Opposition Brief — Mobil Mining & Minerals v. Nixson

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MOBIL MINING & MINERALS, PETITIONER

Vv.

DAVID R. NIXSON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

eee ts lake Department of Justice

Washington, D.C. 20530-0001

NATHANIEL I. SPILLER (202) 514-2217

Deputy Associate Solicitor

MARK S. FLYNN

Attorney

Department of Labor

Washington, D.C. 20210

QUESTION PRESENTED

Petitioner operates a manufacturing plant that is

located on a ship channel. The plant receives raw

materials and ships finished products by vessels.

Respondent David R. Nixson was injured while work-

ing on a rail line within the plant’s premises that is close

to the water and petitioner’s vessel-loading areas. The

question presented is as follows:

Whether the rail line is part of an “adjoining area

customarily used by an employer in loading [and] un-|

loading * * * a vessel,” and is thus a situs covered

under Section 3(a) of the Longshore and Harbor

Workers’ Compensation Act, 33 U.S.C. 903(a).

TABLE OF CONTENTS

Page

Ieee SR ts 9 IS TLC SR HEA SIE RUT ORE Tr LOT C 1

Jurisdiction jinsdabouedaniéasenamsaboascataisahie 1

Statement sninthionsetciipainabdided seackasisvindanbenmeeabatinnnsinibis 2

MINNIE senhthashaihesevhciisecitsacscn sips caab acuchahaabctbesvdslaiphinn Cbashasistubiosins 6

Conclusion ....... ‘iis psiioiatchaniaipiadinioeubs sintnaeen 14

TABLE OF AUTHORITIES

Cases:

Arjona v. Interport Maint. Co., 31 Ben. Rev. Bd..

Serv (MB) 86 (1997) .........cccceceseeees ste 5

Brady-Hamilton Stevedore Co. v. Herron, 568

F.2d 137 (9th Cir. 1978) 4,5,9

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

(11th Cir.), cert. granted, 524 U.S. 982, cert. dismissed,

525 U.S. 957 (1998) ..... “on 13

Fleischmann v. Director, OWCP, 137 F.3d 131

(2d Cir.), cert. denied, 525 U.S. 981 (1998) ........ccsee0e iene 13

Gavranovic v. Mobil Mining & Minerals, 33 Ben.

BURY. ZIG TOES, CET) 1 CED) viscicccecciniesavesnesnsccnaniososstssoceieior 5

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

(1985) 9, 10

Jonathan Corp. v. Brickhouse, 142 F.3d 217 (4th

Cir.), cert. denied, 525 U.S. 1040 (1998) .........ccssecsees 11, 12, 13

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

249 (1977) 2, 7,8

Prolerized New England Co. v. Benefits Review

Bd., 637 F.2d 30 (1st Cir. 1980), cert. denied, 452

A INE Sahai icbsanisensnsatcasendasiectsllcascandingsinicaessbtndscussonen 7,9

Sidwell v. Express Container Servs., Inc., 1 F. 3d

1134 (4th Cir. 1995), cert. denied, 518 U.S. 1028

AIOE siiticansniiopuinacmicaseaseviiodecices jeliialiccchesiepstpasiadlilole 8, 13

(IIT)

IV

Cases—Continued: Page

Texports Stevedore Co. v. Winchester, 632 F.2d

504 (5th Cir. 1980), cert. denied, 452 U.S. 905

CEIEE) .<:iiccnusisideeninenibdaassinsiiuicouicranetsineploneameniiaaibsinabidiiens 4, 6, 8,9

Triguero v. Consolidated Rail Corp., 932 F.2d 95

CE CAP BE) csicseccerrsastnsccstissntccstassuenciublinabiaesinpichapeasiudebavenats 9

Statutes:

Longshore and Harbor Workers’ Compensation Act,

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

BO UB, DERE): ninseicsanasiosrcresasicsvaiasshniihspionamnnenasbininanseusaie 2,10

