HARBOR TUG AND BARGE CO. v. PAPAI

Transcript: 

Argument of Eric Danoff

Chief Justice Rehnquist: We'll hear argument now in Number 95-1621, Harbor Tug & Barge Company v. John Papai.

Mr. Danoff.

Mr. Danoff: Mr. Chief Justice, and may it please the Court:

This case presents two distinct legal issues.

The first is whether an injured maritime worker who has received LHWCA, Longshore and Harbor Workers Compensation Act benefits pursuant to an award by an administrative law judge can thereafter seek seaman's remedies or whether that person is precluded.

The second issue is whether an injured maritime worker's status as a seaman or not is dependent upon his job assignment at the time when he is injured or can be dependent upon his prior work history for other employers or for the same employer.

Unknown Speaker: Mr. Danoff, as a preliminary question, if the Court were to address the second question and conclude that we do not look at the prior relationship with other tug owner employers but confine the fleet principle to the same owner of the vessels being worked on, if we were to do that, do we have to reach the first question, or would that become advisory?

I mean, what would happen if we were to decide the second issue in your favor?

Mr. Danoff: The case could be decided on either one of the two questions in our favor and that could end the case.

Unknown Speaker: And should it end the case?

I mean, do we have any business offering alternative holdings, or not?

Mr. Danoff: I think in this case yes, and the reason is that there is a significant and clear split in the circuits on both issues.

Unknown Speaker: Well, there's a split on both, but answering both might make something advisory, it seems to me.

Mr. Danoff: I think it would not be... if the decision were made on both issues, as I think it should be, it would eliminate the problems we have raised in the brief with duplicative litigation in the case of each issue, and it would resolve the split in the circuits in each issue.

The case could be decided on narrow grounds, but I don't think it has to be decided on narrow grounds.

Unknown Speaker: Which of the two is the more important issue--

Mr. Danoff: I--

Unknown Speaker: --to those who are in the field?

Mr. Danoff: --Well, it's actually somewhat different fields.

I think people who are in purely deep water, or seaman issues, the second issue would be more important.

To those who are involved in administration of LHWCA and paying benefits under the LHWCA, the first issue is more important.

I think they're equally important to different segments of the industry, and to some extent to a group that it overlaps for, so I do think it is important to resolve both issues.

The preclusion issue, the first issue involving the benefits under the Longshore and Harbor Workers Compensation Act, I wanted to underscore the difference between this case and the Gizoni case which was argued strenuously by the other side.

In the Gizoni case, the worker who had been injured had not received any sort of compensation order, whether by an administrative law judge or by a section 8(i) settlement or by the district director.

He was simply receiving benefits essentially voluntarily, at the same time seeking seaman status.

The difference between that case and this one is that in this case there is a compensation order, and that triggers section 905(a), which talks of... of the Longshore and Harbor Workers Compensation Act, which talks about the employer's liability is exclusive under the act, and the issue is what makes the employer liable?

In the case of the LHWCA, it's a compensation order, whether it's by settlement by the administrative law judges in this case.

In this case, there--

Unknown Speaker: Mr. Danoff, would you explain to me... I know you have a literal interpretation of 905(a), but standing back from that, you mentioned the Gizoni case.

That says the employer who pays voluntarily under the Longshore Act would be amenable to a later Jones Act case.

On the other hand, if the employer says, not a penny until you drag me before some forum, they go into the Workers Compensation, the Longshore mold because it's the fastest, and in that case you would say there can't be any Jones Act, but in the other case where the employer was much more solicitous of the employee there could be?

What sense would that make?

Mr. Danoff: --Well, the employer would not always get protection if it voluntarily paid, that's true.

On the other hand, from the employer's point of view they have... if they feel that the Jones Act suit is inappropriate, that status needs to be determined, they would have to object because the worker is seeking seaman status in the Department of Labor forum, and at that point get an adjudication of status.

Sooner or later there has to be an adjudication of status.

It may be some employer--

Unknown Speaker: Yes, but you know, the big problem as I see it here is that provision in title 33 section 903(e).

Now, I guess that's in the Longshoreman and Harbor Workers Act.

Mr. Danoff: --Yes, it is.

Unknown Speaker: And it says, notwithstanding any other provision of law any amounts paid to an employee for the same injury, disability, or death for which benefits are claimed under this chapter, the longshoreman workers case, pursuant to the Jones Act, seaman act case, shall be credited against any liability imposed by this chapter.

Now, this Court expressed some reliance on that section in Gizoni, and presumably it's a section to which we have to give some effect, and I don't know how it would apply under your proposed rule.

What would be the purpose of this section?

Mr. Danoff: The section to which you refer--

Unknown Speaker: Yes.

Mr. Danoff: --talked about not the case we have here where there's an LHWCA finding of status and then a Jones Act case, but the reverse, and the... to construe--

Unknown Speaker: Well, I don't know if it's the reverse.

It says, any amounts paid to an employee for the same injury.

Mr. Danoff: --Pursuant to the Jones Act or State Workers Compensation.

Unknown Speaker: Uh-huh.

Mr. Danoff: As opposed to--

Unknown Speaker: So you would confine that section only to the voluntary payment of benefits?

Mr. Danoff: --To the voluntary payment of a Jones Act settlement or to payments of State Workers Compensation.

I think it would be very... a very strained reading to take 903(e), which doesn't say anything about exclusive liability of the employer, who has been adjudicated to have to pay under the LHWCA, and say 903(e) retracted that immunity without any statement in 903(e) that it is intending to retract that immunity and without any legislative history--

Unknown Speaker: But what--

Mr. Danoff: --saying that.

Unknown Speaker: --What about the court's reliance on the section in Gizoni?

Mr. Danoff: Well, in Gizoni again there was no adjudication yet of the individual's status and therefore section 905(a) never came into play.

Unknown Speaker: Well, you think that whatever remedy is first obtained by a final court judgment is the one that governs?

Mr. Danoff: Yes.

Unknown Speaker: Is it a race to the courthouse for a judgment kind of thing?

Mr. Danoff: Well, it's really in the control of the injured worker.

Unknown Speaker: Yes.

Mr. Danoff: Because he has the right to decide which forum--

Unknown Speaker: How can you say that based on--

--Here, the injured worker presumably went to a Longshoreman and Harbor Workers administrative judge and asserted that he was in fact a Longshoreman and Harbor Workers worker and wanted benefits, got that order, and it was not appealed.

It has become final.

But in the interim the injured worker also went to court under the Jones Act and said, contrary to the claim in the longshoreman administrative proceeding, that he was in fact a seaman and entitled to recover.

