Opposition Brief — Prevetire v. Weyher/Livsey Constructors, Inc.

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

FEEL ED

- 1792

No. 94-1267

bois <'*

Jn the Supreme Court of the Cited States

OCTOBER TERM, 1994

THOMAS C. PREVETIRE. PETITIONER

WEYHER/LIVSEY CONSTRUCTORS. INC... ET AL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

DREW'S. DAYS, II]

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

THOMAS S. WILLIAMSON, JR.

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

NATHANIEL I. SPILLER

Counsel for Appellate Litigation

EDWARD D. SIEGER

Attorney

Department of Labor

Washington, D.C. 20210

BEST AVAILABLE‘COPY ™

QUESTION PRESENTED

Whether a pipefitter who works on the premises of

a naval shipyard in the construction of a power plant

intended to provide steam and electricity for

shipbuilding and ship repair work at the shipyard is

“engaged in maritime employment,” and is therefore

a covered employee under Section 2(3) of the Long-

shore and Harbor Workers’ Compensation Act, 33

U.S.C. 902(3).

TABLE OF CONTENTS

Page

ERED REALE ee AMR CE SATE RTT RD 1

AER RE SEER ls gtoe e 1

a ERE EEESRL ERE Lape ne ts ee 2

a ER PPE a ee Pa Ae eae 6

sch a ae, RRO LORE TERT 14

TABLE OF AUTHORITIES

Cases:

Brown & Root, Inc. v. Joyner, 607 F.2d 1087 (4th Cir.

1979), cert. denied, 446 U.S. 981 (1980) ....................... 13, 14

Chesapeake & Ohio Railway Co. v. Schwalb, 493 U.S.

NIE Saltllclenh cad didi sbnt blnsicksnsnsounteasiaseiciannaaaies 3, 5, 7, 8, 10, 12

Coloma v. Director, OWCP, 897 F.2d 394 (9th Cir.),

cert. denied, 498 U.S. 818 (1990) coccccccccccccccccccoccccccc.. 12

Director, OWCP vy. Perini N. River Assocs., 459 U.S.

Ef EEE a ROC RO OO Cae 13

Dravo Corp. v. Banks, 567 F.2d 593 (3d Cir. 1977)....... 11

Dravo Corp. v. Maxin, 545 F.2d 374 (3d Cir. 1976),

cert. denied, 433 U.S. 908 (1977)...........cccccccscssessesesesees 9, 11

Graziano v. General Dynamics Corp., 663 F.2d 340

Ee MN tes saddirasitoalenicsbucsiariteniaeesdacveccousasovisiseininecen 4, 11

Herb’s Welding, Inc. v. Gray, 470 U.S. 414

STINE tuicddincaUidcenhccbenstudaniteevesiubdndacnsscciécssissaocsacoadocs 5, 7, 8, 10

Hullinghorst Industries v. Carroll, 650 F.2d 750 (5th

Cir. 1981), cert. denied, 454 U.S. 1163 (1982)............... 12

Munguia v. Chevron U.S.A. Inc., 999 F.2d 808 (5th Cir.

1993), cert. denied, 114 S. Ct. 1839 (1994) .................... 12

Northeast Marine Ferminal Co. v. Caputo, 482 U.S. 249

NS As EASE cna SET ST eae 2.79

P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979).......00....-.. 7, 8,9

Pittman Mechanical Contractors, Inc. v. Director,

OWCP, 35 F.3d 122 (4th Cir. 1994)........cccccccccccccccceceeesee 13

(IIT)

Cases—Continued: Page

Price v. Norfolk & Western Railway, 618 F.2d 1059

CE SPL MIE satininscsviaseencaciuieanie te ad eedeiadites 13

Wisniewski v. United States, 353 U.S. 901 (1957).......... 12

Statutes and regulations:

Longshore and Harbor Workers’ Compensation Act,

Be RIAA WON OE BOGE a soccnneinersnesscucnsiensivateessecesesccias...... 2

SEBS, DUGD ccc scscneccsecscocessccceseesiavseoss 2, 7, 8, 9, 10, 12

33 U.S.C. 902(3)(A)-(H) ....c.ccccccescsssssesceceeseeseessceese.. 2

Fs I sector rind Adessimasseciiccte ke COL ee 2

Bs MIE sairscienadevsiresuassuicicieecscecaneh sce. 3

DS UD, GOBIO MIO) a. caevsiccsnncesinseesscteceseoececocccocdecce.. 3

eS Rats OE geihevccinesvnmienincasbnadeteldivian tees 3

Va. Code Ann. (Michie 1991):

sibbeyev Ste. cos a OR So ERT AT 3

PEE sei sth seriesikacietctdteciunicantnceacc ste ees 3

20 C.F.R.:

SHORE PUR MUSEO EDD oc ccececccnantveasingesiasosdecceocccc.. 2

Section 802.410(b) ............cccccccssceccssssssescessecseeseece... 4

Miscellaneous:

