CHESAPEAKE AND OHIO RAILWAY COMPANY, PETITIONER V. NANCY J. SCHWALB
AND WILLIAM MCGLONE

   NORFOLK AND WESTERN RAILWAY COMPANY, PETITIONER V. ROBERT T. GOODE,
JR.

   No. 87-1979, 88-127

   In the Supreme Court of the United States

   October Term, 1988

   On Petitions for Writs of Certiorari to the Supreme Court of
Virginia

   Brief for the United States as Amicus Curiae

   This brief is submitted in response to the Court's order inviting
the Solicitor General to express the views of the United States.

            TABLE OF CONTENTS
   Question presented
   Statement
   Discussion
   Conclusion

                          QUESTION PRESENTED

   Whether "employee(s)" engaged in "maritime employment" under
Section 2(3) of the Longshore and Harbor Workers' Compensation Act, 33
U.S.C. 902(3), include not only those workers who actually load or
unload cargo but also all workers on a covered site who perform work
that is an essential element or integral part of the process of
loading or unloading.

                               STATEMENT

   1. Petitioners, Chesapeake and Ohio Railway Company (C&O) and
Norfolk and Western Railway Company (N&W), operate coal loading
terminals in the Hampton Roads area of Virginia.  C&O's terminal abuts
the James River (87-1979 Pet. 7), while N&W's facility, known as
Lambert's Point, adjoins the Elizabeth River (88-127 Pet. 7).
Petitioners' freight trains transport coal mined inland for loading
onto ships docked at the terminals' piers.  Upon arrival, the
coal-laden railway cars remain in the terminals' "barney" yards until
the shiploading process begins.  Pet. App. 8A-9A, 46A.  /1/

   The process of loading coal into ships' holds is highly mechanized
and, in all material respects, identical at both petitioners'
terminals.  When shiploading begins, railway cars move one-by-one from
the barney yards and onto "dumpers" at the land end of the piers.  A
mechanical device called a "retarder" stops each loaded coal car at
the correct position on the dumper.  Next, other mechanical devices
lift and rotate the car, so that its contents drop through a hopper to
conveyor belts that feed the coal directly onto the waiting ships.
After unloading, the cars roll back to the terminals' holding yards,
from which they are eventually sent inland.  Barring mechanical
failure or other incident, the coal loading process is continuous from
the time a car leaves the barney yard until it returns, empty, to the
holding yard.  Pet. App. 3A-4A, 46A-48A;  87-1979 Pet. 7-9;  88-127
Pet. 8-9.

   The respondents in No. 87-1979, Nancy J. Schwalb and William
McGlone, were laborers employed by C&O to perform general cleaning at
its terminal.  Though each had varied duties, they both were
frequently required, during the actual shiploading process, to clear
away coal that spilled from the conveyor belts and the "trunnion
rollers," the devices at the ends of the dumper that enable it to
rotate suspended railway cars.  Failure to clear away this "trash
coal" results in malfunction of the shiploading equipment, thus
halting the loading process.  Pet. App. 3A-4A, 20A-21A, 23A-24A;
87-1979 Pet. 9.  While Schwalb and McGlone easily could have replaced
the trash coal on the conveyor belts, applicable union agreements
prohibited them from doing so;  rather, laborers from a different
department performed that task (Pet. App. 4A;  87-1979 Pet. 9-10;
87-1979 Br. in Opp. 5).

   The respondent in No. 88-127, Robert J. Goode, Jr., was a machinist
for N&W who worked in the Motive Power Department at Lambert's Point.
/2/ That department's function was to maintain and operate the coal
facility, with machinists in the Department devoting the majority of
their time to maintaining and repairing loading equipment and
machines.  Pet. App. 47A-49A, 52A.

   Schwalb sustained a serious head injury on January 11, 1983, when
she fell while walking to clear trash coal from the trunnion rollers
(87-1979 Pet. 10-11;  87-1979 Br. in Opp. 2).  McGlone was injured on
February 1, 1983, as he was attempting to clear away trash coal
beneath a moving conveyor belt (87-1979 Pet. 10;  87-1979 Br. in Opp.
3).  Goode was injured on February 11, 1985, while repairing the
retarder located on one of the dumpers at Lambert's Point (88-127 Pet.
9-10;  88-127 Br. in Opp. 2-3).  Each respondent brought a timely
action under the Federal Employers' Liability Act (FELA), 45 U.S.C. 51
et seq., in the appropriate circuit court of the State of Virginia
(Pet. App. 2A, 88-127 Br. in Opp. 2).  C&O filed special pleas to the
courts' jurisdiction, contending that the respondents' exclusive
remedy was under the Longshore and Harbor Workers' Compensation Act
(LHWCA), 33 U.S.C. 901 et seq.  /3/ N&W moved to dismiss on the same
basis.  Pet. App. 19A, 23A, 45A.

