Opposition Brief — Seahorse Coastal Assistance & Towing v. Fleischmann

rs

In the Supreme Court of the Unitey States-—

OCTOBER TERM, 1997

SEAHORSE COASTAL ASSISTANCE & TOWING, ET AL.,

PETITIONERS

v.

THEODORE FLEISCHMANN, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

MARVIN KRISLOV

Deputy Solicitor for

National Operations

ALLEN H. FELDMAN

Associate Solicitor

NATHANIEL I. SPILLER

Deputy Associate Solicitor

EDWARD D. SIEGER

Attorney

Department of Labor

Washington, D.C. 20210

QUESTIONS PRESENTED

1. Whether a marine construction worker who

builds bulkheads, piers, and docks is a “harbor-

worker” and therefore satisfies the “status” require-

ment for coverage as an employee under Section 2(3)

of the Longshore and Harbor Workers’ Compensation

Act (LHWCA), 33 U.S.C. 902(3).

2. Whether the worker’s injury occurred on a

“situs” covered by Section 3(a) of the LHWCA, 33

U.S.C. 903(a), when the injury occurred on a bulkhead

built on pilings and extending into navigable waters.

(I)

TABLE OF CONTENTS

Page

RINNE IIIT a. sinshiiciasonnduiniosbeahunensaigeenbigstedoncevesstineaasacs 1

REE SEES SPREE ERP INE 1

SAREE ERR ET ROSIE Rat co CRE alee 2

TIE. 10.5 imsiihbnicesdcicinkdcenitunheubsvebickusieesinanaisiishacmancons 7

I kes 14

TABLE OF AUTHORITIES

Cases:

Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990) ... 8

Brooker v. Durocher Dock & Dredge, 133 F.3d 1390

(11th Cir. 1998), petition for cert. pending,

Se NUE tateiedi i bckAndinins uctincdcdackedacctanid dee sdcxbeedneaceodss 12, 13

Chesapeake & O. Ry. v. Schwalb, 493 U.S. 40

ovis cavuuseUceie 7

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 887 (1984) ....................cc0000. 8

De Martino v. Bethlehem Steel Co., 164 F.2d 177

OE TNs Be SERRE Ne DOE a a 7

Director, OWCP v. Perini North River Assocs.,

Ee Se IIE Sinsiccintridisincisnchessiciobcncadiasubonduninabhsscdssacae 4,12

Dole v. United Steelworkers, 494 U.S. 26 (1990) ...... 8

Hurston v. Director, OWCP, 989 F.2d 1547 (9th Cir.

REDS STS SCHR EOL Seve ne ee SN 6, 11

Ingalls Shipbuilding, Inc. v. Director, OWCP, 117

2 8 FEES ee aE 3

McGray Construction Co. v. Director, OWCP, 112

F.3d 1025, opinion withdrawn, 124 F.3d 1310

SI I rd ic tic io clin cision ancaienciniedbbcdiinnekenabcceses 9-10

Mississippi Power & Light Co. v. Mississippi ex rel.

TG, ET Sth, I CRO) os sess seccvecestsconasctissonancies 8,9

Nacirema Operating Co. v. Johnson, 396 U.S. 212

SD: sistipaNicctalidaa hansen cosibiaiubeabtaaencusssdskinsbisvetnkobonsic 12

(III)

IV

Cases—Continued: Page

Northeast Marine Terminal Co. v. Caputo, 432

RS dds BE CADE AD svcsistsatereeessceeareseabuacdininiianeoneedabiios 2, 11, 12

P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979) ......... 6-7

Statutes, regulations and rule:

Department of Labor Appropriations Act, 1996, Pub.