Is that the situation we have here?

Mr. Danoff: --Almost.

He actually had the district court judge try the status first and then went and had status--

Unknown Speaker: It was on appeal, though.

Mr. Danoff: --Well, it wasn't on appeal.

The case had not been concluded because he still had a 905(b) action.

It was an interlocutory decision.

The trial of the 905(b) action had not taken place, and was about to take place when the ALJ made his decision.

Unknown Speaker: But when you say it's the worker's choice, this worker chose the Jones Act route, and it was only when the district judge said, I'm sorry you don't fit under the Jones Act that he then went to the Workers Compensation tribunal.

Mr. Danoff: That's really not entirely accurate, either.

Unknown Speaker: Well, which claim did he file first?

Mr. Danoff: I'm sorry.

Unknown Speaker: Did he file first in the district court or first before the longshore?

Mr. Danoff: Under the Longshore Act the claimant doesn't actually have to file something.

It's the employer's obligation to file when an injury is reported, and in this case--

Unknown Speaker: Yes, but when did he pursue... when did he pursue benefits, in what order?

Didn't he first pursue the Jones Act remedy?

Mr. Danoff: --The employer was voluntarily paying and he was receiving longshore benefits, and then pursued the Jones Act litigation for a status finding first.

Unknown Speaker: And did he... he did not invoke the Longshore and Harbor Workers Act until the district court had ruled against him in the Jones Act case.

Mr. Danoff: I don't mean to quibble with the word invoked.

The employer has the obligation to make payments without--

Unknown Speaker: You said that it's the employee's choice which route he wants to go, so is it not the case that this employee chose the Jones Act first?

Mr. Danoff: --He chose to have his status decided first by the district court in the Jones Act case, and actually--

Unknown Speaker: And then he was stuck because it wasn't a final judgment.

He couldn't appeal, and then he asked for the adjudication under the longshore workers.

Isn't that just--

Mr. Danoff: --Yes.

Unknown Speaker: --a history of the case--

Mr. Danoff: Yes.

Unknown Speaker: --And that's not debatable that his first choice was the district court?

Mr. Danoff: Yes.

He wanted to have his seaman status determined in the district court.

Unknown Speaker: Well, that could have remained his first choice, couldn't it?

Mr. Danoff: I'm sorry, I didn't hear you.

Unknown Speaker: Why could that not have remained his first choice?

Is there some... was he under some compulsion to come back under the Harbor Workers Act and ask for adjudication there?

Mr. Danoff: No, he was not.

He could have waited--

Unknown Speaker: He could have pursued the appeal.

Mr. Danoff: --He could have pursued the appeal.

Unknown Speaker: Without pressing the harbor workers claim, so it was within his power to maintain his first choice.

Mr. Danoff: Yes.

Unknown Speaker: He couldn't appeal.

He tried to get a 1292(b) and he was turned down by the court of appeals, right?

Mr. Danoff: That's right.

Unknown Speaker: So he was stuck for a long time.

He could have ultimately appealed, though, if the decision were adverse to him in the district court.

Mr. Danoff: Yes.

As soon as the 905(b) trial was over he could have appealed not only the findings of that trial but his status.

Unknown Speaker: In the meantime, he has to live.

Mr. Danoff: That's true.

Unknown Speaker: Could he have found--

Mr. Danoff: He was in the same position as any other seaman who claims he's a seaman.

Unknown Speaker: --Yes, but could he have found himself in the position, pending an appeal in the Jones Act case in which the employer ceased the voluntary payments--

Mr. Danoff: That--

Unknown Speaker: --and did he hedge against that, was a reasonable hedge against that by bringing the harbor workers claim?

Mr. Danoff: --Well, if the employer had ceased payments, then he could have said no, I am entitled to the payments, and sought an adjudication.

Unknown Speaker: He--

--But he wouldn't have gotten anything until the administrative adjudication was final.

In other words, I assume there's no provision in there that the mere filing of a claim under the harbor workers act obligates the employer to start making payments pending an ultimate adjudication of liability.

Mr. Danoff: If the employer controverts the duty to pay, he is not obligated--

Unknown Speaker: Yes.

Mr. Danoff: --to pay pending the adjudication.

There are penalties if he is wrong, but yes, there could be a period where the worker is not receiving longshore benefits, but if, in fact, he is a seaman, that just puts him in the same position as all other seamen and all other tort victims.

Unknown Speaker: If it had gone the other way before the ALJ... suppose the ALJ said, I find this person's a sailor, would that be issue preclusive in the district court litigation?

Mr. Danoff: I believe it would be.

I think it's not you know, in question necessarily in this case, but I think as a matter of logic it would be.

Unknown Speaker: Even though... in this very scenario, where they went to the district court first, the district court said, you're not a sailor, then goes to the longshore route and gets a determination there, you are a sailor, and doesn't contest that, comes back to the district court and says, see, now I've got a final adjudication that I'm not entitled to longshore benefits because I'm a sailor, and you say the district court then, despite the district court's earlier ruling, would... that it would be issue preclusive--

Mr. Danoff: Because it was an interlocutory ruling and the first final ruling on status is the one that should govern.

Unknown Speaker: --Do the administrative law judges routinely say, you are a sailor, or do they just say that you are or you are not a longshore worker?

Mr. Danoff: Technically it's the latter, but if the only issue is, are you a seaman or are you a longshore worker, ALJ's will from time to time say we find he is not a longshore worker he is a seaman.

Unknown Speaker: Well, there could be some instances, or could they, correct me if I'm wrong, where you're neither?

Mr. Danoff: Where you're neither?

Yes, definitely.

Unknown Speaker: All right.

So what the--

--What are those?

What are those?

I wasn't aware that there were--

Mr. Danoff: Well, you could be too inland to be--

Unknown Speaker: --Well, like me.

I'm neither one, right?

I could bring a lawsuit and be found to be neither one.

[Laughter]

It has to be possible.

Mr. Danoff: --Somebody has to be a maritime worker and there's a long and involved situs and status determination--

Unknown Speaker: So you mean somebody who might be under State Workers Compensation--

Mr. Danoff: --Right, exactly.

Those are the three categories.

Unknown Speaker: --I--

--The big problem comes up with these people who may be sailors and may be longshore workers.

How big is the problem?

I didn't have a sense of it.

Mr. Danoff: There are hundreds and hundreds of cases every year in which seaman's status is debated.

This isn't even outside the record.

It was quoted in our petition for certiorari.

There are many, many cases where the status issue is a very difficult issue, and where it is litigated, and if this case is allowed to stand will be litigated twice.

