should be. because dianella by immigration authorities, condone prior violations of the 26 id. at 144.57 them." for example, the court in hoffman concluded that the nlrb's other58 id. at 152.51 act ("nlra") and concluded that, because "undocumented aliens are not among strained or hyperbolic, comparison of rodriguez's conduct to that of a cocaine dealer, car thief, farm workers who are explicitly excluded from the definition of minor employee who had lied about his age to obtain employment could not sue case: 09-60095 document: 00511089706 page: 8 date filed: 04/22/2010 authorized to work in the united states. as in sure-tan, the employer in46 disability benefits from the date of the accident to the present, with benefits to vessel)." the lhwca defines an "employee" as "any person engaged in11 the few groups of workers expressly exempted by congress [in that statute], they previously explained, the appropriate amount of deference to be given to the director's no. 09-60095 d. the alj's factual findings york's workers' compensation statute. thus, in mellen v. h.b. hirsch & sons,68 deported" or "would surely be deported," and bollinger makes no meaningful proceeding pro se before the alj, rodriguez testified that he had first "employees" within the meaning of the act and, under illinois law, are entitled respondents 33 u.s.c. � 902(3) (emphasis added).12 in detail before concluding that the findings were supported by substantial in enacting the irca, congress "forcefully made combating the with respect to rodriguez's eligibility for benefits under the lhwca, the harbor workers' compensation act ("the lhwca") to jorge rodriguez rodriguez be reassigned to light-duty work in the tool room. rodriguez worked tension with the immigration policies expressed in that statute. on rehearing, however, we does not "unduly trench upon" the irca, as congress chose to include a alj's findings are based on substantial evidence. argument, we affirmed the district court's award of damages to the plaintiff, with certain exceptions relating to a claimant's dependents in a precedential decision in hernandez, and the supreme court's recent decision in intended to permit backpay where but for an employer's unfair labor is a non-discretionary remedy. indeed, the plain statutory text of the lhwca i concur in the result. the alj and the brb both rejected bollinger's id. we did, however, reduce some of the individual damages as excessive. for23 nonresident aliens irca. it would encourage the successful evasion of apprehension id. at 886-89.40 future payments. thus, the act does not differentiate between the however, that even if rodriguez's injury prevented his performing light-duty three significant reasons: (1) unlike discretionary backpay under the nlra, receiving such benefits. to receive workers' compensation benefits. 24 correa v. waymouth farms, inc., 664 n.w.2d 324, 329 (minn. 2003). several other17 states department of labor ("the director") have filed responses. in addition, hurricane katrina. 33 u.s.c. � 905(g).75 bollinger shipyards inc; american longshore mutual department of labor; jorge rodriguez, 1. workers' compensation under the lhwca is a non- plainly come within the broad statutory definition of `employee.'" similarly, in14 reviewed the plain language of the lhwca and concluded that the text of the 23 representative; and larry stokes, bollinger's vocational rehabilitation expert. could have defined the term or modified it with more specific language. both rodriguez and the director respond straightforwardly that mendoza v. marine pers. co., 46 f.3d 498, 500-01 (5th cir. 1995) (internal quotation8 bollinger's petition for review is, in all respects, even consider this tension. lhwca's remedial scheme is a substitute for the tort claims that an injured performed, for wages that could not lawfully have been earned, and for a job affect compensation entitlement under the [lhwca]." finally, the brb 1996). given that the lhwca embodies a quid pro quo, we also question whether [t]he [lhwca's] definition of "employee" does not differentiate "individuals employed exclusively to perform office clerical, secretarial, security, or data in the u.s. in any legal capacity because of his status as an undocumented undocumented worker under the lhwca does not appear to "unduly trench number. bollinger does not dispute that rodriguez's injury occurred in the those undocumented immigrants who falsify employment documents should be precluded from as the supreme court has noted, the lhwca was largely patterned on new 33 u.s.c. � 903(a).11 workplace, would have effectively promoted the goals of the nlra without considered rodriguez's legal status in any way "as a factor in computing rodriguez for all reasonable past and future medical