L. No. 104-134, Tit. I, § 101(d), 110 Stat. 1821-219

COB REE. FEE GG): nisin ninhcdetdcinmatbncticiateaviincnann 5

Longshore and Harbor Workers’ Compensation Act,

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

Fy Oe Ce MED. Kenecsccorscsaninstetcensuncaivasees 2,4, 7

§ 3(a), 83 U.S.C. GOB(a) ............ccsesssceseresees 2, 6, 10, 11

KS fie a SORA RR eee me Menie umber 2

Dy ee SEs WUE Crtiticniciarp nc asseniecuncazscuickaupiemunoreine 2

D MEGA, GE UA BIB oie scnsiscscacisatnarccyetvansossanni 3

© REG), Fe A BI vivsiiscsinticiscisecnsinstcisectvas 3

S BORG), Se: TA, SEE) sacarcesisceniccssesiccwinisvcadanss 3

§ 21(a)-(c), 33 U.S.C. 921(a)-(c) (1994 & Supp. II

SUD scniarisnstesdebicatebsrnmncdsdiviemdamaaateielensimuss

FA Be tbs BID snencicdccrtasesinsnnnabniobiueed

20 C.F.R.:

Pt. 700:

IGEN TAIN. acisasndccvesashassonbssse tincstaacempiinabens

Secthoms TOLSLI-TOLBIG ..nscssccessccscesseccssesassveseveses

SIOCRRINS TO TORE C disicavcessasosscatunincineicsoneatics

TIO TEA. etinskceosncesesiedgausninecdenanccksucisveipeonia

SOC PIED pic bin ichncnseaxersencceninstndentanhiocesavans

I FOO. snciain ecsntithkcicasssecicitarmn hives esotike

Pt. 800:

SIGUE SIL REE eaitcinsssktsdecntubigeredisincrticiaseneasen

A TID i vittdabiscscescienissccetstesibbeciassponseics

FOG. Te, BA ry rinichnstincomeneendipiagcnentaaescisandoentona

a)

wCOwwow ww -)

Co Ww ©

Miscellaneous: Page

Black’s Law Dictionary (6th ed. 1990) ..............ceseeeee 8

H.R. Rep. No. 1441, 92d Cong., 2d Sess. (1972) .......... 12

LHWCA Program Memorandum No. 58 (Aug. 10,

REED cevtigeentesceieeteonniinins waipbubncnapucbocaigasaassdbtas yasteses 7, 8,9

S. Rep. No. 1125, 92d Cong., 2d Sess. (1972) ............ 12

Webster’s Ninth New Collegiate Dictionary (1989) ..... 10

Jn the Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-1894

SEAHORSE COASTAL ASSISTANCE & TOWING, ET AL.,

PETITIONERS

v.

THEODORE FLEISCHMANN, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

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

17a) is reported at 137 F.3d 131. The notice of affir-

mance by the Benefits Review Board (Pet. App. 18a-

19a) and the decision and order of the administrative

law judge (Pet. App. 20a-27a) are unreported.

JURISDICTION

The court of appeals entered its judgment on Feb-

ruary 23, 1998. The petition for a writ of certiorari

was filed on May 26, 1998 (the Tuesday following a

Monday holiday). The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. The Longshore and Harbor Workers’ Compensa-

tion Act (LHWCA) provides compensation to covered

employees for work-related injuries that result in

disability, and to survivors if the injury causes death.

33 U.S.C. 908, 909. Section 2(3) of the LHWCA de-

fines the term “employee,” with certain exceptions

not relevant here, as

any person engaged in maritime employment, in-

cluding any longshoreman or other person en-

gaged in longshoring operations, and any harbor-

worker including a ship repairman, shipbuilder,

and ship-breaker.

33 U.S.C. 902(8). Section 3(a) of the LHWCA provides

that an employee is entitled to compensation under

the Act only if his injury occurs

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).

33 U.S.C. 903(a). Those two requirements are re-

ferred to as the Act’s “status” and “situs” require-

ments. See Northeast Marine Terminal Co. v.

Caputo, 432 U.S. 249, 264-265 (1977).

2. In December 1990, respondent Theodore

Fleischmann began working for petitioner Seahorse

Coastal Assistance & Towing as a pile driver and

laborer, a job that required him to build bulkheads

(which ordinarily act as retaining walls for land),

piers, and floating docks. Pet. App. 2a, 22a-23a & n.2.