Unknown Speaker: But Mr. Danoff, I understood you to say a moment ago that the only exact issue in the administrative proceeding is whether one is a longshore worker or not, and you say, you know, as a practical matter if everybody agrees there are only two choices the adjudication is frequently made in the form of saying, you're a sailor, but the only issue that technically arises under the act is longshore worker or not longshore worker.

Mr. Danoff: Correct.

Unknown Speaker: Okay.

If that is the only thing that the court is technically empowered to decide, if that is the only issue under that statute, then why is there a preclusive effect if the court goes the further step and says not only you're not a longshore worker, but by the way, you are a sailor?

Why should that frolic be preclusive?

Well, I guess this Court has addressed that very question, has it not, in a sense, and has said the acts are intended to be one or the other, not both.

Yes, but there could be... yes, but that means there can't be both, but it's also consistent--

--It could be neither.

--with being neither, exactly, and the usual rules of preclusion I think operate only with respect to what is necessary for the judgment in the first action, and a determination that he is a seaman as you have explained it to us is not necessary for the judgment in the first action and therefore, under the normal preclusion rules, I suppose it would not raise an estoppel.

Mr. Danoff: And that will be a question I'm sure some day the Court will have to address.

Namely, when the Court has said repeatedly that the two acts are mutually exclusive, if somebody gets an award under the Jones Act, for instance, first, is that mutually exclusive of the Longshore Act.

In the case of this case, where the first action is under the Longshore Act, the statute itself says the employer's liability is exclusive in law or at admiralty.

I don't know what that could mean, other than there's no Jones Act remedy allowed to follow.

Unknown Speaker: Well, Justice Souter is not contiadicting that.

He's just saying that you're never going to have the assurance of only one determination either under the Longshoreman Act or in the district court, because to be sure, if you are found in the first action to be either a seaman or a longshore worker, the other one is precluded and the case is over, but if in the first action you are found not to be a harbor worker, or not to be a seaman, you're still going to have a second action.

Mr. Danoff: That may be--

Unknown Speaker: It doesn't affect your case.

Mr. Danoff: --Right.

Unknown Speaker: Once you're found to be a harbor worker.

But what you have here is an adjudication that this person was in fact--

--Yes.

--a longshoreman, as I understand it.

Mr. Danoff: Right.

Unknown Speaker: Yes.

Yes.

Mr. Danoff: The--

Unknown Speaker: If you prevail and we adopt the rule of issue preclusion where there is a finding in the agency as to longshore status, would the district court in a Jones Act suit be correct in acting within its discretion to defer proceedings until the administrative hearings were concluded?

Mr. Danoff: --That is a possibility if there are two pending proceedings, that one or the other tribunal would stay its action pending the resolution--

Unknown Speaker: The district court would say there is a possibility that this issue will be resolved conclusively in favor of longshore status, so I'll just wait.

Mr. Danoff: --And some States, including California, where some of these cases are filed in State court, the Jones Act cases have rules of their own which say which action gets precedence first.

The first filed action often gets precedence.

Some States don't have that rule, and then the district court would have to make a discretionary decision whether to await the ALJ's finding or to make its own finding, and if the case is over, then the ALJ would be bound by it.

Unknown Speaker: I believe you said that there were provisional remedies for the employee who was in this situation.

This is the employee's dilemma.

I want the Jones Act because I think I can prove negligence and I want the pain and suffering, but I certainly want something, and my employer is not being cooperative.

What does an... what does someone do who's in that dilemma, who thinks he's got a good Jones Act claim, but needs the interim maintenance?

Mr. Danoff: At that... both tribunals, both the courts and the ALJ, in the case of hardship, have the procedural tools to make an early status decision.

The claimant should go to whichever tribunal he wants to decide the issue and say, this is a hardship case, I need a quick decision.

That issue can be severed... it's simply the status question, not the liability or the merits.

It's often a one-day proceeding... and get an early status decision.

Unknown Speaker: But the problem is that that's essentially what happened here but then there was no immediate appeal because he also had the claim against the employer as shipowner.

Mr. Danoff: But when it was... of course, he was receiving in this case the compensation benefits throughout, and when the district judge--

Unknown Speaker: Only for the knee.

Not for the further injury, right?

Didn't--

Mr. Danoff: --Right, but that... actually the amount he would have obtained is the same.

The back, the second injury, the back injury had more to do with his final, total, permanent disability than his interim benefits.

His interim benefits would be the same.

So he did receive benefits throughout, and--

Unknown Speaker: --And I guess there's even a third cause of action, is there, for the employee against the owner of the vessel, and that's not affected by any of this discussion.

Mr. Danoff: --It's part of the package that the injured worker has under the Longshore and Harbor Workers Compensation Act.

He not only--

Unknown Speaker: But you agree that can go forward.

Mr. Danoff: --Oh, yes, and... it can go forward.

Unknown Speaker: And is it going forward?

Mr. Danoff: It went forward to the district court to a trial.

Unknown Speaker: Yes.

Yes.

Mr. Danoff: And there was a trial of that issue.

Unknown Speaker: Right.

Mr. Danoff: He had a negligence action--

Unknown Speaker: Right.

Mr. Danoff: --which he pursued to conclusion.

The--

Unknown Speaker: May I ask you a... I don't want to... I want to ask a question about the other issue, but are you finished?

Is this a good time?

Mr. Danoff: --I'd be happy to answer your question--

Unknown Speaker: All right.

Mr. Danoff: --about the other issue.

Unknown Speaker: If the... Joe Smith is a carpenter on a boat tied up at the dock and hurts himself, but this is his... he's had 10 trips on the same boat, ship, as a sailor, he's a sailor, right?

Mr. Danoff: If he has--

Unknown Speaker: He just happened to be hammering some nails and so forth.

He's worked for, however, the same employer, 10 trips, this is the 11th one, and I take it we'd call him a sailor under our cases, even though the only thing that changed is he happens to have been hurt when he was painting, or--

Mr. Danoff: --Yes.

If he had a long-term assignment--

Unknown Speaker: --Yes.

Mr. Danoff: --that was a seaman's job--

Unknown Speaker: Yes.

Mr. Danoff: --the fact that he is doing something while the ship's tied to the dock--

Unknown Speaker: And now, in fact, the situation is the same, except the earlier trips were on different ships owned by the same person.

Mr. Danoff: --No, it really--

Unknown Speaker: Same result?

Mr. Danoff: --It really is different, because if each job assignment is a different job assignment he could be assigned one time to a ship for a voyage and--

Unknown Speaker: What I'm really trying to get at, and I'll be more frank about it, is if in fact we have a person who is a sailor because he has worked 10 times for different ships of the same company in sailing capacity, why does it make any difference if those 10 previous trips were for different companies but hired out of the same union hiring hall?

