WIGGINS, Circuit Judge:
William Sample and James Shelton are longshoremen who seek to overturn the judgment of the district court that the government may take up to six months to conduct Longshoremen's and Harbor Workers' Compensation Act (LHWCA)
The facts are not disputed. Sample was injured on March 28, 1983; Shelton was injured on April 26, 1982. Sample received compensation from Seattle Stevedore from April 8 to June 1, 1983. The employer controverted his claim on June 15, 1983 and a hearing was held before an ALJ on March 17, 1984. On April 24, 1984, Sample received an award of LHWCA compensation. Sample was without income during the more than ten months between the controversion and the award.
Shelton received compensation from the employer from April 27, 1982, but requested a hearing concerning the level of compensation on January 28, 1983. The employer controverted the claim and stopped payment on May 20, 1983. A hearing was held on October 27, 1983 and Shelton was awarded permanent partial disability on February 15, 1984. Almost nine months elapsed between controversion and award during which Shelton was without income.
In its first order, dated April 6, 1984, the district court granted summary judgment for Sample as to his claim that an ALJ must rule on a LHWCA claim within twenty days of a hearing (ER 32). In its second order, dated July 27, 1984, the district court denied the government's request for dismissal of the action as moot. It ruled that benefits must be awarded to a claimant, if at all, within six months of controversion. The trial court also held that since the third sentence of section 919(c) is directory and not mandatory, the Deputy Commissioner of Labor need not reject the claim or make an award within twenty days of employer notice of the claim in cases where no hearing is held. In its third order, dated August 13, 1984, the court granted the private defendants' motion to dismiss all claims against them because the claims were not cognizable in admiralty, there is no private cause of action for violations of the LHWCA and the claims were barred by 33 U.S.C. § 905(a), the LHWCA exclusivity of remedies provision.
A moot action is one where the issues are no longer live or the parties lack a legally cognizable interest in the outcome. Lee v. Schmidt-Wenzel and Harter, 766 F.2d 1387, 1389 (9th Cir.1985). Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies. Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 104 S.Ct. 373, 376, 78 L.Ed.2d 58 (1983). We apply a de novo standard for reviewing a district court's decision on subject matter jurisdiction, see Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 549 (9th Cir.1984) and, concomitantly apply that standard in reviewing questions of mootness.
Since hearings have been held for and awards made to Sample and Shelton, their declaratory and injunctive claims subsist only if this case involves claims that are capable of repetition with respect to those individuals. The government contends that because appellants have not shown that it is likely they will again be injured and make claims, the case against it is moot. Appellants retort that since the district court found that Sample had resumed
The Supreme Court early-on fashioned an exception to the general rule that where a court's decision will no longer have an impact on plaintiff, there is no case or controversy. In Southern Pacific Terminal Company v. Interstate Commerce Commission, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911), the Court permitted review of an administrative order that prohibited for two years the continuing of a private agreement, even though the two years had expired. The Court recognized that questions involved in ICC proceedings are frequently repetitive, but that the agency's orders are often of short duration. Review could be had where there was injury that was "capable of repetition, yet evading review." Id. at 515, 31 S.Ct. at 283.
The questions presented by appellants' claims against the government evade review. They concern twenty-day and six-month time-limits. There could never be a full adjudication that would inure to the benefit of a longshoreman who brought a similar challenge. In Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 186 n. 9, 102 S.Ct. 3034, 3041 n. 9, 73 L.Ed.2d 690 (1982), where it was claimed that an individualized educational program (IEP) for a handicapped child for the school year 1978-79 was inadequate, the Supreme Court noted that "Judicial review invariably takes more than nine months to complete, not to mention the time consumed during preceding state administrative hearings." It held that the IEP's shortcomings were capable of repetition as to the parties before it, yet evaded review. See also California Energy Resources Conservation and Development Commission v. Bonneville Power Administration, 754 F.2d 1470, 1473 (9th Cir.1985) ("short-term transactions ... can evade review in the sense that they can be completed in a shorter time than that required by the parties and this court to file, brief, argue, and decide a case").
