SCOTUS Addresses Agency Deference for Regulation Interpretation

Recently, the Supreme Court of the United States addressed the deference due to an agency when it is interpreting its own regulations.  In Chase Bank USA, N.A. v. McCoy, the unanimous Court concluded inter alia that the Federal Reserve Board’s interpretation of a regulation dealing with the increase of interest rates for a delinquent or defaulting cardholder was reasonable.  This decision could be cited for purposes of the Longshore and Harbor Workers’ Compensation Act because it addresses the deference owed to agencies like the Department of Labor.

The Court based its holding on Auer v. Robbins, 519 U.S. 452 (1997) (involving the Secretary of Labor).  The Court will defer to an agency’s interpretation of its own regulation, even when that interpretation is advanced in a legal brief.  In Chase Bank, the Federal Reserve Board’s interpretation was contained in an amicus brief, but that was of no import because the interpretation was consistent with the regulatory text.

Of course, an agency is not always entitled to deference.   If the interpretation is a post hoc rationalization advanced to defend an agency action, then deference is not owed.  Further, no deference is owed when the interpretation is “plainly erroneous” or “inconsistent with” the text of the regulation.  Finally, deference is not owed when the regulation at question merely parrots the statute created by Congress because allowing deference would allow an executive agency to interpret Congress’ words.  Here, that was not the case, and the Federal Reserve Board’s position was a “fair and considered judgment…”

Chase Bank USA, N.A. v. McCoy, 09-329, 2011 WL 197641 (2011).

What Are “War-Risk Hazards”?

One of the mandatory prerequisites for coverage or reimbursement under the War Hazards Compensation Act is the requirement that the contractor’s injury must have been caused by a “war-risk hazard.”  Both the United States Code (42 U.S.C. § 1711(b)) and the Code of Federal Regulations (20 C.F.R. § 61.4(e)) defines a “war-risk hazard” to mean “any hazard arising during a war in which the Unites States is engaged; during an armed conflict in which the United States is engaged, whether or not war has been declared; or during a war or armed conflict between military forces of any origin, occurring within any country in which a person covered by this Act is serving; from–

(1) the discharge of any missile (including liquids and gas) or the use of any weapon, explosive, or other noxious thing by a hostile force or person or in combating an attack or an imagined attach by a hostile force or person; or

(2) action of a hostile force or person, including rebellion or insurrection against the United States or any of its allies; or

(3) the discharge or explosion of munitions intended for use in connection with a war or armed conflict with a hostile force or person as defined [in the WHCA] (except with respect to employees of a manufacturer, processor, or transporter of munitions during the manufacture, processing, or transporting thereof, or while stored on the premises of the manufacturer, processor, or transporter); or

(4) the collision of vessels in convoy or the operation of vessels or aircraft without running lights or without other customary peacetime aids to navigation; or

(5) the operation of vessels or aircraft in a zone of hostilities or engaged in war activities.”

Whether or not a particular injury was caused by a “war-risk hazard” is necessarily a question of fact.  In most instances, a “war-risk hazard” will be caused by the violent actions of a hostile force or person.  For instance, if a contractor was injured by small arms fire or an improvised explosive device, then he was injured by a “war-risk hazard.”  Nonetheless, a hostile force or person is not a prerequisite for all WHCA claims.  The fifth definition of a “war-risk hazard” extends coverage for injuries caused during “the operation of vessels or aircraft in a zone of hostilities or engaged in war activities.”  No action by a hostile force or person (e.g. firing a rocket-propelled grenade at a helicopter) need take place.  Instead, the exigencies and circumstances of operating aircraft in a war zone (such as quick exits or fast-roping from helicopters, or aircraft crashes due to weather or terrain conditions) can create the hazard. 

The Good Samaritan Doctrine in Maritime Law

The Good Samaritan.  We know him as the traveler who, for no other reason than a desire to help a fellow human being, stopped on the road to Jericho to help a man who had been beaten and bloodied by robbers.  The Samaritan was not forced to stop and help, and was not bound by any law to stop and help.  But, where others had passed and ignored the battered and helpless victim, the Samaritan stopped, bandaged his wounds, and took him to an inn to recover.  It was a gratuitous act for which the Samaritan sought no reward and by his actions the man was saved.

The lesson of the Good Samaritan has survived the centuries and serves as a model of moral behavior to this day.  What different lesson might have been passed down to us had the hapless victim, after being care for by the Samaritan, died and his surviving wife and children sought recompense from the Samaritan for not doing more to save his life, or for having done something that worsened his condition, thus resulting in his death?

Unfortunately, such scenarios do play out in today’s society, and the courts have been forced to deal with them.  This has required the courts to create that rule known in the law as the Good Samaritan Doctrine.  Simply stated, the Good Samaritan Doctrine makes one person liable to another for breach of a duty voluntarily assumed by affirmative conduct, even when that assumption of duty is gratuitous.

The maritime tort law has come to recognize the doctrine, and is applied by courts in cases of purely maritime flavor.  Courts sitting in admiralty have cited the Restatement (Second) of Torts which provides in part, “One who undertakes gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if his failure to exercise such care increases the risk of such harm or harm is suffered because of the other’s reliance upon the undertaking.”

Thus, the Good Samaritan can be held liable for damages if the judge or jury finds that despite his best intentions he failed to exercise reasonable care and said failure exacerbated the situation and resulted in harm.  As a consequence, the Good Samaritan Doctrine does not stand for the proposition that actions motivated by the most elemental desire by one person to help another should be applauded, no matter the outcome.  Instead, the parable of the Good Samaritan has been twisted to stand for the proposition that once you stop to help someone, you better get it right or there’s a good chance you will be sued if something goes wrong.

To be held liable to a person for damages alleged to be the result of his gratuitous acts, the “victim” must prove that the Good Samaritan acted and assumed a duty or undertook to render services to him and, then, was negligent in carrying out that undertaking, i.e., did the Samaritan’s failure to exercise reasonable care increase the risk of physical harm or damage to property?

In the world of maritime commerce there are situations in which the duty to assist is mandated by the law.  Title 46, USC 2303, 2304 and 2306 require, in certain circumstances, that the master of a vessel provide assistance to save lives and property or risk fines or imprisonment.  However, for the most part, the acts of a Good Samaritan are not compelled by the rules of law, but by the rules of man.  Today, unfortunately, courts are not concerned not the motive of the Samaritan, but the consequences of his actions.

To this writer the doctrine has become distorted, and the lesson being taught today is the opposite of that taught in the original parable.  Now, if the Good Samaritan intervenes to provide assistance and the “victim” is not pleased with the outcome, there is a good chance the Good Samaritan will end up in court having to prove he acted appropriately.  Such a threat places a chill on anyone’s impulse to help another because the potential Good Samaritan is now forced to consider the consequences of his desire to help. 

2011 Annual Longshore Conference

Registration has begun for the 2011 Annual Longshore Conference.  Hosted by Loyola University New Orleans College of Law, in conjunction with the United States Department of Labor, the Annual Longshore Conference will take place on March 24-25, 2011, at the InterContinental Hotel in New Orleans, Louisiana.  Information about the 2011 schedule, as well as a Registration Form, can be found here.  An electronic Registration Form is here.  Loyola’s Annual Longshore Conference is always an entertaining, educational and valuable experience for the Longshore community, and judging from the schedule, this year will be no different.  We look forward to seeing you there.