SB. WBC. BOG) CGF) sisscascisssosasnccsicecsuniphideniinidibeniapiatohe 8

5B VEG, GD ccitiiicnicmaians 2, 6, 8, 9, 12, 18

SB UEC sccukcsosscnisessssesibinisicainess eopahtaaiintndiapenlaniiachias 2

Be Us SRD ination snsterentoksecesiestiiasidetinnaiyin etceininbiingniapaialin 2

Longshoremen’s and Harbor Workers’ Compensation

Act Amendments of 1972, Pub. L. No. 92-576, § 2,

OG GE. TEBS i cciscsssitsnsnssiiarsssmcainediaeneppcinenaaibaanpiaipibieae 9

Miscellaneous:

H.R. Rep. No. 1441, 92d Cong., 2d Sess. (1972) ......ss-sseesse 8,9

S. Rep. No. 1125, 92d Cong., 2d Sess. (1972) .......ssssssssseessees 9

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

LHWCA Program Memorandum No. 58 (Aug. 10,

TORT) .xissanssisivticisencanusitisetssesibsedieiphaciiaatimakadasundsddnstabiiala 7

In the Supreme Court of the Gnited States

No. 00-44

MOBIL MINING & MINERALS, PETITIONER

Vv.

DAVID R. NIXSON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-2a)

is unpublished, but the decision is noted at 209 F.3d 719

(Table). The decision and order of the Benefits Review

Board (Pet. App. 3a-8a) is unreported. The decision and

order of the administrative law judge (Pet. App. 9a-35a)

is unreported.

JURISDICTION

The court of appeals entered its judgment on

February 7, 2000. A petition for rehearing was denied

on April 7, 2000 (Pet. App. 36a). The petition for a writ

of certiorari was filed on July 6, 2000. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. The Longshore and Harbor Workers’ Compen-

sation Act (LHWCA or Act) provides compensation to

covered employees for work-related injuries that result

in disability, and to survivors if the injury causes death.

33 U.S.C. 908, 909. To be covered by the Act, an in-

jured employee must meet two requirements. The

first, commonly known as the “status” requirement, is

that the employee must be engaged in maritime em-

ployment.’ The second, known as the “situs” require-

ment, is that the injury must have occurred on a mari-

time situs. See Northeast Marine Terminal Co. v.

Caputo, 482 U.S. 249, 264-265 (1977). This case con-

cerns the “situs” requirement, imposed by Section 3(a)

of the Act, which specifies that a disability or death is

compensable only if it

results from an injury occurring upon the navigable

waters of the United States (including any adjoining

pier, wharf, dry dock, terminal, building way, ma-

rine railway, or other adjoining area customarily

used by an employer in loading, unloading, repair-

ing, dismantling, or building a vessel).

33 U.S.C. 903(a).

2. Petitioner Mobil Mining and Minerals operates

a fertilizer manufacturing plant located along the

Houston Ship Channel. Pet. App. 2a, 4a. Petitioner

receives raw materials and ships out finished fertilizer

products by barge and ship, and it maintains four docks

1 Section 2(3) of the Act defines “employee” (with certain ex-

ceptions not relevant here) as “any person engaged in maritime

employment, 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(8).

3

at the plant for loading and unloading vessels. Jd. at

14a. Petitioner also receives raw materials and ships

fertilizer products by truck and railway. Id. at 4a.

Respondent David Nixson worked as an “A Opera-

tor” in petitioner’s shipping and receiving division. Pet.

App. 12a-13a. His duties included a variety of tasks

involving the loading and unloading of barges, and dur-

ing 1993 he spent 41% to 50% of his work time engaged

in those activities. Jd. at 5a. His responsibilities also

included tasks relating to the loading and unloading of

trucks and rail cars. Jd. at 5a, 17a. Respondent testi-

fied that he had a 50% daily expectation of working on

the waterfront when barges were present or expected,

and that at times he was reassigned during the course

of a workday from the rail area of petitioner’s facility to

the waterfront. Id. at 18a-14a.

