Reply Brief — Dutra Grp. v. Batterton, 139 S. Ct. 627 (2018) (No. 18-266)

No. 18-266

Supreme Court of the Anited States

THE DUTRA GROUP,

Petitioner,

Vv.

CHRISTOPHER BATTERTON,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR PETITIONER

BARRY W.PONTICELLO SETH P. WAXMAN

RENEE C. St. CLAIR Counsel of Record

ENGLAND, PONTICELLO PAUL R.Q. WOLFSON

& Str. CLAIR DAviD M. LEHN

701 B. Street Suite 1790 CHRISTOPHER ASTA

San Diego, CA 92101 WILMER CUTLER PICKERING

(619) 225-6450 HALE AND DORR LLP

bponticello@eps-law.com 1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

seth. waxman@wilmerhale.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES

ARGUMENT

I. THERE Is A REAL AND DURABLE SPLIT

BETWEEN THE MOST IMPORTANT LOWER

ADMIRALTY COURTS

Il. THis CASE IS AN APPROPRIATE VEHICLE

TO RESOLVE THIS IMPORTANT ISSUE

ILL. THE DECISION BELOw Is INCORRECT

12

CONCLUSION

ij

TABLE OF AUTHORITIES

CASES

Page(s)

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

404 (2009) passim

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

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

600 (7th Cir. 2014) 3

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

1496 (5th Cir. 1995) 6

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

Bi ese aserscssernsssssecscssesssessessesmnsesenssesensesessssreese 6

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

(en banc) 3

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

96 (1944) 9

McAllister v. Magnolia Petroleum Co., 357

U.S. 221 (1958) 9

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

777 (5th Cir. 2017) 2

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

382 (5th Cir. 2014) passim

Miles v. Apex Marine Corp., 498 US. 19

(1990) 3, 5, 9-11

Moragne v. States Marine Lines, Inc., 398 US.

375 (1970) )

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

(1928) 7,9

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

iii

TABLE OF AUTHORITIES—-Continued

Page(s)

Sechoard Air Line Railway v. Koennecke, 239

U.S. 362 (1915) , 7

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

In THE

Supreme Court of the United States

No. 18-266

THE DUTRA GROUP,

Petitioner,

v~.

CHRISTOPHER BATTERTON,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

3

maritime law,” referring to unseaworthiness actions.

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

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

precedent”); ,

Palmer, 9A ¥ 24 TT1, 788 (D.C. Cir. 1991) (en bane)

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

a concurrence to form a Marks majority”).

In any event, contrary to respondent’s suggestion

(at. 6-7), a majority of the en bane Fifth Circuit explicit-

and

cuit authority, ... [pjunitive damages are not recovera-

“personal injury actions as well as ... wrongful death

action|s|.” /d. at 388-389 (punctuation modified).

According to respondent (at 6), two concurring

4

those judges’ position, which was not markedly differ-

Miles “dictatel d] the outcome” for personal-injury

claims because, they explained, Miles involved only a

wrongful-death claim (id. at 401-402) they did not “fol-

low| Atlantic Sounding Co. v.| Townsend,” 657 US.

only maintenance and cure” and therefore was not con-

trolling in unseaworthiness cases. /d. at 404 (Haynes,

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

There can be no doubt that the Fifth and Ninth

Circuits disagree on the question presented here. Had

this case been brought in the Fifth Circuit, respond-

ent’s claim for punitive damages would have been dis-

missed. Nothing further is needed to establish a circuit

conflict.

Il. Tews Case is AN AprroraiatTe Venice To Resoive

‘THs IMPORTANT IssuEK

The divisions among lower courts between the

Ninth and Fifth Circuits, and also between the Wash-

ington Supreme Court and other federal and state ap

pellate courts (see Pet. 8-9)— is important and deserves

this Court’s prompt attention.

5

A. The Constitution “mandate[s!" nationally “uni-

form” maritime law. Miles, 498 U.S. at 27; Pet. 26; Br.

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

long as the current division persists, vessel owners and

will face uncertainty about their potential!

liability. Pet. 11 & n5, 26; ASPA Br. 6. The incon-

sistency also provides vessel owners that operate pri-

marily off the Gulf Coast an unwarranted financial ad-

vantage over those that operate primarily off the Pacif-

ic Coast, and gives plaintiffs an incentive to engage in

forum shopping. No policy justification supports such a

result.

Further, the substance of the ruling below is deep-

ly problematic. ‘The potential for massive punitive

damages awards will likely increase operating costs for

maritime owners and employers, to the detriment of

our national economy, environment, and security. Pet.

23-26; ASPA Br. 34, 7-10 (allowing punitive damages

for unseaworthiness “will markedly increase maritime

operators’ litigation costs, result in higher prices for

consumers, make the U.S. maritime industry leas com-

petitive with industries in countries whose law pre-

cludes punitive damages”).

