Peru v. Sharpshooter Spectrum Venture LLC

• Decision Date: 27 June 2007
• Docket Number: No. 05-75337.,05-75337.
• Citation: 493 F.3d 1058
• Parties: Cheryl PERU, Petitioner, v. SHARPSHOOTER SPECTRUM VENTURE LLC; Director, Office of Workers' Compensation Programs, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

493 F.3d 1058

Cheryl PERU, Petitioner, v. SHARPSHOOTER SPECTRUM VENTURE LLC; Director, Office of Workers' Compensation Programs, Respondents.

No. 05-75337.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 13, 2006.

Filed June 27, 2007.

Jay Lawrence Friedheim, Honolulu, HI, Joshua T. Gillelan, II, Longshore Claimants' National Law Center, Washington, DC, for the petitioner.

Michael Formby and Michael J. Nakano, Frame Formby and O'Kane, Honolulu, HI, for respondent Sharpshooter Spectrum Venture.

Thomas Shepard, Benefits Review Board, Washington, DC, Carol DeDeo, Mark A. Reinhalter, Barry H. Joyner, Michael Niss, United States Department of Labor, Office of the Solicitor, Washington, DC, for the respondent.

On Petition for Review of an Order of the Office of Workers' Compensation Programs. OWCP Nos. BRB-04-0929, LHC-2722.

Before: STEPHEN S. TROTT, KIM McLANE WARDLAW, and W. FLETCHER, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge:

In this petition for review, we must determine whether an employee of a company that shoots, processes, and sells photographs to tourists on a historic naval ship is entitled to collect benefits under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901-950 (2006), or is barred from recovery by the LHWCA's express exclusion of "individuals employed by a . . . museum[] or retail outlet." 33 U.S.C. § 902(3)(B). We hold that in determining the applicability of § 902(3)(B), we must look not only at the nature of a claimant's employer but also at the nature of the claimant's particular workplace and duties. In this case, we conclude that petitioner falls within the scope of the "retail outlet" exclusion at § 902(3)(B) because both her employer's business and her own employment activities focused, in substantial part, on retail sales and, moreover, had little connection to traditional maritime activities. Because an employee may be excluded from LHWCA benefits under § 902(3)(B) only if he or she is covered by state workers' compensation, however, we remand the case for a determination whether petitioner is eligible for benefits under Hawaii law.

I. Background

On November 17, 2002, while petitioner Cheryl Peru was ascending a ladder inside the USS Missouri, she hit her head, sustaining head and neck injuries. Peru worked for respondent Sharpshooter Spectrum Venture, LLC ("SSV"), the "exclusive provider of photographic and imaging concession services for visitors" to the famous World War II battleship, which is now moored at Pearl Harbor and open to the public. SSV employees greet tourists as they enter the USS Missouri and ask permission to take their photographs. The employees then shoot photographs of the tourists at several locations on the ship and the nearby pier. They process the photographs in a mobile trailer "lab" located on the pier and offer them for sale at a designated sales area, also located on the pier.

When Peru started at SSV in July 2001, she worked as a photographer. Peru subsequently was promoted to a sales job and then to a position as assistant manager. As assistant manager, Peru performed a variety of administrative tasks, but also continued to do greeting, sales, and photography work as needed. At the time of her accident, Peru, loaded with camera equipment, was making her way to the USS Missouri's captain's room to photograph a tour group.

Following her injury, Peru was unable to continue in her old job. Peru attempted to apply for Hawaii Workers' Compensation benefits in late November 2002, but, for reasons that are not clear from the record, SSV's claims adjustor denied she was eligible. Peru then filed a claim with the Department of Labor's Office of Workers' Compensation Programs for compensation under the LHWCA. SSV again disputed Peru's claim for benefits, arguing that she was not covered by the LHWCA. After a hearing, the Administrative Law Judge ("ALJ") held that Peru was not covered by the LHWCA because she was an employee of a "museum," a category of worker expressly excluded from LHWCA benefits under 33 U.S.C. § 902(3)(B). Alternately, the ALJ held that Peru was employed by a "retail outlet," and thus fell within another category of worker excluded under § 902(3)(B).

Peru appealed the ALJ's decision to the Benefits Review Board ("BRB" or "Board"). The BRB affirmed the ALJ's holding that Peru was excluded from LHWCA coverage as an employee of a retail outlet based on SSV's sales of photographs to tourists on the pier and Peru's employment duties in furtherance of this sales activity. It declined to reach the question of whether she was employed by a museum. Peru now petitions for review of the BRB's decision. We have jurisdiction to review the denial of benefits pursuant to 28 U.S.C. § 1291. We affirm the BRB's holding that Peru falls under the retail outlet exclusion at § 902(3)(B) but remand for further proceedings.