Mr. Danoff: --It's because the status of an individual has... first of all of that individual has never been by precedent judged by other than his current assignment, whether it's with one or more vessels or with a single employer, and the reason for that is, he would make every worker who was a seaman in the past potentially a seaman now.

The Court--

Unknown Speaker: Well, I guess we addressed... the closest case might be Chandris.

Mr. Danoff: --Indeed.

Unknown Speaker: Where this Court acknowledged with respect to an employer a fleet doctrine could be applicable, but that was in a situation where the employee's job had not changed.

In fact, dealing with an employee who had been hired as a seaman to go on voyages as the chief engineer or the communications expert or something and to work in that capacity.

Did the Court acknowledge that an assignment could change?

Mr. Danoff: Indeed.

Unknown Speaker: And that if the assignment, indeed, changed and the worker was then going to just be asked to come on board to paint when the vessel was tied to the dock to do repairs on a daily basis, that would be a change of assignment.

Mr. Danoff: I--

Unknown Speaker: Even if it were the same employer, much less a different one.

Mr. Danoff: --The Chandris case had, I think, a beautiful example illustrating this, which is a seaman who is transferred to the office.

Unknown Speaker: What I'm driving at... yes... is that if, in fact... there are so many variables, but hold them all constant, and if he's a seaman because of the fleet doctrine should it suddenly make a difference if everything else is the same but it isn't this employer's fleet, it's the union hiring hall.

That's what I'm trying to get at.

Does the simple fact... if everything else would make him a seaman but for the fact that he's hired out of the union hiring hall and works on the ships of different employers in the past, that's the only difference, why does that make a legal difference?

Why should it make a legal difference?

Mr. Danoff: It's not his being hired out of the union hiring hall that makes a difference.

That makes no difference.

It's the work for other employers, because clearly his job will have changed.

His job assignment will have changed when he changes employers and works on different vessels.

He has a new job.

Unknown Speaker: Then why do we speak in terms of status rather than in terms of a continuing employment relationship as a seaman with a given fleet employer?

Why does it help to talk about status, on your view, because status apparently is something that has no reference, can have no reference except with respect to the relationship between the employer and a given... employee and a given employer?

Mr. Danoff: Because you need the status of seaman to have the seaman remedy.

Unknown Speaker: Well, that's right.

That's what we've said.

But why does it make sense to talk in terms of status?

Why did it make sense for Congress, why does it make sense for us, if all we're really concerned with is the duration or repetition of a relationship between the worker and a particular employer?

Mr. Danoff: I'm not sure I'm following the question.

Unknown Speaker: Well hasn't this Court said it's determined on the basis of the status of the employee?

Haven't we made that the rule under the statutes, or haven't we interpreted the statutes as making that the rule?

Mr. Danoff: Yes.

The seaman's remedies are only allowed to people with seaman status.

Unknown Speaker: And is someone who is hired temporarily to go paint a tug while it's at the dock ever going to be a seaman by virtue of that employ, no matter how many days he goes and paints?

Mr. Danoff: Not... no, he would not be in our--

Unknown Speaker: But if we... if he is in fact acting... if there is a question as to whether he is in a given case acting as a seaman, and it is appropriate to look to his prior kinds of jobs, why do we look to his prior kinds of jobs only if they are for a given employer rather than his prior kinds of jobs for like employers if our concern is with status rather than the details of the employment relationship between a given employer and a given employee?

Mr. Danoff: --It's because the relationship that has always been considered determinative of status is with the given employee, because it has always been considered that the current job assignment governs in the case of--

Unknown Speaker: But why should that make a difference if status is the issue?

Mr. Danoff: --Because it would... the seaman remedies cover seamen in being, not former seamen who are now not seamen.

Seamen remedies are limited to people who are subject to the perils of the sea, who have--

Unknown Speaker: Then why do we look... if you carry your logic to its extreme, why do we ever look to a prior job assignment at all?

Mr. Danoff: --I don't think we should unless it's part of a continuing employment.

Unknown Speaker: Well, I thought we did for purposes of determining the substantiality of the satisfaction of the two criteria for seamen status.

Well, I suppose we did, did we, when the person is hired generally to be like the engineer on whatever vessel is at sea by the employer, but then one time while the vessel was parked in the harbor the employer said, by the way, go paint the deck, and we looked to the overall job with the employer, I assume--

Mr. Danoff: Yes.

If there--

Unknown Speaker: --to determine whether he was a seaman, not just whether at that moment--

Mr. Danoff: --If there is a long-term employment, then you can look at the entirety of that long-term employment.

Unknown Speaker: --Is there any long-term employment in this setup?

The Solicitor General said that these... this operation has no permanent crews, so it's not like a vessel that goes off with a crew and then... that has a long-term relationship.

Tell me, what is the fact?

Is it true that this tug has no permanent crew, and that even when it's at sea, these are pickup workers from the hiring hall?

Mr. Danoff: They do pick up workers from the hiring hall to do a voyage basis for a specific timelimited basis.

It could be 1 day, it could be a week on that particular tug.

Unknown Speaker: So all their employees are picked from this hiring hall for a per-job, on a per-job basis.

Mr. Danoff: Yes.

Although the job may be more than 1 day, yes.

Unknown Speaker: Thank you, Mr. Danoff.

Mr. Boyle, we'll hear from you.

Argument of Thomas J. Boyle

Mr. Boyle: Mr. Chief Justice, and may it please the Court:

As was stated previously, this Court has already held that voluntary payment of longshore benefits does not preclude a Jones Act award.

Neither should it... neither should the formal award that was made in this case preclude this Jones Act suit.

Before I get into that, though, one thing I have to make clear is that this scenario never occurs except in one very, very specific instance.

That's when the employer owns the ship.

The employer must own the ship to have this problem.

And when the motion for summary judgment was made as against the Jones Act complaint here, defendant also... petitioner also made a motion for summary judgment that this plaintiff did not have a 905(b) action for negligence, and when the judge decided there was no Jones Act case, the judge also decided that there was a 905(b) case, thereby deciding that this man was a longshoreman, so the judge, the district judge decided that this man was in the Longshore Act before he ever went over to the ALJ.

Unknown Speaker: That's simply a denial of summary judgment.

That's not a determination of fact by the district court.

Mr. Boyle: Well, Your Honor, the district judge determined that because of the circumstance of this man's employment he could proceed with a 905(b) action.

Unknown Speaker: What order did the district court enter, denial of a motion for summary judgment?

