                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-29-2003

Maher Terminals Inc v. Director OWCP
Precedential or Non-Precedential: Precedential

Docket 01-3343




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                                 PRECEDENTIAL

                                             Filed May 29, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 01-3343


                  MAHER TERMINALS, INC.,
                                            Petitioner
                                 v.
   DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
            PROGRAMS; VINCENT RIGGIO
                                            Respondents

 On Petition for Review Pursuant to 33 U.S.C. § 921(c) of
 the Decision and Order of the United States Department
 of Labor, Benefits Review Board, Entered June 28, 2001
             (BRB Nos. 96-1136 and 00-960)

                  Argued February 24, 2003
 Before: BECKER, Chief Judge,* SCIRICA, Circuit Judge**
             and SHADUR,***District Judge.

                     (Filed: May 29, 2003)




* Judge Becker completed his term as Chief Judge on May 4, 2003.
** Judge Scirica succeeded to the position of Chief Judge on May 4,
2003.
*** Honorable Milton I. Shadur, United States District Judge for the
Northern District of Illinois, sitting by designation.
                                    2


                           WILLIAM M. BRODERICK, ESQUIRE
                            (ARGUED)
                           RICHARD P. STANTON, JR.,
                            ESQUIRE
                           7 Dey Street, Suite 700
                           New York, NY 10007
                           Counsel for Petitioner
                           JIM C. GORDON, JR., ESQUIRE
                           JOSHUA T. GILLELAN, II, ESQUIRE
                           United States Department of Labor
                           Office of the Solicitor
                           200 Constitution Avenue, N.W.
                           Washington, D.C. 20210
                           Counsel for Respondent Director,
                           Office of Workers’ Compensation
                           Programs
                           PHILIP J. ROONEY, ESQUIRE
                            (ARGUED)
                           Israel, Adler, Ronca & Gucciardo
                           160 Broadway
                           New York, NY 10038
                           Counsel for Respondent
                           Vincent Riggio

                    OPINION OF THE COURT

BECKER, Circuit Judge.
   The sole question in this petition for review of the order
of the United States Department of Labor, Benefits Review
Board (the “Board”) is whether the claimant, Vincent Riggio,
is a covered maritime employee under the Longshore and
Harbor Workers Compensation Act, 33 U.S.C. § 901 et seq.
(the “Act”). Riggio was employed by petitioner Maher
Terminals, Inc. (“Maher”) as both checker, a covered
position, and delivery clerk, a job that is not covered by the
Act.1 Although Maher stipulated at oral argument that

1. Delivery clerks are not covered by the Act because they perform
clerical work in an office; in contrast, checkers are covered because they
are involved in the loading and unloading process, traditional
longshoring work that generally involves activities on the docks.
                                     3


Riggio split his time evenly between these jobs, the
company argues that Riggio is not covered by the Act
because on the day of his injury he was working as a
delivery clerk and was not subject to reassignment. In
response, Riggio asks us to follow the reasoning of the
Board and find him covered because although he was not
working in a covered position on the day of his injury, he
regularly engaged in covered maritime employment. Thus,
Riggio submits, his job at Maher required him to spend “at
least some of [his] time in indisputably longshoring
operations,” the test for coverage articulated by the
Supreme Court in Northeast Marine Terminal Co. v. Caputo,
432 U.S. 249, 273 (1977).
  We agree with Riggio’s interpretation of the Act and will
not adopt Maher’s narrow interpretation of the Act’s
coverage analysis that would include only the day on which
the claimant was injured. Instead, we believe that we must
look at the claimant’s regular duties to determine whether
he is engaged on a regular basis in maritime employment.
We will therefore deny Maher’s petition for review.

                                     I.
  The facts are not disputed. On February 3, 1994, Riggio
injured his left arm when he fell off a chair while working
in the office of Berth 62 of Maher’s port facilities in
Elizabeth, New Jersey. Although he was employed as a
delivery clerk on the day of his injury, Riggio split his time
evenly between work as a checker and as a delivery clerk
for Maher.2 He was a member of the local checker’s union

