*1 Petitioner, PRICE, Arel OF SERVICES
STEVEDORING
AMERICA, INC.; Eagle Pacific In- Company; Homeport Insur-
surance Co.; Director,
ance Office Workers’ Programs, Respon-
dents.
Nos. 08-71719. Appeals, States Court of
Ninth Circuit. 7, 2009.
Argued and Submitted Oct. 15, 2010.
Filed Dec.
Before: DIARMUID F. SMITH, and N. O’SCANNLAIN RANDY Judges, Circuit and RONALD M. WHYTE, Judge.* Senior District SMITH; Opinion by Judge N.R. by Judge Concurrence O’SCANNLAIN. OPINION SMITH, N.R. Judge: Circuit disability Interest on Long-shore under the and Harbor Work- (“LHWCA” ers’ Act or “Act”), seq., 901 et is properly calculated as interest at the rate 1961(a). defined in 28 U.S.C. jurisdiction We have 921(c), and we affirm the decision of the Department of Labоr Benefits Review (“BRB” “Board”). Board or I. AND FACTUAL PROCEDURAL HISTORY (“Price”) Arel Price injured by was falling ship-lashing-chain on October 1991, while employed by Stevedoring Ser- Robinowitz, Charles Law Office of America, vices of Inc. (“Stevedoring”). Robinowitz, Portland, OR, Charles pe- Price had surgery injury for his on April titioner Arel Price. 22, 1992, and returned to work on Novem- bеr 1992. Price day worked from that Metz, Seattle, WA, Russell A. for re- 2, 1998, July until when he stopped work- spondents Stevedoring Services of Amer- ing on physician. the advice of a Eagle ica and Company. Pacific Insurance Though injury Price’s claims for his had Jacob, Gregory James, F. Rae Ellen yet formally adjudicated, been Steve- Reinhalter, Boyle, Mark A. Matthew W. doring paid temporary total disabili- Labor, Department of U.S. for the Federal ty workers’ compensation payments of Respondent, Officer of Workers’ per week from the date he was $676.89 Compensation Programs. Later, injured January until * California, Whyte, Thе Honorable sitting by designation. Ronald M. United Judge States District for the Northern District on judgment payable 1997, Stevedoring also reimbursed $21,206.00 judgments district court and does for States carrier disability insurance under injury directly apply compensation dur- not Price for his compensation *3 1992, 4, However, January the Board has from the LHWCA. period the time ing 23,1992. in that section used the rate defined until November past pay- simple award interest on payments, the Notwithstanding these ments since 1984. See Grant v. Portland concerning proper the disagreed parties (1984). Co., 267, 270 Stevedoring 16 BRBS The Com- disability benefits. amount of § changes rate with The 28 U.S.C. the сase to an therefore referred missioner in the market as it is tied to fluctuations (“ALJ”). The Judge Law Administrative one-year weekly average the of Price’s av- subsequently determined ALJ treasury bonds. States injury time of weekly wage at the erage of that Upon appeal eventual be the ALJ decision tо the appealed Price $333.87. Circuit, Board, Ninth we remanded arguments to the the he making decision same weekly wage Board, for reconsid- average Price’s The presented citing to the ALJ. Am., Stevedoring Servs. Transportation See Reposky eration. v. International of 02-71578, Price, Services, (2006), 02-71207 & rejеcted Nos. Inc. 40 BRBS 65 1064126, May at *2-3 Cir. argument regarding applicable 2004 WL the Price’s 11, compensation. maximum rate of The rejected argument Price’s Board likewise remand, challenged the inter- Price On interest, affirming the ALJ’s regarding de- disability calculation on his est interest at the simple cision to award rate 1) the interest He contended: payments. 1961(a). § by 28 U.S.C. determined (the pro- in 26 6621 U.S.C. defining the tax code vision of appeals. Price now under-payment to over- or applicable rate taxes) 2) alternative, or, annually in the
of
II. DISCUSSION
compounded interest
A.
of Review
Standard
1961(b)
to his
apply
should
us
one
only question
before
hearing argument,
the
After
payments.
inter
weekly
statutory interpretation.
of
When
average
first revised Price’s
ALJ
LHWCA, we look first to the
$1,198.09.
preting
of
the
Because two-thirds
wage to
($798.73)
language
Stevedoring
statute.
weekly wage
plain
ex-
of the
average
Price,
F.3d
com- Servs. Am. v.
year
fiscal
1991 mаximum
ceeded the
(9th Cir.2004)
Director,
week),
(citing Bowen v.
($699.29
see
pensation
(9th Cir.1990)).
OWCP,
awarded Price com-
the ALJ
clear,
Act
that is
meaning
If the
of the
year
fiscal
maximum.
at the 1991
pensation
inquiry.
the end of our
See Chevron
inter-
The ALJ also awarded
Council,
U.S.A.,
Inc. v. Nat’l Res.
compensation at the rate
est on
Dеf.
