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IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
_____________
LAURA PATRICIA BIANCO, Petitioner
v.
GEORGIA PACIFIC CORPORATION
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
_____________
EUGENE SCALIA Solicitor of Labor
JOHN F. DEPENBROCK Associate Solicitor for Employee Benefits
MARK A. REINHALTER
Counsel
WHITNEY R. GIVEN Attorney U.S. Department of Labor Office of the Solicitor 200 Constitution Ave., NW Suite S-4325 Washington, DC 20210 (202) 693-5784 Attorneys for the Director, OWCP
Docket No. 01-14656A Bianco v. Georgia Pacific Corp.
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel for the Federal Respondent, Director, Office of Workers' Compensation Programs, certifies that the following are "interested persons" pursuant to Eleventh Circuit Rule 26.1-1:
Honorable Richard T. Gansell-Stamm
Administrative Law Judge
U.S. Department of Labor
John F. Depenbrock
Associate Solicitor for Employee Benefits
U. S. Department of Labor
Laura Patricia Bianco
Claimant/Petitioner
Georgia Pacific Corporation Employer
i
Charles D. Lee
District Director
U.S. Department of Labor
Eugene Scalia
Solicitor
U. S. Department of Labor
Ralph R. Lorberbaum
Attorney for Claimant/Petitioner Laura Patricia Bianco
Michael Niss
Director, OWCP
U.S. Department of Labor
Mark A. Reinhalter
Counsel
U. S. Department of Labor
ii
Robert Welch
Attorney for Respondent Georgia Pacific Corporation
Thomas O. Shepard, Jr.
Clerk, Benefits Review Board
U.S. Department of Labor
Whitney R. Given
Attorney for Director, OWCP
U. S. Department of Labor
iii
STATEMENT WITH RESPECT TO ORAL ARGUMENT
This case involves an interpretation and application of the Fifth Circuit'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.
CERTIFICATE OF TYPE SIZE AND STYLE
This Brief is printed in monospaced Times New Roman 14-point type, twelve characters per inch.
iv
TABLE OF CONTENTS
Certificate of Interested
Persons........................................................................
i
Statement Regarding Oral
Argument................................................................... iv
Certificate of Type Size and
Style......................................................................
iv
Table of
Citations............................................................................................vii
Statement of
Jurisdiction.................................................................................
2
A. Basis of Jurisdiction
Below............................................................................
2
B. Appealability and Review
Jurisdiction..............................................................
2
Issue
Presented............................................................................................
3
Statement of the
Case..................................................................................
3
A. Course of Proceedings and Disposition
Below.................................................. 3
B. Statement of
Facts...................................................................................
4
i. The ALJ's Decision and Order Denying
Benefits................................................. 5
ii. The Board's affirmation of the ALJ's
Order..................................................... 10
Summary of the
Argument.............................................................................
12
Argument:
THE BENEFITS REVIEW BOARD ERRED IN FINDING THAT THE EMPLOYER'S
FACILITY PART OF A SINGLE COMPLEX BORDERED BY NAVIGABLE WATERS THAT THE
EMPLOYER
v
REGULARLY UTILIZES TO UNLOAD ITS MOST ESSENTIAL RAW MATERIAL FROM ITS
VESSELS WAS NOT A COVERED ADJOINING AREA CUSTOMARILY USED IN LOADING AND
UNLOADING A VESSEL UNDER LHWCA §; 3(a)
.....................................................................................................................16
A. Scope of
Review..........................................................................................
16
B. Judicial
Deference........................................................................................
17
C. The Statutory
Terms....................................................................................
21
1.
Area..........................................................................................................
24
2.
Adjoining....................................................................................................
31
Conclusion.....................................................................................................
35
Certificate of Compliance
Certificate of Service
Addendum A
vi
TABLE OF CITATIONS
FEDERAL CASES
Alabama Dry Dock and Shipbuilding Corp. v. Sowell,
933 F.2d 1561 (11th Cir.
1991)...................................................................... 16
American Ship Building Co. v. Director, OWCP,
865 F.2d 727 (6th Cir.
1989)..........................................................................17
Argonaut Ins. Co. v. Patterson,
846 F.2d 715 (11th Cir.
1988)........................................................................
16
Atlantic Container Service, Inc. v. Coleman,
904 F.2d 611 (11th Cir.
1990)........................................................................
29
Auer v. Robbins,
519 U.S. 452
(1997)....................................................................................
19
Bonner v. City of Prichard,
661 F.2d 1206 (11th Cir. 1981)
(en banc)........................................................ 22
Bradberry v. Director, OWCP,
117 F.3d 1361 (11th Cir.
1997).......................................................................17
Brady-Hamilton Stevedore Co. v. Herron,
568 F.2d 137 (9th Cir.
1978)....................................................................... 23
vii
Brooker v. Durocher Dock and Dredge,
133 F.3d 1390 (11th Cir.),
cert. granted, 524 U.S. 982,
cert. dismissed, 525 U.S.
957 (1998).....................................................17, 23, 26
Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc.,
467 U.S. 837
(1984).....................................................................................18
Diamond M. Drilling Co. v. Marshall,
577 F.2d 1003 (5th Cir.
1978)........................................................................
16
Director v. General Dynamics Corp. (Bergeron),
982 F.2d 790 (2nd Cir.
790)..........................................................................
17
Director, OWCP v. Detroit Harbor Terminals, Inc.,
850 F.2d 283 (6th Cir.
1988).........................................................................
17
E.I. duPont de Nemours &; Co. v. Collins,
432 U.S. 46
(1977)......................................................................................
17
Fleischmann v. Director, OWCP,
137 F.3d 131 (2nd Cir. 1998),
cert. denied, 525 U.S. 981 (1998).......................... 22
Garmon v. Aluminum Co. of America-Mobile Works,
28 BRBS 46
(1994).......................................................................................
9
Gavranovic v. Mobil Mining and Minerals,
33 BRBS 1
(1999).....................................................................................
8, 9
viii
Hurston v. Director, OWCP,
989 F.2d 1547 (9th Cir.
1993)................................................................. 22
Jones v. Aluminum Co. of America,
31 BRBS 130
(1997)................................................................................
9
Mallot &; Peterson and Industrial Indemnity Co. v.
Director, OWCP,
98 F.3d 1170 (9th Cir.
1996).................................................................. 17
Morrison-Knudsen Constr. Co. v. Director, Office of
Workers'Compensation Programs, U.S. Dept. of Labor,
461 U.S. 624
(1983)..............................................................................