On the day of his injury, respondent was assigned to

the locomotive crew, moving rail cars into position for

loading. While attempting to couple cars together, he

severely injured his left arm. Pet. App. 4a n.1, 20a. The

record contains a map (without a scale) of petitioner’s

manufacturing plant, showing the site of respondent’s

injury. See CX 11 (Facility Map) (reprinted following

Pet. App. 49a). The record does not, however, reflect

the distance between the water and the site of the in-

jury. Although petitioner states (Pet. 3) that the injury

site is not “even near” its docks, in the court of appeals

petitioner acknowledged that the pertinent rail line is

“physically close to the water’s edge,” Pet. C.A. Br. 14,

where its docks are located. See Facility Map. The rail

line runs along the back, landward side of Building 9

(labeled “Fertilizer Storage” on the Facility Map) and a

rock storage dome, which are structures used in the

4

loading and unloading of vessels. See ibid.; Pet. App.

14a, 20a.”

3. Respondent sought benefits under the LHWCA.

His claim proceeded to a hearing before a Department

of Labor administrative law judge (ALJ).° Pet. App.

12a. With respect to the Act’s status requirement, the

ALJ noted the parties’ stipulation that the maritime

duties of loading and unloading vessels constituted

41%-50% of respondent’s assignments, and that respon-

dent’s uncontradicted and credible testimony estab-

lished that he had a 50% daily expectation of being

assigned to maritime work. See id. at 3la. The ALJ

concluded on that basis that respondent satisfied the

LHWCA’s status requirement. bid.

The ALJ also. determined that respondent was in-

jured on an LHWCA situs. Pet. App. 25a-29a. Citing

Texports Stevedore Co. v. Winchester, 632 F.2d 504, 513

(5th Cir. 1980) (en banc), cert. denied, 452 U.S. 905

(1981), the ALJ ruled that under Fifth Circuit pre-

cedent, the situs determination requires consideration

of “all the circumstances.” Pet. App. 27a. The ALJ

focused in particular on factors derived from the de-

cision in Brady-Hamilton Stevedore Co. v. Herron, 568

F.2d 137 (9th Cir. 1978) (Kennedy, J.). He found that

2 Petitioner was injured near the juncture of two tracks. Tr.

109. One of the tracks runs behind buildings used in the vessel

loading and unloading process; the other track runs along the

waterway between those buildings and the docks. Facility Map;

see Nixson Br. in Opp. 4.

3 Petitioner paid respondent benefits under state compensation

law, but respondent would be entitled to higher benefits under the

_ LHWCA. Pet. App. 4a.

4 Those factors are the particular suitability of the site for

maritime uses referred to in the statute; whether adjoining pro-

perties are devoted primarily to maritime uses; the proximity of

5

petitioner’s site on the Houston Ship Channel is

suitable for its maritime receipt and shipment of

materials, and was a “definite benefit” to petitioner;

that petitioner’s docks located on the waterway are

connected to storage and manufacturing areas by con-

veyor belt systems; and that the facility arguably could

not have been closer to the water. Pet. App. 27a.

Based on those factors, the ALJ concluded that because

petitioner’s facility is in the vicinity of navigable waters

and is used to load and unload vessels, it is a situs

covered by the LHWCA. Id. at 27a-29a.

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

3a-8a. The Board largely relied on its decision in

Gavranovic v. Mobil Mining & Minerals, 33 Ben. Rev.

Bd. Serv. (MB) 1 (1999), which held that a claimant in

the same job classification as respondent at petitioner’s

Houston Ship Channel facility satisfied the Act’s status

and situs requirements. Pet. App. 6a-8a. The Board

concluded that “[b]Jecause the present case involves

the same facility and the same employee classification

and duties as the Board addressed in Gavranovic,”

respondent Nixson was entitled to LHWCA benefits

“for the reasons set forth in Gavranovic.” Id. at 7a.°

the site to the waterway; and whether the site is as close to the

waterway as is feasible given all the circumstances. Pet. App. 27a.

