FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AREL PRICE, 

Petitioner,

v. No. 08-71719

STEVEDORING SERVICES OF AMERICA, OWCP No.

INC.; EAGLE PACIFIC INSURANCE  07-0567

COMPANY; HOMEPORT INSURANCE OPINION CO.; DIRECTOR, OFFICE OF WORKERS

COMPENSATION PROGRAMS,

Respondents. 

On Petition for Review of an Order of the

Office of Workers’ Compensation Programs

Argued and Submitted September 22, 2011

Submission Vacated September 29, 2011

Resubmitted August 27, 2012

San Francisco, California

Filed September 4, 2012

Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,

Stephen Reinhardt, Diarmuid F. O’Scannlain,

Sidney R. Thomas, Barry G. Silverman, William A. Fletcher,

Ronald M. Gould, Marsha S. Berzon, Carlos T. Bea, and

Mary H. Murguia, Circuit Judges.

Opinion by Judge Berzon;

Dissent by Judge O’Scannlain

10443
COUNSEL

Charles Robinowitz, Attorney, Portland, Oregon, for the petitioner Arel Price.

Russell A. Metz, Attorney, Metz & Assocs. P.S., Seattle,

Washington, John Randall Dudrey, Attorney, Williams Fredrickson, LLC, Portland, Oregon, Matthew W. Boyle and Mark

A. Reinhalter, Counsel, LABR-U.S. Dep’t of Labor, Office of

the Solicitor, Washington, DC, for the respondents Stevedoring Services of America, Inc., et al. 

OPINION

BERZON, Circuit Judge:

We consider whether a claimant under the Longshore and

Harbor Workers’ Compensation Act (“LHWCA,” “Longshore

Act,” or “Act”), 33 U.S.C. § 901 et seq., (1) is entitled to the

10446 PRICE v. STEVEDORING SERVICES
maximum compensation rate from the fiscal year in which he

becomes disabled or from the fiscal year in which he receives

a formal compensation award; (2) receives interest on past

due compensation at the rate defined in 28 U.S.C. § 1961

instead of the rate set forth in 26 U.S.C. § 6621;1 and, (3) if

interest is to be awarded at the § 1961 rate, whether it should

be simple or compound. In the course of resolving these

issues, we also consider the proper level of deference that

should be accorded to the litigating position of the Director of

the Office of Workers’ Compensation Programs (“Director”).

I. BACKGROUND

A. Statutory Scheme

The Longshore Act is a “ ‘comprehensive scheme’ ” to provide compensation for the disability or death of employees

resulting from injuries occurring upon the navigable waters of

the United States. Roberts v. Sea-Land Servs., Inc., 132 S. Ct.

1350, 1354 (2012) (quoting Metro. Stevedore Co. v. Rambo,

515 U.S. 291, 294 (1995)); see also 33 U.S.C. § 903(a).

Although the Department of Labor is charged with administering the Act, Chesapeake & Ohio Ry. Co. v. Schwalb, 493

U.S. 40, 45 (1989); 33 U.S.C. §§ 902, 939, the statute provides for a “split-function regime,” in which duties are

divided between two “sub-agencies,” Ingalls Shipbldg. v.

Dir., OWCP, 519 U.S. 248, 268 (1997). “By statute and by

regulation, the adjudicative and enforcement/litigation functions of the Department of Labor with respect to the LHWCA

are divided between the ALJ[ ]s [Administrative Law Judges]

and the Benefits Review Board on the one hand, and the

Director on the other.” Id. at 269 (internal citations omitted);

see also Dir., OWCP v. Newport News Shipbldg. & Dry Dock

Co., 514 U.S. 122, 125 (1995).

1Section 1961 delineates the interest payable on federal district court

judgments. See 28 U.S.C. § 1961(a). In contrast, § 6621 specifies the interest rate the Internal Revenue Service (“IRS”) uses with respect to the overpayment and underpayment of taxes. 26 U.S.C. § 6621(a). 

PRICE v. STEVEDORING SERVICES 10447
When seeking compensation under the Act, a worker must

file a claim with a district director, a designee of the Director.

33 U.S.C. § 919(a); 20 C.F.R. §§ 701.301(a)(7), 702.105,

702.136. With respect to benefits, the LHWCA establishes a

maximum limit on compensation for disability. 33 U.S.C.

§ 906(b)(1). Compensation is capped at twice the applicable

national average weekly wage. Id. The Act requires that compensation “be paid periodically, promptly, and directly to the

person entitled thereto, without an award, except where liability to pay compensation is controverted by the employer.” Id.

§ 914(a). 

An employer controverting the right to compensation must

file a formal notice with the district director. Id. § 914(d).

Employers who do not do so become liable for an additional

ten percent of “any installment of compensation payable without an award [that] is not paid within fourteen days after it

becomes due.” Id. § 914(e). In addition to and separate from

any penalty due under § 914, claimants are entitled under our

case law to receive interest on past due payments, regardless

of whether employers have controverted liability. See Matulic

v. Dir., OWCP, 154 F.3d 1052, 1059 (9th Cir. 1998). 

District directors are authorized by the Director to resolve

disputes with respect to claims and generally do so through

informal discussions. 20 C.F.R. §§ 702.311, 801.2. If parties

are unable to reach a resolution through this informal process,

a district director will transfer the case to an ALJ for formal

adjudication. Id. § 702.316; see also 33 U.S.C. § 919(d). The

ALJ will then issue a compensation order rejecting a claim or

making an award. 33 U.S.C. § 919(e). Parties can appeal an

ALJ’s order to the Benefits Review Board (“Board” or

“BRB”), id. § 921(b)(3), and “[a]ny person adversely affected

or aggrieved by a final order of the Board may obtain a

review of that order in the United States court of appeals,” id.

§ 921(c). 

10448 PRICE v. STEVEDORING SERVICES
B. Factual and Procedural History

Arel Price was injured in 1991 while employed as a longshoreman by Stevedoring Services of America, Inc. After

undergoing surgery for his injury, he returned to work and

continued to work until 1998, when he stopped working upon

his physician’s advice.

After informal negotiations preceding adjudication by an

ALJ, Stevedoring provided Price with weekly workers’ compensation payments of $676.89 from his date of injury until

January 1992. The maximum weekly compensation rate at the

time of Price’s injury was $699.96 per week. Price also

received a lump sum payment for the period from January to

November 1992.

The parties disagreed, however, as to whether the amount

Stevedoring paid Price in benefits was correct, or whether the

proper rate was higher. As a result, the case was referred to

an ALJ, who issued a formal compensation award in 2000.

Upon eventual appeal, we remanded the case for reconsideration of the national average weekly wage used to calculate

Price’s disability payments. 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, the ALJ revised the applicable national average

weekly wage and awarded Price compensation at the 1991 fiscal year maximum, declining to apply the maximum compensation rate from fiscal year 2000, when Price received his

formal compensation order. In addition, the ALJ awarded

Price interest on past due payments at the rate set forth in 28

U.S.C. § 1961; the ALJ rejected Price’s argument that interest

should be awarded at the higher rate set forth in 26 U.S.C.

§ 6621(a). The ALJ also refused to award Price compound

interest at the § 1961 rate, requiring only simple interest instead.2

2Compound interest means “[i]nterest paid on both the principal and the

previously accumulated interest.” Black’s Law Dictionary 887 (9th ed.

2009). In contrast, simple interest is “[i]nterest paid on the principal only

and not on accumulated interest.” Id. 

PRICE v. STEVEDORING SERVICES 10449
Price appealed each of these holdings to the BRB, which

affirmed the ALJ’s order in its entirety.

Price then petitioned this court for review of the Board’s

decision, challenging the maximum rate of compensation, the

rate of interest on his past due compensation, and the award

of simple rather than compound interest. Price named the

Director, who had not been involved in the adjudicatory proceedings before the Board, as one of the respondents. See generally Ingalls, 519 U.S. at 269 (holding that the Director may

be named as a respondent in litigation before the courts of

appeals). The Director filed a brief urging us to affirm the

BRB’s decision. A three-judge panel affirmed the Board’s

order as to all three issues, see Price v. Stevedoring Servs. of

Am., 627 F.3d 1145 (9th Cir. 2010), and Price petitioned for

en banc review of the panel’s decision. We granted the petition, in large part to address the degree of deference due the

Director’s litigating positions. See id. at 1150-51

(O’Scannlain, J., concurring). 

II. DISCUSSION

A. Standard of Review

1. Chevron deference

[1] Two administrative entities have weighed in on the

issues here: the Board, through its order, and the Director,

through his litigating position before this court. Because the

Board is not a policymaking entity, we accord no special deference to its interpretation of the Longshore Act. See Matson

Terminals, Inc. v. Berg, 279 F.3d 694, 696 (9th Cir. 2002)

(citing Potomac Elec. Power Co. v. Dir., OWCP, 449 U.S.

268, 279 n.18 (1980)); see also Martin v. Occupational Safety

and Health Review Comm’n, 499 U.S. 144, 154-55 (1991).

The Director, by contrast, is a policymaking entity under the

Act; he has the “power to resolve legal ambiguities in the statute.” Newport News, 514 U.S. at 134. But having that author10450 PRICE v. STEVEDORING SERVICES
ity does not mean that any reasonable statutory construction

by the Director is entitled to what has become known as

Chevron deference. See generally Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

Although we have previously extended Chevron deference to

the Director’s litigating positions interpreting the Act, see,

e.g., Gilliland v. E.J. Bartells Co., Inc., 270 F.3d 1259, 1262

(9th Cir. 2001); Mallott & Peterson v. Dir., OWCP, 98 F.3d

1170, 1172 (9th Cir. 1996), we now overrule our precedent to

that effect. 

