Opposition Brief — Universal Fabricators, Inc. v. Smith

OCTOBER TERM, 1989

UNIVERSAL FABRICATORS, INC., PETITIONER

A

CARL SMITH, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether an employee engaged as a structural

fitter who spent a significant portion of his work

time in activities expressly included in the statutory

definition of maritime employment—the loading or

unloading of vessels and the repair and building of

vessels—was “engaged in maritime employment”

within the meaning of Section 2(3) of the Longshore

and Harbor Workers’ Compensation Act (LHWCA),

33 U.S.C. 902(3) (1982 & Supp. V 1987).

2. Whether a yard adjoining navigable waters

and used for the loading and unloading of vessels,

as well as for the fabrication and repair of compo-

nents for vessels and fixed offshore oil drilling plat-

forms, is a covered situs under Section 3(a) of the

LHWCA, 33 U.S.C. 903(a) (1982 & Supp. V 1987).

(1)

TABLE OF CONTENTS

Page

Teen ee nn rnonenerrnrecnsnerersoces eae 1

a cnnnsneaenoneensensccssocsres 1

Neen eee nn nee cavncnenemsnsnsnarensranens 2

Neen ee ee ceetmmnmmarenmsioasecnenonenens 6

I SEE Aw 12

TABLE OF AUTHORITIES

Cases:

Boudloche v. Howard Trucking Co., 632 F.2d 1346

(5th Cir. 1980), cert. denied, 452 U.S. 915

EE 4

Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d

A : 9

Browning V. B.F. Diamond Construction Co., 676

F.2d 547 (11th Cir. 1982), cert. denied, 459

Neen es oncsuuansvceresernces 9

Caldwell v. Ogden Sea Transport, Inc., 618 F.2d

Neen enensnoensccncenensasees 10

Chesapeake & Ohio Ry. Vv. Schwalb, 110 S. Ct. 381

EE 6, 8, 9, 10

Dravo Corp. Vv. Banks, 567 F.2d 593 (3d Cir.

Teens sneonansecesonaconre 10

Fusco Vv. Perini North River Associates, 622 F.2d

1111 (2d Cir. 1980), cert. denied, 449 U.S. 1131

EEE ED 9-10

General Dynamics Corp. Vv. Sacchetti, 681 F.2d 37

Neen counsoenenceras 9

Herb’s Welding, Inc. v. Gray, 470 U.S. 414 (1985)... 3, 7,

9,11

Howard Vv. Rebel Well Service, 632 F.2d 1348 (5th

| Na cosmcewensmeoseneres 4

| Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d

EE 5

| Northeast Marine Terminal Co. v. Caputo, 432

2s 3, 4, 5, 6, 7, 8, 11-12

P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979)........ 8

(III)

IV

Cases—Continued : Page

Sanders v. Alabama Dry Dock & Shipbuilding Co.,

841 F.2d 1085 (11th Cir. 1988).............................- 9

Stockman V. John T. Clark & Son, Inc., 589 F.2d

264 (1st Cir. 1976), cert. denied, 483 U.S. 908

CRIB IE De xcns:sistennissistsninicencsgcsaeaasaitadigeanaabacasts sgacamaginciadia ances 9

Voris v. Eikel, 346 U.S. 328 (1958) ~.......2..20............ 12

Weyerhaeuser Co. V. Gilmore, 528 F.2d 957 (9th

Cir. 1975), cert. denied, 429 U.S. 868 (1976)... 10

Statutes :

Longshore and Harbor Workers’ Compensation

Set. TE Uae Bet ie ON sche 2

§ 2(3), 38 U.S.C. 902(3) (1982 & Supp. V

fnew ? ana 3, 6, 7, 9, 10

§3(a), 33 U.S.C. 903(a) (1982 & Supp. V

TIE B intthsccsicecosecsdipmnsoncieobccsiiaeeadamaemnia 8, 5, 6, 10, 11

§ 13, 33 U.S.C. 913 (1982 & Supp. V 1987).. 3

Miscellaneous:

S. Rep. No. 1125, 92d Cong., 2d Sess. (1972) ........ 6

Iu the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-711

UNIVERSAL FABRICATORS, INC., PETITIONER

Vv.

CARL SMITH, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A8) is reported at 878 F.2d 843. The decision of the

Benefits Review Board (Pet. App. A9-A16) is re-

ported at 21 Ben. Rev. Bd. Serv. (MB) 83. The de-

cision of the administrative law judge (Pet. App.

A17-A26) is reported at 20 Ben. Rev. Bd. Serv.

(MB) 707 (ALJ).

