Alexander v. Express Energy Services Operating, L.P.

Case: 14-30488 Document: 00513035192 Page: 1 Date Filed: 05/07/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30488 United States Court of Appeals

Fifth Circuit

FILED

MICHAEL ALEXANDER, May 7, 2015

Lyle W. Cayce

Plaintiff - Appellant Clerk

v.

EXPRESS ENERGY SERVICES OPERATING, L.P.,

Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

Before DAVIS, JONES, and CLEMENT, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Plaintiff-Appellant Michael Alexander appeals from the district court’s

order granting Defendant-Appellee Express Energy Services Operating, L.P.’s

(“Express”) motion for summary judgment on seaman status, concluding that

Alexander is not a seaman and dismissing Alexander’s claims against Express

with prejudice. We affirm.

I.

We begin with the controlling law. We review the district court’s

summary judgment ruling de novo, applying the same Fed. R. Civ. P. 56

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standards as the district court. 1 Summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” 2 “The court is to consider

evidence in the record in the light most favorable to the non-moving party and

draw all reasonable inferences in favor of that party.” 3

A party asserting that a fact cannot be or is genuinely

disputed must support the assertion by:

(A) citing to particular parts of materials in the

record, including depositions, documents,

electronically stored information, affidavits or

declarations, stipulations (including those made

for purposes of the motion only), admissions,

interrogatory answers, or other materials; or

(B) showing that the materials cited do not

establish the absence or presence of a genuine

dispute, or that an adverse party cannot produce

admissible evidence to support the fact. 4

“Summary judgment is appropriate if the non-movant fails to make a showing

sufficient to establish the existence of an element essential to that party’s

case,” and we may affirm “on any ground supported by the record, even if it is

different from that relied on by the district court.” 5

“To maintain a cause of action under the Jones Act, the plaintiff must be

a seaman. Land-based workers are not seamen.” 6 To qualify as a seaman, a

plaintiff must prove that he meets both prongs of the test set out by the

1 Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 275 (5th

Cir. 2014).

2 Fed. R. Civ. P. 56(a).

3 Bluebonnet, 754 F.3d at 276 (citation omitted).

4 Fed. R. Civ. P. 56(c)(1).

5 Bluebonnet, 754 F.3d at 276 (citations and internal quotation marks omitted).

6 Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 346 (5th Cir. 1999) (citing Harbor

Tug and Barge Co. v. Papai, 520 U.S. 548 (1997)).

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Supreme Court in Chandris, Inc. v. Latsis, 515 U.S. 347 (1995). First, he must

prove that his duties “contribut[e] to the function of the vessel or to the

accomplishment of its mission,” which does not necessarily require that the

plaintiff “aid in navigation or contribute to the transportation of the vessel,”

but does require that he “be doing the ship’s work.” 7

Second, and most important for our purposes here, a

seaman must have a connection to a vessel in

navigation (or to an identifiable group of such vessels)

that is substantial in terms of both its duration and its

nature. The fundamental purpose of this substantial

connection requirement is to give full effect to the

remedial scheme created by Congress and to separate

the sea-based maritime employees who are entitled to

Jones Act protection from those land-based workers

who have only a transitory or sporadic connection to a

vessel in navigation, and therefore whose employment

does not regularly expose them to the perils of the sea.

See 1B A. Jenner, Benedict on Admiralty § 11a, pp. 2–

10.1 to 2–11 (7th ed. 1994) (“If it can be shown that the

employee performed a significant part of his work on

board the vessel on which he was injured, with at

least some degree of regularity and continuity, the test

for seaman status will be satisfied” (footnote omitted)).

This requirement therefore determines which

maritime employees in Wilander’s broad category of

persons eligible for seaman status because they are

“doing the ship’s work,” [McDermott Int’l, Inc. v.

Wilander, 498 U.S. 337, 355 (1991)], are in fact

entitled to the benefits conferred upon seamen by the

Jones Act because they have the requisite

employment-related connection to a vessel in

navigation. 8

The Court emphasized that “[a] maritime worker who spends only a

small fraction of his working time on board a vessel is fundamentally land

7 515 U.S. at 357 (citations and internal quotation marks removed).

