California United Terminals v. Sandra Towne

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 16 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
CALIFORNIA UNITED TERMINALS; No. 09-72407
SIGNAL MUTUAL INDEMNITY
ASSOCIATION, LTD.; AVIZENT BRB No. 08-0713
ACCLAIM,
Petitioners, MEMORANDUM *
v.
SANDRA TOWNE; DIRECTOR,
OFFICE OF WORKERS
COMPENSATION PROGRAMS;
MARINE TERMINALS
CORPORATION; MAJESTIC
INSURANCE COMPANY; APM
TERMINALS/MAERSK PACIFIC
LIMITED; CENTENNIAL
STEVEDORING SERVICES;
HOMEPORT INSURANCE
COMPANY,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted February 8, 2011
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
page 2
Pasadena, California
Before: KOZINSKI, Chief Judge, HAWKINS and FISHER, Circuit Judges.
Before the Benefits Review Board, California United Terminals (CUT)
conceded that the ALJ’s order of joinder was the equivalent of the filing and
notification of a claim before the District Director for purposes of 33 U.S.C.
§ 928(a). For example, CUT acknowledged that the statute’s references “to the
[District Director] also refer to the ALJ in a case where the employer or carrier has
been joined as a party defendant by the ALJ.” Because CUT conceded that the
ALJ complied with § 928(a), it has waived the opportunity to now argue the
contrary position. See Schwabenland v. Sanger Boats, 683 F.2d 309, 310 n.1 (9th
Cir. 1982); see also Fed. Sav. & Loan Ins. Corp. v. Butler, 904 F.2d 505, 509 (9th
Cir. 1990). We find no “exceptional circumstances” that warrant consideration of
CUT’s argument for the first time on appeal. See Duncanson-Harrelson Co. v.
Dir., Office of Workers’ Comp. Programs, 644 F.2d 827, 832 (9th Cir. 1981).
CUT’s remaining claims fail because we’ve held that § 928(a) authorizes
the award of pre-controversion attorney’s fees. See Dyer v. Cenex Harvest States
Coop., 563 F.3d 1044, 1050–52 (9th Cir. 2009).
PETITION DENIED.