*2 FISHER, Before SLQVITER, GREENBERG, Judges. Circuit OPINION OF THE COURT GREENBERG, Judge. Circuit
I.
INTRODUCTION
This matter comes on before this court
petition
on a
disposition
review of a
(“Board”)
the Benefits Review Board
awarding benefits to Edward DiFidelto un-
der
Longshore
and Harbor Workers’
Compensation
(“LHWCA”),
Act
33 U.S.C.
901-950,
§§
following his
in-
sustaining an
jury compensable under
the LHWCA.
The sole issue in
proceedings
these
Stevedores,
whether Delaware River
Inc.
(“DRS”),
employer,
DiFidelto’s
had au-
thority
LHWCA,
under a provision of the
(“section
§ 908(j)
33 U.S.C.
908(j)”), to re-
quire
report
DiFidelto to
information re-
garding
earnings
his
pay-
when it was not
ing him compensation at the time of its
requests.1
908(j) provides
Section
that an
employer may
E. Kawczynski
Field,
John
inform a
(argued),
employ-
“disabled
Kawczynski,
NJ,
Womack &
ee” of
Amboy,
obligation
report
South
his
his
Stevedores,
for Petitioners Delaware River
to the employer
employment
or self-
Inc. and Liberty Mutual
employment
Insurance Com-
provides
and further
if
Liberty
Company,
Mutual Insurance
Liberty
treat
single
DRS and
Mutual as a
DRS,
party
proceed-
insures
is also a
to these
party.
ings but
aas matter of
we
convenience
will
rector”),
knowingly
adopted Form LS-200 for the
report or
fails to
earnings pursuant
his earn-
to section
reporting
or understates
willfully,omits
right
908(j).
his
second forms that
ings, he forfeits
The first and
he
during which
January
February
25 and
DRS sent
report. Knowl-
to file the
respectively,
reporting
identified the
*3
earn-
employee’s
of an
of the amount
edge
7, 2000,
period
being
January
from
as those
may
useful to an
ings
be
21,
Thereafter,
22,
January
April
2002.
on
or even
may
it to reduce
earnings
enable
2002,
attorney
sent DiFidelto’s
a
DRS
it otherwise
obligation
eliminate
requesting
third Form LS-200
information
to a dis-
payments
to make
would have
earnings
about DiFidelto’s
between Janu-
account of a work-relat-
employee on
abled
7, 2000,
22,
Although
2002.
ary
April
and
injury.2
ed
requests,
DiFidelto received DRS’s
he re-
report
еarnings
as he contend-
fused
his
AND PROCEDURAL
II. FACTUAL
legal obligation
ed that he did not have a
HISTORY
long
to do so as
as DRS was not
histo-
procedural
material facts and
The
him compensation.
proceedings are
regard to these
ry with
(“ALJ”)
judge
An administrative law
7, 2000, DiFi-
January
dispute.
On
18,
July
hearing
held a
in this case on
injury
suffered a work-related
delto
2002,
2, 2003,
on June
he
following
employment
his
scope
course and
awarding
his “Decision and Order”
issued
from
him to receive benefits
entitling
DRS
2,
In
2003
DiFidelto benefits.
his June
Initially, DRS
the LHWCA.
DRS under
found,
Order,
the ALJ
inter
Decision
without
voluntarily
payments
made the
alia,
though DiFidelto
that even
was enti-
order, but on November
аdjudication or
compensation
tled to reinstatement of his
19, 2001,
them as it contro-
it discontinued
right
“forfeited” his
payments,' he had
to do so on the basis
obligation
its
verted
compensation
period
for the
between Janu-
had
that DiFidelto
opinion
of a medical
2000,
22, 2002,
8,
he
ary
April
because
injuries.
fully
his
When
recovered
from
earnings
re-
report
failed to
his
as DRS
claim,
DiFidelto’s
it re-
controverted
DRS
quested.
