Parker v. Director, Office of Workers' Compensation Programs

оbserved, facts”, later, by it heard turn on its United what and felt case must “Each Sartori, ruling. its initial the time of The Defen- v. States Cir.1984). dants’ Motion to Dismiss the Indictments prosecution ground and to of double jurors and touched twelve had seen jeopardy is denied. properly not admitted. physical evidence photographs the defendants claim the While IT AND IS SO ORDERED. later, introduced this is would have been /S/ conjectural. This was not speculative by an adver- merely opening statement Johnson, James W. Jr. by any sary have been cured that could Judge Eighth Judicial Cir- — of this Court as was the ease instruction cuit Sloan, Moreover, De- v. id. United States Laurens, South Carolina produced a case where a fendants have improvidently granted was declared mistrial 15,1995 May way evidence when inadmissible jury.

photographs published had been Moreover, it is more than “manifest neces- requires granting of a mistri- sity” which public interest and its al in this case. The designed to end right to a fair trial that is this just judgment requires further PARKER, Jr.; Earl J. Glenn deny to Dis- the Defendants’ Motion Court Redmon, Petitioners, C. It the Fifth Amendment. would miss under unfair, unjust improper these be circumstances, may come about which have DIRECTOR, OFFICE OF WORKERS’ coun- result of actions of defense direct PROGRAMS, COMPENSATION UNIT- sel, by granting the defendants to reward DEPARTMENT LA- ED STATES OF interest of their Motion Dismiss. “The BOR; Lines, Inc.; Royal Insur- seeing prosecu- public in that a criminal Company, Respondents. ance verdict, acquittal proceed to either of tion No. 94-2653. conviction, by the for- need not be forsaken rigid application rules that mulation Appeals, Court of United States necessarily preclude of that the vindication Fourth Circuit. Somerville, Illinois v. 410 U.S. interest” at 1070. The broad S.C[t]. Court’s Argued Sept. the facts exis- discretion was exercised under 9, 1996. Decided Feb. was, necessity, and a mistrial de- tent clared. compelling by for reasons deemed

‘Where judge, intelli- the trial who best situated decision, the ends of gently to make such justice cannot be obtained with- substantial trial, may discontinuing a a mistrial out consent and declared without the defendant’s objection, over his and he be re- even consistently the Fifth Amend- tried Gamble, 492, 272 ment.” State v. 275 S.C. (1980) quoting Gori United S.E.2d 796 S.C[t], 1523, States, will This Court now, guess four months not second itself

OPINION

WILLIAMS, Judge: Circuit quorum, As a we must decide whether a container-repair facility that neither is con- tiguous waters nor touches waters, such and that is not within the boundary shipping aof is a mari- Longshore situs time under the and Harbor (the LHWCA), Compensation Workers’ Act (West 1986). §§ 33 U.S.C.A. 901-950 Peti- Parker, tioners Earl J. Jr. and Glenn C. injured separate Redmon were accidents as, dining employment the course of thеir respectively, inspector and a container Lines, respondent mechanic for Farrell Inc.1 challenge a Petitioners decision of the Bene- Board) (the affirming fits Review Board (ALJ) judge decision of an administrative law denying compensation their claims for on the Klein, Harlow Rutter & ARGUED: John basis their did not occur on a Norfolk, Montagna, Virginia, for Petitioners. 903(a) § maritime situs. See U.S.C.A. Gillelan, II, Attorney, Joshua Thomas Senior (West 1986). Because we conclude that the Solicitor, Depart- of the United States Office facility off-terminal where Petitioners were D.C.; Labor, Washington, ment of Gerard situs, is not maritime as another Norfolk, Walker, P.C., Voyer, Taylor & E.W. panel has defined term Sidwell Respondents. BRIEF: Virginia, for ON Services, Inc., Express Container Williamson, Jr., La- Solicitor of Cir.1995), Thomas S. deny petition for Deo, Solicitor, bor, addition, A. Associаte opportunity Carol De review. we take this Solicitor, Depart- clarify of the United States the role of the Director of the Office D.C., Labor, Compensation Programs Washington, for Re- Office of Workers’ ment of (the Director) proceedings in review Kearney, spondent Director. Donna White Walker, P.C., Norfolk, Virginia, Taylor

Respondents Royal Farrell Lines and Insur-

ance. I. ships transport contain- Farrell owns POWELL, Before Associate Justice ports, cargo2 erized to and from various Court,

(Retired),* Supreme United States including the Norfolk International Terminal designation, sitting by (NIT) and MURNAGHAN Norfolk, Virginia. Farrell also WILLIAMS, Judges. Circuit cargo packed containers into which is owns shipping. periodically in-

before Farrell necessary spects and makes its containers Judge by published opinion. Denied repairs part shipping operations. as a of its judgment announced the WILLIAMS opinion, Judge inspection repair court and wrote an which Farrell leases a small NIT, joined Judge facility performs of its as to Part IV. at most MURNAGHAN but facility container-repair larger at a lo- concurring opinion. wrote a work MURNAGHAN * cargo” cargo arguments refers to did not 2. The ‍‌​​‌‌​‌​​​‌​​​‌​‌​​‌​​​​‌​​​‌‌​​​‌‌​​‌​​​​​‌‌‌‌​‍term “containerized Justice Powell heard oral but participate storage in the decision. The decision is filed units— that has been loaded into mobile 46(d). by quorum panel. 28 U.S.C. transporting purpose of containers —for the insurer, Royal Company, cargo Farrell’s Insurance to its destination. respondent petition also as a named reference, review. For ease of we refer to both as "Farrell.” (the 1028, 108 24th in Norfolk S.Ct. at West cated site), approximately five miles