8 Id. at 368-69 (emphasis added).

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based and therefore not a member of the vessel’s crew, regardless of what his

duties are.” 9 The Court adopted the Fifth Circuit’s rule of thumb for ordinary

cases that “[a] worker who spends less than about 30 percent of his time in the

service of a vessel in navigation should not qualify as a seaman under the Jones

Act,” though courts may vary the rule depending on the facts of a particular

case. 10 The Court explained that although the inquiry is fact-specific, “where

undisputed facts reveal that a maritime worker has a clearly inadequate

temporal connection to vessels in navigation, the court may take the question

from the jury by granting summary judgment or a directed verdict.” 11

Even before Chandris was decided, the Fifth Circuit focused on the

amount of the work the plaintiff actually performed on a vessel, 12 and following

Chandris’s adoption of that rule, we must continue to apply it. We have

referred to “the Supreme Court’s teaching in Chandris that a seaman’s

connection with a vessel includes a temporal requirement, i.e. that the

worker spend a substantial part of his work time aboard the vessel.” 13

Our pre-Chandris en banc decision in Barrett provides a useful example

of how we have applied this rule. There, a worker who was a member of a

contract maintenance crew working on production platforms in the Gulf of

Mexico was injured. Because many of the platforms were too small to

accommodate the maintenance crew and their equipment, a jack-up barge was

positioned alongside the small platforms to provide additional work space and

9 Id. at 371 (emphasis added).

10 Id.

11 Id. (citations omitted).

12 See Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1073-74 (5th Cir. 1986) (en banc)

(noting that a plaintiff may be a seaman if he was either permanently assigned to a vessel or

“performed a significant part of his work aboard the vessel with at least some degree of

regularity and continuity” (discussing Barrios v. Engine & Gas Compressor Servs., Inc., 669

F.2d 350, 353 (5th Cir. 1982); Holland v. Allied Structural Steel Co., 539 F.2d 476, 484 (5th

Cir. 1976))).

13 Nunez v. B&B Dredging, Inc., 288 F.3d 271, 276 (5th Cir. 2002) (emphasis added).

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hold some of the equipment. The plaintiff, Barrett, performed the vast majority

of his work on the platform and only did incidental work on the adjacent vessel.

Relying on the seminal Robison case, we held:

Robison requires evidence that the worker was

“assigned permanently to . . . or performed a

substantial portion of his work on the vessel.” This test

is, of course, disjunctive, and permits a worker to be a

crew member if he does substantial work on the vessel

even though his assignment to it is not “permanent.” 14

We made it clear that Barrett’s work time on the vessel was inadequate to meet

the seaman test: “Because he did not perform a substantial portion of his work

aboard a vessel or fleet of vessels, he failed to establish that he was a member

of the crew of a vessel.” 15

In short, to prove that he is a seaman, Alexander must prove both that

(1) he contributed to the function of a vessel or to the accomplishment of its

mission, and (2) he was assigned permanently to the vessel or spent a

substantial part of his total work time—30% —aboard the vessel or an

identifiable fleet of vessels. If he has failed to demonstrate at least a genuine

dispute as to a material fact with respect to either prong, Express is entitled

to summary judgment. With these standards in mind, we turn to the facts of

the case.

II.

Alexander was employed as a lead hand/operator in Express’s plug and

abandonment (“P&A”) department, which specializes in plugging

decommissioned oil wells on various platforms off the coast of Louisiana for

Express’s customers. At his deposition, he described his duties as ensuring that

14781 F.2d at 1073 (quoting Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir. 1959);

and Davis v. Hill Eng’g, Inc., 549 F.2d 314, 326 (5th Cir. 1977)).

15 Id. at 1076.

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everything was set up and running properly on the deck of the platform and

ensuring that the plugging operation was successful. He testified that the

plugging operation essentially required the P&A team to check the pressure of

the well with various gauges and valves to make sure it was ready to be killed.

After that, the team would remove the bridge plug from the well, place a nipple

in the well, and pump fluids down the well to kill it. Once the well was under

control, the team would clean it and pump cement into it, then cut and remove

the pipe.

On August 11, 2011, Alexander was injured while working on a P&A

project on a platform owned by Apache Corporation which had four wells on it.

At the time of the accident, a liftboat owned by Aries Marine Corporation

(“Aries”), the L/B RAM X (“RAM X”), was positioned next to the Apache

platform, with a catwalk connecting the vessel to the platform. The record

shows that the permanent crane, which was operated by an Aries employee for

the benefit of the P&A crew, was located on the liftboat, while other equipment,

including wireline equipment, was located on the platform. Alexander testified

that he and the P&A crew had set up the equipment on the platform before

work began, and he was working on the platform. Alexander was injured when

a wireline from the crane snapped, dropping a bridge plug/tool combination

which had been suspended a foot above the deck, which then rolled onto his

foot.

