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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH
CIRCUIT
______________
MOBIL MINING & MINERALS,
and
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA,
Petitioners
v.
DAVID R. NIXSON,
and
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
Respondents
______________
On Petition for Review of a Final
Order
of the Benefits Review Board
______________
BRIEF FOR THE DIRECTOR, OWCP,
RESPONDENT
______________
HENRY L. SOLANO
Solicitor of Labor
CAROL A. DE DEO
Associate Solicitor
for Employee
Benefits
SAMUEL J. OSHINSKY
Counsel for Longshore
LAURA J. STOMSKI
U.S. Department of Labor
Office of
the Solicitor/S4325
200 Constitution Ave., N.W.
Washington, D.C. 20210
(202) 219-4450 x105
Attorneys for the Director, OWCP
STATEMENT OF ORAL ARGUMENT
This case involves an interpretation and application of the Court’s
ruling in Texports Stevedore Co. v. Winchester, 632 F.2d 504 (5th Cir.
1980)(en banc), cert. denied, 452 U.S. 905 (1981). The Director,
OWCP believes that oral argument would assist the Court in deciding the case.
1
TABLE OF CONTENTS
Statement of Oral Argument
...........................................................................i
Table of Authorities
......................................................................................iv
Statement of Jurisdiction
...............................................................................1
Issue Presented
...........................................................................................2
Statement of the Case
..................................................................................3
i Course of Proceedings and disposition in court below
.........................................3
ii Statement of the facts
...............................................................................3
Summary of the Argument
.............................................................................5
Argument:
THE BENEFITS REVIEW BOARD PROPERLY FOUND THAT MOBIL’S ENTIRE
MANUFACTURING FACILITY, LOCATED ADJACENT TO THE HOUSTON SHIPPING CHANNEL, WHICH
REGULARLY UTILIZED THE CHANNEL IN RECEIVING RAW MATERIAL AND SHIPPING FINISHED
PRODUCTS BY VESSELS, WAS A COVERED ADJOINING AREA CUSTOMARILLY USED IN LOADING
AND UNLOADING A VESSEL UNDER LHWCA § 3(a)
...................................................10
A Standard of Review
.....................................................................................................10
B Judicial Deference
....................................................................................11
C The Statutory Terms
................................................................................12
1. Adjoining
...............................................................................................18
2. Area
.....................................................................................................19
2
Conclusion
................................................................................................28
Certificate of Compliance
Addendum
Certificate of Service
3
TABLE OF AUTHORITIES
FEDERAL CASES
Alford v. American Bridge Div.,
642 F.2d 807 (5th Cir. 1981)
......................................................................26
American Ship Building Co. v. Director, OWCP,
865 F.2d 727
(6th Cir 1989)
.......................................................................11
Boudreaux v. American Workover, Inc.
680 F.2d 1034 (5th Cir.
1982) (en banc), cert. denied, 459 U.S. 1170
(1983)
...................................................................................................11
Brady-Hamilton Stevedore Co. v. Herron,
568 F.2d 137 (1978)
................................................................................15
Bunol v. George Engine Co.,
996 F.2d 67 (5th Cir. 1993)
.......................................................................10
Chemical Manufacturers Ass’n v. NRDC,
470 U.S. 116
(1985)
................................................................................12
Chesapeake & Ohio Railway Co. v. Schwalb,
493 U.S. 40
(1989)
..............................................................................8,
21
Chevron U.S.A., Inc. v. NRDC,
467 U.S. 837 (1984)
................................................................................12
Diamond M. Drilling Co. v. Marshall,
577 F.2d 1003 (5th Cir.
1978) ...................................................................10
Director v. General Dynamics Corp. (Bergeron),
982 F.2d 790
(2d Cir. 790)
.......................................................................11
4
Director, OWCP v. Detroit Harbor Terminals, Inc.,
850 F.2d
283, 286-7 (6th Cir. 1988)
.........................................................11
Estate of Cowart v. Nicklos Drilling Co.,
505 U.S. 469 (1992)
..............................................................................16
Fleischmann v. Director, OWCP,
137 F.3d 131, 138-9 (2d Cir),
cert. denied, 119 S. Ct. 444 (1998) .................14
Gavranovic v. Mobil Mining & Minerals,
-- BRBS –
(1999) No. 98-741 ...........................................4, 5, 27, Addendum
Hurston v. Director, OWCP,
989 F.2d 1547 (9th Cir. 1993)
.................................................................14
Ingalls Shipbuilding, Inc. v. Director, OWCP (Yates),
519
U.S. 248 (1997)
..............................................................................16
Mallot & Peterson and Industrial Indemnity Co. v. Director,
OWCP,
98 F.3d 1170 (9th Cir.1996)
....................................................................11
Newport News Shipbuilding & Dry Dock Co. v. Howard,
904
F.2d 206 (4th Cir. 1990)
...................................................................11
Northeast Marine Terminal Co. v. Caputo,
432 U.S. 249 (1977)
.....................................................................8, 14, 20
Odom Construction Co. v. United States Department of Labor,
622 F.2d 110 (5th Cir. 1980), cert. denied, 450 U.S. 966 (1981)
....................10
Potomac Electric Power Co. v. Director, OWCP,
449 U.S. 268
(1980)
