Brown v. Offshore Specialty Fabricators, Inc.

Case: 10-40936 Document: 00511674932 Page: 1 Date Filed: 11/23/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 23, 2011

No. 10-40936 Lyle W. Cayce

Clerk

LEE BROWN; RICHARD BADON; BRUCE CRUTCHFIELD; ERIC LENA;

WATKINS JACKSON; TIMOTHY HARMON; RAYMOND JOHNSON;

MARK JOHNSON; DONALD WIGGINS; ROBERTO CANTU; RAYMOND

BALDERAS; MICHAEL AMSBARY; BRIAN BRADSHAW,

Plaintiffs - Appellants

v.

OFFSHORE SPECIALTY FABRICATORS, INC.; HORIZON OFFSHORE,

INC.; HORIZON OFFSHORE CONTRACTORS, INC.; O.W.I. LIMITED

(OCEANWIDE INTERNATIONAL); OCEANWIDE HOUSTON, INC.; CAL

DIVE INTERNATIONAL, INC.; C-MAR AMERICA, INC.; HUMARES BV;

OCEANWIDE OFFSHORE SERVICES; C-MAR GROUP HOLDINGS, LTD.;

C-MAR GROUP HOLDINGS, INC.; GLOBAL INDUSTRIES OFFSHORE,

L.L.C.; GLOBAL INDUSTRIES, LTD.; HORIZON VESSELS, INC.;

OFFSHORE EXPRESS, INC.; C-MAR SERVICES (UK) LIMITED; HELIX

ENERGY SOLUTIONS GROUP, INC.,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Texas

Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal involves a putative class action brought against several oil and

gas companies and several companies that provide labor for offshore oil and gas

projects. The plaintiffs allege violations of the Racketeer Influenced and Corrupt

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No. 10-40936

Organizations Act (RICO) and the Outer Continental Shelf Lands Act (OCSLA).

Under the OCSLA, the plaintiffs pursue both a personal right of action for

economic damages and an enforcement action under the OCSLA’s citizen suit

provision for injunctive relief. The district court disposed of all of the plaintiffs’

claims over time, dismissing some and granting summary judgment against

others. The court then entered a final judgment dismissing all claims. For the

reasons that follow, the district court’s judgment is AFFIRMED.

I.

The plaintiffs contend that the defendants maintain a hiring scheme to

employ foreign workers on the Outer Continental Shelf, in violation of RICO and

the OCSLA. According to the plaintiffs, the defendants employ workers who are

neither citizens nor workers authorized to be in the United States. The plaintiffs

argue that the defendants’ conduct violates the Immigration and Nationality Act

(INA), and therefore qualifies as racketeering activity prohibited by RICO.

Although the OCSLA provides more specific rules for employing foreign workers

on the Outer Continental Shelf—the OCSLA “manning requirements”—the

plaintiffs contend that the defendants also violate these requirements. The

plaintiffs further assert that this unlawful hiring scheme results in depressed

wages and degraded working conditions to the detriment of U.S. citizens and

legal residents who work on the Outer Continental Shelf.

The initial complaint was filed on December 17, 2004. Numerous

amendments changed the claims and parties involved, but only three claims

have survived for this appeal: (1) a RICO claim against the “Service

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Defendants,”1 (2) an OCSLA damages claim against all defendants, and (3) an

OCSLA enforcement claim against all defendants.

On January 30, 2008, the district court dismissed the OCSLA damages

claim upon the defendants’ motion, holding that the statute does not create a

private cause of action for damages.

On July 21, 2008, the district court ordered threshold discovery on the

issues raised by the RICO claim, specifically on the applicability of the INA to

the Service Defendants’ conduct, the existence of exemptions to the OCSLA, and

the standing and status of the named plaintiffs. One year later, when threshold

discovery concluded, the Service Defendants moved separately for summary

judgment. The district court granted summary judgment to the Service

Defendants on the RICO claim for two reasons: (1) The laws of the United

States, including the INA, extend only to installations and devices attached to

the seabed of the Outer Continental Shelf. Because the Service Defendants

operate free-floating vessels they cannot have violated the INA and thus cannot

have violated RICO. (2) The Service Defendants possess Coast Guard-issued

exemptions to the OCSLA manning requirements that allow them to lawfully

employ foreign workers on the Outer Continental Shelf. The plaintiffs failed to

present evidence to undercut the validity of these exemptions.