of the Office
the District Director
quested
result,
reaching
In
the ALJ indicat
Programs to
Compensation
of Workers’
apply if an
penalties
of Administra-
that forfeiture
refer the case to thе Office
ed
DiFi-
in
surprisingly,
respond
responds
Not
fails to
or
Judges.
tive Law
rejected
position, and thus he
In
accurately
request.
delto
DRS’s
to a Form LS-200
under the
prosecuted a claim for benefits
considering
applicability
of the section
LHWCA.
requirement, the ALJ de
reporting
factor
that “the decisive
termined
in the
requested
hearing
After DRS
sought
for
earnings
whether
information
longer
and at a time that
no
during
employee’s
which an
earn
‘periods
DiFidelto,
it sent
making payments to
liability for
ings
employer’s
could affect
attorney, pur-
to his
three Forms LS-200
’
(quoting
at 56
compensation.”
App.
908(j), seeking
to section
information
suant
Exch.,
Ben.
Corps
v. Marine
Plappert
earnings
employment
from
about his
13, 17, aff'd, 31 Ben. Rev.
Rev. Bd. Serv.
Director, Office of
self-employment. banc)).
(1997) (en
(“Di-
Inasmuch
Bd.
Programs
Serv.
Compensation
Workers’
922;
Am.,
272 F.3d
Stevedoring
2.
33 U.S.C.
v.
Servs.
Steve
Deweert
see also Metro.
See
291, 296-97,
1241,
(9th Cir.2001).
Rambo,
1247-48
dore Co.
2144, 2147-48,
(1995);
ual whom the com- 27, 2004, July On the Director filed a pensation requires when it “Motion for Reconsideration and a Motion report. Clearly, though even had DRS to Hold Appeal Abey- [the DiFidelto] paid compensation, DiFidelto it was not ance” with the Board to await its decision doing him so when it sent the LS-200 Marine, Inc., in Briskie v. Weeks 38 Ben. DiFidelto, time, forms and thus at that did Rev. Bd. Serv. 61 appeal another not сonsider himself to be a disabled em- pending then before it concerning the ployee purposes for of section 908®. same issue involved here. DiFidelto and joined in 30, 2003, DRS request. Director’s Be-
On June the ALJ issued a 27, July fore the Board ruled on the 2004 Granting “Decision and Order Claimant’s motion, decided Briskie on 25, it August Request for Reconsideration.” In the 2004. In Briskie the Board concluded that 30, Order, June 2003 Decision and the ALJ section was ambiguous,” corrected technical “somewhat deficiencies the June 908® 2, and thus it looked to imple- 2003 and the section’s respect Decision Order with to menting regulation legislative history periods during time which DiFidelto guidance was to the forfeiture issue. partial entitled total versus com- Ulti- Board held in Briskie ALJ, mately, pensation.3 however, rejected The section applied only during a request DiFidelto’s that the ALJ reconsid- 908® an employer findings compen- er his with to the forfei- sation. ture of benefits as the ALJ adhered his that, according Plappert,
view the re- Briskie, In light of resort DRS’s to for- porting obligation applies any period case, feiture was foreclosed in this during which the claims compen- thus the Board panel upheld DiFidelto’s sation. entitlement to the entire 17, 2003, July On DiFidelto a award. On October filed time- the Board ly appeal argued styled Board. DiFidelto issued its final order in again employee” Reconsideration,” that a “disabled an “Order oh must be Motion for Briskie, receiving compensation which, when the relying on it reversed 3. We are not concerned with these correc- lions.