treatment, including back supreme court reviewed the statutory language of the national labor relations in its reply brief, bollinger narrowed its argument somewhat, contending that only9 in economy packing co. v. illinois worker's compensation commission, a state appellate court similarly, [the employee] cannot mitigate damages, a duty our cases number to obtain a series of jobs, working first as a bartender and then as a having them deported. the issue before the court was whether, assuming the40 court vacated the nlrb's order. although acknowledging "[t]he probable44 continue until rodriguez reached maximum medical improvement; (2) the based on a portion of hernandez that was later withdrawn on rehearing. see hernandez v. the brb also noted, however, that the district director's award of attorney's fees to4 capacity without regard to his legal status, concluding that rodriguez was 16 rodriguez's prior counsel was not properly before the brb on review, as bollinger had not id.59 states illegally, and continued to work illegally, all the while appealed that issue. [t]he difficulty with the [nlrb's reinstatement order] is that it id.24 "employee," but it did not. applying the act as it is written, "aliens," rodriguez's prior counsel. exclusivity provision. no. 09-60095 8 u.s.c. � 1324c(a)(1)-(3).33 "correctly concluded that the [alj's] order was supported by substantial the lhwca. 9 injured in october 2003, or has been at any time since then, "about to be case: 09-60095 document: 00511089706 page: 19 date filed: 04/22/2010 this venerable holding remains unchanged and is particularly relevant today: reject [bollinger's] contention that [rodriguez's] status as an illegal id. as the plaintiff in hernandez had sued in tort, the case did not proceed to an20 analysis by observing that, as a threshold matter, rodriguez was not employable employment status at the time of injury and for the lengthy period preceding id. at 141.49 greatest weight to [rodriguez's] description of the back pain he experienced ... 8 united states qualified him to receive lhwca benefits. bollinger's argument, however, is 18 however, bollinger terminated all payments in november 2005 when it first learned of the employee's undocumented status.50 20 forklift operator in texas before moving to louisiana in 1998. in louisiana, cooper/t. smith stevedoring co., inc. v. liuzza, 293 f.3d 741, 745 (5th cir. 2002);10 for the fifth circuit is a deportable offense for which he could be sentenced to five years' imprisonment, and in the "pirate," and a "mafioso" as "offensive, misleading and a gross manipulation of the nlra, it is not so unbounded as to authorize this sort of an encompass any "person who resides within the borders of a country but is not complicated by rodriguez's refusal to participate in any vocational rehabilitation hoffman had fired an employee for attempting to organize a union -- a clear wiener, circuit judge: it was not. although we agree with bollinger's basic premise that a thorough review of the several amici curiae, including the pro bono project of new orleans, the new be deported, the court did not err in basing its award on hernandez's past to order several other "traditional remedies sufficient to effectuate national labor award.56 8 u.s.c. � 1324a(b).30 encouraging -- and even rewarding -- continued violations of the irca. the73 deported" as provided in our opinion on rehearing in hernandez v. m/v rajaan, legislative history of subsequent amendments indicates that congress did not intend the plain 3 the record contains no evidence that rodriguez is, or was when he was no. 09-60095 undeterred, bollinger insists that we must not end our analysis with case: 09-60095 document: 00511089706 page: 18 date filed: 04/22/2010 between individuals based on their citizenship status. rather, [33 be earning were he in mexico." no. 09-60095 the nlrb's order. the court began its analysis by summarizing its prior51 for such benefits. citing our opinion in hernandez v. m/v rajaan, the alj2 either the statutory text of the lhwca or our precedential decisions on this mafioso." employed minor working as a longshoreman could sue his employer in tort.69 case: 09-60095 document: 00511089706 page: 16 date filed: 04/22/2010 having initially obtained employment with bollinger after stating falsely that he unlike the nlra, but like most workers' compensation statutes, the remedy; (2) unlike the nlra, the lhwca is a substitute for tort law, the board admits that had the ins detained [the employee], or had at the time of rodriguez's employment with bollinger, he apparently had a texas1 reasonable and necessary procedures and devices, including back surgery, d.c. circuit's opinion in rivera v. united masonry, inc., in which that court3 id. at 903.43 undocumented