Amicus Curiae Brief — Southwest Marine, Inc. v. Gizoni

Supreme Court,

(4) FILED

No. 90-584 + MAY 15 199}

OFFICE OF THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1990

SOUTHWEST MARINE, INC., PETITIONER

Vv.

BYRON GIZONI

ON WRIT OF CERTIORARI! TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

KENNETH W. STARR

Solicitor General

DAVID L. SHAPIRO

Deputy Solicitor General

ROBERT A. LONG, JR. :

Assistant to the Solicitor General

Department of Justice

ROBERT P. DAVIS Washington, D.C. 20530 ;

Solicitor of Labor (202) 514-2217 )

ALLEN H. FELDMAN

Associate Solicitor

KERRY L. ADAMS

Vounsel for Appellate Litigation

DEBORAH GREENFIELD

Attorney

Department of Labor

Washington, D.C. 20210

BEST AVAILABLE COPY 3

QUESTION PRESENTED

Whether a maritime employee whose occupation is

one of those enumerated in the Longshore and Har-

bor Workers’ Compensation Act may be a seaman

within the meaning of the Jones Act.

TABLE OF CONTENTS

Interest of the United States 3

Summary of argument sasbdaiciaiets eR

Argument:

I. Jones Act seamen are expressly excluded from

IT.

IIT.

coverage under the LHWCA ane _

A. The LHWCA’s definition of “employee,” as

construed in Wilander, excludes Jones Act

i EE i

B. Petitioner’s exclusive focus on job title con-

flicts with the language of the LHWCA___

C. The FELA cases do not support petitioner's

A eae 01D

Neither the legislative history of the LHWCA,

nor this Court’s prior decisions, suggest that

Congress intended to displace the traditional

remedies available to seamen oR ms

A. The legislative history confirms that Con-

gress did not iniend to deprive seamen of

their traditional remedies for personal

Natalie are cteatalhcetnnnsapenanhasasaannesanaccces

1. The original LHWCA did not apply to

te

2. The 1972 amendments did not restrict

the remedies available to seamen

B. Petitioner’s approach is inconsistent with

the remedial purposes of the LHWCA and

the Jones Act Ean

C. This Court’s decisions construing the 1972

amendments do not support petitioner’s

position : oa

Petitioner’s policy-based arguments are unper-

suasive m .

A. The court of appeals’ decision will not lead

to double recoveries eo

(Itt)

12

18

20

21

22

IV

Argument—Continued: Page

B. Under established principles of issue pre-

clusion, only an adjudication under the

LHWCA that an employee is not a crew

member precludes litigation of a Jones Act

Re See eee ee Pe, PO 23

C. Petitioner’s “primary jurisdiction” argu-

ment is without merit ..................................... 25

Conclusion _... saabideeideiitioadaDiad aideaieindieaierlabdeneienieiieitialthaaes 27

TABLE OF AUTHORITIES

Cases:

Ardoin Vv. J. Ray McDermott & Co., 641 F.2d 277

ere ee 11

Avasthi v. United States, 608 F.2d 1059 (Sth Cir

LS ae ARE AA aR ee ee ee 25

Barrett v. Chevron, US.A., Inc., 781 F.2d 1067

SS I a a 10

Bennett v. Perini Corp.. 510 F.2d 114 (1st Cir.

ee NTE eR eT 11, 20

Boatel, Inc. Vv. Delamore, 379 F.2d 850 (5th Cir.

EE Ee eM ES, 16, 23, 24, 25

Boyles v. Humble Oil & Refining Co., 209 F. Supp.

857 (E.D. La. 1962) At

Brennan Vv. Western Union Tel. Co., 561 F.2d 477

Sd Cir. 1977), cert. denied, 1°24 U.S. 196%

EEN ee eC OT ee 14

Calbeck v. Travelers Ins. Co.. 270 U.S. 114

SUITE dnetisisnnddaemacmusadnmaieninicenimesanemsasmenianeaiiise. 16

Carumbo v. Cape Cod S.S. Co., 2 F.2d 991 (Ist

Cir. 1941). eee 19

Chanvin V. Sanford Offshore Salvage. due. ROR

F.2d 735 (5th Cir. 1989) 12

Giessnetie & Ohio Ry. v. Schwath, 110 S. Ct.

se! (2980) ...................................... 13,14

Chesser Vv. General Dredging Co. 150 F. Supp.

592 (S.D. Fla. 1957) aa 24

Cook v. Belden Concrete Prods., Ine.. 172 F.2d

999 (5th Cir.), cert. denied, 111 US seer

(1973) 11

Vv

Cases—Continued :

DiPippa vy. United States, 687 F.2d 14 (3d Cir.

pe eT ce ae MR Ren oe De en em

Director, OWCP vy. Perini North River Associates,

a! Ee 2 eae 16, 17, 21

Epstein v. Secretary, United States Dep't of

Treasury, 739 F.2d 274 (7th Cir. 1984) 14

Estate of Wenzel v. Seaward Marine Services, Inc.,

708 F.2d 1326 (9th Cir. 1983) ............................ 5

Fontenot v. AWI, Inc., 923 F.2d 1127 (5th Cir.

FER Ne a ae eee 24

Forsberg Vv. Pacific N.W. Bell Tel. Co., 840 F.2d

ee 14

Fountain Vv. Metcalf, Zima & Co., 925 F.2d 1398 :

I OI i 14

Gianfala Vv. Texas Co., 350 US. 879, rev’g 222 F.2d

Ae I 11

Grijalva Vv. United States, 781 F.2d 472 (5th

Cir.), cert. denied, 179 U.S. 822 (1986) 26

Heilman Vv. United States, 721 F.2d 1104 (3 sd Cir.

I cic ca haere ee, 26

Herb’s Welding, Ine. vy. Grey, 170 U.S. 4114

(1985) oe | Th

Hodason Vv. The Klages Coal & tes Co., 125 F.2d

377 (6th Cir.), cert. denied, 412 U.S. 973

NS Arron NTL a ae TL 14

Johnson Vv. John F. Beasley Constr. Co., 712 F.2d

1051 (7th Cir. 19%14), cert. denied, 169 U-S.

Er nnn Ae a ea eS 11

Kremer V. Chemical Constr. Corp., 156 U Ss. 161

RITES Len, Se ae ks, re 24

Lawrence V. Norfolk Dredging Co. 194 F. Supp.

481 (FE.D. Va. 1961) —. — 24

Legros V. Panther Services Group, Ine., 863 F.2d

345 (1988), reh’g en banc granted, 863 F.2d

355, appeal dismissed, 874 F.2d 954 (5th Cir.

1989) . adssenieaneienibanaieuaseahinmeabammssteiidcuidecdaadladicen 12

Leonard vy. Dirie Well Service & Supply, Ine.,

R28 F.2d 291 (Sth Cir. 1987) 12

Lindahl v. OPM, A70 U.S. 768 (1985) aah 26

McDermott Int'l, Ine. v. Wilander, 111 S. Ct. 807

| Pe F | fs Ff Fe

VI vil

Cases—Continued : Page

Morrison-Knudsen Constr. Co. v. Director, OWCP, Statutes, regulations and rule: Page

Re es I a 19 Age Discrimination in Employment Act of 1967,

Nacirema Operating Co. Vv. Johnson, 296 U.S. 212 29 U.S.C. G21 . . ae aT ee 14

REEL RET Aa ease eee re te oie oe os Seer et 17 Equal Pay Act of 1963, 29U.SC.206(4) . «14

Northeast Marine Terminal Co. v. Caputo, 432 Fair Labor Standards Act of 1938, 29 U.S.C. 201

eee IY CU i 16, 17, 18, 19, 20-21 et seq. ......... Sg ee 14

Norton Vv. Warner Co., 221 U.S. 565 (1944)...11, 16, 26

Offshore Co. vy. Robison, 266 F.2d 769 (5th Cir.

