Kenneth Muhammad v. Norfolk Southern Railway Co., f/k/a Norfolk & Western Railway Co.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1695
KENNETH MUHAMMAD,
Plaintiff - Appellant,
v.
NORFOLK SOUTHERN RAILWAY CO., f/k/a Norfolk & Western Railway Co.,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Raymond A. Jackson, District Judge. (2:18-cv-00020-RAJ-LRL)
Argued: January 29, 2019 Decided: June 4, 2019
Before NIEMEYER, KEENAN, and QUATTLEBAUM, Circuit Judges.
Reversed and remanded by published opinion. Judge Niemeyer wrote the opinion, in
which Judge Keenan and Judge Quattlebaum joined.
ARGUED: Joshua T. Gillelan, II, LONGSHORE CLAIMANTS’ NATIONAL LAW
CENTER, Washington, D.C., for Appellant. David C. Bowen, WILLCOX & SAVAGE,
P.C., Norfolk, Virginia, for Appellee. ON BRIEF: Richard N. Shapiro, SHAPIRO &
APPLETON P.C., Virginia Beach, Virginia, for Appellant. Brianna L. Barnes,
WILLCOX & SAVAGE, P.C., Norfolk, Virginia, for Appellee.

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NIEMEYER, Circuit Judge:
Kenneth Muhammad, a railroad employee, was injured while replacing railroad
crossties on a bridge spanning navigable waters. When Muhammad filed a negligence
claim against his employer under the Federal Employers’ Liability Act (“FELA”), the
district court granted the employer’s motion to dismiss for lack of subject-matter
jurisdiction. The court concluded that Muhammad was injured “upon navigable waters”
and was engaged in “maritime employment” and therefore that the Longshore and Harbor
Workers’ Compensation Act (“LHWCA”) provided the exclusive remedy for his claim.
Because we conclude, however, that Muhammad’s injury did not occur “upon navigable
waters,” as required by the LHWCA, we reverse and remand for further proceedings.
I
In May 2016, while Muhammad was employed by Norfolk Southern Railway
Company as a carpenter in its “bridge and building” maintenance department, he
performed maintenance work replacing railroad crossties on Norfolk Southern’s South
Branch Lift Bridge in Virginia. The Bridge crosses the Elizabeth River, which has been
declared navigable by the U.S. Coast Guard, and the center span of the Bridge lifts
upward to allow vessels to navigate under it. The train traffic crossing the Bridge
primarily serves businesses to the west of the Elizabeth River, often traveling to the
Portlock Railyard, which is landlocked and approximately a mile east of the River.
The work crew with whom Muhammad was working traveled to the South Branch
Lift Bridge via truck, and their work never required the use of boats. While Muhammad

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was working on the Bridge on May 19, a portion of the walkway on which he was
walking collapsed. He was able to avoid falling into the River but sustained serious
injuries that have prevented him from returning to work.
Muhammad then commenced this action against Norfolk Southern under the
FELA, 45 U.S.C. § 51 et seq., claiming that Norfolk Southern’s negligence caused his
injuries. Norfolk Southern filed a motion to dismiss Muhammad’s action, claiming that
“the court lack[ed] subject matter jurisdiction over [the] action and the LHWCA ha[d]
exclusive jurisdiction.” Granting the motion would benefit Norfolk Southern by limiting
its damages exposure to the scheduled and specified amounts provided by the LHWCA,
which is a workers’ compensation statute, as distinct from the unscheduled damages to
which it was exposed by a negligence claim under the FELA.
The district court granted Norfolk Southern’s motion and dismissed Muhammad’s
complaint. In doing so, the court held that “the LHWCA provides the exclusive remedy
for [Muhammad’s] claim” and that it therefore “[did] not have subject matter jurisdiction
to proceed” on Muhammad’s FELA action. In holding that the LHWCA applied
exclusively to cover Muhammad’s injuries, the court concluded that the circumstances of
the incident satisfied both the “situs” requirement of the LHWCA that Muhammad’s
injury be “upon navigable waters” and the “status” requirement that he be engaged in
“maritime employment.” Relying on LeMelle v. B. F. Diamond Construction Co., 674
F.2d 296 (4th Cir. 1982), the court concluded that the situs requirement includes work
both “upon” and “over” navigable waters, reasoning that a bridge over navigable waters
that allows ships to pass underneath it facilitates and aids the navigation of maritime

