Opposition Brief — Fred Settoon, Inc. v. Gros

Supreme Court brief2004

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

FILED

2 SEP 30 2004

No. 03-1699 OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

FRED SETTOON, INC., ET AL.

Petitioners,

MICHAEL GROS,

Respondent.

On Petition for Writ of Certiorari

to the Louisiana Court of Appeal, Third Circuit

-BRIEF FOR RESPONDENT IN OPPOSITION

TO PETITION FOR CERTIORARI

JOSHUA T. GILLELAN II

Counsel of Record

Longshore Claimants’

National Law Center

Georgetown Place, Suite 500

1101 30th Street, N.W.

Washington, DC 20007

(202) 625-8331

DANIEL J. NAIL

102 B East Bayou Road

Thibodaux, LA 70301

(985) 447-5719

Counsel for Respondent

COUNTER-STATEMENT OF QUESTIONS

PRESENTED

1. Whether a compensation order awarding benefits for a

worker’s injury under the Longshore and Harbor Workers’

Compensation Act, without addressing whether the worker

was a “member of the crew of [a] vessel” excluded from the

Act’s “coverage,” forecloses the worker from asserting in a

proceeding under the Jones Act and general maritime law

that he was a “crew member.”

2. Whether the ALJ who decided Gros’s Longshore Act

claim made a potentially preclusive finding that Gros’s work

aboard vessels during some relevant period amounted to no

more than ten percent of his work time.

TABLE OF CONTENTS

Page

Counter-Statement of Questions Presented ............:c:::ceeeeeeees i

Table of Awthorities.......<:::ssccconeamaminaaenamiaiaaaiaeien ili

Opinions Bede .....0s<:.:01:ssinesiasmanaaiaaaaaaaiaiaaiaiidass ]

JUTISGICTION.........<+++00s<+sse00usaenssansnndianenaanenna Inne 2

SURRCEMO RE... ..+1<+000svievess0ssnisiuniaslieliniinnnna nnn ai 2

Reasons for Denial of the Writ .............:csscesseceseeeeeseeeereeeneeees 6

I. Although the Issue of Federal Law on which Peti-

tioners Seek Review Is the Subject of an Intercircuit

Conflict and of an Intracircuit Conflict Between

Federal and State Appellate Courts, This Is Not an

Appropriate Time or Case for Its Resolution. .................. 6

A. Scope of the Recurring Issue .............:.c:cssccsseeeseeeeeees 6

B. The Conniiiet .....::-«:sssssabeensiaeuienimiaiiaieseiiaidaenibieiens 10

C. Inappropriateness of Resolution of the Conflict

NOW. «....0+<0seuevensesisennpiendellelinin al aan cai 19

II. Petitioners Misstate the ALJ’s Findings in Contend-

ing that They Establish that as a Matter of Law

Gros Could Not Have Been a Crew Member. ................ 24

Os enn Fe ST 27

TABLE OF AUTHORITIES

Page

CASES

Anders v. Ormet, 874 F.Supp. 738 (M.D. La. 1994)............ 15

Astoria Federal Savings & Loan Ass'n v. Solimino, 501

| STL SAAR Se 22

Biggs v. Norfolk Dredging Co., 360 F.2d 360 (4th Cir.

Sasa idateticcieseicUiescecisiatncaaraseigdiacledbaslseiiiatestesesdbesbeeniesnidenitiessiiisline 16

Chandris, Inc. v. Latsis, 515 U.S 347 (1995) ........... 7, 25-26

Davis v. Department of Labor & Industries, .

a at laaltadeaiia 7

Figueroa v. Campbell Industries, 45 F.3d 311 (9th Cir.

og, BM ORR EE Ae SORT OR OT 15-17, 18

Guidry v. Ocean Drilling & Exploration Co., 244

Ps UP E WF EP, Bi. FIED evevccrecscercesnesdiorcccervevensventes 16

Harbor Tug & Barge Co. v. Papai,

PE BEA ETD caveierceicetnsenstocnsasevovees 7, 18, 19, 22, 25

Heckler v. Community Health Services of Crawford

County, Inc., 467 U.S. 51 (1984) wo... eeccsseceseesseseeeeseees 12

Jones & Laughlin Steel Co. v. Pfeifer, 462 U.S. 523

A) siniaiinedlaitadhienediuitaiatetintonsitarlcdiibietapeiidesiiteviciin 3

Lewis v. SSA Gulf Terminals, Inc., BRB No. 03-0523

(Ben. Rev. Bd. Apr. 22, 2004) (http://www.dol.gov-

/brb/cases/Ingshore/unpublished/A pr04/03-0523.-

htm), pet. for review filed, No. 04-60543 (filed June

BE dlicdebtiakicescondsinsbiumicckdursestinolbbabcsesetbetveniunbeentie 9-10

Lyng v. Payne, 476 U.S. 926 (1986) .......:cccccccscsssessssessecsesees 12

McDermott, Inc. v. Wilander, 498 U.S. 337 (1991) ...... 3, 6,7

Mike Hooks, Inc. v. Pena, 313 F.2d 696 (Sth Cir. 1963) ....... 7

O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S.

SR EARTERESESL EY FESR Ee eae 22

Papai v. Harbor Tug & Barge Co., 67 F.3d 203 (9th

Cir. 1995), rev’d, 520 U.S. 548 (1997) ............. 17-19, 22

Roth v. U.S.S. Great Lakes Fleet, Inc., 1993 WL

668784 (D.Minn. Jun 18, 1993) (No. Civ. 3-91-

646), aff'd, 25 F.3d 707 (8th Cir. 1994) oo... eee 15

Sharp v. Johnson Bros., 917 F.2d 885 (Sth Cir. 1991),

after remand, 973 F.2d 423 (1992), cert. denied,

ft 2. | LN een On 13, 20

Sharp v. Johnson Bros., 973 F.2d 423 (Sth Cir. 1992),

cert. denied, 508 U.S. 907 (1993) ............. 12-15, passim

Simms v. Valley Line Co., 709 F.2d 409 (Sth Cir. 1983) .9, 12

Southwest Marine, Inc. v. Gizoni,

FEE thee CREE thine 7, 9-12, passim

Stewart v. Dutra Construction Co., No. 03-814 (US.,

cert. granted Feb. 23, 2004), reviewing 230 F.3d

461 (1st Cir. 2000), after remand, 343 F.3d 10

ET UTI -ssciciiuliciaahiaceinesinrsesh cielebapabgcasibhclnen tdaaitinumanhdidiaiidainalbaiettiinion 20

Tipton v. Socony Mobil Oil Co., 375 U.S. 34 (1963) .......... 1]

