Take the Fifth

Designated for publication

• Sanchez v. Smart Fabricators of Texas, LLC, 19-20506, appeal from S.D. Tex.
  • Davis, J. (Owen, Davis, Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson), Dennis, J., concurring; Jones Act, maritime law, Longshore and Harbor Worker’s Compensation Act
  • In this en banc decision, a unanimous Court affirmed the district court’s dismissal of a welder’s Jones Act claim arising from an injury sustained while he was on a welding job on a jackup rig on the outer continental shelf, arriving at the opposite conclusion of the original panel opinion in the case. The panel members had all joined a concurring opinion that, while the result reached by the panel was in line with two Fifth Circuit precedents under the rule or orderliness, it appeared that the Fifth Circuit decisions were not in line with Supreme Court caselaw and that the en banc Court should take up the case to correct this anomaly.
  • The plaintiff had brought suit in Texas state court under the Jones Act, alleging he was a seaman; only seamen may bring suit under the Jones Act, and Jones Act claims may not be removed. Other, non-seaman maritime workers are entitled to compensation under the Longshore and Harbor Worker’s Compensation Act. Arguing that the plaintiff was not a seaman, the defendant employer removed to federal court and then moved for summary judgment to dismiss the Jones Act claim. The district court denied the plaintiff’s motion to remand and granted the defendant’s motion for summary judgment. “Because Congress has not defined the term ‘seaman,’ the definition of and distinction between the two groups have been the subject of extensive litigation, and courts have struggled to establish workable tests to define the word ‘seaman.'”
  • The Court examined a trilogy of Supreme Court cases that helped establish a framework for determining whether someone is a seaman.
    • “First was McDermott International, Inc. v. Wilander. The Court took this case primarily to resolve a split among the circuits on the question of whether a plaintiff, to establish seaman status, was required to show that he aided in the navigation of a vessel.The Court rejected the circuit cases imposing this requirement and adopted the test set forth in Judge Wisdom’s landmark decision in Offshore Co. v. Robison, requiring proof that the seaman ‘contributed to the function of the vessel or to the accomplishment of its mission’ and have an employment-related connection to a vessel. The Wilander Court emphasized, ‘The key to seaman status is employment-related connection to a vessel in navigation.’
    • “… The Supreme Court’s next decision on seaman status came four years later in Chandris, Inc. v. Latsis. In this case, the plaintiff, Latsis, was a supervising engineer who oversaw an engineering department for a fleet of six passenger cruise ships. … Latsis’s duties required him to divide his work between the office and aboard ship when he sometimes sailed for inspection and supervision of engineering work. … After discussing the judicial and legislative history of the passage of the LHWCA, the Chandris Court stated: ‘With the passage of the LHWCA, Congress established a clear distinction between land-based and sea-based maritime workers. The latter who owe their allegiance to a vessel and not solely to a land-based employer, are seamen.’ … In explaining the importance of the requirement that a seaman have a substantial, enduring relationship to a vessel, the Court rejected a snapshot test for seaman status, denouncing a test that inspected ‘only the situation as it exists at the instance of injury’ and noting that ‘a more enduring relationship is contemplated in the jurisprudence.’ The Court emphasized that ‘a worker may not oscillate back and forth between Jones Act coverage and other remedies depending on the activity in which the worker was engaged while injured.’ … The Court then turned to apply these principles to the sufficiency of plaintiff’s relationship to his employer’s fleet of vessels to qualify for seaman status. It defined the substantial-connection test with two elements: ‘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.’ In discussing the duration element, the Court stated that ‘the total circumstances of an individual’s employment must be weighed.’ The Chandris Court approved our rule of thumb as a guide to the degree of permanence required to satisfy the duration element. ‘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.’
    • “The Supreme Court provided more guidance on the nature element of the substantiality requirement in Harbor Tug and Barge Co. v. Papai…. The Court stated that ‘[f]or the substantial connection requirement to serve its purpose, the inquiry into the nature of the employee’s connection to the vessel must concentrate on whether the employee’s duties take him to sea.’ It further explained that ‘[t]his will give substance to the inquiry both as to duration and nature of the employee’s connection to the vessel and be helpful in distinguishing land-based from sea-based employees.’ … ‘[D]iscrete engagements [that] were separate from the one in question, … was the sort of “transitory or sporadic” connection to a vessel or a group of vessels that, as we had explained in Chandris, does not qualify one for seaman status.'”
  • Distilling the principles from this trilogy of decisions, the Court held that the following analytical framework should be used: “(1) Does the worker owe his allegiance to the vessel, rather than simply to a shoreside employer? (2) Is the work sea-based or involve seagoing activity? (3) (a) Is the worker’s assignment to a vessel limited to performance of a discrete task after which the worker’s connection to the vessel ends, or (b) Does the worker’s assignment include sailing with the vessel from port to port or location to location?”
  • Applying this framework to the case, the Court held that the plaintiff welder was not a seaman, because his welding could have occurred in dock or at sea, and that the jackup rig he was on when the injury occurred, although it was under tow by a tugboat at sea, he was only on for 19 percent of the time he was employed doing welding work on the two jackup rigs (the other 81 percent of the time, he was working on a jackup rig that was in dock).
  • Judge Dennis concurred, to emphasize that the Court should also look, in addition to the framework derived from the trilogy of Supreme Court cases to the scholarship of “Professor David W. Robertson, a leading scholar and practitioner of maritime law. As the majority endeavors to do here, in his article, The Supreme Court’s Approach to Determining Seaman Status: Discerning the Law Amid Loose Language and Catchphrases, Prof. Robertson ‘provides a template for translating the U. S. Supreme Court’s controlling seaman status cases’ under the Jones Act. 34 J. MAR. L. & COM. 547, 548 (2003). This article remains, in my view, a pinnacle of scholarship synthesizing the Court’s jurisprudence on the seaman status issue and serves as a useful guide for future cases.”