JURISDICTION

The judgment of the court of appeals was entered

on July 31, 1989, and the petition for a writ of cer-

tiorari was filed on October 30, 1989 (a Monday).

(1)

2

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

1. Petitioner Universal Fabricators, Ine., em-

ployed respondent Carl Smith from January 1981

to April 1982, primarily as a structural fitter who

cut pieces of metal for use in building seagoing ves-

sels and fixed offshore oil drilling platforms. During

the course of his employment, Smith spent 126 days

constructing a drilling barge, 66 days fabricating

“stingers” (devices attached to vessels that lay pipe

beneath the sea), five days repairing a component

of a drilling tender, four days installing rubber

bumpers on barge bumpers, two days constructing

a walkway for a “jack-up” barge, at least five days

loading barges, and 103 days building and repairing

components for fixed offshore oil drilling platforms.

Smith performed all his employment duties at peti-

tioner’s yard, which adjoined navigable waters. Pet.

App. A2-A3, A10-A11, A19-A21.

On April 30, 1982, Smith suffered a back injury

in petitioner’s yard while placing a piece of floor

plating that was to be installed on a fixed offshore

oil drilling platform. As a result of the accident,

Smith was totally and permanently disabled, and he

has not worked since the date of the injury. Sub-

sequently, on February 22, 1985, he filed a claim for

compensation with respondent Department of Labor

under the Longshore and Harbor Workers’ Compen-

sation Act (LHWCA), 33 U.S.C. 901 et seg. Pet.

App. A2-A3, A10, A19-A20.

2. The ALJ found that Smith satisfied the statu-

tory eligibility requirements and awarded him bene-

fits. Pet. App. A17-A26. The principal issues before

the ALJ were whether the “status” and “situs” re-

3

quirements for coverage under Sections 2(3) and

3(a) of the Act were met. See 33 U.S.C. 902(3),

903(a) (1982 & Supp. V 1987).' After a hearing,

the ALJ found that during the 15 months of Smith’s

employment with petitioner, he “worked all or part

of at least 221 days in activities covered by the Act,”

i.e., loading and unloading vessels and repairing and

building vessels and their components. Pet. App.

A23. The ALJ further determined that Smith had

spent 103 days in non-covered tasks, 7.e., fabricating

parts for fixed offshore oil drilling platforms. [bid.,

citing Herb’s Welding, Inc. v. Gray, 470 U.S. 414

(1985). Relying on Northeast Marine Terminal Co.

v. Caputo, 4382 U.S. 249, 278 (1977), the ALJ held

that because Smith spent “at least some of his time

in covered activities,” he satisfied the status require-

ment, even though he was not engaged in maritime

employment at the time of his injury. Pet. App. A238.

The ALJ also concluded that Smith sustained his

injury on a covered situs, finding that petitioner’s

yard “adjoined the navigable waters of the United

States” and that after fabrication, the components

for vessels and oil drilling platforms were customar-

ily loaded onto barges for shipping at petitioner’s

yard. Pet. App. A21-A22. Noting that “the situs

requirement simply mandates that the general area

1 Petitioner also contended that Smith’s claim was untimely

under Section 13 of the LHWCA, 33 U.S.C. 913 (1982 &

Supp. V 1987). The ALJ rejected that contention on the

ground that Smith’s receipt of payments under the state

workers’ compensation act tolled the LHWCA’s statute of

limitations. Pet. App. A24. That ruling was affirmed by the

Benefits Review Board (id. at Al5) and the court of appeals

(id. at A7-A8), and is not challenged in the petition for a

writ of certiorari.

- 2

4

where a claimant is injured be customarily used for

loading, unloading, repairing, dismantling, or build-

ing a vesel, and does not require the specific locus

of the injury to be in such a place” (id. at A21)

the ALJ determined that although the injury “did not

occur at the locus of a maritime activity[,] * * *

the general area of [petitioner’s] fabrication yard

was used for the maritime purpose of loading barges.”

Id. at A22.

