     Case: 16-30558      Document: 00513959512         Page: 1    Date Filed: 04/19/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                     FILED
                                                                                  April 19, 2017
                                      No. 16-30558
                                                                                  Lyle W. Cayce
                                                                                       Clerk
KYLE HALLE, Individually and On Behalf of Others Similarly Situated,

              Plaintiff–Appellant,

v.

GALLIANO MARINE SERVICE, L.L.C.; C-INNOVATION, L.L.C.,

              Defendants–Appellees.




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


Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
       Plaintiff–Appellant Kyle Halle sued Galliano Marine Service, LLC 1 and
C-Innovation, LLC (collectively, “the Defendants”) under the Fair Labor
Standards Act (“the FLSA” or “the Act”) to recover unpaid wages for overtime
worked during his employment at C-Innovation. The district court granted
summary judgment against Halle because it concluded that Halle qualified as
a “seaman” under the FLSA and was thus exempt from the Act’s overtime




       1Galliano Marine Service is the company responsible for Halle’s payroll checks, W-2s,
and other payroll documents.
    Case: 16-30558         Document: 00513959512         Page: 2    Date Filed: 04/19/2017



                                       No. 16-30558
provisions. Halle appealed. We REVERSE and REMAND this case for further
proceedings.
              I. FACTUAL AND PROCEDURAL BACKGROUND
      On October 30, 2015, Kyle Halle sued the Defendants under the FLSA
for unpaid overtime. 2 The Defendants in this case run a remotely operated
vehicle (“ROV”) business for offshore applications and employed Halle from
May 12, 2009, to October 12, 2015, as an ROV Technician and ROV Supervisor.
      ROVs are unoccupied mechanical devices used, among other things, to
fix, service, and repair offshore, underwater drilling rigs. They are generally
used to perform tasks that otherwise could not be performed by human divers
because of depth or water conditions. Technicians like Halle navigate and
control ROVs aboard an ROV Support Vessel, to which the ROVs remain
tethered while in use. ROV Support Vessels serve as “a means of transporting
their attached ROVs over water” and are specially outfitted for this purpose.
The ROV’s “handling system, wench, A-frame, hydraulic power unit[,] vans,
and control system” are all welded to the support vessel.
      The technicians who steer the ROVs work inside a windowless shipping
container converted into an ROV command center located on the support
vessel. From there, the ROV Technicians steer and control the ROVs using a
video feed and joysticks. Although the ROV command center is located on the
support vessel, technicians are not mixed with the support vessel’s crew,
cannot see whether any navigational issues are affecting the support vessel,
and, according to Halle, are considered by the crew to be “passengers” or “third
parties.” According to Halle, ROV Technicians are subject to a chain of
command separate and apart from that of the support vessel. Halle in




      2   Halle sued on behalf of himself and others who are similarly situated.
                                               2
    Case: 16-30558       Document: 00513959512   Page: 3   Date Filed: 04/19/2017



                                  No. 16-30558
particular always reported to C-Innovation’s Operations Coordinator and
Operations Manager, both of whom are land-based.
      Halle’s particular duties were dedicated only to ROVs. According to
Halle, he took no part in upkeep of the support vessel—he never performed
maintenance work like sanding, painting, or chipping the ROV Support Vessel.
Rather, the only maintenance work he performed was to the ROVs themselves.
Halle also never steered the support vessel but, in his role as ROV Supervisor,
did occasionally relay GPS coordinates from C-Innovation’s customers to the
support vessel captain either by radio or by pointing to a location on a chart.
This process apparently never took more than a few seconds. Despite his
knowledge of the support vessel’s final destination, Halle had “nothing to do
with determining the ROV Support Vessel’s path to the intended target,
steering, anchoring, making any navigational decisions[,] or taking any
navigational actions.”
      Halle sued the Defendants on October 30, 2015, for failing to pay him for
overtime as purportedly required by the FLSA. The Defendants moved for
summary judgment on January 25, 2016, arguing that Halle was exempt from
the FLSA’s overtime provisions because he qualifies as a “seaman” under the
Act. On February 25, 2016, the district court granted the Defendants’ motion
and dismissed Halle’s claim with prejudice. Thereafter, Halle filed a motion for
reconsideration, which was denied on April 18, 2016. Halle now appeals.
                                II. DISCUSSION
      “We review a grant of summary judgment de novo, applying the same
standard that the district court applied.” Smith v. Reg’l Transit Auth., 827 F.3d
412, 417 (5th Cir. 2016). Summary judgment is proper where “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.” Fed. R. Civ. P. 56(a). In reviewing