1961(a).1
837, 842-43, 104 S.Ct.
established
If
statute is “si-
post-
defines interest for
preceding System, for the calendar week
that interest
1. Title 28 U.S.C.
states
judgment.”
date of the
from
civil cases "shall be calculated
in federal
on,
1961(b)
entry
judgment,
stating
at a rate
goes
the date of
Title 28 U.S.C.
"[ijnterest
average 1-year
computed daily
еqual
weekly
constant
be
to the
to the
shall
compounded
yield,
published by
payment
... and shall be
maturity Treasury
as
date of
annually.”
Reserve
Governors of the Federal
Board of
ambiguous”
respect
lent or
with
to a spe-
year
the ALJ issued his decision: fis-
issue, however,
year
cific
cal
we loоk to the
agency.
2778;
explained
in our
opinion
recent
Constructors,
see Found.
Inc. v.
Director, OWCP,
Roberts v.
Cir.2002)). However, “we accord ‘consid
Applicable
C.
Interest Rate
weight’
erable
to the construction of the
urged by
statute
the Director of the Office
before,
As we have stated
of
Compensation Programs,
as LHWCA
express
contains no
provision
he
with
charged
is
with
administering
past
it.”
interest on
pay
due
Director, OWCP,
Constructors,
ments. See Found.
Force v.
938 F.2d
950 F.2d
(9th Cir.1991).
at 625. As the statute is silent
will
on the
“We
defer to the
interest,
issue of
question
before us is
Director’s view unless it
an un
constitutes
whether the
prоposed
Director’s
construc
reading
reasonable
of the statute or is
tion of the Act is unreasonable. See id.
contrary
legislative
intent.” Matson
We will not “substitute our own construc
Terminals,
Berg,
Inc. v.
279 F.3d
tion ‘for a
interpretation
reasonable
made
(9th Cir.2002)
Chevron,
(citing
467 U.S. at
”
by the administrator of an agency.’
842-45, 104
2778).
S.Ct.
Chevron,
(quoting
467 U.S. at
B. Limits on
position,2
Director’s
that simple in-
(c)
Title 33 U.S.C.
past
terest on
payments
due
should be
establish a maximum
compensa
limit on
at
awarded
the rate
in
defined
28 tion under the LHWCA. This maximum
1961(a),
is
unreasonable.
the ab-
limit is calculated
year.
each fiscal
any
sence of
reference to
in
interest
906(c).
argues
that
the Act, we measure the reasonableness of the
ALJ
in applying
erred
the maximum com
position
against the
gener-
Act’s
(the
pensation
year
rate for fiscal
purpose
al
of compensating disabled em-
disabled).
year Price became
Price con plоyees.
(determining
See id.
whether in-
tends the
applied
ALJ should have
appropriate
terest is
past
payments
on
due
maximum compensation rate in
Act”).3
effect for
based on “the remedial intent of the
position
2. The
clearly
Director's
previously
laid out in
3. We have
held that interest on
panel.
past
Transbay
compensation may
his brief to this
appropriate
See
Contain-
be
Labor,
compensate
Constructors,
er
a disabled worker.
Dep't
Terminal
See Found.
v. U.S.
(9th
950 F.2d at
We
Cir.1998)
Force,
625.
later de
(quoting
payments
termined that interest on
983) (noting
F.2d at
posi-
that the Director's
mandatоry.
was
See Matulic v.
may
presented
litigating position).
be
aas
OWCP,
.1998).
Cir
interest awarded
the rate
interest
Awarding simple
argues that
not an
is unreasonable. He
defined
a
compensating
interest
method
unreasonable
compensation. Since
the cost of
approximates
claimant for
6621 better
rate to the
ties the interest
money
employee.
for a
borrowing
statute
disabled
rate,
treasury bill
one-year United States
that the Director’s
Price further contends
applicable
rate
approxi-
(using an interest
changes in the mar-
adjusts with
money) is
mating interest earned on saved
way,
In this
ket. See 28 U.S.C.
because,
reality,
most dis-
unreasonable
approximates
rate of
employees
actually
will
need to bor-
abled
could earn on an invest-
interest one
row.
time, adjusted period
ment over
matter,
an initial
we have no evi-
course, Price
in the market. Of
changes
indicating whether most
dence before us
delay in his
due to the
some loss
suffered
actually borrow
employees
disabled
must
However, applying a market-
payment.
waiting for a determination of
funds while
*5
compen-
rate to
interest
sensitive
only
inquiry is
benefits. The
relevant
certainly not
appropriate
sation is an
—and
is unrea-
whether the Director’s
for
way
compensate
an unreasonable —
to all claimants.
sonable with
loss.
this
Nevertheless,
if Price is correct that
even
U.S.C.
determining whether the 28
borrow,
say
cannot
that
most claimants
we
1961(a)
reasonably
gen-
fulfills the
§
A
position is unreasonable.
the Director’s
Act,
objective of the
we
compensatory
eral
for
employee
compensated
disabled
of the Act
provisions
other
also consider
payments at the interest
employee
delay.
for
compensate an
which
§
in
to the
in
addition
28 U.S.C.
recognize
inquiry
to this
It is salient
percent
of either 10 or 20
defined
penalty
provides compen-
specifically
the Act
that
914;
an
simply
§
not
in 33 U.S.C.
this
payments
For
payments.
sation for late
employee’s
estimate of the
unreasonable
in a
Act but not formalized
under the
loss,
if
borrowed
employee
actual
even the
order,
nоt
any payments
compensation
funds.4
they
time
are
days
paid within
of 10% of the
subject
penalty
to a
due are
alternative,
argues
Price
In the
914(e).
