Opposition Brief — SSA Gulf, Inc. v. Magee

ree U.S |

* i

FEB 2- 2005 |

No. 04-740 OFFICE OF THE CLERK |

IN THE

Supreme Court of the United States

SSA GULF, INC.,

Petitioner,

V.

ROOSEVELT MAGEE,

Respondent.

On Petition jor Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

STEVEN M. JUPITER MICHAEL T. KIRKPATRICK

LEBLANC & WADDELL Counsel of Record

202 St. Charles Avenue PUBLIC CITIZEN LITIGATION

Suite 3204 GROUP

New Orleans, LA 70170 1600 20th St., NW

(504) 523-9900 Washington, DC 20009

(202) 588-1000

February 2005

i

QUESTION PRESENTED

Whether the Longshore and Harbor Workers’

Compensation Act (“LHWCA”), 33 U.S.C. § 901, et seq.,

allows removal on the basis of federal question jurisdiction

because it completely preempts all state-law tort suits by

longshore employees against stevedore employers.

il

TABLE OF CONTENTS

QUESTION PRESENTER? .cccccscvessceseiee Guanes i

TABLE OF AUTHORIEEES «xs occseshecstacncusses iv

~ RESPONDENT’S BRIEF IN OPPOSITION ........... | :

STATEMENT ....4sssssseneeecee esa sen eeaeseeeas 2

REASONS FOR DENYING THE WRIT .............. 3

I. The Petition Should Be Denied Because

28 U.S.C. § 1447(c) Precludes Review. ......... 3

A. The City of Waco Exception Does Not Apply,

and Every Circuit That Has Addressed the Issue

Has Concluded That A Remand for Lack of

Complete Preemption Is Not Reviewable. ........ 4_

B. The Thermtron Exception Does Not Apply. ...... 9

II. Petitioner Fails to Cite a Single Case Holding

That LHWCA Completely Preempts All

State-Law Causes of Action Related to

Workplace Injuries Suffered by Longshore

Employeet, ....4<ccxsseuenteneeenewdecnsaes 11

III. The District Court’s Determination That LHWCA

Does Not Completely Preempt All State-Law

Causes of Action Is Based on a Sound Application

of the Relevant Precedent and Does Not Conflict

with this Court’s Decisions Regarding the

Complete Preemption Doctrine................ 13

iil

IV. The Court Should Not Review this Case Based

on Petitioner’s Unsubstantiated Forecast of a

“Flood” of New State Court Cases. ............ 15

PT cat cteeee Niwa en senna Kaeeee eens es 15

ean

iV

TABLE OF AUTHORITIES

CASES Pages

Aaron v. National Union Fire Insurance Co.,

876 F.2d 1157 (Sth Cir. 1989) ................ 13

Adkins v. Illinois Central Railroad Co.,

pe we te Fe Le | rrr 7

Aliota v. Graham,

SUA FAG 1350 GOOCH, TSGS) oa cca ccewccucencs 8

Baldridge v. Kentucky-Ohio Transport, Inc.,

963 F.2d 1341 (6th Cir. 1993) .......2...c0000- 7

Bender v. Williamsport Area School District,

ee ee sb shoe e esse Measewna 3

Beneficial National Bank v. Anderson,

gk | err ree Tree or 13

Borneman v. United States,

213 F356 S19 CA CH. FOGG) 2 occ cc ccccsanees 8

UR ES FT

Caterpillar Inc., v. Williams,

ee Oe CE os cS ook a sash ea ess 13

City of Waco v. United States Fidelity & Guaranty Co.,

pe er re er eres +

Glasser v. Amalgamated Workers Union Local 88,

806 F.2d 1539 (11th Cir. 1987) .............. 6,9

ee ee

Vv

Gonzalez-Garcia v. Williamson Dickie Manufacturing Co.,

