Director may not appear
How later courts described this case
- Director may not appear
Written by the judges who cited it.
The opinion
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EARL J. PARKER, JR.; GLENN C.
REDMON,
Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS'
No. 94-2653
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
FARRELL LINES, INC.; ROYAL
INSURANCE COMPANY,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(92-982-BLA, 92-983-BLA)
Argued: September 25, 1995
Decided: February 9, 1996
Before POWELL, Associate Justice (Retired),* United States
Supreme Court, sitting by designation, and MURNAGHAN and
WILLIAMS, Circuit Judges.
_________________________________________________________________
Denied by published opinion. Judge Williams announced the judg-
ment of the court and wrote an opinion, in which Judge Murnaghan
joined as to Part IV. Judge Murnaghan wrote a concurring opinion.
_________________________________________________________________
*Justice Powell heard oral arguments but did not participate in the
decision. The decision is filed by quorum of the panel. 28 U.S.C. § 46(d).
COUNSEL
ARGUED: John Harlow Klein, RUTTER & MONTAGNA, Norfolk,
Virginia, for Petitioners. Joshua Thomas Gillelan, II, Senior Attorney,
Office of the Solicitor, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C.; Gerard E. W. Voyer, TAYLOR &
WALKER, P.C., Norfolk, Virginia, for Respondents. ON BRIEF:
Thomas S. Williamson, Jr., Solicitor of Labor, Carol A. De Deo,
Associate Solicitor, Office of the Solicitor, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondent
Director. Donna White Kearney, TAYLOR & WALKER, P.C., Nor-
folk, Virginia, for Respondents Farrell Lines and Royal Insurance.
_________________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
As a quorum, we must decide whether a container-repair facility
that neither is contiguous with navigable waters nor touches such
waters, and that is not within the boundary of a shipping terminal, is
a maritime situs under the Longshore and Harbor Workers' Compen-
sation Act (the LHWCA), 33 U.S.C.A. §§ 901-950 (West 1986). Peti-
tioners Earl J. Parker, Jr. and Glenn C. Redmon were injured in
separate accidents during the course of their employment as, respec-
tively, an inspector and a container mechanic for respondent Farrell
Lines, Inc.1 Petitioners challenge a decision of the Benefits Review
Board (the Board) affirming the decision of an administrative law
judge (ALJ) denying their claims for compensation on the basis that
their injuries did not occur on a maritime situs. See 33 U.S.C.A.
§ 903(a) (West 1986). Because we conclude that the off-terminal
facility where Petitioners were injured is not a maritime situs, as
another panel has defined that term in Sidwell v. Express Container
Services, Inc., No. 95-1101, ___ F.3d #6D 6D6D# (4th Cir. Dec. 28, 1995),
we deny the petition for review. In addition, we take this opportunity
_________________________________________________________________
1 Royal Insurance Company, Farrell's insurer, is also named as a
respondent in the petition for review. For ease of reference, we refer to
both as "Farrell."
2
to clarify the role of the Director of the Office of Workers' Compen-
sation Programs (the Director) in review proceedings under the
LHWCA.
I.
Farrell owns ships that transport containerized cargo2 to and from
various ports, including the Norfolk International Terminal (NIT) in
Norfolk, Virginia. Farrell also owns containers into which cargo is
packed before shipping. Farrell periodically inspects its containers
and makes necessary repairs as a part of its shipping operations.
Farrell leases a small inspection and repair facility at NIT, but per-
forms most of its container-repair work at a larger facility located at
901 West 24th Street in Norfolk (the 24th Street site), approximately
five miles from NIT. Although Farrell originally conducted all of its
container-repair operations at NIT, expansion of the terminal com-
pelled Farrell to transfer most of these operations off-terminal. Farrell
employees engage in the same activities at the 24th Street site as at
NIT. One Farrell employee is permanently assigned to the NIT facil-
ity; others are transferred to and from the NIT facility on an as-needed
basis. In addition to servicing containers from NIT, the 24th Street
site receives containers, chassis, and refrigeration units that arrive
overland by truck and by rail.
The 24th Street site is located in an area of Norfolk zoned for light
industrial uses and is surrounded by a residential area to the north, a
railway to the south, and various small businesses in the immediate
vicinity. Farrell selected the 24th Street site for a variety of reasons
including proximity to NIT, the ease with which containers and
employees could be moved between NIT and the 24th Street site, suit-
ability of the site for container repair, and favorable lease terms. Far-
rell considered and rejected several other sites because of their greater
distance from NIT and their unsuitability to Farrell's purposes.
_________________________________________________________________
2 The term "containerized cargo" refers to cargo that has been loaded
into mobile storage units -- containers -- for the purpose of transporting
the cargo to its destination.