   2. The courts for the Third Judicial Circuit (McGlone), Fourth
Judicial Circuit (Goode), and Seventh Judicial Circuit (Schwalb) of
Virginia each decided that the LHWCA applied to respondents' claims,
sustained petitioners' jurisdictional challenges, and dismissed the
FELA actions (Pet. App. 31A-34A, 45A).  In each case, the court found
no serious dispute that the respondents satisfied the LHWCA's "situs"
requirement by working in a statutorily covered geographical area
(Pet. App. 20A, 24A-25A, 56A), and thus focused principally on whether
the respondents were "employee(s)" as defined by Section 2(3) of the
Act, 33 U.S.C. 902(3) (1982 & Supp. IV 1986).

   In resolving this issue of employee status, the circuit courts in
the McGlone and Goode cases explicitly acknowledged a conflict between
the restrictive approach to the question that the Virginia Supreme
Court followed in White v. Norfolk & W. Ry., 217 Va. 823, 232 S.E.2d
807, cert. denied, 434 U.S. 860 (1977), and the more expansive
standard adopted by the federal courts of appeals in such decisions as
Price v. Norfolk & W. Ry., 618 F.2d 1059 (4th Cir. 1980) (Pet. App.
25A-29A, 53A).  The courts viewed the Virginia Supreme Court's White
standard as confining LHWCA coverage to those workers on the situs who
were "directly involved" in the loading of cargo (id. at 26A,
52A-53A).  By contrast, the courts believed, the prevailing standard
among the federal courts of appeals is considerably broader,
encompassing all workers on the situs whose jobs comprise "an
essential element in the loading and unloading of the vessels" (id. at
27A-28A, 54A).  As the McGlone court interpreted it, the federal
standard does not require an employee to be involved "in the actual
loading of ships," if the maintenance work the employee performed "was
essential to the movement of maritime cargo" (id. at 27A).  The
McGlone and Goode courts resolved this conflict between state and
federal court interpretations against adherence to the Virginia
Supreme Court's test;  in their view, following White "would be to
interpret a Federal law contrary to all of the decisions of the
Federal courts" (id. at 28A), and the test formulated by the federal
courts was, in fact, the proper test (id. at 53A-54A).

   Applying the federal courts' status test, the Virginia circuit
courts concluded that the LHWCA covered the respondents because they
performed tasks essential to the loading of coal at petitioners'
terminals.  McGlone's cleaning duties were essential because the
failure to clear away coal that had fallen from the belts "would
eventually interfere with the loading operation and bring it to a
halt" (Pet. App. 24A).  Similarly, Schwalb's cleaning duties conferred
LHWCA coverage because "if the spilled coal was not removed * * * it
could have haulted (sic) the process of loading the coal aboard the
vessels" (id. at 21A).  And Goode was an employee under the LHWCA
because he maintained and repaired equipment and machines "directly
and solely related to the loading and unloading operation" (id. at
52A), and was thus "involved in the essential elements of loading and
unloading" (id. at 51A, citing Herb's Welding, Inc. v. Gray, 470 U.S.
414, 423 (1985)).  /4/

   3. The Supreme Court of Virginia consolidated Schwalb's and
McGlone's appeals and reversed (Pet. App. 1A-18A).  Although
acknowledging that the United States Court of Appeals for the Fourth
Circuit had applied the LHWCA to a painter who did not actually handle
cargo but who had maintenance duties essential to the "entire
(loading) process" (id. at 12A (quoting Price, 618 F.2d at 1062 n.4)),
and agreeing here that the failure to remove "trash coal" could
interrupt that process (Pet. App. 4A), the Virginia court rejected the
Price court's reasoning and conclusion (id. at 12A, 16A-17A), refused
to adopt the "overall process" standard and adhered, instead, to the
restrictive test set out in White (id. at 16A-17A).  Under that test,
the court held, workers must show that their "'own work and
employment'" bears "'a realistically significant relationship' to
'traditional maritime activity involving navigation and commerce on
navigable waters,'" to bring themselves within the LHWCA (id. at
10A-11A, quoting Weyerhaeuser Co. v. Gilmore, 528 F.2d 957, 961 (9th
Cir. 1975), cert. denied, 429 U.S. 868 (1976)).  Reading this Court's
"essential elements of (loading or) unloading" language in Northeast
Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977), to limit LHWCA
coverage only to those employees actually "engaged in the handling of
cargo" (Pet. App. 14A (quoting 432 U.S. at 267)), the Virginia Supreme
Court concluded that "the (Northeast Marine Terminal) 'essential
elements' standard is more nearly akin to the (White) 'significant
relationship' standard * * * than the 'overall process' construction"
(Pet. App. at 16A).  Without considering how essential their duties
were to the overall loading process, the court held that since Schwalb
and McGlone performed "purely housekeeping and janitorial tasks," they
"were not statutory employees as defined in the LHWCA" (id. at 17A).
Application of the White test thus required reversal of the circuit
courts' judgments.  Subsequently, relying on its opinion in Schwalb,
the Virginia Supreme Court reversed the judgment in Goode as well
(Pet. App. 58A-59A).  /5/