REE Se I a Nl is 10, 19

Oliver v. Ocean Drilling & Exploration Co., 222

F. Supp. 843 (W.D. La. 1965) ............................. 24

P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979)... 13, 16,

17, 29

Pe = R.R. v. O'Rourke, 3244 US. 334

EE ee ee ee ee aT Ne 14

Pi-zitolo v. Electro-Coal Transfer Corp., 812 F.2d

977 (5th Cir. 1987), cert. denied, 484 U.S.

EEE ee Seen 12

Producers Drilling Co. V. Gray, 361 F.2d 432

I, call 11

Robertson Vv. Donovan, 219 F. Supp. 5641 (ED.

Si UIE disiescanbbenintineiihisenhonemnkemeansntaummmetilatscmnebetets 24

Seas Shipping Co. V. Sieracki, 328 U.S. 8&5

I ci a emeieneineel 10, 20

Senko v. LaCrosse Dredaing Corp.. 352 U.S. 370

Re Se ae ae on ee ee TRIE 11

Sharp Vv. Wasau Ins. Co., 917 F.2d 885 (5th Cir.

1990) ....... Ne oe nn ae A A a DOE ee 23

Simms v. Vallew Line Co. . 709 F.2d 409 (5th

a cee 22, 24

South Chicago Coal & Dock Co. Vv. Bassett, 209

RR ee eae 26

Southern Pacific Co. v. Jensen, 244 U.S. 205

ES SEEN Le ER 16

Sun Ship, Inc. Vv. Pennsulvania, 117 U.S. 715

(1980) _....... sdiemnaieteiveds . _.-e+---M, 19, 22, 23

Thibodeaus ¥v. Torch, Ine. 858 F.2d 1018 (Sth

ESE Re eee Ne ane eee 12

Wilkes V. Mississippi River Sand & Grav el Co.,

202 F.2d 383 (6th Cir.), cert. denied, 246 U. S.

817 foretinny Ssamasinesiadecidaatiadiaiahiicemediandainiee ncaa daamenganadlabldde 24

Federal Employees c compensation Act, 5 U.S.C.

8101 et seq.:

EE, ee 8, 25

Ss IIIT x sccewiscccsniknsrussedmeunévesenenaccecescensunanne 26

5 U.S.C. 8145 _............... ae. 26

Federal Employees Liability Act, 45 USC, 51

RE a RE oe Ne ee a ;' ae

Federal Tort C laims Act, 28 U.S. C. 2671 et seq.. 25

Jones Act, 46 U.S.C. App. 688 aa

Longshore and Harbor Workers’ Compensation

Act, 33 U.S.C, 901 et seq.:

$§ 1-51, 33 U.S.C. 901-950... 1

§ 2(5), 33 U.S.C. 90°(2) 1, 2, 6, 9, 12, 13, 18

§ 203) (A)-(CH), 32 USC. 90203) (A)-CH) 13

§ 2(3) (B), 33 U.S.C. 90203) (B) .. eae 13

§ 2(3) (F), 33 U.S.C. 90213) (PF) ee 13

§ 2(3) (G), 33. U.S.C. 99203) (G) _ 6, 1, 13, 15

§3(a),33US.C.903(a) Seca 2

§ 3(e), 33 U.S.C. 90%(e) _......... 22

§ 5(a), 33 U.S.C. 905(a)..... tt 2,5, 15

§ 14(a),323 U.S.C. 914(a) . a,

§ 14(d), 33 U.S.C, 91444) . ee 4

§ 14¢h), 33 US.C. 9110h) : 4

$19(d),33 U.S.C. 919(d)_ . = — 26

§ 21(b),33 U.S.C. 921 (b) oo 26

§ 39,33 U.S.C.939 eS Se 1

Longshoremen’s and Harbor W ~ rs’ Compen-

ey = ch. 509, §2(3), 44 Stat. 1425 16

ern:

NE ee ae 1

Pt. 701:

Section JOLA01(7) Week Sareea 4

vill

Regulations and rule—Continued: Page

Pt. 702:

SETS EC 8 RENNER Sa te

es 2 dd ot :

8 ETE ae aT En me 11, 25

Miscellaneous:

G. Gilmore & C. Black, The Law of Admiralty

RR EE Te nO ns an ao 22

H.R. Rep. No. 1441, 92d Cong., 2d Sess. (1972)... 17

H.R. Rep. No. 570, 98th Cong., Ist Sess. Pt. 1

RE es Sancta a eae 18

4 A. Larson, Workmen's Compensation Law

IS RN Ls ainieinia i 22, 23-24

Longshoremen’s and Harbor Workers’ Compen-

sation Act Amendments of 1972: Hearings on

S. 2318, 8. 525, 8S. 1547 Before the Subeomm.

on Labor of the Senate Comm. on Labor and

Public Welfare, 92d Cong., 2d Sess. (1972)... 18

Restatement (Second) of Judgments (1982) 24

S. 1547, 92d Cong., Ist Sess. (1971) .......................... ,

S. Rep. No. 1125, 92d Cong., 2d Sess. (1972) 17, 19

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-584

SOUTHWEST MARINE, INC., PETITIONER

v.

BYRON GIZONI

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

The Secretary of Labor administers the Longshore

and Harber Workers’ Compensation Act (LHWCA),

33 U.S.C, 901-950. See 33 U.S.C. 939. The Secre-

tary has delegated her responsibilities under the

LHWCA to the Director of the Office of Workers’

Compensation Programs (OWCP), who administers

the Act pursuant to regulations codified at 20 C.F.R.

Pts. 701-704. The Director is a party to and may

participate in any proceedings under the LHWCA.

This case presents the question whether an em-

ployee whose occupation is one of those enumerated

in Section 2(3) of the LHWCA, 33 U.S.C. 902(3),

may nevertheless be a “master or member of a crew

(1)

2

of any vessel” eligible for a remedy under the Jones

Act, 46 U.S.C. App. 688, rather than under the

LHWCA. Resolution of this issue will affect federal

policy concerning the scope of the LHWCA, as well

as administration of the Act by the Secretary of

Labor. The United States therefore has a substan-

tial interest in this case.

STATEMENT

1. The LHWCA is a workers’ compensation stat-

ute that applies to certain employees injured in the

course of maritime employment “upon the navigable

waters of the United States (including any adjoining

pier, wharf, dry dock, terminal, building way, ma-

rine 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 2(3) of the LHWCA defines an “em-

ployee” covered by the Act as

any person engaged in maritime employment,

including any longshoreman or other person en-

gaged in longshoring operations, and any

harbor-worker including a ship repairman, ship-

builder, and ship-breaker, but such term does

not include * * * a master or member of a crew

of any vessel.

33 U.S.C. 902(3) (emphasis added). An employer’s

liability under the LHWCA is “exclusive and in

place of all other liability of such employer to the em-

ployee * * * at law or in admiralty.” 33 U.S.C.

905(a).