In October 1991, he helped to remove and replace part

3

of a bulkhead that had collapsed forward into a naviga-

ble canal. Jd. at 2a. The new bulkhead was built by

driving piles deep into the bed of the canal, attaching a

horizontal retaining system to the piles, and then

dredging material from the bottom of the canal to fill

in the area between the new bulkhead and solid land.

Id. at 3a. Respondent Fleischmann performed that

work primarily on a floating dock, which was tied to a

barge. Ibid.

On October 22, 1991, the bulkhead was attached to

the land at both ends but was separated from the land

by about 12 to 15 feet of water and dredging material.

Pet. App. 3a. Respondent Fleischmann was cleaning

the barge and removing lumber from the floating

dock. Ibid. While standing on top of the bulkhead and

pulling on a tow line to move the barge, he reached for

a second tow line, slipped, and fell landward, into the

dredging material and water. [bid.; see also id. at 23a.

He sustained injuries to his right knee and subse-

quently applied for benefits under the LHWCA. Id. at

4a,’

1 LHWCA claims are filed with the Department of Labor’s

Office of Workers’ Compensation Programs (OWCP). See

33 U.S.C. 919(a) and (c); 20 C.F.R. 702.311-702.315. If OWCP is

unable to resolve a claim informally, the claimant or em-

ployer may obtain a hearing before an administrative law judge

(ALJ). 33 U.S.C. 919(c) and (d); 20 C.F.R. 702.316-702.317,

702.331. ALJ decisions are reviewable by the Department’s

Benefits Review Board, and the Board’s decisions are subject to

review in the courts of appeals. 33 U.S.C. 921(a)-(c) (1994 &

Supp. II 1996); 20 C.F.R. 702.391, 802.410(a). The Director of

OWCP is a party in the administrative proceedings, see 20

C.F .R. 702.333(b), 801.2(a) (10), and must be named as a respon-

dent in any proceeding for review in the court of appeals. See

Fed. R. App. P. 15(a); Ingalls Shipbuilding, Inc. v. Director,

OWCP, 117 S. Ct. 796, 805-808 (1997). The Director actively

4

3. An administrative law judge (ALJ) denied bene-

fits on the ground that respondent Fleischmann failed

to meet the “status” requirement for coverage under

the LHWCA. Pet. App. 20a-27a. To meet that re-

quirement, the ALJ explained, a claimant must show

either that he was injured on actual navigable waters,

or that he satisfies the occupational test for “em-

ployee” status set forth in 33 U.S.C. 902(3). Jd. at

25a.2> Respondent Fleischmann could not establish

“employee” status under the first test, the ALJ rea-

soned, because he was injured on the bulkhead and

areas landward of it, where any water had been

permanently withdrawn from the canal. Jbid. The

ALJ also found that respondent Fleischmann had

failed to establish occupational status under Section

902(3) because his job was not related to the move-

ment of cargo between ship and land transportation

participated in this case before the Board and in the court of

appeals.

* The current definition of “employee” was added to the

LHWCA when the Act was amended in 1972. See Director,

OWCP v. Perini North River Assocs., 459 U.S. 297, 313 (1983).

At the time the 1972 amendments were passed, workers injured

upon navigable waters in the course of their employment were

generally covered by the Act regardless of the nature of their

duties. See id. at 311-312. The Court in Perini concluded that

the 1972 amendments should not be construed “to withdraw

coverage of the LHWCA from those workers injured on navi-

gable waters in the course of their employment, and who would

have been covered by the Act before 1972.” Jd. at 315. It

therefore held that “when a worker is injured on the actual

navigable waters in the course of his employment on those

waters, he satisfies the status requirement in [33 U.S.C. 902(3)],

and is covered under the LHWCA, providing, of course, that

he is the employee of a statutory ‘employer,’ and is not ex-

cluded by any other provision of the Act.” Jd. at 324.

