                                     PUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 18-1695


KENNETH MUHAMMAD,

                   Plaintiff - Appellant,

             v.

NORFOLK SOUTHERN RAILWAY CO., f/k/a Norfolk & Western Railway Co.,

                   Defendant - Appellee.


Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Raymond A. Jackson, District Judge. (2:18-cv-00020-RAJ-LRL)


Argued: January 29, 2019                                       Decided: June 4, 2019


Before NIEMEYER, KEENAN, and QUATTLEBAUM, Circuit Judges.


Reversed and remanded by published opinion. Judge Niemeyer wrote the opinion, in
which Judge Keenan and Judge Quattlebaum joined.


ARGUED: Joshua T. Gillelan, II, LONGSHORE CLAIMANTS’ NATIONAL LAW
CENTER, Washington, D.C., for Appellant. David C. Bowen, WILLCOX & SAVAGE,
P.C., Norfolk, Virginia, for Appellee. ON BRIEF: Richard N. Shapiro, SHAPIRO &
APPLETON P.C., Virginia Beach, Virginia, for Appellant. Brianna L. Barnes,
WILLCOX & SAVAGE, P.C., Norfolk, Virginia, for Appellee.
NIEMEYER, Circuit Judge:

      Kenneth Muhammad, a railroad employee, was injured while replacing railroad

crossties on a bridge spanning navigable waters. When Muhammad filed a negligence

claim against his employer under the Federal Employers’ Liability Act (“FELA”), the

district court granted the employer’s motion to dismiss for lack of subject-matter

jurisdiction. The court concluded that Muhammad was injured “upon navigable waters”

and was engaged in “maritime employment” and therefore that the Longshore and Harbor

Workers’ Compensation Act (“LHWCA”) provided the exclusive remedy for his claim.

Because we conclude, however, that Muhammad’s injury did not occur “upon navigable

waters,” as required by the LHWCA, we reverse and remand for further proceedings.


                                            I

      In May 2016, while Muhammad was employed by Norfolk Southern Railway

Company as a carpenter in its “bridge and building” maintenance department, he

performed maintenance work replacing railroad crossties on Norfolk Southern’s South

Branch Lift Bridge in Virginia. The Bridge crosses the Elizabeth River, which has been

declared navigable by the U.S. Coast Guard, and the center span of the Bridge lifts

upward to allow vessels to navigate under it. The train traffic crossing the Bridge

primarily serves businesses to the west of the Elizabeth River, often traveling to the

Portlock Railyard, which is landlocked and approximately a mile east of the River.

      The work crew with whom Muhammad was working traveled to the South Branch

Lift Bridge via truck, and their work never required the use of boats. While Muhammad


                                           2
was working on the Bridge on May 19, a portion of the walkway on which he was

walking collapsed. He was able to avoid falling into the River but sustained serious

injuries that have prevented him from returning to work.

      Muhammad then commenced this action against Norfolk Southern under the

FELA, 45 U.S.C. § 51 et seq., claiming that Norfolk Southern’s negligence caused his

injuries. Norfolk Southern filed a motion to dismiss Muhammad’s action, claiming that

“the court lack[ed] subject matter jurisdiction over [the] action and the LHWCA ha[d]

exclusive jurisdiction.” Granting the motion would benefit Norfolk Southern by limiting

its damages exposure to the scheduled and specified amounts provided by the LHWCA,

which is a workers’ compensation statute, as distinct from the unscheduled damages to

which it was exposed by a negligence claim under the FELA.

      The district court granted Norfolk Southern’s motion and dismissed Muhammad’s

complaint. In doing so, the court held that “the LHWCA provides the exclusive remedy

for [Muhammad’s] claim” and that it therefore “[did] not have subject matter jurisdiction

to proceed” on Muhammad’s FELA action.           In holding that the LHWCA applied

exclusively to cover Muhammad’s injuries, the court concluded that the circumstances of

the incident satisfied both the “situs” requirement of the LHWCA that Muhammad’s

injury be “upon navigable waters” and the “status” requirement that he be engaged in

“maritime employment.” Relying on LeMelle v. B. F. Diamond Construction Co., 674

F.2d 296 (4th Cir. 1982), the court concluded that the situs requirement includes work

both “upon” and “over” navigable waters, reasoning that a bridge over navigable waters

that allows ships to pass underneath it facilitates and aids the navigation of maritime

