Price v. Stevedoring Services of America, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

AREL PRICE, 
Petitioner,
v.
No. 08-71719
STEVEDORING SERVICES OF AMERICA,
INC.; EAGLE PACIFIC INSURANCE  BRB No.
07-0567
COMPANY; HOMEPORT INSURANCE
CO.; DIRECTOR, OFFICE OF OPINION
WORKERS’ COMPENSATION
PROGRAMS,
Respondents.

On Petition for Review of a Final Order
Of the Benefits Review Board

Argued and Submitted
October 7, 2009—Portland, Oregon

Filed December 15, 2010

Before: Diarmuid F. O’Scannlain and N. Randy Smith,
Circuit Judges, and Ronald M. Whyte,
Senior District Judge.*

Opinion by Judge N.R. Smith;
Concurrence by Judge O’Scannlain

*The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.

20115
20118 PRICE v. STEVEDORING SERVICES OF AMERICA
COUNSEL

Joshua T. Gillelan II (argued), Longshore Claimants’ National
Law Center, Washington, D.C., for petitioner Arel Price.

Russell A. Metz, Seattle, Washington, for respondents Steve-
doring Services of America and Eagle Pacific Insurance Com-
pany.

Gregory F. Jacob, Rae Ellen James, Mark A. Reinhalter, Mat-
thew W. Boyle, U.S. Department of Labor, for the Federal
Respondent, Director, Officer of Workers’ Compensation
Programs.

OPINION

N.R. SMITH, Circuit Judge:

Interest on past due disability payments under the Long-
shore and Harbor Workers’ Compensation Act (“LHWCA” or
“Act”), 33 US.C. § 901 et seq., is properly calculated as sim-
ple interest at the rate defined in 28 U.S.C. § 1961(a).

We have jurisdiction under 33 U.S.C. § 921(c), and we
affirm the decision of the Department of Labor Benefits
Review Board (“BRB” or “Board”).

I. FACTUAL AND PROCEDURAL HISTORY

Arel Price (“Price”) was injured by a falling ship-lashing-
chain on October 2, 1991, while employed by Stevedoring
Services of America, Inc. (“Stevedoring”). Price had surgery
for his injury on April 22, 1992, and returned to work on
November 24, 1992. Price worked from that day until July 2,
1998, when he stopped working on the advice of a physician.
 PRICE v. STEVEDORING SERVICES OF AMERICA 20119
Though Price’s claims for his injury had not yet been for-
mally adjudicated, Stevedoring paid Price temporary total dis-
ability workers’ compensation payments of $676.89 per week
from the date he was injured until January 4, 1992. Later, in
1997, Stevedoring also reimbursed Price’s disability insur-
ance carrier $21,206.00 for compensation due Price for his
injury during the time period from January 4, 1992, until
November 23, 1992.

Notwithstanding these payments, the parties disagreed con-
cerning the proper amount of disability benefits. The Com-
missioner therefore referred the case to an Administrative
Law Judge (“ALJ”). The ALJ subsequently determined
Price’s average weekly wage at the time of injury to be
$333.87. Upon eventual appeal of that decision to the Ninth
Circuit, we remanded Price’s average weekly wage for recon-
sideration. See Stevedoring Servs. of Am., Inc. v. Price, Nos.
02-71207 & 02-71578, 2004 WL 1064126, at *2-3 (9th Cir.
May 11, 2004).

On remand, Price challenged the interest calculation on his
past due disability payments. He contended: 1) the interest
rate defined in 26 U.S.C. § 6621 (the provision of the tax code
defining the interest rate applicable to over- or under-payment
of taxes) or, in the alternative, 2) annually compounded inter-
est under 28 U.S.C. § 1961(b) should apply to his past due
payments. After hearing argument, the ALJ first revised
Price’s average weekly wage to $1,198.09. Because two-
thirds of Price’s average weekly wage ($798.73) exceeded the
fiscal year 1991 maximum compensation rate ($699.29 a
week), see 33 U.S.C. § 906, the ALJ awarded Price compen-
sation at the 1991 fiscal year maximum. The ALJ also
awarded Price simple interest on past due compensation at the
rate established in 28 U.S.C. § 1961(a).1 28 U.S.C. § 1961(a)
1
Title 28 U.S.C. § 1961(a) states that interest in federal civil cases “shall
be calculated from the date of the entry of the judgment, at a rate equal
to the weekly average 1-year constant maturity Treasury yield, as pub-
20120 PRICE v. STEVEDORING SERVICES OF AMERICA
defines interest for post-judgment interest payable on United
States district court judgments and does not directly apply to
compensation under the LHWCA. However, the Board has
used the rate defined in that section to award simple interest
on past due payments since 1984. See Grant v. Portland
Stevedoring Co., 16 BRBS 267, 270 (1984). The 28 U.S.C.
§ 1961(a) rate changes with fluctuations in the market as it is
tied to the weekly average of one-year United States treasury
bonds.

