SUN SHIP, INC. v. PENNSYLVANIA

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Argument of Jeffery C. Hayes

Chief Justice Warren E. Burger: We'll hear arguments next in Sun Ship Company against Pennsylvania.

Mr. Hayes, you may proceed whenever you're ready.

Mr. Jeffery C. Hayes: Mr. Chief Justice and may it please the Court.

This case involves an appeal from a final judgment of the Commonwealth Court of Pennsylvania which affirmed awards to claimant appellees for facial disfigurement under the Pennsylvania Workmen's Compensation Act.

The question presented to this Court today is whether Pennsylvania may constitutionally award benefits under its state workmen's compensation law for injuries to maritime workers covered by the Longshoremen's Act as amended in 1972.

The central facts necessary to the resolution of the question are not in dispute in this Court.

Sun Ship is an employer within the meaning of the Longshoremen's Act.

It is engaged in shipbuilding and ship repair activities at its facilities adjoining the Delaware River, a navigable water of the United States.

Each of the claimants, at the time of his injury, was employed by Sun Ship, and was engaged in maritime employment, either shipbuilding or ship repair, and as an employee within the meaning of the Longshoremen's Act.

In addition, each of the appellees were injured upon the navigable waters of the United States as that term has been defined in both Sections 3 (a) of the amended Longshoremen's Act, its covering provisions, and in Section 24 which defines employer.

It is further undisputed that the injuries involved here fall within the coverage of the Longshoremen's Act.

Every administrative tribunal below and the court below so found and it has never been in question here and indeed it's conceded by appellees in this Court.

We submit that the judgment of the court below must be reversed because upon analysis of the amended Longshoremen's Act, the legislative history to the 1972 amendments and consideration of the State's purposes and objectives, it is evident that the Congress intended to preempt the application of state workmen's compensation laws when enacted the 1972 amendments to the Longshoremen's Act as those laws might apply to maritime workers injured upon the navigable waters of the United States.

In addition to the extent that a review of the Longshoremen's Act and the Pennsylvania Workmen's Compensation Act reveals both a general and in the very instance of this case, specific conflicts with the regulatory scheme determined to apply by Congress, the Pennsylvania Act must yield.

Justice Potter Stewart: You have told us that in this case, it's conceded that the -- that the respondents were within the coverage of the federal statute.

Mr. Jeffery C. Hayes: Yes sir.

Justice Potter Stewart: Because of the location of their injuries as well as their status.

There might be questions under -- in some situations, might there not, as to whether or not the federal statute did cover?

Mr. Jeffery C. Hayes: Yes, sir.

On question -- yes, Mr. Justice Stewart, there is no question that there are questions about the jurisdiction of the Longshoremen's Act --

Justice Potter Stewart: About -- that it's covered.

Mr. Jeffery C. Hayes: -- at the edges of federal coverage.

Justice Potter Stewart: And therefore, wherever the line may be under -- there -- there's going to be a twilight zone, I suppose.

Isn't there?

Mr. Jeffery C. Hayes: Well Your Honor it -- it's certainly possible.

The concept that there is going to be an edge of the federal jurisdiction and there maybe cases which fall close to that line which may give occasion to courts to consider on which side of the line and a -- a Davis kind of resolution of those conflicts might result.

But of course, in the course of amending the Longshoremen's Act, Congress substantially removed those problems at least in the context of shipbuilding and ship repair operations because it moved the line away from the water's edge which had been the most troublesome line of all.

Justice Potter Stewart: But there still is a line.

Mr. Jeffery C. Hayes: Yes, sir.

There is still a line.

There is no question --

Justice Potter Stewart: And -- and it's not -- it won't always be a clear line.

Mr. Jeffery C. Hayes: It will not always be a clear line.

Justice Potter Stewart: And therefore, if -- if you should be correct and if an injured workman or the survivors of a deceased workman that was killed honestly believe that they're under the coverage of the federal statute.

And if you're -- if we decide this case in your favor and say the federal statute is exclusive and then the federal administrative agency upheld by the Court said, “Sorry, you're not covered.”

Will the -- will the statute of limitations have run so far as the state workmen's compensation goes?

Mr. Jeffery C. Hayes: Your Honor, I think that that is a question that would have to be addressed to the States, many of which have equitable tolling principles that operate in other contexts and I think that the --

Justice Potter Stewart: I think they do, but I gather some don't.

Mr. Jeffery C. Hayes: Some may not, Your Honor.

Justice Potter Stewart: (Inaudible) the nature of your answer.

Mr. Jeffery C. Hayes: And I think that the statutes may well be tolled or ought to be tolled under any number of principles because plainly, the purpose to be served by a statute of limitations would not be met because the employer of course would be on notice of the claim and would realize that it's a jurisdictional dispute.

And indeed, there's no reason to think the States would adopt any other rule than what the Benefits Review Board has adopted for the federal courts and what the -- Courts of Appeals have adopted as an application of the statute of limitations principles under the Longshoremen's Act.

Justice Byron R. White: Have the maritime -- do all the maritime states purport to extend coverage that is clearly within the admiralty jurisdiction?

Mr. Jeffery C. Hayes: Your Honor, in fact I would -- I think it's clear from some of the decisions that are cited in the various briefs that Florida for example is a state that plainly does not purport to extend its remedy to --

Justice Byron R. White: Pennsylvania does.

Mr. Jeffery C. Hayes: -- least claims within the Longshoremen's Act.

Justice Byron R. White: Pennsylvania does.

Mr. Jeffery C. Hayes: Pennsylvania statute is a statute of general application applying to all employers injured within the common law.

Justice Byron R. White: Isn't that the general rule?

Isn't it the general rule?

Mr. Jeffery C. Hayes: Well, Your Honor --

Justice Byron R. White: I mean is that the general situation not to rule?

Mr. Jeffery C. Hayes: Well, I think Florida as I -- as I've already indicated, expressly limits the Longshoremen's Act -- I'm sorry, limits its statute and it doesn't apply where the Longshoremen's Act does apply and there are other such statutes in other maritime states which -- which work in a similar way.

Pennsylvania's does not.