99 F.36 490 (ict Ce, FORD ov eckcde nda ine eee 5,9

Herb's Welding, Inc. v. Gray,

STO UB. GAG CUGSS) oo. a kcncecsddabenesn gnaw 12

Hernandez v. Todd Shipyards,

2004 WL 1543184 (E.D. La. 2004) .. 1, 8, 12, 13, 14

Hoskins v. Bekins Van Lines,

343 F386 FOS OR CR, BR? bie dos ce ve ed sees 13

Jones & Laughlin Steel v. Pfeifer,

4G US. Bee CGS so nes Kea 1k 12

Mitchell v. Carlson,

O96 F.26 125 (5G Ce. TO ois eek k £0 0sa se tans 8

Nutter v. Monongahela Power Co.,

4 F.34 319 (40) Cir, FOSS) 2. cccccanes 5, 8, 9, 10

SSA Gulf, Inc. v. United States District Court for the Eastern

District of Louisiana,

vo Roe fe | eevee errr rere eee 1

Sample v. Johnson,

rape wo Ges, Te ee .) rn 12

Shives v. CSX Transportation,

151 F.3d 164 (4th Cir. 1998) ............ 9,10, 11

Smith v. Texas Children's Hospital,

172 FOS 923 (Stk Cie. 1959) oo. ccc cccaccaxs- 6

vi

Soley v. First National Bank of Commerce,

923 F.2d 406 (Sth Cir. 1991) .............0.. 6,9

Southwest Marine, Inc. v. Gizoni,

S03 US. Bi CRSP E oc sceneéaueseass ae 12,14

Spielman v. Merrill Lynch, :

332 F.3d 116 (2d Cir. 2003) .........0..00 000s 7 |

Sun Ship, Inc. v. Pennsylvania,

447 US. TiS (SSS cic nccvcsuncesceeveecee 12

Thermtron Products, Inc. v. Hermansdorfer,

423 US. SOG CUBE) occ cv ddteunceuaaven 9,10, 11

Things Remembered v. Petrarca,

SIG UD. TOG CIID con vccdncsevccssucbviunns 3

Trans Penn Wax Corp. v. McCandless,

SO F.36 217 GEG. TERED cv iccccds ccs veswesss 7

Vorhees v. Naper Aero Club, Inc.,

272 F356 308 CCR. FOE) cc cc cinivccevenass 9

Ward v. FDIC,

S31 F.26 S64 CO CE. IGE occ cccsccstcncuuns 8

A AL

Whitman v. Raley's Inc.,

886 F.2d 1177 (9th Cir. 1989) ............... 5,9

iii

Vii

STATUTES

Be ese PRED 606 0440s bes chsdecsnnes 1,3, 10, 11

Be Ue bE SUPT 6 web ee senceweennsen 1, 3, 4, 5, 10, 11

Be i TPE 6 656d 6 cs Reha baeasestteneas 8

Longshore and Harbor Workers' Compensation Act, 33

en OF EN esa G isc 664665 beh eae eawes passim

gts tee ft er eerr errr Tr rrT Te rrrerTerry rr 10

De Wis BOE 06 cS sks cecnruseseedeseaanesanes 12

Federal Employers’ Liability Act, 45 U.S.C. § 51, et seg. 10

RESPONDENT’S BRIEF IN OPPOSITION

Petitioner seeks this Court’s review of an unreported

order of the Fifth Circuit summarily denying its petition for a

writ of mandamus to review the district court’s unreported

order remanding this case to state court under 28 U.S.C.

§ 1447(c). The district court below found that it lacked federal

question jurisdiction for the reasons set forth in its earlier

unreported order in Hernandez v. Todd Shipyards, 2004 WL

1543184 (E.D. La. 2004). Petitioner recently sought a writ of

certiorari in Hernandez relying on the same arguments it makes

here, but the Court denied the writ. SSA Gulf, Inc. v. United

States Dist. Court for the Eastern Dist. of Louisiana, 125 S. Ct.

508 (2004). The Court should also decline to review the

unreported, single-page orders at issue here, because the

petition is nothing more than an attempt to get a second chance

at certiorari in Hernandez.'

