# Petition — Perini North River Associates v. Fusco > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1236%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 444 U.S. 1028 ## Text at ee Supreme Court, U. & iq FILED 29-759 i tert! 19/9 IN THE MISHARL RODAK, JR., CLERK Supreme Court of the United States Octoser Term, 1979 Prertnr Norro River Associates and Hartrorp AccIDENT AND INDEMNITY Co., Petitioners, —V Ronaup Fusco, Respondent, —and— BerNARD SULLIVAN, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT FiscHER BRoTHERS Wnuu1am F. Fiscuer, Jr. Attorneys for Petitioners Perini North River Associates and Hartford Accident and Indemnity Co. 90 John Street New York, New York 10038 (212) 267-6456 Of Counsel: Martin KRuUTZEL November 14, 1979 TABLE OF CONTENTS PAGE oe, EMS LSE EEO ees 2 GRE ot SE RA 2 Questions Presented .................-..-.-..--.-cse--eorscscscscseeeensenenenes 3 Statutory Provision Involved. ....................-c-cssc-cseeeeeeeeeees 3 I on cccentcenncnsesevnencveveneenesconsece 3 Reasons for Granting the Writ ...............-..-.-----:-1-ee 6 I. By Adopting a Geographical Interpretation of the Phrase “Maritime Employment” the Circuit Court of Appeals Has Ignored the Clear Lan- guage and Intent of 33 U.S.C. §902(3) -............--- 7 Il. The Second Circuit’s Geographical Interpreta- tion of “Maritime Employment” Conflicts With the Decisions of Five Other Circuit Courts Which Have Applied an Occupational Status I ool lesccsnnseenenssncenrecsescercensene 10 Ill. The Second Circuit’s Conclusion That All Work- ers Who Would Have Been Covered Under the 1927 Act Are Automatically Covered After the 1972 Amendments Addresses an Issue Explicitly Left Open by This Court and Directly Conflicts With the Decision of the Ninth Circuit ................ 15 IV. The Circuit Court’s Construction of 33 U.S.C. §902(3) Creates Confusion, Ambiguity and Un- certainty in the Basic Administration of the Act 17 EE 91 ii TABLE OF APPENDICES PAGE AppenpDIx A— Opinion of the United States Court of Appeals for the Second Circtiit .....0.....-......-.-cececcersencerssecoes Al Appenpix B— Decision and Order of the United States Court of Appeals for the Second Circuit Denying Rehear- ing & Rehearing En Bane ............--.-.------------e0000+ A24 ApPENDIx C— Decision and Order of the Benefits Review Board of the Department of Labor, together with the dissenting opinion of Member Miller .................. A28 Apprenpix D— Decision and Order of the Administrative Law Judge in the case of Ronald Fusco ....................-. A79 AppenpDIx K— Decision and Order of the Administrative Law Judge in the case of Bernard Sullivan ................ A88 AppenpDIx F— Statutory Provision Involved .....................:--:ces-ese00 A95 ili TABLE OF AUTHORITIES CASES: PAGE Abrahamsen v. Perini North River Associates, 9 BRBS 1041 (1979) ; appeal docketed, No. 79-4081 (2nd Cir., April 218, 1979) ......01-----.c.ccseseoresevensososenesenseseseonnenenssesneesee 6n Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137 CDT Dim. TTB) ances icscsenscnceenonstrnsesdnnssntonncsneanensenesaccssenens 12n Christiansen v. Perini North River Associates, No. 78- LHCA 450, BRBS —— (ALJ 1979), appeal docketed, No. 79-424 (BRB, June 29, 1979) ............ 7n Conti v. Norfolk and Western Railway Co., 566 F.2d 890 CR Ce TOT) acca cacscsnneceencnceneesvnscscnconsnasornocsnpsanpeasanatans 14 Dantes v. Western Foundation Corp., 10 BRBS 541 (1979), appeal docketed, No. 79-1358 (1st Cir., July BE, TOI occa vines acecsassiseteonnnntntectensnittnissesnccensnatenannnemantion 6n Domenico v. Crimmins-Vacar Joint Venture, 9 BRBS 668 (1979), appeal docketed, No. 79-4069 (2nd Cir., a TE FOI scr ntiassecsenesoveveseesenivtasnoninsoeeenitciwnitamnimttion 6n Dravo Corp. v. Mazin, 545 F.2d 374 (3rd Cir. 1976), cert, denied, 433 U.S. 908 (1977) .............----ccscssesesceesees 12n Ernst & Ernst v. Hochfelder, 425 U.S. 185, 199 n.19 CI cecasccdccctneesccinenseseatncencasemeennmeiionnatapemnmmasitgagneintarsts 9n Fusco v. Perini North River Assoc., 601 F.2d 659 (2nd TN acca ater cooatieencnnneteoninonccencininns 5, 8, 15, 18, 19 1.7.0. Corp. of Baltimore v. Benefits Review Board, 529 F.2d 1080 (4th Cir. 1975), modified en banc on other grounds, 542 F.2d 903 (4th Cir. 1976), vacated and remanded sub nom., Adkins v. 1.7.0. Corp. of Baltimore, 433 U.S. 904 (1977), rev’d on remand, BS f Bh yy ee ee 14n PAGE Maher Terminals Inc. v. Farrell, 548 F.2d 476 (3rd Cir. NTT) ccna nen nnaneennennneswnnsnnensnsereseenenecnemnenennneseemesnnsnensaseaae 12n Matson v. Perini North River Associates, 9 BRBS 967 (1979), appeal docketed, No. 79-4085 (2nd Cir., April SD | (|) nen nn En 6n NLRB v. Coca Cola Bottling Co., 350 U.S. 264, 268 (nh. ae MEE ilar nk On Northeast Marine Terminal Co. v. Caputo, 432 U.S. DAD (UGTT) sn cnennsennscneccses serene passim Pennsylvania R. R. Co. v. O’Rourke, 344 U.S. 334 (1953) 16 Robinson v. Perini North River Associates, No. 78- LHCA-257, —— BRBS —— (ALJ 1979), appeal docketed, No. 79-164 (BRB, February 21, 1979) ...... 6n Ronald Fusco v. Perini North River Associates, Case No. 76-LHCA-GRT qnnncnicccsomenaee 4 Sea-Land Service, Inc. v. Director, Office of Workers’ Compensation Programs, 540 F.2d 629 (3rd Cir. WOTG) acacia nnicsanesneorensiiosnrsicnsiesanieeneaen enna 12, 13 Sedmak v. Perini North River Assoc., BRB Nos. 77- 896, 77-579, 77-579A, 78-129, 78-407 (November 30, 1978), reported in 9 BRBS 378, 386 (1978) .............. 16n Stockman v. John T. Clark & Son of Boston, 539 F.2d 264 (1st Cir. 1976), cert. denied, 433 U.S. 908 (1977) 13 Bernard Sullivan v. Perini North River Associates, Case Neo. 77-LaOASD —ccccceneceneeeeee 4 Walter Tantzen, Inc. v. Shaughnessy, 601 F.2d 670 (2d Cir. 1979) 2... ae 17-18, 20 Thibodaux v. Atlantic Richfield Co., 580 F.2d 841 (5th Cir., 1978), cert. denied, 99 S.Ct. 2820 (1979) ............ 13 PAGE Weyerhauser Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1975), cert. denied, 429 U.S. 868 (1976) ........ 11, 16, 17, 20 MISCELLANEOUS: Larson, WorKMENS Compensation Law §2.20 (1971) 15n Comment, The Longshoremen’s and Harbor Workers’ Compensation Act: Coverage after the 1972 Amend- ments, 55 Tex. L. Rev. 99, 106, 107 (1976) ........ 8n, 9n, 17n Note, Coverage Under the LHWCA Amendments of 1972: Developing A Practical Uniformly Applicable Interpretation Of The Status Requirement, 18 Wm. NE ik, TNT, TI CRUE ED wiscatcinsncvsencrsvenesnntsinsacemonsevenions 19n S. Rep. No. 92-1125, 92d Cong., 2d Sess., 12-13 (1972)... 19n H.R. Rep. No. 92-1441, 92d Cong., 2d Sess., 10-11 (1972) 19n Note, Longshoremen, Longshoring Operations and Maritime Employment: A Dual Test of Status After Northeast Marine Terminal Co. v. Caputo, 64 Va. Se cae os sds acon eeraieniiaanaalinnaes 13n STATUTES: Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §901, et seq. (1970 ed. Supp. V 1975) ..passim 28 U.S.C. §1254(1) In THE Supreme Court of the United States Octoser Term, 1979 ; Seen Pertnr Nortu River Associates and Hartrorp ACCIDENT AND INDEMNITY Co., Petitioners, a ea Ronaup Fusco, Respondent, —and— BERNARD SULLIVAN, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Petitioners, Perini North River Associates and Hartford Accident and Indeinnity Company respectfully pray that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Second Cir- cuit entered on June 29, 1979. That decision reversed the Benefits Review Board judgment dated November 30, 1978, denying coverage under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §901 et seg. (1970 ed. Supp. V 1975) and dismissed the Petition of the Direc- tor, Office of Workers’ Compensation Programs for lack of statutory standing. 9 ~ Petitioners do not in this application seek a writ of certiorari to review the ruling of the court below dismissing the petition of the Director, Office of Workers’ Compensa- tion Programs for lack of statutory standing. Petitioners seek the issuance of a writ of certiorari only to review the ruling of the court below on the issue of coverage under the Act. Opinions Below The Opinion of the Court of Appeals (Appendix, herein- after “App.”, A), is dated June 29, 1979 and reported at 601 F.2d 659. A timely Petition for Rehearing and Rehear- ing En Bane was denied by Order dated August 21, 1979 (App. B). The Order is contained in the published opinion. The decision of the Benefits Review Board of the Depart- ment of Labor and dissenting opinion of Member Miller, dated November 30, 1978 and January 19, 1979, respectively (App. C) is reported at 9 BRBS 378.* The Administrative Law Judge decision in the case of Ronald Fusco was filed on December 28, 1977. (App. D). The Administrative Law Judge decision in the case of Bernard Sullivan was filed on August 26, 1977. (App. E). Jurisdiction The judgment of the Court of Appeals for the Second Circuit was entered on June 29, 1979. On August 21, 1979, the Second Circuit denied Petitioners’ timely Petition for Rehearing and Rehearing En Banc. The jurisdiction of this Court is invoked under 28 U.S.C. §1254(1). *The Benefits Review Board Service (BRBS) is the unofficial reporter of the Board’s decisions. Questions Presented (1) Whether the maritime employment requirement of §902(3) of the Longshoremen’s and Harbor Workers’ Com- pensation Act, as amended, 33 U.S.C. §901 et seq. requires an occupational test of status to determine whether con- struction workers are covered under the Act. (2) Whether all workers who could have been covered employees under the 1927 Longshoremen’s and Harbor Workers’ Compensation Act are automatically covered after the 1972 Amendments to the Act, solely by virtue of their prior coverage. Statutory Provision Involved Section 902(3) of the Longshoremen’s and Harbor Work- ers’ Compensation Act, as amended, 33 U.S.C. §902(3) (1970 ed. & Supp. V) is set forth as Appendix F to this Petition. Statement of the Case The case at bar involves two employees of Petitioners, Perini North River Associates, who were injured in sepa- rate accidents. Each accident occurred at the site of the North River Pollution Control Project. Both employees filed claims for benefits under the Longshoremen’s and Harbor Workers’ Compensation Act, as amended 86 Stat. 1251, 33 U.S.C. $901, et seq. (1970 ed., Supp. V). Perini controverted the claims, raising, inter alia, the issue of coverage. Separate Formal Hearings were held by Administrative Law Judges. In the case of Ronald Fusco, the Adminis- trative Law Judge held that the claim came within the 4 coverage provisions of the Act, and awarded benefits. Ronald Fusco v. Perini North River Associates, Case No. 76-LHCA-927 (A79). An Administrative Law Judge re- jected the claim of Bernard Sullivan, finding that his claim was not properly subject to the provisions of the Act. Ber- nard Sullivan yv. Perini North River Associates, Case No. 77-LHCA-85 (A88). On appeal, the Benefits Review Board consolidated the above claims with two other cases arising out of the North River Pollution Control Project, since they involved com- mon questions of law and fact. By majority decision dated November 30, 1978, the Board affirmed the Administrative Law Judge decision in Sullivan and reversed the decision in Fusco. In denying coverage under the Act, the Board specifically held that none of the claimants were engaged in maritime employment as required by §902(3) of Act (A41). The Benefits Review Board stated: [W]e conclude that a claimant’s employment must have a realistically significant relationship to maritime ac- tivities involving navigation and commerce over navi- gable waters in order for that employment to be deemed rnaritime employment under Section 2(3) [cita- tions omitted]. Since the claimants herein were en- gaged in iie construction of a sewage disposal plant, their employment did not have a realistically signifi- cant relationship to maritime activities involving navi- gation over navigable waters. (A41). Agreeing with the decision of the Administrative Law Judge in Sullivan, supra, the Board noted: Congress did not intend that the phrase “maritime employment” include a worker in the building or con- struction trades performing his usual function in the erection of any structure that happened to be situated - 5 upon navigable waters. To conclude otherwise wou'd be to include under the Act a whole new group or class of employees not originally intended to be covered. Furthermore, to provide coverage to workers under the Act based solely upon injury over navigable water without regard to their individual status would be tan- tamount to the establishment of dual standards in the determination of jurisdiction. One standard for workers injured over navigable water and yet another for workers injured shoreside. The result is simply untenable. Id. Fusco and Sullivan filed Petitions for Review of the Board’s Order in the United States Court of Appeals for the Second Cireuit. The Director, Office of Workers’ Com- pensation Programs also petitioned the Second Circuit for review of the Board’s decision in the four consolidated eases. In reversing the decision of the Benefits Review Board, the court rejected the occupational test of “maritime employment”. The court stated: “[WJe interpret the crit- ical phrase “person engaged in maritime employment” geographically so as to include any person whose principal duties are perfec med on navigable waters as that term was understood before 1972.” Fusco v. Perini North River Assoc., 601 F.2d 659, 669 (2nd Cir. 1979) (A21). Under this interpretation, the court held that Fusco and Sullivan were persons engaged in maritime employment and hence, cov- ered employees under §902(3) of the Act. The court also held that the Director, Office of Workers’ Compensation Programs lacked standing to petition for review under 33 U.S.C. §921(¢c) and dismissed his petition. 