STATUTES AND RULES

Federal:

ae as Oe CANE TF isiselieicncnenibaaanaeiaiaiemnane y

Federal Employers’ Liability Act, 45 U.S.C. § 51... 17

Jones Act, 46 U.S.C. App. § 688(a)............ eee i, 2, passim

Longshore and Harbor Workers’ Compensation Act

(Longshore Act), 33 U.S.C. §§ 901-50............ i, 2, passim

§ 2(3)(G), 33 U.S.C. § 902(3)(G) ..... eee eeeeeeeeee 3, passim

OS FEE, ee Biers Ae EE ED scnsevensnnvneseorsitticieininctiaminnens 3

FE, Se en Bh FO eitaennssvimnseernntitieeneenennenniianialn 2

S BEG), 33 UB. B Pe vthessnisvesorsnisesermantsovevies 12, 14, 18

SD, Be Ses Pee ertesiraness 2, 3, 5, 7, 14, 17, 18, 23

Oe FAR, Se Wes We PT Ee eiscinvinssavismtesamentinieteniaeiibes 2

——————TaaaEe

OB oo Gren Ob SN cessesttcecstinanieiasircnnieniesidanmni 13

BE | RE gis fae, 5”. ARRON nINEUNDR mn OnIT mm 11

BG, Fao reir: Ub Or ttcicansnieteresiceicesieniensoalindaunncouedbaeneienuine 9

ee Sie Oe i acciihabelsachetvincaebietuiialsccncciciniteniseniidpeniia 13

SD Bay Ba Meats OE Pe ticnitinniersiciciiiesiaiablilitinininieainnieianal 22

BOC E eG FRR AAAEOE) ovitttmnennemeammnnen 13

State:

Louisiana Workers’ Compensation Act,

Fee Se Pin EL | & aeennnnmre im ee 3

La. Code Civ. Proc. Ann. art. 968 .........ccescesseeseeeesceeeeeeeeees 5

La. Code Civ. Proc. Ann. art. 1915.B(1) cece eeeeeeseeeeeeee ]

SCHOLARLY COMMENTARY

Jack L. Allbritton & David W. Robertson, Seaman

Status After Chandris, Inc. v. Latsis, 8 U.S.F. Mar.

Locke Ep FEES CT OIED sisncunscvnbelaniereinasvianemidilaseaaiilaidaeda 21

32B Am.Jur.2d Federal Employers’ Liability and Com-

PORES M88 FB ose sceicerrivrisaricaninsencentcaiieiinlannainnintiion 17

Grant Gilmore & Charles L. Black, Jr., The Law of Ad-

eT GIG WE. SICA sevcvivticiveninacriciaateiiendidnanaaaia 12

Victoria L.C. Holstein, Comment, The Overlap Preclu-

sion Trap Between the Jones Act and the Longshore

and Harbor Workers' Compensation Act, 76 Tul. L.

OY, FEF GEE cccovsisisricncninannesoiiaanaaaan aaa 21

Arthur Larson & Rex K. Larson, Law of Workers’

CARPONIIOR cn ccnumisiveinnveniiinicicaamamnpnaiaiaaails 12

2 Martin J. Norris, Law of Seamen (Sth ed. 2003) ............. 2,8

Restatement (Second) of Judgments § 28(5)(c) (1982)........ 22

David W. Robertson, The Supreme Court's Approach

to Determining Seaman Status: Discerning the Law

Amid Loose Language and Catchphrases, 34 J.

Maar. 1. & COmamh, S07 CARBS) sccsessercccestociniaenimmninitioncionn 7

1 Thomas J. Schoenbaum, Admiralty and Maritime Law

6 6-29 (AGT UE. BEGE) scccscssccsninstevssieatet amenities 8

John R. Wagner, Jr., Applicability of Jones Act (46

U.S.C. [App.] 688) to Workers Connected with Op-

erations of Dredges, Drilling Platforms, Derricks,

or Similar Special-Purpose Equipment, 92 A.L.R.

Fed. 733 (1989 & 2004. Supp.) ....ccsocsescocsceecccecessoveessooeees 7

IN THE

SUPREME COURT OF THE UNITED STATES

FRED SETTOON, INC., ET AL.

Petitioners,

MICHAEL Gros,

Respondent.

On Petition for Writ of Certiorari

to the Louisiana Court of Appeal, Third Circuit

BRIEF ROR RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The Order of the Louisiana Supreme Court denying discre-

tionary review (Pet. App. 66) is reported at 871 So.2d 372.

The opinion of the Louisiana Court of Appeal for the Third

Circuit (Pet. App. 1-11) is reported at 865 So.2d 143. The

order of the 16th Judicial District Court of Louisiana dismiss-

ing Plaintiff-Respondent Gros’s seaman’s claims, and desig-

nating that partial summary judgment a “final judgment” un-

der La. Code Civ. Proc. Ann. art. 1915.B(1) (Pet. App. 12-

13), is unreported.

The decision and order of the administrative law judge

making an award in the Longshore Act proceedings (Pet.

App.26-65) is unreported, but is available at the Department

of Labor’s website at http://www.oalj.dol.gov/DMSSearch-

/CaseDetails.cfm?Caseld=198484.

JURISDICTION

The Order of the Louisiana Supreme Court was entered on

March 26, 2004 (Pet. App. 66). The petition for a writ of |

certiorari w2° filed on June 22, 2004. The jurisdiction of this |

Court is invoked under 28 U.S.C. § 1257. |

STATEMENT

1. The Jones Act, 46 U.S.C. App. § 688, provides a “sea-

man” injured in the course of his or her employment with a

negligence cause of action against the employer. Injured

seamen are also entitled under the maritime common law,

among other remedies, to recover damages for “unseaworthi- |

ness” — unfitness of the vessel, her appurtenances, her staff-

ing, and even her operational practices. E.g., 2 Martin J.

Norris, Law of Seamen §§ 27.4-.16 (Sth ed. 2003).

The Longshore and Harbor Workers’ Compensation Act'

imposes no-fault liability on the employer, for medical bene-

fits and for periodic benefits for disability or death of an

“employee” that results from an injury occurring “upon the

navigable waters of the United States” (as extended to in-

clude certain shoreside areas). Longshore Act §§ 3(a), 7-9,

33 U.S.C. §§ 903(a), 907-909. As a general proposition, the

Longshore Act forecloses tort remedies against an insured

employer, and also recovery from a vessel owner or operator *

(whether or not it is the employer) based on “unseaworthi-

ness,” for injuries within its coverage. Jd. § 5(a), (b), 33

U.S.C. § 905(a), (b). It leaves the employer subject to tort

liability for a covered injury only in the event the employer is

' Act of Mar. 4, 1927, c. 509, 44 Stat. 1424, as amended, 33 U.S.C. §§

901-50 (“Longshore Act”).

eEOOw

also the owner or operator of the vessel aboard which the in-

jury occurred, and was negligent in that capacity. Id. §§

2(21), 5(b); Jones & Laughlin Steel Co. v. Pfeifer, 462 U.S.

523, 528-32 (1983).

The Act excludes from its “coverage,” however, any “mas-

ter or member of the crew of any vessel.” Longshore Act §

2(3)(G), 33 U.S.C. § 902(3)G). That exclusion thus pre-

serves for crew members, in lieu of the Act’s compensation

remedy and limited right of recovery for “vessel” negligence,

the otherwise available remedies under general maritime law

and the Jones Act. See generally McDermott, Inc. v.

Wilander, 498 U.S. 337, 347 (1991).