3
Petitioners were injured in separate instances at the 24th Street
facility3 and received compensation under the Virginia Workers'
Compensation Act. Each petitioner filed a separate claim under the
LHWCA, seeking the greater benefits it affords. The administrative
law judge (ALJ) consolidated the actions and denied benefits, basing
the denial on his determination that the 24th Street site was not a mar-
itime situs covered by the LHWCA. The Board affirmed, and Peti-
tioners now seek review of the ALJ's decision. Whether a particular
site is a maritime situs under the LHWCA is a mixed question of law
and fact subject to plenary review. See Humphries v. Director,
OWCP, 834 F.2d 372, 374 (4th Cir. 1987), cert. denied, 485 U.S.
1028 (1988).
II.
In order to qualify for benefits under the LHWCA, a claimant must
establish that, at the time of the injury, he was engaged in maritime
employment (the "status" test), see 33 U.S.C.A. §§ 902(3), 903(a)
(West 1986), and that he was injured "upon the navigable waters of
the United States (including any adjoining pier, wharf, dry dock, ter-
minal, building way, marine railway, or other adjoining area custom-
arily used by an employer in loading, unloading, repairing,
dismantling, or building a vessel)," 33 U.S.C.A.§ 903(a) (the "situs"
test). The status and situs tests were created as part of the 1972
amendments to the LHWCA, the purpose of which was to expand
coverage to include workers who travelled from ship to shore as they
worked, thereby preventing such workers from walking in and out of
coverage during the course of the day. See Humphries, 834 F.2d at
373.
Petitioners contend that the ALJ erred in concluding that the 24th
Street site is not a maritime situs under the LHWCA. According to
Petitioners, the 24th Street site properly is considered an "other
adjoining area" of NIT, at least in part because Farrell was forced by
expansion of NIT to move its container-repair operations to the 24th
_________________________________________________________________
3 Because the parties have stipulated that Petitioners were engaged in
maritime employment at the time of their injuries, see 33 U.S.C.A.
§§ 902(3), 903(a) (West 1986), discussion of the circumstances sur-
rounding Petitioners' injuries is unnecessary.
4
Street site, the closest available site to the terminal. Petitioners claim
that extending the reach of the LHWCA to the 24th Street site, five
miles from NIT, is necessary to avoid the sort of sporadic coverage
that the 1972 amendments to the LHWCA were designed to elimi-
nate.
Our analysis of the question of whether the 24 Street site is a mari-
time situs under the LHWCA is controlled by the recent decision of
this court in Sidwell v. Express Container Services, Inc., ___ F.3d ___
(4th Cir. 1995). In Sidwell, we explicitly rejected tests based on inter-
pretations of the phrase "other adjoining area" offered by the Third,
Fifth, and Ninth Circuits on the ground that each test "openly disa-
vow[ed] the statutory text." Id., slip op. at 9. Instead, based on the
ordinary meaning of the term "adjoin," we held that "an area is
`adjoining' navigable waters only if it `adjoins' navigable waters, that
is, if it is `contiguous with' or otherwise `touches' such waters." Id.,
slip op. at 11-12. Additionally, we noted that the situs test may be sat-
isfied if the injury occurs within the boundaries of a marine terminal
that is contiguous with navigable waters. Id. , slip op. at 15 n.11.
Applying the principles of Sidwell to the facts before us, we con-
clude that Petitioners have not established that they were injured on
a maritime situs. Under Sidwell's cogent explanation of the statutory
language, the dispositive question of whether the 24th Street site is a
maritime situs involves a straightforward geographical determination:
either the 24th Street site adjoins navigable waters and is a maritime
situs, or it does not and is not. Because the 24th Street site neither is
contiguous with navigable waters, nor touches such waters, nor is
located within the boundaries of NIT, it cannot be a maritime situs
under the LHWCA. That Farrell was compelled to relocate to the 24th
Street site by expansion of NIT does not affect our decision, nor does
it matter that some Farrell employees occasionally travel between
NIT and the 24th Street site. As we explained in Sidwell, the relevant
inquiry is whether the situs upon which the injury occurred is a mari-
time situs:
[Claimant] argues that whether terminal expansion has
forced relocation from a site directly adjoining navigable
waters to one that does not adjoin such waters (but is the
closest feasible), is relevant to whether a particular site
5
adjoins navigable waters. We disagree. The exigency of
even a forced relocation cannot transform a site distant from
navigable waters into one that somehow "adjoins" those
waters. The site either adjoins navigable waters or it does
not, and, as the Supreme Court has instructed, that is a geo-
graphical inquiry.
The same must be said with respect to the fact that[the
employer] had mobile trucks which went to the terminal to
perform minor repairs on-site. That an employer sends some
workers to the waterfront -- or even that an employer has
a separate site altogether that is "adjoining" navigable
waters -- is not germane to the question of whether an
injury occurred at a covered situs. The statute is expressly
limited to the place where the "injury occurr[ed]"; an
employer's other activities or locations are irrelevant to the
geographic inquiry of whether the injury occurred at a cov-
ered situs.
Id., slip op. at 12 n.8. Accordingly, we deny the petition for review.
III.
I cannot share Judge Murnaghan's view that Sidwell is wrongly
decided because that decision employs too narrow a construction of
the term "adjoining." In my view, Sidwell correctly rested on the plain
language of the statute. See Reves v. Ernst & Young, 113 S. Ct. 1163,
1169 (1993) (noting that plain statutory language is conclusive in the
absence of a clearly expressed legislative intent to the contrary).
