# Petition for Writ of Certiorari — Shives v. CSX Transportation, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 1019

## Text

0) Sane Goh we.
sti O8— BST 0Ct 13198

Gn oyhe OFFICE OF THE CLERK

Supreme Court of the Chhited States

October Term 1998

LARRY W. SHIVES,

Petitioner,

Vv.

CSX TRANSPORTATION,
INCORPORATED,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

Petition for Writ of Certiorari

Allan B. Rabineau

Counsel of Record

Guy M. Albertini

P. Matthew Darby

Theresa A. Rosendale
ALBERTINI & DARBY, L.L.P.
3201 North Charles Street

Suite 1A

Baltimore, Maryland 21218
(410) 243-9400

Counsel for Petitioner

THE LEX GROUP ¢ 1205 East Main Street ¢ Suite 2 East ¢ Richmond, VA 23219
(804) 644-4419 @ (800) 856-4419 @ Fax: (804) 644-3256

UESTION P D

Whether an employee of a railroad who was injured
while working on a non-maritime related job
assignment is precluded from filing a claim under the
Federal Employers' Liability Act (FELA)?

PARTIES TO THE PROCEEDINGS

Petitioner, Larry W. Shives is a resident of Maryland.
He was the Plaintiff in the lower court proceedings of this
case and was the Appellee before the United States Court of
Appeals for the Fourth Circuit.

Respondent, CSX Transportation, Incorporated is a
corporation organized and existing under laws of Virginia.
Respondent was a Defendant to the action in the lower court
proceedings and was also the Appellant before the United
States Court of Appeals for the Fourth Circuit.

There are no other parties to this action.

TABLE OF CONTENTS
QUESTION PRESENTED 2.n.an..cccscssssssscscossssvsssccscssnseccecere i
PARTIES TO THE PROCEEDINGS ............ccscsscsssssesesesee ii
ANN OO IEEE cabo decdcsnstneesecaasascsnscesnecacsosie iii
TABLE OF AUTHORITIES. ............ssssscccssssssssssssesssssesessees iv
PETITION FOR WRIT OF CERTIORARI ........cccscssssssseee 1
REISE TEE ot oc 1
Harthill deconiesiacdnidnsanacactomeninansacossen 1
STATUTES INVOLVED IN THE CASE .........cccccsssssssesee:
STATEMENT OF THE CASE ...0.......ncssssscsccsncsocsccccconsssses 3
REASONS FOR GRANTING WRIT ..0......cscccscssesesccsssseees 5

1. The Fourth Circuit Opinion regarding
application of Longshore Harborworkers
Compensation Act (LHWCA) to a railroad
employee performing non-maritime activities
at the time of his injury is in conflict with
decisions of the United States Supreme Court

and other courts of appeals ..0.0.0........ccccscesecesessesseee. 5
AR RTE RN 14
Ts Sotaaitisiinieecehdicesisissdbapahnaiee toad nsec secs, os. App. 1

Cases Page
676 F.2d 547 (1 1 Cir. 1982), cert den.
Fs 2 I i I ells ereccecesccsnccssncesctece 10
Vv
493 U.S. 40, 110 S.Ct. 381,
og Re |
- 5h Sh rg gas 3. | Tea aac OneeE en 11,12
Hullin ies, Inc. v. ll
Ur a Re ME I hh ecccn na concncncesasees 10
In Re: CS ion, | rated

306 US. 12. 90 S.Ct. 347 (1969),
melee BNE ee 5

Northeast Marine Terminal Co. v. Caputo,
432 U.S. 249, 97 S.Ct 2348 (1977).......... 5,7,8,12,13

P.C. Pfeiffer Co., Inc. v. Ford,
444 U.S. 67, 100 S.Ct. 328 (1979).............. 5,9,10,11

Wilkerson v. McCarthy,
ee I es inch csiticotssiatentpiciatiiactidaneacboiion 13

iv

Statutes and Rules

EN TM LOA 1
Te cataninsieanneentl 2,6,7
i csemnsssscoromnmninsonet 2,6,7
POTS Pog 28 EE Se cae 1,4

PETITION FOR WRIT OF CERTIORARI

Larry W. Shives, respectfully petitions the United
States Supreme Court to issue a Writ of Certiorari to review the
judgment entered in this action by the United States Court of
Appeals for the Fourth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals for
the Fourth Circuit giving rise to this action is published at in
Re: CSX Transportation, Incorporated 151 F.3d 164 (4* Cir.
1998), and is reprinted in the Appendix ("App.") A-1 through
A-15. The opinion of the United States District Court for the
District of Maryland is unpublished and is reprinted at App. A-
16 through A-17.

JURISDICTION

The opinion of the United States Court of Appeals for
the Fourth Circuit was entered on July 16, 1998. The
jurisdiction of the United States Supreme Court is invoked
under 28 U.S.C. § 1254 (1).

STA RULES INVOLVED IN THE CASE
45 U.S.C. § 51 et seq.

Liability of common carriers by railroad, in
interstate or foreign commerce, for injuries to
employees from negligence; definition of
employees

Every common carrier by railroad while
engaging in commerce between any of the
several States or Territories, or between any of

l

the States and Territories, or between the
District of Columbia and any of the States or
Territories, or between the District of
Columbia or any of the States or Territories and
any foreign nation or nations, shall be liable in
damages to any person suffering injury while he
is employed by such carrier in such
commerce...for such injury or death resulting in
whole or in part from the negligence of any of
the officers, agents, or employees of such
carrier, or by reason of any defect or
insufficiency, due to its negligence, in its cars,
engines, appliances, machinery, track, roadbed,
works, boats, wharves, or other equipment...

33 U.S.C. § 902 et seq.
Definitions

The term "employee" means any person
engaged in maritime employment, including
any longshoreman or other person engaged in
longshoring operations, and any harborworker
including a ship repairman, shipbuilder, and
ship-breaker...

33 U.S.C. § 903, et seq.

Disability or death; injuries occurring upon
navigable waters of the United States

Except as otherwise provided in this
section, compensation shall be payable under
this chapter in respect of disability or death of
an employee, but only if the disability or death
results from an injury occurring upon the

2

navigable waters of the United States

(including any adjoining pier, wharf, dry dock,
terminal, building way, marine railway, or other
adjoining area customarily used by an employer
in loading, unloading, repairing, dismantling, or

building a vessel).
STATEMENT OF THE CASE
I. F G D

On August 28, 1996, Larry W. Shives ("Shives"), an
employee of CSX Transportation, Incorporated ("CSXT"), was
injured while working as a carman at the Seagirt Marine
Terminal in Baltimore, Maryland. Seagirt Marine Terminal is
an intermodal facility in Baltimore, Maryland in which freight
arrives at and is taken from the terminal by ship, truck and
train. As a carman, Shives assisted in loading and unloading of
trailers and containers from flatbed railcars. The trailers and
containers are removed from or placed onto railcars by crane.

