We will hear argument next this morning in case 10, 13, 99, Roberts versus Sealand services. Mr. Gilliland? Mr. Chief Justice, and may it please the Court. Dana Roberts was injured, and shortly thereafter became disabled in the course of his work for Sealand in fiscal year 2002, but he was not awarded compensation until fiscal year 2007. The question presented here is whether the maximum weekly rate established by Section 6 of the Longshore Act that was in effect at the time his disability began, or that which was in effect at the time he was awarded compensation, governs his case. He is entitled to whichever maximum is the applicable one. Section 6C of the Act provides explicitly that the applicable maximum is that, in fact, at the time the claimant is newly awarded compensation. The term award or awarded in the Longshore Act has a consistent meaning throughout contrary to the views of the Court of Appeals below, and that meaning is a compensation order filed pursuant to Section 19E of the Act, which is described in Section 19E as the order making the award. It seems to me that the two parties are at its extremes and that there is indeed something in the middle. I mean, you say it has to be the determination of entitlement to compensation by the agency. The other side says, no, it's just entitlement, whether it's been decreet or not. Why would it be an award, however, if it was the employer that voluntarily paid the amount due, which is what he's supposed to do anyway, right? Why would that be an award of compensation? Well, because the statute, in some sense of the word award, is a sense that the text would bear, as opposed to the sense that the other side argues here. I think that the text will not bear that reading in particular because the payments that you are describing that could be considered an award are described throughout the Act as payments without an award. Now, how the claimant can have been newly awarded benefits at the time the employer makes a payment without an award, I think defies the meaning of that word. Well, I wish you would submit the sections of the Act that use it that way, that's a compensation without an award. Section 14A through E refers to compensation payments without an award. Okay. Those are the provisions, Section 14A, and B, direct those payments without an award. And the critical time, then, I think it's, isn't it true that most compensation payments are as a result of voluntary action by the employer and not a proceeding? That is true, yes. So, and then in those cases when the employer said, okay, I will voluntarily make this compensation available, then the measuring, the pay would be measured by the time the employer makes the compensation available, right? I think not, because the statutory provision says it's the award that's determined. But there's no award. But there can be an award. I think that's the critical. But we have, what is, I mean, there can be, but there here is a person who has been injured and gets compensation without having to bring any legal proceeding for it. What is the weakly, the measure that it can't be an award, the negative an award, because there is no award. So, what is it? The employer that wants to lock in this year's maximum rate and not have this liability progress above that simply needs to have an award entered. No, he doesn't. No, he doesn't
. He can just begin payment. The C, which is a section we're talking about here, doesn't just provide the for newly awarded compensation. It also says, survivors currently receiving compensation for permanent total disability or death benefits. Currently receiving, now does that mean it has to have been decreed by the agency? I don't think so. That provision, which, that clause, that's separate clause, which is not in this case, because, Mr. P. I understand, but it applies to the question it seems to me that Justice Ginsburg asks, doesn't it? No, I think not. No. The function of that clause is that in permanent total and death cases, because there's an annual escalator provision, whatever your rate is this year is going to go up. If it's a permanent total or death case, it's going to go up each October first by the increase in the national average rate. But only if you've been receiving compensation. Okay. If neither the employment, if neither the employer gives you the compensation voluntarily, nor as you contend, there has been an award by the agency, you're out. See doesn't apply. Right? I wouldn't say see doesn't apply. No. How else would it apply? You are either receiving compensation, which I would understand to me in receiving it from the employer or, by reason of an award, or else, you've been newly awarded compensation, which I guess means it hasn't yet been paid, but you have the award in your pocket. Well, the function of that separate clause is for cases in which an award has been entered of death benefits or permanent total disability benefits. And everything up to that point is governed by the maximum that's in effect at the time of that. That doesn't say that, Council. It says, survivors currently receiving compensation. It doesn't say, by virtue of an award. It says receiving compensation. So if the employer is paying it voluntarily, you're in there. And then it goes on and it contrasts with receiving compensation. Those newly awarded compensation, you're not yet receiving it, but you've been awarded it. Well, Mr. Roberts did not fall within the currently receiving compensation
. I understand that, but I'm just trying to make sense out of the provision, and it doesn't seem to make any sense unless you read it just the way I suggest it. Okay. I hope I can provide that sense. The function of that separate clause is that a claimant who has been awarded compensation at a given rate, which is the maximum at the time of the award, will continue to receive compensation and doesn't say that. It says nothing about an award. The last part talks about an award. It says currently receiving compensation for permanent total disability or death benefits. And if you're receiving it from your employer, I don't know why that isn't covered by that. Why isn't it covered? I can certainly see that those terms would appear to apply to that situation in which the employer is paying compensation for death or for permanent total disability. That wouldn't provide us for a maximum, any applicable maximum. I'm going to fix your case. It's just a matter of understanding what this provision is talking about. And what I'm trying to say about the function of this clause is that a claimant who has been awarded compensation for permanent total disability, let's assume the employer hasn't paid anything until the ALJ issues an award. And at the time that award is issued, the maximum is $1,000 a week. And the employer was making the employee was making more than 1,500. So that maximum is the right. What if the employer has been paying voluntarily, you don't penalize the employee for not having an award, right? I mean, he's in the same position. The employer has conceded the liability. He certainly is not in the same position. So would Judge Justice Scalia's reading in your judgment, except his proposition, that those currently receiving voluntary payments from the employer fall under subsection C? Would his re-euding require the employer every year to recalculate the benefits to the maximum that's established that year? Yes, it would. Yes, sir. And that's why his reading and that is precisely the function of that. The function of B is to set a maximum that will control all payments present and future. Yes, yes. And so if you read it the way he does, that maximum would change each year. Yes. And for permanent eligibility and that case. I don't understand why that's so only for employment, for employer payments, and not the case for awards
. If that's so for the employer's payment, why isn't it so for awards that have been decreased? Why don't they change every year? They do. If the award is for permanent total disability or for death, they do. So then my reading makes perfect sense? Yes. Oh, your reading does make perfect sense. And the function of that second, that the clause for those currently receiving compensation for permanent total or death is that even when the maximum continues to go up after the date of an award, that new maximum is the applicable one for the continuing period of disability or survive. When one of the arguments on the other side that I thought made some sense was the idea that you should focus on a particular point in time when you're figuring out what the amount of the award is going to be. That it doesn't make, that it's at least odd to say, well, we're going to calculate how much you're entitled to at this point. But in terms of the applicable maximum, we're going to wait however long it takes and calculate that as of this point. Doesn't it make more sense to figure out the affable numbers at the same point in time? Marginally more sense, perhaps so. But that is an argument that should be addressed to Congress. Congress could easily have made Section 6C turn on the time of injury. Instead, they provided very explicitly this. So if we think that statute, in other words, your argument, your response is that the statute is unambiguous and it can't be read in a more sensical way. Yes. Yes. And that each use of the term award, contrary to the Ninth Circuit's view, is consistent with that. That is, whenever Congress refers in the statute to an award or compensation being awarded, it is talking about the order making the award as it's described in Section 19-E. You don't really have to establish that, do you? All you have to establish is that there is no way in which newly awarded compensation means entitlement to compensation. That's all you have to establish. That is exactly what you don't have to show that it's used consistently throughout only that it's never used to mean entitlement to compensation. That is exactly correct. Are you conceding any answer to these questions that your reading doesn't really make any sense? That's just what Congress did. No, I hope I'm not conceding that. Well, what sense does it make? What? Why should the ceiling depend on whether an employee is getting compensation voluntarily from the employer or as a result of the formal award? If you have two identical, identically situated employees, and one is getting the compensation without an award, one is getting it with an award as you understand the term award. Why? What sense does it make to treat them differently? I would say they certainly are not identically situated. The claimant who has an award. They're identically situated in every respect except one. One has a formal award, one does not
