Duc Ngoan Mai v. Director, Office of Workers' Compensation Programs, United States Department of Labor

MEMORANDUM ** Due Ngoan Mai petitions for review of the final decision and order of the Benefits Review Board (“BRB”) denying his claim under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq. The BRB affirmed the Administrative Law Judge’s (“ALJ”) determination that Mai’s job duties were not related to the construction or repair of boats, and, therefore, he was not a maritime employee covered under the LHWCA. Mai argues that the ALJ should have drawn an adverse inference against the employer regarding his job duties because the employer failed to introduce his time cards into evidence. A fact finder has discretion in deciding whether to draw an adverse inference, so long as the decision is based upon a sound rationale. See UAW v. NLRB, 459 F.2d 1329, 1339 (D.C.Cir.1972); Alberta Pork Producers’ Mktg. Bd. v. United States, 669 F.Supp. 445, 459 (Ct. Int’l Trade 1987). Because the ALJ found that Mai had not established a prima facie case under the LHWCA based solely on his own testimony, see Wood v. CIR, 338 F.2d 602, 605 (9th Cir.1964), the ALJ acted within his discretion when he refused to apply the adverse inference rule in Mai’s favor. PETITION DENIED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.