..............................................................................11
Sea-Land v. Rock,
953 F.2d 56 (3d Cir. 1992)
......................................................................11
Sidwell v. Express Container Services,
71 F.3d 1134 (4th Cir.),
cert. denied, 518 U.S. 1027 (1997) .................7, 15, 24
5
Sisson v. Davis & Sons, Inc.,
131 F.3d 555 (5th Cir.
1998) ............................................................6, 15, 17
Stroup v. Bayou Steel Corp.,
32 BRBS 151 (1998)
.................................................................................27
Texports Stevedore Co. v. Director, OWCP (Maples),
931 F.2d
331 (5th Cir. 1991)
.....................................................................11
Texports Stevedore Co. v. Winchester,
632 F.2d 504 (5th Cir.
1980)(en banc),
cert. denied, 452 U.S. 905 (1981)
........................................................passim
Trotti & Thompson v. Crawford,
631 F.2d 1214 (5th Cir.
1980) ....................................................................14
FEDERAL STATUTES
§ 2(3)
...................................................................................................12
§ 3(a)
............................................................................................
passim
§ 19(d)
...................................................................................................1
§ 21(b)(3)
..........................................................................................2,
10
§ 21(c)
...................................................................................................2
§ 33(g)
..................................................................................................16
MISCELLANEOUS
LHWCA Program Memorandum No. 58, Guidelines for Determination of
Coverage of Claims Under Amended Longshoremen's Act, (Aug. 10, 1977)
...................17,Addendum B
6
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH
CIRCUIT
___________
No. 99-60273
___________
MOBIL MINING & MINERALS,
and
Insurance Company of the State of Pennsylvania
Petitioners
v.
DAVID R. NIXSON,
and
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents
_________________
On Petition for Review of a Final
Order
Of the Benefits Review Board
_________________
BRIEF FOR RESPONDENT, DIRECTOR, OWCP
__________________
STATEMENT OF JURISDICTION
The statutory basis for the
administrative law judge's (hereinafter "ALJ") subject matter jurisdiction was
§ 19(d) of the Longshore and Harbor Workers' Compensation Act ("LHWCA"),
33 U.S.C. § 919(d). Record on Appeal ("Rec") at C. The ALJ's determination
was reviewed by the Benefits Review Board ("Board") pursuant to LHWCA §
21(b)(3). 33
U.S.C. § 921(b)(3). Rec at B. Following the Board's
final order, issued on March 3, 1999, Mobil Mining and Minerals ("Mobil" or
"employer") filed its Petition for Review of the Board's decision with this
Court on April 28, 1999, within the sixty days allowed by 33 U.S.C. §
921(c). Nixson's injury occurred in Pasadena, Texas, within this Court's
territorial jurisdiction. Petitioner's brief ("Pet. Br.") at 2. Thus, the Court
has jurisdiction to hear this case.
ISSUE PRESENTED
Whether the employer's manufacturing facility,
(including the rail line where the claimant was injured), located adjacent to
the Houston Ship Channel, which, in the regular and systematic course of
business, utilized the channel to both receive raw material and ship finished
products by vessels, was a covered maritime situs because it was an area
adjoining navigable waters, "customarily used in loading [and] unloading . . .
a vessel" under 33 U.S.C. § 903(a) of the Longshore and Harbor Workers'
Compensation Act.
2
STATEMENT OF THE CASE
i Course of Proceedings and disposition in court below
This case arose upon the filing
of a claim for workers' compensation benefits under the LHWCA, by the claimant,
David R. Nixson ("claimant"), against his employer, Mobil. A hearing was held
before ALJ Lee J. Romero, Jr., in Houston, Texas, on September 22, 1997. Rec.
at C1. Following the hearing, ALJ Romero's Decision and Order, awarding Nixson
benefits, was filed by the district director on March 18, 1998.
Mobil sought administrative
review of ALJ Romero's decision by the Benefits Review Board ("Board"), which
affirmed the award in a decision issued March 3, 1999. Rec at B. Mobil then
filed its appeal of the Board's ruling with this Court.
ii Statement of facts
David Nixson sustained a
work-related injury on January 16, 1994, that left him permanently partially
disabled as a result of the 100% impairment of his arm. Rec. at C2-3, 19. At
the time of his injury, Nixson worked for Mobil as an "A Operator," unloading
sulfuric acid and ammonia barges, and operating a marine loader, a buhler, used
to unload rock barges, a diesel locomotive, and an overhead crane. Id.
at 9. At the time of his injury, he
was assigned to the locomotive crew moving rail cars into
position for loading. Id. at 8. Nixson was injured at the "rail car and
track area" while attempting to couple cars together. Id. at 9.