Judge Murnaghan's reliance on policy grounds to expand the situs test
beyond that contemplated by the plain language of the statute is par-
ticularly inappropriate in light of the Supreme Court's clear admoni-
tion that we not substitute our own policy preferences for those of
Congress. See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469,
483-84 (1992). Moreover, the policy on which Judge Murnaghan
relies -- that of favoring coverage over non-coverage, post at 18 --
proves too much: it is precisely the policy that Sea-Land Service, Inc.
v. Director, OWCP, 540 F.2d 629, 636-38 (3d Cir. 1976), wielded to
eliminate the situs requirement altogether, a result directly contrary to
the statute and expressly disapproved by the Supreme Court in Herb's
6
Welding, Inc. v. Gray, 470 U.S. 414, 426-27 (1985); see also
Humphries, 834 F.2d at 372 (disapproving of Third Circuit's reason-
ing in Sea-Land Service). As Sidwell explains, slip op. at 13-14, in
enacting the 1972 amendments to the LHWCA Congress was moti-
vated by the much more narrow policy of providing uniform coverage
on both sides of the gangplank, the water and the adjoining land.
Finally, I cannot agree with Judge Murnaghan that we owe deference
to the Director's amorphous interpretation of the situs requirement.
As Sidwell held, that interpretation -- under which locations as
remote as Kansas City, Kansas would be covered situses -- conflicts
with the plain statutory language and hence is due no deference. See
id., slip op. at 15-16.
IV.
We take this opportunity to address the Director's proper role in
petitions for review under the LHWCA. The LHWCA provides in
pertinent part that "[a]ny person adversely affected or aggrieved by a
final order of the Board may obtain review of that order in the United
States court of appeals for the circuit in which the injury occurred."
33 U.S.C.A. § 921(c) (West 1986). While the Director was a party to
all petitions for review prior to the 1972 amendments to the LHWCA,
Congress did not designate the Director as a party to petitions for
review in the 1972 amendments. See I.T.O. Corp. v. Benefits Review
Bd., 542 F.2d 903, 906 (4th Cir. 1976) (en banc) (I.T.O. Corp. I),
vacated and remanded on other grounds sub nom. Adkins v. I.T.O.
Corp., 433 U.S. 904 (1977).4 In I.T.O. Corp. I, we held that Congress'
failure to designate the Director as a party meant that "if the Director
is to be a party, [s]he must be a `person adversely affected or
aggrieved by a final order of the Board' within the meaning of
§ 912(c)." Id. at 907. Based on this reasoning, we concluded that the
Director is not a proper respondent in a petition for review under the
_________________________________________________________________
4 On remand, the en banc court adhered to its holding that the Director
is not a proper respondent in a petition for review under the LHWCA.
See I.T.O. Corp. v. Benefits Review Bd., 563 F.2d 646, 648 (4th Cir.
1977) (en banc) (per curiam) (I.T.O. Corp. II ).
7
LHWCA unless she can show that she is a person adversely affected
or aggrieved by the decision of the Board.5 Id. at 909.
The holding of I.T.O. Corp. I should have ended the practice of
automatically naming the Director as a respondent in all petitions for
review under the LHWCA. The practice did not end, however, per-
haps because I.T.O. Corp. I did not discuss the impact of Federal Rule
of Appellate Procedure 15(a), which requires that"the agency must
be named respondent" in a petition for review of an order of an
administrative agency, board, commission, or officer. We agree with
the District of Columbia Circuit that Rule 15(a) simply is not applica-
ble in the context of a petition for review under the LHWCA because
the Director's presence as a party is not necessary:
Normally, a single private party is contesting the action of
an agency, which agency must appear and defend on the
merits to insure the proper adversarial clash requisite to a
"case or controversy." But Rule 1(b), Fed.R.App.P., says
that "[t]hese rules shall not be construed to extend or limit
the jurisdiction of the courts of appeals as established by
law." Here, there is sufficient adversity between[the
employer and the claimant] to insure proper litigation with-
out participation by the Board. To require the Board to
appear as a party would parallel requiring the District Court
to appear and defend its decision upon direct appeal.
McCord v. Benefits Review Bd., 514 F.2d 198, 200 (D.C. Cir. 1975);
see also Shahady v. Atlas Tile & Marble Co., 673 F.2d 479, 485 (D.C.
Cir. 1982) ("The reasoning of McCord--that the rationale of Rule
15(a) is inapplicable to this kind of situation--applies as much to the
[Director] as it does to the Board."). But see Ingalls Shipbldg. Div.,
Litton Sys., Inc. v. White, 681 F.2d 275, 283 (5th Cir. 1982) (declining
_________________________________________________________________
5 The Director is adversely affected or aggrieved if a decision by the
Board directly hampers the Director's ability to carry out her statutory
duties. See Director, OWCP v. Newport News Shipbldg. & Dry Dock
Co., 8 F.3d 175, 180-81 (4th Cir. 1993), aff'd, 115 S. Ct. 1278 (1995).
