skip to content

skip to navigation

Welcome to the Bar Association of The Fifth Federal Circuit,

Improving and facilitating the administration of justice in the federal courts within the Fifth Circuit.

Learn more about BAFFC »

 
News Flash

Please see the attached order amending Rule 32.4



Notice to Filers, Changes in Requirement of Certificate of Compliance:

The Clerk of Court has also updated the Practitioner's Guide with the following:

Notice of Proposed Amendment to 5TH CIRCUIT RULES 26, 28, 29, 31 and 32 
 
Pursuant to 28 U.S.C. § 2071, we give notice the court is considering amending 5TH CIR. R. 26, 28, 29, 31 and 32 as shown below.  Additionally, the court is studying possible additional changes with respect to new word count limitations in the December 1, 2016 amendments to FRAP Rules 5, 21, 27, 28.1, 32, 35 and 40.   
 
We will accept written comments for consideration on the proposed change through November 15, 2016: 
 
Clerk of Court U.S. Court of Appeals for the Fifth Circuit ATTN: Rule Changes 600 South Maestri Place New Orleans, LA 70130 
Notice of Proposed Amendment to 5TH CIRCUIT RULES 26, 28, 29, 31 and 32 
 
Pursuant to 28 U.S.C. § 2071, we give notice the court is considering amending 5TH CIR. R. 26, 28, 29, 31 and 32 as shown below.  Additionally, the court is studying possible additional changes with respect to new word count limitations in the December 1, 2016 amendments to FRAP Rules 5, 21, 27, 28.1, 32, 35 and 40.   
 
We will accept written comments for consideration on the proposed change through November 15, 2016: 
 
Clerk of Court U.S. Court of Appeals for the Fifth Circuit ATTN: Rule Changes 600 South Maestri Place New Orleans, LA 70130 
or send comments electronically to Changes@ca5.uscourts.gov 

Fair Labor Lawyer by Marlene Trestman

The Clerk of Court for the Fifth Circuit has offered guidance for citation to the record on appeal.  

Get more from your membership with BAFFC. Join us on Facebook, LinkedIn, Twitter, and Google+ to receive rapid updates. Connect with BAFFC today!

Did you know you can register to receive notices in cases of interest in the Fifth Circuit?

 

The Daily Commentary (sample)

Sample case reviewed on April 25, 2017.
Become a Member to receive Daily Emails

Halle v. Galliano Marine Service, L.L. C. No. 16-30558

http://www.ca5.uscourts.gov/opinions/pub/16/16-30558-CV0.pdf

Before PRADO, HIGGINSON, and COSTA, Circuit Judges.

REVERSED and REMANDED. (April 19, 2017).

Posted in Admiralty, Fair Labor Standards Act, Labor and Employment, Maritime

 

Kyle Halle sued Galliano Marine Service, LLC and C-Innovation, LLC under the Fair Labor Standards Act to recover unpaid wages for overtime worked during his employment at C-Innovation. Defendants run a remotely operated vehicle ("ROV") business for offshore applications and employed Halle from May 12, 2009, to October 12, 2015, as an ROV Technician and ROV Supervisor. ROVs are unoccupied mechanical devices used, among other things, to fix, service, and repair offshore, underwater drilling rigs. They are generally used to perform tasks that otherwise could not be performed by human divers because of depth or water conditions. Technicians like Halle navigate and control ROVs aboard an ROV Support Vessel, to which the ROVs remain tethered while in use. ROV Support Vessels serve as "a means of transporting their attached ROVs over water" and are specially outfitted for this purpose. The ROV's "handling system, wench, A-frame, hydraulic power unit[,] vans, and control system" are all welded to the support vessel. Technicians who steer the ROVs work inside a windowless shipping container converted into an ROV command center located on the support vessel. From there, the ROV Technicians steer and control the ROVs using a video feed and joysticks. Although the ROV command center is located on the support vessel, technicians are not mixed with the support vessel's crew, cannot see whether any navigational issues are affecting the support vessel, and, according to Halle, are considered by the crew to be "passengers" or "third parties." According to Halle, ROV Technicians are subject to a chain of command separate and apart from that of the support vessel. Halle in particular always reported to C-Innovation's Operations Coordinator and Operations Manager, both of whom are land-based. Halle's particular duties were dedicated only to ROVs.