The plant was located on the
Houston Ship Channel, and both received raw materials and shipped some of its
finished product from vessels at its docks. Id. at 14. The ALJ, in
finding that Mobil's manufacturing plant was a covered "adjoining area" and a
maritime situs, reasoned that the "facility is in the vicinity of navigable
waters and is used to load and unload vessels." Id. It was also
uncontested that as much as 50% of Nixson's duties involved maritime loading
and unloading, which established his status as a maritime employee. Id.
at 16.
The Board affirmed the ALJ's
award of benefits, and, in particular, his finding that Nixson's injury
occurred upon a covered maritime situs. Incorporating its decision in
Gavranovic v. Mobil Mining & Minerals, -- BRBS - (1999) No. 98-741,
involving the same facility, the Board rejected Mobil's argument that the rail
line where Nixson was injured was not an
4
"adjoining area." Attached as Addendum A at 3.1
Instead, based on the controlling authority of Texports Stevedore Co. v.
Winchester, 632 F.2d 504 (5th Cir.)(en banc), cert. denied, 452 U.S.
905 (1981), the Board held that Mobil's "entire facility constitutes a covered
situs under the Act." Id. Mobil filed its appeal of the Board's ruling
to this Court. The Director joins the claimant in arguing that the Board's
decision should be affirmed.
SUMMARY OF THE ARGUMENT
Claimant Nixson was injured while
in the course of his employment as an "A Operator" for Mobil, a fertilizer
manufacturing plant located along the Houston Ship Channel. Mobil challenges
the Board's decision, which affirmed the ALJ's finding that Nixson's injury was
covered under the LHWCA, and that, in particular, the employer's facility
constituted a covered maritime situs; a statutory area adjoining navigable
waters customarily used for maritime purposes. In reaching their respective
conclusions, both the ALJ and Board relied on this Court's decision in
Texports Stevedore Co. v. Winchester, 632 F.2d 504 (5th Cir. 1980)(en
banc), cert. denied, 452 U.S. 905 (1981). In Winchester, the Court
defined
_____________________
1In Gavranovic v. Mobil Mining &
Minerals, RE at B, the Board found that Mobil's facility is adjacent to
navigable waters and that "significant maritime activity (loading and
5
"adjoining" in broad geographic terms as "close to" or
"neighboring" navigable waters, specifically rejecting a requirement of
absolute contiguity. Id. at 514. The Winchester Court also held
that the perimeter of an "area" is defined by its maritime function, and that
the specific location of an injury need not be customarily used for maritime
purposes so long as the overall area was so customarily used. 632 F.2d at 515.
The Court contemplated that an entire waterfront area, encompassing well beyond
an employer's facility, could constitute an "adjoining area." Id. See also
Sisson v. Davis & Sons, Inc., 131 F.3d 555, 557 (5th Cir. 1998)(Court
reaffirmed Winchester).
Under Winchester, as both
the ALJ and Board found, Mobil's facility was a covered "adjoining area." The
facility was located immediately adjacent to the Houston Shipping Channel and
Mobil used its maritime location in the regular and systematic operation of its
business, both unloading raw materials from vessels as well as shipping a
significant portion of its finished products by vessels from its docks. That
Nixson's injury occurred on the rail line located within Mobil's facility was
irrelevant. Under Winchester, coverage extended to Mobil's entire facility
because of
______________________________________________________________________
unloading) occurs on the docks at employer's facility."
Addendum A.
6
both its geographic nexus, that it was adjacent to the
navigable waters of the Houston Ship Channel, and because functionally, the
facility was regularly engaged in maritime shipping from its docks.
Mobil argues that
Winchester is no longer good law, having been undermined by subsequent
Supreme Court authority that directs that the plain language of a statute is
controlling. Mobil concludes that under the plain statutory language of §
3(a), and consistent with the Fourth Circuit's decision in Sidwell v.
Express Container Services, 71 F.3d 1134 (4th Cir.), cert. denied,
518 U.S. 1027 (1997), the employer's entire facility cannot constitute a
covered "adjoining area" because it was not a discreet locale as are the other
enumerated situses. Moreover, Mobil asserts that the rail line where Nixson was
injured does not qualify as a covered adjoining area since it was not
customarily used for maritime purposes and did not touch navigable water. Pet.
Br. at 10.
The Court should reject Mobil's
arguments as none of the Supreme Court authority it relies upon addresses the
parameters of § 3(a). The Supreme Court's general admonishment to follow
the plain language of the LHWCA where appropriate does not provide this panel
with the authority to overturn this circuit's established en banc authority.
Moreover, as the Court
7
found in Winchester, the statutory terms are not
plain or unambiguous and must, therefore, be interpreted within the context of
the statute and to effectuate the Act's remedial purpose. 632 F.2d at 514.
In any event, Mobil's statutory
construction argument that its facility is not a covered "area" because it is
not a discreet structure, in line with the terms preceding it in § 3(a) is
undermined by the word "terminal," appearing in § 3(a), which necessarily
encompasses substantial acreage, often including specific work areas, such as
piers and wharves, as well as rail lines. See Northeast Marine Terminal Co.
v. Caputo, 432 U.S. 249 (1977); Chesapeake & Ohio Railway Co. v.
Schwalb, 493 U.S. 40 (1989).