Although the ALJ cited a Benefits Review Board decision as

authority for the factors, see ibid. (citing Arjona v. Interport

Maint. Co., 31 Ben. Rev. Bd. Serv. (MB) 86, 87 (1997)), those

criteria are derived from Brady-Hamilton. See 568 F.2d at 141.

5 The Board in Gavranovic concluded that an “A” operator at

the Houston Ship Channel facility was a maritime “employee”

within the meaning of the Act (see note 1, swpra) because he had

regular involvement in the loading and unloading of vessels. Pet.

App. 48a. The Board in Gavranovic also affirmed the ALJ’s

conclusion in that case that petitioner’s entire facility is an

6

5. The court of appeals affirmed. Pet. App. la-2a.

The court considered “the stipulated facts regarding

both the particular site where the accident occurred

and the surrounding area constituting Mobil’s facility

contiguous to the Ship Channel.” Jd. at 2a. The court

concluded that “the ‘area,’ as distinguished from the

pinpoint site of the accident, is a covered situs pursuant

to the plain wording of § 903(a) of the LHWCA.” Ibid.

} ARGUMENT

The unpublished decision of the court of appeals is

correct and does not conflict with any decision of this

Court or of any other court of appeals. Further review

is not warranted.

1. Petitioner contends (Pet. 16-19) that even where

significant portions of a manufacturing plant are cus-

tomarily used in loading and unloading vessels, injuries

that occur in other portions of the facility are not

compensable under the LHWCA. That argument is

incorrect. Section 3(a) of the Act provides that an

injury to a covered worker is compensable if it takes

place “upon the navigable waters of the United States,”

including an “adjoining area customarily used by an

employer in loading, unloading, repairing, dismantling,

or building a vessel.” 33 U.S.C. 903(a). As the Fifth

Circuit has recognized, “[a]rea is a broad term” func-

tionally defined, and the specific location of an injury

need not be “customarily used” for loading or unloading

if the broader area is. Texports Stevedore Co. v. Win-

chester, 632 F.2d 504, 515-516 (5th Cir. 1980) (en banc),

cert. denied, 452 U.S. 905 (1981).

“adjoining area” that is “customarily used” for maritime purposes.

Id. at 43a-47a.

7

In Northeast Marine Terminal Co. v. Caputo, 432

U.S. 249, 279-281 (1977), this Court endorsed the use of

a facility-wide approach to questions of LHWCA

coverage. The Court explained that respondent Caputo

satisfied the Act’s situs requirement because

[t]he truck he was helping to load was parked inside

the terminal area. As [the employer] correctly con-

cedes, this situs “unquestionably met the require-

ments of § 3(a) of the Act, . . . because the

terminal adjoins navigable waters of the United

States and parts of the terminal are used in loading

and unloading ships.”

Id. at 279. The Court employed the same mode of

analysis in holding that respondent Blundo had been

injured at a situs covered by the LHWCA. I7d. at 279-

281. Consistent with that approach, the court of ap-

peals in the instant case refused to give controlling

significance to the customary use of the “pinpoint site of

the accident,” and looked instead to the wider facility in

which respondent worked. Pet. App. 2a; see Prolerized

New England Co. v. Benefits Review Bd., 637 F.2d 30,

39 (1st Cir. 1980), cert. denied, 452 U.S. 938 (1981).’

6 Contrary to petitioner’s contention (Pet. 12-13), the Caputo

Court’s endorsement of the facility-wide approach cannot plausibly

be characterized as dictum. With respect to Caputo, the Court

expressly agreed with the employer’s concession that the situs

requirement was satisfied “because the terminal adjoins navigable

waters of the United States and parts of the terminal are used in

loading and unloading ships.” 432 U.S. at 279. The Court also

made clear that the same analysis furnished an independent basis

for its holding that Blundo was injured at a covered situs. Jd. at

281.