Mr. Boyle: A partial... a partial denial of the motion for summary judgment.

Unknown Speaker: On the 905(b)?

Mr. Boyle: Right.

Unknown Speaker: That simply means there's enough evidence to go to trial.

It doesn't mean that the district court is making a factual finding one way or the other.

In fact, district courts don't make factual findings on summary judgment.

Mr. Boyle: No.

But Your Honor, in order to even maintain a 905(b) action one has to be a longshoreman.

One may not be a seaman.

Because the Longshore Act provides a lien as against the 905(b) action, and that was already determined in the district court.

It was not determined by the ALJ.

The ALJ mistakenly redetermined it.

The district judge had already determined it.

Unknown Speaker: Excuse me.

Would the district judge have to find that he is surely a seaman and probably has a valid cause of action under 905(b), or does he only have to determine that he is at least arguably a seaman and arguably has a cause of action?

Mr. Boyle: You mean arguably a longshoreman.

Unknown Speaker: Arguably a longshoreman and arguably has--

Mr. Boyle: Well, I think the court... the case is dismissable.

Defendant... petitioner argued that the man had no 905(b) action along with no Jones Act cause of action, and the judge decided that in view of the circumstances that he was a longshoreman within the Longshore Act--

Unknown Speaker: --He arguably had a 905... it didn't say he had a 905(b), that he arguably did, which means he's arguably a longshoreman.

Mr. Boyle: --Your Honor, there is no determination by the finder of fact that a 905(b) action as to whether or not the worker is a longshoreman is given that he is a longshoreman.

No finder of fact decides longshore status in a 905(b) case.

Unknown Speaker: Is that right?

Mr. Boyle: Yes, Your Honor.

Unknown Speaker: What do you mean, it's given?

Who gives--

--Who gives it?

Mr. Boyle: Well, it's just like... it's in the nature of in a diversity action you allege that you're a citizen of State A, and you allege defendant is a citizen of State B.

Unknown Speaker: And that can't be controverted?

Mr. Boyle: Yes, it can, and the defendant did controvert it in this case.

They said--

Unknown Speaker: Mr. Boyle, I'm not following your argument--

--Well--

--because we never got to the 905(b) case until the district case first threw out the Jones Act case.

The district judge did say, you're not a sailor.

Mr. Boyle: --Yes, Your Honor.

Unknown Speaker: And then said, because you're not a sailor, and that's... although it was interlocutory that was out of the case, and then they went over to the 905(b) case.

Mr. Boyle: And as part of the 905(b) case went to the ALJ at the Department of Labor to get the lien established.

That's why he went to the Department of Labor, not to get benefits but to get the lien established.

It was part of the 905(b) process.

It was a ticket to be punched in the 905(b) action.

Unknown Speaker: Then how do we get the adjudication of benefits by the ALJ?

Mr. Boyle: Because the ALJ didn't recognize that he was already precluded from making another determination about status by virtue of the district judge's decision and undertook to make a new determination, and then made a new determination, which he should not have made.

Unknown Speaker: I don't follow--

--Are you getting into this as an alternative basis for affirmance of the Ninth Circuit?

The Ninth Circuit said the question before us is whether the plaintiff's receipt of compensation benefits under the LHWCA precludes him from also recovering as a seaman under the Jones, but he took it as a given that that had happened, and they don't go into this thing you're talking about at all.

We ordinarily take the Ninth Circuit's findings as we receive them.

Mr. Boyle: Yes, Mr. Chief Justice.

The only reason I got into this is because there was a lot of colloquy during Mr. Danoff's argument about people being seamen, being longshoreman, and being neither, and that's the only reason why I brought this up.

That's all.

Unknown Speaker: Can I ask about the main collateral estoppel issue, something that's bothering me that I don't see answered.

Maybe there's an obvious answer to it.

But in your opinion, if the injured employee goes to the longshoreman people first and they say you're a longshoreman, then the person should be able to sue under the Jones Act and say, no, I'm a seaman, and that doesn't bind me.

Right?

Mr. Boyle: Yes.

Unknown Speaker: Okay.

What happens in your opinion if the first... if what happens is that he wants to... is the employer bound similarly, or not bound similarly?

In other words, what happens if they say in the first proceeding you're not a longshoreman, you're a seaman, and then the injured person goes into court and the employer who just won says, oh, no, you're not a seaman, you're a longshoreman, and then the man ends up with nothing?

Mr. Boyle: Well--

Unknown Speaker: Because the court says he's a longshoreman and the ALJ said he's a seaman, and there he is, not a penny.

So how is this supposed to work, or is it possible that the employer would be bound but the employee wouldn't?

That doesn't seem very fair.

How does this whole thing work out?

Mr. Boyle: --Well, the way it works out is that if the employer went before... in front of the ALJ and vigorously argued that the worker was a seaman, regardless of what the ALJ decided, the arguments, the conduct advanced by that litigant in front of the ALJ, principles of equitable estoppel would prevent the employer from going in front of the district judge and taking an opposite position.

Unknown Speaker: Well then, why wouldn't it equally bind the employee?

Mr. Boyle: Well, because in this case and in all of these cases you never have an employee go in and vigorously argue that they're a longshoreman.

Unknown Speaker: Will we measure the vigor of the argument in determining collateral estoppel?

Mr. Boyle: Well, to the extent that one of the guidelines of the Astoria Savings case versus Solimino is the incentive to vigorously or aggressively pursue a position.

Now, there are five things about this ALJ determination and ALJ awards of longshore benefits that indicate that they are not entitled to administrative collateral estoppel, and the first of those was mentioned in Mr. Danoff's argument, is in the statute itself, the longshore statute, 903(e) that talks about credit for Jones Act payments in making longshore awards.

If it goes in that direction one way, it should go the other direction also.

The second one is 913(c).

Unknown Speaker: Excuse me, I don't understand that.

Mr. Boyle: Well, in this Court's opinion in Gizoni, on 502 U.S. page 91, the Court stated that one of the reasons why receipt of longshore benefits should not preclude pursuit of Jones Act benefits was that section 903(e) of the Longshore Act says that any payments by reason... payments made under the Jones Act would be a credit to any liability imposed upon the employer under the Longshore Act, and in a footnote in that opinion it was mentioned that because of that there is no detrimental reliance upon any position that the employee takes because the employer gets credit for having paid moneys out under the Jones Act.

That being the situation, then the opposite of that should also be true, and it is true that the employer gets credit for any moneys paid under the Longshore Act in the pursuit of a Jones Act remedy.