II. Standard of Review

Whether an employee who seeks benefits is covered by the LHWCA is a mixed question of fact and law. Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 553-54, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997). Where, as here, the underlying facts are undisputed, LHWCA coverage is decided as a matter of law. See id. We review "questions of law, including interpretations of the LHWCA," de novo. Gen. Const. Co. v. Castro, 401 F.3d 963, 965 (9th Cir.2005). Because the BRB is not a policymaking body, its construction of the LHWCA is not entitled to any "special deference." M. Cutter Co. v. Carroll, 458 F.3d 991, 993 (9th Cir.2006) (internal quotation marks omitted). However, we will "`respect the Board's interpretation of the [LHWCA] where such interpretation is reasonable and reflects the policy underlying the statute.'" Id. (quoting McDonald v. Dir., OWCP, 897 F.2d 1510, 1512 (9th Cir.1990)).

III. Scope of the LHWCA

Two federal acts provide compensation to workers injured on or adjacent to navigable waters. The Jones Act covers "seam[e]n." 46 U.S.C. § 30104(a) (formerly 46 U.S.C. § 688(a)). The LHWCA covers certain land-based maritime "employee[s]." 33 U.S.C. § 903(a). Those not eligible for recovery under either federal act are covered by state workers' compensation laws. See McGray Const. Co. v. Dir., OWCP, 181 F.3d 1008, 1011 (9th Cir.1999) ("[T]he question is not whether an employee will be left out in the cold, but only which scheme covers him."). Peru contends that she is entitled to recover under the LHWCA.

A. Status and Situs Requirements for LHWCA Coverage

The Supreme Court has explained that to qualify for LHWCA compensation, a worker ordinarily must satisfy both a "situs" requirement and a "status" requirement. Dir., OWCP v. Perini N. River Assocs., 459 U.S. 297, 299, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983). It is undisputed that Peru was injured on "navigable waters" or "certain adjoining land areas," namely, on board the USS Missouri, and therefore satisfies the situs requirement. Id.; see also 33 U.S.C. § 903(a). But SSV argues that Peru does not satisfy the status requirement.

Congress added an express status requirement to the LHWCA in 1972, specifying who qualifies as an "employee" covered by the act. In 1984, Congress enumerated specific types of workers who do not qualify as employees under the LHWCA. The LHWCA now provides that

[t]he term "employee" means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include —

(A) individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;

(B) individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;

(C) individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance);

(D) individuals who (i) are employed by suppliers, transporters, or vendors, (ii) are temporarily doing business on the premises of an employer described in paragraph (4), and (iii) are not engaged in work normally performed by employees of that employer under this chapter;

(E) aquaculture workers;

(F) individuals employed to build, repair, or dismantle any recreational vessel under sixty-five feet in length;

(G) a master or member of a crew of any vessel; or

(H) any person engaged by a master to load or unload or repair any small vessel under eighteen tons net;

if individuals described in clauses (A) through (F) are subject to coverage under a State workers' compensation law.

33 U.S.C. § 902(3) (emphasis added).

Congress's creation of an express status requirement coincided with its relaxation of the situs requirement. "Before the 1972 Amendments, it was only necessary for an injured employee to satisfy a situs requirement"; however, under the situs requirement then in effect, "the injury had to have occurred upon the navigable water of the United States." Ramos v. Universal Dredging Corp., 653 F.2d 1353, 1356 (9th Cir.1981). In 1972, Congress extended LHWCA coverage to individuals injured on areas "adjoining" navigable waters, including "`any . . . pier, wharf, dry dock, terminal, building way, [or] marine railway,'" in order to "avoid anomalies inherent in a system that drew lines at the water's edge." Ne. Marine Terminal Co. v. Caputo, 432 U.S. 249, 279, 281, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977) (quoting 33 U.S.C. § 903(a)). The expansion of the situs covered by the LHWCA "to include rather large shoreside areas necessitated an affirmative description of the particular employees working in those areas who would be covered." Herb's Welding, Inc. v. Gray, 470 U.S. 414, 423, 105 S.Ct. 1421, 84 L.Ed.2d 406 (1985).

Both we and the Supreme Court have construed the general definition of "employee" in the first paragraph of 33 U.S.C. § 902(3) narrowly to encompass only those employees ...