Lockheed Martin Corp. v. Morganti, Docket No. 04-0500-AG.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtPooler
Citation412 F.3d 407
PartiesLOCKHEED MARTIN CORPORATION, ACE USA, Petitioners, v. Lorraine MORGANTI, Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
Docket NumberDocket No. 04-0500-AG.
Decision Date24 June 2005

Page 407

412 F.3d 407
LOCKHEED MARTIN CORPORATION, ACE USA, Petitioners,
v.
Lorraine MORGANTI, Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
Docket No. 04-0500-AG.
United States Court of Appeals, Second Circuit.
Argued: February 2, 2005.
Decided: June 24, 2005.

Page 408

Keith L. Flicker, (Robert N. Dengler, on the brief), Flicker, Garelick & Associates, LLP, New York, NY, for Petitioners.

Daniel O. Rose (Marc S. Moller, Brendan S. Maher, on the brief), Kreindler & Kreindler LLP, New York, NY, for Respondent Lorraine Morganti.

Richard A. Seid (Howard M. Radzely, Solicitor of Labor, Donald S. Shire, Associate Solicitor, Mark A. Reinhalter, Counsel for Longshore, on the brief), United States Department of Labor, Washington, DC, for Respondent Director.

Before: POOLER and B.D. PARKER, Circuit Judges, and CASTEL, District Judge.*

Page 409

POOLER, Circuit Judge.


Petitioners Lockheed Martin Corporation and ACE USA, the insurer for Lock-heed Martin Corporation, petition for review of the February 17, 2004, decision of the Benefits Review Board of the United States Department of Labor ("Board"), reversing the findings of Administrative Law Judge Paul H. Teitler of the United States Department of Labor ("ALJ"), holding Rocco Morganti ("Morganti") to have been covered by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950, ("LHWCA" or "Act") at the time of his fatal accident, and awarding death benefits to Morganti's widow, respondent Lorraine Morganti. We deny the petition and uphold the award of benefits to Lorraine Morganti.

We agree with the Board and hold that Cayuga Lake is a navigable waterway of the United States because the appropriate test for navigability depends on physical rather than economic characteristics of the waterway in question. We decline to decide whether to adopt a "transient and fortuitous" exception to the general rule that a person injured on actual navigable waters is engaged in maritime employment because we, like the Board, hold that a person on an object floating in actual navigable waters is on actual navigable waters, so that Morganti was not transiently and fortuitously on actual navigable waters. Finally, we agree with the Board's conclusion, although not its underlying reasoning, and hold that Morganti's employment, either in its totality or as performed on actual navigable waters, was not exclusively data processing. We therefore hold that Morganti was covered by the Act and deny the petition for review.

BACKGROUND

The underlying facts of this case are undisputed. Lorraine Morganti seeks benefits under a federal workers' compensation act, the LHWCA, for her husband's tragic death in the course of his employment. Lockheed seeks to deny these benefits on the ground that Morganti was not covered by the Act.

Morganti was employed for fifteen years as a test engineer by Lockheed Martin Naval Electronics & Surveillance Systems, a division of petitioner Lockheed Martin Corporation (collectively, "Lockheed") based in Syracuse, New York. His job as a test engineer for Lockheed's work under contracts with the United States Navy required him to spend thirty to forty percent of his time testing Lockheed-manufactured equipment on the Paganelli, a research barge moored on Cayuga Lake. On December 20, 2000, Morganti suffered a fatal accident on the shuttle boat returning him to shore from the Paganelli. While untying the shuttle, he fell into the lake. Despite rescue efforts by the pilot of the shuttle, Morganti drowned, and his body was not recovered until later.

Lockheed manufactures transducers, a component required for sonar equipment used by the United States Navy. To test these transducers underwater, Lockheed uses equipment on the Paganelli. The Paganelli has been moored to two mooring buoys since 1982. Each buoy is secured by a 30-ton anchor and a 4-ton sinker, but the buoys are fully independent of the Paganelli, which could disconnect from the buoys within minutes. The Paganelli has no independent means of propulsion. Access to the Paganelli is achieved via a shuttle boat, the Little Toot II.