24th Street originally Although Farrell NIT. from II. container-rеpair operations its all of ducted compelled NIT, of the terminal expansion qualify In order to for benefits under the operations most of these Farrell to transfer a claimant must establish engage in employees Farrell off-terminal. injury, engaged in the time of the he was site as (the at the test), the same activities employment maritime “status” see employee perma- 903(a) (West 902(3), 1986), §§ at NIT. One 33 U.S.C.A. facility; nently assigned to the NIT others injured “upon and that he was from the NIT to and (including any are transferred waters of the United States dock, In addition to servic- wharf, basis. adjoining pier, dry on an as-needed NIT, the 24th site ing building way, railway, containers from Street ad- marine or other containers, chassis, refrigeration joining customarily by employer and receives area an by loading, unloading, repairing, dismantling, arrive overland truck and in that units 903(a) vessel),” budding a 33 U.S.C.A. rail. (the test). “situs” The status and situs tests site is located an area of The 24th Street part were created as of the 1972 amendments light is Norfolk zoned for industrial uses and LHWCA, purpose to the of which was to by' a residential area to the surrounded expand coverage to include workers who south, north, railway and various a to the worked, they ship travelled from to shore as vicinity. in the immediate small businesses thereby preventing such from walk- workers 24th site for a Farrell selected the Street ing coverage during in and out of the course including proximity variety of reasons day. Humphries, of the See 834 F.2d at 373. NIT, the ease with which containers and Petitioners contend that the ALJ be moved between NIT and employees could concluding erred that the 24th Street site site, suitability 24th of the site for Street is not a maritime situs under the LHWCA. repair, favorable lease terms. container and Petitioners, According to the 24th Street site rejected considered and several other properly an is considered “other greater distance from sites because of their NIT, part area” of at least because Farrell unsuitability pur- to Farrell’s NIT and their by expansion was forced of NIT to move its poses. container-repair operations to the 24th Street site, the closest available terminal. site injured separate were Petitioners extending Petitioners claim that the reach of facility3 24th instances at the and site, the LHWCA to the 24th Street five compensation Virginia received NIT, necessary miles from is to avoid the Compensation petition Act. Each Workers’ sporadic coverage sort of that the 1972 separate er claim under the filed a designed amendments to the LHWCA were greater seeking the benefits it affords. The to eliminate. (ALJ) judge administrative law consolidated benefits, basing analysis the actions and denied question Our of whether the denial on his determination that the 24th 24 Street site is a maritime situs under the not a maritime situs Street site was covered LHWCA is controlled the recent decision affirmed, The Board of this Express court Sidwell v. Container (4th Cir.1995). Services, Inc., Petitioners now seek review of the ALJ’s 71 F.3d 1134 Sidwell, particular explicitly rejected site is a mar In decision. Whether we tests based interpretations phrase itime situs under LHWCA is mixed “other ad- subject Third, Fifth, question plenary joining and fact of law area” offered Director, OWCP, Humphries ground review. Ninth Circuits on the that each test Cir.1987), denied, Id., “openly statutory 834 F.2d cert. disavow[ed] the text.” 902(3), 903(a) (West 1986), partiеs stipulated §§ 3. Because the have that Peti- discussion of the employment engaged surrounding tioners were in maritime at circumstances Petitioners’ injuries, unnecessary. the time of their see 33 U.S.C.A. Instead, employer based on the ordi front —or even that an has 71 F.3d separate altogether “adjoin,” “adjoining” we held site that is meaning of the term nary germane waters —is not ‘adjoining’ navigable waters to the “an area is waters, is, question injury if of whether an ‘adjoins’ navigable occurred at only if it expressly covered situs. The statute ‘touches’ ‘contiguous with’ or otherwise it is Id., place “injury limited to the where the oc- Ad 1138-39. such waters.” curred]”; employer’s other activities test ditionally, we noted the situs geographic locations are irrelevant to the injury if occurs within the satisfied inquiry of whether the at a occurred that is con of a marine terminal boundaries covered situs. Id, tiguous with waters. Id., 1140 n.11. Accordingly, 71 F.3d at 1139 n.8. deny petition for review. principles