17
Motoviloff v. Director, OWCP,
629 F.2d 87 (9th Cir.
1982)..................................................................... 8
Newport News Shipbuilding &; Dry Dock Co. v. Howard,
904 F.2d 206 (4th Cir.
1990)................................................................. 17
NLRB v. Hendricks County Rural Electric Membership
Corp.,
454 U.S. 170
(1981).............................................................................
17
* Northeast Marine Terminal Co. v. Caputo,
432 U.S. 249
(1977).........................................................14, 15, 22, 29,
34
Odom Construction Co. v. United States Department of
Labor,
622 F.2d 110 (5th Cir. 1980),
cert. denied, 450 U.S. 966 (1981)................. 16
ix
P.C. Pfeiffer Co., Inc. v. Ford,
444 U.S. 69
(1979).............................................................................
29
Pool Company v. Cooper,
274 F.3d 173 (5th Cir.
2001)........................................................ 17, 18
Sea-Land v. Rock,
953 F.2d 56 (3rd Cir.
1992)............................................................... 17
Skidmore v. Swift &; Co,
323 U.S. 134
(1944).................................................................... 18,
27
Texports Stevedore Co. v. Director, OWCP (Maples),
931 F.2d 331 (5th Cir.
1991)............................................................. 17
* Texports Stevedore Co. v. Winchester,
632 F.2d 504 (5th Cir. 1980)
(en banc),
cert. denied, 452 U.S. 905
(1981).................................. i, 10, 11, 14, 22
Trotti &; Thompson v. Crawford,
631 F.2d 1214 (5th Cir.
1980).......................................................... 22
United States v. Mead Corp.,
533 U.S. 218
(2001)................................................................... 18,
20
Universal Maritime Service Corp. v. Spitalieri,
226 F.3d 167 (2nd Cir.
2000).......................................................... 17
x
FEDERAL STATUTES
Longshore and Harbor Workers' Compensation Act,
33 U.S.C. §;§; 901-950
(1988).......................................................... 2, 3
§;
1....................................................................................................
2, 3
§;
1(c)...................................................................................................
3
§;
2(3)................................................................................................
21
§;
3(a)..........................................................................................
passim
§;
8....................................................................................................
21
§;
9....................................................................................................
21
§;
9(d).................................................................................................
2
§;
21(b)(3)..........................................................................................
2
§;
21(c)..............................................................................................
3
OTHER AUTHORITIES
Pub. L. No. 98-426, §; 27(d)(1), 98 Stat. 1639, 1654
(Sept. 28, 1984).... 2
xi
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
______________
No. 01-14656A
______________
LAURA PATRICIA BIANCO,
Claimant/Petitioner
v.
GEORGIA PACIFIC CORPORATION
and
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
Respondents
______________
On Petition for Review of a Final Order
of the Benefits Review Board
______________
BRIEF FOR THE FEDERAL RESPONDENT, DIRECTOR, OWCP
UNITED STATES DEPARTMENT OF LABOR
STATEMENT OF JURISDICTION
A. Basis of Jurisdiction Below
Laura Patricia Bianco ("Bianco") filed two claims for benefits under the Longshore and Harbor Workers' Compensation Act ("LHWCA" or the "Act"), 1 33 U.S.C. §; 901 et seq. Thus, the statutory basis for the administrative law judge's ("ALJ"'s) subject matter jurisdiction was 33 U.S.C. §; 919(d). Bianco appealed the ALJ's Decision and Order Denying Benefits for the earlier, 1993 injury to the Benefits Review Board ("Board") pursuant to LHWCA §; 21(b)(3). 33 U.S.C. §; 921(b)(3). In a decision issued on June 20, 2001, the Board affirmed the ALJ's denial of benefits.
B. Appealability and Review Jurisdiction
The statutory basis for this Court's jurisdiction over final orders of the Benefits Review Board is 33 U.S.C. §; 921(c), which provides for judicial review of LHWCA cases in the circuit in which the injury occurred. On or about August 20, 2001, Bianco filed her Petition for Review of the Board's decision with this Court, within the
sixty days allowed by 33 U.S.C.
_____________________
1 Longshoremen's and Harbor Workers' Compensation Act of March 4, 1927, c. 509, 44 Stat. 1424, as amended, 33 U.S.C. §;§; 901-950 (1988). The Act's title was rendered gender-neutral (Longshoremen's . . . " changed to "Longshore and Harbor Workers' . . . ") by LHWCA Amendments of 1984, Pub. L. No. 98-426, §; 27(d)(1), 98 Stat. 1639, 1654 (Sept. 28, 1984), amending LHWCA §; 1, as amended, 33 U.S.C. §; 901 (1988).
2
§; 921(c). Bianco's injury occurred in Brunswick,
Georgia, within the Eleventh Circuit's territorial jurisdiction. Thus, this
Court has jurisdiction to hear this case.
ISSUE PRESENTED
Whether Georgia Pacific's
Facility located adjacent to navigable waters of the United States that are
utilized in the unloading of gypsum from vessels (a necessary and systematic
part of its business) was a covered maritime situs under 33 U.S.C. §;
903(a) of the Longshore and Harbor Workers' Compensation Act because it was an
"adjoining area customarily used by an employer in . . . unloading . . . a
vessel."
STATEMENT OF THE CASE
A. Course of Proceedings
and Disposition Below
This case arose upon Bianco's
filing of two claims for disability benefits under the Longshore and Harbor
Workers' Compensation Act, 33 U.S.C. §;§; 901-950 (1988) for injuries
she sustained in the course of her employment with Georgia Pacific Corporation
("GP" or "Georgia Pacific"). On March 3, 1999, a formal hearing was held before
ALJ Richard T. Stansell-Gamm in Savannah, Georgia. The District Director filed
the ALJ's Decision and Order Denying Benefits on June 15, 2000.
3
Bianco sought administrative review by the Board of the
ALJ's denial of LHWCA coverage for the earlier of her two injuries. In a
decision published on July 10, 2001, the Board affirmed the denial of coverage.
Bianco then filed a timely appeal of the Board's ruling with the Eleventh
Circuit.