The defendants then filed a joint motion to dismiss and, in the alternative,

a joint motion for summary judgment on the OCSLA enforcement claim. On

August 17, 2010, the district court granted this motion, holding that the

1

The “Service Defendants” are companies in the business of offshore oil and gas

exploration. The “Service Defendants” remaining in the suit are Cal Dive International, Inc.;

Helix Energy Solutions, Inc.; Horizon Offshore Contractors, Inc.; Horizon Offshore, Inc.;

Horizon Vessels, Inc.; Offshore Specialty Fabricators, Inc.; Offshore Express, Inc.; Global

Industries Offshore, LLC; and Global Industries, Ltd. All other remaining defendants are

“Manning Defendants,” companies in the business of providing contract labor services for oil

and gas projects. When referring to the “Service Defendants” and “Manning Defendants,”

collectively, this opinion uses the generic, “defendants.”

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plaintiffs had failed to comply with the OCSLA’s pre-suit notification

requirements, and that the plaintiffs lacked standing. The court entered an

appealable final judgment the same day, dismissing all claims. The plaintiffs

appeal.

II.

We review summary judgments and dismissals for failure to state a claim

de novo. Copeland v. Wasserstein, Perella & Co., Inc., 278 F.3d 472, 477 (5th Cir.

2002). Summary judgment is proper 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.” FED. R. CIV. P. 56(a). In reviewing a dismissal for failure to

state a claim, “[w]e must accept the allegations in the complaint as true and

view them in the light most favorable to the plaintiff.” Miller v. Nationwide Life

Ins. Co., 391 F.3d 698, 699-700 (5th Cir. 2004).

A.

1.

We begin by reviewing the district court’s grant of summary judgment

dismissing the plaintiffs’ RICO claim. The plaintiffs contend that the district

court erred in granting summary judgment because, regardless of the free-

floating character of the Service Defendants’ vessels, the INA still applies to the

Service Defendants’ conduct. In the plaintiffs’ view, the INA is triggered when

foreign workers step foot on U.S. soil before being taken to the Outer

Continental Shelf, and remains effective even if those workers perform their

work on a free-floating vessel. The plaintiffs argue that the Service Defendants

do not follow the strictures of the INA in employing foreign workers, and thus

engage in racketeering activity under RICO. See 18 U.S.C. § 1961(1)(F).

We disagree. Violations of the INA can, of course, constitute racketeering

activity prohibited by RICO. Id. The sections of the INA that qualify as

racketeering activity, however, do not on their own terms include the Outer

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Continental Shelf within their territorial reach. See 8 U.S.C. §§ 1101(a)(38),

1324, 1327, 1328 (prohibiting certain conduct within the United States and

defining the United States as “the continental United States, Alaska, Hawaii,

Puerto Rico, Guam, the Virgin Islands of the United States, and the

Commonwealth of the Northern Mariana Islands.”). United States law,

including the INA, is made applicable to the Outer Continental Shelf through

the OCSLA. 43 U.S.C. § 1333(a)(1). See also Offshore Logistics, Inc. v.

Tallentire, 477 U.S. 207, 217-20 (1986) (defining the purpose of the OCSLA).

The OCSLA provides:

The Constitution and laws . . . of the United States are

extended to the subsoil and seabed of the outer Continental

Shelf and to all artificial islands, and all installations and

other devices permanently or temporarily attached to the

seabed, which may be erected thereon for the purpose of

exploring for, developing, or producing resources therefrom,

or any such installation or other device (other than a ship or

vessel) for the purpose of transporting such resources, to the

same extent as if the outer Continental Shelf were an area of

exclusive Federal jurisdiction located within a State . . . .

