                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 06 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


COASTAL VILLAGES POLLOCK, LLC,                   No. 14-35353
an Alaskan corporation doing business in
Washington,                                      D.C. No. 2:13-cv-01234-JCC

              Petitioner - Appellee,

 v.                                              MEMORANDUM*

AHOKAYA V. LANU NAUFAHU, an
individual,

              Respondent - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
               John C. Coughenour, Senior District Judge, Presiding

                           Submitted August 31, 2016**
                               Seattle, Washington

Before: HAWKINS, McKEOWN, and DAVIS,*** Circuit Judges.



        *
             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).
        ***
             The Honorable Andre M. Davis, Senior Circuit Judge for the United
States Court of Appeals for the Fourth Circuit, sitting by designation.
      Appellant Ahokava Lanu Naufahu1 challenges the summary judgment in

favor of Appellee Coastal Villages Pollock, LLC (“Coastal Villages”) that Naufahu

is not entitled to maintenance and cure, compensation available under general

maritime law to a seaman who falls ill or becomes injured while in the service of a

ship, see Lipscomb v. Foss Maritime Co., 83 F.3d 1106, 1109 (9th Cir. 1996), from

his former employer. For the reasons set forth below, we affirm. The parties are

familiar with the factual background, so we do not recite it here.

      Coastal Villages moved for summary judgment on the grounds that Naufahu

was not entitled to maintenance and cure because his pulmonary conditions did not

arise or manifest while he was working in service of the vessel and because, in any

event, Naufahu’s failure to disclose his medical conditions when specifically asked

about them precluded him from seeking relief. The district court granted Coastal

Villages’s motion on the latter ground, known as the willful concealment defense.

Coastal Villages Pollock, LLC v. Naufahu, Nos. C13-1234-JCC, C13-1235-JCC,

2014 WL 1053126, at *6–7 (W.D. Wash. Mar. 19, 2014).

      We review de novo a district court’s decision granting summary judgment.

Tremain v. Bell Indus., Inc., 196 F.3d 970, 975 (9th Cir. 1999). In doing so, “[w]e


      1
          Naufahu’s first name was apparently misspelled in the caption of this case.
                                           2
determine, viewing the evidence in the light most favorable to the nonmoving

party, whether there are any genuine issues of material fact and whether the district

court correctly applied the relevant substantive law.” Wallis v. Princess Cruises,

Inc., 306 F.3d 827, 832 (9th Cir. 2002).

      Contrary to Naufahu’s assertion, this case does not present a genuine issue

of material fact. The relevant question on appeal is whether the district court

correctly determined, as a matter of law, that Coastal Villages satisfied the

materiality prong of the willful concealment defense based on the largely

undisputed factual record. We hold that it did.

      The Ninth Circuit has recognized that, “[w]here a seaman is asked to

disclose pertinent information during a prehiring medical examination or interview

and intentionally conceals or misrepresents material facts, he is not entitled to an

award of maintenance and cure.” Burkert v. Weyerhaeuser S.S. Co., 350 F.2d 826,

829 n.4 (9th Cir. 1965). Contrary to Naufahu’s argument, this Court has not

determined that the willful concealment defense requires an employer to show that

it absolutely would not have hired a seaman if the seaman had revealed his medical

conditions when asked about them.

      Here, Coastal Villages asked about specific health conditions relevant to the

work that Naufahu would perform aboard the Northern Hawk on a preemployment


                                           3
questionnaire that it used to make hiring decisions, and a Coastal Villages

representative testified that the company would have conducted further inquiry and

may not have hired Naufahu had the seaman disclosed his pulmonary conditions.

Thus, the company satisfied the materiality requirement of the willful concealment

defense.

      As Naufahu concedes that Coastal Villages otherwise established the

elements of this defense, the district court did not err in granting summary

judgment in favor of Coastal Villages.

      AFFIRMED.




                                          4
