                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                             FOR THE NINTH CIRCUIT
                                                                           MAY 27 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
RONALD E. COMPTON,                               No. 14-71470

              Petitioner,                        BRB No. 13-0388

 v.
                                                 MEMORANDUM*
DYNCORP INTERNATIONAL, INC.; et
al.,

              Respondents.


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

                              Submitted May 9, 2016**
                              San Francisco, California

Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.

      Ronald Compton petitions for review of a decision of the Benefits Review

Board (“BRB”) upholding the administrative law judge’s (“ALJ”) decision

denying Compton’s claim for benefits under the Longshore and Harbor Workers’


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Compensation Act, 33 U.S.C. §§ 901-950, as extended by the Defense Base Act,

42 U.S.C. §§ 1651–54. We have jurisdiction under 33 U.S.C. § 921(c). See

Pearce v. Dir., Office of Workers’ Comp. Programs, U. S. Dep’t of Labor, 603

F.2d 763, 770 (9th Cir. 1979). We deny the petition.

      1.     The BRB correctly concluded that substantial evidence supports the

ALJ’s determination that DynCorp rebutted the presumption of compensability.

First, the “zone of special danger” doctrine is not relevant here because it governs

whether an injury occurs in the course of employment, an issue not in dispute. See

O’Leary v. Brown-Pac.-Maxon, 340 U.S. 504, 506 (1951). The issue here is

whether Compton suffered injuries “arising out of” that course of employment,

which the “zone of special danger” doctrine does not answer. See id. Second, to

rebut the presumption, DynCorp was not required to provide evidence sufficient to

“rule out” the possibility that Compton’s employment caused or aggravated his

injuries. That standard is inconsistent with the statutory requirement that the

presumption be rebutted with “substantial evidence to the contrary.” 33 U.S.C.

§ 920; see also Schwirse v. Dir., Office of Workers’ Comp. Program, 736 F.3d

1165, 1172 (9th Cir. 2013).

      Third, the testimony offered by DynCorp’s medical experts was substantial

evidence that Compton’s heart failure resulted from a degenerative condition and


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was not caused or aggravated by his employment. DynCorp’s experts also

presented substantial evidence that Compton’s rheumatoid arthritis was not caused

by his employment. Though one of the experts recognized that stress, such as the

stress Compton experienced in Afghanistan, could trigger episodes of arthritis, the

expert concluded the stress had resolved. This is substantial evidence that any

arthritic episode Compton experienced from stress in Afghanistan is no longer part

of his injury and therefore cannot support his claim for benefits. See 33 U.S.C. §

903(a).

      2.     The BRB correctly concluded that substantial evidence supports the

ALJ’s determination that, weighing the evidence as a whole, Compton’s heart

condition and rheumatoid arthritis are not related to his employment and do not

support a claim for benefits. See Haw. Stevedores, Inc. v. Ogawa, 608 F.3d 642,

648, 651 (9th Cir. 2010). The ALJ reasonably relied on the rebuttal medical

evidence that indicated no causal relationship existed between Compton’s claimed

injuries and his employment, and reasonably discounted the evidence suggesting

otherwise.

      When evaluating Compton’s heart condition, the ALJ reasonably discounted

Dr. Goldberg’s opinion. Dr. Goldberg based his opinion on a lack of evidence

regarding degeneration in Compton’s heart, yet the pathology report found myxoid


                                         3
degeneration. The ALJ reasonably found the analysis in the pathology report more

reliable than the operative report, which was based only on a visual examination

during surgery. The ALJ also reasonably found Compton’s testimony to be only

modestly credible. Compton’s testimony often differed from the medical records,

and various doctors questioned his ability to accurately recount medical histories.

      When evaluating Compton’s rheumatoid arthritis, the ALJ reasonably

discounted Dr. Vaz’s opinion because Dr. Vaz based his opinion on Compton’s

own self-reports.

      3.     The BRB correctly concluded that the ALJ did not err by addressing

Compton’s chronic obstructive pulmonary disease (“COPD”) as a symptom of

Compton’s heart condition or rheumatoid arthritis, and not as an independent

condition. Compton waived an independent claim for COPD. First, he did not

identify COPD as a basis for his benefits claim in his initial application. Second,

when the ALJ asked for clarification as to what injuries Compton alleged, he

described COPD only as a related condition. Third, he did not brief COPD in any

significant way before the ALJ, and his briefing framed it as a condition related to

his heart condition.

      PETITION DENIED.




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                                                                                FILED
Compton v. DynCorp Int’l, Inc., 14-71470
                                                                                 MAY 27 2016
O’SCANNLAIN, Circuit Judge, specially concurring:                         MOLLY C. DWYER, CLERK
                                                                               U.S. COURT OF APPEALS


      I agree with the Court that the Board of Review properly upheld the ALJ’s

determination that DynCorp rebutted the presumption of compensability and that

Compton’s injuries are not ultimately compensable. I also agree with the Court

that binding circuit precedent in Pearce v. Dir., Office of Workers’ Comp.

Programs, 603 F.2d 763, 770 (9th Cir. 1979), interprets the relevant statutes as

granting us jurisdiction over Compton’s petition. I write separately to express my

view that Pearce’s conclusion regarding our jurisdiction to entertain petitions for

review under the Defense Base Act is mistaken and should be overruled. Instead, I

believe statutory authority directs that jurisdiction over petitions such as

Compton’s lies in the first instance with the federal district courts.