43 U.S.C. § 1333(a)(1). The plaintiffs concede that the Service Defendants’

vessels are free floating, and are neither permanently nor temporarily attached

to or erected on the seabed. The OCSLA does not, therefore, extend the reach

of United States law, including the INA, to the Service Defendants’ vessels. The

plaintiffs cite no authority for their theory that the INA, once triggered by

workers stepping foot on U.S. soil, remains effective forever, and we are

unpersuaded by such argument. We hold that the Service Defendants do not

violate RICO because the law that would make their conduct racketeering

activity—the INA—does not apply in the place where that conduct occurred,

namely vessels floating on the waters of the Outer Continental Shelf.

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2.

The plaintiffs further contend that the exemptions the Service Defendants

possess to the OCSLA manning requirements do not shield them from RICO

liability because those exemptions were fraudulently obtained. We now consider

that argument.2

The OCSLA manning requirements provide that vessels, rigs, platforms,

and other structures operating on the Outer Continental Shelf must “be manned

or crewed . . . by citizens of the United States or aliens lawfully admitted to the

United States for permanent residence.” 43 U.S.C. § 1356(a)(3). This

requirement is subject to exemptions that the OCSLA empowers the United

States Coast Guard to issue. 43 U.S.C. § 1356. The vessels exempt from the

manning requirements include any vessel “over 50 percent of which is owned by

citizens of a foreign nation or with respect to which the citizens of a foreign

nation have the right effectively to control.” 43 U.S.C. § 1356(c)(2). Also exempt

are vessels for which “there are not a sufficient number of citizens of the United

States, or aliens lawfully admitted to the United States for permanent residence,

qualified and available for [a particular type of] work.” 43 U.S.C. § 1356(c)(1)(B).

Upon request, the Coast Guard determines whether these statutory standards

are met and whether to issue an exemption to the manning requirements. See

33 C.F.R. §§ 141.5, 141.20.

Other circuits have held that compliance with the OCSLA’s manning

requirements precludes liability under the general rules of the INA. See United

2

In discussing the validity of the Service Defendants’ OCSLA exemptions, we do not

imply that violating the OCSLA manning requirements is, itself, racketeering activity under

RICO. See 18 U.S.C. § 1961(1)(F). We address the validity of the exemptions as an alternative

basis for summary judgment because compliance with the manning requirements means

freedom from RICO liability in this case.

Neither do we imply that all Service Defendants possessed exemptions at all times.

At least some of the Service Defendants rely exclusively on their free-floating status for certain

periods of their conduct.

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Ass’n of Journeymen & Apprentices of the Plumbing & Pipe Fitting Indus., AFL-

CIO v. Reno, 73 F.3d 1134, 1140-41 (D.C. Cir. 1996), cert. denied, 519 U.S. 807

(1996); Piledrivers’ Local Union No. 2375 v. Smith, 695 F.2d 390, 393-94 (9th

Cir. 1982). The plaintiffs do not seriously contest this legal principle, but

instead contest whether the Service Defendants’ exemptions are valid. We turn

now to that question.

Defendants Cal Dive International, Inc. (Cal Dive) and Helix Energy

Solutions, Inc. (Helix) possess these “foreign control exemptions.” See 43 U.S.C.

§ 1356(c)(2); 33 C.F.R. § 141.5. The plaintiffs contend that Cal Dive and Helix

deceived the Coast Guard in obtaining these exemptions by bareboat-chartering

their vessels to a sham foreign company, which then time-chartered the vessels

back.3 According to the plaintiffs, the sham company is closely connected with

Cal Dive and Helix: it has no employees, its board of directors includes the

President of Cal Dive, 49% of its shares are owned by Cal Dive and Helix, no

money passes through it, and the masters and captains of its vessels report to

Cal Dive and Helix. Because these facts indicate that Cal Dive and Helix’s

vessels are not under actual foreign control, the plaintiffs argue, any exemption

based on foreign control must have been fraudulently obtained.

3

The demise or ‘bareboat’ charter is essentially the lease of a ship, usually

on a long-term contract, often associated with a special finance or

purchase arrangement. In a demise charter, it is up to the charterer to

man and equip the vessel. . . . Although the owner retains legal title, the

charterer is considered the temporary owner, or commonly termed the

owner pro hac vice.

