When reviewing issues affecting the Longshore and Harbor Workers’ Compensation Act, courts will give the Director of Labor deference. What this means is that courts “accord ‘considerable weight’ to the construction of the statute urged by the Director of the Office of Workers’ Compensation Programs, as he is charged with administering it.” Force v. Dir. OWCP, 938 F.2d 981, 983 (9th Cir. 1991). Further, courts “will defer to the Director’s view unless it constitutes an unreasonable reading of the statute or is contrary to legislative intent.” Matson Terminals, Inc. v. Berg, 279 F.3d 684,696 (9th Cir. 2002) (citing Chevron U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S. 837, 842-45 (1984)). There are different levels of deference. When the Director takes a position in litigation, she is afforded Skidmore deference. Under Skidmore, the measure of deference depends 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 v. Swift & Co., 323 U.S. 134, 140 (1944).
To peruse some of the Director’s prior litigation positions, to which at least Skidmore deference was afforded, take a look at this Department of Labor webpage. There you will find copies of Longshore Legal Briefs, which were filed on behalf of the Director to state her position on issues that were addressed by courts of appeals. Although the list of Briefs is relatively small, and the webpage does not look like it has been updated since 2004, it is nonetheless interesting to review the Director’s position. Our suggestion is that all of the Director’s briefs should be uploaded to the DOL’s website just like how the Benefits Review Board uploads cases on a monthly basis. Uploading the Briefs is a great idea that should be continued.