United States Court of Appeals, Eleventh Circuit.

No. 96-9297. Joseph G. BROOKER, Petitioner,

v. DUROCHER DOCK AND DREDGE, Director, Offi ce of Workers' Compensation Programs, United States Department of Labor, Respondents. Jan. 26, 1998. Appeal from the Benefits Review Bo ard United States Department of Labor Before HATCHETT, Chief Judge, TJOFLAT and COX, Circuit Judges. HATCHETT, Chief Judge: Petitioner Joseph G. Brooker seeks review of final action of the Department of Labor denying his claim for compensation under the Longs hore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-950. We affirm.
I. BACKGROUND Brooker, a welder, suffered injuries during the course of his employment with respondent Durocher Dock & Dredge (Durocher) after falling off an old seawall. At the time of Brooker's injury, Durocher was constructing a new seawall, or bulkhead, for an electric company for the sole purpose of protecting the company's generating plant from the encroaching Savannah River. The new seawall extended twenty feet out from the old seawall. Brooker fell landside, in the area between the old seawall and the power plant. The electric company did not engage in a ny vessel activity at this location. Although Durocher used two barges to hold construction e quipment, Brooker neither labored aboard nor did any work to either barge. On occasion, however , Brooker had to retrieve equipment and materials1 Brooker was not moving to or from either barge at the time of his injury.

2 A "dolphin" is "a cluster of closely driven piles used as a fender for a dock or as a mooring or guide for boats." Webster's New Collegiate Dictionary335 (1979).

3 Brooker also sought, and received, compensation under the workers' compensation laws of Georgia.

4 See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104- 134, Title I, § 101(d), 110 Stat. 1321, 1321-219 (codified at 33 U.S.C.A. § 921 note (West Supp.1997)). We summarily reject Brooker's cont ention that the BRB's failure to review his petition renders his petition unripe. See Donaldson v. Coastal Marine Contracting Corp. , 116 F.3d 1449, 1450 (11th Cir.1997). from the barges. 1 Durocher neither tied the barges to th e seawall nor docked them at an adjacent harbor, the Georgia Ports Authority. Instead, Durocher anchored the barges to "dolphins" in the river. 2 At times, Durocher hired a tugboat service to move the barges. Brooker sought compensation for his injury under the LHWCA. 3 After an evidentiary hearing, an administrative law judge (ALJ) denied Brooker's claim, finding that he failed to meet the "situs" requirement under section 3(a) of th e LHWCA, 33 U.S.C. § 903(a). The ALJ reasoned that the electric company "receives no shipments by water and the seawall is not designed to facilitate either the docking of a vessel, its loading, unloading, construction or repair." Brooker v. Durocher Dock & Dredge, No. 93-LHC-2457, at 1 (Dep't Labor March 24, 1994) (unpublished). Brooker appealed the ALJ's decision to the Bene fits Review Board (BRB). Because Brooker's appeal had been pending for over one year as of September 12, 1996, the BRB deemed it affirmed and final by operation of law. 4
II. ISSUE The only issue before the court is whether th e place of Brooker's injury, the seawall, is a covered "situs" under section 3(a) of the LHWCA, 33 U.S.C. § 903(a).
III. DISCUSSIONWe have jurisdiction to review this final agency action. 33 U.S.C. § 921(c). Although this court reviews the ALJ's interpretation of the LHWCA de novo, it will not set aside the ALJ's findings of fact, including its situs determination, if substantial evidence supports them. See Texports Stevedore Co. v. Winchester, 632 F.2d 504, 515 (5th Cir.1980) ( en banc ). An injured person must satisfy four elements in order to receive compensation under the
LHWCA. Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 45, 110 S.Ct. 381, 384, 107 L.Ed.2d 278 (1989). First, the person must be injured in the course of employment. 33 U.S.C. § 902(2). Next, the employer must have employees engaging in maritime employment. 33 U.S.C. § 902(4). Third, the injured person must have "statu s," that is, be engaged in maritime employment. 33 U.S.C. § 902(3); Director, Office of Workers' Compensation Programs v. Perini N. River Assocs., 459 U.S. 297, 317, 103 S.Ct. 634, 647, 74 L.Ed.2d 465 (1983). Finally, the injury must occur "upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantli ng, or building a vessel)." 33 U.S.C. § 903(a). This last element is known as the "situs" test. E.g., Schwalb, 493 U.S. at 45, 110 S.Ct. at 384. At the hearing before the ALJ, the parties sti pulated to the first two elements. The ALJ did not render any finding as to status, the third element. As to situs, Durocher and its insurer concede that the place of Brooker's injury, the seawall, "adjoi n[s]" a "navigable water[ ] of the United States." 33 U.S.C. § 903(a). Also, Brooker doe s not contend that the seawall is a "wharf, dry dock, terminal, building way, [or] marine railway." 33 U.S.C. § 903(a). The instant dispute, therefore, lies in whether the seawall is a "pier ... or other adjoini ng area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel." 33 U.S.C. § 903(a).
A.Case law interpreting what constitutes a pier under the LHWCA is sparse. Apparently, the Ninth Circuit is the only court of appeals to have expressly interpreted "pier" under the LHWCA.
In Hurston v. Director, Office of Workers Compensation Programs, 989 F.2d 1547, 1547 (9th Cir.1993), the court addressed "whether a structure built on pilings that reaches from land to navigable water is a "pier' which is a covered situs under § 903(a) even though it is not used for a traditional maritime activity such as the loading or repair of vessels." The structure in Hurston, entitled "Elwood Pier No. 1," was used to separate o il into water, gas, and crude oil and store the latter. 989 F.2d at 1548. The parties did not dispute that the structure at least "resembled a pier to the extent that it extended from the beach on pili ngs and touched the water at high tide." 989 F.2d at 1549. The Ninth Circuit concl uded that Elwood Pier No. 1's "appearance and location" made it a pier, and that finding alone satisfied the situs test. 989 F.2d at 1553. After examining the plain language, legislative hi story and context of section 3(a), the court held that the phrase "customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel" does not modify "pier." Hurston, 989 F.2d at 1550. The court found dispositive Congress's failure to insert a comma between the phrases "other adjoining area" and "customarily used." 989 F.2d at 1551. Further, the court reasoned that the maritime activity inquiry is subsumed within the "status" element. Hurston, 989 F.2d at 1553. Both the Supreme Court and our predecessor circuit have delicately avoided the issue of whether a pier has to be customar ily used for vessel activity. In Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 280, 97 S.Ct. 2348, 2365, 53 L.Ed.2d 320 (1977), the Court observed that "it is not at all clear that the phrase "customarily used' was intended to modify more than the immediately preceding phrase "other areas.' " The Court then assumed this modification, and found that a pier used for removing incoming cargo from containers and loading outgoing cargo intocontainers satisfied the situs test because it was part of an "adjoining ... terminal ... customarily used ... in loading (and) unloading." 432 U.S. at 281, 97 S.Ct. at 2366. The Court reasoned that the other pier in the terminal "clearly was used for load ing and unloading vessels," and noted that the cargo container activities on the pier at issue were "i ntegral parts of the overall loading and unloading process." 432 U.S. at 281, 280 n. 42, 97 S.Ct. at 2366, 2365 n. 42. Nearly three and one-half years after Caputo, our predecessor circuit, sitting en banc, also avoided the issue of whether the phrase "customarily used" modifies "pier" and the other five specific sites in section 3(a) of the LHWCA, 33 U.S.C. § 903(a). Texports Stevedore Co. v. Winchester, 632 F.2d 504, 512 n. 11 (5th Cir.1980) ( en banc ), cert. denied, 452 U.S. 905, 101 S.Ct. 3031, 69 L.Ed.2d 406 (1981). The Winchester court held that a facility used to store and maintain vessel-loading equipment which was located five bl ocks inland constituted an "other adjoining area customarily used" in vessel activity and, therefor e, satisfied the situs test. 632 F.2d at 506-08, 516-
17. Brooker urges us to follow Hurston and find that a seawall is th e functional equivalent of a pier since pilings form the foundation of both stru ctures. Even if this court were to adopt Hurston