2 THOMAS J. SCHOENBAUM, ADMIRALTY & MARITIME LAW § 11-3 (4th ed. 2004).

The time charter party is a contract of affreightment to use a ship in

order to ship goods for a specific period of time. The carrier makes the

ship's capacity available to the time charterer for this purpose.

Id. § 11-5.

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We are loath to second-guess the Coast Guard’s judgment in issuing

foreign control exemptions, especially in the light of the deference we owe to

agency determinations made pursuant to statutory authority. The plaintiffs ask

us to take an extraordinary step in invalidating the exemptions. They do not,

however, point us to any deceptive conduct by Cal Dive and Helix that would

compel us to take that step. “[T]he plain language of Rule 56[] mandates the

entry of summary judgment . . . against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party's case,

and on which that party will bear the burden of proof at trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).

The plaintiffs argue that the Coast Guard was deceived because it did not

know that the company bareboat chartering Cal Dive and Helix’s vessels would

be time chartering them back to Cal Dive and Helix. The plaintiffs make no

showing to that effect, and the record evidence suggests the opposite: agents of

Cal Dive and Helix stated in affidavits and depositions that they communicated

the full scheme of bareboat chartering and time chartering during the exemption

application process; the applications for the exemptions stated that the vessels

would be performing work for Cal Dive and other companies; and the bareboat

charter agreements expressly allow for further chartering. Cal Dive and Helix

submitted records to the Coast Guard revealing their relationship with the

foreign company, the company’s financial and organizational structure, and the

company’s ownership. In the light of this record evidence, we hold that the

plaintiffs’ showing is insufficient to invalidate the Coast Guard’s determination

to issue foreign control exemptions to Cal Dive and Helix.

The rest of the Service Defendants possess exemptions of the other variety,

available when there are too few U.S. citizens and legal residents to perform a

particular type of work. 43 U.S.C. § 1356(c)(1)(B); 33 C.F.R. §§ 141.15, 141.20.

The plaintiffs offer no evidence to contest the validity of these exemptions.

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Instead, the plaintiffs offer evidence that some of the Service Defendants, at one

time, operated without exemptions. We fail to see how this historical fact has

any bearing on the validity of the exemptions the Service Defendants now

possess.

The plaintiffs also argue that the validity of the OCSLA exemptions,

generally, was not an appropriate topic for threshold discovery, and that they

should have been given more time to develop evidence of their invalidity. We

review the district court’s management of discovery for abuse of discretion.

Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 102 (5th Cir. 1990). The

plaintiffs’ assertion, standing alone, that the validity of the exemptions was not

an appropriate subject for threshold discovery, does not persuade us that the

district court abused its discretion.

B.

We turn now to the dismissal of the plaintiffs’ OCSLA damages claim. The

plaintiffs contend that the OCSLA creates a private right of action for damages.

See 43 U.S.C. § 1349(b)(2). They point to the OCSLA’s jurisdiction and venue

provision, which states that, “[a]ny resident of the United States who is injured

in any manner through the failure of any operator to comply with any rule,

regulation, order, or permit issued pursuant to this subchapter may bring an

action for damages . . . only in the judicial district having jurisdiction under

paragraph (1) of this subsection.” Id.

We have acknowledged previously that there is “language in § 1349(b)

which taken alone might be read broadly enough to support [the] position that

[the OCSLA creates] a new cause of action in tort.” Wentz v. Kerr-McGee Corp.,

784 F.2d 699, 701 (5th Cir. 1986). At the same time we have rejected that

broad reading, preferring instead to read § 1349(b) as a jurisdiction and venue

provision only. Romero v. Mobil Exploration & Producing N. Am., Inc., 939 F.2d

307, 309 n.5 (5th Cir. 1991) (“Private citizens are statutorily empowered to

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commence civil actions to compel compliance with the Lands Act, 43 U.S.C. §

1349, but no cause of action ex delicto is founded on that provision.”); Wentz, 784

F.2d at 701 (“The only new private right of action created by § 1349 is contained

in § 1349(a). This provision permits a private citizen to bring suit to enforce the

OCSLA . . . .”). This court’s preference is based, in part, on Congress’s stated

intent in enacting § 1349(b) merely to reenact an earlier jurisdiction and venue

provision, one which did not contain any language that might be construed as

creating a private right of action for damages. Wentz, 784 F.2d at 701.