Applying the of Sidwell us, that Petitioners facts we conclude before III. they have not established that were Judge Murnaghan’s I cannot share cogent maritime situs. Under Sidwell’s on a wrongly view that Sidwell is decided because statutory language, explanation of the employs that decision too narrow a construc dispositive question of whether view, “adjoining.” my tion of the term is a maritime situs involves a site correctly plain Sidwell rested on the lan straightforward geographical determination: guage of the statute. Reves v. Ernst & adjoins navigable the 24th site either Street 170, 177-78, Young, 507 U.S. 113 S.Ct. situs, it not waters and is a maritime does (1993) (noting L.Ed.2d 525 that not. Because the 24th Street site is plain statutory language is conclusive in the waters, contiguous navigable neither is with clearly expressed legislative of a in absence waters, located within nor touches such nor is contrary). Judge Murnaghan’s tent to the NIT, it a mari- the boundaries of cannot be policy grounds expand reliance to time under the LHWCA. That Farrell situs beyond contemplated by situs test that 24th compelled to relocate to the was plain language particularly of the statute is not our expansion site of NIT does affect inappropriate light Supreme in Court’s decision, that nor does it matter some clear admonition that we not substitute our employees occasionally travel NIT between policy preferences Congress. own for those of explained site. As we and the Co., Drilling v. Nicklos See Estate Cowart of Sidwell, inquiry the relevant is whether the 469, 483-84, 112 2589, 2598-99, S.Ct. upon which the occurred is a situs (1992). Moreover, poli 120 L.Ed.2d 379 maritime situs: cy Judge Murnaghan on which relies —that argues that whether terminal [Claimant] favoring coverage non-coverage, post of over expansion has forced relocation from a site precisely much: proves too it is 940— directly adjoining navigable waters to one Service, policy that Inc. v. Di Sea-Land (but adjoin that not such waters is the does (3d rector, OWCP, 540 F.2d 636-38 Cir. feasible), to closest is relevant whether 1976), require the situs wielded eliminate adjoins particular site waters. altogether, directly contrary to ment a result disagree. exigency The of even We expressly disapproved by the the statute and transform a site forced relocation cannot Supreme Welding, Inc. v. Court Herb’s into one that distant from waters 414, 426-27, Gray, 470 U.S. “adjoins” those waters. The site somehow 1428-29, (1985); see also adjoins navigable it either waters or does Humphries, (disapрroving of not, and, Supreme in- as the Court has reasoning Ser Third Circuit’s Sea-Land structed, geographical inquiry. that is a ). explains, As 71 F.3d at vice Sidivell respect enacting said the 1972 amendments- The same must be with Congress motivated employer] had mobile that[the the fact LHWCA providing uni per- policy much narrow of trucks which went to the terminal to more coverage gang repairs That an em- form on both sides form minor on-site. land. ployer plank, the water- the water sends some workers to holding Corp. agree Judge Murna- The of I.T.O. I should have Finally, I cannot practice automatically naming ended the of owe deference to the Director’s ghan that we respondent petitions as a in all the Director interpretation of the situs re- amorphous practice for review under the LHWCA The held, interpreta- As Sidwell quirement. end, however, perhaps did not because I.T.O. locations as remote as tion —under which Corp. impact I did not discuss the of Federal City, would be covered sitas- Kansas Kansas 15(a), Appellate Rule Procedure which re- plain statutory with the lan- es—conflicts quires agency that “the must be named re- due no deference. See hence is guage and spondent” petition in a for review of an order id., board, agency, anof administrative commis- sion, agree or officer. We with the District 15(a) IV. simply of Columbia Circuit that Rule applicable petition in the context of a for opportunity take this to ad We review under the because the Di- LHWCA proper petitions role in the Director’s dress presence party necessary: rector’s as a is not review Normally, single private party is contest- рertinent part provides in LHWCA ing agency, agency the action of an which adversely aggrieved affected or “[a]ny person appear must and defend on the merits to order of the Board obtain a final proper requi- insure the adversarial clash that order the United States review of controversy.” site to a “case or But Rule appeals for the circuit in which the court of 1(b), Fed.RApp.P., says “[t]hese rules 921(c) 33 U.S.C.A. injury occurred.” shall not be construed to extend or limit (West 1986). party the Director was a While jurisdiction appeals the courts prior petitions to all review the 1972 Here, established law.” there suffi- LHWCA, Congress to the did amendments adversity employer cient between[the designate party the Director as a proper litigation the to insure claimant] in the 1972 amendments. petitions for review participation by without the Board. To Bd., v. Corp. Review 542 See I.T.O. require appear party the Board to aas Benefits (4th Cir.1976) (en (I.T.O. banc) 903, F.2d 906 parallel requiring would the District Court Corp.I), appear vacated and remanded on other upon and defend its decision appeal. grounds Corp., Adkins v. direct sub nom. I.T.O. 904, 2967, 433 97 S.Ct. 53 L.Ed.2d 1088 U.S. Bd., McCord v. Review 514 F.2d Benefits (1977).4 I, Corp. In I.T.O. we held that 198, (D.C.Cir.1975); ‍‌​​‌‌​‌​​​‌​​​‌​‌​​‌​​​​‌​​​‌‌​​​‌‌​​‌​​​​​‌‌‌‌​‍200 Shahady see also v. designate Congress’ failure to the Director as Co., 479, Atlas Tile & Marble 673 F.2d 485 “if party meant that the Director is to be a (D.C.Cir.1982) (“The reasoning of McCord— ‘person adversely