The Director's mere disagreement with the decision of the Board does
not render her adversely affected or aggrieved. See I.T.O. Corp. I, 542
F.2d at 907-09.
8
to follow Shahady), overruled in part on other grounds by Newpark
Shipbldg. & Repair, Inc. v. Roundtree, 723 F.2d 399 (5th Cir. 1984).
Therefore, we reaffirm the holding of I.T.O. Corp. I that the Direc-
tor shall not automatically be named as a respondent in a petition for
review under the LHWCA, but must make an affirmative showing
that she is adversely affected or aggrieved by the decision of the Board.6
If the Director is not adversely affected or aggrieved by the decision
of the Board, but nonetheless wishes to participate on behalf of one
of the parties, she first must request and be granted permission to
intervene on the side of the party whose position she supports. see
I.T.O. Corp. I., 542 F.2d at 909 ("The Director unquestionably has a
right to seek to intervene under Rule 24(b) Fed.R.Civ.P., and an appli-
cation will ordinarily be granted.") (footnote omitted). In accordance
with this holding, we dismiss the Director as a respondent in this peti-
tion for review and grant the Director's motion to intervene nunc pro
tunc on the side of Petitioners.7
V.
Because the 24th Street site is not contiguous with navigable
waters, we conclude that it is not a maritime situs under the LHWCA.
Accordingly, we deny the petition for review.
DENIED
MURNAGHAN, Circuit Judge, concurring:
A panel of three Fourth Circuit judges (or of two acting as a
quorum) may not overrule a prior published panel opinion. Norfolk &
Western Ry. v. Director, OWCP, 5 F.3d 777, 779 (4th Cir. 1993)
("Even if we were so inclined, . . . a panel of this court may not over-
rule another panel's decision."). Though I do so with great reluctance,
I must therefore regard as binding the opinion filed for publication in
_________________________________________________________________
6 In addition, we note that this holding applies only to petitions for
review under the LHWCA.
7 We have considered the Director's position with respect to the proper
interpretation of the phrase "other adjoining area," and reject that posi-
tion for the reasons stated in Sidwell. See Sidwell, slip op. at 18-20.
9
December 1995, in Sidwell v. Director, OWCP and Express Con-
tainer Services, Inc., No. 95-1101 (4th Cir. Dec. 28, 1995). I say
"with great reluctance" because Sidwell , in addition to creating a cir-
cuit conflict with the Fifth Circuit's decision in Texports Stevedore
Co. v. Winchester, 632 F.2d 504 (5th Cir. 1980), cert. denied, 452
U.S. 905 (1981), narrowly interprets the word "adjoining," as it
appears in the phrase "other adjoining area" in the Longshore and
Harbor Workers' Compensation Act (LHWCA), to mean only "adja-
cent" or "contiguous with."1 See slip op. at 10. The Oxford English
Dictionary, however, defines "adjoining" not solely as "adjacent," but
also as "neighbouring." It further defines"neighbouring" as "lying or
living near." The word "neighboring" is by no means so circum-
scribed or limiting as "adjacent" or "contiguous with." If it were, the
frequently used phrase "next-door neighbor" would be unnecessarily
repetitive. Not surprisingly, therefore, one judge who concurred in
Sidwell objected to the majority's "more literal interpretation" of the
statutory language.
As I endeavor to make clear in the paragraphs that follow, I believe
that Sidwell's interpretation of the LHWCA's phrase "other adjoining
area" is entirely at odds with the meaning that Congress intended us
to ascribe to it. I also am persuaded that, in the instant case, Petition-
ers' injuries were sustained at an "adjoining area," properly construed.
I.
Petitioners' employer, Farrell Lines, Inc., owns and operates ships
that transport container cargo to and from numerous ports, including
the Commonwealth of Virginia's Norfolk International Terminal
(NIT). Until 1980, Farrell conducted all Norfolk-area repairs of its
containers at a situs located at NIT. In that year, however, in order to
make room for a parking lot, the Commonwealth terminated Farrell's
lease of a portion of the NIT property. Farrell therefore was forced to
relocate most of its repair operations to a five-bay garage located on
24th Street in Norfolk, approximately five miles from the terminal
_________________________________________________________________
1 In reaching that conclusion, the Sidwell majority relies upon introduc-
tory comments in a Senate committee report not appearing in the corre-
sponding House report as proof of the full Congress's intent. See infra
note 6.
10
and one mile from navigable water. Farrell selected that site because
the building into which the company moved had formerly been used
by another container-repair outfit and so was already in many ways
suited to that task, because the location was convenient for rotating
personnel between it and NIT, because available facilities closer to
NIT were located in areas zoned to exclude such repair activity, and
because the facility was available for a reasonable cost. The 24th
Street site shares its neighborhood with other repair facilities, a shop-
ping center, private residences, and a few professional offices. The
change in location was in no way brought about by Petitioners.
While at least one container repairman is permanently stationed at
NIT, repairmen from the 24th Street location are called to NIT--
usually on a daily basis--to deliver parts, to conduct repairs, and to
make inspections. A single manager is responsible for repair activity
at both sites and coordinates the routine transport of personnel
between them.