601 F.2d at 670 (A22-3). After the Second Circuit opinion was issued on June 29, 1979, Perini North River Associates and Hartford Accident 6 and Indemnity Company filed a timely petition to the Sec- ond Cireuit Court of Appeals, requesting rehearing and rehearing en bane. The Petition for Rehearing and Re- hearing En Bane was denied on August 21, 1979. 601 F.2d at 670 (A24-5). Reasons for Granting the Writ The instant petition squarely presents this Court with the question whether the “maritime employment” require- ment of §902(3) of the Longshoremen’s and Harbor Work- ers’ Compensation Act,’ as amended, 86 Stat. 1251, 33 U.S.C. §901 et seq. (1970 ed., Supp. V), requires an oceupa- tional test of status to determine whether construction workers are covered under the.Act. The decision below further raises the question whether all workers who would have been covered employees under the 1927 Act are auto- matically covered after the 1972 Amendments to the Act, solely by virtue of their prior coverage. The questions raise important, basic issues of statutory construction, the resolution of which are essential for the effective administration of the Act. The issues presented are troublesome and involve numerous cases now pending before the Circuit Courts, the Benefits Review Board and Administrative Law Judges.’ 1 Hereinafter referred to as the “Act.” ? See, e.g., Domenico v. Crimmins-Vacar Joint Venture, 9 BRBS 668 (1979), appeal docketed, No. 79-4069 (2nd Cir., March 21, 1979) ; Matson v. Perini North River Associates, 9 BRBS 967 1979), appeal docketed, No. 79-4085 (2nd Cir., April 20, 1979) ; Abrahamsen vy. Perini North River Associates, 9 BRBS 1041 (1979) ; appeal docketed, No. 79-4081 (2nd Cir.,-April 13, 1979) ; Dantes v. Western Foundation Corp., 10 BRBS 541 (1979), appeal docketed, No. 79-1358 (1st Cir., July 27, 1979); Robinson v. Perini North River Associates, No. 78-L.HCA-257, BRBS — (ALJ 1979), appeal docketed, No. 79-164 (BRB, February 7 Perini North River Associates, the employer herein, is engaged in the business of heavy construction. Ronald Fusco and Bernard Sullivan, employed by Perini, were construc- tion workers building a substructure for a sewage treat- ment facility extending out over the North River between West 133rd and West 148th Streets in New York City. I By Adopting a Geographical Interpretation of the Phrase “Maritime Employment” the Circuit Court of Appeals Has Ignored the Clear Language and Intent of 33 U.S.C. §902(3). §902(3) defines an employee within the meaning of the Act. The subsection states: The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, ship- builder, and ship-breaker, but such term does not in- clude a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. The court below held Fusco and Sullivan to be employees subject to the coverage of the Act on the ground that their injuries occurred upon “navigable waters” as that term was defined in §903(a) of the original Act, 44 Stat. 1426, 33 U.S.C. §903(a). The court concluded: Weighing all relevant factors, we interpret the criti- cal phrase “person engaged in maritime employment” geographically so as to include any person whose prin- 21, 1979) ; Christiansen v. Perini North River Associates, No. 78- LHCA 450, —— BRBS (ALJ 1979), appeal docketed, No. 79-424 (BRB, June 29, 1979). 8 cipal duties are performed on navigable waters as that term was understood before 1972. Since each claimant—that is, Fusco and Sullivan— performed his principal duties upon navigable waters as that term was defined in §3(a) of the original 1927 LHWCA, ..., and sustained on such waters a work- related injury, we hold that each was eligible for compensation as “a person engaged in maritime em- ployment” within the meaning of §2(3) of the LHWCA as amended in 1972, ... Fusco v. Perini North River Assoc., 601 F.2d 659, 669 (2nd Cir. 1979) (A22) (Cita- tions omitted). By adopting a geographical interpretation of “maritime employment” herein, the court below has predicated cov- erage solely on the basis of the situs of the injured worker. The court’s analysis in the case at bar effectively eliminates any inquiry into the occupation (status) of the claimant. The language employed in §902(3) of the Act undeniably describes employees occupationally. This court in North- east Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977), explained that the Act focuses primarily on occupation— longshoremen, harbor workers, ship repairmen, shipbuild- ers and ship-breakers. 432 U.S. at 273. Indeed, the court below concedes that “[t]he strongest argument for an occupational interpretation rests on a portion of the bare text of the statute.” 601 F.2d at 664 (A9).* The court further agreed: >See generally, Comment, The Longshoremen’s and Harbor Workers’ Compensation Act: Coverage after the 1972 Amend- ments, 55 Tex. L. Rev., 99, 106, 107 (1976). The phrase maritime employment has traditionally connoted a type of work done, not a place of work. 7d. at n. 61. Absent an unambiguous indication 9 But it is noteworthy that, with the possible exception of harborworkers, each of the persons specifically de- scribed is described occupationally not geographically. The noscitur a sociis and ejusdem generis canons of construction suggest that the critical phrase is used occupationally and as a description of a class of per- sons in terms of their occupation. Jd. If Congress had intended to establish a geographical test of “maritime employment”, it would simply have defined an “employee” as “any person engaged in any employment upon navigable waters as that term was understood prior to 1972”. In prepared questions and answers suomitted to the House of Representatives prior to enactment of the 1972 Amendments to the Act, Representative William Steiger made it clear that, while the covered situs was to be ex- panded, coverage would still be determined by an inquiry into the occupation of the employee. QUESTIONS AND ANSWERS Question: The present law covers employees work- ing on navigable waters. Do the amendments change the scope of coverage? Answer: Yes. The present law’s coverage is limited to employees working on navigable waters, including those working on dry docks. The amendments will ex- tend coverage to wharfs, terminals, marine railways, and other adjoining areas customarily used in build- by Congress that the phrase was to be given a situs meaning, it should be interpreted solely as a status term. When interpreting legislation, courts should use the ordinary meaning of words other than technical terms. NERB v. Coca Cola Bottling Co., 350 U.S. 264, 268 (1956); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 199 n. 19 (1976). 10 ing, repairing, loading, or unloading vessels. Also, the definition of “employee” is clarified by the amendments. The latter change was made so that a determination of coverage can be made on the basis of the definition of “employee.” Under the present law that definition is so vague that the determination must be made on the basis of whether the injured individual was work- ing for a covered “employer.” The expansion of cov- erage is intended to bring about a measure of compen- sation uniformity applicable to persons customarily considered to be working in the business. Thus, even if an employee does not happen to be over navigable waters at the time he is injured, he will be covered as long as he is working as a longshoreman or harbor- worker, whether engaged in repairing a vessel or un- loading it. 118 Cone. Rec. 36,385 (1972) (Emphasis added). II The Second Circuit’s Geographical Interpretation of “Maritime Employment” Conflicts With the Decisions of Five Other Circuit Courts Which Have Applied an Occupational Status Test Under §902(3). In rejecting the status test of maritime employment for the construction workers herein, the court below asserted: A petitio principti is built into the frequently-re- peated statement that before 1972 the right to recover under the LHWCA was based primarily on the situs of the injury and that the 1972 amendments changed the basis of recovery to make it dependent both on a status test and a situs test, 601 F.2d 659, 668 (A18). Yet, Mr. Justice Marshall writing for a unanimous Court in Northeast Marine Terminal Co. v. Capute, 432 U.S. 249 11 (1977), specifically stated that the 1972 Amendments to the Act created dual situs and status tests of coverage. This Court said: But with the definition of “navigable waters” expanded by the 1972 Amendments to include such a large geo- graphical area, it became necessary to describe affir- matively the class of workers Congress desired to com- pensate.... The 1972 Amendments thus changed what had been essentially only a “situs” test of eligibility for com- pensation to one looking to both the “situs” of the injury and the “status” of the injured. 432 U.S. at 264- 265. By its rejection of an occupational status test, the lower court drastically departs from the standards set forth by other Cireuit Courts.‘ Of the six circuits that have con- sidered the meaning of “maritime employment,” only the court below has rejected an occupational interpretation. The Ninth Circuit decision in Weyerhauser Co. v. Gil- more, 528 F. 2d 957 (9th Cir. 1975), cert. denied, 429 U.S. 868 (1976), stands in direct conflict with the decision below. The court in Weyerhauser reversed an award of compen- sation benefits to a “pondman” injured upon pre-1972 navigable waters, on the ground that his occupation failed to meet the “maritime employment” requirement of §902(3). The court held that for an injured employee to be eligible for federal com- pensation under LHCA, his own work and employ- ment, as distinguished from his employer’s diversified * While the circuits have differed on the precise wording of the test to be employed in ascertaining status under §902(3), see dis- eussion in Northeast Marine Terminal v. Caputo, 432 U.S. 249, n. 40 (1977), all have adopted occupationally-oriented tests. 12 operations, including maritime, must have a realis- tically significant relationship to “traditional maritime activity involving navigation and commerce on navi- gable waters,” with the further condition that the in- jury producing the disability occurred on navigable waters or adjoining areas as defined in $903. 528 F. 2d at 961.° The Court of Appeals for the Third Cireuit employed a similar analysis in Sea-Land Service, Inc. v. Director, Office of Workers Compensation Programs, 540 F. 2d 629 (3rd Cir. 1976).° The court held that “maritime employment” was occupational in nature.” It found that the inclusion of a “maritime employment” test supplied the necessary ele- ment of federal admiralty jurisdiction in contract. Admi- rality jurisdiction requires a relationship to maritime ac- tivity involving commerce or navigation, [T]he overall intention appears to be to afford federal coverage to all those employees engaged in handling ° The Ninth Circuit has consistently used an occupationally- oriented status test in determining “maritime employment” under §902(3). In Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137 (9th Cir. 1978), the court stated: “Situs and status must co- ineide before coverage will attach. Each test acts as a control upon the other so as to diminish the potential for undue expansion of coverage. 568 F.2d at 140. * Sea-Land Service involved a land-based truckdriver. Petition- ers submit, however, that the occupation or location of the claim- ant under consideration should not affect the test to be applied. 7In Dravo Corp. v. Mazin, 545 F.2d 374 (3rd Cir. 1976), cert. denied, 433 U.S. 908 (1977), Judge Van Dusen applied the Sea- Land rationale to a land-based worker in the shipbuilding indus- try. The Third Cireuit confirmed its use of an occupational test of status in Maher Terminals, Inc. v. Farrell, 548 F.2d 476 (3rd Cir. 1977) noting that “[{w]hat is controlling [for determination of coverage] is the nature of [the employee’s] primary duties.” 548 F.2d at 478. 7” 13 cargo after it has been delivered from another mode of transportation for the purpose of loading it aboard a vessel, and to all those employees engaged in dis- charging cargo from a vessel... The key [to coverage] is the functional relationship of the employee’s activity to maritime transportation, as distinguished from such land-based activities as trucking, railroading or ware- housing. 