The cranes are operated by employees of the Ceres
Corporation whose employees are longshoremen and members
of the International Longshoremen Association.

According to Shives, he was injured when he slipped
on oil and grease surrounding a hitch on one of the railcars.
None of the containers carried by the incoming train on which
Shives was working at the time of the accident, nor the trailer
Shives unhitched immediately before his accident were
destined for transport via any maritime vessel. In fact for the
entire six years Shives has worked at the Seagirt Marine
Terminal, only 15% of the containers carried daily into or out
of the entire marine terminal by trains were unloaded from or
onto ships.

Il. PROCED L RY

Petitioner, Larry W. Shives, filed a claim pursuant to
the Federal Employers’ Liability Act (FELA) 45 U.S.C. § 51,
et. seq. against his employer, Respondent, CSXT in the Circuit
Court for Baltimore City. CSXT filed a Notice of Removal in
the United States District Court for the District of Maryland,
Northern Division. CSXT asserted that Shives' claim arose
exclusively under the Longshore and Harbor Worker's
Compensation Act (LHWCA) and not under the Federal
Employers’ Liability Act (FELA) and would thus present a
removable federal question. At the same time, CSXT also
moved to dismiss Shives' claim asserting that Shives failed to
exhaust his administrative remedies under LHWCA.
Thereafter, Shives filed an opposition to CSXT's motion to
dismiss and also filed a motion to remand to the Circuit Court
for Ba!timore City.

The parties stipulated to the facts and submitted
supplemental briefs to the United States District Court. The
United States District Court (Smalkin, J.) in a Memorandum
Opinion dated August 4, 1997 rejected CSXT's assertion that
Shives had a claim under LHWCA and not under FELA. On
the same date, the District Court ordered that the case be
remanded to the Circuit Court for Baltimore City.

CSXT noted its appeal of the United States District
Court's Order on August 6, 1997 and on August 11, 1997 filed
a Petition for Writ of Mandamus requesting that the case be
reopened in the United States District Court and be dismissed
by said court. —

On appeal, the Fourth Circuit found that Shives was
engaged in maritime employment and thus his claim arose
exclusively under the LHWCA. The Fourth Circuit vacated
and remanded the case to the United States District Court with
instruction to dismiss the case brought under FELA and permit
Shives to exhaust his administrative remedies under LHWCA.

REASONS FOR GRANTING THE WRIT

I. The Fourth Circuit opinion regarding the application of
the LHWCA to railroad employee performing non-
maritime activities at the time of his injury is in conflict
with the United States Supreme Court and other courts
of appeal.

The Fourth Circuit opinion rejected Shives' proposed
application of the FELA to this case. The Fourth Circuit
concluded that Shives met the status test under LHWCA,
finding that status is "occupational, intending to provide
employees continuous coverage throughout their employment
at a maritime situs regardless of the particular activity at the
time of injury." Jn Re CSX Transportation, Incorporated, 151
F.3d 164, 169 (4th Cir. 1998). The Fourth Circuit opinion
discards the status requirement of LHWCA and misinterprets
the Supreme Court's holding in Northeast Marine Terminal Co.
v. Caputo 432 U.S. 249, 97 S.Ct 2348 (1977) and P.C. Pfeiffer
Co., Inc. v. Ford, 444 U.S. 67, 100 S.Ct. 328 (1979). The
Caputo and Pfeiffer decisions allowed recovery under the
LHWCA only when workers would have been considered
longshoremen as defined by LHWCA prior to its amendments
in 1972 or were not defined as longshoremen prior to the 1972
Amendments, but were engaged in the elements of loading,
unloading, repairing, dismantling or building a vessel at the
time of their injury.

Prior to 1972, in order for a longshoremen to be
covered by the LHWCA, said employee had to be injured upon
the navigable waterways of the United States. Coverage
depended entirely on the situs of the longshoremen at the time
of his injury. In Nacirema Operating Company v. Johnson,
396 U.S. 212, 90 S.Ct 347 (1969), reh den. 397 U.S. 929, this
Court rejected coverage of the LHWCA to three employees
who were knocked onto a pier when attaching cargo from
railcars to crane for loading on a ship. A fourth employee who

(

5

was knocked into the water was covered under LHWCA.1 This
Court reasoned that because three of the men did not fall into
the river or other navigable waterway they were not entitled to
compensation under LHWCA.

To address the inconsistencies in the LHWCA and to
stop longshoremen from walking in and out of federal versus
state workers' compensation coverage depending on where their
injury occurred, Congress amended LHWCA in 1972. The
1972 amendments replaced the purely situs test with a two
prong situs and status test to determine coverage under the Act.

The situs requirement found in 33 U.S.C. § 903(a)
extended coverage to injuries "upon the navigable waters of the
United States including any adjoining pier, wharf, dry dock,
terminal, building way, marine railway, or other adjoining area
customarily used by an employer in loading, unloading,
repairing, dismantling or building a vessel." Because the
expanded situs test reached any employee working at a marine
terminal, a status requirement was also included in the
amendments.

The status requirement is found in 33 U.S.C. § 902(3)
which defines an employee covered by the Act as "any person
engaged in maritime employment, including any longshoreman
or other person engaged in longshoring operations, and any
harborworker including a ship repairman, shipbuilder, and
shipbreaker..."

| No petition for writ of certiorari was sought in reference to the
employee who fell into the water.

—

In the present case there was no dispute that Shives met
the situs requirement under LHWCA. Shives was working on
a marine terminal which was specifically included in the
expanded situs requirement under 33 U.S.C. § 903(a).
Therefore, the analysis must tern on whether Shives met either
of the two alternative requirements for status under the Act
based upon 33 U.S.C. § 902(3) which requires that (1)
employee must either be a longshoreman or (2) be engaged in
longshoring operations [at the time of his injury]. Here, Shives
is clearly not a longshoreman. The District Court found that
Shives did not satisfy the status test necessary for jurisdiction
under the LHWCA. Shives was not engaged in any of the
essential elements of loading or unloading a vessel at the time
of his injury. Also, the Court noted that only 15% of the daily
container traffic handled by Seagirt Marine Terminal involved
cargo being loaded or unloaded from any maritime vessel.

The status requirement found in 33 U.S.C. § 902(3)
required that an employee be engaged in maritime employment
and indicated that maritime employment is defined as a
longshoreman or one engaged in longshoring work,
unfortunately neither the amendments themselves nor the
legislative history further defined maritime employment. See
Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249
(1977). Beyond this explanation it has been left to the courts
to set the parameters of what is included in maritime
employment.

