Marine Terminals Corporation v. Director, Office of Worker's Compensation Programs

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2024
• Docket: 23-1011
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED JUL 15 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARINE TERMINALS No. 23-1011 CORPORATION; PORTS INSURANCE Agency No. 22-0071 COMPANY, Benefits Review Board Petitioners, MEMORANDUM*

v.

DIRECTOR, OFFICE OF WORKER'S COMPENSATION PROGRAMS; STEVE BUSSANICH,

Respondents.

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

Submitted July 11, 2024** San Francisco, California

Before: HIGGINSON, MENDOZA, and DESAI, Circuit Judges.***

Marine Terminals Corporation petitions for review of a Benefits Review

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 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 Stephen A. Higginson, United States Circuit Judge for the Court of Appeals, 5th Circuit, sitting by designation. Board (“Board”) decision remanding claimant Steve Bussanich’s motion to modify

his partial disability award under the Longshore and Harbor Workers’

Compensation Act. 33 U.S.C. §§ 901, et seq. We lack jurisdiction to evaluate this

claim and dismiss the appeal.

We only have jurisdiction over final orders of the Board. 33 U.S.C. § 921(c).

Generally, a remand order from the Board is not a final order subject to appellate

review. Bish v. Brady-Hamilton Stevedore Co., 880 F.2d 1135, 1137 (9th Cir.

1989). Although in rare cases an otherwise nonreviewable order can be reviewed

under the “collateral order” doctrine, the remand order is not a collateral order. “To

warrant review under the collateral order doctrine, the order must ‘(1) conclusively

determine the disputed question, (2) resolve an important issue completely separate

from the merits of the action, and (3) be effectively unreviewable on appeal from a

final judgment.’” Plata v. Brown, 754 F.3d 1070, 1075 (9th Cir. 2014) (quoting

Will v. Hallock, 546 U.S. 345, 349 (2006)). A statute of limitations claim does not

satisfy the requirement that a collateral order be effectively unreviewable on appeal

from final judgment. United States v. Rossman, 940 F.2d 535, 536 (9th Cir. 1991);

see also Est. of Kennedy v. Bell Helicopter Textron, Inc., 283 F.3d 1107, 1111 (9th

Cir. 2002) (“It is well-established that interlocutory appeals are not available to

address statute of limitations issues because a statute of limitations does not give

rise to a right not to stand trial, but rather creates a safeguard against unfair

2 verdicts from delinquent suits.”). Because 33 U.S.C. § 922 creates a limitations

period for motions to modify, the remand order does not satisfy the third element

of the collateral order test and is not reviewable on appeal. See Metro. Stevedore

Co. v. Rambo, 521 U.S. 121, 134 (1997) (describing § 922 as a statute of

limitations for modification). We thus lack jurisdiction over this appeal.

DISMISSED.