Carl Bienvenu v. Texaco, Inc. Director, Office of Worker's Compensation Programs, U.S. Department of Labor Insurance Company of North America

EDITH H. JONES, Circuit Judge,

dissenting:

Even though I must agree with the majority opinion that we are bound by Perini’s general interpretation of the 1972 amendments to the LHWCA, I disagree with their conclusion that Bienvenu, an oil pumper who spent his entire career maintaining oil and gas equipment on production platforms within Louisiana’s three-mile limit, was not “transiently” injured on board the Miss Jackie. The majority’s decision to the contrary sets such a low threshold for LHWCA coverage that it is easy to envision increased litigation over LHWCA coverage for other land-based workers who are maritime commuters. Of course, as the Supreme Court said, “there will always be a boundary to coverage, and there will always be people who cross it during their employment.” Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 428 , 105 S.Ct. 1421, 1429 , 84 L.Ed.2d 406 (1985) (citation omitted). The true boundary, in my view, should not lie at the nethermost conceivable *911 description of maritime commuter-workers, but at the line drawn by Congress’s adoption of a maritime employment status test in the 1972 amendments to the LHWCA. 1 This leads me respectfully to disagree with the interpretation of the LHWCA adopted in Perini. Although our lower court may not defy the High Court’s ruling, it is useful to observe how interpretation of the statute could be brought more in line with its plain meaning.

Because much light has been shed on this debate by both the majority and dissenting opinions, I will frame my views succinctly. First, I accept that Perini insists upon continued LHWCA coverage, irrespective of the 1972 amendment’s definition of maritime employment, for any worker “injured while performing his job upon actual navigable waters.” Perini, 459 U.S. at 299, 103 S.Ct. at 638. 2 Although it is a close call, I disagree with the majority’s conclusion that because Bienvenu voluntarily performed as much as 8.3% of his work duties on the vessel, i.e. repairing or maintaining equipment and tools, he was not merely “transiently” aboard and thus excluded from LHWCA coverage. Perm’s significant footnote disclaims any intent to rule on whether LHWCA “coverage extends to a worker injured while transiently or fortuitously upon actual navigable waters. ...” 459 U.S. 297 , 326 n. 34, 103 S.Ct. 634 , 651 n. 34, 74 L.Ed.2d 465 (1983). In Herb’s Welding, the Court reiterates a likely limit to LHWCA coverage in another footnote which observes that Gray, a welder on fixed offshore oil and gas platforms

traveled between platforms by boat and might have been covered, before or after 1972, had he been injured while in transit. Even if he would have been covered for some small fraction of his time independent of the Lands Act, however, he is a far cry from the paradigmatic longshoreman who walked in and out of coverage during his workday and spent substantial amounts of his time “on navigable waters.” Any coverage attributable to the LHWCA itself was de minimis. We also note in passing a substantial difference between a worker performing a set of tasks requiring him to be both on and off navigable waters, and a worker whose job is entirely land-based but who takes a boat to work.

Herb’s Welding, Inc., 470 U.S. at 427 n. 13, 105 S.Ct. at 1429 n. 13 (citing Perini, 459 U.S. at 324 , 103 S.Ct. at 651 ). At the least, “transiently” is closely related to “in transit”, and both phrases are closely related to the description of “a worker whose job is entirely land-based but who takes a boat to work.” Indeed, Gray, like Bienvenu, ate and slept on a platform in Louisiana waters and spent 75% of his time working on platforms in state territorial waters. See Herb’s Welding, Inc., 470 U.S. at 416 , 105 S.Ct. at 1423 . On the basis of these careful disclaimers, there should be substantial doubt whether a pumper like Bienvenu who “takes a boat to work” should be covered by the LHWCA. The majority purports not to answer this question, but their description of Bienvenu’s “work” on board the Miss Jackie suffers from two flaws. First, it sets up a test (a “modicum” of work, “not insubstantial” work) that can be satisfied by artful pleading concerning the waterborne commuter’s “work” performed en route to land-based jobs. 3 *912 Second, it foreordains that employees like Bienvenu and Gray will continuously walk in and out of LHWCA coverage throughout the work day. These problems would be avoided by a holding that Bienvenu was only a commuter by boat in the course of performing his duties as an oil field worker. See Brockington v. Certified Elec., Inc., 903 F.2d 1523, 1528 (11th Cir.1990) (“question of whether an individual is a maritime employee for purposes of LHWCA coverage is controlled by analysis of his ‘basic’ employment, rather than the employee’s particular work at the moment of the accident”).

Like the offshore welder Robert Gray, Bienvenu is hardly engaged in “maritime employment” under either a layman’s conception of the term or the tighter definition imposed by the LHWCA. And from a common sense standpoint, it is hard to understand why Gray should have been covered solely by state workers compensation insurance, while Bienvenu is permitted also to benefit from the federal compensation program. 4 The reason for these incongruous results, I suggest, lies not in the statute written by Congress but in the Supreme Court’s awkward interpretation of it in Peri-ni. Faced with 1972 LHWCA amendments that, for the first time, expressly defined coverage in terms of an employee’s maritime work status as well as the appropriate situs, the Court held that the status determination was essentially relevant only to the landward extension of LHWCA. Congress did not intend, the Court said, to modify the essentially situs-based test for coverage of those employed “on navigable waters” who would have been covered by the Act before 1972.