This Court first addressed this issue in Northeast
Marine Terminal Co. v. Caputo , 432 U.S. 249 (1977) in which
this Court extended coverage to Blundo, a checker and Caputo,
a member of a regular longshoring gang. Blundo was
employed as a checker and was to check and record cargo as it
was loaded or unloaded onto vessels. On January 8, 1974,
Blundo slipped on ice and was injured when checking a
container unloaded from a vessel at another pier. Northeast
Marine Terminal Co., supra at 253. Caputo was a terminal
laborer who worked for different stevedoring companies at

7

Northeast Marine Terminal. On April 16, 1973, Caputo was
injured while helping load trucks with cargo discharged from
ships at that terminal. Both Blundo and Caputo were
longshoremen as defined by LHWCA prior to the 1972
Amendments, but would not have been covered before 1972
merely because their injuries occurred on land and not over
navigable waters. Thus, they would have been covered by the
state workers' compensation system of the state in question.
Under the expanded coverage provided by the 1972
Amendments, this Court held that both men were engaged in
maritime employment at the time of their injuries. Blundo's job
as a checker was to mark items as they were unloaded from a
vessel. This job was directly related to loading and unloading
of a vessel. Caputo was covered because his job had a direct
impact on loading and unloading of vessels. This Court
reasoned that Caputo was "the type of amphibious worker who
without the 1972 amendments would be covered for only part
of his activities." Northeast Marine Terminal 432 U.S. at 273.
Caputo was a longshoremen who was employed by a
stevedoring company and he performed his job unloading cargo
either on the vessel itself or on the pier. Because Caputo and
Blundo were both longshoremen as defined by the pre 1972
amendments, it is not necessary that they be performing
longshoring operations at the time of their injuries. This
interpretation is evidenced by Justice Marshall's statement in
Northeast Marine Terminal, supra at p. 273:

The Act focuses primarily on occupations -
longshoremen, harbor worker, ship repairman,
shipbuilder, shipbreaker. Both the text and the
history demonstrate a desire to provide
continuous coverage throughout their
employment to these amphibious workers who,
without the 1972 Amendments, would be
covered for only part of their activity. It seems
clear, therefore, that when Congress said it

8

wanted to cover "longshoremen" it had in mind
persons whose employment is such that they
spend at least some of their time in indisputably
longshoring operations and who, without the
1972 Amendments would be covered for only
part of their activity.

In the instant case, Shives is not the type of amphibious
worker Congress intended to protect unless he was engaged in
longshoring activities at the time of his injury. Shives' job as
a carman is to inspect railcars and assist in the loading and
unloading of flatbed railcars. He was certainly not a
longshoreman and would not have been considered a
longshoreman prior to the 1972 Amendments. In fact on the
day of Shives' accident, there were no vessels in the marine
terminal. Throughout the entire six years, Shives worked at the
terminal only 15% of all traffic in and out of the terminal even
involved ships.

This Court also addressed this issue in P.C. Pfeiffer
Company, Inc. v. Ford, 444 U.S. 69, 100 S.Ct. 328 (1979). In
that case, this Court affirmed LHWCA benefits for a
warehouseman and cotton header. While neither man was
injured on navigable waterways of the United States, they were
both performing longshoremen duties of transferring cargo
from ships to land transport. This Court cautioned however,
that not all employees who work in areas adjoining navigable
waters are covered by LHWCA.

Justice Powell stated:

The Committee does not intend to cover
employees who are not engaged in loading,
unloading, repairing or building a vessel, just
because they are injured in an area adjoining
navigable waters used for such activity. Thus
employees whose responsibility is only to pick

9

up stored cargo for further trans-shipment
would not be covered. Pfeiffer, supra, 444 U.S.
at 80, 100 S.Ct at 335 (1979).

Shives' job was not essential to loading or unloading a
vessel. His job was more in line with picking up cargo for
further shipment and under Pfeiffer could not be covered under
LHWCA. In other words, if an employee is not a
longshoreman, he must be engaged in longshoring activities at
the time of his injury.

However, the Court of Appeals for the Fourth Circuit is
overruling the District Court also ignored the importance of the
nature of the work Shives was engaged in at the time of his
injury. In fact, the Fourth Circuit concluded that the activity in
which Shives was performing at the time of his injury was of
little importance. Jn Re: CSX Transportation, Incorporated,
No. 97-2038, No. 97-2053, 151 F3d 164, 169 (4 Cir, 1998)
(emphasis added).

This reasoning is flawed because under the LHWCA,
an employee who is not a ongshoreman is only covered when
engaged in the elements of loading, unloading, repairing,
dismantling or building a vessel. See Hullinghorst Industries,
Inc. v. Carroll, 650 F.2d 750 (Sth Cir. 1981) cert den. 454 U.S.
1163, 102 S.Ct 1037; Browning v. B.F. Diamond Const. Co.,
676 F.2d 547 (11th Cir. 1982), cert den. 459 U.S. 1170, 103
S.Ct 814; Chesapeake & Ohio Ry. v. Schwalb, 493 U.S. 40, 110
S.Ct. 381, 107 L.Ed.2d 278 (1989).

If an employee is not a longshoreman and his job does
not affect the loading and unloading of a maritime vessel, then
the employee is not covered under the LHWCA simply because
the situs of his job is a marine terminal. See Pfeiffer 444 US.
at 83, 100 S.Ct at 337. In the case at bar, Shives was checking
containers that were being loaded from trains having originated
in Jacksonville, Florida onto trucks. At no time did the job in
which he was engaged have anything to do with the loading or
unloading of a vessel. Shives' job was not related in any way to

10

OE

maritime activities. There were no vessels at the terminal on
the day of the occurrence. To hold that Shives was engaged in
maritime employment under these circumstances would extend
coverage of the LHWCA well beyond the intentions of
Congress when it adopted LHWCA. S.Rep. No. 92-1125, p. 13
(1972) and H.R. Rep. No. 92-1441, pp. 10-11 (1972) as cited
in P.C. Pfeiffer Co., Inc. v. Ford, 100 S.Ct at 335, 444 U.S. at
80.

The Fourth Circuit's decision in Shives' case is in
contrast to its earlier decision in Hayes v. CSX Transportation,
inc., 985 F.2d 137 (4th Cir. 1993). The Fourth Circuit in
Hayes held that a carman was engaged in maritime
employment when he assisted the crane operators in unloading
1 train. However, the origins of the cargo which Hayes was
helping unload were unknown, but the Fourth Circuit assumed
"it was obvious that Hayes was engaged in maritime
employment at the time of his injury." Hayes, 985 F.2d at 142.