Justice Potter Stewart: Of course the Constitution continues, I suppose, to impose a limit upon the exertion of state power over -- over accidents or deaths that occur at sea.

Mr. Jeffery C. Hayes: Yes sir, I believe it does and I think that the --

Justice Potter Stewart: Or -- or navigable waters.

Mr. Jeffery C. Hayes: And -- and it plainly --

Justice Potter Stewart: I mean the Jensen case has not been overruled ever as --

Mr. Jeffery C. Hayes: As a -- no, I don't believe it has, Your Honor.

I mean expressly it has not been overruled and I think that in addition, you have operating not only the pure admiralty principle which Johnson -- Jensen represents uniformity, but you have a kind of supremacy notion, if you will, that operates in tandem with the Admiralty Clause where the those cases recognizing uniformity principle have always found that where Congress moves into the admiralty area, uniformity is the rule and in addition, the Supremacy Clause analysis itself compels the result that if Congress has occupied the field that the States are not free to interfere.

Justice Potter Stewart: Well, quite powerful whether or not Congress has moved in the States, there's a constitutional limit upon the exercise of state jurisdiction over navigable waters, isn't there?

Mr. Jeffery C. Hayes: Yes sir.

There is and I think that that is why the -- the problem of the line that -- that you raise with me initially is important here because a system of concurrent jurisdiction necessarily creates two lines.

It creates the constitutional line, the Jensen line, if you will, over which the state remedy cannot extend and secondly, you have the edge of federal coverage somewhere to the landward side of the sea line.

Justice Potter Stewart: The Jensen line.

Mr. Jeffery C. Hayes: And I think that there you have two kinds of jurisdictional disputes that you might have to answer, perhaps not in any individual case, but certainly over the course of the whole series of cases that are presented to the Court.

Justice John Paul Stevens: Mr. Hayes, the Pennsylvania statute, I suppose, purports to extend three miles out from shore, doesn't it?

It says any place within the common law.

Mr. Jeffery C. Hayes: Yes, Your Honor.

Justice John Paul Stevens: And it --

Mr. Jeffery C. Hayes: And it purports indeed to extend to injuries that might arise out of contracts of hire entered into in -- in Pennsylvania.

It is the McCartin type statute, if you will.

The -- it is the post 1972 Longshoremen's Act which is the central focus of the analysis of course.

And there is really little reason to be overly concerned with the decisions of this Court and other federal courts which struggle with the very difficult questions presented by Congress when it enacted the 1927 Act and the meaning of the phrases which were read variously to extend or limit federal or state jurisdiction.

First of all, it's clear from the totality of circumstances shown by the language of the statute and the legislative history.

The Congress has totally occupied the field of compensation to maritime workers and expressly so to the exclusion of state law.

Chief Justice Warren E. Burger: Well, there was some suggestion that in some cases, there will be a twilight zone or a gray zone.

There's no question in this case about federal coverage, is there?

Mr. Jeffery C. Hayes: No Your Honor, there is no question.

This is not a twilight zone or a borderline case.

Chief Justice Warren E. Burger: No.

Justice Harry A. Blackmun: What you're -- you're really here because of the financial aspects of the case, wholly apart from all the theory.

If the Pennsylvania compensation was less than the federal, you wouldn't be here.

Mr. Jeffery C. Hayes: Your Honor, in this specific case, the statement is correct that the state remedy would have made it possible for these claimants to receive more money than they could under the Pennsylvania Act.

However, that statement does not extend to other provisions of the Act.

The Pennsylvania Act in other respects and perhaps in the respect that Congress was most concerned about in 1972, namely, the problem presented by permanently disabled maritime workers, the Pennsylvania remedy is less.

That point is established when one realizes that the federal maximum level set by the Director of the Office of Workmen's Compensation Programs is $426, whereas, under Pennsylvania, it's $244.

So --

Justice Harry A. Blackmun: You don't believe you can live with concurrency.

Mr. Jeffery C. Hayes: Your Honor?

Justice Harry A. Blackmun: I take it you feel that your client can't live with concurrency.

Mr. Jeffery C. Hayes: That is correct, Your Honor.

The --

Justice Harry A. Blackmun: Why not?

Mr. Jeffery C. Hayes: It introduces a level of uncertainty into the administration of a longshoreman -- I'm sorry, a shipbuilding type of operation which is what Sun Ship has.

The certainty of application of the Federal Act is going to operate in such a way here as to benefit not only Sun Ship but to benefit claimants, because it is going to put both of -- both claimants and Sun Ship in the position of having an interest in resolving the disputes under the informal mechanisms provided under the Longshoremen's Act.

But you're not necessarily available under the Pennsylvania Act.

Whereas, if we are -- if Sun Ship in particular is going to be in a situation of always having to concern itself with the availability of a second remedy, we're going to be much less inclined to resolve those disputes until a jurisdictional issue is resolved specifically and clearly.

Because it is clear I believe under the prior decisions of this Court and the lower federal courts, that if the federal Act applies, Section 5, by its terms, makes that remedy exclusive.

Justice Byron R. White: So if they were a claim from permanent disability under the federal Act and it was denied -- if there was concurrency, you could try it over again in the state system.

Mr. Jeffery C. Hayes: He might, yes, Your Honor I -- I suppose that's true, although, he might be able to try it again in the state system if the State had a tolling kind of principle of its statute of limitations, recognizing if the federal decision --

Justice Byron R. White: Well, he might've filed at both places at the same time.

Mr. Jeffery C. Hayes: He might file in both places.

That would --

Justice Byron R. White: And that if he loses in a -- in a higher level of jurisdiction, he tries it out in the other.

Mr. Jeffery C. Hayes: He may, Your Honor, although I think that that introduces a whole set of difficult problems also.

Justice Byron R. White: Well, I -- I understand that --

Mr. Jeffery C. Hayes: If -- if you assume that -- that --

Justice Byron R. White: That that would follow from concurrency.

Mr. Jeffery C. Hayes: That would follow from concurrency and it would follow -- the problems would be introduced in any situation where the decision by the federal tribunal that there was no federal jurisdiction if the denial of the claim was based on anything other than a lack of jurisdiction, you have difficult problems of res judicata and collateral estoppel introduced into the state system at that point just as you do in the federal system which the cases already point to.