619 843, statute. Id. at 104 at on the for- S.Ct. Decision and Order the ALJ’s 6, 2004, DRS considering regulation issue. On December When whether the feiture for review with this timely petition filed a complies Congress’s mandate: court.4 regulation We look to see whether the plain meaning harmonizes with the AND III. JURISDICTION statute, origins, pur- its аnd its OF STANDARD long .... pose regulation So as the REVIEW relationship language bears a fair jurisdiction over DiFidel Board had The statute, of the reflects the views of those timely peti he filed his appeal because to’s enactment, sought who its and matches decision. See tion for review of the ALJ’s articulated, purpose they it will mer- 702.393, 921(c); §§ 33 U.S.C. it deference. 802.206(a). timely Director filed E. 54 at Corp., Associated Coal F.3d of the Board’s motion for reconsideration FDIC, 448, (quoting Sekula v. 39 F.3d order, which led to the July (3d Cir.1994)). also must “defer to an We 2004 order issue Board’s October agency’s interpretation consistent of its jurisdiction over have DRS’s here. We regulation plainly own unless it is errone- timely filed it for review as petition regulation.” or inconsistent with the ous Board’s October days within Dir., Mangifest, OWCP v. 826 F.2d *5 See 33 2004 order on reconsideration. (3d Cir.1987) (internal 1323 citations and 802.410(a). 921(c); § § U.S.C. omitted). quotations court, in this as DiFidelto proper Venue is injury in New his work-related suffered IV. DISCUSSION 921(c). § Jersey. See 33 U.S.C. that in It is evident from Chevron of a Board’s decision Our review statutory proceedings dealing these with Dir., plenary. of law is
for an error construction, an initial we must make de Corp., 54 v. E. Associated Coal OWCP and, termination, depending upon our first Cir.1995). (3d we While F.3d determinаtion, possibly make a second de to the Board’s offer minimal deference each might expected, As be termination. statutory regulatory interpretations, 908(j) unambigu argues that section side Director, give judicial deference to the “we the case in ously requires that we decide 147. we Id. at When policymaker.” is a person contends that its favor. DRS of a stat agency’s an construction review 908(j) within section employee” “disabled clear, ute, is we Congress if the intent of i.e., injury, the moment at at the time of Chevron, give effect to that intent. must wages to arises. incapacity which his еarn Resources v. Natural U.S.A. Defense Thus, possible of DiFidelto’s regardless Council, Inc., 837, 842-43, 104 that he is recovery, DRS contends medical (1984). If L.Ed.2d 694 S.Ct. 908(j). section employee a disabled within ambiguous with the statute is silent or hand, the Di DiFidelto and On the other issue, must particular to a then we employee” for argue that “disabled rector regulation if it is agency’s defer 908(j) must mean an of section purposes construction of the based on a reasonable course, but the Appeals for the Second Circuit adopted Board 4. Of in Briskie the espouses precedential In that position petition that DiFideltо here. in a not court denied the Inc., Marine, Marine, employer, Weeks case the summary Inc. v. Bri order in Weeks peti- Cir.2006). amicus curiae in this filed a skie, (2d is an Fed.Appx. 178 States Court tion for review with the United “compensation ‘compensation disability’
individual to whom for dis- to whom for is at ability” being paid § is the time being paid pursuant to 908.” Director’s a Form employer sends the individual LS- 24; br. at see DiFidelto br. at 12. But we Congress’s are not convinced that intent is point. regard unmistakable on this In this This division of views is understandable point although we out that the term “dis- 908(j) any inasmuch as neither section nor employee” purposes abled for of section provision other defines LHWCA employee.” necessarily need not be linked to the “disabled LHWCA does “[disability” “incapaci- indicate that means “disability” “employee” definitions of ty injury 902(3) wages because to earn the in sections it would not be receiving which the at the unreasonable to link them an becáuse em- injury time of in the same or other ployer legitimately might want to know 902(10), employment ...33 U.S.C. and whether an employee’s capacity to earn his means, “employee” exceptions not wages impaired though had been even here, germane any person “engaged in employer him compensation. is maritime employment....” Id. all, here, injured After as is the an case 903(3). Nevertheless it is not clear that employee might seek should we combine these two terms to it, employer and, an declining pay if the define employee” purposes “disabled benefits, employer pay 9080") regard section without for whether employee’s earnings could reduce or even paying compensation compensation payments eliminate the him when seeks information employer otherwise obliged would be from the inasmuch as section pay. 908(j) simply point does not address this Yet there is a