In the present case, the facts were quite different. Shives was
not engaged in the loading or unloading of a vessel. The train
on which Shives was working originated from Jacksonville and
all of its cargo was for transport by truck.

The District Court clearly found "a sharp contrast"
between the facts as they existed in the present case and the
facts in Hayes. Judge Frederic Smalkin in his Memorandum
Opinion, App. 17 stated:

... the evidence is undisputed that none of the
containers or other freight carried by the
incoming train on which Mr. Shives was
working at the time of his accident was destined
for transport by a maritime vessel, and that only
15% of the daily container traffic handled by
the terminal involved cargo from trains being
transhipped from boat to train or vice versa.
Under these circumstances, the Court is
constrained to conclude that, although the

11

Seagirt terminal is an appropriate situs for the
application of LHWCA, Mr. Shives did not
meet the status test at the time of his injury.

The Fourth Circuit's opinion seems to suggest that even
though he is clearly not a longshoreman, the work Shives was
performing at the time of his injury was of no legal import.
This contention would essentially strip the LHWCA of its
Status requirement and is not supported by the Fourth Circuit's
earlier decision in Hayes, 985 F.2d 137 (4th Cir. 1993) The
Court stressed in its decision that Hayes was “engaged in
maritime employment at the time of his injury." (emphasis
added) Hayes, 985 F.2d at 138. The Court in Hayes later states
that "it was obvious Hayes was engaged in maritime
employment at the time of his injury." Hayes, supra, 985 F.2d
at 142. The Hayes Court assumed from the limited factual
information that it was given that Hayes was engaged in
maritime employment at the time of his injury. Clearly, the
work they assumed Hayes to be doing when the accident
occurred was of considerable legal import.

In the Shives' case, no assumption is necessary. Shives
was not engaged in maritime activity at the time of his injury
and thus does not meet the status test required for coverage
under the LHWCA.

The Fourth Circuit also considered Respondent,
CSXT's argument that Congress intended to prevent employees
from walking in and out of coverage. While this may be true,
it is misapplied in this case. Congress intended to prevent
employees from walking in and out of federal versus state
coverage for their injuries. Congress was concerned about the
inadequacy of the state remedies available to longshoremen
depending on where they were injured. S.Rep /2-13, House
Report H.R. Rep. No. 92-1441 pp. 10-11 as cited in Northeast
Marine Terminal Co. v. Caputo, 432 U.S. 249, 261 (1977).

However, in the case of railroad workers Congress
enacted a separate statute called the Federal Employers’

12

, |

Liability Act, 45 U.S.C. §151, et. seq. FELA was specifically
enacted "to put on the railroad industry some of the cost for
legs, eyes, arms and lives which it consumes in its operations."
Wilkerson v. McCarthy, 366 U.S. 53, 68 (1949). There is no
such concern voiced as the policy behind the enacting of the
LHWCA and its 1972 Amendments. In Northeast Marine
Terminal Co. v. Caputo, 432 U.S. 249, 261, 97 S.Ct 2348
(1977),

Justice Marshall states:

The main concern of the 1972 Amendments
was not the scope of coverage but with
accommodating the desires of three interested
groups: (1) shipowners who were discontented
with the decisions allowing many maritime
workers to use the doctrine of "seaworthiness"
to recover full damages from shipowners
regardless of fault; (2) employers of the
longshoremen who, under another judicially
created doctrine, could be required to indemnify
shipowners and thereby lose the benefit of the
intended exclusivity of the compensation
remedy; and (3) workers who wanted to
improve the benefit schedule deemed
inadequate by all parties.

There can be no doubt that Shives was a railroad
worker at the time of his injury. He worked for CSXT as a
carman with his main duties being to hitch and unhitch flatbed
railcars. Congress intended railroad workers to be covered by
the law they specifically passed to compensate railroad workers
for injuries occurring while in the performance of their duties
for the railroad. It is difficult to imagine that Congress in
passing the 1972 Amendments of the LHWCA would be
concerned about an employee already adequately protected by

13

FELA, a statute which has been in force and effect since 1908.

The Fourth Circuit erred when it held that Shives' case
was governed by the LHWCA, instead of by the FELA. More
importantly, the Fourth Circuit's opinion extends the LHWCA
well beyond the boundaries Congress or this Court's earlier
decisions intended.

CONCLUSION

In view of the foregoing, Larry W. Shives, respectfully
requests this Court to grant the Petitioner's Writ of Certiorari.

Respectfully submitted, this 13th day of October, 1998.

Mik ihrtaw.

Allan B. Rabineau
Counsel of Record

Guy M. Albertini

P. Matthew Darby
Theresa A. Rosendale
3201 North Charles Street
Baltimore, MD 21218
(410) 243-9400

14

TABLE OF CONTENTS
Appendix to the Petition

Opinion,
United States Court of Appeals
for the Fourth Circuit
entered July 16, 1998 ooo... cccccccccceceeeeneeeee App. |

Memorandum Opinion,
United States District Court
for the District of Maryland
entered August 4, 1997................. iaupainatashdaan App. 16

Order,
United States District Court
for the District of Maryland
entered August 4, 1997 .............cccccccccecssesccece App. 18

App. i

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 97-2038

In Re: CSX TRANSPORTATION,
INCORPORATED,
Petitioner.

On Petition for Writ of Mandamus.
(CA-97-1611-S)

No. 97-2053

LARRY W. SHIVES,
Plaintiff-Appellee,

Vv.

CSX TRANSPORTATION, ae
INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-97-1611-S)

Argued: May 6, 1998
Decided: July 16, 1998
Entered: July 16, 1998

Before NIEMEYER and MICHAEL, Circuit Judges, and
FRIEDMAN, United States District Judge for the Eastern
District of Virginia, sitting by designation.

App. 1

Vacated and remanded with instructions by published
opinion. Judge Niemeyer wrote the opinion, in which Judge
Michael and Judge Friedman joined.

COUNSEL

ARGUED: Eric Rawson Harlan, Stephen Bennett Caplis,
WHITEFORD, TAYLOR & PRESTON, L.L.P., Baltimore,
Maryland, for Appellant. Perry Matthew Darby,
ALBERTINI & DARBY, Baltimore, Maryland, for
Appellee. ON BRIEF: Guy M. Albertini, Allan B.
Rabineau, Theresa A. Rosendale, ALBERTINI & DARBY,
Baltimore, Maryland, for Appellee.