3. The Benefits Review Board affirmed. Pet. App.

A9-A16. The Board first rejected petitioner’s argu-

ment that in determining whether Smith was en-

gaged in maritime employment, the ALJ should have

considered “the nature of the work which claimant

was performing when he was injured, how long he

nad been assigned to the work, the sequence of work

to which he was assigned immediately preceding the in-

jury, and the fact that the employer was not engaged

in shipbuilding work on the day of the injury.” Id.

at Al2-A13. The Board explained that petitioner’s

“arguments * * * neglect that claimant need not have

been engaged in maritime activities at the time of

the injury as long as he spent ‘at least some of [his]

time’ in covered activities’ (id. at A1i3, quoting

Northeast Marine Terminal, 482 U.S. at 273). The

Board was unpersuaded by petitioner’s contention

that Smith’s work constructing a drilling barge was

merely a one-time project in maritime activity, be-

cause it ignored his other involvement in “loading

and unloading component parts onto barges as well

as his fabrication of scanners [stingers],’” activities

similar to those previously characterized as maritime

by the Fifth Circuit. Jbid., citing Boudloche v. How-

ard Trucking Co., 632 F.2d 1346 (5th Cir. 1980),

cert. denied, 452 U.S. 915 (1981), and Howard v.

Rebel Well Service, 632 F.2d 1848 (5th Cir. 1980).

5

The Board also agreed with the ALJ’s situs deter-

mination, Pet. App. Al4, observing that “[t]he situs

test simply requires that the general area in which

claimant is injured be customarily used for [mari-

time tasks], and does not require that the area be

exclusively used for maritime purposes.” Jbid. Ac-

cordingly, in the Board’s view, the ALJ properly held

that “claimant was injured on a covered situs despite

the fact that nis injury did not occur at the locus of

[petitioner’s] maritime activities.” bid.

4. The court of appeals affirmed the Board’s rul-

ing. Pet. App. Al-A8. The court first concluded that

substantial evidence supported the finding that Smith

spent a “significant portion of [his] time * * * in

indisputably longshore operations,’ and _ therefore

met the Act’s status requirement. /d. at A5. Reject-

ing petitioner’s reliance on Jacksonville Shipyards,

Inc. v. Perdue, 539 F.2d 533 (5th Cir. 1976), which

indicated that an employee must actually have been

performing or been directly involved in maritime em-

ployment at the time of the injury, the court noted

that this Court’s subsequent decision in Northeast

Marine Terminal, as well as later Fifth Circuit deci-

sions, establish that the LHWCA’s coverage includes

“persons whose employment is such that they spend

at least some of their time in indisputably longshor-

ing operations.” Pet. App. A4-A5 (emphasis omitted),

quoting 432 U.S. at 273. The court also affirmed the

Board’s situs determination, based on the ALJ’s find-

ing that petitioner “was engaged in maritime activi-

ties in an area adjoining the water.” Jd. at A6. The

court rejected as “overbroad,” and contrary to the

express language of Section 3(a), petitioner’s conten-

tion that the Act’s protection should not extend to

land-based workers such as Smith. bid.

6

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or

of any othercourt of appeals. Accordingly, further

review is not warranted.

1. In 1972, Congress extended the coverage of the

LHWCA in order “to protect additional workers.”

S. Rep. No. 1125, 92d Cong., 2d Sess. 1 (1972). Con-

gress first modified the Act’s “situs” requirement by

extending coverage shoreward. It thus expanded the

definition of “navigable waters” under Section 3(a),

33 U.S.C. 903(a) (1982 & Supp. V 1987), to in-

clude “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.” See

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

385 (1989).

At the same time, Congress amended the definition

of “employee” in Section 2(3), 33 U.S.C. 902(3)

(1982 & Supp. V 1987), to describe affirmatively the

class of workers in that area eligible for benefits.

Congress accordingly added the requirement that the

injured worker be “engaged in maritime employ-

ment,” which it defined to “includ[e] any longshore-

man or other person engaged in longshoring opera-

tions, and any harbor-worker, including a ship re-

pairman, shipbuilder, and ship-breaker * * *.” See

Northeast Marine Terminal, 432 U.S. at 263-264.

Applying this two-prong test for LHWCA coverage,

the court of appeals correctly held that Smith satis-

fied the statutory requirements.

2. The court of appeals properly sustained the

conclusion of both the ALJ and the Benefits Review

Board that Smith was “engaged in maritime employ-

7

ment” within the meaning of Section 2(3). Smith

worked for petitioner for approximately 15 months.

The ALJ found that Smith spent a considerable part

of this period in “loading or unloading vessels, and

* * * in the repair and building of vessels and com-

ponents of vessels” (Pet. App. A23), activities enu-

merated as “maritime employment” in the Act. See

33 U.S.C. 902(3) (1982 & Supp. V 1987). Petitioner

does not dispute this finding.’ It instead argues (Pet.

6-9) that the determination that a worker is covered

if he performed maritime tasks for a portion of his

work time, even though he was not engaged in a

maritime activity at the moment of injury, conflicts

with this Court’s decisions in Northeast Marine Ter-

minal and Herb’s Welding, Inc. v. Gray, 470 U.S.