                                            3
traffic. And relying on Chesapeake & Ohio Railway Co. v. Schwalb, 493 U.S. 40 (1989),

the court concluded that Muhammad’s work “constitute[d] maritime employment

because repairing and rebuilding the [Bridge] [was] an essential and integral element of

the loading or unloading process of the maritime traffic flowing under the Bridge.” The

court reasoned that the “Bridge lifts to permit passing vessels to navigate the Elizabeth

River” and that Muhammad’s “employment [was] essential when ensuring that the

Bridge remain[ed] in safe, operating condition for maritime and commercial rail traffic to

reach nearby loading facilities that rely on the South Branch of the Elizabeth River.”

       From the district court’s order of dismissal dated June 13, 2018, Muhammad filed

this appeal.


                                            II

       While Muhammad brought this action under the FELA based on allegations of

Norfolk Southern’s negligence, the district court concluded that Muhammad’s action

could only be brought under the LHWCA. It thus held that it did not have subject-matter

jurisdiction and dismissed the action under Federal Rule of Civil Procedure 12(b)(1).

This lack-of-jurisdiction conclusion was misplaced, however, as Muhammad’s claim

under the FELA indisputably invoked the district court’s subject-matter jurisdiction under

45 U.S.C. § 56 (conferring jurisdiction on district courts for FELA claims) and 28 U.S.C.

§ 1331 (conferring jurisdiction on district courts for claims arising under the laws of the

United States).




                                             4
       To be sure, if Muhammad’s injury was covered by the LHWCA, then that Act, as

a workers’ compensation law, would provide him with the exclusive remedy for his

work-related injury. See 33 U.S.C. § 905(a) (providing that the employer’s liability for

covered injuries “shall be exclusive and in place of all other liability of such employer to

the employee”); In re CSX Transp., Inc., 151 F.3d 164, 171 (4th Cir. 1998) (holding that

“LHWCA coverage is exclusive and preempts [the plaintiff] from pursuing an FELA

claim”). The preemptive effect of the LHWCA would thus be an affirmative defense that

Norfolk Southern could raise in response to Muhammad’s complaint, but it would not

deny the district court subject-matter jurisdiction over the complaint. See Fisher v.

Halliburton, 667 F.3d 602, 609 (5th Cir. 2012) (noting that “the applicability of the

LHWCA’s exclusivity provision presents . . . an issue of preemption, not jurisdiction”

and that “Federal preemption is an affirmative defense that a defendant must plead and

prove”); cf. 9 Lex K. Larson & Thomas A. Robinson, Larson’s Workers’ Compensation

Law § 100.01 (2018) (“In a tort action by an employee to recover damages for a work-

related injury, the employer has the burden of proving the affirmative defense that the

plaintiff was an employee entitled only to workers’ compensation”).

       Of course, had Muhammad filed his claim in the district court under the LHWCA,

the district court would indeed have been required to dismiss it for lack of subject-matter

jurisdiction. “An LHWCA claim must be filed with the Department of Labor where it is

assigned to an administrative law judge whose decision is reviewed by the Benefits

Review Board. Review by the courts is authorized through a petition for review, which

may be filed only in the courts of appeals, not in the district court.” In re CSX Transp.,

                                             5
151 F.3d at 171 (citing 33 U.S.C. §§ 910(a), 921(b), 921(c)); see also Sidwell v. Express

Container Servs., Inc., 71 F.3d 1134, 1136 (4th Cir. 1995) (“Congress legislated a ‘status’

requirement and a ‘situs’ requirement, both of which must be satisfied in order for the

Board to have jurisdiction to award benefits”).      But Muhammad did not assert an

LHWCA claim here.

       Accordingly, while the district court concluded erroneously that it lacked subject-

matter jurisdiction, we will take the court’s dismissal order to have concluded that

Muhammad’s FELA claim was barred because his injury was covered exclusively by the

LHWCA, which preempted his FELA claim.


                                            III

       We now turn to the question of whether Norfolk Southern properly demonstrated

to the district court that the LHWCA covered Muhammad’s workplace injury.

