Wheaton v. Golden Gate Bridge, Highway & Transp., 07-72141.

• Citation: 559 F.3d 979
• Decision Date: 16 March 2009
• Docket Number: No. 07-72141.,07-72141.
• Parties: Gale WHEATON, Petitioner, v. GOLDEN GATE BRIDGE, HIGHWAY & TRANSPORTATION DISTRICT; National Union Fire Insurance Company of Pittsburgh, Pennsylvania, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

559 F.3d 979

Gale WHEATON, Petitioner, v. GOLDEN GATE BRIDGE, HIGHWAY & TRANSPORTATION DISTRICT; National Union Fire Insurance Company of Pittsburgh, Pennsylvania, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 07-72141.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 12, 2008.

Filed March 16, 2009.

John Ralph Hillsman, Esquire, McGuinn, Hillsman & Palefsky, San Francisco, CA, for the petitioner.

Helen Hart Cox, Attorney, U.S. Department of Labor, Washington, DC, for the respondents.

Rex M. Clack and David E. Russo, Sterling & Clack, San Francisco, CA, for the respondents Golden Gate Bridge, Highway & Transportation District and National Union Fire Insurance Company of Pittsburgh, Pennsylvania.

On Petition for Review of a Final Order of the Benefits Review Board. BRB No. 06-0672.

Before: B. FLETCHER and M. MARGARET McKEOWN, Circuit Judges, and WILLIAM T. HART^*, District Judge.

OPINION

PER CURIAM:

Gale Wheaton appeals the denial of his claim for disability benefits under the Longshore and Harbor Workers' Compensation Act ("LHWCA"). Gale Wheaton was a ferry repairman and mechanic in the Ferry Division of the Golden Gate Bridge, Highway & Transportation District (the "District"). In October 1999, he suffered a back injury while working aboard a vessel on navigable waters of the United States. Wheaton has been paid benefits under California workers' compensation law. If covered by the LHWCA, he would be entitled to additional disability benefits. The dispute turns on whether the District is a "subdivision" of a state as that term is used in § 3(b) of the LHWCA, 33 U.S.C. § 903(b), which provides: "No compensation shall be payable in respect of the disability or death of an officer or employee of the United States, or any agency thereof, or of any State or foreign government, or any subdivision thereof."

An administrative law judge ("ALJ") found, relying on facts stipulated to by the parties, that the District was a subdivision of the State of California and therefore was excluded from coverage under the LHWCA. Wheaton timely appealed to the LHWCA Benefits Review Board ("BRB"), which affirmed. Before this court, both the District and the United States Department of Labor, by the Director of the Office of Workers' Compensation Programs (the "Director"), argue for affirmance.

The parties agree that the District is not an arm of the state entitled to the protections of the Eleventh Amendment nor entitled to state sovereign immunity from federal claims. Case law supports those conclusions. See Michaeledes v. Golden Gate Bridge, Highway & Transp. Dist., 202 F.Supp.2d 1109, 1112-13 (N.D.Cal. 2002). See also Dougherty v. Golden Gate Bridge, Highway & Transp. Dist., 31 F.Supp.2d 724, 727 & n. 3 (N.D.Cal.1998) (dictum that the District "likely" is not an arm of the state). They also agree that, under California law, the District has the status of a local public agency such as a county or municipality. The parties further stipulated to a number of facts related to the District's creation, administration, operations, and powers.

The ALJ applied, and the BRB affirmed, application of a multifactor test for determining whether a public entity is a subdivision. This test was derived from our precedent as well as guidance from the United States Supreme Court and the Benefits Review Board. See Tyndzik v. Director, OWCP, 53 F.3d 1050, 1052-53 (9th Cir.1995); Keating v. City of Titusville, 31 BRBS 187 (BRB 1997); NLRB v. Natural Gas Util. Dist. of Hawkins County, Tenn., 402 U.S. 600, 605-09, 91 S.Ct. 1746, 29 L.Ed.2d 206 (1971) (interpreting "political subdivision" as used in the NLRA, 29 U.S.C. § 152(2)).

In Tyndzik, 53 F.3d at 1052-53 & n. 5, we held that the University of Guam was not a subdivision of a state¹ as that term is used in the LHWCA. We noted that the University was created by the legislature, had a Board of Regents appointed by the legislature, and had a budget controlled by the legislature. However, we held the University was not a subdivision of Guam because the Guam government did not otherwise control the University and the University could not perform basic government functions on its own, take property by eminent domain, enact ordinances, or impose taxes. In so holding, we stated that the University was not "akin" to a municipality, which would qualify it as a subdivision, citing dictum from Purnell v. Norned Shipping B.V., 801 F.2d 152, 154 n. 2 (3d Cir.1986). Tyndzik, 53 F.3d at 1053. We cited the NLRA definition of "political subdivision" as being analogous and the facts that we relied on are among the factors considered in determining whether an entity is a "political subdivision" as that term is used in § 2(2) of the NLRA, 29 U.S.C. § 152(2). See Hawkins County, 402 U.S. at 606-09, 91 S.Ct. 1746; Molina v. Union Independiente Autentica De La AAA, 555 F.Supp.2d 284, 299 (D.P.R.2008).

