New Orleans Depot Servs., Inc. v. Dir., Office of Worker's Comp. Programs

Decision Date29 April 2013
Docket NumberNo. 11–60057.,11–60057.
Citation718 F.3d 384
PartiesNEW ORLEANS DEPOT SERVICES, INCORPORATED, Petitioner v. DIRECTOR, OFFICE OF WORKER'S COMPENSATION PROGRAMS, U.S. Department of Labor; New Orleans Marine Contractors; Signal Mutual Indemnity Association Limited, Respondents.
CourtU.S. Court of Appeals — Fifth Circuit


Kenneth G. Engerrand, I, Brown Sims, P.C., Houston, TX, Anne Derbes Wittmann, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., New Orleans, LA, for Petitioner.

Matthew W. Boyle, Rae Ellen James, Associate Solicitor, Mark Ambrose Reinhalter, Counsel, U.S. Department of Labor, Office of the Solicitor, Washington, DC, David Duhon, U.S. Department of Labor. Douglas P. Matthews, Andrew Joseph Quackenbos, King, Krebs & Jurgens, P.L.L.C., New Orleans, LA, for Respondents.


W. EUGENE DAVIS, Circuit Judge:

In this case, we review the determination of the Benefits Review Board (“BRB”) that the claimant, Juan Zepeda, was entitled to compensation benefits under the Longshore and Harbor Workers' Compensation Act (“LHWCA” or the Act), from Petitioner New Orleans Depot Services, Inc. (NODSI).

In particular, the BRB found that the claimant's employment activities with NODSI took place in an area or location “adjoining” navigable waters “customarily used by an employer in loading [or] unloading ... a vessel” 1 and therefore NODSI's facility met the situs requirement of the Act. We conclude that because the NODSI facility where Mr. Zepeda worked did not border on navigable waters, it was not a covered situs and Mr. Zepeda is entitled to no benefits under the Act from Petitioner NODSI. We therefore vacate the award of the BRB as against NODSI and remand for further proceedings.

I. Facts

The claimant, Mr. Zepeda, filed a claim for LHWCA benefits against one of his prior employers, New Orleans Marine Contractors (NOMC), to recover benefits for his hearing loss due to continuous exposure to loud noises. As a defense, NOMC contended that NODSI was a subsequent maritime employer and that NODSI rather than NOMC was therefore the responsible party.2 The issue then presented to the Administrative Law Judge (“ALJ”) and BRB was whether NODSI was responsible as a subsequent employer for benefits under the LHWCA. NOMC then, in effect, prosecuted Mr. Zepeda's claim against NODSI so that NOMC would avoid its liability to him.

Following his employment with NOMC, Mr. Zepeda was employed by the Petitioner, NODSI, at its “Chef Yard” facility on the Chef Menteur Highway in New Orleans. NODSI and its employees were engaged in the repair, maintenance, and storage of shipping containers and chassis.3 Some of the containers had been used to transport ocean cargo. NODSI had more than one facility, but the Chef Yard facility is the only facility relevant to this appeal. The Chef Yard, with access to the Chef Menteur Highway and rail transportation, can best be described as a small industrial park. The Chef Yard is located approximately 300 yards from the Intracoastal Canal and is surrounded by a carwash, a radiator shop, an automobile repair shop, a bottling company, and a company that manufactures boxes. The bottling company's facility is located between the Intracoastal Waterway and the Chef Yard.

NODSI employees worked only within NODSI's facility as they repaired or performed maintenance on containers and chassis. They had no access to the Intracoastal Canal and all of the equipment NODSI serviced was delivered to the Chef Yard by truck. Once NODSI completed repairs to the equipment, it was picked up by truck or rail, and no containers were loaded with cargo while in NODSI's custody.

II. Procedural Background

The ALJ, after conducting a hearing in this case, found that some of the containers repaired and maintained by NODSI employees had been used for marine transportation and off-loaded at the port of New Orleans. Representatives of Evergreen, NODSI's customer, also stated that at least some of the containers would be returned to service as marine containers. The ALJ concluded that the NODSI Chef Yard employees' work repairing ocean containers was “a process which was a significant maritime activity” necessary to loading and unloading cargo. In addition, the ALJ concluded that the location of the NODSI Chef Yard located some 300 yards from the Intracoastal Canal satisfied the situs requirement that the injury occur in an area “adjoining navigable waters.” Also, the ALJ found that the repair work and maintenance Mr. Zepeda performed on these containers was closely related to loading or unloading vessels and constituted “maritime employment” which satisfied the status test under the Act.