5

and did not serve to facilitate those functions. Id. at

26a. Respondent Fleischmann appealed to the Bene-

fits Review Board. See note 1, supra.

4. In 1996, Congress directed that all appeals that

had been pending before the Board for more than one

year were to be deemed affirmed if the Board did not

act by September 12, 1996. Department of Labor Ap-

propriations Act, 1996, Pub. L. No. 104-134, Tit. I, §

101(d), 110 Stat. 1321-219; see 33 U.S.C. 921 note

(Supp. II 1996). Respondent Fleischmann’s appeal had

been pending before the Board for more than a year on

September 12, 1996, and the ALJ’s decision therefore

became final as of that date. Pet. App. 18a-19a. Re-

spondent Fleischmann sought further review in the

court of appeals.

5. The court of appeals reversed and remanded for

an award of benefits. Pet. App. la-17a. The court first

held that respondent Fleischmann satisfied the Act’s

status requirement. The court stated that it “d[id]

not need to determine whether the landward side of

the bulkhead constituted actual navigable waters,” id.

at 8a, since respondent Fleischmann qualified as a

“harbor worker,” one of the occupations specified in

Section 902(3). Jd. at 8a-14a. The court of appeals

stated that it owed deference to the view of the

Director, OWCP, that respondent Fleischmann quali-

fied for compensation as a “harbor worker.” /d. at 9a.

The court further explained that “[aJn employee can

establish coverage under § 902(3) either by referring

to his or her overall duties or to the particular project

the employee was engaged in at the time of injury.”

Id. at lla. The court of appeals concluded that respon-

dent Fleischmann’s “general employment of building

piers and docks suffices to establish the requisite

6

connection to ships to confer him with status as a

harbor worker.” Jd. at lla-12a.

The court of appeals also held that Fleischmann

satisfied the “situs” test set forth in 33 U.S.C. 903(a).

Pet. App. 14a-17a. The court agreed with the Ninth

Circuit that under Section 903(a), a “pier” is a cov-

ered situs whether or not it is customarily used by an

employer in loading, unloading, repairing, disman-

tling, or building a vessel. Pet. App. 14a-15a (citing

Hurston v. Director, OWCP, 989 F.2d 1547 (9th Cir.

1993)). The court further agreed with the Hurston

court that the term “pier,” which is not defined in

Section 903(a), means “a structure built on pilings

extending from land to navigable water.” Jd. at 15a

(quoting Hurston, 989 F.2d at 1553). The bulkhead at

issue in the instant case satisfied that definition, the

court concluded, because it was built on pilings and

extended into navigable water. /bid.

The court of appeals also stated that its treatment

of the pier as a covered situs was consistent with

congressional purposes. It explained that “[tJhis case

exemplifies the concerns that fueled the 1972 amend-

ments; [respondent] Fleischmann would clearly have

been covered had he been injured while working on a

work platform only several feet away, where he spent

a substantial portion of his work hours.” Pet. App.

15a. The court observed that “[aJlthough the line de-

marking a covered situs has to be drawn somewhere,

Congress made it clear in enacting the 1972 amend-

ments that it considered the water’s edge an place to

draw it.” Jd. at 15a-16a; see also id. at lla (“One of

Congress’s purposes in amending the LHWCA was to

‘ensure that a worker who could have been covered

part of the time by the pre-1972 Act would be com-

7

pletely covered by the 1972 Act.’”) (quoting P.C.

Pfeiffer Co. v. Ford, 444 U.S. 69, 75 (1979)).

ARGUMENT

The court of appeals’ decision is correct and does

not conflict with any decision of this Court or another

court of appeals. Further review is therefore not

warranted.