                              DISCUSSION

   These cases present this Court with an excellent opportunity to
examine the scope of landward coverage under the "status" provision of
the 1972 amendments to the Longshore and Harbor Workers' Compensation
Act.  The Court has faced the question twice before, see P.C. Pfeiffer
Co. v. Ford, 444 U.S. 69 (1979);  Northeast Terminal Co. v. Caputo,
432 U.S. 249 (1977), each time finding the employees covered because
"they were 'engaged in longshoring operations,' and thus fit one of
the categories explicitly enumerated by Congress as part of 'maritime
employment.'" Director, Office of Workers' Compensation Programs v.
Perini North River Assocs., 459 U.S. 297, 318 n.27 (1983).  As the
Court has recognized (ibid.), in neither case did it determine that
the concept of "maritime employment" required "an examination into
whether the employment had a 'direct' or 'significant relationship to
navigation or commerce.'"

   The Supreme Court of Virginia has attempted to create a
"significant relationship" test here, one that is severely limited in
scope.  The Virginia court's decisions in White and the instant cases
make that limitation clear:  the court's test essentially requires
workers claiming coverage because of stevedoring or similar activities
to demonstrate that they are actually loading or unloading maritime
cargo (either by physically handling the cargo or by manipulating
machinery used for that purpose) in order to bring themselves within
the LHWCA's ambit.  This test conflicts with the expansive
interpretation of the LHWCA's status provision suggested by its
statutory language and legislative history, accorded that provision by
this Court, and uniformly applied by the federal courts of appeals,
the Department of Labor, and the Benefits Review Board (BRB).  The
conflict creates uncertainty over the proper test for employment
status that invites forum-shopping among injured workers, implicates
the Department of Labor's administration of the LHWCA program, and
potentially impinges on the rights and interests of employers and
employees alike.  /6/ These results frustrate Congress's intent that
"a simple, uniform standard of coverage" apply under the LHWCA.
Pfeiffer, 444 U.S. at 83.  Given the practical importance of the issue
and the disagreement among the lower courts addressing it, review by
this Court is warranted.

   1. The language and legislative history of the 1972 amendments to
the LHWCA indicate that a broad reading of the coverage provided by
the statute is required.  These amendments were intended to remedy
several problems.  First, Congress sought to eliminate circumvention
of the LHWCA compensation system through resort to an action for
unseaworthiness.  /7/ See S. Rep. No. 1125, 92d Cong., 2d Sess. 1-2,
5-12 (1972);  H.R. Rep. No. 1441, 92d Cong., 2d Sess. 1-8 (1972);
Perini, 459 U.S. at 313;  Northeast Marine Terminal, 432 U.S. at
260-261.  In addition, Congress sought to expand the Act's scope;  it
wanted to remedy a coverage anomaly that limited longshore and harbor
workers to recovering LHWCA benefits for work-related injuries
sustained on navigable waters and left those who sustained similar
injuries on the adjoining land without an LHWCA remedy.  See S. Rep.
No. 1125, supra, at 1, 12-13;  H.R. Rep. No. 1441, supra, at 10-11;
Perini, 459 U.S. at 306-312;  Northeast Marine Terminal, 432 U.S. at
256-265;  Pfeiffer, 444 U.S. at 72-73.

   Congress effected the coverage change through two specific
amendatory clauses.  First, it modified the Act's "situs" requirement,
expanding the definition of "navigable waters" under Section 3(a), 33
U.S.C. 903(a), to include "'any adjoining pier, wharf, dry dock,
terminal, building way, marine railway, or other adjoining area
customarily used by an employee in loading, unloading, repairing, or
building a vessel.'" Northeast Marine Terminal, 432 U.S. at 263.  This
case involves the second of the amendatory clauses, the new "status"
requirement Congress added to Section 2(3), 33 U.S.C. 902(3), "to
describe affirmatively the class of workers (it) desired to
compensate." Northeast Marine Terminal, 432 U.S. at 264.  Under the
amended status test, LHWCA coverage extends to injured workers
"engaged in maritime employment," including specifically "any
longhshoreman or other person engaged in longshoring operations, and
any harbor-worker including a ship repairman, shipbuilder, and
shipbreaker * * *." 33 U.S.C. 902(3).

   Congress did not define "maritime employment," "longshoreman," or
"longshoring operations" in either the Act or its legislative history.
 See Northeast Marine Terminal, 432 U.S. at 265.  /8/ However, the
broad language of the status test itself suggests that the courts
should take "an expansive view of (its) extended coverage." Id. at
268.