. What sense does it make to treat them differently? There are serious consequences of the fact that one has an award and the other is being paid only without an award. Counsel, if I understood your response to my prior line of questioning, you deny that they're treated differently. The one who is receiving compensation is treated the same under the same provision. There are two parts to it. Survivors currently receiving compensation and survivors newly awarded compensation. Those two classes are treated exactly the same. The only one that is treated differently is somebody who is neither being paid by the employer nor has yet received an award. No. No. No. The clause that depends on whether you're currently receiving only applies to permanent total disability and death cases. In all other cases, the clause that says newly awarded is the only applicable provision. I see. Question disability in other words. Correct. And temporary total. Temporary total has, does the rights do not go up? I did have the same question just as Alito asked, and I'd like to hear the answer. The answer had, but there, I'll add one footnote, perhaps, much make it more complete answer. And that is that it makes very little sense to me when a worker becomes disabled on January 1, 1990, for example. He's now disabled. And so we calculate what his wage was. His wage was $200 a week. And now we say, but that shouldn't exceed twice the average weekly wage. And we're not going to apply it to him. You're going to apply it to him at some random date. His wage that he's getting paid is figured out as of January 1, 1990. Yes. But the maximum that it could be is figured out as of January 1, 1998 when he finishes the proceeding
. Now, I just, for both reasons, why would you distinguish and why would you get that result? For those two reasons, it doesn't seem to make much sense to me. You are reading of it. While theirs does make sense. And you explain why that is. Okay. Okay. I think the point is to encourage the employer to get an award entered promptly, because that way they will lock in that early maximum rate, or minimum rate, the minimum rate provision applies exactly the same way under Section 6C. And I thought Congress wanted the system to operate so that people just stood voluntarily without an award. Well, they want that to happen as often as possible. But the employer has the right, in any case, to file a notice with the Department of Labor saying, we do not believe the claimant is entitled to compensate. Absolutely. It really doesn't make a whole lot of sense. I mean, it seems to me you have to acknowledge it would be a much better statute had it been written differently. And really, your argument here is it's not up to us to revise the inadequacies of a statute. I mean, your argument is you just can't read the language that way. And it provides a stupid result. There are such things as stupid statutes. And this is one of them, right? I don't think it's stupid, but yes, my basic argument is that- But you think it is not stupid because you think it is a good idea to give a lot of work to the Department of Labor and that all the employers who are going to do this voluntarily and there will never be a problem with it, all should be encouraged to go and get a certificate from the Department of Labor. All right. I'll take that as a- Something. Now, why is it I can't read the statute the way that it seems to make somewhat more sense? I don't see any words here that stop me from reading it. And newly awarded compensation are the critical words where now they're exactly. It says, you mean in C? In C? Yes. You said, call me, that just has to do with permanent or total disability. No. And this is the other, excuse me, the other clause of that provision, the one that says currently receiving compensation, that one only applies to survivors and permanently totally disabled workers. But why don't they both? I mean, it's, I read it naturally. It says that we now have a special thing, you know, which are- These people are the dead ones and the widows are getting it and the permanently disabled people and the- This individual in the Secretary- The Secretary or his delegate is going to calculate this thing all the time and they've got a special thing here for- Permanently disabled and they're saying as to those people who are giving them a break, they can't look for more work, they can't look for- They're dead, for example
. And they can't find other sources of income. And so we say that if the average wage goes up and their wage was hard to begin with, we will raise it a bit. And that applies not only to the people who are just getting this for the first time in the relevant period, it also applies to all those who have been getting it. It applies to both groups. That makes sense to me. For permanent total disability and death. So the whole thing applies just to the permanently disabled and the death things, what says it applies to anybody else? Now, the clause, the whole thing, the whole, the whole all of the C. That's, in my thing here, that seven lines, all of C, applies to permanently disabled and those who died. Well, that certainly- no one has put forward that construct, and that would mean that there is no maximum applicable to other categories of disability, like Mr. Roberts. Oh. Yes. Oh. The new- You'll slightly like an avid-gastella movie, but I'm getting it. Now, so what happens to your arguments if we disagree with you that employers have a way to seek a compensation order? As I read the regulations, the only way they can do that is if the employee files a claim, and the employee's filing of a claim then sets the process in motion. I can't imagine that an employee knowing that a future award could help them would bother filing a claim to help the employer lock in his rate. I think, actually, my experience, my universal experience with this statute is that that is not a realistic view of what claimance behavior is. The critical difference is an award- the entry of an award does not merely confirm that the employer is making payments. It requires it to continue making those payments until- My question, most of your argument is premise on the- I thought that the employer could lock in his rate by seeking an award. Yes. If I disagree with you that the act doesn't provide for that and neither do the regulations, that only employees can seek awards, what happens to your argument? Oh, I think that. Well, I have trouble accepting that hypothetical situation because- As I've studied it, I think that's the case. So assume that fact to be true. That employers have no regulatory or statutory right to seek an award. They can either stop paying and have the employee make a claim or not. What does this do to your argument? If that's acting- Nothing. It simply requires the employer to induce the claimant to file a claim if it wants to- By stopping payments, so that destroys the whole voluntary payment. Well, they wouldn't- Indeed, they wouldn't have to stop payments
. They simply need to tell the claimant, if you don't file a claim, we're going to stop payments. Note a- No, I- I- I- No, I- I see. Is your argument this now? I-I'm sorry to be so slow. But- Look, there is a statute here. It says compensation cannot succeed more than 200 percent of the annual weekly- or the weekly wage. Then in three, it says how to calculate that particular number. Then you go over to C, and C says that calculated number applies to those newly awarded compensation. And you're saying newly awarded compensation means somebody got it through an award, not somebody got it automatically. And since somebody got it had to get it through an award or wouldn't apply, when you just get it because they pay for it, it just doesn't apply. You have to go get the award, and the word you're turning on is newly awarded. That's the argument. Yes, it is. I like Abbott, because, Jell-O, I don't know what I'm talking about, but I do. I do. I was- I was that it now I fully understand your argument. Councillor, could I ask you about another inconsistency in this section we've gone over one, which I think is there. Isn't there a group left out of this thing, even under-even under the government's interpretation of it? What happens to people who are receiving compensation for temporary total disability or for partial disability? They don't come under either one of those two categories, even under the government's interpretation, right? No, I think under the government's interpretation as under hours, they fall under those- No, they haven't gotten an award yet. They have not gotten an award yet, and they're only partially disabled or have