Hetzel v. Bethlehem Steel Corp.

United States Court of Appeals,

Fifth Circuit.

No. 94-20377.

James G. HETZEL, Plaintiff-Appellant,

v.

BETHLEHEM STEEL CORPORATION, Defendant-Appellee.

April 24, 1995.

Appeal from the United States District Court for the Southern
District of Texas.

Before WISDOM, DUHÉ and BENAVIDES, Circuit Judges.

DUHÉ, Circuit Judge:

Appellant James G. Hetzel (Hetzel) appeals from the district

court's grant of summary judgment finding that Appellant's claims

under the Texas Deceptive Trade Practices Act are preempted by the

Longshore and Harbor Workers' Compensation Act (LHWCA or Act). We

affirm.

I. FACTS

Appellant sued in state court seeking recovery on various

grounds from his employer, Bethlehem Steel Corporation (Bethlehem

or Appellee) and from the ship owner, Marine Transport Lines, Inc.

(MTL), for personal injuries allegedly sustained while repairing

the M/V Federal Lakes at Bethlehem's Port Arthur, Texas shipyard.

Appellant also sought and obtained benefits under the LHWCA.

Appellant's suit was removed by MTL under the court's

diversity jurisdiction. MTL and Bethlehem separately moved for

summary judgment. The district court granted both motions, and

entered final judgment for the Defendants. On motion for

1
reconsideration, the district court affirmed its rulings on

Appellant's negligence and strict liability claims, but reinstated

Appellant's claim against Bethlehem under the Texas Deceptive Trade

Practices-Consumer Protection Act (DTPA).1 The court remanded the

DTPA claim to state court, apparently under the mistaken impression

that its jurisdiction arose under 28 U.S.C. § 1331 (admiralty and

maritime claims) rather than 28 U.S.C. § 1332 (diversity of

citizenship).

Upon motions for reconsideration filed by Appellant and

Appellee, the district court affirmed its dismissal of MTL. The

court also found that its remand of the DTPA claim was improper,

but concluded that it was without jurisdiction to vacate its order

of remand. Bethlehem then removed the DTPA claim, and the matter

was assigned a new cause number.

Appellee mistakenly filed a motion for summary judgment under

the previous cause number. Appellant moved for extension of time

(also under the old cause number) to respond until March 14, 1994.

The court, in effect granted the motion for extension of time by

entering an order allowing Appellee to refile its motion under the

correct cause number by March 7, 1994, and further allowing

Appellee to file its response by March 14, 1994. Appellee did not

refile its motion for summary judgment until March 8th.

According to Appellant, he assumed that Appellee's motion was

not timely filed, and therefore that he would not be required to

respond unless notified by the court. Nonetheless, on March 15th

1
Tex.Bus. & Com.Code Ann. § 17.41 et seq. (West 1987).

2
Appellant again moved for enlargement of time to respond, and

requested a new filing date of April 3rd. The district court

denied the motion citing potential conflict with its April 6th

calendar on which the matter had been set. The court further

stated that Appellant had seven weeks to prepare its response to

the motion,2 and had, in fact, selected the March 14th date on

which its response had been due.

The court granted Appellee's motion for summary judgment on

alternative grounds. First, in accordance with the local rule, the

court granted the motion as unopposed.3 Second, the court

addressed the merits of Appellee's motion, and granted summary

judgment on the basis that Appellant's DTPA claim was preempted by

the LHWCA. Appellant timely appealed, and we have jurisdiction

pursuant to 28 U.S.C. § 1291.

2
The court asserted that Appellant had been put on notice of
the motion when the Appellee mistakenly filed it under the prior
cause number.
3
We have previously disapproved of granting summary judgment
on this basis. See, e.g., Hibernia Nat. Bank v. Administracion
Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.1985),

A motion for summary judgment cannot be granted simply
because there is no opposition, even if failure to
oppose violated a local rule. The movant has the
burden of establishing the absence of a genuine issue
of material fact and, unless he has done so, the court
may not grant the motion, regardless of whether any
response was filed. Therefore, if the district judge's
decision was to grant summary judgment solely because
of a default, such decision constituted reversible
error.

(citations omitted). However, because the district court
addressed the merits of the motion as an alternative
holding, we need not reverse.

3
 Two issues are before us on appeal. First, Appellant contends

that his DTPA claim is not preempted by the LHWCA. Second,

Appellant contends that the district court abused its discretion by

1) accepting Appellee's motion after the filing deadline; and 2)

denying his motion for enlargement of time. We will address these

issues seriatim.

II. THE LHWCA

A. Standard of Review

Summary judgment is appropriate if the record discloses "that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law."

