1 NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ABDULAZIZ AHMED, No. 16

- 73676

Petitioner, B enefits R eview B oard 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
B efore: 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. 

# FILED

MAY 14 2018
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

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 c overage 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. 200 7). 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). W e review q uestions 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
lo ading, unloading, repairing, dismantling , or building a vessel ). ” 33 U.S.C. § 903(a). Ahmed ’s injury occurred at the Union Pacific Intermodal F acility

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.3

( “ UPRR ” ) during his work as a commercial truck driver for Western Ports Transportation.
Substantial evi dence 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 enumerate d 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)

. The re is nothing intrinsic to the UPRR which makes it particularly su itable 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

. I t 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 i n 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.