As an initial matter, the petition should be denied

because 28 U.S.C. § 1447(d) prohibits appellate review of

remand orders based on a lack of subject matter jurisdiction,

and every circuit that has addressed the issue has concluded that

remand for lack of complete preemption is unreviewable.

Even if § 1447(d) did not prohibit appellate review of

the order at issue, the petition should be denied because there

is no circuit split on whether LHWCA completely preempts all

' Petitioner errs by claiming that “[t]he district court entered

an order of remand without deciding whether the LHWCA

completely preempts state-law claims against stevedore

employers ....” Pet. at 4. In fact, the district court adopted

the decision in Hernandez, see Pet. App. 2a, and Hernandez

held that LHWCA does not satisfy the requirements for

complete preemption. Hernandez, 2004 WL 1543184, at ">

2

state-law causes of action related to workplace injuries suffered

by longshore employees. The cases cited by petitioner as

evidence of a conflict do not even address the complete

preemption doctrine, and petitioner does not cite a single case

holding that LHWCA completely preempts all torts arising

from maritime employment. Petitioner implies that the

exclusive remedy provision of LHWCA preempts all other

causes of action, but petitioner cites no authority equating the

exclusive remedy provision with complete preemption. To the

contrary, the district court’s determination that LHWCA does

not completely preempt all state law causes of action such that

it triggers federal question jurisdiction is based on a sound

application of the relevant precedent, and it does not conflict

with this Court’s decisions regarding the complete preemption

doctrine.

Finally, petitioner claims that the denial of certoriari in

Hernandez has caused a “flood of new cases” against stevedore

employers in “notorious anti-defendant venues,” but petitioner

cites only this case as evidence of the “flood.” Pet. at 6. Even

if there were such a flood, it would not disrupt the LHWCA

benefits scheme as forecast by petitioner, because federal

preemption can still be raised as a deferse in state court.

STATEMENT

—

Respondent Roosevelt Magee worked as a

longshoreman for petitioner (and/or its predecessor(s)) and

other stevedoring companies, loading and unloading cargo at

the Port of New Orleans. In connection with his work, Magee

was exposed to asbestos that, he alleges, caused him to contract

asbestos-rzlated diseases, including lung cancer. Magee filed

suit in Louisiana state court against petitioner and others,

seeking damages for his injuries. Magee never pursued a claim

ee ee

3

under LHWCA, and his lawsuit did not invoke LHWCA or any

other federal cause of action. Rather, Magee based his case

entirely on state-law tort theories.

REASONS FOR DENYING THE WRIT

I. The Petition Should Be Denied Because 28 U.S.C.

§ 1447(c) Precludes Review.

“Congress has placed broad restrictions on the power of

federal appeilate courts to review district court orders

remanding removed cases to state court.” Things Remembered

v. Petrarca, 516 U.S. 124, 127 (1995). The district court’s

remand order in this case falls squarely within the prohibition

on appellate review contained in 28 U.S.C. § 1447(d). Asa

consequence, this Court lacks jurisdiction over the merits of the

case. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,

541 (1986) (“[E]very federal appellate court has a special

obligation to satisfy itself not only of its own jurisdiction, but

also that of the lower courts in a cause under review... .”)

(internal quotation marks omitted).

“As long as a district court’s remand is based on a

timely raised defect in removal procedure or on lack of subject-

matter jurisdiction—the grounds for remand recognized by

§ 1447(c)}—a court of appeals lacks jurisdiction to entertain an

appeal of the remand order under § 1447(d).” Things

Remembered, 516 U.S. at 496. Here, the district court

explicitly remanded the case “pursuant to 28 U.S.C. § 1447(c)

. . . for lack of subject matter jurisdiction.” Pet. App. 2a.

“Section 1447(d) thus compels the conclusion that the District

Court’s order is not ‘reviewable on appeal or otherwise.’”