Fed.R.Civ.P. 56(c). In reviewing the summary judgment, we apply

the same standard of review as did the district court. Waltman v.

International Paper Co., 875 F.2d 468, 474 (5th Cir.1989); Moore

v. Mississippi Valley State Univ., 871 F.2d 545, 548 (5th

Cir.1989). However, when this Court finds "an adequate,

independent basis" for the imposition of summary judgment, the

district court's judgment may be affirmed "regardless of the

correctness of the district court's rulings." Schuster v. Martin,

861 F.2d 1369, 1371 (5th Cir.1988); accord Degan v. Ford Motor

Co., 869 F.2d 889, 892 (5th Cir.1989).

B. Choice of Law

Despite the fact that the district court entertained this

claim under its diversity jurisdiction, we apply federal law to

determine questions of preemption. See Grantham v. Avondale

Indus., Inc., 964 F.2d 471, 473-74 (5th Cir.1992).

4
 The Erie doctrine does not apply ... in matters governed by
the federal Constitution or by acts of Congress. It is beyond
cavil that we are not bound by a state court's interpretation
of federal law regardless of whether our jurisdiction is based
on diversity of citizenship or a federal question.... The
issue of whether the state immunity rule is preempted by the
LHWCA is ... an issue of federal law.

(citations omitted).

C. The Preemption Doctrine

The Supreme Court has stated the parameters of the so-called

"preemption" doctrine. Fidelity Federal Sav. & Loan Ass'n v. De La

Cuesta, 458 U.S. 141, 152-53, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664

(1982).

The pre-emption doctrine, which has its roots in the
Supremacy Clause, U.S. Const., Art. VI, cl. 2, requires us to
examine congressional intent. Pre-emption may be either
express or implied, and "is compelled whether Congress'
command is explicitly stated in the statute's language or
implicitly contained in its structure and purpose." Absent
explicit pre-emptive language, Congress' intent to supersede
state law altogether may be inferred because "[t]he scheme of
federal regulation may be so pervasive as to make reasonable
the inference that Congress left no room for the States to
supplement it," because "the Act of Congress may touch a field
in which the federal interest is so dominant that the federal
system will be assumed to preclude enforcement of state laws
on the same subject," or because "the object sought to be
obtained by federal law and the character of obligations
imposed by it may reveal the same purpose."

Even if Congress has not completely displaced state
regulation in a specific area, state law is nullified to the
extent that it actually conflicts with federal law. Such a
conflict arises when "compliance with both federal and state
regulation is a physical impossibility, or when state law
"stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress."

Thus, state law can be preempted in three ways: 1) Where Congress

expresses an explicit intent to preempt state law; 2) Where the

sheer comprehensiveness of the federal scheme implies congressional

intent to preempt state regulation in the area; 3) Where the state

5
law either directly conflicts with the federal law or interferes

with the regulatory program established by Congress.

As discussed more fully below, although the LHWCA's

exclusivity language would seem to express congressional intent to

preempt state law, the Supreme Court has found that total

preemption was not intended. Therefore, we are left to determine

whether the DTPA is preempted under the third prong of the Fidelity

Federal test.

D. The Muddy Waters of LHWCA Preemption

Our starting point must be the language of the LHWCA. Under

the terms of the Act,

The liability of an employer prescribed in section 904 of
this title shall be exclusive and in place of all other
liability of such employer to the employee, his legal
representative, husband or wife, parents, dependents, next of
kin, and anyone otherwise entitled to recover damages from
such employer at law or in admiralty on account of such injury
or death, except that if an employer fails to secure payment
of compensation as required by this chapter, an injured
employee, or his legal representative in case death results
from the injury, may elect to claim compensation under the
chapter, or to maintain an action at law or in admiralty for
damages on account of such injury or death.

33 U.S.C. § 905(a). The preemptive effect of the LHWCA has been

addressed in other contexts.4 Of concern to our present inquiry

4
See e.g. Texas Employers' Ins. Ass'n v. Jackson, 820 F.2d
1406 (5th Cir.1987) (LHWCA preempted state law causes of action
arising from handling of compensation payments under the act),
opinion vacated and rev'd on other grounds, 862 F.2d 491 (5th
Cir.1988) (en banc); LeSassier v. Chevron USA, Inc., 776 F.2d
506, 508 (5th Cir.1985) (LHWCA's retaliatory discharge provision
preempted state law tort suit for retaliatory discharge); But
cf. Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 722, 100 S.Ct.
2432, 2437-38, 65 L.Ed.2d 458 (1980) ("The language of the 1972
amendments cannot fairly be understood as preempting state
workers' remedies from the field of the LHWCA...."); Jones &
Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 528-33, 103 S.Ct.