This Court recently concluded that a “master or

member of a crew of any vessel” within the meaning

of the LHWCA is the equivalent of a “seaman” un-

der the Jones Act. See McDermott Int'l, Inc. v.

Wilander, 111 S. Ct. 807, 813-814 (1991). The Jones

Act, in turn, provides that “[a]ny seaman who shall

suffer personal injury in the course of his employ-

ment may, at his election, maintain an action for

damages at law, with the right of trial by jury.” 46

U.S.C. App. 688.

2. Petitioner Southwest Marine, Inc., operates a

ship repair facility in San Diego. Petitioner owns

several structures that are used in ship repair and

that the court of appeals characterized as “floating

platforms.” ' Pet. App. II-2. These floating plat-

forms are used to carry “equipment, materials, sup-

plies, and vessel components around the shipyard and

on to and off of vessels being repaired.” Jbid. They

have no motive power or navigational aids of their

own, but are moved into place by tugs. Once secured

alongside a vessel, the platforms support ship repair-

men engaged in their work. Jbid.

Petitioner employed respondent as a rigging fore-

man. Respondent rode the floating platforms as they

were towed into place and performed his work while

on board. Respondent sometimes “served as a lookout

and gave maneuvering signals to the tugboat oper-

ator” when the platforms were moved. Pet. App.

II-2. He also received lines from the ships’ crews to

secure the platforms to the vessels being repaired.

He alleges that he was injured when his foot broke

through a piece of wood covering a hole in the deck

of a floating platform as it was transporting a rud-

der from the shipyard to a floating drydock. Jd. at

II-2 to IT-3.

‘Respondent characterizes these structures as “barges.”

Br. in Opp. 6. The district court characterized them as “float-

ing platforms,” Pet. App. I-2, and as “barge floats,” id. at

III-9. Petitioner itself has referred to one of the structures

as a “pontoon barge.” J.A. V-2.

4

Respondent submitted a claim for and received

benefits from petitioner under the LHWCA.* He

later filed this action against petitioner under the

Jones Act, alleging that he was a seaman injured as

a result of his employer’s negligence. Pet. App. II-3.

Respondent also asserted claims for unseaworthiness

and maintenance and cure. J.A. IV-4 to IV-5. Re-

spondent alleged that petitioner owned and operated

“a group of vessels including a pontoon barge, two

float barges, a rail barge, a diver’s barge, and a

crane barge in navigable waters.” J.A. IV-3. He

further alleged that, as a rigging foreman, he was

“permanently assigned to said group of vessels,’ and

thus was a Jones Act seaman. /bid.

The district court granted petitioner’s motion for

summary judgment. Pet. App. I-1 to I-2. The court

held that petitioner’s floating platforms were not ves-

sels in navigation to which respondent was perma-

nently attached, and that respondent was not aboard

primarily for the purpose of navigation. /bid.; id. at

? The LHWCA provides for two methods of receiving com-

pensation. The employer must pay benefits “periodically,

promptly and directly * * * without an award” unless it con-

troverts its liability for such compensation. 33 U.S.C. 914(a).

See also 20 C.F.R. 702.211, 702.231. If the employer contro-

verts the employee’s right to compensation, the deputy com-

missioner must take action to “protect the rights of all par-

ties.” 33 U.S.C. 914(d). The deputy commissioner may dis-

pose of the case informally, see 20 C.F.R. 701.301 (7), 702.311-

315, or by issuing a formal compensation order with the con-

sent of the parties, 20 C.F.R. 702.315. In cases that require

an evidentiary hearing, see 33 U.S.C. 914(h); 20 C.F.R.

702.316, 702.351, an administrative law judge issues a final

decision and order. 20 C.F.R. 702.348. In this case, petitioner

voluntarily paid respondent benefits under the LHWCA. Con-

sequently, there was no compensation order or adjudication

of respondent’s entitlement to benefits under the LHWCA.

5

III-8 to III-9. In addition, the district court con-

cluded that “plaintiff, as a harbor worker, is pre-

cluded from bringing this action by the exclusive

remedy provisions of the [LHWCA].” /d. at I-2.

3. The court of appeals reversed. Pet. App. II. It

observed that “[w]hether a claimant is a seaman is

typically a question for the jury, where there is an

evidentiary basis for such a finding.” Jd. at II-3. In

this case, the court found there was a sufficient basis

for allowing a jury to determine whether respondent

was a seaman. The court relied on its prior decision

in Estate of Wenzel v. Seaward Marine Services,

Inc., 709 F.2d 1326 (9th Cir. 1983), which concerned

a diver who worked aboard a submerged cleaning

and maintenance platform. The court of appeals con-

cluded that this case, like Wenzel, presents “close

questions of fact which should have been determined

by the jury.” Pet. App. II-4. In particular, the court

said, respondent was entitled to have a jury decide

whether the floating platforms are vessels, whether

respondent had a permanent relationship to the plat-

forms, and whether he aided in their navigation.

Ibid.

The court of appea's rejected the district court’s

holding that, as a matter of law, respondent was cov-

ered by the LHWCA rather than the Jones Act. The

court recognized that the LHWCA, where it applies,

is the employee’s exclusive remedy for an injury in

the course of maritime employment. Pet. App. II-5

(citing 33 U.S.C. 905(a)). But, the court observed,

“by its terms, the LHWCA does not cover ‘a master

or member of a crew of any vessel,’” which is “the

equivalent of ‘seaman’ in the Jones Act.” Pet. App.

II-6. Consequently, the court of appeals reasoned

that “[w]hether an employee is covered by the

6

LHWCA or the Jones Act should be determined by

looking to the nature of the claimant’s work and the

intent of Congress in enacting these compensation| ]

schemes, not by looking to the claimant’s job title.”

909 F.2d at 389.° Accordingly, the court held that

respondent’s status as a ship repairman, one of the

occupations enumerated in Section 2(3) of the

LHWCA, 33 U.S.C. 902(3), did not preclude him

from seeking damages under the Jones Act. Pet.

App. II-6.

SUMMARY OF ARGUMENT

Section 2(3) of the LHWCA, which defines the

class of employees covered by that Act, expressly

excludes from coverage “a master or a member of

a crew of any vessel.” 33 U.S.C. 902(3)(G). This

Court recently concluded that a “master or member

of a crew of any vessel’ is the equivalent of a Jones

Act seaman. McDermott Int’l, Inc. vy. Wilander, 111

S. Ct. 807 (1991). Wilander held, moreover, that

“[{i]t is not the employee’s particular job that is

determinative [of seaman status], but the employee’s

connection to a vessel.” Jd. at 817. Because a ship

repairman may spend all or most of his working

hours aboard a vessel (including a special-purpose

vessel used exclusively in ship repair), in further-

ance of that vessel’s mission, such a worker may qual-

ify as a Jones Act seaman.

Petitioner’s contention that ship repairmen, ship-

builders, and ship breakers should be conclusively

presumed not to be Jones Act seamen ignores the

LHWCA’s express language excluding from coverage

a “master or member of a crew of any vessel.” And

because Congress’s enumeration of certain occupa-

* This sentence is misquoted at Pet. App. II-6.