   The remedial purpose of the statute reflected in the legislative
history further supports an expansive view of the Act's coverage.
Northeast Marine Terminal, 432 U.S. at 268 (citing Voris v. Eikel, 346
U.S. 328, 333 (1953)).  As chronicled by this Court (see 432 U.S. at
268-273), Congress decided to extend the coverage of the Act shoreward
because of two main concerns.  First, pre-1972 benefits under the
LHWCA extended only to those longshore and harbor workers who were
injured over navigable waters;  injuries occurring on land were
covered by state workers' compensation laws.  The result was "a
disparity in benefits payable * * * for the same type of injury
depending on which side of the water's edge and in which State the
accident occurs." S. Rep. No. 1125, supra, at 12;  H.R. Rep. No. 1441,
supra, at 10.  Moreover, the disparity between federal benefits and
generally lower state benefits was to widen after the passage of the
federal benefit reforms contained in the 1972 amendments.  S. Rep. No.
1125, supra, at 12-13;  H.R. Rep. No. 1441, supra, at 10;  Pfeiffer,
444 U.S. at 83;  Northeast Marine Terminal, 432 U.S. at 262.  Second,
Congress recognized that the realities of modern shipping practices,
including containerization and other technological innovations, had
moved much of the longshoring work it wished to protect onto the land.
 S. Rep. No. 1125, supra, at 13;  H.R. Rep. No. 1441, supra, at 10;
Northeast Marine Terminal, 432 U.S. at 270.  /9/

   These concerns support a liberal construction of the Act's landward
coverage -- a construction that focuses on the occupations of those
the Act seeks to protect instead of on the "fortuitous circumstance"
of where they are injured (S. Rep. No. 1125, supra, at 13;  H.R. Rep.
No. 1441, supra, at 10;  see Pfeiffer, 444 U.S. at 78-84;  Northeast
Marine Terminal, 432 U.S. at 272-273), and that makes allowance for
changing technology (see Northeast Marine Terminal, 432 U.S. at
269-271).  As this Court has articulated the functional approach of
the status provision, all employees "involved in the essential
elements of loading and unloading" meet the status requirement of the
Act;  employees are excluded if they are "'not engaged in the overall
process of loading or unloading.'" Herb's Welding, Inc. v. Gray, 470
U.S. 414, 423 (1985) (quoting Northeast Marine Terminal, 432 U.S. at
267 (emphasis added)).  Coverage thus extends to any worker
"responsible for some portion of" the loading and unloading activity
since he or she is "as much an integral part of the process * * * as a
person who participates in the entire process." Pfeiffer, 444 U.S. at
82-83.

   In 1984, Congress amended the status provision "to reaffirm the
purposes of the 1972 jurisdictional changes, and in that light * * *
(to exclude) certain fairly identifiable employers and employees" who,
although at work on a covered situs, lack "a sufficient nexus to
maritime navigation and commerce." S. Rep. No. 81, 98th Cong., 1st
Sess. 25 (1983).  /10/ The amended provision excludes only certain
narrow categories of employees more tenuously connected to maritime
work than those involved here, /11/ but excludes them only if they are
eligible for state workers' compensation programs.  33 U.S.C. 902(3)
(Supp. IV 1986).  /12/ Moreover, Congress in 1984 indicated that it
considered coverage of employees under the Act appropriate either
"because of the nature of the work which they do, or the nature of the
hazards to which they are exposed." H.R. Rep. No. 570, supra, at 4.
This broad approach clearly includes workers facilitating a loading
process, who are subject to the same harbor-side risks as those
actually handling cargo.

   Thus, both the language of the status provision and the purposes
expressed by Congress in 1972 and 1984 support a broad, functional
approach to the landward coverage of the LHWCA, rather than the
restrictive standard applied by the Supreme Court of Virginia.

   2. The state court's standard is also inconsistent with the
principles of coverage enunciated by this Court and followed by the
lower federal courts.

   a. In Northeast Marine Terminal Co. v. Caputo, supra, this Court
first determined the reach of LHWCA coverage under the status
provision of the 1972 amendments.  The case involved two employees, a
"checker" (the worker responsible for checking and recording cargo as
it is loaded or unloaded) and a longshoreman who at the time of injury
was working as a "terminal laborer" helping to load already-discharged
cargo into consignees' trucks.  After reviewing the history of the
LHWCA with attention to Congress's continued efforts to provide
uniform coverage to "amphibious workers" (432 U.S. at 256-265, 273),
the Court concluded that the Act's status provision should be
interpreted broadly and in functional terms.  The Court held that the
"checker" satisfied the status requirement because, although his
longshoring functions had been somewhat changed by technology (the
employee was checking the contents of a container on shore on the day
of the accident), his work was "an integral part of the unloading
process as altered by the advent of containerization." Id. at 271.
The Court held that the "terminal laborer" also met the status
requirement;  since he spent some of his time in "indisputably
longshoring operations" (id. at 273), the Act's "focus on occupations
and its desire for uniformity" supported continuous coverage under the
LHWCA (id. at 276).

