# Record and brief — Chesapeake & Ohio R. Co. v. Schwalb > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1418%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1989 - **Citation:** 493 U.S. 40 ## Text No. 87-1979-CSX Status: GRANTED Title: Chesapeake and Ohio Railway Company, Petitioner Vv. Nancy J. Schwalb and William McGlone Docketed: Court: Supreme Court of Virginia June 2, 1988 . Counsel for petitioner: Prince,William T. Vide: 88-127 Counsel for respondent: Thompson,c. Gerard See also: 88-127 Entry Date Note Proceedings and Orders 1 Jun 2 1988 G Petition for writ of certiorari filed. 2 Jul 2 1988 Brief of respondents in opposition filed. 4 Jul 5 1988 et aoe curiae of. Assn. of American Railroads, et al. filed. 3 Jul 6 1988 DISTRIBUTED. September 26, 1988 5 Oct 3 1988 P The Solicitor General is invited to fiie a4 brief in this case expressing the views of the United States. 7 Jan 9 1989 Brief amicus curiae of United States filed. VIDED. 6 Jan 11 1989 REDISTRIBUTED. February 17, 1989 6 Feb 21 1989 Petition GRANTED. The case is consolidated with 88-127, and a total of one hour is allotted for oral argument. che dee eeeeeAAAAAAAAAAAAAAAARARAAAAAAAAAAAAERRA AAA A ARR ES 10 Mar 25 1989 Order extending time to file brief of petitioner on the merits until April 22, 1989. 11 Apr 21 1989 G Motion of Association of American Railroads, et al. for leave to file a brief as amici curiae filed. 12 Apr 21 1989 Brief amicus curiae of United States filed. VIDED. 13. Apr 21 1989 Joint appendix filed. VIDED. 14 Apr 21 1989 Brief of petitioner Chesapeake & Ohic Railway Co. filed. VIDED. 15 May 1 1989 Motion cf Association of American Railroads, et al. for » leave to file a brief as amici curiae GRANTED. 16 May 5 1989 G Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed. 17 May 11 1989 Record filed. * Certified copy of original record, box, received. 18 May 22 1989 Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED. 19 May 24 1989 Brief of respondents filed. 20 Jun 5 1989 D Motion of respondents for divided argument filed. 21 Jun 12 1989 Motion of respondents for divided argument DENIED. 22 Jun 23 1989 Reply brief of petitioners Chesapeake & Ohio Railway Co. filed. VIDED. 23 Jul 12 1989 CIRCULATED. 24 Jul 20 1989 SET FOR ARGUMENT TUESDAY, OCTOBER 3, 1989. (3RD CASE) 25 Jul 21 1989 G Motion of the Solicitor General to permit Christine Desan Husson, Esq. to present oral argument pro hac vice filed. No. 87-1979-CSX 26 27 28 Sep 20 1989 Sep 25 1989 Oct 3 1989 Lodging received. (See 88-127). Motion of the Solicitor General to permi t Christine Desan Husson, Esq. to present oral argument pro hac vice GRANTED. ARGUED. PETITION FOR WRIT OF CERTIORARI Supreme Court, U.S. FJ LED Beeb. 2 29 JUN 3 1988 L, JR. CLERK In the Supreme Court of the United States October Term, 1987 CHESAPEAKE AND OHIO RAILWAY COMPANY, Petitioner, NANCY J. SCHWALB and WILLIAM McGLONE, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF VIRGINIA | William T. Prince John Y. Richardson, Jr. Joan F. Martin WILLIAMS WORRELL KELLY AND GREER, PC. 600 Crestar Bank Norfolk, Virginia 23510 804-624-2600 Counsel! for Petitioner ——— II. QUESTIONS PRESENTED Whether mechanical laborers who clean and maintain coal loading machinery at a maritime situs ful- fill the status requirement of the Longshore and Harbor Workers' Com- pensation Act? Whether a state court's adherence to a narrow definition of LHWCA status, despite uniform federal precedent to the contrary, effectu- ates the intent of Congress to cre- ate a simple uniform standard of- coverage? Page QUESTIONS PRESENTED. .... 1.6. e cece eeuee i TABLE OF AUTHORITIES. ..... eee eeuces iii OPINIONS BELOW... 1... ccc cece ene nn eennne 3 FUE IC TI. ccc cece ccc cccescccescceses 3 STATUTE INVOLVED. ....... ccc eeeccceceees 4 STATEMENT OP THE CASE... cccccsccccvecs 4 Factual Summary..........6seeeeues 8 Raising the Federal Question..... ll BIRGIT c ccc cece eseccecesseceesescces 14 I. McGlone and Schwalb are Maritime Employees..........+++5:. 17 II. ‘The Schwalb-McGlone Decision Offends the Congressional Goal of a Uniform Standard....... 35 ee Es ee 40 CERTIFICATE OF SERVICE... . 1... se eeeuee 41 ii TABLE OF AUTHORITIES Page Cases Boudreaux v. American Workover, 18th cir. 1982) et 30,31 Bradshaw v. arieye a 6) tition for denied, Oi Fd 1161 (3d Cir. “T9 Feseddoeteeecedsc 23,24 (7th Cir. 1961).............. 27,28 Goode v. Norfolk & Western Railway, No. L-86-335 (Norfolk Circuit Court, Dec. 17, 1986)......... 25,32 Harman v. Forssenius, 380 U.S. iii Pe EN ces Len kneksbdmeneenne 37 Harmon v. fo ttame & Ohio Railroad, 1®.C. Cir. Nee 24,25 Herb's Weldi Inc. v. Gray, 470 U.S. 414 ) Sees eer 25,26 Hullingho strie Inc. v. . Carroll, F. (Sth Cir. 1981), cert. denied, 454 U.S. 1163 (1962). ccccccccces TETeTiTT 27,30,35 vacated and RK cg = Se wy) ee 29 Levins v. its Review Board, “Sar add (ist Cir Nogueira v. New forks N.H. & H.R. Co., 281 U.S. 128 ( PPETTSTTITT 17,18 Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 WENT. ccc .ccoses 15,17,18,19,20,22 paukditedéetbdceuseces 23,28,31, 33, 38 iv P.C. Pfeiffer Co. v. Ford, 444 U. » OP (2979).. Pe 19,20,24 Leeeseebdabe bubeeeesoceceocs 28,36,38 Price v. Nortour & Western Railway, 61 (cm Cis. 198O).ccccccesees 12,13,22 veeeseee epebeeeeseeoeees 23,33,34 Prolerized New Bngiane Co. Vv. penet ts Review Beer :. (ist r. 1980), cert. ; U.S. sae OS eee 28 Southern Pacific Co. v. Jensen De Ges Te Cee Pee eseccsccocecs 14 Turnista v. Chesapeake & Ohio Railway, No. 8690-WS (Newport News Circuit Court, May 21, 1984).......... 31,32 Western Air Lines v. Board of Equalization, 480 U.S. _, 94 Led is 3: , peer 36 Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir.), cert. denied ’ 429 U.S. 868 (1976)........... 29,30 White v. Norfolk & Western Railway, 217 Va. 632, 232 S.E.2d 807, cert. denied, 434 U.S. 860 (29TP) coccccscccccecs 12,13,14,23,28 WYTTTTITILILT TTT TT 29,31,32,33,34 STATUTES ae. eee dads incnnesaneeees 3 SD O.8.0c © GRE OR. Sic ccccccccccsccces 8 SS Ge, De Gildwacaductdsviceds 4,33 Oe a ncn keen bnansaceaes 15 SD Dis. 0 icc ccccdvecsecscccenns 4 33 U.B.C. FB DPAOCA) co ccccescccsccccseces 21 45 U.S.C. § 51 et Seg.........0ees 4,8,11 Va. Code § 8.01-265 (1950 as amended)..........0cccceees 39 vi ee IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1987 CHESAPEAKE AND OHIO RAILWAY COMPANY, Petitioner, v. NANCY J. SCHWALB, Respondent . CHESAPEAKE AND OHIO RAILWAY COMPANY, Petitioner, Vv. WILLIAM McCGLONE, Respondent . PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF VIRGINIA Petitioner, Chesapeake and Ohio Railway Company, !/ respectfully prays that a writ of certiorari be issued to review the judgment and opin- ion of the Supreme Court of Virginia in two cases presenting the identical legal question based on similar facts. 1/ Pursuant to Rule 28.1 petitioner states as follows: Chesapeake and Ohio Railway Co. was merged into CSX Transportation, Inc. on Sept. 2, 1987 and the surviving corporation under the name.of CSX Transportation, Inc. succeeded to the ownership of the property of the Chesapeake and Ohio Railway Co. CSX Transportation, Inc. is a wholly owned subsidiary of CSX Corporation and has the following subsidiaries (except wholly - owned): Alleghany and Western Railroad Co., Augusta and Summerville Railroad Co., Bea- ver Street Tower Co., Central Transfer Railway and Storage Co., Chatham Terminal Co., Clearfield and Mahoning Railway Co., Dayton and Michigan Railroad Co., Dayton and Union Railroad Co., Fruit Growers Express Co., The Home Avenue Railroad Co., North Charleston Terminal Co., Paducah & Illinois Railroad Co., The Baltimore and Cumberland Valley Railroad Extension Co., Winston-Salem Southbound Railway Co., Woodstock & Blocton Railway Co., Richmond - Washington Co. and Richmond, Fredericksburg and Potomac Rail- road Co. OPINIONS BELOW The opinion of the Supreme Court of Virginia in these consolidated cases, which is not yet reported, is reprinted in the appendix at 1A-18A. The judgments, entered March 4, 1988, are reprinted at 35A-38A. The letter opinion of Judge Smith, Circuit Court of the City of Newport News, in Schwalb v. Chesapeake and Ohio _ Railway, is reprinted at 19A-21A. The letter opin- ion of Judge Schlitz, Circuit Court of the City of Portsmouth, in McGlone v. Chesapeake __and Ohio Railway, is reprinted at 22A-30A. The trial court judgments appear at 31A-34A. JURISDICTION The jurisdiction of the Court is invoked under 28 U.S.C. § 1257(3). i? STATUTE INVOLVED These cases involve specifi- cally the application of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 902(3) and 905(a). The text of these subsections is reprinted at 39A-43A. These cases also involve the Federal Employer's Liability Act, 45 U.S.C. § 51 et seq. STATEMENT OF THE CASE Hampton Roads, upon which the Virginia maritime ports of Newport News, Hampton and Norfolk are located, is the largest natural harbor in the world. It is located at the mouth of the Chesapeake Bay and the mouths of the historic James, Nansemond and Elizabeth Rivers. Since 1607, when English colo- nists landed at Cape Henry (which is located in what is now Virginia Beach) and proceeded up the James to settle at Jamestown, Hampton Roads has been a global center of maritime commerce. Vessels destined for or arriving from all major foreign and domestic ports are loaded and unloaded at the numerous ter- minals which handle all types and forms of cargo including the most sophisti- cated forms of containers. All major terminals are sued by rail and truck- ing concerns. The highway system which serves Hampton Roads includes tunnels which cross the Chesapeake Bay, Hampton Roads, Elizabeth River and soon the James River. This area has also been a pri- mary center for our nation's naval defenses. Fort Monroe, in Hampton, is the site of the first fortifications built by English-speaking people in North America and has been continuously occupied since it was built in 1609. Major naval conflicts occurred in Hampton Roads during the Revolutionary War, the War of 1812 and the Civil War. Today it remains the site of the world's greatest concentration of permanent naval installations including the largest naval base in the free world. It is also headquarters for more than twenty major commands including NATO's Supreme Allied Command Atlantic. Since precolonial times Hampton Roads has also been the site of major shipbuilding and repair concerns; bot’. government and private. Norfolk Naval Shipyard in Portsmouth, built in 1767, is the location of the oldest drydock in the Western Hemisphere. It has built some of the most famous ships in our naval history including the first aircraft carrier. Newport News is home for one of the world's leading ship- building and repair companies. There are also numerous’ shipbuilding and repair facilities located throughout this area. On the James River in Newport News, Virginia the petitioner, Chesapeake and Ohio Railway Company, operates a coal loading facility where a mechanical conveyor belt system trans- ports coal from railroad cars’ to colliers berthed at the piers. Peti- tioner employs mechanical laborers, like respondents Schwalb and McGlone, to clean and maintain daily the loading machines and conveyor belts. This case involves the demarcation of “maritime employment" under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq. to the exclusion of the Federal Employer's Liability Act ("FELA"), 45 U.S.C. § 51 et seq. FACTUAL SUMMARY Coal arrives at the Newport News facility in coiizeed hopper cars, which act as temporary storage contain- ers until this cargo is loaded onto the waiting vessels. The coal loading begins when a coal car is released to roll down an incline towards a mechani- cal dumper. From the dumper the coal travels by way of conveyor belts which carry the coal to the loading tower and onto one of two boom belts from which it drops through a chute into the hold of the ship. Barring mechanical problems, the coal moves continuously from the dumper into the ship by machines and gravity. The dumper is attached at each end to trunnion rollers, which permit the mechanical rotation of the suspended coal car above the hopper. As cars are rotated for dumping some coal spills out into the rollers. Similarly, as the coal progresses along the conveyor belts, some coal unavoidably falls below the belts. Consequently, an essential part of the coal loading process is retrieving this stray coal, sometimes called “trash coal" by the workers, from the trunnion rollers and belts to avoid obstruction of the process. Due to the strictures of the relevant trades' bar- gaining agreements, the coal that is retrieved from the machinery by mechani- cal laborers is put back onto the conveyor belt by laborers from another department. [Schwalb T. at 18; McGlone T. at 25) Both Schwalb and McGlone worked as mechanical laborers at the Newport News facility. The primary responsibility of these workers was to keep the spilled coal from clogging the trunnion rollers or impeding the prog- ress of the belts. {[Schwalb T. at 8; McGlone T. at 15] On the day of his accident, respondent McGlone reported to the dumper to remove an accumulation of coal from between the belts and the ground. {[McGlone T. at 19-20} McGlone was injured while using an air hose to blow the -eoal from beneath the moving conveyor belt. On the day of her acci- dent,*-respondent Schwalb was reporting to the dumper area to perform a thorough 10 cleaning of the trunnion rollers, since loading had just ‘stopped. {[Schwalb T. at 27} Schwalb's injury resulted from a fall on the walkway between the hoppers under the dumpers. Both accidents occurred within 300 feet of the water's edge. [McGlone T. at 30; Schwalb T. at 16, 20) RAISING THE FEDERAL QUESTION McGlone and Schwalb, in sepa- rate actions brought in the circuit courts for the cities of Portsmouth and Newport News respectively, sought dam- ages for their injuries under the FELA, 45 U.S.C. § 51 et seg. Petitioner entered a plea of special jurisdiction in each action, contending that the court lacked jurisdiction because the plaintiff's sole and exclusive remedy was under the LHWCA. After evidentiary ll hearings, each trial court sustained the plea and dismissed the FELA action. The single issue decided in each case wes whether the dajered employee met the LHWCA status test. Acknowledging the "liberal interpretations expressed in decisions by the United States Supreme Court,” Judge Smith in the Schwalb case had “no difficulty in determining that the plaintiff's remedy is under the LHWCA." 