immigrant employed as a longshore worker and was injured rodriguez worked for several different employers in the marine industry before about his age to get a job. rodriguez is a grown man who committed a federal felony which 8 u.s.c. � 1324a(a)(1).31 unable to produce the required documentation, the employer may not hire the intended to exclude unauthorized aliens from coverage under the a. facts capable of performing a variety of light-to-medium-duty jobs that would earn 33 u.s.c. � 905(a).61 affirmative claims in tort for personal injury but deny them the right to pursue his age -- was covered by that state's workers' compensation statute, which added). additionally, while the definition includes specific the director's views and not the views of the [board]."). employee with backpay from the date of his termination to the date the employer congressional action."45 begins with the text of the statute itself."). 316 u.s. 31, 48-49 (1942).36 the court reviewed an nlrb order providing undocumented workers with bollinger appealed the alj's ruling to the brb, contending that the alj proffered a false social security number to obtain employment with bollinger. no legal wage-earning capacity at the time he was injured. bollinger eligible for backpay for the period during which they had been deported.41 subjects any individual who uses or attempts to use such documents to fines and explained: and witness who had testified or submitted reports, he found dr. hamsa's 33 u.s.c. � 903(a) (emphasis added).60 contention otherwise. accordingly, we are bound by hernandez. i would leave payment should be calculated using the base rate of $568.00 per week, with two- documents before each employee begins work. if a prospective new hire is30 established that rodriguez "was about to be deported or would surely be bollinger now petitions for review of the brb's decision. both rodriguez be precluded from recovering any lhwca-related benefits. lhwca is entitled to some degree of deference. as for findings of fact, we have7 to be deported or would surely be deported." the alj also found persuasive the the alj issued his decision, the district director awarded attorney's fees to for bollinger from march to november, however, bollinger had not submitted his illegally." the court also noted that the employee was unable to mitigate his irca is prudent, we disagree that the brb's ruling in any way undermines the case: 09-60095 document: 00511089706 page: 23 date filed: 04/22/2010 decision in rivera for the proposition that "the issue of illegal alienage does not as the substantially identical language of its new york ancestor." id. interests of disabled laborers and their employers. the use of a purposes of obtaining employment in the united states. specifically, the irca33 vessel as a third party...." the district court awarded the plaintiff damages,20 submitted to the alj, the brb affirmed the alj's order in all respects. as a expressly exempted by congress, they plainly come within the broad statutory definition of the alj ruled in favor of rodriguez on all issues, concluding that he was foreign country and a provision allowing the secretary to commute awarding backpay to an undocumented immigrant who had never been legally no. 09-60095 case: 09-60095 document: 00511089706 page: 3 date filed: 04/22/2010 claimants to remain in the united states. indeed, the lhwca specifies that75 was a u.s. citizen and providing the company with a false social security workers' compensation benefits under the lhwca. to answer this question, we including future medical expenses, loss of future earning capacity, and lost id.25 no. 09-60095 undocumented immigrants such as rodriguez are entitled to benefits under the admiralty and maritime jurisdiction of the united states is to be compounds, inc. v. nlrb, in which the court held that federal immigration evidence on the record as a whole and is in accordance with the law." although6 board's award only by remaining inside the united states illegally. frequently the entire scope of congressional purpose calls for rodriguez are indeed entitled to benefits under the lhwca. citing our decision because bollinger had failed to present any evidence that rodriguez was "about is merely one of several discretionary remedies available to the nlrb in lyle w. cayce bollinger contends that undocumented immigrants such as rodriguez are employment of illegal aliens central to the policy of immigration law."28 analysis "will depend upon the thoroughness evident in its consideration, the validity of its to rodriguez's prior counsel, explaining that bollinger's "arguments on both see noreen v. william vogel & bros., inc., 231 n.y. 317, 319-22 (1921).67 any other means, as the company's personnel records had been destroyed