The question then is whether the practices to which appellants object are capable of repetition as to them. Where no class action has been instituted, the capable of repetition doctrine is applied only in exceptional situations where the plaintiff can reasonably show that he will again be subject to the same injury. See City of Los Angeles v. Lyons, 461 U.S. 95, 108, 103 S.Ct. 1660, 1668, 75 L.Ed.2d 675 (1983) (unlikely that plaintiff will again be subject to police chokehold). That other persons may litigate a similar claim does not save a case from mootness. Lane v. Williams, 455 U.S. 624, 634, 102 S.Ct. 1322, 1328, 71 L.Ed.2d 508 (1982) (question whether defendant must be informed that guilty plea yields mandatory parole term is moot where sentence already served; petitioner now knows consequences of plea).
This rule is but a reflection of the Article III requirements of direct injury and a "personal stake" in the outcome. See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975); 13A C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3531.12 at 60 (1984). Cases construing the "capable of repetition" rule are thus similar to standing cases. See United States Parole Commission v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980) ("The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)").
The likelihood of the injury recurring must be calculable and if there is no basis for predicting that any future repetition would affect the present plaintiffs, there is no case or controversy. Preiser v. Newkirk, 422 U.S. 395, 402-03, 95 S.Ct. 2330, 2334-35, 45 L.Ed.2d 272 (1975) (prisoner's challenge to transfer from medium to maximum security prison moot because of re-transfer to medium security; any fear of returning to maximum security "remote and speculative"); Wiggins v. Rushen, 760 F.2d 1009, 1011 (9th Cir.1985) (possibility of being sent to maximum security unit "too speculative to rise to the level of reasonable expectation or demonstrated probability"); SEC v. Medical Committee for Human Rights, 404 U.S. 403, 406, 92 S.Ct. 577, 579, 30 L.Ed.2d 560 (1972) (whether shareholders will again submit proposed corporate charter amendment to ban making of napalm too speculative to prevent mootness).
In some cases, it is virtually certain that the plaintiff would never again be affected by the practice that he challenged. See, for example, DeFunis v. Odegaard, 416 U.S. 312, 318-19, 94 S.Ct. 1704, 1706-07, 40 L.Ed.2d 164 (1974) (certain that plaintiff, who challenged admission policies of law school to which he was ordered admitted and from which he graduated, would never go through law school again); Hall v. Beals, 396 U.S. 45, 49, 90 S.Ct. 200, 202, 24 L.Ed.2d 214 (1969) (almost no chance that franchise residency statute that affected plaintiffs in 1968 election would also affect them in 1972); Trustees for Alaska v. E.P.A., 749 F.2d 549, 556 (9th Cir.1984) (intervening change in legal standard moots claim of those challenging expired pollution discharge permits); Wilson v. State of Nev., 666 F.2d 378, 381 (9th Cir.1982) (disparate impact challenge to state high school diploma job requirement mooted by plaintiff's earning diploma); Clancey v. Albert, 600 F.2d 237, 238 (9th Cir.1979) (possibility too remote that constituent challenging bar against convicted and defeated Congressman voting until vindicated or reelected would again live in district with a criminal Congressman), cert. denied, 444 U.S. 916, 100 S.Ct. 230, 62 L.Ed.2d 170 (1979); Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir.1978) (defendant will not repeat exploration which plaintiffs sought to enjoin); Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308 (9th Cir.1974) (woman who sought hospital sterilization sterilized elsewhere).
Other cases evince a strong probability that plaintiff might be affected more than
Many cases fall in between these two poles. In some instances, the action for declaratory or injunctive relief remained viable. See Carroll v. President & Commissioners of Princess Anne, 393 U.S. 175, 179, 89 S.Ct. 347, 350, 21 L.Ed.2d 325 (1968) (racists whose speeches restricted by county ordinance may again seek permit for rally); Johansen v. San Diego County District Council, 745 F.2d 1289, 1293 (9th Cir.1984) (unions and contractors will continue to have labor disputes and NLRB will likely continue to request short-term picketing injunctions); N.A.A.C.P. Western Region v. City of Richmond, 743 F.2d 1346, 1353 (9th Cir.1984) (Richmond police had killed five black men in three years, NAACP has interest in protest and no reason to believe that Richmond will refrain from enforcing the parade ordinance in the future); Tyars v. Finner, 709 F.2d 1274, 1280 (9th Cir.1983) ("definite likelihood" that plaintiff would again be involuntarily committed under challenged procedures because he was committed twice since first raising challenge); Doe v. Gallinot, 657 F.2d 1017, 1021 n. 6 (9th Cir.1981) (same; confined six times after complained-of commitment).