The plaintiffs seek to limit this precedent, which is plainly contrary to

their argument that § 1349(b) creates a private right of action for damages, to

cases of personal injury. We see no principled reason for doing so. Whether a

plaintiff seeks to recover for economic losses, as here, or for personal injury has

no bearing on how we read § 1349(b) in relation to the rest of the OCSLA. We

hold that the plaintiffs cannot state a claim for a private right of action for

damages under the OCSLA, and the district court’s dismissal was proper.

C.

1.

Lastly, we must consider the district court’s disposition of the joint motion

to dismiss and, in the alternative, joint motion for summary judgment on the

OCSLA enforcement claim. The plaintiffs contend that the district court erred

in disposing of their OCSLA enforcement action based on their failure to give

proper pre-suit notice to the defendants. A person may not bring an OCSLA

enforcement action “prior to sixty days after the plaintiff has given notice of the

alleged violation, in writing under oath, to the Secretary and any other

appropriate Federal Official, to the State in which violation . . . occurred . . . and

to any alleged violator.” 43 U.S.C. § 1349(a)(2). The sixty-day notice

requirement is subject to an exception: “An action may be brought . . .

immediately after notification of the alleged violation in any case in which the

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. . . violation . . . would immediately affect a legal interest of the plaintiff.” 43

U.S.C. § 1349(a)(3).

The plaintiffs argue that their rights are immediately affected by the

defendants’ conduct. They also argue that some plaintiffs joined the lawsuit

more than sixty days after two plaintiffs, Danny Cunningham and Pablo Rubio

Llamas, notified the defendants of the suit, although neither of the two notifying

plaintiffs is still a party. Because the defendants’ rights are not prejudiced by

this method of notice, the plaintiffs argue that the district court should not have

dismissed their claim for their failure strictly to comply with the statute’s notice

requirement.

Questions of prejudice and fairness notwithstanding, no plaintiff gave the

required notice before bringing this action. Under either form of notice allowed

by the OCSLA, the notice must be given before, not after, bringing an action. 43

U.S.C. § 1349(a). First, the plaintiffs rely on the letter of Danny Cunningham,

dated January 18, 2005. The original complaint, in which Danny Cunningham

is a named plaintiff, was filed on December 17, 2004, more than a month earlier.

Even if we were to accept the plaintiffs’ argument that one person’s notice can

serve as notice for all, Danny Cunningham did not give notice, as that word is

contemplated in the OCSLA, because his attempted notice was untimely.

Second, the plaintiffs rely on the letter of Pablo Rubio Llamas, dated

August 4, 2005. This letter is dated more than seven months after the action

commenced, and only one day before the plaintiffs’ Third Amended Complaint

was filed. The Third Amended Complaint is the first pleading listing Pablo

Rubio Llamas as a party. Assuming Llamas “brought” an action by joining a

pending lawsuit, and assuming further that the date on the letter is the date

notice was “given,” as the terms “brought” and “given” are used in the OCSLA,

then Llamas gave notice before bringing an action. Despite the generous aid of

these assumptions, Llamas’s notice is still deficient because he gave it only one

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day before becoming a plaintiff. A person can bring an OCSLA enforcement

action in fewer than sixty days after giving notice only if “the . . . [alleged]

violation . . . would immediately affect a legal interest of the plaintiff.” 43 U.S.C.

§ 1349(a)(3). Llamas cannot claim this immediacy exception because the only

pleading on which Llamas was a party, the Third Amended Complaint, states

that Llamas “was previously employed by Offshore Speciality Fabricators, Inc.

and/or Offshore Express, Inc.” It contains no allegations that Llamas presently

works on the Outer Continental Shelf or has plans to seek employment there.

The harm for which Llamas sought remedy was past harm, not harm stemming

from a violation immediately affecting his legal interests. See id. Pablo Rubio

Llamas’s attempted notice was, like that of Danny Cunningham, untimely.