“[O]ur rule mandating deference to the Director’s reasonable litigating positions cannot be reconciled with Supreme

Court precedent.” Price, 627 F.3d at 1150 (O’Scannlain, J.,

concurring). In United States v. Mead Corp., the Supreme

Court held that Chevron deference applies only when: (1) “it

appears that Congress delegated authority to the agency generally to make rules carrying the force of law” and (2) “the

agency interpretation claiming deference was promulgated in

the exercise of that authority.” 533 U.S. 218, 226-27 (2001).

Whether an agency’s reasonable statutory interpretation satisfies Mead’s second requirement depends on the form and context of that interpretation. See Marmolejo-Campos v. Holder,

558 F.3d 903, 909 (9th Cir. 2009) (en banc). Mead compels

us to reconsider the deference we have previously accorded

the Director’s statutory interpretations advanced during litigation. See Roberts, 132 S. Ct. at 1363 n.12 (declining to resolve

whether the Director’s litigating position is entitled to Chevron deference).

Mead held that tariff classification rulings by the U.S. Customs Service do not merit Chevron deference. 533 U.S. at

221. The relevant statute in that case provided that the Customs Service “shall, under rules and regulations prescribed by

the Secretary [of the Treasury,] . . . fix the final classification

and rate of duty applicable to . . . merchandise.” 19 U.S.C.

§ 1500(b). In addition, the Secretary had promulgated regulations authorizing the Customs Service to issue “ruling letters”

PRICE v. STEVEDORING SERVICES 10451
setting tariff classifications for imports. See 19 C.F.R. § 177.8

(2000). In denying Chevron deference to the Service’s ruling

letters, Mead first explained, “It is fair to assume generally

that Congress contemplates administrative action with the

effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force.” 533

U.S. at 230. Mead then observed that the Customs Service

generally issued ruling letters without any notice-andcomment procedure. Id. at 230-31.

Noting that the absence of any formal procedure did not

categorically preclude extension of Chevron deference, the

Court proceeded to examine whether there were “any other

circumstances reasonably suggesting that Congress ever

thought of classification rulings as deserving the deference

claimed for them here.” Id. at 231; see also Barnhart v. Walton, 535 U.S. 212, 221-22 (2002). Those circumstances, it

concluded, were not present. See Mead, 533 U.S. at 232-34.

Of particular importance, the Court explained, was that the

agency’s regulations and practice made it clear that “a letter’s

binding character as a ruling stops short of third parties.” Id.

at 233. Specifically, the regulations provided that a ruling letter was to “be applied only with respect to transactions

involving articles identical to the sample submitted with the

ruling request or to articles whose description is identical to

the description set forth in the ruling letter.” 19 C.F.R.

§ 177.9(b)(2) (2000). Even then, a letter was “subject to modification or revocation . . . without notice to any person,

except the person to whom the letter was addressed,” id.

§ 177.9(c), and could usually be modified without notice and

comment, id. § 177.10(c). The regulations, moreover, warned

that “no other person should rely on the ruling letter or

assume that the principles of that ruling will be applied in

connection with any transaction other than the one described

in the letter.” Id. § 177.9(c). Because the Court found no indication that the agency had “ever set out with a lawmaking

pretense,” Mead, 533 U.S at 233, it concluded that the tariff

10452 PRICE v. STEVEDORING SERVICES
rulings should be treated like interpretations contained in

enforcement guidelines, agency manuals, and policy

statements—that is, as “beyond the Chevron pale,” id. at 234.

The Director’s construction of the Longshore Act advanced

through his litigating position falls even further “beyond the

Chevron pale,” id., and evinces even less of a “lawmaking

pretense,” id. at 233, than did the ruling letters in Mead. The

Director does not adopt his litigating positions through any

“relatively formal administrative procedure,” id. at 230, but

through internal decisionmaking not open to public comment

or determination. Cf. Didrickson v. U.S. Dep’t of Interior, 982

F.2d 1332, 1339 (9th Cir. 1992) (“[L]itigation decisions are

generally committed to agency discretion by law, and are not

subject to judicial review under the APA.”). Nor are there any

other indicia that Congress intended the Director’s litigating

positions to “carry[ ] the force of law,” Mead, 533 U.S. at

227. Quite the contrary. In adjudications under the Longshore

Act, it is the BRB’s decision, rather than the Director’s litigating position, that binds the parties in any given case and provides guidance to other claimants and employers. See 33

U.S.C. § 921(b)(3) (“The Board shall be authorized to hear

and determine appeals raising a substantial question of law or

fact . . . .”). 

In practice as well as theory, it is the BRB’s published

decisions—and not the Director’s litigating positions—that

are precedential and determine the rights of future parties.

See, e.g., B.C. v. Stevedoring Servs. of Am., 41 BRBS 107,

112 (2007) (“[W]e decline to overturn our longstanding precedent that, under normal circumstances, pre-judgment interest awards under the Act should be calculated on a simple

basis.”). Any claimants or employers who ignore a Board precedent and rely instead on the Director’s contrary litigating

position—assuming there is one—do so at their own peril.

Furthermore, the Director’s arguments during agency adjudication inform but do not constrain the BRB’s decisions in any

way. In Grant v. Portland Stevedoring Co., for example, the

PRICE v. STEVEDORING SERVICES 10453
BRB decided to adopt the 28 U.S.C. § 1961 rate for calculating interest on past due disability payments, despite the Director’s position before the Board that it should rely on the 26

U.S.C. § 6621 rate. 16 BRBS 267, 270-71 (1984).

In addition, the Director’s maintenance of some litigating

positions that are consistent with the Board’s precedential

orders and others that are at odds with those orders is inconsistent with the “fairness and deliberation that should underlie

a pronouncement of [law].” Mead, 533 U.S. at 230; cf.

Marmelejo-Campos, 558 F.3d at 920. Returning to the previous example, the Director continued to advocate before the

BRB for the § 6621 rate even after the Board’s decision in

Grant. See Stone v. Newport News Shipbldg. & Dry Dock Co.,

20 BRBS 1, at *5 (1987); Littrell v. Oregon Shipbuilding.

Co., 17 BRBS 84, at *2 (1985). At some point, however, the

Director changed his stance to accord with the BRB’s position. The agency’s Longshore Procedure Manual now cites

Grant for the proposition that interest on past due payments

is to be paid at the § 1961 rate. See Div. of Longshore and

Harbor Workers’ Compensation, Dep’t of Labor, Longshore

(DLHWC) Procedure Manual ch. 8-201, available at http://

www.dol.gov/owcp/dlhwc/lspm/pmtoc.htm (hereinafter Longshore Manual). Nonetheless, the Director has not promulgated notice-and-comment regulations that undergird his

current position, although he has the authority to issue interpretive regulations and has done so with respect to other

issues. See 33 U.S.C. § 939(a); 20 C.F.R. §§ 701.201,

701.301.

Withholding Chevron deference from the Director’s litigating positions is consistent with the Supreme Court’s decision

in Martin, 499 U.S. 144 (1991). In Martin, the Court indicated that an agency’s interpretation of its own regulations is

not undeserving of Chevron deference simply because it

advances that interpretation as a litigating position during

administrative adjudication. See id. at 156-57; see also Bowen

v. Georgetown Univ. Hosp., 488 U.S. 204, 212-13 (1988). At

10454 PRICE v. STEVEDORING SERVICES
first glance, Martin may appear to compel deference to the

Director’s litigating position.

“That an agency’s litigating position may be entitled to deference when the agency interprets its own regulations,” however, “says nothing about whether such a position may be

entitled to deference when the agency interprets the statute

itself.” Price, 627 F.3d at 1150 (O’Scannlain, J., concurring)

(citing Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 277-78 (2009)); see also Gregory v. Ashcroft, 501 U.S. 452, 485 n.3 (1991) (White, J., concurring)

(noting that an agency’s interpretation of a statute “is entitled

to little if any deference” because “it is merely the [agency’s]

litigating position in recent lawsuits”). Significantly, Martin

relied on the “well established” premise that substantial deference must be given to an agency’s construction of its own

regulations. 499 U.S. at 150. The Court “presume[d] that the

power authoritatively to interpret its own regulations is a

component of the agency’s delegated lawmaking powers.” Id.

at 151. 

The principle that agencies’ interpretations of their own

regulations are entitled to deference, even when their interpretation of statutes is not, underlies Auer v. Robbins, in which

the Court accorded Chevron deference to the interpretation of

Fair Labor Standards Act (FLSA) regulations set forth in the

Secretary of Labor’s amicus brief. 519 U.S. 452 (1997). In

Auer, the Secretary’s amicus brief explained why regulations

that he had promulgated gave exempt status to a class of law

enforcement officers. See id. at 461. Deferring to that interpretation, Auer explained that, because the applicable test was

“a creature of the Secretary’s own regulations, his interpretation of it is . . . controlling unless ‘plainly erroneous or inconsistent with the regulation.’ ” Id. (emphasis added) (quoting

Robertson v. Methow Valley Citizens Council, 490 U.S. 332,

359 (1989)). Similarly, other cases in which the Supreme

PRICE v. STEVEDORING SERVICES 10455
Court has deferred to agencies’ litigating positions have

involved interpretations of regulations, not statutes.3

Since Auer, the Court has distinguished even more clearly

between an agency’s informal interpretations of its own regulations and of its governing statute. In Gonzales v. Oregon,

546 U.S. 243, 255-58 (2006), for example, the Court held that

an Interpretive Rule issued by the Attorney General was not

entitled to Chevron deference. Notably, the government had

argued that the interpretive rule was “an elaboration of one of

the Attorney General’s own regulations,” rather than a direct

interpretation of the statutory provision at issue, and was thus

entitled to considerable deference under Auer. Id. at 256.