It's one of the parts of the statute that indicates the coexistence of the Longshore Act and the Jones Act, but one.

There are four others.

The second one is--

Unknown Speaker: Of course, that could just... what your opponent says here is that that could just handle the situation in which there has been a Jones Act determination without collateral estoppel effect, or the situation in which Jones Act damages are partly different but not entirely different from harbor worker damages.

Mr. Boyle: --It could, but what we're trying to determine here is whether Congress, when it enacted the various iterations of the Longshore Act, meant for an ALJ award to be preclusive or not.

This is just one of five circumstances in the act that indicates they didn't mean--

Unknown Speaker: Your view is it's preclusive if the employer wins, but it's not preclusive if the employee wins?

Mr. Boyle: --No.

It's not preclusive in either one.

Unknown Speaker: So then how are we going to deal with this worker, if it's not preclusive in either case?

You either have to on the one hand give a system of law where the worst that would happen to the worker is that sometimes he would not get quite as much money, or we take your system, and sometimes workers will get both with credit but sometimes they'll get nothing, and I have to admit that that last possibility, which seems a real one under your system, is something that I find difficult to square with what I think Congress had in mind.

Mr. Boyle: Well, longshore benefits are paid voluntarily by employers.

Jones Act benefits are not paid voluntarily by employers.

You have to file a suit under the Jones Act.

You have to take the position you're a Jones Act seaman.

If you take the position you're a Jones Act seaman, you're entitled to a trial by jury if you present a prima facie case that you're a Jones Act seaman.

I believe that that's what this plaintiff did here, and the judge got into factual circumstances beyond the prima facie case and granted summary judgment.

Unknown Speaker: But isn't it also true, just to throw this in, there are situations in which the plaintiff will recover under neither scheme, because if he is in fact a seaman he can't recover as a longshoreman, and he may not be able to prove negligence, in which event he won't recover under the Jones Act either.

Mr. Boyle: That's right, and that's the choice the litigant takes.

Unknown Speaker: Well, if he's neither, maybe he's entitled to State Worker's Comp.

Mr. Boyle: Definitely not, because he's injured on board a vessel, and the situs of his injury would not entitle him to State Comp under any circumstances.

I want to get--

Unknown Speaker: Just one point.

If he's a seaman but there's no negligence, he still gets something because the vessel is unseaworthy?

Mr. Boyle: --Nothing.

Unknown Speaker: Or maintenance in cure?

Mr. Boyle: Maintenance in cure has nothing to do with unseaworthy.

It has to do--

Unknown Speaker: But he does get that--

Mr. Boyle: --Yes.

Unknown Speaker: --as a seaman.

Mr. Boyle: Yes, as long as he's temporarily disabled.

As soon as he becomes permanently disabled, he gets nothing.

Unknown Speaker: That's $22 a week?

What about a claim the vessel's unseaworthy?

Mr. Boyle: It has nothing to do with... no, it isn't, it's $22 a day in this--

Unknown Speaker: And why is it it has nothing to do with it, because--

Mr. Boyle: --Because that... it has... that's a tort remedy.

That's part of the seaman's tort, unseaworthiness and negligence.

You have to prove a case of unseaworthiness.

Unknown Speaker: --In other words, that's comprised within the Jones Act claim of no negligence?

Mr. Boyle: Yes.

Unseaworthiness is absolute liability, like products liability.

Unknown Speaker: That's why I'm asking.

Why doesn't... Justice Stevens put to you the case, isn't it possible that you can be a seaman but there's no negligence.

So then I say, don't you still have a cause of action for unseaworthiness--

Mr. Boyle: Oh, yes, you do.

Unknown Speaker: --and you say it has nothing to do with it.

Mr. Boyle: Oh, no.

Yes, you have a cause of action for unseaworthiness.

That's also proving a case.

Unknown Speaker: All right.

Mr. Boyle: Just under a lesser standard.

Unknown Speaker: But that doesn't mean that he gets nothing then because he has a cause of action for unseaworthiness.

Mr. Boyle: Unless he... if he can't prove negligence, the chances are that he... it's somewhat unlikely.

Well, usually it goes the other way around.

It's easier to prove unseaworthiness than it is to prove negligence, but under negligence you get causation no matter how slight, so that if you prove negligence the causal connection between the accident and the injury has to be a lot... can be a lot thinner than it is under negligence.

Unknown Speaker: Well, if he can't prove either unseaworthiness or negligence, perhaps he doesn't deserve to get anything.

Mr. Boyle: I think that's correct.

That's true.

Unknown Speaker: But that's nothing to do with... the longshore... Worker's Compensation is a no fault... unseaworthiness is still a form of liability.

You have to prove the ship was in an unseaworthy state.

It's not, I injured my knee so I collect.

Mr. Boyle: Absolutely.

Unknown Speaker: So... but the usual tradeoff isn't to show... the employer pays Worker's Compensation and then is not at risk in a tort suit.

Mr. Boyle: That's correct.

Unknown Speaker: And yet you're saying that's not what works here.

The employer was subject to a compensation award, and then... but you say what flows from that doesn't follow here.

That is, the employer, despite having paid compensation, is still at risk in a negligence action.

Mr. Boyle: Well, that's true in Gizoni anyway.

That's already been established, that the employer paying compensation does not cut off the Jones Act case.

What we're talking about here is the employer... the employee obtaining a formal award, and whether that formal award is entitled to administrative collateral estoppel.

Unknown Speaker: And you said there are five reasons why he cannot.

Mr. Boyle: Yes.

Unknown Speaker: And you've told us one of them.

I'm curious to hear the other four.

Mr. Boyle: The second one is that under 913(d) of the Longshore Act the statute of limitations for filing a claim under the Jones Act is tolled while the employee pursues the Jones Act, and until such time as he's found to be not a seaman by the court, then he's relegated to the Longshore Act.

But up until that point the statute is... of limitations is tolled.

The third one is under 922 of the Longshore Act any formal award is... can be modified within a year after its making, which makes it different from other formal awards and other adjudications by the ALJ's, which is the third reason why this--

Unknown Speaker: Can it be modified with respect to the determination of longshoreman status?

Mr. Boyle: --I believe so.

I don't think it's ever happened, but theoretically it can be, yes.

Unknown Speaker: What makes you believe so if it's never happened?

Mr. Boyle: Because the language of the statute says any aspect of any order entered by the deputy commissioner can be modified up to 1 year, and that means any.

The fourth reason is in the purpose of the Longshore Act itself.

If you do, as was mentioned by Justice Ginsburg during Mr. Danoff's argument, if you make a formal award preclusive and you remove any incentive there is for an employer to make voluntary payment... because this Court has already ruled that making of voluntary payments is not preclusive.