2. Respondent Michael Gros sustained a serious back in-

jury on March 1, 1996, in the course of employment for Set-

toon Construction, Inc., aboard one of two Settoon Construc-

tion barges engaged in a pipelaying project on the navigable

waters of the Atchafalaya Basin, within the state of Louisi-

ana. Pet. App. 2, 30-31, 53. The workers’-compensation in-

surer of his payroll employer, Settoon, Inc., paid him com-

pensation (and authorized limited medical attention at its

expense) for some eleven months under the Louisiana Work-

ers’ Compensation Act, La. R.S. §§ 23:1031 et seg. Gros

filed suit in Louisiana state court, asserting causes of action

for maintenance and cure and for damages for negligence

under the Jones Act or on the ground that the barge was “un-

seaworthy” — remedies dependent on his assertion that he

was working as a member of the crew of the pipelaying

barges at the time of the injury. In the alternative, he claimed

damages for vessel negligence under § 5(b) of the Longshore

Act. Gros also filed an administrative claim for benefits un-

der the Longshore Act. Petitioner Settoon contested his

status as a crew member in the tort action, and contested his

status as a “maritime employee” within the coverage of the

Longshore Act (see Longshore Act § 2(3), 33 U.S.C. §

902(3)) with respect to his compensation claim.

OO Ee = ——_

3. Gros’s Longshore Act claim came before a Department

of Labor administrative law judge (“ALJ”) for hearing in De-

cember 2000 (Pet. App. 27), and the ALJ issued a “compen-

sation order” (Longshore Act § 19(e), 33 U.S.C. § 919(e))

awarding compensation and medical benefits under the Act

in April 2001 (Pet. App. 26-65). Settoon contended before

the ALJ that Gros’s injury was not within the Act’s coverage

because, although the injury occurred on navigable waters,

Gros was not “engaged in maritime employment” within the

meaning of Longshore Act § 2(3), 33 U.S.C. § 902(3). Pet.

App. 46.” Even accepting without discussion or analysis the

employer’s focus on the portion of Gros’s work performed

aboard vessels during the entire “duration of his employment

with [Settoon, Inc.],” the ALJ determined that he “spent at

least five to ten percent of his time in . . . covered activities],

a ‘not insubstantial’ amount of his work on navigable waters,

which was neither transient nor fortuitous,” and hence was

“engaged in maritime employment” within § 2(3). Pet. App.

53. Accordingly, after resolving other contested issues in

Gros’s favor, the ALJ awarded continuing compensation for

temporary total disability from the date of the injury (subject

to credit for the compensation paid pursuant to state law) and

medical benefits. Pet. App. 64. At no point in the Longshore

Act proceedings did Settoon assert that, even if Gros’s em-

ployment was “maritime” within the meaning of the Act, still

he was excluded from the Act as a “member of the crew of

[a] vessel,” Longshore Act § 2(3)(G), and the ALJ did not

consider that question.

? Settoon also contested whether Gros had suffered any residual back

condition or consequent disability related to the injury beyond ten months

after the injury, and whether he was entitled to payment of his medical

expenses for treatment by one of his doctors thereafter (Pet. App. 46).

The ALJ found in Gros’s favor on those issues (Pet. App.

54-62), and Settoon did not appeal those findings.

4. Settoon Construction then moved the state trial court for

partial summary judgment dismissing Gros’s crew-member

causes of action, i.e., all his claims except the one for vessel

negligence under Longshore Act § 5(b), based on the ALJ’s

award of Longshore Act benefits. In November 2002, the

court granted the motion, accepting Settoon’s argument that

by virtue of the entry of a formal award of benefits under the

Longshore Act, Gros had “elect[ed]” the Longshore Act rem-

edy io the exclusion of seamen’s remedies otherwise poten-

tialiy available to him (Pet. App. 24), and designated the par-

tial summary judgment “final” for purposes of review. Pet.

App. 12-13.°

On Gros’s appeal, the Louisiana Court of Appeal, Third

Circuit, reversed. Pet. App. 1-11. It described a conflict be-

tween authorities of the federal courts of appeals for the Fifth

and Ninth Circuits on the effect of a formal award under the

Longshore Act on an injured worker’s continued right to seek

remedies available to a crew member, and found the Ninth

Circuit’s reasoning more persuasive. It therefore held that on

grounds of “policy, legislative intent, and the wording of the

Longshore Act,” an award under the Longshore Act does not

per se affect the worker’s right to a determination in a tort

action of his assertion that he was a crew member. Pet. App.

10. The court of appeal further rejected Settoon’s contention

that the ALJ’s findings establish that Gros lacked crew-

member status as a matter of law because he did not spend at

least thirty percent of his work time aboard a vessel or fleet

of vessels:

* Settoon also moved the trial court for summary judgment that,

on the merits, the evidence showed that Gros lacked crew-member

status as a matter of law and that there was no Longshore Act §

5(b) negligence; the trial court separately denied that motion, and

did not declare that judgment “final” for appeal, so it was not re-

viewable in advance of full resolution of the case (La. Code Civ.

Proc. Ann. art. 968).

The [ALJ] specifically stated Gros spent ‘at

‘ least five to ten percent of his time in a cov-

ered activity, which is enough to invoke cov-

erage under the Act.’ [Pet. App. 53] (Empha-

sis added). Gros’[s] ability to prove seaman

status under the Jones Act was not at issue.

Pet. App. 11.

The state supreme court denied Settoon’s application for

certiorari by a six-to-one vote. Pet. App. 66.

REASONS FOR DENIAL OF THE WRIT

I. Although the Issue of Federal Law on which Petitioners

Seek Review Is the Subject of an Intercircuit Conflict

and of an Intracircuit Conflict Between Federal and

State Appellate Courts, This Is Not an Appropriate

Time or Case for Its Resolution.

A. Scope of the Recurring Issue

It is now well-settled that the respective coverages of the

I ongshore Act and the Jones Act are mutually exclusive, be-

cause any worker whose injury is within the scope of the

Longshore Act is generally foreclosed from tort remedies

against the employer, except for that based_on the employer’s

negligence in its capacity as owner or operator of a “vessel”

that is asserted to have caused the injury, Longshore Act §

5(a), (b). E.g., McDermott, Inc. v. Wilander, 498 U.S. 331,

347-48 (1991). It is likewise settled that the operative statu-

tory phrase that defines the applicability of the Jones Act

(and the availability of other “seamen’s remedies”) is “master

or member of the crew of any vessel,” Longshore Act §

2 2(3)(G) — a category that would be included in the Longshore

Act’s general definition of a covered “employee” as one who

is “engaged in maritime employment,” id. § 2(3), but that is

excluded from the definition, and the Act, by the crew-

member exception. E.g., Wilander, supra.

Despite this Court’s recent attention to the question what

legal content should be given to the phrase “member of the

crew of any vessel,” a substantial “twilight zone”? persists in

which it is difficult to predict in advance of the conclusion of

litigation whether a worker injured while working aboard a

vessel is a crew member entitled to “seamen’s” remedies

(generally the remedies at issue here — “maintenance and

cure” and recovery of full compensatory damages based on

Jones Act negligence or “unseaworthiness”) or a non-crew-

member maritime employee restricted to limited workers-—

compensation remedies and Longshore Act § 5(b) negligence

recovery. See generally, e.g., John R. Wagner, Jr., Applica-

bility of Jones Act (46 U.S.C. [App.] 688) to Workers Con-

nected with Operations of Dredges, Drilling Platforms, Der-

ricks, or Similar Special-Purpose Equipment, 92 A.L.R. Fed.