2. The parties originally disagreed as to what percentage of his time
Riggio worked as a checker or a delivery clerk. In the first hearing before
the administrative law judge, Riggio testified that he split his time evenly
between these positions. Maher disputed this assertion by presenting
evidence that Riggio had worked solely as a delivery clerk in the two
weeks before the injury. Maher conceded on remand before the
administrative law judge that Riggio worked occasionally as a checker
and was subject to assignment to this position. However, at oral
argument before this court, Maher stipulated to the fact that Riggio
worked 50 % of his time as a checker and the other 50 % as a delivery
clerk.
                              4


and remained on Maher’s permanent hire list, but not on a
specified job list, so that the dock boss could assign him to
a different job each day. When Riggio worked as a checker,
he was required to be in the shipping lanes, but when
employed as a delivery clerk, Riggio worked exclusively in
the office entering data into a computer. In both jobs, his
function was to handle paperwork for the in-coming and
out-going cargo.
   This case has a lengthy administrative history. Because
the facts are not in dispute the sole issue in the
administrative proceedings was the legal question whether
Riggio’s claim is covered under the Longshore & Harbor
Workers Compensation Act, 33 U.S.C. § 901 et seq. The
first administrative law judge (“ALJ”) to hear the case,
Judge Ainsworth Brown, denied coverage because he found
that Riggio’s job as a delivery clerk was excluded from
coverage because it was a clerical position under 33 U.S.C.
§ 902(3)(A) (stating that “individuals employed exclusively to
perform office clerical, secretarial, security, or data
processing work” shall not be considered maritime
employees covered by the Act). Judge Brown determined
that even though Riggio also worked as a checker, this was
insufficient to satisfy his burden of proving coverage under
this court’s decision in Maher Terminals, Inc. v. Farrell, 548
F.2d 476 (3d Cir. 1977) (holding that a delivery clerk is not
covered under the Act).
   On appeal, the Benefits Review Board vacated Judge
Brown’s denial of benefits. It noted that because Riggio also
worked as a checker, he could not have been “exclusively”
employed as a delivery clerk within the meaning of 33
U.S.C. § 902(3)(A). The Board remanded the case to the
Office of Administrative Law Judges for further proceedings.
Before the case was heard again, Maher petitioned this
court for review of the Board’s order, but we dismissed the
petition for lack of jurisdiction. The parties also agreed on
a stipulation resolving the medical and compensation
issues subject to the final resolution of the coverage issue.
   On remand, the case was assigned to a different ALJ,
Judge Ralph A. Romano, whom the parties informed about
their stipulation, although they did not ask him to enter the
stipulation into the record at that time. Judge Romano held
                              5


that a delivery clerk could be covered by the Act only if he
were subject to reassignment as a checker during the
course of a single workday. Since Riggio worked only as a
delivery clerk on the day of his injury and did not
demonstrate that he was subject to reassignment during
that day, Judge Romano denied him coverage. Riggio
appealed again to the Board, which rejected Judge
Romano’s “same day of injury” status test. Instead, the
Board found Riggio to be covered because “he was assigned
to work as a checker by [Maher] as a part of his regular
duties,” even though he did not work as a checker on the
day of his injury or even in the two weeks previous.
Accordingly, the Board reversed Judge Romano’s order and
remanded the case “for consideration of any remaining
issues.”
  Within the mandated 60 day period to appeal, see 33
U.S.C. § 921(c), Maher filed a petition in this court for
review of the Board’s decision. Riggio subsequently filed a
motion to hold briefing in abeyance pending the finalization
of the stipulation referred to above regarding the amount
recoverable upon resolution of the coverage issue. The final
version of the stipulation read in relevant part:
    There is dispute [sic] between claimant and employer
    as to the existence of jurisdiction under the Longshore
    and Harbor Workers’ Compensation Act. The employer
    does not concede the existence of such jurisdiction by
    reason of the execution of this stipulation. The parties
    agree, in the event of a finding of jurisdiction under the
    Act, that the injury has caused a permanent loss of use
    to the left upper extremity and that the claimant is
    entitle [sic] to an award of 4% of the left arm, equaling
    12.48 weeks, at a weekly rate of $738.30 pursuant to
    33 U.S.C. 908(c)(1).
    . . .
    Additionally, in the event that the third Circuit [sic]
    finds jurisdiction under the [Act], and an award of 4%
    of the left arm is awarded, a fee of $7,500.00 should be
    paid to the firm of Israel, Adler, Ronca & Gucciardo up
    and above compensation paid to the claimant.
                                    6


  Judge Romano issued an order approving the stipulation,
but he characterized the stipulation as a settlement.
Recognizing that Judge Romano’s order of settlement was
not what the parties wanted, Maher petitioned Judge
Romano to amend the order to reflect that the agreement is
a stipulation and not a settlement. In a subsequent order,
Judge Romano complied with this request.
  We have appellate jurisdiction to review the Board’s order
under 33 U.S.C. § 921(c).3 Our examination is “limited to a
determination of whether the Board acted in conformance
with applicable law and within its proper scope of review.”
Curtis v. Schlumberger Offshore Services., Inc., 849 F.2d
805, 807 (3d Cir. 1988). Because the Board does not
administer the Act, our review of its interpretation of the
Act is “essentially plenary” but we “will ‘respect’ [the
Board’s] interpretation if it is ‘reasonable.’ ” Sea-Land Serv.,
Inc. v. Rock, 953 F.2d 56, 59 (3d Cir. 1992) (quoting Curtis,
849 F.2d at 808).