   The Court explicitly rejected restrictions that would have
artificially curtailed its functional analysis.  First, it denied that
union membership should determine eligibility as a "longshoreman"
under the Act, noting that "(t)he vagaries of union jurisdiction are
unrelated to the purposes of the Act." Northeast Marine Terminal, 432
U.S. at 268 n.30.  Second, the Court rejected a limitation not unlike
that adopted by the Virginia court here.  The Court held that the
"point-of-rest" doctrine -- according to which "stevedoring" was
limited to loading or unloading operations seaward of the first "point
of rest" on a pier or dock from which cargo is moved into vessels or
removed for further transport ashore -- was incompatible with the
Act's objective of extending uniform coverage on an occupational
basis.  Id. at 275, 276.

   This Court confirmed its expansive interpretation of the landward
extension of coverage in P.C. Pfeiffer v. Ford, supra, where it found
coverage for two workers, neither of whom loaded or unloaded material
directly to or from boats.  /13/ The Court rejected any resurrection
of the artificial distinctions imposed by union labels or the
point-of-rest theory (444 U.S. at 81-82) and also rejected the
creation of similar restrictions by employer "assignment policies"
(id. at 83).  Rather, the Court focused on the "nature of the
activity" to which a worker could be assigned:  it noted that
"(l)and-based workers who do not handle containerized cargo also may
be engaged in loading, unloading, repairing, or building a vessel"
because "(p)ersons moving cargo directly from ship to land
transportion are engaged in maritime employment * * * (and one)
responsible for some portion of that activity is as much an integral
part of the process of loading or unloading a ship as a person who
participates in the entire process" Id. at 80, 82-83 (citation
omitted);  see also Herb's Welding, 470 U.S. at 423.

   Consistently with the rationale of these decisions, the courts of
appeals uniformly view the question of whether employees are "engaged
in maritime employment" from a functional perspective, focusing on the
nexus between a worker's actual duties and the overall process of
loading and unloading cargo.  /14/ This approach takes into account
the reality of conventional longshoring operations:  that maritime
employment today is significantly affected by technology, job
specialization, and the "vagaries of union jurisdiction." Thus,
although using slightly varying terms, the courts of appeals have
extended coverage under the Act to any employee on a covered situs
whose actual duties comprise an "essential element" or "integral part"
of the overall loading and unloading process, even if those duties do
not themselves include physically or mechanically loading or unloading
maritime cargo.  This test specifically encompasses workers who, like
respondents, engage in cleaning, maintenance, and repair of equipment
used to load ships.  /15/

   b. In holding that respondents were not employees under the LHWCA,
the Virginia Supreme Court expressly rejected the courts of appeals'
functional test and adhered, instead, to its earlier decision in White
v. Norfolk & W. Ry., supra.  Pet. App. 17A.  White limited coverage
under the Act to those employees having a "'realistically significant
relationship' to 'traditional maritime activity involving navigation
and commerce on navigable waters.'" 217 Va. at 832, 232 S.E.2d at 812
(quoting Weyerhaeuser Co. v. Gilmore, 528 F.2d at 961).  /16/ The
White decision makes clear that the court views the "realistically
significant relationship" test as requiring direct involvement in the
physical process of loading and unloading cargo.  Thus, although
White's duties required him to maintain electrical equipment essential
to the coal loading process, the court concluded that he lacked the
requisite "realistically significant relationship to the loading of
cargo on ships," because he was "not actually handling any cargo,
either manually or mechanically," and "was not manipulating * * * any
of the controls of the electrical mechanism, which furnished the power
for this automated loading process." 217 Va. at 832-833, 232 S.E.2d at
813.  Applying White, the court concluded here that respondents
Schwalb and McGlone were not statutory employees because they also
were not actually "'engaged in the handling of cargo'" (Pet. App.
14A), notwithstanding that failure to clean trash coal from the
rollers and belts would halt the loading process (id. at 4A) and that
only the "vagaries of union jurisdiction" -- specifically, union
agreements covering various groups of workers at the terminal --
prohibited Schwalb and McGlone from placing the coal back on the belts
(id. at 4A).  The court applied its narrow approach again when it
ruled that respondent Goode was not an employee under the Act,
although Goode's duties consisted largely of maintenance and repair of
machinery and equipment used exclusively for coal loading in a
terminal where loading apparently is almost entirely automated (see
id. at 46A-48A).