Employment Standards Admin., U.S. Dep’t of Labor,

LHWCA Program Memorandum No. 58: Guidelines

for Determination of Coverage of Claims Under

Amended Longshoremen’s Act cus Sy | re 9, 13

_ National Research Council, Personnel Requirements for

an Advanced Shipyard Technology (1980) ........ccccccccceee. 9

Jn the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-1267

THOMAS C. PREVETIRE, PETITIONER

WEYHER/LIVSEY CONSTRUCTORS, INC. ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

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

13a) is reported at 27 F.3d 985. The decisions and

orders of the Benefits Review Board (Pet. App. 16a-

23a) and the administrative law judge (Pet. App. 24a-

33a) are unreported.

JURISDICTION

The court of appeals entered its judgment on June

29, 1994. The court denied petitions for rehearing

filed by petitioner and by the Director of the Office of

Workers’ Compensation Programs (OWCP) on

October 26, 1994. Pet. App. 14a-15a. The petition for a

writ of certiorari was filed on January 24, 1995. The

(1)

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. The Longshore and Harbor Workers’ Com-

pensation Act (LHWCA or Act), 33 U.S.C. 901 ef seq.,

provides compensation to employees who are injured

while working on a maritime “situs,” i.é., ON navi-

gable waters and certain adjoining land areas, 33

U.S.C. 903(a), and who satisfy a “status” requirement

of being an “employee,” i.e., a person engaged in

“maritime employment.” 33 U.S.C. 902(3); see

Northeast Marine Terminal Co. v. Caputo, 432 U.S.

249, 265 (1977). The LHWCA does not define

“maritime employment,” but it states that an

“employee” “includ[es] any longshoreman or other

person engaged in longshoring operations, and any

harbor-worker including a ship repairman, ship-

builder, and ship-breaker.” 33 U.S.C. 902(3). Workers

engaged in certain occupations are specifically

excluded from coverage under the Act, if they are

covered under a state workers’ compensation law. 33

U.S.C. 902(3)(A)-(H); see 20 C.F.R. 701.301(a)(12).

2. Petitioner is a pipefitter who worked for

respondent Weyher/Livsey Constructors, Inc., the

general contractor on a project to build a power plant

to replace an old plant at the Norfolk Naval Shipyard.

Pet. App. 2a, 17a, 26a. Most of the steam and

electrical power from the new plant was to be used for

shipbuilding, ship repair operations, and adminis-

trative offices. Jd. at 2a, 17a, 28a.

On October 16, 1986, in the course of his employ-

ment, petitioner injured the ring finger of his left

hand. Pet. App. 17a-18a, 26a. He received benefits

under a state workers’ compensation law, and sought

additional compensation under the LHWCA.'

Weyher/Livsey and its insurer, respondent Wausau

Insurance Company, conceded that Prevetire had

suffered a work-related injury, but denied that he was

covered by the LHWCA. Id. at 18a, 26a.

3. An administrative law judge (ALJ) held that the

shipyard where petitioner was injured was a

maritime “situs,” but denied benefits on the ground

that petitioner was not engaged in “maritime

employment.” Pet. App. 29a-33a. The ALJ reasoned

that, as petitioner was a land-based worker, his

employment had to have a “realistically significant

relationship” to “traditional maritime activity” to

qualify for coverage under the Act. Jd. at 32a.

Petitioner failed that test, the ALJ concluded,

because there was “nothing uniquely maritime”

about his pipefitting work. bid.

4. The Benefits Review Board reversed. Pet. App.

16a-23a. The Board concluded, in light of this Court’s

decision in Chesapeake & Ohio Railway Co. v.