party, must be a af [s]he 15(a) that the inapplicable rationale of Rule aggrieved by fected or a final order of the applies to this kind of as much to situation — 912(e).” meaning within the Board’ Id. Board.”). [Director] the as it does to the But reasoning, Based on this 907. we conclud Div., Ingalls Shipbldg. Sys., see Litton Inc. proper respon ed that the Director is not a White, 275, Cir.1982) 681 F.2d petition for dent in a review under (declining Shahady), to follow overruled in she can LHWCA unless show that she is a part grounds by on other Newpark Shipbldg. person adversely aggrieved by Roundtree, affected or Repair, Inc. v. 723 F.2d 399 (5th Cir.1984). the decision of Board.5 Id. at 909. remand, Director, 4. the en banc On court adhered to its duties. Newport OWCP v. News holding proper respon- Co., that the Director is not a Shipbldg. Dry& Dock 180-81 petition under the dent in review LHWCA. - (4th Cir.1993), -, aff'd, U.S. 115 S.Ct. Bd.., Corp. See I.T.O. Review Benefits The Director’s (4th Cir.1977) (en banc) curiam) (per disagreement mere with the decision of the (I.T.O. II). Corp. adversely Board does not render her affected or I, aggrieved. Corp. See I.T.O. 542 F.2d at 907- adversely aggrieved

5. The Director is affected or directly hampers if a decision the Board ability carry statutory Director’s out her Thereforе, holding ing a circuit conflict with Fifth reaffirm the Circuit’s we Texports Director shall not decision Stevedore Co. v. Corp. I that the Win of I.T.O. chester, (5th Cir.1980), respondent in a automatically named as a F.2d cert. be denied, under the but petition for review (1981), showing that she is narrowly interprets an affirmative L.Ed.2d 406

must make adversely aggrieved “adjoining,” or the deci appears phrase affected word as it Board.6 If the Director is not adjoining Longshore sion of the area” in “other adversely aggrieved or the deci Compensation affected Harbor Workers’ Act Board, nonetheless wishes to (LHWCA), sion of the but only “adjacent” to mean or “con parties, of the participate on behalf of one tiguous with.”1 See 71 F.3d at 1138. The request granted per however, first must and be she English Dictionary, Oxford defines party mission to intervene on the side solely “adjacent,” “adjoining” not as but also Corp. position supports, she see I.T.O. whose “neighbouring.” as It further defines (“The I., unques 542 F.2d at 909 Director “neighbouring” “lying living as near.” tionably right to intervene has a to seek “neighboring” The word no means so 24(b) Fed.R.Civ.P., appli and an under Rule “adjacent” limiting circumscribed or (footnote ordinarily granted.”) were, cation will “contiguous frequently with.” If it omitted). holding, this accordance with phrase neighbor” “next-door would be respondent the Director as a we dismiss unnecessarily repetitive. surprisingly, Not Di petition grant for review and therefore, this judge one who concurred in Sid- pro motion to nunc tunc rector’s intervene objected majority’s well “more literal of Petitioners.7 on the side interpretation” statutory language. para- As I endeavor to make clear V. follow, graphs that I believe Sidwell's contigu- Because the 24th Street site is not interpretation phrase of the LHWCA’s “oth- waters, ous with we conclude that entirely er area” is at odds with the it is not a maritime situs under the LHWCA. Congress meaning that intended us to as- Accordingly, deny petition for review. persuaded cribe to it. I also am case, instant Petitioners’ were sus- DENIED. area,” “adjoining properly tained at strued. MURNAGHAN, Judge, Circuit