Petitioners, Earl J. Parker, Jr., and Glenn C. Redmon, performed
inspection and repair functions for Farrell Lines; both were injured
while working at the 24th Street site.2 Both men received state work-
ers' compensation benefits, but sought the additional benefits avail-
able under the LHWCA. Respondents--Farrell Lines and its insurer,
Royal Insurance Company--resisted. While agreeing that Petitioners
were maritime employees carrying out maritime tasks within the
meaning of the LHWCA, Respondents contended that the injuries had
not occurred at a maritime situs, as defined and required by the Act.
In an order issued on December 30, 1991, the Administrative Law
Judge denied Petitioners' claims for federal benefits, focusing solely
on the jurisdictional situs issue. He relied heavily upon the Ninth Cir-
cuit's decision in Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d
137 (9th Cir. 1978), finding that three of the four factors considered
by that court to determine whether an injury occurred at a LHWCA-
covered maritime situs had not been met: he concluded that the 24th
Street site was not particularly suitable for maritime uses, that adjoin-
_________________________________________________________________
2 Redmon fell and injured his left wrist and Parker cut his left leg with
a saw.
11
ing properties were not primarily devoted to maritime uses, and that
the site was not close to a waterway.3
Petitioners appealed. On October 26, 1994, the Benefits Review
Board affirmed the ALJ's decision, finding that the record contained
substantial evidence to support the ALJ's determination that the inju-
ries had not occurred at a covered situs. The Board approved of the
ALJ's reliance upon Brady-Hamilton, citing a Fourth Circuit opinion,
Humphries v. Director, OWCP, 834 F.2d 372 (4th Cir. 1987), cert.
denied, 485 U.S. 1028 (1988), in which we described Brady-Hamilton
as taking a "more practical approach" to the situs issue than that taken
by two other circuits, and noting the Fourth Circuit's affirmance
(albeit in an unpublished opinion, Davis v. Doran Co. of California,
865 F.2d 1257 (4th Cir. 1989), aff'g 20 B.R.B.S. 121 (1987)) of a
Board decision founded upon the Brady-Hamilton factors. Petitioners
subsequently filed for review of the Board's decision.
On March 20, 1995, the Director of the Labor Department's Office
of Workers' Compensation Programs (OWCP) filed a brief arguing
in favor of reversal of the Board's decision. The Director made two
contentions: first, that Brady-Hamilton does not provide an exhaus-
tive list of factors to be considered when making situs determinations
under the LHWCA,4 and second, that the OWCP's long-standing
interpretation of the situs requirement favors Petitioners' position and
deserves deference by us.
Though a court must defer to the ALJ's factual findings so long as
they are supported by substantial evidence, Newport News Shipbuild-
ing & Dry Dock Co. v. Tann, 841 F.2d 540, 543 (4th Cir. 1988), the
issue of maritime situs under the LHWCA, "while imbued with `fac-
tual' qualities, is essentially a mixed question of law and fact which
we . . . can review for errors of law," Humphries, 834 F.2d at 374.
_________________________________________________________________
3 The ALJ did find, though, that the fourth Brady-Hamilton factor had
been met: the site was as close to the waterway as was feasible.
4 The Director argued that the ALJ and Board wrongly ignored the
broad purposes underlying the 1972 Amendments to the LHWCA when
they asked whether Petitioners or Respondents had a greater claim to a
majority of the Brady-Hamilton factors, rather than look at the overall
functional relationship between the NIT and 24th Street facilities.
12
II.
A.
The LHWCA provides death and disability benefits to individuals
who meet the Act's definition of "employee." 5 Such benefits are to be
paid, however, only "if the disability or death results from an injury
occurring upon the navigable waters of the United States (including
any adjoining pier, wharf, dry dock, terminal, building way, marine
railway, or other adjoining area customarily used by an employer in
loading, unloading, repairing, dismantling, or building a vessel)." 33
U.S.C. § 903(a).
Section 903(a)'s parenthetical language was added by Congress in
1972. Pub. L. No. 92-576, § 2(c), 86 Stat. 1251 (Oct. 27, 1972),
reprinted in 1972 U.S.C.C.A.N. 1452, 1452-53. The Senate Commit-
tee on Labor and Public Welfare and the House Committee on Educa-
tion and Labor identified several reasons for so amending the Act. See
S. Rep. No. 92-1125, 92nd Cong., 2nd Sess. 12-13 (1972); H.R. Rep.
No. 92-1141, 92nd Cong., 2nd Sess. (1972), reprinted in 1972
U.S.C.C.A.N. 4698, 4707-08.6 First, prior coverage "stop[ped] at the
_________________________________________________________________
5 The Act defines an employee as"any person engaged in maritime
employment, including any longshoreman or other person engaged in
longshoring operations, and any harbor-worker including a ship repair-
man, shipbuilder, and ship-breaker . . . ." 33 U.S.C. § 902(3). Respon-
dents stipulated that Petitioners were employees within the meaning of
the Act.
