IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30488

MICHAEL ALEXANDER, 

 Plaintiff - Appellant

v.

EXPRESS ENERGY SERVICES OPERATING, L.P., 

 Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

Before DAVIS, JONES, and CLEMENT, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Plaintiff-Appellant Michael Alexander appeals from the district court’s 

order granting Defendant-Appellee Express Energy Services Operating, L.P.’s 

(“Express”) motion for summary judgment on seaman status, concluding that 

Alexander is not a seaman and dismissing Alexander’s claims against Express 

with prejudice. We affirm.

I.

We begin with the controlling law. We review the district court’s 

summary judgment ruling de novo, applying the same Fed. R. Civ. P. 56 

United States Court of Appeals

Fifth Circuit

FILED

May 7, 2015

Lyle W. Cayce

Clerk

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No. 14-30488

standards as the district court.1 Summary judgment is appropriate “if the 

movant shows that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.”2 “The court is to consider 

evidence in the record in the light most favorable to the non-moving party and 

draw all reasonable inferences in favor of that party.”3

A party asserting that a fact cannot be or is genuinely 

disputed must support the assertion by:

(A) citing to particular parts of materials in the 

record, including depositions, documents, 

electronically stored information, affidavits or 

declarations, stipulations (including those made 

for purposes of the motion only), admissions, 

interrogatory answers, or other materials; or

(B) showing that the materials cited do not 

establish the absence or presence of a genuine 

dispute, or that an adverse party cannot produce 

admissible evidence to support the fact.4

“Summary judgment is appropriate if the non-movant fails to make a showing 

sufficient to establish the existence of an element essential to that party’s 

case,” and we may affirm “on any ground supported by the record, even if it is 

different from that relied on by the district court.”5

“To maintain a cause of action under the Jones Act, the plaintiff must be 

a seaman. Land-based workers are not seamen.”6 To qualify as a seaman, a 

plaintiff must prove that he meets both prongs of the test set out by the 

1 Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 275 (5th 

Cir. 2014). 2 Fed. R. Civ. P. 56(a).

3 Bluebonnet, 754 F.3d at 276 (citation omitted).

4 Fed. R. Civ. P. 56(c)(1). 5 Bluebonnet, 754 F.3d at 276 (citations and internal quotation marks omitted).

6 Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 346 (5th Cir. 1999) (citing Harbor 

Tug and Barge Co. v. Papai, 520 U.S. 548 (1997)).

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Supreme Court in Chandris, Inc. v. Latsis, 515 U.S. 347 (1995). First, he must 

prove that his duties “contribut[e] to the function of the vessel or to the 

accomplishment of its mission,” which does not necessarily require that the 

plaintiff “aid in navigation or contribute to the transportation of the vessel,”

but does require that he “be doing the ship’s work.”7

Second, and most important for our purposes here, a 

seaman must have a connection to a vessel in 

navigation (or to an identifiable group of such vessels) 

that is substantial in terms of both its duration and its

nature. The fundamental purpose of this substantial 

connection requirement is to give full effect to the 

remedial scheme created by Congress and to separate 

the sea-based maritime employees who are entitled to 

Jones Act protection from those land-based workers 

who have only a transitory or sporadic connection to a 

vessel in navigation, and therefore whose employment 

does not regularly expose them to the perils of the sea. 

See 1B A. Jenner, Benedict on Admiralty § 11a, pp. 2–

10.1 to 2–11 (7th ed. 1994) (“If it can be shown that the 

employee performed a significant part of his work on 

board the vessel on which he was injured, with at 

least some degree of regularity and continuity, the test 

for seaman status will be satisfied” (footnote omitted)). 

This requirement therefore determines which 

maritime employees in Wilander’s broad category of 

persons eligible for seaman status because they are 

“doing the ship’s work,” [McDermott Int’l, Inc. v. 

Wilander, 498 U.S. 337, 355 (1991)], are in fact 

entitled to the benefits conferred upon seamen by the 

Jones Act because they have the requisite 

employment-related connection to a vessel in 

navigation.8

The Court emphasized that “[a] maritime worker who spends only a 

small fraction of his working time on board a vessel is fundamentally land 

7 515 U.S. at 357 (citations and internal quotation marks removed).