Price appealed the ALJ decision to the Board, making the
same arguments he presented to the ALJ. The Board, citing
Reposky v. International Transportation Services, 40 BRBS
65 (2006), rejected Price’s argument regarding the applicable
maximum rate of compensation. The Board likewise rejected
Price’s argument regarding interest, affirming the ALJ’s deci-
sion to award simple interest at the rate determined by 28
U.S.C. § 1961(a).

Price now appeals.

II. DISCUSSION

A. Standard of Review

The only question before us is one of statutory interpreta-
tion. When interpreting the LHWCA, we look first to the
plain language of the statute. Stevedoring Servs. of Am. v.
Price, 382 F.3d 878, 890 (9th Cir. 2004) (citing Bowen v.
Director, OWCP, 912 F.2d 348, 351 (9th Cir. 1990)). If the
meaning of the Act is clear, that is the end of our inquiry. See
Chevron U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S. 837,

lished by the Board of Governors of the Federal Reserve System, for the
calendar week preceding the date of the judgment.”
Title 28 U.S.C. § 1961(b) goes on, stating that “[i]nterest shall be com-
puted daily to the date of payment . . . and shall be compounded annually.”
 PRICE v. STEVEDORING SERVICES OF AMERICA 20121
842-43 (1984). If the statute is “silent or ambiguous” with
respect to a specific issue, however, we look to the position
of the agency. Id. at 843; see Found. Constructors, Inc. v.
Director, OWCP, 950 F.2d 621, 625 (9th Cir. 1991).

[1] With respect to the LHWCA, we deal with two admin-
istrative entities, the Board and the Director. “The Board’s
interpretation of the LHWCA is a question of law reviewed
de novo and is not entitled to any special deference.” Price,
382 F.3d at 883 (citing Stevedoring Servs. of Am. v. Director,
OWCP, 297 F.3d 797, 801-02 (9th Cir. 2002)). However, “we
accord ‘considerable weight’ to the construction of the statute
urged by the Director of the Office of Workers’ Compensa-
tion Programs, as he is charged with administering it.” Force
v. Director, OWCP, 938 F.2d 981, 983 (9th Cir. 1991). “We
will defer to the Director’s view unless it constitutes an unrea-
sonable reading of the statute or is contrary to legislative
intent.” Matson Terminals, Inc. v. Berg, 279 F.3d 694, 696
(9th Cir. 2002) (citing Chevron, 467 U.S. at 842-45).

B. Limits on Compensation

Title 33 U.S.C. § 906(b) and (c) establish a maximum limit
on compensation under the LHWCA. This maximum limit is
calculated each fiscal year. 33 U.S.C. § 906(c). Price argues
that the ALJ erred in applying the maximum compensation
rate for fiscal year 1991 (the year Price became disabled).
Price contends the ALJ should have applied the maximum
compensation rate in effect for the year the ALJ issued his
decision: fiscal year 2000.

[2] As explained in our recent opinion in Roberts v. Direc-
tor, OWCP, No. 08-70268 (9th Cir. November 10, 2010), 33
U.S.C. § 906(b) and (c) require us to apply the maximum
compensation rate from the fiscal year in which the individual
becomes entitled to compensation (i.e., the date of injury), not
the rate in place for the fiscal year when the ALJ issues a for-
mal compensation award. Therefore, the Board and the ALJ
20122 PRICE v. STEVEDORING SERVICES OF AMERICA
did not err by capping Price’s compensation by the fiscal year
1991 rate.

C. Applicable Interest Rate

[3] As we have stated before, the LHWCA contains no
express provision with respect to interest on past due pay-
ments. See Found. Constructors, 950 F.2d at 625. As the stat-
ute is silent on the issue of interest, the question before us is
whether the Director’s proposed construction of the Act is
unreasonable. See id. We will not “substitute our own con-
struction ‘for a reasonable interpretation made by the adminis-
trator of an agency.’ ” Id. (quoting Chevron, 467 U.S. at 843).