119A, 21A. Judge Schlitz was particularly troubled by the conflict between the Fourth Circuit Court of Appeals decision, Price v. Norfolk & Western Railway, 618 F.2d 1059 (4th Cir. 1980), and an earlier state court deci- sion, White v. Norfolk & Western Rail- way, 217 Va. 832, 232 S.E.2d 807, cert. denied, 434 U.S. 860 (1977). Noting that “White stands alone in contrast to 12 the federal decisions . . . which have declined to follow White and have dis- agreed with its results," Judge Schlitz chose to follow the federal interpreta- tion of federal law, which placed McGlone's action within the exclusive confines of the LHWCA. See his opinion at 22A, 28A-30A. McGlone and Schwalb appealed these rulings to the Supreme Court of Virginia. The sole issue considered by the Supreme Court of Virginia on appeal was whether McGlone and Schwalb were statutory employees as defined by the LHWCA. Declining t opportunity to adopt the federal courts\ interpretation of the LHWCA status teét and specifi- cally rejecting the federai precedent established in Price, the Supreme Court of Virginia reaffirmed its 1977 ruling 13 in White, reversed the judgments dis- missing the FELA actions, and remanded the cases for trials on the merits. Congress in the early part of the century attempted unsuccessiully to have the states provide coverage for workers on navigable waters who were injured. In 1917, the Court held that states could not constitutionally pro- vide coverage except in rare circum- stances (which became known as the “mar- itime but local" exception). Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). In 1927, the LHWCA was adopted to provide federal compensation for these maritime workers not otherwise covered by various schemes. The origi- nal Act provided for coverage if five conditions were met: (1) employee could 14 not be a master of vessel or a member of a crew of a vessel or a person hired by the vessel to load or unload; (2) an “injury” must occur; (3) employer must be a “maritime employer"; (4) injury must occur on navigable waters (includ- ing a drydock); and (5) injury must not be compensable under a state compensa- tion scheme. Director, OWCP v. Perini North River Assoc., 459 U.S. 297, 306-07 (1983). The last condition proved unworkable and in 1972 Congress amended the Act and the requirements of cover- age. The 1972 enactment has been con- sistently interpreted to require basi- cally a two part inquiry: situs and status. Northeast Marine Terminal Co. v. Caputo, 442 U.S. 249, 264-65 (1977). The requisite situs is as defined in 33 U.S.C.§ 902(4) and was a legislative 15 rz] expansion landward of what had been known as the “Jensen line” (a/k/a shore- line). In this matter there is no dis- pute that the injury occurred on a mari- time situs as defined by the Act. This Court has prescribed judicial standards, consistent with the legisla- tive intent of the 1972 amendments, for determining whether a terminal worker is engaged in maritime employment (the “status” test) for purposes of the LHWCA. During the past decade, the lower federal courts have contributed additional insightful analysis while applying the status test in a variety of factual settings. It is too late in the evoluticn of the LHWCA status test for the Supreme Court of Virginia to have misapprehended the principles approved by this Court. By denying LHWCA status 16 to McGlone and Schwalb, injured while engaged in work that is an integral part of the coal loading process, the state court has obviously repudiated control- ling federal precedent. Such unsanctioned autonomy imperils the advancement of the single, uniform standard of coverage envisioned by Con- gress and warrants intervention by this Court. I. lone hwalb are maritime employees Determination of a worker's status as a maritime employee within the terms of the LHWCA is controlled by principles established in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977). The Court has recognized that railroad employees may be covered under the Act, Nogueira v. New York N.H. 17 & H.R., Co., 281 U.S. 128, 132 (1930), and also that the FELA can not apply where the LHWCA provides coverage, id. See also Pennsylvania R. Co. Vv. O'Rourke, 344 U.S. 334 (1952). Congress has seen fit to amend and change the Act numerous times as a result of judicial decisions, however, it has never excluded railroad employees from cover- age despite a volume of case law in that vein. In Caputo, the Court found that Blundo, who monitored the stripping of cargo from unloaded containers, was a maritime employee because his job was “an integral part of the unloading pro- cess." Id. at 271. By finding coverage for Blundo, who was performing essen- tially clerical duties at a shoreside loading facility, the Court emphasized that the critical question is the 18 purpose of the work, not the type of work. The Caputo Court also acknowl- edged that the expansiveness of the 1972 Amendments requires a corresponding expansive reading of the Act by the judiciary. Id. at 268. The Court reaf- firmed this approach to the LHWCA status test in P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979). Again focusing on the nature of a worker's general job respon- sibilities and its relation to the shiploading process, the Pfeiffer Court ruled that two pier workers were mari- time employees because they were "engaged in intermediate steps of moving cargo between ship and land transporta- tion." Id. at 83. Observing that union rules can fragment the loading process into several discrete jobs, the Court ruled that maritime status would not be 19 defeated because a worker functioned in only a fraction of the sequence: A worker responsible for some portion of that [cargo moving] activity is as much an inte- gra Da of the process of loading or unloading a ship as a person who participates in the entire process. Id. at 82-83. The Pfeiffer Court stressed that extending LHWCA coverage to all workers involved in a portion of the cargo moving process would best effectuate the congressional goal of "a simple, uniform standard of coverage.” Id. at 83. More recently, in Director, OWCP v. Perini North River Assoc., 459 U.S. 297 (1983), the Court had an oppor- tunity to comment on the Caputo and Pfeiffer cases. The Perini Court clari- fied that the 1972 amendments intended to cover all workers previously ~overed 20 when injured on navigable waters. 459 U.S. at 315-16. The Court noting it "had no occasion" to determine all the possible activities which might be cov- ered on the “expanded landward situs", 459 U.S. at 318, n.27., nevertheless acknowledged that the Act was to be “liberally construed *2/ and that the 1972 amendments intended to “extend” coverage and protect “additional” work- ers, 459 U.S. at 315-16 (quoting legis- lative history). The Court of Appeals for the Fourth Circuit has held that an employee whose responsibilities include maintain- ing and repairing equipment and struc- tures used in loading and unloading 2/ 33 U.S.C. 920(a) provides a legislative presumption that any claim under the LHWCA is within the provisions of the Act. 21 vessels is engaged in maritime employ- ment within the terms of the LHWCA. In Price v. Norfolk & Western Railway, 618 F.2d 1059 (4th Cir. 1980), the court found that an employee who was injured while painting a tower supporting the conveyor belt system that transported grain to the holds of nearby vessels was a maritime employee required to seek his remedy under the LHWCA. The Price court's finding followed an analysis of the general nature of the plaintiff's job, as required under Caputo. Id. at 1060-61. - To reach the conclusion that this worker was é& maritime employee, the panel reasoned that: (1) the equipment being main- tained by the claimant was essential to the loading and unloading of vessels at the port; and (2) the maintenance and repair of longshoring 22 machinery and equipment is an essential to the movement of maritime cargo as the actual load- ing anty unloading of ships. | Id. at 1061. In Price the Fourth Cir- cuit expressly disagreed with the Vir- ginia Supreme Court's pre-Caputo deci- sion in White v. Norfolk & Western Rail- way, supra. | The Price court relied on its earlier decision, Newport News Ship- building & Dry Dock Co. .v. Graham, 573 F.2d 167 (4th Cir.), cert. denied, 439 U.S. 979 (1978), which held that a mechanic injured while oiling shipbuild- ing machinery had the status of a mari- time employee. Both Price and Graham found language persuasive from a Bene- fits Review Board decision that stated: Merely because a waterfront mechanic is not directly 23 involved in the actual loading or unloading of cargo does not cemove him from the coverage of the amended Act. The main- tenance and repair of long- shoring machinery and equip- ment is essential to the move- ment of maritime serge and, thus, such an oyee's duties are included in the broad concept of maritime employment. Bradshaw _v. McCarthy, 3 BRBS 195, 198 (1976) (emphasis supplied), petition for review denied, 547 F.2d 1161 (3d Cir. 1977). In Harmon v. Baltimore & Ohio Railroad, 741 F.2d 1398 (D.C. Cir. 1984), the Court of Appeals for the D. C. Circuit reached the same conclusion with regard to a railroad carpenter who was injured while repairing a hopper through which coal passes during the loading process. Adopting the Pfeiffer standard of coverage for employees 24 "engaged in intermediate steps of moving cargo,” the Harmon court reasoned that, since coal-loading equipment is essen- tial to the movement of maritime cargo from railcars to ships, “the repair and maintenance of that equipment must also be considered as an integral part in the loading and unloading of ships.” 741 F.2d at 1403-04.?/ Although the Court has never specifically addressed the issue of whether such employees are covered it has acknowledged their significance in dicta. In Herb's Welding, Inc., v. Gray, 470 U.S. 406 (1985) the Court refused to extend LHWCA coverage to a 3/ The Virginia Supreme Court in Goode v. Norfolk & Western Railway (Norfolk Circuit Court, Nov. 13, 1986), discussed infra at note 4 and accompanying text, dealt with a factual sit- uation almost identical to Harmon. 25 welder working on a fixed off-shore drilling platform. They did not specifi- cally reach the issue of situs but noted that the only maritime situs connection this worker had was the fact he may have had to take a boat to get to and from work. 470 U.S. at 427, n. 13. The Court felt the platform was no different than an island. 470 U.S. at 421-22. In language important to this case the Court nevertheless found that the employee's “work had nothing to do with the loading or unloading process, nor {was} there any indication he was even employed in the maintenance of equipment used in such tasks.” 470 U.S. at 425. Other circuits have similarly applied the integral function test in determining that workers who maintain or repair equipment or structures essential 26 to loading vessels are maritime employ- ees for LHWCA purposes. Illustrative cases include Sea-Land Services, Inc. v. Director, Office of Workers' Compensa- tion Programs, 685 F.2d 1121, 1123 (9th Cir. 1982) (repair and maintenance of equipment necessary to loading ships integral to process, thus “maritime employment" for LHWCA); Hullinghorst Industries, Inc. v. Carroll, 650 F.2d 750, 755 (Sth Cir. 1981) (maintenance and repair of longshoring equipment and facilities essential and indispensable step in shiploading process), cert. denied, 454 U.S. 1163. (1982); Garvey Grain Co. v. Director, Office of Work- ers' Compensation Programs, 639 F.2d 366, 370 (7th Cir. 1981) (repair and general maintenance of conveyors and other loading equipment integral part of 27 loading process, conferring LHWCA status on worker performing these tasks); Prolerized New England Co. v. Benefits Review Board, 637 F.2d 30, 37 (lst Cir. 1980) (repair and maintenance of inte- grated shiploading equipment qualifies as maritime employment for LHWCA), cert. denied, 452 U.S. 938 (1981). In 1977, without the guidance of Caputo and Pfeiffer, the Supreme Court of Virginia decided that a rail- road worker who maintained and repaired loading equipment at the Norfolk coal piers was “not directly involved in the loading of coal." White v. Norfolk & Western Railway, supra, 322 S.E.2d at 833 (emphasis in original). Relying on the fact that plaintiff»was “not actu- a ally handling any cargo, either manually or mechanically,” 217 Va. at 833, and 28 borrowing language from Weyerhaeuser Co. v. Gilmore, 528 F.2d 957, 961 (9th Cir.) ("realistically significant relationship to ‘traditional maritime activity'"), cert. denied, 429 U.S. 868 (1976) and Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533, 539 (Sth Cir. 1976) ("directly involved"), vacated and remanded, 433 U.S. 904 (1977), the White court held that the plaintiff was not a maritime employee covered by the LHWCA. 217 Va. at 833. See id. (plaintiff “at least one step removed from a realisti- cally significant relationship” and from “direct involvement” in shiploading). In the decade following White, not one reported court opinion has acknowledged White as persuasive authority. Both the Ninth and Fifth Circuits, relied on by the White court, have found workers who 29 y repair and maintain shiploading equip- ment within the scope of the LHWCA. See, e.g., Sea-Land Services, Inc. and Hullinghorst Industries, Inc., both supra. Furthermore, the Weyerhaeuser opinion is unsubstantial authority for analyzing the status of workers assigned to a commercial pier: the Weyerhaeuser plaintiff who was denied maritime status was a pondman injured while working on a sawmill log pond, not a repairman main- taining shiploading equipment beside a deep water pier. See 528 F.2d at 961 (pondman's work not maritime employment in traditional sense; no "realistically significant relationship” to traditional maritime activity involving navigation and commerce on navigable waters). As pointed out in Boudreaux v. American Workover, Inc., 680 F.2d 1034, 1049 (5th 30 Cir. 1982), Weyerhaeuser formulated its “significant relationship” status test from Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972), which addressed the question of federal admiralty jurisdiction in claims arising from airplane accidents over navigable ‘ waters. The holding in Executive Jet does not speak persuasively to the intended reach of federal jurisdiction in the context of maritime employment compensation. Given the tenuous underpin- nings of White, and the subsequent clar- ification of the LHWCA status test in the federal fora, the lower courts in Virginia implied that Chey were no longer bound by the pre-Caputo pro- nouncement of the state's highest court. See, e.g., Letter Opinion by Judge 31 Stephens in Turnista v. Chesapeake & Ohio Railway (Newport News Circuit Court May 21, 1984) and Letter Opinion by Judge Waters in Goode v. Norfolk & West- ern Railway (Norfolk Circuit Court, Nov. / 13, 1986). Nevertheless the Supreme Court of Virginia accepted review of Schwalb and McGlone and used these cases to reaffirm the discredited White ratio- nale. In its March 4, 1988 opinion, the Schwalb-McGlone court opined that Con- gress did not intend the 1972 amendments to “have such pervasive and preclusive effects” as had been attributed to them 4/ 60A-75A and 44A-57A respectively. The Goode decision was reviewed on appeal by the Supreme Court of Virginia which, citing its rul- ings in Schwalb and McGlone, reversed the judg- ment and remanded for trial on the merits. 