during in tort. as one court has observed, "it would not only be illogical but it would process of doing so defrauded bollinger, his concededly wholly innocent employer. nor am i case: 09-60095 document: 00511089706 page: 28 date filed: 04/22/2010 13 case: 09-60095 document: 00511089706 page: 25 date filed: 04/22/2010 see hernandez v. m/v rajaan, 841 f.2d 582, amended after rehearing, 848 f.2d 49865 id.76 lhwca provides that an employee's compensation rate may be reduced if the statute reflected congress's intent to provide coverage for undocumented during his employment while in the united states.21 to stand up and report the incident to a supervisor. according to rodriguez, his backpay for their employer's labor-law violation. in sure-tan, several39 compensation, but rather [had] considered other factors such as pain levels, past come to the united states illegally in 1990 and had used a false social security unavailability of the [nlra's] more effective remedies in light of the practical in october 2003, rodriguez fell and injured himself while performing a hoffman, we are convinced that rodriguez is eligible to receive benefits under undermine the immigration policies expressed by congress in the irca. no. 09-60095 decision to grant damages ... for future lost wages based upon [the plaintiff's] id. at 140.47 immigrant, was entitled to benefits under the lhwca. in the alternative, case, we conclude that the hoffman line of cases is distinguishable for at least finally, and perhaps most importantly, awarding benefits to an ingalls shipbuilding, inc. v. director, owcp, 991 f.2d 163, 165 (5th cir. 1993).6 discovered that rodriguez was an undocumented immigrant. rodriguez then criminal prosecution, providing nothing regarding civil effects. more to the34 surgery, open mri testing, and appropriate orthopedic devices as recommended see hoffman plastic compounds, inc. v. nlrb, 535 u.s. 137, 147 (2002).27 certain recovery for their industrial injuries as well as with the alj held that undocumented immigrants such as rodriguez are indeed eligible [statute], it could easily have done so, as it did with certain types of after conducting a complete review of the trial record and the evidence ("flsa") and concluded that the statute's use of the broad term "employees" bollinger's "safety man," filled out an accident report and directed rodriguez to no. 09-60095 ignore other and equally important congressional objectives. bollinger contends that hernandez is distinguishable from the instant case because26 workers' compensation benefits. employer offer the employee reinstatement with backpay. at a subsequent48 22 before garwood, wiener, and benavides, circuit judges. united states for the remainder of his life." rejecting the vessel owner's22 id. at 141-42.50 h.b. zachry co. v. quinones, 206 f.3d 474, 478 (5th cir. 2000) ("indeed, deference is owed to stokes testified regarding his vocational report on rodriguez's earning 15 consistent with the employees' interest in receiving a prompt and 467 u.s. 883 (1984).39 illegal aliens would unduly trench upon explicit statutory driver's license. undocumented immigrant, he would be entitled to benefits under the lhwca. no. 09-60095 undocumented workers had elected to form a union, and their employer case: 09-60095 document: 00511089706 page: 15 date filed: 04/22/2010 barker stated that bollinger's primary method of verifying an employee's confirm whether bollinger had attempted to verify rodriguez's legal status by claimants are not required to mitigate their damages by working. rather, the april 22, 2010 disabled and unable to perform any work unless he had back surgery, underwent quo of the lhwca, an employee who is eligible for benefits is stripped of his in contrast, awarding workers' compensation benefits under the lhwca in reviewing similar federal labor and employment laws, both the this accommodation without excessive emphasis on its immediate denied. false documents to employers or by finding employers willing to compensation benefits, the alj erred in determining, inter alia, the amount and and the director for the office of workers' compensation programs of the united thirds benefits per statute, totaling $378.67; (3) bollinger should compensate as precisely and as early as possible.64 id. at 148.54 work, and working capacity as considered by the [brb] and the fifth circuit." 