     Case: 14-30488   Document: 00513035192     Page: 1   Date Filed: 05/07/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 14-30488                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
MICHAEL ALEXANDER,                                                 May 7, 2015
                                                                 Lyle W. Cayce
             Plaintiff - Appellant                                    Clerk

v.

EXPRESS ENERGY SERVICES OPERATING, L.P.,

             Defendant - Appellee




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before DAVIS, JONES, and CLEMENT, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      Plaintiff-Appellant Michael Alexander appeals from the district court’s
order granting Defendant-Appellee Express Energy Services Operating, L.P.’s
(“Express”) motion for summary judgment on seaman status, concluding that
Alexander is not a seaman and dismissing Alexander’s claims against Express
with prejudice. We affirm.
                                      I.
      We begin with the controlling law. We review the district court’s
summary judgment ruling de novo, applying the same Fed. R. Civ. P. 56
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standards as the district court. 1 Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” 2 “The court is to consider
evidence in the record in the light most favorable to the non-moving party and
draw all reasonable inferences in favor of that party.” 3
              A party asserting that a fact cannot be or is genuinely
              disputed must support the assertion by:

                     (A) citing to particular parts of materials in the
                     record, including depositions, documents,
                     electronically stored information, affidavits or
                     declarations, stipulations (including those made
                     for purposes of the motion only), admissions,
                     interrogatory answers, or other materials; or

                     (B) showing that the materials cited do not
                     establish the absence or presence of a genuine
                     dispute, or that an adverse party cannot produce
                     admissible evidence to support the fact. 4

“Summary judgment is appropriate if the non-movant fails to make a showing
sufficient to establish the existence of an element essential to that party’s
case,” and we may affirm “on any ground supported by the record, even if it is
different from that relied on by the district court.” 5
       “To maintain a cause of action under the Jones Act, the plaintiff must be
a seaman. Land-based workers are not seamen.” 6 To qualify as a seaman, a
plaintiff must prove that he meets both prongs of the test set out by the



       1 Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 275 (5th
Cir. 2014).
       2 Fed. R. Civ. P. 56(a).
       3 Bluebonnet, 754 F.3d at 276 (citation omitted).
       4 Fed. R. Civ. P. 56(c)(1).
       5 Bluebonnet, 754 F.3d at 276 (citations and internal quotation marks omitted).
       6 Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 346 (5th Cir. 1999) (citing Harbor

Tug and Barge Co. v. Papai, 520 U.S. 548 (1997)).
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Supreme Court in Chandris, Inc. v. Latsis, 515 U.S. 347 (1995). First, he must
prove that his duties “contribut[e] to the function of the vessel or to the
accomplishment of its mission,” which does not necessarily require that the
plaintiff “aid in navigation or contribute to the transportation of the vessel,”
but does require that he “be doing the ship’s work.” 7
               Second, and most important for our purposes here, a
               seaman must have a connection to a vessel in
               navigation (or to an identifiable group of such vessels)
               that is substantial in terms of both its duration and its
               nature. The fundamental purpose of this substantial
               connection requirement is to give full effect to the
               remedial scheme created by Congress and to separate
               the sea-based maritime employees who are entitled to
               Jones Act protection from those land-based workers
               who have only a transitory or sporadic connection to a
               vessel in navigation, and therefore whose employment
               does not regularly expose them to the perils of the sea.
               See 1B A. Jenner, Benedict on Admiralty § 11a, pp. 2–
               10.1 to 2–11 (7th ed. 1994) (“If it can be shown that the
               employee performed a significant part of his work on
               board the vessel on which he was injured, with at
               least some degree of regularity and continuity, the test
               for seaman status will be satisfied” (footnote omitted)).
               This requirement therefore determines which
               maritime employees in Wilander’s broad category of
               persons eligible for seaman status because they are
               “doing the ship’s work,” [McDermott Int’l, Inc. v.
               Wilander, 498 U.S. 337, 355 (1991)], are in fact
               entitled to the benefits conferred upon seamen by the
               Jones Act because they have the requisite
               employment-related connection to a vessel in
               navigation. 8

      The Court emphasized that “[a] maritime worker who spends only a
small fraction of his working time on board a vessel is fundamentally land