It bears mentioning again that neither Danny Cunningham nor Pablo

Rubio Llamas is still a party to this lawsuit, and that the plaintiffs point to no

other person who even attempted to comply with the OCSLA’s pre-suit notice

requirement. We cannot agree that deficient attempts at notice given by two

former plaintiffs, neither attempt occurring before the original complaint was

filed, can anchor all of the plaintiffs’ claims. Because no plaintiff gave the type

of notice required by the OCSLA, we need not reach the plaintiffs’ argument that

notice by one plaintiff can serve as notice for all.

We further note that the plaintiffs’ general approach to the OCSLA’s pre-

suit notice requirement is contrary to the Supreme Court’s direction to strictly

construe such statutory requirements. See Hallstrom v. Tillamook Cnty., 493

U.S. 20, 30-33 (1989). Pre-suit notice requirements serve goals that judicially-

crafted exceptions may disrupt: (1) allowing government agencies to take

responsibility for enforcing regulations; and (2) giving the alleged violator an

opportunity to bring itself into compliance. Id. at 29. These goals are no less

important in multiparty litigation.

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2.

The plaintiffs also urge that, contrary to the district court’s holding, they

have standing to bring an OCSLA enforcement action. The district court did not

clarify whether its dismissal for lack of standing was a dismissal for lack of

statutory standing only or whether it believed the plaintiffs also lacked

constitutional standing. In the interest of clarity, we will consider the plaintiffs’

standing under the statutory and constitutional standards.

The OCSLA provides that, “any person having a valid legal interest which

is or may be adversely affected may commence a civil action . . . to compel

compliance with this subchapter . . . .” 43 U.S.C. § 1349(a)(1). The plaintiffs

contend that, by alleging that the defendants violate the OCSLA on a continuing

basis and by seeking injunctive relief, they satisfy this requirement.

A prospectively-worded citizen suit provision, like the OCSLA’s, requires

that “the harm sought to be addressed . . . lie[] in the present or the future, not

in the past.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484

U.S. 49, 59 (1987). We agree that a plaintiff may establish standing with “a good

faith allegation of continuous or intermittent violation,” but this does not free

the plaintiff from asserting an interest affected by that continuous violation. Id.

at 64. Only one plaintiff alleges current employment on the Outer Continental

Shelf.4 The other plaintiffs allege past employment but no plans to seek future

employment there. The harm of which they complain—depressed wages and

degraded working conditions—can only mean past harm because they do not

presently earn wages or experience the working conditions on the Outer

Continental Shelf. Because they cannot demonstrate a cognizable injury

4

The district court held that the plaintiff alleging current employment had standing,

but that his OCSLA enforcement claim still failed because all of the plaintiffs had failed to

give pre-suit notice. We agree.

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required to bring a citizen suit under the OCSLA, the plaintiffs lack statutory

standing.

Constitutional standing is a jurisdictional question. Harold H. Huggins

Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2 (5th Cir. 2011) . Our review of

a dismissal for lack of subject matter jurisdiction is de novo. Rodriguez v.

Christus Spohn Health Sys. Corp., 628 F.3d 731, 734 (5th Cir. 2010). Article III

of the Constitution limits the judicial power of the United States to justiciable

cases and controversies. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60

(1992). To establish constitutional standing, a plaintiff must satisfy three

elements:

First, the plaintiff must have suffered an ‘injury in fact’. . .

an invasion of a legally protected interest which is . . .

concrete and particularized . . . not ‘conjectural’ or

‘hypothetical’ . . . . Second, there must be a causal connection

between the injury and the conduct complained of . . . .

Third, it must be ‘likely,’ as opposed to merely ‘speculative,’

that the injury will be ‘redressed by a favorable decision.’

Id. at 560-61 (internal citation omitted). The plaintiffs’ complaint fails the third

element, redressability. Enjoining the defendants’ conduct, as the plaintiffs

request, will not redress the wages they already lost or the working conditions

they already endured. The plaintiffs thus lack constitutional standing, and the

district court’s dismissal was proper.

III.

In sum, we hold that the district court did not err in disposing of the

plaintiffs’ RICO claim, OCSLA damages claim, or OCSLA enforcement claim.

Accordingly, the judgment of the district court is in all respects

AFFIRMED

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