In 1972, the Longshoremen's Act was no longer a gap filler.

It became an affirmative exercise of jurisdiction both in admiralty tort jurisdiction which was tied to the situs and to admiralty contract jurisdiction because Congress expressly brought within its coverage new categories of employees, and with it, their employment relationship with an employer covered by the Act whose business affects traditional maritime matters.

And this exercise comes in an area imbued with a dominant federal interest and where uniformity of the maritime law is the normal rule.

That has never been seriously disputed in this case.

Congress' intent to preempt state law in the area of compensation to maritime workers is clearly stated in the Act.

We've already had reference to Section 5 which when combined with Section 4, which makes the employers' obligation to pay compensation and secure payment of compensation mandatory, plainly indicates that the federal scheme operates exclusively.

That is to say in place of any other.

In contrast, the Act contains no language which indicates an intention to permit state law to operate and thus, the situation posed here is directly opposite to that presented to the Court in Askew here.

Indeed --

Justice William H. Rehnquist: But -- hasn't our rule been generally that it requires an affirmative showing by Congress to -- to preempt state of actions rather than just lack of a negative showing?

Mr. Jeffery C. Hayes: Mr. Justice Rehnquist, I don't that has been the test and I think the Court specifically, in City of Burbank versus Lockheed, made it clear that there is not a requirement that there'd be an expressed statement of congressional intent to preempt.

And in any event, (Voice Overlap) we would rely on --

Justice Byron R. White: (Inaudible) frustration, the federal objective, an -- an actual conflict or a frustration of some federal objective.

Mr. Jeffery C. Hayes: Well, Yes Your Honor in the sense that the federal --

Justice Byron R. White: Does not either -- either, there hasn't have to be a -- some affirmative statement but --

Mr. Jeffery C. Hayes: That does not have to mean affirmative statement that the states are asked for, that's correct.

Justice Byron R. White: And -- but --

Mr. Jeffery C. Hayes: But Section 5 will provide that.

Justice Byron R. White: But just the -- just -- just the general existence of a federal law doesn't preempt the state law in the same area, does it?

Mr. Jeffery C. Hayes: Well, Honor, that's what I meant to --

Justice Byron R. White: Unless there's a conflict or a frustration of the federal --

Mr. Jeffery C. Hayes: In the admiralty area, there may well be an absolute preemption of the States where Congress comes in as it has done here with a comprehensive and complete remedy.

Justice Byron R. White: What remedy -- what -- what congressional authority did Congress purport to be exercising in the 1972 amendments.

Mr. Jeffery C. Hayes: Its -- its authority -- its -- I think the legislative history, Mr. Justice White, is unclear.

I think it could be read either as the commerce power or as its admiralty power both comprised of --

Justice Byron R. White: Well, certainly in the commerce power, you don't have any automatic preemption.

Mr. Jeffery C. Hayes: No, but you may -- but under the commerce power as you do in the case of the Federal Employers Liability Act if as in -- pursuant to an exercise of the commerce power, Congress moves into an area and defines a complete remedy and provides a -- an -- a solution to a problem which is complete and total in and of itself as -- as it did in the case of the Federal Employers Liability Act and there is no expressed preemption there and there is no statement that that Act is exclusive nonetheless this Court held that state efforts to provide a remedy for injured railway workers was preempted by the fact that Congress had acted affirmatively under the FELA.

Justice Byron R. White: They found an intent to -- to preempt the field.

Mr. Jeffery C. Hayes: That's correct and I think that that attempt --

Justice Byron R. White: But -- but that isn't -- that just doesn't automatically follow from the passage of a law.

Mr. Jeffery C. Hayes: No, sir.

It does not automatically follow.

That -- that is correct.

Justice Byron R. White: Well, what -- where do you find that kind of intent here?

Mr. Jeffery C. Hayes: I think, Your Honor, we find that the Act has -- has changed substantially in 1972 where you have Congress exercising its full admiralty powers in both maritime and in contract.

You find that evidence because What Congress has done is it has not limited the remedy as it have been limited prior to 1972 to injures -- injuries occurring upon the navigable waters of the United States.

That is a situs-oriented task.

In addition, Congress in Section 5 said both before and after 1972 that the remedy is exclusive.

And significantly, in 1972, Congress eliminated the only language that had ever existed in the Longshoremen's Act that seem to permit the States to operate by ruling the --

Justice Byron R. White: Well, Gilmore -- Gilmore and Black used the elimination of that language or just the opposite to prove just exactly the opposite.

Mr. Jeffery C. Hayes: Yes sir.

I understand that they do and I -- I understand that the -- the proviso however, I think and the -- the -- I believe the United States reads it differently in this case as well.

The proposition though I think is equally consistent.

The elimination of the proviso is equally consistent with the notion that Congress intended to preempt state law because if the proviso remains --

Justice Byron R. White: That's a considerable -- that's a considerable retreat from saying that it proves it.

Mr. Jeffery C. Hayes: Yes, sir.

I'm simply responding to -- to the -- to the point that you ascribe to Professors Gilmore and Black and would simply say that I think that it is more likely and it is a better reading of the elimination of the proviso to say that what that indicates is, that Congress is now coming on land with the Longshoremen's remedy in 1972.

And if it leaves the proviso only in place, it is coming on land with the remedy where the States, under this Court's decision in Nacirema and -- and many decisions before had been viewed as competent to operate.

So if it comes on land with the proviso, I think it's plainly creating a concurrent remedy, but it doesn't come on land with the proviso.

It eliminates the proviso and at the same time, it expands the coverage of the Act in such a way to indicate that it is exercising both its admiralty power and tort and in contract, and it's doing it in an area where uniformity is the law and I think that the congressional intent to preempt the field is demonstrated by the statutory language alone.

Chief Justice Warren E. Burger: Well, if Congress intended that, can you suggest any reason why they didn't say it more clearly or say it at all?

