[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1006
JUAN ANTONIO GARCIA,
INSURANCE COMMISSIONER, ETC.,
Plaintiff, Appellant,
v.
ISLAND PROGRAM DESIGNER, INC.,
Defendant, Appellee.
UNITED STATES OF AMERICA,
Intervenor, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, Senior U.S. District Judge]
Before
Selya, Cyr and Stahl,
Circuit Judges.
Carlos J. Morales Bauza and Rossello-Rentas & Rabell-Mendez
on brief for appellant.
Loretta C. Argrett, Assistant Attorney General, Gary R.
Allen, Bruce R. Ellisen, and Laurie Snyder, Tax Division, Dep't
of Justice, and Guillermo Gil, United States Attorney, on brief
for intervenor.
August 9, 1995
Per Curiam. This case involves a dispute over the
Per Curiam.
relative priority to be accorded to federal tax claims against an
insolvent health maintenance organization. After an earlier
opinion in which we held that the federal court had exclusive
jurisdiction to hear and determine the competing claims, see
Garcia v. Island Program Designer, Inc., 4 F.3d 57, 60 (1st Cir.
1993), the district court rejected the position urged by
appellant, Puerto Rico's Insurance Commissioner, and ruled that
the tax claims asserted by the Internal Revenue Service (IRS)
were entitled to priority over the claims of unpaid health-care
providers. See Garcia v. Island Program Designer, Inc., 875 F.
Supp. 940, 944 (D.P.R. 1994). The Insurance Commissioner then
prosecuted the instant appeal.
We will not dawdle. The court below has written a
careful, well-reasoned opinion, correctly applying the legal
doctrines articulated by the Supreme Court in Department of
Treasury v. Fabe, 113 S. Ct. 2202 (1993), and adequately
exploring the interplay among the federal priority statute, 31
U.S.C. 3713, the McCarran-Ferguson Act, 15 U.S.C. 1012(b),
and local law, particularly P.R. Laws Ann. tit. 26, 1914. It
is our preferred practice that when, as now, "a trial court has
produced a first-rate work product, a reviewing tribunal should
hesitate to wax longiloquent simply to hear its own words
resonate." In re San Juan Dupont Plaza Hotel Fire Litig., 989
F.2d 36, 38 (1st Cir. 1993). That wise adage is fully applicable
here. Accordingly, we affirm the entry of summary judgment in
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the IRS's favor for substantially the reasons elucidated in the
opinion below.
Withal, we add one flourish. In the district court,
appellant essayed only a fleeting reference to the Chevron
principle. See Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). On appeal, the Commissioner
makes Chevron the centerpiece of his argument. This is both too
late and too little.
In the first place, it is our settled rule that legal
theories not developed in the trial court cannot be
splendiforously unveiled on appeal. See Teamsters, Chauffeurs,
Warehousemen and Helpers Union, Local No. 59 v. Superline Transp.
Co., 953 F.2d 17, 21 (1st Cir. 1992). In the second place, the
Chevron principle does not apply "to agency litigating positions
that are wholly unsupported by regulations, rulings, or
administrative practice." Bowen v. Georgetown Univ. Hosp., 488
U.S. 204, 212 (1988); accord United States v. 29 Cartons of * * *
An Article of Food, 987 F.2d 33, 38 n.6 (1st Cir. 1993).
Consequently, it would be wholly inappropriate for us to defer,
as appellant importunes, to what strikes us as nothing more than
a position of convenience. In all events, to win our allegiance
an administrative agency's statutory interpretation must "flow[]
rationally from a permissible construction of the statute,"
Strickland v. Commissioner, Me. Dep't of Human Servs., 48 F.3d
12, 17 (1st Cir. 1995), and cannot be "`arbitrary, capricious, or
manifestly contrary to the statute.'" id. at 18 (citation
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omitted). Appellant's interpretation of P.R. Laws Ann. tit. 26,
1914 fails this test.
We need go no further. The judgment of the district
court must be summarily affirmed. See 1st Cir. Loc. R. 27.1.
Affirmed.
Affirmed.
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