7

tional categories was not intended to be exhaustive,

petitioners’ approach would draw an irrational dis-

tinction between those in the enumerated categories

(longshoremen, ship repairmen, shipbuilders, and

ship-breakers) and other maritime employees. Peti-

tioner incorrectly relies on cases holding that certain

injured railroad workers who would otherwise have

a remedy under the Federal Employers’ Liability

Act, 45 U.S.C. 51 et seq., are instead covered by the

exclusive remedial provisions of the LHWCA. These

cases are readily distinguishable because the LHWCA

contains no express exclusion for railroad workers

comparable to the exclusion of Section 2(3)(G) for

crew members.

The legislative history confirms that Congress did

not intend to deprive seamen of their traditional

remedies for personal injury. The original LHWCA,

which applied only to longshore and harbor workers

injured on navigable waters, expressly excluded from

its coverage a “master or member of the crew of any

vessel.”” When the 1972 amendments to the LHWCA

extended coverage to certain maritime workers in-

jured on land, Congress limii* the categories of

land-based employees covered by the LHWCA by

specifying that they must be engaged in maritime

employment. But in extending the LHWCA to cer-

tain additional categories of land-based workers,

Congress did not intend to deprive sea-based workers

of their traditional seamen’s remedy under the Jones

Act.

Petitioner’s policy-based arguments cannot alter

the LHWCA’s plain language. Moreover, petitioner

is wrong in suggesting that an injured worker may

receive a “double recovery” under both the LHWCA

and the Jones Act. It is well settled that any com-

pensation received under the LHWCA will be credited

8

against a subsequent Jones Act award, and any

amounts paid to an employee pursuant to the Jones

Act must be credited against any subsequent liability

imposed under the LHWCA. Because employees can-

not receive a double recovery, it is not clear why

employers should be required to pay double insurance

premiums. The Court rejected a similar “double in-

surance” argument in Sun Ship, Inc. v. Pennsylvania,

447 U.S. 715, 725 (1980).

Nor is petitioner or its amicus correct in arguing

that an employee should be precluded from pursuing

a claim under the Jones Act simply because he has

also filed a claim under the LHWCA. Under estab-

lished principles of issue preclusion, only if the ques-

tion is actually litigated, and it is adjudicated that

an employee is not a member of a crew of any vessel,

is relitigation of that issue barred in an action under

the Jones Act.

Petitioner’s novel suggestion that the Department

of Labor should exercise primary jurisdiction over

the question whether a maritime employee is a sea-

man is outside the scope of the question presented for

review and, in any event, is without merit. Petition-

er’s reliance, in support of this suggestion, on the

exclusive remedy provision of the Federal Employees

Compensation Act (FECA), 5 U.S.C. 8116(c), is

completely misplaced. The courts defer to the Sec-

retary of Labor to determine whether an employee

is covered under FECA because that statute, unlike

the LHWCA, confers on the Secretary exclusive and

unreviewable authority to decide coverage questions.

9

ARGUMENT

I. JONES ACT SEAMEN ARE EXPRESSLY EX-

CLUDED FROM COVERAGE UNDER THE LHWCA

A. The LHWCA’s Definition of “Employee,” as Con-

strued in Wilander, Excludes Jones Act Seamen

By its terms, the LHWCA applies to “any person

engaged in maritime employment, including any long-

shoreman or other person engaged in longshoring

operations, and any harbor-worker including a ship

repairman, shipbuilder, and ship-breaker,” but not

to “a master or member of a crew of any vessel.” 33

U.S.C. 902(3). Congress could not have stated more

clearly that “a master or a member of a crew of any

vessel” is not within the scope of the LHWCA.

in McDermott Int'l, Inc. v. Wilander, 111 S. Ct.

807 (1991), this Court recognized that a “master or

member of a crew of any vessel’ under the LHWCA

is equivalent to a Jones Act seaman. The Court ob-

served that

“master or member of a crew” is a refinement

of the term “seaman” in the Jones Act; it ex-

cludes from LHWCA coverage those properly

covered under the Jones Act. Thus, it is odd but

true that the key requirement for Jones Act

coverage now appears in another statute.

111 S. Ct. at 813. The Court added that “ ‘master

or member of a crew’ restates who a ‘seaman’ under

the Jones Act is supposed to be: a sea-based maritime

employee.” Jd. at 814.

In Wilander, the Court concluded that “the better

rule is to define ‘master or member of a crew’ under

the LHWCA, and therefore ‘seaman’ under the Jones

Act, solely in terms of the employee’s connection to a

10

vessel in navigation.” 111 S. Ct. at 817. Accord-

ingly, the Court held that “[i]t is not necessary that

a seaman aid in navigation or contribute to the trans-

portation of the vessel, but a seaman must be doing

the ship’s work.” Jbid. The Court viewed this rule

as consistent with “Congress’ land-based /sea-based

distinction” between the LHWCA and the Jones Act.

Ibid. Because the Jones Act was intended to address

“the special hazards and disadvantages to which they

who go down to the sea in ships are subjected,” ibid.

(quoting Seas Shipping Co. v. Sieracki, 328 U.S. 85,

104 (1946) (Stone, C.J., dissenting) ), the Court said

that “it is not the employee’s particular job that is

determinative, but the employee’s connection to a

vessel.” * 111 S. Ct. at 817.

Thus, the plain language of the LHWCA excludes

from its coverage any “master or member of a crew

of any vessel”—i.e., any Jones Act seaman. As the

Court observed in Wilander, “[t]here is no indica-

tion in the Jones Act, the LHWCA, or elsewhere, that

Congress has excluded from Jones Act remedies those

traditional seamen who owe allegiance to a vessel at

sea, but who do not aid in navigation.” 111 S. Ct.

at 817. Accordingly, if respondent has the requisite

connection to a vessel in navigation, he is entitled to

* Wilander generally approved the Fifth Circuit’s test for

determining seaman status, which focuses on whether an em-

ployee was “assigned permanently to a vessel (including spe-

cial purpose structures not usually employed as a means of

transport but designed to float on water)” and whether the

employee “contributed to the function of the vessel or the

accomplishment of its mission.” Offshore Co. v. Robison, 266

F.2d 769, 779 (1959) (Wisdom, J.): see also Barrett v.

Chevron, U.S.A., Inc., 781 F.2d 1067, 1073 (1986) (en banc).

11

the remedies available to seamen rather than the ben-

efits provided by the LHWCA.*

* Petitioner (Pet. Br. 45-48) and its amicus (Shipbuilders

Council Br. 17-20) contend that, as a matter of law, respond-

ent lacked sufficient connection to a vessel in navigation to

qualify for seaman status. This contention is not within the

question on which the Court granted certiorari. See Sup. Ct.

R. 24.1(a). In any event, we believe that the question whether

respondent’s special-purpose structures may be “vessels” is

properly one to be determined as a question of fact. The

courts of appeals have held that a “vessel” can be virtually

any structure that has as its purpose and business, to some

reasonable degree, “the transportation of passengers, cargo,

or equipment from place to place across navigable waters.”

Johnson V. John F. Beasley Constr. Co., 742 F.2d 1054, 1063

(7th Cir. 1984) (quoting Bennett v. Perini Corp., 510 F.2d

114, 116 (1st Cir. 1975), cert. denied, 469 U.S. 1211 (1985)).