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traffic. And relying on Chesapeake & Ohio Railway Co. v. Schwalb, 493 U.S. 40 (1989),
the court concluded that Muhammad’s work “constitute[d] maritime employment
because repairing and rebuilding the [Bridge] [was] an essential and integral element of
the loading or unloading process of the maritime traffic flowing under the Bridge.” The
court reasoned that the “Bridge lifts to permit passing vessels to navigate the Elizabeth
River” and that Muhammad’s “employment [was] essential when ensuring that the
Bridge remain[ed] in safe, operating condition for maritime and commercial rail traffic to
reach nearby loading facilities that rely on the South Branch of the Elizabeth River.”
From the district court’s order of dismissal dated June 13, 2018, Muhammad filed
this appeal.
II
While Muhammad brought this action under the FELA based on allegations of
Norfolk Southern’s negligence, the district court concluded that Muhammad’s action
could only be brought under the LHWCA. It thus held that it did not have subject-matter
jurisdiction and dismissed the action under Federal Rule of Civil Procedure 12(b)(1).
This lack-of-jurisdiction conclusion was misplaced, however, as Muhammad’s claim
under the FELA indisputably invoked the district court’s subject-matter jurisdiction under
45 U.S.C. § 56 (conferring jurisdiction on district courts for FELA claims) and 28 U.S.C.
§ 1331 (conferring jurisdiction on district courts for claims arising under the laws of the
United States).

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To be sure, if Muhammad’s injury was covered by the LHWCA, then that Act, as
a workers’ compensation law, would provide him with the exclusive remedy for his
work-related injury. See 33 U.S.C. § 905(a) (providing that the employer’s liability for
covered injuries “shall be exclusive and in place of all other liability of such employer to
the employee”); In re CSX Transp., Inc., 151 F.3d 164, 171 (4th Cir. 1998) (holding that
“LHWCA coverage is exclusive and preempts [the plaintiff] from pursuing an FELA
claim”). The preemptive effect of the LHWCA would thus be an affirmative defense that
Norfolk Southern could raise in response to Muhammad’s complaint, but it would not
deny the district court subject-matter jurisdiction over the complaint. See Fisher v.
Halliburton, 667 F.3d 602, 609 (5th Cir. 2012) (noting that “the applicability of the
LHWCA’s exclusivity provision presents . . . an issue of preemption, not jurisdiction”
and that “Federal preemption is an affirmative defense that a defendant must plead and
prove”); cf. 9 Lex K. Larson & Thomas A. Robinson, Larson’s Workers’ Compensation
Law § 100.01 (2018) (“In a tort action by an employee to recover damages for a work-
related injury, the employer has the burden of proving the affirmative defense that the
plaintiff was an employee entitled only to workers’ compensation”).
Of course, had Muhammad filed his claim in the district court under the LHWCA,
the district court would indeed have been required to dismiss it for lack of subject-matter
jurisdiction. “An LHWCA claim must be filed with the Department of Labor where it is
assigned to an administrative law judge whose decision is reviewed by the Benefits
Review Board. Review by the courts is authorized through a petition for review, which
may be filed only in the courts of appeals, not in the district court.” In re CSX Transp.,

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151 F.3d at 171 (citing 33 U.S.C. §§ 910(a), 921(b), 921(c)); see also Sidwell v. Express
Container Servs., Inc., 71 F.3d 1134, 1136 (4th Cir. 1995) (“Congress legislated a ‘status’
requirement and a ‘situs’ requirement, both of which must be satisfied in order for the
Board to have jurisdiction to award benefits”). But Muhammad did not assert an
LHWCA claim here.
Accordingly, while the district court concluded erroneously that it lacked subject-
matter jurisdiction, we will take the court’s dismissal order to have concluded that
Muhammad’s FELA claim was barred because his injury was covered exclusively by the
LHWCA, which preempted his FELA claim.
III
We now turn to the question of whether Norfolk Southern properly demonstrated
to the district court that the LHWCA covered Muhammad’s workplace injury.
The LHWCA makes employers liable for the payment of specified compensation
to employees for certain injuries “arising out of and in the course of employment.”
33 U.S.C. §§ 904, 902(2). For the LHWCA to apply, the employee must be a “person
engaged in maritime employment,” which is defined to include “any longshoreman or
other person engaged in longshoring operations, and any harbor-worker including a ship
repairman, shipbuilder, and ship-breaker.” Id. § 902(3). Moreover, to be covered by the
LHWCA, the employee’s injury must “occur[] upon the navigable waters of the United
States,” which is defined to include “any adjoining pier, wharf, dry dock, terminal,