8 Id. at 368-69 (emphasis added).

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based and therefore not a member of the vessel’s crew, regardless of what his 

duties are.”9 The Court adopted the Fifth Circuit’s rule of thumb for ordinary 

cases that “[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,” though courts may vary the rule depending on the facts of a particular 

case.10 The Court explained that although the inquiry is fact-specific, “where 

undisputed facts reveal that a maritime worker has a clearly inadequate 

temporal connection to vessels in navigation, the court may take the question 

from the jury by granting summary judgment or a directed verdict.”11

Even before Chandris was decided, the Fifth Circuit focused on the 

amount of the work the plaintiff actually performed on a vessel,12 and following 

Chandris’s adoption of that rule, we must continue to apply it. We have 

referred to “the Supreme Court’s teaching in Chandris that a seaman’s 

connection with a vessel includes a temporal requirement, i.e. that the 

worker spend a substantial part of his work time aboard the vessel.”13

Our pre-Chandris en banc decision in Barrett provides a useful example

of how we have applied this rule. There, a worker who was a member of a 

contract maintenance crew working on production platforms in the Gulf of 

Mexico was injured. Because many of the platforms were too small to 

accommodate the maintenance crew and their equipment, a jack-up barge was 

positioned alongside the small platforms to provide additional work space and 

9 Id. at 371 (emphasis added).

10 Id.

11 Id. (citations omitted).

12 See Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1073-74 (5th Cir. 1986) (en banc) 

(noting that a plaintiff may be a seaman if he was either permanently assigned to a vessel or 

“performed a significant part of his work aboard the vessel with at least some degree of 

regularity and continuity” (discussing Barrios v. Engine & Gas Compressor Servs., Inc., 669 

F.2d 350, 353 (5th Cir. 1982); Holland v. Allied Structural Steel Co., 539 F.2d 476, 484 (5th 

Cir. 1976))). 13 Nunez v. B&B Dredging, Inc., 288 F.3d 271, 276 (5th Cir. 2002) (emphasis added).

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hold some of the equipment. The plaintiff, Barrett, performed the vast majority 

of his work on the platform and only did incidental work on the adjacent vessel. 

Relying on the seminal Robison case, we held:

Robison requires evidence that the worker was 

“assigned permanently to . . . or performed a 

substantial portion of his work on the vessel.” This test 

is, of course, disjunctive, and permits a worker to be a 

crew member if he does substantial work on the vessel 

even though his assignment to it is not “permanent.”14

We made it clear that Barrett’s work time on the vessel was inadequate to meet 

the seaman test: “Because he did not perform a substantial portion of his work 

aboard a vessel or fleet of vessels, he failed to establish that he was a member 

of the crew of a vessel.”15

In short, to prove that he is a seaman, Alexander must prove both that 

(1) he contributed to the function of a vessel or to the accomplishment of its 

mission, and (2) he was assigned permanently to the vessel or spent a 

substantial part of his total work time—30% —aboard the vessel or an 

identifiable fleet of vessels. If he has failed to demonstrate at least a genuine 

dispute as to a material fact with respect to either prong, Express is entitled 

to summary judgment. With these standards in mind, we turn to the facts of 

the case.

II.

Alexander was employed as a lead hand/operator in Express’s plug and 

abandonment (“P&A”) department, which specializes in plugging

decommissioned oil wells on various platforms off the coast of Louisiana for 

Express’s customers. At his deposition, he described his duties as ensuring that

14 781 F.2d at 1073 (quoting Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir. 1959);

and Davis v. Hill Eng’g, Inc., 549 F.2d 314, 326 (5th Cir. 1977)).

15 Id. at 1076.

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everything was set up and running properly on the deck of the platform and 

ensuring that the plugging operation was successful. He testified that the 

plugging operation essentially required the P&A team to check the pressure of 

the well with various gauges and valves to make sure it was ready to be killed. 

After that, the team would remove the bridge plug from the well, place a nipple 

in the well, and pump fluids down the well to kill it. Once the well was under 

control, the team would clean it and pump cement into it, then cut and remove 

the pipe.

On August 11, 2011, Alexander was injured while working on a P&A 

project on a platform owned by Apache Corporation which had four wells on it. 

At the time of the accident, a liftboat owned by Aries Marine Corporation 

(“Aries”), the L/B RAM X (“RAM X”), was positioned next to the Apache 

platform, with a catwalk connecting the vessel to the platform. The record 

shows that the permanent crane, which was operated by an Aries employee for 

the benefit of the P&A crew, was located on the liftboat, while other equipment, 

including wireline equipment, was located on the platform. Alexander testified 

that he and the P&A crew had set up the equipment on the platform before 

work began, and he was working on the platform. Alexander was injured when 

a wireline from the crane snapped, dropping a bridge plug/tool combination 

which had been suspended a foot above the deck, which then rolled onto his 

foot.