6
are those cases which created, and then purported to delineate, the

so-called "twilight zone" of concurrent jurisdiction between the

LHWCA and state law workmen's compensation statutes. Because the

LHWCA only partially preempts state law, we must briefly explore

the history of the Act to determine congressional intent in this

context.5 We begin our inquiry with Southern Pacific Co. v.

Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917).

In Jensen, the Supreme Court found that the State of New York

could not constitutionally provide worker's compensation to a

worker killed on a gangplank between ship and shore. Even though

the decedent was not a seaman, the Court determined that he was

acting as a stevedore, over navigable waters, at the time of the

accident and therefore determined that his claim fell "clearly

within the admiralty jurisdiction." Id. at 217, 37 S.Ct. at 529.

In cases that followed, the Supreme Court made clear that its

concern for uniform maritime law ended at the water's edge, and

2541, 2548-50, 76 L.Ed.2d 768 (1983) (Stevedore may maintain tort
action against employer if employer is also the owner of the
vessel on which he is injured.), Guilles v. Sea-Land Service,
Inc., 12 F.3d 381, 387 (2nd Cir.1993) ("[W]e hold that those
maritime workers covered by the LHWCA have under § 905(b) a cause
of action for negligence against vessel owners even if the vessel
is owned by the worker's employer."); Louviere v. Shell Oil Co.,
509 F.2d 278, 284 (5th Cir.1975) ("[E]mployer who pays
compensation without an award is not barred by Section 33 from
pursuing whatever nonstatutory rights he may have against third
party wrongdoers."), cert. denied, 423 U.S. 1078, 96 S.Ct. 867,
47 L.Ed.2d 90 (1976).
5
For a more detailed discussion of the LHWCA's history, see
Director, Office of Workers' Compensation Programs v. Perini
North River Assoc., 459 U.S. 297, 103 S.Ct. 634, 74 L.Ed.2d 465
(1983); Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935,
943-53 (3rd Cir.1990).

7
therefore found that state worker's compensation schemes covered

injuries to worker's injured on land, no matter how close the link

to maritime commerce.6

The Court next created the so-called "maritime but local"

exception that allowed certain workers, injured on navigable

waters, to receive state worker's compensation benefits.

If the employment of an injured worker was determined to have
no "direct relation" to navigation or commerce, and "the
application of local law [would not] materially affect" the
uniformity of maritime law, then the employment would be
characterized as "maritime but local," and the State could
provide a compensation remedy. If the employment could not be
characterized as "maritime but local," then the injured
employee would be left without a compensation remedy.

Perini North River Assoc., 459 U.S. at 306, 103 S.Ct. at 641. In

an effort to remedy this judicially created disparity between

workers, Congress passed the LHWCA.7 The confusion, however, was

6
See State Industrial Comm'n v. Nordenholt Corp., 259 U.S.
263, 272-73, 42 S.Ct. 473, 474, 66 L.Ed. 933 (1922),

When an employee working on board a vessel in navigable
waters sustains personal injuries there, and seeks
damages from the employer, the applicable legal
principles are very different from those which would
control if he had been injured on land while unloading
the vessel. In the former situation the liability of
employer must be determined under the maritime law; in
the latter, no general maritime rule prescribes the
liability, and the local law has always been applied.
7
Perini North River Assoc., 459 U.S. at 306-07, 103 S.Ct. at
643-44,

After several unsuccessful attempts to permit
state compensation remedies to apply to injured
maritime workers whose employment was not local,
Congress passed the LHWCA in 1927. Under the original
statutory scheme, a worker had to satisfy five primary
conditions in order to be covered under the Act.

....

8
not so easily remedied.

In 1942, the Supreme Court recognized that its case law had

not been successful in delineating the application of the LHWCA,

and made another effort to clarify the Act's jurisdiction.8 The

Court recognized that it had left both employers9 and injured

employees10 on "[t]he horns of [a] jurisdictional dilemma." Davis

Federal compensation under the LHWCA did not
initially extend to all maritime employees injured on
the navigable waters in the course of their
employment.... § 3(a) of the 1927 Act permitted
federal compensation only if compensation "may not
validly be provided by State law." This language was
interpreted to exclude from LHWCA coverage those
employees whose employment was "maritime but local."
8
See Davis v. Dept. of Labor & Indus., 317 U.S. 249, 253, 63
S.Ct. 225, 227, 87 L.Ed. 246 (1942).
9
See id. at 255, 63 S.Ct. at 228,