explicitly. employ- limitation on er’s need to know amount of an em- application This case involves an of sec- *6 ployee’s earnings at a time that the em- employee’s tion when an actual ployer paying is not compensation because physical changes may condition have even if an employee “knowingly and will- changed initially voluntarily as paid DRS fully any part omits or understates of [his] DiFidelto compensation and then discon- earnings,” 908(j)(2), see 33 U.S.C. doing tinued so when it that asserted he employer may compensation recover it has had recovered injury. Certainly, from his paid only by “a deduction from the com- possible it is that the term “disabled em- pensation payable employee.” to the Id. ployee” 908(j) may within section have a 908(j)(3). Moreover, if it temporal element so that an is determined employee originally may always employee disabled not that an is not thereaf- disabled and is not regarded ter be benefits, as disabled within that entitled to he will not be Indeed, section. it is ironical that al- payments to refund earlier to which he had though DRS asserts that DiFidelto was a entitlеd, not been for in that circumstance employee disabled when it sent him the obligation he has an to reimburse his em- Form requests, thought LS-200 it that he ployer only by deduction ongoing from injury, had recovered from his whereas compensation. §§ 914(j), See 33 U.S.C. DiFidelto claims that at that time he was Thus, 922. if DRS had demonstrated that physically still disabled. had, fact, DiFidelto in not been disabled indicated, making payments when DRS had been
As we have Director and him, argument knowledge DiFidelto make an that a dis- the amount his earn- employee abled “must mean an ings during individual the time DRS had been mak- Nevertheless, though we conclude that оf assis- might not have been ing payments employer might that an the information DRS. tance to from the answers to a Form LS-200 obtain that, Furthermore, out as the point we no use to it if it is not may be of only noted, 908(j) is section has Director Di- compensation, still we believe in LHWCA provisions three one of rector the information’s lack of overstates recoup previ employer to an permitting employer that “an value when he asserts consider all We ously paid compensation. remedy only if has an forfeiture give an they might provisions these effective compensation pаyments it owes future also to seek the Form LS-200 reason employer Forfeiture affords no employee. Thus, 914(j) pro information. 33 U.S.C. otherwise, employer ad relief to an and the “employer has made that if an vides compensation, he shall in futili- payments proceedings would be an exercise vance reimbursed out of to be orig- be entitled ty.” (emphasis Director’s br. at 30 of com or installments unpaid inal). installment may that the answers to While be Additionally, 33 U.S.C. pensation due.” employer a Form are useless to an LS-200 may ob employer that an provides § 922 modifica- payment, in advance retroactive unpaid compen tain reimbursement tion, if misrepresentation cases result proceedings sation if modification making as we employer payments, is not applies rate that a decreased might the answers be valu- explained have But inas retroactively past payments. employer making payments to an not able employ allow an provisions much as these involving disputes employees’ over cases overpayments advances or recoup er to compensation. or future right ongoing of no they are only payments, frоm future acknowledges, “[i]f As the Director long as it is not employer an so use to eventually obtains an award employee Moreover, as we paying compensation. begins paying compensation, employer indicated, that an the information have may request earnings employer then the answers might obtain from the employer concerning any period of dis- information to an is of no use to a Form LS-200 by the award.” Director’s ability covered making payments currently employer Plappert, n. 17. 