by Justice Bill Boyce, Fourteenth Court of Appeals
My parents, being the savvy child-raisers that they were, relied on the “We’ll See” technique from time to time.
Most of my childhood requests were met with either a straight-up “Yes” or a non-negotiable “No.” But once in a while, my parents threw a change-up pitch and responded with “We’ll See” when I asked them for a toy, for permission to do something, or for other things of comparable significance.
“We’ll See” meant different things depending on the context. It might mean, “Yes, if it doesn’t cost too much.” Or, “Yes, but only if you behave.” Or, “Depends on how you answer my next three questions.” Or, “Not sure, I want to talk to your [mother] [father] about it first.” Or, “Not right now.” Or, “Stop nagging me and take out the trash.”
It was an ingenious response. Rich in possibilities. Infinitely adaptable. Unlimited as to time. Just a hint of coercion. And subject to implementation using unidentified, ad hoc factors unilaterally chosen by my parents in their sole and unreviewable discretion.
The judicial equivalent of “We’ll See” is on display in Pacific Operators Offshore, LLP v. Valladolid, 2012 WL 75045 (U.S. Jan. 11, 2012).
In Valladolid, the Supreme Court wrestled with one of the more opaque examples of the statute-drafter’s art – namely, The Outer Continental Shelf Lands Act. This statute, known to its friends as “OCSLA,” extends the federal workers’ compensation scheme established in the Longshore and Harbor Workers’ Compensation Act to injuries “occurring as the result of operations conducted on the outer Continental Shelf” for the purpose of extracting natural resources from the shelf. See 43 U.S.C. § 1333(b).
Valladolid focused on whether this standard was satisfied in connection with a claim for benefits filed by the widow of Juan Valladolid. He spent most of his time working on two of Pacific Operators’ drilling platforms located on the Outer Continental Shelf off the coast of California. But he also spent a portion of his time working at Pacific Operators’ onshore processing facility. He died in a forklift accident while on duty at the onshore facility.
An Administrative Law Judge and the Department of Labor’s Benefits Review Board applied a situs-of-injury standard and concluded that section 1333(b) did not cover this claim because the accident did not occur on the Outer Continental Shelf. The Ninth Circuit reversed and held that OCSLA extends coverage to an employee who establishes a “substantial nexus” between the injury and extractive operations on the shelf.
The Supreme Court affirmed the Ninth Circuit in an opinion written by Justice Thomas and joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Justice Scalia wrote a concurring opinion joined by Justice Alito.
On the way to affirmance, Justice Thomas surveyed and rejected standards that had been adopted in other circuits or proposed by the Solicitor General for determining the meaning of “occurring as the result of operations conducted on the outer Continental Shelf.”
- Situs-of-injury, the standard used in the Fifth Circuit? Nope.
- “But for” causation, the standard used in the Third Circuit? Nope.
- The Solicitor General’s proposed hybrid standard, under which coverage would extend to (1) on-OCS injuries, and (2) off-OCS injuries of employees who spend a substantial portion of their work time on the OCS engaging in extractive operations? Nope.
The Supreme Court concluded that the Ninth Circuit’s “substantial nexus” test is “more faithful to the text of § 1333(b).”Valladolid , 2012 WL 75045, at *9. “We understand the Ninth Circuit’s test to require the injured employee to establish a significant causal link between the injury that he suffered and his employer’s on-OCS operations conducted for the purpose of extracting natural resources from the OCS.” Id.
Acknowledging that a “substantial nexus” test “may not be the easiest to administer,” Justice Thomas nonetheless endorsed it. Id. at *10. He stressed that “the individual circumstances of each case” will determine whether coverage extends to an employee injured while performing an off-OCS task. Id.
He added, “We are confident that ALJs and courts will be able to determine whether an injured employee has established a significant causal link between the injury he suffered and his employer’s on-OCS extractive operations.” Id. The Court endorsed remanding the case to the Benefits Review Board to apply the “substantial nexus” test in the first instance.
Justice Scalia was not persuaded. “The Court indulges in considerable understatement when it acknowledges that this test ‘may not be the easiest to administer.’” Id. (Scalia, J., concurring in part and concurring in judgment). “‘Substantial nexus’ is novel legalese with no established meaning in the present context.” Id. He advocated a standard under which the employee may recover if an injury was proximately caused by operations on the shelf. Id.
There is not much in the way of guidance here for lower courts. No factors are identified. Perhaps this is the most workable approach that could be managed for an inartfully drafted provision that must be applied to an endless variety of fact patterns. But when the Court itself says its test “may not be the easiest to administer,” a reasonable inference can be drawn that no one is feeling terrific about this resolution.
I have no suggestions for rewriting portions of this opinion. But if I had to do something, I would add two sentences at the end.
“Is Valladolid’s claim covered under OCSLA? We’ll see.”