See also Cook v. Belden Concrete Prods., Inc., 472 F.2d 999,

1001 (5th Cir.), cert. denied, 414 U.S. 868 (1973) ; Producers

Drilling Co. Vv. Gray, 361 F.2d 432, 487 (5th Cir. 1966). In

addition, this Court has generally taken an expansive view

of what constitutes a “vessel.” See Norton v. Warner Co.,

321 U.S. 565, 571 (1944) ; Senko v. LaCrosse Dredging Corp.,

352 U.S. 370, 372 (1957) ; Gianfala v. Texas Co., 350 U.S. 879,

rev’g 222 F.2d 382 (5th Cir. 1955); Herb’s Welding, Inc. Vv.

Gray, 470 U.S. 414, 416 n.2 (1985). See also 1 U.S.C. 3.

Similarly, the question whether respondent had the requi-

site connection to vessels in navigation is, in our view, one

to be determined by the trier of fact. Respondent alleged

that he was “permanently assigned” to a “group of vessels”

J.A. IV-3. A seaman need not have an invariable connection

to a single vessel. Ardoin v. J. Ray McDermott & Co., 641

F.2d 277, 281 (5th Cir. 1981) (collecting cases). And con-

trary to the suggestion of the Shipbuilders Council (Br. 17),

seaman status has never turned on whether the employee

sleeps aboard the vessel. See, e.g., Senko, 352 U.S. at 372;

Gianfala, 350 U.S. 879; Ardoin, 641 F.2d at 282 (“[Mlerely

sleeping and eating aboard a support vessel while working on

a fixed platform does not make one a seaman * * *, Nor does a

failure to do so deprive one of seaman’s status.”’).

12

B. Petitioner’s Exclusive Focus on Job Title Conflicts

With The Language of the LHWCA

Petitioner asserts (Pet. Br. 15-25) that respond-

ent was a “land-based employee” covered by the

LHWCA as a matter of law because his occupation

was one of those enumerated in Section 2(3) of that

Act. In support of this position, petitioner relies on

Pizzitolo vy. Electro-Coal Transfer Corp., 812 F.2d

977 (5th Cir. 1987), cert. denied, 484 U.S. 1059

(1988). In Pizzitolo, the Fifth Circuit said that mar-

itime workers whose occupations are enumerated in

Section 902(3) are “unqualifiedly covered by the

LHWCA and therefore ineligible for benefits under

the Jones Act.” 812 F.2d at 982. Pizzitolo has not

been followed by other circuits, and appears to be a

doubtful precedent even within the Fifth Circuit.’

Because Pizzitolo’s approach is contrary to the lan-

guage of the LHWCA, it should be rejected.

In addition to limiting coverage to injuries that

occur on navigable waters or certain areas adjoin-

ing navigable waters (the “situs test”), the LHWCA

establishes a “status test” to determine coverage

under the Act. To pass the “status test,” a covered

employee must be (1) engaged in “maritime employ-

®In a subsequent case, the Fifth Circuit granted rehearing

en banc to address the tension between Robison and Pizzitolo,

but the parties subsequently settled the case. Legros V.

Panther Services Group, Inc., 863 F.2d 345 (1988), reh’g

en banc granted, 863 F.2d 355, appeal dismissed, 874 F.2d

954 (1989). See Chauvin v. Sanford Offshore Salvage, Inc.,

868 F.2d 735, 739 n.14 (5th Cir. 1989). In addition, the

Fifth Circuit has tended to analyze cases under both Robison

and Pizzitolo in order to verify that the outcome is the same

under both approaches. See, e.g., Leonard v. Dixie Well Serv-

ice & Supply, Inc., 828 F.2d 291 (1987) ; Thibodeaur v. Torch,

Inc., 858 F.2d 1048, 1050 (1988).

13

ment, including * * * [but not limited to] a ship

repairman, shipbuilder, and ship-breaker,” 33 U.S.C.

902(3), and (2) not fall within any of the exclusions

of Section 2(3)(A)-(H), including the exclusion for

a “master or member of a crew of any vessel,” 33

U.S.C. 902(3)(G). Only employees who satisfy both

parts of the status test are covered by the LHWCA.’

Petitioner’s contention is flawed for an additional

reason. The enumeration of occupations in Section

902(3) is not exhaustive. See Chesapeake & Ohio Dy.

v. Schwalb, 110 S. Ct. 381, 384 (1989); Herb’s Weld-

ing, Ine. v. Gray, 470 U.S. 414, 423 n.9 (1985).

Thus, petitioner’s argument, which would apply a

conclusive presumption of LHWCA coverage to ship

repairmen, shipbuilders, and ship-breakers, would

draw an irrational distinction between workers in

those occupations and other land-based maritime

workers. There is no indication that Congress in-

tended to draw any such distinction.

Of course, a ship repairman may lack the requisite

connection to a vessel in navigation to qualify for

seaman status. See P.C. Pfeiffer Co. v. Ford, 444

U.S. 69, 80-81 (1979) (noting that “30%-35% of

ship repair work is done on land”). The mere fact

that a ship repairman performs some of his work

on water does not make him a seaman, but a ship

repairman may spend all or most of his working

hours aboard a vessel (or vessels), in furtherance

? Petitioner does not suggest that the other express exclu-

sions of Section 2(3)—such as the exclusion for “individuals

employed by a club, camp, recreational operation, restaurant,

museum, or retail outlet,” 33 U.S.C. 902(3) (B), or for “indi-

viduals employed to build, repair, or dismantle any recrea-

tional vessel under sixty-five feet in length,” 33 U.S.C.

902(3)(F) should be so ignored.

14

of the vessel’s mission. In such circumstances, the

employee may meet the test for seaman status, since

that test turns on employees’ work-related connec-

tion to a vessel in navigation, “regardless of the par-

ticular job they perform.” See Wilander, 111 S. Ct.

at 817. Consequently, job title alone cannot deter-

mine whether an employee is a seaman covered by the

Jones Act or a_harbor-worker covered by the

LHWCA.*

C. The FELA Cases Do Not Support Petitioner’s

Position

Petitioner contends (Pet. Br. 31-33) that the court

of appeals’ decision in this case conflicts with deci-

sions holding that the LHWCA provides the exclusive

remedy for certain injured railroad workers who

would otherwise be covered by the Federal Employ-

ers’ Liability Act (FELA), 45 U.S.C. 51 et seg. See

Chesapeake & Ohio Ry. v. Schwalb, 110 8. Ct. 381

(1989); Pennsylvania R.R. v. O'Rourke, 344 U.S.

334 (1953). Petitioner’s reliance on these cases is

misplaced. The LHWCA applies to certain railroad

® Courts look to actual job content rather than job title

under other remedial statutes designed to protect workers.

See, e.g., Brennan Vv. Western Union Tel. Co., 561 F.2d 477 (3d

Cir. 1977), cert. denied, 434 U.S. 1063 (1978) (Fair Labor

Standards Act of 1938, 29 U.S.C. 201 et seq.); Hodgson Vv.

The Klages Coal & Ice Co., 435 F.2d 377 (6th Cir.) (same),

cert. denied, 412 U.S. 973 (1970); Forsberg v. Pacific N.W.

Bell Tel. Co., 840 F.2d 1409 (9th Cir. 1988) (Equal Pay Act

of 1963, 29 U.S.C. 206(d)); Epstein v. Secretary, United

States Dep’t of Treasury, 739 F.2d 274 (7th Cir. 1984)

(same); Fountain Vv. Metcalf, Zima & Co., 925 F.2d 1398

(11th Cir. 1991) (Age Discrimination in Employment Act of

1967, 29 U.S.C. 621). An exclusive focus on job title would

allow employers to affect coverage determinations by manipu-

lating job titles.

