No. 95-382
 
In The Supreme Court of the United States

OCTOBER TERM, 1995

TODD SHIPYARDS CORP., ET AL.,
PETITIONERS

V.

DORIS JEAN HOKE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT
IN OPPOSITION

DREW S. DAYS, III
Solicitor General
Department of Justice
Washington, D.C. 20530
(202) 514-2217

THOMAS S. WILLIAMSON, JR.
Solicitor of Labor

ALLEN H. FELDMAN
Associate Solicitor

NATHANIEL I. SPILLER
Counsel for Appellate Litigation

ELIZABETH HOPKINS
Attorney
Department of Labor
Washington, D.C. 20210



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QUESTION PRESENTED

Whether the court of appeals properly held that the
claimant was entitled to benefits under the Long-
shore and Harbor Workers' Compensation Act
(LHWCA), 33 U.S.C. 901 et seq., because there was
not substantial evidence to rebut the presumption
that her husband's death arose out of and in the
course of his employment.

(1)

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TABLE OF CONTENTS

Page

Opinions below . . . . 1
Jurisdiction . . . . 1
Statement . . . . 2
Argument . . . . 6
Conclusion . . . . 11

TABLE OF AUTHORITIES

Cases:

Brown Badgett, Inc. v. Jennings, 842 F.2d 899
(6th Cir. 1988) . . . . 7
Durrah v. Washington Metro. Area Transit
Auth., 760 F.2d 322(D.C. Cir. 1985) . . . . 4
Hartford Accident &Indem. Co. v. Cardillo,
l12 F.2d 11 (D. C. Cir.), cert. denied, 310 U.S.
649 (1940) . . . . 9
Hartford Accident &Indem. Co. v. Hoage,
85 F.2d 417 (D.C. Cir. 1936) . . . . 9
Marra Bros. v. Cardillo, 154 F.2d 357(3d
Cir. 1946) . . . . 8, 10
Maryland Casualty Co. v. Cardillo, 107 F.2d
959 (D.C. Cir. 1939) . . . . 10
O'Leary v. Brown-Pacific-Maxon, Inc., 340
Us. 504 (1951) . . . . 4
U.S. Industries/Federal Sheet Metal, Inc. v.
Director, OWCP, 455 U. S. 608(1982) . . . . 10
Statutes, regulation and rules:
Longshore and Harbor Workers' Compensation
Act, 33 U. S.C. 901et seg.:
2(2), 33 U.S.C. 902(2) . . . . 3, 7, 10
2(3), 33 U.S.C. 902(3) . . . . 2
2(4), 33 U.S.C. 904(4) . . . . 2
3, 33 U.S.C. 903 . . . . 3
9, 33 U.S.C. 909 . . . . 2
20(a), 33 U.S.C. 920(a) . . . . 3, 7, 9, 10
23(a), 33 U.S.C. 923(a) . . . . 7

(III)

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IV

Statutes, regulation and rules-Continued:      

Page

20 C.F.R. 702.339 . . . . 7
Sup. Ct. R. 10.l(a) . . . . 11
9th Cir. R. 36-3 . . . . 11

Miscellaneous:

1 A. Larson, Workmen's Compensation Law
(1955 & Supp. 1995) . . . . 9

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In the Supreme Court of the United States
       
OCTOBER TERM, 1995

No. 95-382

TODD SHIPYARDS CORP., ET AL.,
PETITIONERS

v.

DORIS JEAN HOKE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT
IN OPPOSITION

OPINIONS BELOW

The memorandum order of the court of appeals (Pet.
App. 2-5) is unreported. The decisions of the Benefits
Review Board (Pet. App. 6-14) and the administrative
law judge (Pet. App. 15-23) are also unreported.

JURISDICTION

The judgment of the court of appeals was entered on
April 10, 1995, and a petition for rehearing was denied
on June 9, 1995 (Pet. App. 1). The petition for a writ of
certiorari was "filed on September 7, 1995. The juris-
diction of this Court is invoked under 28 U.S.C.
1254(1).