      7   515 U.S. at 357 (citations and internal quotation marks removed).
      8   Id. at 368-69 (emphasis added).
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based and therefore not a member of the vessel’s crew, regardless of what his
duties are.” 9 The Court adopted the Fifth Circuit’s rule of thumb for ordinary
cases that “[a] worker who spends less than about 30 percent of his time in the
service of a vessel in navigation should not qualify as a seaman under the Jones
Act,” though courts may vary the rule depending on the facts of a particular
case. 10 The Court explained that although the inquiry is fact-specific, “where
undisputed facts reveal that a maritime worker has a clearly inadequate
temporal connection to vessels in navigation, the court may take the question
from the jury by granting summary judgment or a directed verdict.” 11
       Even before Chandris was decided, the Fifth Circuit focused on the
amount of the work the plaintiff actually performed on a vessel, 12 and following
Chandris’s adoption of that rule, we must continue to apply it. We have
referred to “the Supreme Court’s teaching in Chandris that a seaman’s
connection with a vessel includes a temporal requirement, i.e. that the
worker spend a substantial part of his work time aboard the vessel.” 13
       Our pre-Chandris en banc decision in Barrett provides a useful example
of how we have applied this rule. There, a worker who was a member of a
contract maintenance crew working on production platforms in the Gulf of
Mexico was injured. Because many of the platforms were too small to
accommodate the maintenance crew and their equipment, a jack-up barge was
positioned alongside the small platforms to provide additional work space and


       9 Id. at 371 (emphasis added).
       10 Id.
       11 Id. (citations omitted).
       12 See Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1073-74 (5th Cir. 1986) (en banc)

(noting that a plaintiff may be a seaman if he was either permanently assigned to a vessel or
“performed a significant part of his work aboard the vessel with at least some degree of
regularity and continuity” (discussing Barrios v. Engine & Gas Compressor Servs., Inc., 669
F.2d 350, 353 (5th Cir. 1982); Holland v. Allied Structural Steel Co., 539 F.2d 476, 484 (5th
Cir. 1976))).
       13 Nunez v. B&B Dredging, Inc., 288 F.3d 271, 276 (5th Cir. 2002) (emphasis added).

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hold some of the equipment. The plaintiff, Barrett, performed the vast majority
of his work on the platform and only did incidental work on the adjacent vessel.
Relying on the seminal Robison case, we held:
              Robison requires evidence that the worker was
              “assigned permanently to . . . or performed a
              substantial portion of his work on the vessel.” This test
              is, of course, disjunctive, and permits a worker to be a
              crew member if he does substantial work on the vessel
              even though his assignment to it is not “permanent.” 14

We made it clear that Barrett’s work time on the vessel was inadequate to meet
the seaman test: “Because he did not perform a substantial portion of his work
aboard a vessel or fleet of vessels, he failed to establish that he was a member
of the crew of a vessel.” 15
       In short, to prove that he is a seaman, Alexander must prove both that
(1) he contributed to the function of a vessel or to the accomplishment of its
mission, and (2) he was assigned permanently to the vessel or spent a
substantial part of his total work time—30% —aboard the vessel or an
identifiable fleet of vessels. If he has failed to demonstrate at least a genuine
dispute as to a material fact with respect to either prong, Express is entitled
to summary judgment. With these standards in mind, we turn to the facts of
the case.
                                             II.
       Alexander was employed as a lead hand/operator in Express’s plug and
abandonment        (“P&A”)      department,        which     specializes     in    plugging
decommissioned oil wells on various platforms off the coast of Louisiana for
Express’s customers. At his deposition, he described his duties as ensuring that



       14781 F.2d at 1073 (quoting Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir. 1959);
and Davis v. Hill Eng’g, Inc., 549 F.2d 314, 326 (5th Cir. 1977)).
      15 Id. at 1076.

