# Petition for Writ of Certiorari — SSA Gulf, Inc. v. Magee

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 904

## Text

—_ i ae il a: a ee —_" 6

Supreme Court, U.S.
(1) FILED
04-74 ONOV 29 2004

No. 04-
i TALLER SALE BERLE ES Stee

In the
Supreme Court of the Anited States

SSA GULF, INC.,
PETITIONER,
v.
ROOSEVELT MAGEE,
RESPONDENT.

On Petition For a Writ Of Certiorari To

The U.S. Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

RICHARD P. SALLOUM JONATHAN S. MASSEY

FRANKE, RAINEY & SALLOUM Counsel of Record

Post Office Drawer 460 JONATHAN S. MASSEY, P.C.

Gulfport, MS 39502 3920 Northampton St. N.W.

(228) 868-7070 Washington, D.C. 20015
(202) 686-0457

IRA J. ROSENZWEIG

ADAMS, HOEFER, HOLWADEL
& ELDRIDGE, LLC

Pan American Life Center

601 Poydras St., Suite 2490

New Orleans, LA 70130

(504) 581-2606

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, P.C. 20001

QUESTION PRESENTED

Whether the Longshore and Harbor Workers’ Compensation
Act, 33 U.S.C. § 901, et seg., wholly displaces and preempts
state tort damages claims by longshore employees against their
stevedore employers, so as to trigger federal question jurisdiction
pursuant to 28 U.S.C. § 1331.

made OM TE OE Be RP IA ere ae Peas

ii
PARTIES TO THE PROCEEDINGS

In addition to the parties listed in the caption, the nominal
respondent in the court of appeals was the Honorable Kurt D.
Engelhardt, Judge, United States District Court for the Eastern
District of Louisiana.

The following parties filed responses to the petition for

~ mandamus in the court of appeals: James J. Flanagan Shipping

Corporation; Cooper/T. Smith Stevedoring Company, Inc.;
Asbestos Corporation Limited.

The following parties were defendants in the district court but
did not enter an appearance in the court of appeals: Eagle, Inc.;
Boland Machine & Manufacturing Co.; Dixie Machine, Welding
& Metal Works, Inc.; Sank, Inc. f/k/a Buck Kreihs Co.;
American Sugar Refining, Inc.; BCI Acquisitions, Inc.; P&O
Port Gulfport, Inc. f/k/a Atlantic & Gulf Stevedores, Inc.

re ie ee a ee ee er er a Pa WENT VS

ill
RULE 29.6 STATEMENT

Petitioner SSA Gulf, Inc., formerly known as SSA Gulf
Terminals, Inc. and Ryan-Walsh Stevedoring, states that its
parent company is SSA Marine, Inc. No publicly held company
owns more than 10% of SSA Gulf’s stock.

ae

Se See Se Pe | UNE..!. 3” SS Be Cee:

Vv

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TABLE OF CONTENTS

QUESTION PRESENTED ooo ccc ccccsccccccncssceuc,

1. Statutory Background .........................

2. Proceedings in this Case ................0ceeees

A. The Decisions Below Conflict With A Holding
COR Fine Pee Cae os ks oe

B. The Decisions Below Conflict With Governing
Precedent of this Court Regarding the
“Complete Preemption” Doctrine...............

1. The Courts Below Applied An Obsolete
Legal Standard Regarding The Complete
Ponnmnptian THOME ow... so dc eda wes cces

ee Oe erste
~

vi

2. This Court Should Grant Review To

Continue To Clarify The Complete
Preemption. SND 5 cnc cnnccessticuasees 15
C. Under the Proper Legal Test, The LHWCA
Triggers Complete Preemption ................. 16
1. The Text and Structure of the LHWCA ....... 16
2. The Legislative History of the LHWCA....... 18
D. The Decision Below Threatens a Substantial
Disruption of the LHWCA Statutory Scheme ..... 22
E. Section 1447(d) Does Not Preclude Review ...... 25
CURVLRAMINS ic ccccccssasestcuauceess seuernene :. 28

Appendix A: Order of the U.S. Court of Appeals for the
PURGES 660060 0hendeeeacedueeen eee la

Appendix B: Order of the U.S. District Court
for the Eastern District of Louisiana................ 2a

LLL RAL AO CRA ey Ba me

vii
TABLE OF AUTHORITIES
Cases Page

Aaron v National Union Fire Ins. C 0., 876 F.2d 1157

(Sth Cir. 1989), cert denied, 493 U.S. 1074 (1990) .... 14
Aetna Health Ins. v. Davila,

124 S. Ct. 2488 (2004) ............... 5, 11-13, 15, 28
Aliota v. Graham, 984 F.2d 1350 (3d Cir.),

cert. denied, 510 U.S. 817 Potkeavepueuauceucs 25
Artis v. Norfolk & Western Ry., 204 F.3d 141

(4th Cir. 2000) ............., Pree ee CTT TET Te Pere 9
Atlantic Transportation Co. v. Imbrovek,

BPO ae MRCP 6b ow bh cbr bicdeussukkcckns cont 18

Avco Corp. v. Aero Lodge No. 735,390 U.S. $57 (1968) .. 10
Ben & Jerry's Homemade, Inc. v. KLLM. Inc.,
58 F. Supp. 2d 315 (D. Vt. Muh eiecstaseGeees) 16

182 F.3d 851 (11th Cir. 1999) ......00.. 15
Borneman v. United States, 213 F.3d 819 (4th Cir. 2000),

cert. denied, 531 U.S. 1070 (2001)................. 24
Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc.,

373 F.3d 296 (2d Cir. 2004) ...................... 15
Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) ..~... 10
Chandris, Inc. v. Latsis, 515 U.S. 347 Bree 17
Circle Redmont, Inc. v. Mercer Transp. Co.,

78 F. Supp. 2d 1316 (M.D. Fla. 1999) .............. 16
Darcangelo v. Verizon Communs., Inc.,

292 F.3d 181 (4th Cir. 2002) ..................... 16
Ervast v. Flexible Prods. Co., 346 F.3d 1007

See Ge 60hs cp auaeor cu Coe 15
Falkowski v. Imation Corp., 309 F.3d 1123

i Rr ee ee 16

Vili
Cases (continued) Page

Franchise Tax Bd. of Cal. v. Construction Laborers
Vacation Trust for Southern Cal.,

gE ey ree 10-11
Gallea v. United States, 779 F.2d 1403 (9th Cir. 1986) ... 25
Garcia v. Amfels, Inc., 254 F.3d 585 (Sth Cir. 2001) ...... 4
Gravatt v. City of New York, 226 F.3d 108 (2d Cir. 2000),

CE GUE, Bae Gis PE GE a wh oc csc csccenncess 9
Hurt v. Dow Chem. Co., 963 F.2d 1142 (8th Cir. 1992) ... 16
In re Adams, 809 F.2d 1187 (Sth Cir. 1987) ............ 25
In re CSX Transportation, Inc. v. Shives, 151 F.3d 164

SE, SE catch cnet ak esneda dad eeeusn shes 8, 26
In re TMI Litigation Cases Consolidated II, 940 F.2d 832

(3d Cir. 1991), cert. denied, 503 U.S. 906 (1992) ..... 27

Ingalls Shipbuilding v. Director, Office of Workers’
Compensation Programs, DOL, 519 U.S. 248 (1997) ... 3
International Stevedoring Co. v. Haverty,

PE es PENNE ose ca secnersctvsosericaee 18-19
Kircher v. Putnam Funds Trust,
ee ee CP OD vec ebacecdsencecsacds 26

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920) ... 19
Lippitt v. Raymond James Fin. Servs.,

340 F.3d 1033 th Cir. 2003) .................... 15
Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987) .. 10
Metropolitan Stevedore Co. v. Rambo,

eT RR rr nn aria 2
Mitchell v. Carlson, 896 F.2d 128 (Sth Cir. 1990) ....... 25
Morrison-Knudsen Constr. Co. v. Director, Office of