58A-59A. The Norfolk and Western Railway will file its petition for a writ of certiorari with respect to the Goode case next month. The Turnista judgment was not appealed. 32 by, for example, the Fourth Circuit Court of Appeals in its Price opinion. See 12A. Rejecting again the "“"func- tional relationship” formula that has, since White, been the linchpin of the LHWCA status test, the Supreme Court of Virginia regressed to an ée illogical demarcation of coverage (or exclusion) based upon classification or labeling of skills where “workers who perform 5/ purely clerical tasks" are indistin- guishable from workers who perform 5/ The court's passing reference to clerks is unfortunate and unsupported by the controlling case law. The Court has recognized perf« ‘mance of “clerical” duties does not render LHWCA cov- erage inapplicable. Blundo, in Caputo, was in reality a pier clerk. See also Levins v. Bene- fits Review Board, 724 F.2d 4 (lst Cir. 1984) (imprope. *o assume categorically that clerks are not en.itled to coverage.) Congress has also specifically excluded some clerical emp) oy- ees from coverage who are covered by state * workmen's compensation statutes. 33 U.S.C. § 902(3) reprinted at 39A. 33 maintenance tasks "such as painting” (a clear reference to Price). 16A-17A. The court recast its status test in terms of an "essential elements” stand- ard, which it described as “more nearly akin to the ‘significant relationship’ standard [it] adopted in White than the ‘overall process' construction invoked by the defendant.” 16A. Thus clothed in confusing semantics, the Schwalb-McGlone court prestidigitated pierside maintenance laborers, who manu- ally moved coal during the loading pro- cess, into non-covered workers who “perform([ed) purely housekeeping and janitorial tasks." 17A. The Supreme Court of Virginia seems to ignore that all forms of work, regardless of loca- tion or employer, have types of skills which may be universal. A ship 34 carpenter may have the same basic train- ing and expertise as a residential car- penter. A longshoreman may employ the same physical tools as those used by a loading dock employee. The critical inquiry is the purpose of the work: to build ships not houses; to move maritime cargo not truck stock. See Hullinghorst Industries, Inc. v. Carroll, supra, 650 F.2d at 756 ("nonmaritime” skills applied to maritime project are maritime). Without apology, the Schwalb- ° McGlone court has ignored a decade of case law and it's decision to deny Schwalb and McGlone the status of mari- time employees is untenable and must be corrected. Il. The Schwalb-McGlone decision offends the congressional goal of a uniform standard 35 The Schwalb-McGlone court, in disdaining the federal courts’ uniform interpretation of the LHWCA status test, has simply ignored the congressional mandate to apply a “simple, uniform standard of coverage," P.C. Pfeiffer Co. cv v. Ford, 444 U.S. at 83. Decisions of the United States Supreme Court are final and authoritative with respect to the construction and application of fed- eral statutes. Absent clear words to the contrary construction of the lan- guage in a federal statute is a federal question. Western Air Lines v. Board of Equalization, 480 U.S. _, 94 L.Ed.2d 112, 119 (1987). A state court is not free to follow its own dictates or prec- edent, in the face of contrary federal authority on a federal question. [Rjecognition of the role of state courts as the _ final 36 or, expositors of state law implies no disregard for the primacy of the federal judici- ary in deciding questions of federal law. England v. Louisiana Medical Examiners, 375 U.S. 411, 415-16 (1964). See also Harman v. Forssenius, 380 U.S. 528 (1965). As this Court admonished in an earlier demonstration of independence by the Supreme Court of Virginia: [Tyhe vice of this position is that, in following its own prior decision, the court ignored the decision of this court to the contrary. This lawfully it could not do, the question, as we have shown, being a federal question to be determined by the application of federal law. The determi- nation by this court of that question is binding upon the state courts, and must be fol- lowed, any state law, deci- sion, or rule to the contrary notwithstanding. * Chesapeake & Ohio Railway v. Martin, 283 U.S. 209, 220-221 (1931). 37 The mischief created by this aberrant state court decision will not be limited to the parties in these actions. The judges in Virginia's trial courts, as well as those Federal admin- istrative boards located in Virginia, must now immediately confront’ the dilemma of whether to apply Caputo, Pfeiffer and their progeny, or bow to stare decisis and “blindly follow” the Schwalb-McGlone decision. See Opinion by Chief Judge Schlitz, at 28A. | An indirect consequence of the Schwalb-McGlone decision will be “forum shopping" by, for example, pierside railroad workers in other states who seek to avoid compensation under the LHWCA. Due to the vagaries of Virginia's venue statue, a resident of any state can bring an action in 38 Virginia against his or her employer doing business in the state of Virginia; the action is not vulnerable to dis- missal or transfer even if the plaintiff and) all witnesses reside in another state and the accident occurred outside Virginia. Va. Code § 8.01-265 (1950 as 6/ amended) . If the Schwalb-McGlone decision remains viable, there is little doubt that Virginia courts will soon teem with foreign FELA actions, brought by maritime plaintiffs escaping federal and state courts elsewhere that adhere to the federal standard. This is hardly the result Congress intended when it amended the LHWCA to establish a simple, 6/ The Supreme Court of Virginia has recently agreed to hear argument on the constitutionality of this statute. Seaboard Systems Railroad, Inc. v. Caldwell, Record No. 870490 (Va. Sup. Ct.) (presently pending argument). 39 uniform standard of coverage. To allow the Schwalb-McGlone decision to stand would frustrate the spirit and purpose of the LHWCA, create a favored class of maritime employees, and perpetuate a dichotomous approach to the LHWCA status test. CONCLUSION : For the above reasons, peti- tioner Chesapeake & Ohio Railway Company respectfully submits that this petition should be granted and that the judgments by the Supreme Court of Virginia should be reversed. Respectfully submitted, CHESAPEAKE & OHIO RAILWAY COMPANY By | an as 40 William T. Prince John Y- Richardson, Jr. Joan F. Martin Williams, Worrell, Kelly & Greer, P.C. 600 Crestar Bank Building Norfolk, Virginia 23510 CERTIFICATE OF SERVICE ‘1 hereby certify that I have served three (3) copies of this Petition for a Writ of Certiorari upon the Respondent, Nancy J. Schwalb at the office of her counsel of record, C. Gerard Thompson, Commerce Bank .uilding, 500 Crawford Street, P. 0. Box 1158, Portsmouth, Va. 23705, and upon the Respondent, William McGlone, at the office of his counsel of record, C. Gerard Thompson, Commerce Bank Building, 500 Crawford Street, P. 0. Box 1158, Portsmouth, Va. 23705, pursuant to the requirements of Rules 28 and 33 of the Rules of the Supreme Court of the United 41 States, by depositing same in a United States mail box, with first class post- age prepaid, addressed to Respondents as set forth above, on or before June 2, 1988. — I further certify that I am a * member of this Court, and that all par- ties required to be served have been served on or before June 2, 1988. William T. Prince Of Counsel for Petitioner 42 —Fa APPENDIX APPENDIX INDEX SUBJECT 1. Opinion of Supreme Court of Virginia, dated March 4, 1988, in cases of Schwalb and McGlone v. Chesapeake & Ohio Railway Company.......... 2. Opinion of Judge Douglas M. Smith of The Circuit Court of the City of Newport News, Virginia, dated August 8, 1984, in case of Schwalb v. Chesapeake & Ohio Railway COMPANY... ccccceccesessesesees 3. Opinion of Judge Lester E. Schlitz of the Circuit Court of Portsmouth, Virginia, dated May 29, 1985, in case of McGlone v. Chesapeake & Ohio Railway Company....:..... 4. Order of the Circuit Court of the City of Newport News, Virginia, dated August 22, 1984, dismissing case of Schwalb v. Chesapeake & Ohio Railway Company......+++++ee6. 5. Order of the Circuit Court of the City of Portsmouth, Virginia, dated June 13, 1985, dismissing case of McGlone v. Chesapeake & Ohio Railway Company.......-.+++++6-. PAGE SUBJECT PAGE 6. Order of Supreme Court of Virginia, dated March 4, 1988, reversing and remand- ing the case of Schwalb v. Chesapeake & Ohio Railway COMPANY... 1. ccc c cece eee eeeeeneees 35A 7. Order of Supreme Court of Virginia, dated March 4, 1988, reversing and remand- ing the case of McGlone v. Chesapeake and Ohio Railway Company..... Coo eeeeeesereeeseses 37A 8. 33 U.S.C. § GO2Z(3). wc cence neccnes 39A 9. 33 U.S.C. § GOS(A) ween cccccues 42A 10. Opinion of the late Judge Charles R. Waters, II of the Circuit Court of the City of Norfolk, Virginia, dated November 13, 1986, in the case of Goode v. Norfolk & Western Railway Company......... 44A ll. Order of Supreme Court of Virginia, dated April 22, 1988, reversing and remand- ing the case of Goode v. Norfolk & Western Railway ee) ee 58A 12. Opinion of Judge J. Warren Stephens of the Circuit Court of the City of Newport News, Virginia, dated May 21, 1984, in the case of ii Turnista v. Chesapeake & Ohio Railway Company. . iii PRESENT: ALL THE JUSTICES OPINION BY JUSTICE RICHARD H. POFF March 4, 1988 Record No. 841743 NANCY J. SCHWALB Vv. THE CHESAPEAKE AND OHIO RAILWAY COMPANY FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Douglas M. Smith, Judge Record No. 850728 WILLIAM MCGLONE Vv. THE CHESAPEAKE AND OHTO RAILWAY COMPANY FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Lester E. Schlitz, Judge lA In this appeal, we review two judg- ments entered in separate actions, each sustaining a plea to the jurisdiction. Claiming damages for personal injuries, each plaintiff had invoked the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60 (1982) (FELA). In each appeal, the sole issue is whether the plaintiff was a statutory employee as defined in the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-956 (1982) (LHWCA or the Act). If so, the parties agree that the remedy provided by the Act is exclusive, see 33 U.S.C. § 905(a) (1982), and that we should affirm the judgments. The two plaintiffs are Nancy J. Schwalb and William C. McGlone. Each was an employee of the defendant, The Chesapeake and Ohio Railway Company. 2A Although the accidents resulting in the plaintiffs’ injuries occurred at differ- ent times, the facts in the two cases, insofar as relevant to the issue common to the two appeals, are substantially identical. Each plaintiff was employed as a laborer to perform housekeeping and janitorial services in the offices, shops, bathrooms, and other places situ- ated on the defendant's pier and adja- cent property in Newport News. This property is equipped with facilities designed to transfer coal from railroad cars to ships moored at the pier. A "dumper", activated by ‘trunnion roll- ers", upends railroad cars and dumps the coal into “hoppers”. The coal falls from the hoppers onto conveyor belts that carry it to a “loading tower" from 3A which it is poured into the hold of a ship. Coal spilled on the trunnion roll- ers can cause the dumpers to malfunc- tion. Coal falling and accumulating beneath the conveyor belts eventually may damage the belts and interrupt the loading process. As part of the duties assigned by the defendant, the plain- tiffs were required to clear away coal spilled in these areas. Because they were not members of a longshoremen's union, the plaintitfs were forbidden to load that coal onto the conveyor belts. The plaintiff McGlone was clearing away coal beneath a conveyor belt at the time he was injured. The plaintiff Schwalb was injured in a fall as she was walking along a “catwalk” approaching the trun- nion rollers. 4A ; 1 7 { 4 ; The parties in both cases agree that the defendant railroad is a statu- tory employer as defined in the LHWCA, that is, an employer “any of whose employees are employed in maritime employment, in whole or in part”. 33 U.S.C. § 902(4) (1982). The plaintiffs’ contention is that the trial courts erred in ruling that they were statutory employees as defined in the Act. The plaintiffs rely upon our decision in White v. N. and W. Ry. Co., 217 Va. 823, 232 S.E.2d 807, cert. denied, 434 U.S. 860 (1977). Reviewing a judgment based on such a ruling, we applied the Act as amended in 1972, Pub. L. No. 92-576, 86 Stat. 1251, to the facts in White. First enacted in 1927, Pub. L. No. 69-803, 44 Stat. (part 2) 1424, the LHWCA was the first successful 5A congressional response to the Supreme Court's decision in Southern Pacific Co. v. Jensen, 244 U:S. 205 (1917). There, the Court had ruled that a state worker's compensation act could not con- stitutionally apply to a_ longshoreman injured in an accident that had occurred on a gangplank between a pier and a ship. Initially, Congress sought to authorize states to extend their work- ers' compensation statutes seaward of the Jensen line, but the Court held the state statutes to be unconstitutional delegations of congressional power. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920); Washington v. W.C. Dawson & Co., 264 U.S. 219 (1924). Although the federal Act filled a workers’ compensation voic, the LHWCA, as originally enacted, provided coverage 6A only when "disability or death result{ed}) from an injury occurring upon the navigable waters of the United States”. 