I never met ChayFa. Brenda isn’t sure.
Vientiane, Laos was home in the early 70s though I was upcountry fighting the “Secret War” for two/three weeks at a time, coming back to the happy place Brenda ran on the southern edge of town. The kids were central to our lives and for the most part occupied the initial hours of my homecoming… talking about what they had done, what was goin’ on, or what they were going to do, each one vying for the most attention/ the most face time.
Chayfa leaked into Brenda’s private conversations with me starting maybe in the summer of ‘72.
Brenda hated her. Hated her with every fiber of her being.
An ethnic Lao, ChayFa was an exotic Asian beauty and had starred in several low budget films in Bangkok, Thailand maybe because her come-hither eyes were so alluring. So extra-ordinarily lusty.
However she left the Asian movie industry when she met and married Pat Thurston, an Air America pilot assigned Laos, which necessarily gave her entry into the American community when they returned to live in Vientiane.
She had roaming eyes and was known as a hard, opportunistic lady. And the American wives looked on her as a predator and potential local home wrecker.
Plus there was her attitude… she did not give a flying rabbit about protocol or accepted norms of behavior in the tight knit community of expat women in the country of her birth.
Cosmetics at the commissary was a case in point. They were purchased in bulk at the US base exchange in Udorn and were sold at a small glass counter in a corner of the commissary in Vientiane. The woman who ran this concession – who looked on her job as community service – knew basically what products different women liked and she placed her bulk orders in Udorn accordingly.
But when ChayFa appeared on the scene, she went up to that counter and bought everything. Every tube of lipstick, every compact, rouge, everything.
These items soon appeared on the black market downtown at three times the price.
When the cosmetic section restocked, the Lao woman reappeared and again bought everything. So a limit was put on the amount of cosmetics that a woman could buy at any one time. The Lao woman came in every day thereafter and bought her limit until she had bought out the counter again.
The American women, gathering in different homes day after day boiled in righteous indignation over that hussy. Their language and woman-hate would build in the hen sessions so that later to me Brenda would spit out very un-Brenda like, practiced, harsh adjectives to describe this terrible, terrible she-devil. How after buying out the whole cosmetic inventory, she’d break into line at the cash register to check out, smirking all the way.
With Brenda I’d say she cannot possibly be that bad. Really! Listen, you’re just jealous, or envious ‘cause she’s so good looking.
Brenda said, nope that woman is bad to the bone…
Wasn’t long Thurston found something unsettling about her, too. He couldn’t keep up with her comings and goings. Didn’t trust what she had to say. She could be the good wife, but then shortly thereafter delusionary.
Until Pat, though he stayed close to her mother and extended family, divorced ChayFa.
Not sure if Brenda and her friends knew this when it happened, but when the rumor spread that the Lao she devil had lost her American Community pass, they all said more or less, “Thank you baby Jesus.”
But then… ChayFa married “Lonesome” George Kirkland, an unusual American working Air America flight operations.
“AAAAHHHHHH,” cried the American women.
George Kirkland? George Kirkland? That dude’s don’t know if he’s afoot or on horseback most of the time, people’d say. George Kirkland? Some of the nicer ways people described him was that he was a little “strange.”
Obviously the women said, ChayFa married Lonesome George just to get a commissary card again.
But then very shortly after their nuptials, George Kirkland was found strangled to death in his own bedroom… according to ChayFa… by an unknown intruder, a burglar or two.
In the subsequent investigation by the usually inept Lao police, it was discovered that ChayFa had a Lao boyfriend who had a shaky story about where he was the night of the murder. He later turned state’s witness and confessed that the woman – who was, he admitted, his girlfriend – had put him up to the killing. Had in fact grabbed Kirkland’s gonads in both her hands while he was being strangled, crushing them.
Brenda and her buddies could hardly talk about anything else and came up with all kinds of women-words for “gonads,” a significant part of all the re-tellings… “Crushed Them With Her Own Hands,” they’d say, their eyebrows raised. Like pretty much there was nothing worst a woman could do. “Crushed them like they were pecans, I heard.”