1. The court of appeals correctly concluded that

respondent Fleischmann satisfied the LHWCA’s

“status” requirement. The Act defines covered em-

ployees to include “any perses engaged in maritime

employment, including * * any harbor-worker

including a ship repairman, shipbuilder, and ship-

breaker.” 33 U.S.C. 902(3). Use of the term “includ-

ing” indicates that the term “harbor-worker” is not

limited to ship repairmen, shipbuilders and ship-

breakers. Cf. Chesapeake & O. Ry. v. Schwalb, 493

U.S. 40, 45 (1989) (“[tjhe employment that is maritime

within the meaning of § 902(3) expressly includes the

specified occupations but obviously is not limited to

those callings”). The Director, OWCP, who repre-

sents the agency charged with administering the

LHWCA, see 33 U.S.C. 93%a); 20 C.F.R. 701.202(a),

has long construed “harbor-worker” to include a

number of occupations, including “marine construc-

tion workers,” that are “clearly identified with the

water or the waterfront.” LHWCA Program Memo-

randum No. 58, at 15-16 (Aug. 10, 1977); see also De

Martino v. Bethlehem Steel Co., 164 F.2d 177, 178 (1st

Cir. 1947) (worker employed on a dock as a painter is a

harbor-worker).

8

The court of appeals correctly recognized that the

Director’s interpretation of an ambiguous, undefined

term contained in the LHWCA is entitled to defer-

ence under the principles set forth in Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984). Pet. App. 9a-10a. The court of appeals

was also correct in holding that “including marine

construction workers within the meaning of ‘harbor

worker’ is reasonable and preserves the purposes of

the statute.” Jd. at 10a. The court relied on the

ALJ’s “factual finding that [respondent] Fleisch-

mann’s general employment responsibilities included

‘building bulkheads, piers, and floating docks.’” Jd. at

lla. Those tasks are clearly identified with the

waterfront and are the kinds of activities one would

expect in a “harbor.” See Black’s Law Dictionary

717 (6th ed. 1990) (defining the term “harbor” to

include “a sheltered place, natural or artificial, on the

coast of a sea, lake, or other body of water”); LHWCA

Program Memorandum No. 58, supra, at 15-16.°

3 Petitioner asserts (Pet. 11 n.5) that the Director’s con-

struction of the term “harbor-worker” is entitled to no defer-

ence because it concerns the agency’s “interpretation of its own

jurisdiction.” That argument is without merit. “[I]t is settled

law that the rule of deference applies even to an agency’s

interpretation of its own statutory authority or jurisdiction.”

Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487

U.S. 354, 381 (1988) (Scalia, J., concurring) (collecting cases);

see also Dole v. United Steelworkers, 494 U.S. 26, 54-55 (1990)

(White, J., dissenting) (collecting cases); Pet. App. 10a n.2.

Adams Fruit Co. v. Barrett, 494 U.S. 638, 649-650 (1990), on

which petitioner relies (see Pet. 11 n.5), held only that an

administrative agency is not entitled to deference regarding

the contours of a private right of action in the federal courts.

It is far from clear, in any event, that the interpretive question

posed by this case is properly characterized as implicating the

9

Petitioner asserts that the court of appeals’

disposition of the status issue “blows a hole in the

limitation on the coverage of the LHWCA intended by

Congress.” Pet. 12. Contrary to petitioner’s asser-

tion (see ibid.), however, the court of appeals did not

suggest that “[a]nyone who performs some work on

the water could be called a ‘harbor worker.’” Rather,

the court based its decision on the maritime nature of

Fleischmann’s overall responsibilities, explaining

that “Fleischmann’s general employment of building

piers and docks suffices to establish the requisite

connection to ships to confer him with status as a

harbor worker.” Pet. App. 1la-12a; see also LHWCA

Program Memorandum No. 58, supra, at 17-19 (dis-

cussing limits on when an employee who has some

duties over water is engaged in maritime employ-

ment).