Mobil argues that even under
Winchester, the specific site of injury must satisfy the situs
requirement, which the rail line area fails to do, having no maritime nexus,
nor adjoining navigable water. This Court in Winchester, however,
specifically rejected the argument advanced by Mobil here, that the actual
location where the injury occurred must be customarily used for maritime
activity, and held that the boundaries of an area are "defined by function,"
recognizing the significance of the overall character of the area. 632 F.2d at
515. In fact, the Court clearly contemplated that a covered "adjoining area"
could extend well beyond a single employer's
8
facility, specifically noting that fence-lines and local
designations are inconclusive. Id.
The Board's holding that the
employer's facility (including the rail line) where Nixson was injured adjoined
navigable water is consistent with the Winchester Court's construction of the
term "adjoining area," both because of the facility's geographic nexus,
adjacent to the Houston Ship Channel, and because of its functional nexus,
regularly engaged in maritime shipping. Thus, the Court should affirm the
Board's decision that Mobil's entire facility, including its rail line, is a
covered adjoining area.
9
ARGUMENT
THE BENEFITS REVIEW BOARD PROPERLY FOUND THAT MOBIL'S
ENTIRE MANUFACTURING FACILITY, LOCATED ADJACENT TO THE HOUSTON SHIPPING
CHANNEL, WHICH REGULARLY UTILIZED THE CHANNEL IN RECEIVING RAW MATERIAL AND
SHIPPING FINISHED PRODUCTS BY VESSELS, WAS A COVERED ADJOINING AREA
CUSTOMARILLY USED IN LOADING AND UNLOADING A VESSEL UNDER LHWCA § 3(a).
A. Standard of Review
Courts review decisions of the
Benefits Review Board and the district court for errors of law and for
adherence to the substantial evidence standard that governs the Board's review
of ALJ's factual determinations. 33 U.S.C. § 921(b)(3); Odom
Construction Co. v. United States Department of Labor, 622 F.2d 110, 115
(5th Cir. 1980), cert. denied, 450 U.S. 966 (1981); Diamond M.
Drilling Co. v. Marshall, 577 F.2d 1003, 1005 (5th Cir. 1978). Questions of
law are subject to de novo review. Bunol v. George Engine Co., 996 F.2d
67, 68 (5th Cir. 1993). The issue presented in this case, whether Mobil
Mining's entire facility is a covered maritime situs, is a mixed question of
law and fact, but subject to this Court's de novo review since the relevant
facts are undisputed.
10
B. Judicial Deference
The Fifth Circuit, within whose
jurisdiction this case arises, has expressly acknowledged that the Director is
the administrator of the LHWCA and that his views are thus entitled to
deference on questions of interpretation of the LHWCA. Texports Stevedore
Co. v. Director, OWCP (Maples), 931 F.2d 331 (5th Cir. 1991); Boudreaux
v. American Workover, Inc. 680 F.2d 1034, 1046 & n.23 (5th Cir. 1982)
(en banc), cert. denied, 459 U.S. 1170 (1983).2
Conversely, the Benefits Review Board's views on the proper construction of
terms of the LHWCA are entitled to no special deference, since the Board does
not "administer" the LHWCA. Potomac Electric Power Co. v. Director,
OWCP, 449 U.S. 268, 278 n.18 (1980).
Thus, although the courts remain
the final authorities on questions of statutory construction, where the
statutory or regulatory terms are susceptible to more than one reasonable
interpretation, the Director's constructions of the LHWCA, and articulations of
administrative policy,
_____________________
2Other courts of appeals with the most
substantial LHWCA dockets have also expressly recognized the deference due the
Director's views on the applicable LHWCA law. E.g. Mallot & Peterson and
Industrial Indemnity Co. v. Director, OWCP, 98 F.3d 1170 (9th Cir.1996);
Newport News Shipbuilding & Dry Dock Co. v. Howard, 904 F.2d 206,
208-9, 210-11 (4th Cir. 1990); Director v. General Dynamics Corp.
(Bergeron), 982 F.2d 790 (2d Cir. 790); Contra Sea-Land v. Rock, 953
F.2d 56 (3d Cir. 1992); American Ship Building
11
should be accepted as controlling law unless they are
unreasonable or contrary to the purposes of the statute or to clearly expressed
legislative intent on the point in issue. See generally, e.g., Chevron
U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-5 & nn. 9, 11 (1984);
Chemical Manufacturers Ass'n v. NRDC, 470 U.S. 116, 125-6 (1985). In
this case, the Director contends that the statutory term, "adjoining area"
found in LHWCA § 3(a), encompasses the employer's entire facility,
including the rail line where the claimant was injured, and that the Board
properly held that this location satisfied the maritime situs requirement. To
the extent this Court finds any ambiguity in the statutory term "adjoining
area," the Court should defer to the Director's reasonable construction.
C. The Statutory Terms
The Longshore and Harbor Workers'
Compensation Act ("LHWCA" or "Act") provides compensation to covered maritime
employees for work-related disabilities, or to their survivors where the injury
causes death. 33 U.S.C. §§ 908; 909. Section 2(3), 33 U.S.C. §
902(3), which defines an
__________________________________________________________________
Co. v. Director, OWCP, 865 F.2d 727 (6th Cir 1989)
(citing Director, OWCP v. Detroit Harbor Terminals, Inc., 850 F.2d 283,
286-7 (6th Cir. 1988).