B. Statement of Facts
On May 10, 1993, Bianco suffered
knee and ankle injuries while working as a knife operator at GP's Gypsum
Products Plant in Brunswick, Georgia (the "Facility"). Board Decision &;
Order ("Board D&0"), at 2. The Facility is located on the banks of the
Turtle and East Rivers, although it is separated from these rivers by county
and city property. Id. at 2 n.2. It receives raw gypsum from its own ship
2 that arrives at a docking area containing the "Lanier" and "East
Brunswick" docks. ALJ Decision &; Order Denying Benefits ("ALJ D&0"), at
4. Raw gypsum is the "critical raw ingredient" indispensable to the Facility's
function as a manufacturer of sheetrock and other building products. Id. at 13.
GP's ship unloads the gypsum at the Lanier dock, while other vessels destined
for the Port Authority use the East Brunswick dock.
_____________________
2 The ALJ's opinion suggests that GP utilizes
only one ship to transport its gypsum.
ALJ D&0, at 4.
4
i. The ALJ's Decision and Order Denying
Benefits.
In attempting to analyze the
nature of the vessel unloading process performed at the GP Facility - an
inquiry critical to the maritime situs determination the ALJ summarized the
evidence concerning the path of the gypsum from ship to shore:
The [GP] vessel is a 'self-unloader' and has its own
conveyor belt for unloading the gypsum into a hopper on the [Lanier] dock.
After going into the hopper, the gypsum travels along the 'number two' belt to
the 'transfer house.' The individuals operating the hopper and the number
two-conveyor belt do not work for [GP]. ...; [GP] employees do work in the
transfer house after the gypsum is unloaded to clean up the bottom floor and
move the residue gypsum to the stockpile.
ALJ D&0 , at 4.
All of the equipment from the conveyor belt coming out of
the transfer house to the plant ...; is located on [GP] property and operated
by its employees. The plant boundary starts 'just outside' the number two
transfer house and is established by a fence and runs to about thirty feet of a
sea wall.
ALJ D&0 , at 5.
[GP] owns and uses a different conveyor belt out of the
transfer house to move the gypsum to its plant. This belt goes from the
transfer house all the way to the 'rock shed.' A [GP] employee, called a belt
tender, operates the conveyor belt from [the] transfer house to the plant. At
the end of this belt, the gypsum falls off into the company's rock shed...;
ALJ D&0 , at 4.
The gypsum is stored in the rock shed until it's (sic)
needed for manufacturing. ALJ D&0, at 6. ...; From the rock shed, the
gypsum
5
eventually moves along another belt to the 'crusher'
building where the rock is reduced into smaller pieces before moving along a
belt to the 'screen house.' At the screen house, rock that is too big to fall
through the screen is [fed] by a chute back to the crusher. Gypsum that passed
through the screen goes into three separate 'rock bins' in the plant by
conveyor belt. ...;
ALJ D&0 , at 4-5.
After the gypsum has been screened, crushed, milled, and
cooked in kilns, the finished powder is either used to make wallboard or sent
to the Gypcrete Department to be bagged and palletized. The Gypcrete Department
is a final stage of the manufacturing process. ALJ D&0, at 6. ...; The
completed wallboard is stored in warehouses and both gypcrete and wallboard are
eventually shipped out by truck.
ALJ D&0 , at 5.
During the manufacturing of wallboard, rejected material
is thrown out in the 'reject pile.' The reject area comes in contact with the
river. There is also a pile of reject board which is ground in a machine and
reused. Both areas belong to the port authority but are used by [GP].
ALJ D&0 , at 5.
The ALJ found that in the several months prior to her
injury, Bianco, as a laborer, sandblasted and painted the gypsum conveyors from
the transfer house all along the [GP] belt line. This work accounted for about
a third of her time during [1992 and the first half of 1993.] In addition,
Bianco ran the crusher and cleaned up rock that had fallen off the belts. She
also worked as a supply operator in the wallboard production plant, putting up
large paper rolls. On one occasion, she operated the conveyor belt from the
rock shed. Then she received training as a knife operator.
ALJ D&0, at 6.
6
On May 10, 1993, after having
worked as a knife operator in GP's wallboard shop for approximately two months,
Bianco hurried to correct a malfunction of the knife machine. In doing so, she
"stepped on a ramp and twisted her ankle and leg and ended up on the floor."
ALJ D&0, at 7. Bianco was out of work for three weeks as a result of the
injury. Id. When she returned to GP, she was assigned to the electric shop, but
continuing knee problems forced her to leave work again to have knee
surgery.3 Id.
The private parties stipulated
that Bianco's May, 1993 knee injury "arose out of, and during the course of"
her employment, that her average weekly wage was $535.92 and that she reached
maximum medical improvement on October 1, 1993. Id. at 8-9. Before the ALJ,
Bianco contended that she met the situs requirement for the 1993 injury because
the Facility "adjoins and is connected to a waterway." Id. at 9. Bianco also
averred that GP is a maritime employer because it engages in the "maritime
activity of unloading gypsum from ships." Id. GP countered that delivery
_____________________
3 The ALJ also entertained Bianco's claim for
benefits arising from a July 28, 1995 injury in which she crushed her right arm
in a machine while working as a palletizer in GP's Gypcrete Department. ALJ
D&0, at 15. The ALJ ruled that Bianco did not meet either the situs or
status requirements for that injury. Id. As Bianco did not challenge
that status finding on appeal to the Board, the matter of coverage for the 1995
injury is not before the Eleventh Circuit.
7
of the gypsum was complete upon its arrival at the transfer
house, and the continuing transport of the gypsum along GP's conveyor belts
from the rock shed storage house to the wallboard department of the Facility is
not maritime activity because it is not part of the unloading process.
Id. In addition, GP asserted that its Facility "is not contiguous to the
river and is separated by a fence from the dock area." Id.
The ALJ acknowledged the Board's
recent holding that "an employer's entire complex is a maritime site for the
purposes of the Act if it is adjacent to navigable waters and [is] customarily
used for loading and unloading ship cargo." Id. at 10, citing
Gavranovic v. Mobil Mining and Minerals, 33 BRBS 1, 4 (1999). The ALJ
also recognized that the Act's requirement that an injury must occur in an area
"adjoining" navigable waters has been broadly construed, such that "physical
contact with navigable water is not necessary if the location bears a
functional relationship to a maritime activity on navigable waters." ALJ
D&0 , at 11, citing Motoviloff v. Director, OWCP, 629 F.2d 87
(9th Cir. 1982). Finally, the ALJ stated that "[s]uch a functional connection
may be established when raw material is unloaded from ships and transported by
conveyor belt to a location away from the water ...; as the maritime activity
of unloading a
8
vessel continues along [the] conveyor belt system until the
[raw] material or cargo is received for storage." ALJ D&0, at 11, citing
Jones v. Aluminum Co. of America, 31 BRBS 130 (1997) (process of
unloading bauxite from vessel via port authority and conveyor belt systems
continues until bauxite arrives at manufacturing storage location); Garmon
v. Aluminum Co. of America-Mobile Works, 28 BRBS 46, 49 n.2 (1994),
aff'd on reconsideration 29 BRBS 15 (1995).