      Compton’s petition proceeds via the Defense Base Act (“DBA”), 42 U.S.C.

§ 1651 et seq. The DBA provides workers’ compensation coverage for private

employees working on military bases or other defense projects outside the United

States by extending the provisions of the Longshore and Harbor Workers’

Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq. See AFIA/CIGNA

Worldwide v. Felkner, 930 F.2d 1111, 1112–14 (5th Cir. 1991) (explaining the
history of the DBA). Specifically, the DBA provides that the provisions of the

LHWCA “as amended, shall apply” to employees covered under the DBA

“[e]xcept as herein modified.” 42 U.S.C. § 1651(a).

       As originally enacted, both the LHWCA and the DBA lodged review of

compensation awards in federal district courts, but differed as to the specific

district court to which a party ought to petition. The LHWCA provided that

compensation orders issued under the Act could be challenged by lodging a

petition “in the federal district court for the judicial district in which the injury

occurred.” 33 U.S.C. § 921(b) (1970). The DBA stated that “[j]udicial

proceedings provided under section 18 and 21 of the [LHWCA] . . . in respect to a

compensation order made pursuant [to the DBA] shall be instituted in the United

States district court of the judicial district wherein is located the office of the

deputy commissioner whose compensation order is involved . . . .” 42 U.S.C.

§ 1653(b). In other words, the LHWCA specified that petitions should be brought

to the district court associated with the site of the injury, while the DBA directed

petitioners to the district court associated with the relevant deputy commissioner.

       Confusion arose when Congress amended the LHWCA in 1972. That

amendment to Section 21 of the LHWCA created the Benefits Review Board, and

lodged review in the courts of appeals over compensation orders concerning

                                             2
individuals engaged in maritime employment: “Any person adversely affected . . .

by a final order to the Board may obtain a review of that order in the United States

court of appeals for the circuit in which the injury occurred.” 33 U.S.C. § 921(c).

However, Congress did not amend the companion section of the DBA. Thus, that

section continues to read: “Judicial proceedings provided under section 18 and 21

of the [LHWCA] . . . in respect to a compensation order made pursuant [to the

DBA] shall be instituted in the United States district court of the judicial district

wherein is located the office of the deputy commissioner whose compensation

order is involved.” 42 U.S.C. § 1653(b) (emphasis added). It is undisputed that

jurisdiction over Compton’s petition is conferred by § 1653(b). Yet by its plain

terms, that provision states that Compton should have petitioned to the district

court, rather than our court. And indeed, no fewer than five circuits have relied on

this plain language to conclude that courts of appeals lack jurisdiction to review

DBA petitions. See ITT Base Servs. v. Hickson, 155 F.3d 1272, 1275 (11th Cir.

1998); Hice v. Dir., Office of Workers’ Comp. Programs, 156 F.3d 214, 218 (D.C.

Cir. 1998) (dictum); Lee v. Boeing Co., 123 F.3d 801, 806 (4th Cir. 1997); Felkner,

930 F.2d at 1116; Home Indem. Co. v. Stillwell, 579 F.2d 87, 89 (6th Cir. 1979).




                                           3
      Our circuit is not one of these. In Pearce, we reasoned that although the

§ 1653(b) unequivocally lodges review of DBA petitions in district courts,

Congress silently “repealed” this unambiguous language by amending section 21

of the LHWCA and allowing review of LHWCA claims by the courts of appeal.

603 F.2d at 770. We speculated that because the original purpose of § 1653(b) was

to provide an alternate means for identifying the proper reviewing court since

many DBA claims originate overseas, Congress must have “inadvertently failed to

amend” the DBA when it altered the LHWCA, and thus that we should ignore the

phrase “district court” in § 1653(b). Id. at 769.

      That is a highly dubious proposition. We do not have a “roving license . . .

to disregard clear language simply on the view that . . . Congress ‘must have

intended’ something broader.” Michigan v. Bay Mills Indian Cmty., 134 S. Ct.

2024, 2034 (2014). Section 1653(b) could not be clearer in vesting review over

DBA petitions in “the United States district court.” 42 U.S.C. § 1653(b) (emphasis

added). And if that plain language weren’t clear enough, § 1651 explicitly states

that the DBA incorporates the LHWCA only insofar as the LHWCA accords with

the DBA. See 42 U.S.C. § 1651 (stating that the LHWCA shall apply to the DBA

“[e]xcept as herein modified”); see also Serv. Emps. Int’l, Inc. v. Dir., Office of

Workers Comp. Program, 595 F.3d 447, 458 (2d Cir. 2010) (Cabranes, J.,

                                           4
dissenting) (observing that under § 1651 “to the extent that the language of the

DBA and the Longshore Act are in conflict, the language of the DBA controls”).

Even assuming Congress may have meant for DBA petitions to be directed to

circuit courts as LHWCA claims now are, we “do not revise legislation . . . just

because the text as written creates an apparent anomaly.” Bay Mills, 134 S. Ct. at

2033. “If Congress enacted into law something different from what it intended,

then it should amend the statute to conform to its intent.” Lamie v. U.S. Trustee,

540 U.S. 526, 542 (2004). Any other approach—and especially the one we

employed in Pearce—“aggrandizes judicial power and encourages congressional

lassitude.” King v. Burwell, 135 S. Ct. 2480, 2506 (2015) (Scalia, J., dissenting).

In my view, neither vice needs any additional encouragement from us.

      With these observations in mind, I concur in the Court’s decision.




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