Mr. Jeffery C. Hayes: Well, Your Honor, I think that they were probably relying upon the decisions of this Court which had previously held Section 5 to be exclusive in a situation where the remedy applies and it acts against that background just as the Court found in Parker, that Congress in enacting the statute of 1927, was acting against the background of the Jensen line without examining the validity of the Jensen line as such.

Similarly here, even in Davis, which is the very case upon which appellees rely to create the doctrine of concurrent jurisdiction, you have this Court saying that of course if federal coverage were clear, the federal remedy would be exclusive.

And I think that in -- in that context, Section 5 and the elimination of the State law proviso along with the affirmative expansion of jurisdiction which this Court has already recognized in both Northeast Terminals and in Pfeiffer manifest the congressional intent to occupy the field.

Justice John Paul Stevens: And this is the -- the reasoning in -- is it Davis that -- that if jurisdiction -- federal jurisdiction were clear, remedy would be exclusive, did that rely on the notion that -- as in Jensen that where you got admiralty jurisdiction, it's got to be federal remedy or did it rely on the notion that Congress intended it to be exclusive.

Mr. Jeffery C. Hayes: Your Honor it's not -- it's not clear.

They rely -- they simply cite the Section 5 but I think either -- either reasoning is passed.

Justice John Paul Stevens: Well that this is going to be idea of it that after the Calbeck decision, you certainly have Section 5 still reading or then reading as it still reads and it was then assumed, there was an area of overlap.

Mr. Jeffery C. Hayes: Well, Your Honor, I -- I don't think -- I -- I agree that it was assumed that there was but I don't think either Calbeck or Davis compelled that result.

First of all, Calbeck's -- by its own terms says it wasn't addressing the question of Section 5.

It had no need to because you're having a claiming of the federal remedy.

Secondly, Calbeck, to the extent that it is read as creating concurrent jurisdiction depends upon the proviso and the continued viability of the maritime -- the local exception which prior to Calbeck had been -- had been read as being embodied within the proviso.

In 1972, the proviso goes and I submit with it any notion that Calbeck supports concurrent jurisdiction.

In addition, Calbeck was modified in another way in 1972 because the holding in Calbeck was that if you're injured upon the navigable waters of the United States that you have a federal remedy.

In 1972, Congress I think has made it plain that that even is not necessarily true because you have to also be engaged in maritime activity or meet the status test.

Now, I appreciate that at some point, you may run into the kind of situation where the States aroused it and if it's not maritime act -- it -- it's not maritime activity that this Court may have to resolve that question, but it is surely not presented here.

So Calbeck itself was substantially modified in 1972 both as to its affirmative ground and as to the questions that it left answered.

Justice John Paul Stevens: Thank you.

Mr. Jeffery C. Hayes: We think that the totality of the circumstances evidenced in the language of the statute in addition to the legislative history, manifest congressional intent to adopt a uniform system which a system of concurrent jurisdiction simply is not and cannot be.

Indeed, a system of concurrent jurisdiction would create the very kind of problem that Congress addressed here because as we've already noted, there is some limit to the ability of the States to provide the remedy.

Thus, if we take a law -- a shipbuilder who spends part of his time in the shops upon the ways, upon the land, if you will, at Sun Ship, and part of his day working in a dry dock or in a vessel floating in the navigable waters of the United States, if he is injured, seaward of the Jensen line, concurrent jurisdiction is plainly not available to him.

Only the employee injured on land has two remedies.

We submit that there was no concurrent jurisdiction really before 1972 and thus, in order to say that the -- that the shipbuilder or the ship repairman who moves both on to and off of the navigable waters, if by force -- fortuitous circumstances he's injured on land, now has two remedies, that that also runs counter to the congressional intent to provide a uniform remedy because he provides a disparate remedy and there is absolutely no indication in the legislative history or the statute that Congress intended to leave the employee injured upon land in a better situation than the maritime worker injured upon the water.

In addition, the other anomaly that might result if we were to find -- if this Court were to hold that a system of concurrent jurisdiction exists is that a worker who received an award under a state statute which makes a state remedy exclusive of every other remedy, for example, taxes which is the statute that this Court dealt with in Magnolia Power, maybe barred by operation of the Full Faith and Credit Clause of 28 U.S.C. 1738 from recovering his longshoremen's remedy.

And if the taxes remedy as Justice Keith so plainly pointed out in his dissent in the Johnson case is a remedy that is a lesser remedy, it does not provide the claimant with the kind of recovery that -- that Congress provided under the Longshoremen's Act, that was all, thus plainly anomalous, and contrary the congressional purpose.

There can be no doubt that the congressional remedy is complete.

It covers every aspect of the relationship between the employer and the employee once an injury triggers its application.

The terms and body of legislative judgment concerning the rights and liabilities of employers and it was -- that judgment which Congress has made and the States under the circumstances are not free to modify, interfere with, even compliment or adjust the congressional judgment as to those rights and liabilities.

This actually makes a great deal of sense when you think about the problems that the two legislatures, the Pennsylvania legislature and the Congress are facing.

Pennsylvania's Act is a statute of general application and applies to all employment situations in the commonwealth while the Longshoremen's Act as a special statute dealing with special occupations and embodying Congress's judgment about how such injury should be compensated.

And this is an area in which Congress has been found particularly competent to operate and where it does affirmatively operate, uniform effect is given to its statutory enactments.

Pennsylvania on the other hand, it's interest here in compensating maritime workers is no different than its interest in compensating employees generally.

It has no special interest in this case.

And indeed, the Workmen's Compensation Appeal Board, advised this Court through its clerk when asked whether it wanted to submit a motion to affirm or dismiss under Rule 16 that Pennsylvania had no interest adverse to that of the appellant, no interest adverse to that of Sun Ship.

So this is not a situation where you have a state here claiming some special interest or right which again distinguishes the situation from Askew.

Finally, the Acts when put together and as you look at them from provision to provision, there are plain conflicts because a workmen's compensation statute is and represents an entire balancing of the rights and remedies and liabilities and obligation to the parties, you cannot really effectively start to look only at a specific conflict and say, “Well, because of that specific conflict, Pennsylvania is ousted here, but the rest of its remedy is available provided there's no specific conflict.”