540 F.2d at 638. In Thibodaux v. Atlantic Richfield Co., 580 F.2d 841 (5th Cir. 1978), cert. denied, 99 S.Ct. 2820 (1979), the Court of Appeals for the Fifth Cireuit considered the meaning of “maritime employment” with respect to an oil worker fatally injured while being transported, upon pre-1972 navigable waters, to his job site. Applying the alternative tests of status isolated by this Court in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977), namely, oc- cupation and activity at the time of injury, the Fifth Cir- cuit affirmed the judgment of the district court dismissing decedent’s claim under the Act. 580 F. 2d at 844-45.' The First Cireuit, in Stockman v. John T. Clark & Son of Boston, 539 F. 2d 264 (1st Cir. 1976), cert. denied, 433 U.S. 908 (1977), rejected the proposition that any employ- ment-related injury occurring within the Acts’ territorial limits was automatically covered. 539 F. 2d at 275. The court clearly chose an occupational approach in construing the status requirement. Coverage was still to be geared only to persons who loaded and unloaded vessels (or else repaired or built 8 For a discussion of the alternate status tests of occupation and activity at the time of injury, see, Note, Longshoremen, Longshor- ing Operations, and Maritime Employment: A Dual Test of Status After Northeast Marine Terminal Co. v. Caputo, 64 Va. L. Rev. 99 (1978). 14 them) and who fit such traditional maritime designa- tions as longslroremen, harbor workers and the like. 539 F. 2d at 276. The Fourth Circuit has consistently held that the “mari- time employment” requirement of §902(3), as amended, has an occupational basis.’ In Conti v. Norfolk € Western Railway Co., 566 F. 2d 890 (4th Cir. 1977), the court, after considering the decision of this Court in Northeast Marine Terminal Co. v. Caputo, supra, concluded: To us the nub of the Court’s decision is that an em- ployee who is not engaged in an integral part of the unloading process will not fall within the coverage of the Act unless his occupation is of a traditional mari- time nature. 566 F. 2d at 895. Based on the foregoing analysis, Petitioners submit that the Second Cireuit’s geographical interpretation of the “maritime employment” requirement has created a direct and irreconcilable conflict with the occupational tests em- ployed by the First, Third, Fourth, Fifth and Ninth Cir- cuits. This conflict, leading to contradictory results in the application of a federal statute would, in and of itself, justify the granting of the writ requested herein. The questions raised in the instant petition involve the funda- mental scope and coverage of an Act designed to afford a uniform system of compensation to covered employees. The confusion and lack of certainty in the Act’s applica- tion, and the inevitable litigation occasioned by the deci- sion of the court below, defeats a central purpose behind the statute: namely ... “providing, in the most efficient, * See, 1.7.0. Corp. of Baltimore v. Benefits Review Board, 529 F.2d 1080 (4th Cir. 1975) modified en banc on other gounds, 542 F.2d 903 (4th Cir. 1976), vacated and remanded sub nom., Adkins v. 1.7.0. Corp. of Baltimore, 433 U.S. 904 (1977), rew’d on remand, 563 F.2d 646 (1977). 15 most dignified, and most certain form, financial and medi- eal benefits for the victim of work-connected injury . . .” 1 Larson, WorKMEN’s CoMPENSATION Law §2.20 (1952). Under these circumstances, petitioners submit that the time has come for this Court to resolve these issues. ill The Second Circuit’s Conclusion That All Workers Who Would Have Been Covered Under the 1927 Act Are Automatically Covered After the 1972 Amendments Addresses an Issue Explicitly Left Open by This Court and Directly Conflicts With the Decision of the Ninth Circuit. In Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977) this Court noted: This case also does not involve the question whether Congress excluded people who would have been cov- ered before the amendments; that is, workers who are injured on navigable waters as previously defined. See Weyerhaeuser Co. v. Gilmore, 528 F. 2d 957 (CA 9) cert. denied, U.S. (1976). 432 U.S. at n.25. When the court below considered this question, it simply stated in conclusory terms that: Congress took it for granted that injuries occurring upon water were covered and would remain covered. There was no indication that Congress considered with- drawing existing coverage or eligibility. 601 F.2d at 666 (A14). (Emphasis in original). As a consequence of its geographical interpretation, the Second Circuit resolved that a worker, who would have 16 been covered prior to the 1972 amendments by virtue of his presence upon 1927 Act “navigable waters”, would be covered after the amendment. 601 F. 2d at 669. This conclusion directly conflicts with the decision of the Ninth Circuit in Weyerhauser Co. v. Gilmore, 528 F. 2d 957 (9th Cir. 1975), cert. denied, 429, 429 U.S. 868 (1976). The claimant in Weyerhauser was injured while sorting logs on a saltwater bay of the Pacific Ocean. He would have been covered under the 1927 Act: he was injured upon navigable waters as defined in §903(a) of the original Act, and his employer had other employees engaged in mari- time employment, 528 F. 2d at 958. See: Pennsylvania R. R. Co. v. O’Rourke, 344 U.S. 334 (1953). The Ninth Circuit, however, termed the Benefits Review Board’s assertion that “anyone covered under the Act prior to the 1972 amendment must indeed be permitted to come within its protection subsequent to the amendments” (528 F. 2d at 958) an “exercise in judicial legerdemain.” 528 F.2d at 961.*° The court found that the Board’s conclusion stemmed from a misinterpretation of the frequently stated “expan- sion” of coverage provisions of the 1972 amendments. The court stated: [t]his expansion refers only to the broadened defi .- tion of “navigable waters”, . . . which now include. “adjoining” piers and other areas prescribed in Sec. 903(a). 528 F. 2d at 960.2? *° Adopting a modified version of the Weyerhaeuser test, the Benefits Review Board subsequently held that “maritime employ- ment” requires “a realistically significant relationship to maritime activity involving navigation and commerce over navigable waters ...” Sedmak v. Perini North River Assoc., BRB Nos. 77-896, 77-579, 77-579A, 78-129, 78-407 (November 30, 1978), reported in 9 BRBS 378, 386 (1978) (A41). 11 Professor Larson in his treatise explains that “[t]he addition of the ‘status’ test is not an expansion but a contrac.ion. This is necessarily so because, before 1972, there was no requirement 17 Under Weyerhauser, only those employees whose work activities bear a “realistically significant relationship to traditiona. maritime activity involving navigaton or com- merce on navigable waters” are covered under the Act. 528 F. 2d at 961. To dispose of this status requirement, as did the Second Circuit in the decision below, nullifies “the clear and unambiguous congressional language of maritime employment” and renders it to read “ ‘any em- ployment’.” 528 F. 2d at 961. IV The Circuit Court’s Construction of 33 U.S.C. §902 (3) Creates Confusion, Ambiguity and Uncertainty in the Basic Administration of the Act. The decision below does not merely represent a distine- tion in theory. Nor are its effects confined solely to the instant case and the multitude of claims arising out of the North River Pollution Control Project. There will be in- dustry-wide ramifications. In another matter decided the same day as the case at bar, the Second Circuit explained its interpretation herein, defining “maritime employment” for purposes of §902(3) and (4) as employment upon “actual” navigable waters,” distinguishing these waters from the expanded “statutory” navigable waters contained in §903(a). Walter Tantzen, Inc. v. Shaughnessy, 601 F. 2d 670 (2d Cir. 1979). The court noted: whatsoever that this employee be in maritime employment .. .” 4 LARSON, WORKMEN’S COMPENSATION Law §89.27 at p. 16-181 (1952). (Emphasis in original). 12 By “actual” navigable waters, the court meant only those areas defined as “navigable waters” under the 1927 Act, 44 Stat. 1426, 33 U.S.C. §903(a). 18 When §2(3) defines “employee” as “any person en- gaged in maritime employment, including any long- shoreman,” §2(3) uses the word “including” inexactly ; as there used “including” means “as well as.” §2(3) does not say, what obviously is not the case, that every longshoreman is engaged in employment upon actual water. Hence the mere fact that employment in long- shoring operations is a type of employment within §2(3) does not make it a type of maritime employment” as those two words are used in §2(3). Nor is employment in longshoring operations on land “maritime employment” as that term is used in §2(4). 601 F. 2d at 673. (Emphasis in original). In Fusco this interpretation extends coverage to con- struction workers fortuitously located upon actual water. Yet in Tantzen, the same interpretation denies benefits to a claimant, clearly a longshoreman, who happens to work entirely on a pier or adjoining land area where the em- ployer has no other employees working upon actual navi- gable waters. As was recognized by this Court in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977), the shifting of longshoring operations onto land was a primary concern of Congress when it enacted the 1972 amendments to the Act. 432 U.S. at 269-271. Yet the decision below and its explanation in Tantzen lead inescapably to the conclusion that many of the workers enumerated in §902(3) will not be covered under the Act even though they are injured upon a situs specified in §903(a). This analysis represents a clear subversion of the con- gressional intent behind the amendment, and is totally un- supported by reference to either the history of the Act or the language in the statute itself. Most importantly, as 19 longshoring operations move increasingly onto land, the Second Circuit analysis will result in loss of coverage for . longshoremen—the single class of workers most clearly meant to receive benefits under the Act. This Court in Caputo, supra, stated that a dominant theme behind the amendments was to eliminate the phe- nomenon of shifting and fortuitous coverage due to a situs- based test. 482 U.S. 249, 272%° However, by again making coverage dependent on situs alone, the Second Circuit defeats this Congressional pur- pose. Indeed, the court below concedes that its decision will lead to shifting coverage of construction workers but suggests that “if uniformity is desirable, that is a question for Congress, not for us”. 601 F. 2d at 669. By employing an occupational status test, the five other circuits that have considered the question have eliminated the problem of shifting coverage.'* Petitioners submit that it is only the misinterpretation of an otherwise clear statute by the Sec- ond Circuit that will cause the conceded lack of uniformity in application, a result neither envisaged by the Congress, nor sanctioned by any other judicial construction. The decision below states that “[w]le ought not to as- sume that just because Congress moved into a two-pronged situation with respect to injuries over land, it also moved 13 See, S. Rep. No. 92-1125, 92d Cong., 2d Sess., 12-13 (1972) ; H.R. Rep. No. 92-1441, 92d Cong., 2d Sess., 10-11 (1972). 1* Whenever a geographical line is drawn, the danger of shift- ing coverage increases. If the object is to extend coverage to an admittedly mobile class of workers, logic demands that coverage be defined in terms of the class, rather than in terms of a fixed location. For further analysis of the need for an occupational approach in defining “maritime employment,” see, Note, Coverage Under the LHWCA Amendment of 1972: Developing A Practical Uniformly Applicable Interpretation Of The Status Requirement, 18 Wn. & Mary L. Rev. 555 (1977). 20 into a two-pronged situation with respect to injuries over water, ...” 601 F. 2d at 668 (Ai8). It is submitted that the Act as amended, and the accompanying legislative history, as well as the decisions of the United States Su- preme Court and the lower federal courts will be searched in vain for any authority which would permit dissimilar tests of status to be applied to workers under §902(3). Such an interpretation is unnecessarily confusing and will cer- tainly give rise to needless litigation. The coverage provisions of §902 are basic to the proper application and administration of the Act. Indeed, such a drastic divergence of judicial opinion, concerning the initial determination of who is eligible for benefits, represented by the decision below, ensures the destruction of the uniform compensation system Congress sought to implement in 1972. The Second Circuit takes liberties not warranted by the clear language of the statute, extending coverage to em- ployees whose work bears no relationship whatsoever to those occupations for which Congress clearly wished to provide benefits. The explanation of the Second Circuit’s analysis in Walter Tantzen, Inc. v. Shaughnessy, 601 F. 2d 670 (2nd Cir. 1979), denies coverage to workers explicitly named in the text of the Act. This “exercise in judicial legerdemain”, as the Ninth Circuit termed it in Weyer- hauser Co. v. Gilmore, 528 F.2d 957, 961 (9th Cir. 1975), cert. denied, 429 U.S. 868 (1976), cannot be justified. 