Simpson v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, No. 81-1455

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before COFFIN, Chief Judge, ALDRICH and BREYER; COFFIN
• Citation: 681 F.2d 81
• Docket Number: No. 81-1455
• Decision Date: 23 June 1982
• Parties: Donald J. SIMPSON, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Bath Iron Works Corporation, and American Mutual Liability Insurance Company, Respondents.

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681 F.2d 81 Donald J. SIMPSON, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, Bath Iron Works
Corporation, and American Mutual
Liability Insurance Company,
Respondents. No. 81-1455. United States Court of Appeals,
First Circuit. Argued Dec. 8, 1981.
Decided June 23, 1982.

Jonathan W. Reitman, Brunswick, Me., with whom McTeague, Higbee & Tucker, Brunswick, Me., was on brief, for petitioner.

Stephen Hessert, Portland, Me., with whom Norman & Hanson, Portland, Me., was on brief, for respondents.

Before COFFIN, Chief Judge, ALDRICH and BREYER, Circuit Judges.

COFFIN, Chief Judge.

This case requires us to determine whether the Supreme Court's decision in Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), which clarified the jurisdictional scope of the Longshoremen's and Harbor Workers' Compensation Act of 1927, should be applied to workers' injuries that antedated the decision.

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I. Background

On November 21, 1941, Donald Simpson was working as a welder on board a vessel under construction on a marine railway at the Bath Iron Works shipyard. He fell approximately fifty feet from the deck of the vessel, landing on his back on a set of pipes on the marine railway. He was rendered a paraplegic and has been confined to a wheelchair ever since. The employer (BIW) knew of the injury but never filed a First Report of Injury under the Longshoremen's Act. Simpson sought and received $6,000 from the employer under the provisions of the State of Maine Workers' Compensation Act between December 18, 1941, and April 8, 1948. See Simpson's Case, 144 Me. 162, 66 A.2d 417 (1949). On March 22, 1977, Simpson filed a claim for benefits under the federal Act. He seeks $1,500 (the difference between the $6,000 recovered under the Maine Act and the $7,500 that was authorized under the federal Act in 1941) plus reimbursement for thirty-six years' worth of medical expenses (available under the federal but not the state Act). The claim was not barred by the Act's statute of limitations, because of the employer's failure to file a First Report of Injury. 33 U.S.C. §§ 913(a), 930(f).

In proceedings within the Department of Labor, the employer posed a series of jurisdictional challenges to Simpson's claim. It is clear that Simpson's injury fell within the coverage of the Act's jurisdictional rule, 33 U.S.C. § 903(a) (Section 3(a) of the Act) as it was interpreted in Calbeck, supra. ¹ BIW argued that Calbeck 's interpretation should not apply retroactively to Simpson's injury; that the claim was barred by the collateral estoppel theory of Shea v. Texas Employer's Insurance Assoc., 383 F.2d 16 (5th Cir. 1967), as well as the doctrines of election of remedies, res judicata, and laches; and that Simpson's injury did not meet the federal Act's situs requirement since he fell from the vessel onto land.

The Administrative Law Judge dismissed Simpson's claim on the basis of the employer's second argument, holding Shea, supra, controlling. The Benefits Review Board disagreed and held that Shea was inconsistent with Calbeck. Nevertheless, the Board affirmed the dismissal of Simpson's claim. In a split decision, Administrative Appeals Judge Miller dissenting, it reasoned that Calbeck 's analysis of Section 3(a) was not to be applied retroactively.

We have jurisdiction to review the Board's decision, pursuant to 33 U.S.C. § 921(c). The Director of the Office of Workers' Compensation Programs has, as a party-respondent, see Shahady v. Atlas Tile & Marble Co., 673 F.2d 479 (D.C.Cir.1982), filed a brief in support of the petitioner, urging reversal of the Board.

II. The Retroactivity of Calbeck

A. The Calbeck Holding

Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), considered two cases, each arising out of facts indistinguishable from those before us here. In each case, a worker had been injured while laboring aboard a new vessel that was still under construction, but already afloat on navigable waters. The insurance company in Calbeck had prevailed before the Fifth Circuit Court of Appeals, Travelers Ins. Co. v. Calbeck, 293 F.2d 52 (5th Cir. 1961); Avondale Shipyards, Inc. v. Donovan, 293 F.2d 51 (5th Cir. 1961) on the basis of the following syllogism:

1. Section 3(a) of the Act declared that compensation was available under federal law only if "recovery ... through workmen's compensation proceedings may not validly be provided by state law." ² Federal

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and state jurisdiction were therefore mutually exclusive.