33 U.S.C. § 903(a) (1927). Federal compensation coverage stopped at the Jensen line; the Act did not apply to a longshoreman injured at work on a pier, even though engaged in traditional longshoremen's functions. Nacirema Operating Co. v. Johnson, 396 U.S. 212, 218-20 (1969). The 1972 amendments to the LHWCA moved the Jensen line landward to include areas adjoining navigable waters and “customarily used by an employer in loading, unloading, repairing, or build- ing a vessel”. 33 U.S.C. § 903(a) (1982). Yet, Congress did not extend federal coverage to every worker injured in such areas, for it added an amendment 7A defining a covered employee as “any per- son engaged in maritime employment.” 33 U.S.C. § 902(3) (1982). The effect of the two amendments was to create a two-pronged coverage test -- the situs of the injury and the status of the injured worker. In White, a railroad employee filed a claim under FELA. He had been injured on a situs covered by the LHWCA, and "the critical question presented (was) whether plaintiff was a ‘person engaged in maritime employment’ and thus an ‘employee’ within the meaning of the Act.” 217 Va. at 827, 232 S.E.2d at 809. White was hired as an electrician to maintain and repair the electrical equipment used at a pier to dump coal from railroad cars, to move conveyor belts transporting the coal, and to load BA L}. the coal into ships. Although White did not operate any of the equipment employed in the loading process, the railroad argued that “all of his activ- ity was ‘functionally related' to the loading of coal on ships", id. at 831, 232 S.E.2d at 812, and that he was, therefore, an employee engaged in mari- time employment and, as such, was lim- ited to the remedy provided by the LHWCA. In White, the railroad had borrowed the “functional relationship” formula from the opinion in Sea-Land Service, Inc. v. Director, Office of Workers’ Compensation, 540 F.2d 629, 637-38 (3d Cir. 1976). Considering the history of the Act and construing the congressional intent underlying the 1972 amendments, we rejected that formula. We adopted, 9A instead, the standard articulated in Weyerhaeuser Co. v. Gilmore, 528 F.2d 957, 961 (9th Cir.), cert. denied, 429 U.S. 868 (1976)?/;: {[Fjor an injured employee to be eligible for federal com- pensation under [the Act], his own work and employment, as distinguished from his employer's diversified opera- tions, including maritime, must have a realistically sig- nificant relationship to ‘tra- ditional maritime activity 1/ The Supreme Court disapproved application of a significant relation- ship standard tu determine the status of the worker in Director, OWCP v. Perini North River Associates, 459 U.S. 297, 302 n.8, 318-19 (1983). The Court did not, however, disapprove a significant relationship standard as a concept when applied, as in Gilmore, to post-1972 coverage landward of the Jensen line. As noted by the majority in Herb's Welding, Inc. v. Gray, 470 U.S. 414, 424 n.10 (1985) (quoting Perini, 459 U.S. at 299, 324 n.34) the decision in Perini "was carefully limited to coverage of an employee ‘injured while performing his job upon actual navigable waters’... [and] was, ‘of course,’ limited to work- ers covered prior to 1972". 10A involving navigation and com- merce on navigable waters,’ with the further condition that the injury producing the disability occurred on naviga- ble waters or adjoining areas as defined in § 903. Applying the Gilmore standard, we said that “we do not believe plaintiff's duties .. . had a realistically signif- icant relationship to .the loading of cargo on ships", that “plaintiff was not a covered ‘employee’ within the meaning of the Act", and that “the order dis- missing plaintiff's FELA action will be reversed". 217 Va. at 832-33, 232 S.E.2d at 813. In the appeals at bar, the defen- dant railroad relies on Price v. Norfolk & W. Ry. Co., 618 F.2d 1059 (4th Cir. 1980). There, the plaintiff in an FELA action was a painter employed by the defendant railroad. He sustained an 11lA injury while painting the support towers of a structure housing a conveyor belt system used in loading grain into the hold of a vessel. The Price court rea- soned that, because "the failure to paint would eventually lead to severe rusting that would halt the entire [loading] process", id. at 1062 n.4, the plaintiff was engaged in maritime employment and, consequently, “was an ‘employee' within the meaning of the LHWCA which provides an exclusive rem- edy", id. at 1062. We cannot agree that Congress intended the 1972 amendments to have such pervasive and preclusive effects. Nor do we agree with the argument advanced by the railroad in these appeals that the Supreme Court implic- itly has overruled our decision in 12A White. On brief, the defendant says that "the U.S. Supreme Court has stated that one is engaged in maritime employ- ment if he is ‘engaged in the overall process of loading and unloading ves- sels' (emphasis supplied).” For this proposition, the defendant cites North- east Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977). The language the defendant quotes from that decision is an abbreviated excerpt lifted from a longer passage, the import of which we construe differently. The injuries at issue in Caputo were sustained during the process of unloading a_e ship. Considering the reports of the congressional committees that initiated the 1972 amendments, the Court concluded that Congress intended to cover those workers involved in the essential 13A | § ' ; | ‘ § elements of unloading a vessel ~- taking cargo out of the hold, moving it away from the ship's side, and carrying it immediately to a storage or holding area ... . [{PJersons who are on the situs but are not engaged in the overall process of loading and unload-. ing vessels are not covered. Thus, employees such as truckdrivers, whose responsi- bility on the waterfront is essentially to pick up or deliver cargo unloaded from or destined for maritime trans- portation are not’ covered. Also excluded are employees who perform purely clerical tasks and are not engaged in the handling of cargo. Id. at 267 (emphasis added). As we con- strue this language, the Court reasoned that, although clerical employees work- ing on a covered situs may have respon- sibilities related to the commercial process, unless they are "engaged in the handling of cargo", they are not "involved in the essential elements ‘of {loading or] unloading a vessel” and, 14A therefore, are not statutory employees for purposes of the LHWCA. Id. We recognize that the Act is reme- dial in purpose and, as the defendant says, that "Caputo requires an expansive view of LHWCA". We note, however, that the Court speaks of covered workers as those “involved in the essential ele- ments of unloading a vessel", id.; as. those “directly involved in the loading or unloading functions", id. at 271 (quoting S. Rep. 1125, 92d Cong., 2d Sess. 13 (1972) and H.R. Rep. 1441, 92d Cong., 2d Sess. 11 (1972)); and as those who “spend at least some of their time in indisputably longshoring operations", id. at 273. Two years following Caputo, the Court said that “workers doing tasks traditionally performed by longshoremen are within the purview of the 1972 Act." 15A GQ P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 82 (1979). And the Supreme Court, recalling the language of Caputo, empha- sized in its most recent analysis of the status test that che pussees of the mar- itime employment requirement was "to cover those workers on the situs who are involved in the essential elements of loading and unloading". Herb's Welding, Inc. v. Gray, 470 U.S. 414, 423 (1985) (emphasis added). We believe the "essential elements” standard is more nearly akin to the “significant relationship" standard we adopted in White than the “overall pro- cess" construction invoked by the defen- dant. In this respect, we see no logi- cal difference between workers “who per- form purely clerical tasks", Caputo, 432 U.S. at 267, and workers who perform 16A purely maintenance tasks, such as paint- ing, or workers who, like the plaintiffs in these appeals, perform purely house- keeping and janitorial tasks. Applying the rule in White, we hold that the plaintiffs were 1 ot statutory employees as defined in the LHWCA. We will reverse the judgments dismissing the plaintiffs' FELA actions and remand the cases for trials on the merits. ?/ 2/ In the Schwalb appeal, the defen- dant argues that the plaintiff “is estopped from denying LHWCA coverage" because she accepted compensation paid under the _ Act. According to the defendant's brief, “[{s)he expresses no agreement to off-set compensation pay- ments previously received against any recovery under FELA and, therefore, dou- ble recovery remains a possibility.” But, in @ memorandum of law filed in the trial court, we find that the plaintiff acknowledged that "any recovery. by Footnote continued on next page. 17A ‘ a Record No. 841743 - Reversed and remanded. Record No. 850728 - Reversed and remanded. Footnote continued from previous page. plaintiff on her FELA claim will be reduced by the amount of LHWCA benefits she may have already received.” A rail- road worker who makes such a concession does not seek a double recovery and is not precluded from pursuing a remedy under FELA. Freeman v. Norfolk and Western Ry. Co., 596 F.2d 1205, 1208 (4th Cir. 1979); accord Caldwell v. Ogden Sea Transport, Inc., 618 F.2d 1037, 1049 (4th Cir. 1980). L8A a) SEVENTH JUDICIAL CIRCUIT OF VIRGINIA Newport News, Virginia 23607 August 8, 1984 Ms. Frances S.P. Li Suite 565 608 2nd Avenue South Minneapolis, Minnesota 55402 Mr. William W. Nexsen Stackhouse, Rowe & Smith P. O. Box 3570 Norfolk, Virginia 23514 Mr. Richard Wright West West, Stein, West & Smith P. O. Box 257 Newport News, Virginia 23607 Re: Nancy J. Schwalb v. The Chesapeake and Ohio Railway Company At Law No.8827 Dear Counsel: You will recall that on June 6, 1984, the Court heard argument on a special plea to jurisdiction in the above captioned cause. This special plea was filed by the defendant C&O, in which they contend that the plaintiff's sole remedy in this cause is under LHWCA 19A and consequently this court lacks juris- diction on the motion for judgment. The Court heard evidence of witnesses, stipulations by counsel, has read the memorandums of law and cases cited therein and am rendering my deci- sion by this letter. The plaintiff and defendant both agree that. to be covered under LHWCA an injured employee must meet both a situs and a status test, both sides agree that the situs test has been met. This leaves as the only question involved whether or not the plaintiff employee is engaged in maritime employ- ment and the Court holds that the plain- tiff Schwalb is so engaged, as her duties were essential to the loading and unloading of coal by conveyor belt to the ships moored at the docks. It is 20A uncontradicted that if the spilled coal was not removed that it could have haulted the process of loading the coal aboard the vessels. With the liberal interpretations expressed in decisions by the United States Supreme Court this Court has no difficulty in determining that the plaintiff's remedy is under the LHWCA. Therefore, the plea to the jurisdiction is sustained and I am requesting Mr. West to draw the appro- priate order, noting plaintiff's excep- tion and objection and having the order endorsed by opposing counsel and return- ing to the Court for entry. Very truly yours, Douglas M. Smith Judge 21A THIRD JUDICIAL CIRCUIT Circuit Court of the City of Portsmouth May 29, 1985 Richard Wright West, Esquire P.O. Box 257 Newport News, Virginia 23607 Russell N. Brahm, III, Esquire P.O. Box 1138 Portsmouth, Virginia 23705-1138 Re: William McGlone v. Chesapeake and Ohio Railway Co. L84-327 Gentlemen: Thank you for your excellent and most exhaustive memoranda. I have reviewed the pleadings, the evidence and the argument of counsel, and I have read the memoranda and all of the cases cited. William McGlone, plaintiff, was injured at Newport News, Virginia, on February 1, 1983, and filed his 22A Motion for Judgment against the Chesapeake and Ohio Railway Company, defendant, on May 31, 1983, under the Federal Employer's Liability Act (FELA), 45 U.S.C. 51, et. seq. Defendant filed a special plea to the jurisdiction on June 24, 1983, on the ground that plaintiff's sole and exclusive remedy upon the matters alleged in the Motion for Judgment is under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. 905(a). A hearing on the special plea was heard by this Court on March 29, 1985, evidence taken and a transcript prepared. It appears from the evidence that plaintiff and employee of the Chesapeake and Ohio Railway Company on the date of the accident was working on the pier as a laborer cleani..g ip coal 23A 4 . enw e Se eee eS ed ’ which had fallen from a cunveyor belt which was being used to load coal onto a ship at the pier. The hopper and con- veyor belt is an extension of the pier. If coal is not removed in the area where the plaintiff was cleaning up, the coal would eventually interfere with the loading operation and bring it to a halt. This work was frequently done by the plaintiff. Plaintiff was injured by the conveyor belt while engaged in this work. The sole action involved here is whether the plaintiff at the time of his injury was working in a maritime capac- ity as defined by the LHWCA. An injured employee must meet both a “situs” and a "status" test in order to be covered under LHWCA. There seems to be no question here that the injured [sic] occurred in a covered 24A situs but we must determine whether plaintiff occupied a status covered under LHWCA. Nogueira v. New York, N.H., and H.R. Company. 281 U.S. 128, (1930). | The Court must resolve a con- flict in the case law between a decision of the Supreme Court of Virginia, White v. Norfolk & Western Railway Co., 217 Va. 823 (1977), cert. denied, 434 U.S. 860 (1977) and Price v. Norfolk & West- ern Railway Company, 618 F2d 105 (1080) [sic], decided by the Fourth Circuit Court of Appeals. In White the court stated at page 832: "Plaintiff was not actually handling any cargo either man- ually or mechanically, as was the case in the decisions principally relied on by N & Ww. Moreover, plaintiff was not manipulating (except to test) any of the controlls of the electrical mechanism, which furnished the power for 25A this automated loading pro- cess. Rather, he was only maintaining the electrical device on the shore and attached to the pier, work which is not the traditional work of a ship's service employee. Plaintiff was at least one. step removed from a realistically significant relationship and from a direct involvement with the loading of vessels. The mere fact that some of the plaintiff's cumulative injury was sus- tained out over the Elizabeth River while he worked inside the electrial rooms of the Pier 6 ship loaders, does not convert his status from that of a railroad electrician to that of a maritime worker." It can thus be seen that the Virginia Supreme Court held that to qualify as an employee under LHWCA the plaintiff must have been directly involved in the loading of coal. Under this ruling plaintiff could not have been held to be an employee under LHWCA. 