Reply Brief — The Dutra Group, Petitioner v. Christopher Batterton

Supreme Court briefNov 13, 2018

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No. 18-266

IN THE

Supreme Court of the United States

THE DUTRA GROUP,

Petitioner,

CHRISTOPHER BATTERTON,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR PETITIONER

BARRY W. PONTICELLO

RENEE C. ST. CLAIR

ENGLAND, PONTICELLO

& ST. CLAIR

701 B. Street Suite 1790

San Diego, CA 92101

(619) 225-6450

bponticello@eps-law.com

SETH P. WAXMAN

Counsel of Record

PAUL R.Q. WOLFSON

DAVID M. LEHN

CHRISTOPHER ASTA

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

seth.waxman@wilmerhale.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................... ii

ARGUMENT ....................................................................... 2

THERE IS A REAL AND DURABLE SPLIT

BETWEEN THE MOST IMPORTANT LOWER

ADMIRALTY COURTS .................................................... 2

II. THIS CASE IS AN APPROPRIATE VEHICLE

TO RESOLVE THIS IMPORTANT ISSUE........................ 4

III. THE DECISION BELOW IS INCORRECT ....................... 8

CONCLUSION ................................................................. 12

TABLE OF AUTHORITIES

CASES

Page(s)

Atlantic Sounding Co. v. Townsend, 557 U.S.

404 (2009) ............................................................ passim

The City of Carlisle, 39 F. 807 (D. Or. 1889) ................. 12

Gibson v. American Cyanamid Co., 760 F.3d

600 (7th Cir. 2014)......................................................... 3

Guevara v. Maritime Overseas Corp., 59 F.3d

1496 (5th Cir. 1995)....................................................... 6

In re Marine Sulphur Queen, 460 F.2d 89 (2d

Cir. 1972) ........................................................................ 6

King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991)

(en banc) ......................................................................... 3

Mahnich v. Southern Steamship Co., 321 U.S.

96 (1944) ......................................................................... 9

McAllister v. Magnolia Petroleum Co., 357

U.S. 221 (1958) .............................................................. 9

McBride v. Estis Well Service, LLC, 853 F.3d

777 (5th Cir. 2017)......................................................... 2

McBride v. Estis Well Service, LLC, 768 F.3d

382 (5th Cir. 2014).............................................. passim

Miles v. Apex Marine Corp., 498 U.S. 19

(1990) .................................................................3, 5, 9-11

Moragne v. States Marine Lines, Inc., 398 U.S.

375 (1970) ....................................................................... 9

Pacific Steamship Co. v. Peterson, 278 U.S. 130

(1928) .......................................................................... 7, 9

The Rolfe, 293 F. 269 (N.D. Cal. 1923) ............................ 12

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Seaboard Air Line Railway v. Koennecke, 239

U.S. 352 (1915) .............................................................. 7

The Troop, 118 F. 769 (D. Wash. 1902) ........................... 12

OTHER AUTHORITIES

Brown, Mandy, American Ass’n for Justice,

Ninth Circuit Rules Punitive Damages

Available for Unseaworthiness Claims

(Feb. 22, 2018), https://www.justice.org/

news-and-research/law-reporter-and-trialnews/february-22-2018-trial-news ............................. 2

IN THE

Supreme Court of the United States

No. 18-266

THE DUTRA GROUP,

Petitioner,

CHRISTOPHER BATTERTON,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR PETITIONER

The Fifth and Ninth Circuits, which hear most

maritime injury cases in the federal courts, have

reached directly opposite conclusions as to whether punitive damages are available in actions for unseaworthiness under general maritime law. That question is

important, given the constitutional mandate to maintain uniform maritime law and the potentially serious

consequences of allowing punitive damages for unseaworthiness. Respondent’s opposition offers no persuasive reason why this Court should deny review.

