771 F.2d 1335 (9th Cir. 1985), 84-4134, Sample v. Johnson

Docket Nº:84-4134, 84-4240.
Citation:771 F.2d 1335
Party Name:William SAMPLE and Karen Sample, husband and wife, and James Shelton, Plaintiffs-Appellants/Cross-Appellees, v. Reginald JOHNSON, Deputy Commissioner for the Office of Worker Compensation Program for District 14, et al., Defendants-Appellees/Cross-Appellants.
Case Date:September 20, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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771 F.2d 1335 (9th Cir. 1985)

William SAMPLE and Karen Sample, husband and wife, and James

Shelton, Plaintiffs-Appellants/Cross-Appellees,


Reginald JOHNSON, Deputy Commissioner for the Office of

Worker Compensation Program for District 14, et

al., Defendants-Appellees/Cross-Appellants.

Nos. 84-4134, 84-4240.

United States Court of Appeals, Ninth Circuit

September 20, 1985

Argued and Submitted Aug. 8, 1985.

As Amended Oct. 22 and Oct. 25, 1985.

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[Copyrighted Material Omitted]

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Scott E. Stafne, Stewart Jay, Seattle, Wash., for plaintiffs-appellants/cross-appellees.

Richard K. Willard, Acting Asst. Atty. Gen., Gene S. Anderson, U.S. Atty., John F. Cordes, Mark W. Pennak, Dept. of Justice, Washington, D.C., for defendants-appellees/cross-appellants.

Richard M. Slagle, Williams, Lanza, Kastner & Gibbs, Seattle, Wash., for Seattle Stevedore Co., etc.

Appeal from the United States District Court for the Western District of Washington.

Before: PREGERSON and WIGGINS, Circuit Judges and SCHNACKE, [*] District Judge.

WIGGINS, Circuit Judge:

William Sample and James Shelton are longshoremen who seek to overturn the judgment of the district court that the government may take up to six months to conduct Longshoremen's and Harbor Workers' Compensation Act (LHWCA) 1 claim hearings and that Sec. 919(c) 2 does not compel the government to reject an LHCWA claim or make an award within 20 days after notice if no hearing is held. They also seek a reversal of the judgment below ruling that there is no admiralty jurisdiction for their claims against their

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employer and other "private" defendants and no general maritime law remedy for intentionally wrongful controversions of LHWCA claims. The government argues that since Sample and Shelton have been compensated, their claims are moot. We conclude that the district court erred in refusing to dismiss the claims against the government as moot but we affirm the dismissal of the claims against the employer.


The facts are not disputed. Sample was injured on March 28, 1983; Shelton was injured on April 26, 1982. Sample received compensation from Seattle Stevedore from April 8 to June 1, 1983. The employer controverted his claim on June 15, 1983 and a hearing was held before an ALJ on March 17, 1984. On April 24, 1984, Sample received an award of LHWCA compensation. Sample was without income during the more than ten months between the controversion and the award.

Shelton received compensation from the employer from April 27, 1982, but requested a hearing concerning the level of compensation on January 28, 1983. The employer controverted the claim and stopped payment on May 20, 1983. A hearing was held on October 27, 1983 and Shelton was awarded permanent partial disability on February 15, 1984. Almost nine months elapsed between controversion and award during which Shelton was without income.

In its first order, dated April 6, 1984, the district court granted summary judgment for Sample as to his claim that an ALJ must rule on a LHWCA claim within twenty days of a hearing (ER 32). In its second order, dated July 27, 1984, the district court denied the government's request for dismissal of the action as moot. It ruled that benefits must be awarded to a claimant, if at all, within six months of controversion. The trial court also held that since the third sentence of section 919(c) is directory and not mandatory, the Deputy Commissioner of Labor need not reject the claim or make an award within twenty days of employer notice of the claim in cases where no hearing is held. In its third order, dated August 13, 1984, the court granted the private defendants' motion to dismiss all claims against them because the claims were not cognizable in admiralty, there is no private cause of action for violations of the LHWCA and the claims were barred by 33 U.S.C. Sec. 905(a), the LHWCA exclusivity of remedies provision. 3


A moot action is one where the issues are no longer live or the parties lack a legally cognizable interest in the outcome. Lee v. Schmidt-Wenzel and Harter, 766 F.2d 1387, 1389 (9th Cir.1985). Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies. Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 104 S.Ct. 373, 376, 78 L.Ed.2d 58 (1983). We apply a de novo standard for reviewing a district court's decision on subject matter jurisdiction, see Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 549 (9th Cir.1984) and, concomitantly apply that standard in reviewing questions of mootness.

