Knutson Towboat Co v. Alfred Wakeley

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

SEP 23 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

KNUTSON TOWBOAT COMPANY and No. 14-70990

SAIF CORPORATION,

BRB No. 09-0833 Petitioners,

v. MEMORANDUM*

ALFRED F. WAKELEY and DIRECTOR,

OFFICE OF WORKERS’

COMPENSATION PROGRAM,

Respondents.

On Petition for Review of an Order of the Benefits Review Board

Argued and Submitted July 7, 2016 Portland, Oregon

Before: BEA and OWENS, Circuit Judges, and BURNS,** District Judge.

Knutson Towboat Company and SAIF Corporation (“Knutson”) petition for

review of an order of the Benefits Review Board (“BRB”). Knutson argues that

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Larry A. Burns, United States District Judge for the Southern District of California, sitting by designation. substantial evidence does not support a finding by the administrative law judge

(“ALJ”) that tools used to repair maritime equipment were stored inside the

Millington Building. Knutson also argues that…

concurring in the result:

We uphold administrative law judges when their findings are supported by substantial evidence. Keller Foundation/Case Foundation v. Tracy, 696 F.3d 835, 841 (9th Cir. 2012). This standard isn’t exacting—it requires more than a scintilla of evidence (i.e., a nominal showing), but less than a preponderance (ie., 50.1%). Chu v. U.S. Commodity Futures Trading Comm’n, 823 F.3d 1245, 1250 (9th Cir. 2016). Here, the issue before the ALJ was whether Wakeley qualified as a longshoreman and, as such, is entitled to claim benefits under the Longshore and Harbor *489 Workers’ Compensation Act. He could qualify: (1) by performing the work of a longshoremen, ie., working on a boat or as doekhand loading and unloading boats or operating equipment used on and around the waterfront; and (2) by working in a “covered situs,” that is, working on “navigable waters,” or on an “adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel.” 33 U.S.C. § 903 (a).

Wakeley doesn’t work on a boat or load or unload boats, nor for that matter, does he even typically work on the docks. He’s a handyman who injured himself while…

*488 MEMORANDUM **

Knutson Towboat Company and SAIF Corporation (“Knutson”) petition for review of an order of the Benefits Review Board (“BRB”). Knutson argues that substantial evidence does not support a finding by the administrative law jqdge (“ALJ”) that tools used to repair maritime equipment were stored inside the Milling-ton Building. Knutson also argues that claimant Alfred Wakeley lacked status under the Longshore and Harbor Workers’ Compensation Act (“the Act”). See 33 U.S.C. § 902 (3).

We have jurisdiction under 33 U.S.C. § 921 (c). “We review a decision of the BRB 'for errors of law and adherence to the substantial evidence standard, and may affirm on any basis contained in the record.’ ” Keller Found/Case Found, v. Tracy, 696 F.3d 835, 841 (9th Cir. 2012). We deny the petition for review.

I.

“The substantial evidence test for upholding factual findings is 'extremely deferential to the factfinder.’ ” Rhine v. Stevedoring Servs. of Am., 596 F.3d 1161, 1165 (9th Cir. 2010). “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. “Moreover, ‘our task is not to reweigh the evidence, but only to determine if…