In other instances, there was "very little chance, much less a reasonable expectation" that a plaintiff would again be subjected to the act of which he complains. Luckie v. E.P.A., 752 F.2d 454, 458 (9th Cir.1985) (for recurrence, residents would have to relocate atop another asbestos dump and again be subject to EPA regulatory scheme). See also Lee v. Schmidt-Wenzel and Harter, at 1390 (because vacancies on board of directors of bank now filled, "extremely unlikely" that dispute over whether vacancies must be filled by a majority of full board or could be filled by majority of quorum present at meeting would arise again); Walker v. Huston, 689 F.2d 901, 903 (9th Cir.1982) (release moots challenge to statute making rape offense nonbailable on appeal; no reasonable expectation that petitioner would again be convicted of rape and denied bail); California Hospital Ass'n v. Obledo, 602 F.2d 1357,
There are a few generalizations that might be extracted from the cases concerning capability of repetition. The principal tendency to emerge is the necessity for plaintiffs to show a likelihood that they will be affected again by that which they challenge. A decade ago, when there had as yet been little development of the case law, commentators could argue with some authority that judicial economy or the importance of the question presented may outweigh the need for showing anything more than the "mere possibility" that plaintiff had a continuing personal stake in securing injunctive or declaratory relief. See D. Kates, W. Barker, Mootness in Judicial Proceedings: Toward a Coherent Theory, 62 Cal.L.Rev. 1385, 1418-25 (1974); Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373, 388 (1974). Cases such as City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), and LaDuke v. Nelson, 762 F.2d 1318 (9th Cir.1985), make it clear that, no matter how important the issue or how likely that a similar action will be brought, a court is without jurisdiction if there is not a sufficient likelihood of recurrence with respect to the party now before it.
Another tendency that emerges is that of placing the burden for showing a likelihood of recurrence firmly on the plaintiff. For example, in United States v. W.T. Grant, 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953), the Court held that an injunction case was not moot simply because the defendant had ceased the challenged practice unless the defendant could show that there was "no reasonable expectation" that the practice would be resumed. Thirty years later, Lyons is replete with statements emphasizing that it is plaintiff's burden to show the likelihood of recurrence. 461 U.S. at 101-02, 103 S.Ct. at 1664-65 ("[t]he plaintiff must show that he `has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged official conduct"); 461 U.S. at 109, 103 S.Ct. at 1669 ("the named plaintiff [must] make a reasonable showing that he will again be subjected to
The instant matter is the paradigmatic case for a statistical showing of likely recurrent injury. Here, the predicate to a claim is a physical injury. There are few occurrences that are more assiduously recorded than physical injuries. Without such records, of course, no actuarial table could be constructed and insurance rates could not be fixed. There are many likely sources for establishing the probability that a longshoreman will be seriously injured, including insurance carriers, the Department of Labor and both the employers and unions. With such statistics, a prediction could be made as to whether one with the same work-life expectancy as Sample is likely to experience another claimable injury.
The cases have also not indicated what degree of probability is required where a plaintiff can show a likely recurrence of injury. Query whether the test should be one of more likely than not, i.e. in instances reducible to percentages, more than fifty-fifty, or whether the test should be one where probability, in the strict sense, is not required, but merely some significant possibility. The language found in the cases discussed above, particularly in Weinstein ("demonstrated probability"), militates in favor of a "more likely than not" standard.
The district court here simply noted that Sample had returned to work in a hazardous occupation. That level of generality is insufficient to establish that serious injury will probably recur to Sample. Plaintiffs failed to meet their burden of demonstrating the probability of recurrence. Accordingly, the district court should have dismissed the claims against the government as moot.