According to local rumor the lady was tried by the Lao courts, convicted of murder in the second degree, and sentenced to life in a Lao prison.
Though there was no big newspaper story about this. And people like Alan Silverman saw ChayFa downtown at a time she was supposed to be in jail… so you’d wonder what gives.
But this was Laos and like some diplomat said, if you think you know what’s goin’ on, you just don’t know the facts. There was a subliminal Laos that Americans just never ever understood.
Whatever, nothing much was seen of ChayFa until the end, when most all the American left as conditions of the cease fire in 1975. As far as people knew, ChayFa was still a guest of the local gendarme.
But then, Lao vets heard a rumor that when the commies came in, they visited the local lock up and there was this beautiful woman who said, look, I’m here for killing an American, that ought to mean something to you guys. How ‘bout letting me go?
And they did.
And she turned up in California and filed suit against the US gov’t for survivor benefits for her deceased husband George Kirkland… There being no evidence that he had died at her hands. What were they goin’ to do, you might ask, ask the gov’t of Laos for help?
What, I hear you saying? Filed suit for benefits for her husband, who she had had killed herself, who had crushed his balls as he was being strangled? Can this be?
This be, was the word, and then the rumor that she had won her suit and had collected $200,000 and was living like a queen in California.
But then in the winter of 1988/1989 she was arrested at some casino in Atlantic City for using slugs in slot machines and barred from any future visits. Though in her mug short, she looks like it was all in fun… no hard feelings guy.
To come to this…. Something that clears the air, and separates fact from rumor… It’s a ruling by the US Court of Appeals in Washington, DC in February 1991 as to her petition for benefits for her deceased husband, George Kirkland. It is copied below in its entirety, just because it is so appropriate. And so spot on and lasting to wrap this story up.
A final word before the petition… if you are ever approached by this beautiful woman below… be very careful… very, very careful…
925 F.2d 489
288 U.S.App.D.C. 258
Chayfa B. KIRKLAND, Petitioner,
DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, and Air America, Inc.,
United States Court of Appeals, District of Columbia Circuit.
Feb. 7, 1991.
NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.
Before MIKVA, Chief Judge, and HARRY T. EDWARDS and CLARENCE THOMAS, Circuit Judges.
ORDER PER CURIAM.
This appeal was considered on the proceedings before the Benefits Review Board of the Department of Labor, Chayfa B. Kirkland v. Air America, Inc., BRB No. 85-2425 (Ben.Rev.Bd., April 30, 1990), on the record from proceedings before the Administrative Law Judge, Chayfa B. Kirkland v. Air America, Inc., No. 79-LHCA-320 (Decision and Order of Administrative Law Judge William A. Gershuny, June 27, 1983), and from the briefs filed by the parties and the arguments by counsel. The Court has determined that the issues presented occasion no need for a published opinion. See D.C.Cir.Rule 14(c). For the reasons stated in the attached memorandum, it is ORDERED and ADJUDGED that the petition for review be denied, and the decision of the Benefits Review Board denying petitioner benefits under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. Sec. 901 et seq. (1988), be affirmed.
The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.Rule 15.
Petitioner, Chayfa B. Kirkland, claims that she is entitled to benefits for the 1973 murder of her husband in Vientiane, Laos. Upon careful review of the record in this case, we find that petitioner’s claims are wholly without merit. It is clear that both the Administrative Law Judge (“ALJ”) and the Benefits Review Board (“Board”) properly denied petitioner’s request for benefits under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. Sec. 901 et seq. (1988) (“Act”). We deny the petition for review because we find that substantial evidence more than amply supports the ALJ’s findings. See Stark v. Washington Star Co.,833 F.2d 1025, 1026-27 (D.C.Cir.1987).1
The ALJ correctly concluded that George C. Kirkland (hereinafter “Kirkland”), petitioner’s husband, was not murdered “because of his employment.” Therefore, there was no compensable injury. Under the Act, a claimant may receive compensation only in the event of a specified injury or death; thus, a compensable “injury” is limited to an accidental injury arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.