6 The House and Senate reports are identical in nearly all pertinent
respects. Because only the House report was published in U.S. Code
Congressional and Administrative News, all references are made to that
publication.
The House and Senate reports are different, however, in one respect.
The Senate report states, in its introductory comments, that the Amend-
ments expand the Act's coverage to "injuries occurring in the contiguous
dock area related to longshore and ship repair work." See S. Rep. No. 92-
1125, at 2. The Sidwell majority seizes upon this statement as conclusive
evidence of the full Congress's intent. See Sidwell, slip. op. at 9. The
House report, however--though otherwise identical to the Senate report
in its discussion of section 903(a)'s parenthetical language--contains no
such statement. Moreover, there is no question that the Amendments
extended coverage to "the contiguous dock area": the question is whether
coverage was extended to non-contiguous areas as well.
13
water's edge"; injuries occurring on land were covered only by states'
workers' compensation programs. Consequently, there existed "a dis-
parity in benefits payable for death or disability for the same type of
injury depending on which side of the water's edge and in which State
the accident occur[red]."7 1972 U.S.C.C.A.N. at 4707. Second, states'
workers' compensation laws often provided inadequate benefits. Id.
Third, Congress recognized that, "with the advent of modern cargo-
handling techniques, such as containerization," more of the long-
shoreman's work is now performed on land than before. 1972
U.S.C.C.A.N. at 4707-08. In sum, Congress believed that the amount
of compensation received by an injured employee"should not depend
on the fortuitous circumstance of whether the injury occurred on land
or over water." 1972 U.S.C.C.A.N. at 4708.
The Supreme Court has acknowledged Congress's desire to remedy
the fact that many workers, during the course of the work day, passed
in and out of LHWCA coverage prior to the 1972 Amendments. See,
e.g., P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 75 (1979); see also
Humphries, 834 F.2d at 373 (making the same observation). As reme-
dial legislation, the Act, as amended, must be "`liberally construed in
conformance with its purpose, and in a way which avoids harsh and
incongruous results.'" Northeast Marine Terminal Co. v. Caputo, 432
U.S. 249, 268 (1977) (quoting Voris v. Eikel, 346 U.S. 328, 333
(1953)).
Farrell Lines's 24th Street facility is not, standing alone, necessar-
ily an "adjoining pier, wharf, dry dock, terminal, building way, [or]
marine railway." See 33 U.S.C. § 903(a). Yet if we were to bear in
mind our duty to interpret the statute broadly and in keeping with
Congress's remedial purposes, we would surely conclude that Farrell
Lines's 24th Street facility is a maritime situs within the meaning of
section 903(a)'s reference to "other adjoining area customarily used
_________________________________________________________________
7 The present case presents the analogous situation where one seeks and
obtains employment at which he will clearly be entitled to LHWCA ben-
efits in case of injury, only to lose his entitlement to those potentially
important benefits when by no action on his part his employer is forced
to move the situs where he frequently works to another location, albeit
as close to navigable waters as is feasible.
14
by an employer in loading, unloading, repairing, dismantling, or
building a vessel."
B.
In an opinion issued in 1987, we concluded, after reviewing the
issue of situs under the LHWCA, that "[t]here is . . . no single con-
vincing test for determining just where the geographical boundaries
of coverage under the LHWCA lie" and that the inquiry requires a
"difficult exercise in line drawing." Humphries, 834 F.2d at 373-74.
Though twenty-three Fifth Circuit judges had "struggled bravely with
the issue," we observed that a majority of that court was able to
devise "little more than a litany of factors which are not conclusive
in a situs determination." Id; see Texports Stevedore Co. v.
Winchester, 632 F.2d 504 (5th Cir. 1980), cert. denied, 452 U.S. 905
(1981). We stated that, in Brady-Hamilton Stevedore Co. v. Herron,
568 F.2d 137 (9th Cir. 1978), the Ninth Circuit had taken "what at
first glance at least seems a more practical approach," Humphries,
834 F.2d at 374, by identifying four primary (yet non-exclusive) fac-
tors to be weighed:
the particular suitability of the site for the maritime uses
referred to in the statute; whether adjoining properties are
devoted primarily to uses in maritime commerce; the prox-
imity of the site to the waterway; and whether the site is as
close to the waterway as is feasible given all of the circum-
stances in the case.
Brady-Hamilton, 568 F.2d at 141. We declined, however, formally to
adopt the Brady-Hamilton approach or "to offer a touchstone for all
future LHWCA jurisdictional questions." Humphries, 834 F.2d at
375. We simply stated that a situs "need not be used exclusively for
maritime purposes or be within any specified distance of navigable
waters or a `maritime' operation" for it to be within the LHWCA's
scope. Id. at 373. We then held that the Board had properly ruled that
the given employee's injuries, sustained when the employee was
struck by a car while picking up food for employees working over-
time, had not occurred at a covered situs: the accident occurred more
than a mile from the terminal, it occurred on a public highway that
did not connect any portions of the employer's operations, it hap-
15
pened after the employee had patronized a restaurant that was sepa-
rated from water and the terminal by a residential neighborhood, at
least one other restaurant was closer to the terminal, and the employ-
ee's location at the time of the injury "did not result from hazards
uniquely inherent in the shipyard industry." Id. at 375 (quotation
omitted). While acknowledging our duty to read the situs requirement
broadly, we believed that to find coverage on such facts would be to
come "perilously close to eliminating [the situs requirement]
entirely." Id. at 375.