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

LHWCA Program Memorandum No. 58, at 13-14 (Aug. 10, 1977)

(“relevant ‘area,’ * * * is the entire maritime facility,” and it

8

2. Focusing on the facility, rather than the precise

location where the injury occurs, is supported by the

purpose of the 1972 LHWCA amendments establishing

the situs-and-status regime for coverage under the Act.

Until 1972, the LHWCA extended coverage only to

injuries that occurred “upon the navigable waters of the

United States (including any dry dock).” 33 U.S.C.

903(a) (1970). As a result of that limitation on federal

coverage and the disparity between the benefits

payable under the Act and those provided under state

workers’ compensation laws, benefits awarded to

longshore or harbor workers could vary substantially

depending upon the side of the water’s edge on which

an accident occurred. See generally Caputo, 432 U.S. at

260-263; H.R. Rep. No. 1441, 92d Cong., 2d Sess. 10-11

“does not defeat coverage of a shipbuilder’s injury that the precise

location where it occurred—for example, a fabrication shop—does

not itself adjoin the water; it suffices if the overall area within

which it occurred (generally a shipyard) adjoins the water”);

Sidwell v. Express Container Servs., Inc., 71 F.3d 1134, 1140 n.11

(4th Cir. 1995) (under Section 3(a) “it is the parcel of land that must

adjoin navigable waters, not the particular square foot on that

parcel upon which a claimant is injured”), cert. denied, 518 U.S.

1028 (1996).

Under the facility-wide approach employed in Caputo, peti-

tioner’s facility meets the Section 3(a) criteria. It is located di-

rectly on the Houston Ship Channel and therefore “adjoin{s)”

navigable waters under any conceivable standard. Compare

Texports Stevedore, 632 F.2d at 514 (test is whether a site is “close

to or in the vicinity of navigable waters, or in a neighboring area”),

with Sidwell, 71 F.3d at 1138-1139 (test is whether a site is “‘con-

tiguous with’ or otherwise ‘touches’ such waters”). In addition,

petitioner engages in extensive maritime activity through loading

and unloading of vessels, Pet. App. 15a-18a, thereby meeting the

requirement that the area be “customarily used” for maritime

purposes.

9

(1972); S. Rep. No. 1125, 92d Cong., 2d Sess. 12-13

(1972).

Congress amended the Act in 1972, Pub: L. No. 92-

576, § 2, 86 Stat. 1251, extending its coverage to speci-

fied landward locations and to “other adjoining area[s]

customarily used by an employer in loading, unloading,

repairing, dismantling, or building a vessel.” 33 U.S.C.

903(a). That expansion of coverage to “rather large

shoreside areas,” Herb’s Welding, Inc. v. Gray, 470 U.S.

414, 423 (1985), was designed to “permit a uniform

compensation system to apply to employees who would

otherwise be covered by this Act for part of their

activity.” H.R. Rep. No. 1441, supra, at 10-11; S. Rep.

No. 1125, supra, at 18. Section 3(a) should therefore be

construed so as to minimize the frequency with which

individual workers walk in and out of coverage. See

Triguero v. Consolidated Rail Corp., 932 F.2d 95, 101

(2d Cir. 1991); Prolerized, 637 F.2d at 39; Texports

Stevedore, 632 F.2d at 514-515; Brady-Hamilton Steve-

dore Co. v. Herron, 568 F.2d 187, 140-141 (9th Cir.

1978).