31 Ben. Rev. br. at See his ear if the had obtained even Bd. Serv. at through misreporting, willful рayments lier that inasmuch as The Director asserts circumstance aggravated in that for even pay compensa- starts to who repayments. not make need em- a statement of the may request tion *7 Transp., 20 See Lennon Waterfront time, it no earnings “gains at that ployee’s (5th Cir.1994); Stevedoring F.3d 661 be- by seeking the information advantage Eggert, 953 F.2d 555- Am. v. Servs. of for it.” Director’s br. fore it has use Cir.1992).5 (9th Indeed, the Director 57 however, are, far from at 33 n.17. We limitation on the that this his brief states obliged to employer an who is certain that from which the of funds source any ben- pay compensation does not obtain even to repayment make extends must earnings employee’s an having efit from at 30. fraud cases. Director’s br. during (1984), compensation paid that 98-570(1) re- amount of H.R.Rep. at 18 No. 2734, 2751, in- com- printed period may U.S.C.C.A.N. be withheld from future in 1984 employee. dicates that: pensation payments due to the paid contemplate already dur- that compensation had been Committee does not If The the ing bring for which action employer the could a cause of the willfully report, and know- to file a or paid past. failed in the to recover earnings, underreported the ingly such 702.285(a) added); § (emphasis -payments before the are due. C.F.R. information 702.286(a).7 regard, reiterate that the an- In this we see also 20 C.F.R. We think in- to a Form LS-200 could reveal regulation hardly swers that the could be clearer. might formation that allow Moreover, legislative history as ex- reduce the amount of or even eliminate the in a plained Representatives House re- Thus, the payments for which it is liable. port, though perhaps not so clear as the to overlook the position Director’s seems regulation, provides: starting stopping difference between ... The Committee does not intend necessary delay and the be- payments, requirement employ- authorize a that all events, starting and not them tween these receiving compensation file ees benefits starting by in a reduced amount them reports earnings. semi-annual Such We, employee’s earnings. reason of an reports by are intended to be a device however, that are of the view this narrow employers may which maintain some possibility, to DRS seems not to payment control over claims in status. briefs, in its should not lead us to refer reports Whether such are to be reach a result than that we different emplоyer’s option. remains the Overall, think reach.6 we that section 98-570(1), No. H.R.Rep. re- 908(j) ambiguous so the intent of Con- printed in 1984 U.S.C.C.A.N. gress respect clear with to the not issue added). Overall, (emphasis beyond it is Thus, before us. we need to make the question that inasmuch as DRS made its second determination in the Chevron requests report to DiFidelto to his earn- above, methodology that we set forth ings at a it him time when was not if implementing regulation, ascertain compensation, insofar as regulation 702.285(a), is based on a rea- governed requests, DiFidelto construction of section sonable 908®. obliged respоnd. do not think that We our second deter- course, that, recognize, We as we with, mination is difficult. To start there stated, already have regulation must regulation, can be no that doubt on a be based reasonable construction of by supported legislative history of sec- point, the statute. On this for the reasons 908®, tion indicates that the result that that we have set forth the Board reached was correct. fact ambiguity of section that we will not 908® much, though challenges DRS admits as it repeat, we have no that doubt does. validity regulation as it asserts Indeed, example this case is a textbook that it is inconsistent with section 908®. when applies. Chevron deference Accord- regulation on section builds be- ingly, obliged respond DiFidelto was not provides cause section that a “dis- requests to the Form LS-200 so that his employee” report abled must respond failure to did not cause him to upon request, implementing regu- and the suffer a forfeiture. lation states: An employer may require ... an em- *8 V. CONCLUSION ployee to ivhom paying compensa- it is reasons, report foregoing tion to submit a For the petition from the employment or self-employment. for review will be denied. suggesting
6. We are thаt Secretary through our result would 7. The of Labor the Director 702.285(a) adopted § have been different if DRS had advanced this and Form possible exercising Secretary's benefit from the an- LS-200 the rule mak- ing authority. 939(a). swers to a Form LS-200. See 33 U.S.C. informative, we should history tive is often FISHER, concurring. Judge, Circuit legislative hesitant to take a statute’s be here should regulation that the agree I itself, dispositive in of as of history, and I separately because I write upheld. be plain textual apparently the statute’s majori- way in which the the disagree with meaning. inference that a statute the ty dismisses thereby defined has dеfines a noun legislative history only But is not the Maj. of that noun. See adjectival form
the
to us in this
interpretive resource available
statutory
of
definitions
(quoting
at 620
Op.
recognized
long
case. The courts have
in
U.S.C.
