The Brief in Opposition has been filed in Dize v. Association of Maryland Pilots, the case concerning seaman status for maritime workers who spend time in the service of a moored vessel. The Brief in Opposition is a good read that questions the existence of the circuit split advanced by Ms. Dize in her petition. Here is the Introduction to the Brief in Opposition (with internal citations omitted where possible):
In Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), this Court held that, to qualify as a “seaman” under the Jones Act, an employee “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 its nature.” With respect to the “duration” element of that requirement, the Court endorsed “an appropriate rule of thumb”: “A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.” Such a worker is not “regularly expose[d] . . . to the perils of the sea”; is “land-based,” not “sea-based”; and has “only a transitory or sporadic connection to a vessel in navigation.”
The petition seeks review of a single, narrow question: whether a court applying Chandris‘s 30-percent rule of thumb “may . . . consider” time spent “in the service of a vessel in navigation that is moored, dockside, or ashore,” or “must” instead “categorically exclude” such time. That question is not presented here. Notwithstanding the petition’s assertions, the Court of Appeals of Maryland rejected a categorical rule that an “employee must spend at least 30 percent of [his] time actually at sea” to qualify as a seaman. It expressly recognized that “a variety of other circumstances” may count toward Chandris‘s 30-percent threshold. Petitioner effectively prevailed below on the sole question actually posed by the petition: Under the decision below, courts “may . . . consider” time in service of moored, dockside, and ashore vessels in determining whether an employee is a seaman. Petitioner’s real complaint seems to be that the decision below erred in not counting the particular services William Dize performed for moored, dockside, and ashore vessels. The petition does not seek review of that fact-specific determination, which does not warrant preview in any event.
The petition’s misreading of the decision below also permeates its claimed conflict among lower courts. The petition alleges a conflict between the decision below and an unpublished Eleventh Circuit decision, on the one hand, and decisions of the Third, Fifth, Sixth, and Ninth Circuits, on the other. But the decision below rejected the very Eleventh Circuit decision the petitioner characterizes it as having “followed.” And the decision below embraced decisions of the Fifth and Ninth Circuits (among others). The purported decision in the circuits thus rests entirely on an unpublished decision of a single federal court of appeals–a decision that does not even bind that court–and dictum within the decision at that. That “conflict” does not warrant this Court’s review.
In any event, the decision below is correct. This Court has emphasized that “Jones Act coverage is confined to seamen, those workers who face regular exposure to the perils of the sea.” The Maryland Court of Appeals faithfully applied that directive, counting towards the 30-percent threshold all duties that expose a worker to the perils of the sea, whether or not he is in transit over the water. And it properly ruled that, on the facts of this case, Mr. Dize’s routine maintenance of vessels ashore did not expose him to such perils. The petition does not challenge that fact-bound conclusion. Instead, it seeks a categorical rule requiring courts to count all duties in service of a vessel, wherever and however performed. That rule would make seaman of workers who are never, exposed to the perils of the sea, obliterating the Jones Act’s “fundamental distinction between land-based and sea-based maritime employees.”
Finally, this case is an exceptionally poor vehicle. The “question presented” is not presented here, and the petition fails to challenge the actual basis for the decision below. This Court’s ability to offer meaningful guidance would thus be severely hampered. And while the petition asks whether time spent in service of a vessel that is “moored” or “dockside” may count toward seaman status, . . . Mr. Dize’s claim below rested on “shoreside support tasks.” Accordingly, Mr. Dize’s claim depends on the sort of routine, land-based “maintenance work” this Court has held to be not “substantial for seaman-status purposes.” The total circumstances here make clear that Mr. Dize was a land-based worker who only sporadically performed launch operator duties and would not qualify as a seaman under any conceivable standard.
Tip of the hat to SCOTUSBlog.(Note: I first published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)