                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 19 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



BLACKWATER SECURITY                              No. 11-71587
CONSULTING, LLC and
CONTINENTAL INSURANCE                            BRB No. 10-454
COMPANY, successor to Fidelity
Casualty Company of New York,
                                                 MEMORANDUM *
              Petitioners,

  v.

DIRECTOR, OFFICE OF WORKERS
COMPENSATION PROGRAMS; et al.,

              Respondents.



                     On Petition for Review of an Order of the
                              Benefits Review Board

                     Argued and Submitted December 7, 2012
                            San Francisco, California

Before:       HAWKINS, TASHIMA, and MURGUIA, Circuit Judges.

       Petitioner Blackwater Security Consulting, LLC, and its insurance carrier,

Continental Insurance Company (together, “Blackwater”), petition for review of



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the decision of the Benefits Review Board (“BRB”) partially affirming the decision

of the Administrative Law Judge (“ALJ”) and awarding Daniel Raymond

compensation under the Longshore and Harbor Workers’ Compensation Act, 33

U.S.C. § 901 et seq. (“LHWCA”), as extended by the Defense Base Act, 42 U.S.C.

§ 1651 et seq. (“DBA”). Because the facts and procedural history are familiar to

the parties, we do not recite them here, except as necessary to explain our

disposition. We have jurisdiction under 33 U.S.C. § 921(c). We review decisions

of the BRB “for errors of law and adherence to the substantial evidence standard.”

Keenan v. Dir., OWCP, 392 F.3d 1041, 1044 (9th Cir. 2004). We deny

Blackwater’s petition for review.

         Blackwater’s contention that the BRB overturned the factual finding of the

ALJ that Raymond planned to cease his overseas employment is incorrect: the

BRB did not dispute the ALJ’s finding, rather it held that the finding was legally

irrelevant. Blackwater’s argument that the ALJ should have been allowed to take

account of Raymond’s plans to return stateside is similarly without merit. We

agree with the BRB that the LHWCA does not permit the result that Blackwater

seeks.

         The LHWCA defines disability as “incapacity because of injury to earn the

wages which the employee was receiving at the time of injury in the same or any


                                          -2-
other employment.” 33 U.S.C. § 902(10). Raymond’s circumstances fall within

the plain language of this definition. Nor is it contested that his unscheduled

partial permanent disability brings him within the terms of § 908(c)(21). That

section unambiguously provides that an ALJ shall award two-thirds of the

difference between a claimant’s average weekly wages at the time of injury and his

post-injury wage-earning capacity. 33 U.S.C. § 908(c)(21). Nothing in the

statutory scheme allows for an ALJ to disregard or modify this formula.

      We have repeatedly held that the LHWCA does not grant an ALJ any

discretion to re-calibrate a claimant’s average weekly wages at the time of injury

based on future events that would have changed that wage regardless of injury.

See, e.g., Sestich v. Long Beach Container Terminal, 289 F.3d 1157, 1160-61 (9th

Cir. 2002) (assuming that wages would have increased as claimant argued, but

holding that fact legally irrelevant because award properly based solely on

mathematical formula); Keenan, 392 F.3d at 1045-46 (same). The decision of the

BRB was therefore not erroneous.

      Finally, Blackwater’s argument that applying the plain language of the

LHWCA to overseas contractors creates “absurd” results misapprehends the role of

the judiciary. The LHWCA and the DBA embody legislative choices that we have

no authority to disregard. See Potomac Elec. Power Co. v. Dir., OWCP, 449 U.S.


                                         -3-
268, 282-84 (1980) (stating that where plain statutory language “produces

incongruities, the federal courts may not avoid them by rewriting or ignoring that

language”). Accordingly, we must interpret and apply the LHWCA and the DBA

as written.

      The decision of the BRB was correct.

      PETITION DENIED.




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