Aparicio v. Swan Lake

• Decision Date: 27 April 1981
• Docket Number: No. 79-3945,79-3945
• Citation: 1981 A.M.C. 1887,643 F.2d 1109
• Parties: Miguel Antonio APARICIO, Plaintiff-Appellant, v. SWAN LAKE, her engines, boilers, tackle, Etc., Defendant Third Party Plaintiff-Appellee, v. PANAMA CANAL COMPANY, Third Party Defendant-Appellee. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1109

643 F.2d 1109

Miguel Antonio APARICIO, Plaintiff-Appellant, v. SWAN LAKE, her engines, boilers, tackle, Etc., Defendant Third Party Plaintiff-Appellee, v. PANAMA CANAL COMPANY, Third Party Defendant-Appellee.

No. 79-3945.

United States Court of Appeals, Fifth Circuit.

Unit A

April 27, 1981.

Pierce & Kiyonaga, David J. Kiyonaga, Balboa, Panama, for plaintiff-appellant.

Dwight A. McKabney, Gen. Counsel, John L,. Haines, Jr., Dept. Gen. Counsel, Panama Canal Commission, Miami, Fla., for Panama Canal Co.

Frank J. Violanti, U. S. Atty., Bruce A. Leinback, Sp. Asst. U. S. Atty., Miami, Fla., for Swan Lake.

Appeal from the United States District Court for the District of the Canal Zone.

Before GEE, RUBIN and RANDALL, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The sole issue raised by this appeal is whether landlubbers who do sailor's work aboard ships were dislodged from their Sieracki seaman status by the wake of the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. We conclude that, if the harbor worker is not covered by the LHWCA, the Sieracki cause of action and the concomitant indemnification action afforded the vessel owner are both still seaworthy.

Aparicio and three other harbor workers employed by the Panama Canal Company, an agency of the United States, filed suit against three different vessels to recover for injuries suffered while working aboard those vessels in the Canal Zone. The complaint in each action alleged that the harbor worker's injuries were caused by the vessel's unseaworthiness and the crew's negligence. In answering the third party complaint filed by each of the vessels against the Panama Canal Company claiming breach of the warranty of workmanlike performance, the Company asserted an affirmative defense that any recovery against it was precluded by the exclusive liability provisions of the Federal Employees' Compensation Act (FECA), 5 U.S.C. § 8101 et seq. Each vessel owner moved to strike the Company's affirmative defense to the third party complaint. Holding that the 1972 amendments to the LHWCA rendered obsolete the Supreme Court's decisions in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946) (longshoreman afforded seaman status and a cause of action against the vessel for breach of the warranty of seaworthiness) and Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956) (allowing indemnification action by the vessel against the stevedoring company for breach of the warranty of workmanlike performance), the district court in each action denied the motion and ordered that all allegations of breach of the warranty of seaworthiness be stricken from the plaintiff's complaint. The appeal is taken from this interlocutory order.

I.

Before addressing the merits, we are obliged first to consider our jurisdiction to entertain the appeal despite the parties' failure to raise the jurisdictional issue. ¹ The district court included in an interlocutory order entered on November 20, 1979, the statement required by 28 U.S.C. § 1292(b) to certify an appeal from that order. ² Leave to petition this court to consider the appeal was granted by the district court provided the application was made within ten days of the date of the district court's order as required by 28 U.S.C. § 1292(b). Although Aparicio filed a notice of appeal within ten days of the issuance of the district court's order, he failed to apply for permission to appeal within the ten-day statutory period. Therefore, the appeal lapsed.

Over a year after the district court's order issued, another judge serving on that court entered a second order adopting the earlier order and, in effect, recertifying the interlocutory appeal. Within ten days of the issuance of the second order, Aparicio petitioned this court for leave to appeal from the original interlocutory order. Although we granted that application, our jurisdiction to do so is open to discussion.

Failure to file an application for permission to appeal from an interlocutory order containing the certification statement within the ten-day period prescribed by 28 U.S.C. § 1292(b) and Rule 5(a), Fed.R.App.P., is a jurisdictional defect that deprives the appellate court of power to entertain the appeal. ³ The Federal Rules of Appellate Procedure specifically preclude enlargement of this period by the court of appeals, Rule 26(b), Fed.R.App.P., and there is no statutory authority allowing the district court to extend the time period. 9 Moore's Federal Practice P 205.03(2), at 5-8 (2d ed. 1980). However, we noted in Borskey v. American Pad & Textile Co., 296 F.2d 894, 895 (5th Cir. 1961), that the district court retains jurisdiction over the matter until a final judgment is entered and is, therefore, free to reconsider its interlocutory order. The district court's action upon reconsideration may then be the subject of certification and application for interlocutory appeal under 28 U.S.C. § 1292(b). Borskey v. American Pad & Textile Co., 296 F.2d at 895 (dictum).