“employee”
“disability” and
may
meaning
that
the
of a statute
be
902(3)
(10),
that “it is
holding
but
and
im-
partly from the course of its
inferred
combine these two
that we should
not clear
over
time. The seminal
plementation
”).
...
employee’
define ‘disabled
terms to
principle remains that of
statement of this
not so obvious. The
the answer is
To me
Lamar:
Justice
language
of our
imperatives
grammatical
that
these facts
may
argued
It
be
while
casually, and
disregarded
not to be
ought
they do not
rulings prove
usage
a
us than
nothing more before
there
were
validity. But
government
establish its
implement-
statutory language and the
the
practical
practical
a
affair intended
hard-pressed
regulation, I would be
ing
officers,
and cit-
men. Both
law-makers
inconsistency be-
linguistic
overlook the
adjust
naturally
izens
themselves
case,
there is
though,
In
them.
this
tween
long-continued action of the Executive
more,
makes the difference.
and to me that
that
Department
presumption
the—on
in
view,
acquiescence
my
congressional
not have been
unauthorized acts would
of
is evidence
agency’s interpretation
repeated
so often
as
allowed to be
statutory language.
ambiguity in the
That
crystallize
regular practice.
into a
mechanically separate
impossible to
It is
reasoning in a circle
is not
presumption
inter-
and “reasonable
“plain meaning”
rule
quieting
a wise and
but the basis of
of the Chevron
components
pretation”
meaning of a
determining
that
in this
If
tries to do so
analysis.
one
power,
of a
or the existence
statute
The stat-
faced with a conundrum.
one is
usage it-
given
be
weight shall
“disability,”
“employee”
ute defines
validity
prac-
when
self—even
uses the
implementing regulation
but the
subject
investigation.
tice is the
to mean some-
employee”
“disabled
term
Co.,
Midwest Oil
States v.
United
“employee
from
quite different
thing
(1915).
157 L.Ed.2d Plaintiff-Appellee, us that come regulations before all Not v. enjoyed have such will interpreted to be EURA, longstanding Carnelius Vincent application consistent Defendant-Appellant. In the ab- acquiescence. congressional evidence, I would be less of such sence America, United States type in ambiguity the to likely find Plaintiff-Appellant, But at work here. alteration grammatical case, con- in this that I am convinced of the statute application historical sistent Eura, Carnelius Vincent varia- that “there is such ample evidence
is Defendant-Appellee. in the words in the connection tion 05-4437, 05-4533. Nos. reasonably to warrant used as are in dif- they employed were conclusion Appeals, Court of United States in- act with different parts of the ferent Fourth Circuit. Inc. v. tent,” Dyers, & Cleaners Atlantic Dec. Argued States, S.Ct. United “given and that 76 L.Ed. 24, 2006. Decided Feb. circumstances, a statutory aims and -Congress] would member hypothetical [of in judicial deference
likely wanted have Breyer, Active Stephen
this situation.” (2005).
Liberty 106 majority that agree with the
I therefore it con- statutory language, insofar as in agency practice longstanding
flicts am- history, is legislative
addition to is that deference due
biguous, and interpretation.
agency’s reasonable enough "is rule above reads irony citing lacuna perhaps a certain 11. There here, ambiguity.”) The Dynamics insofar as General claim of General out serious acquies congressional Dynamics appealed difference, though, just be the difference ambigu statutory rejecting a claim cence the two cases. tween the facts interpretation overturning agency’s ity language far probably stretch too it would administered, while here we of a statute requires unambiguously hold that it congressional acquiescence find appeal Marine, reading. su agency’s Accord Weeks ambiguous statutoiy language so as to ing the Fed.Appx. at 619 n. 4. pra, 161 (The interpretation.' text agency’s affirm the