                             II. Coverage

             A. Description of the Coverage Test
  The 1972 amendments to the Longshore and Harbor
Workers Compensation Act created a “two-part test ‘looking
both to the “situs” of the injury and the “status” of the
injured,’ to determine eligibility for compensation.” Rock,
953 F.2d at 60 (quoting Northeast Marine Terminal Co. v.
Caputo, 432 U.S. 249, 265 (1977)). Because Congress

3. The Director, Office of Workers’ Compensation Programs, a respondent
in this case, filed a motion to dismiss Maher’s petition for review,
claiming that this court lacks jurisdiction to hear this appeal because
the Board’s decision was not a “final order” within the meaning of 33
U.S.C. § 921(c). We will deny this motion because although the Board
remanded the case to the ALJ for further consideration, there was
nothing more for the ALJ to decide in light of the parties’ stipulation
resolving all issues except for the legal question of coverage. Because the
Board’s order was “for all purposes final by the time this court was
called upon to consider the petition,” we have jurisdiction under the Act.
Sea-Land Serv., Inc. v. Director, OWCP, 540 F.2d 629, 631 n.1 (3d Cir.
1976).
                              7


included a broad geographical area in the “situs”
component of the test, including both injuries on water and
areas on land that are connected to maritime activity, it
limited the persons who fulfill the “status” test to those who
“engaged in maritime employment.” 33 U.S.C. § 902(3). The
Act defines such persons as:
    any longshoreman or other person engaged in
    longshoring operations, and any harbor-worker
    including a ship repairman, shipbuilder, and ship-
    breaker, but such term does not include —
    (A) individuals employed exclusively to perform office
    clerical, secretarial, security, or data processing work;
Id. We noted in Rock that this definition of “maritime
employment” is rather imprecise, but that Congress “came
closest to defining this key term in the ‘typical example’ of
the expanded coverage set forth in the legislative history.”
953 F.2d at 60. The legislative history explains:
    The intent of the Committee is to permit a uniform
    compensation system to apply to employees who would
    otherwise be covered for part of their activity. To take
    a typical example, cargo, whether in break bulk or
    containerized form, is typically unloaded from the ship
    and immediately transported to a storage or holding
    area on the pier, wharf, or terminal adjoining navigable
    waters. The employees who perform this work would be
    covered under the bill for injuries sustained by them
    over the navigable waters or on the adjoining land
    area. . . . [E]mployees whose responsibility is only to
    pick up stored cargo for further transshipment would
    not be covered, nor would purely clerical employees
    whose jobs do not require them to participate in the
    loading or unloading of cargo. However, checkers, for
    example, who are directly involved in the loading or
    unloading functions are covered by the new
    amendment.
H.R. Rep. No. 92-1441, 92d Cong., 2d Sess. 10-11 (1972),
reprinted in 1972 U.S.C.C.A.N. 4698, 4708.
  In its decision in Caputo, supra, the Supreme Court read
the “typical example” in the legislative history quoted above
                              8


as indicating Congress’s intent “to cover those workers
involved in the essential elements of unloading a vessel—
taking cargo out of the hold, moving it away from the ship’s
side, and carrying it immediately to a storage or holding
area.” 432 U.S. at 267. In contrast, “the example also
makes it clear that persons who are on the situs but are
not engaged in the overall process of loading and unloading
vessels are not covered.” Caputo, 432 U.S. at 267; see also
Chesapeake and O.R. Co. v. Schwalb, 493 U.S. 40, 46
(1989) (stating that the coverage test for “land-based work
other than longshoring and the other occupations named in
§ 902(3) is an occupational test focusing on loading and
unloading”).
  Importantly, the Caputo Court specifically rejected the
“moment of injury” principle, in which the coverage analysis
depended on the task that the employee was engaged in at
the time of the injury. Rather, the Court held that “when
Congress said it wanted to cover ‘longshoremen,’ it had in
mind persons whose employment is such that they spend
at least some of their time in indisputably longshoring
operations and who, without the 1972 amendments, would
be covered for only part of their activity.” 432 U.S. at 273.
The Court emphasized this point again in P.C. Pfeiffer Co.
v. Ford, 444 U.S. 69, 81 (1979), when it stated that “[a]
worker responsible for some portion of that (longshoring)
activity is as much an integral part of the process of loading
or unloading a ship as a person who participates in the
entire process.” In Rock, supra, we explained the Court’s
interpretation of the Act as seeking “to avoid ‘shifting
coverage’ . . . by extending coverage to an employee who
throughout the day might have been assigned to unload a
vessel but at the hour of the accident had been temporarily
assigned a task that might not have been covered under the
Act.” 953 F.2d at 63.
   Although the Supreme Court’s decisions indicate a rather
liberal analysis of the extent of coverage, we held in Rock
that there is a limit to those covered by the Act. In that
case, the claimant had been employed for several years as
a longshoreman, but eventually decided to work solely as a
courtesy van driver, a choice he was entitled to by virtue of
his seniority. The claimant worked solely in this function
                              9