Respondent does not deny the constitutional im-

perative to eliminate the inconsistency in maritime law,

but does deny that allowing punitive damages in un-

seaworthiness cases threatens serious harms. Ke-

spondent questions (at 19, 21) whether there is support

for the notion that recognition of punitive damages for

unseaworthiness would cause “the collapse of the econ-

omy, the destruction of the environment, and the un-

dermining of national security.” But petitioner has not

made, and need not make, such dire claims. Rather, pe-

titioner has noted-—as many courts and commentators

have observed—that punitive damages, especially in

6

such an important sector of the economy, can have ad-

verse consequences and do raise serious concerns. See

Pet. 23-26.

Moreover, actual experience is far less informative

than respondent asserts, because there has never been

a sustained period when punitive damages were availa-

ble in unseaworthiness actions. As respondent con-

cedes (at 20), the discussion of punitive damages in /n

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

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

damages for unseaworthiness claims, as petitioner

acknowledged. See Pet. 16 1.10. But that regime was

fleeting, because it was widely understood that in 1990

Miles “effectively overruled” those cases and fore-

closed punitive damages for unseaworthiness. Guevara

v. Maritime Overseas Corp., 59 ¥ 3d 1496, 1607 (5th

Cir. 1996), abrogated by Townsend on other grounds,

557 U.S. 604; see Pet. 8-9 (collecting post-Miles cases

ne neuen os cen

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

ths question ones 0 cana tame

Court could not reverse the Ninth Circuit’s decision on

unseaworthiness unless it also addressed whether puni-

tive damages are available for Jones Act negligence

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

percolation on (the Jones Act] issue ... in light of Town-

send.” That argument lacks merit.

There is no serious doubt that punitive damages

are unavailable in negligence actions under the Jones

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

than a century this Court has recognized

that the Jones Act and the statute it incorporates, the

Federal Employers Liability Act (“FELA”), restrict

recovery to compensatory damages and thus disallow

7

punitive damages. See, ¢.g., Pacific S.S. Co. v. Peter-

son, 278 U.S. 130, 138 (1928) (Jones Act and unseawor-

thiness provide “right to recover compensatory damag-

es”); Seaboard Air Line Ry. v. Koennecke, 239 U.S. 352,

354 (1915) (reasoning that claim for punitive damages

must have arisen under state law because FELA did

not allow punitive damages). Respondent ignores those

precedents, but the lower courts have not, consistently

concluding that punitive damages are unavailable un-

der the Jones Act. As the en bane Fifth Circuit ob-

served, “no cases have awarded punitive damages” un-

der the Jones Act. McBride, 768 F.3d at 388. Indeed,

respondent must have recognized as much, for his com-

plaint did not request punitive damages under the

Jones Act—-which it surely would have done had re-

spondent thought the question remained open.

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

warrants reconsideration of this settled view is base-

less. In Townsend, the Court neither provided “guid-

ance” on this issue nor recognized it as an “open ques-

tion.” Br. in Opp. 12-13. All the Court said was that it

would “not address the dissent’s argument” that puni-

tive damages are unavailable in Jones Act negligence

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

nothing in Townsend suggesting that the settled view

is questionable.

Moreover, it is not correct that the Court could re-

verse the decision below only if punitive damages are

unavailable under the Jones Act. As noted in the peti-

tion (Pet. 20 n.11), and as seven Fifth Circuit judges

have concluded, even under the Townsend framework

punitive damages would be unavailable, because there

is no evidence that such damages were available for un-

seaworthiness claims before the Jones Act. McBride,

8

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

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

C. Respondent argues (at 14) that the Court

should deny the petition because “the jury may decide

not to award punitive damages.” That is just another

way of saying that this petition arises in an interlocuto-

ry posture, but that is not a good reason to deny the pe-

tition. Indeed, this Court heard Townsend in the same

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

Ninth Circuit’s decision squarely announces a rule of

law that will govern all future cases arising in that cir-

cuit. That ruling substantially increases the potential

liability faced by maritime owners and operators and

will amplify plaintiffs’ ability to pressure owners and

operators to settle meritless unseaworthiness claims.

There is no reason for this Court to defer reviewing the

Ninth Circuit’s decision until after those adverse con-

sequences have come to pass.

Ill. Tae Decrsion BeLow Is INCORRECT

Respondent is fond of saying (at 3, 18-19) that peti-

ee ee ee

that the Court rejected in Townsend.

mistaken. Seometadiaaiated tnenmnash th tities

had defined the limits of recovery in all types of actions

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

Petitioner makes no such argument; rather, petitioner

has pointed to Miles’s emphasis on the close relation-

ship between unseaworthiness actions under general

maritime law and negligence actions under the Jones

Act. Respondent’s failure to acknowledge that aspect

of Miles is a fundamental flaw in his position.