Cayuga Lake is one of the finger lakes of Central New York, and is connected at its north end to the Erie Canal system, which means that a boat can theoretically sail from Cayuga Lake to any ocean-connected port in the world. The locks of the

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Erie Canal are limited in size, but sufficient for ninety percent of the ships currently used for inland commercial freight shipping and passenger services. The Erie Canal is closed for the winter months of the year. At trial, Lockheed explicitly conceded that the Erie Canal is a navigable waterway and that Cayuga Lake can physically support commercial shipping. At this time, no commercial shipping actually takes place on Cayuga Lake other than commercial tour boats, which entered or exited the lake over three hundred times in 2001. There is no record evidence as to whether these boats traveled interstate.

Morganti was responsible for testing Lockheed's transducers in the waters of Cayuga Lake and pinpointing and troubleshooting failures in the transducer production process at an office in Syracuse. His qualifications for this position are not in the record, but a witness with a similar position held an associate degree in electrical technology. Morganti carried a security clearance of "secret" in order to work with the transducers and evaluate the testing data. He received a salary of approximately $63,000 per year.

Morganti was required to spend one-and-a-half to two days per week testing transducers on the Paganelli. He was not required to help moor the Little Toot II, handle the transducers, or physically connect testing equipment to the transducers, but he frequently did so voluntarily. Once a transducer was lowered into the water through an internal well, Morganti would use a computer to run tests for an hour, by loading each testing program from disks as needed and inputting information such as water temperature, water depth, and which test to run. Once the tests were completed, he would review the test output, consisting of numbers and graphs, for facial validity and reasonableness. Typically, further analysis would be carried out in Syracuse, not on the Paganelli.

On December 20, 2000, Morganti was untying Little Toot II to return to shore when he fell into the water and drowned. His widow, respondent Lorraine Morganti, filed a claim for death benefits under the Act with the Office of Workers' Compensation Programs of the United States Department of Labor on July 8, 2001. The ALJ, Judge Teitler, denied her claim, on the grounds that 1) Morganti was not a maritime employee under Section 2(3) of the Act, 33 U.S.C. § 902(3); 2) the Paganelli was a fixed platform categorized as artificial land akin to an island under Herb's Welding, Inc. v. Gray, 470 U.S. 414, 422-24, 105 S.Ct. 1421, 84 L.Ed.2d 406 (1985), so that Morganti was only "transiently and fortuitously" on navigable waters, and was thus outside the coverage of the Act under the Fifth Circuit's holding in Bienvenu v. Texaco, Inc., 164 F.3d 901, 909 (5th Cir.1999); and 3) Morganti's job was "data processing" and thus specifically excluded from coverage under Section 2(3)(A) of the Act. The ALJ rejected Lockheed's argument that Cayuga Lake is not navigable.

Lorraine Morganti appealed to the Board, and was joined in her appeal by the Director of the Office of Workers' Compensation Programs ("Director") as a party in interest. The Board reversed all of the ALJ's conclusions, except as to the navigability of Cayuga Lake, and remanded to the ALJ. The ALJ resolved the remaining issues on stipulations, and at Lockheed's request, the Board summarily affirmed to make the order final and to permit review by this Court. Lockheed now brings the instant petition for review of the Board's decision.

DISCUSSION

We review the factual findings of the ALJ to determine if they are supported

Page 411

by substantial evidence. New Haven Terminal Corp. v. Lake, 337 F.3d 261, 265 (2d Cir.2003). We review questions of law de novo. Id. However, because the Director is the official charged with the administration of the Act, we defer to the Director's interpretations of the Act if they are reasonable and consistent with the statute. See American Stevedoring Ltd. v. Marinelli, 248 F.3d 54, 58 (2d Cir.2001); Fleischmann v. Director, Office of Workers' Comp. Programs, 137 F.3d 131, 136 (2d Cir.1998). Interpretations advanced in litigation, which are presented to us in the Director's brief and at oral argument, are more suspect. See Marinelli, 248 F.3d at 58 n. 2 However, the Supreme Court has indicated that agency interpretations presented in litigation may still be given deference so long as they are not post hoc rationalizations of past agency action or otherwise do not reflect the agency's fair and considered judgment. Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). We therefore defer to the ALJ on factual findings, defer in specific circumstances to the Director's litigation interpretations of the Act, and review interpretations of case law and all other legal questions de novo.