Factors that may be considered under the Hawkins County test in determining whether the entity's actual operations and characteristics support the conclusion that it is a subdivision of a state include: (a) whether the entity was created by state law; (b) whether the entity was granted all the powers necessary to exercise its functions; (c) whether the entity has the power of eminent domain; (d) whether the entity has the power to assess or collect taxes; (e) the entity's status under state law; (f) whether the entity is exempt from federal taxation; (g) whether the entity's operations are subject to public hearing and its records open to the public; (h) whether the officials administering the entity are responsible to the public or public officials; (i) whether social security benefits for the entity's employees are provided through voluntary rather than mandatory coverage; (j) whether the entity's officers receive nominal compensation; and (k) whether the entity has the power of subpoena. See Hawkins County, 402 U.S. at 606-09, 91 S.Ct. 1746; see also Ayres v. International Bhd. of Elec. Workers, 666 F.2d 441, 442 (9th Cir.1982).

Petitioner contends that the BRB erred in relying on Tyndzik and the Hawkins County factors in determining that the District is a subdivision for purposes of the LHWCA. Petitioner also contends that, even if the BRB properly relied on the Hawkins County factors, it misapplied them to the stipulated facts. This court has established the standard for review in LHWCA benefits cases, including a determination based on stipulated facts.

Whether an employee who seeks benefits is covered by the LHWCA is a mixed question of fact and law. Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 553-54, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997). Where, as here, the underlying facts are undisputed, LHWCA coverage is decided as a matter of law. See id. We review "questions of law, including interpretations of the LHWCA," de novo. Gen. Const. Co. v. Castro, 401 F.3d 963, 965 (9th Cir.2005). Because the BRB is not a policy-making body, its construction of the LHWCA is not entitled to any "special deference." M. Cutter Co. v. Carroll, 458 F.3d 991, 993 (9th Cir.2006) (internal quotation marks omitted). However, we will " `respect the Board's interpretation of the [LHWCA] where such interpretation is reasonable and reflects the policy underlying the statute.'" Id. (quoting McDonald v. Dir., OWCP, 897 F.2d 1510, 1512 (9th Cir.1990)).

Peru v. Sharpshooter Spectrum Venture LLC, 493 F.3d 1058, 1061 (9th Cir.2007). Additionally, the Director's interpretation of the LHWCA, even when advanced during litigation, will be accorded "considerable weight." Healy Tibbitts Builders, Inc. v. Director, OWCP, 444 F.3d 1095, 1098 (9th Cir.2006) (citing Mallott & Peterson v. Director, OWCP, 98 F.3d 1170, 1172 (9th Cir.1996)); Christensen v. Stevedoring Serv. of Am., Inc., 430 F.3d 1032, 1034-35 (9th Cir.2005) (quoting Force v. Director, OWCP, 938 F.2d 981, 983 (9th Cir. 1991)). "Where the relevant statute is `easily susceptible' of the Director's interpretation, `we need go no further.'" Christensen, 430 F.3d at 1035 (quoting Force, 938 F.2d at 984). Accord Healy, 444 F.3d at 1098 (quoting Mallott, 98 F.3d at 1172).

As originally enacted and until amended in 1984, the pertinent provision was contained in § 3(a)(2) of the LHWCA, 33 U.S.C. § 903(a)(2), and read the same except that the word "political" was before "subdivision." See Pub.L. 98-426 § 3, 98 Stat. 1640 (Sept. 28, 1984). The LHWCA contains no definition of "subdivision" and there are no regulations providing a definition. The legislative history from the original enactment in 1927 contains nothing addressing this term nor is there any legislative history from the 1984 amendment that aids in interpreting the term or explaining why "political" was dropped from the statutory language.

Along with Tyndzik, other courts have consistently held that municipalities and agencies of municipalities fall within the meaning of subdivision as that term is used in the LHWCA. See O'Brien v. City of New York, 822 F.Supp. 943, 950 (E.D.N.Y.1993); Bagrowski v. American Export Isbrandtsen Lines, Inc., 305 F.Supp. 432, 433 (E.D.Wis.1969), rev'd on other grounds, 440 F.2d 502 (7th Cir.1971); City of Plantation v. Roberts, 342 So.2d 69, 71 & n. 1 (Fla.1976). Also, when the LHWCA was passed in 1927, the term "political subdivision" was commonly used to include municipalities. See, e.g., First Nat'l Bank v. City of Hartford, 273 U.S. 548, 551, 47 S.Ct. 462, 71 L.Ed. 767 (1927) (quoting Wis. Stat. § 70.11) ("any county, town, city village, school district, or other political subdivision of this state"); General Am. Tank Car Corp. v. Day, 270 U.S. 367, 371-72, 46 S.Ct. 234, 70 L.Ed. 635 (1926) (referring to municipalities and parishes of Louisiana as "political subdivisions"); Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 674, 43 S.Ct. 684, 67 L.Ed. 1167 (1923) ("[m]unicipalities are political ...