OPINION

—_—

NIEMEYER, Circuit Judge:

The question presented is whether a worker was
engaged, at the time of his work-related injury, in "maritime
employment" as defined in the Longshore and Harbor
Workers' Compensation Act, 33 U.S.C. § 902(3), when his
job at a marine terminal included the loading and unloading
of ships only 15% of the time and when he was unloading
non-maritime freight from a train at the time of his injury.
Because we hold that the worker was engaged in maritime
employment, we vacate and remand to the district court with
instructions to dismiss this case, which was brought under
the Federal Employers’ Liability Act, to permit the
administrative process on the worker's pending Longshore
Act claim to run its course.

App. 2

I

Larry W. Shives was injured in August 1996 at the
Seagirt Marine Terminal in Baltimore, Maryland, while in
the employ of CSX Transportation, Inc. ("CSXT"). Shives
was employed as a "carman,” a job that required him to
inspect train cars and assist in loading and unloading them.
The Seagirt Marine Terminal is an intermodal terminal
where freight is unloaded from trains onto ships as well as
trucks, and vice versa. The parties have stipulated in this
case that 15% of the tasks assigned to CSXT's carmen such
as Shives involved the loading and unloading of maritime
freight. The remainder of the carmen's time was spent on
non-maritime transfers of freight from trains to trucks and
vice versa.

When Shives sustained his injury, he was assisting in
the unloading of a flatbed train car that carried UPS trailers.
As he unlocked the hitch on the car, he slipped on some oil,
twisting his right knee and striking it against the bed of the
car. The parties stipulated that the cargo on the train on
which Shives was injured was being unloaded onto trucks for
inland destinations.

Following his injury, Shives filed a negligence suit
against CSXT in Maryland state court under the Federal
Employers’ Liability Act ("FELA"), 45 U.S.C. § 51 et_seq.
He also filed a protective worker's compensation claim with
the Department of Labor under the Longshore and Harbor
Workers Compensation Act ("LHWCA"), 33 U.S.C. § 901 et
seq.

Contending that Shives was engaged in maritime
employment and therefore entitled only to workers
compensation under the LHWCA, CSXT removed Shives'
case to federal court under 28 U.S.C. §§ 1441 and 1331. It
then moved to dismiss the case to allow Shives'
administrative claim to proceed before the Department of
Labor. Shives filed a motion to remand the case to the state
court, arguing that he was not engaged in maritime

App. 3

employment and thus was entitled to pursue his negligence
claim in state court under the FELA. :

The district court, recognizing that in order to be
covered by the LHWCA, Shives had to satisfy both the situs
and status requirements of the Act, held first that Shives'
injury occurred at a maritime situs. Pursuant to its status
inquiry, however, it concluded that because “none of the
containers or other freight carried by the incoming train on
which Mr. Shives was working at the time of his accident
was destined for transport by a maritime vessel, and . . . only
15% of the daily container traffic handled by the terminal
involved cargo from trains being transhipped from boat to
train or vice versa," Shives did not meet the status test "as of
the time of his injury." Accordingly, the court entered an
order granting Shives' motion to remand the case to the state
court.

CSXT filed this appeal from the district court's order.
Because CSXT was concerned with whether the district
court's order was appealable in light of 28 U.S.C. § 1447(d),
it also filed a petition for a writ of mandamus to review the
district court's order by virtue of our holding in Jamison v.
Wiley, 14 F.3d 222 (4th Cir. 1994).

II

At the outset, we must satisfy ourselves on the
question of whether we have jurisdiction to review the
district court's order in light of 28 U.S.C. § 1447(d)
(prohibiting appellate review of remand orders), which is
limited by Thermtron Products, Inc. v. Hermansdorfer, 423
U.S. 336, 346, 352-53 (1976) ("[O]nly remand orders issued
under § 1447(c) and invoking the grounds specified therein
-- that removal was improvident and without jurisdiction --
are immune from review under § 1447(d).").

Shives filed this case in state court under the FELA,
45 U.S.C. § 51 et. seg., which confers concurrent federal and
state jurisdiction over FELA claims. See 45 U.S.C. § 56. But

App. 4

when filed in state court, an FELA claim may not be
removed to federal court. See 28 U.S.C. § 1445(a). CSXT
claimed that this case was not an FELA claim but rather a
claim for federal workers compensation under the LHWCA
because Shives was engaged in maritime employment at the
time of his injury. It therefore removed this case to federal
court under 28 U.S.C. § 1441(b) based on federal question
jurisdiction conferred by 28 U.S.C. § 1331. Because the
district court concluded that Shives was not engaged in
maritime employment at the time of his injury and that
therefore he could pursue his FELA claim, it ordered a
remand based on 28 U.S.C. § 1445(a) (prohibiting the
removal of FELA cases). Not sure how to obtain appellate
review of the district court's order, CSXT both filed a notice
of appeal and petitioned for a writ of mandamus, relying on
Jamison v. Wiley, 14 F.3d 222 (4th Cir. 1994).

While 28 U.S.C. § 1291 confers jurisdiction on the
courts of appeals "from all final decisions of the district
courts," the removal statute prohibits appellate review of
district courts’ orders "remanding a case to the State court
from which it was removed." 28 U.S.C. § 1447(d). In
Thermtron, however, the Supreme Court limited the
application of § 1447(d), holding that § 1447(d) only
restricted appellate review of remand orders based on §
1447(c) -- a provision addressing remands where a removal
was improvident or the district court was without subject
matter jurisdiction. See 423 U.S. at 346; see also Jamison, 14
F.3d at 231-32. Absent the proscription of § 1447(d), it
would appear that an order remanding a case to state court
puts the litigants out of federal court, effectively ending the
federal case, and therefore is a final order appealable under §
28 U.S.C. § 1291. See Quackenbush v. Allstate Ins. Co., 116
S. Ct. 1712, 1719 (1996).

In this case, the district court could not rule, in a strict
sense, under § 1447(c) that it was without jurisdiction
because federal courts have concurrent jurisdiction over
FELA claims. See_ 45 U.S.C. § 56. Rather, it ruled properly

App. 5

that an FELA claim could not be removed from a state court
to a federal court. See 28 U.S.C. § 1445(a). Moreover, its
ministerial application of § 1445(a) depended on its
substantive ruling that Shives was not engaged in maritime
employment. This determination is probably not of the type
of ruling included in 28 U.S.C. § 1447(c), see Jamison, 14
F.3d at 232, and therefore prohibited by § 1447(d). This
conclusion, however, is not entirely without doubt.