Since hearings have been held for and awards made to Sample and Shelton, their declaratory and injunctive claims subsist only if this case involves claims that are capable of repetition with respect to those individuals. The government contends that because appellants have not shown that it is likely they will again be injured and make claims, the case against it is moot. Appellants retort that since the district court found that Sample had resumed

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working in the hazardous occupation of longshoreman, they continue to present viable claims against the government.

The Supreme Court early-on fashioned an exception to the general rule that where a court's decision will no longer have an impact on plaintiff, there is no case or controversy. In Southern Pacific Terminal Company v. Interstate Commerce Commission, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911), the Court permitted review of an administrative order that prohibited for two years the continuing of a private agreement, even though the two years had expired. The Court recognized that questions involved in ICC proceedings are frequently repetitive, but that the agency's orders are often of short duration. Review could be had where there was injury that was "capable of repetition, yet evading review." Id. at 515, 31 S.Ct. at 283. 4

The questions presented by appellants' claims against the government evade review. They concern twenty-day and six-month time-limits. There could never be a full adjudication that would inure to the benefit of a longshoreman who brought a similar challenge. In Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 186 n. 9, 102 S.Ct. 3034, 3041 n. 9, 73 L.Ed.2d 690 (1982), where it was claimed that an individualized educational program (IEP) for a handicapped child for the school year 1978-79 was inadequate, the Supreme Court noted that "Judicial review invariably takes more than nine months to complete, not to mention the time consumed during preceding state administrative hearings." It held that the IEP's shortcomings were capable of repetition as to the parties before it, yet evaded review. See also California Energy Resources Conservation and Development Commission v. Bonneville Power Administration, 754 F.2d 1470, 1473 (9th Cir.1985) ("short-term transactions ... can evade review in the sense that they can be completed in a shorter time than that required by the parties and this court to file, brief, argue, and decide a case").

The question then is whether the practices to which appellants object are capable of repetition as to them. Where no class action has been instituted, the capable of repetition doctrine is applied only in exceptional situations where the plaintiff can reasonably show that he will again be subject to the same injury. See City of Los Angeles v. Lyons, 461 U.S. 95, 108, 103 S.Ct. 1660, 1668, 75 L.Ed.2d 675 (1983) (unlikely that plaintiff will again be subject to police chokehold). That other persons may litigate a similar claim does not save a case from mootness. Lane v. Williams, 455 U.S. 624, 634, 102 S.Ct. 1322, 1328, 71 L.Ed.2d 508 (1982) (question whether defendant must be informed that guilty plea yields mandatory parole term is moot where sentence already served; petitioner now knows consequences of plea).

This rule is but a reflection of the Article III requirements of direct injury and a "personal stake" in the outcome. See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975); 13A C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure Sec. 3531.12 at 60 (1984). Cases construing the "capable of repetition" rule are thus similar to standing cases. See United States Parole Commission v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980) ("The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)"). 5

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There has been scant analysis of what must be shown to establish that a plaintiff will likely be injured again. The Supreme Court has stated that plaintiffs must demonstrate that a "credible threat" exists that they will again be subject to the specific injury for which they seek injunctive or declaratory relief. Kolender v. Lawson, 461 U.S. 352, 355 n. 3, 103 S.Ct. 1855, 1857 n. 3, 75 L.Ed.2d 903 (1983). A "reasonable showing" of a "sufficient likelihood" that plaintiff will be injured again is necessary. City of Los Angeles v. Lyons, 461 U.S. at 108, 111, 103 S.Ct. at 1668, 1670. The "mere physical or theoretical possibility" of a challenged action again affecting a plaintiff is not sufficient. Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (not probable that conviction of one who attacked state's denial of bail for accused sex offenders will be overturned and he will again seek pre-trial bail). There must be a "demonstrated probability" that plaintiff will again be among those injured. Weinstein v. Bradford, 423 U.S. at 149, 96 S.Ct. at 348 (not shown that former prisoner probably would be...

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