26A Price decided three years after White holds to the contrary. The Fourth Circuit held that a railway employee who was injured while painting towers used in the loading of ships was an employee under LHWCA. The court held that merely because the employee was not directly involved in the actual loading of ships, this fact did not remove him from coverage under LHWCA because the maintenance of the towers was essential to the movement of maritime cargo and thus the employee was included in the broad concept of mari- time employment. This view has been upheld in many Federal court decisions. See: Newport News Shipbuilding and Drydock Company v. Graham, 573 F2d 167 (4th Cir- cuit), cert. denied, 439 U.S. 979, 99 27A S.Ct. 563 (1978); Northeast Marine Ter- minal Company v. Caputo, 432 U.S. 249, 97 S.Ct. 2348 (1977). It will thus be seen that the Fourth Circuit has adopted a broad con- cept of maritime employment that mainte- nance of maritime cargo loading equip- ment is essential to the loading of cargo and is, therefore, included in the meaning of a person engaged in maritime employment under LHWCA. White stands alone in contrast to the federal decisions which were decided after the decision in White. Should this court blindly fol- low White because it is a State court decision, under the principle of stare decises? To do so would be to interpret a Federal law contrary to all of the decisions of the Federal courts which 28A have declined to follow White and have disagreed with its results. It is the Court's belief that this conflict between the Supreme Court of Virginia and the Fourth Circuit Court of Appeals must be resolved in favor of the latter decisions of the federal courts and this Court reluctantly and respectfully declines to follow White since it feels the decision in Price is now control- ling. The Court is of the opinion that the plaintiff in this case, unde: the facts presented, was engaged in activity which made him an employee under the meaning of LHWCA, and that he is precluded from maintaining a FELA action in this case. Defendant's special plea to the jurisdiction of this Court is 29A sustained, and the plaintiff's Motion for Judgment will be dismissed from the docket. Counsel for the defendant will prepare and circulate a sketch order in accordance with this letter and for pre- sentment to the Court for entry. Sincerely yours, Lester E. Schlitz Chief Judge 30A VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF NEWPORT NEWS NANCY J. SCHWALB, Plaintiff, vs. | Law No. 8827-S THE CHESAPEAKE AND OHIO RAILWAY COMPANY, A CORPORATION, Defendant. ORDER On June 6, 1984 came the par- ties and their attorneys, and the Court heard evidence and the argument of coun- sel upon the defendant's Special Plea To Jurisdiction. And having further con- sidered the memoranda of the parties and having etebatie considered the same, the defendant's Special Plea to Jurisdiction is SUSTAINED for the reasons more fully 31A set forth in the Court's letter opinion , of August 8, 1984. Accordingly, this action is DISMISSED with prejudice to the plain- tiff. DATE : ENTER: 8-22-84 - /s/ D.M. Smith Judge I ask for this: /s/Richard W. West Counsel for Deferdant Seen and exception noted: /s/William W. Nexsen Counsel for Plaintiff 32A VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF PORTSMOUTH ON THE 13TH DAY OF JUNE, 1985. WILLIAM C. McGLONE, Plaintiff, Vv. LAW NO.: L-83-327 THE CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant. ORDER On March 29, 1985 came the parties and their respective attorneys, and the Court heard evidence and the argument of counsel upon the defendant's Special Plea to Jurisdiction. And having further considered the Transcript of the hearing conducted on March 29, 1985, the memoranda of the parties, and having maturely considered the same, the 33A defendant's Special Plea to Jurisdiction is SUSTAINED for the reasons more fully set forth in the Court's letter opinion of May 29, 1985. Accordingly, this action is DISMISSED with prejudice to the plain- tiff. It is further ORDERED that the Transcipt of the evidentiary hearing be made part of the Record in this case pursuant to Rule 5:9 of the Rules of Court. DATE: ENTER: 6-13-85 /s/ W.H.O. Judge I ask for this: /s/Richard W. West Counsel for Defendan Seen and exception noted: /s/Russell N. Brahm lili Counsel for Plaintiff 34A Filed March 4, 1988 SUPREME COURT OF VIRGINIA Record No. 841743 Circuit Court No. L-8827-S Nancy J. Schwalb, Appellant, against The Chesapeake and Ohio Railway Company, Appellee. Upon an appeal from a judgment rendered by the Circuit Court of the City of Newport News on the 22nd day of August, 1984. For reasons stated in writing and filed with the record, the Court is of opinion that the judgment appealed from is erroneous. Accordingly, the judgment is reversed and annulled, and the case is remanded to the said circuit court for trial on the merits. 35A This order shall be certified to the said circuit court. A Copy, Teste: Clerk 36A Filed March 4, 1988 SUPREME COURT OF VIRGINIA Record No. 850728 Circuit Court No. L-83-327 William McGlone, Appellant, against The Chesapeake and Ohio Railway Company, Appellee. Upon an appeal from a judgment rendered by the Circuit Court of the City of Portsmouth on the 13th day of June, 1985. For reasons stated in writing and filed with the record, the Court is of opinion that the judgment appealed from is erroneous. Accordingly, the judgment is reversed and annulled, and the case is remanded to the said circuit cout for trial on the merits. 37A This order shall be certified to the said circuit court. A copy, Teste: Clerk 33 U.S.C. § 902. Definitions When used in this chapter-- (3) The term “employee” means ariy person engaged in maritime employment, including any longshoreman or other per- son engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship- breaker, but such term does not include (A) individuals employed exclu- sively to perform office clerical, secretarial, security, or data pro- cessing work; (B) individuals employed by a club, camp, recreational operation, restaurant, museum, or retail out- let; (C) individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance) ; (D) individuals who (i) are employed by suppliers, transport- ers, Or vendors, (ii) are temporar- ily doing business on the premises of an employer described in para- graph (4), and (iii) are not engaged in work normally performed by employees of that employer under this chapter; (E) aquaculture workers; (F) individuals employed to build, repair, or dismantle any 40A recreational vessel under sixty-five feet in length; (G) a master or member of a crew of any vessel; or (H) any person engaged by a master to load or unload or repair any small vessel under eighteen tons net; if individuals described in clauses (A) through (F) are subject to coverage under a State workers’ compensation law. 41A 33 U.S.C. § 905. Exclusiveness of liabiiity (a) Employer liability; failure of employer to secure payment of compensation The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, hus- band or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of com- pensation as required by this chapter, an injured employee, or his legal repre- sentative in case death results from the injury, may elect to claim compensation under the chapter, or to maintain an 42A action at law or in admiralty for dam- ages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory neg- _ ligence of the employee. For puxfeses of this subsection, a contractor shall be deemed the employer of a eubcontrector 's employees only if the subcontractor fails to secure the payment of compensa- tion as required by section 904 of this title. FOURTH JUDICIAL CIRCUIT OF VIRGINIA CIRCUIT COURT OF THE CITY OF NORFOLK November 13, 1986 Eddie W. Wilson, Esquire 2200 Colonial Avenue, Suite 12-B P. O. Box 11168 Norfolk, Virginia 23517 John Y. Richardson, Jr., Esquire Williams, Worrell, Kelly & Greer, P.C. 600 United Virginia Bank Building P. O. Box 3416 Norfolk, Virginia 23514-3416 Re: Robert T. Goode, Jr. vs Norfolk and Western Railway Co. . At Law No. L-86-335 Gentlemen: Thank you for the help that you have given the court. I have studied all of the material supplied, including the opinions cited in your excellent briefs. If this case were one of first impression, I would be tempted to rule that Congress, by enacting the Longshoremen's and Harbor Workers’ Com- pensation Act (L.H.W.C.A), did not intend to strip a railroader of any of his benefits under the Federal Employer's Liablility Act (F.E.L.A.) under any circumstances so long as he was working for the railroad at the time of injury, a narrow, unintellectual approach which makes good sense. The duty of this court, however, is not to make law but to interpret and follow the law as set forth by courts of higher dignity. In following that duty, I feel that I am directed by the exist- ing law to rule that, under the particu- lar facts of this case, the motion for judgment must be dismissed for reason that exclusive jurisdiction lies within the ambit of the L.H.W.C.A. 45A Railroad cars filled with coal come cross country in both interstate and intrastate commerce and come to rest in what is called the barney yard located near pier 6 at the Lambert's Point ter- minal in Norfolk, Virginia. After the coal has come to rest in the barney yard, the process of loading the coal into vessels begins. The loaded cars are moved from the barney yard through a thawing shed, and are then pushed up a raised track by small locomotives called pushers onto the dumper located near the piers. As these loaded cars are pushed on to the dwaper, their progress is slowed or stopped by equipment known as a retarder. The cars revolve, dumping the coal onto conveyor belts which deliver the dumped coal directly into the holds of waiting vessels docked at 46A the piers. The empty cars are pushed to the apex of the raised track and then, through the force of gravity, are returned to a holding yard from where they will again be dispatched to coal fields located in various parts of the country. The plaintiff was a machinist who was injured while repairing the retarder on the dumper located near pier 6. The dumper and retarder on which the plain- tiff was working are located 500 to 550 feet from the water. Retarders are located throughout the raili.cad system; however, the sole purpose of this retarder was to stop the loaded cars on the dumper to facilitate the transporta- tion of coal from shore to vessel by dumping the coal on conveyor belts which feed the coal into the belly of docked 47A vessels at pier 6. The entire loading operation at pier 6 must cease when the retarder is inoperative or is being repaired, and the loading operation had in fact ceased at the time of the injury to the plaintiff. Machinists may be assigned to what is known as the Motive Power Department which has the function of maintaining and operating the coal dumping facility of the railroad. Machinists may be assigned to different locations such as the 38th Street car shop or the round- house, which may be miles away from the water, or they may be assigned to Lambert's Point. The location is deter- mined by seniority, and a machinist working at the pier at Lambert's Point may be forced to work at another loca- tion Lecause of the electing of a more 48A senior machinist to work at the pier. At the time of the accident, the plain- tiff had been assigned for some time to work at Lambert's Point. While assigned to Lambert's Point, machinists spend the overwhelming portion of their working time maintaining and repairing machines and equipment essential to the coal dumping operation. Machinists do not, for example, regularly repair cars for that is the job of the trainmen. The great majority of the working time of a machinist while assigned to Lambert's Point is spent on the maintenance and repair of machinery which facilitates the dumping operation after the cars have left the barney yard. The machin- ists are required to pay into the rail- road retirement plan and are subject to the Railway Labor Act. 49A Under the facts of this case, the railroad is an employer within the mean- ing of the L.H.W.C.A., Noqueira v. New York, N.H. & H.R. Co., 281 U.S. 128, 132, 44 L.Ed. 754, 50 S.Ct. 303 (1930), and the plaintiff is an employee within the meaning of the L.H.W.C.A., Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 53 L.Ed. 2d 320, 97 §.Ct. 2348 (1977); P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 62 L.Ed. 2d 255, 100 S.Ct. 328 (1979), and he cannot walk in and out of coverage because, I believe, that the overwhelming portion of his work is essential to the loading and unloading operation. The Supreme Court in Herb's Welding v. Gray, U.S. , 84 L.Ed. 2d 406 (1985), while holding that a welder working on a fixed offshore oil-drilling 50A platform was not engaged in maritime emp loyment within the meaning of L.H.W.C.A., has stated: But Congress did not seek to cover all those who breathe salt air. Its purpose was to cover those workers on the situs who are involved in the essential elements of loading and unloading. . (Emphasis added). We have never read ‘maritime employment’ to extend so far beyond those actually involved in moving cargo tween ship and land transportation. (Emphasis a ). On the facts of this case, I hold that the plaintiff was involved in the essential elements of loading '= and unloading and that he was actually involved in moving cargo between ship and land transportation. After all, the entire loading operation ceased during the repair of the retarder on which the plaintiff was working when injured. The 51A location of the retarder was on the dumper, and the sole purpose of this particular retarder was to stop coal-loaded cars so that the coa! could be dumped onto the belts feeding the vessel. It must be remembered that plaintiff's supervisors testified that 99 percent of the work of a machinist assigned to Lambert's Point was the maintenance and repair of machines and equipment directly and solely related to the loading and unloading operation. Even the most biased witnesses could not seriously testify that less than 50 per- cent of the work was not so related, while the machinist was