§
33 U.S.C.
unpaid amount. See
that,
the Board’s use
panel upholds
if this
by compensa-
If
are mandated
payments
1961(a),
§
rate in
of the interest
28 U.S.C.
order,
is 20%.
penalty
this
computed as
rate must be
914(f).
are
penalties
separate
§
These
simple
interest. While
compound,
in
to interest awarded
from and
addition
that, under 28
correctly points out
Price
payments by the ALJ
past due
for
1961(b),
§
federal courts use com
rate.
28 U.S.C.
interest,
pound
post-judgment
interest for
First, 28
significаnce here.
that is of little
penalty
payment
the late
ignores
compound
not mandate
in
1961 does
arguing
of 33 U.S.C.
provisions
that,
apply
argues
also
unless
specific interest
4. Price
mandated a
We have never
em-
higher
interest rate of
beyond
any
defined
standard
rate nor
delaying
profit frоm
ployers will be able to
compensating
general purpose of
dis
Act’s
light
employee. In
a disabled
evaluating interest
workers when
abled
delay defined
specific penalties for
the Act’s
awards.
argument
is without
this
merit.
pre-judgment
support
interest
for
interest —the
for its extension of
in
type of interest at issue
this case. Fur- Chevron deference to the
litigat
thermore,
Director is not bound
ing
positions, Mallott & Peterson cited the
accept
provisions
all
of 28 U.S.C. Supreme Court’s decision in Martin v. Oc
determining
inter-
cupational Safety & Health Review Com
est at the
rate is reasonable mission,
compensation
compensation
See Mallott & Peter
LHWCA cases.
son,
Martin, however,
Our task is not to
determine
—
agency’s
that an
interpretation of its own
Nor
per-
individual loss.
are we
regulations
unworthy
is not
of deference
by policy arguments
why
suaded
as to
an
simply because it is advanced
a litigat
as
urged by
interest rate othеr than that
ing position in an
adjudica
administrative
preferable.
only
Director would be
Martin,
156-58,
tion. See
499 U.S. at
question before us is
Di-
whether
S.Ct. 1171.
agency’s litigating
That an
position regarding simple
rector’s
position may be entitled to deference when
at the 28 U.S.C.
rate is unrea-
agency
interprets
regulations
its оwn
sonable, and we conclude that
it is not.
says nothing about whether such a position
AFFIRMED.
may be entitled to deference when the
agency interprets the statute itself. See
O’SCANNLAIN,
Judge,
Circuit
Alaska,
Coeur
Inc. v. Se. Alaska Conserva
concurring specially:
*6
, — -,
tion
U.S.
129 S.Ct.
Council
opinion,
I concur in the court’s
which
2458, 2469-70,
(2009) (dis
tion of Nancy Henderson; Henderson; J. regulation in a if it contained either ence Anderson; Anderson; Robert Carole position with litigation or in the Ingemanson, Dean Trustee of long adjudication, so as the agency an Trust; Kathy Ingemanson Nel- Dean (emphasis re is reasonable” interpretation son, Kathy moved)). Nelson find Trustee As a our consequence, Trust; Berliner, Plain- and Arthur the decisions of in conflict with selves tiffs-Appellants, v. Day James circuits. See three other (6th Inc., Marine, Cir. v. 2008) (accepting the Director’s concession COUNTY, political subdivi- WASHOE position was entitled litigating that his Nevada; sion of the State Josh Wil- deference); Cooper, Pool Co. v. to Chevron son, County Assessor; Washoe Cir.2001) (5th (“[I]t 173, 178 n. F.3d Berrum, County Bill Treasur- Washoe the Directоr ad clear when now er, Defendants-Appellees. interpretations of LHWCA vances briefs, interpretations such merit No. 09-15759. litigation deference, def but Skidmore not Chevron Appeals, Court United States erence.”); Shipbuilding Dry Ala. Dock & Ninth Circuit. Soivell, 1561, 1563 Corp. v. Cir.1991) (“We Argued to official 2010. owe deference аnd Submitted Oct. policy by who expressions Filed Dec. statute, but settled administer the does affording deference precludes us from law (citation litigating position.” agency’s an
omitted)), abrogated grounds by on other Dir., Corp. Works
Bath Iron
Office of
*7
Comp.
Programs,
692,
Before this
wider, light should Mead we revisit governing
our the deference precedents positions. Director’s litigating
owe the that the respectfully suggest
I time
ripe gov- to revisit circuit’s law for us our owe the Director’s
erning the deference we positions.
litigating