I. The Longshore and Harbor Workers' Compensation Act

In 1917, the Supreme Court established that state workers' compensation acts could not cover non-local longshoremen who were injured while within maritime jurisdiction, as application of such acts would destroy the uniformity of regulation achieved by the federal government's maritime law power. Southern Pac. Co. v. Jensen, 244 U.S. 205, 214-16, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), superseded by statute on other grounds. Cases following Jensen made clear that the line beyond which state regulatory power could not extend was the water's edge, a demarcation that became known as the Jensen line. See Director, Office of Workers' Comp. Programs v. Perini N....

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23 practice notes
  • MMR Constructors, Inc. v. Dir., Office of Workers’ Comp. Programs, No. 19-60027
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 26, 2020
    ...are extensions of the land.") (emphasis added).34 The Second Circuit has adopted a different test. In Lockheed Martin Corp. v. Morganti , 412 F.3d 407, 414 (2d Cir. 2005), the court considered whether a research barge attached to a buoy rested on navigable waters. The court did not consider......
  • Barscz v. Director, Owcp and Elec. Boat Corp., Docket No. 05-6420-AG.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 18, 2007
    ...Cir.1998), so long as the Director's interpretation is "reasonable and consistent with the statute," Lockheed Martin Corp. v. Morganti, 412 F.3d 407, 411 (2d Cir.2005). The Director's reasonable interpretation of Section 3(e) "brings at least some added persuasive force to our conclusion." ......
  • Wilson v. Dir., Office of Workers’ Comp. Programs, No. 19-3542
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 31, 2020
    ...III admiralty jurisdiction. See Perini N. River Assocs. , 459 U.S. at 306, 323, 103 S.Ct. 634 ; Lockheed Martin Corp. v. Morganti , 412 F.3d 407, 412 n.2 (2d Cir. 2005). The ALJ, Board, and parties used the "navigable-in-fact" definition. Therefore, we will as well.1 Under that standard, "[......
  • Peru v. Sharpshooter Spectrum Venture LLC, No. 05-75337.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 27, 2007
    ...one of the act's express exclusions. Id. at 324, 103 S.Ct. 634. As the Second Circuit explained in Lockheed Martin Corp. v. Morganti, 412 F.3d 407 (2d Cir. 2005), under Perini, "certain kinds of situs" will also "fulfill the status requirement." Id. at 412. It is undisputed that Peru was in......
  • Request a trial to view additional results
23 cases
  • MMR Constructors, Inc. v. Dir., Office of Workers’ Comp. Programs, No. 19-60027
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 26, 2020
    ...are extensions of the land.") (emphasis added).34 The Second Circuit has adopted a different test. In Lockheed Martin Corp. v. Morganti , 412 F.3d 407, 414 (2d Cir. 2005), the court considered whether a research barge attached to a buoy rested on navigable waters. The court did not consider......
  • Barscz v. Director, Owcp and Elec. Boat Corp., Docket No. 05-6420-AG.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 18, 2007
    ...Cir.1998), so long as the Director's interpretation is "reasonable and consistent with the statute," Lockheed Martin Corp. v. Morganti, 412 F.3d 407, 411 (2d Cir.2005). The Director's reasonable interpretation of Section 3(e) "brings at least some added persuasive force to our conclusion." ......
  • Wilson v. Dir., Office of Workers’ Comp. Programs, No. 19-3542
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 31, 2020
    ...III admiralty jurisdiction. See Perini N. River Assocs. , 459 U.S. at 306, 323, 103 S.Ct. 634 ; Lockheed Martin Corp. v. Morganti , 412 F.3d 407, 412 n.2 (2d Cir. 2005). The ALJ, Board, and parties used the "navigable-in-fact" definition. Therefore, we will as well.1 Under that standard, "[......
  • Peru v. Sharpshooter Spectrum Venture LLC, No. 05-75337.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 27, 2007
    ...one of the act's express exclusions. Id. at 324, 103 S.Ct. 634. As the Second Circuit explained in Lockheed Martin Corp. v. Morganti, 412 F.3d 407 (2d Cir. 2005), under Perini, "certain kinds of situs" will also "fulfill the status requirement." Id. at 412. It is undisputed that Peru was in......
  • Request a trial to view additional results

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