It is clear that the remand order presented to us for
review does not play the typical rerouting role of directing
non-federal cases back to state court. The question of
whether the LHWCA applies to a workrelated injury is
exclusively a federal question which Congress never
intended for state courts to resolve. See 33 U.S.C. § 921: cf.
Zapata Haynie Corp. v. Barnard, 933 F.2d 256, 258 (4th Cir.
1991) (noting that interpretation of the LHWCA is a matter
for the federal executive and federal appeals courts). If we
were to dismiss this appeal as unreviewable under 28 U.S.C.
§ 1447(d), then we would be leaving in place a remand order
which would commit to the state courts the decision of
whether the LHWCA provided coverage to the employee. To
follow that course would thus deprive the federal courts of
their proper role in resolving this important issue and would
circumvent Congress’ intent that LHWCA coverage issues be
resolved in the first instance by the Department of Labor and
ultimately in the federal courts of appeals. See 33 U.S.C. §§
919, 921.

Thus, because the coverage question of the LHWCA
is a conceptual antecedent for the district court's remand
order, it would appear that we are not prohibited by §
1447(d) from reviewing that order. See Mangold v. Analytic
Servs., Inc., 77 F.3d 1442, 1450-51 (4th Cir. 1996). In
Mangold, we held that if, after examining the district court's
reasoning for remand, we determined that the order did not
fall precisely under the grounds identified in § 1445(c), we
were authorized to review the order on appeal. See
Quackenbush , 116 S. Ct. at 1719-20. We said, “review of

App. 6

the remand order, because not actually based on either of the
grounds specified in § 1447(c), is not barred by § 1447(d)."
77 F.3d at 1453.

If we have any doubt about the correctness of this
analysis, we are authorized in these circumstances to issue a
writ of mandamus. To avoid forfeiting the federal courts’ role
of reviewing LHWCA coverage issues is one of those
extraordinary situations envisioned in Thermtron for exercise
of the writ. We held analogously in Mangold that "to
fragment a claim between. .:ate and federal courts [was]
fraught with mischief and capable of producing unnecessary
tensions between the two systems" and that therefore we
were justified in treating an appeal as a petition for a writ of
mandamus. Id.

Accordingly, while we exercise appellate jurisdiction
with some delicacy, we also recognize our review authority
on the employer's petition for a writ of mandamus. See
Jamison, 14 F.3d at 233-34. We now tum to the coverage
question.

Il

To be covered by the LHWCA, a work-related injury
must have occurred on "navigable waters," as defined by 33
U.S.C. § 903(a), and the employee must have been engaged
in “maritime employment," as defined by 33 U.S.C. §
902(3). The parties agree that Shives' injury occurred on
navigable waters because it occurred while Shives was
working at a terminal adjoining navigable waters. See 33
U.S.C. § 903(a) (defining “navigable waters" to include
adjoining terminal areas). The sole issue therefore is whether
Shives was “engaged in maritime employment" as defined by
33 U.S.C.§ 902(3) when he sustained his injury. While
Shives acknowledges that 15% of his job entailed the loading
and unloading of maritime freight, he contends that because,
at the time of his * jury, he was unloading freight from a
train onto trucks aot ships, he was not covered by the

App. 7

LHWCA and therefore was entitled to pursue his FELA
claim for negligence. His interest in an FELA claim stems
from his belief that a recovery under the FELA will be more
remunerative than an award for workers compensation under
the LHWCA.

CSXT concedes that at the time of Shives' injury, the
loading activity was not of maritime freight nor in
connection with a ship. It argues, however, that "the work
which [Shives] was performing at the time of injury is of no
legal import." It maintains that maritime employment is
occupational, defined by whether the employee spends some
portion of his overall work engaged in maritime
employment. Because Shives' work concededly involved
15% maritime employment, CSXT argues, he was covered
by the LHWCA.

The issue thus reduces to a two-part question:
whether an employee who engages in maritime activities
only 15% of the time is “engaged in maritime employment"
as defined by the LHWCA and whether it matters that at the
time of his injury he was performing a nonmaritime duty.

Prior to 1972, the LHWCA applied only to injuries
occurring on navigable water, and the line demarcating land
and water also defined the line between coverage of the
LHWCA and coverage of state workers' compensation laws.
See generally Jonathan Corp. v. Brickhouse, 142 F.3d 217
(4th Cir. 1998). "As -a consequence, Longshoremen
continually walked in and out of LHWCA coverage as they
walked up and down the gangplank from ship to shore
during the loading and unloading of vessels." Id. at *2
(quoting Sidwell v. Express Container Servs., Inc., 71 F.3d
1134, 1135 (4th Cir. 1995)). To provide more uniform
coverage for longshoremen as they loaded and unloaded
ships and to provide federal coverage for all workers who
loaded ships, whether they were on the water or the adjacent
land, Congress amended the LHWCA to extend coverage to
the area adjacent to the ship that is normally used for loading
and unloading. In addition, because of this expanded

App. 8

geographical coverage, it restricted the coverage to maritime
employment. Thus, while coverage before 1972 was based
solely on a situs test delineated by the shoreline, coverage
after the 1972 amendments was based on meeting a two-part
situs and status requirement. See P.C. Pfeiffer Co. v. Ford,
444 U.S. 69, 73 (1979).

To satisfy the situs test adopted in 1972, an injury
must occur on “navigable waters" defined to include "any
adjoining pier, wharf, dry dock, terminal, building way,
marine railway, or other adjoining area customarily used by
an employer in loading, unloading, repairing, dismantling, or
building a vessel." 33 U.S.C. § 903(a). And to satisfy the
status test, the employee must be engaged in “maritime
employment," defined to include “any longshoreman or other
person engaged in longshoring operations, and any
harbor-worker including a ship repairman, shipbuilder, and
ship-breaker." 33 U.S.C. § 902(3).

While the new situs test mitigated the "walking in
and out of coverage" problem by moving the line inland in
order to cover workers loading and unloading ships both
from on the water and from on the land, a worker could still
walk into and out of a LHWCA situs because the line
remained geographical. See Jonathan, 142 F.3d at 220. The
status test, however, is occupational, intending to provide
employees continuous coverage throughout their
employment at a maritime situs regardless of the particular
activity at the time of injury. As the Supreme Court stated in
Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249
(1977):

The Act focuses primarily on occupations--
longshoreman, harbor worker, ship repairman,
shipbuilder, shipbreaker. Both the text and the
history demonstrate a desire to provide
continuous coverage throughout their
employment to these amphibious workers
who, without the 1972 amendments, would be

App. 9

covered only for part of their activity. It
seems clear, therefore, that when Congress
said it wanted to cover “longshoremen," it had

in_mind persons whose employment is such
that they s at least some of their time in

indisputably longshoring operations and who,
without the 1972 amendments, would be

covered for only part of their activity.

id. at 273 (emphasis added). Confirming later the
occupational characteristic of this status test, the Court
observed, “the ‘maritime employment’ requirement is ‘an
occupational test that focuses on loading and unloading.”
Herb's Welding, Inc. v. Gray, 470 U.S. 414, 423-24 (1985)
(quoting Pfeiffer, 444 U.S. at 80). And in determining
occupation, "the crucial factor is the nature of the activity to
which a worker may be assigned." Pfeiffer , 444 U.S. at 82
(emphasis added). Finally, the Supreme Court has instructed
that any coverage determination be informed by "an
expansive view of the extended coverage." Caputo, 432 U.S.
at 268. It said, "The Act ‘must be liberally construed in
conformance with its purpose, and in a way which avoids
harsh and incongruous results." Id.