12
"employee," establishes an occupational or "status"
requirement.3 LHWCA § 3(a), at issue in this case, establishes
a geographical or "situs" requirement for coverage under the Act. Accordingly,
an injured worker must satisfy both the maritime situs and status requirements
for coverage under the Act.
Section 3(a) states that
disability or death is only compensable 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, marine railway, or other adjoining area customarily
used by an employer in loading, unloading, repairing, dismantling or building a
vessel.)
(Emphasis added.)
The catch-all term "adjoining
area" has both geographical and functional components. The location must
"adjoin" navigable waters, and it must also be "customarily used" for a
specified maritime purpose.4 The
_____________________
3Section 2(3) of the Act defines an employee,
with certain enumerated exceptions, 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
shipbreaker." 33 U.S.C. 902(3). The ALJ found, and the Board affirmed, over the
employer's objection, that Nixson was a covered maritime employee. Rec. at B-3.
The employer no longer disputes those rulings.
4Because only an "other adjoining area" is
qualified so as to require a functional relationship to maritime activity, the
courts have concluded that only the catch-all location must be "customarily
used" for the specified purposes; thus, the enumerated locations, "pier, wharf,
dry dock . . ." must meet only the geographical component of the situs
requirement. See Fleischmann v. Director, OWCP, 137 F.3d 131, 138-9 (2d
Cir), cert. denied, 119 S. Ct. 444 (1998); Hurston v. Director,
OWCP, 989 F.2d 1547, 1549-50 (9th
13
employer's argument that Nixson's injury did not occur upon
a covered situs is twofold: the legally relevant "area" under § 3(a), the
rail car area, was not physically contiguous to and thus did not "adjoin"
navigable waters, nor was the rail car area an "area customarily used" for
maritime purposes.
This Court fully considered the
parameters of the term "adjoining area" in Texports Stevedore Co. v.
Winchester, 632 F.2d 504 (5th Cir. 1980)(en banc), cert.
denied, 452 U.S. 905 (1981), rejecting both prongs of the construction of
the terms urged by the employer in this case. The Court defined "adjoining" in
broad geographic terms as "close to" or "neighboring" navigable waters,
specifically rejecting a requirement of absolute contiguity. Id. at 514;
See also Sisson v. Davis & Sons, Inc., 131 F.3d 555, 557 (5th Cir.
1998); Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137 (1978)(gear
locker located ½ mile from navigable water was held a covered adjoining
area).5 The Winchester Court also held
________________________________________________________________
Cir. 1993). See also Northeast Marine Terminal Co. v.
Caputo, 432 U.S. 249, 280 (1977) ("it is not at all clear that the phrase
'customarily used' was intended to modify more than the immediately preceding
phrase 'other areas'"); Trotti & Thompson v. Crawford, 631 F.2d
1214, 1219 (5th Cir. 1980) ("Congress now expressly prescribes that situs is
satisfied for injuries occurring upon any pier adjoining navigable waters.")
5The Court in Herron identified four
factors that "among others" should be considered in determining whether a
location is a covered "adjoining area": (1) the particular suitability
14
that the specific location of injury need not be
customarily used for maritime purposes so long as the overall area - which the
Court clearly contemplated could encompass well beyond an entire facility -was
so customarily used.
The employer appears to concede
that its statutory construction is contrary to this Court's Winchester
decision, but argues that Winchester is no longer good law, having been
undermined by later Supreme Court precedent. Mobil states that recent Supreme
Court directives require a court to construe the Act's terms according to their
plain language. Pet. Br. at 6-8. Mobil concludes that under the plain statutory
language of § 3(a), and in line with the Fourth Circuit's decision in
Sidwell v. Express Container Services, 71 F.3d 1134 (4th Cir.), cert.
denied, 518 U.S. 1027 (1997), the employer's entire facility cannot
constitute a covered "adjoining area" because it is not a discrete locale.
Moreover, Mobil avers that the rail line where Nixson was injured does not
qualify as a covered adjoining area since it was not customarily used for
maritime purposes and did not touch navigable water. Pet. Br. at 10.
______________________________________________________________________
of the site for the maritime uses referred to in the
statute; (2) whether adjoining properties are devoted primarily to maritime
uses; (3) the proximity of the site to the waterway; and (4) whether the site
is as close to the waterway as is feasible given all other circumstances. 558
F.2d at 141.
15
As discussed more fully below,
this Court correctly concluded in Winchester that the term "adjoining area"
does not have a single, ordinary meaning and consequently should be given a
liberal construction in conformance with the context in which it is placed, and
the remedial purpose of the Act. Under Winchester, the ALJ correctly found, and
the Board affirmed, that the employer's facility regularly utilized its
location adjoining navigable waters in the systematic loading and unloading of
vessels and, therefore, the entire facility was a covered situs.