Hoping to recover punitive damages, appellants alleged that bad faith actions
Appellants admit that the failure to pay benefits prior to a compensation hearing occurred on land and that the wrongful controversion bore no relationship to a traditional maritime activity. They nevertheless argue that the Executive Jet test is inapplicable because it does not restrict admiralty jurisdiction when the claim is founded upon a maritime statute, the LHWCA, citing Director, Office of Workers' Compensation Programs v. Perini North River Associates, 459 U.S. 297, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983).
Neither that case, nor others cited by appellants, involved the use of admiralty jurisdiction coupled with an LHCWA claim. Perini decided that a construction worker, injured while performing his craft for a construction company on a river barge used for the construction of a sewage treatment plant, was engaged in maritime employment and could, therefore, make an LHWCA claim.
That Congress created statutory obligations under the LHWCA, pursuant to its maritime powers, does not mean that admiralty jurisdiction automatically attaches where a claim is made under the statute. Myhran v. Johns-Manville Corp., 741 F.2d 1119, 1122 (9th Cir.1984) is instructive in that regard. There, a pipefitter was injured by asbestos while repairing and renovating vessels on navigable waters. He filed a products liability action against the manufacturers of asbestos products. Judge Hug noted that the Supreme Court's understanding of the history of admiralty jurisdiction
The district court was thus correct in viewing the intentional harm claim as involving little more than the state law tort of intentional infliction of emotional distress and not an admiralty claim at all.
THE COMMON LAW AND STATUTORY EXCLUSIVITY OF REMEDY
The district court, citing Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), held that an injured longshoreman had no "private right of action" to sue for damages in excess of those prescribed by the
The private defendants answer that there is no federal common law. This is, of course, inaccurate. There may be "no federal general common law," Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938), but federal common law exists where a federal rule of decision is "necessary to protect uniquely federal interests", Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426, 84 S.Ct. 923, 939, 11 L.Ed.2d 804 (1964) or where Congress has given the courts power to develop substantive law. Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963). See also Note, The Federal Common Law, 82 Harv.L.Rev. 1512 (1969). The general maritime law is probably the most ancient body of federal common law. See Edmonds v. Compagnie Generale Transatlantique., 443 U.S. 256, 259, 99 S.Ct. 2753, 2755, 61 L.Ed.2d 521 (1979). It has been specifically held that general federal maritime law is a source of relief for a longshoreman's personal injury. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 412-14, 74 S.Ct. 202, 206-208, 98 L.Ed. 143 (1953).
Supreme Court cases provide several examples of the creation of remedies under general maritime law for nonpecuniary damages that supplement federal maritime statutory remedies. In Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), a longshoreman's widow sued for the wrongful death of her husband. She joined claims of negligence and unseaworthiness under the general maritime law. The Court held that a common law cause of action for wrongful death lies, even though federal statutes have sought to create a uniform remedy for negligently-caused deaths, because additional, nonstatutory federal remedies would create uniformity by substituting for the patch-work of state wrongful death laws. 398 U.S. at 400-01, 90 S.Ct. at 1787-88. In Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 583, 94 S.Ct. 806, 814, 39 L.Ed.2d 9 (1974), the Court, in allowing for suit by the widow of a longshoreman who had recovered damages for his injuries prior to work-related death, stated that Moragne created a wrongful-death remedy independent of any action that the decedent during his lifetime may have had for his own personal injuries. Finally, in American Export Lines, Inc. v. Alvez, 446 U.S. 274, 283, 100 S.Ct. 1673, 1678, 64 L.Ed.2d 284 (1980), the Court held that the wife of a harbor worker injured aboard a ship on state territorial waters could maintain a general maritime action for damages for the loss of her husband's society.