15

workers (and therefore provides their exclusive rem-

edy) because the LHWCA contains no exclusion for

railroad workers comparable to the exclusion of Sec-

tion 2(3)(G) for Jones Act seamen. Indeed, the

FELA analogy demonstrates that petitioner’s posi-

tion cannot be squared with the language of the

LHWCA. Petitioner would treat Jones Act seamen,

who are expressly excluded from the LHWCA’s defi-

nition of “employee,” in the same manner as railroad

workers, who are not so excluded. That result can be

reached only by ignoring the language of the

LHWCA.’

It. NEITHER THE LEGISLATIVE HISTORY OF THE

LHWCA, NOR THIS COURT’S PRIOR DECISIONS,

SUGGEST THAT CONGRESS INTENDED TO DIs-

PLACE THE TRADITIONAL REMEDIES AVAIL-

ABLE TO SEAMEN

A. The Legislative History Confirms That Congress

Did Not Intend to Deprive Seamen of Their Tradi-

tional Remedies for Personal Injury

The legislative history of the LHWCA provides no

support for petitioner’s assertion (Pet. Br. 24) that

Congress intended “to sweep employees in oveupa-

tions enumerated in the LHWCA within the excly

sive coverage of the LHWCA.” Instead, the legisla-

tive history confirms that Congress intended to ex-

clude seamen from coverage under the LHWCA. In

1972, Congress extended the LHWCA to injuries that

® Contrary to petitioner’s assertion (Pet. Br. 5), Section

5(a) of the LHWCA (the “exclusivity provision”) does not

itself provide that all maritime employees engaged in enumer-

ated occupations are covered by the LHWCA. Section 5(a)

provides only that, where the LHWCA applies, it is exclusive;

it says nothing about the scope of the LHWCA.

16

occur on land adjacent to navigable waters. That

expansion of remedies was not intended to deprive

seamen of their traditional remedies under the Jones

Act and general maritime law.

1. The Original LHWCA Did Not Apply to Seamen

In Southern Pacific Co. v. Jensen, 244 U.S. 205

(1917), this Court held that the States could not con-

stitutionally extend their workers’ compensation sys-

tems to longshore workers injured on navigable wa-

ters. See Northeast Marine Terminal Co. v. Caputo,

432 U.S. 249, 256-257 (1977); Calbeck v. Travelers

Ins. Co., 370 U.S. 114, 117-118 (1962). Following

Jensen, “[t]he line of demarcation between land and

water became known as the Jensen line.” Director,

OWCP vy. Perini North River Associates, 459 U.S. 297,

306 (1983). Congress enacted the LHWCA in 1927

to fill the gap in workers’ compensation coverage that

resulted from Jensen. P.C. Pfeiffer Co. v. Ford, 444

U.S. 69, 72 (1979). The original Act excepted from

its coverage a “master or member of a crew of any

vessel,” ch. 509, § 2(3), 44 Stat. 1425, because repre-

sentatives of maritime employees successfully argued

that the Jones Act and other traditional admiralty

remedies generally provide superior relief. See Boatel,

Inc. v. Delamore, 379 F.2d 850, 856 (5th Cir. 1967)

(citing Norton v. Warner Co., 321 U.S. 565 (1944) ).

This Court has recognized a duty “not [to] permit

the exception to be narrowed whether by administra-

tive construction or otherwise.” /d. at 571.

2. The 1972 Amendments to the LHWCA Did Not

Restrict the Remedies Available to Seamen

The original LHWCA “stopped at the water’s edge.”

Caputo, 432 U.S. at 259. With the advent of modern

containerized shipping, however, longshoring func-

tions traditionally performed aboard ship came to be

17

performed on land. Ford, 444 U.S. at 74. Once

again, therefore, coverage under the LHWCA de-

pended on which side of the Jensen line a longshore

worker’s injury occurred. In Nacirema Operating

Co. v. Johnson, 396 U.S. 212 (1969), this Court noted

the advantages of a uniform system of compensation

benefits for longshore workers on both sides of the

Jensen line, but said that the “invitation to move

that line landward must be addressed to Congress,

not to this Court.” Jd. at 224.

In 1972, Congress accepted the invitation by enact-

ing amendments to the LHWCA. “Whereas prior to

1972 the Act reached only accidents occurring on

navigable waters, the amended 33 U.S.C. § 903 ex-

pressly extended coverage to ‘adjoining area[s]’” on

land. Herb’s Welding, Inc. v. Gray, 470 U.S. at 420.

The 1972 amendments “were not meant ‘to cover em-

ployees who are not engaged in loading, unloading,

repairing, or building a vessel, just because they are

injured in an area adjoining navigable waters used

for such activity.’” Jd. at 424 (quoting H.R. Rep.

No. 1441, 92d Cong., 2d Sess. 11 (1972)). For ex-

ample, truck drivers and clerical workers, although

performing their work on the newly expanded site of

coverage, are not covered by the LHWCA, because

they are not engaged in “loading, unloading, repair-

ing, or building a vessel.” S. Rep. No. 1125, 92d

Cong., 2d Sess. 13 (1972). See also Caputo, 432 U.S.

at 266-267; Perini, 459 U.S. at 318. Thus, when the

definition of “navigable waters” was broadened to

include land-based sites, “it became necessary to de-

scribe affirmatively the class of workers Congress

desired to compensate.” Caputo, 432 U.S. at 264."

In the course of its deliberations on the 1972 amend-

ments, Congress rejected S. 1547, 92d Cong., Ist Sess. (1971),

a bill that would have made the LHWCA the exclusive remedy

18

This legislative history provides no basis for con-

cluding that, in enumerating certain occupations in

Section 2(3), Congress intended to limit the remedies

traditionally available to seamen. On the contrary,

Congress retained the express exclusion for masters

or members of the crew of any vessel. See Caputo,

432 U.S. at 264 n.22.”

B. Petitioner’s Approach Is Inconsistent With the Re-

medial Purposes of the LHWCA and the Jones Act

The Jones Act, like the LHWCA, “is a remedial

statute,” Wilander, 111 S. Ct. at 814; the Court has

recognized an “obligation not to narrow unduly the

for offshore oil workers. See Longshoremen’s and Harbor

Workers’ Compensation Act Amendments of 1972: Hearings

on S. 2318, S. 525, S. 1547 Before the Subcomm. on Labor of

the Senate Comm. on Labor and Public Welfare, 92d Cong.,

2d Sess. 418-420 (1972) (statement of Joseph M. Shelton) ;

id. at 602 (statement of John R. Martzell). The bill was

opposed on the ground that it would relegate an entire class

of workers traditionally treated as crew members to the less

advantageous remedy available under the LHWCA. See id.

at 589-590 (statement of Maritime Trades Dep’t, AFL-CIO).

See also Herb’s Welding, Inc., 470 U.S. at 420 n.5.

11 Petitioner’s reliance (Pet. Br. 37-39) on the 1984 amend-

ments to the LHWCA is similarly misplaced. The 1984

amendments prohibit negligence actions by ship repairmen,

ship builders, and ship-breakers (but not longshore workers)

against employers who happen to own the vessel on which

they are injured. See H.R. Rep. No. 570, 98th Cong., Ist Sess.

Pt. 1, at 7 (1983). Because the 1984 amendments do not bar

negligence actions against employer-owners, the amend-

ments do not reflect an across-the-board intent to limit the

employer’s liability. In any event, the 1984 amendments con-

cern only the remedies available to employees covered by the

LHWCA. They do not affect the definition of a covered

employee.