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building way, marine railway, [*] or other adjoining area customarily used by an employer
in loading, unloading, repairing, dismantling, or building a vessel.” Id. § 903(a). Both
the status of the employee (“engaged in maritime employment”) and the situs of the
injury (“upon the navigable waters of the United States”) must be satisfied in order for
the Act to apply.
The method for construing and applying the status and situs requirements is
informed by Congress’s 1972 amendments to the LHWCA. Prior to 1972, “the
[LHWCA] applied only to injuries occurring on navigable waters. Longshoremen
loading or unloading a ship were covered on the ship and the gangplank but not
shoreward, even though they were performing the same functions whether on or off the
ship.” Chesapeake & Ohio Ry. v. Schwalb, 493 U.S. 40, 46 (1989) (emphasis added). In
1972, Congress obviated this anomaly by amending the Act, inserting the parenthetical
language in § 903(a) that expands the situs definition of “upon navigable waters” to
include “any adjoining pier, wharf, dry dock, terminal, building way, marine railway or
other adjoining area customarily used by an employer in loading, unloading, repairing,
dismantling, or building a vessel,” 33 U.S.C. § 903(a), thereby “extend[ing] coverage to
the area adjacent to the ship that is normally used for loading and unloading.” Schwalb,
493 U.S. at 46. Recognizing that this “expansion of the definition of navigable waters to
include rather large shoreside areas necessitated an affirmative description of the
particular employees working in those areas who would be covered,” Congress also
* A marine railway is a patent slip or slipway for taking vessels in and out of the
water.

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added the “maritime employment” requirement as part of the 1972 amendments in order
to limit its expansion of the Act shoreside. Herb’s Welding, Inc. v. Gray, 470 U.S. 414,
423 (1985). Thus, “[w]ith the 1972 amendments, the test for coverage . . . changed from
a simple situs test to a test incorporating situs and status requirements.” Jonathan Corp.
v. Brickhouse, 142 F.3d 217, 220 (4th Cir. 1998).
In adding the status requirement, however, Congress did not narrow the overall
coverage of the LHWCA, but instead only limited its shoreside expansion of the Act.
Dir., OWCP v. Perini N. River Assocs., 459 U.S. 297, 315 (1983). Thus, if an
employee’s injury would have been covered by the LHWCA prior to the 1972
amendments, the injury would still be covered by the Act following the 1972
amendments. Id. at 315, 325. Accordingly, when it is shown that an employee was
injured “upon the actual navigable waters in the course of their employment” — i.e., that
the employee was injured working “on” navigable water and thus “traditionally covered”
under the pre-1972 Act — the inquiry ends. See id. at 323, 325; see also Zapata Haynie
Corp. v. Barnard, 933 F.2d 256, 259 (4th Cir. 1991) (“[T]he first question is whether
Barnard would have fallen within the pre-1972 coverage of the Act. If so, the inquiry
ends. If not, Barnard must satisfy both the status and situs requirements in order to be
covered”).
In this case, we conclude that the situs of Muhammad’s injury on a railroad bridge
over navigable waters would not satisfy the pre-1972 requirement that his injury occur
“upon navigable waters.” See Schwalb, 493 U.S. at 46 (noting that the pre-1972 situs test
drew the line between land and water at the ship’s gangplank); Nacirema Operating Co.