temporary permanent disability. They're not covered by CR, are they? Well, they are covered by it, but before we know which years maximum applies and award- Oh, that's right, but they-it doesn't take effect during that year. Well, does that make any sense? No, it doesn't, but you say the statute doesn't make sense. I think it does because it encourages the employer to have an award entered so that it will have the benefit of the current maximum rate, and not next years of the years after or the years after that. It's not as serious. Go ahead. You've been waiting a while. I think the way the argument has gone so far is that we've all been saying this can't make sense, and you've been saying, as you have every right to say, yes, but this is what the statute says based on the newly awarded language. But that does assume that newly awarded can't mean an entitlement, and then you run up against some other statutory provisions where an award does seem to mean not a formal compensation order, but instead an entitlement to funds. So, 908D1, it seems as though the word award means entitlement, 910H1, it seems as though the word award means an entitlement, and 933B, which says award in a compensation order suggests that awards can be made in a formal order, or awards can be made differently because of an entitlement that is automatically paid. So, I guess there are three places that it seems to me you are reading of the word, of your limited reading of the phrase newly awarded, you know, runs into problems in those three ways, and on left, then thinking we should do what makes sense
. I may have missed what the third of those was. I have the- K. 933B, 908D1, and 910H1. Oh, okay. Yes. The 9, the Section 8D1 that they are referring to refers to an award to an employee, the unpaid portion of an award, to an employee who dies before that award has been paid out. Their reading of award in that provision is contradicted by the subsequent paragraph of the same subsection, which says an award may be made after the death of the injured employee. It's 908D3. Now, that is impossible on their reading of award, on the reading they give award in Section 8D1. Know what it means in 81 as throughout the act is an award. And if none has been entered while the claimant is still alive, it's entered after his death, and the survivors under that provision take the rest of it that had not been paid before the death. Now, we have essentially the same analysis of those other provisions. Yes, in those other provisions as well, it does mean a compensation order. If you cut it loose from that statutory foundation, we get three or four different possible meanings that the respondents try to put on it, and we are cut loose from anything. Well, you're making your case harder than it has to be, it seems to me, by saying that it always means an award of compensation by the agency. I think in 8D, I don't think it means that, but it certainly means an amount due to an not an entitlement. It means an amount, a specific amount due. And that explains its meaning elsewhere, but that's quite different from saying that it means entitlement. No doubt it is, yes. And perhaps there may be some variation in the meaning in the other provisions that's possible, but in Section 60, we think it has to mean the entry of an award. That's the only definite event it could refer to. Oh, I think that's true, but only because of the earlier portion of Six-C, which covers all other payments that are not by virtue of an award. Yes. Receiving compensation. Yes. I would reserve a time. Thank you, counsel. Thank you
. Mr. Palmore. Mr. Chief Justice, and may it please the Court. Petitioner's interpretation of Section 906, which hinges entirely on the date of an administrative compensation order, renders that provision impossible to apply in the many cases expressly contemplated by the act in which there is no such order. That interpretation also creates arbitrary distinctions between beneficiaries' benefit levels based on administrative happenstance. Thank you. I'm sorry. So if you're walking down the street, you're on a business enterprise, they haven't shoveled the snow, you slip and fall, and you're hurt, you go home and say, good news, I've been awarded damages. The statute provides for the award of damages, and I think this is the key to this understanding how the scheme works is understanding Section 914, Section 913, these are at page 17a. We're not talking about how the scheme works. We'll grant you that it makes a lot more sense, you know, away. But will you grant that it's not up to us to rewrite the statute? It's absolutely not up to you, really. Okay. So what we're talking about is whether awarded in that provision can bear the meaning that you want to give it. Let's assume that Congress passes a new statute providing for tax credits for each child, okay? My wife gives birth to a child just before Christmas, and I say, oh, goodie, I've been awarded $2,000. I wouldn't say that. That's not a normal use of the language. I think it's a- I am entitled to it under this statute, but when the event of having a child occurs, I don't say I've been awarded $2,000, you might say it analogously. I mean, you know, oh, hey, I've been awarded $2,000. But that's analogous, and statutes are not written by analogy, they're written to say what they say. And I don't know anybody that would use the term awarded the way you want it used. The Chief Justice's example is another one. You're good, I've been awarded the damages. You haven't been awarded damages, you're entitled to them. I think Justice Kagan highlighted three provisions where the statute does in fact use the word award to indicate a statutory entitlement. Let's go through those. I'd be glad to use this, please
. You show me how I agree with you that they don't mean the entry of an award by the agency, but I don't agree with you that the only reading you can give them is entitlement. Well, to start with Section 933, which is at page 24A of the Government of Pindex, this is one of the section highlighted by Justice Kagan, 33 of the gray brief. The gray brief, 933B, says acceptance of compensation under an award in a compensation order followed by the Deputy Commissioner will have certain consequences. That expressly contemplates, this is page 24A, Justice Scalia. Yeah, I'm sorry. Give me a word. Okay. The language is important, isn't it? Perhaps in the letter. Okay. What page? Page 24A of the appendix to the gray brief. Okay. Got it. Okay. So the language is? So the first sentence says acceptance of compensation under an award in a compensation order followed by the Deputy Commissioner shall have certain legal consequences that aren't important here. That sentence, even read by itself, suggests there can be an award that's not in a compensation order. Yes. The last sentence says for purposes of this subsection, not for purposes of the entire act, but for purposes of this subsection, the term award with respect to a compensation order means a formal order issued by the Deputy Commissioner and Administrative Law. That's true. And what that means is that it can be considered an award if you've gotten it from the employer voluntarily. That is still an award of compensation. That's all that that last sentence proves. I think it contemplates, it certainly precludes, I think, petitioners. Oh, yes. Yes. So I agree he's wrong. Well, the actual receipt interpretation that your Honor is advancing is not one that's been advanced in this case. It would have extraordinarily, extraordinary practical difficulties in application would be really inconsistent. No, no, no. I think he's persuaded me that in the section we're talking about subsection C, the only meaning left for award is an award by the agency, because I would like to try to convince you otherwise. Well, you have to show me one other provision at least where the only meaning you can give award is entitlement to money. Well, I think section 910H1, another provision cited by Justice Kagan is another example. H1, H1, and the document. I'll put it in just to mean A. Consumption. This is a very complicated provision, but what's important to note here is that Congress made, this was in a, Congress's attempt to provide additional benefits to beneficiaries whose disabilities commenced before 1972. Right. They make a critical, I'm sorry, page 15A of the appendix to the gray brief. The specifics aren't as important as the use of the phrase, and it's 1, 2, 3, 4, 5 lines from the bottom, or his survivor was awarded compensation as the result of death. So it makes a key determinant for figuring out how these adjustments are going to be made, whether someone was awarded compensation prior to October 27, 1972. There is no indication here, and it would make no sense to suggest that Congress meant to distinguish between people who had a formal compensation order and those who didn't. I think, but if I could go back to section 910H1, his answer to that was that the provision also permits an entry after someone, of an order after someone dies. That's his answer on some of the other provisions, but here. The authority has taken care of by the act correctly. Right. But here, there would be no reason for someone to go in and get a compensation order because these were long past disabilities, and Congress was simply creating a rule for how to true up these past beneficiaries and provide them additional benefits. But I think if you were, just to say, like there's awarded compensation at less than the maximum rate mean, I'm not sure what that refers to. There was an old maximum prior to 1972. There was a $70 maximum. Okay. So if someone were to entitled to get the maximum, no. Yes, but some people, two-thirds of their average weekly wage resulted in a figure below the maximum, right? So for those people, what section 910H1 did was said, if you were awarded compensation at less than the prior maximum, you're going to get an inflation adjustment. For everyone else who was already at the maximum, they got a new statutorily created time of injury, which is itself significant that Congress went use that route. But there's no indication. You're right, it doesn't make sense. Well, it doesn't make sense under petitioners' reading. I think it does make sense under our reading
