# Opposition Brief — Universal Fabricators, Inc. v. Smith

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1070

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0546%3A2. Public record. Not legal advice.