NOT FOR PUBLICATION FILED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