Things Remembered, 516 U.S. at 128 (quoting Gravitt v.

Southwestern Bell Tel. Co., 430 U.S. 723 (1977) (per curiam)).

4

A. The City of Waco Exception Does Not Apply,

and Every Circuit That Has Addressed the

Issue Has Concluded That A Remand for

Lack of Complete Preemption Is Not

Reviewable. |

Petitioner attempts to avoid § 1447(d) by arguing that

the district court’s ruling concerning complete preemption is an

independently reviewable “antecedent,” separate from the

question of subject matter jurisdiction. Pet. at 24-25. In

support of this theory, petitioner relies on a 1934 decision of

this Court, City of Waco v. United States Fidelity & Guar. Co.,

293 U.S. 140 (1934). There, the district court had “entered a

single decree embodying three separate orders.” Jd. at 142.

One of the orders granted the Fidelity Company’s motion to

dismiss a cross-complaint by the City of Waco; another order

held that the court lacked jurisdiction following the dismissal

(because there was no diversity among the remaining parties)

and remanded the case to state court. Jd. The City appealed,

“not from the order of remand, but from [the order] dismissing

its action against the Fidelity Company.” Jd. The Court

acknowledged that “no appeal lies from the order of remand,”

but held that the dismissal order was appealable because “in

logic and fact the decree of dismissal preceded that of remand

and was made by the District Court while it had control of the

cause.” Jd. at 143.

Petitioner cites a handful of cases in which courts have

exercised appellate jurisdiction under City of Waco.

Conspicuously absent, however, is any case in which complete

preemption was asserted as a basis for removal. In fact, every

court of appeals to have addressed the issue has concluded that

a remand based on a lack of complete preemption is insulated

from review under § 1447(d):

>

Fourth Circuit: In Nutter v. Monongahela Power Co.,

4 F.3d 319, 321-22 (4th Cir. 1993), the Fourth Circuit

rejected the suggestion that City of Waco permitted it to

exercise appellate jurisdiction over a district court’s

conclusion that removed state law claims were not

completely preempted under the LMRA or ERISA.

“The district court’s determination that neither ERISA

nor the LMRA preempted [plaintiff's] state law claim

is inseverable from its determination that it lacked

jurisdiction. Because complete preemption was the

basis for the district court’s jurisdiction, the court’s

findings regarding preemption and jurisdiction are

indistinguishable. The preemption findings were

merely ‘subsidiary legal step[s] on the way to its

determination that the case was not properly removed.’”

Id. at 321 (quoting Ward v. FDIC, 881 F.2d 564, 566

(8th Cir. 1989)).

Ninth Circuit: In Whitman v. Raley’s Inc., 886 F.2d

1177 (9th Cir. 1989), the Ninth Circuit explained that

“[a] remand based on lack of ‘complete preemption’ is

a remand required by 28 U.S.C. § 1447(c)” and is

therefore insulated by § 1447(d) from appellate review.

Id. at 1181. “If the federal court rules that the claim is

not ‘completely preempted,” the court explained, “then

the federal court has no jurisdiction to rule on a

substantive defense and remand is required. The

substantive defense of preemption is then a matter for

the state court to determine as a part of the trial

proceedings.” Jd.

First Circuit: In Gonzalez-Garcia v. Williamson Dickie

Mfg. Co., 99 F.3d 490, 492 (1st Cir. 1996), the First

Circuit “interpret[ed] the district court’s order of

6

remand [based on a lack of preemption] as a

determination that it lacked subject matter jurisdiction

over the removed case because no federal claim had

been presented to invoke the court’s federal question

jurisdiction.” The district court’s rejection of the

preemption argument “was a link in the chain of

reasoning. But the preemption ruling, rather than being

apart from the question of subject matter jurisdiction, is

necessary to determine whether such jurisdiction

existed.” Jd. (internal citations and quotation marks

omitted).