(1)

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2

STATEMENT

1. Petitioner Todd Shipyards Corp. (Todd) em-
ployed Truby Lee Hoke as a welder for approximately
four years. 1. Pet. App. 3, 17. An hour after punching
out of work on June 2, 1982, Hoke was shot and killed
in Todd's parking lot while fixing a flat tire on his
van. Ibid. Three people were arrested and indicted
for the murder, but two were acquitted and the third
died in custody. Id. at 5, 11 n.2.
2. Doris Jean Hoke, Mr. Hoke's widow, filed a
claim for death benefits for herself and her two minor
children under Section 9 of the LHWCA, 33 U.S.C.
909. The employer contested the claim, arguing that
the fatal injury did not arise out of and in the course
of the decedent's employment and was thus uncom-
pensable. Pet. App. 17, 19.2 At the administrative
hearing, the claimant submitted the police report on
the incident, which listed robbery as the probable
reason for the murder, and also testified that the
police had told her that her husband was murdered
during a robbery. Id. at 5, 18. Todd's investigator
testified that police investigators and prosecutors had

___________________(footnotes)
                 
1 Petitioner Aetna Casualty & Surety Co. was named in the
caption of the administrative law judge's decision as Todd's
insurance carrier.  Pet. App. 15. The ALJ's and Benefits
Review Board's decisions, however, describe Todd, we presume
mistakenly, as a self-insured employer (id. at 6, 16), and Aetna
does not appear in the captions of the Board's or court of
appeals' decisions. Id. at 2,6.
2 Todd stipulated to the fact that the "[d]ecedent suffered a
harm or pain" (Pet, App. 18), and apparently did not contest
that the decedent was an "employee" and that it was an
"employer" subject to the LHWCA. See 33 U.S.C. 902(3) and

(4)

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3

stated that the shooting was about drugs or money.
Id. at 5; see also id. at 18.
Following the hearing, a Department of Labor
administrative law judge (ALJ) issued a decision and
order denying benefits. Pet. App. 16-23. The ALJ
recognized that Section 2(2) of the LHWCA defines a
compensable "injury" as one that "aris[es] out of and
in the course of employment," and "includes an injury
caused by the willful act of a third person directed
against an employee because of his employment." 33
U.S.C. 902(2); see also 33 U.S.C. 903 (coverage). The
ALJ further recognized that the fact of "injury" had
been conceded in this case and that, under 33 U.S.C.
920(a), the claimant was entitled to a statutory
presumption that her husband's injury arose out of
his employment with Todd. Pet. App. 19. The ALJ
concluded, however, that Todd had presented sub-
stantial evidence sufficient to rebut the presumption.
Id. at 19-20. 3.             

__________________(footnotes)

3 In support of that conclusion, the ALJ first determined
that because the shooting occurred one hour after the decedent
punched out of work on an unguarded portion of the
employer's premises, the circumstances exceeded the "reas-
onable margins of time and space necessary to pass to and from
the place of work * * *. Decedent's activities * * * were
personal." Id. at 20. The ALJ thus applied the "going and
coming" rule to the case, concluding that the "decedent was on
his way home at the time he was shot," while rejecting the
claimant's contention that the lot was a "zone of special dan-
ger" that exposed the decedent to an added risk of assault. Id.
at 21.
The "going and coming" rule generally provides that "in-
juries sustained by employees while going to or coming from
work are not compensable." Pet. App. 20. "The three common
exceptions to this rule are when the employee is paid for the
trip from home to work and back, when the employer controls

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4

The ALJ concluded that "the exact motive of the
assailant or assailants in the case at hand remains
unknown, at least, on the instant record," and that "it
may be argued with some merit that the attack took
place during the extended course of [Mr. Hoke's]
employment." Pet. App. 22. Nevertheless, the ALJ
"assumed," consistent with the police report, that
robbery was the motive and concluded that "whatever
the motive," there was "no proof whatsoever that the
attack and resultant death arose out of" the dece-
dent's employment. Ibid.
3. The Benefits Review Board (Board), in a per
curiam decision, affirmed the ALJ's denial of benefits.
Pet. App. 6-12.4 The Board noted that the injury
arguably occurred within the time boundaries of
employment "because decedent. was fixing a flat tire
on his van, and it was reasonable for him to be in the
parking lot one hour after leaving work." Ibid. The

