California United Terminals v. Sandra Towne

MEMORANDUM * Before the Benefits Review Board, California United Terminals (CUT) conceded that the ALJ’s order of joinder was the equivalent of the filing and notification of a claim before the District Director for purposes of 33 U.S.C. § 928(a). For example, CUT acknowledged that the statute’s references “to the [District Director] also refer to the AL J in a case where the employer or carrier has been joined as a party defendant by the ALJ.” Because CUT con *942 ceded that the ALJ complied with § 928(a), it has waived the opportunity to now argue the contrary position. See Schwabenland v. Sanger Boats, 683 F.2d 309, 310 n. 1 (9th Cir.1982); see also Fed. Sav. & Loan Ins. Corp. v. Butler, 904 F.2d 505, 509 (9th Cir.1990). We find no “exceptional circumstances” that warrant consideration of CUT’S argument for the first time on appeal. See Duncanson Harrelson Co. v. Dir., Office of Workers’ Comp. Programs, 644 F.2d 827, 832 (9th Cir.1981). CUT’S remaining claims fail because we’ve held that § 928(a) authorizes the award of pre-controversion attorney’s fees. See Dyer v. Cenex Harvest States Coop., 563 F.3d 1044, 1050-52 (9th Cir.2009). PETITION DENIED. Footnotes [*] This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.