   We believe that the Supreme Court of Virginia erred in reading this
Court's opinions to direct so restrictive a standard for landward
coverage under the LHWCA.  The Virginia court reads the "essential
elements" and "overall process" language in Northeast Marine Terminal
and Pfeiffer in far too cramped a manner (Pet. App. 13A-16A), giving
no effect to the directive in those cases that the Act's coverage be
viewed expansively, and making no accommodation for the impact of
modern technology on cargo handling techniques, for the high degree of
job specialization, or for the extent of unionization within the
longshore industry.  /17/ In addition, the conflict between the state
court's decision and the weight of federal authority in and of itself
offends Congress's goal of applying a "simple, uniform standard of
coverage" to LHWCA claims.  /18/

   3. A restrictive interpretation of landward coverage under the
LHWCA conflicts with the Department of Labor's interpretation of the
Section 2(3) status requirement, which it has consistently applied
since 1972 in administering the LHWCA workers' compensation program.
See Northeast Marine Terminal, 432 U.S. at 272 (Director's view that
"'maritime employment * * * include(s) all physical tasks performed on
the waterfront, and particularly those tasks necessary to transfer
cargo between land and water transportation'").  Review is warranted
because, at the very least, the Department's interpretation is "based
on a permissible construction of the statute";  hence it is entitled
to deference and should be given effect.  Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984);
see, e.g., Morrison-Knudsen Constr. Co. v. Director Office of Workers'
Compensation Programs, 461 U.S. 624, 635 (1983) (consistent practice
of those charged with enforcement and interpretation of LHWCA entitled
to deference);  Zenith Radio Corp. v. United States, 437 U.S. 443, 450
(1978) (great deference due interpretation of officers or agency
administering statuts);  Red Lion Broadcasting Co. v. FCC, 395 U.S.
367, 381 (1969) (construction of statute by those charged with
executing it should be followed "unless there are compelling
indications that it is wrong").

   Further, a restrictive interpretation is also inconsistent with the
view of the Benefits Review Board.  See, e.g., Wuellet v. Scappoose
Sand & Gravel Co., 18 Ben. Rev. Bd. Serv. (MB) 108, 110-111 (1986)
(welder/mechanic injured while repairing conveyor belt at
barge-loading facility is covered under LHWCA since "the repair of
equipment at employer's barge facility is an integral part of the
loading process * * * and therefore is a maritime activity");
Verderane v. Jacksonville Shipyards, Inc., 20 Ben. Rev. Bd. Serv. (MB)
62, 64 (1984) (manager of shipyard's Medical, Safety and Security
Department, whose duties required inspecting certain shipbuilding
equipment and assuring compliance with safety regulations, was covered
employee since he "performed an integral role in assuring" shipyard
workers' safety and his duties "were important to the overall progress
of maritime construction").

   4. The Virginia Supreme Court's interpretation of the LHWCA's
status requirement creates a wide rift between the state court, on the
one hand, and the federal courts, the Department of Labor, and the
BRB, on the other.  While normally a single aberrational decision
would not warrant this Court's review, we agree with petitioners that
the potential impact of the conflict here is substantial, especially
in view of the vagaries of Virginia's venue statute (see 87-1979 Pet.
38-39;  88-127 Pet. 42-43).  The decision invites forum-shopping among
injured workers, including many who reside out-of-state.  Workers with
potentially strong FELA claims wil opt for state court actions, while
those confronted with the choice between inadequate or uncertain state
remedies and LHWCA benefits will sue in federal court.  This result
plainly frustrates Congress's intent that a single uniform standard of
coverage apply to LHWCA claims.  Accordingly, review by this Court is
warranted to resolve this conflict.

                              CONCLUSION

   The petitions for writs of certiorari should be granted and the
cases consolidated for oral argument.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   DAVID L. SHAPIRO

      Deputy Solicitor General

   CHRISTINE DESAN HUSSON

      Assistant to the Solicitor General

   GEORGE R. SALEM

      Solicitor of Labor

   ALLEN H. FELDMAN

      Associate Solicitor

   CHARLES I. HADDEN

      Deputy Associate Solicitor

   CHRISTINE L. OWENS

      Attorney Department of Labor

   JANUARY 1989

   /1/ The contents of the appendices to the petitions in each case
are essentially identical, except for their order.  Therefore, for
ease of reference, we refer only to the Appendix in No. 87-1979, cited
as "Pet. App."

   /2/ N&W employs machinists throughout its rail system, assigning
them to different sites and different jobs on the basis of seniority
(Pet. App. 48A-49A;  88-127 Br. in Opp. 5-6).

   /3/ The Longshoremen's and Harbor Workers' Compensation Act was
retitled by the Longshore and Harbor Workers' Compensation Act
Amendments of 1984, Pub. L. 98-426, Section 27(d)(1), 98 Stat. 1654.

   /4/ The circuit court in Goode, explicitly concluding that the
federal standard should prevail over the state's White standard to the
extent that the standards differed, nevertheless held that the
activities of Goode qualified him for coverage under the White test as
well (Pet. App. 53A).