Workers’ Compensation Programs, United States Dep't

ee BP PRUNE bide cc isdtncesecsae.c 23
Nasuti v. Scannell, 906 F.2d 802 (1st Cir. 1990) ......... 27
——Northeast Marine Terminal Co. v. Caputo,
Es I ee ete se ae 20
Norton v. Warner Co., 321 U.S. 565 (1944) ............ 17

Ree Ul Ue Lene ete

ix
Cases (continued) Page

Poore v. American-Amicable Life Ins. Co.,

218 F.3d 1287 (11th Cir. 2000) ................... 25
Potomac Electric Power Co. v. Director, Office of Workers’

Compensation Programs, 449 U.S. 268 | ee 23
Powers v. Southland Corp., 4 F.3d 223 (3d Cir. i)
Rivet v. Regions Bank of La., 522 U.S. 470 Fe 1]
Robinson v. Michigan Consol. Gas Co.,

FES F.20 S79 (Gta Cle. 1990) ooo occ cc eeececcce 16

Rosciszewski v. Arete Assocs., 1 F.3d 225 (4th Cir. 1993) . 16
Ryan Stevedoring Co. v. Pan Atlantic SS. Corp.,

MP is MOURNE oi ob bs hw xe ek kk vk 19-20
Sample v. Johnson, 771 F.2d 1335 (9th Cir.1985),

cert. denied, 475 U.S. 1019 (1986).................. 9
Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) ....... 19
Sonoco Prods. Co. v. Physicians Health Plan, Inc.,

ee ee) 15
South Chicago Coal & Dock Co. v. Bassett,

Pe ee OE Sos bbe dvs vac ihn ecewen. 17
Southern Pacific Co. v. Jensen, 244 U.S. 205 ‘i. os oe 18
Spielman v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

332 F.3G 116 (2d Cig: 2003) 0... ccc cece cee 15
Stewart v. Dutra Constr. Co., 343 F.3d 10 (1st Cir. 2003),

cert. granted, 124S. Ct. 1414 (2004) ................. 9
Stowers v. Consolidated Rail Corp., 985 F.2d 292

(6th Cir.), cert. denied, 510 U.S. 813 (1993) ...... vere
Strong v. Telectronics Pacing Sys., 78 F.3d 256

Se Er er ubca ce ey oes kes eet 12s 15
Swanson v. Marra Brothers, Inc., 328 U.S. 1 (1946) ..... 19

Thermtron Products, Inc. v. Hermansdorfer,
I ne NE il gs a
Trans World Airlines v. Mattox, 897 F.2d 773 (Sth Cir.),
cert. denied, 498 U.S. 926 (1990) ..................
Waco v. United States Fidelity & Guar. Co.,
Pe PO as oe co ee

Cases (continued) Page

Washington v. W. C. Dawson & Co., 264 U.S. 219 (1924) . 19

Xiong v. Minnesota, 185 F.3d 424 (8th Cir. 1999) ....... 25
Statutory Materials Page
Poth | oe gL) PEPE PEEL ERT Tre eee Ere rrr er l
po gk eB errr rrr err rr errs eer rr 4
Ag ee ee err ry oe regina -4
rR Ee, eee ee er yey re 24-27

Longshore and Harbor Workers’ Compensation Act, 44
Stat. 1424, as amended, 33 U.S.C. § 901 et seq ... passim

Be es Es oe Adee sda eee ea eee eee 2
RT | i rr er reo rye 2
Be ee Ee 5 aire he be eee eee eae ae 2
De ers EE ark 5 4545 os Lee dn hae ee nee Re
Se EP 6 0 kw 8 0 oo RE oe hee ee 2, 22
Pe a EE 6 ohn daw kek da Sh essa eee 2, 22
PP aA EE his oo os deca ee eka owt wea aaa os 22
el Ss EE oe he ie a aka ce eure eee 2
Se as ee ae a ee ee eee 2, 16
Pe EE oo ooo eee ee eid es eee 2
ee oe es oaks eee eae eee 2
ee ek RS ER a eee 2, 10
eR ea hs ok a ew eee Cede kes 3
De ooo oa so ee eee ce 3
Pe at Sa od a San aa eee ea ces o5 2
PN EE So ie ce yee ae ee eee dk Ae eee 18
Fe MEE OO ro oad 6 Lea RO OR aU 2
reas I eee oe ee a ee 18
H.R. Rep. No. 92-1441, 92d Cong., 2 Sess. (1972) .... 19-21
S. Rep. No. 92-1125, 92d Cong., 2d Sess. (1972) ..... 19-2]
DE GUE, TOG, DP CEPR) bce dc ke sido dstucsenses 23

XI

Miscellaneous Page
BO CER. $5 TON-TOG oon nice cae nnccee,. 3, 18
American Tort Reform Association, BRINGING JUSTICE

TO JUDICIAL HELLHOLES (2002) ................... 27
American Tort Reform Association, BRINGING JUSTICE

TO JUDICIAL HELLHOLES (2003) ................... 22
Richard H. Fallon, Jr. et al., THE FEDERAL COURTS AND

THE FEDERAL SYSTEM (Sth ed. Supp. 2003).......... 15

PETITION FOR WRIT OF CERTIORARI

Petitioner SSA Gulf, Inc. (“SSA Gulf ’) respectfully petitions
for a writ of certiorari to review the judgment of the United
States Court of Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The Fifth Circuit’s order (Pet. App. la) denying the petition
for writ of mandamus is unreported. The opinion of the district
court (id. 2a) is also unreported.

JURISDICTION

The order of the court of appeals was entered on October 5,
2004. Pet. App. la. The jurisdiction of this Court is invoked
pursuant to 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISION

Section 5 of the Longshore and Harbor Workers’
Compensation Act (“LHWCA”) provides in relevant part:

The liability of an employer prescribed in section 4 [33
U.S.C. § 904] shall be exclusive and in place of all other
liability of such employer to the employee, his legal
representative, husband or wife, parents, dependents, next
of kin, and anyone otherwise entitled to recover damages
from such employer at law or in admiralty on account of
such injury or death, except that if an employer fails to
secure payment of compensation as required by this Act,
an injured employee, or his legal representative in case
death results from the injury, may elect to claim
compensation under the Act, or to maintain an action at
law or in admiralty for damages on account of such injury
or death.

33 U.S.C. § 905(a).

2

STATEMENT OF THE CASE
1. Statutory background.

The Longshore and Harbor Workers’ Compensation Act
(“LHWCA”), 44 Stat. 1424, as amended, 33 U.S.C. § 901 ef
seq., is a comprehensive scheme to provide compensation ‘in
respect of disability or death of an employee... . if the disability
or death results from an injury occurring upon the navigable
waters of the United States,’” including any adjoining pier,
wharf, dry dock, terminal, building way, marine railway, or other
area customarily used by an employer in loading, unloading,
repairing, dismantling, or building a vessel. Metropolitan
Stevedore Co. v. Rambo, 515 U.S. 291, 294 (1995) (quoting 33
U.S.C. § 903(a)). The Act focuses primarily on such occupations
as longshore and harbor workers, ship repair personnel,
shipbuilders, and shipbreakers. Under the LHWCA, nonseaman
maritime workers, as defined in § 902(3), are afforded no-fault
workers’ compensation claims against their employers, see
§ 904(b) and negligence claims against vessels, see § 905(b), for
injury and death. -

The LHWCA creates a comprehensive scheme for claims by
eligible workers. The program is administered by the Secretary
of Labor through the Director of Office of Workers’
Compensation Programs. 33 U.S.C. § 939. The Act prescribes
detailed procedures for the filing and processing of claims.
§§ 913-14, 919-20. Any claim for benefits must proceed
exclusively before an administrative law judge (“ALJ”), and any
challenge to the ALJ’s ruling must first be reviewed by the
Benefits Review Board (“Board”). §§ 919(a), 921(b). Any
appeal from the Board’s decision must be filed in a United States
Court of Appeals. § 921(c).