733 (1989 & 2004 Supp.); David W. Robertson, The Su-

preme Court’s Approach to Determining Seaman Status:

Discerning the Law Amid Loose Language and Catch-

phrases, 34 J. Mar. L. & Comm. 547 (2003).

Whenever an admitted, disabling injury to such an “am-

biguous amphibious worker” occurs aboard a vessel owned

* McDermott, Inc. v. Wilander, 498 U.S. 331 (1991); Southwest Ma-

rine, Inc. v. Gizoni, 502 U.S. 81 (1991); Chandris, Inc. v. Latsis, 515 U.S

347 (1995); Harbor Tug & Barge Co. v. Papai, 520 U.S. 548 (1997).

* This Court originally applied this phrase to a range of situations of

constitutional uncertainty about the authority of the states to apply their

workers’-compensation laws to injuries otherwise subject to maritime tort

law. Davis v. Department of Labor & Industries, 317 U.S. 249, 256

(1942); id. at 262 (Stone, J., dissenting). It is here used in its common

sense of an area of uncertainty along the border between two alternatively

applicable bodies of law.

: Judge John R. Brown coined the phrase in Mike Hooks, Inc. v. Pena,

313 F.2d 696, 697 (Sth Cir. 1963), and it has been used frequently since,

particularly by the Fifth Circuit.

ee ee

by the employer, it is clear that the worker is entitled to some |

remedy without proof of fault, intended to be provided with-

out delay. It is not clear, however, whether such entitlement |

is in the form of wages to the end of the contract period as

well as “maintenance and cure” until maximum medical re-

covery is reached (if he or she is a crew member),’ or instead

in the form of periodic benefits for disability and medical

care by the worker’s choice of physician under the Long-

shore Act. It is likewise clear that he or she has a further

right to sue the employer for full compensatory damages |

(subject to credit for the payments previously provided), but

it is not clear what grounds of liability are available — Jones

Act negligence and unseaworthiness (if ultimately deter-

mined to be a crew member) or only ordinary maritime neg-

ligence of the employer in its “vessel” capacity (if found not

to have been a crew member). To compound the complica-

tions, the particular circumstances of the worker and the in-

jury determine which complex of remedies disfavors which

party. The relative values of the various remedies obviously

depend on how likely the differing bases of tort liability are

to be established—and the likely allocation of contributory

fault to the worker. Perhaps less obviously, they also depend

on the stage of the worker’s working life at which the injury

occurs, how long-term the resulting disability is likely to be,

and the prominence of pain and suffering (extreme, long-

term, or both) as an element of the damages that would be

recoverable in tort but would add nothing to an award under

the Longshore Act. In a great many cases, even when tort

liability on one ground or another is clear, the Longshore Act

remedy is the most generous potentially available; a tort re-

covery will be offset entirely against compensation that

would have been payable anyway. In others, the potential

” See generally, e.g., 2 Martin J. Norris, Law of Seamen § 26-3 (Sth ed. |

2003); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-29 \

(4th ed. 2004).

eee

tort recovery far exceeds Longshore Act benefits. Respon-

dent Gros believes his case falls in the second category, par-

ticularly if he is correctly classified as a crew member enti-

tled to the grounds of recovery available to him as such.

The uncertain contours of crew-member status provide fer-

tile ground for machinations by the parties — particularly,

though not exclusively, by employers seeking to “squeeze”

the worker out of access to seamen’s remedies. The Long-

shore Act, like most state workers’-compensation laws, re-

quires an employer aware of a disabling on-the-job injury to

institute periodic compensation for disability, and to author-

ize medical care at its expense, without the need for any de-

mand by the worker, unless it files a “notice of controver-

sion” of his or her rights under the Act, specifying its

grounds. Longshore Act § 14(a), (b), (d), 33 U.S.C. § 914(a),

(b), (d). If the employer is concerned about potential sea-

men’s remedies, it is hardly likely to assert that the worker

has no rights under the Longshore Act because he or she was

working as a crew member; it will usually report the injury as

one covered by that act, and institute payments consistent

with that position. It has long been settled that the worker’s

acceptance of such benefits has no effect on his or her right

to pursue crew members’ remedies. E.g., Southwest Marine,

Inc. v. Gizoni, 502 U.S. 81, 91 (1991). But the employer

may thereafter seek to encourage the worker to file a claim

under the Act by prematurely terminating such benefits, in

the hope that an award in a compensation order under the

Longshore Act will be issued that will somehow foreclose

the crew-member assertion in tort. Cf Simms v. Valley Line

Co., 709 F.2d 409 (5th Cir. 1983).* The employer in the pre-

* The employer in Lewis v. SSA Gulf Terminals, Inc., BRB No. 03-0523

(Ben. Rev. Bd. Apr. 22, 2004) (http://www.dol.gov/brb/cases/Ingshore-

/unpublished/Apr04/03-0523.htm), pet. for review filed, No. 04-60543

(filed June 22, 2004), took another approach: it sought to force an ALJ

adjudication of a claim under the Longshore Act, over the injured

sent case went a step further, denying that the injured

worker’s employment was “maritime” at all, and paying

workers’-compensation benefits only under state law. The

end result was the same: an award under the Longshore Act,

without the employer ever having asserted in the Longshore

Act proceedings that the worker was excluded from the Act

as a “crew member,” or the worker ever having asserted that

he was not, and without any tribunal having considered the

question.

B. The Conflict

Petitioners blatantly overstate their case in contending that

the decision below conflicts with this court’s decision in

Southwest Marine, Inc. v. Gizoni (Pet. 4-8); but it is beyond

cavil that there is a conflict in the lower courts on a question

Gizoni left open: the effect of an injured worker’s pursuit of,

and acceptance of benefits under, an award in a Longshore

Act “compensation order.” The decision below extended that

conflict from one between federal circuits (explicitly between

the Fifth and Ninth Circuits) to one between a federal circuit

and a state appellate court within that circuit.

In Gizoni, a ship-repair worker who spent much of his

time, and was injured, aboard a barge used in his employer’s

shipyard operations “submitted a claim for, and received,

medical and compensation benefits from [the employer] pur-

suant to the Longshore Act,” without a compensation order

worker’s objection that in view of the Fifth Circuit’s rule that a Long-

shore Act award forecloses seamen’s remedies (Sharp, infra) he wanted

to preserve his crew-member contention for presentation to a jury in his

Jones Act action. The ALJ granted the worker’s motion to stay the hear-

ing on his Longshore claim pending the outcome of the Jones Act suit; on

the employer’s appeal from the stay, the Board affirmed (while express-

ing its disagreement with Sharp). The court of appeals has not yet ruled

on its jurisdiction to review the Board’s decision, which is arguably not a

“final order” subject to review, Longshore Act § 21(c), 33 U.S.C. 921(c).