   /5/ The Court did not consider, as an independent ground on which
it could sustain the lower court's holding, the fact that Goode's
duties as a pier mechanic at times involved work "over the water"
(88-127 Br. in Opp. 6;  88-127 Pet. App. 26A, 33A), and that such work
therefore may have qualified Goode as a covered employee under
Northeast Marine Terminal, 432 U.S. at 273 (post-1972 LHWCA meant to
cover "amphibious workers" or those who spent "at least some of their
time in indisputably longshoring operations and who, without the 1972
Amendments, would be covered for only part of their activity") and
Director, Office of Workers' Compensation Programs v. Perini North
River Assocs., 459 U.S. 297, 311-312 (1983) (workers injured on
navigable waters before 1972 covered under LHWCA without regard to
duties performed;  post-1972 Act covers all previously covered).

   /6/ In this case, because the FELA provides potentially lucrative,
albeit uncertain, relief if the LHWCA does not cover respondents, a
finding of no LHWCA coverage may well inure to their immediate
financial benefit.  The possible advantage presented by a "no LHWCA
coverage" finding to these respondents, however, does not illuminate
the inquiry into the scope of the LHWCA's status requirement.  In
numerous other situations, to preclude coverage of claimants who, like
respondents, perform tasks integral to the loading and unloading
process, would be to consign them to "the paucity of relief under
state compensation laws." Sun Ship, Inc. v. Pennsylvania, 447 U.S.
715, 723 (1980).  That result would be plainly inconsistent with
Congress's intent in its 1972 landward extension of the LHWCA, to
alleviate the problem of inadequate state remedies (ibid.).

   /7/ Prior to the 1972 amendments, a longshoreman or related worker
could bring an unseaworthiness action for injury incurred on board a
ship against the owner of that ship, and could do so even if the
condition causing the injury had been the fault of the longshoreman or
his employer.  See, e.g., Seas Shipping Co. v. Sieracki, 328 U.S. 85
(1946).  The shipowner could then recover the damages paid to the
worker from that worker's employer under theories of express or
implicit warranty of workmanlike performance.  See, e.g., Ryan
Stevedoring Co. v. Pan Atlantic S.S. Corp., 350 U.S. 124 (1956).

   /8/ The Committee reports accompanying the Act posit only a single
"typical example" of the new status requirement, which, though useful
in identifying the outer bounds of coverage, clearly "does not speak
to all situations." Northeast Marine Terminal, 432 U.S. at 266, 267.

   /9/ The enormity of the change in the longshoring industry effected
by containerization alone, and the difficulties that change engenders
when it is necessary to identify "longshoring tasks" have been
documented by this Court.  See NLRB v. International Longshoremen's
Ass'n, 447 U.S. 490 (1980) (concerning appropriate focus of work
preservation agreement in longshoring industry under National Labor
Relations Act).

   /10/ The 1984 amendments and their history are directly relevant to
the instant case involving respondent Goode, who was injured on
February 11, 1985 (88-127 Br. in Opp. 7).

   /11/ The amendments exclude from coverage, inter alia, "individuals
employed exclusively to perform office clerical, secretarial,
security, or data processing work;  * * * (or) employed by a marina
and who are not engaged in construction, replacement, or expansion of
such marina (except for routine maintenance)." 33 U.S.C. 902(3) (Supp.
IV 1986).  Even these carefully limited exclusions "are intended to be
narrowly construed." H.R. Rep. No. 570, 98th Cong., 1st Sess. 5
(1983).

   /12/ In the words of the House Report, workers not protected by
state programs would "remain under the coverage of the Longshore Act,"
to whatever extent they were already covered by the Act's broad
definition of maritime employment.  H.R. Rep. No. 570, 98th Cong., 1st
Sess. 5 (1983) (emphasis added).

   /13/ Ford was a "warehouseman" injured while fastening military
vehicles (which had been unloaded from a vessel days before) to a
railroad flatcar.  He was prohibited from moving cargo either directly
from a vessel to a point of rest in storage or to a railroad car, or
directly from a shoreside point of rest onto a vessel, by union rules
reserving such work for longshoremen.  Pfeiffer, 444 U.S. at 71.
Bryant was a "cotton header" injured while unloading cotton from its
land transport by wagon into a pier warehouse.  His loading activities
were limited by union rules similar to those applied to Ford.  Id. at
71-72.

   /14/ The courts take an identical tack in determining whether
employees are "harbor-workers" engaged in ship repair, shipbuilding,
and shipbreaking.  See, e.g., Newport News Shipbuilding & Drydock Co.
v. Graham, 573 F.2d 167 (4th Cir.), cert. denied, 439 U.S. 979 (1978).