In the present case, the ALJ held that
the gypsum remains a 'shipped' cargo until it arrives at
the [GP] rock shed. ...; At that moment, the gypsum leaves the stream of
maritime commerce and becomes 'stored' cargo. Because the gypsum continues to
be unloaded along the conveyor belt from the transfer house ...; and into the
rock shed, both the [GP] conveyor belt and rock shed are integral parts of the
ship unloading process. Consequently, that conveyor belt and the rock shed have
maritime functions and each location is a maritime situs. [However,] my
designation of the conveyor belt and rock shed as maritime locations does not
automatically confer a maritime designation for the entire plant.
ALJ D&0 , at 11-12.
The ALJ acknowledged that in
Gavranovic, 33 BRBS 1 (1999), the Board determined that an entire
complex was a maritime situs, even the manufacturing components of that
facility. Id. at 12. However, he distinguished that case on factual
grounds. The ALJ concluded that the Facility as a whole was not a maritime
situs because "the entire [Facility] is
9
not engaged in maritime activity." Id. at 13. To
buttress this ruling, the ALJ found that "[t]he only water adjoining the plant
is a small inlet which has not been shown to be navigable." Id. at 10
(emphasis added).
As a result of her failure to
meet the situs test, the ALJ rejected Bianco's claim for benefits.
4
ii. The Board's affirmation of the ALJ's Order.
Bianco appealed to the Board,
arguing that GP's "entire facility qualifies as an 'adjoining area' so as to
satisfy the 'situs' test of the Act." Board D&0, at 3. Bianco asserted that
"since some of the [Facility] is maritime then all of it must be, for to hold
otherwise would allow workers to walk in and out of coverage depending on where
they are on a certain day." Id. The Board acknowledged that in the
controlling case, Texports Stevedore Co. v. Winchester, 632 F.2d 504
(5th Cir. 1980) (en banc), cert. denied, 452 U.S. 905 (1981), "the Fifth
Circuit took a broad view of 'adjoining area,' refusing to restrict it by fence
lines or other boundaries." Board D&0, at 4. However, the Board held that
the "perimeter of an area is to be defined by function; thus it must be
'customarily used by an employer
_____________________
4 The ALJ did find that Bianco met the status
test for her May, 1993 injury, as her potential for assignment to the conveyor
belts or the rock shed "integral parts of the ship unloading system"
rendered her a maritime employee within the meaning of the Act. ALJ
D&0 , at 14.
10
in loading, unloading, repairing or building a vessel.'"
Id., citing Winchester, 632 F.2d at 514-15; see 33 U.S.C. §; 903(a).
The Board rejected Bianco's
argument that the manufacturing portion of a plant is automatically a covered
situs because maritime activity such as unloading of a vessel takes place
elsewhere in the complex.5 Board D&0, at 6. Thus, the Board held
that "claimant's contention that the [ALJ] erred by dividing employer's
manufacturing facility into maritime and non-maritime manufacturing sites is
without merit." Board D&0 , at 6.
Ultimately, the Board ruled,
[T]he areas where claimant's injuries occurred in the
instant case are within a separate facility and not a part of the Brunswick
port itself. Moreover, insofar as the specific buildings where the injuries
occurred are concerned, it is clear that they were used solely in the
manufacturing process rather than as a step in the chain of unloading raw
materials. As the [ALJ] properly found, the maritime activity of unloading the
gypsum from the ships continued along employer's conveyor belt until it was
received in the rock shed for storage (citations omitted). The gypsum
thereafter is used by employer in its manufacturing process either in the
wallboard or gypcrete departments...; [E]mployer's manufacturing plant
herein, consisting of the wallboard and gypcrete departments, is not a covered
situs, since...;it is not an area used for traditional maritime activity but
_____________________
5 The ALJ coined the phrase "knife operation
plant" to refer to the department within the wallboard plant where Bianco's
1993 injury occurred. ALJ D&0 , at 7. The decisions below also refer
to GP's entire complex as the "plant." Id. at 3, 6; Board
D&0 , at 1, 6. As the Board attached no legal signficance to these
designations, to avoid confusion this Brief uses the terms "knife operating
department" and "Facility" when discussing, respectively, the place of injury
and the entire GP complex.
11
rather involves the manufacturing of products which are
not used for maritime purposes.
Id. at 7.
Accordingly, on June 20, 2001,
the Board issued a decision6 affirming the ALJ's denial of benefits
as "rational, supported by substantial evidence and in accordance with law."
7 Id. On August 20, 2001, the Claimant filed a timely
petition for review of the Board's Order with the Eleventh Circuit.
SUMMARY OF THE ARGUMENT
LHWCA claimant Bianco was injured
within the employer's Facility, one part of which was found to be used by her
employer to unload vessels delivering material essential to the Facility's
operation. ALJ D&0, at 13. Significantly, it was further found that
the employer located its complex near navigable waters in order to facilitate
receipt of the employer's critical raw ingredient, gypsum. Id. The
agency decisions failed to discuss the fact that the Facility is located on a
triangle of land whose two longest sides are adjacent to the water. See
Joint Exhibit ("JX") 1. Instead, the decisions
_____________________
6 On June 20, 2001, the Board issued its
decision as "unpublished." On July 10, 2001, it issued an errata sheet labeling
the decision "published."
12
below focused on the facts that GP's finished wallboard
product was shipped out of the Facility by truck or rail and not by vessel, and
that the wallboard manufacturing plant has no nexus with the waterfront because
its overall purpose is not maritime in character. ALJ D&0 , at 12.
The Board concluded that the claimant's injury did not occur on a situs covered
under the Act because it accepted an approach that divided the employer's
single Facility into different portions, some of which were found to be covered
situses and some of which were not. Board D&0 , at 6.