ever having been entered, and thereafter brought an action

under the Jones Act asserting that he was a member of the

barge’s crew. 502 U.S. at 84. Although the Fifth Circuit had

held that, as a matter of law, one working in an occupation

enumerated as “maritime employment” in Longshore Act §

2(3) (such as Gizoni, a “ship repairman” within § 2(3) on any

apparent reading) could not be a crew member, the Ninth

Circuit disagreed, holding that such a worker is entitled to try

to prove the requisite connection to a vessel (or fleet) for

crew-membership status. See id. at 85 n.1. Besides agreeing

with the Ninth Circuit on that issue (id. at 86-89), this Court

unanimously turned aside two procedural arguments against

allowing the worker to get to the jury with his Jones Act

claim. First, it rejected the employer’s argument that the

Longshore Act tribunals should have “primary,” or exclusive

original, jurisdiction to decide questions of coverage under

that Act, including the applicability of the crew-member ex-

clusion (among other reasons, because the Act obviously

does not contemplate such a rule, in that it includes an ex-

plicit provision that time limitations on assertion of a claim

under the Act begin anew upon the denial of a tort remedy on

grounds of Longshore Act exclusivity’). Jd. at 89-91. And

second, in the passage whose meaning and implications have

divided the lower courts, the Court rejected the employer’s

.. . Suggest[ion] that an employee's receipt of bene- —

fits under the Longshore Act should preclude subse-

quent litigation under the Jones Act. To the con-

trary, however, we have ruled that where the

evidence is sufficient to send the threshold question

of seaman status to the jury, it is reversible error to

permit an employer to prove that the worker ac-

cepted Longshore Act benefits while awaiting trial.

Tipton v. Socony Mobil Oil Co., 375 U.S. 34, 37

(1963). It is by now ‘universally accepted’ that an

” Longshore Act § 13(d), 33 U.S.C. § 913(d).

employee who receives voluntary payments under

the Longshore Act without a formal award is not

barred from subsequently seeking relief under the

Jones Act. G. Gilmore & C. Black, Law of Admi- |

ralty 435 (2d ed. 1975); see 4 A. Larson, Workmen's

Compensation Law § 90.51, p. 16-507 (1989) (col-

lecting cases); Simms v. Valley Line Co., 709 F.2d

409, 412 & nn. 3 and 5 (Sth Cir. 1983). This is so,

quite obviously, because the question of coverage

has never actually been litigated. Moreover, the

Longshore Act clearly does not comprehend such a

preclusive effect, as it specifically provides that any

amounts paid to an employee for the same injury,

disability, or death pursuant to the Jones Act shall

be credited against any liability imposed by the

Longshore Act.’ 33 U.S. C. § 903(e). See Gilmore

& Black, supra, at 435.

* For this same reason, equitable estoppel arguments

suggested by amicus Shipbuilders Council of Amer-

ica must fail. Where full compensation credit re-

moves the threat of double recovery, the critical

element of detrimental reliance does not appear. See

Heckler v. Community Health Services of Crawford

County, Inc., 467 U.S. 51, 59 (1984); Lyng v. Payne,

476 U.S. 926, 935 (1986). Argument by amicus

would force injured maritime workers to an election

of remedies we do not believe Congress to have in-

tended.

502 U.S. at 91-92 & n.5.

Shortly thereafter, the Fifth Circuit considered Sharp v.

Johnson Bros., 973 F.2d 423 (1992), cert. denied, 508 U.S.

907 (1993), in which a worker was injured aboard a crane

barge. The employer initiated Longshore Act benefits with- |

out any claim having been filed, but cut them off shortly after

the worker filed an action under the Jones Act; he thereupon

filed a compensation claim, but the employer (despite an-

swering in court that he was not a crew member) took the

unusual step of denying Longshore Act liability on the

ground that he was a crew member. 973 F.2d at 424. When

the district court directed a verdict against him in the tort ac-

tion on grounds that the crane barge was not a “vessel” and

he was not a crew member, the worker pursued reversal of

that judgment, which the Fifth Circuit granted (Sharp v.

Johnson Bros., 917 F.2d 885 (1991)). Meanwhile, however,

back at the Department of Labor, along with the employer

and its Longshore Act insurer, he entered into a settlement of

his claim for Longshore Act benefits and any other claims

against the employer other than those insured by its tort in-

surers, and an ALJ gave the settlement the required approval

in a compensation order."® Jd.

The district court, on remand, again dismissed the Jones

Act action, this time based on the settlement-approval order,

and the worker again appealed. Jd. at 424-25. Describing the

district court’s reasoning in a manner presaging its own, the

court of appeals first indicated that it had found that the ap-

proved settlement “constituted an election of remedies,” but

went on to say:

The district court reasoned that the entry of an order

by the ALJ constituted a finding that the injuries

were compensable under the Longshore Act and that

by seeking, and acquiescing to, the finding, Sharp is

collaterally estopped from contesting Longshore Act

coverage.

Id. at 425.

The Fifth Circuit affirmed. It distinguished Gizoni on the

ground that Sharp had not merely accepted benefits and filed

a claim under the Lon: shore Act, but had secured an order

'° See Longshore Act §§ 8(i), 16, 33 U.S.C. §§ 908(i), 916; 20 C.F.R. §

702.243.

making an award in the Longshore Act proceedings. It did

not in any way address Gizoni’s explanations (quoted in full

at pp. 11-12 supra) that the lack of preclusive effect in that

case “is so, quite obviously, because the question of [crew

membership] has never actually been litigated;” that the one-

remedy theory was contraindicated by Longshore Act §

3(e)’s “credit” provision; and that an equitable-estoppel bar

“would force injured maritime workers to an election of

remedies we do not believe Congress to have intended.” In-

stead, after acknowledging that “[i]t is true that Longshore

Act coverage was never litigated in an adversarial proceed-

ing,” Sharp reasoned, “[t]here is a difference . . . between

saying a plaintiff may pursue only one remedy and declaring

that he may receive only one award.” Jd. at 426, 427. It did

not examine or rely on any body of law relevant to the “elec-

tion of remedies” doctrine, collateral estoppel, or equitable

estoppel, and the opinion leaves it unclear whether it relied

upon any such principle. Instead, it relied on the fact that the

worker had “availed himself of the statutory machinery to

bargain for an award, and he had the full opportunity to argue

for (or against) coverage,” and on its view that it was the

“purpose” of the Longshore Act to “giv[e employers] limited

and predictable liability in exchange for their giving up their

ability to defend tort actions [sic; to avoid any liability by

asserting tort defenses].” Jd. at 426.'' As the court explained

it,

Permitting a Jones Act proceeding after a formal

compensation award here would defeat the purpose

of the Longshore Act, as well as work unfairness,

because, as here, employers often have different in-

surance carriers for workers' compensation claims

"' The Sharp court made no reference to the major qualification that

limits the insured employer’s tort immunity granted by LHWCA § S(a):

that if the employer is also the owner or operator of the vessel on which

the injury occurs, it remains liable for negligence in that capacity (§ 5(b)).

and tort claims, so the compensation insurer, by

guaranteeing a minimum award, necessarily would

reduce the ability of the tort insurer to effect a set-

tlement.

Id. at 427.

Sharp cited no precedent at any level for its result, based

on either a settlement or any other form of Longshore Act

compensation order. No other reported decision appears ever

to have so ruled.”