' s pier test as dispositive of situs, however, the seaw all in this case is not a pier. While the instant seawall, like a typical pier, adjoins navigable waters and rests on vertical pilings anchored in the river bed, it certainly does not "appear[ ] to be a pier." Hurston, 989 F.2d at 1549. As the Ninth Circuit stated in Hurston, whether a facility is a "pier" is a pure factual question in the absence of a definition in the LHWCA. Hurston, 989 F.2d at 1551, 1553. The most persuasive evidence on this issue is, naturally, testimony from an eye-w itness who knows a pier when he or she sees one. Here, the supervisor of the seawall constructi on project with fourteen years of experience5 We note that this witness worked for the electric company, not Durocher. unequivocally answered "no," when as ked whether the facility was a pier. 5 Photographs of the place of injury corroborate this testimony. Further, th e only other witness, Brooker himself, repeatedly referred to the structure as a wall. Therefore, substantial evidence supports the ALJ's implicit rejection of Brooker's pier argument. We, like the Supreme Court in Caputo and the former Fifth Circuit in Winchester, need not reach the issue of whether a pier must be "customarily used" for vessel activityto meet the situs test in section 3(a) of the LHWCA. Rather, we conclude that the ALJ did not err in failing to find the seawall to be a pier, with or without the "customarily used" modification.
B. Substantial evidence also supports the ALJ's finding that the seawall was not an "other adjoining area customarily used by an employe r in loading, unloading, repairing, dismantling, or building a vessel." 33 U.S.C. § 903(a). Brooker ar gues that the seawall was a covered situs based on its proximity to vessel activity in the neighbor ing Georgia Ports Authority. Durocher and its insurer correctly point out, however, that Brooker's argument fails under the plain meaning of section 3(a). Under the LHWCA, it is irrelevant whether the Georgia Ports Authority or any other non-employer entity engages in vessel activity. See 33 U.S.C. § 903(a) (requiring the alleged situs to be "customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel") (emphasis added). It is equally irre levant whether the allege d situs neighbors an entity engaged in vessel activity; it need onl y "adjoin" a navigable waterway. See 33 U.S.C. § 903(a) (requiring that the injury occur "upon" a navigable waterway, which includes certain "adjoining" areas); Caputo, 432 U.S. at 281, 97 S.Ct. at 2366 (finding a pier to be a covered situs because,among other reasons, "[t]he entire terminal facility adjoined the water"). The evidence in this case shows that neither Brooker's employer, Durocher, nor the premises owner, the electric company, used the seawall to load, unload, repair, dismantle, or build a vessel. The construction supervisor testified that neither the old nor new seawall was designed to dock a vessel. As such, Durocher tethered its barges to dolphins rather than the s eawall. Any loading and unloading on the barges was accomplished without reso rt to the seawall. Therefore, while the seawall adjoined a navigable waterway, it was not a place of traditional maritime activity at the time of Brooker's injury.
IV. CONCLUSION For the foregoing reasons, we affirm the Department of Labor's determination that petitioner Brooker is not entitled to compensation under the LHWCA.
AFFIRMED.