Rejecting this argument, the Court explained that the underlying regulations in Auer “gave specificity to a statutory scheme

the Secretary was charged with enforcing and reflected the

considerable experience and expertise the Department of

Labor had acquired over time with respect to the complexities

of the Fair Labor Standards Act.” Id. at 256-57. In contrast,

the Court continued, the underlying regulation at issue did

“little more than restate the terms of the statute itself. The language the interpretive rule addresses comes from Congress,

not the Attorney General, and the near equivalence of the statute and regulation belies the Government’s argument for Auer

deference.” Id. at 257. Despite the government’s attempt to

characterize the issue as one of regulatory interpretation,

Gonzales concluded, the question was really one of statutory

interpretation, and the interpretive rule did not merit Auer deference. Id.

3

See, e.g., Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2265

(2011) (“The [Federal Communications Commission] as amicus curiae

has advanced a reasonable interpretation of its regulations, and we defer

to its views.”); Williamson v. Mazda Motor of Am., Inc., 131 S. Ct. 1131,

1137 (2011) (relying, in part, on the Solicitor General’s amicus brief to

interpret a Department of Transportation regulation); Chase Bank v.

McCoy, 131 S. Ct. 871, 880 (2011) (“Because the interpretation the [Federal Reserve] Board presents in its brief is consistent with the regulatory

text, we need look no further in deciding this case.”) 

10456 PRICE v. STEVEDORING SERVICES
The rigors of rulemaking, Gonzales indicates, are relevant

here. Gonzales explained that an agency does not acquire

“special authority” to interpret its own regulations when it

does not dedicate its “expertise and experience” to formulating those regulations and instead merely paraphrases statutory

language. Id. In other words, an agency presumably undertakes careful deliberation about how best to effectuate statutory policies during the demanding process of promulgating

regulations that go beyond simply restating a statute; through

that process, it takes pains to understand and effectuate the

congressional intent underlying the statute. See Chevron, 467

U.S. at 865 (concluding that the agency’s “interpretation represents a reasonable accommodation of manifestly competing

interests and is entitled to deference: the regulatory scheme is

technical and complex, the agency considered the matter in a

detailed and reasoned fashion, and the decision involves reconciling conflicting policies . . . [that] Congress intended to

accommodate . . . .”) (footnotes omitted); Christopher v.

SmithKline Beecham Corp., 132 S. Ct. 2156 (2012). In addition, agencies are held accountable to the public through the

formal rulemaking process. See 5 U.S.C. § 553 (setting forth

the requirements for notice-and-comment procedure); Safe Air

for Everyone v. EPA, 488 F.3d 1088, 1097-98 (9th Cir. 2007).

Where that thorough groundwork has already been completed, the agency’s later litigating positions can ordinarily be

understood as resting on its earlier research and consideration.4

4At times, however, “there is reason to suspect that the agency’s interpretation ‘does not reflect the agency’s fair and considered judgment on

the matter in question.’ ” Christopher, 132 S. Ct. at 2166 (quoting Auer,

519 U.S. at 462). Indicia of inadequate consideration include conflicts

between the agency’s current and previous interpretations, id.; signs that

the agency’s interpretation amounts to no more than a “ ‘convenient litigating position,’ ” id. (quoting Bowen, 488 U.S. at 213); or an appearance

that the agency’s interpretation is no more than a “ ‘post hoc rationalization advanced by an agency seeking to defend past agency action against

attack,’ ” id. (quoting Auer, 519 U.S. at 462). Where such indicia are present, Auer deference is inappropriate. See id. 

PRICE v. STEVEDORING SERVICES 10457
Less formality is demanded of a subsequent interpretation

because the existence of regulations indicates that the agency

has already weighed and reconciled, with adequate care, the

conflicting policy decisions implicated in its later interpretive

decision. In contrast, in the absence of formal regulations

applying a statutory provision, it is more difficult to determine

whether an agency’s litigating position interpreting that provision is grounded in the same level of careful consideration as

would be required in formal rulemaking. It is also harder to

ascertain whether the agency’s position takes into account the

interests of the public or the parties with adequate fairness.5

See Mead, 533 U.S. at 230; Thomas W. Merrill & Kristin E.

Hickman, Chevron’s Domain, 89 Geo. L.J. 833, 886 (2001)

(observing that modes of announcing agency statutory constructions other than formal regulations and adjudications “do

not offer equivalent opportunities for public participation”

and that “appellate or amicus briefs filed in the agency’s name

typically offer no established forum for public input”).

Without a basis in agency regulations or other binding

agency interpretations, there is usually no justification for

attributing to an agency litigating position “the force of law,”

Mead, 533 U.S. at 227, essential to Chevron deference. An

agency can ordinarily change its litigating position from one

case to another, without any party having grounds to complain

that doing so violates the “law.” See Didrickson, 982 F.2d at

5Consistent with Mead and Barnhart, we have determined that some

agency interpretations advanced through means other than formal rulemaking or adjudication are entitled to Chevron deference. See, e.g., Davis

v. EPA, 348 F.3d 772, 779 n.5 (9th Cir. 2003) (“The mere fact that the

EPA engaged in informal agency adjudication of California’s waiver

request does not vitiate the Chevron deference owed to the agency’s interpretation of [a Clean Air Act provision].”); Schuetz v. Banc One Mortgage

Corp., 292 F.3d 1004, 1012 (9th Cir. 2002) (“Chevron deference is due

even though HUD’s Policy Statements are not the result of formal rulemaking or adjudication.”). But there remains a significant gap between the

“lawmaking pretense,” Mead, 533 U.S at 233, embodied in those forms of

interpretation and that manifested in an agency’s litigating position. 

10458 PRICE v. STEVEDORING SERVICES
1339 (noting that “litigation decisions are generally committed to agency discretion by law”); cf. Bowen, 488 U.S. at 212-

13 (observing that the litigating position of the Secretary of

Health and Human Services interpreting a provision of the

Medicare Act was contrary to his view of that provision advocated in previous cases, and that “[d]eference to what appears

to be nothing more than an agency’s convenient litigating

position would be entirely inappropriate”).

Furthermore, deferring to agencies’ litigating positions

interpreting statutes they are charged with administering

would create a danger that agencies would avoid promulgating regulations altogether, given the comparative ease of

announcing a new statutory interpretation in a brief rather

than through formal rulemaking. This result would severely

undermine the notice and predictability to regulated parties

that formal rulemaking is meant to promote. See Christopher,

132 S. Ct. at 2167. The issues in this case are illustrative: The

Director could have issued notice-and-comment regulations

regarding interest on compensation awards long ago, see 33

U.S.C. § 939(a), rather than taking inconsistent positions on

interest-related issues over the years. 

[2] Based on these considerations, we conclude that the

Director’s litigating position interpreting the Longshore Act

does not merit Chevron deference. In so holding, we join all

other circuits that have addressed this issue.6

6

See Wheeler v. Newport News Shipbuilding and Dry Dock Co., 637

F.3d 280, 290-91 (4th Cir. 2011) (according only Skidmore deference to

the Director’s litigating position interpreting the term “compensation”

under the Longshore Act); Day v. James Marine, Inc., 518 F.3d 411, 418

(6th Cir. 2008) (accepting the Director’s concession that his litigating

position was not entitled to Chevron deference, but only Skidmore deference); Pool Co. v. Cooper, 274 F.3d 173, 177 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 & Shipbldg 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.”) (internal citation omitted), abrogated on other grounds by Bath

Iron Works Corp. v. Dir., OWCP, 506 U.S. 153 (1993). 

PRICE v. STEVEDORING SERVICES 10459
Our holding finds support in the Supreme Court’s analysis

of the relationship between the Director and the Board under

the Longshore Act. The Court has observed that the Director’s

“lack of control over the adjudicative process does not . . .

deprive [him] of the power to resolve legal ambiguities in the

statute.” Newport News, 514 U.S. at 134. If the Director’s litigating position interpreting the Act were entitled to Chevron

deference, then the Director would have some control over the

adjudicative process. Further, the structure of the Longshore

Act suggests that participation in litigation is not one of the

means through which Congress intended the Director to make

legally binding pronouncements on the statute’s meaning. The

Director, as we have noted, “retains the rulemaking power,

which means that if [his] problem with the . . . decision of the

Board is that it has established an erroneous rule of law, [he]

has full power to alter that rule.” Id. (internal citations omitted).7

7This case does not directly involve the question whether courts must

accord Chevron deference to agency litigating positions advanced during

agency rather than appellate adjudication. In Martin, the Supreme Court

explained that because agency litigating positions furnished at the appellate level “occur after agency proceedings have terminated, they do not

constitute an exercise of the agency’s delegated lawmaking powers” and

are thus not entitled to Chevron deference. 499 U.S. at 156-57. In contrast,

Martin noted, the Secretary of Labor’s “interpretation of OSH Act regulations in an administrative adjudication . . . is agency action, not a post hoc

rationalization of it.” Id. at 157. 

The distinction in Martin between administrative and court adjudication

did not survive Mead, Auer, and Auer’s progeny, although the deference

accorded the Secretary’s litigating position in Martin is fully consistent

with those cases. Notably, Martin involved interpretation of regulations,

not a statute. Under Auer and its progeny, the line Martin drew between

agency interpretations advanced during administrative versus court adjudications no longer obtains when interpretation of regulations is at issue.

And, as Martin involved interpretation of regulations, it comports with our

analysis concerning the difference between the Chevron deference due litigating positions interpreting statutes as opposed to regulations. 

Our precedents that have relied on Martin to hold “that the Director’s

interpretation of the LHWCA is entitled to deference if it is contained . . .

in the Director’s litigation position within an agency adjudication, so long

10460 PRICE v. STEVEDORING SERVICES
In sum, neither the Board’s decision nor the Director’s litigating position interpreting the Longshore Act is entitled to

Chevron deference.