The LHWCA provides formulae for the computation of
benefits for disability or death based on the employee’s weekly
wages. §§ 908-09, 910. The Act contains rules for the payment
of compensation where third parties may be liable, § 933; for the

EAMES ASS Et thle ORL ALT HOB CA LIL A OIC AIE EET FL seo wate Di it RPS

3

modification of awards, § 922; and for the regulation of
attorneys’ fees. § 928.

Under the authority of the LHWCA, the Secretary of Labor
has promulgated a detailed set of regulations implementing all
portions of the Act. See 20 C.F.R. §§ 701-704. The regulations
provide rules for claims relating to occupational diseases.
§ 702.602-604. This Court has recognized that a shipfitter
suffering from employment-related asbestos disease is entitled to
administrative compensation from his employer under the
LHWCA. See Ingalls Shipbuilding v. Director, Office of
Workers’ Compensation Programs, DOL, 519 U.S. 248, 251
(1997).

The regulations also address the procedures for the payment
of uncontested claims, 20 C.F.R. § 702.231; the entry of
settlement agreements, §§ 702.242-243: and the processing of
controverted claims, §§ 702.251-274, 301-349. The rules
governing the conduct of formal hearings include provisions
regarding depositions, interrogatories, evidence, witnesses, oral
arguments, and written submissions. The regulations also
provide for the modification of compensation awards and
payment of supplemental compensation. § 702.372-373.

The comprehensive statutory framework does not permit a
longshore worker to sue a stevedore employer for tort damages
in state court. Indeed, central to the LHWCA is the exclusivity
provision of Section 5, which provides that the liability of an
employer under the LHWCA “shall be exclusive and in place of
all other liability” to the employee, “his legal representative,
husband or wife, parents, dependents, next of kin, and anyone
otherwise entitled to recover damages from such employer at law
or in admiralty on account of such injury or death.” § 90S(a).

2. Proceedings in this case.

Respondent filed the instant lawsuit in Louisiana state court,
Orleans Parish. The Petition for Damages alleged that, while

4

Roosevelt Magee was employed as a longshoreman with SSA
Gulf and other stevedoring companies, he loaded and unloaded
asbestos cargo at the Port of New Orleans. According to the
lawsuit, exposure between 1965 and 1997 contributed to certain
asbestos-related diseases, including lung cancer. The lawsuit
seeks special, general, and exemplary damages.

SSA Gulf timely removed this case under 28 U.S.C.
§ 1441(b), on the grounds that the LHWCA wholly displaces and
preempts state-law tort claims against stevedore employers so as
to come within federal question jurisdiction pursuant to 28
U.S.C. § 1331. The removal was joined by all defendants who
had been served at the time of removal. By separate pleadings,
petitioner and other stevedore defendants filed a Rule 12(b)(6)
motion to dismiss on the ground that the LHWCA, as
respondent’s sole and exclusive remedy, completely preempts
any state-law claims against stevedore employers.

Plaintiff moved to remand, arguing that the LHWCA “cannot
be fairly understood as preempting state remedies.” “The
availability of a federal remedy does not necessarily foreclose an
injured worker’s claim for relief under state law.” According to
the plaintiff, the LHWCA “contains no express declaration of
Congressional intent to prohibit states from providing
compensation to injured workers in lieu of, or in addition to the
benefits provided under the LHWCA.” Plaintiff concluded by
contending that, “[w]ith concurrent jurisdiction, an injured
worker has the option of pursuing a claim for remedies under
either state law or federal law. In this case, plaintiff chose to
pursue a state remedy for his injuries, which include actions in
tort.”

The district court entered an order of remand without
deciding whether the LHWCA completely preempts state-law
claims against stevedore employers and without reaching
petitioner’s Rule 12(b)(6) motion to dismiss based upon the
exclusive remedy provisions of the LHWCA. Pet. App. 2a.

ee —

A a A haem ae NA a Nw Ad PO

5

Instead, the district court entered a remand order adopting the
reasoning of Hernandez v. Todd Shipyards, 2004 WL 1543184
(E.D. La. 2004). The district court in Hernandez held that the
LHWCA does not provide a basis for removal of purely state-law
claims. “[T]he LHWCA contains no civil enforcement provision
that creates a federal cause of action that could be litigated in
either federal or state court.” Jd. at *4.

SSA Gulf filed a petition for writ of mandamus presenting the
question whether the LHWCA creates federal question
jurisdiction for removal purposes because it completely preempts
state-law tort claims against stevedore employers. Respondent
filed a response attaching its district court motion to remand. By
order of October 5, 2004, the Fifth Circuit denied the petition.
Pet. App. la.

REASONS FOR GRANTING THE WRIT

This case presents the question whether the Longshore and
Harbor Workers’ Compensation Act, 33 U.S.C. § 901, ef seq.
(“LHWCA”), wholly displaces and preempts state tort damages
claims by longshore employees against their stevedore
employers, so as to trigger federal question jurisdiction pursuant
to 28 U.S.C. § 1331. The decision below squarely conflicts with
a holding of the Fourth Circuit, as well as with governing
precedent from this Court regarding the “complete preemption”
doctrine.

Further, the decision below threatens a substantial disruption
of the LHWCA scheme by enabling state courts — including
State-court judges and juries — to decide questions of LHWCA
benefits and coverage in inconsistent and non-uniform ways.
The decision below cannot be reconciled with the holdings of
this Court and at least eight other circuits recognizing that
Congress intended for the LHWCA to serve as the exclusive
remedy for longshore employees against their stevedore
employees.

6

The disruption of the statutory scheme is real rather than
hypothetical. The impact is illustrated by a recent petition for
certiorari presenting the same question as this case. See No. 04-
327, petition for cert. denied (Nov. 15, 2004) (“Hernandez”). In
Hernandez, SSA Gulf warned that “[a]bsent corrective action by
this Court, it is clear that stevedore employers will face a flood
of state-court tort lawsuits seeking enormous damage awards in
plain violation of the statutory command of the LHWCA.”
Petition for Writ of Certiorari in No. 04-327, at 20.

The instant case shows that the flood of new cases is already
underway. Unless the Fifth Circuit’s error is corrected, plaintiffs
will continue filing state-court tort suits against stevedore
employers in Louisiana state court and other notorious anti-
defendant venues, with the intent of circumventing the
LHWCA’s exclusive remedy provisions.

Accordingly, the denial of certiorari in No. 04-327 does not
militate in favor of denial of certiorari here. “The denial of a
writ of certiorari imports no expression of opinion upon the
merits of the case, as the bar has been told many times.”
Missouri v. Jenkins, 515 U.S. 70, 85 (1995) (quoting United
- States v. Carver, 260 U.S. 482, 490 (1923)). “We have
repeatedly indicated that a denial of certiorari means only that,
for one reason or another which is seldom disclosed, -and not
infrequently for conflicting reasons which may have nothing to
do with the merits and certainly may have nothing to do with any
view of the merits taken by a majority of the Court, there were
not four members of the Court who thought the case should be
heard.” Daniels v. Allen, 344 U.S. 443, 491 (1953) (Frankfurter,
J.).

The cases are legion in which this Court has granted certiorari
after initially denying the writ in a previous case presenting the
same legal question.’ Such a process is inevitable in a system in

' E.g., United States v. Lara, 124 S. Ct. 1628, 1632 (2004); Illinois v.

i eee te ee eee ee ae eer are mat _ td bons « “

Sn Ph AICO AD eae ba in OR ae AS OL AaB io

7

which this Court encourages percolation of issues in the lower
courts. Here, the Fifth Circuit has demonstrated that its
Hernandez decision was not aberrational. The Fifth Circuit has
made clear that it will adhere to its erroneous legal position and
will continue to allow state-court plaintiffs to frustrate the
exclusivity provision of the LHWCA.