The employer's contribution to a state insurance fund
may therefore wholly fail to protect him against the
liabilities for which it was specifically planned. If
this very case is affirmed for example, the employer
will not only lose the benefit of the state insurance
to which he has been compelled to contribute and by
which he has thought himself secured against loss for
accidents to his employees; he must also, by virtue of
the conclusion that the employee was subject to the
federal act at the time of the accident, become liable
for substantial additional payments. He will also be
subject to fine and imprisonment for the misdemeanor of
having failed, as is apparently the case, to secure
payment for the employee under the federal act.
10
See id. at 254, 63 S.Ct. at 228,

[E]mployees are asked to determine with certainty
before bringing their actions that factual question
over which courts regularly divide among themselves and
within their own membership. As penalty for their
error, the injured individual may not only suffer
serious financial loss through the delay and expense of
litigation, but discover that his claim has been barred

9
317 U.S. at 255, 63 S.Ct. at 228. As the Supreme Court stated

subsequently,

We upheld the application of the state compensation law in
Davis not because the employee was engaged in "maritime but
local" employment, but because we viewed the case as in a
"twilight zone" of concurrent jurisdiction where LHWCA
coverage was available and where the applicability of state
law was difficult to determine. We held that doubt concerning
the applicability of state compensation Acts was to be
resolved in favor of the constitutionality of the state
remedy.

Perini North River Assoc., 459 U.S. at 309, 103 S.Ct. at 643.

The full extent of the confusion in this "twilight zone" of

jurisdiction is exemplified by the Supreme Court's holding in Hahn

v. Ross Island Sand & Gravel Co.11 Therein, the Court found that

an injured employer, in the so-called "twilight zone" of concurrent

jurisdiction, could bring a state law negligence suit against his

employer. Id. at 273, 79 S.Ct. at 267.

As to cases within this "twilight zone," Davis, in effect,
gave an injured waterfront employee an election to recover
compensation under either the Longshoremen's Act or the
Workmen's Compensation Law of the State in which the injury
occurred.... [t]he Longshoremen's Act did not bar petitioner's
claim under state law. But since his employer had elected to
reject them, the automatic compensation provisions of the
Oregon Workmen's Compensation Act did not apply to the claim.
Section 656.024 of that law provides, however, that when an
employer has elected to reject the Act's automatic
compensation provisions his injured employee may maintain in
the courts a negligence action for damages. Of course, the
employee could not do this if the case were not within the
"twilight zone," for then the Longshoremen's Act would provide
the exclusive remedy.

by the statute of limitations in the proper forum while
he was erroneously pursuing it elsewhere.
11
358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292 (1959) (per
curiam).

10
Id.12 While this exciting saga continues, we have come far enough

to answer the question before us.

E. Concurrent Jurisdiction—Working in the "Twilight Zone"

As a preliminary matter, for purposes of argument, and in

accordance with summary judgment protocol to resolve disputed

issues in favor of the non-moving party, we make two assumptions.

First, we assume without deciding that Appellant's employment falls

into the "twilight zone" of concurrent jurisdiction. Second, we

also assume without deciding that Texas would permit an employee,

who is receiving workman's compensation, to lodge a DTPA suit

against his employer. There is no dispute that Appellant is a

covered worker, and has received benefits under the LHWCA for his

injury.

As set forth above, federal preemption can occur where a state

statute either directly conflicts with federal law or frustrates

the purpose behind the federal law. We find that both conditions

occur here. First, § 905(a) provides in part, "The liability of an

employer prescribed in section 904 of this title shall be exclusive

and in place of all other liability of such employer to the

employee." (emphasis supplied). Where liability arises as a

result of the employment relationship,13 Congress explicitly

12
Although the LHWCA was amended in 1972, the Supreme Court
has made clear that the Davis and its progeny have continuing
vitality. See Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 720-
21, 100 S.Ct. 2432, 2436-37, 65 L.Ed.2d 458 (1980).
13
The district court sua sponte addressed the "dual
capacity" doctrine. Under this doctrine, some courts have
allowed an injured employee to maintain a tort suit against his
employer by asserting that the employer was acting in a capacity

11
intended for the LHWCA to be the exclusive remedy. See also Levene

v. Pintail Enter., Inc., 943 F.2d 528, 531 (5th Cir.1991) ("The

LHWCA absolutely bars suit for all other acts taken in the capacity

as the employer of the injured worker.")