A. Just a few years after the Jones Act’s enact-

ment, this Court explained that, unlike maintenance

9

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

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

whether a claim invokes negligence or unseaworthiness

(or both), “there is but a single wrongful invasion.” I/d.

The Court has reaffirmed that unseaworthiness and

Jones Act negligence are alternatives to each other but

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

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

Those relationships explain the differing outcomes in

Miles and Townsend, and also explain why this case

falls under Miles.

Because unseaworthiness and Jones Act negligence

are alternatives, they have been understood to have a

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

unseaworthiness and Jones Act negligence embody a

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

unseaworthiness is “an alternative of the right to re-

cover compensatory damages under the Jones Act,”

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

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

The Court’s post-Jones Act “transformation of] the

warranty of seaworthiness into a strict liability obliga-

tion” added an important constitutional dimension to

the relationship between unseaworthiness and the

Jones Act. Miles, 498 U.S. at 25-26.’ Given that “revo-

lution,” this Court explained, “{i}t would be inconsistent

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

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

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

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

Inc., 398 US. 375, 398 (1970).

10

sanction more expansive remedies in a judicially creat-

ed cause of action in which liability is without fault” —

that is, unseaworthiness as redefined after the Jones

Act—than Congress had sanctioned for negligence un-

der the Jones Act. Miles, 498 U.S. at 25, 32-33 (punctu-

ation altered). Consequently, any “limit” on damages

that Congress placed on negligence under Jones Act

“forecloses more expansive remedies in a general mari-

time action founded on strict liability,” i.¢., post-Jones

Act unseaworthiness. /d. at 31, 36.

As the Court later explained in Townsend, Miles’s

analysis does not govern the proper remedy for

maintenance and cure because “the maintenance and

cure right is in no sense inconsistent with, or an alter-

native of, the right to recover compensatory damages

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

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

maintenance and cure and” a recovery under (either)

Jones Act negligence or unseaworthiness. Jd. Conse-

quently, the Court did not overstep its constitutional

role by defining the remedial scope of maintenance and

cure beyond the remedial scope of the Jones Act. See

ud. at 420-424.

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

statement in Townsend that “(tjhe reasoning of Miles

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

the central role that the relationship between the Jones

Act and unseaworthiness played in that reasoning. In

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

solely on the distinct historical evolution of the remedy

for wrongful death. That is a serious misreading of

Miles. Although the Court first decided whether to

recognize a claim for wrongful death based on unsea-

worthiness, 498 U.S. at 30-31, the Court’s ensuing anal-

ysis of the remedial scope of the claim—as the passages

11

just quoted show—turned on the relationship between

unseaworthiness and Jones Act negligence.

And the Court’s reasoning in Miles is directly rele-

vant to punitive damages for unseaworthiness whether

the seaman was injured or killed. Either way, the un-

seaworthiness action is a post-Jones Act creation of the

courts rather than Congress, and the scope of recovery

should not depend on the happenstance of whether the

seaman dies from the injury—any more than it should

depend on which alternative cause of action the plaintiff

invokes. The Court in Miles did not fail to recognize

that its decision would apply to personal injury cases as

ee ee

it would “not create, under our admiralty powers,

remedy .. ‘Guaneeiinadialtied Gana

ordered system of recovery for seamen’s injury and

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

C. Even if Congress had not spoken to the scope

of recovery and so the Townsend framework applied,

the decision below would be wrong. The dispositive

question in that analysis would be whether punitive

damages were historically available for unseaworthi-

ness claims, at least before the Jones Act was enacted.

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

were. As Judges Clement and Haynes recognized in

McBride, silence here speaks loudly, for the historical

record yields a total absence of cases recognizing puni-

tive damages in unseaworthiness claims. 768 F.3d at

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

concurring).

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

that punitive damages were available for unseaworthi-

ness before the Jones Act. The Rolph was decided af-

ter the Jones Act and gave no indication that it was ap-

12

plying a pre-Jones Act understanding of unseaworthi-

ness that permitted punitive damages. 293 F’. 269 (N.D.

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

consistently described the damages as “compensation.”

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

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

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

City of Carlisle concerned maintenance and cure. 39 F.

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

damages awarded were based on maintenance and

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

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

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

Neither history nor logic therefore supports punitive

damages in unseaworthiness cases.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

BARRY W.PONTICELLO SETH P. WAXMAN

RENEE C. St. CLAIR Counsel of Record

ENGLAND, PONTICELLO PAUL R.Q. WOLFSON

& St. CLAIR DAVID M. LEHN

701 B. Street Suite 1790 CHRISTOPHER ASTA

San Diego, CA 92101 WILMER CUTLER PICKERING

(619) 225-6450 HALE AND DORR LLP

bponticello@eps-law.com 1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

seth.waxman@wilmerhale.com

NOVEMBER 2018