                                        3
     Case: 16-30558       Document: 00513959512         Page: 4     Date Filed: 04/19/2017



                                       No. 16-30558
a motion for summary judgment, factual inferences are viewed in the light
most favorable to the nonmoving party. Smith, 827 F.3d at 417.
       The FLSA requires employers to provide overtime pay to any employee
who works more than forty hours per week unless an exemption from this
protection applies. 29 U.S.C. §§ 207, 213; Coffin v. Blessey Marine Servs., Inc.,
771 F.3d 276, 279 (5th Cir. 2014). It is the “employer [who] bears the burden
to establish a claimed exemption.” Songer v. Dillon Res., Inc., 618 F.3d 467,
471 (5th Cir. 2010). This case involves the “seaman” exemption to the FLSA’s
overtime provision, 29 U.S.C. § 213(b)(6), and presents an issue of first
impression: whether ROV Technicians are seamen under the FLSA.
       An employee is a seaman when the following criteria are met: “(1) the
employee is subject to the authority, direction, and control of the master; and
(2) the employee’s service is primarily offered to aid the vessel as a means of
transportation, provided that the employee does not perform a substantial
amount of different work.” Coffin, 771 F.3d at 281 (citing 29 C.F.R. § 783.31).
Per Department of Labor (“DOL”) regulations, 3 “work other than seaman work
becomes substantial if it occupies more than 20 percent of the time worked by
the employee during the workweek.” 4 Id. at 279–80 (citing 29 C.F.R. § 783.37).
This Court must “evaluate an employee’s duties based upon the character of
the work he actually performs and not on what it is called or the place where
it is performed.” Id. at 280 (citing 29 C.F.R. § 783.33). Because “what each
employee actually does” determines how the FLSA applies to him, “application
of the seaman exemption generally depends on the facts in each case.” Id.




       3  Although not binding, this Court has stated repeatedly that these regulations are
“entitled to great weight.” Coffin, 771 F.3d at 279; accord Dole v. Petroleum Treaters, Inc.,
876 F.2d 518, 521 (5th Cir. 1989).
        4 As this Court has recognized, however, strict application of the twenty percent rule

is not necessary. Coffin, 771 F.3d at 284 n.5.
                                              4
     Case: 16-30558       Document: 00513959512         Page: 5     Date Filed: 04/19/2017



                                       No. 16-30558
A.     The FLSA and Jones Act
       We first reiterate a concept long-recognized by this Court: the definition
of “seaman” in the Jones Act 5 is not equivalent to that in the FLSA. Petroleum
Treaters, 876 at 520. The two acts are “separate and independent of each
other.” Id. While the Jones Act interprets seaman “broadly to maximize the
scope of the remedial coverage,” the exemptions under the FLSA “have been
drawn narrowly . . . to minimize the number of employees who lose the Act’s
protections.” Id. at 522–23. Compare Barrett v. Chevron, U.S.A., Inc., 781 F.2d
1067, 1070 (5th Cir. 1986) (describing the “expansive interpretation” given to
the word “seaman” in the Jones Act), with Brennan v. Greene’s Propane Gas
Serv., Inc., 479 F.2d 1027, 1032 (5th Cir. 1973) (noting how exemptions to the
FLSA are construed narrowly against the employer). Given these differences,
it is error for a court to resolve an FLSA case by resorting to legal standards,
such as the definition of a “seaman” or an “appurtenance,” from Jones Act
caselaw.
B.     Application
       As explained above, the test for whether someone is employed as a
seaman involves two prongs. See Coffin, 771 F.3d at 281. The first prong asks
whether the employee performs as “master or subject to the authority,
direction, and control of the master aboard a vessel.” 29 C.F.R. § 783.31. Here,
the district court seemingly equated the ROVs with “vessels” and concluded
that Halle’s “direct[ion]” and “command” of the ROVs satisfied this element.
But there is no evidence to suggest that the ROVs are vessels. The only “vessel”
in this case is the ROV Support Vessel. And according to Halle’s sworn
declaration, he was not subject to the support vessel’s chain of command and