Second, the Supreme Court has previously delineated the policy

and congressional purpose behind the Act. See Morrison-Knudsen

Const. Co. v. Director, Office of Workers' Compensation Programs,

U.S. Dep't of Labor, 461 U.S. 624, 636, 103 S.Ct. 2045, 2052, 76

L.Ed.2d 194 (1983),

[T]he [LHWCA is] not a simple remedial statute intended for
the benefit of the workers. Rather, it was designed to strike
a balance between the concerns of the longshoremen and harbor
workers on the one hand, and their employers on the other.
Employers relinquished their defenses to tort actions in
exchange for limited and predictable liability. Employees
accept the limited recovery because they receive prompt relief
without the expense, uncertainty, and delay that tort actions
entail.

see also Fontenot v. AWI, Inc., 923 F.2d 1127, 1132-33 (5th

Cir.1991),

Worker's compensation laws, like the LHWCA, typically replace
a negligence action with an administrative system as the
method for determining an employee's right to, and amount of,
compensation for injuries sustained on the job.... In
enacting the LHWCA, Congress intended that it be the sole and
exclusive remedy for workers within its scope, not a stepping
stone on the way to a jury award.

Brown v. Forest Oil Corp., 29 F.3d 966, 971 (5th Cir.1994)

("Turning to § 905(a), itself, the purpose of that section is to

induce employers to accept and participate in the LHWCA

compensation scheme by eliminating the non-participating employer's

other than "as employer" at the time of the injury. While the
Appellees raise this issue on appeal, Appellants do not, and
therefore we do not address the issue.

12
immunity from tort actions under the LHWCA."). Congressional

policy would be frustrated if an injured worker were allowed to

collect benefits under the Act, and then sue his employer under a

state statutory tort theory. Not only does the function of the

LHWCA depend on the exclusiveness of the remedy, but the language

of the Act plainly mandates such a result. Preemption of the state

act is required to avoid frustration of the policies and purpose

behind the LHWCA.

Appellant elected his remedy by applying for and receiving

compensation benefits under the LHWCA. Although, as discussed

above, Texas may have concurrent jurisdiction vis-a-vis its

worker's compensations laws, once Appellant elected the LHWCA

remedy, he is bound by the provisions of the Act.14 Therefore, even

if Texas would allow a DTPA remedy to supplant the immunity

provisions of its own worker's compensation statute, it cannot

supplant the immunity provision of the LHWCA. Because application

of the DTPA, in this context, is clearly contrary to the provisions

of the LHWCA and conflicts with the purpose of the Act, Appellant's

claim against his employer is preempted.

III. APPELLANT'S FAILURE TO RESPOND

Appellant's final argument warrants little discussion.

14
Compare LeSassier v. Chevron USA, Inc., 776 F.2d 506 (5th
Cir.1985) (Once employee was covered under LHWCA, the Act's
retaliatory discharge provision preempted state law tort suit for
retaliatory discharge) with Hahn v. Ross Island Sand & Gravel
Co., 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292 (1959) (per
curiam) (Worker who elected to proceed under state worker's
compensation system can sue for negligence where employer refuses
to pay compensation and state act allows such a suit).

13
Appellant asserts that the district court abused its discretion by

1) accepting Appellee's motion for summary judgment out of time,

and 2) denying Appellant's motion for enlargement of time to

respond. Under Fed.R.Civ.P. 6(b), the district court is granted

broad discretion to expand filing deadlines. See e.g. Maldonado-

Denis v. Castillo-Rodriguez, 23 F.3d 576, 583 (1st Cir.1994);

Woods v. Allied Concord Financial Corp., 373 F.2d 733, 734 (5th

Cir.1967).

The district court entered its scheduling order on March 3rd,

and therefore, Appellee's explanation that mailing delays caused

its motion to be filed on March 8th, one day late, was perfectly

reasonable. Accepting the motion a day late was clearly within the

court's discretion. Appellant had notice of the pending motion

beginning in January 1994 when the Appellee mistakenly filed its

motion under the incorrect cause number. Appellant himself

suggested the deadline that he subsequently requested to extend.

In addition, Appellant's second request for an extension of time

would have required the cause to be removed from the district

court's April calendar. We find no indication that the district

court abused its discretion by accepting Appellee's motion after

the filing deadline. Nor do we find that the district judge abused

her discretion by denying Appellant's motion for extension of time.

IV. CONCLUSION

For the reasons above, we find that Appellant's claim under

the Texas Deceptive Trade Practices-Consumer Protection Act is

preempted by the Longshore Harbor Worker's Compensation Act. We

14
further find that the district court properly exercised its

discretion by accepting Appellee's motion out of time and by

denying Appellant's motion for enlargement of time. The judgment

of the district court is AFFIRMED.

15