       The LHWCA makes employers liable for the payment of specified compensation

to employees for certain injuries “arising out of and in the course of employment.”

33 U.S.C. §§ 904, 902(2). For the LHWCA to apply, the employee must be a “person

engaged in maritime employment,” which is defined to include “any longshoreman or

other person engaged in longshoring operations, and any harbor-worker including a ship

repairman, shipbuilder, and ship-breaker.” Id. § 902(3). Moreover, to be covered by the

LHWCA, the employee’s injury must “occur[] upon the navigable waters of the United

States,” which is defined to include “any adjoining pier, wharf, dry dock, terminal,




                                            6
building way, marine railway,[*] or other adjoining area customarily used by an employer

in loading, unloading, repairing, dismantling, or building a vessel.” Id. § 903(a). Both

the status of the employee (“engaged in maritime employment”) and the situs of the

injury (“upon the navigable waters of the United States”) must be satisfied in order for

the Act to apply.

         The method for construing and applying the status and situs requirements is

informed by Congress’s 1972 amendments to the LHWCA.                    Prior to 1972, “the

[LHWCA] applied only to injuries occurring on navigable waters.                Longshoremen

loading or unloading a ship were covered on the ship and the gangplank but not

shoreward, even though they were performing the same functions whether on or off the

ship.” Chesapeake & Ohio Ry. v. Schwalb, 493 U.S. 40, 46 (1989) (emphasis added). In

1972, Congress obviated this anomaly by amending the Act, inserting the parenthetical

language in § 903(a) that expands the situs definition of “upon navigable waters” to

include “any adjoining pier, wharf, dry dock, terminal, building way, marine railway or

other adjoining area customarily used by an employer in loading, unloading, repairing,

dismantling, or building a vessel,” 33 U.S.C. § 903(a), thereby “extend[ing] coverage to

the area adjacent to the ship that is normally used for loading and unloading.” Schwalb,

493 U.S. at 46. Recognizing that this “expansion of the definition of navigable waters to

include rather large shoreside areas necessitated an affirmative description of the

particular employees working in those areas who would be covered,” Congress also

         *
             A marine railway is a patent slip or slipway for taking vessels in and out of the
water.

                                                7
added the “maritime employment” requirement as part of the 1972 amendments in order

to limit its expansion of the Act shoreside. Herb’s Welding, Inc. v. Gray, 470 U.S. 414,

423 (1985). Thus, “[w]ith the 1972 amendments, the test for coverage . . . changed from

a simple situs test to a test incorporating situs and status requirements.” Jonathan Corp.

v. Brickhouse, 142 F.3d 217, 220 (4th Cir. 1998).

      In adding the status requirement, however, Congress did not narrow the overall

coverage of the LHWCA, but instead only limited its shoreside expansion of the Act.

Dir., OWCP v. Perini N. River Assocs., 459 U.S. 297, 315 (1983).             Thus, if an

employee’s injury would have been covered by the LHWCA prior to the 1972

amendments, the injury would still be covered by the Act following the 1972

amendments. Id. at 315, 325. Accordingly, when it is shown that an employee was

injured “upon the actual navigable waters in the course of their employment” — i.e., that

the employee was injured working “on” navigable water and thus “traditionally covered”

under the pre-1972 Act — the inquiry ends. See id. at 323, 325; see also Zapata Haynie

Corp. v. Barnard, 933 F.2d 256, 259 (4th Cir. 1991) (“[T]he first question is whether

Barnard would have fallen within the pre-1972 coverage of the Act. If so, the inquiry

ends. If not, Barnard must satisfy both the status and situs requirements in order to be

covered”).

      In this case, we conclude that the situs of Muhammad’s injury on a railroad bridge

over navigable waters would not satisfy the pre-1972 requirement that his injury occur

“upon navigable waters.” See Schwalb, 493 U.S. at 46 (noting that the pre-1972 situs test

drew the line between land and water at the ship’s gangplank); Nacirema Operating Co.

                                            8
v. Johnson, 396 U.S. 212, 215 (1969) (“[A] statute that covers injuries ‘upon the

navigable waters’ would not cover injuries on a pier even though the pier, like a bridge,

extends over navigable waters”) (emphasis added)); cf. Herb’s Welding, 470 U.S. at 420

(“Because until 1972 the LHWCA itself extended coverage only to accidents occurring

on navigable waters, and because stationary rigs were considered to be islands, oil rig

workers . . . were left to recover under state schemes” (citations omitted)).