2. Skidmore Deference

Where Chevron is inapplicable, reasonable agency interpretations may still carry “at least some added persuasive force.”

Metro. Stevedore Co., 521 U.S at 136. “An agency’s interpretation may merit some deference whatever its form, given the

‘specialized experience and broader investigations and information’ available to the agency, and given the value of uniformity in its administrative and judicial understandings of what

a national law requires.” Mead, 533 U.S. at 234 (quoting Skidmore v. Swift, 323 U.S. 134, 139-40 (1944)). 

i. The Director

[3] The Director’s interpretations of the Longshore Act

may merit Skidmore respect, but only to the extent that they

exhibit certain characteristics. “The weight of [an agency’s

interpretive decision] in a particular case will depend upon the

thoroughness evident in its consideration, the validity of its

reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade,

if lacking power to control.” Skidmore, 323 U.S. at 140; see

as the interpretation is reasonable,” Gilliland, 270 F.3d at 1262, have not

recognized this distinction. See also, e.g., Alexander v. Dir., OWCP, 297

F.3d 805, 807-08 (9th Cir. 2001); Mallott, 98 F.3d at 1172. We overrule

those precedents because they granted Chevron deference to litigating

positions interpreting a statute rather than regulations. For similar reasons,

we have in our analysis treated the issue of whether to defer to the Director’s litigating position as a unitary one and have drawn on both those

cases in which the Director advanced his position before the Board and

those cases in which he did so before this court. 

PRICE v. STEVEDORING SERVICES 10461
also San Luis & Delta-Mendota Water Auth. v. United States,

672 F.3d 676, 708 (9th Cir. 2012).8

[4] As will appear, we ultimately conclude that the Director is entitled to Skidmore respect as to the proper rate of

interest, first because some of his arguments are persuasive

and second because the agency’s manual and practice have

for some time consistently advanced a reasonable position as

to that rate. But the Director is not entitled to Skidmore

respect as to whether the interest should be simple or compound, because his position on that issue is simply unpersuasive, notwithstanding its inclusion in the agency’s manual and

the Director’s consistent application of simple interest for

some time. In particular, the Director’s position as to compound interest is flawed because it selectively adopts the

§ 1961 statutory rate without adopting the accompanying provision that specifies compounding. See 28 U.S.C. § 1961(a),

(b).

ii. The Board

We have previously indicated that the BRB may also be

entitled to Skidmore respect despite its lack of policymaking

authority. See, e.g., Stevedoring Servs. of Am. v. Dir., OWCP,

297 F.3d 797, 801 (9th Cir. 2002) (“Because the Board is not

a policymaking agency, its interpretation of the LHWCA is

not entitled to any special deference; the court must, however,

respect the Board’s interpretation of the statute where such

8Of course, “the ‘weight’ assigned to any advocate’s position is presumably dependent upon the ‘thoroughness evident in its consideration’ and

the ‘validity of its reasoning.’ . . . The argument’s pedigree adds nothing

to the persuasive force inherent in its reasoning.” Colin S. Diver, Statutory

Interpretation in the Administrative State, 133 U. Pa. L. Rev. 549, 565

(1985) (quoting Skidmore, 323 U.S. at 140). For that reason, special Skidmore deference to agency litigating positions is more likely to turn on factors such as the consistency of its position and its application of that

position through administrative practice than on the quality of its court

advocacy. 

10462 PRICE v. STEVEDORING SERVICES
interpretation is reasonable and reflects the policy underlying

the statute.”) (quoting McDonald v. Dir., OWCP, 897 F.2d

1510, 1512 (9th Cir. 1990)). This approach is in tension with

Skidmore, which accords deference to “the Administrator

under [an] Act.” 323 U.S. at 140. Skidmore strongly suggests

that it is an administrative entity’s statutorily delegated

authority to administer a statute that qualifies it for any kind

of deference in the first place. And here, it is the Director, not

the Board, who administers the Longshore Act. See Ingalls,

519 U.S. at 262-63. 

In Martin, the Court withheld Chevron deference from the

Occupational Safety and Health Review Commission

(OSHRC) on the basis that “Congress intended to delegate to

the Commission the type of nonpolicymaking adjudicatory

powers typically exercised by a court in the agency-review

context.” 499 U.S. at 154. While Martin did not explicitly

address whether OSHRC’s interpretations could still be entitled to Skidmore respect, its observation that OSHRC essentially functions as a court strongly suggests that, on review in

this court, OSHRC’s legal conclusions merit no more special

deference than do a district court’s legal holdings. Other circuit courts have relied on Martin to withhold both Chevron

and Skidmore deference from OSHRC. See, e.g., Chao v.

OSHRC, 540 F.3d 519, 526-27 (6th Cir. 2008); Chao v. Russell P. Le Frois Builder, Inc, 291 F.3d 219, 226-28 (2d Cir.

2002). 

Like OSHRC, the BRB possesses only “nonpolicymaking

adjudicatory powers,” Le Frois, 291 F.3d at 227; see also

Potomac Elec., 449 U.S. at 279 n.18. It is therefore questionable whether the BRB should be entitled to any kind of special deference, however persuasive its reasoning. 

Another way of approaching this problem is to return to the

two-step test Mead set forth for determining whether an

agency is entitled to Chevron deference. Chevron deference is

due only when (1) “it appears that Congress delegated authorPRICE v. STEVEDORING SERVICES 10463
ity to the agency generally to make rules carrying the force of

law” and (2) “the agency interpretation claiming deference

was promulgated in the exercise of that authority.” 533 U.S.

at 226-27. Whereas the Director strikes out at step two here

and receives Skidmore instead of Chevron deference to the

extent that his interpretations are persuasive, the BRB strikes

out at step one and therefore should probably get no special

respect at all. Cf. Le Frois, 291 F.3d at 226 (“[W]e must first

decide to which administrative actor—the Secretary or the

Commission—Congress ‘delegated authority . . . to make

rules carrying the force of law.’ Only then can we decide the

nature or extent of that deference.” (quoting Mead, 533 U.S.

at 226-27)). 

Nonetheless, we need not definitively resolve this conundrum concerning whether the BRB is entitled to Skidmore

respect. As we indicate below, the Board’s explanations as to

the contested issues here are not persuasive and would thus

not be entitled to deference in any event. 

B. Maximum Compensation Rate

[5] The LHWCA caps disability benefits at twice the

national average weekly wage for the fiscal year in which a

worker is “newly awarded compensation.” 33 U.S.C.

§ 906(c). The parties’ disagreement over Price’s maximum

rate of compensation arises from their diverging interpretations of the phrase “newly awarded compensation” with

respect to when compensation is awarded.

[6] In Roberts v. Sea-Land Services, Inc., the Supreme

Court recently held that an employee is “newly awarded compensation” within the meaning of § 906(c) “when he first

becomes disabled and thereby becomes statutorily entitled to

benefits, no matter whether, or when, a compensation order

issues on his behalf.” 132 S. Ct. at 1354. Roberts affirmed our

decision in Roberts v. Dir., OWCP, 625 F.3d 1204, 1207

(2010), on which the three-judge panel in this case relied in

10464 PRICE v. STEVEDORING SERVICES
agreeing with Respondents’ position. See Price, 627 F.3d at

1148. The Supreme Court’s holding in Roberts is dispositive.

We therefore affirm the BRB’s determination that the ALJ

properly applied the maximum rate of compensation for 1991,

when Price became disabled.

C. Interest Rate

We have held that interest on disability awards is mandatory under the LHWCA as a “ ‘necessary and inherent component of ‘compensation’ because it ensures that the delay in

payment of compensation does not diminish the amount of

compensation to which the employee is entitled.’ ” Matulic,

154 F.3d at 1059 (quoting Sproull v. Dir., OWCP, 86 F.3d

895, 900 (9th Cir. 1996)). We have extended this principle to

“pre-judgment” interest, which in the LHWCA context means

interest that accrues from the date a worker becomes entitled

to compensation, rather than from the date of an ALJ’s award.

See id. (citing Hunt v. Dir., OWCP, 999 F.2d 419, 421-22 (9th

Cir. 1993)). As discussed, the date that a worker becomes statutorily entitled to compensation is when he first becomes disabled. See Roberts, 132 S. Ct. at 1356. 

[7] While the parties agree that Price should receive interest on his past due benefits, they disagree as to the proper rate

of interest. The LHWCA contains no express provision

regarding interest on past due compensation, nor any standards for calculating the rate of interest to be awarded.9

Found. Constructors, Inc. v. Dir., OWCP, 950 F.2d 621, 625

(9th Cir. 1991).

1. Section 6621 or Section 1961

[8] Price first argues that the ALJ should have awarded

him interest on past due compensation at the rate set forth in

9Nonetheless, all the parties have treated the interest rate issues in this

case as questions of statutory interpretation. We therefore do so as well.

PRICE v. STEVEDORING SERVICES 10465
26 U.S.C. § 6621. Section 6621 defines the interest rate that

the IRS uses with respect to compensation for overpayment

and underpayment of taxes. See 26 U.S.C. § 6621(a). This

rate is the federal “short-term rate”

10 plus three percentage

points. See id. The Director and other Respondents contend,

in contrast, that the ALJ properly awarded Price interest at the

rate set forth in 28 U.S.C. § 1961. Section 1961 provides that

“[i]nterest shall be allowed on any money judgment in a civil

case recovered in a district court . . . at a rate equal to the

weekly average 1-year constant maturity Treasury yield.” 28

U.S.C. § 1961(a). The § 6621 rate is always higher than the

§ 1961 rate. Compare United States District Court, District of

Utah, Post-Judgment Interest Rates, http://www.utd.uscourts.

gov/documents/judgpage.html (last visited June 19, 2012)

(documenting the § 1961 rate from 1994 to 2012), with IRS,

Internal Revenue Bulletin: 2008-52 (Dec. 29, 2008), available

at http://www.irs.gov/irb/2008-52_IRB/ar07.html#d0e169

(tracking the § 6621 rate from 1975 to 2009).