Petitioner contends (Pet. 6, 12) that the decision

below conflicts with the ruling of the Ninth Circuit in

McGray Construction Co. v. Director, OWCP, 112

F.3d 1025, 1030 (1997), opinion withdrawn, 124 F.3d

1310 (1997). Because the Ninth Circuit has with-

drawn its opinion in McGray, see 124 F.3d at 1310, any

inconsistency between that opinion and the Second

Circuit’s decision in the instant case would provide no

ground for this Court’s review. In any event, no con-

flict exists. The court in McGray stated that “only a

worker who builds or repairs a structure used

Director’s “jurisdiction.” Whether respondent Fleischmann is

a “harbor-worker” may determine his right to compensation,

but it does not affect the Department of Labor's obligation to

adjudicate his claim. Cf. Mississippi Power & Light, 487 U.S.

at 381 (Scalia, J., concurring) (“there is no discernible line

between an agency’s exceeding its authority and an agency’s

exceeding authorized application of its authority”).

10

to facilitate maritime commerce or navigation is

* * * a harbor worker” under the LHWCA. 112 F.3d

at 1030. It concluded that the pier at issue in that

case, which was “used exclusively for processing and

transporting oil, a nonmaritime activity” (ibid.), did

not meet that description. That holding is in no way

inconsistent with the decision below, which held that

“Fleischmann’s general employment of building piers

and docks suffices to establish the requisite connec-

tion to ships to confer him with status as a harbor

worker.” Pet. App. lla-12a.*

2. The court of appeals also correctly held that the

pier on which Fleischmann’s injury occurred was a

covered situs under the LHWCA. Pet. App. 14a-17a.

The Act provides that a covered situs includes not

only navigable waters, but “any adjoining pie:, wharf,

dry dock, terminal, building way, marine railway, or

other adjoining area customarily used by an employer

in loading, unloading, repairing, dismantling, or build-

ing a vessel.” 33 U.S.C. 903(a); see p. 2, supra. The

term “pier,” although undefined in the LHWCA, is

broad enough to include the bulkhead in this case,

which was built on pilings, extended into navigable

water, and served to protect land from erosion. See

Webster’s Ninth New Collegiate Dictionary 890

(1989) (definition of “pier” includes “a structure (as a

breakwater) extending into navigable water for use as

* The court of appeals in the instant case explained that

“{ajn employee can establish coverage under § 902(3) either by

referring to his or her overall duties or to the particular pro-

ject the employee was engaged in at the time of injury.” Pet.

App. lla. The court decided this case on the former ground.

See id. at lla-l2a. The court also noted, however, that the

activities leading directly to Fleischmann’s injury had signifi-

cant links to shipping and navigation. See id. at 12a n.3.

11

a landing place or promenade or to protect or form a

harbor”).

Contrary to petitioner’s suggestion (see Pet. 12),

Section 903(a) does not require that a “pier” be “cus-

tomarily used * * * in loading, unloading, repairing,

dismantling, or building a vessel” in order to qualify

as a covered situs under the LHWCA. Rather, that

phrase is properly understood to modify only the term

“other adjoining area.” The Court in Northeast

Marine Terminal observed that “it is not at all clear

that the phrase ‘customarily used’ was intended to

modify more than the immediately preceding phrase

‘other areas,” and noted that the House sponsor had

described the Section as expanding coverage to the

enumerated structures with “little concern with re-

spect to how these facilities were used.” 482 U.S. at

280; see Hurston v. Director, OWCP, 989 F.2d 1547,

1552 (9th Cir. 1993) (holding that the “customarily

used” requirement does not apply to the structures

enumerated in Section 903(a)); Pet. App. 14a-16a

(adopting the reasoning of the Hurston court).

Although this Court’s decision in Northeast Marine

Terminal did not definitively resolve the issue, see

432 U.S. at 281, petitioner cites no decision holding

that the “piers” covered by the Act are limited to

those “customarily used in loading, unloading, repair-

ing, dismantling, or building a vessel.”

Construing the term “pier” to include the bulkhead

in this case also effectuates Congress’s intent that

the LHWCA provide a “uniform compensation system

to apply to employees who would otherwise be covered

by this Act for part of their activity.” Northeast

Marine Terminal, 432 U.S. at 272 (quoting S. Rep.

No. 1125, 92d Cong., 2d Sess. 13 (1972); H.R. Rep. No.

