CERTIORARI DENIED . . . DOWN IN FLAMES AFTER SEVEN YEARS

By John Merriam

There are no federal law penalties for cheating commercial fishermen on their wages. I’ve devoted much of my 38-year career attempting to correct this inequity. After many thwarted efforts, I thought I’d finally found the perfect case to set favorable precedent. Earlier described on these pages (Trial News, December 2019) is the case of Eli Dunn v. Bryce Hatch. A brief recap:

Eli Dunn, a deckhand from Oregon, was cheated out of $1,905 in crewshares from fishing the 2013 salmon season on a gillnetter in Bristol Bay, Alaska. Dunn sued his employer, Bryce Hatch, in the Western District of Washington. Bryce was a resident of Idaho but his boat, the F/V Silver Bullet, had SEATTLE emblazoned on her stern. After jurisdictional ping-pong, the case ended up in the federal District of Idaho and assigned to a judge who had never tried a maritime case.

Dunn claimed that Hatch forged the contract of employment required by 46 U.S.C. 10601. After a one-day bench trial on November 13, 2017, the judge agreed that the employment contract was a forgery and that Hatch had gotten two of his deckhands to perjure themselves about seeing Dunn sign the contract. He ruled that Hatch had acted in bad faith by forging the contract and lying about the $1.905 due Dunn as his 10% share from an adjustment to the sale price of salmon. Dunn v. Hatch, 300 F.Supp.3d 1151 (D. Idaho 2018). Post-trial, the judge award $5,025 in costs and fees to Dunn for proving the forgery with testimony from a handwriting expert, and another $5,000 in fees for Hatch’s failure to reveal the price adjustment in discovery. Despite the finding of bad faith, the judge refused to award Dunn attorney fees for the entire case.

In pre-trial proceedings the trial court ruled that punitive damages were not available to commercial fishermen asserting wage claims. The judge also ruled that 46 U.S.C. sec. 11107 (higher rate of wages when there is no written contract) provided the only remedy for commercial fishermen bringing wage claims, to the exclusion of state law wage penalties as well as punitive damages. The trial court further ruled that punitive damages are not available for forgery under the general maritime law.

Final judgment was entered on May 23, 2018. Dunn was awarded $1,905 plus $10,025 in fees. Dunn v. Hatch, 2018 A.M.C. 1326, 2018 U.S. LEXIS 88411 (D. Idaho 2018).

I appealed to the Ninth Circuit on the issue of punitive damages – for both the wage claim, and for forgery and fraud – and for attorney fees for the entire litigation, based upon the trial court’s finding of bad faith. I argued that, 1) 46 U.S.C. sec. 11107 provided a penalty rate of wages for the failure to have a written employment contract, not a penalty for the nonpayment of wages; 2) because Congress had failed to act in protecting the wards of admiralty, the courts sitting in admiralty should fashion a remedy; 3) punitive damages should be available to commercial fishermen under the general maritime law; and 4) state law wage penalties are not preempted by 46 U.S.C. sec. 11107, but punitive damages are preferable to a patchwork of penalties from the various states, to further the maritime law’s preference for uniformity.

The Trial News article about this case ended with the anticipation of oral argument before the Ninth Circuit, originally scheduled for August 27, 2019.

Oral argument was cancelled. The Ninth Circuit affirmed the trial court in an unpublished memorandum decision. 792 Fed. Appx. 449 (9th Cir. 2019). I petitioned the Ninth Circuit for rehearing and rehearing en banc. That petition was denied on January 8, 2020. 2020 U.S. App. LEXIS 485.

In affirming the trial court’s denial of punitive damages, the Ninth Circuit stated:

In Dunn’s case, the underlying facts do not support a claim that Hatch’s conduct demonstrated a case of enormity or deplorable behavior. Instead the mere statutory violation of having an oral contract rather than a written contract does not constitute “reckless indifference to the rights of others”. 792 Fed. Appx. at 452.

In ruling that 46 U.S.C. sec. 11107 provides a penalty for the nonpayment of wages, as opposed to a penalty rate of wages, the Ninth Circuit contradicted some of its own prior decisions as well as those from other federal appellate courts. And by affirming the trial court’s ruling that 46 U.S.C. sec. 11107 pre-empted state law wage penalties, the Ninth Circuit, sub silentio, overruled a long line of decisions borrowing state law remedies for wage claims brought under the federal maritime law. See, e.g., Greene v. Pacific King Fisheries, 1993 A.M.C. 2578 (W.D. Wash. 1993); Gruver v. Lesman Fisheries, Inc., 2005 A.M.C. 1434, 409 F.Supp.2d 1263 (W.D. Wash. 2005).

I can only guess at the reason for this summary affirmance with a shameful, intellectually-dishonest opinion. The Ninth Circuit panel apparently considered the case as not worthy of serious consideration because only $1,900 was at issue – saying, essentially, ‘Get out of here, boy!’

After years of trying to get punitive damages with this case, I couldn’t stop now! I resolved to petition the U.S. Supreme Court for certiorari.

Only a small fraction of cases with lawyers petitioning for certiorari are accepted for review by the Supreme Court. I had one small glimmer of hope, though, that my petition would be granted. In 2009, Clarence Thomas joined the Court’s four liberals to rule in a 5-4 decision that punitive damages were available to seamen asserting claims for maintenance and cure. Justice Thomas reasoned that when the Constitution was ratified in 1789, punitive damages could probably be awarded for the willful and wanton refusal to pay maintenance and cure. (No one knows for sure because there are no reported cases on point.) Therefore, he decided, punitive damages should be available now for maintenance and cure claims. Atlantic Sounding v. Townsend, 557 U.S. 404 (2009). The same reasoning could apply to seamen’s claims for wages. I thought I had a shot. On April 7, 2020, I filed a Petition for Writ of Certiorari.

Until the Atlantic Sounding case, the availability of punitive damages under the general maritime law was in a confused state. The field now seemed to be wide open. If Clarence Thomas sided with the Court’s four liberals, my petition for certiorari might actually be granted. I was confident that Eli Dunn would prevail if a tribunal ever put serious thought into the issues presented by the case.

Then, on September 18, 2020, Ruth Bader Ginsburg died. My petition for certiorari was denied two weeks later. 2020 LEXIS 4003 (10/5/20).

The case that was to be the capstone of my career turned into my swan song. What I hoped to be my finest hour had fizzled into a disaster of bad precedent.

But wait! Under the appellate rules (FRAP), Ninth Circuit Rule 36-3 provides that unpublished decisions cannot be cited as precedent. That means I can bring another test case! I can’t retire until this is fixed!

Eli Dunn was recently paid the $1,905 judgment, seven years after he earned it. Bryce Hatch was never criminally prosecuted for forgery.

John Merriam is a former merchant seaman, now a sole practitioner at Seattle’s Fishermen’s Terminal, who limits his practice to the representation of claimants for maritime wages and injury.