As an initial matter, we are unpersuaded by the BRB’s reasons for applying the § 1961 rate rather than the § 6621 rate.

The BRB settled on the § 1961 rate in Grant v. Portland

Stevedoring Co., 16 BRBS 267 (1984), and has since consistently used that rate. See B.C. v. Stevedoring, 41 BRBS at

111. In Grant, the Board held that interest on past-due compensation for injured workers should be awarded at the § 1961

rate rather than at a fixed rate of six-percent, 16 BRBS at 270,

which was the rate that the IRS had used to calculate interest

on tax overpayments and underpayments prior to amendments of the Internal Revenue Code in 1975. See S. Rep. 93-

1357, at 7494-97 (1974). It reasoned that the six-percent rate

“does not take into account . . . economic trends and is therefore no longer appropriate to further the purpose of making

10The federal short-term rate is “the rate determined by the [IRS] Secretary based on the average market yield . . . on outstanding marketable obligations of the United States with remaining periods to maturity of 3 years

or less.” 26 U.S.C. § 1274(d)(1)(C)(i). 

10466 PRICE v. STEVEDORING SERVICES
the claimant whole.” Grant, 16 BRBS at 270. In contrast, the

BRB explained, the § 1961 “rate is periodically changed to

reflect the yield on United States Treasury Bills, and thus

more accurately reflects the actual loss to claimant due to the

employer’s use of claimant’s past due benefits.” Id. 

The same, however, could also be said of the current

§ 6621 rate. Because the § 6621 rate is now tied to the “federal short-term rate,” 26 U.S.C. § 6621(a), it also fluctuates in

accordance with changing economic conditions. Indeed, Congress abandoned its previous application of a flat six-percent

interest rate to tax overpayments and underpayments precisely

because the fixed rate could not be “kept in line with [changing] money market rates.” S. Rep. 93-1357, at 7496. Thus,

although the BRB’s reasoning justifies applying the § 1961

rate instead of a flat rate, it does nothing to establish the propriety of the § 1961 rate over the § 6621 rate.

Grant advanced a second rationale for adopting the § 1961

rate instead of the amended § 6621 rate, on which the Director

relies: The § 1961 rate comports with past procedures for

administering the LHWCA. See 16 BRBS at 271. Specifically, Grant noted that before Congress amended the Act in

1972, deputy commissioners had the authority to adjudicate

compensation claims, and their decisions were appealed to the

federal district courts. Id. Following the 1972 amendments,

ALJs took over the adjudicatory functions of the deputy commissioners. Id. ALJ decisions are now appealed to the BRB,

and the Board’s decisions, in turn, are reviewed by the federal

circuit courts. Id. Based on this history, the Board concluded

that it had assumed the role formerly exercised by district

courts in adjudicating claims under the Act, and that its orders

have the “force and effect” of federal judgments. Id. It therefore endorsed the § 1961 rate, which is used to calculate interest payments on district court judgments. Id.

The BRB’s reasoning, however, is now undermined by the

Supreme Court’s decision in Roberts and by the Board’s own

PRICE v. STEVEDORING SERVICES 10467
position on the issue decided in that case. See 132 S. Ct. at

1355. Interest on payments accrues as of a claimant’s date of

injury rather than the date of a Board order. Id. at 1363. But

§ 1961 sets forth the post-judgment interest to be paid in civil

cases. See 28 U.S.C. § 1961(a). Under the compensation rate

rule approved in Roberts, the interest due to claimants is more

appropriately analogized to pre-judgment interest. See also

Matulic, 154 F.3d at 1059 (reaching the same conclusion prior

to Roberts). The Board’s explanation also fails to take into

account “the many cases in which no formal orders issue,

because employers make voluntary payments or the parties

reach informal settlements.” Roberts, 132 S. Ct. at 1358.

We are likewise unconvinced by the Director’s argument in

his briefs before us that § 914, which requires additional compensation for overdue payments, ensures that claimants will

not be under-compensated and thus renders the higher § 6621

rate unnecessary. Section 914(e) imposes a ten percent penalty on late payments that are due without a compensation

order. See 33 U.S.C. § 914(e). But this provision applies only

when an employer fails to timely file a notice of controversion. See id. § 914 (d), (e). The Director concedes that Price

is not entitled to any additional compensation pursuant to

§ 914, because Stevedoring Services filed a timely notice of

controversion. Section 914 is nevertheless relevant, the Director insists, because it impels employers quickly to notify the

OWCP of their intention not to pay compensation voluntarily

for alleged injuries. Once an employer has done so, the Director maintains, “[t]he claimant can then promptly invoke the

Longshore Act’s dispute resolution procedures — procedures

designed to resolve disputes quickly and informally.” According to the Director, the likelihood that parties will quickly

resolve disputes over compensation obviates the need for the

higher interest rates advocated by Price.

But this case—like others in which the rate of interest is

likely to matter —was resolved neither quickly nor informally. Although Stevedoring Services filed a notice of con10468 PRICE v. STEVEDORING SERVICES
troversion in 1992, Price did not receive a formal

compensation order until 2000. The existence of § 914 thus

does little to bolster the Director’s position that Price, and

others in his position, should be awarded interest at the lower

§ 1961 rate. 

[9] Nonetheless, we conclude that applying the § 1961 rate

is most appropriate here. To begin, our precedents support the

reasonableness of that rate. We have concluded, in the maritime context, “that the measure of interest rates prescribed for

post-judgment interest in 28 U.S.C. § 1961(a) is also appropriate for fixing the rate for pre-judgment interest.” W. Pac.

Fisheries, Inc. v. SS President Grant, 730 F.2d 1280, 1289

(9th Cir. 1984). Comparison with the maritime context is

appropriate because pre-judgment interest there serves the

same purpose as it does here. As discussed, interest on disability is an essential part of compensation under the Longshore Act, “ ‘because it ensures that the delay in payment of

compensation does not diminish the amount of compensation

to which the employee is entitled.’ ” Matulic, 154 F.3d at

1059 (quoting Sproull, 86 F.3d at 900). In adopting the § 1961

rate in Western Pacific Fisheries, we similarly explained that

“[a]n award of pre-judgment interest at below market rates

does not fully compensate the prevailing party and, in addition, tends to . . . give[ ] an economic benefit to the debtor.”

730 F.2d at 1288. The clear implication of our explanation

was that the § 1961 rate does reflect market rates and thereby

“fully compensate[s]” aggrieved parties. Id.

[10] We have also applied the § 1961 rate to prejudgment

interest on awards under ERISA. See Blanton v. Anzalone,

813 F.2d 1574, 1576 (9th Cir. 1987). ERISA, like the Longshore Act, has a remedial purpose, and both schemes provide

payments on which recipients are likely to depend, in whole

or in part, for their livelihood. Compare Honolulu Joint

Apprenticeship and Training Comm. of United Ass’n Local

Union No. 675 v. Foster, 332 F.3d 1234, 1239 (9th Cir. 2003)

(recognizing the “remedial purpose of ERISA in favor of parPRICE v. STEVEDORING SERVICES 10469
ticipants and beneficiaries”), with Found. Constructors, 950

F.2d at 625 (emphasizing “the remedial intent of the [Longshore] Act”). Our view that the § 1961 rate is adequate to

effectuate the remedial purpose of ERISA supports the propriety of applying that rate under the Longshore Act.

For similar reasons, we have acquiesced to the application

of the § 1961 rate with respect to pre-judgment interest in

Title VII back pay cases. See, e.g., Estate of Reynolds v. Martin, 985 F.2d 470, 472 (9th Cir. 1993); see also Saulpaugh v.

Monroe Cmty Hosp., 4 F.3d 134, 145 (2d Cir. 1993); cf. Ford

v. Alfaro, 785 F.2d 835, 842-43 (9th Cir. 1986). “An award

of back pay is appropriate to advance Congress’ intent to

make persons whole for injuries suffered through past discrimination.” Caudle v. Bristow Optical Co., Inc., 224 F.3d

1014, 1020 (9th Cir. 2000) (internal quotation marks omitted).

Insofar as interest at the § 1961 rate ensures that individuals

are adequately compensated for lost employment opportunities due to discrimination, so too should it ensure that workers

are sufficiently compensated for lost job opportunities due to

disability. 

Pointing to another remedial scheme, Price contends that

use of the § 6621 rate under the Black Lung Benefits Act

(“Black Lung Act”) compels application of the same rate

under the Longshore Act. The Black Lung Act is also administered by the Director, 30 U.S.C. § 936(a); 20 C.F.R. § 726.6,

and provides benefits for the death or disability of coal miners

resulting from the “black lung disease,” see 30 U.S.C. § 901.

One attribute of the Black Lung Act is of particular importance in weakening the analogy to the Longshore Act for purposes of determining the appropriate rate of interest: Although

“[s]ignificant portions of the Longshore Act have been incorporated unchanged in the Black Lung Benefits Act,” Nealon

v. Cal. Stevedore & Ballast Co., 996 F.2d 966, 970 (9th Cir.

1993),11 the Black Lung Act and its implementing regulations,

11See 30 U.S.C. § 932(a) (adopting parts of the Longshore Act “except

as otherwise provided . . . by regulations of the Secretary [of Labor]”). 

10470 PRICE v. STEVEDORING SERVICES
unlike the Longshore Act and its implementing regulations,

expressly apply the § 6621 rate to interest due on late payments. See 30 U.S.C. § 934(b)(1)(5)(B); 20 C.F.R.