concurring: (or judges panel A of three Fourth Circuit I. acting quorum) may

of two as a not overrule Lines, Inc., prior published panel opinion. employer, a Petitioners’ Norfolk Director, OWCP, 777, transport Ry. operates ships v. and that Western owns (4th Cir.1993) (“Even cargo ports, in- 779 if we were so tainer to and from numerous clined, Virginia’s panel including ... not the Commonwealth of of this court decision.”). (NIT). panel’s Though another Norfolk International Terminal Until overrule reluctance, all Norfolk-area re- great I do so with I must there- Farrell conducted a situs located at regard binding opinion pairs fore as filed for of its containers at however, year, In that in order to publication in December Sidwell v. NIT. Inc., lot, Services, ‍‌​​‌‌​‌​​​‌​​​‌​‌​​‌​​​​‌​​​‌‌​​​‌‌​​‌​​​​​‌‌‌‌​‍Express parking room for a the Common- Container F.3d make (4th Cir.1995). portion say great Farrell’s lease of a I “with reluc- wealth terminated Sidwell, property. the NIT Farrell therefore was tance” because addition to ereat- of addition, conclusion, reaching holding applies ma- 6. we note that this 1. In that the Sidwell petitions introductory for review under jority upon comments in a relies report appearing committee not Senate position We have considered the Director’s report proof corresponding of the full House proper interpretation respect with phrase position Congress’s intent. See note 6. infra area,” reject "other and in Sidwell. See for reasons stated Sidwell, 71 F.3d at 1143. benefits, focusing repair opera- of its tioners’ claims for federal relocate most forced to jurisdictional five-bay garage solely located on 24th situs issue. He on the tions to Norfolk, approximately heavily upon five miles the Ninth Circuit’s deci- relied naviga- from Brady-Hamilton and one mile the terminal sion in Stevedore Co. from (9th Herron, Cir.1978), because finding selected that site ble water. Farrell 568 F.2d 137 company moved budding into which that three of the four factors considered formerly another contain- had been that court to determine whether an already many and so was er-repair outfit occurred at a LHWCA-covered maritime si- task, because the loсation ways to that suited he concluded that the tus had not been met: rotating personnel be- was convenient particularly 24th suitable Street site was NIT, available facilities it and because tween uses, adjoining properties for maritime NIT were located areas zoned closer to uses, primarily were not devoted to maritime activity, repair and because exclude such and that not close to a water- the site was for a available reasonable cost. way.3 neighborhood site shares its The 24th Street appealed. Petitioners On October facilities, center, repair shopping with other 1994, the Benefits Review Board affirmed residences, professional private and few decision, finding the record ALJ’s change in in no location was offices. support contained substantial evidence to way brought about Petitioners. ALJ’s determination that the had not repairman container While at least one ap occurred a covered situs. The Board NIT, repairmen permanently stationed Brady- proved upon of the ALJ’s reliance location are called to from the Hamilton, citing opinion, a Fourth Circuit usually daily on a basis —to deliver Director, OWCP, NIT — Humphries v. 834 F.2d 372 parts, repairs, and to make in- to conduct (4th Cir.1987), denied, cert. single manager responsible spections. A (1988), in activity at both sites and coordi- repair Brady-Hamilton which we described as tak transport personnel the routine be- nates ing practical approach” a “more to the situs tween them. circuits, issue than that taken two other noting Parker, Jr., the Fourth Circuit’s affirmance Petitioners, Earl J. and Glenn (albeit unpublished opinion, in an Redmon, Davis inspection performed repair C. California, Doran F.2d Lines; Co. for Farrell both were in- functions Cir.1989), (1987)) aff'g 20 B.R.B.S. of a jured working at the 24th Street site.2 while upon Brady- Board decision founded compensa- Both men received state workers’ subsequently Hamilton factors. Petitioners benefits, sought tion the additional but bene- filed for review of the Board’s decision. Respon- fits available under the LHWCA. insurer, Royal dents —Farrell Lines and its On March Director Company agree- Insurance While —resisted. Department’s Labor Office of Workers’ Com- ing employ- that Petitioners were maritime (OWCP) pensation Programs filed a brief carrying ees maritime out tasks within the arguing in favor of reversal of the Board’s LHWCA, meaning Respondents con- decision. The Director made two conten- tended that the had not occurred at a first, Brady-Hamilton tions: does not situs, required by defined and maritime as provide an exhaustive list of factors to be the Act. making considered when situs determina- 30, 1991, LHWCA,4 second, In an order issued on December tions under the and Judge long-standing interpretation the Administrative Law denied Peti- the OWCP’s argued 2. fell and left Redmon his wrist and 4.The Director the ALJ and Board wrongly ignored purposes underlying leg broad Parker cut his left with saw. they the 1972 Amendments to the LHWCA when Respondents asked whether Petitioners or had a find, though, 3. The ALJ did that the fourth Bra- greater majority Brady-Hamil- claim to a dy-Hamilton factor had been met: the site was factors, ton rather than look at the overall func- waterway as close to as was feasible. relationship tional between the NIT and 24th Street facilities.