. I think he's persuaded me that in the section we're talking about subsection C, the only meaning left for award is an award by the agency, because I would like to try to convince you otherwise. Well, you have to show me one other provision at least where the only meaning you can give award is entitlement to money. Well, I think section 910H1, another provision cited by Justice Kagan is another example. H1, H1, and the document. I'll put it in just to mean A. Consumption. This is a very complicated provision, but what's important to note here is that Congress made, this was in a, Congress's attempt to provide additional benefits to beneficiaries whose disabilities commenced before 1972. Right. They make a critical, I'm sorry, page 15A of the appendix to the gray brief. The specifics aren't as important as the use of the phrase, and it's 1, 2, 3, 4, 5 lines from the bottom, or his survivor was awarded compensation as the result of death. So it makes a key determinant for figuring out how these adjustments are going to be made, whether someone was awarded compensation prior to October 27, 1972. There is no indication here, and it would make no sense to suggest that Congress meant to distinguish between people who had a formal compensation order and those who didn't. I think, but if I could go back to section 910H1, his answer to that was that the provision also permits an entry after someone, of an order after someone dies. That's his answer on some of the other provisions, but here. The authority has taken care of by the act correctly. Right. But here, there would be no reason for someone to go in and get a compensation order because these were long past disabilities, and Congress was simply creating a rule for how to true up these past beneficiaries and provide them additional benefits. But I think if you were, just to say, like there's awarded compensation at less than the maximum rate mean, I'm not sure what that refers to. There was an old maximum prior to 1972. There was a $70 maximum. Okay. So if someone were to entitled to get the maximum, no. Yes, but some people, two-thirds of their average weekly wage resulted in a figure below the maximum, right? So for those people, what section 910H1 did was said, if you were awarded compensation at less than the prior maximum, you're going to get an inflation adjustment. For everyone else who was already at the maximum, they got a new statutorily created time of injury, which is itself significant that Congress went use that route. But there's no indication. You're right, it doesn't make sense. Well, it doesn't make sense under petitioners' reading. I think it does make sense under our reading. Yeah, yeah. Okay. And if you go to page, I page 17a, I think these are the key provisions for understanding how section 906 works in the statutory scheme. Section 914 at the bottom of the page 17a to the government's brief provides that employers must pay compensation without a compensation order promptly. As soon as they have notice of an injury, B, which is on the next page, 18a, says that the first payment has to come in 14 days, within 14 days of notice of the injury, unless the employer controverses liability. So if I'm an employer, I have an employee who's injured, I've got to get out my checkbook on day 14 and start writing checks. I need to know what number to fill in. I need to know. What you're doing that, you're doing that without an award. Correct. So how can you say what the employer pays should be considered an award? Because, if you don't consider that, then the statutory maximum provision is impossible to apply. Because then it's unclear, and I haven't heard petitioner answer, what the statutory maximum is, if that employee who gets his first check after 14 days has not been newly awarded compensation. The fact that you're saying that B overrides A, you're saying that A would be interpreted in favor of the petitioner but for B? No, I'm saying that this, that I agree with the Chief Justice without an award, it seems to me it tends to help the petitioner. That use of award clearly means compensation order, and I'm not here to suggest that the statute never uses the word award to mean compensation order. Often it does, and in this case, that provision does. But the larger point is that that employer has to start payments within 14 days, and he has to know what statutory maximum applies. Under petitioner's view of the statute, there is no answer to that question, because that employee has not been newly awarded compensation, so it's a protection of 9 or so. And in what percentage of the cases are we in that world? It's, it's substantial, in a substantial majority of cases, no claim is ever filed, Justice Kagan. Page 38 of the red brief points to legislative history before Congress in 1972, which demonstrated that, and that remains the case. This is a workers compensation scheme that encourages employers to pay without administrative compulsion. It's supposed to be simple to apply. The employer is supposed to know how much to write that check for at the time he writes that first check after four days. But you're reading does an encouraging employers to pay because they can stop just by saying they can test, right? Absolutely. They have its statutory right to contravert. So, so your reading I think leads to protection, then they get that data injury rule no matter how long they string it out under your reading. If you read, what is the magic phrase, newly? Newly awarded compensation. You could say, well that means in the case of the employer who pays promptly, pays immediately and continues to pay voluntarily, that the compensation is required when the employer starts paying voluntarily. But if the employer is not paying, then the compensation is newly awarded when there's an award
. Yeah, yeah. Okay. And if you go to page, I page 17a, I think these are the key provisions for understanding how section 906 works in the statutory scheme. Section 914 at the bottom of the page 17a to the government's brief provides that employers must pay compensation without a compensation order promptly. As soon as they have notice of an injury, B, which is on the next page, 18a, says that the first payment has to come in 14 days, within 14 days of notice of the injury, unless the employer controverses liability. So if I'm an employer, I have an employee who's injured, I've got to get out my checkbook on day 14 and start writing checks. I need to know what number to fill in. I need to know. What you're doing that, you're doing that without an award. Correct. So how can you say what the employer pays should be considered an award? Because, if you don't consider that, then the statutory maximum provision is impossible to apply. Because then it's unclear, and I haven't heard petitioner answer, what the statutory maximum is, if that employee who gets his first check after 14 days has not been newly awarded compensation. The fact that you're saying that B overrides A, you're saying that A would be interpreted in favor of the petitioner but for B? No, I'm saying that this, that I agree with the Chief Justice without an award, it seems to me it tends to help the petitioner. That use of award clearly means compensation order, and I'm not here to suggest that the statute never uses the word award to mean compensation order. Often it does, and in this case, that provision does. But the larger point is that that employer has to start payments within 14 days, and he has to know what statutory maximum applies. Under petitioner's view of the statute, there is no answer to that question, because that employee has not been newly awarded compensation, so it's a protection of 9 or so. And in what percentage of the cases are we in that world? It's, it's substantial, in a substantial majority of cases, no claim is ever filed, Justice Kagan. Page 38 of the red brief points to legislative history before Congress in 1972, which demonstrated that, and that remains the case. This is a workers compensation scheme that encourages employers to pay without administrative compulsion. It's supposed to be simple to apply. The employer is supposed to know how much to write that check for at the time he writes that first check after four days. But you're reading does an encouraging employers to pay because they can stop just by saying they can test, right? Absolutely. They have its statutory right to contravert. So, so your reading I think leads to protection, then they get that data injury rule no matter how long they string it out under your reading. If you read, what is the magic phrase, newly? Newly awarded compensation. You could say, well that means in the case of the employer who pays promptly, pays immediately and continues to pay voluntarily, that the compensation is required when the employer starts paying voluntarily. But if the employer is not paying, then the compensation is newly awarded when there's an award. So, I don't see why what kind of problems the statute would have if we say, yeah, newly awarded could mean awarded by the statute, which would be newly