21 CONCLUSION For these reasons, a writ of certiorari should issue to review the judgment and opinion of the Second Circuit. Respectfully submitted, FiscHER BroTHERS WriuiaMm F. Fiscuer, Jr. Attorneys for Petitioners Perini North River Associates and Hartford Accident and Indemnity Co. 90 John Street New York, New York 10038 (212) 267-6456 Of Counsel: Martin Krvutzent November 14, 1979 Appendices APPENDIX A Opinion of the United States Court fo Appeals for the Second Circuit UNITED STATES COURT OF APPEALS For tHe Seconp Circuit r - Nos. 869, 870, 871—August Term, 1978. (Argued April 30, 1979 Decided June 29, 1979.) Docket Nos. 79-4006, -4015, -4016 ate a Ronaup Fusco, Petittoner, —and— BERNARD SULLIVAN, Petitioner, ——niinn Dmecror, Orrice oF Workers’ COMPENSATION PROGRAMS, Unitrep States DepaRTMENT OF LABOR, Petitioner, —_Y— Pertnt Nortu River Associates, —and— Hartrorp Accipent & Inpemnity Company, Respondents. 2 Before: Gurren and MEskKILL, Circuit Judges, and Wyzansk1, Senior District Judge.* . Of the District of Massachusetts, sitting by designation. a. a Al A2 Appendix A Petitions for review of an order of the Benefits Review Board, United States Department of Labor, denying com- pensation to petitioners Fusco and Sullivan. Set aside on the ground that a construction worker whose principal duties are performed on navigable waters as that term was defined in §3(a) of the original 1927 Longshoremen and Harbor Workers’ Act, 44 Stat. 1426, 33 U.S.C. §903(a) and who sustains on such waters a work-related injury is, within the meaning of §2(3) of the Longshoremen and Harbor Workers’ Compensation Act, as amended in 1972, 86 Stat. 1251, 33 U.S.C. §902(3) (1970 ed., Supp. V), “a person engaged in maritime employment.” a. 7 Bernarp S. Epstein, Epstein & Epstein, New York, NY, for petitioner Ronald Fusco. Joseph Kuorz, New York, NY, for petitioner Bernard Sullivan. Cartin Ann Cxiauss, Laurie M, SrreeTer, Mark C. Waters, U.S. Dept. of Labor, Washing- ton, D.C., for petitioner Director, Office of Workers’ Compensation Programs. WuuaMm F. Fiscner, Jr. Martin Krvrzet, Fischer Brothers, New York, NY, for re- spondents Perini North River Associates and Hartford Accident and Indemnity Com- pany. ae WrzanskI, Senior District Judge: The main question presented is whether a construction worker whose principal duties are performed on navigable waters, as that term was defined in §3(a) of the original A3 Appendix A Longshoremen and Harbor Workers’ Act, [LHWCA] 44 Stat. 1426, 33 U.S.C. §903(a), and who sustains on such waters a work-related injury is, within the meaning of §2(3) of LHWCA, as amended in 1972, 86 Stat. 1251, 33 U.S.C. §902(3) (1970 ed., Supp. V) a “person engaged in maritime employment” so as to be covered by LHWCA.’ Fusco and Sullivan, having sustained work-related in- juries in separate accidents in the course of their employ- ment by Perini during the construction of a sewage dis- posal plant, called the North River Pollution Control Pro}- ect, filed claims for compensation under the Longshoremen’s and Harbor Workers Compensation Act [LHWCA], as amended in 1972, 86 Stat, 1251, 33 U.S.C. §901, (1970 ed., Supp. V) et seq. Lesser, A.L.J. heard Fusco’s case; Feldman, A.L.J. heard Sullivan’s case. Each ALJ made findings as to the Perini project. These findings differ slightly from one another and from parallel findings by Cappo, A.L.J. in a companion case, which the BRB found most accurate. For our pur- poses the following two paragraphs serve as a fair sum- mary of the findings as to Perini. Perini is engaged in the business of heavy construction. The City of New York awarded it a contract to construct a substructure for a sewage disposal plant called the North River Pollution Control Project, to be located on the North River between 133rd and 148th Streets and to extend from 1 The relevant statutory section, defining “employee,” with italics indi- cating the material added to the original statute by 1972 amendments, 86 Stat. 1251, 33 U.S.C. §902(3) (1970 ed., Supp. V) provides: “The term ‘employee’ means any person engaged in maritime employ- ment, including any longshoreman or other person engaged in long- shoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.” A4 Appendix A the shoreline out over the water approximately 700 feet to the pierhead. Perini’s contract required it to place 2,300 hollow cir- cular pipes, called caissons, in navigable waters down to imbedded rock, to fill the caissons with concrete, to connect them together at proper elevations above the water with concrete beams, and to place precast concrete slabs on top of the beams. Lesser, A.L.J. found that Fusco “worked on floating stages assisting the so-called ‘dock building’ in the construc- tion of the substructure, performing such tasks as fetching materials from barges or from the shore, assisting in the driving of caissons into the riverbed, pouring concrete into the caissons, fabricating wood forms for the pouring of concrete beams across the caissons and helping to construct platforms across those beams,” and that “he fell while descending a ladder” and “in falling struck his head against a concrete form.” The ALJ added that “one witness [whom the ALJ seems to have credited] did observe the Claimant climbing down a ladder from one of the concrete forms down to a raft below; the witness saw the ladder twist and the Claimant suddenly disappear from sight.” The ALJ stated as a conclusion of law that “at the time of his injury the Claimant was employed as a construction laborer engaged in the construction of a substructure for a sewage disposal plant over navigable waters, which employment was within the coverage of the Act.” The ALJ entered an order directing respondents to compensate Fusco. Respon- dents appealed to the Benefits Review Board [BRB]. Feldman, A.L.J. found that Sullivan “was directly in- volved” in “the building and filling of caissons (large cylinders sunk upright into the water) into which steel re- enforcing rods were inserted ... and re-enforcing horizontal beams hanging over the water from caisson to caisson. ... A5 Appendix A While working on beams at high tide, Claimant... would frequently be standing in water. ... Two or three times a week Claimant ... went aboard barges to unload steel rods or to prepare such rods to be moved by cranes that were aboard some of the barges.... At the time of the accident, Claimant was standing about 12 inches above the water.” The ALJ’s conclusions of law were “that the situs require- ments for coverage under the Act have been met, Claimant having been injured while at work upon navigable waters,” and that “the Employer meets the requirements of Section 2(4) of the Act in that at least some of its employees are engaged in maritime employment,” but that “Ciaimant is not a longshoreman, ship repairman, shipbuilder, or ship- breaker. Nor could he be classified as a harbor worker,” and that “nothing in Claimant’s occupation ... entails mari- time employment.” The ALJ entered an order rejecting the claim. Sullivan appealed to the BRB. The BRB heard in one proceeding Fusco, Sullivan, and two other cases, and permitted the Director, Office of Work- ers’ Compensation Programs, United States Department of Labor, to become a party in interest. By its November 30, 1978 order, the BRB reversed Lesser, A.L.J. in Fusco and affirmed Feldman, A.L.J. in Sullivan. Writing for him- self and Member Kalaris, over the dissent of Member Miller, Chairman Smith of the BRB,’ after noting that “Claimants were found in each case to have satisfied the Section 3(a) situs test ... [and that] [t]he findings of situs are not on appeal,” held that “Since the claimants herein were engaged in the construction of a sewage dis- posal plant, their employment did not have a realistically significant relationship to maritime activities involving navigation and commerce over navigable waters. It follows 2 The BRB opinions are reported at 9 BRBS 378. A6 Appendix A that the claimants were not engaged in maritime employ- ment pursuant to Section 2(3) and thus are not covered under the act.” Fusco, Sullivan, and the Director, relying upon 33 U.S.C. §921(c), petitioned this Court to set aside the BRB Novem- ber 30, 1978 order. The petitions before us raise only one question, the so- called status issue—whether the claimant at the time of his injury was a “person engaged in maritime employment,” as that phrase is used in §2(3) of the LHWCA, 86 Stat. 1251, 33 U.S.C. §902(3) (1970 ed., Supp. V). Respondents contend that we must also consider the so-called situs is- sue—whether the injuries occurred on navigable waters. In Sullivan, where respondents succeeded before both the ALJ and the BRB, the respondents are entitled to contend that if they do not prevail before us on the status issue they are entitled to prevail on the situs issue. But in Fusco we need not consider respondents’ contention because when respondents appealed from the ALJ to the BRB they aban- doned the situs issue by their failure to assign it as error. (App. 31, note 2). Yet one of the arguments addressed to us by petitioners with respect to the status issue—to wit, that under the 1927 Act before it was amended in 1972 peti- tioners would have been entitled to compensation for the injuries of which they complain—makes it appropriate for us, before we tackle the status issue, to scrutinize the ad- ministrative findings not merely in Sullivan but also in Fusco in order to determine whether the injuries occurred upon navigable waters as that term was used in the original 1927 LHWCA and as it is now used under the 1972 amend- ments. In our scrutiny we need to bear in mind that under the 1927 LHWCA, before its amendment, there was coverage only for “an injury occurring upon the navigable waters of A7 Appendix A the United States.” 44 Stat. 1426, 33 U.S.C, §903(a). Since the term “‘navigable waters” was then read literally and did not include extensions of land, there was no coverage of an injury occurring on a structure permanently affixed to land. Nacirema Operating Co. v. Johnson, 396 U.S. 212, 214-215 (1969). It was only after the 1972 amendments that the term navigable waters of the United States was defined to include “any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area cus- tomarily used by an employer in loading, unloading, repair- ing, or building a vessel.” 86 Stat. 1251, 33 U.S.C. §903(a) (1976 ed., Supp. V). In Fusco the injury occurred as the claimant descended a swinging ladder from a concrete form to a raft, and the ladder twisted and threw him against the form, causing him to fall, perhaps but not certainly, into the water. Respon- dents contend that this was an injury occurring on a struc- ture permanently affixed to land, and so was not within the coverage of the original 1927 Act. We conclude that respondents are mistaken. Fusco was injured over navi- gable waters while on a rope ladder temporarily affixed to a structure which may or may not have been permanently affixed to land. He was hit by the structure not while on it, but while on the ladder. Under both the 1927 LHWCA and the 1972 amendments Fusco’s injury occurred “upon navigable waters.” In Sullivan the injury occurred while the claimant “was installing beams about 150 feet from the shore and was standing about 12 inches above the water.” The ALJ does not tell us upon what he was standing. But from the ALJ’s findings and the BRB’s opinion we know that the part of Perini’s construction work in which Sullivan was involved called for connecting embedded or sunken caissons at proper elevations above the water with concrete beams. A8 Appendix A We therefore cannot suppose that at the time of the acci- dent, while installing beams hanging over water, Sullivan was standing on a structure permanently affixed to land. We conclude that Sullivan’s injury occurred “upon navl- gable waters” as that term was used in 1927 as well as in 1972. The foregoing analysis disposes of respondents’ conten- tion that, regardless of how we decide the status issue, they are entitled on the basis of the situs issue to have the November 30, 1978 BRB order affirmed. We now turn to the main question presented in each of the two cases before us—whether at the time of his injury the claimant was a “person engaged in maritime employ- ment” as that phrase is used in §2(3) of the amended LHWCA 86 Stat. 1251, 33 U.S.C. §902(3) (1970 ed., Supp. V). The phrase “a person engaged in maritime employment” (hereinafter sometimes called “the critical phrase”) is not defined in the 1972 Amendments nor in the 1927 LHWCA which was being amended. Etymologically, the critical phrase could have an occupa- tional, or a geographical connotation, or both: that is, it could refer to a person engaged in an occupation character- istically associated with the sea or other navigable waters, and/or to a person engaged in work upon the sea or other navigable waters.