for two years before the date of his injury, which occurred
during the course of his job as a driver. We determined that
this type of employment was not covered under the
Supreme Court’s interpretation of the Act because a
courtesy van driver is not “an essential element or
ingredient of the loading or unloading process.” 953 F.2d at
67. Although we noted that the claimant was officially
subject to reassignment as a longshoreman, we declined to
grant him coverage for that reason alone because we did
not think that the “shifting coverage” aspect of Caputo
applied. We explained:
    The [Caputo] holding cannot be stretched to cover
    Rock, who voluntarily chose a position that would no
    longer involve him in the dangers of loading and
    unloading, and whose only occupation in the two years
    in which he held his new job was to drive the courtesy
    van. [Caputo] protects those employees who walk in
    and out of coverage on a frequent basis, not those who
    are nominally subject to reassignment.
Id. at 67 n.17.

           B. Application of the Coverage Test
   The parties agree that the only dispute over Riggio’s
coverage regards his status as a maritime worker — not the
situs of the injury. Riggio makes two arguments in favor of
coverage. First, he asserts that his job as a delivery clerk,
which he was performing on the day of the injury, was a
covered form of employment. Second, he contends that
because he worked on occasion for Maher as a checker,
and was subject by Maher to assignment on any day as a
checker, this too confers coverage. We do not find Riggio’s
first argument persuasive. Riggio admits in his brief that he
“does not contend that his office activities, considered in
isolation, confer [statutory coverage].” The law is clear that
delivery clerks, performing the function that Riggio was on
the day of his injury, are not covered under the Act. Maher
Terminals, Inc. v. Farrell, 548 F.2d 476 (3d Cir. 1977); see
also Sette v. Maher Terminals, Inc., 27 BRBS 223 (1993)
(denying coverage for a delivery clerk).
                              10


  In his second argument, Riggio urges us to look beyond
the day of the injury in order to determine whether he was
“engaged in maritime employment.” In other words, Riggio
submits that because he worked half of his time as a
checker, a job that is covered under the Act, see Rock, 953
F.2d at 64, and was subject to assignment as a checker, it
would be improper to look merely at the moment of his
injury to characterize whether he was engaged in maritime
employment. Maher disagrees with this analysis and argues
that our decision in Farrell, supra, is “on all fours” with the
case at bar. The employee in Farrell, like Riggio on the day
of his injury:
    worked in an office. He did not work on the pier, in the
    yard, or on the dock as a checker . . . . That on
    occasion he left the office to examine markings on
    cargo, and that in the past he had worked as a checker
    is not controlling. What is controlling is the nature of
    his primary duties. As we perceive the congressional
    intent, that is the sole test. Farrell’s primary duties
    being that of a clerk and not a checker, he is excluded
    from coverage.
548 F.2d at 478. Despite these similarities, Riggio
contends, and the Board agreed, that the analysis in Farrell
is no longer valid in light of Caputo and other subsequently
decided Supreme Court cases. Riggio argues persuasively
that Caputo’s holding that covered employees must “spend
at least some of their time in indisputably longshoring
operations,” 432 U.S. at 273, creates a broader scope of
coverage than Farrell’s “primary duties” test.
  For further support, Riggio notes that in our decision in
Rock, we cited with approval the Court of Appeals for the
First Circuit’s opinion in Levins v. Benefits Review Board,
724 F.2d 4 (1st Cir. 1984). Levins concerned whether an
employee who was called a “book clerk” was covered under
the Act. Rather than look only at the title of the employee,
the First Circuit examined “the actual nature of [the
employee’s] regularly assigned duties as a whole.” Id. at 7
(quotation omitted) (emphasis in original). The First Circuit
also rejected the use of the “primary duties” test from our
opinion in Farrell because the Supreme Court stated in
Caputo that workers who spend “at least some of their time
                             11