If you make a formal award preclusive, that's contrary to the purpose of the Longshore Act, which is to foster prompt payment of compensation and medical benefits to injured workers.

Unknown Speaker: But that wouldn't be entirely out of accord with the whole purpose of these schemes, not just the Longshore Act but also State Workman's Compensation schemes.

They are intended to give the employee assurance and promptness at the expense of maybe waiving greater damages that he could have gotten.

That's--

Mr. Boyle: Well--

Unknown Speaker: --That's how those schemes are set up.

That's the deal.

Mr. Boyle: --This isn't--

Unknown Speaker: You get it fast, you get it for sure, and in exchange for that you're giving up a shot at tort remedies that might get you a lot more bucks.

Now, the fact that this should happen in the minicontext of this procedural dilemma doesn't trouble me very much, because that's part of the big deal as well.

Mr. Boyle: --Well, the problem with that is that back in 1920 there were no Worker's Compensation laws, and back in 1927, in 1920 when the Jones Act was enacted, it was designed to give itinerant seamen a cause of action to be tried by a jury against their employer.

Unknown Speaker: Well, there were certainly lots of Workman's Compensation laws in 1920, State Worker's Compensation.

Mr. Boyle: But the Congress decided that seamen would not be covered by State Worker's Comp.

Unknown Speaker: Well, that may be one thing, but I thought you said there weren't any Workman's Compensation laws in 1920.

That simply is factually inaccurate.

Mr. Boyle: Well, there was no Federal Worker's Compensation law in 1920, and what I was getting at is the purpose of the Jones Act, and this is the fifth reason, is to afford seamen a trial by jury... crew members, really, is what seamen are... a trial by jury of the issue not only of negligence but of their status.

And in that trial by jury, after you have a prima facie case established, which I believe we did in this case under Chandris v. Latsis, which was that the worker had contributed to the function and mission of the vessel, and that he had a connection with the vessel which was substantial in both duration and in nature, then that goes to the jury, and the jury considers things like perils of the sea, or the jury considers whether you ate, slept, or lived on the vessel.

A jury considers whether or not this is a day-by-day assignment.

But the prima facie case is made, and it's for the jury to consider all the circumstances.

An ALJ is not equipped to do that.

Now, there's four things about this particular ALJ determination that in itself makes it nonpreclusive, and the second one of that is the laches that this defendant, this petitioner, after believing that Sharp governed this case, after believing that it would be preclusive, did not bring it to the attention of the district judge, but waited until we got to the court of appeals.

That's laches.

That prevents preclusion.

And the fourth one is, if this Court decides to follow Sharp, this is a change in the law from back in 197... 1992.

Unknown Speaker: Thank you, Mr. Boyle.

Mr. Frederick, we'll hear from you.

Argument of David C. Frederick

Mr. Frederick: Thank you, Mr. Chief Justice, and may it please the Court:

In Gizoni this Court recognized the unique interplay between the Longshore Act and the Jones Act.

In that case, the Court said that the Longshore Act

"clearly does not comprehend such a preclusive effect. "

because it specifically provides that any amounts paid to an employee for the same injury under the Jones Act

"shall be credited against any liability imposed-- "

Unknown Speaker: So is it your--

Mr. Frederick: --by the Longshore Act.

Unknown Speaker: --Is it your view... this is the one thing that is bothering me, the same question.

I mean, do you remember the question?

Mr. Frederick: The hardship question.

The--

Unknown Speaker: No.

Well, the question basically is, is your rule, is the Government's rule which says that the proceeding, first proceeding does not bind the employee also applicable to the employer?

Yes or no.

Mr. Frederick: --In the Longshore Act proceeding the finding would not be binding.

Whether it--

Unknown Speaker: Why--

Mr. Frederick: --is in the Jones Act would then be binding on the Longshore Act is a different question--

Unknown Speaker: --No, but--

Mr. Frederick: --which would--

Unknown Speaker: --There are a possibility of 16 boxes in a matrix, as I've worked out.

You can have all kinds of permutations and combinations.

I am confining myself for this question to the instance where the longshoreman proceeding comes first, and here, one side could win or the other.

The Jones Act comes second, and I want to be certain it is the position of the Government that the first proceeding does not bind the seaman.

That's what you've argued in your brief... the employee.

Right?

Mr. Frederick: --Yes.

Unknown Speaker: That's your brief.

And I take it it is also your position that it does not bind the employer.

Mr. Frederick: Justice Breyer, the answer to your question is that the Government's position is that an ALJ determination in a longshore award is not binding and does not have preclusive effect on a subsequent Jones Act suit brought by the employee.

There are--

Unknown Speaker: For either party.

Mr. Frederick: --For... whether--

Unknown Speaker: You won't say for either party, so now I'm getting worried.

Mr. Frederick: --If--

Unknown Speaker: What.

Mr. Frederick: --The answer to your question is, did Congress intend for administrative estoppel to apply?

Our position is that Congress did not.

Unknown Speaker: It did not--

Mr. Frederick: It did not.

Unknown Speaker: --intend it on either party?

Mr. Frederick: That's correct.

Unknown Speaker: Thank you.

Mr. Frederick: Now, the second part of my answer to your question is, would principles of equitable estoppel apply?

That's a different issue as to whether or not the employer, who has not suffered detrimental reliance, as this Court said in footnote 5--

Unknown Speaker: And here I don't know, because I thought collateral estoppel was... I didn't know there was a difference.

Mr. Frederick: --No, there's a difference between collateral estoppel and--

Unknown Speaker: If we called it issue preclusion there wouldn't be such confusion, right?

Mr. Frederick: --Thank you.

Unknown Speaker: I took civil procedure years ago and we just used to say res judicata, and it had two parts, and I can't even remember it that well.

Mr. Frederick: Thank you.

Unknown Speaker: Then I'm not--

[Laughter]

All I know is, if I were an employer, I would want to know... I'm an employee, and now I was called a longshoreman, so now I bring my case, and the employee... er comes in and says, hey, this guy was called a longshoreman.

That's the end of this matter, and you say, no it isn't, right.

Now I want to know, the opposite happens.

The person was called a seaman, and the employer comes in and says, hey... you understand the opposite.

Mr. Frederick: Yes, and if I can--

Unknown Speaker: Okay.

Now, I want to know if it reaches exactly the same result.

Mr. Frederick: --The same result, and let me answer the question about hardship.

If the ALJ decides that the worker is a member of the crew, and the district court decides that the person is not a member of the crew, the remedy is in 922, which calls for modification of awards.