Fifth Circuit: In Smith v. Texas Children’s Hosp., 172

F.3d 923, 926 (Sth Cir. 1999), the Fifth Circuit held that

“the district court's conclusion regarding the lack of

complete preemption is insulated from appellate review

by § 1447(d).” The Fifth Circuit has also rejected an

argument that preemption-related remands are

reviewable based on City of Waco. See Soley v. First

Nat’l Bank of Commerce, 923 F.2d 406 (Sth Cir. 1991)

(“In [City of Waco}, the ‘separable portion’ of the order

denied a right not subject to review by the state

court. . . . [T]he state court would not reconsider the

dismissal of the cross-action . . . . In this case, by

contrast, because we interpret the remand order as

jurisdictional, the state court will have an opportunity to

consider the appellants’ preemption defense and the

district court’s order will have no preclusive effect.

Because we conclude that § 1447(d) bars us from

reviewing the remand order, we do not reach the

appellants’ arguments on the preemption issue.”).

Eleventh Circuit: In Glasser v. Amalgamated Workers

Union Local 88, 806 F.2d 1539 (11th Cir. 1987), the

eng ren in

7

Eleventh Circuit, in a brief per curiam opinion, held

that a district court’s remand based on the lack of

ERISA preemption was unreviewable. The preemption

question was “related to the question of jurisdiction; the

remand order did not affect the substantive rights of the

parties. In particular, the [district] court did not reach

the merits of the preemption argument. The state court

may in fact rule that ERISA does preempt appellees’

state law claims and that appellees must proceed, as

appellants contend, under... ERISA.” Jd. at 1540.

The law of other circuits is fully consistent with these

decisions. See Spielman v. Merrill Lynch, 332 F.3d 116, 131

(2d Cir. 2003) (“{I]f the district court determines that the

criteria for complete preemption have not been met, then the

plaintiffs state law suit does not arise under federal law, the

district court lacks federal question jurisdiction, and the case

must be remanded to the state court for lack of jurisdiction. The

defendant cannot appeal because of 28 U.S.C. § 1447(d).”)

(citations omitted); Baldridge v. Kentucky-Ohio Transp., Inc.,

983 F.2d 1341 (6th Cir. 1993) (adopting analysis of Ninth, Fifth

and Eleventh Circuits); Trans Penn Wax Corp. v. McCandless,

50 F.3d 217, 225 n.7 (3d Cir. 1995) (“[W]ere the district court

considering preemption as a basis to assert jurisdiction in the

first instance, the bar of § 1447(d) may well apply and it is not

clear that the Waco exception could be used. This would

present a significant jurisdictional problem given the bar to

review in § 1447(d).”); cf Adkins v. Illinois Cent. RR. Co., 326

F.3d 828, 833 (7th Cir. 2003) (“[A] district court's conclusion

that an initial acceptance of a claim of ‘complete preemption’

was erroneous[] reveal[s] that the federal court never had

jurisdiction of the case to begin with.”).

8

By contrast, the decisions applying City of Waco cited

by petitioner all involve situations, as in City of Waco itself, in

which an order of dismissal preceded and was wholly distinct

from the order remanding the case. See Nutter, 4 F.3d at 321

(“Most decisions applying City of Waco have involved orders

dismissing some party or claim.”). This is because “(t]he

purpose of the City of Waco doctrine is to prevent one of the

parties from being prejudiced by a claim of preclusion made

after the remand to the state courts.” Ward v. FDIC, 881 F.2d

564, 566 (8th Cir. 1989).?