Thus, this case presents the
question whether section 3(a) of the LHWCA, 33 U.S.C. §; 903(a), should be
construed to permit an analysis of the situs requirement that divides a single
waterfront facility into maritime and non-maritime portions. The situs inquiry
in this case requires interpretation of the statutory phrase "other adjoining
area." 33 U.S.C. §; 903(a). The Director and the courts have previously
construed this ambiguous phrase. The Board's situs determination in this case
is contrary to those constructions and should be overturned.
The Director's longstanding
position, formally set forth in a 1977
_____________________
7 Having denied coverage due to Bianco's failure
to satisfy the situs test, the Board declined to address the employer's
cross-appeal on the issue of status. Board D&0 , at 7.
13
Program Memorandum, is that under section 3(a), a structure
or locale that "adjoins" navigable waters, any part of which is used for
maritime purposes, comprises a single covered "area." The Director's Program
Memorandum was triggered by the Supreme Court's issuance of its decision in
Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977),
interpreting the 1972 amendments to the LHWCA which extended situs coverage
landward.
Further, binding authority from
the Fifth Circuit supports the Director's broad view of situs coverage. See
Texports Stevedore Co. v. Winchester, 632 F.2d 504 (5th Cir. 1980)
(en banc), cert. denied, 452 U.S. 905 (1981). Winchester, a
pre-split Fifth Circuit decision, found a gear room used to store stevedores'
equipment that was located on Avenue N in Houston, five blocks from the gate of
the nearest dock, to be a LHWCA covered situs. Id. at 507. Winchester
reasoned that the gear room constituted a maritime situs because it had "some
nexus with the waterfront," id. at 514, "was as close to the docks as
was feasible [and] was in an area customarily used by employers for loading
[that] adjoin[ed] a navigable waterway." Id. at 515. Applying Winchester
to GP's Facility mandates the conclusion that it is a covered situs.
14
In comparison, the Board's
approach in the present case erroneously produces the result that maritime
employees may be covered under the LHWCA if injured in one part but not
covered if injured in a different part of a single waterfront facility. Such
an outcome exacerbates the problem that 1972 legislative amendments to the
LHWCA were intended to address - that of maritime employees "walking in and out
of coverage." According to Caputo, a primary reason for the legislative
extension of situs was to avoid the anomalies inherent in a system that
previously drew the coverage line at the water's edge. 432 U.S. at 262-64,
269-72. The Supreme Court expressly rejected a suggested approach to situs that
would have involved dividing a single facility into many parts, thereby
producing an irrational system requiring adjudicators to engage in complex and
extensive line drawing. 432 U.S. at 274-78. The Board's decision in the present
case revives such irrationality. In light of the undesirability of such a
result as expressed in the Director's Program Memorandum twenty-five years
ago, and which the Congressional history counsels against coupled with
binding legal authority contrary to the Board's decision, the situs requirement
should be deemed satisfied in this case.
15
ARGUMENT
THE BENEFITS REVIEW BOARD ERRED IN FINDING THAT THE
EMPLOYER'S FACILITY PART OF A SINGLE COMPLEX BORDERED BY NAVIGABLE WATERS
THAT THE EMPLOYER REGULARLY UTILIZES TO UNLOAD ITS MOST ESSENTIAL RAW MATERIAL
FROM ITS VESSELS WAS NOT A COVERED ADJOINING AREA CUSTOMARILY USED IN
LOADING AND UNLOADING A VESSEL UNDER LHWCA §; 3(a).
A. Scope of Review
This Court reviews decisions of
the Benefits Review Board to ensure that the Board adhered to its statutory
scope of review, which is to decide whether the ALJ's factual determinations
are supported by substantial evidence and are consistent with governing law. 33
U.S.C. §; 921(b)(3); Argonaut Ins. Co. v. Patterson, 846 F.2d 715,
718 (11th Cir. 1988); 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).
The issue of coverage under the
LHWCA is a mixed question of law and fact. Questions of fact are reviewed under
the substantial evidence standard. In this case, the relevant facts are
essentially undisputed. Interpretation of the Act's situs requirement is
subject to this Court's de
16
novo review as a question of law. Brooker v. Durocher
Dock and Dredge, 133 F.3d 1390, 1392 (11th Cir. 1998).
B. Judicial Deference
In Alabama Dry Dock and
Shipbuilding Corp. v. Sowell, 933 F.2d 1561, 1563 (11th Cir. 1991), this
Court recognized that the statutory interpretations of the Director, the
administrator of the LHWCA, are entitled to deference. See also
Morrison-Knudsen Constr. Co. v. Director, Office of Workers' Compensation
Programs, U.S. Dept. of Labor, 461 U.S. 624, 635 (1983) ("the consistent
practice[s] of the agencies charged with the enforcement and interpretation of
the Act are entitled to deference"); NLRB v. Hendricks County Rural Electric
Membership Corp., 454 U.S. 170, 189-190 (1981); E.I. duPont de Nemours &; Co. v. Collins, 432 U.S. 46, 54-55 (1977); Bradberry v. Director,
OWCP, 117 F.3d 1361, 1366 (11th Cir. 1997). 8
_____________________
8 Other appellate courts with substantial LHWCA
dockets have also expressly acknowledged that the Director's interpretations of
the LHWCA are entitled to deference. See, e.g., Mallot &; Peterson and
Industrial Indemnity Co. v. Director, OWCP, 98 F.3d 1170 (9th Cir.1996);
Universal Maritime Service Corp. v. Spitalieri, 226 F.3d 167, 172 (2nd
Cir. 2000); Pool Company v. Cooper, 274 F.3d 173, 177 (5th Cir. 2001);
Newport News Shipbuilding &; Dry Dock Co. v. Howard, 904 F.2d 206,
208-9, 210-11 (4th Cir. 1990). Contra, Sea-Land v. Rock, 953 F.2d 56 (3d
Cir. 1992); American Ship Building Co. v. Director, OWCP, 865 F.2d 727
(6th Cir 1989).
17
The Supreme Court further
clarified its approach to deference in United States v. Mead Corp., 533
U.S. 218 (2001), affirming that an agency administator's interpretation of the
"statutory scheme [he] is entrusted to administer ...; 'will depend upon the
thoroughness evident in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those factors which
give it power to persuade, if lacking power to control.'" Id. at 228,
quoting Skidmore v. Swift &; Co., 323 U.S. 134, 140 (1944). Where, as
here, the Director advances an interpretation of the LHWCA in a litigation
brief, that interpretation merits Skidmore deference, not absolute
deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Pool Company v. Cooper, 274 F.3d 173, 177
(5th Cir. 2001). Under Skidmore, the Director's interpretation of the
ambiguous statutory phrase "other adjoining area" should be considered
persuasive as it has been thoroughly considered, is well-reasoned in light of
the purpose of the Act, and has been consistently advanced.