awarded when you're injured. But it can also mean compensation, ordered by an award. So, you have the employer who pays promptly can lock in that early date, but if he doesn't pay promptly, then the ceiling is going to go up till the time the award is entered. What's wrong with that reading? That's again a reading that hasn't been advanced in this case, but I understand your honours question and your honours point. I think that reading of it would be very difficult to apply because there may be many cases where an employer will write one or two checks and then stop. There may be cases in which an employer will write a check for the wrong amount, there'll be a dispute about what the proper benefit level would be. So, I think you develop a whole body of case law and controversy about what it meant for the employer to have paid. But those aren't going to be the typical cases. I think you said there may be cases, and I suppose there may be. I assume what happens. Employers just don't write checks. They say, this is how we calculate what we owe you. And it is based on the maximum of this year, not any future ones. And if the employee says, no, no, no, I have a right to get, but then the employer will say, well, okay, I either agree with that or not, but you don't get a check. Well, the employer would need to protect itself by writing that check unless it's going to contribute liability. Justice Ginsburg pointed to one of Petitioners' arguments that this provides an incentive for employers not to contribute liability when they don't have a good faith basis for doing so, but Section 928 of the Act provides for attorney's fees in that situation. So there's already a remedy for that kind of situation. And I understand the amounts that issue here. What is the usual amount that's at stake in this sort of case? We're talking about the concerns, I guess, on both about gamesmanship, but how much difference are we talking about? Well, I don't know, maybe you don't have statistics on an average. Well, I can use this case as an illustration. So in this case, the Petitioner's disability began in 2002. So our view is that that's when he was initially awarded compensation. And so this 2002 maximum of $966 applies. Petitioner's view is that because he received a formal compensation order in 2007, the 2007 maximum applies, this 1,114. So it can make a considerable difference. I think, though, that Petitioner recognized that. The consequence, I mean, there's the time value of money to the consequence of the employee saying, I'm going to wait five years because I think the maximum is going to be a lot higher. Is that he doesn't get anything in the meantime, right? Well, that's reasonable for the employer to say, okay, if you want to wait, I'll wait
. So, I don't see why what kind of problems the statute would have if we say, yeah, newly awarded could mean awarded by the statute, which would be newly awarded when you're injured. But it can also mean compensation, ordered by an award. So, you have the employer who pays promptly can lock in that early date, but if he doesn't pay promptly, then the ceiling is going to go up till the time the award is entered. What's wrong with that reading? That's again a reading that hasn't been advanced in this case, but I understand your honours question and your honours point. I think that reading of it would be very difficult to apply because there may be many cases where an employer will write one or two checks and then stop. There may be cases in which an employer will write a check for the wrong amount, there'll be a dispute about what the proper benefit level would be. So, I think you develop a whole body of case law and controversy about what it meant for the employer to have paid. But those aren't going to be the typical cases. I think you said there may be cases, and I suppose there may be. I assume what happens. Employers just don't write checks. They say, this is how we calculate what we owe you. And it is based on the maximum of this year, not any future ones. And if the employee says, no, no, no, I have a right to get, but then the employer will say, well, okay, I either agree with that or not, but you don't get a check. Well, the employer would need to protect itself by writing that check unless it's going to contribute liability. Justice Ginsburg pointed to one of Petitioners' arguments that this provides an incentive for employers not to contribute liability when they don't have a good faith basis for doing so, but Section 928 of the Act provides for attorney's fees in that situation. So there's already a remedy for that kind of situation. And I understand the amounts that issue here. What is the usual amount that's at stake in this sort of case? We're talking about the concerns, I guess, on both about gamesmanship, but how much difference are we talking about? Well, I don't know, maybe you don't have statistics on an average. Well, I can use this case as an illustration. So in this case, the Petitioner's disability began in 2002. So our view is that that's when he was initially awarded compensation. And so this 2002 maximum of $966 applies. Petitioner's view is that because he received a formal compensation order in 2007, the 2007 maximum applies, this 1,114. So it can make a considerable difference. I think, though, that Petitioner recognized that. The consequence, I mean, there's the time value of money to the consequence of the employee saying, I'm going to wait five years because I think the maximum is going to be a lot higher. Is that he doesn't get anything in the meantime, right? Well, that's reasonable for the employer to say, okay, if you want to wait, I'll wait. That's right. The larger point, though, is that in many cases in which compensation is paid without compulsion of a compensation order, and employee never files a claim. Section 913 expressly contemplates that by saying that employee has one year in which to file a claim from an injury, unless he's been receiving payments in which case the time runs from the last payment received. What happens just for my technical knowledge here? The employee suffers partial disability on February 1. He then doesn't notify the employer until, let's say, February 10. And then the employer waits for a week or so and then begins to pay. Now, is the employer supposed to calculate the weekly wage that he's paying on in the week February 1 to February 10 or three days he puts the side? But the first week, or does he do it on the first week he got noticed? How does that work? Well, he needs to provide, he needs to make a payment within 14 days. That's right, but I'm saying he has to write the check now. And the wage could have changed in those two weeks. From the first week he didn't get the notice, then the second week he did get the notice, which week does he calculate the payment on? From when the disability commences. All right. So what you're not saying? Then we cannot read this thing award to mean award by the employer. We can't mean it to read award by the government in your view. We have to mean it to mean the time that he became entitled to some money. That is our submission Justice Breyer. And a tough thing is saying, well, that that's an award. That's what this case turns out. Well, as we, as I was discussing earlier, we think that's an end. I'm not pointing to it in statute. As you pointed to some situations, which say we have situation three and four, and they're not present here, but in situation three or four, award does mean this. I think, all right, that's right. I think if I can show you, if I can show you don't have enough of a example of a situation where award did mean, let's say you're saying there's some others who are award doesn't mean, okay. But, well, I think there are other things. What's the most analogous thing you can find anywhere where award has referred to the time a person became entitled to a thing prior to the time anyone was, a, a, a, became obliged to give him some money. Well, I think even if that time first was the period for way for calculating the money. I think 910 H1 is that example, and I hesitate to go back into the, the, we don't know. I don't do it again, I'm provisioned. But the first sentence says, it talks about those who are entitled to total permanent disability or death, which commends