The Ninth Circuit in particular has gone the other way. In

Figueroa v. Campbell Industries, 45 F.3d 311 (1995), the

injured worker had settled claims under both the Longshore

Act and state compensation law for an injury sustained

aboard his employer’s shipyard tugboat. He then filed an

admiralty action seeking crew members’ remedies (but ac-

knowledging the appropriateness of an “offset” for his com-

pensation recoveries). /d. at 313. A jury found that he was

indeed a crew member, and the employer appealed from the

resulting award of damages. Jd. Without mention of Sharp,”

the court held that its own and this Court’s opinions in Gizoni

? The only other authority on point cited by Petitioners is Anders v.

Ormet, 874 F.Supp. 738 (M.D. La. 1994), Pet. 15. But Anders was de-

cided under the controlling precedent of Sharp. Further, unlike that in the

present case, the ALJ’s award in Anders explicitly found non-crew-

membership, and the court described the issue as atti been litigated

between the parties before the ALJ.

In Roth v. U.S.S. Great Lakes Fleet, Inc., 1993 WL 668784 (D.

Minn. Jun 18, 1993) (No. Civ. 3-91-646), aff'd, 25 F.3d 707 (8th Cir.

1994), the district court dismissed at the summary judgment stage on

grounds that the plaintiff was not a crew member as a matter of law, and

added that based on Sharp the issue was also foreclosed by a settlement

under the Longshore Act; but the court of appeals “affirm[ed] on the for-

mer issue, and d[id] not address the latter,” 25 F.3d at 708.

” Apparently the employer did not cite Sharp to the court. See id. at

316 (“Appellant cites no cases holding otherwise.”).

controlled against the employer’s collateral-estoppel argu-

ment. Part of the court’s opinion proceeds on the question-

able premise that this Court’s resolution of Gizoni meant that

workers who are crew members but also performing jobs ex-

pressly enumerated in the main clause of Longshore Act §

2(3) (longshoring and shipyard workers) are entitled to both

Longshore Act and Jones Act status, with the right to recover

both remedies serially (subject to credit against a later rem-

edy for amounts recovered pursuant to the other). /d. at

315." But the court also relied on an analysis of the limita-

tions on the applicability of issue preclusion under the “col-

lateral estoppel” doctrine, finding that

Courts that have addressed the precise issue of

whether the jurisdictional issue must be actually

litigated for estoppel to apply in this situation have

found that if the jurisdictional issue was not con-

tested and no finding was made at the administrative

level, a plaintiff is not estopped from bringing a

Jones Act claim.

Id. at 316, citing Guidry v. Ocean Drilling & Exploration

Co., 244 F.Supp. 691 (W.D. La. 1965), and Biggs v. Norfolk

Dredging Co., 360 F.2d 360 (4th Cir. 1966). Since no find-

ing on crew-member status had been made in the Longshore

Bs Respondent Gros does not rely on any such theory, which appears to

be contrary to the thrust of Gizoni — that even a worker engaged in long-

shoring or shipyard work may have the requisite connection to a particu-

lar vessel or fleet, whose “mission” is such work, to be a crew member,

and thus excluded from the coverage of the Longshore Act, and is entitled

to an opportunity to show such relationship so as to have access to crew

members’ remedies in tort. That question, however, has no bearing on

this case; neither marine oil and gas work in general nor pipelaying in

particular is among the activities expressly enumerated as parts of “mari-

time employment” within Longshore Act § 2(3), so even under the Figue-

roa reading Gros, if a crew member, was outside of the Longshore Act.

——e ee

awete oe ON anna ald ett

Act proceedings, there was nothing to estop litigation of that

issue in the Jones Act proceedings. /d. at 315-16."

Again in Papai v. Harbor Tug & Barge Co., 67 F.3d 203

(9th Cir. 1995), rev'd on other gr., 520 U.S. 548 (1997),"* the

court denied preclusive effect to an award under the Long-

shore Act. As this Court will remember, the injured worker

there was a “deckhand” hired by the day out of a union hiring

hall to perform a variety of daily assignments aboard harbor

tugs owned by several different operators. Some of these-

daily assignments were sea-going; others, such as that in the

course of which the injury occurred, were confined to main-

tenance work while the tug was at berth. -The-district court

granted summary judgment dismissing his Jones Act and un-

seaworthiness counts, ruling that he lacked crew-member

Status as a matter of law when injured, and he was required to

await resolution of his alternative tort count, for negligence

of the vessel under Longshore Act § 5(b), before obtaining

appellate review of that judgment. He then sought an award

under the Longshore Act. The employer had never asserted

as a defense against Longshore Acct liability the proposition

that, contrary to its position in the tort action (and the success

that position had already enjoyed before the district court),

the worker was excluded from the Act as a crew member;

indeed, it had been paving some benefits under the Act from

the time of the injury forward. 67 F.3d at 205. Nevertheless,

at the hearing convened before the ALJ on other issues (con-

cerning the amount payable under the Act), it asserted that he

> The same rule — no preclusion by a prior compensation award unless

it included a litigated decision on the issue — prevails in the context of the

border between state workers’-compensation laws and the Federal Em-

ployers’ Liability Act, 45 U.S.C. § 51 (the very statute the Jones Act ex-

tends to “seamen”, i.e., the “interstate commerce” inquiry. See generally

32B Am.Jur.2d Federal Employers’ Liability and Compensation Acts §

53. |

'® The decision of this Court is addressed at p. 18 infra.

“may have been a Jones Act seaman”; and despite the fact

that neither party had even asserted a position on the merits

of that question (much less actually litigated it), the ALJ ad-

dressed it. See Pet. App. 34a-35a, Harbor Tug & Barge Co.

v. Papai, 520 U.S. 548 (1997) (No. 95-1621). He “nd that

the issue was not precluded by the district court’s summary

judgment because the ruling was interlocutory and had not

become final, but agreed with the district court that the

claimant-plaintiff was not working as a crew member when

injured. Jd. at 35a n.2, 37a. After resolving the issues that

were litigated, the ALJ entered an award of continuing Long-

shore Act benefits.

The district court found that there was no § 5(b) negli-

gence, and on appeal the worker challenged the district

court’s non-crew-member ruling. The defendant employer

asserted in support of the challenged ruling that the ALJ’s

decision foreclosed relitigation of crew membership, but the

court of appeals rejected that argument. It did not rely on

Figueroa, noting that it had “reached the same result for dif-

ferent reasons.” 67 F.3d at 208 n.6. Instead, it focused on

this Court’s reasoning in Gizoni, the policies that reasoning

implicated, and the support of the Longshore Act § 3(e)

credit provision and scholarly authority cited in Gizoni.

These led it to the conclusion that the litigation of the Long-

shore Act claim to a formal award should not bar litigation of

the crew-member question before the tort tribunal. /d. at

207-08. It relied particularly on two observations: first, that

the parties’ interests on the issue were reversed in the two

proceedings, so as to deprive them of a motive for vigorous

litigation of their purported positions on it in the compensa-

tion tribunal; and second, that — contrary to the purpose of the

Longshore Act to deliver benefits without the delay incident

to litigation except where the worker’s rights under the Act

are genuinely controverted — “imposing such a bar would re-

sult in subjecting to suit an employer who immediately and

voluntarily begins compensation payments while immunizing

from suit an employer who forces his employee to seek com-

pensation through litigation.” /d.