There's a specific conflict right here in the disfigurements that are at issue here.

Pennsylvania applies different standards for recovery.

Pennsylvania provides a remedy for disfigurement to different parts of the body.

Now, admittedly, Pennsylvania's Act might have provided a higher recovery.

None of the claimants here of course received more than the remedy provided under the federal statute which has but a single standard for recovery.

And moreover, the Pennsylvania awards here were reduced by counsel fees.

That is not the way the Longshoremen's Act work.

In contested cases, the counsel fee is an add-on, an additional payment by the employer.

So in summary, we have a total occupation to the field and we think an express intent that that federal remedy will operate exclusively.

It is a complete remedy and it actually conflicts in many respects not just in the area of disfigurement, maximum compensation, treatment of occupational disease, definition to the injury, scheduled losses, limitation periods, the notice of injury provisions, they're all different.

And in that situation, we think that the Court should give full effect to the congressional mandate and the congressional remedy by holding that Pennsylvania may not provide a remedy to injured maritime workers whose claims fall under the Longshoremen's Act.

Argument of Joseph Lurie

Mr. Joseph Lurie: Mr. Chief --

Chief Justice Warren E. Burger: Mr. Lurie.

Mr. Joseph Lurie: Mr. Chief Justice, may it please the Court.

The Workmen's Compensation Act is not administered by any state.

It's not administered by the Federal Government, the Longshoreman Harbor Worker's compensation.

Ever State's Workmen's Compensation Act perhaps except Ohio which they have a state system, as well as the Longshoremen's and Harbor Worker's Act is administered by the employer.

The man is -- person is hurt, the employer has a duty to file notice of injury under Pennsylvania, under the federal law and starts to make payments.

It's the employer indeed at the outset -- at the outset who makes that election.

A fraction -- I think the National Safety Council and U.S. Department of Labors -- Bureau of Labor Standards reports there are some two million timeless accident cases reported each year in the United States and a fraction of them result in contested workmen's compensation claims.

Most of the claims are paid as a matter of course because the employer recognizes if there's an injury and are paid, very few are in dispute.

The significance of this of course is that the injured worker makes -- makes -- unless he consults a lawyer, unless something happens to him claim, unless he doesn't get compensation, unless compensation payments stop, does not consult a lawyer and therefore he himself exercises no choice.

This case is a matter of fact where Sun Ship comes in and tells what a beneficent employer they are.

When these five men were injured, Sun Ship never reported this is a -- as a work-related injury.

They say that under federal law, these men are covered, but Sun Ship never reported any of these five cases to the Deputy Commissioner's Office, so the Deputy Commissioner could advise people of their rights and start the federal law working.

The men in this case when consulted an attorney in our office, and we filed claims under the state law.

We filed claims under the state law because (1) state law in Pennsylvania on a disfigurement case takes about 68 weeks for an adjudication.

State -- under federal, it's between 18 months and two years because we go through the informal proceedings before the Deputy Commissioner determines if the case is settled, and if it's not settled, it then goes to administrative law judge and we wait for a -- with a full hearing and findings of fact and conclusions of law, lots of testimony are taken and the average has been somewhere between 18 months and two years for hearing.

And of course, in these cases, the awards where somewhere between 500 and $1500 per man but conceptually, because Pennsylvania has a higher limit in disfigurement cases, a -- a small type of disfigurement is going to warrant more money than under federal law, we have $3,500 as a maximum.

Now, it seems to me that this Court is bound by Davis, is bound by Calbeck.

In Davis, the exact issue was presented.

Davis was a person who was conceivably working on a barge in a navigable water in the State of -- of Washington.

He was -- as a result of industrial injury, he -- he fell into the -- the river, the navigable water and died.

He was paid benefits under the -- when he applied for benefits under the -- the State of Washington law, the -- the defense of the Federal Act was raised and there, the Court in Davis recognizing the strong policy arguments and the strong policy argument of course said, “No, there is concurrent and overlapping jurisdiction” and the strong policy arguments there which are the strong policy arguments in Calbeck and a strong policy arguments here as if the Act is to be construed liberally to protect injured workers.

And unless you have concurrent jurisdiction, you're going to have the injured worker being adversely affected by uncertainty as to where he should go.

You're going to have an adversely being affected by long delay in getting his benefits and you're going to have him adversely be affected by the expense in long court proceedings to determine what law applies.

And I say this because of the fact that if we make either state law exclusive or federal law exclusive.

What that means is that when a case suggests exclusivity of either state law or federal law, the employer is going to raise that as a defense.

And this is extremely crucial especially in view of the 1972 amendments which expanded coverage of the Longshoremen Harbor Workers Act.

So we're going to have tangential situations where state law -- state courts of the maritime states, and I guess Mississippi Valley States and the States which affect navigable waters are going to be decided -- be deciding federal coverage of the Longshoremen's Harbor Workers' Act because if the -- the question on the exclusive -- if this Court holds that the federal law is exclusive, then a state claim would be barred.

The way it stands under concurrent jurisdiction, the States rule on their law, the federal government rules on -- on its law if a claimant decides to go both ways which is of course a remote situation.

But assuming a claimant decides, takes a federal benefit and feel it's State's benefit is more -- is better for him or vice versa, takes a state benefit and then comes in to the -- to the federal court.

Justice Thurgood Marshall: But in this particular case, if he had come to you, where would you have gone?

Mr. Joseph Lurie: State.

From -- from the --

Justice Thurgood Marshall: So that's the only problem, he didn't come to a lawyer.

Mr. Joseph Lurie: No, they did come to a lawyer.

Justice Thurgood Marshall: But he didn't come to you.

Mr. Joseph Lurie: He sure did.

Oh, which -- which one?

The five claimants came to me, Judge.

Justice Thurgood Marshall: Yes.

But he came to you after, didn't they?

Mr. Joseph Lurie: No, sir.

What happened -- let me explain.

When these men were injured, Sun Ship figured that because they had a facial scar and were unaware of the law that they would never file claim and then it would fade and it would go away.