§ 725.608(d)(3). As the Director persuasively argues, the

absence of a comparable provision mandating application of

the § 6621 rate under the Longshore Act—despite the parallelism of many other aspects of the two statutes—undercuts

any inference that the Black Lung Act’s incorporation of

§ 6621 has application by analogy here.

Furthermore, there are reasons for applying § 6621 that are

unique to the Black Lung Act. The Director notes that “like

unpaid taxes under section 6621, the [Black Lung Act] is concerned with interest on debts to the United States government.” (emphasis added). Specifically, payments under the

Black Lung Act are sometimes made from the Black Lung

Disability Trust Fund (“Trust Fund”). See 26 U.S.C. § 9501;

20 C.F.R. § 725.1. When those payments are later determined

to be the liability of a mine operator, see 20 C.F.R. § 725.602,

the operator is required to repay the Trust Fund with interest

at the § 6621 rate. See 30 U.S.C. § 934(b)(1)(5)(B). Significantly, the Trust Fund was created as part of the Internal Revenue Code and is funded through tax receipts. 26 U.S.C.

§ 9501(b)(1). Operators’ repayments to the Trust Fund are

thus considered obligations to the United States, 30 U.S.C.

§ 934(b)(1), and liens that automatically arise when the Trust

Fund pays claimants on behalf of an operator “shall be treated

in the same manner as a lien for taxes due and owing to the

United States” in any bankruptcy or insolvency proceeding.

Id. § 934(b)(3)(B). 

As these statutory provisions make clear, Congress explicitly recognized the similarity between the obligations of mine

operators to the Trust Fund and that of taxpayers to the United

States. In contrast, although the Longshore Act also establishes a “special fund,” 33 U.S.C. § 918, the money in the

fund “shall not be money or property of the United States,”

id. § 944(a).

PRICE v. STEVEDORING SERVICES 10471
It is true that the Black Lung Act’s implementing regulations also apply the § 6621 rate to interest on late payments

made directly to miners. See 20 C.F.R. § 725.608(d)(3). However, we find convincing the Director’s argument that this

arrangement “is reasonable because it makes all interest calculations under the Black Lung Benefits Act consistent and

therefore easier to administer.” Accordingly, that employers

pay interest on late payments to claimants at the § 6621 rate

under the Black Lung Act does not militate in favor of applying that rate under the Longshore Act, despite the many other

similarities between the two statutory schemes. 

We acknowledge that there are also significant reasons

favoring the § 6621 rate. Ensuring “certain, prompt recovery

for employees” is a “central” purpose of the Longshore Act.

Roberts, 132 S. Ct. at 1354. In its context of origin, the § 6621

rate has a parallel purpose of encouraging prompt payment of

taxes and prompt return of tax overpayments.

The 1975 amendments to the tax underpayment rate, abandoning the flat six-percent rate in favor of the predecessor to

the current rate of three percentage points plus the short-term

rate, were largely motivated by a “trend in taxpayer postponement of tax payments.” S. Rep. 93-1357, at 7496. Due to

changing economic conditions, the six-percent underpayment

rate in effect at the time had fallen below the money market

interest rate. See id. at 7495. The underpayment rate thus “no

longer serve[d] the purposes for which it was originally

intended” insofar as “[a]n increasing number of taxpayers

[were] finding it more profitable to ‘borrow’ tax funds at the

present 6 percent rate rather than paying their taxes when due,

and rather than using their own funds or borrowing funds at

prevailing commercial rates.” Id. at 7496. A similar trend

applied to tax overpayments: Because the government had to

pay more than six-percent interest to bondholders, it could

“borrow” money more cheaply from taxpayers by delaying

refunds of tax overpayments; “the incentive to make refunds

promptly [was] no longer operative.” Id. Taxpayers who

10472 PRICE v. STEVEDORING SERVICES
received six-percent interest on their overpayments were, in

turn, not “receiving the value [they] could obtain by the use

of [their] own funds.” Id. In light of these circumstances,

Congress amended the tax underpayment rate to induce

prompt payments by taxpayers, and it amended the tax overpayment rate to induce prompt refunds by the government.

Insofar as interest is meant to facilitate prompt payments

under both the Internal Revenue Code and the Longshore Act,

applying the § 6621 rate could be apposite here.

At the same time, both § 1961 and § 6621 only approximate how much prompt payments would be worth to the

respective “creditors” under those provisions (i.e., winners of

district court money judgments in the § 1961 context; the government in the § 6621 underpayment context; and individuals

who have overpaid their taxes in the § 6621 overpayment context). In the Longshore Act context, it is impossible to ascertain how much prompt payments would be worth to

claimants, because it is impossible to know what they would

have done with the money had they received it on time. Section 1961 approximates the value of prompt payments to prevailing parties by assuming that they would have invested the

money and earned interest at the 52-week Treasury rate (or

avoided borrowing money and paying interest at that rate).

See 28 U.S.C. § 1961(a). Section 6621 approximates the value

of prompt payments to the government and individuals who

overpaid their taxes by assuming that these parties would

have invested the money and earned interest at a rate equivalent to three percentage points above the federal short-term

rate (or avoided borrowing money and paying interest at that

rate). See 26 U.S.C. § 6621(a). Both provisions provide reasonable proxies. 

Because Congress has not expressed an intent on the matter

and the considerations favoring adoption of one statutory rate

versus the other are in near equipoise, whether the § 1961 or

§ 6621 rate better approximates the value of prompt payments

to claimants is in large part a policy determination best left to

PRICE v. STEVEDORING SERVICES 10473
the agency. Here, the agency has expressed a preference for

the § 1961 rate, as reflected in the Director’s assertion in his

brief that he has consistently applied that rate for at least

twenty years, following the BRB’s decision in Grant, 16

BRBS 267. The Director’s assertion is substantiated by incorporation of the § 1961 rate into the Longshore Manual. See

Longshore Manual ch. 8-201. Ultimately, “[t]he agency’s

interpretive position . . . provides a reasonable alternative that

is consistent with the statutory framework. No clearer alternatives are within our authority or expertise to adopt; and so

deference to the agency is appropriate under Skidmore.” Fed.

Express Corp. v. Holowecki, 552 U.S. 389, 401-02 (2008);

see also Tablada v. Thomas, 533 F.3d 800, 808 (9th Cir.

2008) (deferring to the agency’s reasonable interpretation of

a statute rather than the petitioner’s “reasonable alternative

interpretation,” because the agency had “consistently implemented its policy” for over twenty years).

[11] In light of the forgoing, we hold that § 1961, not

§ 6621, is to be used to calculate interest on past due payments under the Longshore Act.12

2. Simple or compound interest

Price next argues that he should be awarded compound

interest on past due compensation, especially if this court

upholds application of the § 1961 rate. We agree. 

[12] A “central” purpose of the Longshore Act is to ensure

“certain, prompt recovery for employees.” Roberts, 132 S. Ct.

at 1354. The language and structure of the Act demonstrate a

clear congressional intent that compensation be paid in a

timely manner. Section 914 states, for example, that

“[c]ompensation under this chapter shall be paid periodically,

12Should the Director consider altering his position, however, our holding does not preclude him from adopting the § 6621 rate through the formal rulemaking process or other appropriate means. 

10474 PRICE v. STEVEDORING SERVICES
promptly, and directly to the person entitled thereto without

an award, except where liability to pay compensation is controverted by the employer.” 33 U.S.C. § 914(a) (emphasis

added). In addition, as we have seen, employers who controvert the right to compensation must file a notice with the deputy commissioner within fourteen days of learning of the

alleged death or injury or otherwise pay a penalty. See id.

§ 914 (d), (e). 

The Longshore Act’s emphasis on timely payments reflects

an understanding that “a dollar tomorrow is not worth as

much as a dollar today,” when the injured worker could consume or invest it. Found. Constructors, 950 F.2d at 625. The

Act’s interlocking provisions facilitating prompt payments

thus furnish compelling evidence that Congress intended

claimants to receive the full value of the compensation to

which they are entitled. See 33 U.S.C. § 914. Although we

have previously recognized that “[a]llowing an employer to

delay compensation payments interest-free would reduce the

worth of such payments to the claimant, undermining the

remedial intent of the Act,” Found. Constructors, 950 F.2d at

625, we have never decided what kind of interest—simple or

compound—would be sufficient to effectuate that purpose. 

[13] We conclude that simple interest at the § 1961 rate is

insufficient to effectuate the purpose of awarding interest

under the Longshore Act. Section § 1961(a) uses the interest

rate applied to Treasury bonds. “[B]ecause Treasury bonds

have very little risk,” they have “a correspondingly low rate

of return.” Fry v. Exelon Corp. Cash Balance Pension Plan,

571 F.3d 644, 646 (7th Cir. 2009); Gorenstein Enters., Inc. v.

Quality Care-USA, Inc., 874 F.2d 431, 437 (7th Cir. 1989)

(characterizing the § 1961 rate as “too low”). That simple

interest at the Treasury bond rate is inadequate alone to compensate parties for the decrease in a judgment’s value over

time is reflected in § 1961 itself. Subsection (b) of that provision requires that interest “shall be compounded annually.” 28

U.S.C. § 1961(b). Because the subsections of § 1961 work

PRICE v. STEVEDORING SERVICES 10475
together to ensure that parties receive the money to which

they are entitled, it is unreasonable for the Board to apply the

§ 1961(a) interest rate but to refuse to compound the resultant

interest pursuant to § 1961(b).13

It is true, as the Director argues, that § 1961 requires compounding only of post-judgment interest. But that is a distinction that carries no significance here. The Supreme Court has

indicated that formal judgments are not what determine a

claimant’s entitlement to compensation under the Longshore

Act. See Roberts, 132 S. Ct. 1350. The Court observed in

Roberts that many pending claims under the Longshore Act

are settled through voluntary payments without a formal

order. See id. at 1355. Individuals who receive compensation

without a formal order are no less entitled to compensation

than those who receive compensation via a formal order. It

would thus be arbitrary, and disruptive to the uniform administration of the statute, to deny compound interest only to

workers who have settled their claims through informal

means. See also id. at 1358 (“Construing any workers’ compensation regime to encourage gratuitous confrontation

between employers and employees strikes us as unsound.”).