Even though in Humphries we did not adopt a particular test for
making situs determinations, this and other circuits have suggested
that what the statute requires when it states that the injury must have
occurred on either navigable waters or an "adjoining area," see 33
U.S.C. § 903(a), is a strong functional relationship between such
waters and the site of the injury. In Newport News Shipbuilding &
Dry Dock Co. v. Graham, 573 F.2d 167, 169 (4th Cir. 1978), cert.
denied, 439 U.S. 979 (1978), for example, we held that a parts-
making facility and a foundry were covered situses because they were
"integral parts of the shipyard," even though they were located 1,200
feet and 3,000 feet from the water's edge, respectively. See also
Brady-Hamilton, 568 F.2d at 141 (stating that, to further Congress's
remedial purposes, "the [statutory] phrase`adjoining area' should be
read to describe a functional relationship that does not in all cases
depend upon physical contiguity").
Employing an approach focusing less on contiguity and more on
functional relationships, at least two of our sister circuits have found
non-contiguous areas to be maritime situses under the Act. In
Texports Stevedore, for example, the Fifth Circuit held that a gear
room located "five blocks from the gate of the nearest dock" and half
of a block from the edge of Port Authority property was a covered
situs. 632 F.2d at 507, 513-16. In Brady-Hamilton, the Ninth Circuit
held that a gear locker "located approximately 2,600 feet north of the
edge of the Columbia River and 2,050 feet outside the entrance gate
of the Port of Longview" was a covered situs. 568 F.2d at 139-41.
Our interpretation of the Act in Sidwell runs directly contrary to such
rulings; indeed, the Sidwell opinion, while describing the approach
taken in Brady-Hamilton, does not discuss the fact that a non-
contiguous area was deemed covered in that case.
16
As in Humphries, we should again refuse to adopt a rigid definition
of the statutory phrase "other adjoining area"--particularly one
requiring that an area be contiguous with or adjacent to navigable
waters--and reiterate that a situs "need not be. . . within any speci-
fied distance of navigable waters or a `maritime' operation" for it to
fall within the Act's scope. See Humphries, 834 F.2d at 373. We
should also reassert that, while the factors articulated by the Ninth
Circuit in Brady-Hamilton are useful guideposts for conducting the
situs inquiry, they do not comprise an exhaustive list of relevant con-
siderations.
C.
In light of the statutory language, the legislative policies animating
that language, the interpretation of the Act articulated by the Director
of the OWCP in a document issued in 1977, and the facts of the pres-
ent case, we should conclude that the 24th Street facility at which
Petitioners' injuries occurred is a covered maritime situs.
As I have already stated, the word "adjoining" encompasses not
only a strict notion of contiguity, but also a more relaxed notion of
two things being located within the general vicinity of each other. See
Webster's Third New International Dictionary 27 (1981) (defining
"adjoining" as "touching or bounding" or being "near in space"). Rec-
ognizing our duty to interpret the statute broadly so that Congress's
remedial objectives may be achieved, see Northeast Marine Terminal,
432 U.S. at 268, we should hold that the phrase"other adjoining area"
does not require that an area be contiguous with navigable waters for
that area to be covered by the LHWCA. To hold otherwise not only
violates our duty to accord the statute a broad interpretation, but also
fundamentally conflicts with the approach we took in Humphries. In
that case, we did not narrowly ask whether the site at which the claim-
ant was injured was contiguous with navigable waters. Instead, we
took a fact-intensive approach, asking not only what the distance was
between the situs and the water, but also whether the injury occurred
on a road connecting the employer's operations, whether the site of
the injury was separated from the water by non-maritime neighbor-
hoods, whether the employee could have carried out his assigned task
at a location closer to the terminal, and whether the employee's loca-
tion at the time of the injury was attributable to"hazards uniquely
17
inherent in the shipyard industry." 834 F.2d at 375 (quotation omit-
ted).
Employing a similarly fact-intensive analysis here, we should find
that the off-terminal facility at which Petitioners sustained their inju-
ries is sufficiently proximate to navigable waters to enable Petitioners
to make claims for federal benefits. The 24th Street facility is located
one mile from such waters. Farrell Lines was forced by the Common-
wealth of Virginia to move most of its container-repair operations to
the off-terminal site due to terminal expansion. The 24th Street facil-
ity is as close to the terminal as possible: at the time the facility was
chosen, all closer facilities were located in areas zoned to exclude
such operations. On a daily basis, workers are shuttled between the
terminal and the off-terminal facility under the direction of a single
supervisor in accordance with the company's repair needs; the 24th
Street site was in fact chosen, at least in part, because of the ease with
which such routine shuttling of personnel could be conducted. Peti-
tioners' location at the time of their injuries was surely the result of
"hazards uniquely inherent in the shipyard industry": due to shipyard
expansion, Petitioners had no choice but to carry out essential mari-
time work that had once been performed near the water's edge at the
24th Street facility instead. In short, a very strong functional relation-
ship exists between the 24th Street facility and NIT. See Graham, 573
F.2d at 169; Brady-Hamilton, 568 F.2d at 141.