[4] The Director’s position,2 that simple interest on past
due payments should be awarded at the rate defined in 28
U.S.C. § 1961(a), is not unreasonable. In the absence of any
reference to interest in the Act, we measure the reasonable-
ness of the Director’s position against the Act’s general pur-
pose of compensating disabled employees. See id.
(determining whether interest is appropriate on past due pay-
ments based on “the remedial intent of the Act”).3

[5] Awarding simple interest at the rate defined in 28
U.S.C. § 1961(a) is not an unreasonable method of compen-
sating a claimant for past due compensation. Since the statute
ties the interest rate to the one-year United States treasury bill
2
The Director’s position is clearly laid out in his brief to this panel. See
Transbay Container Terminal v. U.S. Dep’t of Labor, 141 F.3d 907, 910
(9th Cir. 1998) (quoting Force, 938 F.2d at 983) (noting that the Direc-
tor’s position may be presented as a litigating position).
3
We have previously held that interest on past due compensation may
be appropriate to compensate a disabled worker. See Found. Constructors,
950 F.2d at 625. We later determined that interest on past due payments
was mandatory. See Matulic v. Director, OWCP, 154 F.3d 1052, 1059 (9th
Cir. 1998). We have never mandated a specific interest rate nor defined
any standard beyond the Act’s general purpose of compensating disabled
workers when evaluating interest awards.
 PRICE v. STEVEDORING SERVICES OF AMERICA 20123
rate, the interest rate applicable to past due payments adjusts
with changes in the market. See 28 U.S.C. § 1961. In this
way, the interest rate of § 1961(a) approximates the interest
one could earn on an investment over a period of time,
adjusted for changes in the market. Of course, Price suffered
some loss due to the delay in his payment. However, applying
a market-sensitive interest rate to past due compensation is an
appropriate—and certainly not an unreasonable—way to com-
pensate for this loss.

In determining whether the 28 U.S.C. § 1961(a) rate rea-
sonably fulfills the general compensatory objective of the Act,
we also consider other provisions of the Act which compen-
sate an employee for delay. It is salient to this inquiry to rec-
ognize that the Act specifically provides compensation for
late payments. For payments due under the Act but not for-
malized in a compensation order, any payments not paid
within 14 days of the time they are due are subject to a pen-
alty of 10% of the unpaid amount. See 33 U.S.C. § 914(e). If
payments are mandated by a compensation order, this penalty
is 20%. Id. § 914(f). These penalties are separate from and in
addition to interest awarded for past due payments by the ALJ
at the 28 U.S.C. § 1961(a) rate.

Price ignores the late payment penalty provisions of 33
U.S.C. § 914 in arguing that interest awarded under 28 U.S.C.
§ 1961(a) is unreasonable. He argues that the interest rate
defined in 26 U.S.C. § 6621 better approximates the cost of
borrowing money for a disabled employee. Price further con-
tends that the Director’s position (using an interest rate
approximating interest earned on saved money) is unreason-
able because, in reality, most disabled employees will actually
need to borrow.

[6] As an initial matter, we have no evidence before us
indicating whether most disabled employees must actually
borrow funds while waiting for a determination of benefits.
The only relevant inquiry is whether the Director’s position is
20124 PRICE v. STEVEDORING SERVICES OF AMERICA
unreasonable with respect to all claimants. Nevertheless, even
if Price is correct that most claimants borrow, we cannot say
that the Director’s position is unreasonable. A disabled
employee is compensated for past due payments at the interest
rate defined in 28 U.S.C. § 1961 in addition to the penalty of
either 10 or 20 percent defined in 33 U.S.C. § 914; this is sim-
ply not an unreasonable estimate of the employee’s actual
loss, even if the employee borrowed funds.4

[7] In the alternative, Price argues that, if this panel
upholds the Board’s use of the interest rate in 28 U.S.C.
§ 1961(a), the interest rate must be computed as compound,
not simple interest. While Price correctly points out that,
under 28 U.S.C. § 1961(b), federal courts use compound
interest for post-judgment interest, that is of little significance
here. First, 28 U.S.C. § 1961 does not mandate compound
interest for pre-judgment interest—the type of interest at issue
in this case. Furthermore, the Director is not bound to accept
all the provisions of 28 U.S.C. § 1961(b) in determining that
simple interest at the § 1961(a) rate is reasonable compensa-
tion for past due compensation in LHWCA cases.

Our task is not to precisely determine Price’s individual
loss. Nor are we persuaded by policy arguments as to why an
interest rate other than that urged by the Director would be
preferable. The only question before us is whether the Direc-
tor’s position regarding simple interest at the 28 U.S.C.
§ 1961(a) rate is unreasonable, and we conclude that it is not.