A facility-wide approach to the term “area” serves

that purpose. By contrast, limiting the LHWCA’s

coverage to the component areas of a facility where

loading or unloading occurs would cause workers like

respondent Nixson, who regularly work in both vessel

and rail loading areas, to shift frequently between

LHWCA and state coverage. As the ALJ in this case

emphasized, “to conclude that a worker like [respon-

dent Nixson], who spends 50% of his work time loading

and unloading barges and vessels, is covered only if he

is injured while engaged in such maritime activity

10

would accentuate the ‘walking in and out of coverage’

that Congress intended to eliminate.” Pet. App. 29a.°

3. Contrary to petitioner’s contention (Pet. 14), this

Court’s decision in Herb’s Welding does not cast doubt

on the continuing vitality of the Caputo Court’s analy-

sis. The Court in Herb’s Welding did observe in passing

that under the LHWCA, “there will always be a

boundary to coverage, and there will always be people

who cross it during their employment.” 470 U.S. at 426.

The Court’s holding in the case, however, was that the

worker in question was not engaged in maritime em-

ployment. Jd. at 421-426. In light of that disposition of

the “status” question, the Court explained that it “need

not determine whether [the worker] satisfied the Act’s

situs requirement.” Jd. at 427. Because petitioner does

not contest the Benefits Review Board’s determination

that respondent Nixson satisfied the Act’s status re-

quirement, see Pet. App. 2a (noting that petitioner

conceded the point in the court of appeals), Herb’s

Welding is essentially irrelevant to the question

presented for this Court’s review.”

8 The 1972 amendments also imposed a new “status” require-

ment by amending the Act’s definition of “employee.” Because

Congress did not wish to extend coverage to all workers who

might be injured in the newly covered landward areas, it limited

the Act’s coverage to “person[s] engaged in maritime employ-

ment.” 33 U.S.C. 902(3); see note 1, supra. In the context of this

case, the status requirement would ensure that employees whose

work extends only to manufacturing (rather than maritime)

activities would not be covered by the LHWCA, even if they are

injured while working within a maritime situs.

® The loading and unloading of vessels constituted 41%-50% of

respondent Nixson’s work assignments. Pet. App. 5a. By con-

trast, the individual whose claim was at issue in Herb’s Welding

was a welder whose “work had nothing to do with the loading or

unloading process.” 470 U.S. at 425.

11

4. Petitioner contends (Pet. 9-11) that the court of

appeals’ decision in this case conflicts with the decision

of the Fourth Circuit in Jonathan Corp. v. Brickhouse,

142 F.3d 217, cert. denied, 525 U.S. 1040 (1998). That

claim is incorrect.

In holding that the claimant in Brickhouse had not

satisfied the LHWCA’s situs requirement, the Fourth

Circuit explained:

At the time of his employment, Brickhouse was

fabricating steel parts for an inland bridge in North

Carolina. He was fabricating them in a steel fabri-

cation plant which was not a pier, wharf, dry dock,

terminal, building way, or marine railway. Nor was

it, we conclude, a similar type of facility that fits the

catchall provision. While at the plant, the em-

ployees’ work did not routinely take them from

within the plant, onto adjoining water, and back

again into the plant. On the contrary, when at the

plant, their work kept them in the plant to fabricate

steel components that were shipped from the plant,

usually by rail or truck, either to an inland site or to

a ship on navigable waters for installation. The very

fact that it was necessary for the components to be

shipped from the plant before their installation,

whether by ship or not, provides the fact that insu-

lates the plant from navigable waters and distin-

guishes Brickhouse’s work location from that of the

traditional longshoreman’s workplace at the water’s

edge. When Brickhouse worked on ships, which he

occasionally did, he traveled by land to the ship-

yards where he then installed fabricated parts.

During these times, he was undoubtedly on a situs

covered by the LHWCA. But while at the Tide-

water Steel plant, his situs was no different than it

12

would have been at any steel fabrication plant

anywhere in the land.