First, none of the Supreme Court
authority upon which the employer relies touches on the statutory construction
of § 3(a).6 Instead, the employer bases its argument only on
the Court's general admonishment to follow the plain language of the LHWCA
where appropriate. The suggestion that the Supreme Court's more recent
reference to the long established and unexceptional mandate to "follow the
plain language" could constitute "intervening Supreme Court precedent"
justifying one panel's re-
_____________________
6Estate of Cowart v. Nicklos Drilling
Co., 505 U.S. 469 (1992) (Under the plain language of LHWCA § 33(g), a
worker becomes "person entitled to compensation," when he has a vested right to
compensation); Ingalls Shipbuilding, Inc. v. Director, OWCP (Yates), 519
U.S. 248 (1997)(Under the plain language of LHWCA § 33(g), spouse of
injured worker was not, prior to the death of the worker, a "person entitled to
compensation," because she had no vested right to LHWCA compensation.)
16
examination of specific and established en banc circuit
court authority is tenuous at best.
Moreover, subsequent to the
Supreme Court authority upon which Mobil relies, this Court recently reaffirmed
that Winchester remains controlling authority. Sisson v. Davis &
Sons, Inc., 131 F.3d 555 (5th Cir. 1998) (Court applied Winchester
and held that a parking lot at a heliport used to transport offshore platform
workers located about 50 yards from navigable water failed to satisfy the
functional requirement for a covered adjoining area). As in Winchester,
the Court in Sisson reaffirmed that because the statutory terms were
ambiguous, reliance was properly placed on the legislative history to the Act,
to liberally construe the statutory terms to effectuate the remedial purpose of
the Act. Id. at 557.7
_____________________
7In fact, the Court's construction of the
statutory terms is fully consistent with the Director's statutory construction,
for which deference is owed, as expressed in LHWCA Program Memorandum No. 58,
Guidelines for Determination of Coverage of Claims Under Amended
Longshoremen's Act, pp. 10-4 (Aug. 10, 1977) ("relevant 'area' is the
entire maritime facility," and "it is not necessary that the precise location
of an injury be used for loading and unloading operations . . . nor that it
immediately adjoin the water; it suffices that the overall area which includes
the location is part of a terminal adjoining the water.") Attached as Addendum
B to this brief.
17
In any event, this Court should
reject Mobil's "plain language" argument since, as the Court recognized in
Winchester, there is nothing plain or unambiguous about the terms
"adjoining area."
1. "Adjoining"
The Court began its analysis in
Winchester with a resort to a number of dictionaries which reflected
that the statutory term "adjoining" is susceptible to more than one reasonable
interpretation. 632 F.2d at 514. nn. 17-19. The Court observed that "'adjoin'
can be defined as 'contiguous to' or 'to border upon,'" but adopted a broader
definition, holding that the statutory term should be interpreted to mean
"close to" or "neighboring," "in keeping with the spirit of the congressional
purposes." Id. at 514. Accordingly, and contrary to the employer's
assertion here, this Court expressly considered and rejected the notion that
the statutory term "adjoining" was "plain" and, finding ambiguity in the
statutory language, properly relied upon the Act's remedial purpose in its
liberal statutory construction.
2. "Area"
The Winchester Court
stated: "[t]he answer to the question of where the boundaries are to an 'area'
is found right in the statute. The perimeter of
18
an area is defined by function." 632 F.2d at 515. The Court
cautioned, however, that the functional component should be defined broadly,
and that there is no requirement that the area be used exclusively for maritime
purposes. Id. Instead, the "area" must be one customarily used by an
employer in maritime employment. Id.
Even Mobil does not make the
obviously untenable suggestion that the term "area" has a plain or unambiguous
meaning. Mobil argues instead that, contrary to the Winchester Court's holding,
"[t]he employer's entire facility cannot possibly be an 'other adjoining area'
because that term is limited by the other 'adjoining' areas preceding it in the
statute: piers, wharves, dry docks, terminals, building ways, and marine
railways . . . specific work areas [that] are subsets of manufacturing
facilities." Pet. Br. at 12 (emphasis added).
Even assuming that Mobil's
position constitutes a "plain language" argument, its assertion is nevertheless
belied by the term "terminal" within the statutory list. A "terminal" cannot
reasonably be interpreted to be a specific work area or subset of a
manufacturing facility. A marine terminal may, as a feature of modern
cargo-handling techniques, encompass substantial acreage, including within its
domain, rail lines, and other
19
"specific work areas," so characterized by the employer,
i.e., piers and wharves.
In Northeast Marine Terminal
Co. v. Caputo, 432 U.S. 249 (1977), the Court held that claimant Blundo, a
"checker" who worked at a marine terminal, and claimant Caputo, a "terminal
laborer" who assisted loading trucks, both preformed tasks integral to the
loading and unloading process. The Court had little difficulty finding maritime
situs for claimant Blundo's injury because it occurred on a pier within a
terminal area, which the Court observed, was a "fenced-in facility," some two
blocks long, which itself included two piers. Id. at 279-280. The Court
also found maritime situs for claimant Caputo, who was injured while loading a
truck "parked inside the terminal area," which was unquestionably a covered
situs because it adjoined navigable waters and "'parts of the terminal are used
in loading and unloading ships.'" Id. at 279, quoting Northeast
Marine's brief.