414 (1985), and with the decisions of other courts

of appeals. This argument is without merit.

The court of appeals’ decision is clearly consistent

with Northeast Marine Terminal. There, in examin-

ing the landward reach of the 1972 LHWCA amend-

ments for the first time, the Court considered the

claims of two workers: a “checker,” who was re-

sponsible for checking and recording cargo as it was

loaded or unloaded, and a longshoreman, who at the

time of injury was working as a “terminal laborer”

helping to load discharged cargo into trucks. The

Court held that the checker satisfied the status re-

quirement because his checking the contents of a

container on shore on the day of the accident was

“an integral part of the unloading process as altered

by the advent of containerization.” 432 U.S. at 271.

The Court further held that the terminal laborer met

2In the court of appeals, petitioner likewise did not chal-

lenge the ALJ’s and the Board’s conclusion that a portion of

Smith’s employment had been spent in maritime activities.

8

the status test because he spent at least some of his

time in “indisputably longshoring operations.” /d.

at 273. In the Court’s view, the Act’s “focus on oc-

cupations and its desire for uniformity” supported

continuous coverage for workers under the LHWCA.

Id. at 276. See also P.C. Pfeiffer Co. v. Ford, 444

U.S. 69, 83 n.18 (1979) (citing with approval “the

holding of Northeast Marine Terminal * * * that a

worker is covered if he spends some of his time in

indisputably longshoring operations” ).

Just this Term, Justice Blackmun, in a concurring

opinion joined by Justices Marshall and O’Connor,

confirmed the continuing validity of this “amphibi-

ous worker” doctrine articulated in Northeast Marine

Terminal and Ford. In Chesapeake & Ohio Ry. v.

Schwalb, the Court held that two terminal workers

injured while engaged in janitorial tasks during the

ship-loading process, and a pier machinist injured

while repairing loading equipment, were “employees”

covered by the LHWCA because they were injured

while performing tasks essential to the process of

loading ships. 110 S. Ct. at 385-386. In joining the

Court’s opinion, Justice Blackmun wrote separately

to stress that “[i]n light of Northeast Marine Termi-

nal Co., * * * it is not essential to [the Court’s]

holding that the employees were injured while actu-

ally engaged in these tasks. They are covered by

LHWCA even if, at the moment of injury, they had-

been performing other work that was not essential

to the loading process.” 110 S, Ct. at 386. Noting

that a purpose of the 1972 amendments was “to solve

the problem that under the pre-1972 Act employees

would walk in and out of LHWCA coverage,” Jus-

tice Blackmun stated that to limit coverage to em-

ployees who are performing maritime work at the

9

moment of injury “would bring the ‘walking in and

out of coverage’ problem back with a vengeance.”

Id. at 386-387.’

Nor does the court’s resolution of the status issue

conflict with any decision of another circuit. The

appellate courts uniformly have held that workers

who spend at least some of their time in undeniably

maritime activities, although not engaged in such

activities at the moment of injury, are employees for

purposes of the Act. Browning v. B.F. Diamond Con-

struction Co., 676 F.2d 547, 548 (11th Cir. 1982),

cert. denied, 459 U.S. 1170 (1983); Brady-Hamilton

Stevedore Co. v. Herron, 568 F.2d 137, 140 (9th Cir.

1978); Stockman v. John T. Clark & Son, Inc., 539

F.2d 264, 274 (1st Cir. 1976), cert. denied, 433 U.S.

908 (1977). The decisions cited by petitioner (Pet.

6-7) simply do not address this issue. Instead, they

consider whether the injured worker performed any

maritime duties at all.‘ None articulates a rule that

% Petitioner’s reliance (Pet. 9-10) on Herb’s Welding is mis-

placed. There, the Court held that a person whose work con-

sisted solely of welding a gas flow line on a fixed offshore

drilling platform was not “engaged in maritime employment”

within the meaning of Section 2(3) of the LHWCA. 470 U.S.

at 425-426. But neither the Board nor the court below relied

on Smith’s building and repairing of fixed platform compo-

nents as establishing his maritime employment. Rather, they

correctly relied on his other, indisputably maritime activities

to establish that he spent at least a portion of his time in

covered employment. See Pet. App. A2-A3, A5, A12.