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v. Johnson, 396 U.S. 212, 215 (1969) (“[A] statute that covers injuries ‘upon the
navigable waters’ would not cover injuries on a pier even though the pier, like a bridge,
extends over navigable waters”) (emphasis added)); cf. Herb’s Welding, 470 U.S. at 420
(“Because until 1972 the LHWCA itself extended coverage only to accidents occurring
on navigable waters, and because stationary rigs were considered to be islands, oil rig
workers . . . were left to recover under state schemes” (citations omitted)).
Norfolk Southern cannot seriously contest the proposition that Muhammad’s
injury did not occur “upon navigable waters,” as that term was consistently applied
before 1972. It has pointed to no pre-1972 case where a court held that an employee
working on a bridge over navigable waters was working upon navigable waters. The
Nacirema Court made this distinction clear, observing that working on a pier, “like a
bridge,” would not be covered by a statute requiring that the employee work “upon
navigable waters.” 396 U.S. at 215. To be sure, an employee working from a barge on
navigable waters while constructing or maintaining a bridge would, under the pre-1972
standard, be on navigable waters, as that employee would then be physically working
from a vessel on navigable waters. See, e.g., Davis v. Dep’t of Labor & Indus., 317 U.S.
249, 251 (1942). But Muhammad, who was working on a bridge itself and not from a
barge or other vessel, would not have been covered by the LHWCA before 1972. We
must therefore inquire as to whether the 1972 amendments expanded LHWCA coverage
to the situs where Muhammad was injured.
The 1972 amendments to the LHWCA extended the situs of a covered injury to
include “any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or

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other adjoining area customarily used by an employer in loading, unloading, repairing,
dismantling, or building a vessel.” 33 U.S.C. § 903(a). Because Muhammad’s injury did
not occur on a “pier, wharf, dry dock, terminal, building way [or] marine railway,” our
inquiry must focus on whether his injury occurred in an “other adjoining area.” And in
order for an “other adjoining area” to constitute a covered situs, “it must be a discrete
shoreside structure or facility” that is “‘customarily used by an employer in loading,
unloading, repairing, dismantling, or building a vessel,’ as the statute provides.” Sidwell
v. Express Container Servs., Inc., 71 F.3d 1134, 1139–40 (4th Cir. 1995). Put differently:
In extending the line of coverage landward, Congress . . . defined navigable
waters to include certain land areas “adjoining” the navigable waters. The
landward extension is a seamless annexation of land to navigable waters for
purposes of LHWCA coverage. But the annexation does not include all
adjacent land. The statute extends “navigable waters” only to land relating
to work on those waters, specifically enumerating adjoining piers, wharfs,
dry docks, terminals, building ways, and marine railways. These are
facilities customarily used by longshoremen in loading and unloading ships
and in repairing or building them. The link between the navigable waters
and the land side facilities is thus established under the statute by (1) the
contiguity of the land side facility and navigable water, and (2) the affinity
of the land side facility to longshoremen’s work on ships. . . . The “other
area” annexed to navigable waters by the Act must again be “adjoining”
the water and must again be linked to the traditional longshoremen’s work
on the water. The “other area” must be for the loading or unloading of
cargo onto ships in navigable waters or for the “repairing, dismantling, or
building” of those ships.
Jonathan Corp., 142 F.3d at 221 (emphasis added) (citations omitted); see also Schwalb,
493 U.S. at 46 (noting that the 1972 amendments “extended coverage to the area adjacent
to the ship that is normally used for loading and unloading”).
The undisputed facts in this case show that Muhammad was not injured on a
facility contiguous to navigable waters that was customarily used for the loading,

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unloading, repairing, dismantling, or building of a vessel — i.e., a facility linked to
traditional longshoremen’s work on the water. Rather, the situs of Muhammad’s injury
was a railroad that was quite distinct from such a facility, and the location on the Bridge
where Muhammad was injured was accessible only by land and was not contiguous to
water.
While the Bridge’s center span did lift to allow vessels to pass underneath it, a
land-based bridge’s simple accommodation of ships is a far cry from a shoreside facility
serving as “an integral or essential part of loading or unloading a vessel.” Schwalb,
493 U.S. at 45. Norfolk Southern argues otherwise, asserting that a bridge allowing
commercial navigation to travel underneath it provides a sufficient connection to
“navigable waters” to support LHWCA coverage for injuries on that bridge. But the
nexus to loading and unloading must not be so remote as to include any situs that is
simply somehow related to navigable waters. Indeed, Norfolk Southern’s argument
would extend LHWCA coverage to injuries occurring on every bridge that allowed ships
to pass under it. Congress clearly did not intend so broad a coverage. As the Supreme
Court has noted, in enacting the 1972 amendments, Congress did not “seek to cover all
those who breathe salt air. Its purpose was to cover those workers on the situs who are
involved in the essential elements of loading and unloading.” Herb’s Welding, 470 U.S.
at 423.
In reaching the contrary conclusion that the South Branch Lift Bridge was indeed
a situs covered by the LHWCA, the district court relied principally on two cases, LeMelle
v. B. F. Diamond Construction Co., 674 F.2d 296 (4th Cir. 1982), and Zapata Haynie