While all of these cases implicated longshoremen or harbor workers, none of these cases involved an action under the LHWCA. Moreover, other cases have not shown a similar readiness to create general maritime nonpecuniary damage remedies. In Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978), the Court construed the Death on the High Seas Act (DOHSA), 46 U.S.C. § 762, as forbidding general maritime law supplementation of the elements of compensation provided for by that Act. DOSHA expressly limits a decedent's survivors' recovery to their "pecuniary loss" and hence additional damages for nonpecuniary losses could not be had. Distinguishing Moragne and Gaudet, Justice Stevens stated that "There is a basic difference between filling a gap left by Congress' silence
While Congress did not expressly preclude the creation of a common law remedy for wrongful controversion, the remedies that it has made available for use against employers who act in bad faith bear on the question of whether federal courts ought to create the general maritime law remedy sought here. As the Court noted in Moragne, 398 U.S. at 407, 90 S.Ct. at 1791, the LHWCA's
The LHWCA's exclusivity of remedies provision, 33 U.S.C. § 905(a), states that "The liability of an employer prescribed in [this title] shall be exclusive and in place of all other liability of such employer." LHWCA liability occurs for "accidental injury or death arising out of and in the course of employment." 33 U.S.C. § 902(2). Thus, the employer is not liable under the LHWCA for intentional injuries that it causes and section 905(a) is not applicable to claims concerning such injuries. However, the term "intentional" is construed very strictly where a workers' compensation statute exists. As Professor Larson, 2A Larson Workmen's Compensation Law § 68.13 at 13-8 — 13-9 (1984), explains
A number of district courts have applied this principle in LHWCA cases. See Houston v. Bechtel Assoc. Professional Corp., 522 F.Supp. 1094, 1096 (D.D.C.1981) ("Nothing short of specific intent to injure the employee falls outside the scope of § 905(a). Absent such specific intent, the employee is foreclosed from maintaining a tort action against his employer") and cases cited therein.
Professor Larson has considered the attempts in worker's compensation cases to create a cause of action for intentional injury by an employer who has delayed or terminated payment or treatment. See 2A Larson Workmen's Compensation Law § 68.34(c) (1984). He has concluded that
Id. at 13-76.
One such case, in which the employer's conduct was "conspicuously contemptible" was Martin v. Travelers Ins. Co., 497 F.2d 329 (1st Cir.1974). Plaintiff had received LHWCA compensation in the form of three drafts, which he deposited and drew upon. The defendant insurance company, deciding to appeal, stopped payments on the draft, causing plaintiff financial hardship and emotional distress. Reversing the district court's dismissal, Judge Coffin, in an opinion free of citation to authority, concluded that where a carrier deliberately stops payments already made, when it should have known that acute harm might follow, the exclusivity provision and the fact that the LHWCA contains a penalty for late payment do not bar an action.
In any event, cases involving ordinary refusal to pay are contra. The bulk of authority in cases involving ordinary refusals to pay is contra. One reason is that most worker's compensation statutes, like the LHWCA,
In this case, Shelton was awarded almost $6,300 in attorney's fees and prejudgment interest and received compensation for the "mental health sequelae" that flowed from his physical injury. Even if the exclusivity provision of the LHWCA is not read to bar the putative cause of action for wrongful refusal to pay, the penalty provision should serve the same purpose. While it may be that the penalty provisions are inadequate to fully compensate a worker who has been harmed by an employer's refusal to pay when due, the problem requires a political solution. Goetz v. Aetna Cas. and Sur. Co., 710 F.2d 561, 564 (9th Cir.1983).
The claims against the government are moot. The district court correctly dismissed the claims against the private defendants.
AFFIRMED IN PART and REVERSED IN PART.
The deputy commissioner shall make or cause to be made such investigations as he considers necessary in respect of the claim, and upon application of any interested party shall order a hearing thereon. If a hearing on such claim is ordered the deputy commissioner shall give the claimant and other interested parties at least ten days' notice of such hearing, served personally upon the claimant and other interested parties or sent to such claimant and other interested parties by registered mail or by certified mail, and shall within twenty days after such hearing is had, by order, reject the claim or make an award in respect of the claim. If no hearing is ordered within twenty days after notice is given as provided in subdivision (b) of this section, the deputy commissioner shall, by order, reject the claim or make an award in respect of the claim.
The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee [except] if an employer fails to secure payment of compensation as required by this chapter, an injured employee ... may elect to claim compensation under the chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death.