10 coverage to undocumented immigrants. in sure-tan, inc. v. nlrb, the guilty of some sort of tort or wrongful conduct if the employee has been injured and is subject m/v rajaan, 848 f.2d 498 (5th cir. 1988). in our initial opinion, we had suggested that the 841 f.2d 582, amended after rehearing, 848 f.2d 498 (5th cir. 1988).2 clerk encourages employers to hire undocumented workers." policy, as expressed by congress in the irca, precluded the nlrb from to work. moreover, the lhwca, by its express terms, does not require waters of the united states (including any adjoining pier, wharf, dry dock, abrogating fault of either the employer or the employee; and (3) awarding death 848 f.2d 498, 500 (5 cir. 1988). there we stated:th in reviewing a decision of the brb, our "only function is to correct errors light duty for less than a month, however, eventually stopping because his back tendering false documents to employers or by finding employers willing to ignore f i l e d id. at 43-47.38 review and substituted its views for the alj's." stated differently, once the5 statute itself." by its express terms, the lhwca provides workers'10 employers' interest in having their contingent liabilities identified precedent supports an award of benefits to rodriguez, such an award would his employer in tort because the employee -- despite his illegal act in falsifying in sum, having reviewed the statutory text of the lhwca, our addressing labor violations. in addition to backpay, the nlrb has authority57 director, office of worker's compensation programs, us may be subject to criminal prosecution.32 reform and control act of 1986 ("the irca"), a "comprehensive scheme v. there is no parallel tension in the instant case, however, because lwhca bollinger shipyards, inc. ("bollinger"), petitions for review of an order of in the next decision in the hoffman line of cases, sure-tan, inc. v. nlrb, reliance on rodriguez's being an illegal alien subject to deportation under the avondale shipyards, inc. v. vinson, 623 f.2d 1117, 1119 n. 1 (5th cir. 1980).5 employment. concluding that "the most effective way to accommodate and49 "the question here is whether, given hernandez's status as an illegal compensation given bollinger's failure to show that rodriguez's deportation was i. facts and proceedings immigrant employed as a longshoreman has the right to sue a vessel owner in claimant "likely" qualified for permanent residency under the irca, thus ameliorating any means any person engaged in maritime employment..." (emphasis nor can i work up much indignation at bollinger's rhetorical, if perhaps somewhat1 united states court of appeals no. 09-60095 improperly awarded benefits in this case, which we have rejected."4 despite having subverted child labor laws to obtain employment -- was covered no. 09-60095 the reality of the situation." moreover, the several amici curiae reason that, of the benefits review board state's workers' compensation statute, explained: concluded that rodriguez was entitled to benefits under the lhwca, largely compares awarding benefits to rodriguez to "awarding benefits to a pirate or a compensation is not backpay, but compensation for an injury incurred. to bollinger, the alj had, inter alia, failed to give adequate consideration to amount as provided for residents." although the statute does not expressly16 states that "[c]ompensation under [the lhwca] to aliens not residents (or about in the united states court of appeals unmodified term "alien" encompasses both documented and undocumented congress thus focused foremost on the employer. under the irca, employers29 3. the lhwca expressly provides for the award of benefits to loss of wage[-]earning capacity." in the same melodramatic style, bollinger "employee" and specifies that nonresident "aliens" are entitled to benefits in the presented no proof that hernandez was about to be deported or would surely operation, restaurant, museum, or retail outlet," 33 u.s.c. � 902(3)(b). course and scope of his employment or that, were it not for his status as an by dr. hamsa; and (4) interest should be assessed on all unpaid benefits. after declined to take into consideration an immigrant's undocumented status when 12 as the court's decision in hoffman makes clear, backpay under the nlra no. 09-60095 noted that it was "improper" to speculate as to whether the claimant qualified for such relief, the line of cases of which hoffman is the most recent can be traced back see 8 u.s.c. � 1324a ("unlawful employment of aliens").29 nlrb order reinstating several seamen who had engaged in a labor strike while changed by congress and not by the courts.... nationality act ("ina")]." concluding that the backpay award would have43 to be a credible witness and that, although he was impressed by each physician filed for benefits from bollinger under the lhwca, and the case proceeded to 3. bollinger's appeal to the brb we also find persuasive the section of the lhwca entitled "aliens," which capacity and job skills. stokes noted that his efforts in compiling the report were id. at 147-48.53 hearing before the alj, however, the employee testified that he was an the most recent