Hence, the Fifth Circuit’s decision in this case confirms the
palpable threat to the LHWCA’s statutory scheme. Because the
rule in this case conflicts with decisions of this Court and of
numerous other circuits, this Court’s plenary review is urgently
needed. In the alternative, this Court should grant the petition,
vacate the judgment below, and remand for reconsideration in
light of Aetna Health Ins. v. Davila, 124 S. Ct. 2488 (2004).
Although this Court’s decision in Davila was issued prior to the
Fifth Circuit order in this case, and although SSA Gulf’s petition
for mandamus cited Davila, the Fifth Circuit’s order is
inconsistent with Davila.’

Lidster, 540 U.S. 419 (2004); United States v. Knights, 534 U.S. 112, 116
(2001); Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2004); Shalala
v. Illinois Council on Long Term Care, 529 U.S. 1, 9 (2000); Farragher v.
City of Boca Raton, 524 U.S. 775, 785 (1998); Monge v. California, 524 U.S.
721,729 (1998); Phillips v. Washington Legal Foundation, 524 U.S. 156, 163
(1998); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 759
(1995); Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 269 (1995);
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130 n. 1 (1994).

? This Court has frequently GVR’ed cases even whether the lower court
decision was issued after the governing Supreme Court opinion. See, e.g., No.
97-8284, Schweninger v. Minnesota, 525 U.S. 802 (1998) (remanded in light
of Kansas v. Hendricks, 521 U.S. 346 (1997)); No. 97-7931, Coleman v.
Minnesota, 524 U.S. 924 (1998) (same); No. 97-5901, Hodgkiss v. United
States, 522 U.S. .1012 (1997) (remanded in light of Bailey v. United States,
516 U.S. 137 (1995)); No. 90-1936, Parker Solvents v. Royal Ins. Cos. of
Am., 502 U.S. 801 (1991) (remanded in light of Salve Regina College v.
Russell, 499 U.S. 225 (1991), decided a few days before lower court’s
decision); No. 90-524, Connecticut v. Geisler, 498 U.S. 1019 (1991)
(remanded in light of New York v. Harris, 495 U.S. 14 (1990), decided three
weeks before lower court’s opinion); No. 89-5991, Patterson v. South

A. The Decision Below Conflicts With A Holding Of The
Fourth Circuit.

The rule followed below is inconsistent with the decision of
the U.S. Court of Appeals for the Fourth Circuit in an
indistinguishable case. Certiorari is therefore amply warranted.

In Inre CSX Transportation, Inc. v. Shives, 151 F.3d 164 (4th
Cir. 1998), the Fourth Circuit held that a federal district court
erred in remanding to state court a lawsuit by a harbor worker
against his employer. The Fourth Circuit held that “[t]he
question of whether the LHWCA applies to a work-related injury
is exclusively a federal question which Congress never intended
for state courts to resolve.” /d. at 167. “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. Review by_the courts is authorized
through a petition for review, which may be filed only in the
[federal] courts of appeals... .” /d. at 171. State courts “do not
have jurisdiction over LHWCA cases.” /d. The Fourth Circuit
explained that, “if we were to [remand this case to state court],
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.” Jd. The court of appeals
opined that, because the LHWCA administrative remedy is
exclusive, the only proper course was dismissal of the case: “the
district court should not have remanded the case to state court,
but should have dismissed it.” /d.

The decision below is utterly irreconcilable with the holding
of the Fourth Circuit in Shives. The Fourth Circuit held that,
when a state-court action against a stevedore employer is

Carolina, 493 U.S. 1013 (1990) (remanded in light of Griffith v. Kentucky,
479 U.S. 314 (1987)); No. 89-401, Wecht v. Inmates of Allegheny County,
493 U.S. 948 (1989) (remanded in light of University of Texas v. Camenisch,
451 U.S. 390 (1981)).

wee, a Se

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9

removed to federal district court, the proper remedy is dismissal,
not remand. The courts below followed the opposite rule. In the
Fourth Circuit, longshore and harbor workers who attempt to file
State-court actions against their employers will properly be
remitted to their administrative remedies. Under the rule
followed in the case at bar, longshore and harbor workers will
instead be allowed to pursue their tort actions in the state courts,
subject only to this Court’s discretionary review via its certiorari
jurisdiction. State-court judges and potentially state-court juries
will decide issues of LHWCA benefits and coverage.

Circuit-to-circuit variation in the administration of the
LHWCA would be intolerable. Shipping is inherently an
interstate and indeed international form of commerce.
Operations cannot be confined to the boundaries of a particular
state or judicial circuit. If stevedore activities in New Orleans
and South Carolina are subject to different rules, then commerce
will be hampered, and Congress’ goal of a uniform national
system of compensation will be frustrated. }

The decision below is not only in conflict with the holding of
the Fourth Circuit; it is also in tension with the rulings of at least
eight other circuits holding that Congress intended for the
LHWCA to serve as the exclusive remedy for longshore
employees against their stevedore employees. See, e.g., Stewart
v. Dutra Constr. Co., 343 F.3d 10, 14 (1st Cir. 2003), cert.
eranted, 124 S. Ct. 1414 (2004); Gravatt v. City of New York,

‘6 F.3d 108, 111 (2d Cir. 2000), cert. denied, 532 U.S. 957
(<001); Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935,
938-39 (3d Cir. 1990), cert. denied, 498 U.S. 1067 (1991); Artis
v. Norfolk & Western Ry., 204 F.3d 141, 144 (4th Cir. 2000);
Stowers v. Consolidated Rail Corp., 985 F.2d 292, 293 (6th
Cir.), cert. denied, 510 U.S. 813 (1993); Johnson v. Continental
Grain Co., 58 F.3d 1232, 1235 (8th Cir. 1995); Sample v.
Johnson, 771 F.2d 1335, 1346-47 (9th Cir.1985), cert. denied,
475 U.S. 1019 (1986); Brockington v. Certified Electric, Inc.,
903 F.2d 1523, 1527 (11th Cir. 1990), cert. denied, 498 U.S.

10

1026 (1991).
This Court’s review is therefore amply warranted.

B. The Decision Below Conflicts With Governing
Precedent of this Court Regarding the “Complete
Preemption” Doctrine.

Certiorari is necessary for a further reason: The rule in this
case conflicts with decisions of this Court regarding the
“complete preemption” doctrine. This doctrine reflects the
recognition that, “[o]nce an area of state law has been completely
pre-empted, any claim purportedly based on that pre-empted
state law is considered, from its inception, a federal claim, and
therefore arises under federal law.” Caterpillar, Inc. v. Williams,
482 U.S. 386, 393 (1987). “Congress may so completely
preempt a particular area that any civil complaint raising this
select group of claims is necessarily federal in character.”
Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987).

This Court first recognized the complete preemption doctrine
in Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557 (1968). In
Avco, an employer sought an injunction in state court to bar the
defendant labor union from striking. The union removed the suit
to federal court, and this Court upheld the removal, opining that
Section 301 of the Labor Management Relations Act (“LMRA”)
so completely preempts state law that the employer’s complaint
should be considered as arising under Section 301. 390 U.S. at
560. The necessary ground of decision in Avco was that “the
preemptive force of § 301 is so powerful as to displace entirely
any state cause of action for violations of contracts between an
employer and a labor organization. . .. Any such suit is purely a
creature of federal law, notwithstanding the fact that state law
would provide a cause of action in the absence of § 301....
Avco stands for the proposition that if a federal cause of action
completely preempts a state cause of action, any complaint that
comes within the scope of the federal cause of action necessarily
‘arises under’ federal law.” Franchise Tax Bd. of Cal. v.

eit ein ALN ot sigs Mags Be Nia tia hs ih itll Etat abe Nts Pye, om

11

Construction Laborers Vacation Trust for Southern Cal., 463
U.S. 1, 23-24 (1983). See also Rivet v. Regions Bank of La., 522
U.S. 470, 476 (1998) (“Once an area of state law has been
completely pre-empted, any claim purportedly based on that
pre-empted state-law claim is considered, from its inception, a
federal claim, and therefore arises under federal law”) (internal
quotation marks omitted).