It is thus apparent that this Court's earlier refusal in
Sowell to grant deference to an agency's "litigating position" is inconsistent
with current
18
Supreme Court authority and should not be
followed.9 In any event, the Director's interpretation of LHWCA
section 3(a)'s situs requirement has not only been presented in a litigation
brief, but has also been consistently espoused for decades. An expansive
interpretation of LHWCA section 3(a) was first expressed by the Director
twenty-five years ago in LHWCA Program Memorandum No. 58, Guidelines for
Determination of Coverage of Claims Under Amended Longshoremen's Act (Aug.
10, 1977). See Memorandum attached as Addendum A to this Brief. The Program
Memorandum states that the "relevant 'area' is the entire maritime facility,"
and "it is not necessary that the precise location of an injury be used for
_____________________
9 Sowell's purported limitation of
judicial deference based on the fact that the Director's position was set forth
in a legal brief and was therefore no more than the "agency's litigating
position," 933 F.2d at 1563, has subsequently been eroded by more recent
Supreme Court authority. The Supreme Court specifically rejected the
theory that the Secretary's arguments in support of her statutory and
regulatory constructions are merely litigating positions and thus not entitled
to deference in Auer v. Robbins, 519 U.S. 452, 462 (1997). In
Auer, the Court deferred to the Secretary's regulatory interpretation
despite the fact that it came "in the form of a legal brief." The Court held
that the fact that the Secretary's interpretation of her regulation was first
articulated in an appellate brief,
. . . does not, in the circumstances of this
case, make it unworthy of deference. The Secretary's position is in no sense a
'post hoc rationalization' advanced by an agency seeking to defend past agency
action against attack. There is simply no reason to suspect that the
interpretation does not reflect the agency's fair and considered judgment on
the matter in question. 519 U.S. at 462.
19
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." Addendum A at 10-11.
Thus, although the courts remain
the final authorities on questions of statutory construction, where the terms
are susceptible to more than one interpretation, the Director's reasonable
constructions of the LHWCA and articulations of administrative policy
should be considered highly influential under Mead.
The Director contends that the
LHWCA section 3(a) term "adjoining area" encompasses GP's entire Facility,
including the knife operating department where the Claimant was injured, and
that the Board improperly held that the Facility may be divided into maritime
and non-maritime sections. The Board did not take into account the Director's
position or the Program Memorandum's pronouncement in finding that Bianco was
not injured on a covered situs. That omission - coupled with the Board's
disregard of Winchester mandates that the decision be reversed.
_________________________________________________________________
20
C. The Statutory Terms
The LHWCA provides compensation
to covered maritime employees for work-related disabilities, or to certain of
their survivors where the injury causes death. 33 U.S.C. §;§; 908 and
909. Section 2(3), which defines an "employee," establishes an occupational or
"status" requirement.10 33 U.S.C. §; 902(3). LHWCA section 3(a),
at issue in this case, establishes a geographical or "situs" test for coverage
under the Act. Accordingly, an injured worker must satisfy both the maritime
situs and status requirements to qualify for benefits 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.)
____________________
10 Section 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, over the employer's
objection, that Bianco was a covered maritime employee. ALJ D&0 , at
14. Having affirmed the ALJ's finding that the situs requirement was not met,
the Board did not reach the issue of status. Board D&0 , at 7.
21
The catchall 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.11 The Board's conclusion that Bianco's
injury did not occur upon a covered situs rests upon the premise that what it
viewed as the legally relevant "area" under section 3(a) the knife operating
department was not an "area customarily used" for maritime purposes. See
Board D&0 , at 6.
The Fifth Circuit fully
considered the parameters of the term "adjoining area" in Winchester. As
the Board recognized, "[d]ecisions of the Fifth Circuit ...; are binding
precedent in the Eleventh Circuit ...; unless specifically overruled by the
Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.
1981) (en banc). As such, Winchester remains
____________________
11 The grammatical structure of section 3(a) has
led other Courts to conclude that only the locations falling under the
catch-all phrase "other adjoining area" must be "customarily used" for the
specified purposes, thereby requiring a functional relationship to maritime
activity. The enumerated settings, "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 (2nd Cir. 1998), cert. denied,
525 U.S. 981 (1998); Hurston v. Director, OWCP, 989 F.2d 1547, 1549-50
(9th 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.")
22
controlling precedent in the Eleventh Circuit." Board
D&;O, at 4 n.5. Moreover, in this Circuit's most recent LHWCA situs
case, Brooker v. Durocher Dock and Dredge, 133 F.3d 1390 (11th Cir.),
cert. granted, 524 U.S. 982, cert. dismissed, 525 U.S. 957 (1998), this
Court did nothing to limit its "predecessor circuit['s]" holding in
Winchester. 133 F.3d at 1393. To the contrary, Winchester was
cited with approval. Id. at 1392-93. Thus, this panel is bound by the
Winchester Court's reasoning that a location is covered unless it is
"clearly outside the waterfront area customarily used by employers" for
maritime purposes. 632 F.2d at 515. Winchester defines "adjoining" in
broad geographic terms as "close to" or "neighboring" navigable waters, and
specifically rejects the requirement of absolute contiguity that GP urged in
this case below. Id. at 514; see also Brady-Hamilton Stevedore Co. v.
Herron, 568 F.2d 137 (9th Cir. 1978)(gear locker located one-half mile from
navigable water was held a covered adjoining area).12
_________________________________________________________________
12 The Herron Court identified four
factors that should be considered in determining whether a location is a
covered "adjoining area": (1) the particular suitability 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. 568 F.2d at 141.
23
Winchester 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 more than a
single employer's facility, could constitute an "adjoining area." Id.
The Court decided that to hold otherwise "would introduce into the tests for
coverage a new fortuity that would frustrate the congressional objective of
providing a uniform system expanding coverage to landward maritime sites."
Id. at 514-15. That rationale echoes the reasoning of the Supreme Court
in Caputo. Thus, the facts that: (1) GP's Brunswick Facility was not
used entirely for maritime purposes; and (2) the knife operating department of
GP's Brunswick Facility where Bianco was injured was not located directly upon
navigable waters, are not bars to coverage under Winchester. The
statutory terms lend themselves easily to such a result.