decision in this line of cases is hoffman plastic 7 underlying the irca, policies the board has no authority to enforce or concluded that the seamen had committed mutiny in direct violation of the violation of the nlra. among other remedies, the nlrb ordered that the47 bollinger called two witnesses: ray barker, bollinger's corporate a cane and back support. nonresident aliens. in hoffman, the court noted as particularly troubling that72 what matters here ... is that congress has expressly made it from all ambiguity, the letter of the law shall not be disregarded an action at law or in admiralty for damages." therefore, under the quid pro62 no. 09-60095 by an employer in loading, unloading, repairing dismantling, or building a includes not only foreign-born citizens that can legally work in the united orleans workers' center for racial justice, the southern poverty law center, further the immigration policies embodied in [the irca] is to provide the federal statute or policy outside the board's competence to administer, the eligibility to work in this country was to send the employee's social security "fails to secure payment of compensation" may an eligible employee "maintain id.73 entitled to its protections. as the court also explained, however, "[i]n devising42 id. at 588.22 must consider it in the framework of the supreme court's decision in hoffman medical expenses because he was not entitled to be present and employed in the id.62 id. at 149.55 disability compensation paid to illegal aliens and that paid to legal case: 09-60095 document: 00511089706 page: 13 date filed: 04/22/2010 case: 09-60095 document: 00511089706 page: 24 date filed: 04/22/2010 hernandez stands for the proposition that undocumented immigrants are of all other liability of such employer to the employee ..." only if the employer61 indeed, the remedy provided by the lhwca is merely a substitute for the case qualified for the award "only by remaining inside the united states rodriguez being "rewarded" for a past violation of the irca, as workers' eligible to recover workers' compensation benefits under the lhwca.26 per se ineligible to receive indemnity benefits under the lhwca, as any such case: 09-60095 document: 00511089706 page: 4 date filed: 04/22/2010 the clear language of the act does not distinguish between alien, the district court's decision to grant damages to hernandez for future issue, but that we must now interpret the lhwca in light of the immigration significantly more to have him treated that evening. retaliated by reporting them to authorities as undocumented immigrants and [the employee] obeyed the law and departed to mexico, [he] would same amount as other claimants, we are convinced beyond cavil that rodriguez as the issue had not been briefed and was, in any event, immaterial to our holding. specifies that an employer's liability under the statute is "exclusive and in place petitioners agreeing with the director's interpretation of the lhwca in the instant alien precludes [his] entitlement to benefits. not residents, or about to become nonresidents, of the united states the substitutionary remedy for personal injuries sustained in the workplace."66 case: 09-60095 document: 00511089706 page: 5 date filed: 04/22/2010 21 undocumented immigrant and that he had used fraudulent documents to obtain damages as required by law without "triggering new irca violations, either by welding job for bollinger, his employer. at the time of his injury, rodriguez had injury was clearly erroneous." after reviewing the record evidence and the24 id. (internal quotation marks and citation omitted).28 [alj's] order was supported by substantial evidence on the record as a whole 2. the alj's ruling precludes coverage based on an individual's citizenship or undocumented workers. according to barker, the company required prospective case: 09-60095 document: 00511089706 page: 29 date filed: 04/22/2010 2. the lhwca was enacted as a substitute for tort claims to bollinger, regardless whether the statutory text of the lhwca or our including dr. hamsa, who had diagnosed rodriguez as being temporarily had fundamentally erred in concluding that rodriguez, an undocumented a citizen or subject of that country." the plain meaning of aliens, therefore, for example, the lhwca's definition of an "employee" does not encompass, e.g.,13 iii. law and analysis case: 09-60095 document: 00511089706 page: 17 date filed: 04/22/2010 statutory construction, when the words of a law are clear and free plaintiffs in rodriguez's position to decline such counseling. stokes began his that are in tension with other federal laws.35 on appeal, the vessel owner contended that the employee "should be no. 09-60095 or disability benefits post hoc to an undocumented immigrant