       Norfolk Southern cannot seriously contest the proposition that Muhammad’s

injury did not occur “upon navigable waters,” as that term was consistently applied

before 1972. It has pointed to no pre-1972 case where a court held that an employee

working on a bridge over navigable waters was working upon navigable waters. The

Nacirema Court made this distinction clear, observing that working on a pier, “like a

bridge,” would not be covered by a statute requiring that the employee work “upon

navigable waters.” 396 U.S. at 215. To be sure, an employee working from a barge on

navigable waters while constructing or maintaining a bridge would, under the pre-1972

standard, be on navigable waters, as that employee would then be physically working

from a vessel on navigable waters. See, e.g., Davis v. Dep’t of Labor & Indus., 317 U.S.

249, 251 (1942). But Muhammad, who was working on a bridge itself and not from a

barge or other vessel, would not have been covered by the LHWCA before 1972. We

must therefore inquire as to whether the 1972 amendments expanded LHWCA coverage

to the situs where Muhammad was injured.

       The 1972 amendments to the LHWCA extended the situs of a covered injury to

include “any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or

                                              9
other adjoining area customarily used by an employer in loading, unloading, repairing,

dismantling, or building a vessel.” 33 U.S.C. § 903(a). Because Muhammad’s injury did

not occur on a “pier, wharf, dry dock, terminal, building way [or] marine railway,” our

inquiry must focus on whether his injury occurred in an “other adjoining area.” And in

order for an “other adjoining area” to constitute a covered situs, “it must be a discrete

shoreside structure or facility” that is “‘customarily used by an employer in loading,

unloading, repairing, dismantling, or building a vessel,’ as the statute provides.” Sidwell

v. Express Container Servs., Inc., 71 F.3d 1134, 1139–40 (4th Cir. 1995). Put differently:

       In extending the line of coverage landward, Congress . . . defined navigable
       waters to include certain land areas “adjoining” the navigable waters. The
       landward extension is a seamless annexation of land to navigable waters for
       purposes of LHWCA coverage. But the annexation does not include all
       adjacent land. The statute extends “navigable waters” only to land relating
       to work on those waters, specifically enumerating adjoining piers, wharfs,
       dry docks, terminals, building ways, and marine railways. These are
       facilities customarily used by longshoremen in loading and unloading ships
       and in repairing or building them. The link between the navigable waters
       and the land side facilities is thus established under the statute by (1) the
       contiguity of the land side facility and navigable water, and (2) the affinity
       of the land side facility to longshoremen’s work on ships. . . . The “other
       area” annexed to navigable waters by the Act must again be “adjoining”
       the water and must again be linked to the traditional longshoremen’s work
       on the water. The “other area” must be for the loading or unloading of
       cargo onto ships in navigable waters or for the “repairing, dismantling, or
       building” of those ships.

Jonathan Corp., 142 F.3d at 221 (emphasis added) (citations omitted); see also Schwalb,

493 U.S. at 46 (noting that the 1972 amendments “extended coverage to the area adjacent

to the ship that is normally used for loading and unloading”).

       The undisputed facts in this case show that Muhammad was not injured on a

facility contiguous to navigable waters that was customarily used for the loading,

                                            10
unloading, repairing, dismantling, or building of a vessel — i.e., a facility linked to

traditional longshoremen’s work on the water. Rather, the situs of Muhammad’s injury

was a railroad that was quite distinct from such a facility, and the location on the Bridge

where Muhammad was injured was accessible only by land and was not contiguous to

water.

          While the Bridge’s center span did lift to allow vessels to pass underneath it, a

land-based bridge’s simple accommodation of ships is a far cry from a shoreside facility

serving as “an integral or essential part of loading or unloading a vessel.” Schwalb,

493 U.S. at 45. Norfolk Southern argues otherwise, asserting that a bridge allowing

commercial navigation to travel underneath it provides a sufficient connection to

“navigable waters” to support LHWCA coverage for injuries on that bridge. But the

nexus to loading and unloading must not be so remote as to include any situs that is

simply somehow related to navigable waters. Indeed, Norfolk Southern’s argument

would extend LHWCA coverage to injuries occurring on every bridge that allowed ships

to pass under it. Congress clearly did not intend so broad a coverage. As the Supreme

Court has noted, in enacting the 1972 amendments, Congress did not “seek to cover all

those who breathe salt air. Its purpose was to cover those workers on the situs who are

involved in the essential elements of loading and unloading.” Herb’s Welding, 470 U.S.

at 423.

