Sanchez v. Smart Fabricators of Tex., L.L.C.

• Decision Date: 11 May 2021
• Docket Number: No. 19-20506,19-20506
• Citation: 997 F.3d 564
• Parties: Gilbert SANCHEZ, Plaintiff—Appellant, v. SMART FABRICATORS OF TEXAS, L.L.C., Defendant—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

997 F.3d 564

Gilbert SANCHEZ, Plaintiff—Appellant,

v.SMART FABRICATORS OF TEXAS, L.L.C., Defendant—Appellee.

No. 19-20506

United States Court of Appeals, Fifth Circuit.

FILED May 11, 2021

William David George, Baker Wotring, L.L.P., Anthony G. Buzbee, Andrew Anh Dao, Buzbee Law Firm, Houston, TX, for Plaintiff - Appellant.

Michael Matthew Jett, Evan Thomas Caffrey, Hall Maines Lugrin, P.C., Houston, TX, for Defendant - Appellee.

Kenneth G. Engerrand, I, Esq., Attorney, Brown Sims, P.C., Houston, TX, for Amicus Curiae Kenneth G. Engerrand, I.

Ian Fitzgerald Taylor, Lewis, Kullman, Sterbcow & Abramson, New Orleans, LA, for Amicus Curiae Louisiana Association for Justice.

Before Owen, Chief Judge, Davis, Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Ho, Duncan, Engelhardt, Oldham, and Wilson, Circuit Judges.

W. Eugene Davis, Circuit Judge.

We took this case en banc to attempt to define for this Circuit a more definitive test, consistent with Supreme Court caselaw, to distinguish seamen entitled to benefits under the Jones Act from other maritime workers generally covered under the Longshore and Harbor Worker's Compensation Act.

We conclude that the plaintiff in this case, Gilbert Sanchez, a land-based welder directed by his employer to work on two discrete short-term transient repair jobs on two vessels, was not a seaman. Because Sanchez was not engaged in sea-based work that satisfied the requirement that he be substantially connected to a fleet of vessels in terms of the nature of his work, we AFFIRM the judgment of the district court.

I. FACTUAL BACKGROUND

The material facts in this case are not in dispute. The plaintiff, Gilbert Sanchez,¹ was employed as a land-based welder by Smart Fabricators of Texas, LLC ("SmartFab"), a contract welding firm engaged in steel fabrication, repairs to drilling equipment, and general contract welding work. SmartFab's work is performed to meet the demands of its customers on land and sometimes on jack-up drilling barges. The issues in this case revolve around Sanchez's work for SmartFab on two jack-up barges owned by SmartFab's customer, Enterprise Offshore Drilling LLC ("Enterprise").

Sanchez worked for SmartFab for a total of 67 days between August 2017 and August 2018. Six of those days were spent working on welding jobs either on land or vessels that are irrelevant to his status as a seaman because they were not owned or controlled by Enterprise. Sanchez spent the remaining 61 days—those pertinent to our inquiry—on two different jack-up drilling rigs owned by Enterprise: the Enterprise WFD 350 and the Enterprise 263.

A. Enterprise WFD 350

Sanchez worked on the Enterprise jack-up barge WFD 350 for 48 days doing welding work on a discrete repair job. The entire time he worked on this vessel, it was jacked-up so that the deck of the barge was level with Gabby's Dock in Sabine Pass, Texas, and separated from the dock by a gangplank. Sanchez could take two steps on the gangplank, and he was ashore. He commuted from his home to the vessel daily. His time on the WFD 350 comprised approximately 72 percent of his total work time with SmartFab.

B. Enterprise 263

Sanchez worked 13 days on one other Enterprise vessel, the Enterprise jack-up barge 263. His work on this vessel comprised approximately 19 percent of his time in SmartFab's employment. When Sanchez was dispatched to the Enterprise 263 in July 2018, it was located in West Cameron Block 38 on the Outer Continental Shelf ("OCS"). He was sent as part of a SmartFab crew that was contracted to perform repairs necessary to get the vessel in condition to satisfy requirements of the American Bureau of Shipping ("ABS"), the Bureau of Safety and Environmental Enforcement ("BSEE"), and the Coast Guard, so that the rig could begin drilling operations at a new drilling site on the OCS. Sanchez was aboard the rig when it was moved by tugboats to the new drilling location, South Timbalier Block 125 on the OCS.

Sanchez performed welding and related work on the deck of the Enterprise 263. On August 8, 2018, he fell and sustained the injury that is the subject of this suit. Because Sanchez was sent ashore on August 9, 2018, following his injury, he was unable to complete his assignment and remain with the SmartFab crew until the repairs were completed on August 10, 2018. The rig began drilling on August 11, 2018.² Sanchez left the employ of SmartFab after his injury and, as far as the record shows, did no more work on Enterprise vessels.