1. "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 an area is defined by
function." 632 F.2d at 515. The Court was careful to
24
add, however, that the functional component should be
defined broadly, holding 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.
The term "area" is obviously too
general a concept to lend itself to a fixed, unambiguous meaning. To the extent
that any part of the entire Facility is involved in the process of unloading
gypsum from the employer's vessels, the entire Facility should be deemed an
"adjoining area" within the meaning of section 3(a). In this case, the area in
question is defined by its relationship to the maritime function of "unloading
of vessels." See 33 U.S.C. §; 903(a). Significantly, the ALJ did not draw
the line for the outer limit of LHWCA situs coverage at the transfer house
outside GP's Facility. Instead, he extended it so far as the rock shed within
the Facility. ALJ D&0 , at 11. Nevertheless, he found that the knife
operating department where Bianco was injured - which is also within the
Facility is not a covered situs because the employer does not customarily
use the knife
25
operating department in its vessel unloading process. See
id. at 13. The Board concurred. Board D&0 , at 7.13
Winchester flatly rejects the
approach of focusing on the knife operating department alone as the critical
"area." 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.
632 F.2d at 515. The Winchester Court found a gear locker located five blocks
from the gate of the nearest dock to be a covered situs because it was located
in a general area habitually used for maritime purposes. Id. The Court
ruled that the gear locker was "as close to the docks as feasible ... in an
area customarily used by employers for loading." Id. Thus, in the
present case, the fact that
____________________
13 This Court's most recent consideration of the
scope of the LHWCA situs requirement in Brooker v. Durocher Dock and
Dredge, 133 F.3d 1390 (1998), does not address the question presented here
the appropriateness of dividing an employer's single facility into covered
and non-covered areas. The ALJ cited Brooker only in passing, for a
proposition not readily material. ALJ D&0 , at 12 n.12.
Brooker stated that situs could not be based solely on the "vessel
activity" of neighboring non-employer entities and denied situs coverage
in that case because "neither [the claimant's] employer, nor the premises
owner, used the [area in dispute there] to load, unload, repair, dismantle, or
build a vessel." 133 F.3d at 1394. Brooker is clearly distinguishable
because GP customarily uses its Facility for the maritime purpose of
unloading vessels.
26
the knife operating department was not itself used for
maritime purposes is irrelevant, as it is located within a facility that GP
"customarily use[s] for [the] significant maritime activity" of unloading
vessels carrying its critical raw material, gypsum. Id.; see ALJ
D&0 , at 13. Even a cursory reading of Winchester reveals that it
specifically rejected the position that the particular locus in which a worker
is injured must be used for maritime activity.
Not only is the entire Facility
of the employer properly viewed as a covered "adjoining area," the leading
cases (with the exception of the Fourth Circuit in Sidwell v. Express
Container Services, Inc., 71 F.3d 1134, 1140 n.11 (4th Cir. 1995)) have
found maritime situs for covered adjoining areas that were indisputably outside
any employer's facility. The Winchester Court clearly contemplated that
a covered "adjoining area" could extend well beyond a single employer's
facility, specifically noting that fence-lines and local designations are
inconclusive. 632 F.2d at 515. As noted above, five full blocks of intervening
properties separated the gear room in Winchester from the nearest dock.
Id. at 507. Similarly, in Brady-Hamilton, the Ninth Circuit held
that a gear locker located a half-mile from navigable water was a LHWCA covered
situs. 568 F.2d at 141. It is easier
27
to conclude that the situs requirement was satisfied in
this case because the knife operating department where Bianco's injury occurred
was, as the ALJ found, indisputably part of "the Georgia Pacific complex." ALJ
D&0 , at 13.14
Indeed, the ALJ specifically
found that a maritime nexus existed for the Facility as "[GP] located its wall
board and gypcrete production plants near the East River to facilitate its
receipt of the critical raw ingredient, gypsum." Id. Yet, despite the
fact that this finding supports the conclusion that Bianco was injured on a
covered situs, the ALJ erroneously ruled that "I do not believe that choice of
location for convenience bestows maritime situs upon the entire Georgia Pacific
complex." Id. This conclusion, accepted by the Board, ignores the import
of Caputo and Winchester. The Board's reasoning erroneously produces the
result that maritime employees may be covered under the LHWCA if injured in one
part of a waterfront facility, but not covered if injured in a different part
of the same
____________________
14 Even 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 the Fourth Circuit would have made
the same situs determination had the container repair operation still been
located (as it previously had been) "near the gate of the Portsmouth Marine
Terminal." Id.
28
complex. As this Circuit has recognized, such an outcome
exacerbates the problem that the 1972 amendments to the LHWCA, Pub. L. No.
92-576, 86 Stat. 1251 (October 27, 1972) ("1972 LHWCA Amendments") were
expressly intended to address - that of maritime employees such as Bianco
"walk[ing] in and out of coverage as their work moves to different sides of the
'point of rest' [of a maritime cargo]...;. [leaving] only persons handling
cargo on the maritime side of the 'point of rest' [ ] covered by the LHWCA."
Atlantic Container Service, Inc. v. Coleman, 904 F.2d 611, 615 (11th
Cir. 1990), quoting P.C. Pfeiffer Co., Inc. v. Ford, 444 U.S. 69, 76
(1979). See also Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249,
278-79 (1977).
The ALJ's finding that the last
"point of rest" of the gypsum divides the Facility into covered and non-covered
portions has been rejected by the Supreme Court because it is
a theory that nowhere appears in the Act, that was never
mentioned by Congress during the legislative process, that does not comport
with Congress' intent, and that restricts the coverage of a remedial Act
designed to extend coverage.
Caputo, 432 U.S. at 278-79.
As the Supreme Court foretold in
rejecting the "point of rest" theory, a ruling such as that of the Board in the
present case resurrects "the evil
29
of the [pre-1972] Act that bifurcated coverage for
essentially the same employment ...; since the same employee engaged in an
activity beyond the point of rest would cease to be covered." Caputo at
276; see also Coleman, 904 F.2d at 615. Application of the Board's
ruling to this case caused coverage to arbitrarily turn upon which "area" of
GP's Facility Bianco happened to be in when she was injured. The Board's
resolution leaves "injured employees and their counsel [to] comb the
waterfronts ...; probing hopelessly, like Diogenes with his lantern, for that
elusive 'point of rest' upon which coverage depends." 432 U.S. at 276 n.38.