___________________(footnotes)

the journey, or when the employee is on a special errand for
the employer." Ibid. The ALJ found none of those exceptions
to be applicable here. In fact, neither the "going and coming"
rule, nor its exceptions are applicable here since, as the Board
held (Pet. App. 10), Mr. Hoke was killed at work.
The "zone of special danger" principle extends compen-
sation coverage to employees whose "obligations or conditions"
of employment placed them in a "zone of special danger" out of
which the injury arose, even if their activities at the time of
injury did not benefit the employer.  Pet. App. 11, citing
Durrah v. Washington Metro. Area Transit Auth., 760 F.2d
322, 324 (D.C. Cir. 1985); accord, e.g., O'Leary v. Brown -
Pacific-Maxon, Inc., 340 U.S. 504, 507 (1951).
4 The Board first held "as a matter of law" that the ALJ
erred in his application of the "going and coming" rule "be-
cause the evidence is uncontradicted that the parking lot
where decedent was. killed is employer's lot, for the use of its
employ ees." Pet. App. 10.

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5

Board, however, found it unnecessary to resolve the
timing issue in order to determine whether the injury
occurred in the course of employment, because it
affirmed the ALJ's conclusion that the attack occur-
red "for purely personal reasons or circumstances
unrelated to the employment." Id. at 10.5 Thus, the
Board affirmed as "rational and supported by sub-
stantial evidence" the ALJ's determination that the
attack was motivated by robbery (id. at 11), and that
the presumption that the decedent's death was work-
related was therefore rebutted, Id. at 12.
4. The court of appeals reversed. Pet. App. 2-5.
The court emphasized that "[t]o this day no one
knows who killed Mr. Hoke or why." Id. at 5.
Reciting the facts found by the ALJ and affirmed by
the Board, the court noted that although the police
report listed robbery as the probable motive for the
crime, and Todd's investigator testified that the
police and prosecutors thought that the case was
about drugs or money, none of the three persons
arrested for the crime had been convicted. Ibid. The
court concluded that the employer had failed to
provide substantial evidence to rebut the statutory
presumption that the LHWCA covers claims brought
under it, because "Todd Shipyards offered no admis-
sible evidence that Mr. Hoke was not within the usual
and ordinary scope of employment while preparing to
leave the worksite." Ibid. 6.  
              
___________________(footnotes)

5 The Board agreed with the ALJ that the attack did not
take place within a "zone of special danger." Pet. App. 11.
6 In a subsequent order granting the Director's motion for
clarification (and also denying rehearing and awarding ap-
proximately $6,800 in attorneys fees), the court ordered the
case remanded to the ALJ for purposes of awarding compen-
sation. Pet. App. 1.

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6

ARGUMENT

In reversing the denial of LHWCA benefits in this
case, the court of appeals reached the unexceptional
conclusion that the statutory presumption of cover-
age is not rebutted where the record lacks evidence
with respect to who killed an employee who was still
on the employer's premises or why the employee was
killed. Although the decision seems to tie the sub-
stantiality of evidence to unspecified rules on the
admissibility of hearsay evidence, see note 8, infra,
and fails to remand on the issue (left open by the
Board) whether the death occurred within the time
bounds of employment, 7. see note 12, infra, the
decision below does not conflict with any decision of
this Court or of any other court of appeals. Moreover,
because the memorandum opinion is unpublished, it is
without precedential value. Review by this Court is
therefore unwarranted.
1. Petitioners argue (Pet. 12) that the decision of
the court of appeals is in error because the court
"replaced its findings for those of the trial court."
That argument mischaracterizes what the court did.
Its reversal of the Board's denial of benefits turned on
the finding that "no one knows who killed Mr. Hoke or
why." Pet. App. 5 (emphasis added). That finding
originated in the ALJ's opinion. See id. at 17-18, 22
("the exact motive of the assailant or assailants in the
ease at hand remains unknown, at least, on the in-
stant record"); see also id. at 11 n.2 (although "[t]hree
      
___________________(footnotes)

7 In the court of appeals, the Director, Office of Workers'
Compensation Programs, urged a remand in order for the ALJ
to resolve the question whether the decedent's injury was
within the time bounds of his employment and to reweigh all
evidence of job-relatedness, including the time factor.