Schwalb, 493 U.S. 40 (1989), that the proper status

inquiry is not whether petitioner was engaged ina

“traditional maritime activity,” nor whether

petitioner’s employment was “inherently maritime,”

' Petitioner suffered a “schedule” injury that would have

entitled him to 25 weeks of LHWCA compensation at the rate

of two thirds of his average weekly wage, proportionately

reduced to reflect the 22% impairment to his ring finger. See

33 U.S.C. 908(c)(10) and (19); Pet. App. 26a. That recovery

would have been reduced by the amount of his state workers’

compensation award, 33 U.S.C. 903(e); Pet. App. 26a, which

was less than the LHWCA award. See Va. Code Ann. § 65.2-

* 503B.4 and D (Michie 1991) (20 weeks of compensation at two

thirds of employee’s average weekly wage, proportionately

reduced to reflect degree of impairment).

but whether petitioner’s employment was “essential”

to the shipbuilding or ship repair operation. Pet. App.

19a-20a. Applying that test, the Board held that

petitioner was covered under the Act because “(t]he

construction of a power plant at the shipyard is

essential to the shipyard’s operation, for without

electricity and steam no shipbuilding and repair work

can be performed.” Jd. at 20a-2la. The Board also

viewed petitioner’s work as “just as essential” to the

shipbuilding and ship repair process as covered

“maintenance and repair of the machinery used in the

shipbuilding process.” Jd. at 2la (citing, inter alia,

Graziano v. General Dynamics Corp., 663 F.2d 340,

342-343 (1st Cir. 1981)).?

5. The court of appeals reversed, concluding that

petitioner was not covered by the Act because he was

not engaged in maritime employment. Pet. App. la-

lla. The court recognized that the Director of the

Office of Workers’ Compensation Programs (OWCP),

who represented the Department of Labor in the

court of appeals, see 20 C.F.R. 802.410(b), and who

agreed with the Board’s decision that petitioner was

covered, was entitled to deference in her inter-

pretation of “maritime employment.” Pet. App. 4a.

The court nevertheless rejected the Director’s

interpretation, believing it to be “both unreasonable

and contrary to Congress’ clear intent, as expressed

in the Act’s text and structure.” Jd. at 5a. The court

acknowledged, however, that the text of the Act sets

* Administrative Appeals Judge Dolder dissented in part,

stating that, although the ALJ had applied the wrong test, the

case should be remanded for the ALJ to apply the proper test

to the facts of this case. Pet. App. 22a-23a.

forth “no general definition of ‘maritime employ-

ment.’ ” Id. at 7a.

To support its narrower construction of the Act’s

coverage, the court of appeals stressed that this

Court had “repeatedly held” that land-based activity

will be considered maritime employment covered

under the Act “only if it is an integral or essential

part of loading or unloading a vessel.” Pet. App. 7a

(quoting Schwalb, 493 U.S. at 45-46) (emphasis

omitted). The court of appeals believed that Schwalb,

which had found coverage for persons engaged in the

repair and maintenance of machinery used to load and

unload ships (see 493 U.S. at 47), could not be

extended to the case of a pipefitter “employed in only

the construction of a power plant (as distinguished

from its later operation or maintenance) * * *

simply because the power plant being built would

eventually provide steam and electricitw, to

shipbuilding and ship-repair operations.” Pet. App. 8a

(emphasis omitted). The court also expressed the

view that petitioner’s claim to coverage was even

weaker than the claim of the offshore fixed-platform

construction worker rejected in Herb’s Welding, Inc.

v. Gray, 470 U.S. 414 (1985), because petitioner’s

duties were “far removed from traditional LHWCA

activities, such as longshoring,” and did not involve

“an inherently maritime task.” Pet. App. 9a.

Judge Sprouse dissented. Pet. App. 1la-13a. He

concluded that petitioner’s construction work was

covered under the Act because it was as essential to

shipbuilding and ship repair as the maintenance and

repair work by the covered claimant in Schwalb had

been to loading and unloading cargo. Jd. at 11a-12a.

He also distinguished Herb’s Welding because none

of the offshore oil activities in that case had any

relation “to one of the Act’s primary purposes—the

protection of shipyard workers whose activities affect

the loading or unloading of ships” (id. at 12a),

whereas, in this case, petitioner’s work of furnishing

electrical power was closely related to maritime work

in the shipyard. /bid. Judge Sprouse criticized the

majority for not deferring to the Director, who had

maintained since 1977 that the kind of construction

work involved in this case is covered “maritime

employment.” bid.

The court of appeals subsequently denied rehearing

en banc, with four judges dissenting. Pet. App. 14a-

15a.