• U.S. v. Bass, 20-10588, appeal from N.D. Tex.
  • Engelhardt, J. (Higginbotham, Southwick, Engelhardt), criminal, search and seizure, Armed Career Criminal Act, sentencing
  • Affirming conviction for being a felon in possession of a firearm, and imposition of a sentencing enhancement under the Armed Career Criminal Act, and sentence of 180 months. Defendant had been approached by officers who had been tipped that defendant was illegally selling CDs, and at their request the defendant voluntarily opened his trunk. The officers arrested him for the unlawful labeling of CDs, then searched him and his car, finding a loaded pistol, magazine, cash, drugs, and drug paraphernalia. Defendant had 13 prior felony convictions.
  • The Court held that the district court did not err in finding that there was reasonable suspicion for the investigatory stop of the defendant, as well as for the prolonged investigatory nature of the detention, based on a tip from an off-duty police officer, complaints from nearby store owners, and the defendant’s own admission that he had the illegal CDs in his car when he was approached by officers. The Court then held that the record supported that the defendant consented to a search of his car, and that he had not limited his consent to the trunk.
  • The Court held that there was no error in the application of the ACCA enhancement on the basis that five of the defendant’s prior felony convictions involved possession with the intent to deliver drugs. “Bass fails to show that the Arkansas ‘delivery’ language is broader than the generic offense or the guideline definition of the offense.”

• U.S. v. Abrego, 20-40118, appeal from S.D. Tex.
  • Ho, J. (Ho, Oldham, Wilson), criminal, sentencing
  • Vacating sentence imposed upon application of the sentencing enhancement for possession of a semiautomatic firearm capable of accepting a large capacity magazine.
  • The Court noted that its prior decision in United States v. Longoria, 958 F.3d 372, 377 (5th Cir. 2020), had held that the Sentencing Commission’s commentary on this guideline was authoritative, that capable of accepting a large magazine means “a magazine able to hold ‘more than 15 rounds of ammunition’ … ‘attached to’ or ‘in close proximity to’ the firearm ‘at the time of the offense.'” Because the district court had not applied this commentary, the Court remanded for resentencing.

Unpublished

• Lang v. Johnson, 19-31063, appeal from W.D. La.
  • per curiam (Jones, Barksdale, Stewart), habeas corpus
  • Affirming dismissal of § 2241 claim for lack of jurisdiction.

• U.S. v. Gonzalez, 19-40836, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Higginson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Hitt v. McLane, 19-50411, appeal from W.D. Tex.
  • per curiam (Wiener, Dennis, Duncan), § 1983, qualified immunity
  • Reversing dismissal of unreasonable seizure and procedural due process claims arising from confinement of plaintiff, and remanding for further proceedings.

• U.S. v. Golden, 19-51166, appeal from W.D. Tex.
  • per curiam (King, Southwick, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Antunez-Pineda v. Garland, 19-60840, petition for review of BIA order
  • per curiam (Jolly, Elrod, Graves), immigration
  • Denying in part and dismissing in part Honduran citizen’s petition for review of his withholding of removal claim.

• Williams v. Hunt County, Texas Sheriff’s Department, 20-10132, appeal from N.D. Tex.
  • per curiam (Dennis, Southwick, Engelhardt), § 1983
  • Dismissing as frivolous appeal of dismissal of § 1983 claims.

• U.S. v. Akard, 20-10502, appeal from N.D. Tex.
  • per curiam (Dennis, Costa, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Gallegos, 20-10854, appeal from N.D. Tex.
  • per curiam (Smith, Stewart, Higginson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Walker v. Skalka, 20-20216, appeal from S.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), § 1983
  • Affirming dismissal of § 1983 claim against housing authority employees.

• U.S. v. Cortez, 20-20394, appeal from S.D. Tex.
  • per curiam (Davis, Stewart, Dennis), criminal, guilty plea
  • Remanding to district court to dismiss original indictment pursuant to plea agreement, and affirming in all other respects.

• U.S. v. Pinson, 20-40154, appeal from E.D. Tex.
  • per curiam (King, Southwick, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Xin, 20-40674, appeal from E.D. Tex.
  • per curiam (King, Southwick, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Jackson v. Pittman, 20-40832, appeal from S.D. Tex.
  • per curiam (Clement, Elrod, Haynes), prisoner suit
  • Vacating dismissal of prisoner’s § 1983 suit, and remanding for further proceedings.

• Resendez v. Abbott, 20-50647, appeal from W.D. Tex.
  • per curiam (Jones, Costa, Wilson), prisoner suit
  • Remanding for district court to rule on Rule 59(e) motion, holding appeal in abeyance.