The ruling in this case, however—that LHWCA did not

completely preempt the state law claims—is not the final word

on the issue of preemption: The district court itself concluded

that petitioner was free to raise a substantive preemption

defense based on LHWCA’s exclusive remedy provision in

state court, see Hernandez, 2004 WL 1543184, at *5, and many

other decisions are in accord. See, e.g., Whitman, 886 F.2d at

? Three of the decisions cited in the petition are based on

unique procedural circumstances arising under the Westfall

Act, 28 U.S.C. § 2679(d)(2), which provides that the Attorney

General’s certification that a federal employee sued in a state

court tort suit was acting within the scope of the employee’s

office “shall conclusively establish the scope of office or

employment for purposes of removal.” See Borneman v. United

States, 213 F.3d 819 (4th Cir. 2000); Aliota v. Graham, 984

F.2d 1350 (3d Cir. 1993); Mitchell v. Carlson, 896 F.2d 128

(Sth Cir. 1990). In these cases, “[t]he district court dismissed

the United States as a defendant and resubstituted [the

individual officer defendant] while it still had control of the

case” and “[o]nly then did the court remand the case to state

court.” Mitchell, 896 F.2d at 133.

9

1181 (“The federal court’s ruling on ‘complete preemption’ has

no preclusive effect on the state court’s consideration of the

substantive preemption defense. This, of course, is particularly

appropriate because the jurisdictional decision of lack of

complete preemption is insulated by section 1447(d) from

appellate review.”); Soley, 923 F.2d at 410 (“[BiJecause we

interpret the remand order as jurisdictional, the state court will

have an opportunity to consider the appellants’ preemption

defense and the district court's order will have ne preclusive

effect.”); Vorhees v. Naper Aero Club, Inc., 272 F.3d 398, 405

(7th Cir. 2001) (“[U]pon remand to state court, that court will

be free to consider the question whether the Federal Aviation

Act preempts the claim Vorhees is attempting to present

here—a claim on which our jurisdictional ruling rejecting

‘complete preemption’ or occupation of the field has no

bearing.”); Gonzalez-Garcia, 99 F.3d at 492; Nutter, 4 F.3d at

321; Glasser, 806 F.2d at 1540. Thus, petitioner’s “antecedent

order” theory based on City of Waco has no support, and

petitioner’s suggestion that there is a “conflict between the

Fifth Circuit and the other courts of appeals regarding the

interpretation of § 1447(d),” Pet. at 27, is simply wrong.

B. The Thermtron Exception Does Not Apply.

Petitioner also places heavy reliance on the Fourth

Circuit’s decision in Shives v. CSX Transportation, 151 F.3d

164, 167 (4th Cir. 1998), which purported to apply this Court’s

decision in Thermtron Products, Inc. v. Hermansdorfer, 423

U.S. 336 (1976). See Pet. at 26. Neither Shives nor Thermtron,

however, supports appellate jurisdiction in this case.

First, Shives did not involve a remand based on a lack

of complete preemption by LHWCA, and the Fourth Circuit

10

itself has concluded that a remand based on a lack of complete

preemption is unreviewable. See Nutter, 4 F.3d at 321-22.°

Second, regardless of whether the Thermtron exception

was properly applied in Shives, it does not apply here.

Thermtron held that § 1447(d) did not preclude appellate

review of orders by a district court judge who had remanded

cases to the state court solely because his docket was too

crowded. The Court explained that the § 1447(d) ban on

review “on appeal or otherwise” must be read in pari materia

with 28 U.S.C. § 1447(c), so that “only remand orders issued

under § 1447(c) and invoking the grounds specified therein” are

immune from review. 423 U.S. at 346. The Fourth Circuit in

Shives construed the district court’s remand as an order based

on FELA’s non-removal provision rather than a remand based

> The plaintiff in Shives sought relief for his workplace

injury by initiating two different proceedings under two

mutually exclusive federal statutes. He brought a claim in

Maryland state court under the Federal Employers’ Liability

Act (“FELA”), 45 U.S.C. § 51, et seg., and he filed an

administrative claim with the Department of Labor under

LHWCA. Shives, 151 F.3d at 166. The determination of which

claim would proceed turned on whether, at the time of his

work-related injury, the plaintiff was engaged in “maritime

employment” within the meaning of LHWCA, 33 U.S.C.