The BRB affirmed the ALJ's order and a divided panel of this court affirmed the BRB. We then voted this case en banc, primarily to consider the BRB's determination that Mr. Zepeda was injured in an area “adjoining navigable waters” so as to satisfy the Act's situs test.

III. Standard of Review

Because the LHWCA situs inquiry requires the application of a statutory standard to case-specific facts, it is ordinarily a mixed question of law and fact. However, where, as in this case, the facts are not in dispute, [LHWCA] coverage is an issue of statutory construction and legislative intent,” and should be reviewed as a pure question of law. See DOWCP v. Perini North River Associates, 459 U.S. 297, 300, 305, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983). We therefore review the BRB's determination of coverage under the LHWCA in this case de novo. Equitable Equip. Co. v. DOWCP, 191 F.3d 630, 631 (5th Cir.1999) (citation omitted).

IV. Analysis

Before turning to the merits of this appeal, we first consider a preliminary objection the Respondent raises. The Director argues that NODSI has waived the argument that Mr. Zepeda failed to establish that he met the situs requirement of the Acti.e., that his injury occurred in an area “adjoining navigable waters”—by failing to raise it before the BRB or the panel of this court that heard the appeal. Specifically, the Director argues that NODSI cannot argue that this en banc Court should adopt a new interpretation of “adjoining” when it failed to make the argument before two previous tribunals.

Generally, we do not consider issues on appeal that were not presented and argued before the lower court. See Lampton v. Diaz, 639 F.3d 223, 227 n. 14 (5th Cir.2011). “The waiver rule exists to prevent an appellate court from [analyzing] the facts of a particular [issue] without the benefit of a full record or lower court determination.’ Id.4 In its opening brief to the panel of this court that initially heard the appeal, NODSI only challenged the functional component 5 of the situs requirement and acknowledged that our caselaw foreclosed consideration of the geographic component.6 However, this is not a case in which a party has wholly ignored a major issue. The issue of LHWCA situs has been contested throughout the case's history, with the proper application of “adjoining area” being squarely addressed by both the ALJ and the BRB. NODSI's recognition of the fact that it was bound by this Court's current interpretation of “adjoining” does not deprive us of the right to visit the issue.

Moreover, a well-settled discretionary exception to the waiver rule exists where a disputed issue concerns “a pure question of law.” Texas v. United States, 730 F.2d 339, 358 n. 35 (5th Cir.1984); see also Atl. Mut. Ins. Co. v. Truck Ins. Exch., 797 F.2d 1288, 1293 (5th Cir.1986). In this case, the ALJ, after a full hearing, resolved the factual disputes presented by the parties. At the hearing, witnesses testified about the nature of the industrial park where NODSI's operations were conducted, the nature of NODSI's work, and the relationship of the work to maritime activities. The evidence was undisputed that NODSI's Chef Yard is located about 300 yards from the Intracoastal Canal, and that a bottling plant is located on the tract of land between the Canal and NODSI's yard.

Because the legal issue of whether the location of the claimant's injury “adjoined” navigable waters was presented to the ALJ and the facts involving this issue were fully litigated before the ALJ, we are left with a pure question of law to decide. Moreover, every party was provided an adequate opportunity to brief and argue the issue before the en banc court. Therefore, notwithstanding NODSI's failure to challenge our governing precedent before the BRB or our panel, we exercise our discretion to decide this legal issue: whether, under these undisputed facts, claimant was injured in an area adjoining navigable waters so as to satisfy the LHWCA situs requirement. We now turn to the merits of the appeal.


Before 1972, coverage under the LHWCA was provided only if the injury occurred on navigable waters. This “situs” requirement was strictly enforced.7 However, by its nature, loading and unloading a vessel required a longshoreman to continuously go from ship to wharf and back again, and a longshoreman might work part of the day aboard the ship and the rest of the day on the pier.8 Similar movement by workers from vessel to dock also occurred in vessel repair work. When Congress made extensive amendments to the Act in 1972, it expressed concern about longshoremen walking in and out of coverage and, to meet this concern, broadened coverage by amending LHWCA § 903(a).9

Congress made another change in the 1972 amendments by adding a status requirement, thus limiting LHWCA coverage to traditional maritime occupations. This was accomplished by defining a covered “employee” as “any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman,...

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