          In reaching the contrary conclusion that the South Branch Lift Bridge was indeed

a situs covered by the LHWCA, the district court relied principally on two cases, LeMelle

v. B. F. Diamond Construction Co., 674 F.2d 296 (4th Cir. 1982), and Zapata Haynie

                                             11
Corp. v. Barnard, 933 F.2d 256 (4th Cir. 1991). Neither case, however, supports the

district court’s conclusion.

       In LeMelle, we held that an employee injured while he was working to demolish

and replace a bridge that crossed over the James River, a navigable water in Virginia, was

covered by the LHWCA. 674 F.2d at 297–98. The work there, however, was performed

with the extensive use of boats, and the parties “agree[d] that the situs requirement for

LeMelle’s claim [was] satisfied.”      Id. at 297.    Accordingly, in LeMelle, we only

addressed the status requirement. Nonetheless, during the course of our discussion, we

stated — what Norfolk Southern and the district court relied on heavily — that “bridge

construction and demolition workers employed over navigable water were covered prior

to the 1972 amendments” and cited three cases to support that statement. See id. at 298

(citing Davis, 317 U.S. 249; Hardaway Contracting Co. v. O’Keeffe, 414 F.2d 657 (5th

Cir. 1968); and Peter v. Arrien, 325 F. Supp. 1361 (E.D. Pa. 1971)). In Davis and

Hardaway, as was the case in LeMelle itself, the work involved the extensive use of

barges, on which the employees’ injuries occurred. See Davis, 317 U.S. at 251 (noting

that “a tug, derrick barge, and a barge” were used in the project and that the employee fell

from the barge and drowned); Hardaway, 414 F.2d at 660–61 (noting that the employee

died while “transferring an oil drum from a small launch to a fixed barge”). And in

Peter, instead of using barges, the contractor constructed a temporary causeway on the

water “solely to provide access toward the middle of the river and it was to be dismantled

as soon as the demolition was completed.” 325 F. Supp. at 1364. Thus, our statement in

LeMelle, which the district court took out of context, referred to bridge work performed

                                            12
upon navigable waters insofar as the work was performed from barges, launches, and the

like that were actually on navigable waters.

       And in Zapata, the employee was working as an airplane pilot for a commercial

fishing company, spotting fish from the air to aid commercial fishing boats. 933 F.2d at

257–58. Because we concluded that “fish spotting was traditionally an activity inherent

to commercial fishing” — citing expert testimony that, “traditionally, crewmen would

climb to the crow’s nests of fishing vessels to spot fish” — we concluded that the

employee performing that traditional fishing function was covered by the LHWCA.

See id. at 260. We reasoned that the employee’s “duties required him to work over

navigable waters at all times except for taking off and landing” and that he “was regularly

engaged in the course of his duties over navigable waters and not merely fortuitously over

water when his injury occurred.” Id. at 259–60 (emphasis added).

       Neither of these cases support the proposition that working on a land-accessed

railroad bridge over navigable waters to replace railroad crossties qualifies as working on

a situs covered by the LHWCA. Rather, the law is clear that, for a land-based situs to be

covered under the Act, it must be a shoreside facility that is “an integral or essential part

of loading or unloading a vessel” — a facility linked to traditional longshoremen’s work

on the water. Schwalb, 493 U.S. at 45; Jonathan Corp., 142 F.3d at 222. The South

Branch Lift Bridge is not such a facility.

       Because Muhammad was not injured on a situs covered by the LHWCA, we need

not reach the question of whether he was engaged in maritime employment. And since

his injury was not covered by the LHWCA, the district court erred in dismissing his

                                               13
FELA claim. The judgment of the district court is therefore reversed and the case

remanded for further proceedings.

                                                  REVERSED AND REMANDED




                                       14