33 U.S.C. Sec. 902(2) (emphasis supplied). Because Kirkland was killed by the willful act of a third person, the critical question in this case is whether Kirkland was murdered “because of his employment.” See Maryland Casualty Co. v. Cardillo, 107 F.2d 959, 961 (D.C.Cir.1939).
On the record at hand, there is absolutely no basis for us reasonably to question the ALJ’s finding that Kirkland was not killed “because of his employment.” Indeed, there is more than substantial evidence to uphold this finding. Kirkland worked as an administrative assistant for Air America, Inc., a company which provided air support for Central Intelligence Agency (“CIA”) operations in Southeast Asia. See Appendix (“App.”) 834; see also App. 193-245. However, Kirkland was murdered by thieves when he awoke while they were robbing his home.2 Supplemental Appendix (“Supp.App.”) 35, 38. His assailants confessed that their motive was robbery, Supp.App. 35, and the stolen goods were discovered in the assailants’ homes, App. 1355, Supp.App. 35. In short, the evidence before the ALJ showed no credible connection between the robbery and murder and Kirkland’s employment.
The decedent in this case is much like the decedent in Trans-Asia Eng’g Assocs., Inc. v. Reichart, BRB No. 101-73 (Ben.Rev.Bd., June 25, 1973) (slip op.), who, while working outside of the United States, was murdered by his jealous mistress. In that case, the Board refused to find that the decedent was killed because of his employment because such a finding would “nullify the statutory language and make employers … absolute guarantors for injuries or death under any circumstances arising from the time [employees] leave the shores of the United States until they returned.” Id., slip op. at 10. Similarly, we cannot say that the ALJ erred when he concluded that Kirkland was killed during the course of a robbery, and not because of his employment. Nothing regarding Kirkland’s employment as “an administrative assistant who prepared leave requests … and handled pilot problems,” App. 834, caused him to be murdered while being robbed by his wife’s friend.
Furthermore, substantial evidence supports the ALJ’s decision to reject petitioner’s somewhat extraordinary claim–first advanced more than four years after the murder–that Kirkland was killed by a disgruntled job applicant. First, Kirkland was not involved in the hiring of employees. App. 1384. Second, there was no evidence that Khamphay, the supposed job applicant turned killer, ever filed a job application. App. 1500. Finally, in his confession to the murder, Khamphay indicated only that his motive was robbery, not that he was a disgruntled job applicant seeking revenge. App. 1371-72. The only “evidence” in support of petitioner’s claim is her own uncorroborated testimony, which the ALJ found not to be credible. See Chayfa B. Kirkland v. Air America, Inc., No. 79-LHCA-320 (Decision and Order of ALJ William A. Gershuny, June 27, 1983), slip op. at 2 n. 1; see also infra n. 3.
In an apparent last-ditch effort to salvage a patently meritless case, petitioner urges us to apply a “zone of special danger” test to establish some nexus between Kirkland’s employment and his death. Under this doctrine, an accidental injury or death may be found to have arisen out of or been in the course of employment for purposes of the Act when “the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.” O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 506, 507 (1951) (citation omitted). The Board has held that the “zone of special danger” test does not extend to willful killings, see Reichart, slip op. at 9, and, on the facts of this case, we see no reason to reach a different conclusion.
Petitioner’s reliance on Hartford Accident & Indem. v. Hoage, 85 F.2d 417, 418 (D.C.Cir.1936), and Hartford Accident & Indem. v. Cardillo, 112 F.2d 11, 14 (D.C.Cir.), cert. denied, 310 U.S. 649 (1940), is clearly misplaced. In each of these cases, the court found only that the disputed injuries arose out of and in the course of employment; the court never went on to consider whether the injuries were “directed against an employee because of his employment.” More importantly, in both Hoage and Cardillo, the claimants’ injuries were suffered while they were on the job; no such situation exists in this case.