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7

persons were indicted for decedent's murder[,] * * *
[t]wo of the defendants were found not guilty and the
third died in custody"). Given that finding, the court
of appeals simply determined that the Board's affir-
mance (id. at 11) of the ALJ's conclusion that peti-
tioners "ha[d] presented substantial evidence suffi-
cient to rebut the 20(a) presumption" (id. at 20) is
insupportable as a matter of law. The holding below
thus does not constitute a reweighing of the evidence
or new factfinding. Rather, the court recognized that
the administrative record lacked evidence to over-
come the statutory presumption that Mrs. Hoke's
"claim comes within the provisions of [the LHWCA]"
(33 U.S.C. 920(a))-i.e., evidence that the death did not
arise "out of and in the course of employment" (33
U.S.C. 902(2)).
Petitioners nevertheless assert (Pet. 12) that
"[substantial evidence * * * exists in the record to
support the conclusion that the motive for Mr. Hoke's
murder was robbery," Similarly, the ALJ (Pet. App.
22) "assumed * * * the motive was robbery," based
on the police report, and the Board affirmed that
determination. Id. at 11 (emphasis added). 8. The court

___________________(footnotes)
 
8 Neither the ALJ nor the Board explicitly relied on the
private investigator's testimony that the police and prosecutors
believed "the shooting was about drugs or money." Pet. App.
5; see id. at 18. Although that testimony was not inadmissible
because of technical rules of hearsay, the ALJ was free. to
disregard it as unreliable. Cf. 33 U.S.C. 923(a) (ALJs are not
bound by "technical or formal rules of procedure," but are to
conduct hearings "in such manner as to best ascertain the
rights of the parties"); 20 C.F.R. 702.339 (same); Brown
Badgett, Inc. v. Jennings, 842 F.2d 899, 902 (6th Cir. 1988)
(ALJs must conduct hearings and consider evidence "so as to
promote fundamental fairness"). Thus, the court of appeals'
suggestion (Pet. App. 5) that the private investigator's testi-

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8

of appeals, however, correctly rejected that specula-
tion as insufficient for purposes of rebutting the
presumption that Mr. Hoke's death was work-related.
Id. at 5. As the court stated, "[t]he police report lists
`robbery' as the probable motive" for the shooting,
without providing further analysis.  Ibid. 9. Rather
than establishing that the decedent was shot during a
robbery, the report, at best, simply "offer[s] a field for
such a speculation." Marra Bros. v. Cardillo, 154
F.2d 357,358 (3d Cir. 1946).
Moreover, the report does not help to resolve the
question whether the attack was purely personal in
nature and therefore not compensable. 10. Thus, even if

___________________(footnotes)

mony was "hearsay" and not "admissible" is no more than
harmless error.
9 The police report, which was written shortly after the
shooting and thus constitutes only a preliminary police finding,
lists "gunshot wound" as the "probable cause of death," and in
the next box lists "robbery" as the "reason." R.E. 37. The
only other relevant information in the report is in response to
an instruction stating "(l) RECONSTRUCT THE CIRCUM-
STANCES SURROUNDING THE DEATH (2) DESCRIBE
PHYSICAL EVIDENCE, LOCATION FOUND AND GIVE
DISPOSITION." In that box, the report, in relevant part,
states:

The Decedent was at his vehicle when he was shot and robbed.
Dets obs decedent to be laying in a supine position near his
veh. His wallet was recovered nearby,

Decedent had been shot numerous times.

Ibid. 
10 In affirming an award of LHWCA benefits to a worker
who, shortly after being laid off, was found dead on the ship
where he had worked, the Third Circuit in Marra Bros., 154
F.2d at 359, held that even if the worker had been murdered,
"it would still be necessary for the plaintiffs to prove by
substantial evidence that his death did not arise out of or in the

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9

the police report did constitute substantial evidence
that the motive for the murder was robbery, it would
not establish that the robbery was targeted at the
claimant for reasons stemming from his private life,
and so would not detract from the pivotal finding that
neither the identity of the assailants nor their
motives were established by substantial evidence in
the administrative record upon which the benefits
decision must be based.           
2. Petitioners also argue (Pet. 14), contrary to the
uniform opinion of the ALJ, Board, and court of
appeals, that the claimant never was entitled to the
Section 20(a) presumption of compensability because
she "failed to submit any proof that the fatal assault
was directed against Mr. Hoke because of his employ-
ment." Ibid. (emphasis omitted). No case law, how-
ever, supports the notion that a claimant bears an
            
