# Michigan Citizens for an Independent Press v. Thornburgh

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## Concurring Opinion

    Stevens
United States Supreme Court
493 U.S. 38
Michigan Citizens for an Independent Press v. Thornburgh
[39]
PER CURIAM. The judgment of the Court of Appeals for the District of Columbia Circuit is affirmed by an equally divided Court. Justice WHITE took no part in the consideration or decision of this case. Chesapeake and Ohio Ry. Co. v. Schwalb [110SCt381,493US40,107LEd2d278] 110 S.Ct. 381 493 U.S. 40 107 L.Ed.2d 278 CHESAPEAKE AND OHIO RAILWAY COMPANY, Petitioner, v. Nancy J. SCHWALB and William McGlone. NORFOLK & WESTERN RAILWAY COMPANY, Petitioner, v. Robert T. GOODE, Jr.
Nos. 87-1979, 88-127.
Argued Oct. 3, 1989.
Decided Nov. 28, 1989.
Syllabus
Respondents, employees of petitioner railroads, were injured while working at petitioners' Virginia terminals, where coal was being loaded from railway cars to ships on navigable waters. The injuries to respondents in No. 87-1979, who were laborers doing housekeeping and janitorial services, occurred while they were undertaking one of their duties: cleaning spilled coal from loading equipment to prevent fouling. The injury to respondent in No. 88-127, a pier machinist, occurred when he was engaged in his primary duty of repairing coal loading equipment. Each respondent brought suit in state court under the Federal Employers' Liability Act. Petitioners challenged jurisdiction under the Longshore and Harbor Workers' Compensation Act (LHWCA or Act), which, inter alia, provides the exclusive remedy for an employee injured at a relevant situs while "engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker." 33 U.S.C. § 902(3). The trial courts dismissed the suits, concluding that each respondent was an employee covered by the LHWCA. The Supreme Court of Virginia consolidated the appeals of respondents in No. 87-1979 and reversed the dismissal of their cases, stating that the key question was whether an employee's activities had a realistically significant relationship to the loading of cargo on ships, and ruling that the activities of employees performing purely maintenance tasks did not. On the basis of this decision, the court then reversed the dismissal of the suit by respondent repairman in No. 88-127.
Held: Respondents were engaged in maritime employment within the meaning of § 902(3). Pp. 45-48.
(a) Since employment that is maritime within the meaning of § 902(3) includes not only the specified occupations or employees who physically handle cargo, but also land-based activity occurring within the relevant situs if it is an integral or essential part of loading or unloading a vessel, Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320; P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 100 S.Ct. 328, 62 L.Ed.2d 225; Herb's Welding, Inc. v. Gray, 470 U.S. 414, 105 S.Ct. 1421, 84 L.Ed.2d 406, employees who are injured while maintaining or repairing equipment essential to the loading or unloading process are covered by the Act. Someone who repairs or maintains such equipment is just as vital to, and as integral a part of, the loading process as the operator of the equipment, since, when machinery breaks down or becomes clogged because of the lack of cleaning, the loading process stops until the difficulty is cured. It is irrelevant that an employee's contribution to that process is not continuous, that he has other duties not integrally connected with the process, or that repair or maintenance is not always needed. The conclusion that the Act covers essential repair and maintenance is buttressed by the fact that every Federal Court of Appeals to have addressed the issue has reached this result, as has the Department of Labor, the agency charged with administering the Act. Pp. 45-48.
(b) Each of the respondents is covered by the LHWCA. It makes no difference that the particular kinds of repairs being done by respondent in No. 88-127 might be considered traditional railroad work or might be done by railroad employees wherever railroad cars are unloaded, since the determinative consideration is that the ship loading process could not continue unless the equipment respondent worked on was operating properly and loading was, in fact, stopped while he made the repairs. Respondents in No. 87-1979 were also performing duties essential to the overall loading process, in light of testimony that, if coal which spills onto the loading equipment is not periodically removed, the equipment may become clogged and inoperable. Equipment cleaning that is necessary to keep machines operative is a form of maintenance and is only different in degree from repair work. P. 48.
No. 87-1979, 235 Va. 27, 365 S.E.2d 742, and No. 88-127, reversed.
WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, MARSHALL, BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed a concurring opinion, in which MARSHALL and O'CONNOR, JJ., joined, post, p. 49. STEVENS, J., filed an opinion concurring in the judgment, post, p. 50
William T. Prince, Norfolk, Va., for petitioners.
Christine A. Desan-Husson, Brookline, Mass., for the United States, as amicus curiae supporting petitioners, by special leave of Court.
Bruce A. Wilcox for respondents.
Justice WHITE delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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