The BRB’s published decisions provide three reasons for

not compounding interest on past-due payments awarded at

the § 1961(a) rate, none of which we find persuasive.14 First,

in Santos, the Board reasoned that “[a]lthough Section 1961

has provided guidance as to interest rate, it does not expressly

authorize compounding interest in cases under the Act.” 22

BRBS at 228. But, of course, the Act does not explicitly

authorize using the § 1961(a) rate in the first place; for that

matter, the Act does not explicitly authorize the application of

any particular interest rate. So the fact that § 1961 applies to

13Price points out that the § 6621 rate is higher than the § 1961 rate even

when the latter is compounded. 

14Because the BRB’s reasoning is not persuasive, we need not and thus

do not address whether the BRB is entitled to Skidmore deference. 

10476 PRICE v. STEVEDORING SERVICES
the Act only by analogy is not a reason for bifurcating a single

approximation of the time value of money by adopting part

but not all of it.

Next, the Board has relied on the proposition that it is the

“general American rule” to award simple rather than compound interest. Santos, BRBS at 228 (citing Stovall v. Ill.

Cent. Gulf R.R. Co., 722 F.2d 190, 192 (5th Cir. 1984)

(“[W]hen interest is allowable, it is to be computed on a simple rather than compound basis in the absence of express

authorization otherwise.”)). Many courts have begun, however, to move away from this rule.15

The growing recognition that compound interest can be

necessary to compensate plaintiffs fully is justified by changing economic realities. The Eighth Circuit has explained:

15See, e.g., Am. Nat’l Fire Ins. Co. v. Yellow Freight Sys., Inc., 325 F.3d

924, 938 (7th Cir. 2003) (“We believe that, absent special circumstances,

compound, not simple, interest ought to be awarded in Carmack Amendment cases.”); Cement Div., Nat’l Gypsum Co. v. City of Milwaukee, 144

F.3d 1111, 1116 (7th Cir. 1998) (“It is, of course, settled in the case law

that compounding of pre-judgment interest is acceptable.”); EEOC, 80

F.3d at 1098 (affirming trial court’s assessment of compound prejudgment interest on state troopers’ back pay award and emphasizing that

compound interest should “ordinarily” be awarded on back pay); Sands v.

Runyon, 28 F.3d 1323, 1328 (2d Cir. 1994) (holding that the postal service

violated the Rehabilitation Act by refusing to hire a disabled worker and

that the district court abused its discretion in not awarding back pay with

compound pre-judgment interest); Gorenstein, 874 F.2d at 437 (affirming

an award of compound pre-judgment interest under the Lanham Act and

criticizing the treasury rate of § 1961 as being “too low”); Saulpaugh, 4

F.3d at 145 (explaining, in the context of Title VII, that “[g]iven that the

purpose of back pay is to make the plaintiff whole, it can only be achieved

if interest is compounded”); Todd Shipyards Corp. v. Auto Transp., S.A.,

763 F.2d 745, 753 (5th Cir. 1985) (affirming an award of compound prejudgment interest in the admiralty context); R.R. Dynamics, Inc. v. A.

Stucki Co., 727 F.2d 1506, 1510 n.1 (Fed. Cir. 1984) (upholding, in the

patent context, a district court award that included compound prejudgment interest). 

PRICE v. STEVEDORING SERVICES 10477
[The] common law presumption against compound

interest stemmed from a historical view that interest

upon interest was “iniquitous and against public policy.” Whitcomb v. Harris, 38 A.138, 140 (1897).

Courts did not wish to “hasten[ ] the accumulation of

debt,” Abramowitz v. Washington Cemetery Ass’n,

51 A.2d 461, 463 (N.J. Ch. 1947), and “sought to

prevent an accumulation of compound interest in

favor of negligent creditors who did not collect their

interest when it became due.” State ex rel. Nw. Mut.

Life Ins. Co. v. Bland, 189 S.W.2d 542, 548 (1945).

Am. Milling Co. v. Brennan Marine, Inc., 623 F.3d 1221,

1227 (8th Cir. 2010).

16

As the circumstances of Longshore Act claimants illustrate,

the concern about “negligent creditors” has considerably less

application in many of the situations in which compounding

pre-judgment interest now arises. Although the Director

argues that simple interest “reflects an amount a claimant

could have realistically earned on the money had it been

timely paid,” this assertion defies reality. Anyone with a savings account, credit card, mortgage, or student loan knows

that the modern financial world employs compound interest as

a general rule. In addition, injured stevedores, dockhands, and

other longshore workers surviving off of disability payments

but unable to collect them because of employer contravention

until long after the injury occurred hardly fit the profile of

“negligent creditors.” Id. (internal quotation marks omitted).

If anything, disabled workers struggling to make ends meet

16Even more pernicious than “negligent creditors,” in the eyes of the

common law, were those who intentionally reaped the gains of interest

upon interest. See Charles Dickens, Bleak House 332-33 (Penguin Books

1996) (1853) (describing the great-grandfather of a greedy moneylender

as a “horny-skinned, two-legged, money-getting species of spider who

spun webs to catch unwary flies and retired into holes until they were

entrapped” and asserting that “[t]he name of this old pagan’s god was

Compound Interest”). 

10478 PRICE v. STEVEDORING SERVICES
have more to lose than to gain from delays in their compensation payments, and are more likely to encounter those delays

not because of their own lassitude but because of the opportunities available to employers under the Act’s administrative

scheme for putting off payment until a final adjudication.

Consistent with these observations, the movement in the

case law away from the “American rule” against compounding pre-judgment interest reflects a growing consensus that

the attitudes underlying the common law presumption are

being displaced by the modern recognition that compound

interest fosters fairness and efficiency. Modern commentators

recognize that 

[w]ith simple interest, the plaintiff is not fully compensated and the defendant does not fully pay for the

harm caused. As a result, simple interest underdeters

the defendant and overdeters the plaintiff from

engaging in the activity that produced the harm. In

addition, simple interest encourages the defendant to

drag on legal proceedings. 

Michael S. Knoll, A Primer on Prejudgment Interest, 75 Tex.

L. Rev. 293, 308 (1996).17

Oliver Wendell Holmes once observed 

It is revolting to have no better reason for a rule of

law than that so it was laid down in the time of

Henry IV. It is still more revolting if the grounds

upon which it was laid down have vanished long

17See also David S. Reid, Dissenters’ Rights: An Analysis Exposing the

Judicial Myth of Awarding Only Simple Interest, 36 Ariz. L. Rev. 515, 523

(1994) (“If the use of interest is not paid for by the borrower, the borrower

will effectively receive a “free loan” of that interest. . . . The lender can

only be compensated for this cost by computing interest on the interest

already owed, and this is accomplished through the use of compound

interest.”). 

PRICE v. STEVEDORING SERVICES 10479
since, and the rule simply persists from blind imitation of the past.

Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L.

Rev. 457, 469 (1897). That it is the “longstanding precedent,”

B.C. v. Stevedoring, 41 BRBS at 112, of the BRB to apply

simple interest is not, without more, an adequate reason to

sustain that practice. 

Finally, in B.C. v. Stevedoring, the Board asserted that

claimants should receive simple interest on pre-judgment

interest awards “under normal circumstances,” 41 BRBS at

112, suggesting that there are circumstances in which compound interest is available. Although the BRB has never

explained in a published order what it means by “normal circumstances,” there is one unpublished order in which the

Board alludes to circumstances meriting compound interest.

See Harris v. Machinists, Inc. and Travelers Ins. Co., BRB

No. 99-0305, 1999 WL 35136833 (BRB Dec. 7, 1999). Harris explained that “[c]ompound interest in cases has been

allowed where the conduct of the party owing the interest has

been egregious, i.e., an intentional patent or trademark

infringement, and it has been found to be ‘particularly appropriate where violation was intentional and indeed outrageous.’ ” Id. at *2 (quoting Gorenstein, 874 F.2d at 436).

Under Harris’s logic, compound interest may be levied only

as a punitive measure. 

This essentially punitive standard for awarding compound

interest is inconsistent with the general justification for compounding pre-judgment interest in the first place. As discussed, interest is awarded on past due payments to ensure

that claimants receive the compensation to which they are

entitled; waiting for money is costly to the injured worker. In

other words, “prejudgment interest is not awarded as a penalty; it is merely an element of just compensation.” City of

Milwaukee v. Cement Div., Nat’l Gypsum Co., 515 U.S. 189,

197 (1995); accord In re Oil Spill, 954 F.2d 1279, 1331-32

10480 PRICE v. STEVEDORING SERVICES
(7th Cir. 1992). Such interest compensates a claimant, who

has been rendered an “involuntary creditor,” id. at 1331, by

the employer’s delay. As we have indicated, courts have

increasingly recognized that “[c]ompound interest generally

more fully compensates a plaintiff,” Am. Nat. Fire Ins. Co.,

325 F.3d at 938, especially when the interest rate is low, as

it is under § 1961; there is no element of penalty or punishment in the justification for compound interest. We are thus

unconvinced by the Board’s explanation that simple interest

should be awarded absent exceptional circumstances.