___________________(footnotes)               

course of his employment." Similarly, the District of Columbia
Circuit awarded benefits under the LHWCA to an employee
stabbed by an unknown assailant. Hartford Accident & Indem.
Co. v. Hoage, 85 F.2d 417, 418 (1936) ("[T]he claimant's injury
arose out of his employment, because the terms and conditions
of his employment placed the claimant in the position wherein
he was assaulted by the assailant and sustained the injuries
from which he suffered."); see also Hartford Accident &
Indem. Co. v. Cardillo, 112 F.2d 11, 14 (D.C. Cir.) (LHWCA
benefits awarded to employee assaulted by co-worker because
"no more is necessary than that the work subject the employee
to a peril which comes from the fact that he is required to be in
the place where it strikes when it does so"), cert. denied, 310
U.S. 649 (1940); 1 A. Larson, Workmen's Compensation Law
11.21(a), at 3-274, 11.11(b), at 3-196 to 3-197 11.32(b), at 3-
320 (1995 & Supp. 1995) (citing assault cases in which benefits
were awarded under both the LHWCA and state schemes
where the animosity or dispute culminating in the workplace
assault was not "imported into the employment from claimant's
domestic or private life").

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10

"initial burden" of proving work-relatedness in order
to benefit from the Section 20(a) presumption of work-
relatedness, see id. at 13 & n.18, even where the
injury stems from "the willful act of a third person."
33 U.S.C. 902(2). 11.
In U.S. Industries/Federal Sheet Metal, Inc. v.
Director, OWCP, 455 U.S. 608, 612-613 & n.5 (1982),
this Court held, not that a claimant must submit proof
that an injury is work-related, but rather that "[a]
prima facie `claim for compensation,' to which the
statutory presumption refers, must at least allege an
injury that arose in the course of employment as well
as out of employment." Id. at 615 (emphasis added).
Likewise, in Marra Bros., the Third Circuit explic-
itly recognized that by virtue of the Section 20(a)
presumption, the employer seeking to avoid the claim
in that case bore the burden of proving that the
employee's "death did not arise out of or in the course
of his employment," even if the employee "came to his
death by foul play." 154 F.2d at 359. Because peti-
tioners do not contend that the claimant in this case
failed to "allege" a work-related injury, there is no
merit to the suggestion (Pet. 14) that the court below
committed legal error warranting review by this
Court when it upheld the ALJ's and the Board's

___________________(footnotes)

11 Indeed, rather than placing an additional requirement on
the claimant, the last clause in Section 2(2) of the LHWCA, 33
U.S.C. 902(2), merely allows the claimant to recover if he is
injured by an assault directed at him because of his employ-
ment, regardless of whether the injury otherwise arose in the
course of his employment. See Maryland Casualty Co. v.
Cardillo, 107 F.2d 959,961 (D.C. Cir. 1939).

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11

rulings that the claimant presented a prima facie case
of entitlement. 12.

CONCLUSION

The petition for a writ of certiorari should be
denied.
Respectfully submitted.

DREW S. DAYS, III
Solicitor General

THOMAS S. WILLIAMSON, JR.
Solicitor of Labor

ALLEN H. FELDMAN
Associate Solicitor

NATHANIEL I. SPILLER
Counsel for Appellate Litigation

ELIZABETH HOPKINS
Attorney

NOVEMBER 1995                   
                    
___________________(footnotes)   

12 As indicated above (see p. 6 & note 7, supra), it arguably
was improper for the court of appeals to order that benefits be
awarded rather than to remand for further proceedings. The.
Board had reserved judgment on whether the ALJ had erred
in concluding that the attack on the decedent took place
outside the reasonable time bounds of his employment, see Pet.
App. 10, 20, and the court of appeals directly addressed only
the factor of causation in reversing the Board's decision.
Petitioners, however, do not raise that issue as one upon which
they seek certiorari, see Pet. i (Questions Presented for Re-
view), and, perhaps because the decision below is unpublished
and therefore has no precedential value, see 9th Cir. R. 36-3, do
not point to any significant impact that is likely to arise from
it. Moreover, even if petitioners had argued the point, it
would not present "special and important reasons" for "an
exercise of this Court's power of supervision" under Rule
10.1(a) of the Rules of this Court.