. That's right. The larger point, though, is that in many cases in which compensation is paid without compulsion of a compensation order, and employee never files a claim. Section 913 expressly contemplates that by saying that employee has one year in which to file a claim from an injury, unless he's been receiving payments in which case the time runs from the last payment received. What happens just for my technical knowledge here? The employee suffers partial disability on February 1. He then doesn't notify the employer until, let's say, February 10. And then the employer waits for a week or so and then begins to pay. Now, is the employer supposed to calculate the weekly wage that he's paying on in the week February 1 to February 10 or three days he puts the side? But the first week, or does he do it on the first week he got noticed? How does that work? Well, he needs to provide, he needs to make a payment within 14 days. That's right, but I'm saying he has to write the check now. And the wage could have changed in those two weeks. From the first week he didn't get the notice, then the second week he did get the notice, which week does he calculate the payment on? From when the disability commences. All right. So what you're not saying? Then we cannot read this thing award to mean award by the employer. We can't mean it to read award by the government in your view. We have to mean it to mean the time that he became entitled to some money. That is our submission Justice Breyer. And a tough thing is saying, well, that that's an award. That's what this case turns out. Well, as we, as I was discussing earlier, we think that's an end. I'm not pointing to it in statute. As you pointed to some situations, which say we have situation three and four, and they're not present here, but in situation three or four, award does mean this. I think, all right, that's right. I think if I can show you, if I can show you don't have enough of a example of a situation where award did mean, let's say you're saying there's some others who are award doesn't mean, okay. But, well, I think there are other things. What's the most analogous thing you can find anywhere where award has referred to the time a person became entitled to a thing prior to the time anyone was, a, a, a, became obliged to give him some money. Well, I think even if that time first was the period for way for calculating the money. I think 910 H1 is that example, and I hesitate to go back into the, the, we don't know. I don't do it again, I'm provisioned. But the first sentence says, it talks about those who are entitled to total permanent disability or death, which commends. So it talks about commencement of entitlement. And it's awarded compensation. And then later it uses awarded compensation. If I could go quickly back to the claim issue. Yes, yes, yes. Your brief themes to use the newly awarded compensation, your meaning of it, at the time of injury, the time of disability, the time of entitlement to compensation, and it seems to use those terms interchangeably. What term are you settling on and why? Okay. I think we addressed this in footnote 9 of our brief. It's the commencement of entitlement to disability benefits, which is almost always going to be when disability itself commences. Petitioner has pointed out that there is an idiosyncratic set of cases in which, if in a disability lasts more than three days, but fewer than 14, you're not compensated for those first three days. So in that unusual circumstance, it would be day four. But the employer who writes that check at day 14 is going to know that's the key. You can do it. You can say it's the time that the statute awards in the compensation, that's the English language. That's correct, Justice Sider. That's the prior. And I think that's the statute that's doing the award. To make his, I think Petitioner has developed kind of a procedural workaround to the stat, the problem created by his interpretation of the statute, which is that he needs a compensation order in every case to make the scheme make sense. To get a compensation order, he needs a claim in every case. And as the colleague we before reflected, the way he can get a claim in every case, because in many cases, claims are not filed today, is that the employer must threaten the disabled employee to cut off benefits if that employee doesn't file a claim. And threaten to contribute liability when that employer has no good faith basis for doing so. All to get the employee to file a claim that the claim employee doesn't think is necessary, to get a compensation order, which serves no other purpose than to trigger this maximum rate provision. That's contrary to the way this statute is supposed to work. The statute is supposed to encourage amicable agreement between employers and employees to avoid administrative process and the gearing up of the administrative machinery wherever possible. And Petitioner's preferred solution to the problem of the absence of a compensation order in every case is contrary to that of the entire thrust of the Longshore Act as a workers compensation scheme. And your answer to the problem of an employer for attracting, so it doesn't have to pay sooner, you can wait till later, there would be no penalty as long as the employer says I'm contesting, which you say the attorneys fees. That's, is that? Attorney's fees and interest, both of which are generally applicable remedies that apply to cases that don't implicate the statutory maximum or the statutory minimum. This Petitioner's solution using, his reading of the statute to deal with employer delays over inclusive and under inclusive
. So it talks about commencement of entitlement. And it's awarded compensation. And then later it uses awarded compensation. If I could go quickly back to the claim issue. Yes, yes, yes. Your brief themes to use the newly awarded compensation, your meaning of it, at the time of injury, the time of disability, the time of entitlement to compensation, and it seems to use those terms interchangeably. What term are you settling on and why? Okay. I think we addressed this in footnote 9 of our brief. It's the commencement of entitlement to disability benefits, which is almost always going to be when disability itself commences. Petitioner has pointed out that there is an idiosyncratic set of cases in which, if in a disability lasts more than three days, but fewer than 14, you're not compensated for those first three days. So in that unusual circumstance, it would be day four. But the employer who writes that check at day 14 is going to know that's the key. You can do it. You can say it's the time that the statute awards in the compensation, that's the English language. That's correct, Justice Sider. That's the prior. And I think that's the statute that's doing the award. To make his, I think Petitioner has developed kind of a procedural workaround to the stat, the problem created by his interpretation of the statute, which is that he needs a compensation order in every case to make the scheme make sense. To get a compensation order, he needs a claim in every case. And as the colleague we before reflected, the way he can get a claim in every case, because in many cases, claims are not filed today, is that the employer must threaten the disabled employee to cut off benefits if that employee doesn't file a claim. And threaten to contribute liability when that employer has no good faith basis for doing so. All to get the employee to file a claim that the claim employee doesn't think is necessary, to get a compensation order, which serves no other purpose than to trigger this maximum rate provision. That's contrary to the way this statute is supposed to work. The statute is supposed to encourage amicable agreement between employers and employees to avoid administrative process and the gearing up of the administrative machinery wherever possible. And Petitioner's preferred solution to the problem of the absence of a compensation order in every case is contrary to that of the entire thrust of the Longshore Act as a workers compensation scheme. And your answer to the problem of an employer for attracting, so it doesn't have to pay sooner, you can wait till later, there would be no penalty as long as the employer says I'm contesting, which you say the attorneys fees. That's, is that? Attorney's fees and interest, both of which are generally applicable remedies that apply to cases that don't implicate the statutory maximum or the statutory minimum. This Petitioner's solution using, his reading of the statute to deal with employer delays over inclusive and under inclusive. It's over inclusive because it's going to deal with cases in which there hasn't been delay by any responsibility by the employer, but there's been administrative delay, there's been dispute. But it's also under inclusive in that it only deals with those small number of cases that deal with the statutory maximum or minimum. Thank you, Mr. Palmore. Mr. Kysler speak for a little bit. Mr. Kysler? Mr. Chief Justice, and may it please the Court. I'd like to begin if I may by addressing Justice Scalia's and the Chief Justice's questions on whether the term award can bear the meaning that we ascribe to it, and then explain why since it can bear that meaning, this is the only sensible interpretation of the act. First, it is not uncommon, Your Honor, to use the term award to describe a benefit conferred by a statute. The dictionary definition is a benefit conferred. Your Honor, Justice Scalia, used a formulation, what if a statute awards a tax credit? Well, the Court's decision in new energy company versus Limbock began an Ohio statute awards a tax credit for certain producers of ethanol. I think even Your Honor was the author of that decision. It is. I agree with that. You can speak of the statute as awarding something, but when you use the phrase newly awarded, you're not referring to the enactment of the statute. You're referring to the time at which the person qualifies under the statute. And I don't know any usage of that sort that a person would, you know, when my wife has a baby, I've been awarded money. You have been awarded money? I think the party becomes newly awarded at the time the party becomes disabled, and therefore there is an amount due under the statute. That's what you say, but I don't know any common usage that employs the term. But it is a usage within the Longshore Act elsewhere, as Mr. Kruber. What about the business was newly awarded the tax credit at the time they made the deduction. At the time they became qualified for what the statute required them to do to get the tax credit. Yes, and that is how it is used in 910H1, as Justice Kagan said, is how it's used in 908. And Section 933 specifically provides petitioner's definition of award, a formal compensation order, but says it is only for purposes of this subsection. But it's not the way it's used in 914