We have not considered the extent of reexamination by the district court necessary to constitute the kind of reconsideration that revives the right to petition for appeal. The Sixth Circuit has held that the district court may not vacate an interlocutory order from which no application for permission to appeal was timely filed and refile the same order for the sole purpose of permitting the party wishing to appeal to make a timely application. Woods v. Baltimore and Ohio R. R. Co., 441 F.2d 407 (6th Cir. 1971). See Nakhleh v. Chemical Construction Corp., 366 F.Supp. 1221 (S.D.N.Y.1973) (reconsideration sufficient to permit recertification must involve some "substantial" issue going to the merits of the order). The Woods holding is based on the rationale that the district court should not be allowed indirectly to extend the jurisdictional time period.

In support of the Sixth Circuit's position, it may be argued that the restricted time authorized for initiating an interlocutory appeal reflects an interest in speedy determination of such appeals. See Braden v. University of Pittsburgh, 552 F.2d 948, 952 (3d Cir. 1977) (en banc). However, the notion that the appeal must follow immediately the entry of the district court's order is repudiated by Rule 5(a), Fed.R.App.P., which permits the amendment of the interlocutory order "at any time" to supply the certification statement and provides that such an amendment triggers the running of the ten-day period for applying to this court for permission to appeal. ⁴ Because the interlocutory order can be amended at any time in order to incorporate the certification language, the lapse of an extended period of time between the entry of the interlocutory order and the appeal pursuant to 28 U.S.C. § 1292(b) is countenanced by Rule 5(a). Braden v. University of Pittsburgh, 552 F.2d at 952. In effect, the ten-day limitation period functions largely to assure that the district court will exercise its discretion to certify an appeal from its interlocutory order contemporaneously with this court's discretionary grant of permission to proceed with the interlocutory appeal. 9 Moore's Federal Practice P 205.03(2), at 5-9 (2d ed. 1980).

We conclude that the ten-day time limitation is designed to require an expeditious decision by this court as to whether the interlocutory appeal will be permitted and to prevent appeal at a time when an interlocutory appeal would no longer materially advance the termination of the litigation. We decline to interpret the statutory time limit as an absolute bar to a subsequent determination by the district court that, under the circumstances then existing, an interlocutory appeal would satisfy the criteria of 28 U.S.C. § 1292(b) and further the goals that the statute was designed to achieve. Therefore, we hold that, if the district court, upon reconsideration of the Section 1292(b) criteria for certification of an interlocutory appeal, determines that the previous justification for a certification continues to exist, it may reenter the interlocutory order and thus trigger a new ten-day period. ⁵ See Note, Interlocutory Appeals in the Federal Courts Under 28 U.S.C. § 1292(b), 88 Harv.L.Rev. 607, 615-16 (1975). A contrary interpretation of the statute would preclude an interlocutory appeal under circumstances in which the criteria of the statute are satisfied and both the district court and this court have concluded that an interlocutory appeal is appropriate.

Of course, in reconsidering the certification issue, the district court may take into account the litigant's failure to take advantage of the earlier certification order and may guard against delinquency by refusing to reenter the original order. Braden v University of Pittsburgh, 552 F.2d at 952. See 9 Moore's Federal Practice P 205.03(2), at 5-11 & n.19 (2d ed. 1980). Additionally, we can prevent any abuse of the district court's discretion merely by denying the prospective appellant permission to appeal the interlocutory order.

In the present case, we find that the trial court exercised sound judgment in reentering the interlocutory order and thus recertifying the appeal. The reasons for the earlier certification order continued to exist. Moreover, the district court recognized that an appellate decision in this matter would ultimately advance the termination of not only the present litigation but other similar cases all of which must be concluded by April, 1982, when the United States District Court in the Canal Zone will be dismantled. Given this time constraint, we think the district court did not abuse its discretion by reentering its order certifying the interlocutory appeal. ⁶ We turn then to the merits of this case.

II.

To determine what effect, if any, the 1972 amendments to the LHWCA had on those members of the jurisprudentially-created class...