under the lhwca 17 the board has not been commissioned to effectuate the policies of night of his accident when he fell and landed on his back. rodriguez testified supported by the evidence and the law."8 benefits "would be based on illegally obtained wages." bollinger reasons that9 same amount" to nonresident aliens. case: 09-60095 document: 00511089706 page: 20 date filed: 04/22/2010 6 535 u.s. 138 (2002).35 histrionically compares the brb's ruling to "awarding benefits to a drug dealer pirate or "mafioso." the simple truth of the matter is that rodriguez is no child who lied we review all questions of law de novo, the director's interpretation of the our interpretation of the statutory text of the lhwca is consistent with id.44 nonresident aliens and aliens who are about to become nonresidents "shall be" no. 09-60095 ii. standard of review id. at 891-92 ("since undocumented aliens are not among the few groups of workers42 of comparison, stokes performed a vocational evaluation of rodriguez's earning rather, the question is whether that violation precludes his eligibility to receive id. at 149-52 (internal quotation marks and citations omitted).56 535 u.s. 138 (2002).46 the statute's purpose. bollinger urged the brb to conclude that the alj's factual findings were in reimbursed him for a portion of his medical expenses. after almost two years, schedule of fixed benefits as an exclusive remedy in certain cases is courts have considered this same issue and have reached similar conclusions. for example, framing the issue before it as whether the nlrb had exceeded its the board's discretion to fashion remedies when dealing only with also serve no discernable purpose to accord illegal aliens the right to bring documents. there is no reason to think that congress nonetheless give it power to persuade ..." see id. (internal quotation marks and citation omitted); see also marks and citation omitted). additional mri testing, and orthopedic supplies. whether authorized or unauthorized, are employees and thus are unable to work and that he was "not at maximum medical improvement because "imminent." further, the brb approved the alj's reliance on the d.c. circuit's authorized and unauthorized aliens. following our rules of the nlrb's award of backpay undermined federal immigration policy by consistently stated that the october 22, 2003, back injury prevents [rodriguez] no. 09-60095 the court began its analysis by confirming that undocumented rather, bollinger contends that, by virtue of rodriguez's undocumented status case: 09-60095 document: 00511089706 page: 2 date filed: 04/22/2010 33 u.s.c. � 909(g) (emphasis added).16 statutory text of the lhwca, we concluded that the district court had not so of law and to determine if the brb has adhered to its proper scope of review, i.e., no. 09-60095 unduly trenching on the policy goals set forth in the irca.59 814 f.2d 168, 170 (5th cir. 1987).15 19 the irca does make it a crime for an undocumented immigrant to subvert careful accommodation of one statutory scheme to another, and it is ingalls shipbuilding, inc. v. director, owcp, 991 f.2d 163, 165 (5th cir. 1993).77 the proposition that, "where the [nlrb's] chosen remedy trenches upon a evidence in the record. according to the brb, the alj had "rationally accorded seek medical treatment from dr. tate. that physician recommended that id.21 barring him from proceeding in tort.70 including future medical expenses and lost wages based on his prior earnings this employer-verification system by tendering false or fraudulent documents for the burden of proof in the calculation of damages was initially on 1986 immigration reform and control act, on the basis that bollinger had not agreed with dr. hamsa's recommendation that rodriguez should receive case: 09-60095 document: 00511089706 page: 27 date filed: 04/22/2010 petition for review of a final order makes no reference to the individual's immigration status.13 basing its analysis largely on new york courts' interpretations of that state's punished as a mutiny. if this mandate is to be changed, it must be illegal immigrants or with the contention that an innocent employer who reports to the proper immigrants. as the brb explained, board's remedy may be required to yield." the court then highlighted an52 from performing any work." the brb also affirmed the alj's award of interest 841 f.2d 582, amended after rehearing, 848 f.2d 498 (5th cir. 1988).18 continuing to violate the irca or evade immigration authorities. neither is regime, it is impossible for an undocumented alien to obtain employment in the undermined the immigration policies expressed by congress in the ina, the negligence claim that an employee could otherwise bring against his employer court explained, "[n]othing in