In response to Halle's suit against them for failing to pay him for overtime as purportedly required by the FLSA, the defendants moved for summary judgment. Their motion argued that Halle was exempt from the FLSA's overtime provisions because he qualified as a "seaman" under the Act. The District Court granted the defendants' motion and dismissed Halle's claim with prejudice. The District Court agreed that Halle qualified as a "seaman" under the FLSA and was thus exempt from the Act's overtime provisions. Thereafter, Halle filed a motion for reconsideration, which was denied. Halle then appealed.

An employee is a seaman when the following criteria are met: "(1) the employee is subject to the authority, direction, and control of the master; and (2) the employee's service is primarily offered to aid the vessel as a means of transportation, provided that the employee does not perform a substantial amount of different work." Coffin v. Blessey Marine Servs., Inc., 771 F.3d 276, 279 (5th Cir. 2014). According to Department of Labor regulations, "work other than seaman work becomes substantial if it occupies more than 20 percent of the time worked by the employee during the workweek." Id. at 279-80. Because "what each employee actually does" determines how the FLSA applies to him, "application of the seaman exemption generally depends on the facts in each case." Id. With that in mind, the Fifth Circuit reiterated that the definition of "seaman" in the Jones Act is not equivalent to that in the FLSA. In considering whether the employee performs as "master or subject to the authority, direction, and control of the master aboard a vessel," the District Court seemingly equated the ROVs with "vessels" and concluded that Halle's "direct[ion]" and "command" of the ROVs satisfied this element. However, the Fifth Circuit explained that there was no evidence to suggest that the ROVs were vessels, and that the only "vessel" in this case was the ROV Support Vessel. While Halle's sworn declaration was that he was not subject to the support vessel's chain of command and did not report to the support vessel's captain, another employee submitted an affidavit attesting that Halle did report to the captain. This competing testimonial evidence precluded summary judgment as to the first prong of the seaman inquiry.

The second prong, which asks whether the "employee's service is primarily offered to aid the vessel as a means of transportation," and concentrates on the duties of an employee, was the focus of the Fifth Circuit's analysis. The Court has intimated that the critical issue in analyzing this prong is determining whether the "primary purpose" of the particular individual's work is safe navigation of the ship. In this case, the Court recalled that Halle lives on the ROV Support Vessel and operates the attached ROVs in the water to complete industrial tasks. Although Halle occasionally communicates GPS coordinates to the captain of the support vessel, he does not otherwise help ensure that the support vessel navigates safely or even in any particular manner from point A to point B. ROV Technicians do not control the path to the intended target, steer, anchor, make any navigational decisions or take any navigational actions. In fact, they apparently cannot even see if there are navigational issues affecting the ROV Support Vessel. Defendants argued that because the ROVs are attached to the ROV Support Vessel, any navigation, maintenance, service, and repair of those vehicles is essentially done to the vessel itself. But no case law affirmatively supported this position. Whereas the District Court relied primarily on Coffin to reaffirm its conclusion that Halle is a seaman, the Fifth Circuit found the instant facts to be acutely distinct from those in Coffin. While the tankermen in Coffin were members of the ship's crew and answered to the captain, the ROV Technicians here have a completely separate command structure. Unlike the tankermen in Coffin, who spent a significant portion of their work time performing tasks that helped the captain safely navigate the ship and attached barges, the ROV Technicians do not assist with nearly any part of navigation. The only role the ROV Technicians seem to have in navigation is the occasional communication of coordinates to the captain of the support vessel. And though the Court recognized that giving coordinates alone could perhaps be characterized as contributing to navigation, the critical question that had to be answered is what proportion of Halle's time is spent on that seaman's work. Based on the description of Halle's work responsibilities, it seemed to the Court that transmitting the coordinates, and even the entire process of calculating those coordinates, did not take up a demonstrable majority of his work time. Accordingly, the Court concluded that the District Court erred in granting the defendant's motion for summary judgment as it had not been established as a matter of law that the seaman exemption applies. The Court reversed the District Court's summary judgment and remanded for further proceedings.

 

On Appeal from the United States District Court for the Eastern District of Louisiana (Eldon E. Fallon).
Attorney for Appellant - David Isaac Moulton, Houston, TX
Attorney for Appellee - MaryJo Lovie Roberts, New Orleans, LA

Become a Member to receive Daily Emails