° The BRB in the instant case gave to the critical phrase an occupational interpretation,* modeled on, but somewhat 3 See 1A Benedict on Admiralty, (7th ed. 1973) §17: “On the basis that there can be nothing more maritime than the sea, every employ- ment on the sea or other navigable waters should be considered as maritime employment.” 4 The BRB concluded “that a claimant’s employment must have a realistically significant relationship to maritime activities involving A9 Appendix A different from, the interpretation given by the Ninth Cir- cuit’ in Weyerhauser Company v. Gilmore, 528 F.2d 957, 961 (9th Cir.), cert. denied, 429 U.S. 868 (1976). Petitioners contend that the appropriate interpretation is geographical. Respondents support an occupational interpretation. The strongest argument for an occupational interpreta- tion rests on a portion of the bare text of the statute. The critical phrase is immediately followed by the words “in- cluding any longshoreman or other person engaged in long- shoring operations, and any harborworker, including a ship repairman, shipbuilder and shipbreaker.” The word “in cluding” does not necessarily determine that the critical phrase refers to a class of which the following specifically described persons are members.* But it is noteworthy that, with the possible exception of harborworkers, each of the persons specifically described is described occupationally not geographically. The noscitur a socus and ejusdem generis canons of construction suggest that the critical phrase is used occupationally and as a description of a class of persons in terms of their occupation. Yet that argument fails to give any weight to another argument also based on the bare text of the statute. The navigation and commerce over navigable waters in order for that employment to be deemed maritime employment under Section 2(3).” 5 Weyerhauser Company v. Gilmore, supra, held: {[T]hat for an injured employee to be eligible for federal compen- sation under LHCA, his own work and employment, as distinguished from his employer’s diversified operations, including maritime, must have a realistically significant relationship to ‘traditional maritime activity involving navigation and commerce on navigable waters,’ with the further condition that the injury producing the disability occurred on navigable waters or adjoining areas as defined in $903. 6 Thus, for example, the words “human beings” are descriptive of a class when used in the phrase “human beings, including men and women,” but are not descriptive of a class when used in the phrase “human beings, including cats and dogs.” A10 Appendiz A critical phrase is so nearly identical with the phrase “em- ployees .. . employed in maritime employment” which ap- pears in §2(4) (quoted in footnote 7) of the very statute which was being amended that it seems to have been adapted, if not adopted, from §2(4). This invokes a dif- ferent rule of statutory construction: when a legislature borrows an already judicially interpreted phrase from an old statute to use it in a new statute, it is presumed that the legislature intends to adopt not merely the old phrase but the judicial construction of that phrase. Barnet v. Harmel, 287 U.S. 103, 108 (1932). In view of the ambiguity of the text of the 1972 Amend- ments, we find it necessary for an understanding of the critical phrase to turn to the legislative and judicial history of the original 1927 LH WCA as well as the legislative his- tory of the 1972 amendments, especially since, as we have recently been reminded, the LHWCA “must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results.” Voris v. Eikel, 346 U.S. 328, 333 (1953) quoted in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 268 (1977). Congress enacted the original 1927 LHWCA in response to Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917), Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920), and Washington v. W. C. Dawson & Co., 264 U.S. 219 (1924), which held that the States were without power, and Con- gress could not delegate to them power, to provide com- pensation for longshoremen injured on navigable waters. Mr. Justice Brennan, writing for the majority of the Su- preme Court, in Calbeck v. Travelers Insurance Co., 370 U.S. 114 (1962) read the legislative history as showing that it was the Congressional purpose to enact “a statute which would provide federal compensation for all injuries All Appendix A to employees on navigable waters; in every case, that is, where Jensen might have seemed to preclude state com- pensation.” (Ibid., pp. 120-121). He rejected the narrower reading by Mr. Justice Stewart, who regarded the Con- gressional purpose as merely “to provide a compensation remedy for those who could not obtain such relief under state law.” Ibid., p. 134. In carrying out its purpose, Congress proceeded by adopting special definitions of injury, employee, and em- ployer’ and defining coverage.’ The consequence of those definitions was that so long as a work-related injury oc- curred on navigable waters and the injured worker was not a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net, the worker would be eligible for federal compensation provided that his em- ployer had at least one employee (who might be the claim- ant himself) “employed in maritime employment in whole 7 “Injury, ‘employee,’ and ‘employer’ were defined in 33 U.S.C. §$§902(2), (3), (4): “(2) The term ‘injury’ means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury. . . (3) The term ‘employee’ does not include a master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. (4) The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock).” 8 “Title 33 U.S.C. $903 defined the coverage provided by the Act: “(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law. ...” A12 Appendix A or in part.”® The 1927 statute gave no guidance as to the meaning of the phrase just quoted, which appeared in the definition of “employer.” For decades the Supreme Court and inferior federal courts struggled to interpret the eligibility provisions of the 1927 LHWCA. In Parker v. Motor Boat Sales, Inc., 314 U.S. 247 (1941) the Supreme Court upheld a finding of a Deputy Commissioner that a janitor whose only mari- time activity was one trip as a lookout on a boat was “en- gaged in maritime employment” so as to make his employer subject to the LHWCA. In Davis v. Department of Labor and Industries, 317 U.S. 249 (1942) all of the members of the Supreme Court agreed that federal coverage under LHWCA would have been available for a structural steel construction worker who worked over navigable waters, but whose duties were exclusively related to construction of a bridge. In Pennsylvania Railroad Co. v. O'Rourke, 344 U.S. 334 (1953) it was held that a railroad worker in- jured on navigable waters was covered by the LHWCA. Finally, Calbeck v. Travelers Insurance Company, supra, in 1962 conclusively settled that any employee, no matter what his calling, who was injured while at work on navi- gable waters was [in maritime employment] covered by the LHWCA. We doubt that Supreme Court ever said in haec verba that any person em} loyed upon navigable waters is, for purposes of §2(4) of LHWCA, 33 U.S.C. $902(4), “em- ployed in maritime employment ;” but that is the only prin- cipled explanation of many of the cited Supreme Court cases, especially Davis v. Department of Labor and Indus- 9 See Marshall, J. in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 264 (1977). Al3 Appendix A tries, and of many lower federal court cases, including eases involving construction workers.” We now come to the legislative history of the 1972 Amendments. As is shown by the complete text of the 1972 Amend- ments, 86 Stat. 1251-1265, and by the virtually identical Senate and House reports—S.Rep.No. 92-1125, 92 Cong. 2 Sess. (1972) and H.R.Rep.No. 92-1441 (of which relevant portions are printed in the margin),”* the main concerns 10 Peter v. Arrien, 325 F.Supp. 1361, 1365 (E.D. Pa. 1971) aff’d, 463 F.2d 252 (3rd Cir. 1972); Hardaway Cont: acting Co. v. O'Keeffe, 414 F.2d 657 (5th Cir. 1968); DeBardeleben Coal Corp. v. Henderson, 142 F.2d 481, 482, note 3 (5th Cir. 1944); Travelers Ins. Co. v. Branham, 136 F.2d 873, 875 (4th Cir. 1943). 1l [I]n the section describing the shoreward extension, the Committee Reports state: “The Committee believes that the compensation payable to a long- shoreman or a ship repairman or builder should not depend on the fortuitous circumstance of whether the injury occurred on land or over water. Accordingly, the bill would amend the Act to provide coverage of longshoremen, harbor workers, ship repairmen, ship builders, shipbreakers, and other employees engaged in maritime employment (excluding masters and members of the crew of a ves- sel) if the injury occurred either upon the navigable waters of the United States or any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other area adjoining such navigable waters customarily used by an employer in loading, unloading, re- pairing, or building a vessel.” S.Rep.13; H.R.Rep.10. { Emphasis added]. “The intent of the Committee is to permit a uniform compensation system to apply to employees who would otherwise be covered by this Act for part of their activity. To take a typical example, cargo, whether in break bulk or containerized form, is typically unloaded from the ship and immediately transported to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters. The employees who perform this work would be covered under the bill for injuries sustained by them over the navigable waters or on the adjoining land area. The Committee does not intend to cover em- ployees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity. Thus employees whose re- sponsibility is only to pick up stored cargo for further trans-shipment would not be covered, nor would purely clerical employees whose jobs Al4 Appendix A of Congress were unrelated to “coverage.” See Northeast Marine Terminal Co. v. Caputo, supra, pp. 261-262. Indeed, that topic occupied only half a page of a 15-page set of amendments. When Congress did deal with coverage, it did not under- take a general study of the subject. Congress did not ad- dress itself to the problems raised in Parker, Davis, Penn- sylvania Rauroad, Calbeck, or cognate lower federal court cases, nor did Congress comment upon the Calbeck doctrine that it was the Congressional purpose to give a federal compensation remedy to all workers, except crew members, injured seaward or the Jensen line. Congress took it for granted that injuries occurring upon water were covered and would remain covered. There was no indication that Congress considered withdrawing existing coverage or eli- gibility. What concerned Congress was injuries on land. The original Act had not provided compensation to any- one on land. Nacirema Operating Co. v. Johnson, supra. do not require them to participate in the loading or unloading of cargo. However, checkers, for example, who are directly involved in the loading or unloading functions are covered by the new amend- ment. Likewise the Committee has no intention of extending cover- age under the Act to individuals who are not employed by a person who is an employer, i.e., a person at least some of whose employees are engaged, in whole or in part in some form of maritime employ- ment. Thus, an individual employed by a person none of whose employees work, in whole or in part, on navigable waters, is not covered even if injured on a pier adjoining navigable waters.” S. Rep.13; H.R.Rep.10-11. [Emphasis added]. “Section 2(a) amends section 2(3) of the Act to define an ‘employee’ as any person engaged in maritime employment. The definition specifically includes any longshoreman or other person engaged in longshoreing [sic] operations, and any harborworker, including a ship repairman, shipbuilder and shipbreaker. It does not exclude other employees traditionally covered but retains that part of 2(3) which excludes from the definition of ‘employee’ masters, crew mem- bers or persons engaged by the master to unload, load or repair vessels of less than eighteen tons net.” S.Rep.16. See also, H.R. Rep.14. [Emphasis added]. Al5 Appendix A This often seemed inequitable, especially in the case of longshoremen who moved back and forth from vessel to dock? or who worked stripping and stuffing containers at terminals, as has become common as a result of modern technology.** So Congress decided to extend the coverage shoreward for the benefit of “longshoremen, harbor work- ers, ship repairmen, shipbuilders, shipbreakers, and other employees engaged in maritime employment,” but Congress did not want to include persons “just because they are in- jured in an area adjoining navigable waters.” ** To give longshoremen, harborworkers, and any person engaged in maritime employment the benefit of coverage while they were on areas adjoining navigable waters, Con- gress broadened the definition of “navigable waters” of the United States to include “any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other ad- joining area customarily used by an employer in loading, unloading, repairing, or building a vessel.” ** To make sure that on that new situs eligibility would not extend to a person who had no relation to maritime employment except that his employer had at least one em- ployee employed in maritime employment, Congress amended the definition of “employee.” 