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Corp. v. Barnard, 933 F.2d 256 (4th Cir. 1991). Neither case, however, supports the
district court’s conclusion.
In LeMelle, we held that an employee injured while he was working to demolish
and replace a bridge that crossed over the James River, a navigable water in Virginia, was
covered by the LHWCA. 674 F.2d at 297–98. The work there, however, was performed
with the extensive use of boats, and the parties “agree[d] that the situs requirement for
LeMelle’s claim [was] satisfied.” Id. at 297. Accordingly, in LeMelle, we only
addressed the status requirement. Nonetheless, during the course of our discussion, we
stated — what Norfolk Southern and the district court relied on heavily — that “bridge
construction and demolition workers employed over navigable water were covered prior
to the 1972 amendments” and cited three cases to support that statement. See id. at 298
(citing Davis, 317 U.S. 249; Hardaway Contracting Co. v. O’Keeffe, 414 F.2d 657 (5th
Cir. 1968); and Peter v. Arrien, 325 F. Supp. 1361 (E.D. Pa. 1971)). In Davis and
Hardaway, as was the case in LeMelle itself, the work involved the extensive use of
barges, on which the employees’ injuries occurred. See Davis, 317 U.S. at 251 (noting
that “a tug, derrick barge, and a barge” were used in the project and that the employee fell
from the barge and drowned); Hardaway, 414 F.2d at 660–61 (noting that the employee
died while “transferring an oil drum from a small launch to a fixed barge”). And in
Peter, instead of using barges, the contractor constructed a temporary causeway on the
water “solely to provide access toward the middle of the river and it was to be dismantled
as soon as the demolition was completed.” 325 F. Supp. at 1364. Thus, our statement in
LeMelle, which the district court took out of context, referred to bridge work performed

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upon navigable waters insofar as the work was performed from barges, launches, and the
like that were actually on navigable waters.
And in Zapata, the employee was working as an airplane pilot for a commercial
fishing company, spotting fish from the air to aid commercial fishing boats. 933 F.2d at
257–58. Because we concluded that “fish spotting was traditionally an activity inherent
to commercial fishing” — citing expert testimony that, “traditionally, crewmen would
climb to the crow’s nests of fishing vessels to spot fish” — we concluded that the
employee performing that traditional fishing function was covered by the LHWCA.
See id. at 260. We reasoned that the employee’s “duties required him to work over
navigable waters at all times except for taking off and landing” and that he “was regularly
engaged in the course of his duties over navigable waters and not merely fortuitously over
water when his injury occurred.” Id. at 259–60 (emphasis added).
Neither of these cases support the proposition that working on a land-accessed
railroad bridge over navigable waters to replace railroad crossties qualifies as working on
a situs covered by the LHWCA. Rather, the law is clear that, for a land-based situs to be
covered under the Act, it must be a shoreside facility that is “an integral or essential part
of loading or unloading a vessel” — a facility linked to traditional longshoremen’s work
on the water. Schwalb, 493 U.S. at 45; Jonathan Corp., 142 F.3d at 222. The South
Branch Lift Bridge is not such a facility.
Because Muhammad was not injured on a situs covered by the LHWCA, we need
not reach the question of whether he was engaged in maritime employment. And since
his injury was not covered by the LHWCA, the district court erred in dismissing his

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FELA claim. The judgment of the district court is therefore reversed and the case
remanded for further proceedings.
REVERSED AND REMANDED

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