assigned to Lambert's Point. The plaintiff places a great deal of emphasis on White v. N & W. Ry. Co., 217 Va. 832 (1977), decided in the same 52A year as Conti v. N. & W. Ry. Co., 566 F.2d 890 (4th Cir.). It is my belief that, under the facts of this case, the plaintiff did have “a realistically significant rela- tionship to the loading of cargo on ships” and that he was cirectly involved in the process of loading coal on the vessels within the meaning of the White test. Furthermore, this case does involve a federal question, the federal authorities are therefore the more per- suasive, and to the extent that White differs from significant federal deci- sions, the White court, in my opinion must yield. As counsel well know, there have been a number of significant decisions subsequent to White, one of the leading decisions being Price v. Norfolk & 53A Western Ry. Co., 618 F.2d 1059 (4th Cir. 1980). In my opinion, the Price court did set forth the proper test in deter- mining whether there is exclusive cover- age under the L.H.W.C.A., that test being whether the plaintiff's job was an essential element in the loading and unloading of the vessels. I hold that in this case the plaintiff's job was an essential element, although in light of the later ruling in Herb's Welding, supra, I would not hold that’ the painter's job in the Price case was an essential element. I believe that Newport News Ship- building & Dry Dock v. Graham, 573 F.2d 167 (4th Cir.), cert. den., 439 U.S. 979, 58 L.Ed. 2d 649, 99 S.Ct. 563 (1978), fortifies my opinion in this case, and I do not think that this 54A opinion is in substantial conflict with Conti v. N. & W. Ry. Co., 566 F.2d 890 (4th Cir. 1977), although I do agree with the D.C. Circuit Court that even before Herb's Welding, supra, the Fourth Circuit had moved away from a test of balancing traditional railroad’ tasks against traditional maritime’ tasks. Harmon v. Baltimore & Ohio R.R., 741 F.2d 1398 (D.C. Cir 1984). I am cognizant of my colleague's decision in Evans v. WN. & W. Ry. Co. (Norfolk Circuit Court 1985), but like- wise do not feel that we are in con- flict. After a close reading of his Gecision, I believe that, under the facts of this case, Judge Clarkson would have reluctantly reached the same deci- sion which I have reluctantly reached. 55A With regard to the situs test, I hold that the most important factor is the nature of the work rather than the distance from the water and that the test has been met. Graham, supra; Prolerized New England Co. v. Miller, 691 F.2d 45 (lst Cir. 1982); Prolerized New England Co. v. Ben. Rev. Bd., 637 F.2d 30 (lst Cir. 1980), cert. den. 452 U.S. 938, 101 S.Ct. 3080, 69 L.Ed. 2d 952 (1981); Sea-Land Serv. v. Director, etc., 685 F.2d 1121 (9th Cir. 1982); Garvey Grain Co. v. Director, etc., 639 F.2d 366 (7th Cir. 1981). I commend both counsel for their thorough preparation for the hearing and their excellent briefs. Mr. Richardson may prepare the order for Mr. Wilson's endorsement. 56A Please have the order forwarded to me prior to November 19, 1986, if possible. Very truly yours, Charles R. Waters, II Judge 57A April 22, 1988 SUPREME COURT OF VIRGINIA Record No. 870252 Circuit Court No. L86-335/L2341-86 Robert T. Goode, Jr., Appellant, against Norfolk & Western Railway Company, Appellee. Upon an appeal from a judgment rendered by the Circuit Court of the City of Norfolk on the 17th day of December, 1986. Upon consideration of the rec- ord and briefs, and on the basis of Schwalb v. C & O Railway Co., 235 Va. ’ S.E.2d (1988), the Court is of opinion that the judgment appealed from is erroneous. Accordingly, the judgment is reversed and annulled, and the case is remanded to the said circuit court for trial on the merits. 58A . This order shall be certified to the said circuit court. A copy, Teste: David B. Beach, Clerk By: /s/ Cynthia L. McCoy Deputy Clerk 59A SEVENTH JUDICIAL CIRCUIT Newport News, Virginia May 21, 1984 Mr. Michael L. Weiner DeParcq, Perl, Hunegs, Rudquist & Koenig, P.C. 608 Building, Room 565 608 Second Avenue South Minneapolis, Minnesota 55402 Mr. William M. Nexsen Stackhouse, Rowe & Smith 1400 Sovran Center Post Office Box 3570 Norfolk, Virginia 23514 Mr. Richard Wright West West, Stein, West & Smith Post Office Box 257 United Virginia Bank Building 2501 Washington Avenue Newport News, Virginia 23607 Re: Daniel C. Turnista v. The Chesapeake and Ohio Railroad Company, a corporation, Law No. 8690-WS Gentlemen: The court has reviewed the plead- ings and argument, the evidence and the excellent memoranda. 60A Daniel C. Turnista (plaintiff) was injured at Newport News, Virginia on April 19, 1982 and filed his Motion for Judgment against The Chesapeake and Ohio Railroad Company (defendant) on August 25, 1983, under the Federal Employer's Liability Act (FELA), 45 U.S.C. 5l, et seq.. Defendant filed its Special Plea to Jurisdiction (special plea) on Sep- tember 15, 1983, asserting that plaintiff's soie and exclusive remedy against it is under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33. —sdU. S.C. 905(a). If defendant's contention is valid, then relief under LHWCA is plaintiff's exclu- sive remedy and the FELA action must be dismissed. 61A On March 28, 1984 at the time of the hearing on the special plea, the parties stipulated that: (1) (2) (3) The defendant is an “employer” as defined by 33 U.S.C. 902(4) of LHWCA at the time of plaintiff's accident; that plaintiff was then and there employed by defendant; and that the injuries of which plaintiff complains occurred "upon the navigable waters of the United States” as defined by U.S.C. §903(a) of LHWCA. sole issue is whether’ the plaintiff at the time of his injuries was a person engaged in maritime employ- ment as defined by 33 U.S.C. §902(3) of LHWCA. The facts are not in contention. The evidence disclosed that plaintiff, a machinist, was injured in a fall onto a barge while burning shackles loose with 62A os an acetylene torch as a part of the work required to replace the hood of the off- shore coal loading tower on the south side of Pier 14. As a machinist in the mechanical department of defendant, plaintiff spent 50% or more of his work- ing time between the coal loading dumper and the end of the piers, and, otherwise worked in a shop located between the dumper and Pier 14, primarily performing repair and maintenance on coal loading equipment. The evidence further disclosed that in proceedings pending before U.S. Department of Labor, Office of Workers’ Compensation Programs, defendant had paid plaintiff under LHWCA (as of time of hearing), compensation payments aggregating in excess of $29,500.00, and, that plaintiff (though disputing 63A defendant's computation of weekly wage and length ci disability) had not chal- lenged coverage under said Act for inju- ries received on April 19, 1982. Resolution of this issue comes down to whether the court is required to fol- low a decision of the Virginia Supreme Court rendered in 1977 or one of the United States Court of Appeals, Fourth Circuit rendered in 1980. In a unanimous opinion of the United States Supreme Court in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 268, 97 L. Ed. 2d 320, 335 (argued April 18, 1977; decided June 17, 1977), Justice Marshall stated: "***The language of the 1972 Amendments is broad and sug- gests that we should take an expansive view of the extended coverage. Indeed, such a con- struction is appropriate for this remedial legislation. The Act ‘must be liberally 64A construed in conformance with its purpose, and in a way which avoids harsh and incon- gruous results.' Voris vv. Eikel, 346 US 328, 333, 98 L Ed 5, 74 S. Ct. 88 (1953).***" The Virginia Supreme Court decision in White v. Norfolk and Western Railway Company, 217 Va. 823, 232 S.E. 2d 801 (1977), cert. denied 434 U.S. 860 (1977) was rendered on March 4, 1977 and held that White was not a covered "employee" within the meaning of the Act, saying at page 832: "Applying the section 2(3) language defining ‘employee’ in the light of what we per- ceive to have been Congress' purpose when the 1972 Amend- ments were adopted, we do not believe plaintiff's duties, in the electrical rooms were the injury allegedly occurred, had a realistically significant relationship to- the (833) loading of cargo on ships. Stated differently, when plaintiff was injured he was not directly involved in the loading of coal. See Jacksonville Shipyards, Inc. 65A v. Perdue, supra, 539 F.2d at 539. "Plaintiff was not actually handling any cargo, either manually or mechanically, as was the case in the decisions principally relied on by Né&w. Moreover, plaintiff was not manipulating (except to est) any of the contrels of the electrical mechanism, which furnished the power for this automated loading process. Rather, he was only maintain- ing the electrical devices on the shore and attached to the pier, work which is not the traditional work of a ship's service employee. Plaintiff was at least one step removed from a realistically signifi- cant relationship and from a direct involvement with the loading of vessels. The mere fact some of plaintiff's cumu- lative injury was sustained out over the Elizabeth River, while he worked inside the electrical rooms of the Pier 6 shiploaders, does not convert his status from that of a railroad electrician to that of a maritime worker. Thus, the Virginia Supreme Court (in opinion rendered by five justices), in 66A effect, marrowly held that to be an “employee”, the plaintiff must have been directly involved in the loading of the coal (emphasis supplied). In Price v. Norfolk and Western Railway Company, 618 F.2d 105 (1980), the Fourth Circuit held that a railroad employee injured while painting support towers for the gallery used for convey- ing grain (loading and unloading ships and barges and not for storage) as a part of routine maintenance for which Norfolk and Western was responsible was "an employee” within the meaning of LHWCA (33 U.S.C. §902(3). In concluding (page 1062) that "***The Gallery involved here is just as essential to the actual loading and unloading of ships as the machine involved in Graham was to their building***", the opinion 67A review applicable decisions’ since Northeast Marine Terminal, at page 1061: "We feel that our deci- sion in Newport News Ship- building & Drydock Co. v. Graham, 573 F.2d 167 (4th Cir.), cert. denied, 439 U.S. 979, 99 S.Ct. 563, 58 L.Ed.2d 649 (1978), is controlling in this case and requires that we reverse the district court's holding that Price was not an employee within the meaning of the Act and therefore was entitled to recover under the FELA. In Graham, a claimant Jones was seeking compensation under the LHWCA for injuries sustained when he bumped against a machine which he was Oiling. The machine was “sed in building ships. He was rated as a mechanic and belonged tw the maintenance department of the employer. In holding that Jones was enti- tled to compensation under the LHWCA, we stated: ‘Because Jone's maintenance was essen- tial to keeping the shipyard's machinery in working order for the construction of ships, we conclude that he was a ship- builder within the meaning of the Act.' Id. at 170. "In so holding, we cited with approval a Benefits 68A Review Board decision that is directly on point. In Bradshaw _v. McCarthy, 3 BRBS 195 (1976), petition for review denied, 547 F.2d 1161 (3d Cir. 1977), a mechanic injured his back in a terminal while removing a tire from a forklift he was’ repairing. The forklift was used _ to unload ships and to _ load freight cars, tractors, and trailers. In holding that the claimant was an employee as defined in the Act, the Board stated: Merely because a waterfront mechanic is not directly involved in the actual loading or unloading of cargo does not remove him from the coverage of the amended Act. The maintenance and repair of longshoring machin- ery equipment is essential to the move- ment of maritime cargo and, thus, such an employee's duties are included in the broad concept of maritime employment. Id. at 198. We can discern no significant distinction between the repair of machinery essen- tial to the movement of 69A maritime cargo and the painting of a structure essential to the loading and unloading of the same. Nor can we discern any significant distinction between Oiling a machine used in build- ing ships, as was the claimant in Graham, and painting a structure used in loading and unloading ships. There is no doubt that employees employed in ‘taking cargo out of the hold, moving it away from the ship's side, and carrying it immediately to a -storage or holding area’ are "employe(es)” within the meaning of _ the amended _ statute. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 267, 97 S.Ct. 2348, 2359, 53 L.Ed.2d 320 (1977). The holding in Graham that a maintainer of a shipbuilder's machinery is cov- ered requires a holding here that a maintainer of a longshoreman's machinery be covered. "We find no merit in the argument of plaintiff that the fact that.szthe plaintiff was (1062) nedely painting’ the structure housing the conveyor mechanism that transports the grain, rather than the mecha- nism itself, is sufficient to distinguish this case from Graham and Bradshaw. The Gal- lery involved here is just as 70A essential to the actual loading and unloading of ships as the machine involved in Graham was to their building. We should add at this point that we also find persuasive the direction of Northeast Marine Terminal that we take an ‘expansive view' of this ‘remedial legis- lation’. 