                             NOT FOR PUBLICATION

                   UNITED STATES COURT OF APPEALS                           FILED
                             FOR THE NINTH CIRCUIT                           FEB 16 2011

                                                                         MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

CALIFORNIA UNITED TERMINALS;                     No. 09-72407
SIGNAL MUTUAL INDEMNITY
ASSOCIATION, LTD.; AVIZENT                       BRB No. 08-0713
ACCLAIM,

              Petitioners,                       MEMORANDUM *

  v.

SANDRA TOWNE; DIRECTOR,
OFFICE OF WORKERS
COMPENSATION PROGRAMS;
MARINE TERMINALS
CORPORATION; MAJESTIC
INSURANCE COMPANY; APM
TERMINALS/MAERSK PACIFIC
LIMITED; CENTENNIAL
STEVEDORING SERVICES;
HOMEPORT INSURANCE
COMPANY,

              Respondents.



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

                      Argued and Submitted February 8, 2011


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                 page 2

                                Pasadena, California

Before:      KOZINSKI, Chief Judge, HAWKINS and FISHER, Circuit Judges.

      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 ALJ in a case where the employer or carrier has

been joined as a party defendant by the ALJ.” Because CUT conceded 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.