. It's over inclusive because it's going to deal with cases in which there hasn't been delay by any responsibility by the employer, but there's been administrative delay, there's been dispute. But it's also under inclusive in that it only deals with those small number of cases that deal with the statutory maximum or minimum. Thank you, Mr. Palmore. Mr. Kysler speak for a little bit. Mr. Kysler? Mr. Chief Justice, and may it please the Court. I'd like to begin if I may by addressing Justice Scalia's and the Chief Justice's questions on whether the term award can bear the meaning that we ascribe to it, and then explain why since it can bear that meaning, this is the only sensible interpretation of the act. First, it is not uncommon, Your Honor, to use the term award to describe a benefit conferred by a statute. The dictionary definition is a benefit conferred. Your Honor, Justice Scalia, used a formulation, what if a statute awards a tax credit? Well, the Court's decision in new energy company versus Limbock began an Ohio statute awards a tax credit for certain producers of ethanol. I think even Your Honor was the author of that decision. It is. I agree with that. You can speak of the statute as awarding something, but when you use the phrase newly awarded, you're not referring to the enactment of the statute. You're referring to the time at which the person qualifies under the statute. And I don't know any usage of that sort that a person would, you know, when my wife has a baby, I've been awarded money. You have been awarded money? I think the party becomes newly awarded at the time the party becomes disabled, and therefore there is an amount due under the statute. That's what you say, but I don't know any common usage that employs the term. But it is a usage within the Longshore Act elsewhere, as Mr. Kruber. What about the business was newly awarded the tax credit at the time they made the deduction. At the time they became qualified for what the statute required them to do to get the tax credit. Yes, and that is how it is used in 910H1, as Justice Kagan said, is how it's used in 908. And Section 933 specifically provides petitioner's definition of award, a formal compensation order, but says it is only for purposes of this subsection. But it's not the way it's used in 914. That's correct. And that's why this is a case like Robinson versus Shell Oil, in which the word employer was used throughout Title VII in different ways. And what the Court said is you then have to look at the context of the individual provision in which the word appears that you're construing to determine how the word is being used in that particular provision. And here, the most fundamental reason why it is an untenable construction of this act to rely on the date of a compensation order to determine the applicable maximum rate is that then the act would be silent as to the maximum rate in the vast majority of instances in which compensation is paid, because as Mr. Palmer said, in the vast majority of instances, no claim is filed, and as Justice Sotomayor pointed out, when no claim is filed, no compensation order will ever be issued. And that's not an accident. That is a function of a very central feature of the act's design that petitioners interpretation is entirely at odds with. The act is designed to enable compensation to be calculated precisely and as early as possible so that the money can get into the employee's hands very quickly and with a minimum of instances in which the administrative machinery has to be invoked. That's why the norm is no compensation order. And so petitioners interpretation is counter to that in at least two respects. It relies on the existence of a compensation order which in most instances won't and shouldn't issue, and it would maximize, rather than minimize, the number of instances in which someone has to go and get an order to force compensation orders out of the system to make petitioners interpretation work, even though everything is happening exactly as the act says it should. The employer is voluntarily paying exactly the amount that the employee says is due and there's no need to get the agency involved. So much of a practical problem is this. I understand the amounts are here, but it's just five years and apparently the employee was happy to wait five years to get an award. Normally if you're an employee and you're disabled and the employer says well here's what we're going to give you and it's based on the maximum the latest we have. If you're not going to say I'm going to wait, these wages are going to go up nationally and I'm going to wait a year, maybe I'll wait four years because I think there's a trend on national average wages and I'm going to be without money for the next four years and I'm disabled, but I mean that doesn't sound to me to be a plausible situation. But if you're on the things about the situation in which the employee is voluntarily receiving from the employer, everything that the employee agrees is due, then the question is in that circumstance where the employer is doing everything right, what can the employer do to force out of the system a compensation order that will lock in the maximum rate and petitioner's interpretation of the solution to that problem. Evidence is the problem with his position. Well, no. I mean, I don't know what the employers do, but usually in a situation like this, the employers, good lawyers, and they write at the end of the check, you know, this is in full satisfaction of any claims under whatever. But there is no compensation order until that employee files a claim and under petitioner's interpretation there would there be no, noble maximum rate and petitioner's solution to that problem. On page 16 of his reply brief, it's to say that the employer should threaten a bad faith cutoff of funds. The employer should say, I will cut you off unless you file a claim. That's bad for everyone. It's bad for the employee who has access to payments delayed. It's bad for the employer who apparently is being told it must contravert liability in bad faith because the employer doesn't in fact disagree that the employee is entitled to liability or face a 10 percent penalty for cutting off the employee without a basis for contraverting liability. And it's bad for the agency who suddenly has all these claims filed all in a situation in which everything is working exactly as the act intends. Do you mean your example of a award used as 9,081? No, no, not from the statute
. That's correct. And that's why this is a case like Robinson versus Shell Oil, in which the word employer was used throughout Title VII in different ways. And what the Court said is you then have to look at the context of the individual provision in which the word appears that you're construing to determine how the word is being used in that particular provision. And here, the most fundamental reason why it is an untenable construction of this act to rely on the date of a compensation order to determine the applicable maximum rate is that then the act would be silent as to the maximum rate in the vast majority of instances in which compensation is paid, because as Mr. Palmer said, in the vast majority of instances, no claim is filed, and as Justice Sotomayor pointed out, when no claim is filed, no compensation order will ever be issued. And that's not an accident. That is a function of a very central feature of the act's design that petitioners interpretation is entirely at odds with. The act is designed to enable compensation to be calculated precisely and as early as possible so that the money can get into the employee's hands very quickly and with a minimum of instances in which the administrative machinery has to be invoked. That's why the norm is no compensation order. And so petitioners interpretation is counter to that in at least two respects. It relies on the existence of a compensation order which in most instances won't and shouldn't issue, and it would maximize, rather than minimize, the number of instances in which someone has to go and get an order to force compensation orders out of the system to make petitioners interpretation work, even though everything is happening exactly as the act says it should. The employer is voluntarily paying exactly the amount that the employee says is due and there's no need to get the agency involved. So much of a practical problem is this. I understand the amounts are here, but it's just five years and apparently the employee was happy to wait five years to get an award. Normally if you're an employee and you're disabled and the employer says well here's what we're going to give you and it's based on the maximum the latest we have. If you're not going to say I'm going to wait, these wages are going to go up nationally and I'm going to wait a year, maybe I'll wait four years because I think there's a trend on national average wages and I'm going to be without money for the next four years and I'm disabled, but I mean that doesn't sound to me to be a plausible situation. But if you're on the things about the situation in which the employee is voluntarily receiving from the employer, everything that the employee agrees is due, then the question is in that circumstance where the employer is doing everything right, what can the employer do to force out of the system a compensation order that will lock in the maximum rate and petitioner's interpretation of the solution to that problem. Evidence is the problem with his position. Well, no. I mean, I don't know what the employers do, but usually in a situation like this, the employers, good lawyers, and they write at the end of the check, you know, this is in full satisfaction of any claims under whatever. But there is no compensation order until that employee files a claim and under petitioner's