Abdulaziz Ahmed v. Western Ports Transportation ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABDULAZIZ AHMED, No. 16-73676
Petitioner, Benefits Review Board
No. 16-0067
v.
MEMORANDUM*
WESTERN PORTS TRANSPORATION,
and DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS
Respondents
On Petition for Review of an
Order of the Benefits Review Board
Submitted May 7, 2018**
Seattle Washington
Before: GOULD, IKUTA, Circuit Judges, and FREUDENTHAL,*** Chief District
Judge
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Nancy D. Freudenthal, Chief United States District
Judge for the District of Wyoming, sitting by designation.
1
Abdulaziz A. Ahmed (“Ahmed”) brings this petition for review of a decision
of the Benefits Review Board (“the Board”) denying benefits for injuries under the
Longshore and Harbor Workers’ Compensation Act (“the Act”), 33 U.S.C. § 901
et seq. We have jurisdiction pursuant to 33 U.S.C. § 921(c), and we deny the
petition for review.1
This case is about coverage under the Act, which is a mixed question of law
and fact. Peru v. Sharpshooter Spectrum Venture LLC, 493 F.3d 1058, 1061 (9th
Cir. 2007). We review the Board’s decisions for errors of law and for adherence to
the statute requiring the Board to accept the factual findings of the Administrative
Law Judge if they are supported by substantial evidence. 33 U.S.C. § 921(b)(3);
Dorris v. Dir., Office of Workers’ Comp. Programs, 808 F.2d 1362, 1364 (9th Cir.
1987). We review questions of law de novo. Valladolid v. Pac. Operations
Offshore, LLP, 604 F.3d 1129, 1130 (9th Cir. 2010).
For coverage, Ahmed must satisfy the Act’s “situs” requirement, which
requires the employee’s injury to occur “upon the navigable waters of the United
States (including 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). Ahmed’s injury occurred at the Union Pacific Intermodal Facility
1
Because the parties are familiar with the facts and procedural history, we do not
restate them here except as necessary to explain our decision.
2
(“UPRR”) during his work as a commercial truck driver for Western Ports
Transportation.
Substantial evidence supports the Board’s conclusion that the UPRR’s
functional connection to the port is too attenuated under the situs test to confer
coverage. As the UPRR is not an enumerated situs, the issue is whether it is an
“adjoining area” under § 903(a) of the Act. The Board properly considered the
“adjoining area” factors from Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d
137, 141 (9th Cir. 1978). There is nothing intrinsic to the UPRR which makes it
particularly suitable for maritime activities other than it is geographically close to a
navigable waterway. It is a mixed-use site outside the port transected by several
public streets. The UPRR is located near the port for economic, not functional,
reasons. Rather, the functional nexus of the UPRR is with the landward
transportation of cargo. It is not an “adjoining area customarily used by an
employer in loading, unloading, repairing, dismantling, or building a vessel.” 33
U.S.C. § 903(a). The Board did not err in denying Ahmed’s claim for benefits
under the Act.
As Ahmed failed to satisfy the “situs” requirement for coverage, there is no
need to address whether he satisfies the Act’s maritime “status” requirement.
PETITION DENIED.
3