AFFIRMED.

4
Price also argues that, unless we apply the higher interest rate of 26
U.S.C. § 6621, employers will be able to profit from delaying payments
to a disabled employee. In light of the Act’s specific penalties for delay
defined in 33 U.S.C. § 914, this argument is without merit.
 PRICE v. STEVEDORING SERVICES OF AMERICA 20125
O’SCANNLAIN, Circuit Judge, concurring specially:

I concur in the court’s opinion, which faithfully applies our
precedents extending deference under Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), to the Director of the Office of Workers’ Compensa-
tion Programs’ litigating positions interpreting the Longshore
and Harbor Workers’ Compensation Act (“LHWCA”), 33
U.S.C. § 901 et seq. See, e.g., Gilliland v. E.J. Bartells Co.,
270 F.3d 1259, 1262 (9th Cir. 2001). In my view, however,
our rule mandating deference to the Director’s reasonable liti-
gating positions cannot be reconciled with Supreme Court
precedent.

One of our earliest cases—if not our very first—to state
that Chevron deference “extends not only to regulations artic-
ulating the Director’s interpretation, but also to litigating posi-
tions asserted by the Director in the course of administrative
adjudications” was Mallott & Peterson v. Director, Office of
Workers’ Compensation Programs, 98 F.3d 1170, 1172 (9th
Cir. 1996). As support for its extension of Chevron deference
to the Director’s litigating positions, Mallott & Peterson cited
the Supreme Court’s decision in Martin v. Occupational
Safety & Health Review Commission, 499 U.S. 144 (1991).
See Mallott & Peterson, 98 F.3d at 1172. Martin, however,
stands for a different proposition—namely, that an agency’s
interpretation of its own regulations is not unworthy of defer-
ence simply because it is advanced as a litigating position in
an administrative adjudication. See Martin, 499 U.S. at
156-58. That an agency’s litigating position may be entitled
to deference when the agency interprets its own regulations
says nothing about whether such a position may be entitled to
deference when the agency interprets the statute itself. See
Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 129
S. Ct. 2458, 2469-70 (2009) (distinguishing between defer-
ence to an agency’s interpretation of its own regulations and
deference to its interpretation of a statute).
20126 PRICE v. STEVEDORING SERVICES OF AMERICA
Indeed, the proposition that Chevron deference extends to
agency statutory interpretations advanced in litigation con-
flicts with the Supreme Court’s more recent decision in
United States v. Mead Corp., 533 U.S. 218 (2001). There, the
Supreme Court held that Chevron deference applies only to
agency statutory interpretations promulgated via “a relatively
formal administrative procedure,” such as notice-and-
comment rulemaking. Id. at 230. An agency statutory inter-
pretation adopted merely as a litigating position plainly fails
this test.

Since Mead, our circuit has nonetheless continued to give
Chevron deference to the Director’s litigating positions. See,
e.g., Gilliland, 270 F.3d at 1262 (reaffirming post-Mead that
“the Director’s interpretation of the LHWCA is entitled to
deference if it is contained either in a regulation or in the
Director’s litigation position within an agency adjudication,
so long as the interpretation is reasonable” (emphasis
removed)). As a consequence, we find ourselves in conflict
with the decisions of three other circuits. See Day v. James
Marine, Inc., 518 F.3d 411, 418 (6th Cir. 2008) (accepting the
Director’s concession that his litigating position was not enti-
tled to Chevron deference); Pool Co. v. Cooper, 274 F.3d
173, 178 n.3 (5th Cir. 2001) (“[I]t is now clear that when the
Director advances interpretations of the LHWCA in litigation
briefs, such interpretations merit not Chevron deference, but
Skidmore deference.”); Ala. Dry Dock & Shipbuilding Corp.
v. Sowell, 933 F.2d 1561, 1563 (11th Cir. 1991) (“We owe
deference to official expressions of policy by the Director,
who does administer the statute, but settled law precludes us
from affording deference to an agency’s litigating position.”
(citation omitted)), abrogated on other grounds by Bath Iron
Works Corp. v. Dir., Office of Workers’ Comp. Programs,
506 U.S. 153 (1993). Before this split of authority grows even
wider, we should revisit in light of Mead our precedents gov-
erning the deference we owe the Director’s litigating posi-
tions.
 PRICE v. STEVEDORING SERVICES OF AMERICA 20127
I respectfully suggest that the time is ripe for us to revisit
our circuit’s law governing the deference we owe the Direc-
tor’s litigating positions.