NALCO CHEMICAL CORPORATION v. Shea, Civ. A. No. 68-972.

• Court: United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
• Writing for the Court: Robert Homes, Asst. U. S. Atty., New Orleans, La., for defendant R. J. Shea, Deputy Commissioner
• Citation: 294 F. Supp. 479
• Parties: NALCO CHEMICAL CORPORATION and the Fidelity and Casualty Company of New York, Plaintiff, v. R. J. SHEA, Deputy Commissioner, Seventh Compensation District, Bureau of Employees Compensation, United States Department of Labor, and Mrs. Joyce Quave, Individually and on behalf of her five minor children, Defendants.
• Docket Number: Civ. A. No. 68-972.
• Decision Date: 17 December 1968

294 F. Supp. 479

NALCO CHEMICAL CORPORATION and the Fidelity and Casualty Company of New York, Plaintiff,
v.
R. J. SHEA, Deputy Commissioner, Seventh Compensation District, Bureau of Employees Compensation, United States Department of Labor, and Mrs. Joyce Quave, Individually and on behalf of her five minor children, Defendants.

Civ. A. No. 68-972.

United States District Court E. D. Louisiana, New Orleans Division.

December 17, 1968.

294 F. Supp. 480

Lawrence J. Ernst of Christovich & Kearney, New Orleans, La., for plaintiff.

Robert Homes, Asst. U. S. Atty., New Orleans, La., for defendant R. J. Shea, Deputy Commissioner.

Gerald P. Fedoroff, David S. Cressy, New Orleans, La., for defendant Mrs. Joyce Quave.

COMISKEY, District Judge.

This is a suit to enjoin the enforcement of an order awarding longshoremen's compensation to the widow of a

294 F. Supp. 481

deceased pilot salesman employed by the plaintiff Nalco Chemical Corporation. The plaintiff's husband was killed in a plane crash while acting within the scope of his employment. Suit was brought by Nalco and its insurer the Fidelity and Casualty Company of New York against R. J. Shea, the Deputy Commissioner for the Department of Labor, Bureau of Employees' Compensation, Seventh Compensation District, and against Mrs. Joyce Quave, the widow of the deceased pilot

There are several motions before the Court. The plaintiffs have filed a motion for a trial de novo on the question of jurisdiction; the defendant Deputy Commissioner has brought a motion to remand the case back to his tribunal for further findings; and the defendant widow has moved for a summary judgment affirming the granting of the compensation award.

I. PLAINTIFFS' MOTION FOR A TRIAL DE NOVO

Plaintiffs rely on Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932), in which suit was brought for an injunction against the enforcement of a workmen's compensation award under the Longshoremen's and Harbor Workers' Compensation Act. An award of compensation had been made by the deputy commissioner in favor of the claimant based upon the finding that the claimant had been injured while in the employ of petitioner and while performing services on the navigable waters of the United States. It was contended that at the time of his injury the claimant was not employed by the petitioner, and therefore, his claim was not within the jurisdiction of the deputy commissioner. The district court held a hearing de novo on the jurisdictional issue, held that the claimant was not in the employ of the petitioner at the time of the accident, and restrained the enforcement of the award. The decree was affirmed by the Court of Appeals for the Fifth Circuit, and certiorari was granted by the Supreme Court. The Supreme Court affirmed the two lower courts and approved of the district court's holding of a de novo hearing on the jurisdictional issue. Although the deputy commissioner's findings of fact are to be given considerable weight by a reviewing court, the Supreme Court drew a distinction between ordinary facts and "fundamental" or "jurisdictional" facts, without which the deputy commissioner would have no power to hear the case:

"A different question is presented where the determinations of fact are fundamental or `jurisdictional,' in the sense that their existence is a condition precedent to the operation of the statutory scheme. These fundamental requirements are that the injury occurs upon the navigable waters of the United States, and that the relation of master and servant exists. These conditions are indispensable to the application of the statute, not only because the Congress has so provided explicitly * * *, but also because the power of the Congress to enact the legislation turns upon the existence of these conditions.

"In amending and revising the maritime law, the Congress cannot reach beyond the constitutional limits which are inherent in the admiralty and maritime jurisdiction. Unless the injuries to which the act relates occur upon the navigable waters of the United States, they fall outside that jurisdiction. Not only is navigability itself a question of fact, as waters that are navigable in fact are navigable in law, but, where navigability is not in dispute, the locality of the injury, that is, whether it has occurred upon the navigable waters of the United States, determines the existence of the congressional power to create the liability prescribed by the statute." Id. at 285 U.S. 54-55, 52 S. Ct. 294.

The Supreme Court therefore concluded that a court reviewing jurisdictional facts need give no weight to the deputy commissioner's findings on such facts. The Court said, "We think that the essential independence of the exercise of

294 F. Supp. 482

the judicial power of the United States, in the enforcement of constitutional rights requires that the federal court should determine such an issue upon its own record and the facts elicited before it." Id. at 285 U.S. 64, 52 S.Ct. 297. The court therefore held that "the District Court did not err in permitting a trial de novo on the issue of employment." Id. at 285 U.S. 65, 52 S.Ct. 298

But Crowell v. Benson has not really been followed in the 36 years since that decision was rendered. Although it has never been expressly overruled by the Supreme Court, most courts have virtually ignored it, as is evidenced by the numerous twilight zone cases which all dealt with jurisdictional problems under the Longshoremen's and Harbor Workers' Compensation Act. These courts could have held de novo review in these cases under the Crowell doctrine, but in almost every case the Crowell decision was not even mentioned.

The Fifth Circuit has not expressly passed on this question. The closest it has come to commenting on the current viability of the Crowell doctrine was in Riley v. Henderson, 218 F.2d 752 (5th Cir., 1955). However, the court determined that the question in that case was substantial rather than jurisdictional, and consequently, it was "unnecessary to consider appellees' contention that the rule of that case Crowell v. Benson is of doubtful validity in the light of more recent Supreme Court cases." Id. at 218 F.2d 754.

The Ninth Circuit has held that it is not mandatory for a district court to hold a de novo trial on jurisdictional issues in Longshoremen's and Harbor Workers' Compensation Act cases, but rather this matter is within the district court's discretion. In Western Boat Building Co. v. O'Leary, 198 F.2d 409, 413 (9th Cir., 1952), the Ninth Circuit said:

"We do not understand Crowell v. Benson to afford a trial de novo as a matter of right under circumstances where there is no real issue of fact presented. * * * If however, the true rule is contrary to our impression, we simply refuse to invoke it where (as here) no worthwhile purpose would be served thereby. To do so would be to adhere to the superfluous and breed procrastination." (Emphasis by the court.)

More recently, the Ninth Circuit has upheld the Western Boat case in Morrison-Knudsen Co. v. O'Leary, 288 F.2d 542, 543 (9th Cir., 1961), in which the court said:

"As far as this Circuit is concerned the rule laid down in Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L. Ed. 598, has been limited and interpreted so as not to require a trial de novo as a matter of right under circumstances where there is no real issue of fact presented. Rather, this court has consistently held that where no worthwhile purpose would be served, the substantial evidence rule should be

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