12 See Northeast Marine Terminal Co. v. Caputo, Ibid., pp. 259-260, 269. 13 Ibid., p. 269. 14 See footnote 11. 15 33 U.S.C. §903(a) (1970 ed., Supp. V) provides: “Compensation shall be payable . . . in respect of disability or death of an employee but 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, or building a ves- sel) ....” [The italicized parts indicate material added in 1972). Al6 Appendix A Explaining the amendment to the definition of “em- ployee” in §2(3), the Congressional Committees stated: The definition specifically includes any longshoreman or other person engaged in longshoreing [sic] opera- tions, and any harborworker, including a ship repair- man, shipbuilder ard shipbreaker. It does not exclude other employees traditionally covered... . In the phrase “other employees traditionally covered” the word “covered” deserves emphasis. Of course it is only the LHWCA’s coverage which would be relevant. “Tradi- tionally covered,” therefore, means employees previously covered by the LHWCA. The phrase does not mean tradi- tionally employed in navigation or maritime commerce. In fact, most employees engaged in navigation or maritime commerce are crew members who are excluded by §2(3) of the LHWCA and are traditionally covered by the Jones Act, 46 U.S.C. §688, et seq. There is another significant indication that Congress in- tended that a person who, before 1972, had eligibility be- cause his principal duties were on navigable waters as then defined should retain his eligibility. In the Committee Re- ports there is a discussion of the effect of the 1927 definition of an “employer,” which appears in §2(4) of the 1927 Act, 49 Stat. 1426. Interestingly, the Committee misquotes §2(4) both by changing “employed” to “engaged,” and by mis- locating the phrase “in whole or in part.” The correct text of the 1927 version of §2(4) reads: The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock). Al7 Appendix A The 1972 Congressional Committee’s description of the term “employer” reads: A person at least some of whose employees are en- gaged, in whole or in part, in some form of maritime employment. If we reflect on this misquotation and then look at the intro- ductory phrase in the 1972 definition of employee, “any person engaged in maritime employment,” it does not take a Sherlock Holmes to infer that whoever drafted the 1972 definition of “employee” borrowed the just-quoted part of it from his reading of the 1927 definition of “employer.” In the light of the judicial gloss on the 1927 definition of “employer” there is a presumption that the draftsman in- tended that the 1972 definition of employee should cover at least any person whose principal employment was upon water. We now turn from the legislative history to a review of factors not emphasized by Congress but in our view rele- vant to the question presented to us. 1. The Supreme Court has given far more than lip serv- ice to its oft-repeated statement that LHWCA and the amendments thereto are remedial acts which are to be liberally interpreted to benefit employees and avoid harsh results. The Court has not hesitated even to read out of the LHWCA an explicit statutory provision (to wit, that part of §3(a) of the 1927 LHWCA, former 33 U.S.C. $903 (a) which provided that compensation shall be paid for injuries occurring on navigable waters only “if recovery... through workmen’s compensation proceedings may not validly be provided by state law”), where the Court found it repugnant to the general purpose of Congress to protect A18 Appendiz A persons injured seaward of the Jensen line. Calbeck v. Travelers Ins. Co., supra. 2. A petitio principii is built into the frequently-repeated statement that before 1972 the right to recover under the LHWCA was based primarily on the situs of the injury and that the 1972 amendments changed the basis of re- covery to make it dependent both on a status test and a situs test. The Congressional Committees never used the words “situs” and “status” although those words must have been known to Congress since they were used in Nacirema Operating Co. v. Johnson, supra, 396 U.S. at 215, which was one of the cases which triggered the 1972 Amendments. We ought not to assume that just because Congress moved into a two-pronged situation with respect to injuries over land, it also moved into a two-pronged situation with re- spect to injuries over water, especially when there is no evidence of such an intention except possibly in one tan- gential situation. The possible exception relates to a person whose principal duties are on land and who sustains a work-related injury on navigable waters. Under the pre- 1972 LHWCA a land-based worker injured on a single trip over water could recover. Parker v. Motor Boat Sales, Inc., supra. When Congress amended §2(3) it borrowed from the §2(4) text but omitted the words “in whole or in part,” and thus Congress may have established as a test of status the question whether the injured person had his major activities upon navigable waters. Cf. Thibodaua v. Atlantic Richfield Co., 580 F.2d 841 (5th Cir. 1978), cert. denied, 47 U.S.L.W. 3771 (U.S. May 29, 1979). 3. Unless the term a “person engaged in maritime em- ployment” be read geographically to include a person who while at work on navigable waters suffers a work-related Al19, Appendix A injury, some persons employed on navigable waters will be left without any compensation remedy, state or federal. We have no data showing how large this group is in a period of increased exploration, excavation, drilling, and other enterprise on navigable waters. Moreover, even if there is protection under state law, Congress might regard it as inadequate. In 1972 Congress demonstrateé that it did not want to leave persons injured on navigable waters to the often low scale of state benefits: it removed the restriction which, in the 1927 Act, had made federal com- pensation payable “only ... if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law.” ** 4. Any occupational interpretation such as that pro- posed by the BRB—“a claimant’s employment must have a realistically significant relationship to maritime activities involving navigation and commerce over navigable waters in order to be deemed maritime employment under Section 2(3)”—runs into great difficulty. Obviously it does not apply to a member of a crew, because §2(3) itself excludes him. If it were to be applied to all other significant rela- tionships to navigation and commerce this would do vio- lence to the statement in the Congressional Reports that there would not be LHWCA coverage as a result of the amendments for “purely clerical employees whose jobs do not require them to participate in the loading or unloading of cargo.” In short, it seems as though an occupational definition of the critical phrase would be a perversion of Congressional purpose unless it is limited to the specific categories of longshoremen, harborworkers and so forth. And if so limited it is duplicitous and superfluous. 16 See Northeast Marine Terminal Co. v. Caputo, supra, page 263, n. 21; see historical note to 33 USCA $903. cA A20 Appendix A 5. The geographical interpretation avoids the anomaly of different readings of substantially the same phrase in two adjacent sub-sections, §2(3) and §2(4) of the same Act. Were different interpretations to be prescribed, there would be sure to follow considerable confusion of claimants, their counsel, administrators, and judges. The importance of identical interpretations is illustrated by a case we are deciding today. See Tantzen, et al. v. Shaughnessy, 2nd Cir., No. 79-4034, , 1979. 6. The geographical interpretation gives administrative agencies and courts the benefit of a vast body of previous judicial interpretations of the phrase “employed in mari- time employment.” 7. A geographical test, as experience shows, rests upon a simple standard which will minimize litigation and in- crease efficiency without any apparent social disadvantage. See 4 Larson, Workmen’s Compensation Law (1979), $89.27, at pp. 16-178; Gilmore & Black, The Law of Ad- miralty (2nd ed. 1975) pp. 428-430. 8. Despite what is said in Weyerhauser Company v. Gil- more, at p. 961, col. 1, the geographical interpretation of “maritime employment” will not make superfluous the crit- ical phrase in §2(3), 33 U.S.C. §902,\3) and will not leave the Act with no status test whatsoever. Under such an interpretation, the 1972 Amendment will still operate, as Congress intended, to preclude compensation being paid to a land-based employee whose only claim to coverage is that he, while working for an employer who had an em- ployee engaged in maritime employment, was injured on land in an area adjoining navigable waters. See Larson, supra, §89.27, p. 16-182. A21 Appendix A 9. Even if under a geographical interpretation of the 1972 Amendment an employer like Perini finds that on the same construction project some of its construction em- ployees are under federal compensation law, some are under state compensation law, and some alternating accord- ing to their work assignments, this lack of uniformity may be justified by genuine differences (not experienced, for example, by longshoremen) between the risk of maritime employment and the risk of land-based employment. More- over, if uniformity is desirable that is a question for Con- gress, not for us. So far, Congress has sought uniformity only by assuring longshoremen and harborworkers that they will be as highly compensated for injuries sustained ashore as on navigable waters. It would be another story for us, undirected by Congress, to hold that construction workers injured on navigable waters are, for the sake of uniformity, to be limited to the compensation that they or other construction workers would receive for injuries on land-based jobs. Weighing all relevant factors, we interpret the critical phrase “person engaged in maritime employment” geo- graphically so as to include any person whose principal duties are performed on navigable waters as that term was understood before 1972. In this case we have no occa- sion to decide whether the critical phrase also includes a person whose principal duties are on land but who suffers work-related injuries while performing duties upon naviga- ble waters.”’ 17 In this case it is unnecessary for us to decide the eligibility of a person who performed merely incidental duties on navigable waters. Cf. Thibodauz v. Atlantic Richfield Co., supra, holding that the amended LHWCA does not apply to an employee who performs his duties on land but is injured during his transportation over navigable waters while journeying from one land duty to another land duty. A22 Appendix A Our conclusion is consistent with the purposes of the Congress—to extend and not to withdraw eligibility—and avoids the harsh results which would flow from a strictly occupational interpretation. Since each claimant—that is, Fusco and Sullivan—per- formed his principal duties upon navigable waters as that term was defined in §3(a) of the original 1927 LHWCA, 44 Stat. 1426, 33 U.S.C. §903(a), and sustained on such waters a work-related injury, we hold that each was eligible for compensation as “a person engaged in maritime employ- ment” within the meaning of §2(3) of the LHWCA as amended in 1972, 86 Stat. 1251, 33 U.S.C. §902(3) (1970 ed., Supp. V). | There remains for us to consider the respondents’ mo- tion to dismiss the Director’s petition on the ground that he lacks standing to petition for review of the BRB’s No- vember 30, 1978 order. We hold that the Director was not “adversely affected or aggrieved” by the Board’s November 30, 1978 order deny- ing Fusco’s and Sullivan’s claims to compensation. There- fore, he lacks statutory standing to petition for review pursuant to 33 U.S.C. §921(c). Director, Office of Workers’ Compensation Programs v. Donzi Marine, Inc., 586 F.2d 377 (5th Cir. 1978). 