Therefore, Sun Ship which was the administrator of the Longshoremen Harbor Workers' Act as far as the claimants are concerned, were silent.

They did not file the notice of compensation payable or -- or the notice of injury with -- with the Deputy Commissioner's Office.

Now, just to backtrack a little of what happens when an employer is duty-bound under the Act to file a notice of injury with the Deputy Commissioner's Office whose charged with Congress to administer the Longshoremen Harbor Workers' Act.

When they filed that notice in the Deputy Commissioner's Office sends a letter to the injured person telling them that they have a right under the Longshoremen Harbor Workers' Act and contact us, establish a relationship with our office and we'll tell you how to get your rights.

Now, that didn't happen in this case.

Sun Ship did not file this notice.

Later, when these men had these scars, they contacted our office and said, “Can I get paid for this facial disfigurement?”

As a lawyer, I felt they could get paid under the federal Act or the state Act and since there was concurrent or overlapping jurisdiction and we proceeded under the State law because it was easier to get the benefits.

Justice Thurgood Marshall: And then what did the federal side do?

Mr. Joseph Lurie: Absolutely nothing because no proceeding has ever been instituted by the shipyard in the federal court to pay them -- in the federal administration to pay them benefits.

Justice Thurgood Marshall: They didn't get any benefit --

Mr. Joseph Lurie: They got absolutely not one cent as a result of their industrial injury from this employer.

Justice Thurgood Marshall: Until today.

Mr. Joseph Lurie: Even as of today, [Attempt to Laughter] haven't, no.

So that's why were here because what -- what Sun Ship is saying and this is the -- this isn't money quite frankly.

I think the Justice --

Justice Thurgood Marshall: If it's not money, what is it?

Mr. Joseph Lurie: Well, I think what we're talking about is -- is its -- its -- in a short range, it's money.

Justice Thurgood Marshall: Oh, I know.

In principle, you --

Mr. Joseph Lurie: But in the long range, it's -- it's rather the principle that there's going to be substantial delays and uncertainty if jurisdiction is exclusive.

The Workmen's Compensation Act does not apply -- for example, they raise the -- the -- the McCartin doctrine of full and complete concurrent jurisdiction.

Now, that's not involved in my case because in this case here, these men have not accepted any benefits under -- under federal law.

But most certainly, workmen's compensation law is not a final judgment.

For example, if -- if an order is made by a -- administrative law judge in a federal workmen's compensation case, that -- that judgment could be modified under Section 22 or that order could be modified up to a year later.

Justice William H. Rehnquist: But until it is under Magnolia -- under Magnolia, it is a final judgment, isn't it?

Mr. Joseph Lurie: Well, I don't think it really were -- should work like that because for example, conversely, that the -- the modification order under -- under Pennsylvania could come 10 years after the decision.

That is the --

Justice William H. Rehnquist: Even though under federal Act, the modification could come only within one year.

You say Pennsylvania could allow it to come 10 years later.

Mr. Joseph Lurie: Right.

That -- that is, the compensation benefits might be suspended and no benefits are paid but the man has 10 years in which to reopen the claim so -- so he could come in with new facts etcetera to review anywhere from three to 10 years after the -- the judgment is final.

Justice William H. Rehnquist: Well, that would be a flat overruling of Magnolia Petroleum, wouldn't it?

Mr. Joseph Lurie: Well, I don't think the -- what we're talking about is the way -- that may very well be but that's the way the workmen's compensation law works.

It -- we're not talking about final judgments, we're talking about the day-to-day workings of a work -- state work -- state and federal workmen's compensation law.

Justice William H. Rehnquist: But Magnolia Petroleum held that a workmen's compensation judgment was a final judgment for purposes of full full payment of benefits.

Mr. Joseph Lurie: Well, I think in Calbeck the -- the Court sort of just ignored it.

For example, in -- if you -- if you read the last page of Calbeck --

Justice William H. Rehnquist: What page are you referring to?

Mr. Joseph Lurie: Page 131, where they're talking about binding elections.

They cite with approval at the bottom of page 131 and 132 where the Court cites with approval, three federal Circuit Court cases which held that Full Faith and Credit does not apply to orders of the workmen's compensation --

Justice William H. Rehnquist: I thought Magnolia is a case from this Court, not from a Court of Appeals.

Mr. Joseph Lurie: Well, I'm suggesting by inference, sir, that in Calbeck, this Court has -- has sort of ignored Magnolia and said, “We don't think” -- for example, one of the people in Calbeck did receive state benefits under an order.

So consequently, what this Court has done is say with approval, the -- the four -- three Circuit Court cases which appear there where the Circuit Courts ruled that obtaining that final -- obtaining a state order does not bar federal coverage.

I --

Chief Justice Warren E. Burger: Well --

Justice Byron R. White: Would you think you could proceed under both acts for the same injury at the same time?

Mr. Joseph Lurie: Well --

Justice Byron R. White: What about -- could you -- could you get your award under the State -- under the -- under -- say, could you get your award here in Pennsylvania and get attorney's fees under the federal Act?

Mr. Joseph Lurie: I -- I think as a practical matter.

I agree but cannot -- I agree that you should.

I think that a claimant, if -- if there's a more liberal act that this man has given up his -- his health and his life for his employer and he should be able to take advantage of the most liberal act.

Justice Byron R. White: So the Pennsyl --

Mr. Joseph Lurie: And as long as there are set offs, I think he should go whichever way he goes and that he shouldn't be hooked with the uncertainties there of going to a lawyer who did advise him of the -- what were the correct benefits or choosing himself to proceed on benefits without having competent counsel.

So I -- I think, yes.

Justice Byron R. White: So if the -- suppose he applies under the Pennsylvania law and he's paid.

Mr. Joseph Lurie: Right.

Justice Byron R. White: And he finds out when he's getting paid that his attorney's fees come out of it.

Now, can he go -- can he file another federal Act and just --

Mr. Joseph Lurie: No.

He couldn't get it --

Justice Byron R. White: -- might -- how do I put it.

Well, why not -- why not?

Mr. Joseph Lurie: Well, because under federal -- federal law that -- the cases have held that attorney's fees could not be paid for issues of law, would simply file -- involve attorney's fees.