interpretation there would there be no, noble maximum rate and petitioner's solution to that problem. On page 16 of his reply brief, it's to say that the employer should threaten a bad faith cutoff of funds. The employer should say, I will cut you off unless you file a claim. That's bad for everyone. It's bad for the employee who has access to payments delayed. It's bad for the employer who apparently is being told it must contravert liability in bad faith because the employer doesn't in fact disagree that the employee is entitled to liability or face a 10 percent penalty for cutting off the employee without a basis for contraverting liability. And it's bad for the agency who suddenly has all these claims filed all in a situation in which everything is working exactly as the act intends. Do you mean your example of a award used as 9,081? No, no, not from the statute. You, you, you, you, you, you, you, new energy company versus Limbuck. It was a commerce clause case from, I think, 1989, in which Your Honor began the opinion by saying to describe the setup on Ohio statute awards tax benefits to and then describe the category of energy producers who could take advantage of the tax benefit. And I think those energy producers- No, that wasn't. You gave another example. Robinson versus Shell Oil? No, not a case. Okay. Just an example you made up out of your fertile imagination, which seemed to be pretty good. But I forgot it. I think it's the employee who is receiving voluntary payments and everything is proceeding the way the act intended. But the employer in order to know what its maximum rate will be, in order not to be surprised five years hence by a maximum rate that only then can be known, has to force a compensation order out of the system. And the only way petitioner says the employer can do that is by threatening a bad faith cut off of funds. Whether it happens frequently or infrequently, Mr. Chief Justice, I think an interpretation that relies on a mechanism that is so obviously counter to where the statute is supposed to function is by virtue of that an extremely unlikely and unnatural interpretation of that. But what percentage of the compensation cases involved the statutory maximum, does it do if your pay is less than the statutory maximum, this issue doesn't come up? In 1972, Congress was told that it would be about 10 percent. My understanding is since then it's grown so that I'm told that about 20 percent of cases today require application of the maximum rate. The maximum always go up? Ever since 1972, each year's maximum is calculated by the Secretary of Labor has been higher than the preceding year. Theoretically it can, it never has. If the Court has no further questions. Kiesler, if I could just go back to this language, if, according to Justice Scalia's old opinion, the statute awards compensation at the time of disability. Essentially, what you would be saying is that an employer who becomes disabled in a certain year is awarded compensation at that time. Is that right? That's right, Your Honor. Yeah, but I didn't say in that opinion that the employer in that case or whoever it was that was entitled under the statute was newly awarded it. I agree that the statute awards it, but when you say somebody is newly awarded, you're talking about an event at that time. And that's the difference. I think the function of newly in this statute is something different, Justice Scalia. And that relates to the questions that Your Honor and Justice Breyer were asking about the relationship between the currently receiving clause and the final clause. I think the currently receiving clause, which relates to those with permanent total disability and death, is an adjunct to another provision of the Act, Section 19F, which provides for a COA, a cost of living increase every year for that narrow subset of the most disabled of employees. They and they alone get that annual bump up
. You, you, you, you, you, you, you, new energy company versus Limbuck. It was a commerce clause case from, I think, 1989, in which Your Honor began the opinion by saying to describe the setup on Ohio statute awards tax benefits to and then describe the category of energy producers who could take advantage of the tax benefit. And I think those energy producers- No, that wasn't. You gave another example. Robinson versus Shell Oil? No, not a case. Okay. Just an example you made up out of your fertile imagination, which seemed to be pretty good. But I forgot it. I think it's the employee who is receiving voluntary payments and everything is proceeding the way the act intended. But the employer in order to know what its maximum rate will be, in order not to be surprised five years hence by a maximum rate that only then can be known, has to force a compensation order out of the system. And the only way petitioner says the employer can do that is by threatening a bad faith cut off of funds. Whether it happens frequently or infrequently, Mr. Chief Justice, I think an interpretation that relies on a mechanism that is so obviously counter to where the statute is supposed to function is by virtue of that an extremely unlikely and unnatural interpretation of that. But what percentage of the compensation cases involved the statutory maximum, does it do if your pay is less than the statutory maximum, this issue doesn't come up? In 1972, Congress was told that it would be about 10 percent. My understanding is since then it's grown so that I'm told that about 20 percent of cases today require application of the maximum rate. The maximum always go up? Ever since 1972, each year's maximum is calculated by the Secretary of Labor has been higher than the preceding year. Theoretically it can, it never has. If the Court has no further questions. Kiesler, if I could just go back to this language, if, according to Justice Scalia's old opinion, the statute awards compensation at the time of disability. Essentially, what you would be saying is that an employer who becomes disabled in a certain year is awarded compensation at that time. Is that right? That's right, Your Honor. Yeah, but I didn't say in that opinion that the employer in that case or whoever it was that was entitled under the statute was newly awarded it. I agree that the statute awards it, but when you say somebody is newly awarded, you're talking about an event at that time. And that's the difference. I think the function of newly in this statute is something different, Justice Scalia. And that relates to the questions that Your Honor and Justice Breyer were asking about the relationship between the currently receiving clause and the final clause. I think the currently receiving clause, which relates to those with permanent total disability and death, is an adjunct to another provision of the Act, Section 19F, which provides for a COA, a cost of living increase every year for that narrow subset of the most disabled of employees. They and they alone get that annual bump up. And so that currently receiving clause is written for that category to make sure that their bump up is in-capped by a static maximum rate. The other part of the clause, newly awarded compensation, is about everybody else. And I think the use of the word newly there is just to distinguish it from the currently receiving clause, which is escalating year by year, and those newly awarded compensation, meaning at one point, fixed in time, only when you are newly awarded compensation. Are you then going to have your maximum rate fixed? And then, and both petitioner and we agree, whatever it's fixed at, whatever year, that stays the same for the duration of your collection of compensation. The Court has no further questions. I thank the Court. Thank you, Council. Mr. Gilliland, if I got that right, you have two minutes remaining. I agree. So let's assume an employer pays, continues to pay over a period of time, and the employee needs more money. And goes in and says, you owe me more money. I'm going to make a claim. The board says, no, he doesn't owe you more money. He was paying the right amount. And so you're not entitled to the 1,200 you're asking for your only entitled to the 1,000 Hughes Pay. Under your view, if that happened five or ten years after the payment started, would the employer be liable for the higher average ten years later? Only, of course, if the employee's own wages at the time of the injury qualified for that matter. I'm assuming it does, but the answer is yes. So what stops an employee from simply doing what I said? What stops an employee from kicking off his own maximum by whenever he chooses to do it years and years later? Well, I think in that situation, the claimant hasn't triggered that award. In fact, the claimant has triggered the maximum that's in effect at the time of that award that only makes, it's an award only of what the employer has been paying. It's not a denial, as it's characterized in the government's brief, but it is an award only of what the employer has been paying. If the claimant did not bring it forward with that, and the employer let it go for still further years, then even a subsequent year's maximum would be that. If we find any ambiguity in the statute, in the statutory language, would it then make more sense to adopt your meaning or the governments, given all of the factors that the government argues, councils in its favor? I think each of those arguments is fallacious. They misdescribe the statute in their reasons why this is not a sensible provision. But even if there is an ambiguity, before we lose that, the other possible meanings of newly awarded have got to include what they say the test is. Thank you, counsel. The case is submitted. Thank you