But the language chosen by Congress reflects no such bifurcated intent. Even if Perini correctly described Congress’s legislative intent as expressed in committee reports, such intentions do not substitute for the plain meaning of the statute. See [In re Abbott Labs.] ([Free v. Abbott Labs.]), 51 F.3d 524, 528 (5th Cir.1995) (“We cannot search legislative history for congressional intent unless we find the statute unclear or ambiguous.”). Since Perini was decided, the Supreme Court has focused more carefully in statutory construction cases on the language that Congress chose, using that language as its basic guide to statutory interpretation. 5 It seems plain to me that the definition of maritime employment added to the LHWCA in 1972 is not limited to landward coverage questions but is also a requirement for coverage of injuries on navigable waters. This interpretation was certainly foreshadowed in early commentary on the 1972 amendments. 6 *913 Further, it is not an absurd construction of the Act to hold that a federal program to compensate “longshore and harbor workers” should encompass maritime employment in a traditional sense rather than, e.g., oil field workers. Finally, this is not an abstractly unfair construction of the statute, inasmuch as there is no longer any doubt that workers like Bienvenu are covered by state compensation schemes.

Thus, under a strictly textual reading of the LHWCA, if we were not bound by Peri-ni, I would hold that Bienvenu was not engaged in maritime employment for coverage purposes. Even bound by Perini however, it seems to me that Bienvenu was injured “transiently”, as Perini and Herb’s Welding used that term, and should not receive LHWCA coverage overlapping that provided under state workers’ compensation. I respectfully dissent.

. See Longshoremen’s and Harbor Workers’ Compensation Act § 2(3), 33 U.S.C. § 902 (3) ("The term 'employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in long-shoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker____”).

. Judge DeMoss’s dissent correctly shows, however, that Perini and cases on which it relies, such as Parker, should not be relied upon to the extent that Congress specifically overruled them in the 1984 amendments to the LHWCA. Moreover, while some may argue that Congress did not expressly overrule .Perini in the 1984 LHWCA amendments, thus implicitly adopting the Perini construction of LHWCA coverage, this argument must fail in light of the express status test embodied in the 1972 amendments and retained, with further restrictions, by the 1984 amendments. Based on the language of the statute, the 1984 amendments could just as easily be interpreted as a congressional reaffirmance of a strict status test for LHWCA coverage, regardless of situs.

.The majority predicts that my position would create as many problems as the ill-starred Robi-son test for seaman status. I hesitated deliberately to engage in similar vague and dire predictions about their view. But two observations are in order. First, they invoke the Barrett v. Chev *912 ron litigation-based test as a model for drawing lines among types of coverage in these cases; we are all thus in the same boat. Second, I believe we are all dealing with truly marginal cases in which coverage under a state compensation scheme or LHWCA may be arguable but ought at least to have some consistent rationale tied to real work "on the waters.”

. The majority blithely ignore this incongruity, in which two workers otherwise similarly situated receive different forms of coverage based solely on the fortuitous location of the accident. Surely that incongruity is quantitatively worse than that which they espy in my position, whereby, they claim, offshore oilworkers may receive either state compensation or Seaman's benefits. I disagree that such a consequence will be common. But if it did occur, it would be based on a principled distinction concerning the basic nature of the employee's work and exposure to the risks of the sea. The majority's pinched definition of "transient" and "fortuitous” accidents on the water leads, by contrast, to the type of capricious result they reach today.

. See City of Chicago v. Environmental Defense Fund, 511 U.S. 328, 337 , 114 S.Ct. 1588, 1593 , 128 L.Ed.2d 302 (1994) ("[I]t is the statute, and not the Committee Report, which is the authoritative expression of the law....”); Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618 , 112 S.Ct. 2160, 2168 , 119 L.Ed.2d 394 (1992) ("The question, however, is not what Congress 'would have wanted’ but what Congress enacted. ...”); Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597 , 610 n. 4, 111 S.Ct. 2476 , 2484 n. 4, 115 L.Ed.2d 532 (1991) ("No matter how clearly its report purports to do so, a committee of Congress cannot take language that could only cover ‘flies’ or ‘mosquitoes,’ and tell the courts that it really covers 'ducks.' ”); Burlington Northern R.R. Co. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461 , 107 S.Ct. 1855, 1860 , 95 L.Ed.2d 404 (1987) ("Unless exceptional circumstances dictate otherwise, '[w]hen we find the terms of a statute unambiguous, judicial inquiry is complete.’ ”).

.See, e.g., Perini, 459 U.S. at 326-28 , 103 S.Ct. at 651-53 (Stevens, J., dissenting) ("If we ignore history, and merely concentrate on the text of the statute, the conclusion is inescapable that [the LHWCA] merely provides coverage for people who do the work of longshoremen and harbor *913 workers. ...”); Charles F. Tucker, Coverage and Procedures Under the Longshoremen’s and Harbor Workers' Compensation Act Subsequent to the 1972 Amendments, 55 Tul. L.Rev. 1056, 1060-68, 1088 (1981) (“For a worker to be covered under the Act, he must not only meet the situs requirement of section 903(a), but he must also meet the status test of section 902(3)....”); Roberto L. Corrado, Note, Director, Office of Workers’ Compensation Programs v. Perini North River Associates: Judicial Dilution of the Longshoremen's and Harbor Workers' Compensation Act's "Status” Requirement, 33 Cath. U.L.Rev. 245, 277 (1983) ("The Court's overly expansive view of the LHWCA controverts the plain meaning of the Act, and restricts Congress' attempt to apply a test of maritime status to all workers injured on the actual navigable waters of the United States.”); Harold K. Watson, Comment, Broadened Coverage Under the LHWCA, 33 La. L.Rev. 683, 693 (1973) ("Now, in order to recover, the employee must once again show his [own] status as a maritime employee before the broadened situs-oriented coverage provision will inure to his benefit.”); see also, e.g., Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law, §§ 89.27(c), 89.41 (1998) (discussing implications of 1972 amendments and development of LHWCA coverage in light of Perini) ("[T]he boundary will no doubt be drawn on a case-by-case basis, rather than on the basis of some all-purpose general test or principle.”).