In recent years, this Court has issued two important decisions
revising and clarifying the complete preemption doctrine. In
Beneficial Nat'l Bank v. Anderson, 539 U.S. 1 (2003), this Court
held that causes of action for usury filed in state courts against
national banks are removable to district court under § 1441(b) as
“arising under” federal law — even when federal law is not
mentioned in the complaint. Most recently, this Court invoked
the complete preemption doctrine in Aetna Health Inc. v. Davila,
124 S. Ct. 2488 (2004), which held that when a federal statute (in
that case, ERISA) completely preempts a state-law cause of
action, the state case may be removed to federal court.

In both Beneficial Nat’l Bank and Davila, this Court
instructed that the principal focus of complete preemption should
be on whether the federal statutory scheme comprehensively
displaces the state law at issue. The rulings of the courts below
cannot be reconciled with this Court’s decisions, particularly its
recent holdings.

1. The Courts Below Applied An Obsolete Legal
Standard Regarding The Complete Preemption
Doctrine.

The district court in this case adopted the reasoning in
Hernandez that the LHWCA does not create federal question
jurisdiction because it “contains no civil enforcement provision
that creates a federal cause of action that could be litigated in
either federal or state court” and “does not contain a specific
jurisdictional grant to the federal courts for the enforcement of
a right created by the LHWCA.” 2004 WL 1543184, *4. The

12

district court’s description of the LHWCA was inaccurate
because the LHWCA does in fact contain provisions for federal
court review and for the enforcement of federal rights. The Act
provides that “[a]ny person adversely affected or aggrieved by a
final order of the [Benefits Review] Board may obtain a review
of that order in the United States court of appeals.” § 921(c).
The LHWCA also provides that district courts may enforce
federal rights under the Act by issuing injunctions against
employers not in compliance with compensation orders. See §
921(d).

Moreover, the legal standard followed by the courts below
conflicts with this Court’s precedent — particularly the recent
decisions of Beneficial National Bank and Davila. These recent
decisions have refined and clarified the complete preemption
doctrine by making clear that the relevant issue is Congress’
intent to completely displace state law through the enactment of
a comprehensive statutory scheme. In Beneficial National Bank,
for example, this Court made clear that the existence of a
comprehensively preemptive federal statute means that any
assertion of a state-law cause of action necessarily raises a
federal question: “When the federal statute completely pre-empts
the state-law cause of action, a claim which comes within the
scope of that cause of action, even if pleaded in terms of state
law, is in reality based on federal law. This claim is then
removable under 28 U.S.C. § 1441(b)....” 539 US. at 8.

This Court reaffirmed the same principle in Davila: “When
a federal statute wholly displaces the state-law cause of action
through complete pre-emption, the state claim can be removed.”
124 S. Ct. at 2495 (internal quotation marks omitted). Thus, by

creating acomprehensive federal scheme providing the exclusive

remedy against stevedore employers, and by eliminating all
related state-created rights, the LHWCA gives rise to federal
question jurisdiction under the complete preemption doctrine.

Tellingly, in both Beneficial National Bank and Davila, this

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13

Court focused on the federal interest in preserving the uniformity
of a comprehensive statutory scheme — the same federal interest
that lies at the heart of the LHWCA. In Beneficial National
Bank, this Court observed that “[u]niform rules limiting the
liability of national banks and prescribing exclusive remedies for
their overcharges are an integral part of a banking system that
needed protection from possible unfriendly State legislation.”
539 U.S. at 10 (internal quotation marks omitted). “The same
federal interest . . . supports the established interpretation of [the
National Bank Act] that gives those provisions the requisite
pre-emptive force to provide removal jurisdiction.” Jd. at 11.

In Davila, this Court pointed to “Congress’ purpose [in
ERISA] of creating a comprehensive statute for the regulation of
employee benefit plans.” 124 S. Ct. at 2495. “Therefore, any
state-law cause of action that duplicates, supplements, or
supplants the ERISA civil enforcement remedy conflicts with the
clear congressional intent to make the ERISA remedy exclusive
and is therefore pre-empted.” Jd.

Precisely the same reasoning is applicable in the context of
the LHWCA, which creates acomprehensive federal scheme that
(as discussed further in Part D, infra) would be disrupted by
state-court causes of action. Congress plainly intended the
LHWCA administrative remedy to be exclusive.

Although the statutes at issue in Beneficial National Bank and
Davila contained federal private rights of action, nothing in this
Court’s reasoning indicated that the presence of a federal “civil
enforcement provision that creates a federal cause of action that
could be litigated in either federal or state court” (Hernandez,
2004 WL 1543184, *4) was a sine qua non of the complete
preemption doctrine. This Court should grant review in this case
to make clear that the existence of a civil enforcement section
that confers a private cause of action is merely an indicator of
Congress intent, not an independent requirement of complete
preemption. Indeed, in the case of a workers’ compensation

—

14

statute like the LHWCA, it makes little sense to examine the
federal statute for evidence of “a federal cause of action that
could be litigated in either federal or state court.” Jd. The entire
thrust of an administrative compensation scheme like the
LWHCA is not to create a judicially enforceable damages action
but rather to keep claims out of the courts. Instead of trying to
identify congressional intent, the courts below affirmatively
frustrated it. The LHWCA’s creation of an exclusive federal
remedy in the form of a right to administrative compensation
should have been enough to satisfy the complete preemption
doctrine.

Nor does the complete preemption doctrine require a
“specific jurisdictional grant to the federal courts,” as the district
court in Hernandez erroneously asserted. 2004 WL 1543184, *4.
In fact, in Beneficial Nat’l Bank, this Court instructed that “the
proper inquiry focuses on whether Congress intended the federal
cause of action to be exclusive rather than on whether Congress
intended that the cause of action be removable.” 539 U.S. at 9
n.5.

To the extent that various dated Fifth Circuit decisions say
otherwise, they are contrary to the recent decisions of this Court
and further underscore the need for this Court’s review. For
example, the district court in Hernandez relied extensively on
Aaron v National Union Fire Ins. Co., 876 F.2d 1157 (Sth Cir.
1989), cert. denied, 493 U.S. 1074 (1990), which opined that
“the preemptive force necessary to create removal jurisdiction
should only be held to exist when ‘Congress has clearly
manifested an intent to make causes of action . . . removable to
federal court.’” Jd. at 1163 (quoting Taylor, 481 U.S. at 68
(Brennan, J., concurring)). The concurring opinion cited by
Aaron is plainly not the law after Beneficial Nat'l Bank, 539 US.
at 9n.5, if indeed it ever represented the law. Because the courts
below applied an improper legal test that conflicts with
governing precedent of this Court, certiorari is amply warranted.

15

2. This Court Should Grant Review To Continue To
Clarify The Complete Preemption Doctrine.

This case presents an ideal opportunity to continue the
clarification of the complete preemption doctrine — an effort
already begun in Beneficial National Bank and Davila. Certain
lower courts have perceptively recognized that “[t]h[e] analytical
framework has been changed by” Beneficial Nat'l Bank. See
Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296,
304 (2d Cir. 2004). “Given the Supreme Court’s approach in
[Beneficial Nat'l Bank], we conclude that it means to extend the
complete preemption doctrine to any federal statute that both
preempts state law and substitutes a federal remedy for that law,
thereby creating an exclusive federal cause of action.” Jd. at 305.
See also Richard H. Fallon, Jr., et al., THE FEDERAL COURTS AND
THE FEDERAL SYSTEM 22 (Sth ed. Supp. 2003) (reaching the
same conclusion).

However, other lower courts have expressed confusion over
the complete preemption doctrine, describing it as a “doctrinal
minefield.” Lippitt v. Raymond James Fin. Servs., 340 F.3d
1033, 1041 (9th Cir. 2003). See also Ervast v. Flexible Prods.
Co., 346 F.3d 1007, 1014 (11th Cir. 2003) (complete preemption
doctrine is “often confused”); Sonoco Prods. Co. v. Physicians
Health Plan, Inc., 338 F.3d 366, 371 (4th Cir. 2003) (“the
doctrines of conflict preemption and complete preemption are
important, and they are often confused”); Blab T.V., Inc. v.
Comcast Cable Communs., Inc., 182 F.3d 851, 854 (11th Cir.
1999) (noting “a substantial amount of confusion” regarding
complete preemption doctrine).