1441, 92d Cong., 2d Sess. 10-11 (1972)). Congress

12

“wanted a system that did not depend on the ‘fortui-

tous circumstance of whether the injury [to the long-

shoreman] occurred on land or over water.’” North-

east Marine Terminal, 432 U.S. at 272 (citing S. Rep.

No. 1125, supra, at 13; H.R. Rep. No. 1441, supra, at

10). Respondent Fleischmann would have been

covered by the LHWCA if his injury had occurred

while he was working on the floating dock. Pet. App.

10a-lla; see note 2, supra. He would also have been

covered if he had fallen from the bulkhead into the

navigable waters of the canal, rather than in the other

direction into the dredging material and water that

separated the bulkhead from solid land. See Perini,

459 U.S. at 315-316; Nacirema Operating Co. v. John-

son, 396 U.S. 212, 225 (1969) (Douglas, J., dissenting)

(noting pre-1972 incongruity “that in an accident on a

pier over navigable waters coverage of the Act de-

pends on where the body falls after the accident has

happened”). The court of appeals therefore correctly

concluded that “[t]his case exemplifies the concerns

that fueled the 1972 amendments.” Pet. App. 15a.

Petitioner contends (Pet. 12-14) that the decision

below conflicts with Brooker v. Durocher Dock &

Dredge, 133 F.3d 1390 (11th Cir. 1998), petition for

cert. pending, No. 98-18. In Brooker, an employer was

building a new seawall or bulkhead to protect an

electric generating plant from an encroaching river.

Id. at 1391. The court of appeals stated that the new

seawall extended twenty feet out from the old seawall.

Ibid. A welder working on the project was injured

when he fell landside, in the area between the old

seawall and the power plant. Jbid. The Eleventh

Circuit upheld the ALJ’s denial of benefits, conclud-

ing that the seawall in question was not a pier and

was not otherwise part of an adjoining area customar-

13

ily used by an employer for specified activities. Jd. at

1393-1394.°

The Eleventh Cireuit’s decision is concededly in

tension with the decision below, since the two courts

reached different conclusions regarding the applica-

tion of the situs requirement to somewhat similar

physical structures. The disagreement between the

two circuits, however, appears to involve only the

application of law to fact.

The court in Brooker stated that “whether a

facility is a ‘pier’ is a pure factual question”; it placed

primary emphasis on the appearance of the structure

and the fact that “the supervisor of the seawall con-

struction project with fourteen years of experience

unequivocally answered ‘no,’ when asked whether the

facility was a pier.” 133 F.3d at 1393. Moreover, the

worker in Brooker fell into the area landward of the

old seawall, and thus at some remove from the

structure (the new seawall) that, when completed,

would constitute the closest analogue to what the

Second Circuit found to be a “pier” in this case. The

structure on which Fleischmann was located at the

time of injury in this case (the new seawall), by con-

trast, was (and was to remain) immediately adjacent

to the water. See Pet. App. 3a (Fleischmann injured

while standing on top of the bulkhead and moving a

barge by pulling on a tow line). Absent a clear dis-

agreement between the courts of appeals as to the

® The court in Brooker reserved the question whether a

“pier” must be “customarily used in loading, unloading, repair-

ing, dismantling, or building a vessel” in order to qualify as a

covered situs under the LHWCA. See 133 F.3d at 1394.

lt

governing legal principles, we believe that review by

this Court would be premature.*

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

MARVIN KRISLOV

Deputy Solicitor for

National Operations

ALLEN H. FELDMAN

Associate Solicitor

NATHANIEL I. SPILLER

Deputy Associate Solicitor

EDWARD D. SIEGER

Aitorney

Department of Labor

JULY 1998

® We also note that the result in the instant case might not

change even if the bulkhead was determined not to be a “pier.”

See C.A. App. Al24-A125 (Director’s argument to the Board

that the bulkhead was part of an area adjoining navigable

waters that was used for loading and unloading construction

materials).