Alexander filed this action under the Jones Act, 46 U.S.C. § 30104 et seq.,

against Express and other defendants. Express filed a motion for summary

judgment on seaman status, arguing that Alexander was a platform-based

worker who failed to satisfy either prong of the Chandris seaman status test.

With respect to the first prong, Express argued that Alexander did not

contribute to the function of a vessel or the accomplishment of its mission

because he worked on the wells on non-vessel fixed platforms. With respect to

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the second prong, Express argued that even though Alexander had shown that

approximately 35% of his P&A jobs involved the use of an adjacent liftboat, he

had failed to demonstrate that he spent at least 30% of his total work time on

the adjacent liftboat.

In response, Alexander argued as to the first prong that he did in fact

contribute to the function of the Aries liftboat. As to the second prong,

Alexander erroneously stated that Express conceded that he spent 35% of his

total job on Aries liftboats; Express only stated that 35% of his jobs involved

an adjacent liftboat. Alexander then argued that, under Roberts v. Cardinal

Services, Inc., 266 F.3d 368 (5th Cir. 2001), and Johnson v. TETRA Applied

Technologies, L.L.C., No. CIV.A. 11-1992, 2012 WL 3253184 (E.D. La. Aug. 7,

2012), which applied Roberts, he was allowed to count toward the Chandris

temporal requirement all of his time on jobs that used an adjacent vessel (here,

at least 35%), without regard to how much time he himself spent on the vessel.

Significantly, Alexander never offered any evidence that he spent 30% or more

of his work time on a vessel; rather, his argument on this prong depends

entirely on his interpretation of Roberts.

The district court granted Express’s motion for summary judgment on

the first prong, concluding that Alexander’s duties in this case were similar to

those of the plaintiff’in Hufnagel, which this court held did not contribute to

the function of a vessel because those duties related to the fixed platform, not

the vessel. 16 In a footnote at the end of the opinion, the district court opined

that Alexander had also failed to meet the second prong.

As noted above, we may affirm the district court “on any ground

supported by the record, even if it is different from that relied on by the district

16 See Hufnagel, 182 F.3d at 347.

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court.” 17 Pretermitting whether Alexander’s duties contributed to the function

of a vessel or the accomplishment of its mission, we conclude that Alexander

has failed to demonstrate that he is a seaman under Chandris’s temporal

connection prong. Chandris makes it clear that a seaman must spend a

substantial amount of time, ordinarily 30%, actually working on a vessel.

Alexander argues that Roberts means a plaintiff may count the amount of time

he spent working on a platform toward that requirement if a vessel was merely

adjacent to the platform and assisting with the platform work. 18 We cannot

accept Alexander’s argument because we are bound to follow clear and

controlling Supreme Court precedent.

The undisputed summary judgment evidence shows that approximately

65% of Alexander’s jobs involved a fixed platform only, without the help of an

adjacent vessel. Even on the other jobs involving a vessel adjacent to the

platform, his work occurred mostly on the platform. It is not sufficient under

Chandris (or indeed under Barrett) that Alexander was merely near a vessel

on more than 30% of his jobs or that he performed some incidental work on a

vessel on those jobs; to be a seaman, he must show that he actually worked on

a vessel at least 30% of the time. Alexander has failed to produce sufficient

evidence to prove that point, which is an essential element of seaman status.

We conclude that Alexander has failed to carry his burden of showing

that he is a seaman. We therefore affirm the district court’s order granting

17 Bluebonnet, 754 F.3d at 276 (citations and internal quotation marks omitted).

18 The district court in Johnson also interpreted Roberts that way. See 2012 WL

3253184, at *4 (“However, the court counted the time plaintiff spent working alongside the

employer’s lift boats, which amounted to 24.88% of his time, separately from the time plaintiff

spent working alongside lift boats owned by third parties, which amounted to 13.54%.

Because plaintiff could not show that at least 30% of his time was spent in the service of a

vessel or an identifiable fleet of vessels under common ownership or control, the court found

that he could not prove seaman’s status.” (citations omitted)).

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Express’s motion for summary judgment and dismissing Alexander’s claims

against Express with prejudice.

AFFIRMED.

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