19

class for whom Congress provided recovery under the

Jones Act,” id. at 815. Although the LHWCA gen-

erally is interpreted broadly to further its remedial

purposes, see, e.g., Caputo, 432 U.S. at 268, it is

not appropriate to construe the LHWCA to sup-

plant remedies under the Jones Act, which is it-

sel a federal remedial statute that must be given

broad effect. As Judge Wisdom noted in Robison,

“(t]he process of liberal construction of the Jones

Act cannot now be ignored because Congress has seen

fit to pass the Longshoremen’s Act.” 266 F.2d at 774

(quoting Carumbo v. Cape Cod S.S. Co., 123 F.2d

991, 995 (1st Cir. 1941) ).”

In Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715

(1980), this Court held that the 1972 amendments to

the LHWCA did not supplant state workers’ compen-

sation remedies previously available to injured work-

ers. Because the “thrust of the amendments was to

‘upgrade the benefits,’” id. at 723 (quoting S. Rep.

No. 1125, supra, at 1), the Court declined to pre-

empt state remedies in the name of “uniformity.”

447 U.S. at 726. It is at least as clear that the 1972

amendments were not designed to deny maritime em-

ployees the Jones Act remedy to which they were

previously entitled.”

2 It is true that the LHWCA, like most workers’ compen-

sation statutes, struck a balance between the interests of

workers and their employers. See Morrison-Knudsen Constr.

Co. v. Director, OWCP, 461 U.S. 624, 635-636 (1983). But

the balance was not struck to the detriment of Jones Act

seamen. On the contrary, Congress expressly excluded crew

members from the scope of the LHWCA.

13 We recognize that the court of appeals’ decision would

leave one category of employees—crew members whose em-

ployers are not negligent—without a remedy under either the

Jones Act or the LHWCA. But this is simply a consequence

20

C. This Court’s Decisions Construing the 1972 Amend-

ments Do Not Support Petitioner’s Position

Contrary to petitioner’s contentions (Pet. Br. 20-

25), this Court’s prior decisions construing the 1972

amendments do not support a different reading of

the statute or its legislative history. Northeast

Marine Terminal Co. v. Caputo, 432 U.S. 249

(1977), held that a worker who checked and marked

cargo at a pier, and a terminal laborer who loaded

and unloaded containers, barges, and trucks, were

covered by the LHWCA. Similarly, P.C. Pfeiffer Co.

v. Ford, 444 U.S. 69, 83 (1979), held that employees

who performed the “intermediate steps of moving

cargo between ship and land transportation” were

engaged in maritime employment. /d. at 82. The

Court’s central concern in both Caputo and Ford was

to interpret the status requirement in a way that

eliminated Congress’s “concern[] that some workers

might walk in and out of [federal] coverage” depend-

ing upon the fortuity of whether they worked on

land or water. Ford, 444 U.S. at 83 n.18. Congress’s

decision to eliminate the significance of the Jensen

line for land-based workers does not imply a decision

to restrict the remedies available to seamen. On the

contrary, as the Court noted in Caputo, 432 U.S. at

of providing the same treatment for all maritime employees

who meet the “seaman status” test for coverage under the

Jones Act. We also note that the Jones Act generally has not

been held to require seamen to show a high degree of negli-

gence, see, e.g., Bennett v. Perini Corp., 510 F.2d 114, 117-

118 (1st Cir. 1975), and that a seaman unable to establish

liability under the Jones Act may nevertheless be able to

pursue claims for unseaworthiness (which does not require

proof of negligience, see Seas Shipping Co. v. Sieracki, 328

U.S. 85 (1946)), or for maintenance and cure.

21

264 n.22, Congress retained the express exclusion for

crew members.

In Director, OWCP vy. Perini North River Asso-

ciates, 459 U.S. 297 (1983), the Court refused

to revive the “maritime but local” distinction to mark

a dividing line between federal and state compensa-

tion systems. The Court found nothing in the 1972

amendments or their legislative history to “indicate

that Congress intended to withdraw coverage from

employees injured on the navigable waters in the

course of their employment as that coverage existed

before the 1972 Amendments.” /d. at 325. The Court

was careful to note that a worker injured on navi-

gable waters “satisfies the status requirement in

§ 2(3), and is covered under the LHWCA, providing,

of course, that he * * * is not excluded by any other

provision of the Act.” Jd. at 324."

Ill. PETITIONER’S POLICY-BASED ARGUMENTS ARE

UNPERSUASIVE

Petitioner argues (Pet. 8) that the court of ap-

peals’ decision will impose “an unreasonable economic

burden” on financially troubled employers. The short

answer to this argument, as well as to petitioner’s

other policy-based arguments, is that it cannot alter

the plain language of the LHWCA. In any event,

petitioner’s policy arguments fail on their own merits.

‘ Contrary to petitioner’s contention (Pet. Br. 24 n.85),

Perini does not conflict with Wilander, because there was no

evidence that the injured worker had the requisite connection

to a vessel to qualify as a Jones Act seaman.

22

A. The Court of Appeals’ Decision Will Not Lead to

Double Recoveries

Petitioner states (Pet. Br. 12) that the court of

appeals’ decision “allows an injured worker to possi-

bly receive both a jury award and a LHWCA rem-

edy, despite Congress’ intention that he receive one

or the other, but not both.” If petitioner is suggest-

ing that there may be a double recovery, the sug-

gestion is flatly wrong. Any benefits paid by an

employer under the LHWCA are credited against a

subsequent Jones Act award. See Simms v. Valley

Line Co., 709 F.2d 409, 412 n.3 (5th Cir. 1983); 4 A.

Larson, Workmen’s Compensation Law § 90.51(a),

at 16-508 to 16-509 & n.86 (1990) (collecting cases).

Because the LHWCA and Jones Act are mutually

exclusive, “[n]o problem of double recovery is

involved: the compensation payments [under the

LHWCA] will be routinely deducted from the dam-

age recovery if the Jones Act action is successful.”

G. Gilmore & C. Black, The Law of Admiralty § 6-52,

at 435 (2d ed. 1975). Cf. Sun Ship, Ine. v. Pennsyl-

vania, 447 U.S. 715, 725 n.8 (1980) (“Of course,

there is no danger of double recovery under concur-

rent [federal and state] jurisdiction since employers’

awards under one compensation scheme would be

credited against any recovery under the second

scheme.”). Moreover, Section 3(e) of the LHWCA

provides that any amounts paid to an employee “pur-

suant to” the Jones Act “shall be credited against

any liability imposed” under the LHWCA. 33 U.S.C.

903(e).

Petitioner also argues (Pet. Br. 5) that the court

of appeals’ decision will compel employers to insure

maritime employees under both the LHWCA and

Jones Act. Since employees are not entitled to double

23

recovery, it is not clear why employers should be re-

quired to pay full insurance premiums for coverage

under both statutes. But in any event, this Court

rejected a similar argument in Sun Ship, Ine. v.