937 po- amending S.Rep. sons for so the Act. requirement favors Petitioners’ situs 92-1125, Cong., No. 92nd 2nd by us. Sess. 12-13 deferenсe sition and deserves (1972); 92-1141, H.R.Rep. Cong., No. 92nd court must defer to ALJ’s Though a (1972), reprinted 2nd in 1972 Sess. they supported findings long so as are factual First, prior U.S.C.C.A.N. 4707-08.6 evidence, Newport Ship- News by substantial coverage “stop[ped] edge”; the water’s Tann, Dry building Dock Co. v. injuries occurring on land were covered (4th Cir.1988), maritime the issue of compensation programs. states’ workers’ imbued with “while situs under Consequently, disparity “a there existed essentially ques- mixed qualities, is ‘factual’ payable disability benefits death or ... can law and fact which we review tion of type injury depending the same on which law,” Humphries, 834 F.2d for errors of edge side of the water’s and which State 374. accident occur[red].”7 Second, at 4707. U.S.C.C.A.N. states’ work- II. compensation provided ers’ laws often inade- A. Third, quate Congress recog- benefits. Id. cargo- nized “with the advent of modern disability prоvides death and The LHWCA handling techniques, such as containeriza- meet the Act’s benefits to individuals who tion,” longshoreman’s more of the work is “employee.”5 Such benefits are definition of performed now on land than before. 1972 however, only disability “if paid, to be sum, Congress U.S.C.C.A.N. at 4707-08. injury occurring upon from an death results compensation believed that the amount of of the United States waters injured employee an received “should not wharf, dry (including any adjoining pier, depend on the fortuitous circumstance of dock, way, railway, buflding marine whether the occurred on land or over customarily or other area water.” 1972 U.S.C.C.A.N. at 4708. repairing, loading, unloading, employer an vessel).” dismantling, building Supreme acknowledged The Court has 903(a). § U.S.C. remedy Congress’s desire to the fact that 903(a)’s workers, many during parenthetical language the course of the work Section coverage day, passed in and out of LHWCA Congress in 1972. Pub.L. No. was added (Oct. See, 27, 1972), 92-576, 2(c), e.g., prior § to the 1972 Amendments. 86 Stat. 1251 Ford, 69, 75, 100 1452- P.C. Co. v. U.S. reprinted in U.S.C.C.A.N. Pfeiffer (1979); and see The Committee on Labor S.Ct. Senate (making the Humphries, 834 F.2d at 373 and the House Committee also Public Welfare observation). legislation, As remedial and Labor identified several rea- same Education 92-1125, S.Rep. majority employee “any person Sidwell No. 5. The Act defines including any upon conclusive evidence engaged employment, seizes this statement as in maritime Sidwell, Congress's intent. See person engaged long- of the full longshoreman or other report, however— any F.3d at 1138. The House shoring operations, in- harbor-worker report though otherwise identical to the Senate ship- cluding ship repairman, shipbuilder, breaker____” 903(a)'s parenthetical its discussion of section 902(3). Respondents 33 U.S.C. language no such statement. More- employees stipulated within that Petitioners were —contains over, question Amendments there is no that the meaning of the Act. coverage contiguous to “the dock extended coverage question area”: is whether reports are identical in 6. The House and Senate non-contiguous areas as well. extended to nearly pertinent respects. Because the all report published Congres- House was U.S.Code analogous present presents situa- case 7.The News, and Administrative all references sional employment at one seeks and obtains tion where publication. are made to that clearly be entitled to LHWCAbene- which he will different, reports injury, only are The House and Senate to lose his entitlement fits in case however, respect. report important potentially in one The Senate benefits when to those states, comments, employer introductory part that is forced to in its action on his his no coverage "inju- frequently expand he works to Amendments the Act's to move the situs where location, navigable occurring contiguous relat- albeit as close to dock area another ries longshore ship repair waters as is feasible. ed work." See to 938 amended, “‘liberally is as close to the Act, be and whether the site must waterway given all of the purpose, as is feasible with its in conformance

construed and incon- circumstances in the case. way which avoids harsh and in a ” Northeast Marine Termi- gruous results.’ Brady-Hamilton, 568 F.2d at 141. de-We 249, 268, 97 432 U.S. S.Ct. Caputo, nal Co. clined, however, formally adopt to thе Bra- (1977) (quoting 320 53 L.Ed.2d dy-Hamilton approach or “to offer a touch- 88, Eikel, 328, 333, 74 S.Ct. Voris jurisdictional stone for all future LHWCA (1953)). 92, 98 L.Ed. 5 Humphries, questions.” not, Lines’s 24th simply that a situs “need not be We stated alone, necessarily “adjoining, an standing exclusively purposes for maritime or be used dock, terminal, wharf, building way, dry pier, any specified distance of within railway.” See 33 U.S.C. marine operation” [or] or a ‘maritime’ for it waters 903(a). to bear in mind our § Yet if we were scope. Id. at We within the LHWCA’s broadly and in duty interpret the statute properly ruled then held that the Board had Congress’s purposes, remedial keeping given ‍‌​​‌‌​‌​​​‌​​​‌​‌​​‌​​​​‌​​​‌‌​​​‌‌​​‌​​​​​‌‌‌‌​‍employee’s injuries, that the sustained surely that Farrell conclude employee we would was struck a car while when the facility is a maritime situs working Lines’s 24th Street picking up employees food for over- 903(a)’s meaning of section refer- time, within the аt a covered situs: had not occurred customarily adjoining area to “other ence the accident occurred more than a mile from loading, unloading, employer in terminal, an public highway it occurred on building repairing, dismantling, or a vessel.” any portions that did not connect