In that instance, the person can go back to the longshore proceeding and say, I was unfairly rejected of my longshore benefits, and I would like--

Unknown Speaker: After a year?

Can he do it after a year?

Mr. Frederick: --He can do it within a year, but he can apply--

Unknown Speaker: I didn't ask whether he can do it within a year.

I asked if he can do it after a year.

Mr. Frederick: --If within a year he files a notice with the Department of Labor that says--

Unknown Speaker: If it is not within a year, he cannot do it?

Mr. Frederick: --If he... oh, yes, Justice--

Unknown Speaker: Is that correct?

If he hasn't filed something within a year--

Mr. Frederick: --I would like to... Justice Scalia, the answer is all he has to do is file to seek a stay.

It would prolong the period of limitations.

Unknown Speaker: --He must do that within the year.

Mr. Frederick: Yes.

Unknown Speaker: And if he has not filed that paper within the year, it's over.

Mr. Frederick: That's correct.

Unknown Speaker: Okay.

Mr. Frederick: But Justice Scalia, if--

Unknown Speaker: That's all I wanted to know.

It took a long time to get it, though, I must say.

Mr. Frederick: --Justice Scalia, all... if the district court action is proceeding, all he has to do is to file a notice with the Labor Department to say, I have this action proceeding in district court.

Please don't make my 1-year period toll.

That's all that he's got to do to keep open his modification of award.

Unknown Speaker: It's automatic?

Mr. Frederick: The district director has--

Unknown Speaker: Has discretion to do it or not to do it, is that right?

Mr. Frederick: --That's correct.

Unknown Speaker: So it is not automatic.

So that is not all he has to do.

He has to do that and get somebody to graciously give him that extension.

Mr. Frederick: That's correct, but the... but this Court's decisions--

Unknown Speaker: Let's be precise about what his rights are here and not--

Mr. Frederick: --His rights are to file for a modification of an award.

That's clear.

And that's also clear, Justice Scalia, that the Congress did not intend for these ALJ proceedings to have a preclusive effect on subsequent Jones Act suits.

Unknown Speaker: --Does the opposite hold true, that... is it your view that the Jones Act suit is decided first?

It does have preclusive effects in the Longshoreman Act case?

Mr. Frederick: It's... yes, it is likely that that will be the case, but not always, and the reason is that you would be applying principles of judicial collateral estoppel rather than administrative collateral estoppel.

In the most likely scenario, the district court proceeding under the Jones Act will have preclusive effect because those principles of judicial collateral estoppel apply.

Unknown Speaker: Are you saying simply that administrative adjudications do not have as heavy an issue-preclusive effect as judicial proceedings?

Mr. Frederick: That's correct.

Unknown Speaker: And that's hornbook law.

Mr. Frederick: That's correct, Justice Ginsburg.

Unknown Speaker: Well, what... what, then, invokes the intent of Congress?

That's... I take it that's just a general principle of procedure.

You said... you were arguing that Congress had a specific intent here.

Mr. Frederick: Right.

There are two principles, two provisions that we would point to, the crediting provision, which makes clear that Congress anticipated these parallel proceedings would occur, and the second--

Unknown Speaker: Well, maybe Congress just anticipated the normal rules of civil procedure, in which in one direction there wouldn't be a preclusion.

That would make sense of the congressional credit scheme.

Mr. Frederick: --I don't... respectfully, I think, Justice Souter, the way the credit provision is worded by saying liability imposed, if you accepted petitioner's position, there would be no point in having the crediting provision, because the first tribunal to decide it would have preclusive effect.

There wouldn't be nothing... there would be nothing to credit.

Unknown Speaker: You're saying 905(e) affected... or explain why it isn't the case, but that interpretation of 905(e) effectively repeals 905(a).

Mr. Frederick: No, Justice Scalia.

903(e), the crediting provision--

Unknown Speaker: The crediting provision, right.

Mr. Frederick: --Is... simply says 905(a) means exclusivity means no double recovery in the Jones Act suit.

With respect to State tort remedies, exclusivity--

Unknown Speaker: But that's not what (a) says.

(a) says that this liability under the Harbor Worker's Act is exclusive, and you can't get any other recovery.

Mr. Frederick: --As this Court pointed out in footnote 3 of Gizoni, that means if the person is covered by the Longshore Act.

It doesn't say who decides that, and our position is that the district court jury in the Jones Act suit would have the opportunity to decide whether the worker is a member of the crew.

Unknown Speaker: I'm still confused.

I know you're at the end of the time, but I've had no opportunity to ask about it, to clarify, please, the point you tried to address previously for Justice Breyer.

Apparently you think that an employer could be equitably estopped for asserting contrary positions in one or the other forum... fora, but the employee never would be equitably estopped and can take inconsistent positions.

Mr. Frederick: The question is one--

Unknown Speaker: Is that... I mean--

Mr. Frederick: --Yes.

Unknown Speaker: --Can't that be answered yes or no?

Mr. Frederick: Yes, it can, and the answer is yes because of detrimental reliance.

Unknown Speaker: Well, then it's... doesn't that give you just the opposite answer that I... I mean, I was interested in the practicalities of this.

I just wanted to be sure that there was parallel treatment here, and so is it that there is going to be real parallel treatment, or that there isn't?

I'm trying to think in general terms about the case.

Mr. Frederick: Let me... maybe if I'm concrete it would be helpful to the answer.

If this were brought in district court where the worker said, count 1, I'm a Jones Act seaman, or count 2, I'm a longshore worker, there wouldn't be any problem.

The jury could decide what the status is.

Unknown Speaker: But this real live case is, the employee says in the district court, I was a seaman when I was injured.

Mr. Frederick: That's correct.

Unknown Speaker: And the employer says, no you weren't.

You were, if anything, a longshoreman.

Mr. Frederick: And what has happened here, Justice O'Connor, is that instead of paying maintenance and cure, which under the boatman's agreement for deck hands in this case, the petitioner here did not pay maintenance and cure, which would be the traditional seaman's remedy, and now under petitioner's theory would have the leverage to say, I'm not going to pay you voluntary benefits under the Longshore Act either, and so the question of hardship really does arise for the injured worker.

Unknown Speaker: Well, but it is voluntary, after all.

The employer does not have to pay under Longshoreman and Harbor Worker's Act predetermination benefits.

Mr. Frederick: May I answer the question, Mr. Chief Justice?

Our position is that Congress did not intend for injured maritime workers to be left without any interim remedy while they pursued the status to which they are justly... should be awarded.

Chief Justice Rehnquist: Thank you, Mr. Frederick.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.