ARGUMENT

The court of appeals misunderstood this Court’s

decisions to hold that land-based employees cannot be

engaged in “maritime employment” under the

LHWCA unless their work is essential to only one

kind of maritime employment, the loading and

unloading of vessels. Based largely on that error, the

court then denied coverage to a worker who, under

the Director’s interpretation of the Act, should have

been granted coverage because he performed work

that was essential to other kinds of maritime

employment—namely, shipbuilding and ship repair.

Although the court of appeals’ decision is in some

tension with decisions of this Court, it is not directly

contrary to any specific holding. Moreover, although

there is a divergence of views in the courts of appeals

on the scope of covered “maritime employment” under

the Act, no other court of appeals has considered a

case involving a similar set of facts, which the court

of appeals found crucial in this case. The court below

distinguished factual circumstances similar to those

in cases that have arisen in other circuits, in which

the employees were held to be covered under the Act.

For those reasons, and because the impact of the

court’s decision is uncertain, review of the court of

appeals’ “loading and unloading” test is not warranted

at this time.

1. As discussed above, a land-based claimant like

petitioner who sustains a work-related injury on a

maritime “situs” is covered by the LHWCA only if he

or she also has the “status” of a “person engaged in

maritime employment,” which the Act defines as

“including any longshoreman or other person

engaged in longshoring operations, and any harbor-

worker including a ship repairman, shipbuilder, and

ship-breaker.” 33 U.S.C. 902(3). By using the term

“including,” Congress indicated that “maritime em-

ployment” is not limited to the specifically mentioned

occupations. Herb’s Welding, Inc. v. Gray, 470 U.S.

414, 423 n.9 (1985); see also Chesapeake & O. Ry. v.

Schwalb, 493 U.S. 40, 45 (1989).

The court of appeals placed great reliance on this

Court’s statement in Schwalb that, “aside from the

specified occupations, land-based activity occurring

within the § 903 situs will be deemed maritime only if

it is an integral or essential part of loading or

unloading a vessel.” 493 U.S. at 45. That statement

in Schwalb must be understood, however, in the

context of this Court’s cases applying an “integral or

essential part” test, all of which involved cargo-

related operations. Thus, the Court has held that

land-based workers involved in “some portion” of the

overall “process of loading or unloading a ship” are

engaged in “maritime employment,” P.C. Pfeiffer Co.

v. Ford, 444 U.S. 69, 82-83 (1979); Northeast Marine

Terminal Co. v. Caputo, 432 U.S. 249, 265-279 (1977),

whether the worker is checking and marking cargo,

as in Caputo, moving cargo, as in Pfeiffer, or

maintaining and repairing equipment essential to the

loading or unloading process, as in Schwalb, 493 U.S.

at 47.

The Court has not been presented with a case

involving land-based activity that was “integral or

essential” to another occupation specified in the Act,

such as shipbuilding or ship repair, but not long-

shoring.’ The Act itself, however, does not confine

coverage to longshore workers; it provides coverage

equally to “any harbor-worker including a ship

repairman, shipbuilder, and ship-breaker.” 33 U.S.C.

902(3). If, as the Court held in Schwalb, the Act

extends coverage to work that is essential to

longshore operations, but is not longshoring itself,

there is no reason to doubt that the Act also covers

employment that is essential to other activities

specified in the Act, such as shipbuilding and ship

repair.

This Court’s understanding of the purpose of the

1972 amendments to the LHWCA also supports a

finding of coverage when a land-based activity is

essential to shipbuilding or ship repair. As the Court

’ The Court has indicated, however, that the LHWCA

covers work connected to maritime employment other than

longshoring. See Herb’s Welding, 470 U.S. at 423-424 (“mari-

time employment” requirement cannot “be read to eliminate

any requirement of a connection with the loading or con-

struction of ships”) (emphasis added); Pfeiffer, 444 U.S. at 80

(stating that Congress adopted “an occupational test that

focuses on loading and unloading,” but also recognizing that

“{l]Jand-based workers who do not handle containerized cargo

also may be engaged in loading, unloading, repairing, or

building a vessel”) (emphasis added).

has recognized, one of the “primary motivations” for

extension of the LHWCA to land-based workers in

1972 was Congress’s recognition that much work

once performed on vessels on the navigable waters is

now performed on land. Caputo, 432 U.S. at 269-270.

Congress intended to reach such work, id. at 270-271,

and “anticipated that some persons who work only on

land would receive benefits.” Pfeiffer, 444 U.S. at 80.