ARGUMENT

THERE IS A REAL AND DURABLE SPLIT BETWEEN THE

MOST IMPORTANT LOWER ADMIRALTY COURTS

The Ninth Circuit held that punitive damages are

available in unseaworthiness actions, the Fifth Circuit

held the opposite, and this Court should resolve that

disagreement. In fact, shortly after the court of appeals issued its decision here, respondent’s counsel told

the media that “[t]his decision creates a split between

the Ninth and Fifth Circuits,” and acknowledged the

likelihood that this Court would grant review to resolve

the split. Brown, Am. Ass’n for Justice, Ninth Circuit

Rules Punitive Damages Available for Unseaworthiness Claims (Feb. 22, 2018).1

Respondent’s strained effort to reinterpret the

Fifth Circuit’s decisions falls short. Respondent claims

(at 5) that “a majority” of the en banc Fifth Circuit in

McBride v. Estis Well Service, LLC, 768 F.3d 382 (5th

Cir. 2014), “rejected the argument [that] petitioner advances here.” There are several problems with that

contention. First, a later Fifth Circuit panel—which

respondent ignores—stated unqualifiedly that its “prior

en banc decision … hold[s] that punitive damages are

not available … on [plaintiffs’] Jones Act and general

maritime law claims.” McBride v. Estis Well Serv.,

LLC, 853 F.3d 777, 780 n.1 (5th Cir. 2017), cert. denied

sub nom. Touchet v. Estis Well Serv., LLC, 138 S. Ct.

644 (2018). Second, the Ninth Circuit acknowledged in

the decision below that the Fifth Circuit’s decision in

“McBride … holds that punitive damages … may not

be recovered under the Jones Act or under the general

https://www.justice.org/news-and-research/law-reporter-andtrial-news/february-22-2018-trial-news.

maritime law,” referring to unseaworthiness actions.

Pet. App. 6a (punctuation modified; emphasis added).

Focusing on the precise reasoning of the various

opinions in McBride, as respondent does, does not diminish the split or the need for this Court’s review.

The Fifth Circuit’s controlling rule is still the opposite

of the Ninth Circuit’s. The holding of the Fifth Circuit

is not determined by cobbling together an apparent majority from concurring and dissenting opinions. That

would yield the absurd result that the court’s holding

contradicted its judgment in the same case. Cf. Gibson

v. American Cyanamid Co., 760 F.3d 600, 620-621 (7th

Cir. 2014) (“dissenting opinions cannot be counted under Marks to create binding precedent”); King v.

Palmer, 950 F.2d 771, 783 (D.C. Cir. 1991) (en banc)

(“we do not think we are free to combine a dissent with

a concurrence to form a Marks majority”).

In any event, contrary to respondent’s suggestion

(at 6-7), a majority of the en banc Fifth Circuit explicitly rejected the position that was adopted by the Ninth

Circuit. The lead opinion, joined by seven judges, concluded that, “[b]ased on Miles [v. Apex Marine Corp.,

498 U.S. 19 (1990),] and other Supreme Court and circuit authority, … [p]unitive damages are not recoverable” in unseaworthiness (and Jones Act) actions,

whether the seaman was killed or injured. McBride,

768 F.3d at 391. Tracking Miles, the lead opinion explained that “Congress ha[d] struck the balance for us

in determining the scope of damages”—with respect to

“personal injury actions as well as … wrongful death

action[s].” Id. at 388-389 (punctuation modified).

According to respondent (at 6), two concurring

judges “explicitly disagreed with [the lead opinion’s]

reasoning on the personal-injury claims.” That distorts

those judges’ position, which was not markedly different from the lead opinion’s analysis. They explicitly

“concur[red] in the reasoning expressed in the majority

opinion with respect to the wrongful death … claims.”

768 F.3d at 401. Although they did not agree that

Miles “dictate[d] the outcome” for personal-injury

claims—because, they explained, Miles involved only a

wrongful-death claim (id. at 401-402)—they did not “follow[ Atlantic Sounding Co. v.] Townsend,” 557 U.S.

404 (2009), or otherwise agree with the view taken by

the dissent there (or respondent and the Ninth Circuit

here), as respondent claims (at 9). To the contrary,

they explicitly stated that they “cannot join the dissenting opinions with respect to the surviving seamen.”

768 F.3d at 402 (Haynes, J., concurring). They specifically rejected the dissent’s position, which—like that of

the Ninth Circuit and respondent here—rested heavily

on Townsend; as they explained, Townsend “addressed

only maintenance and cure” and therefore was not controlling in unseaworthiness cases. Id. at 404 (Haynes,

J., concurring); see Pet. 17-20.