Similarly, and of particular
note, in Chesapeake & Ohio Railway Co. v. Schwalb, 493 U.S. 40
(1989), two separate terminals were described, each of which included rail-line
areas where coal was loaded from rail cars onto ships. Id. at 42-3. In
Schwalb, the Court found that claimants who repaired and maintained
equipment used to unload coal from rail cars onto ships
20
were nevertheless essential to the loading and unloading
process. Id. at 47. It was undisputed that the claimants in Schwalb,
although railroad workers, were injured on covered maritime sites. Id.
at 45.
Thus, as the Supreme Court
recognized in both Caputo and Schwalb, and contrary to Mobil's
assertion here, a statutory "terminal" is not a discrete structure or specific
work site, nor a "subset" of a facility, but rather may be an area of
considerable size which itself includes such specific work sites. Accordingly,
there is no reasonable basis to suggest that the terms preceding "area" in
§ 3(a) require a limitation on the term to a specific work site. Thus,
Mobil's position, that its entire facility cannot be an "adjoining area"
because that term, in conformance with the terms that precede it, must be a
specific work site, would be indefensible even if it were not foreclosed by
Winchester.
Alternatively, Mobil argues that
even if Winchester is applied, the rail line where Nixson was injured is
not a covered situs. Mobil acknowledges that the rail line was "physically
close to the water's edge," and thus that, under Winchester, the site
"adjoins" navigable waters. Pet. Br. at 14. However, Mobil argues that
"[p]hysical location near a waterway alone is not enough to satisfy the situs
requirement unless that specific area is
21
customarily used by the employer to load and unload
vessels." Pet. Br. at 14, emphasis in original.
Winchester, in fact,
flatly rejects that proposition. The Winchester Court found that because
the boundaries of an area are "defined by function," situs may arise not only
from the character of the specific locus of the injury, but also from the
overall character of the area. Id. Thus, in Winchester, the Court
found a gear locker, located 5 blocks from the gate of the nearest dock, to be
a covered situs, not only because the locker itself was an area used for
maritime purposes, but also because it was located in an overall area
customarily used for maritime purposes. The Court found that the gear locker
was "as close to the docks as feasible . . . in an area customarily used by
employers for loading."8 Id. Thus, the Winchester
Court specifically rejected the position that Mobil advances here -- that
Winchester requires that the specific area in which the claimant was
injured must be used for maritime activity.
In fact, the Winchester
Court clearly contemplated that a covered "adjoining area" could extend well
beyond a single employer's facility,
_____________________
8The gear room was used to store tools and
machinery used by stevedores in loading and unloading ships, and for repairing
and maintaining the gear. 632 F.2d. at 507.
22
specifically noting that fence-lines and local designations
are inconclusive. 632 F.2d at 515. At the same time, the Court dismissed as
"absurd" a suggestion similar to the one Mobil advances here, that if, under
its expansive reading of the term "area," its whole facility is covered, then
arguably the entire city of New Orleans is covered (Pet. Br. at 12).
Winchester, 632 F.2d at 515 (Court rejected similar suggestion that all
of Houston is an area adjoining navigable waters).
Indeed, with the exception of
the Fourth Circuit, the leading cases have found maritime situs on areas that
were indisputably outside any employer's facility, which were
nevertheless covered adjoining areas. For instance, the gear room in Winchester
was located 5 blocks from the nearest dock. 632 F.2d at 507. In
Brady-Hamilton, the Court held that a gear locker located ½ mile
from navigable water was nonetheless covered. 568 F.2d at 141. In contrast, the
rail line where Nixson's injury occurred was, as the ALJ found, "on the
premises of Employer's facility." Rec. at C15.9
_____________________
9Even the container repair facility at issue in
Sidwell was eight-tenths of a mile from the closest ship terminal and
was "surrounded by various business and residential developments." 71 F.3d at
1135. It is impossible to be certain whether that court would have reached the
same decision had the container repair operation still been located (as it had
previously been) "near the gate of the Portsmouth Marine Terminal."
Id.
23
Mobil also makes a fruitless
factual argument concerning the maritime activity of its facility, asserting
that the location of its manufacturing plant is "fortuitous;" and that
"claimant's location at the manufacturing plant was no different than it would
have been at another manufacturing plant anywhere in the land." Pet. Br. at 12.
The ALJ, however, found directly
to the contrary. Based on the overwhelming weight of the record evidence, the
ALJ found that Mobil fully utilized its maritime location along the Houston
Ship Channel to further its business concerns. Nixson testified that: (1)
approximately 900,000 tons of phosphate rock were unloaded from barges at Mobil
in the year preceding his injury, and that the plant could not operate without
it. Transcript ("TR") at 36; (2) Mobil produces approximately 580,000 tons of
dry fertilizer a year, which it ships to its consumers via barge, ships and
railcars. TR at 42; and (3) Mobil, using its marine loader, is able to load
5,000 tons of fertilizer a day onto vessels, as compared to only 3,000 tons
into railcars. TR at 43-4. As the ALJ held, "the location is a definite benefit
to Employer given its maritime receipt and shipment activity." RE at C14.