Shipbuilding and ship repair, like longshoring, now

occur on both sea and land. Employment Standards

Admin., U.S. Dep’t of Labor, LHWCA Program

Memorandum No. 58: Guidelines for Determination

of Coverage of Claims Under Amended Long-

shoremen’s Act 4 (Aug. 10, 1977); see also Pfeiffer, 440

U.S. at 80; Dravo Corp. v. Maxin, 545 F.2d 374, 380-

381 (3d Cir. 1976), cert. denied, 483 U.S. 908 (1977);

National Research Council, Personnel Require-

ments for an Advanced Shipyard Technology 38

(1980). Coverage of all land-based employees whose

work is essential to shipbuilding and ship repair

ensures that workers in those industries, like those

in longshoring, will not lose LHWCA benefits merely

because of technological changes in their industries.

The court of appeals erred by considering only

whether a land-based worker whose occupation is not

specifically listed in 33 U.S.C. 902(3) did work that

was integral to “loading or unloading.” The proper

test would consider whether the claimant’s activities

were integral or essential to any of the activities

specified in Section 902(3), including shipbuilding and

ship repair; under that test, the court of appeals

should have concluded that petitioner was engaged in

maritime employment. Unlike the welder in Herb’s

Welding, whose work was essential to offshore oil

drilling, but not to any occupation mentioned in the

Act’s definition of maritime employment, see 470 U.S.

at 422 (offshore oil drilling is not itself “a maritime

activity”), petitioner did work that was essential to

activities that were part of “maritime employment”

under 33 U.S.C. 902(3). See Pet. App. 20a-21la

(“without electricity and steam no shipbuilding and

repair work can be performed”). It should also make

no difference that petitioner was engaged “only [in]

the construction of a power plant (as distinguished

from its later operation or maintenance),” as the

court of appeals believed, zd. at 8a (court’s emphasis),

as demonstrated by the fact that, in this case, the

plant under construction was intended to replace an

existing one. /d. at 17a.

2. Notwithstanding the court of appeals’ errors,

review is not warranted in this case. Contrary to

petitioner’s argument (Pet. 6, 13-15), the court of

appeals’ decision is not in direct conflict with the

holding of Schwalb. Schwalb held that persons who

maintained and repaired loading equipment were

engaged in maritime employment because their work

was an essential part of the loading and unloading

process. 493 U.S. at 47. The Court did not consider

the precise question presented in this case: whether

work essential to shipbuilding and ship repair is also

covered.

Although petitioner argues (Pet. 16-20) that the

decision below conflicts with decisions of other

courts of appeals, this case is the first one after

Herb’s Welding and Schwalb in which a court of

appeals has had to decide whether a claimant is

engaged in maritime employment when his or her

work is “essential” to shipbuilding or ship repair

work, but not longshoring. Other courts of appeals

have had no occasion to consider the Fourth Circuit’s

yeti _

conclusion that Herb’s Welding and Schwalb require

use of a “loading or unloading” test to exclude such

workers from coverage.

Moreover, although decisions of other courts of

appeals predating Herb’s Welding and Schwalb do

take a broader view of the Act’s coverage than did the

court below in this case, the facts of those cases are

sufficiently distinct from the facts of this case that

the court below might have found coverage in those

circumstances. In Graziano v. General Dynamics

Corp., 663 F.2d 340, 343 (1981), the First Circuit held

that an employee who maintained and repaired

shipyard buildings and equipment was engaged in

maritime employment because his duties were

essential to the construction and repair of ships. The

Fourth Circuit might well find coverage for someone

in Graziano’s position, however, because it character-

ized the issue in this case as whether a pipefitter

“employed in only the construction of a power plant

(as distinguished from its later operation or

maintenance)” met the status requirement. Pet. App.

8a (court’s emphasis). Thus, the court below

essentially distinguished the facts of Graziano. It is

also conceivable that the First Circuit would find

that construction work on a power plant is not

comparable to Graziano’s duties, which that court

viewed as “a necessary link in the chain of work that

resulted in ships being built and repaired.” 663 F.2d

at 343.4 Although we do not believe that a distinction

* Third Circuit decisions appear to support such a

distinction. Compare Dravo Corp. v. Mazin, 545 F.2d at 380

(burning steel plates to be used in shipbuilding is an “integral

part” of such employment) with Dravo Corp. v. Banks, 567

F.2d 593, 595 (8d Cir. 1977) (routine maintenance work at a

shipyard is not an “integral part” of shipbuilding).

between construction and repair is ultimately

supportable (see p. 10, supra), the courts of appeals

have not considered that issue since Schwalb.°

There is also no direct conflict between the

decision below and Hullinghorst Industries v.