   /15/ See, e.g., Harmon v. Baltimore & O.R.R., 741 F.2d 1398, 1404
(D.C. Cir. 1984) (railroad worker injured while repairing coal loading
equipment is covered employee because his "functions were an integral
part of the process of unloading and loading vessels and were vital to
the movement of maritime cargo");  Prolerized New England Co. v.
Miller, 691 F.2d 45, 47 (1st Cir. 1982) (worker performing maintenance
of ship loading equipment plays "integral part" in loading process);
Sea-Land Services, Inc. v. Director, Office of Workers' Compensation
Programs, 685 F.2d 1121, 1123 (9th Cir. 1982) (LHWCA applies to
mechanic responsible for repairing equipment used to load cargo onto
ships and move it within terminal area because "repair and maintenance
of equipment necessary to loading and unloading ships is integral to
the process and is therefore 'maritime employment'");  Hullinghorst
Indus., Inc. v. Carroll, 650 F.2d 750, 755-756 (5th Cir. 1981)
(carpenter building scaffolding for repairs to loading pier engaged in
"maritime employment," since "the maintenance and repair of tools,
equipment, and facilities used in indisputably maritime activities
lies within the scope of 'maritime employment'" under the Act and such
work is "an integral part * * * an essential and indispensable step in
the (pier) repairs to be effected"), cert. denied, 454 U.S. 1163
(1982);  Garvey Grain Co. v. Director, Office of Workers' Compensation
Programs, 639 F.2d 366, 370 (7th Cir. 1981) (millwright responsible
for maintenance and repair of shiploading equipment is employee under
LHWCA, since these "functions are an integral part of the loading and
unloading process and "are directly connected with and are vital to
the movement of maritime cargo");  Prolerized New England Co. v.
Benefits Review Bd., 637 F.2d 30, 37 (1st Cir. 1980) (coverage extends
to employee whose duties include shortening scrap steel for shipment
because "(v)iewed in terms of this functional analysis * * * (the
claimant's) repair, maintenance and occasional operation of the varied
elements of Prolerized's integrated loading system qualify as
peculiarly maritime services"), cert. denied, 452 U.S. 938 (1981);
Price v. Norfolk & W. Ry., 618 F.2d 1059, 1061 (4th Cir. 1980)
(railroad worker injured while painting "gallery" used for loading
grain into ships falls within LHWCA's ambit because "(t)he gallery,
and its maintenance, are essential to the loading and unloading of all
vessels").

   /16/ The Virginia Supreme Court's continued reliance on
Weyerhaeuser Co. v. Gilmore is misplaced.  The Ninth Circuit has made
it clear that it reads Weyerhaeuser's "realistically significant
relationship" language to mean that "repair and maintenance of
equipment necessary to loading and unloading ships is integral to the
process and is therefore 'maritime employment' covered by the Act."
Sea-Land Services, Inc., 685 F.2d at 1123.  Thus, the Ninth Circuit
applies its Weyerhaeuser formulation in harmony with authority in the
other federal circuits.

   /17/ Thus, for example, but for the union contracts that prohibited
them from placing the trash coal that they had cleared away back on
the conveyor belts, Schwalb and McGlone indubitably would have done
so.  They would then have been involved directly in the actual loading
process.

   /18/ Goode also makes an unpersuasive argument that the state
court's exclusion of him from LHWCA coverage is not at odds with the
overwhelming weight of federal case law because, until the "unloading
process had been completed, the coal was still in land transportation
and was not in the process of being loaded aboard a ship" (88-127 Br.
in Opp. 20-21).  The circuit court specifically found that "the
process of loading the coal into vessels begins" once the rail cars
leave the barney yard (Pet. App. 46A), and Goode has not even
suggested that this finding should be set aside.  Additionally,
although the decision of the Fourth Circuit in Conti v. Norfolk & W.
Ry., 566 F.2d 890 (1977) (brakemen injured at Lambert's Point were not
employees under the LHWCA) supports Goode's argument, we agree with
the observation of the Court of Appeals for the District of Columbia
Circuit that the Fourth Circuit has "moved away from using the
distinction between 'traditional railroading tasks' and 'traditional
maritime tasks' as the sole inquiry, or the dispositive issue in LHWCA
cases." Harmon v. Baltimore & O.R.R., 741 F.2d 1398, 1404 (1984)
(citing Caldwell v. Ogden Sea Transport, Inc., 618 F.2d 1037, 1050
(4th Cir. 1980) (Conti cited only for "integral part" language);
Price, supra (drawing no Conti-like distinction between "traditional
railroading" as opposed to "traditional maritime" tasks), and
Vogelsang v. Western Maryland Ry., 670 F.2d 1347, 1348 (4th Cir. 1982)
(distinguishing Conti)).  This and other courts have, of course, found
railroad workers covered by the LHWCA despite the parallel coverage of
the FELA, see, e.g., Pennsylvania R.R. v. O'Rourke, 344 U.S. 334
(1953);  Harmon, supra;  Vogelsang, supra;  Price, supra, and in such
circumstances LHWCA coverage is exclusive under 33 U.S.C. 905.