§ 902(3). Following removal, the district court found that the

plaintiff was not covered by LHWCA and remanded the case to

allow the FELA claim to proceed in state court. The Fourth

Circuit reversed, holding that the plaintiff was engaged in

maritime employment, and therefore his FELA case should be

dismissed and his LHWCA claim should proceed through the

administrative process. Shives, 151 F.3d at 171.

Ee a meer ee

11

on § 1447(c): “In this case, the district court could not rule, in

a strict sense, under § 1447(c) that it was without jurisdiction

because federal courts have concurrent jurisdiction over FELA

claims. See 45 U.S.C. 56. Rather, it ruled properly that an

FELA claim could not be removed from a state court to a

federal court. See 28 U.S.C. 1445(a).” Shives, 151 F.3d at 167

(emphasis in original).

In sum, because it is undisputed that the district court’s

order in this case relied exclusively on § 1447(c), Shives is

inapposite and the remand is not reviewable. Thermtron, 423

U.S. at 343 (“Ifa trial judge purports to remand a case on the

ground that it was removed [for the reasons specified in section

1447(c)] his order is not subject to challenge in the court of

appeals by appeal, by mandamus, or otherwise.”). For these

reasons, the Fifth Circuit did not have appellate jurisdiction,

and review should be denied on that basis alone.

Il. Petitioner Fails to Cite a Single Case Holding That

LHWCA Completely Preempts All State-Law

Causes of Action Related to Workplace Injuries

Suffered by Longshore Employees.

Exen if § 1447(d) did not prohibit appellate review of

the remand order at issue, the petition should be denied because

there is no circuit split on the question presented. Petitioner

seeks review because it is dissatisfied with the district court’s

finding that LHWCA does not completely preempt state law

tort suits by longshore employees against stevedore employers.

But try as it might, petitioner is unable to cite a single case

finding that LHWCA satisfies the complete preemption

doctrine. Instead, petitioner claims that there is a “conflict” and

“tension” between the decision below and rulings in other

circuits, but the cases petitioner cites present no circuit split

12

regarding complete preemption. See Pet. at 9 (citing nine case,

none of which mentions complete preemption).

Petitioner errs by conflating the exclusive remedy

provision of LHWCA with complete preemption doctrine. Jd.

The decision below would conflict with the cases cited by

petitioner only if the court had held that LHWCA is not the

exclusive remedy for certain workplace injury claims brought

by longshore employees against their employers, but because

that issue is not germane to the complete preemption analysis,

the court below had no reason to reach it. Thus, it is premature

for petitioner to seek certiorari on the issue of whether § 905(a)

bars respondent from any state tort recovery from petitioner.

That question is fact-intensive, and can be resolved only after

fact development in the trial court. See, e.g., Sun Ship, Inc. v.

Pennsylvania, 447 U.S. 715 (1980) (LHWCA does not bar all

state remedies against the employer); Jones & Laughlin Steel

v. Pfeifer, 462 U.S. 523, 530 (1983) (§ 905(a) does not bar

negligence suits against a stevedore employer where the

employer is also the vessel owner); Herb’s Welding, Inc. v.

Gray, 470 U.S. 414, 426 (1985) (“[TJhere will always be a

boundary to coverage, and there will always be people who

cross it during their employment.”); Southwest Marine, Inc. v.

Gizoni, 502 U.S. 81, 87 (1991) (LHWCA does not provide the

exclusive remedy for harbor workers who are also members of

a vessel’s crew); Sample v. Johnson, 771 F.2d 1335, 1346 (9th

Cir. 1985) (noting that exclusive remedy provision of § 905(a)

does not apply to claims of intentional injury). Indeed, the

decision of the district court in Hernandez, adopted by

reference by the district court below, concludes that although

LHWCA does not satisfy the complete preemption doctrine, the

exclusive remedy provision of LHWCA may provide a

preemption defense that can be raised in state court.

13

Hernandez, 2004 WL 1543184, at *5, citing Garcia v. Amfels,

Inc., 254 F.3d 585, 588 (Sth Cir. 2001).