432 U.S. at 268, 97 S.Ct. at 2359. It is apparent that the Fourth Cir- cuit has adopted the expansive view that “maintenance and repair of longshoring machinery and equipment is essential to the movement of maritine cargo and, thus, such an employee's duties are included in the broad concept of mari- time employment." Since Northeast Marine Terminal, the federal courts have consistently applied the "expansive view" in interpreting the meaning of a "person engaged in maritime employment” as that term is used in 33 U.S.C. 71A f § 902(3) of LHWCA, and, it appears no court has followed White. Is White nevertheless binding upon this court under the principal of stare decises? Neither Graham (decided March 13, 1978) nor Price (decided April 9, 1980) followed White, the latter expressly declining so to do. saying ((sic) at page 1062, "***and with respect simply disagree with White." There is no suggestion in any of the memoranda that the precise question is now before the United States Supreme Court. With Northeast Marine Terminal and its progeny Graham and Price binding on the Federal district courts, for this court to follow White would further frustrate lack of uniformity vetween federal snd state court decisions 72A governing the interpretation of the meaning of a federal statute (particu- larly affecting the Hampton Roads area where ship construction and repair, shipping and longshoring activities are common place), a result the court con- cludes is not intended by White in view of the subsequent decisions in Graham and Price. The court respectfully declines to follow White, concluding that Price is controlling. The court is of the opinion that at the time of his injury, plaintiff was engaged in maritime employment, and, thus was an “employee” within the mean- ing of 33 U.S.C. § 902(3) of LHWCA and that his exclusive remedy against defen- dant is under LHWCA. Accordingly, the court concludes that plaintiff is precluded from 73A maintaining subject FELA action and that defendant's special plea is sustained and the action of plaintiff is dismissed from the docket with prejudice to plain- tiff. Having so concluded, it is not nec- essary to reach the issue of what, if any, effect plaintiff's acceptance of compensation payments from defendant under LHWCA has on his right to maintain the FELA action. Counsel for defendant is required to prepare an appropriate sketch for order sustaining the special plea for the reasons set forth in the foregoing letter opinion and dismissing the action from the docket with prejudice to plain- tiff, circulate same to counsel for plaintiff for endorsement, and, to the court for consideration and entry. 74A Very truly yours, /s/ J. Warren Stephens Judge 75A OPPOSITION BRIEF Docket No. 87-1979 In the Supreme Court of the United States October Term, 1987 CHESAPEAKE AND OHIO RAILWAY COMPANY, Petitioner, NANCY SCHWALB AND WILLIAM McGLONE, Respondents. BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI C. Gerard Thompson MOODY, STROPLE AND KLOEPPEL, LTD. Commerce Bank Building, Suite 300 500 Crawford Street Portsmouth, Virginia 23704 (804) 393-4093 Counsel for Respondents QUESTIONS PRESENTED Is an unskilled railroad laborer who sweeps coal from coal piers and does not perform traditional longshoring activities a “maritime employee” under the Longshoremen’s and Harbor Workers’ Compensation Act? a Will the extension of the Longshoremen’s and Harbor Workers’ Compensation Act to the respondents promote the legislative concerns of Congress that prompted the 1972 and 1984 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act? TABLE OF CONTENTS Questions Presented Table of Authorities Jurisdiction / Statutes Involved Statement of Facts Argument I. RESPONDENTS ARE RAILROAD WORKERS, WHO DO NOT PERFORM TRADITIONAL LONGSHORING ACTIVITIES, AND ARE NOT MARITIME EMPLOYEES. Il. THE JUDGMENT OF THE VIRGINIA SUPREME COURT IMPLEMENTS THE CONGRESSIONAL PURPOSES IN THE 1972 AMENDMENTS. Conclusion Certificate of Service 0 ii 20 22 Director, Office of Worker’s Compensation Programs, United States Department of Labor v. P Perini North River Associates 459 U.S. 297 (1983) 16-17,21 Herb’s Welding, Inc. v. Gray 470 U.S. 414 (1985) 7,17-19,21 Nacir v. Johnson 396 U.S. 212 (1969) 8,9,17 Northeast Marine Terminal Company, Inc. v. Caputo 432 U.S. 249 (1977) 10-12,21 >. £. Peesteee fe.. ine. Ford Vv. 444 U.S. 69 (1979) 5,13-14,21 Sun Ship, Inc. v. Pennsylvania 447 U.S. 715 (1980) 14-16,21 Wilkerson v. McCarthy 366 U.S. 53 (1949) 4 iii 28 33 33 33 45 e ¢& ¢€& G&G G& nounenA FAM C-' o ee. ee » § 1257(3) . § 902(3) . § 903(a) . § 905(a) . § 51 et seq. iv IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1987 No. 87-1979 CHESAPEAKE AND OHIO RAILWAY COMPANY, Petitioner, Vv. NANCY J. SCHWALB, Respondent. CHESAPEAKE AND OHIG RAILWAY COMPANY, Petitioner Vv. WILLIAM McGLONE, s Respondent. BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI JURISDICTION - The jurisdiction of this Court involved under 28 U.S.C. § 1257(3). is ATUT These cases involve the application of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 902(3) and 905(a) and the Federal Employers’ Liability Act, 45 U.S.C. § 51 et sea. STATEMENT OF FACTS On January 11, 1983, Nancy Schwalb was injured on Pier 14 at Newport News, Virginia. She was walking to the truncheon rollers when she fell and struck her head. A fellow railroad laborer, Ben Gathers, found her on the walkway between 1:30 a.m. and 2:00 a.m. on January 12, 1983. Schwalb was bleeding from the nose and ear and has suffered seizures since the accident. She has not returned to work. William C. McG one, a laborer with the Chesapeake and Ohio Railway Company since 1970, injured his right arm during cleanup efforts on the defendant’s property in Newport News, Virginia. His employment duties included the cleaning of bathrooms, bunkhouses, cabooses, engines and piers. On February 1, 1983, Mr. McGlone’ supervisor, Robert Layne, directed him to clean the area below main conveyor belt number three. Though Mr. McGlone requested the belt be shut down, Robert Layne rejected his request and instructed him to clean the debris from the concrete pier below the moving conveyor belt. Mr. McGlone complied with this order and proceeded to clean the debris. The defective belt caught his right arm and nearly severed it. He sustained a sixty percent (60%) loss of the use of the right arm and is permanently disabled from railroad employment. ARGUMENT 1. RESPONDENTS ARE RAILROAD WORKERS, WHO DO NOT PERFORM TRADITIONAL LONGSHORING ACTIVITIES, AND ARE NOT MARITIME EMPLOYEES. Respondents brought separate actions in Newport News and Portsmouth, Virginia to recover for on-the-job personal injuries. As other railroad employees have for 80 years, the respondents invoked the Federal Employers’ Liability Act (FELA). The FELA has been specially enacted for railroad workers “to put on the railroad industry some of the cost for legs, eyes, arms and lives which it consumes in its operations”. Wilkerson v. McCarthy, 366 U.S. 53 at 68 (1949). Although the petitioner paid respondent McGlone $2,000.00 for a 1982 accident, which occurred in the same area of Newport News, Virginia, pursuant to the FELA, it now wishes to prohibit the respondents for asserting their traditional remedies under the FELA. The petitioner interposes the LHWCA as a bar to respondents’ FELA claim and demand for jury trials. The applicability of the LHWCA depends upon the nature of the respondents’ activities. P. C. Pfeiffer Co., Inc. v. Ford, 444 U.S. 69 at 82 (1979). The respondents did not load any coal aboard ships or the conveyor belts. They, in fact, were specifically prohibited from loading but were required to sweep spilled coal into piles. Their other duties included cleaning up bathrooms, bunkhouses, cabooses, engines and other railroad equipment. In 1972, Congress amended the LHWCA and enumerated a two-pronged test. The test included a situs test and a status test. Section 903(a) of the Act sets forth the situs test where a longshoreman’s claim must occur. It states: Except as otherwise provided in this section, 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, dismantling, or building a vessel). 33 U.S.C. § 903(a). Section 902 of the Act defines the Status test, that is, the status an employee must occupy before the LHWCA applies. It states: The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or any other person engaged in longshoring operations, and any harborworker including a ship repairman, aarpner eee and shipbreaker, , 33 U.S.C. § 902(3). Before the LHWCA may be applied to the respondents, they must sustain injuries upon the navigable waters of the United States and be engaged in maritime employment. The LHWCA does not define the term “maritime employment”, nor does compliance with the situs test support or demonstrate compliance with the status requirement. See, Herb’s Welding, Inc. v. Gray, 470 U.S. 414 (1985). The respondents’ duties never required their presence aboard ship, nor did they require their assistance in the unloading or loading of cargo. Rather, they swept or collected debris that fell from the conveyor belts. They did not operate any machinery in the loading or unloading process, nor did they operate any tool or equipment used in the loading or unloading process. Their duties — possessed no significant relationship to the loading or unloading of cargo and do not involve traditional maritime activities.- Therefore, the respondents do not meet the status test and are not “maritime employees”. Il. THE JUDGMENT OF THE VIRGINIA SUPREME COURT IMPLEMENTS THE CONGRESSIONAL PURPOSES IN THE 1972 AMENDMENTS. Before 1972, the LHWCA provided coverage to employees injured upon the navigable waters of the United States. This Court in Nacirema Operating Company vy. Johnson, 396 U.S. 212 (1969) limited federal coverage to employees injured in or upon the navigable waters of the United States. In essence, a one-part or single status requirement determined the availability of federal compensation. Longshoremen received federal benefits only if their injuries occurred upon the navigable waterways. ~~ In WNacirema, this Court denied LHWCA compensation to three workers who were attaching cargo from railroad cars located on piers to ships’ cranes. When the cargo swung back, it knocked them onto the pier or against the side of a railroad car. Although one man died and the other two were injured, they did not receive compensation under the LHWCA. If they had fallen into the river or navigable waterway, the injured men would have received benefits under LHWCA. In response to the inequitable and fluctuating compensation scheme, Congress amended the LHWCA in 1972. Congress replaced the previous status requirement with a two-pronged test. The prongs included: (1) a situs requirement and (2) a status requirement. The situs language greatly expanded the scope or u geographical limits of the LHWCA, but the status language imposed a new limitation upon injured workers. Under the status test, a person must be engaged in “maritime employment” to receive federal compensation benefits. In the years following the 1972 amendments to the LHWCA, this Court has had at least five opportunities to review the amendments. In Northeast Marine Terminal Company, Inc. v. Caputo, 432 U.S. 249 (1977), this Court extended coverage to Ralph Caputo, a member of the regular longshoring gang, and Carmelo Blundo, a checker in Brooklyn, New York. Caputo worked as a terminal laborer and normally loaded or unloaded containers, barges and trucks. He was injured while rolling a dolly loaded with cheese into a consignee’s truck. 10 Blundo, as a checker, was responsible for checking and recording cargo as it was loaded onto or unloaded from vessels, barges or containers. He slipped on some ice on the pier while marking containerized cargo. Under pre-1972 law, both employees would not have received compensation under the LHWCA, but, under the 1972 amendments, they did. The Court stated: The 1972 amendments were the first significant effort to reform the 1927 Act and the judicial gloss that had been attached to it. The main concern of the 1972 amendments was not with the scope of covera~2 but with accommodating the desires of three interested groups: (1) Ship owners who were discontented with the decisions allowing many maritime workers to use the doctrine of ‘seaworthiness’ to recover full damages from ship owners regardless of fault; (2) Employers of the longshoremen who, under another judicially created doctrine, could be required to indemnify shipowners and thereby lose the benefit of the intended 11 exclusivity of the compensation remedy; and (3) Workers who wanted to improve the benefit schedule deemed inadequate by all parties. Id. at 26€j. Congress sought to meet hese desires through the 1972 amendments. Congress broadened the definition of “navigable waters of the Unites States” to include “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”. 33 U.S.C. § 903(a). Congress simultaneously amended the definition of the person covered by the Act and added the requirement that an injured werker be “engaged in maritime employment” which it defined to include “any longshoreman or any other person engaged in longshoring operations, and any harbor worker including a_ ship 12 repairman, shipbuilder and shipbreaker, ." 33 U.S.C. § 902(3). Though Caputo and Blundo were not upon the navigable waterways when injured, they clearly fit the expanded situs definition and were engaged in the handling of cargo. Consequently, they were entitled to compensation. In P, C. Pfeiffer Company, Inc. v. Ford, 444 U.S. 69 (1979), this Court affirmed longshoremen’s benefits for Diverson Ford, a warehouseman, and William Bryant, a cotton header. Although neither was injured upon the navigable waterway as defined before the 1972 amendments, both were “engaged in the type of duties that longshoremen perform in transferring goods between ship and tand transportation.” Id. at 81. This Court concluded the explicit use of the terms “longshoremen” and “other persons engaged 13 in longshoring operations” demonstrated that workers doing tasks traditionally performed by longshoremen were within the purview of the 1972 Act. Id. at 82. This Court in Pfeiffer acknowledged one of the reasons Congress expanded coverage in 1972. The advent and proliferation of containerization had shifted much of the loading and unloading tasks from aboard ship to land. To deny access to the LHWCA because a worker fortuitously sustained injuries on piers or other land based structures rather than water severely and unfairly limited compensation for traditional longshoremen’s work. In Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980), this Court allowed employees to apply for and recover from their state workmen’ s compensation scheme and the federal workmen’s compensation 14 scheme. The 1972 amendments to the LHWCA deleted a previous requirement in which recovery was dependent upon the unavailability of compensation by state law. The deletion of this requirement evidenced the concurrent nature and jurisdiction of federal and state compensation laws. The Court conciuded “if state remedial schemes are more generous than federal law, concurrent jurisdiction could result in more favorable awards for worker’s injur‘es than under an exclusively federal) compensation system”. i. 68 786. Congress was not concerned with the disparity between adequate federal benefits and superior state benefits. Rather, the quid pro quo to the employers for the landward extension of the LHWCA by the 1972 amendments was simply the apolition of the longshoremen’s 15 unseaworthiness remedies. This Court noted with some interest