in indisputably longshoring operations” are covered. Id. at
8 (quoting Caputo, 432 U.S. at 273). The First Circuit
examined the totality of the claimant’s job, and noted that
serving as a runner, a covered job, constituted not
“discretionary or extraordinary occurrences, but rather a
regular portion of the overall tasks to which petitioner could
have been assigned as a matter of course.” Id. at 9.
  Other Courts of Appeals have followed the same
approach as the First Circuit and looked at the totality of
the employee’s duties to determine whether he was engaged
as a maritime employee. For example, in Boudloche v.
Howard Trucking Co., 632 F.2d 1346 (5th Cir. 1980), the
Court of Appeals for the Fifth Circuit concluded that an
employee who worked between 2.5 to 5 percent of his time
in traditional longshoring operations was covered. Id. at
1348. The Fifth Circuit specifically rejected a “substantial
portion” test — akin to our “primary duties” test in Farrell
— because the Supreme Court’s decisions in Caputo and
Ford explained that only “some” of an employee’s time must
be in longshoring operations in order to be covered. Id. The
Fifth Circuit was careful to note, however, that its “decision
does not undertake to define the point at which a worker’s
employment in maritime activity becomes so momentary or
episodic it will not suffice to confer status.” Id.
   Interestingly, Maher responds that the same aspect of
Caputo upon which these Courts and Riggio rely supports
its argument as well. Maher quotes our interpretation of
Caputo in Rock in which we explained that the Supreme
Court extended “coverage to an employee who throughout
the day might have been assigned to unload a vessel but at
the hour of the accident had been temporarily assigned a
task that might not have been covered under the Act.” 953
F.2d at 63. Maher seizes on our use of the phrase,
“throughout the day,” to suggest that we adopted a narrow
conception of protection from shifting coverage solely to, in
Maher’s words, “employees who walk in and out of coverage
throughout the work day.”
  This is a misreading of Rock. As explained above, we
declined to find coverage in that case because the claimant
had worked for two years exclusively in a non-covered
position and was only “nominally subject to reassignment”
                             12


to a covered job. 953 F.2d at 67 n.17. We also stated that
Caputo “protects those employees who walk in and out of
coverage on a frequent basis” and that Caputo followed the
clear intent of the statute, “which was in part to avoid the
shifting coverage caused by an employee’s constant
movement during the workday between land and sea.” Id.
In Rock, the claimant could not show that there was any
real possibility of him working in a covered job.
   Riggio’s employment history is very different from that of
the claimant in Rock; it more closely resembles those of the
claimants in Levins and Boudloche. Because Maher
stipulated at oral argument that Riggio spent half of his
time employed as a checker, the mere fact that he was not
employed in a covered position on the day of his injury, or
even in the two weeks previous, does not call into question
the conclusion that Riggio’s regular duties involve spending
“at least some of his time in indisputably longshoring
operations.” Caputo, 432 U.S. at 273. Further, Riggio was
actually subject to reassignment as a checker, unlike the
claimant in Rock, and the evidence does not support the
conclusion that Riggio’s engagement in maritime
employment was “so momentary or episodic” as to be
insufficient to confer coverage. Boudloche, 632 F.2d at
1348.
  In a final attempt to deny Riggio coverage, Maher argues
that we should not look at the employee’s overall
employment history when conducting the coverage analysis
and cites to the Court of Appeals for the Ninth Circuit’s
decision in McGray Construction Co. v. Director, OWCP, 181
F.3d 1008 (9th Cir. 1999) for support. The facts in McGray,
however, are easily distinguished from the case at bar. The
claimant in McGray had been engaged in maritime
employment in the past but had been subsequently hired
by a different employer for a non-maritime job. The Ninth
Circuit concluded that the claimant was not covered by the
Act because it is impractical for an employer to know the
prior work history of its employees and it would be unfair
to treat employees working for an employer exclusively on
a non-maritime job differently depending on this history. Id.
at 1016. These concerns are not present in the instant case
because it covers only Riggio’s work history while employed
                              13


by Maher, which should know that it routinely assigns
Riggio to maritime employment.
  We believe that the proper analysis requires us to look at
the “regular portion of the overall tasks to which [the
claimant] could have been assigned as a matter of course,”
Levins, 724 F.2d at 9, to determine whether he spends “at
least some of [his] time in indisputably longshoring
operations.” Caputo, 432 U.S. at 273. Because Riggio spent
half of his time as a checker and his overall duties included
assignment as a checker, an indisputably longshoring job,
he is covered under the Act even though he worked as a
delivery clerk on the day of his injury.
  The petition for review of the Board’s decision will be
denied.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
