Fifth Circuit Identifies Potential Conflict with Supreme Court on Jones Act Seaman Test

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In Sanchez v. Smart Fabricators of Texas, LLC, 970 F.3d 550,  a three-judge panel of the United States Fifth Circuit Court of Appeal held on August 14, 2020, that seaman status under the Jones Act may apply to an injured welder on a jack-up oil rig adjacent to an inland pier. Maintaining that the plaintiff qualified as a seaman under controlling Fifth Circuit precedent but questioning that precedent in light of Supreme Court case law, the panel urged the Fifth Circuit to review the case en banc.

Smart Fabricators of Texas (“SmartFab”) fabricates steel and repairs oil and gas drilling equipment. Its employees work at its shop and yard and occasionally on jacked-up drilling rigs, often docked to inland piers. Gilbert Sanchez, a welder-fitter employed by SmartFab, never went to sea on vessels. He worked day shifts and returned home every evening. In August 2018, while working on a rig owned by Enterprise Offshore Drilling, LLC (“Enterprise”), Sanchez was injured when he tripped on a pipe welded to the deck. Sanchez was never an Enterprise employee or a member of the rig’s crew. The rig was jacked up out of the water with its legs on the seabed. It was stationary, a step away from the shoreside pier.

After his accident, Sanchez sued Enterprise and SmartFab in state court under the Jones Act, 46 U.S.C. § 30104. Enterprise and SmartFab removed the case arguing the federal court’s subject matter jurisdiction pursuant to the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1349(b)(1). Sanchez v. Enterprise Offshore Drilling LLC, 376 F.Supp. 3d 726 (S.D. Tex 2019). Sanchez responded by dismissing his claims against Enterprise and moved to remand, arguing the Jones Act precluded removal. Id. at 728. The district court acknowledged that a defendant generally cannot remove a case brought pursuant to the Jones Act in state court.  Id. at 729. However, a district court can deny remand if, after conducting a “summary-judgment-type” of inquiry, in which the court pierces the pleadings, it determines the plaintiff’s complaint “misstated or omitted discrete facts.” Id. (quoting Flagg v. Stryker Corp., 819 F.3d 132, 136-37 (5th Cir. 2016)). In conducting this “summary-judgment-type” of inquiry, the district court found that Sanchez was a shoreside worker whose duties did not take him to sea and did not regularly expose him to the perils of the sea. Id. at 733. Holding that he did not qualify as a Jones Act seaman, the district court denied his motion to remand.  Subsequently, SmartFab moved for and was granted summary judgment. Sanchez v. Enterprise Offshore Drilling LLC, 2019 WL 2515307 (Jun. 18, 2019).

On appeal, Sanchez argued that he qualified as a Jones Act seaman. The three-judge panel reversed the district court, considering itself bound by previous Fifth Circuit opinions that it deemed indistinguishable. However, in a special concurrence, the entire panel maintained that Sanchez did not qualify as a Jones Act seaman under Supreme Court precedent. Identifying a divergence between the Fifth Circuit and the Supreme Court on the issue, the panel recommended taking the case en banc.

Under the Supreme Court’s two-pronged seaman test from Chandris v. Latsis, the employee (1) “must contribute to the function of the vessel or to the accomplishment of its mission” and (2) “must have a connection to a vessel in navigation (or an identifiable group of such vessels) that is substantial in terms of both its duration and nature.” 515 U.S. 347, 354 (1995). The parties agreed that Sanchez satisfied the first prong but disagreed about the second, which considers the duration and nature of the worker’s duties.

To satisfy the duration requirement, the plaintiff must spend over 30% of his time in service of a vessel. Id. at 370. The panel agreed with the district court that Sanchez satisfied the duration requirement because he spent over 70% of his work on one rig and over 19% on another rig. 970 F.3d at 553-54.

The nature test considers “whether the employee’s duties take him to sea.” Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 555 (1997). It restricts seaman status to “workers who face regular exposure to the perils of the sea.” Id. at 560.

The panel held that Sanchez met the nature test because his case was indistinguishable from two prior Fifth Circuit cases: In re Endeavor Marine, 234 F.3d 287 (5th Cir. 2000) (per curiam) and Naquin v. Elevating Boats, L.L.C., 744 F.3d 927 (5th Cir. 2014). The plaintiff in Endeavor Marine worked on a moored derrick barge on the Mississippi River. Id. at 298. The plaintiff in Naquin worked on lifeboats that were either moored, jacked up, or docked in a shipyard canal. Id. at 930. Both plaintiffs were seaman under the nature test, and the panel could not distinguish Sanchez’s case. Based on the controlling precedent, Sanchez was exposed to the perils of the sea even when the vessel was jacked up next to a dockside pier. Although he was a land-based welder, he remained exposed to the perils of a maritime work environment while aboard the drilling rigs. 970 F.3d at 555.

In the special concurrence, the entire panel explained that, while they were bound by Endeavor Marine and Naquin, they were persuaded that those cases are inconsistent with Supreme Court precedent. 970 F.3d at 555. The Supreme Court explained in Chandris that “the ultimate inquiry is whether the worker in question is a member of the vessel’s crew or simply a land-based employee who happens to be working on the vessel at a given time.” 515 U.S. at 370.

Thus, the special concurrence explained that Sanchez should not qualify as a Jones Act Seaman because he “was a land-based fitter and welder whose duties did not take him to sea.” 970 F.3d at 555. Sanchez “was never assigned to sail on the vessel, and instead only had to take two steps off the rig and onto land every evening at the end of his shift. His work was essentially land-based, never exposing him to the perils of the sea.” Id. at 557. Thus, the panel recommended taking the case en banc to “bring our jurisprudence in line with Supreme Court caselaw.” Id.  The panel consisted of Circuit Judges Davis, Jones, and Willett, and both the decision and concurrence were authored by Judge Davis.

On October 30, 2020, the Court issued an order vacating the panel decision and setting the case for en banc review.   At this time, the case is set for en banc oral argument the week of January 18, 2021.  An en banc decision could affirm the Fifth Circuit’s historical construction of the Jones Act, preserving seaman status to a wider category of maritime workers.  Alternatively, the full court could reverse twenty years of circuit precedent and restrict the legal remedies available to certain maritime workers with only limited risk of exposure to the perils of the sea.

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