Finally, although neither the court below nor Petitioners

have mentioned it, this Court granted certiorari in Papai to

resolve not only an intercircuit conflict with respect to the

merits of the crew-member test applied by the Ninth Circuit

(which combined the worker’s various assignments for all

three employers who hired him out of his union hiring hall to

work on their harbor tugs, and treated all those tugs as a

“fleet,” in determining whether he bore the necessary rela-

tionship to a fleet of vessels), but also the conflict between

Sharp and Figueroa and Papai on the preclusive effect of an

award under the Longshore Act. Harber Tug & Barge Co. v.

Papai, 520 U.S. 548, 550 (1997). But the majority resolved

the substantive issue against the Ninth Circuit’s multi-

employer “fleet” approach, and hence found the worker to

have been employed as a non-crew-member as a matter of

law on the day of the injury; “as [that ruling] is dispositive of

the case,” the Court explicitly declined to reach the preclu-

sion issue. Jd. The dissenting opinion expressed agreement

with the Ninth Circuit’s view on the preclusion issue, how-

ever, on that court’s Gizoni-based reasoning. Jd. at 563 n.2.

The court below recognized the federal intercircuit conilict

on the issue, and followed the Ninth Circuit’s Papai reasen-

ing. Pet. App. 5-11.

C. Prematurity of Resolution of the Issue Now

Respondent recognizes that the correctness of the decision

below, and the error of Sharp to the contrary, are beside the

point at the present stage, as those circumstances do not af-

fect the need for this Court’s intervention to resolve an exist-

ing conflict on a frequently recurring issue of federal law,

coth between federal circuits and between federal and state

appellate courts within the Fifth Circuit. Neither the present

time nor the present case, however, is opportune for its reso-

lution.

First, this Court may well substantially clarifv the border

between crew-member and Longshore Act status — and thus

limit the importance of the issue on which the conflict exists

— in a case now under consideration. Probably the most sub-

stantial area of the current uncertainty about the border be-

tween the Jones Act and the Longshore Act concerns the

“special-purpose vessels” that may be classified as “work

platforms” that do not constitute “vessels” capable of having

“crews” within the meaning of Longshore Act § 2(3)(G).

The “vessel” status of such workplaces is before the Court in

Stewart v. Dutra Construction Co., No. 03-814 (U.S., cert.

granted Feb. 23, 2004), reviewing 230 F.3d 461 (ist Cir.

2000). after remand, 343 F.3d 10 (2003), scheduled for ar-

gument November 1, 2004. The smaller the area of uncer-

tainty about the scope of crew-member status that survives

the decision of the Court in Stewart, the less significant will

be the existing conflict on the effect of an award under the

Longshore Act on an injured ambiguous worker’s right to a

determination of such status in a judicial tribunal.

Second, neither the apparent view of the Fifth Circuit nor

the view of the Louisiana courts is cast in stone. Most par-

ticularly, the Fifth Circuit’s ruling in Sharp appears to have

been heavily influenced by pique at counsel’s lack of “candor

and respect” in failing to bring the Longshore Act settlement

to the court’s attention when the case was before the court

the first time. See Sharp, 973 F.2d at 427 n.3."" That court

'” The court’s irritation despite the acknowledged fact that, based on

the plain and expressed i tent of parties to the settlement that it not affect

the liabilities at issue in the pending tort action, they “may legitimately

have believed that the Longshore Act settlement was irrelevant to the

Jones Act action,” id., was perhaps greatly amplified by the fact that its

opinion on the first appeal, 917 F.2d 885 (1991), opened a significant

schism in Fifth Circuit precedent on the scope of the “work platform”

has not had the opportunity to reconsider Sharp in a case in

which counsel have been satisfactorily forthright. Nor has it

2ddessed the issue since other courts have reached a con-

trary conclusion and scholarly commentary has condemned

it." Thus, if (as we believe) the Fifth Circuit’s lone decision

holding that an award under the Longshore Act, even by way

of approval of a settlement, without litigation or decision of

the crew-membership issue is wrong, that court may well

correct its own error without the need for this Court’s inter-

vention. At a minimum, any revisitation of the issue by that

court would likely clarify what legal theory or doctrine the

preclusion-by-award rule rests on,

Likewise, the decision below represents binding precedent

only in Louisiana courts within the state’s Third Circuit. If,

as Petitioners contend, the decision is in error, another circuit

of the Louisiana courts of appeal would be free to disagree

with it, setting the stage for correction of the putative error of

the decision below by the Louisiana Supreme Court. Al-

though such action would do nothing to resolve the existing

federal intercircuit conflict, it would eliminate the particu-

larly pressing need to resolve the present infracircuit conflict,

without the need for action by this Court.

Further still, this is not an appropriate case for the Court to

resolve the existing conflict because it does not represent the

full scope of that conflict. The Ninth Circuit has held that

exception to crew membership (see, e.g., Jack L. Allbritton & David W.

Robertson, Seaman Status After Chandris, Inc. v. Latsis, 8 U.S.F. Mar.

L.J. 29, 50 & n. 156, 52-53 (1995)). .

® See Victoria L.C. Holstein, Comment, The Overlap Preclusion Trap

Between the Jones Act and the Longshore and Harbor Workers' Compen-

sation Act, 76 Tul. L. Rev. 783 (2002). See particularly, e.g., id. at 815

(Sharp “is unsupported by traditional common law preclusion principles

and contradicts the Supreme Court’s reasoning in Gizoni, which, at a

minimum, required a finding of nonseaman status [in the Longshore Act

proceedings] to trigger preclusion.”)

even a direct, explicit finding by an ALJ, in proceedings on a

claim under the Longshore Act, that the claimant was not a

crew member does not preclude de novo consideration of that

issue in a tort action. Papai, discussed at pp. 16-17 supra.

There was no such finding in the Longshore Act proceedings

in this case (and see Part II infra). The significant issue that

was unnecessary to address in Gizoni (because the crew-

member issue “ha[d] never actually been litigated” in Long-

shore Act proceedings in that case), and that was before the

Court but left unresolved in Papai, is whether a finding on

the same issue in Longshore Act proceedings has the neces-

sary “finality” in the Longshore Act’s own scheme, and

enough indicia of a reliable full and fair litigation of the issue

by parties with a sufficient stake in its outcome, to be given

preclusive effect in subsequent judicial proceedings, under

general principles of “administrative estoppel” and traditional

“collateral estoppel.””” This case does not present that issue.

Affirmance of the decision below in the present case by this

Court could readily be based on the ground that here, as in

Gizoni, the crew-memier issue “has never actually been liti-

gated,” so there is no finding on the relevant issue that could

be given issue-preclusive effect even if ordinary administra-

tive-estoppel principles should govern. This would correct

the aberrant Fifth Circuit rule in Sharp, which can only rest

on some sort of “election of remedies” theory that is plainly

* See generally Astoria Fed. Sav. & Loan Ass’n v, Solimino, 501 U.S.

104 (1991); Longshore Act § 22, 33 U.S.C. § 922 (findings of fact in a

compensation order under the Longshore Act are subject to change,

throughout the term of an award, or on motion made within a year after a

last payment or a denial of the claim, for mere “mistake” — even based

“merely [on] further reflection on the evidence initially submitted,”

O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 256 (1971));

see also Restatement (Second) of Judgments § 28(5)(c), at 273-274

(1982) (issue preclusion is inappropriate where the party to be precluded

did not have an adequate incentive in the initial action to litigate vigor-

ously his present position).

inconsistent with the reasoning of Gizoni (502 U.S. at 92

n.5). But that would leave unresolved the further important

dimension of the existing conflict, as represented by the

Ninth Circuit’s decision in Papai: whether an explicit non-

crew-member finding in Longshore Act proceedings has is-

sue-preclusive effect.