In any event, even if we were to apply the “zone of special danger” test, we would find that substantial evidence supports the ALJ’s conclusion that Vientiane, Laos, the city in which Kirkland lived and worked, was not a “zone of special danger” for purposes of the Act. The record indicates that at the time of the murder, Vientiane was a “very nice, very pleasant place to live.” App. 73. The U.S. Consul referred to Vientiane as “[o]ne of the nicest places I lived. In the foreign service we call it the best kept secret in the foreign service.” App. 73. There was no high incidence of attacks on Americans, App. 76-77, and the city was not considered dangerous. App. 76. Beyond petitioner’s assertion that Air America, Kirkland’s employer, provided air support for CIA operations in Southeast Asia during United States efforts to rebuff the tide of communism, petitioner introduced no credible evidence indicating that life in Vientiane was inherently dangerous. Thus, even were we to apply a “zone of special danger” test, we would agree with the ALJ’s finding that Vientiane was not uniquely dangerous as a place to work.
At oral argument, petitioner took the position that an employer such as Air America, which engages in covert operations in a foreign nation on behalf of the United States Government, should be absolutely liable under the Act for all injuries sustained by its employees regardless of the circumstances. Petitioner could cite no authority in support of this view, and we can discern no basis upon which to embrace such an unwarranted extension of existing law.
We also have no difficulty in concluding that substantial evidence supports the ALJ’s finding that petitioner was a knowing participant in the criminal activity that led to her husband’s death, and, as such, is ineligible for benefits under the Act. The ALJ correctly applied the preponderance-of-the-evidence standard in reaching this conclusion. See Steadman v. SEC,450 U.S. 91, 101-102 (1981).
The record demonstrates that petitioner engaged in a variety of suspicious activities on the evening of her husband’s murder. She prepared his evening drink, even though the houseboy usually did so. Supp.App. 34. She locked up their guard dog, even though the dog usually was allowed to roam around the house. App. 1345-46. In addition, petitioner had had many clandestine meetings with Khamphay, one of the assailants. App. 1354-55, Supp.App. 35. Most importantly, after his arrest, Khamphay confessed that he had robbed the house with the assistance of petitioner, that she had agreed to lock up the dog and drug her husband, and that he had tied petitioner up to make it appear that she was not a co-conspirator. App. 1356-57, 1371-72.
Given that petitioner presented no evidence beyond her own uncorroborated and incredible testimony,3 we find that substantial evidence supports the ALJ’s conclusion that petitioner was a knowing participant in the robbery which led to Kirkland’s murder. Accordingly, it would be improper for her to recover compensation under the Act for his death. See, e.g., Mutual Life Ins. Co. v. Armstrong, 117 U.S. 591, 600 (1886) (“It would be a reproach to the jurisprudence of the country, if one could recover insurance money payable on the death of a party whose life [s]he had feloniously taken.”).
Because petitioner’s claims are wholly devoid of merit, we deny her petition for review.
In considering this appeal, we have focused on the decision of the ALJ, as well as the judgment of the Board. See Kalaris v. Donovan, 697 F.2d 376, 383 (D.C.Cir.) (“the Board screens cases … and apparently reduces the number of cases that will be taken to the Courts of Appeals; its review function … is duplicated in those cases that actually do advance to the Court of Appeals”), cert. denied, 462 U.S. 1119 (1983); see also Hawthorne v. Director, O.W.C.P., 844 F.2d 318, 319 (6th Cir.1988)
The ALJ found that at least one of the assailants, Khamphay, was petitioner’s boy-friend and had been visiting her when Kirkland was not at home. App. 1354-55, Supp.App. 35
The record amply supports the ALJ’s finding that petitioner was not a credible witness. For example, although she had told police that she locked the dog in the houseboy’s room because it was scratching at the bedroom door, App. 1346, she testified at trial that the houseboy had locked up the dog, App. 602, and that he had done so because the dog might jump on their guests. App. 475. Although she testified that she attempted suicide on the night following her husband’s murder, App. 488-89, she could not recall whether she attempted the suicide before or after the police took her to the police station. App. 668. Before trial, she testified that she attempted suicide by hanging herself, App. 965-66, but at trial she testified that she had attempted suicide by taking a pill. App. 964. Absent any evidence to the contrary, we cannot disregard the credibility determinations of the ALJ. See Director, O.W.C.P. v. Brandt Airflex Corp., 645 F.2d 1053, 1057 (D.C.Cir.1981)