Michael Robirds v. Ictsi Oregon, Inc. ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 11 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL R. ROBIRDS, No. 19-71634
Petitioner, BRB No. 17-0635
v.
MEMORANDUM*
ICTSI OREGON, INC.; SIGNAL
MUTUAL INDEMNITY ASSOCIATION,
Respondents,
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS,
Real Party in Interest.
ICTSI OREGON, INC.; SIGNAL No. 19-71865
MUTUAL INDEMNITY ASSOCIATION,
LTD., BRB No. 17-0635
Petitioners,
v.
MICHAEL R. ROBIRDS; DIRECTOR,
OFFICE OF WORKERS'
COMPENSATION PROGRAMS,
Respondents.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Page 2 of 3
On Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted March 1, 2021
Portland, Oregon
Before: PAEZ and WATFORD, Circuit Judges, and TUNHEIM,** District Judge.
We lack jurisdiction to resolve this dispute. ICTSI Oregon, Inc. previously
paid Michael Robirds more than he was entitled to receive, and the amount of that
overpayment exceeds the amount of interest Robirds seeks to recover in this
proceeding. ICTSI has waived its right to apply the overpayment to any future
modification of Robirds’s award. The Benefits Review Board concluded that
ICTSI’s waiver did not moot the controversy because without a modification of the
compensation order, ICTSI could still retract the waiver. But ICTSI would be
judicially estopped from doing so in any future proceeding. See New Hampshire v.
Maine, 532 U.S. 742, 750–51 (2001).
Robirds argues that a live controversy remains because the allegedly
wrongful conduct—the denial of pre-judgment interest on an assessment under 33
U.S.C. § 914(e)—is likely to recur. But for that conduct to recur, Robirds would
have to again be injured while employed by ICTSI, there would have to be another
**
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
Page 3 of 3
dispute over the amount of compensation owed, and ICTSI would have to again
fail to pay the disputed amount or controvert the claim in a timely fashion. Given
the highly speculative nature of this chain of events, “there is no reasonable
expectation that the wrong will be repeated.” United States v. W.T. Grant Co., 345
U.S. 629, 633 (1953).
Robirds relies on Moody v. Huntington Ingalls Inc., 879 F.3d 96 (4th Cir.
2018), in arguing that the case is not moot. But the gamesmanship by the
defendant that led to the decision in that case is not present here. ICTSI waived its
right to apply the overpayment to any future modification after the appeal to the
Benefits Review Board had been filed but before briefing had been completed.
ICTSI offered the waiver not to avoid an imminent (and presumably adverse)
decision on the merits, as in Moody, but rather to avoid further litigation costs that
would undoubtedly exceed the relatively small amount of money in dispute.
We dismiss the petition and cross-petition for lack of jurisdiction. We
remand to the Benefits Review Board with instructions to vacate its decision with
respect to interest under 33 U.S.C. § 914(e).
PETITIONS DISMISSED; REMANDED with instructions.
The parties shall bear their own costs on appeal.