There can be no doubt that the Fifth and Ninth

Circuits disagree on the question presented here. Had

this case been brought in the Fifth Circuit, respondent’s claim for punitive damages would have been dismissed. Nothing further is needed to establish a circuit

conflict.

II. THIS CASE IS AN APPROPRIATE VEHICLE TO RESOLVE

THIS IMPORTANT ISSUE

The divisions among lower courts—between the

Ninth and Fifth Circuits, and also between the Washington Supreme Court and other federal and state appellate courts (see Pet. 8-9)—is important and deserves

this Court’s prompt attention.

A. The Constitution “mandate[s]” nationally “uniform” maritime law. Miles, 498 U.S. at 27; Pet. 26; Br.

of At-Sea Processors Ass’n et al. (“ASPA Br.”) 5. As

long as the current division persists, vessel owners and

operators will face uncertainty about their potential

liability. Pet. 11 & n.5, 26; ASPA Br. 6. The inconsistency also provides vessel owners that operate primarily off the Gulf Coast an unwarranted financial advantage over those that operate primarily off the Pacific Coast, and gives plaintiffs an incentive to engage in

forum shopping. No policy justification supports such a

result.

Further, the substance of the ruling below is deeply problematic. The potential for massive punitive

damages awards will likely increase operating costs for

maritime owners and employers, to the detriment of

our national economy, environment, and security. Pet.

23-26; ASPA Br. 3-4, 7-10 (allowing punitive damages

for unseaworthiness “will markedly increase maritime

operators’ litigation costs, result in higher prices for

consumers, make the U.S. maritime industry less competitive with industries in countries whose law precludes punitive damages”).

Respondent does not deny the constitutional imperative to eliminate the inconsistency in maritime law,

but does deny that allowing punitive damages in unseaworthiness cases threatens serious harms. Respondent questions (at 19, 21) whether there is support

for the notion that recognition of punitive damages for

unseaworthiness would cause “the collapse of the economy, the destruction of the environment, and the undermining of national security.” But petitioner has not

made, and need not make, such dire claims. Rather, petitioner has noted—as many courts and commentators

have observed—that punitive damages, especially in

such an important sector of the economy, can have adverse consequences and do raise serious concerns. See

Pet. 23-26.

Moreover, actual experience is far less informative

than respondent asserts, because there has never been

a sustained period when punitive damages were available in unseaworthiness actions. As respondent concedes (at 20), the discussion of punitive damages in In

re Marine Sulphur Queen, 460 F.2d 89 (2d Cir. 1972),

was “dicta.” A few cases in the 1980s allowed punitive

damages for unseaworthiness claims, as petitioner

acknowledged. See Pet. 16 n.10. But that regime was

fleeting, because it was widely understood that in 1990

Miles “effectively overruled” those cases and foreclosed punitive damages for unseaworthiness. Guevara

v. Maritime Overseas Corp., 59 F.3d 1496, 1507 (5th

Cir. 1995), abrogated by Townsend on other grounds,

557 U.S. 504; see Pet. 8-9 (collecting post-Miles cases

rejecting availability of punitive damages).

B. According to respondent (at 11-14), review of

the question presented is “premature” because (a) the

Court could not reverse the Ninth Circuit’s decision on

unseaworthiness unless it also addressed whether punitive damages are available for Jones Act negligence

claims, and (b) the Court would “benefit from further

percolation on [the Jones Act] issue … in light of Townsend.” That argument lacks merit.

There is no serious doubt that punitive damages

are unavailable in negligence actions under the Jones

Act. As petitioner has detailed (Pet. 13-16), for more

than a century this Court has consistently recognized

that the Jones Act and the statute it incorporates, the

Federal Employers Liability Act (“FELA”), restrict

recovery to compensatory damages and thus disallow

punitive damages. See, e.g., Pacific S.S. Co. v. Peterson, 278 U.S. 130, 138 (1928) (Jones Act and unseaworthiness provide “right to recover compensatory damages”); Seaboard Air Line Ry. v. Koennecke, 239 U.S. 352,

354 (1915) (reasoning that claim for punitive damages

must have arisen under state law because FELA did

not allow punitive damages). Respondent ignores those

precedents, but the lower courts have not, consistently

concluding that punitive damages are unavailable under the Jones Act. As the en banc Fifth Circuit observed, “no cases have awarded punitive damages” under the Jones Act. McBride, 768 F.3d at 388. Indeed,

respondent must have recognized as much, for his complaint did not request punitive damages under the

Jones Act—which it surely would have done had respondent thought the question remained open.