2. A line of cases starting with Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922), had established the so-called "maritime-but-local" or "local concern" doctrine. According to this doctrine, when an employee performed tasks of "local concern", such as constructing a new vessel on navigable waters, a state law could validly provide workers' compensation in a maritime context.

3. Thus, the Longshoremen's Act did not permit federal compensation to workers whose situations were covered by the maritime-but-local doctrine.

(Hereafter we will call this argument "the Rohde -3(a) syllogism".)

Despite the neatness of the Rohde -3(a) syllogism, the Supreme Court reversed. The Court made several points in its meticulous analysis of § 3(a)'s legislative history. Earlier drafts of section 3(a) had explicitly incorporated the "local concern" doctrine. A House Committee had eliminated the language completely; a Senate Committee had responded to employer complaints about the language by replacing it with the "may not validly be provided by State law" language. The Senate language was adopted, not to incorporate "local concern" obliquely, but rather to eliminate a parliamentary obstacle on an unrelated issue (the exclusion of seamen from coverage). Calbeck, supra, 370 U.S. at 122-24 & n.13, 82 S.Ct. at 1200-02 & n.13.

In addition, the purpose of the Act, as stated in the Senate Report, S.Rep.No.973, 69th Cong., 1st Sess., at 16, was to provide certain compensation for a class of employees who had been denied the certainty offered by state compensation statutes. The Senate Report named three Supreme Court cases that had created the need for such an Act: Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1920); and Washington v. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646 (1924). (Jensen had declared unconstitutional New York's efforts to apply its state compensation statute to an injury sustained on a gangplank between a vessel and a wharf; Stewart and Washington had struck down federal statutes attempting to authorize the states to use their own compensation statutes in such cases.) This Senatorial statement of purpose makes no mention of Rohde or the local concern doctrine. See Calbeck, supra, 370 U.S. at 126 n.14, 82 S.Ct. at 1203 n.14. Moreover, the Rohde -3(a) syllogism would undermine the stated goal. It would eliminate certainty because "the contours of the 'local concern' concept were and have remained necessarily vague." Id. at 124, 82 S.Ct. at 1202. It would perpetuate the risk that some maritime employees would be covered by neither federal nor state laws, wherever a state chose not to push its coverage to the Constitutional limit. Id. at 125, 82 S.Ct. at 1202. And it would make "federal coverage expand and recede in harness with developments in constitutional interpretation as to the scope of state power, (meaning) that every litigation raising an issue of federal coverage would raise an issue of constitutional dimension, with all that that implies; and that each and every award of federal compensation would equally be a constitutionally premised denial of state competence in a like situation." Id. at 126, 82 S.Ct. at 1203. ³

B. The Benefits Review Board Decision

In its opinion below, the Benefits Review Board concluded that Calbeck 's interpretation should not be applied to all claims arising out of injuries since 1927. It anchored its analysis in the following language from Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971):

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"In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see, e.g., Hanover Shoe v. United Shoe Machinery Corp., (392 U.S. 481,) 496 (88 S.Ct. 2224, 2233, 20 L.Ed.2d 1231), or by deciding an issue of first impression whose resolution was not clearly foreshadowed, see, e.g., Allen v. State Board of Elections, (393 U.S. 544,) 572 (89 S.Ct. 817, 835, 22 L.Ed.2d 1). Second, it has been stressed that 'we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.' Linkletter v. Walker, (381 U.S. 618,) 629 (85 S.Ct. 1731, 1738, 14 L.Ed.2d 601). Finally, we have weighed the inequity imposed by retroactive application for, '(w)here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the "injustice or hardship" by a holding of nonretroactivity.' Cipriano v. City of Houma, (395 U.S. 701,) 706 (89 S.Ct. 1897, 1900, 23 L.Ed.2d 647)."

The Board majority, impervious to the protestations of its own dissenting number, embraced the views of the Calbeck dissent to support its belief that Calbeck established a new principle of law. It then declared that Calbeck 's purposes would not be promoted by applying it to Simpson's claim, but purported to reserve judgment on whether those purposes might be promoted by retroactive...