The policy considerations underlying the passage of the 1972
Amendments should further persuade us that the 24th Street facility
is a covered situs. Congress made clear that it regarded state-provided
benefits as inadequate. See 1972 U.S.C.C.A.N. at 4707. It also made
clear that it was deeply troubled by the fact that many maritime work-
ers frequently passed in and out of LHWCA coverage while carrying
on their daily tasks, so that the amount of compensation they received
depended on "the fortuitous circumstance" of where they happened to
be working when the injury occurred. See 1972 U.S.C.C.A.N. at
4707-08. Coverage was therefore extended landward. By adopting a
cramped interpretation of the phrase "other adjoining area" and
thereby denying Petitioners' claims on jurisdictional grounds, we are
subjecting Petitioners to a "harsh and incongruous result[ ]," see
Northeast Marine Terminal, 432 U.S. at 268, that is of the precise
nature that offended Congress's sensibilities and motivated it to
18
amend the Act: Petitioners are entitled only to state benefits, even
though they would have been eligible for additional benefits under the
LHWCA if their injuries had occurred during one of the frequent
shifts at the terminal, rather than during a shift at the nearby off-
terminal facility to which the Commonwealth's actions forced their
employer to move.8
It should also be noted that the Director of the OWCP has offered
an interpretation of the statute that weighs in Petitioners' favor and
that merits some deference. In August 1977, the Director of OWCP
issued a document titled "LHWCA Program Memorandum No. 58"
in order to inform OWCP's district offices of the"OWCP's position
on the amended coverage of the Act." Program Memorandum No. 58
states:
In areas in which additional space immediately adjacent to
the previously established boundaries of a waterfront pier or
terminal is not available for the expansion required by mod-
ernization, . . . such facilities as "gear lockers" . . . may be
located outside the fenced boundaries of a terminal. Such
facilities are in practical fact integral parts of the maritime
terminal . . . ; they should be regarded as extensions of the
terminals to which they relate.
Prog. Mem. No. 58, at 11.9 Because Farrell moved most of its mari-
time repair activities away from the terminal only upon the Common-
wealth's demand, and because the NIT and 24th Street facilities
operate as a single, functionally integrated unit, the Director's inter-
pretation of the statutory language suggests that Petitioners were
injured at a situs covered by the LHWCA.
_________________________________________________________________
8 The fact that, as Judge Williams points out ante at 6-7, these policies
were "wielded [by the Third Circuit] to eliminate the situs requirement
altogether" is hardly grounds for choosing wholly to ignore those poli-
cies when interpreting the Act. If courts were compelled to abandon
every tool of statutory construction that had ever been abused, we would
be left with few tools indeed.
9 Unlike Judge Williams, I fail to perceive how the Director's language
can reasonably be construed to extend coverage to"locations as remote
as Kansas City, Kansas." See ante at 7.
19
"Because the Director [of the OWCP] administers and enforces the
LHWCA, this court defers to his interpretation [of that Act] unless it
is unreasonable or contrary to Congressional intent." Zapata Haynie
Corp. v. Barnard, 933 F.2d 256, 258 (4th Cir. 1991); accord
Weyher/Livsey Constructors, Inc. v. Prevetire, 27 F.3d 985, 987 (4th
Cir. 1994); Newport News Shipbuilding & Dry Dock Co. v. Howard,
904 F.2d 206, 208-09 (4th Cir. 1990). Indeed, we have stated that we
will defer not only to the Director's reasonable administrative and
policy-making decisions, but to his reasonable constructions of the
Act's jurisdictional requirements as well. Zapata Haynie, 933 F.2d at
258 n.5. Even if Program Memorandum No. 58 represents only an
articulation of enforcement guidelines, rather than a formal declara-
tion of the agency's position, it is "still entitled to some weight on
judicial review." Martin v. Occupational Safety and Health Review
Comm'n, 499 U.S. 144, 157 (1991). The Director's interpretation of
the Act is a reasonable one, and is therefore entitled to at least some
measure of deference.
Given the strong functional relationship existing between the NIT
and 24th Street facilities, the remedial objectives spurring passage of
the 1972 Amendments, our duty to interpret the Act broadly so that
those objectives may be achieved, and the Director's long-standing
reasonable interpretation of the amended Act, we should hold that
Petitioners sustained their respective injuries at a covered maritime
situs.
III.
I have rambled on at some length to explain why the Sidwell case
which we must follow is on shaky ground. What I have set forth here
will only have relevance, however, if Sidwell or the instant case is
reheard en banc or if certiorari is granted in either case by the United
States Supreme Court.
20