142 F.3d at 222. The court noted as well that “the plant

was almost a thousand feet from the water’s edge, and

it was not ‘customary’ for the plant’s workers to move

between land and water in any regular way.” Ibid. The

Fourth Circuit’s analysis clearly assumes that appli-

cation of Section 3(a)’s “other adjoining area” provision

turns on the customary uses of the facility as a whole—

not on whether the specific location of a claimant’s

injury is typically used for the loading, unloading, or

building of vessels. Indeed, although the Fourth Cir-

cuit observed in passing that “[a]t the time of his injury,

Brickhouse was working in a non-maritime bay of the

plant,” id. at 219, the specific location of the claimant’s

injury within the larger facility played no role in the

court’s resolution of the situs question.

The apparent thrust of the Fourth Circuit’s opinion

in Brickhouse is that no part of the relevant facility

was “customarily used” for the loading, unloading, or

building of vessels. Thus, the court explained that “the

fact that components were, on rare occasions, shipped

by barge from Tidewater Steel’s dock is not meaningful.

The barge dock on Tidewater Steel’s property would be

relevant only if barges were its ‘customary’ method of

shipment and if its employees were longshoremen who

customarily loaded the barge at the facility.” 142 F.3d

at 222. Since portions of petitioner’s facility in this case

are customarily used for loading and unloading vessels

(see notes 5 & 7, supra), the Fifth Circuit’s decision in

this case is not in conflict with Fourth Circuit pre-

cedent. See Pet. App. 45a n.7 (Benefits Review Board

concludes that the Fourth Circuit’s approach “would

not dictate a contrary result in [Gavranovic], as [peti-

13

tioner’s] facility actually adjoins navigable waters and

is used for loading and unloading vessels”); cf. Sidwell,

71 F.3d at 1140 n.11 (Fourth Uircuit states that “it is

the parcel of land that must adjoin navigable waters,

not the particular square foot on that parcel upon which

a claimant is injured”).” |

5. Petitioner contends (Pet. 20) that this Court was

“poised to clarify the meaning of the ‘customarily used’

standard when it granted certiorari” in Brooker v.

Durocher Dock & Dredge, 133 F.3d 1390 (11th Cir.),

cert. granted, 524 U.S. 982, cert. dismissed, 525 U.S. 957

(1998), but was deprived of the opportunity when the

parties settled that case. Brooker, however, presented

the question whether a seawall under construction was

a covered situs. The petition for a writ of certiorari

contended that the seawall in question was a “pier”

within the meaning of Section 3(a), and that the

Eleventh Circuit’s contrary ruling conflicted with

Fleischmann v. Director, OWCP, 187 F.3d 131 (2d Cir.),

cert. denied, 525 U.S. 981 (1998), which held that a

bulkhead was a “pier.” 98-18 Pet. at 6, 10-11. The peti-

tion also argued that the seawall was an area customar-

ily used for loading and unloading vessels, based on

© Although the Fourth Circuit in Brickhouse stated that “the

steel fabrication plant where Brickhouse was injured was not a

facility, the raison d’etre of which is its use in connection with the

nearby navigable waters,” 142 F.3d at 222 (internal quotation

marks omitted), that assertion was in no way central to the court’s

analysis. And while the “raison d’etre” of petitioner’s facility is not

maritime in nature, the strong maritime connection between the

facility and the water justifies its treatment as an LHWCA situs.

See Pet. App. 15a, 27a (describing the large amount of raw mate-

rials that petitioner receives by vessel, the suitability of the site

for such receipt, and the benefit petitioner receives from its water-

front location).

14

evidence that materials for the seawall’s construction

were regularly loaded and unloaded in the vicinity of

the seawall. Jd. at 13-14. Neither the Eleventh Circuit

nor the petition for certiorari discussed the question

whether the customary use of a portion of a manu-

facturing plant for loading and unloading vessels

satisfies the LHWCA’s “situs” requirement with re-

spect to injuries that occur in other portions of the

plant. The question on which this Court granted certio-

rari in Brooker is therefore largely unrelated to the

question presented in the instant case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

HENRY L. SOLANO

Solicitor of Labor

NATHANIEL I. SPILLER

Deputy Associate Solicitor

MARK S. FLYNN

Attorney

Department of Labor

OCTOBER 2000