II. PROCEDURAL HISTORY

After his accident, Sanchez sued SmartFab in state court under the Jones Act. SmartFab promptly removed the case, but Sanchez moved to remand, arguing that the Jones Act precluded removal. The district court denied Sanchez's motion to remand and granted SmartFab's motion for summary judgment, both for the same reason: Sanchez did not qualify as a Jones Act seaman.³

A. District Court Rulings

The district court concluded that Sanchez failed to establish a substantial connection in terms of the nature of his work to the Enterprise fleet of jack-up barges he worked aboard.⁴ The district court held that Sanchez spent more than 30 percent of his work time with SmartFab working on the Enterprise WFD 350 and 263, and that his repair work on those barges contributed to the function of these vessels.⁵ Because he contributed to the function of the vessels, he satisfied prong one of the seaman-status test.⁶ The court also held that because Sanchez spent more than 30 percent of his work time with SmartFab working on those two barges, he met the substantial connection requirement as to duration.⁷ However, the district court concluded that because less than 30 percent of his work on the two vessels was performed away from the dock, he did not satisfy the nature element of the substantiality requirement and therefore Sanchez was not a seaman.⁸ For this reason, the district court denied Sanchez's motion to remand the case to state court.⁹ For the same reason, the district court granted SmartFab's motion for summary judgment.¹⁰ Sanchez timely appealed both rulings.

B. Panel Opinion and En Banc Review

On appeal, the panel originally held that based upon binding Circuit precedent, Sanchez satisfied the requirements for seaman status. We based this on two of our earlier cases: In re Endeavor Marine, Inc. ,¹¹ and Naquin v. Elevating Boats, L.L.C.¹² One member of the panel filed a concurring opinion, joined by the other members of the panel, questioning whether our precedent was in line with Supreme Court caselaw and proposing that we take the case en banc to consider this question.¹³ The case was voted en banc, and, for the reasons set forth below, the en banc court agrees that Supreme Court precedent requires us to affirm the judgment of the district court.

III. APPLICABLE LAW

We review both the denial of a motion to remand and the grant of summary judgment de novo.¹⁴

A. Jones Act and LHWCA

The Jones Act grants "a seaman" a cause of action against his employer in negligence.¹⁵ Only seamen may sue under the Jones Act and Jones Act claims are "not subject to removal to federal court."¹⁶ Sanchez argues that because he was a seaman who brought his negligence action under the Jones Act in state court, the district court erred both in denying his motion to remand and in granting summary judgment for SmartFab. So, the only issue for us to decide to resolve this appeal is whether Sanchez is a seaman (or entitled to have a jury resolve the issue) entitled to the benefits of the Jones Act.

In addition to the Jones Act, another important statute is relevant to our inquiry. Congress enacted the Longshore and Harbor Worker's Compensation Act (LHWCA) in 1927 to establish a federal compensation remedy for injuries to certain land-based workers occurring on navigable waters.¹⁷ Generally, coverage under this compensation act excluded from its coverage "a master or member of a crew of any vessel."¹⁸ The LHWCA, therefore, limits the definition of "seaman" in the Jones Act so as "to confine the benefits of the Jones Act to the members of the crew of a vessel plying in navigable waters and to substitute for the right of recovery ... only such rights to compensation as are given by the LHWCA."¹⁹ Thus, the seaman's remedy is limited to rights granted by the Jones Act, and rights granted to other maritime workers are provided exclusively by the LHWCA. The two remedies are mutually exclusive.²⁰

Because Congress has not defined the term "seaman," the definition of and distinction between the two groups have been the subject of extensive litigation, and courts have struggled to establish workable tests to define the word "seaman."

B. Supreme Court Trilogy

In the 1990s, the Supreme Court decided three cases that were enormously helpful in giving meaning to the term "seaman."

1. Wilander

First was McDermott International, Inc. v. Wilander .²¹ The Court took this case primarily to resolve a split among the circuits on the question of whether a plaintiff, to establish seaman status, was required to show that he aided in the navigation of a vessel.²² The Court rejected the circuit cases imposing this requirement and adopted the test set forth in Judge Wisdom's landmark decision in Offshore Co. v. Robison , requiring proof that the seaman "contributed to the function of the vessel or to the accomplishment of its mission" and have an employment-related connection to a vessel.²³ The Wilander Court emphasized, "The key to seaman status is employment-related connection to a vessel in navigation."²⁴

In order to give effect to the land-based/sea-based distinction, the Court "believe[d] the better rule is to define ‘master or member of a crew’ under the LHWCA, and therefore ‘seaman’ under the Jones Act, solely in terms of the employee's connection to a vessel in navigation."²⁵ The Court was persuaded that the connection requirement was consistent with "Congress' land-based/sea-based distinction," explaining: "All who...