For similar reasons, we are also unpersuaded by the Director’s argument that “full compensation is ensured by simple

interest and the additional compensation available under section 14.” Section 914 provides for a “delinquency penalty,”

Roberts, 132 S. Ct. at 1359 n.6; 33 U.S.C. § 914, and thus

advances a punitive goal separate from the purpose of ensuring full compensation. Moreover, § 914 applies only where

employers have not controverted liability. See 33 U.S.C.

§ 914(e).

[14] Keeping in mind “the humanitarian purposes of the

LHWCA” and “our mandate to construe broadly its provisions so as to favor claimants in the resolution of benefits

cases,” Matulic, 154 F.3d at 1057, we hold that the Board

erred in awarding Price simple interest on his past due payments at the § 1961 rate. 

***

[15] We affirm the Board’s order as to Price’s maximum

compensation rate, reverse as to the interest rate on his past

due payments, and remand for the agency to calculate the

proper award of interest at a rate no lower than the compound

§ 1961 rate.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

PRICE v. STEVEDORING SERVICES 10481
O’SCANNLAIN, Circuit Judge, dissenting in part:

I agree with the majority that the Director’s litigating position before this court is not entitled to Chevron deference and

that the proper rate of interest on past-due compensation

awards under the Longshore and Harbor Workers’ Compensation Act (LHWCA) is the rate set forth in 28 U.S.C.

§ 1961(a). That said, I cannot join the majority’s discussion

of these issues because, in my view, it treats several matters

that are unnecessary to the outcome of this case and thus

should be left for another day. See, e.g., Op. at 10460-61 n.7

(discussing whether litigating positions taken in agency adjudications are entitled to Chevron deference); Op. at 10462-64

(discussing whether the position of the Benefits Review

Board is entitled to deference). 

More specifically, I disagree with the majority’s conclusion

that the Director of the Office of Workers’ Compensation

Programs is not entitled to deference with respect to the

method of computing interest and, therefore, I respectfully

dissent from the majority’s conclusion to the contrary.

I

In applying the LHWCA, the Director has long taken the

position that interest on past-due compensation awards should

be computed on a simple basis. That position accords with the

general rule of awarding only simple interest when a statute

does not expressly require otherwise; it aligns with the consistent position taken by the Benefits Review Board since 1989,

see Santos v. General Dynamics Corp., 22 BRBS 226 (1989);

and it is consistent with the LHWCA, which is silent on the

rate and computation of interest. Nor is the Director’s position

a novel litigating position; it has been embodied in the Longshore Procedure Manual, used by district directors nationwide, since at least 1989. See Div. of Longshore and Harbor

Workers’ Compensation, Dep’t of Labor, Longshore Proce10482 PRICE v. STEVEDORING SERVICES
dure Manual, ch. 8-201, available at http://www.dol.gov/

owcp/dlhwc/lspm/pmtoc.htm. 

Given these features, in my view the Director’s position,

though informal, is persuasive enough to merit our respect.

See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (noting consistency, thorough consideration, and valid reasoning

as factors contributing to persuasiveness). We should defer to

the agency’s consistent, long-standing implementation of simple interest. See Fed. Express Corp. v. Holowecki, 552 U.S.

389, 399-401 (2008) (deferring under Skidmore to an informal

agency interpretation because it was consistent with the agency’s responsibilities and had bound staff members for over

five years); Tablada v. Thomas, 533 F.3d 800, 806-08 (9th

Cir. 2008) (“[T]he consistent and even application of the

[agency’s] methodology promulgated in [its] Program Statement . . . since 1992 convinces us that we must accord deference to the [agency’s] interpretation.”).

A

To reach the contrary conclusion, the majority emphasizes

the LHWCA’s remedial purpose and a growing trend toward

the use of compound interest. With respect, the majority’s

analysis is unpersuasive. 

The majority first contends that simple interest does not

fulfill the LHWCA’s purpose of fully compensating claimants. But fully compensating employees is not the Act’s only

purpose. See Roberts v. Sea-Land Servs., Inc., 132 S. Ct.

1350, 1354 (2012). Rather, “the LHWCA represents a compromise between the competing interests of disabled laborers

and their employers, [so] it is not correct to interpret the Act

as guaranteeing a completely adequate remedy for all covered

disabilities.” Dir., OWCP v. Newport News Shipbldg. and Dry

Dock Co., 514 U.S. 122, 131 (1995) (internal quotation marks

omitted). The Act is not meant always to provide a “complete

remedy,” but aims instead to ensure that workers receive some

PRICE v. STEVEDORING SERVICES 10483
compensation for injuries, even if it is not “complete compensation for the wage earner’s economic loss.” Potomac Electric

Power Co. v. Dir., OWCP, 449 U.S. 268, 281 (1980).

We must therefore consider the Director’s position in light

of the bargain the Act represents, rather than treating the

Act’s remedial purpose as an unbeatable trump. In this vein,

the Supreme Court has cautioned against “add[ing] features

that will achieve statutory ‘purposes’ more effectively.” Newport News, 514 U.S. at 136. Whatever our views on the effectiveness of simple interest in compensating claimants, we

should not add a compounding requirement to the statutory

scheme just because we think it would better serve the Act’s

remedial purpose. See id. at 135-36; Potomac Electric, 449

U.S. at 280-81.

B

The majority contends next that compound interest is warranted based on “changing economic realities” and a “growing recognition” that compound interest might more fully

compensate plaintiffs. Op. at 10477. This too is not reason

enough to reject the Director’s position. The Supreme Court

has cautioned that a growing trend—even one that is “sound

as a matter of policy” and is now a dominant view—is an

insufficient basis for abandoning a settled rule. Potomac Electric, 449 U.S. at 279-80 & n.20. 

Whatever the “growing consensus,” op. at 10479, the

Director, as administrator of the Act, is best positioned to

evaluate changing circumstances and to determine whether

simple interest continues to provide adequate compensation to

claimants.1 Where the Act is silent and the agency has made

1

In reading the majority’s opinion, one might think that the Director is

an adversary of claimants who seek to receive their full entitlement. To the

contrary, the Director often intervenes in lawsuits seeking interpretations

or compensation more favorable to the employee than what the employee

received from the Board. See, e.g., Ingalls Shipbldg., Inc. v. Dir., OWCP,

519 U.S. 248, 253 (1997); Stevedoring Servs. of Am. v. Dir., OWCP, 297

F.3d 797, 801 (9th Cir. 2002); McDonald v. Dir., OWCP, 897 F.2d 1510,

1511 n.2 (9th Cir. 1990). 

10484 PRICE v. STEVEDORING SERVICES
a reasonable choice, we should not inject our policy views

into the Act’s provisions.

C

The majority also faults the Director for adopting the rate

set forth in section 1961(a) while not adopting section

1961(b)’s compound interest component. Again, the Director’s decision is reasonable. The Director has concluded that

section 1961 provides useful guidance; that conclusion should

not force the Director to swallow section 1961 whole. And by

declining to adopt the section 1961(b) formulation, the Director has honored the general rule that simple interest applies

unless a statute expressly authorizes compound interest. See,

e.g., Cherokee Nation v. United States, 270 U.S. 476, 490-91

(1926); Stovall v. Ill. Cent. Gulf. R.R. Co., 722 F.2d 190, 192

(5th Cir. 1984). Because the LHWCA does not expressly

authorize interest awards, it is reasonable for the Director to

look elsewhere for guidance, to make a considered choice

based on that guidance, and to settle on the prevailing longstanding general rule. By contrast, we have no authority to

force the Director to apply a different choice that conflicts

with the agency’s long-standing default rule—especially

given that the governing statute provides no support for such

a judicial mandate.2 Cf. Newport News, 514 U.S. at 135-36.

2The majority also suggests that we can tell that simple interest is unreasonable because the Board has indicated that compound interest might be

warranted in exceptional circumstances. Op. at 10480-81. But compounding interest in exceptional circumstances, such as when a party engages in

willful misbehavior, accords with the general rule giving trial judges discretion to select an interest award within a range of reasonable options.

See W. Pac. Fisheries, Inc. v. SS President Grant, 730 F.2d 1280, 1288-

89 (9th Cir. 1984); Gorenstein Enters., Inc. v. Quality Care-USA, Inc., 874

F.2d 431, 436 (7th Cir. 1989) (concluding that compound interest was

appropriate where the violation of federal law was “intentional, and indeed

outrageous” and where the appellant had engaged in dilatory tactics); cf.

also NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. 344, 348-49

(1953) (eschewing the “debate about what is ‘remedial’ and what is ‘punitive’ ” and instead noting that a proper remedy should be formulated with

the unique circumstances of the case in mind). Though we deal with prejudgment interest rather than post-judgment interest, the distinction, as the

majority notes, “carries no significance here.” Op. at 10476. 

PRICE v. STEVEDORING SERVICES 10485
D

The majority’s failure to defer under Skidmore to the Director’s long-standing position is made all the more perplexing

by its determination that the Director’s selection of the proper

interest rate is entitled to Skidmore deference. The majority

acknowledges that, because the LHWCA is silent on interest,

the selection of interest rate is “in large part a policy determination best left to the agency.” Op. at 10473-74. The majority

concludes that the Director’s selection of the section 1961 rate

is “consistent with the statutory framework” and that there are

“[n]o clearer alternatives . . . within our authority or expertise

to adopt.” Op. at 10474. But the rate of interest and the

method of computing it have each been consistently applied

by the Director and the Board for over 20 years and have been

contained within the Director’s manual for nearly as long. It

is hardly reasonable to accept the one and to reject the other

when the same reasoning supports both.

II

Proper application of Skidmore requires us to defer to the

Director’s long-standing, consistent practice of awarding simple interest, recognizing that the Director is in the best position to determine whether, as a policy matter, the method of

computing interest should be changed better to align with

modern circumstances. 

For the foregoing reasons, I respectfully dissent.

10486 PRICE v. STEVEDORING SERVICES