employer’s operations, happened it after the B. employee patronized had a restaurant that separated from water and the terminal 1987, concluded, opinion issued neighborhood, a residential at least one reviewing of situs under the after the issue other restaurant was closer to the single is ... no con “[t]here employee’s and the location at the time of vincing determining just where the test for injury “did not result from hazards geographical coverage boundaries uniquely shipyard industry.” inherent inquiry lie” and that re LHWCA omitted). (quotation ac- Id. 375 While quires drawing.” in line a “difficult exercise knowledging duty our to read the re- situs Though Humphries, F.2d at 373-74. 834 quirement broadly, we believed that to find twenty-three judges “strug had Fifth Circuit coverage on such facts would be to come issue,” gled bravely with the we observed “perilously eliminating close to situs re- [the majority that a of that court was able to quirement] entirely.” Id. at 375. litany than a of factors devise “little more in a which are not conclusive situs determina though Humphries Even we did not Id.; Texports tion.” Stevedore Co. v. see adopt particular making test for situs de (5th Winchester, Cir.1980), cert. 632 F.2d 504 terminations, this and other circuits have denied, 452 69 U.S. suggested requires that what the statute that, in L.Ed.2d 406 We stated Bra it when states must have Herron, dy-Hamilton Co. v. Stevedore occurred on either waters or an (9th Cir.1978), F.2d 137 the Ninth Circuit area,” 903(a), “adjoining see 33 U.S.C. is a glance had taken at first least “what strong relationship functional between such approach,” practical seems a more Hum injury. waters and site of the In New Dock, phries, 374, by identifying 834 F.2d at four port Dry Shipbuilding News Co. v. non-exclusive) primary (yet factors to be Graham, Cir.1978), weighed: denied, cert. U.S. S.Ct. (1978), particular suitability example, of the site for the L.Ed.2d we held statute; parts-making facility foundry maritime uses referred to in the were adjoining properties they whether “integral are devoted covered sitases' because were commerce; primarily parts shipyard,” though they uses maritime even proximity 1,200 3,000 the waterway; of to from the site the were located feet and feet injuries Petitioners’ occurred is a respectively. See also Bra- at which edge, the water’s that, (stating covered maritime situs. 568 F.2d at dy-Hamilton, Congress’s purposes, furthеr remedial to stated, already “adjoin- As I have the word ‘adjoining [statutory] phrase area’ “the ing” encompasses only a not strict notion of to describe a functional rela- be read should contiguity, also a but more relaxed notion of depend not in all cases tionship that does things being general two located within the contiguity”). upon physical vicinity of each other. See Third Webster’s focusing Employing approach (1981) less on (de- Dictionary New International on functional relation- contiguity and more fining “adjoining” “touching bounding” our sister circuits have ships, at least two of being space”). Recognizing “near in our non-contiguous to be maritime found areas duty interpret broadly to the statute so that Texports the Act. In Steve- situses under Congress’s objectives may remedial be dore, example, the Fifth Circuit held that achieved, Terminal, see Northeast Marine gear located “five blocks from the room 432 U.S. at 97 S.Ct. at we should gate dock” and half of a block of the nearest phrase adjoining hold that the “other area” Authority edge property of Port from the require contiguous does not that an area be situs. 632 F.2d at 513-16. was covered navigable with waters for that area to be Brady-Hamilton, In the Ninth Circuit held covered the LHWCA. To hold otherwise approximately gear that a locker “located only duty not violates our to accord the stat- 2,600 edge of the feet north of the Columbia interpretation, ute a also funda- broad but 2,050 outside the entrance River and feet mentally approach conflicts the we took with Longview” a covered gate of the Port of was case, Humphries. In that we did not interpreta- 568 F.2d at 139-41. Our situs. narrowly ask whether the site at which the directly of the Act in Sidwell runs con- tion contiguous claimant was was indeed, rulings; trary to such the Sidwell Instead, navigable waters. we took a fact- describing approach taken opinion, while approach, asking intensive not what the Brady-Hamilton, does not discuss the fact distance was between the situs and the wa- noncontiguous that a area was deemed cov- ter, injury but also whether occurred ered in that case. connecting employer’s operations, a road injury separated of the whether site was again Humphries, we should refuse As neighbor- from the water non-maritime adopt rigid statutory to definition hoods, employee whether the could have car- particularly phrase “other area” — assigned at a closer ried out his task location contiguous requiring that an area be one employee’s and whether the adjacent navigable with or waters —and location at the time of the was attrib- ... reiterate that a situs “need within uniquely to “hazards inherent utable any specified distance of waters or shipyard industry.” (quota- F.2d at 375 operation” for it to fall a ‘maritime’ within omitted). tion scope. Humphries, 834 F.2d at the Act’s also reassert 373. We should while analy- Employing similarly fact-intensive by the Circuit in factors articulated Ninth here, we should find that the off-terminal sis Brady-Hamilton guideposts useful are facility at Petitioners their which sustained conducting inquiry, they do not the situs sufficiently proximate comprise an exhaustive list relevant Petitioners to make claims waters enable siderations. facility for federal benefits. The 24th Street Far- one mile from such waters. is located C. Lines was forced the Commonwealth rell Virginia container- light statutory language, leg- to move most of its due animating language, repair operations to the off-terminal site policies islative facil- expansion. The 24th Street interpretation of the Act articulated to terminal possible: at ity to the terminal as in a document issued is as close Director OWCP chosen, case, facility all closer present the facts of the the time to ex- located in areas zoned should conclude that the 24th Street facilities were basis, un- daily eligible for additional benefits On a have been operations. elude such injuries if had oc- between the terminal der the LHWCA their are shuttled workers facility during frequent under the di- shifts at curred one of the and the off-terminal single supervisor during in accordance than a shift at of a rather rection needs; repair facility the 24th company’s nearby to which the with the off-terminal chosen, in fact at least employ- site actions forced their Street was Commonwealth’s such part, of the ease with which because toer move.8 personnel shuttling of could be routine of It should also be noted that the Director location at the time ducted. Petitioners’ interpretation of has offered an OWCP surely the result of “haz- was their weighs in the statute that Petitioners’ favor shipyard indus- uniquely ards inherent August In and that merits some deference. try”: shipyard expansion, Petitioners due to 1977, the Director of OWCP issued a docu- carry to out essential had no choice but Program ment titled Memoran- “LHWCA performed work that had once been maritime to dum No. 58” order inform OWCP’s edge at the 24th Street near the water’s position offices of thе district “OWCP’s short, very strong facility func- instead. Program coverage of the Act.” the amended relationship between the 24th tional exists Memorandum No. 58 states: Graham, facility and NIT. See space In areas in which additional immedi- 169; Brady-Hamilton, F.2d at F.2d at ately adjacent previously established pier or terminal boundaries of a waterfront underlying policy considerations expansion required is not for the available should fur- passage of the 1972 Amendments modernization, ... such facilities as persuade ther us that the “gear lockers” ... be located outside Congress is a made clear that covered situs. the fenced boundaries of a terminal. Such state-provided regarded it benefits as inade- practical integral parts facilities are fact quate. It U.S.C.C.A.N. ...; they maritime should terminal deeply it also made cleаr that was troubled regarded as extensions of the terminals many maritime workers fre- the fact that they to which relate. quently passed in and out of cover- LHWCA 58, Prog. No. at ll.9 Because Farrell Mem. tasks, age carrying daily on their while so repair its moved most of maritime activities compensation they re- the amount away only upon from the terminal the Com- depended on “the fortuitous circum- ceived demand, monwealth’s and because the NIT they happened stance” to be work- of where operate single, and 24th Street facilities as a ing when the occurred. See 1972 unit, functionally integrated the Director’s Coverage at 4707-08. U.S.C.C.A.N. interpretation statutory language sug- By adopting therefore extended landward. gests that Petitioners were at a situs phrase cramped interpretation of the “other cоvered thereby denying Peti- area” jurisdictional grounds, tioners’ claims on “Because the Director ad [of OWCP] subjecting Petitioners to a are “harsh and ministers and enforces the this ],” incongruous interpretation result[ see Northeast Marine court to [of defers his Terminal, contrary 97 S.Ct. at unless it is unreasonable or Act] precise Congressional Zapata Haynie that is of the nature offended intent.” (4th Barnard, Corp. Congress’s sensibilities and motivated it to Cir.1991); Weyher/Livsey amend the Act: Petitioners are entitled accord Construc benefits, tors, Prevetire, though they to state even would Inc. v. Williams, Judge points Judge perceive