Alexander filed this action under the Jones Act, 46 U.S.C. § 30104 et seq.,

against Express and other defendants. Express filed a motion for summary 

judgment on seaman status, arguing that Alexander was a platform-based 

worker who failed to satisfy either prong of the Chandris seaman status test. 

With respect to the first prong, Express argued that Alexander did not 

contribute to the function of a vessel or the accomplishment of its mission 

because he worked on the wells on non-vessel fixed platforms. With respect to 

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the second prong, Express argued that even though Alexander had shown that 

approximately 35% of his P&A jobs involved the use of an adjacent liftboat, he 

had failed to demonstrate that he spent at least 30% of his total work time on 

the adjacent liftboat.

In response, Alexander argued as to the first prong that he did in fact 

contribute to the function of the Aries liftboat. As to the second prong, 

Alexander erroneously stated that Express conceded that he spent 35% of his 

total job on Aries liftboats; Express only stated that 35% of his jobs involved 

an adjacent liftboat. Alexander then argued that, under Roberts v. Cardinal 

Services, Inc., 266 F.3d 368 (5th Cir. 2001), and Johnson v. TETRA Applied 

Technologies, L.L.C., No. CIV.A. 11-1992, 2012 WL 3253184 (E.D. La. Aug. 7, 

2012), which applied Roberts, he was allowed to count toward the Chandris

temporal requirement all of his time on jobs that used an adjacent vessel (here,

at least 35%), without regard to how much time he himself spent on the vessel.

Significantly, Alexander never offered any evidence that he spent 30% or more 

of his work time on a vessel; rather, his argument on this prong depends 

entirely on his interpretation of Roberts.

The district court granted Express’s motion for summary judgment on 

the first prong, concluding that Alexander’s duties in this case were similar to 

those of the plaintiff’in Hufnagel, which this court held did not contribute to 

the function of a vessel because those duties related to the fixed platform, not 

the vessel.16 In a footnote at the end of the opinion, the district court opined 

that Alexander had also failed to meet the second prong.

As noted above, we may affirm the district court “on any ground 

supported by the record, even if it is different from that relied on by the district 

16 See Hufnagel, 182 F.3d at 347.

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court.”17 Pretermitting whether Alexander’s duties contributed to the function 

of a vessel or the accomplishment of its mission, we conclude that Alexander 

has failed to demonstrate that he is a seaman under Chandris’s temporal 

connection prong. Chandris makes it clear that a seaman must spend a 

substantial amount of time, ordinarily 30%, actually working on a vessel.

Alexander argues that Roberts means a plaintiff may count the amount of time 

he spent working on a platform toward that requirement if a vessel was merely 

adjacent to the platform and assisting with the platform work.18 We cannot 

accept Alexander’s argument because we are bound to follow clear and 

controlling Supreme Court precedent.

The undisputed summary judgment evidence shows that approximately 

65% of Alexander’s jobs involved a fixed platform only, without the help of an 

adjacent vessel. Even on the other jobs involving a vessel adjacent to the 

platform, his work occurred mostly on the platform. It is not sufficient under 

Chandris (or indeed under Barrett) that Alexander was merely near a vessel

on more than 30% of his jobs or that he performed some incidental work on a 

vessel on those jobs; to be a seaman, he must show that he actually worked on 

a vessel at least 30% of the time. Alexander has failed to produce sufficient

evidence to prove that point, which is an essential element of seaman status.

We conclude that Alexander has failed to carry his burden of showing

that he is a seaman. We therefore affirm the district court’s order granting 

17 Bluebonnet, 754 F.3d at 276 (citations and internal quotation marks omitted).

18 The district court in Johnson also interpreted Roberts that way. See 2012 WL 

3253184, at *4 (“However, the court counted the time plaintiff spent working alongside the 

employer’s lift boats, which amounted to 24.88% of his time, separately from the time plaintiff 

spent working alongside lift boats owned by third parties, which amounted to 13.54%. 

Because plaintiff could not show that at least 30% of his time was spent in the service of a 

vessel or an identifiable fleet of vessels under common ownership or control, the court found 

that he could not prove seaman’s status.” (citations omitted)).

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Express’s motion for summary judgment and dismissing Alexander’s claims 

against Express with prejudice.

AFFIRMED.

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