Respondent’s assertion (at 12-13) that Townsend

warrants reconsideration of this settled view is baseless. In Townsend, the Court neither provided “guidance” on this issue nor recognized it as an “open question.” Br. in Opp. 12-13. All the Court said was that it

would “not address the dissent’s argument” that punitive damages are unavailable in Jones Act negligence

actions. 557 U.S. at 424 n.12. Respondent points to

nothing in Townsend suggesting that the settled view

is questionable.

Moreover, it is not correct that the Court could reverse the decision below only if punitive damages are

unavailable under the Jones Act. As noted in the petition (Pet. 20 n.11), and as seven Fifth Circuit judges

have concluded, even under the Townsend framework

punitive damages would be unavailable, because there

is no evidence that such damages were available for unseaworthiness claims before the Jones Act. McBride,

768 F.3d at 394-399 (Clement, J., concurring); id. at 403

(Haynes, J., concurring); see infra III.C.

C. Respondent argues (at 14) that the Court

should deny the petition because “the jury may decide

not to award punitive damages.” That is just another

way of saying that this petition arises in an interlocutory posture, but that is not a good reason to deny the petition. Indeed, this Court heard Townsend in the same

interlocutory posture. 557 U.S. at 408; Pet. 27. The

Ninth Circuit’s decision squarely announces a rule of

law that will govern all future cases arising in that circuit. That ruling substantially increases the potential

liability faced by maritime owners and operators and

will amplify plaintiffs’ ability to pressure owners and

operators to settle meritless unseaworthiness claims.

There is no reason for this Court to defer reviewing the

Ninth Circuit’s decision until after those adverse consequences have come to pass.

III. THE DECISION BELOW IS INCORRECT

Respondent is fond of saying (at 3, 18-19) that petitioner adopts the same “far too broad” reading of Miles

that the Court rejected in Townsend. Respondent is

mistaken. Townsend rejected the argument that Miles

had defined the limits of recovery in all types of actions

under general maritime law. See 557 U.S. at 418-419.

Petitioner makes no such argument; rather, petitioner

has pointed to Miles’s emphasis on the close relationship between unseaworthiness actions under general

maritime law and negligence actions under the Jones

Act. Respondent’s failure to acknowledge that aspect

of Miles is a fundamental flaw in his position.

A. Just a few years after the Jones Act’s enactment, this Court explained that, unlike maintenance

and cure, Jones Act negligence is “an alternative of …

unseaworthiness.” Peterson, 278 U.S. at 138. Thus,

whether a claim invokes negligence or unseaworthiness

(or both), “there is but a single wrongful invasion.” Id.

The Court has reaffirmed that unseaworthiness and

Jones Act negligence are alternatives to each other but

not to maintenance and cure. See, e.g., McAllister v.

Magnolia Petroleum Co., 357 U.S. 221, 225 (1958).

Those relationships explain the differing outcomes in

Miles and Townsend, and also explain why this case

falls under Miles.

Because unseaworthiness and Jones Act negligence

are alternatives, they have been understood to have a

similar remedial scope. As the Court put it long ago,

unseaworthiness and Jones Act negligence embody a

single “right to recover compensatory damages” and

thus “entitle[ the plaintiff] to but one indemnity by way

of compensatory damages.” Peterson, 278 U.S. at 138

(emphasis added). Or, as the Court put it in Townsend,

unseaworthiness is “an alternative of the right to recover compensatory damages under the Jones Act,”

such that “the seaman may have … one of the … two.”