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                                    No. 14-30488
everything was set up and running properly on the deck of the platform and
ensuring that the plugging operation was successful. He testified that the
plugging operation essentially required the P&A team to check the pressure of
the well with various gauges and valves to make sure it was ready to be killed.
After that, the team would remove the bridge plug from the well, place a nipple
in the well, and pump fluids down the well to kill it. Once the well was under
control, the team would clean it and pump cement into it, then cut and remove
the pipe.
         On August 11, 2011, Alexander was injured while working on a P&A
project on a platform owned by Apache Corporation which had four wells on it.
At the time of the accident, a liftboat owned by Aries Marine Corporation
(“Aries”), the L/B RAM X (“RAM X”), was positioned next to the Apache
platform, with a catwalk connecting the vessel to the platform. The record
shows that the permanent crane, which was operated by an Aries employee for
the benefit of the P&A crew, was located on the liftboat, while other equipment,
including wireline equipment, was located on the platform. Alexander testified
that he and the P&A crew had set up the equipment on the platform before
work began, and he was working on the platform. Alexander was injured when
a wireline from the crane snapped, dropping a bridge plug/tool combination
which had been suspended a foot above the deck, which then rolled onto his
foot.
         Alexander filed this action under the Jones Act, 46 U.S.C. § 30104 et seq.,
against Express and other defendants. Express filed a motion for summary
judgment on seaman status, arguing that Alexander was a platform-based
worker who failed to satisfy either prong of the Chandris seaman status test.
With respect to the first prong, Express argued that Alexander did not
contribute to the function of a vessel or the accomplishment of its mission
because he worked on the wells on non-vessel fixed platforms. With respect to
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the second prong, Express argued that even though Alexander had shown that
approximately 35% of his P&A jobs involved the use of an adjacent liftboat, he
had failed to demonstrate that he spent at least 30% of his total work time on
the adjacent liftboat.
      In response, Alexander argued as to the first prong that he did in fact
contribute to the function of the Aries liftboat. As to the second prong,
Alexander erroneously stated that Express conceded that he spent 35% of his
total job on Aries liftboats; Express only stated that 35% of his jobs involved
an adjacent liftboat. Alexander then argued that, under Roberts v. Cardinal
Services, Inc., 266 F.3d 368 (5th Cir. 2001), and Johnson v. TETRA Applied
Technologies, L.L.C., No. CIV.A. 11-1992, 2012 WL 3253184 (E.D. La. Aug. 7,
2012), which applied Roberts, he was allowed to count toward the Chandris
temporal requirement all of his time on jobs that used an adjacent vessel (here,
at least 35%), without regard to how much time he himself spent on the vessel.
Significantly, Alexander never offered any evidence that he spent 30% or more
of his work time on a vessel; rather, his argument on this prong depends
entirely on his interpretation of Roberts.
      The district court granted Express’s motion for summary judgment on
the first prong, concluding that Alexander’s duties in this case were similar to
those of the plaintiff’in Hufnagel, which this court held did not contribute to
the function of a vessel because those duties related to the fixed platform, not
the vessel. 16 In a footnote at the end of the opinion, the district court opined
that Alexander had also failed to meet the second prong.
      As noted above, we may affirm the district court “on any ground
supported by the record, even if it is different from that relied on by the district




      16   See Hufnagel, 182 F.3d at 347.
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court.” 17 Pretermitting whether Alexander’s duties contributed to the function
of a vessel or the accomplishment of its mission, we conclude that Alexander
has failed to demonstrate that he is a seaman under Chandris’s temporal
connection prong. Chandris makes it clear that a seaman must spend a
substantial amount of time, ordinarily 30%, actually working on a vessel.
Alexander argues that Roberts means a plaintiff may count the amount of time
he spent working on a platform toward that requirement if a vessel was merely
adjacent to the platform and assisting with the platform work. 18 We cannot
accept Alexander’s argument because we are bound to follow clear and
controlling Supreme Court precedent.
       The undisputed summary judgment evidence shows that approximately
65% of Alexander’s jobs involved a fixed platform only, without the help of an
adjacent vessel. Even on the other jobs involving a vessel adjacent to the
platform, his work occurred mostly on the platform. It is not sufficient under
Chandris (or indeed under Barrett) that Alexander was merely near a vessel
on more than 30% of his jobs or that he performed some incidental work on a
vessel on those jobs; to be a seaman, he must show that he actually worked on
a vessel at least 30% of the time. Alexander has failed to produce sufficient
evidence to prove that point, which is an essential element of seaman status.
       We conclude that Alexander has failed to carry his burden of showing
that he is a seaman. We therefore affirm the district court’s order granting




       17 Bluebonnet, 754 F.3d at 276 (citations and internal quotation marks omitted).
       18 The district court in Johnson also interpreted Roberts that way. See 2012 WL
3253184, at *4 (“However, the court counted the time plaintiff spent working alongside the
employer’s lift boats, which amounted to 24.88% of his time, separately from the time plaintiff
spent working alongside lift boats owned by third parties, which amounted to 13.54%.
Because plaintiff could not show that at least 30% of his time was spent in the service of a
vessel or an identifiable fleet of vessels under common ownership or control, the court found
that he could not prove seaman’s status.” (citations omitted)).
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Express’s motion for summary judgment and dismissing Alexander’s claims
against Express with prejudice.
     AFFIRMED.




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