1.7.0. Corporation of Baltimore v. Benefits R. Bd., 542 F.2d 903 (4th Cir. 1976), vacated sub nom. Adkins v. I.T.0. Corp. of Baltimore, 433 U.S. 904, rev'd on remand on other grounds, 563 F.2d 646 (1977). We cannot improve upon what seem to us the irrefutable analyses of Judges Ainsworth and Winter, for the Fifth and Fourth Circuits, respectively. If our earlier opinion in Pittston etc. looks the other way, it is not controlling because we simply found it unnecessary there to decide the standing of the Solicitor of Labor to move to dismiss an A23 Appendix A appeal by an employer as untimely, 544 F.2d at 42. In any event we do not suggest in Pittston that the Solicitor or the Director could seek independent review to attempt to reverse the BRB. We need not decide whether the Director lacks consti- tutional standing under U.S. Constitution Article III on the ground that he does not present what is in his situation a “case or controversy.” Petitions of Fusco and Sullivan granted. The BRB’s November 30, 1978 order is set aside and the case ts re- manded for further proceedings not inconsistent with this opinion. Petition of the Director dismissed for lack of statutory standing. A24 APPENDIX B Decision and Order of the United States Court of Appeals for the Second Circuit Denying Rehearing and Rehearing En Banc UNITED STATES COURT OF APPEALS Seconp CrircuIt At a Stated Term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Court House, in the City of New York, on the twenty-first day of August, one thousand nine hundred and seventy- nine. Present: Hon. Murray I. Gurren, Hon. Tuomas J. MESKILL, Circuit Judges, Hon. Cuas. E. Wyzansk], District Judge. Docket No. 79-4006 Ronautp Fusco, et al., Petitioners, Vv. Pertnt NortH Rrver Associates and Hartrorp Accient & INDEMNITY ComPaNy, Respondents. A petition for a rehearing having been filed herein by counsel for the respondents, Upon consideration thereof, it is Ordered that said petition be and it hereby is denied. /3/ A. DanreL Fusaro A. DanieL Fusaro Clerk A25 Appendix B UNITED STATES COURT OF APPEALS Sreconp CIRcvuIT At a stated term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Court House, in the City of New York, on the twenty-first day of August one thousand nine hundred and seventy- nine. Docket No. 79-4006 Ronaup Fusco, et al., Petitioners, Vv. Perint Nortu River Associates and Hartrorp Accipent & INDEMNITY Company, Respondents. A petition for rehearing containing a suggestion that the action be reheard in bane having been filed herein by coun- sel for the respondents, and no active judge or judge who was a member of the panel having requested that a vote be taken on said suggestion, Upon consideration thereof, it is Ordered that said petition be and it hereby is denied. /s/ Irvine R. KaurMan Irvinc R. KaurMay, Chief Judge A26 Appendix B UNITED STATES COURT OF APPEALS For THE SECoND CIRCUIT Nos. 869, 870, 871—August Term, 1978. Decided August 21, 1979 Docket Nos. 79-4006, -4015, -4016 RonaLp Fusco, Petitioner, and BERNARD SULLIVAN, Petitioner, and Dmecror, Office of Workers’ Compensation Programs, United States Department of Labor, Petitioner, —_—V — Pertnt Nortu River Associates, and Harrrorp Accent & INDEMNITY COMPANY, Respondents. Before: Gurrern, and Meski11, Circuit Judges, and Wvyzansk1, Senior District Judge.* * Of the District of Massachusetts, sitting by designation. A27 Appendia B Oprnion ON RESPONDENTS’ PeriTION For REHEARING. Wyzansk1, Senior District Judge: Contrary to what is alleged at page 10 of respondents’ petition for rehearing, the record does not show that Sulli- van when injured was standing upon a substructure extend- ing from the shoreline. It is true that one of the examining counsel’s questions assumed that Sullivan was “on this substructure.” But Sullivan never said or implied that he was standing on that substructure. He testified that he was “located right above the water.” The fair implication is that he was on a temporary platform above the water and the substructure was under the water. Thus there was substantial evidence for the ALJ to conclude that Sullivan “was standing about 12 inches above the water” and was “injured while at work upon navigable waters.” Petition for rehearing denied. A28 APPENDIX C Decision and Order of the Benefits Review Board of the Department of Labor, Together With the Dissenting Opinion of Member Miller U.S. DEPARTMENT OF LABOR Benerits Review Boarp Wasurneton, D.C. 20210 FILep Aas PaRT OF THE RECORD November 30, 1978 (date) Acnes Kurtz/WHA (Clerk) Benerits Review Boarp BRB No. 77-896 STEPHEN SEDMAK, Claimant-Petitioner, Pertn1 Nortu River Associates, and Harrrorp Accipent & INDEMNITY COMPANY Employer/Carrier-Respondents, Drector, Orrice oF WorKERS’ COMPENSATION PROGRAMS Party-in-Interest, A29 Appendia C BERNARD SULLIVAN, Claimant-Petitioner, v. Perini Nort River ASsociaTEs and Hartrorp Accripent & INDEMNITY COMPANY Employer/Carrier-Respondents, Dreector, OFFICE oF WorKERS’ COMPENSATION PRoGRAMS Petitioner. BRB No. 78-129 BRB No. 78-407 Ronaup Fusco, Claimant-Respondent, Vv. Perini Nortu River ASSOCIATES and Hartrorp Accipent & INDEMNITY Company, Employer/Carrier-Petitioners, A390 Appendia C Everett McNv tty, Claimant-Respondent, We Pertn1 Nortu River ASsociaTEs, and Hartrorp Accipent & INDEMNITY CoMPANY, Employer/Carrier-Petitioners, DrmectTor, CFFICE OF Workrrs’ CoMPENSATION PROGRAMS, Party-in-Interest. Appeals from the Decisions and Orders of Joyce Capps, Philip J. Lesser, and Robert J. Feldman, Administra- tive Law Judges, United States Department of Labor. Joseph F. Klotz, New York, New York, for Claimant Sullivan. Bernard S. Epstein (Epstein & Epstein), New York, New York, for Claimant Fusco. Hyman Bass (Roshwald, Bass & Caine), New York, New York, for Claimant Sedmak. William F. Fischer (Fischer Brothers), New York, New York, for Perini North River Associates. Mare C. Walters, Gilbert T. Renaut, Linda C. Carroll (Carin Ann Clauss, Solicitor of Labor, Laurie N. Stree- ter, Associate Solicitor), Washington, D.C., for the Di- A3l Appendia C rector, Office of Workers’ Compensation Programs, United States Department of Labor. BEFORE: Smitu, Chairman, Miier and Kauaris, Members.* Situ, Chairman: These are appeals from the Decisions and Orders of Ad- ministrative Law Judges Joyce Capps (77-LHCA-877), Philip J. Lesser (76-LHCA-927), and Robert J. Feldman (77-LHCA-65 and 77-LHCA-877), pursuant to provisions of the Longshoremen’s and Harbor Workers’ Compensa- tion Act, as amended, 33 U.S.C. § 901 et seq., (hereinafter referred to as the Act). In these four cases, each claimant sustained an injury in the course of his employment on the same construction project for Perini North River Associ- ates (hereinafter, Perini). Since each case involves com- mon questions of law and fact, we have consolidated the cases for the purposes of these appeals, 20 C.F.R. § 802.104. We first turn to a review of the construction project by Perini at which each claimant was injured. Perini’s con- struction project was thoroughly and accurately described by Administrative Law Judge Capps: [Perini] is engaged in the business of heavy con- struction. Approximately five years ago Perini was awarded a low-bidder contract by the City of New York to construct a substructure for the North River Pollution Control Project. The substructure (or foun- dation) was needed to support the superstructure of a * Dissent by MitLer, Member, to follow. A832 Appendix C sewage disposal plant which would eventually be built by another contractor. The location of the project is on the North River (which is part of the Hudson River) between 133rd and 148th Streets and extends from the shoreline out over the water approximately 700 feet to the pierhead. Perini’s job began with placing 2,300 caissons’ down to imbedded rock approximately 25 feet apart. The eaissons are then filled with concrete, after which they are connected together at proper elevations above the water with concrete beams 8 by 4 feet in size. Enclo- sure between the caissons is completed by placing pre- cast slabs of concrete 9 to 12 inches thick on top of the beams, whereupon Perini’s job of constructing the sub- structure is finished. - * * 1 Caissons are hollow circular steel pipes about %4” thick, 42” in diameter, and vary in length from 80’ to 250’. [Caissons are also referred to as piles. | Sedmak v. Perini North River Associates, 77-LHCA-877 (slip. op., pages 2-3) (Nov. 9, 1977). With this background in mind, we turn to the individual facts of each case. SEDMAK Claimant Sedmak, a dock builder, worked for Perini for four to five months prior to his injury. About 60 percent to 70 percent of his time was spent on a barge setting up the caissons or piles which were an essential part of the substructure or foundation for the sewage disposal plant. He was injured while “working on the job of extending No. 2 ramp east over the North River approximately 229 feet from the shore... .” A33 Appendia C Administrative Law Judge Capps concluded that Claim- ant Sedmak was not engaged in maritime employment with- in the meaning of Section 2(3), 33 U.S.C. § 902(3), and thus not covered. Given that determination, she found it un- necessary to address the other issues presented in the case. Claimant Sedmak has appealed. SULLIVAN Claimant Sullivan, employed as a wire lather, performed a variety of tasks involving the steel reinforcement of the concrete beams and caissons for the substructure. Claim- ant’s duties required him to frequently stand in water while working on the beams and two or three times a week to board barges to hook steel onto a crane and unload the steel. At the time of injury, Claimant Sullivan was install- ing beams about 150 feet from shore. Administrative Law Judge Feldman concluded that, al- though the claimant clearly met the “situs” requirement of Section 3(a), 33 U.S.C. §903(a), and that Perini met the requirements of Section 2(4), 33 U.S.C. § 902(4), Claimant Sullivan did not satisfy the status test because he was not engeged in maritime employment pursuant to Section 2(3). He also found that the presumption in Section 20(a) of the Act, 33 U.S.C. § 920(a), did not apply to the status issue. Claimant Sullivan and the Director, Office of Workers’ Compensation Programs, have appealed. FUSCO Claimant Fusco, a construction laborer, worked on float- ing stages and assisted the dock builders in the construc- tion of the substructure. His duties included: A34 Appendix C ... fetching materials from barges or from the snore, assisting in the driving of caissons into the river bed, pouring concrete into the caissons, fabricating wood forms for the pouring of concrete beams across the caissons and helping to construct the platforms across those beams. Fusco v. Perini North River Associates, 76-LHCA-927 (slip op. pg. 2) (Dec. 19, 1978). Claimant Fusco was injured while descending a ladder from one of the concrete forms to a raft. Administrative Law Judge Lesser concluded that Claim- ant Fusco was injured over navigable waters according to Section 3(a), and was engaged in maritime employment according to Section 2(3). Perini has appealed. McNULTY Claimant MeNulty, a dock builder, also worked on the same substructure or foundation as the other claimants. His job duties involved dropping the forms in the river and pulling them up with a crane in order to get them set. At the time of injury, he was working on top of a concrete form about 220 feet from shore. Administrative Law Judge Feldman concluded that the claimant was injured over a proper situs according to Sec- tion 3(a) and was engaged in maritime employment accord- ing to Section 2(3). He concluded that Claimant McNulty had established a prima facie case for status, although he appears to have deemed the Section 20(a) presumption in- applicable. Perini has appealed. 4 q 3 A35 Appendix C i. Although the primary issue in each ease is that of mari- time employment, we must at the outset deal with the pre- sumption under Section 20(a), 33 U.S.C. §920(a), whose applicability was argued in several of the cases Section 20(a) provides that: See. 20. In any proceedings for the enforcement of a claim for compensation under this Act it shall be pre- sumed, in the absence of substantial evidence to the contrary— (a) That the claim comes within the provisions of this Act. In Fusco, the administrative law judge did not consider the applicability of Section 20(a). In McNulty, it appears that the administrative law judge did not use Section 20(a) in determining maritime employment. Rather, he concluded that the claimant had established a prima facie case. In Sullivan and Sedmak, the administrative law judge held that the Section 20(a) presumption did not apply to a de- termination of status under Section 2(3). Claimant Sullivan and the Director, Office of Workers’ Compensation Programs, have appealed and contend in Sullivan and Sedmak, the administrative law judges held issues of status. We disagree and conclude that it does not apply in the context of these cases, See Pittston Stevedor- ing Corp. v. Dellaventura, 544 F.2d 35 (2d Cir. 1976), aff’d sub nom. Northeast Maritime Terminal Co., Inc. v. Caputo, 432 U.S. 249 (1977) (hereinafter, Caputo/Blundo) ; Stock- man v. John T. Clark & Son of Boston, 539 F.2d 264 (1st Cir. 1976), cert. denied, 433 U.S. 908 (1977). Dellaventura clearly states that the Section 20(a) presumption is in- A36 Appendia C applicable to “an interpretative question of general import such as .. . [coverage under Section 3, and that the Su- preme] Court’s decisions dealing with questions of cover- age ... will be searched in vain for mention of the pre- sumption.” 544 F.2d at 48. The court in Stockman came to the same conclusion when it stated “[t]his basic inter- pretative decision must precede any application of the pre- sumption.” 539 F.2d at 269. Although both courts were dealing with the Section 3 “situs” issue, “status” under Section 2(3) also involves the threshold issue of coverage. An earlier Second Circuit case, Overseas African Con- struction Corp. v. McMullen, 500 F.2d 1291 (2d Cir. 1974), is cited as authority to the contrary. Particular reliance is placed on the court’s statement that “so long as any reasonable inference from the facts supports jurisdiction under the statutory presumption that jurisdiction may be found.” 