       5The Jones Act is a maritime statute that “provides a cause of action in negligence for
‘any seaman’ injured ‘in the course of his employment.’” Chandris, Inc. v. Latsis, 515 U.S.
347, 354 (1995) (quoting 46 U.S.C. § 30104).
                                              5
    Case: 16-30558     Document: 00513959512     Page: 6   Date Filed: 04/19/2017



                                  No. 16-30558
did not report to the support vessel’s captain. Contrarily, another employee
submitted an affidavit attesting that Halle did report to the captain. This
competing testimonial evidence precludes summary judgment as to prong one.
      The second prong asks whether the “employee’s service is primarily
offered to aid the vessel as a means of transportation.” Coffin, 771 F.3d at 281
(citing 29 C.F.R. § 783.31). Because we find it dispositive in this case, the
second prong will be the focus of our analysis. This inquiry concentrates on the
duties of an employee. See 29 C.F.R. § 783.31; Coffin, 771 F.3d at 280. In
accordance with DOL regulations, this Court focuses on whether the
employee’s duties “primarily . . . aid in the operation of [the] vessel as a means
of transportation.” 29 C.F.R. § 783.31. We have intimated that the critical issue
in analyzing this prong is determining whether the “primary purpose” of the
particular individual’s work is safe navigation of the ship. Compare Owens v.
SeaRiver Mar., Inc., 272 F.3d 698, 703–04 (5th Cir. 2001) (concluding that
when the primary purpose of a tankerman’s job is “get[ting] cargo on or off the
barge,” he is not a seaman), with Coffin, 771 F.3d at 283–84 (finding that
vessel-based tankermen responsible for constant monitoring of barges to
ensure safe navigation were seamen).
      This Court’s decision in Walling v. W. D. Haden Co., 153 F.2d 196 (5th
Cir. 1946), is particularly instructive. In W. D. Haden, employees engaged in
dredging shell deposits were stationed on a dredge boat for months at a time.
Id. at 197. In order to harvest shells from the ocean floor, dredgemen operated
machinery attached to the dredge boat that would “cut[] up the shell deposit
from the reef[,] suck[] it up[,] and deliver[] it upon a barge tied alongside the
dredge.” Id. Other than the actual labor of dredging, dredgemen also stood
watch and managed anchor cables and barge lines while on duty. Id. at 199.
Even though the Court recognized the dredgemen were involved in some work
of the “nautical kind,” it found that the “dominant employment [was] clearly
                                        6
    Case: 16-30558     Document: 00513959512     Page: 7   Date Filed: 04/19/2017



                                  No. 16-30558
the industrial one, the production of shells.” Id. In reaching its conclusion that
the dredgemen were not seamen under the FLSA, this Court characterized the
maritime work done by these employees as “incidental and occasional” because
it took up only a “small fraction of the work time.” Id.; see also McKie v.
Diamond Marine Co., 104 F. Supp. 275, 276–77 (S.D. Tex. 1952).
      Halle’s work here is similar to that of the dredgemen in W. D. Haden.
Like the dredgemen, who lived on the dredge boat and operated machinery
attached to the boat to do industrial work, Halle lives on the ROV Support
Vessel and operates the attached ROVs in the water to complete industrial
tasks. Although Halle occasionally communicates GPS coordinates to the
captain of the support vessel, he does not otherwise help ensure that the
support vessel navigates safely or even in any particular manner from point A
to point B. ROV Technicians do not control the “path to the intended target,
steer[], anchor[], mak[e] any navigational decisions or tak[e] any navigational
actions.” In fact, they apparently cannot even “see if there [are] navigational
issues affecting the ROV Support Vessel.”
      The Defendants argue that because the ROVs are attached to the ROV
Support Vessel, any navigation, maintenance, service, and repair of those
vehicles is essentially done to the vessel itself. But no case law affirmatively
supports this position. If anything, W. D. Haden seems to contradict this
argument. Like the dredge machinery in W. D. Haden, which was located on
the dredge boat, the ROVs are located on the support vessel. Although certain
components of the ROV system are structurally welded to the vessel, the ROVs
themselves appear to only be connected temporarily by tethers. This seems
analogous to dredging operations where a dredge boat, which carries the
dredging machinery, is towed by a tug or vessel. See W. D. Haden, 153 F.2d at
197; McKie, 104 F. Supp. at 276. Thus, because this Court has not done so in
comparable situations, we decline to now equate maintenance, repair, or
                                        7
    Case: 16-30558    Document: 00513959512       Page: 8   Date Filed: 04/19/2017