In short, the status inquiry focuses on the assigned
occupational duties of the employee, and coverage is not
denied simply because the employee was not performing a
maritime function at the time of his injury. To determine
whether the employee is engaged in maritime employment,
we inquire whether the employee's assigned job requires his
spending some of his time in indisputably longshoring
operations.

This construction of the status requirement is
consistent with Congress’ intent to fill the gap that existed
before the 1972 amendments when longshoremen could walk
in and out of coverage as they walked up and down the
gangplank. In combination with the situs requirement, the
Status requirement thus provides LHWCA benefits more

App: 10

seamlessly to all those who perform some longshoring
operations. Indeed, it is instructive to recognize that an
employer covered by the LHWCA is defined as one whose
"employees are employed in maritime employment, in whole
or in part, upon the navigable waters of the United States [as
defined by the Act]." 33 U.S.C. § 902(4) (emphasis added).
Were we to adopt a more restrictive interpretation that
maritime employment refers only to the particular activities
of the longshoreman being performed at the specific moment
of injury, we would “bring the “walking in and out of
coverage’ problem back with a vengeance." Chesapeake and
Ohio Ry. Co. v. Schwalb, 493 US. 40, 50 (1989)
(Blackmun, J., concurring); see also Caputo, 432 U.S. at 274.
Our test requiring the examination of an employee's
assigned duties to determine whether some of them include
longshoring operations is similar to that adopted in other
circuits. In Boudloche v. Howard Trucking Co., Inc., 632
F.2d 1346 (Sth Cir. 1980), the Fifth Circuit held that an
employee who spent only 2-1/2 to 5% of his overall working
time performing longshore work was nevertheless engaged
in maritime employment since he spent "at least some of
[his] time in undisputedly longshoring operations." Id. at
1347 (quoting Caputo, 432 U.S. at 273). The court observed

Boudloche was directed to regularly perform
some portion of what was undisputedly
longshoring work at fully equipped docks
and, for at least some part of his work, was
required to perform the total maritime job at
unequipped docks. The fact that his employer
also assigned him broader duties as a truck
driver cannot override its choice to make
Boudloche a maritime employee under the
Act.

Id. at 1348; see also Howard v. Rebel Well Serv., 632 F.2d
1348 (Sth Cir. 1980) (a sandblaster who spent 10% of his

App. 11

iid

time sandblasting maritime equipment was engaged in
maritime employment). The Fifth Circuit subsequently
summarized its rule, stating, “a claimant will meet the status
requirement of the Act, not only if he is engaged in ‘maritime
employment’ at the time of injury, but also if he spends some
portion of his overall employment engaged in maritime
activities.” Hullinghorst_Indus., Inc. v. Carroll_, 650 F.2d

750, 754 (Sth Cir. Unit A, July 1981). See also Garvey Grain

Co. v. Director, OWCP, 639 F.2d 366, 371 (7th Cir. 1981)
(noting that “[t}he ‘moment of injury’ test is no longer the test

to determine the status of an employee under the Act" and
that coverage may be found where an employee "spends at
least some of his time in indisputedly longshore operations");
Sea-Land Servs., Inc. v. Director, OWCP, 685 F.2d 1121,
1123 (9th Cir. 1982) (same).

Seagirt Marine Terminal is an intermodal maritime
situs where freight is transferred from train to ship, from
train to truck, from truck to ship, and from truck to train.
When CSXT assigned its employees the carmen's duties of
loading and unloading its train cars at the terminal, it
expected that the carmen would unload all of its freight,
whether that freight was destined for truck or for ship.
Likewise, it expected the carmen would load its trains with
freight that arrived at the terminal, whether that freight
arrived by truck or by ship. Because its carmen's duties
consisted of loading and unloading at a marine terminal and
some of the loading and unloading involved ships, the
carmen by occupation were engaged in maritime
employment. The fortuity that some freight at the terminal
would bypass ships does not deny the carmen's employment
a maritime characteristic. Moreover, as we have noted, even
if the employee's particular function at the time of his injury
was not maritime, he is not denied coverage based on a lack
of maritime status. Because maritime status is an
occupational inquiry, we determine only whether some of the
employees’ work was indisputedly maritime i., nature.

App. 12

Shives, hoping that the LHWCA does not cover him
because of his expectation of realizing a more beneficial
recovery through his FELA claim, argues that because only
15% of his duties involved the loading and unloading of
maritime freight, he was not engaged in maritime
employment. This argument, suggesting that maritime
employment is determined by some defined percentage of an
employee's work, however, is not useful and misdirects the
inquiry. Congress wanted the LHWCA to cover
longshoremen loading and unloadingships, whether they are
on the ship or at the adjacent terminal, and the Supreme
Court has clearly held that to give effect to this intent, the
employee does not move in and out of maritime employment
status for purposes of coverage under the Act. Shives was
assigned maritime work as needed at the marine terminal,
and this longshore work was not merely “momentary or
episodic.” Boudloche, 632 F.2d at 1348. It was an assigned
portion of his duties necessary in order for CSXT to function
at the terminal efficiently.

Undoubtedly, there is a level of longshore work
assigned to an employee that may be so de minimis as to
defeat coverage. We need not, in this case, determine that
level because we conclude that Shives was clearly assigned
to do some indisputably longshore work when he was
assigned, as part of his job, to load and unload maritime
freight at the Seagirt Marine Terminal.

The district court relied on our decision in Hayes v.
CSX Transp., Inc., 985 F.2d 137 (4th Cir. 1993), in ruling
that Shives was not engaged in maritime employment “as of
the time of his injury.” It noted that Hayes inquired whether
the employee “was engaged in maritime employment at the
time of his injury,” id. at 140 (emphasis added), and reasoned
that “none of the containers or other freight carried by the
incoming train on which Mr. Shives was working at the time
of his accident was destined for transport by a maritime
vessel." While the status test properly inquires whether the
employee was engaged in maritime employment at the time

App. 13

of his injury, this does not mean that his particular duties at
the time of injury needed to be maritime in nature. Rather,
the status test turns on whether the employee's occupation at
the time of injury was maritime. By its nature, therefore, a
status test considers the employee's occupation as a whole,
not the nature of the particular job function being performed
at the time of injury. Indeed, this is how we understood the
test in Hayes because we acknowledged that "the origins or
destination of the loads being worked at the time [of Hayes’
injury] are unknown." 985 F.2d at 139.