“Courts of appeals differ in their willingness to extend the
scope of the complete preemption doctrine.” Strong v.
Telectronics Pacing Sys., 78 F.3d 256, 259 n.1 (6th Cir. 1996).
Compare Spielman v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 332 F.3d 116, 123 n.S (2d Cir. 2003) (holding that
Securities Litigation Uniform Standards Act of 1998 triggers

16

complete preemption); Falkowski v. Imation Corp., 309 F.3d
1123, 1128 (9th Cir. 2002) (same); Darcangelo v. Verizon
Communs., Inc., 292 F.3d 181, 187 (4th Cir. 2002) (ERISA
completely preempts some state-law claims but not others);

Rosciszewski v. Arete Assocs., 1 F.3d 225 (4th Cir. 1993) °

(holding complete preemption applies to § 301 of the Copyright
Act); Trans World Airlines v. Mattox, 897 F.2d 773 (Sth Cir.)
(holding complete preemption applies to § 105(a)(1) of the
Airline Deregulation Act), cert. denied, 498 U.S. 926 (1990);
with Hurt v. Dow Chem. Co., 963 F.2d 1142 (8th Cir. 1992)
(refusing to extend complete preemption to the Federal
Insecticide, Fungicide, and Rodenticide Act); Robinson v.
Michigan Consol. Gas Co., 918 F.2d 579 (6th Cir. 1990)
(refusing to extend complete preemption to suits against trustees
in bankruptcy); Circle Redmont, Inc. v. Mercer Transp. Co., 78
F. Supp. 2d 1316, 1319 (M.D. Fla. 1999) (“Because the Carmack
Amendment’s janguage and history do not manifest an intent to
make state law claims removable as Carmack claims, the
complete preemption doctrine does not apply to give this Court
- jurisdiction.”); Ben & Jerry's Homemade, Inc. v. KLLM, Inc., 58
F. Supp. 2d 315, 318 (D. Vt. 1999) (“Congress has not clearly
manifested an intent to make any action involving carrier liability
removable to federal court.”’).

The complete preemption doctrine presents important and
recurring questions of federal law. This case presents an ideal
vehicle for further clarification of the doctrine.

C. Under the Proper Legal Test, The LHWCA Triggers
Complete Preemption.

1. The Text and Structure of the LHWCA

This Court’s review is necessary to make clear that the
LHWCA creates federal question jurisdiction under the proper
conception of the complete preemption doctrine. The text of the
LHWCA demonstrates that Congress created a comprehensive
statutory scheme and did not intend to permit state-court suits for

17

damages against stevedore employers. Indeed, the LHWCA is,
if anything, broader and more comprehensive than other statutes
to which this Court has applied the complete preemption
doctrine. Section 301 of the LMRA, for example, merely places
jurisdiction of labor disputes in the federal district courts. The
LHWCA, on the other hand, contains an exclusive remedy
section, which provides that the liability of an employer under _
the Act “shall be exclusive and in place of all other liability” to
the employee and “anyone otherwise entitled to recover damages
from such employer at law or in admiralty on account of such
injury or death.” § 905(a). This Court has !ong recognized that
“[t]he liability of an employer under the Act is exclusive.”
Norton v. Warner Co., 321 U.S. 565, 571 (1944). The LHWCA
“provides scheduled compensation (and the exclusive remedy)
for injury to a broad range of land-based maritime workers.”
Chandris, Inc. v. Latsis, 515 U.S. 347, 355 (1995) (emphasis
added); see also South Chicago Coal & Dock Co. v. Bassett, 309
U.S. 251, 256 (1940) (“For those employees who are entitled to
compensation, the remedy under the Act is exclusive.”),
overruled on other grounds by McDermott Int'l, Inc. v.
Wilander, 498 U.S. 337 (1991).

In addition-to Section 5, the structure of the LHWCA itself
confirms that it completely displaces state law. The LHWCA
was established as a uniform national program of workers
compensation benefits for longshore and harbor workers. The
Act utterly controls the sum total of rights and obligations of
insurers,, employers, and employees. The sheer
comprehensiveness of the federal regulatory scheme confirms
congressional intent to preempt state-law tort remedies and to
prevent state courts from adjudicating LHWCA benefits and
coverage issues in potentially inconsistent fashion. Accordingly,
under this Court’s precedents, the LHWCA plainly creates
federal question jurisdiction under the complete preemption -
doctrine.

The self-executing nature of the LHWCA provides further

18

evidence that Congress did not intend for state courts to make
determinations of LHWCA benefits and coverage. Unlike some
workers compensation statutes that require repeated court
enforcement, the LHWCA is almost self-policing. The LHWCA
provides for automatic payment of benefits and imposes
penalties for an employer’s failure to pay benefits. 33 U.S.C.
§§ 914, 938. The Secretary of Labor has promulgated detailed
regulations governing every portion of the Act. See 20 C.F.R.
§§ 701-704 Disputes as to compensation awards are to be
resolved by the Benefits Review Board, with appeals exclusively
to the United States Courts of Appeals. It is difficult to imagine
a more comprehensive scheme of federal regulation than the
LHWCA. The Act leaves no room for state-court involvement.

2. The Legislative History of the LHWCA

The legislative history of the LHWCA confirms that state
courts have no role in the statutory scheme. The legislative
history repeatedly makes plain congressional intent that
longshore workers should be covered by an exclusive workers’
compensation scheme and not be permitted to file state-court tort
suits against stevedore employers.

Initially, judicial decisions extended protection to longshore
workers by allowing them to sue in admiralty. See Atlantic
Transportation Co. v. Imbrovek, 234 U.S. 52 (1914). This
development opened the door for inclusion of longshore workers
under the remedies of the Jones Act, 46 U.S.C. § 688. See
International Stevedoring Co. v. Haverty, 272 U.S. 50 (1926).
As a result, courts excluded longshore workers from state
workers’ compensation systems. Southern Pacific Co. v. Jensen,
244 U.S. 205 (1917).

Congress reacted by making clear that longshore workers
should be limited to administrative compensation remedies and
should not be permitted to pursue tort claims under admiralty
law. Congress twice tried unsuccessfully to bring longshore
workers within state workers’ compensation plans, but the courts

19

held these attempts to be unconstitutional. See Knickerbocker
Ice Co. v. Stewart, 253 U.S. 149 (1920); Washington v. W. C.
Dawson & Co., 264 U.S. 219 (1924). Determined to provide
administrative rather than tort remedies for longshore workers,
Congress enacted the original Longshoremen’s and Harbor
Workers’ Compensation Act. Act of March 4, 1927, Pub.L. No.
69-803, codified at 33 U.S.C. § 901 et seg. Congress provided
that the Act was the sole remedy of the longshore worker against
an employer and abolished the Jones Act recovery granted to the
longshore worker against the employer by Jnternational

Stevedoring Co. v. Haverty, supra. See Swanson v. Marra
Brothers, Inc., 328 U.S. 1 (1946).

At first, the Act allowed a longshore worker to retain an
admiralty action against the vessel (rather than employer). Act
of March 4, 1927, Pub.L. No. 69-803, § 33, 44 Stat. 1440. See
Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) (holding that
longshore workers were entitled to the protection of the judicially
created warranty of “seaworthiness”). Gradually, the
“seaworthiness” doctrine approached strict liability. See H.R.
Rep. No. 92-1441, 92d Cong., 2 Sess. 4-5 (1972); S. Rep. No.
92-1125, 92d Cong., 2d Sess. 8-9 (1972), 1972 U.S. Code Cong.
& Admin. News, p. 4698.