Finally, although the ruling below, that Gros’s Longshore

Act award does not foreclose him from continuing to contend

in his tort action that he was a crew member when injured, is

“final” in the sense that that proposition of federal law will

not be further considered by the state courts in his case, it

may turn out not to have any effect on the ultimate disposi-

tion of his crew-member action. In the trial-court proceed-

ings that will follow on remand (either in the absence of in-

tervention by this Court or in the event the Court affirms the

court of appeal’s ruling), any of several possible outcomes

could moot the preclusion issue in this case. First, a jury

might find that Gros was not a crew member. And second,

regardless of how it rules on that issue, the jury might find

that his injury resulted from ordinary maritime negligence of

Settoon Construction in its capacity as owner and operator of

the pipelaying vessel, entitling Gros to recover the same

damages under Longshore Act§ 5(b) as a non-crew-member

or under the Jones Act or general maritime law as a crew

member. In the event of any such outcome, the issue on

which Petitioners seek this Court’s present review would

have no practical effect, beyond presentation of the crew-

member status issue for determination in the trial court. Un-

der such circumstances, although tnis Court has authority to

grant review at the present juncture, it should allow this case

to go forward to conclusion. If, upon final disposition, Peti-

tioners are adversely affected by the ruling below — i.e., if the

jury has found that Gros was a crew member, and awarded

damages under a Jones Act or unseaworthiness standard but

not on a maritime-common-law negligence basis —, and if the

issue-preclusion question remains in conflict in the lower

courts at that time, this case would be in a far better posture

for this Court’s attention than it is now.

II. Petitioners Misstate the ALJ’s Findings in Contend-

ing that They Establish that as a Matter of Law Gros

Could Not Have Been a Crew Member.

Petitioners purport to present a second question for the

Court’s consideration:

Whether a finding of fact by an ALJ for the De-

partment of Labor which determines that a long-

shoreman spent 5-10% of his relevant work history

on navigable waters precludes a claimant from re-

litigating this issue in a subsequent proceeding

based on the Doctrine of Collateral Estoppel.

Pet. i. But no such question can be presented by this case, for

the ALJ did not make the stated finding, and even if he had it

would not foreclose crew-member status because the “rele-

vant work history” would be markedly different for purposes

of crew membership than it was in the context of whether

Gros’s employment was “maritime” within the Longshore

Act.

Petitioners begin their argument directed to this point (Pet.

13-17) by quoting accurately the finding of the ALJ, based

on examination of Gros’s entire course of work over the

years for Settoon, primarily as a “vacuum truck driver,” that

Gros spent “at least five to ten percent of his time in a cov-

ered activity, a ‘not insubstantial’ amount of his work on

navigable waters, which was neither transient nor fortuitous.”

Pet. App. 53, quoted, Pet. 13 (emphasis added). Again, no

one ever asserted in the Longshore Act proceeding that Gros

was excluded from the Act as a crew member; the ALJ’s

finding was made for purposes of the determination whether

Gros’s employment was “maritime” so as to be within the

Longshore Act or non-maritime so as to be within Louisiana

compensation law. But Petitioners then premise their argu-

ment on the assertion that the ALJ made “a factual determi-

nation . . . that [Gros] spent somewhere between 5-10% of his

time working on a vessel.” Pet. 14. Indeed, two pages later

this misstatement has grown a pair of quotation marks and a

purported citation (and propelled Gros overboard): the ALJ

“made a specific finding of fact that Mr. Gros ‘spent some-

where between 5-10% of his time in navigable waters’.

(App. 53).” Pet. 16 (emphasis added). Plainly, the ALJ

made no such finding. Cf. S. Ct. Rule 14.4.

The legal premise of Petitioners’ collateral-estoppel con-

tention is no more valid than its factual premise. It submits

that under Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), as a

matter of law a worker cannot have the “substantial connec-

tion” to a vessel (or fleet under common ownership or con-

trol) necessary for crew membership if he “spends less than

approximately thirty percent . . . of his time” aboard. Pet. 14.

But Chandris made clear, and Papai emphasized, that the

worker’s entire course of assignments during his or her full

tenure with the employer may not be the appropriate frame of

reference, and that the thirty-percent “rule of thumb” would

be inappropriate in some cases, particularly in the event of a

new assignment with different duties:

[W]e see no reason to limit the seaman status in-

quiry ... exclusively to an examination of the overall

course of a worker's service with a particular em-

ployer. ... Ifa maritime employee receives a new

work assignment in which his essential duties are

changed, he is entitled to have the assessment of the

substantiality of his vessel-related work made on the

basis of his activities in his new position.

Chandris, 515 U.S. at 371-372. As the Court explained in

Papai, this meant that “the employee's prior work history

with a particular employer may not affect the seaman inquiry

if the employee was injured on a new assignment with th{at]

employer, an assignment with different ‘essential duties’

from his previous ones.” 520 U.S. at 556 (emphasis added).

Obviously the determination in the trial court whether Gros

was working as a member of the crew of the pipelaying barge

at the time of his injury is likely to turn, under these authori-

ties, on whether he was working for a different “particular

employer,” or at least was on a different “assignment,” while

“lent” by Settoon, for whom he had worked primarily as a

vacuum-truck driver — sometimes being ferried aboard a

barge to oil- and gas-well sites but mostly driving to well

sites ashore — to Settoon Construction to lay pipe aboard a

barge, an entirely “sea-based” job in the sense that it was per-

formed aboard a vessel away from shore. The merits of that

question are, of course, far from being before this Court for

any consideration; but it is critically significant that the ques-

tion is an entirely different one from that addressed by the

ALJ, for purposes of the Longshore Act, without any atten-

tion to the question of the appropriate timeframe (nor any

need for such consideration, since even on the broadest pos-

sible consideration Gros’s cumulative presence aboard ves-

sels was “not insubstantial,” Pet. App. 53). The basic facts

found by the ALJ — which are not, in fact, in any dispute —

may well establish that in his work as a vacuum-truck driver,

even while he and his truck were en route on a barge to ma-

rine wells, he was not a member of the barge’s crew. But he

was working for a different employer, with entirely different

duties, when injured, a fact with no Longshore Act “maritime

employment” consequences but of potentially determinative

importance to the crew-member question.

Petitioners’ contention that the Court should address in this

case whether an ALJ’s actual findings of basic fact have is-

sue-preclusive effect is thus based on incorrect factual and

legal premises. The ALJ did not make the finding Petitioners

assert, and made no findings “on the same issue” as those

relevant to Gros’s crew-member status — i.e., on his relation-

ship to the Settoon Construction pipelaying barge during the

tenure of his employment with that company on the pipelay-

ing job, and whether that was a relevant “new assignment”

within the meaning of this Court’s Jones Act authorities.

CONCLUSION

The writ of certiorari should be denied.

Respectfully submitted,