the original legislative history of the [lhwca] or in the or canada, "shall be in the same amount as provided for residents," decisions in southern s.s. and sure-tan, explaining that those cases stand for require, without triggering new irca violations, either by tendering to the lhwca. this definition, but each exception is based on an individual's job description and the lhwca represents a compromise between the competing case: 09-60095 document: 00511089706 page: 7 date filed: 04/22/2010 new orleans stevedores v. ibos, 317 f.3d 480, 483 (5th cir. 2003). as we have7 congressional policies embedded in the irca. as we have previously held in hernandez that an undocumented all credibility inferences [and his] selection among inferences is conclusive if workings of the immigration laws," the court explained that "[a]ny perceived have interpreted similar workers' compensation statutes have concluded that the id. at 140-41.48 policy regardless of whether the spur and catalyst of backpay accompanies have lost his right to backpay. [the employee] thus qualifies for the alj, we need only inquire whether the brb "correctly concluded that the bollinger's attempts to compare rodriguez to a "cocaine dealer," a "car thief," a precedent as direct support for such an award. further, the director describes inflicted. it cannot defeat his right to recover by asserting that his award for id.70 we therefore conclude that allowing the board to award backpay to ignore irca and hire illegal workers. the board here has failed to that the use of past wages to calculate future damages was factually improper future wages. as we explained, the primary issue on appeal was whether,23 provision in the lhwca expressly authorizing the award of benefits "in the viz., the right to recover workers' compensation benefits under the lhwca.65 explained, immigrants. for example, the minnesota supreme court, in interpreting that assessment of rodriguez's condition to be the most accurate diagnosis. the alj him to assist rodriguez in vocational rehabilitation. nevertheless, for purposes united states, the burden shifted to dianella [the vessel owner] to establish no. 09-60095 see hoffman plastic compounds, inc. v. nlrb, 535 u.s. 137, 147 (2002).71 to southern s.s. co. v. nlrb, in which the world war ii-era court reviewed an capacity. rodriguez provided the alj with reports from several physicians, reasoning, its consistency with earlier and later pronouncements, and all those factors which supreme court and this court have concluded that the subject laws provide garwood, circuit judge, concurring in the result. workers' compensation statute, the court in mellen held that the minor -- immigrants, its coverage of nonresident "aliens" is significant. other courts that employer had committed a labor violation, the undocumented employees were language of the federal statute [and its exclusivity provision] to receive the same construction manner as to other employees," the nlrb ordered the employer to provide the at all impressed either with the equally strained argument that rodriguez's lhwca as the plain statutory language of the lhwca broadly defines the term case: 09-60095 document: 00511089706 page: 11 date filed: 04/22/2010 and the national employment law project, have joined in the filing of a brief in our holding in hernandez v. m/v rajaan. the plaintiff in hernandez was an18 criminal code. as the court explained,37 supported by the evidence and the law." having thoroughly reviewed the78 is because the lhwca expressly provides for the award of benefits to 29 lost wages based upon his employment status at the time of injury and for the him between $250 and $600 in average weekly salary. stokes reiterated, protections and remedies of the [nlra] to undocumented workers in the same inter alia, "failing to require workers' compensation for immigrant workers congress's passage of the irca. as the court noted, "[u]nder the irca53 practices, an alien-employee would have remained in the united and his use of a false social security number to obtain employment, he should tort for negligence, it follows that rodriguez must have the corresponding right, implementing regulation ... state that compensation paid to aliens taylor v. bunge corp., 845 f.2d 1323, 1326 (5th cir. 1988).63 with respect to the alj's factual findings, the brb reviewed the evidence task.38 case: 09-60095 document: 00511089706 page: 6 date filed: 04/22/2010 social security number to the irs prior to his injury. barker was unable to 901 n.e.2d 915, 920 (ill. app. 1 dist. 2008). hernandez who had to establish the damages his injury had caused and was terminal, building way, marine railway, or other adjoining area customarily used employed by bollinger as a pipefitter. we deny the petition.