that’ the Congressional Reports dwell upon the rejection of the unseaworthiness action and do not mention the pre-emption of state remedies. Id. at 24 and 25. Similarly, Congress did not mention pre-emption of the FELA or the application of the LHWCA to railroad workers. Department of tabor v. Perini North River Associates, 459 U.S. 297 (1983), the Supreme Court allowed Raymond Churchill, an employee of Perini, to receive benefits under the LHWCA. Churchill was injured while working a barge in navigable waters. This Gourt again reviewed the historical events preceding the 1972 amendments. It specifically stated Congress responded 16 to its decision in Nacirema in which the Court held the LHWCA did not extend to longshoremen whose injuries occurred on a pier attached to land. The Congressional Record during the debate on the 1972 amendments was also reviewed, and the Court enumerated the purposes of the 1972 amendments. They were: (1) To raise the amount the amount of compensation available under the LHWCA, (2) To extend coverage of the Act to include certain contiguous land areas, (3) To eliminate the longshoremen’s strict liability seaworthiness remedy against ship owners, (4) To eliminate shipowner’s claims for indemnification from stevedores, and (5) To promulgate certain administrative reforms. Perini at 313. In Herb’s Welding, Inc. vy. Gray, 470 U.S. 414 (1985), this Court reversed 17 the United States Court of Appeals for the Fifth Circuit and denied LHWCA coverage to Robert Gray, a welder. Gray worked for Herb’s Welding, Inc., off the Louisiana coast. While welding a gas flow line on a fixed platform located in Louisiana waters, he burnt through the bottom of a line and an explosion occurred. He injured his knees and sought benefits under the LHWCA for wages, disability and medical expenses. The Fifth Circuit granted compensation and concluded that offshore drilling is maritime commerce and anyone performing such tasks was employed in maritime employment’ for LHWCA purposes. In rejecting the Fifth Circuit’s expansive view of maritime employment, this Court stated “Congress did not seek to cover all those who breathe salt gi Id. at 423. Rather, Congress’ 18 / purpose was to cover those workers engaged in traditional maritime employment. "The amendments were not meant ‘to cover employees 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.’°” Id. at 424. This Court noted that Gray was not involved in loading or unloading cargo. His duties contained nothing inherently maritime and could be performed on land. This Court emphasized it has “never read ‘maritime employment’ to extend so far beyond those actually involved in moving cargo between ship and tand transportation”. ld. at 424. The Virginia Supreme Court, like the United States Supreme Court, has required an employee to meet both tests, i.e. situs and status, before the LHWCA 19 applies. Similarly, the Virginia Supreme Court examines these requirements individually and has refused to extend the LHWCA to “all those who breathe salt air”. Rather, the Virginia Supreme Court denied the railroad’s efforts to invoke the LHWCA because respondents Schwalb and McGlone did not perform traditional maritime activities. Their sole function was a janitorial one in which they cleaned debris from the piers, buildings, cabooses, and railroad cars. CONCLUSION Respondents are employees of the Chesapeake and Ohio Railway Company. As railroad employees, they performed janitorial services in the cleaning of bathrooms, bunkhouses, cabooses, engines and piers. They did not and have never performed traditional longshoremen’s or maritime duties; nor have they participated 20 Omen. a - in loading or unloading cargo. To extend LHWCA coverage to the respondents would deny them a superior remedy under the FELA, would allow the railroad to settle small claims under the FELA but minimize their losses on larger claims through the application of the LHWCA, would defeat the specific purposes of the 1972 amendments and would violate the principles and findings in Caputo, Pfeiffer, Sun Ship, Perini, and Herb’s Welding, Inc. Respondent respectfully requests that the petition for certiorari be denied and that the cases be remanded for trial upon their merits. Respectfully submitted, NANCY SCHWALB and WILLIAM McGLONE me Ypad tips) Of Counsel 21 ) | : C. Gerard Thompson MOODY, STROPLE AND KLOEPPEL, LTD. Commerce Bank Building, Suite 300 500 Crawford Street Portsmouth, VA 23705-1138 CERTIFICATE OF SERVICE I hereby certify that I have served three copies of this Brief in Opposition to Petition for a Writ of Certiorari upon the petitioner, Chesapeake and Ohio Railway Company, at the office of its counsel of record, William T. Prince, Williams, Worrell, Kelly & Greer, P.C., 600 Crestar Baril. Building, Norfolk, VA 23510, pursuant to the requirement of Rules 28 and 33 of the Rules of the Supreme Court of the United States, by depositing the same in a United States mailbox, with first class postage, pre- paid, on or before July 2, 1988. I further certify that I am a member of this Court and that all parties required 22 to be served have been served on or before July 2, 1988. | : i ; f PIuaaec! Theps J C. Gerard Thompson Counsel for Respondents 23 as a 0 ety) er APP PP X SUBJECT oOo @> m ® Settlement and Final Release of All Claims dated August 6, 1982, by and between the Chesapeake and Ohio Railway Company and William C. McGlone for an accident at or near Newport News, Virginia on or about July 9, 1982 1A THE CHESAPEAKE AND OHIO RAILWAY COMPANY SETTLEMENT AND FINAL RELEASE OF ALL CLAIMS Read Carefully Before Signing The undersigned acknowledges the receipt of Two Thousand & 00/100 Dollars ($2,000) from THE CHESAPEAKE & OHIO RAILWAY COMPANY in full settlem*nt and satisfaction of all claims, demands, and causes of action hereinafter mentioned, and in consideration of said payment hereby RELEASES and forever discharges’ THE CHESAPEAKE & OHIO RAILWAY COMPANY, its agents, servants and employees’ from all claims, demands, and causes of action which the undersigned have or might have against them or any of them arising out of or in any way connected with personal injuries received at or near Newport News, Virginia, on or about July 9, 4982. This settlement is made upon my representation that I have not 1A 7 : : : z a | : received any supplemental sickness benefit payments because of this accident and if I do receive any hereafter because of this accident, I agree to reimburse said Railroad Company the amount so received. Both the undersigned and the Company do now acknowledge that the injuries which the undersigned sustained may be permanent and progressive; that recovery may be uncertain and indefinite and that injuries, damages .and losses may not now be fully known and may be more numerous and more serious than now believed. In making this SETTLEMENT AND FINAL RELEASE the undersigned relies wholly upon his or her own judgment and has not been influenced to any extent whatever by any representation or statement of the claims agent, doctors, or other representatives of the Company. The 2A » ee undersigned admits that no promise or agreement has been made to him or her, and that this RELEASE contains the entire agreement between the parties hereto and that al! the terms of this RELEASE are important parts of this contract and are binding upon all parties. The word “injuries”, where used in this SETTLEMENT AND FINAL RELEASE, include all injuries which are unknown as wel] as injuries which are known and includes all consequences of such injuries which may hereafter develop as well as consequences now developed. This settlement is intended to be final, the undersigned taking his or her chances that the injuries may prove to be more serious than now believed and the other parties taking their chances that the injuries may prove to be less serious than now believed. 3A ) ) It is further understood and agreed that this is a settlement by compromise of a disputed claim and that the payment made is not to be construed as an admission of liability, all liability being expressly denied. release /s/_I have read and understand this relase. W.C. Mc SIGNED and SEALED at N.N. VA., on this 6 day of AUG, 1982 /s/ William C. McGlone (SEAL) Witnesses W. B. Swain Sign Here F. L. Royal) 4A AMICUS CURIAE BRIEF po a OCTOBER TERM, 1988 CHESAPEAKE AND OHIO RAILWAY COMPANY, PETITIONER v. NANCY J. SCHWALB AND WILLIAM MCGLONE NORFOLK AND WESTERN RAILWAY COMPANY, PETITIONER Vv. ROBERT T. GOODE, JR. ON PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME COURT OF VIRGINIA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE , CHARLES FRIED Solicitor General DAVID L. SHAPIRO Deputy Solicitor General CHRISTINE DESAN HUSSON Assistant to the Solicitor General Department of Justice Washington, D.C. 20530 (202) 633-2217 GEORGE R. SALEM Solicitor of Labor _ ALLEN H. FELDMAN Associate Solicitor CHARLES I. HADDEN Deputy Associate Solicitor CHRISTINE L. OWENS Altorney Department of Labor Washington, D.C. 20210 QUESTION PRESENTED Whether “employee[s]” engaged in “maritime employment under Section 2(3) of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 902(3), include not only those workers who actually load or unload cargo but also all workers on a covered site who perform work that is an essential element or integral part of the process of loading or unloading. (1) TABLE OF CONTENTS Page a ot Week dbase ececees l ace we eweN es Uebededecees 6 a ee es oaceveseces 18 TABLE OF AUTHORITIES Cases: Caldwell vy. Ogden Sea Transport, Inc., 618 F.2d 1037 (4th ed oe oe tes uw en eee ses est lo Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) .... 2... ....6....5. 17 Conti v. Norfolk & W. Ry., 566 F.2d 890 (4th Cir. NN oe ar a eecenceses 16 Director, Office of Workers’ Compensation Programs vy. Perini North River Assocs., 459 U.S. 297 (1983) ...... 6, 8 Garvey Grain Co. v. Director, Office of Workers’ Com- pensation Programs, 639 F.2d 366 (7th Cir. 1981)... .. 4 Harmon v. Baltimore & O.R.R., 741 F.2d 1398 (D.C. i eek ees ce eeehcdbseibveens 14, 16 Herb’s Welding, Inc. v. Gray, 470 U.S. 414 (1985)... .. 5, 10, 13 Hullinghorst Indus., Inc. v. Carroll, 650 F.2d 750 (Sth Cir. 1981), cert. denied, 454 U.S. 1163(1982)......... 14 Morrison-Knudsen Constr. Co. vy. Director, Office of Workers’ Compensation Programs, 461 U.S. 624 RE en ee eee 17 NLRB vy. International Longshoremen’s Ass'n, 447 U.S. TE ile ei ee Badd ass deeuaegaseedets 10 Newport News Shipbuilding & Drydock Co. \. Graham, $73 F.2d 167 (4th Cir.), cert. demied, 439 U.S. 979 ee es os eae eudeeeect 13 Northeast Marine Terminal Co. v. Caputo, 432 U.S. ee ol ee daeaeueneene 5, 6, 8, 9, 10, 11, 12, 17 P.C. Pfeiffer Co. \. Ford, 444 U.S. 69 (1979)... 000... 6, 7, 8, 9, 10, 12, 13 Pennsylvania RR. v. O'Rourke, 344 U.S. 334 (1953) |. 16 Price v. Norfolk & W. Ry., 618 F.2d 1059 (4th Cir. e's 6G Se et Re ry eee ts ~~. ._ = IV Cases — Continued: Page Prolerized New England Co. v. Benefits Review Bd., 637 F.2d 30 (| t Cir. 1980), cert. denied, 452 U.S. 938 Si ncpenstess suauvidesonesibbaiibkiaunases 14 Prolerized New England Co. v. Miller, 691 F.2d 45 (ist RE Ee ee ee ae ee ere 14 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 i cahvwkiese = » a ; _ f aoe eee 4 ? a ate os oes = - fe a 4% ff . ° TABLE OF CONTENTS Page BR i i UE 2 i’ aaa ee iii STATEMENT OF INTEREST OF THE ASSOCIATION OF AMERICAN RAILROADS AND NATIONAL ASSOCIATION OF RAILROAD TRIAL COUNSEL AS AMICI CURIAE ... 1 BUMRARY OCF ARGUBEINE ccccocccccccccccccoccscccsocscscccceness 2 CO a 3 I. The Uniform Construction of Federal Stat- = Should Not Be Undermined By A State . ee Il. The Decision Below Is In Direct Conflict With The Federal Decisions Under Both Acts sococccnnesessonsessesentibiaineieseessmunmninsenninnnnnnnnn 6 III. The Dysertanty Created By The Decision Below Results In Significant Practical Prob- BETTED VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS LAW NO. 8827-S NANCY J. SCHWALB, Plaintiff. v. THE CHESAPEAKE AND OHIO RAILWAY COMPANY. Defendant. TRANSCRIPT OF PROCEEDINGS Newport News, Virginia June 6, 1984 Before: HONORABLE DOUGLAS M. SMITH, JUDGE [T:3] (The Court Reporter was duly sworn.) Court: All right, who is the attorney representing Miss Schwalb? WILLIAM W. NEXSEN, appearing for defendant. Mr. Nexsen: Judge, I’m Bill Nexsen; I’m with the firm of Stackhouse, Rowe and Smith in Norfolk, and local counsel, and today we have Miss Frances Li, Frances with an E-S, Li with an L-I. Of the firm DeParcgq, Perl, Hunegs, Rudquist and Koenig out of Minneapolis. We would move her entrance pro hac vice for this purpose only. She would be lead counsel and would rep- resent Miss Schwalb. FRANCES S.P. LI, appearing for plaintiff. Ms. Li: Thank you, your Honor. JA-51 Court: What’s your last name please? Mr. Nexsen: Mine? Court: Yes. Mr. Nexsen: Nexsen, N-E-X-S-E-N. Court: All right, Mr. West, we’re here on your mo- tion, I believe in the special plea to the jurisdiction. Mr. West: Yes sir. Court: You want to call some witnesses? Mr. West: Yes sir, Mr. Overman, Mr. Gross, Mr. McCarthy. (T:4] Court: Come up, please. : (At this time, the witnesses were duly sworn.) Court: You all want to separate them? Mr. West: I don’t care. Mr. McCarthy is the company representative. Mr. Overman is my first witness. Court: Have a seat. Mr. West: I don’t know whether the Court wants any opening comment. Court: Yes, you might make an opening, please. Mr. West: We anticipate proving to the Court that Miss Schwalb, ‘who was a laborer in the Mechanical De- partment in the C and 0 working in Newport News, that on the date of her accident, she would have been or is covered under the Longshoremen and Harbor Workers Compensation Act. I don’t know how much dispute we have as to everything the C and O is required to prove under that act. The last hearing we had was on the fourth floor in a similar type case and the Plaintiff stipulated that in that case, he was employed by the C and O on the date of the JA-52 accident. I don’t anticipate there’s any problem with that. They conceded that the C and O was an employer, as defined in the act, and the fourth concession was [T:5] that the accident happened upon navigable waters ot the United States, how that is defined in the Longshoremen and Harbor Workers’ Compensation, I’m prepared to prove all three of them, plus of course the major problem in dispute here is whether she was an employee under the act, particularly I believe according to the status test. Court: All right. Mr. West: We're prepared to prove it al [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1418%3A0. Public record. Not legal advice.