IfI. The District Court’s Determination That LHWCA

Does Not Completely Preempt All State-Law Causes

of Action Is Based on a Sound Application of the

Relevant Precedent and Does Not Conflict with this

Court’s Decisions Regarding the Complete

Preemption Doctrine.

Contrary to petitioner’s assertion, the court below did

not apply “an improper legal test that conflicts with governing

precedent of this Court... .” Pet. at 14. Rather, the court

below found that LHWCA did not, in fact, satisfy the governing

test for complete preemption, but that petitioner could

nevertheless raise preemption as a federal defense in the state

court. See Caterpillar Inc., v. Williams, 482 U.S. 386, 393

(1987) (“[I]t is now settled law that a case may not be removed

to federal court on the basis of a federal defense, including the

defense of pre-emption.”) (emphasis in original, citing

Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust

for S. Cal., 463 U.S. 1, 12 (1983)). Petitioner claims that the

district court decision, by relying on Aaron v. National Union

Fire Ins. Co., 876 F.2d 1157, 1164-65 (Sth Cir. 1989), conflicts

with this Court’s decision in Beneficial National Bank v.

Anderson, 539 U.S. 1, 9 n.5 (2003). Pet. at 14. Petitioner is

wrong. The portion of Aaron quoted by petitioner was

expressly not followed by the district court below because, in

Hoskins v. Bekins Van Lines, 343 F.3d 769, 775-76 (Sth Cir.

2003), the Fifth Circuit modified its complete preemption

analysis to conform with Beneficial. The district court decision

explains this modification in detail and expressly does not

follow the part of Aaron “arguably undermined by Hoskins.”

Hernandez, 2004 WL 1543184, at *4. However, petitioner

-

ignores this discussion and thus erroneously claims that the

court below applied an obsolete legal standard.

Petitioner next urges this Court to grant review “to

continue the clarification of the complete preemption doctrine.”

Pet. at 15. But the discussion that follows reveals that

petitioner seeks not clarification, but rather expansion of the

doctrine. Under the expansion urged by petitioner, any federal

statute with an exclusive remedy provision that might form the

basis for a federal preemption defense in state court would

become a source of complete preemption. The sweeping

change urged by petitioner would make complete preemption

the rule rather than the exception.

Indeed, in arguing that the “sheer comprehensiveness of

the federal regulatory scheme . . . creates federal question

jurisdiction under the complete preemption doctrine,” Pet. at

17, petitioner urges a position already rejected by this Court in

Southwest Marine, a decision petitioner fails to cite. In

Southwest Marine, this Court found that “[t]he administrative

proceedings outlined under the LHWCA in no way approach

the NLRA’s complex and interrelated federal scheme of law,

remedy and administration requiring pre-emption in those cases

[and] [nJeither is it essential to the administration of the

LHWCA that resolution of the question of coverage be left in

the first instance to agency proceedings in the Department of

Labor.” 502 U.S. at 91 (internal quotation marks and citations

omitted).

15

IV. The Court Should Not Review this Case Based on

Petitioner’s Unsubstantiated Forecast of a “Flood”

of New State Court Cases.

Finally, petitioner predicts the decision below will cause

a flood of new cases that will disrupt the LHWCA benefits

scheme by requiring defendant employers to raise LHWCA as

a preemption defense to state court tort suits. Pet. at 6. But

petitioner cites only this case and Hernandez as evidence of the

flood, and petitioner’s warning of a wave of conflicting state

court decisions on whether such suits can be maintained is

undermined by petitioner’s assertions regarding the strength of

LHWCA’s exclusive remedy provision.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully Submitted,

MICHAEL T. KIRKPATRICK

Counsel of Record

PUBLIC CITIZEN LITIGATION GROUP

1600 20th St., NW

Washington, DC 20009

(202) 588-1000

STEVEN M. JUPITER

LEBLANC & WADDELL

202 St. Charles Avenue, Suite 3204

New Orleans, LA 70170

(504) 523-9900

February 2005