Accordingly, the ALJ had little trouble finding that Mobil's entire
24
facility "in the vicinity of navigable waters [was] . . .
used to load and unload vessels." RE at C14. He reasoned:
it is elementary that Employer's site on the Houston
Ship Channel is suitable for its maritime receipt of raw materials necessary
for use in its manufacturing process and shipment of finished product in
commerce to its customers. The docks located along the waterway service
Employer's maritime receipt of manufacturing materials and are certainly
adjoining navigable waterways. Such docks are connected to the storage and
manufacturing areas by conveyor belt systems to facilitate receipt and
shipment. Employer's facility is situated on the Houston Ship Channel and
arguably could not have been located any closer to the waterway. The proximity
of its location is a definite benefit to Employer given its maritime receipt
and shipment activity.
Id.
The ALJ also found that the rail
car area where Nixson was injured was on Mobil's premises, "separated from the
waterway by buildings which themselves are used for unloading raw materials and
loading finished product." RE at 15. Thus, the evidence demonstrated that the
employer's "location was not merely incidental but essential" to its business.
The ALJ correctly concluded that Mobil's entire "facility, including its rail
line, is an adjoining area under the Act since it is customarily used for
maritime
25
activity, the loading and unloading of vessels." Id. See
also Alford v. American Bridge Div., 642 F.2d 807 (5th Cir.
1981)10 .
The Court should affirm the
Board's decision in this case that Mobil's entire facility is a covered
maritime situs, as it is in accordance with this Court's thoroughly considered
construction of the term "adjoining area" in Winchester. Under
Winchester, Mobil's facility is a covered situs because of both its
geographic nexus, adjacent to the navigable waters of the Houston Ship Channel,
and because the facility was regularly engaged in maritime shipping, both
through its receipt of raw materials and shipment of its finished product.
Thus, the Mobil facility's maritime location and function qualifies the entire
facility as a maritime situs. See also Northeast Marine, 432 U.S. 249,
279-80 (1977)(entire terminal covered). Accordingly, under the controlling
precedent of Winchester, the ALJ's decision, affirmed by the Board was
clearly correct.11
_____________________
10In Alford, the Court held that a steel
fabrication plant located on a navigable river, which constructed component
parts used in shipbuilding, was a covered adjoining area customarily used in
shipbuilding. The Court based its holding on the facility's geographic
location, the plant's history as a shipyard, its ongoing operations, and its
belief that the fabrication of component parts was an integral part of the
overall process of shipbuilding. 642 F.2d at 815-6.
11Mobil also complains that rulings of the
Benefits Review Board applying Winchester have been inconsistent, but
cites a single example, Stroup v. Bayou Steel Corp., 32 BRBS 151 (1998)
(PR at 9), now pending before this Court, No. 98-60550. In
26
____________________________________________________________________
Stroup, the Board held that a warehouse bay of a
steel manufacturing facility, located one-quarter mile from navigable water,
was not a covered adjoining area. The Board in Gavranovic, supra.,
distinguished its decision in Stroup based on the physical distance between the
warehouse bay and navigable water. Addendum A. The Director has filed a
responsive pleading with the Court in Stroup, arguing that the Board
erred, and that it should have found [as it did in this case] that the
employer's entire facility was a covered "adjoining area." In any event,
whatever the ultimate resolution of Stroup, the facts presented here, as
discussed above, demonstrate that Mobil regularly and systematically conducted
maritime activities at its facility, utilizing the adjacent waterways, which
clearly establish the entire plant as a covered maritime situs.
27
CONCLUSION
For the reasons stated, the
Board's determination, that Mobil's entire facility, including the rail car
area where Nixson's injury occurred, was a covered adjoining area customarily
engaged in loading and unloading, should be affirmed.
Respectfully submitted,
HENRY L. SOLANO
Solicitor of Labor
CAROL A. DE DEO
Associate Solicitor for
Employee
Benefits
SAMUEL J. OSHINSKY
Counsel for Longshore
LAURA J. STOMSKI
Attorney
U.S. Department of Labor
Suite S-4325
200 Constitution Ave., N.W.
Washington, D.C. 20210
(202) 219-4450 x 105#
Attorneys for the Director, Office
of Workers'
Compensation
28
CERTIFICATE OF COMPLIANCE
29
CERTIFICATE OF SERVICE
I hereby certify that on __________________, a copy of the
foregoing document was served by mail, postage prepaid, on the following:
J. Corbin Van Arsdale, Esq.
Fitzhugh & Elliot
12727 Kimberley, Suite 302
Houston, TX 77024-0450
Dennis L. Brown, Esq.
Law Offices of Dennis L. Brown
24 Greenway Plaza, Suite 1818
Houston, TX 77046
LaWanda J. Hamlin
Paralegal Specialist
U.S.
Department of Labor
30
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