The Benefits Review Board has held that if the only issue is an attorney fee, we're not going to pay attorney's fees if that's the only issue.

I think for example, I see nothing wrong if this man made $1000 a week for example and was stuck with -- in Pennsylvania, say, or some other State pays less than the $300 and some odd dollars which is the State maximum, for example, Pennsylvania pays 242 and then realized that if he went to federal, he could get -- what, $376 I think is the maximum or somewhere thereabout.

And then -- and then was indeed covered by under Calbeck and Davis, then I think that most certainly, he should be entitled to -- to go collect that under federal and also perhaps collect counsel fees in that case, yes.

Justice Thurgood Marshall: But not -- but only through one.

Mr. Joseph Lurie: Well, only -- he only gets one -- paid from one person anyway i.e. his employer.

That is, that the Federal Government does not pay benefits, the State of Pennsylvania doesn't pay benefits.

So he gets the benefits from his employer and he's not getting paid twice.

Justice Thurgood Marshall: What's -- the -- the employer has the (Voice Overlap)

Mr. Joseph Lurie: Well, not usually because -- because what I'm saying is, is that if this Court is -- comes down to weigh in this decision the way we hope it will, the employer will certainly get the message that since there is full concurrent jurisdiction and since he's been paid under State, they put him involuntarily under State and if there is full concurrent jurisdiction --

Justice Byron R. White: Well --

Mr. Joseph Lurie: -- then the employers don't want to litigate twice.

He's going to say, well, since there were -- or in – or an honest and a intelligent employer is going to say, “Since there is full concurrent jurisdiction, my injured worker should get the maximum benefit under which -- whichever jurisdiction applies.”

Because otherwise, you're going to have the employer saying, “Well, put this guy into Pennsylvania because the State -- the -- the maximum is less than the federal.”

And as I -- as I think the -- every one would agree that the -- that the Workmen's Compensation Acts are indeed administered by the employer.

There can't be any other way when you have two million people sustaining time laws injuries in United States everyday -- every -- every year.

I just like to address myself to -- to a couple of points.

They argue -- Sun Ship argues change of the 197 -- by the 1972 law.

And the only change that we could find of any significance is the deletion in -- in Section 3 (a) of -- of that provision that says, “If recovery may not validly be provided by state law.”

And the five states which have -- which have considered this issue plus the four circuit, have agreed with the interpretation that this Court in Calbeck in eliminating that language.

And by eliminating that language -- perhaps it wasn't as clear what the Court meant.

The dissenting opinion said that Calbeck eliminated this -- this problem of concurrence -- this problem to excluclusifi -- exclusiveness -- well, the exclusiveness of the law because what it did, it says, if there's an area -- there's a -- there's a solid wall here and if a state law applies, then you can't have a federal right.

And what Calbeck did is -- just had the overlap concept out of Davis and said, “Well, if there is a federal law, if there is a state law, then we have concurrent jurisdiction.”

Now, the Congress, it did -- did what Calbeck did.

It eliminated this and I don't see how the -- the appellee could argue -- the appellant could argue that by eliminating this, it made jurisdiction exclusive because the only area in the law where we could or would deal with -- with this question of jurisdiction is under the situs provision of Section 3 (a).

And in that, what they did was, they -- Congress agreed with Calbeck.

Now, Mr. Hayes says well, the Court didn't say what they really said in Calbeck.

Well, sometimes it's hard to -- to read opinions of -- of the Supreme Court but most certainly the dissent said that it -- that it did it, it took it out.

Larson said it took out.

Gilmore and Black said it took it out.

So, to the extent that -- that the Congressmen may not have read the actual decision, they've read what others said about it and what others said about it was that we have full concurrent jurisdiction because we've eliminated the state -- the state and federal barriers and that's what I think had happened.

The -- they argue that Section 5 pre -- is exclusive and therefore, precludes a workman's compensation remedy other than the federal remedy, or all States have this Section 5.

And Section 5 was the price that the injured worker paid for workmen's compensation, thus, he gave up his common law action against his employer to receive benefits.

As a matter of fact, these five men could have brought common law actions against Sun Ship if they wanted to because if we read the exclusivity part of -- of Section 5 (a), it says -- it's exclusive, they tell us but they say except if an employer fails to secure payment of compensation as required by this chapter, which Sun Ship did in this case.

An injured employee or his legal representative in case the -- death results from the injury may elect a claim compensation under this chapter or what are we -- what are they giving us, what are they giving the injured worker, they took away or to maintain an action at law or an admiralty for damages on account of such injury or death.

So that's what they -- they -- Congress has taken away by the exclusivity.

That is that right to maintain that action in law or the action on admiralty.

They made no -- they made no thought or mention of -- of state workmen's compensation law, and that's why in Davis, the Court said, “It doesn't apply, 5 (a) doesn't apply.”

And indeed, it does not apply.

The issue is framed by the appellant in its brief as it appears on page 6, is a very simple issue which this Court amply answered in the Askew case.

Askew was a unanimous opinion by the Court and starting on page 37 and continuing, is that extremely eloquent and intelligent discussion deciding the issue in this case.

And the defendant -- the Sun Ship says, “The issue is whether the plain -- the Pennsylvania Workmen's Compensation Act is repugnant to the Supremacy Clause of the Admiralty Clause in is it -- when it's applied to permit the exercise of jurisdiction by Pennsylvania over an area within coverage of the Longshoremen and Harbor Workers' Compensation Act” and this was the exact issue in Askew.

In Askew, the issue was whether a state constitutionally may exercise its -- and I'm reading from page 337 -- may exercise its police power respecting maritime activities concurrently with the federal government.

And -- and here's a resounding answer, yes it may and -- and I -- I pray that -- that you will answer the question in the same way.

Thank You.

Justice Byron R. White: The very first compensation for injury wasn't involved there, was it?

Mr. Joseph Lurie: The -- the same exact issues were involved.

What it --

Justice Byron R. White: How do you distinguish this case from -- how would you argue -- why is this different from the employer's liability cases on -- on -- covering the railroads, workmen's compensation laws don't apply to railroad.