However, the availability of an employee’s admiralty action
against the vessel began to threaten the exclusiveness of the
Act’s remedy against the employer because the vessel could
pursue a third-party claim against the employer alleging that any
injury by the employee was due to the negligence of the
stevedoring company and that the stevedoring company had
therefore breached its implied warranty of workmanlike
performance. In Ryan Stevedoring Co. v. Pan Atlantic S.S.
Corp., 350 U.S. 124 (1956), this Court held that such a triangular
suit did not violate the exclusive liability provision of Section 5,
even though it allowed the longshore worker to recover indirectly
from the employer more than could be recovered directly through
a workers’ compensation claim.

20

In response, in 1972 Congress enacted important reforms to
the LHWCA, in order to reaffirm the exclusiveness nature of the
employee’s administrative remedy against the employer. See
See Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249,
261-62 (1977) (amendments were chiefly for the purpose of
strengthening the exclusivity of LHWCA remedies). Congress
specifically abolished the seaworthiness standard and eliminated
indemnity suits brought against stevedore employers by vessels
under Ryan and Sieracki. Act of October 27, 1972, Pub.L. No.
92-576, § 18, 86 Stat. 1263, amending 33 U.S.C. § 901 et seq.

Congress’ stated purpose was to remove litigation against —
employers from the courts. The House Committee Report, for
example, expressed concern that judicial interpretations of the
Act had led to third-party suits against employers:

The Committee heard testimony that the number of
third-party actions brought under the Sieracki and Ryan
line of decisions has increased substantially in recent
years and that much of the financial resources which
could better be utilized to pay improved compensation
benefits were now being spent to defray litigation costs.

H.R.Rep. No. 92-1441 92d Cong., 2d Sess. 5 (1972), U.S.Code
Cong. & Admin. News, p. 4702.

The Senate Report concurred. See S. Rep. No. 92-1125, 92d
Cong., 2d Sess. 9 (1972) (“The end result is that, despite the
provision in the Act which limits an employer’s liability to the
compensation and medical benefits provided in the Act, a
stevedore-employer is indirectly liable for damages to an injured
longshoreman who utilizes the technique of suing the vessel
under the unseaworthiness doctrine.”). The Senate Report
added:

The social costs of these law suits, the delays, crowding
of court calendars and the need to pay for lawyers’
services have seldom resulted in a real increase in actual

21

benefits for injured workers.

Id. at 4. Congress therefore prohibited longshore workers from
bringing claims against vessels under the warranty of
seaworthiness allowed by Sieracki and relieved stevedoring
companies of liability from Ryan-type indemnity suits brought by
vessels. A vessel’s liability to longshore workers was limited to
cases where its negligence could be proved.

Further, Congress made clear that the negligence remedy
against vessels would not disrupt the uniformity of the statutory
scheme. The House Report explained that “the Committee does
not intend that the negligence remedy authorized in the bill shall
be applied differently in different ports depending on the law of
the State in which the port may be located.” H.R. Rep. No.
92-1441, 92d Cong., 2d Sess. 8 (1972); see also S. Rep. No.
92-1125, 92d Cong., 2d Sess. 12 (1972), U.S. Code Cong. &
Admin. News, p. 4705. Congress thus quite deliberately opted
to create a uniform national system — one that would be
substantially disrupted if individual state courts and juries were
free to determine issues of coverage and to interpret for
themselves the LHWCA’s exclusive remedies provision.

In short, in 1972 Congress went to considerable lengths to
prevent the circumvention of the LHWCA’s exclusive remedy by
means of indirect, third-party suits against stevedore employers.
Congress enacted amendments to override judicial decisions that
created the spectre of unwarranted litigation against employers.
It is simply unthinkable that Congress meant to permit direct
state-law tort lawsuits by employees against stevedore employers
in state court, for such direct actions would blatantly obliterate
the exclusive remedy provision of the LHWCA, in a manner
much more threatening than the seaworthiness and third-party
indemnity suits that Congress barred in 1972.

22

D. The Decision Below Threatens a Substantial
Disruption of the LHWCA Statutory Scheme.

This Court’s review is urgently needed because this case
presents an important question of federal law that should be
settled by this Court. See Rule 10(c). The rule followed in this
case, if left undisturbed, will threaten substantial disruption of
the statutory scheme enacted by Congress in the LHWCA. In
fact, this case demonstrates that the disruption is already
beginning. This case is undoubtedly merely the beginning of the
cascade of state-court tort suits against stevedore employers,
following the Fifth Circuit’s decision opening the floodgates in
Hernandez. State-court judges and potentially state-court juries
will be able to decide questions of LHWCA benefits and
coverage for themselves. Different state courts will arrive at
different results, subject only to review by this Court via its
discretionary certiorari jurisdiction. As this case illustrates,
employees will forum shop and will file suit in state courts
notorious for their anti-defendant biases and large damages
awards. It is no accident that this case was filed in state court in
Orleans Parish, Louisiana. That forum has been repeatedly
identified as one of the top fourteen “judicial hellholes” in the
United States by the American Tort Reform Association.’

Recognition of state-law claims will inject numerous
potentially conflicting standards into an otherwise uniform
national system. For example, in this case, respondent's state-
court lawsuit seeks special, general, and exemplary damages.
These forms of damages are inconsistent with the LHWCA,
which provides compensation according to the employee’s
weekly wages. See 33 U.S.C. §§ 908-09, 910. The LHWCA
“operates like ordinary workmen’s compensation and operates on
a percentage of the earnings of an individual rather than

3 See American Tort Reform Association, BRINGING JUSTICE TO JUDICIAL
HELLHOLES 2 (2002); American Tort Reform Association, BRINGING JUSTICE
TO JUDICIAL HELLHOLES 8 (2003).

23

reimbursing him for his actual injury, and puts a lid on his
recovery.” 118 Cong. Rec. 36383 (1972) (remarks of Rep.
Eckhardt).

Allowing state courts into the administration of the LHWCA
will be utterly foreign to the congressional design of the statute.
Congress created a centralized scheme administered by the
Secretary of Labor through the Director of Office of Workers’
Compensation Programs, with review by the Benefits Review
Board, and appeals to the United States Courts of Appeals. The
clear purpose of this administrative scheme is to provide
uniformity and predictability to employers and employees alike.
The rule followed in this case will destroy the uniformity and
predictability at the heart of the LHWCA.

The exclusivity provision of Section 5 is a vital part of the
LHWCA. “[T]he Act was not a simple remedial statute intended
for the benefit of the workers. Rather, it was designed to strike
a balance between the concerns of the longshoremen and harbor
workers on the one hand, and their employers on the other.
Employers relinquished their defenses to tort actions in exchange
for limited and predictable liability. Employees accept the
limited recovery because they receive prompt relief without the
expense, uncertainty, and delay that tort actions entail.”
Morrison-Knudsen Constr. Co. v. Director, Office of Workers’
Compensation Programs, United States Dep't of Labor, 461 U.S.
624, 635 (1983) (citing H. R. Rep. No. 1767, 69" Cong., 2d
Sess., 19-20 (1927)).

The rule followed in this case will upset the balance struck by
Congress and will render the broad preemptive effect of Section
5 a virtual nullity. An important purpose of the LHWCA is to
“provide employers with definite and lower limits on potential
liability than would have been applicable in common-law tort
actions for damages.” Potomac Electric Power Co. v. Director,
Office of Workers’ Compensation Programs, 449 U.S. 268, 281
(1980). “The use of a schedule of fixed benefits as an exclusive

24

remedy in certain cases is consistent with the employees’ interest
in receiving a prompt and certain recovery for their industrial
injuries as well as with the employers’ interest in having their
contingent liabilities identified as precisely and as early as
possible.” /d. at 282.

Accordingly, the rule followed by the decisioris below will
substantially disrupt the LHWCA’s statutory scheme. This
Court’s review is urgently needed on this important question of
federal law.