4See Sanders vy. Alabama Dry Dock & Shipbuilding Co.,

841 F.2d 1085, 1088 (11th Cir. 1988) (“responsibilities as a

Labor Relations Assistant satisfy the status test’) ; General

Dynamice Corp. Vv. Sacchetti, 681 F.2d 37, 39 (1st Cir. 1982)

(“the tasks at issue are a necessary incident to the fabrica-

tion of a ship,” and therefore are covered) ; Fusco v. Perini

North River Associates, 622 F.2d 1111, 1113 (2d Cir. 1980)

10

a worker must be engaged in a maritime task at the

time of his injury.®

3. The court of appeals’ conclusion that Smith’s

injury occurred on a covered situs also comports

fully with the statutory test. Under the LHWCA,

benefits are payable for “an injury occurring upon

the navigable waters of the United States (including

any * * * adjoining area customarily used by an

employer in loading, unloading, repairing, disman-

tling or building a vessel).” 33 U.S.C. 903(a) (1982

& Supp. V 1987). Smith was injured at petitioner’s

yard, which the ALJ found “adjoined the navigable

waters of the United States.” Pet. App. A21. The

(“activities had nothing significant to do with navigation or

with commerce on navigable waters,” and therefore were not

covered), cert. denied, 449 U.S. 1131 (1981); Caldwell v.

Ogden Sea Transport, Inc., 618 F.2d 1037, 1050 (4th Cir.

1980) (‘nature of [worker’s] duties may not have been fully

developed on the record, thereby leaving the question of

LHWCA status open for resolution”) ; Dravo Corp. Vv. Banks,

567 F.2d 598, 595 (3d Cir. 1977) (worker’s “duties have no

traditional maritime characteristics,” and therefore are not

covered) ; Weyerhaeuser Co. Vv. Gilmore, 528 F.2d 957, 961

(9th Cir. 1975) (it is “illogical to think of [employee’s] work

and duties at or on an upland sawmill’s log pond as ‘maritime

employment’ ’’), cert. denied, 429 U.S. 868 (1976). -

5 Petitioner apparently perceives a circuit conflict because it

misapprehends the decision below. Contrary to petitioner’s

assertions (Pet. 5-7), the court simply did not address the

question whether a land-based worker who is not engaged in

one of the enumerated occupations in Section 2(3) must be

“directly involved” in or have a “realistically significant rela-

tionship to” traditional maritime activities. That is because

Smith unquestionably performed some work that is expressly

included in the enumeration of occupations in Section 2(3) :

longshoring and ship building and repairing. Pet. App. A5d.

See Chesapeake & Ohio Ry. v. Schwalb, 110 S. Ct. at 385.

11

ALJ further determined that Smith sustained his

injury in the fabrication area of the yard, where

components for both vessels and fixed offshore oil

drilling platforms were made and repaired, and that

“the general area of [petitioner’s] fabrication yard

was used for the maritime purpose of loading

barges.” Jd. at A22. The Board affirmed, likewise

concluding that petitioner’s “yard was customarily

used for its loading and unloading activities, as well

as for its fabrication and repair of parts for vessels

in addition to its platform work.” /d. at Al4. The

court of appeals’ situs ruling rests on these findings.

See id. at A6.

Petitioner appears to challenge (Pet. 10) the court

of appeals’ situs determination solely on the ground

that an oil drilling platform situated in the yard

was the precise location of Smith’s injury and that

such a platform does not meet the Act’s situs re-

quirement. This contention misapprehends the statu-

tory scheme. By the terms of Section 3(a), the focus

of the Act is on the “area” in which the injury oc-

curred (here, petitioner’s yard), not on any partic-

ular piece of equipment within that “area.” See

Northeast Marine Terminal, 432 U.S. at 280-281."

Any other inquiry would be illogical and contravene

the settled rule that the LHWCA “ ‘must be liberally

construed in conformance with its [remedial] pur-

pose, and in a way which avoids harsh and incon-

gruous results.’” Northeast Marine Terminal, 432

* Petitioner errs in arguing (Pet. 9-10) that Herb’s Weld-

ing is to the contrary. In that case, the Court held that a

welder on an offshore drilling platform was not covered by

the LHWCA because he did not have the status of an “em-

ployee” within the meaning of the Act, not because such a

platform could never be a covered situs. See 470 U.S. at 425.

12

U.S. at 268, quoting Voris v. Eikel, 346 U.S. 328,

333 (1953). Because petitioner does not dispute that

the yard itself was an “adjoining area,” and there-

fore a covered situs for purposes of the LHWCA, the

court of appeals’ holding to that effect does not war-

rant review.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT P. DAVIS

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

STEVEN J. MANDEL

Counsel for Appellate Litigation

ANNE PAYNE FUGETT

Attorney

Department of Labor

JANUARY 1990

ov. S. GOVERNMENT PRINTING OFricE; 1990