This is exactly the result that the Supreme Court in Caputo, the
Director and Congress sought to avoid. The analysis followed below not only
resurrects the confusion and uncertainty created by the discredited approach of
dividing a single maritime facility into many parts, it also produces an
irrational system requiring LHWCA adjudicators to engage in complex line
drawing between an employer's internal operational boundaries. As the precedent
holds that not even external property lines are dispositive, the ALJ's approach
must be rejected. To follow it would leave this Circuit with a LHWCA situs
standard so fact-specific that every case could potentially spend years on
30
appeal as the parties debated the proper place to set the
situs boundary within one employer's maritime facility.
2. "Adjoining"
The second prong of the situs
test requires that the area for which coverage is claimed "adjoin" navigable
waters. 33 U.S.C. §; 903(a). The Winchester Court began its analysis
of the statutory term "adjoining" by referring to a number of dictionaries. Not
surprisingly, the Court found that the term was susceptible to multiple
reasonable interpretations. 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, the
WinchesterCourt found ambiguity in the statutory language, properly
relied upon the Act's remedial purpose in its statutory construction, and held
that a gear room five blocks inland "adjoined" a navigable waterway. Id.
Applying these principles to the
circumstances present in this case compels the conclusion that the entire GP
Facility is an "adjoining area." A mere glance at the aerial photograph of the
Facility makes it plain that all
31
portions of the Facility "adjoin" not just one but two
waterways. See JX 1. As the Winchester Court noted, "Aerial
photographs ...; are extremely helpful in determining whether or not a
particular site is within an 'adjoining area.' 632 F.2d at 516 n.20. Such is
certainly the case here.
The first of the two waterways,
the East River - where GP docks its gypsum vessels for unloading, is indeed
separated from the Facility by slivers of intervening property. Board
D&0 , at 2. It is worthy of note that this intervening property
consists of the Brunswick Port Authority, an indisputably maritime situs. Board
D&0 , at 3. Moreover, the physical layout of the triangle of land
where the Facility lies did not deter the Board from properly upholding the
ALJ's finding that the covered "adjoining area" did extend across this
property, along GP's conveyor belt, and as far into the Facility as the rock
shed. Board D&0 , at 6-7. Yet, the knife operating department - in
the same point of the triangle as the rock shed and abutting a waterway full of
boats was not found to be a covered adjoining area. It is just such an
illogical result that the 1972 LHWCA Amendments, the Director's Program
Memorandum and the Winchester decision were designed to prevent.
32
The second waterway was an
otherwise unidentified inlet. Although it is true that the ALJ stated "the only
water adjoining the plant is a small inlet which has not been shown to be
navigable," ALJ D&;O, at 10, that statement is both legally incorrect
and factually misleading. The inlet to which the ALJ refers runs the entire
length of GP's Facility and lies mere feet away from the knife operating
department. JX 1. Whether the inlet was navigable was simply not the
subject of evidence one way or the other, but JX 1 clearly shows sizable
boats floating in it. Moreover, the record contains testimony that apparently
contradicts the ALJ. The inlet comes in contact with the East River, which
flows to the ocean. Transcript of March 3, 1999 ALJ Hearing at 64, 77.
Although the ALJ erroneously
downplays its legal significance, the Facility's setting on a triangle of land
that juts out into the water was chosen precisely because it facilitates the
receipt of gypsum from ships. As the Facility's entire purpose is to process
gypsum, it must receive the raw material in order to function. Under
Winchester, the ALJ's finding that GP regularly utilizes the Facility's
location adjoining navigable waters in furtherance of its business purpose
mandates the designation of the Facility as a maritime situs.
33
The Board - unlike the ALJ -
acknowledged Winchester as controlling precedent but misapplied it,
basing its denial of coverage on its unilateral pronouncement that "claimant's
contention that the [ALJ] erred by dividing employer's manufacturing facility
into maritime and non-maritime manufacturing sites is without merit." Board
D&;O, at 6.
The Court should reverse the
Board's decision that the entire Facility is not a covered maritime situs, as
it conflicts with the thoroughly considered construction of the term "adjoining
area" in Winchester. Under Winchester, GP's Facility is a covered
situs both because of its geographic nexus to the navigable waters of the East
and Turtle Rivers, and because the Facility is regularly engaged in maritime
shipping, through its receipt of raw materials. Thus, the GP Facility's
maritime location and function qualifies the entire Facility as a maritime
situs. See also Northeast Marine Terminal Co. v. Caputo, 432 U.S. at
279-80 (entire terminal covered). Accordingly, under the controlling precedent
of Winchester, the Board's situs determination was clearly incorrect and
should be reversed.
34
CONCLUSION
For the reasons stated, the
Board's ruling that the knife operating department where Bianco's injury
occurred was not a covered adjoining area should be reversed and the case
remanded for a final agency determination on the issue of whether Bianco's
duties at the time of her 1993 injury satisfied the Act's maritime status
requirement.
Respectfully submitted,
EUGENE SCALIA Solicitor of Labor
JOHN F. DEPENBROCK Associate Solicitor for Employee
Benefits
MARK A. REINHALTER Counsel
__________________________ WHITNEY R. GIVEN
Attorney U.S. Department of Labor Office of the Solicitor 200
Constitution Ave., NW Suite S-4325 Washington, DC 20210 (202)
693-5784 Attorneys for the Director, OWCP
35
CERTIFICATE OF COMPLIANCE
The text of this brief is
double-spaced, with the exception of quotations more than five lines long,
headings and footnotes, which are single-spaced. The typeface used is 14 points
and is proportionally spaced. The word count, according to MS WORD SR-2, the
processing system used, is 7,747.
_________________________ Whitney R.
Given Attorney U.S. Department of Labor
36
CERTIFICATE OF SERVICE
I hereby certify that on April
26, 2002, two copies of the foregoing Director's Response to Petition for
Review were served by mail, postage prepaid, on the following:
Robert L. Welch, Esq. Drew, Eckl &; Farnham,
L.L.P. 880 West Peachtree Street P.O. Box 7600 Atlanta, GA 30357
Ralph R. Lorberbaum, Esq. Zipperer and
Lorberbaum 200 E. Saint Julian Street P. O. Box 9147 Savannah, GA
31412
_________________________ LaWanda J.
Hamlin Paralegal Specialist U.S. Department of Labor
37
|