8. The Williams out ante 9. Unlike fact I fail to how policies [by these were "wielded language reasonably the Director’s can be con- requirement Circuit] Third to eliminate the situs coverage strued to extend to "lоcations as remote grounds altogether” hardly choosing whol- City, as Kansas Kansas.” See ante at 934. ly ignore policies interpreting those when compelled every Act. If were courts abandon statutory tool of construction that had ever been abused, we would be left with few tools indeed. Cir.1994); Shipbuilding & Newport News Howard, F.2d 208- America,

Dry Dock Co. v. UNITED STATES of Cir.1990). Indeed, stated Plaintiff-Appellee, we have only to the Director’s that we will defer policy-making reasonable administrative decisions, reasonable constructions but to his Denny GULLETT, R. Defendant- jurisdictional requirements as of the Act’s Appellant. Haynie, F.2d at 258 n. 5. Zapata

well. No. 94-5822. repre No. 58 Program if Memorandum Even of enforcement only an articulation sents Appeals, United States Court of guidelines, rather than a formal declaration Fourth Circuit. agency’s ‍‌​​‌‌​‌​​​‌​​​‌​‌​​‌​​​​‌​​​‌‌​​​‌‌​​‌​​​​​‌‌‌‌​‍position, it is “still entitled judicial weight on review.” Martin some Argued Nov. 1995. Review Occupational Safety and Health Decided Feb. Comrn’n, 1179, 113 Director’s L.Ed.2d 117 one,

interpretation of the Act is reasonable entitled to at least some and is therefore measure of deference. relationship strong functional ex-

Given isting NIT and 24th Street facil- between the

ities, objectives spurring pas- the remedial Amendments, duty to

sage of our broadly objec- interpret the Act so those achieved, and the Director’s tives interpretation of long-standing reasonable Act, should hold that Peti- the amended respective their tioners sustained maritime situs. a covered

III. length I on at some to ex- have rambled why we must plain the Sidwell case which I shaky ground. What have set follow is on relevance, however, forth here will have case is reheard en if Sidwell or the instant granted if in either case banc or certiorari is Supreme Court. the United States

Case Details

Case Name: Parker v. Director, Office of Workers' Compensation Programs

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Feb 9, 1996

Citation: 75 F.3d 929

Docket Number: 94-2653

Court Abbreviation: 4th Cir.