E. Section 1447(d) Does Not Preclude Review.

Section 1447(d) of Title 28 provides that “[aJn order
remanding a case to the State court from which it was removed
is not reviewable on appeal or otherwise... .” 28 U.S.C.
§ 1447(d). Neither the Fifth Circuit’s order nor respondent’s
opposition to the petition for writ of mandamus cited § 1447(d).
Nonetheless, even if the Fifth Circuit had expressly relied upon
§ 1447(d), it would not bar review in this case.

The issue of the proper construction of the LHWCA — and
whether it displaces respondent’s state-law tort remedy — is
antecedent to the question of subject-matter jurisdiction. Indeed,
it is separate from the issue of remand: under SSA Gulf’s view,
the LHWCA required that the district court enforce the
exclusivity provisions of the LHWCA by dismissing the
plaintiff's petition for damages, not by remanding it to the state
court. The issue is not simply the jurisdictional question of
whether respondent’s state-law tort claims should proceed in
federal court or in state court; the issue is whether the tort claims
may proceed at all in any court in light of the LHWCA’s
exclusivity provisions mandating their dismissal. See Waco v.
United States Fidelity & Guar. Co., 293 U.S. 140, 143 (1934)
(appellate court had power to review issue which “preceded that
of remand”); Borneman v. United States, 213 F.3d 819, 825 (4th
Cir. 2000), cert. denied, 531 U.S. 1070 (2001) (fact that district
court’s decision cited § 1447(c) is not sufficient to trigger §

25

1447(d) because “[t]he district court’s conclusion that it did not
have subject matter jurisdiction was premised on two antecedent
decisions that are both judicially reviewable and appealable”’);

Aliota v. Graham, 984 F.2d 1350, 1353 (3d Cir.) (review not
barred where a statutory issue under 28 U.S.C. § 2679(d) was the
impetus behind the remand, but was also “separate from and
logically preceded the question of remand”), cert. denied, 510
U.S. 817 (1993); Mitchell v. Carlson, 896 F.2d 128, 132-33 (Sth
Cir. 1990) (finding issue separable and reviewable under City of
Waco); In re Adams, 809 F.2d 1187, 1188-89 (Sth Cir. 1987)
(same regarding the dismissal of bankruptcy appeal); Gallea v.

United States, 779 F.2d 1403, 1404 (9th Cir. 1986) (same

regarding dismissal of United States in tort suit).

Section 1447(d) is not automatically triggered merely because
the district court’s remand order cited § 1447(c) and was
purportedly based on lack of subject-matter jurisdiction. See
Poore v. American-Amicable Life Ins. Co., 218 F.3d 1287, 1291
(11th Cir. 2000) (remand order based on lack of subject-matter
jurisdiction reviewable where “the district court exceeded its
authority under § 1447(c)”); Xiong v. Minnesota, 185 F.3d 424,
427 (8th Cir. 1999) (where district court held that it lacked
subject matter jurisdiction but “case law dictated that jurisdiction_
was proper at the time of removal,” § 1447(d) was no bar to
review: “Because the district court remanded a properly removed
cause on grounds the court lacked authority to consider, the
remand order is reviewable on appeal.”).

Accordingly, § 1447(d) does not preclude review of the
LHWCA question presented by this case. Otherwise, federal
appellate courts would lack authority to protect comprehensive
congressional schemes from interference by state courts. See
Powers v. Southland Corp., 4 F.3d 223, 229-30 (3d Cir. 1993)
(holding that § 1447(d) was no bar to review because, “if there
is independent appellate jurisdiction over an issue under the
governing federal statutes, the fact that the district court may
have remanded the case cannot deprive the court of appeals of

26

39, 6

the jurisdiction granted to it by Congress”; “the essence of the
defendant federal employee’s complaint was that she would be
subjected to suit in state court although she had a statutory right
to be immune from suit”).

The Fourth Circuit recognized the same principle in Shives,
151 F.3d at 167. The Fourth Circuit recognized that the
LHWCA coverage question was an antecedent issue within the
power of the court of appeals to resolve, because leaving the case
in the state courts was precisely the harm that Congress was
trying to avoid in the statutory scheme:

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. 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.

Id. at 167. “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 Products, Inc.
v. Hermansdorfer, 423 U.S. 336 (1976)] for exercise of the writ.”
Id. at 167-68.

Precisely the same reasoning is applicable here. See also
Kircher v. Putnam Funds Trust, 373 F.3d 847, 850 (7th Cir.
2004) (finding Section 1447(d) no bar to appellate review
because the “specific substantive decision in securities litigation

27

must be made by the federal rather than the state judiciary”, and
“if the remand is deemed non-appealable, then a major
substantive issue in the case will escape review”); In re TMI
Litigation Cases Consolidated II, 940 F.2d 832, 844 (3d Cir.
1991), cert. denied, 503 U.S. 906 (1992) (district court remand
order based on constitutionality of statute was not the kind of
remand order meant to be insulated by § 1447(d)); Nasuti v.
Scannell, 906 F.2d 802, 808 (1st Cir. 1990) (“the instant remand
order is reviewable by mandamus, since issuance of a remand
order at this point in the proceedings was entirely outside the
district court’s statutory authority” as expressed in the Westfall
Act).

Hence, § 1447(d) does not provide a reason to deny review.
If anything, any conflict between the Fifth Circuit and the other
courts of appeals regarding the interpretation of § 1447(d) would
proviue a further reason to grant review.

28

CONCLUSION

The petition for writ of certiorari should be granted. In the
alternative, this Court should grant the petition, vacate the

judgment below, and remand for reconsideration in light of
Aetna Health Ins. v. Davila, 124 S. Ct. 2488 (2004).

Respectfully submitted.

RICHARD P. SALLOUM JONATHAN S. MASSEY
FRANKE, RAINEY & SALLOUM Counsel of Record

Post Office Drawer 460 JONATHAN S. MASSEY, P.C.
Gulfport, MS 39502 3920 Northampton St. N.W.
(228) 868-7070 Washington, D.C. 20015

(202) 686-0457

IRA J. ROSENZWEIG

ADAMS, HOEFER, HOLWADEL
& ELDRIDGE, LLC

Pan American Life Center

601 Poydras St., Suite 2490

New Orleans, LA 70130

(504) 581-2606

APPENDICES

Appendix A

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 04-30679

IN RE: SSA GULF TERMINALS, INC., formerly known as
Ryan- Walsh Stevedoring, Inc.

Petitioner,

Petition for Writ of Mandamus to the United States
District Court for
the Eastern District of Louisiana, New Orleans

Before WIENER, BENAVIDES, and STEWART, Circuit
Judges.

PER CURIAM:

IT IS ORDERED that the petition for writ of mandamus is
DENIED.

IT IS FURTHER ORDERED that petitioner’s motion for

leave to file petition for writ of certiorari filed in related case 04-
30679 into this case is DENIED.

/s/

DATED: October 5, 2004

2a

Appendix B

MINUTE ENTRY
J. ENGELHARDT
AUGUST 5, 2004

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA

ROOSEVELT MAGEE CIVIL ACTION
VERSUS No. 04-1471
AMERICAN SUGAR SECTION “N” (5)

REFINING, INC., ET AL.

Before the Court is a Motion to Remand filed by plaintiff
Roosevelt Magee on June 23, 2004. (Rec. Doc. 25).

Having reviewed the parties’ submissions, the record and the
applicable law, IT IS ORDERED that plaintiff's motion to
remand is GRANTED for the reasons set forth in Judge Africk’s
July 8, 2004 Order and Reasons in Hernandez v. Todd Shipyards,
2004 WL 1543184 (E.D. La.). Accordingly, pursuant to 28
U.S.C. § 1447(c), this action is REMANDED to the Civil
District Court for the Parish of Orleans for lack of subject matter
jurisdiction.

IT IS FURTHER ORDERED that plaintiff's motion for costs,
expenses, and sanctions is DENIED. See id.

/s/

Date of Entry: August 6, 2004

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1139%3A1. Public record. Not legal advice.