557 U.S. at 423-424 (punctuation altered).

The Court’s post-Jones Act “transform[ation of] the

warranty of seaworthiness into a strict liability obligation” added an important constitutional dimension to

the relationship between unseaworthiness and the

Jones Act. Miles, 498 U.S. at 25-26.2 Given that “revolution,” this Court explained, “[i]t would be inconsistent

with [the Court’s] place in the constitutional scheme to

“The revolution in the law [of unseaworthiness] began with

Mahnich v. Southern S.S. Co.,” 321 U.S. 96 (1944). Miles, 498 U.S.

at 25 (punctuation altered); see Moragne v. States Marine Lines,

Inc., 398 U.S. 375, 398 (1970).

sanction more expansive remedies in a judicially created cause of action in which liability is without fault”—

that is, unseaworthiness as redefined after the Jones

Act—than Congress had sanctioned for negligence under the Jones Act. Miles, 498 U.S. at 25, 32-33 (punctuation altered). Consequently, any “limit” on damages

that Congress placed on negligence under Jones Act

“forecloses more expansive remedies in a general maritime action founded on strict liability,” i.e., post-Jones

Act unseaworthiness. Id. at 31, 36.

As the Court later explained in Townsend, Miles’s

analysis does not govern the proper remedy for

maintenance and cure because “the maintenance and

cure right is in no sense inconsistent with, or an alternative of, the right to recover compensatory damages

under the Jones Act.” Townsend, 557 U.S. at 423-424

(punctuation altered). Rather, “the seaman may have

maintenance and cure and” a recovery under (either)

Jones Act negligence or unseaworthiness. Id. Consequently, the Court did not overstep its constitutional

role by defining the remedial scope of maintenance and

cure beyond the remedial scope of the Jones Act. See

id. at 420-424.

B. Respondent acknowledges (at 3) this Court’s

statement in Townsend that “[t]he reasoning of Miles

remains sound,” 557 U.S. at 420, but he then ignores

the central role that the relationship between the Jones

Act and unseaworthiness played in that reasoning. In

respondent’s view (at 17), the result in Miles rested

solely on the distinct historical evolution of the remedy

for wrongful death. That is a serious misreading of

Miles. Although the Court first decided whether to

recognize a claim for wrongful death based on unseaworthiness, 498 U.S. at 30-31, the Court’s ensuing analysis of the remedial scope of the claim—as the passages

just quoted show—turned on the relationship between

unseaworthiness and Jones Act negligence.

And the Court’s reasoning in Miles is directly relevant to punitive damages for unseaworthiness whether

the seaman was injured or killed. Either way, the unseaworthiness action is a post-Jones Act creation of the

courts rather than Congress, and the scope of recovery

should not depend on the happenstance of whether the

seaman dies from the injury—any more than it should

depend on which alternative cause of action the plaintiff

invokes. The Court in Miles did not fail to recognize

that its decision would apply to personal injury cases as

well as wrongful death cases; the Court made clear that

it would “not create, under our admiralty powers, a

remedy … that goes well beyond the limits of Congress’

ordered system of recovery for seamen’s injury and

death.” 498 U.S. at 36 (emphasis added).

C. Even if Congress had not spoken to the scope

of recovery and so the Townsend framework applied,

the decision below would be wrong. The dispositive

question in that analysis would be whether punitive

damages were historically available for unseaworthiness claims, at least before the Jones Act was enacted.

See 557 U.S. at 414-415. There is no evidence that they

were. As Judges Clement and Haynes recognized in

McBride, silence here speaks loudly, for the historical

record yields a total absence of cases recognizing punitive damages in unseaworthiness claims. 768 F.3d at

394-399 (Clement, J., concurring); id. at 403 (Haynes, J.,

concurring).

The cases respondent cites (at 17 n.6) do not show

that punitive damages were available for unseaworthiness before the Jones Act. The Rolph was decided after the Jones Act and gave no indication that it was ap-

plying a pre-Jones Act understanding of unseaworthiness that permitted punitive damages. 293 F. 269 (N.D.

Cal. 1923), aff’d, 299 F. 52 (9th Cir. 1924). In fact, it

consistently described the damages as “compensation.”

293 F. at 271-272; see Townsend, 557 U.S. at 431 (Alito,

J., dissenting); McBride, 768 F.3d at 395-397 (Clement,

J., concurring). The punitive-damages award in The

City of Carlisle concerned maintenance and cure. 39 F.

807, 816-817 (D. Or. 1889). And in The Troop, the only

damages awarded were based on maintenance and

cure—and were only compensatory. 118 F. 769, 770-773

(D. Wash. 1902), aff’d, 128 F. 856 (9th Cir. 1904); see

McBride, 768 F.3d at 395 n.16 (Clement, J., concurring).

Neither history nor logic therefore supports punitive

damages in unseaworthiness cases.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.