Carroll, 650 F.2d 750 (5th Cir. 1981), cert. denied, 454

U.S. 1163 (1982), as petitioner contends (Pet. 18-19).

In that case, the Fifth Circuit held that a carpenter

erecting a scaffold on a pier for use in repairing

longshoring equipment was engaged in maritime

employment because “[iJt was an integral step in a

maritime project of the type that could be performed

by a typical harborworker,” and “directly furthered

the maritime goals of the [relevant] port facility—the

loading and unloading of ships.” 650 F.2d at 756; see

also Schwalb, 493 U.S. at 44 (citing Hullinghorst as a

case in which maintenance and repair were found to

be essential to loading and unloading). Because

Hullinghorst involved work essential to longshoring,

the Fourth Circuit would likely have found coverage

on the same facts.°

5 In cases involving an alleged connection to loading and

unloading, courts of appeals have construed Herb’s Welding

and Schwalb to require a land-based worker whose occupation

is not listed in 33 U.S.C. 902(3) to show that his or her work is

essential to loading or unloading. See Munguia v. Chevron

U.S.A. Inc., 999 F.2d 808, 811 (5th Cir. 1993), cert. denied, 114

S. Ct. 1839 (1994); Coloma v. Director, OWCP, 897 F.2d 394,

398-400 (9th Cir.), cert. denied, 498 U.S. 818 (1990).

6 Petitioner also argues (Pet. 20-31) that review is

warranted because the Fourth Circuit’s decision in this case

conflicts with other decisions of the same court. “It is

primarily the task of a Court of Appeals to reconcile its

internal difficulties.” Wisniewski v. United States, 353 U.S.

901, 902 (1957). Moreover, it may be possible for the court of

appeals to reconcile the decisions cited by petitioner. For

3. The impact of the decision below on LHWCA

enforcement is also too uncertain to warrant review

at this time. The coverage question in this case

arises in an unusual setting (a naval facility building

its own power plant) and should directly affect few

workers. It is not clear that the court’s decision will

control cases involving other occupations that are

more directly connected to shipbuilding and ship

repair. Moreover, the court distinguished “mainten-

ance” of shipyard equipment from the construction at

issue in this case. Pet. App. 8a. It is possible that the

court of appeals will find maintenance workers to be

“shipbuilders” or “harbor workers,” and therefore

specifically covered under the Act. See LHWCA Pro-

gram Memorandum, supra, at 11-12 (ship repair

workers and shipbuilders include “the many trades or

crafts represented within the labor force of a

shipyard [, and] * * * maintenance functions per-

example, in Brown & Root, Inc. v. Joyner, 607 F.2d 1087 (4th

Cir. 1979), cert. denied, 446 U.S. 981 (1980), coverage of

employees engaged in the construction of a dry dock may have

turned on the fact that a dry dock (unlike a power plant) “is

peculiarly a maritime facility” that was a covered situs even

before the 1972 amendments to the LHWCA. Id. at 1089; see

Director, OWCP v. Perini N. River Assocs., 459 U.S. 297, 323-

324 (1983) (1972 amendments manifest “no congressional intent

to affect adversely the pre-1972 coverage”). In Pittman

Mechanical Contractors, Inc. v. Director, OWCP, 35 F.3d 122,

125-126 (4th Cir. 1994), the court distinguished the instant case

and explained that the employee in that case was covered

because his repair of pipelines that were the only means of

transporting supplies essential to a ship’s docking involved

equipment necessary for the loading process. Price v. Norfolk

& Western Railway, 618 F.2d 1059, 1061 (4th Cir. 1980), also

involved an employee whose work related to loading and

unloading of vessels.

formed on the machinery and equipment of the

shipyard are indivisible in purpose from the use of the

equipment”); see also Brown & Root, Inc. v. Joyner,

607 F.2d 1087, 1089, 1090 n.5 (4th Cir. 1979) (noting

that Board includes certain maritime construction

workers in definition of “harbor workers”), cert.

denied, 446 U.S. 981 (1980). Therefore, although we

believe that the court of appeals’ decision is errone-

ous, review by this Court is not warranted at this

time.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. DAYS, III