                                 No. 16-30558
navigation of superficially attached machinery (here, the ROVs) with
maintenance, repair, or navigation of the support vessel. Cf. Marshall v. Woods
Hole Oceanographic Inst., 458 F. Supp. 709, 711, 716, 719 (D. Mass. 1978)
(holding that scientific crew members engaged in oceanographic research
aboard a vessel—whose mission was scientific and which was specially
designed and outfitted with equipment to support that mission—were not
employed as seamen because they did not perform duties relevant to
maintenance and navigation of the ship itself).
      In its order denying Halle’s request for reconsideration, the district court
relied primarily on Coffin to reaffirm its conclusion that Halle is a seaman. In
Coffin, tankermen were responsible for both loading and unloading barges
while the tug boat was docked as well as performing other barge duties while
the vessel was in motion. 771 F.3d at 278 & n.3. Although this Court had
previously concluded in Owens that loading and unloading barges was
generally not seaman work, it noted that the duties of the vessel-based
tankermen in Coffin were distinct. Id. at 280–82. Unlike the tankermen in the
earlier Owens case, the tankermen in Coffin spent a significant portion of their
time on the vessel performing loading and unloading duties during transit—
i.e., inspecting and maintaining the barges to make “the captain’s job [of
navigating the ship] easier.” Id. at 283–84. We concluded that because the
tankermen spent such a substantial portion of their time performing these
duties aboard the ship to ensure the ship’s safe navigation, the tankermen
were seamen under the FLSA. Id. at 284–85.
      But the facts in this case are acutely distinct from those in Coffin. It is
true that both the tankermen in Coffin and the ROV Technicians in this case
live and work on a vessel. But the similarities end there. While the tankermen
in Coffin were members of the ship’s crew and answered to the captain, the
ROV Technicians here have a completely separate command structure. Unlike
                                        8
     Case: 16-30558      Document: 00513959512         Page: 9    Date Filed: 04/19/2017



                                      No. 16-30558
the tankermen in Coffin, who spent a significant portion of their work time
performing tasks that helped the captain safely navigate the ship and attached
barges, the ROV Technicians do not assist with nearly any part of navigation.
The only role the ROV Technicians seem to have in navigation is the occasional
communication of coordinates to the captain of the support vessel.
       While giving coordinates alone can perhaps be characterized as
contributing to navigation, the question this Court must then answer is what
proportion of Halle’s time is spent on that seaman’s work. See Coffin, 771 F.3d
at 279–80 (recognizing that an employee is not a seaman if his nonseaman’s
work becomes substantial—i.e., it occupies more than approximately 20% of
the employee’s time). Based on the description of Halle’s work responsibilities,
it seems that transmitting the coordinates, and even the entire process of
calculating those coordinates, does not take up a demonstrable majority of his
work time. ROV Technicians control ROVs remotely to provide “emergency
backup for underwater drilling operations[,] . . . turn subsea valves, disconnect
and realign underwater lines, inspect underwater structures, and place
marking beacons on the sea floor.” They are also responsible for maintaining
and servicing the ROVs themselves. Even assuming that it takes an ROV
Technician several hours every few days to calculate coordinates 6 and then a
few additional minutes to communicate that information to the captain of the
support vessel, this does not clearly account for 80% of the estimated eighty-
four plus hours worked weekly by ROV Technicians. Accordingly, the district
court erred in granting the Defendant’s motion for summary judgment as it
has not been established as a matter of law that the seaman exemption applies.



       6 To be clear, nothing in the record suggests that Halle was actually responsible for
calculating the GPS coordinates for the ROV Support Vessel’s next destination; rather, it
seems that he simply passed along the coordinates from C-Innovation to the support vessel
captain.
                                             9
   Case: 16-30558   Document: 00513959512    Page: 10   Date Filed: 04/19/2017



                              No. 16-30558
                          III. CONCLUSION
     For the foregoing reasons, we REVERSE the district court’s summary
judgment and REMAND this case for further proceedings.




                                   10