500 F.2d at 1296. Reliance on McMullen however is misplaced. The Second Circuit’s later Dellaventura case, affirmed by the Supreme Court, is clearly entitled to more weight. Secondly, the court in McMullen also held that a “prima facie showing of federal jurisdiction” had been made, and thus the court did not totally rely on the Section 20(a) presumption. We therefore decline to accept the proposition that the Section 20(a) presumption applies to the threshold issue of coverage, such as status under Section 2(3), in the context of these cases. Accordingly, the determination in Sullivan and Sedmak that the Section 20(a) presumption did not apply to the issue of status is affirmed. Il. We now turn to the primary question with which we are confronted, namely, the boundaries of coverage under the Act. a ee : ; A37 Appendix C The Act clearly sets forth a test for situs under Section 3(a)! and test for status under Section 2(3), both of which must be satisfied for coverage.’ Since these appeals focus on the status of the claimants, we look to Section 2(3). Section 2(3) provides in pertinent part: (3) The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and and harborworker including a ship repairman, ship- builder, and ship-breaker, .. . The claimants herein were clearly not shipbuilders, ship- breakers, or ship repairmen. Nor could they be classified as longshoremen or as engaged in longshoring operations. Although Claimant Sullivan, a wire lather, on occasion helped to unload steel used in the construction of the sub- structure, Administrative Law Judge Feldman determined that that did not alter the essential nature of his occupation. We agree and add further that neither was Claimant Sul- livan engaged in “indisputably” longshoring operations. Viewing Claimant Sullivan’s overall activities, which has been the standard consistently applied by the Board, see McNeil v. Prolerized New England Co., 8 BRBS 1, BRB 1 Section 3(a) states in pertinent part: Compensation shall be payable under this Act in respect of disability or death of an employee, but 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, or building a vessel.) 2 Claimants were found in each ease to have satisfied the Section 3(a) situs test, except in Sedmak in which the issue was not ad- dressed. The findings of situs are not on appeal. A38 Appendix C Nos. 77-328 & 77-328A (March 20, 1978); Coppolino v. In- ternational Terminal Operating Co., Inc., 1 BRBS 205, BRB No. 74-136 (Dee. 2, 1974), he was a construction work- er whose task of unloading the steel was an incidental function to his job of constructing the substructure. The term “harbor worker”, however, which is an occupa- tion expressly covered by the Act, includes the occupations of shipbuilder, shipbreaker, and ship repairman, but is not limited thereto. Recognizing this fact, the Board, in Stewart v. Brown & Root, Inc., 7 BRBS 356, 365, BRB No. 76-451 (Jan. 12, 1978), defined the term “harbor worker” to include “at least those persons directly involved in the construc- tion, repair, alterations, or maintenance of harbor facilities (which include docks, piers, wharves and adjacent areas used in the loading, unloading, repair or construction of ships).” The claimants also cannot be deemed harbor work- ers under the Stewart rule. As noted previously, all of the claimants were involved in the construction of a substruec- ture which was to be used as a foundation for a sewage disposal plant. Accordingly, their employment was not re- lated to the “construction, repair, alteration, or mainte- nance of harbor facilities.” It is clear that in order for any of the claimants to satisfy the “status” test they must have been engaged in some form of “maritime employment” other than that expressly recognized in Section 2(3). As the Supreme Court acknowl- edged in Caputo/Blundo, the question of maritime employ- ment vel non is made difficult by the failure of Congress to define it in the text of the Act or its legislative history. 432 U.S. at 265. This is due in part perhaps to the confusion surrounding this question since the Act’s inception, as well as to the fact that in many of the earlier cases the precise A39 Appendix C question before us was not in issue. See, e.g., Pennsylvania R. Co. v. O’Rourke, 344 U.S. 334 (1953), and cases cited therein, at 335-336. For example, in Calbeck v. Travelers Insurance Co., 370 U.S. 114 (1962), the employees were involved in the construction of vessels and thus the Court focused on the Maritime but Local issue and hence situs, rather than the maritime employment of the particular em- ployees. Accordingly, in our attempt to ascertain maritime employment, we must rely in part on the considerations giving rise to the 1972 Amendments as well as those which should be taken into account in applying the Act, which were recently discussed by the Supreme Court in Caputo/ Blundo. In approaching questions of status, the Supreme Court stated in Caputo/Blundo that we should take an expansive view of extended coverage and that the Act must be liberally construed. 432 U.S. at 268. The Court also pointed to the legislative history which establishes that by means of the 1972 Amendments, it was Congress’ intent to create a “uni- form compensation system to employees who would other- wise be covered by this Act for part of their activity,” 432 U.S. at 272, and to accommodate the Act to modern techno- logical change. 432 U.S. at 270. The Court however tem- pered these considerations by quoting other portions from the committee reports to the effect that the committee did not intend to cover employees not engaged in loading, un- loading, repairing, or building a vessel just because they are injured over a covered situs. 432 U.S. at 266, n.27. More- over, the Court favorably cited Stockman v. John T. Clark & Son of Boston, 539 F.2d 264, 4 BRBS 304 (1st Cir. 1976), cert, denied, 433 U.S. 908 (1977). Caputo/Blundo, id. at 277, n.40, 281. In Stockman, the First Cireuit examined the Act’s legislative history and concluded that A40 Appendix C {the statement in the committee reports that the Act is to apply to employees who would be covered for part of their activity] as well as other parts of the committee reports, indicates that Congress, in moving shoreward, did not see itself as including under the Act whole new groups and classes of employees. Coverage was still to be geared only to persons who loaded and unloaded vessels (or else repaired or built them) and who fit such traditional maritime designations as long- shoreman, harbor worker and the like. Stockman, id. at 276. In view of the foregoing, it is clear that injury over navigable waters in and of itself is an insufficient bench- mark by which to ascertain maritime employment. See Caputo/Blundo, supra; Thibodaux vy. Atlantic Richfield Company, 580 F.2d 841, 8 BRBS 787 (5th Cir. 1978). In- deed, the Supreme Court clearly stated in Caputo/Blundo, 432 U.S. at 264-265, that [t]he 1972 Amendments thus changed what had been essentially only a “situs” test of eligibility for com- pensation to one looking to both the “situs” of the mjury and the status of the injured. [Emphasis added.] On the other hand, we continue to believe that the Weyer- haeuser test’ for maritime employment under Section 2(3) is overly restrictive. In particular, we decline to accept the 3 Weyerhaeuser Co. v. Gilmore, 528 F.2d 957, 961, 3 BRBS 140, 144 (9th Cir. 1976), cert. denied, 429 U.S. 868 (1976), (For status, an employee’s work must “have a realistically significant relation- ship to traditional maritime activities involving navigation and commerce over navigable waters. . . [and specifically that] ... an employee’s employment have a realistic relationship to the tradi- tional work and duties of a ship’s service employment.’’) A41 Appendix C proposition that the maritime employment must be of a “traditional” nature and have a “realistic relationship to the traditional work and duties of a ship’s service employ- ment.” 528 F.2d at 96. The continued validity of the Weyerhaeuser test is questionable in light of Caputo/ Blundo* and the Ninth Circuit’s more recent approach to questions of status which is in accord with Caputo/Blundo. See Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 7 BRBS 409 (9th Cir. 1978) ; Handcor, Inc. v. Director, Office of Workers’ Compensation Programs, 568 F.2d 143, 7 BRBS 413 (9th Cir. 1978). Given the above considerations, we conclude that a claim- ant’s employment must have a realistically significant re- lationship to maritime activities involving navigation and commerce over navigable waters in order for that employ- ment to be deemed maritime employment under Section 2(3). Cf. Anderson v. McBroom Rig Building Service, Inc., 5 BRBS 713, BRB No. 75-198 (April 7, 1977); Toups v. Chevron Oil Company, 7 BRBS 261, BRB No. 76-453 (Dee. 29, 1977). Since the claimants herein were engaged in the construction of a sewage disposal plant, their employment did not have a realistically significant relationship to maritime activities involving navigation and commerce over navigable waters. It follows that the claimants were not engaged in maritime employment pursuant to Section 2(3) and thus are not covered under the Act. We thus agree with the administrative law judge in Sullivan that Con- gress did not intend that the phrase “maritime employ- ment” include a worker in the building or construction *In Caputo/Blundo, the Court, as noted above, acknowledged the Congressional intent to accommodate the Act by means of the 1972 Amendments to modern technological change. 432 U.S. at 270. A42 Appendix C trades performing his usual function in the erection of any structure that happened to be situated upon navigable waters. To conclude otherwise would be to include under the Act a whole new group or class of employees not orig- inally intended to be covered. Furthermore, to provide coverage to workers under the Act based solely upon injury over navigable water without regard to their individual status would be tantamount to the establishment of dual standards in the determination of jurisdiction. One stan- dard for workers injured over navigable water and yet another for workers injured shoreside, The result is simply untenable. The Director argues that all construction over navigable waters is maritime employment within the meaning of Sec- tion 2(3). As we noted above, the Act now requires that the tests of “situs” and “status” both be satisfied in order for an individual to be covered. To hold that any employ- ment over navigable waters is sufficient for coverage would be to read out of the Act the “status” test, which we are not at liberty to do. We note further that two of the claimants were described as dock workers. Nevertheless, the label put upon an employee’s activity or occupation is not dis- positive of a determination of status. See Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533, at 541, 4 BRBS 482, at 488 (5th Cir. 1976), vacated and remanded, 433 U.S. 904 (1977), reaffirmed, 575 F.2d 79, 8 BRBS 468 (5th Cir. 1978). The Board’s earlier Decision in Sharp v. Pacific Gas & Electric Company, 2 BRBS 381, BRB Nos. 75-170 & 75-170A (Oct. 30, 1975), is also used as authority to the contrary. To the extent that Sharp is inconsistent with our determination in these cases, it is overruled. Further discussion however is in order. In Stewart v. Brown & Root, Inc., 7 BRBS 356, BRB No. 76-451 (Jan. a a ee ee eee A43 Appendix C 12, 1978), we stated inter alia that if an employee was covered under the Act prior to the 1972 Amendments, the employee would similarly be covered after the amendments. See also, Joyner v. Brown & Root, Inc., 7 BRBS 608, BRB Nos. 76-471 & 76-471A (Jan. 12, 1978). Upon reconsidera- tion in light of the standards enunciated in this case, we have concluded that pre-amendment case law serves as a useful framework in which to ascertain maritime employ- ment but that it is not controlling. Compare Stewart v. Brown & Root, Inc., supra, with Weyerhaeuser Co. v. Gil- more, supra. This is particularly so since under pre-amend- ment law, . so long as a work-related injury occurred on nav- igable waters and the injured worker was not a member of a narrowly defined class, the worker would be eligible for federal compensation provided that his or her employer had at least one employee engaged in maritime employment, [HMmphasis added. ] Caputo/Blundo, 432 U.S. at 264. Thus, it is clear that coverage of claimants in pre-amendment cases did not necessarily depend on the individual claimant’s work ac- tivity. See Pennsylvania R. Co. v. O’Rourke, 344 U.S. 334, 339-342 (1953). Consequently, all employees who were injured over pre-amendment navigable waters were not necessarily covered pre-amendment; if the employee was not employed by a statutory employer pursuant to Section 2(4), 33 U.S.C, §902(4) (1970 ed.), there was no coverage. See Calbeck v. Trav