In summary, we hold that because, at the time of
injury, Shives was performing his assigned work as a carman
at the Seagirt Marine Terminal and because some of his
carman's duties were indisputably maritime, Shives was
engaged in maritime employment as defined by the
LHWCA. Because Shives met both the situs and the status
tests of the LHWCA, he was covered by the Act.

This LHWCA coverage is exclusive and preempts
Shives from pursuing an FELA claim. See 33 U.S.C. §
905(a); Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087,
1091 (4th Cir. 1993).

IV

Having concluded that Shives only has an LHWCA
claim, and not an FELA claim, we are left with a procedural
conundrum. Section 1441 of Title 28 authorizes removal of
civil actions “of which the district courts have original
jurisdiction.” 28 U.S.C. § 1441(b); see also § 1441(a). While
Shives' LHWCA claim arises under the laws of the United
States, see 28 U.S.C. § 1331, it is not an action over which
the district courts have original jurisdiction. An LHWCA
claim must be filed with the Department of Labor where it is
assigned to an administrative law judge whose decision is
reviewed by the Benefits Review Board. 33 U.S.C. §§
910(a), 921(b). Review by the courts is authorized through a

App. 14

petition for review, which may be filed only in the courts of
appeals, not in the district court. 33 U.S.C. § 921(c).

Thus, not only was Shives' claim not removable as an
FELA case, see 28 U.S.C. § 1445(a), it was also not
removable under 28 U.S.C. § 1441(b). But the remedy for
the improper removal in this case does not appear to be a
remand to state court as ordered by the district court, which
acted on its finding that this is an FELA case. State courts
have jurisdiction over FELA cases, but they do not have
jurisdiction over LHWCA cases.

While state court jurisdiction is not ordinarily a
prerequisite for removability, see 28 U.S.C. § 144l1(e),
jurisdiction in the district court is, see 28 U.S.C. § 1441(a) &
(b). Thus, we are faced with an LHWCA case over which
neither the state court nor the district court had jurisdiction
because such a claim could only be filed in the first instance
with the Secretary of Labor.

While the only intuitive remedy might nevertheless
be to remand this case to the state court to decide the
coverage question, if we were to do so, we would be
committing the federal question of LHWCA coverage to the
state court when Congress intended that it be decided
exclusively in federal court. In the peculiarities of this case,
we believe that the district court should not have remanded
the case to state court, but should have dismissed it.
Accordingly, we vacate the district court's remand order and
remand this case to the district court with instructions to
dismiss the case for lack of subject matter jurisdiction. In this
way, Shives will be able to proceed through the
administrative process before the Department of Labor with
his protectively filed LHWCA claim.

IT IS SO ORDERED

App. 15

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

LARRY W. SHIVES
v.
CSX TRANSPORTATION, INC.
CIVIL NO. S 97-1611
Entered: August 4, 1997

MEMORANDUM OPINION

This matter is before the Court on the plaintiff's
motion to remand, following supplemental briefing. No oral
hearing is required. Local itule 105.6, D. Md.

This suit started as an FELA claim in the Circuit
Court for Baltimore City. The defendant removed it to this
Court on the basis that, in actuality, it stated a claim under
the LHWCA. The plaintiff maintains that this case is not an
LHWCA case, but, rather, is an FELA case which, is non-
removable. 28 U.S.C. § 1445(a).

The question of the nature of this case, FELA vs.
LHWCA, is dispositive of the jurisdictional issue posed by
the motion to remand. That question is answered by the
Fourth Circuit's decision in Hayes v. CSX Transp., Inc., 985
F.2d 137 (4th Cir. 1993). In Hayes, as in this case, the injury
occurred at a maritime terminal, thus satisfying one of the
two tests, Le., the "situs" test, for jurisdiction under the
LHWCA.

The "situs" test is, however, only one of the two tests
that must be met before LHWCA jurisdiction exists. Hayes,
985 F.2d at 140. This case as did Hayes, turns on whether
the second test is also satisfied, viz., the "status" test. This
resolves into an inquiry as to “whether he [plaintiff] was

App. 16

engaged in maritime employment at the time of his inquiry."
In Hayes, there was no information as to the origins or
destinations of any of the containers the plaintiff had been
handling, but the Fourth Circuit assumed that it was "obvious
that Hayes was engaged in maritime employment at the time
of his injury. He was engaged in completing the unloading
process and in moving the cargo form ship to land
transportation." Jd., at 142.

In this case, in sharp contrast, the evidence in
undisputed that none of the containers or other freight carried
by the incoming train on which Mr. Shives was working at
the time of his accident was destined for transport by a
maritime vessel, and that only 15% of the daily container
traffic handled by the terminal involved cargo from trains
being transhipped from boat to train or vice versa. Under
these circumstances, the Court is constrained to conclude
that, although the Seagirt terminal is an appropriate situs for
the application of LHWCA, Mr. Shives did not meet the
status test as of the time of his injury.

Therefore, an Order will be entered separately,
remanding this case to the Circuit Court for Baltimore City.
Each party will bear its own costs and fees in connection
with removal and remand.

/s/
Frederic N. Smalkin
United States District Judge

Dated: August 4, 1997

App. 17

LOI A PORN bo RN A Ha

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND %

LARRY W. SHIVES
v.
CSX TRANSPORTATION, INC.
CIVIL NO. S 97-1611
Entered: August 4, 1997
ORDER

For the reasons stated in the foregoing Memorandum
Opinion, it is this 4th day of August, 1997, ORDERED:

1. That plaintiffs motion to remand BE, and the
same hereby IS, GRANTED;

2. That this case BE, and it hereby IS, remanded
to the Circuit Court for Baltimore City, with each party to
bear its own costs, fees and expenses in connection with
removal and remand;

3. That the Clerk of Court forthwith transmit the
record herein along with a certified copy of this Order to the
Clerk for the Circuit Court for Baltimore City;

4. That the Clerk of Court mail copies hereof and the
foregoing Memorandum Opinion to counsel for the parties;
and

4 That this case be CLOSED on this Court's
docket.

/s/
Frederic N. Smalkin
United States District Judge

App. 18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1032%3A1. Public record. Not legal advice.