Pennsylvania, 447 U.S. 715 (1980), in the context of

state workers’ compensation remedies. The Court

noted that “[t]he line that circumscribes the juris-

dictional compass of the LHWCA—a compound of

‘status’ and ‘situs’—is not less vague than its counter-

part in the pre-‘twilight zone’ Jensen era.” Id. at

725. Similarly, it may be difficult to determine in

advance whether a particular employee falls within

one of the LHWCA’s occupations. See, e.g., Sharp

v. Wasau Ins. Co., 917 F.2d 885, 887 (5th Cir. 1990)

(rejecting determination that injured employee was a

longshoreman). Thus, even under petitioner’s ap-

proach, employers often could not rule out the possi-

bility of Jones Act liability.

B. Under Established Principles of Issue Preclusion,

Only an Adjudication Under the LHWCA That an

Employee Is Not a Crew Member Precludes Litiga-

tion of a Jones Act Claim

Petitioner implies (Pet. Br. 9), and its amicus

Shipbuilders Council of America expressly argues

(Br. 21-23), that an employee’s receipt of benefits

under the LHWCA should preclude any subsequent

litigation under the Jones Act. Under established

principles of issue preclusion, however, respondent’s

acceptance of voluntary LHWCA payments does not

preclude subsequent litigation of his Jones Act claim.

Only if the question is actually litigated, and it is

adjudicated that an employee is not a crew member,

is the employee precluded from litigating a Jones

Act claim. See, e.g., Boatel, Inc. vy. Delamore, 379

F.2d at 855; 4 A. Larson, supra, § 90.51(c), at 16-

24

519. See generally Restatement (Second) of Judg-

ments §27 (1982). It is in this sense that the

LHWCA is not “a stepping stone on the way to a

jury award.” Fontenot v. AWI, Inc., 923 F.2d 1127,

1133 & n.41 (5th Cir. 1991) (citing Kremer v. Chem-

ical Constr. Corp., 456 U.S. 461, 480-482 (1982)).

To go beyond the rules of issue preclusion in this

context, and to apply some more draconian election-

of-remedies rule to bar Jones Act relief, would be

wholly inappropriate. As a leading commentator has

observed, it “would undermine and prejudice the

operation of this protective public program if the

claimant were put in the position of risking the loss

of other valuable rights, such as those under the Jones

Act, by the mere fact of accepting or invoking this

basic system of compensation” under the LHWCA.

4 A. Larson, supra, § 90.51(b), at 16-512.

In accordance with these principles, it is “uni-

versally accepted” that an employee who receives vol-

untary payments under the LHWCA, see 33 U.S.C.

914(a), 20 C.F.R. 702.231, is not barred from sub-

sequently seeking relief under the Jones Act. 4 A.

Larson, supra, § 90.51(a), at 16-507. See, e.g., Simms

v. Valley Line Co., 709 F.2d 409 (5th Cir. 1983) ;

Robertson v. Donovan, 219 F. Supp. 364 (E.D. La.

1963); Lawrence v. Norfolk Dredging Co., 194 F.

Supp. 484 (E.D. Va. 1961); Chesser v. General

Dredging Co., 150 F. Supp. 592 (S.D. Fla. 1957).

Similarly, if a claim under the LHWCA is not ad-

judicated, the claimant is not precluded from seeking

Jones Act relief. Boatel, Inc. y. Delamore, 379 F.2d

850 (5th Cir. 1967); Wilkes v. Mississippi River

Sand & Gravel Co., 202 F.2d 383 (6th Cir.), cert.

denied, 346 U.S. 817 (1953): Oliver v. Ocean

Drilling & Exploration Co., 222 F. Supp. 843 (W.D.

La. 1963); Boyles v. Humble Oil & Refining Co.,

25

209 F. Supp. 857 (E.D. La. 1962). Absent an ad-

judication that satisfies the prerequisites for issue

preclusion, there is nothing “sinister” about an em-

ployee who accepts benefits under the LHWCA and

then proceeds to litigate a Jones Act claim. Boatel,

Inc. vy. Delamore, 379 F.2d at_854.

C. Petitioner's “Primary Jurisdiction” Argument Is

Without Merit

Petitioner advances the novel proposition (Pet.

Br. 40-45) that, where an employee is arguably cov-

ered by the LHWCA, the district court should “stay

the Jones Act proceeding until the plaintiff has ob-

tained a final LHWCA agency determination that

he is a ‘master or member of a crew,’ i.e., a Jones

Act ‘seaman.’” Jd. at 44. We believe this argu-

ment is not fairly embraced within the question pre-

sented for review, which is addressed to whether

those in the enumerated occupations are per se ex-

cluded from Jones Act coverage. See Sup. Ct. R.

24.1(a). But in any event, the argument is with-

out merit.

Petitioner relies (Br. 44 n.155) on the exclusive

remedy provision of the Federal Employees Compen-

sation Act (FECA), 5 U.S.C. 8116(c). Petitioner

is correct that, where there is a substantial question

of coverage under FECA, the courts will stay or dis-

miss an action under the Federal Tort Claims Act

(FTCA), 28 U.S.C. 2671 et seq., until the Depart-

ment of Labor determines whether FECA applies.

See, e.g., DiPippa v. United States, 687 F.2d 14, 20

(3d Cir. 1982); Avasthi v. United States, 608 F.2d

1059, 1060 (5th Cir. 1979). But petitioner is in-

correct in drawing an analogy between the FECA /

FTCA relationship and the LHWCA/Jones Act rela-

tionship. FECA—unlike the LHWCA—contains an

26

“unambiguous and comprehensive” provision barring

any judicial review of the Secretary’s determination

of FECA coverage. Lindahl v. OPM, 470 U.S. 768,

780 (1985). Thus, the courts have no jurisdiction

over FTCA claims where the Secretary of Labor

determines that FECA applies to the alleged injury.

Grijalva v. United States, 781 F.2d 472, 474 (5th

Cir.), cert. denied, 479 U.S. 822 (1986); Heilman

v. United States, 731 F.2d 1104, 1109-1110 (3d Cir.

1984) ; DiPappa, 687 F.2d at 16.

In the LHWCA/Jones Act context, in contrast,

Congress has assigned no such dominating role to

the Secretary of Labor. The LHWCA contains no

bar to judicial review, but instead provides for reso-

lution of factual disputes by ALJs, review by the

Benefits Review Board and, thereafter, by the courts

of appeals. 33 U.S.C. 919(d), 921(b). South Chi-

cago Coal & Dock Co. v. Bassett, 309 U.S. 251

(1940), on which petitioner relies (Pet. Br. 41),

stands only for the proposition that a fact-finder’s

determination of crew-member status must be ac-

cepted if it is supported by substantial evidence. See,

e.g., Norton v. Warner Co., 321 U.S. at 571-573

(overturning deputy commissioner’s determination

that a bargeman was not a seaman). Thus, there is

nothing anomalous about having a jury decide sea-

man status under the Jones Act.

15 Section 8128(b) provides that

{t]he action of the Secretary or his designee in allowing

or denying a payment under [FECA] is—(i) final and

conclusive for all purposes and with respect to all ques-

tions of law and fact; and (2) not subject to review by

another official of the United States or by a court by

mandamus or otherwise.

In addition, the Secretary is to decide all questions “arising

under” FECA. 5 U.S.C. 8145.

27

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

DAVID L. SHAPIRO

Deputy Solicitor General

ROBERT A. LONG, JR.

Assistant to the Solicitor General

ROBERT P. DAVIS

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

KERRY L. ADAMS

Counsel for Appellate Litigation

DEBORAH GREENFIELD

Attorney

Department of Labor

May 1991

WW Uv. S. GOVERNWENT PRINTING OFFICE, 1991 262061 20540