Mr. Joseph Lurie: Well, that's -- you have the -- goes to different act entirely.

Justice Byron R. White: Well, of course, it's a different act but what's in it that's different than this?

It's just to comprehend all this -- the Court said was, that was a comprehensive scheme to cover railroad injuries.

Mr. Joseph Lurie: Exactly.

Justice Byron R. White: Well --

Mr. Joseph Lurie: Well, they're not saying that here.

Justice Byron R. White: Well, that -- the -- the question.

That's the question here --

Mr. Joseph Lurie: Well, what they do is (Voice Overlap) they say that --

Justice Byron R. White: -- is that what Congress.

Mr. Joseph Lurie: We're -- we're --

Justice Byron R. White: Is that what Congress intended to do?

They didn't -- certainly didn't -- so much different here than they did in the Employers Liability Act.

Mr. Joseph Lurie: No, I think they did.

They -- they said for example that you have -- here is your -- here is your -- your right, your remedy.

At that time, there was no -- there was not -- workmen's compensation was -- was unheard of and they wanted to get --

Justice Byron R. White: At that time -- when?

Mr. Joseph Lurie: This is when --

Justice Byron R. White: Employer's liability?

Mr. Joseph Lurie: Yes.

Federal -- determined in 19th century.

I think --

Justice Byron R. White: Well, they're going to get up here to get settled --

Mr. Joseph Lurie: Well --

Justice Byron R. White: -- in the Winfield case.

Mr. Joseph Lurie: Well, that -- that may very well be but what the Court did there is saying you're going to -- that the legislature said, “You're going to apply federal law.

We don't care if you go to the state courts or the federal courts, but I think the -- the law seem to indicate and Court's interpretation is, is that we're talking only about federal law.

Justice Byron R. White: Well, that's right.

They said the -- the congressional statute providing comprehensive scheme for -- for compensating work-related injuries was covered by the federal law, now, that -- that was just -- that's the exclusive remedy.

Mr. Joseph Lurie: Right.

Well, I don't think this Court have said that and where is their congressional intent that the -- that the same applies in this case.

Justice Byron R. White: I know that's -- I know that's your position but that's the question in the -- here whether -- you still haven't indicated to me why any evidence that --

Mr. Joseph Lurie: No.

Justice Byron R. White: And the reason to -- to distinguish this case from the Winfield case.

Mr. Joseph Lurie: Well, I would suggest that the -- that the history of the -- of Section 3 (a) under the 1972 Act which I've just mentioned is -- is -- you could -- you could get no other interpretation that Congress in 1972 realized what Davis said, what Calbeck said and therefore, eliminated from the Act language that would give state courts exclusive remedy where you have a -- an injury which occurred within the twilight zone.

Justice Byron R. White: But Longshoremen's Act originally was just a gap-filler wasn't it?

Mr. Joseph Lurie: Well, I don't it was a -- I don't think -- I - -I know that the word -- I -- I don't think it was -- it -- it was supposed to cover injuries which occurred --

Justice Byron R. White: It's supposed to cover injuries that state compensation systems been (Voice Overlap).

Mr. Joseph Lurie: Right, exactly, exactly.

Justice Byron R. White: Well, certainly, there was more of an intent than that in this case.

I mean in this -- under this statute, this statute wasn't motivated solely of any such intent.

It couldn't have been.

Mr. Joseph Lurie: No, the -- the intent was the quid pro quo was to give up the common law action that Zurichi in return for which, the jurisdictional limits of the Act were to be opened.

There was --

Justice Byron R. White: But for the first time, in 1972, they departed for the first time from -- form the notion that the Longshoremen's Act applies only when a state act may not.

Mr. Joseph Lurie: They -- who, the Congress?

Justice Byron R. White: Yes.

Mr. Joseph Lurie: Well, let me -- I would suggest that in 1962, this Court came down with -- with Calbeck and Congress took no action from 1962 to 1972 to say, “Wait a minute, Supreme Court, you were wrong in Calbeck.”

And certainly, since 1972, state courts -- Supreme Courts have been coming down since 1976 interpreting Calbeck and 1972 amendments to mean what the appellees say they mean in this case and Congress has again remained silent.

Thank you.

Chief Justice Warren E. Burger: Very well, do you have anything further, Mr. Hayes?

You have just one minute left.

Rebuttal of Jeffery C. Hayes

Mr. Jeffery C. Hayes: Thank you, Your Honor.

I just like to respond very briefly to what I think are irrelevant facts, but nonetheless, wholly and accurately stated by counsel for appellee.

The fact to the matter is that three of the claimants in this case, Messers Field, (Inaudible) and Moore filed claims for compensation under the Longshoremen's Act.

In point of fact, the records of the U.S. Department of Labor will reveal that Sun Ship, then the Sun Ship Building and Dry Dock Company filed first reports of injury in the case of Mr. Fields and in the case of Mr. Moore -- and in the case of Mr. Moore long before he filed his federal claim and all of the federal claims --

Justice Thurgood Marshall: Mr. Hayes, is that in this record?

Mr. Jeffery C. Hayes: No, Your Honor.

I'm sorry it is not in this record but I -- I don't think the facts are relevant in either event but I -- I could not let the statements go uncorrected.

Secondly, with respect to the elimination of the proviso, whatever Calbeck meant or didn't mean, Congress was absolutely clear in 1972 because it adverted specifically to the deletion of the proviso and whatever it thought it meant and that is in the section by section review of the bill's amendment.

Thank you.

Justice Potter Stewart: Mr. Hayes, just one question.

Mr. Lurie stated that your client had failed to secure payments of compensation as required by the federal law and that therefore, his clients could've had their option if sued you at common law or an admiralty law.

Is that correct, factually?

Mr. Jeffery C. Hayes: No, Your Honor, I do not agree with that statement.

Securing of payment simply means making provision for payment of awards if compensation is payable.

No compensation was payable under this Act either voluntarily or pursuant to an award.

Sun Ship has secured pay -- has secured payment for all compensation claims through it's self insurance system and that's what the Section 5 reference means.

Justice Potter Stewart: I see.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.