                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

AREL PRICE,                           
                        Petitioner,
                v.                         No. 08-71719
STEVEDORING SERVICES OF AMERICA,
INC.; EAGLE PACIFIC INSURANCE              OWCP No.
                                             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
10446            PRICE v. STEVEDORING SERVICES




                         COUNSEL

Charles Robinowitz, Attorney, Portland, Oregon, for the peti-
tioner Arel Price.

Russell A. Metz, Attorney, Metz & Assocs. P.S., Seattle,
Washington, John Randall Dudrey, Attorney, Williams Fredr-
ickson, 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 Stevedor-
ing 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
                    PRICE v. STEVEDORING SERVICES                    10447
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 pro-
vide 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 adminis-
tering the Act, Chesapeake & Ohio Ry. Co. v. Schwalb, 493
U.S. 40, 45 (1989); 33 U.S.C. §§ 902, 939, the statute pro-
vides 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 func-
tions 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).
  1
    Section 1961 delineates the interest payable on federal district court
judgments. See 28 U.S.C. § 1961(a). In contrast, § 6621 specifies the inter-
est rate the Internal Revenue Service (“IRS”) uses with respect to the over-
payment and underpayment of taxes. 26 U.S.C. § 6621(a).
10448            PRICE v. STEVEDORING SERVICES
   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 com-
pensation “be paid periodically, promptly, and directly to the
person entitled thereto, without an award, except where liabil-
ity 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 with-
out 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).
                    PRICE v. STEVEDORING SERVICES                    10449
B.   Factual and Procedural History

   Arel Price was injured in 1991 while employed as a long-
shoreman 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’ com-
pensation 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 reconsidera-
tion 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 fis-
cal year maximum, declining to apply the maximum compen-
sation 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
  2
    Compound 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.
10450            PRICE v. STEVEDORING SERVICES
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 pro-
ceedings before the Board, as one of the respondents. See gen-
erally 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 peti-
tion, 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 def-
erence 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 stat-
ute.” Newport News, 514 U.S. at 134. But having that author-
                  PRICE v. STEVEDORING SERVICES             10451
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 reason-
able 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 gen-
erally 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 satis-
fies Mead’s second requirement depends on the form and con-
text 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 litiga-
tion. See Roberts, 132 S. Ct. at 1363 n.12 (declining to resolve
whether the Director’s litigating position is entitled to Chev-
ron deference).

   Mead held that tariff classification rulings by the U.S. Cus-
toms Service do not merit Chevron deference. 533 U.S. at
221. The relevant statute in that case provided that the Cus-
toms 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 regula-
tions authorizing the Customs Service to issue “ruling letters”
10452            PRICE v. STEVEDORING SERVICES
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 adminis-
trative procedure tending to foster the fairness and delibera-
tion 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-and-
comment 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. Wal-
ton, 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 let-
ter 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 mod-
ification 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 indi-
cation that the agency had “ever set out with a lawmaking
pretense,” Mead, 533 U.S at 233, it concluded that the tariff
                 PRICE v. STEVEDORING SERVICES             10453
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 litigat-
ing position, that binds the parties in any given case and pro-
vides 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 pre-
cedent that, under normal circumstances, pre-judgment inter-
est awards under the Act should be calculated on a simple
basis.”). Any claimants or employers who ignore a Board pre-
cedent 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 adjudi-
cation inform but do not constrain the BRB’s decisions in any
way. In Grant v. Portland Stevedoring Co., for example, the
10454            PRICE v. STEVEDORING SERVICES
BRB decided to adopt the 28 U.S.C. § 1961 rate for calculat-
ing interest on past due disability payments, despite the Direc-
tor’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 incon-
sistent 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 previ-
ous 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 posi-
tion. 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 Long-
shore Manual). Nonetheless, the Director has not promul-
gated notice-and-comment regulations that undergird his
current position, although he has the authority to issue inter-
pretive 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 litigat-
ing positions is consistent with the Supreme Court’s decision
in Martin, 499 U.S. 144 (1991). In Martin, the Court indi-
cated 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
                  PRICE v. STEVEDORING SERVICES             10455
first glance, Martin may appear to compel deference to the
Director’s litigating position.

    “That an agency’s litigating position may be entitled to def-
erence when the agency interprets its own regulations,” how-
ever, “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 Coun-
cil, 557 U.S. 261, 277-78 (2009)); see also Gregory v. Ash-
croft, 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 defer-
ence 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 interpre-
tation 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 inter-
pretation, Auer explained that, because the applicable test was
“a creature of the Secretary’s own regulations, his interpreta-
tion of it is . . . controlling unless ‘plainly erroneous or incon-
sistent 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
10456               PRICE v. STEVEDORING SERVICES
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 regu-
lations 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 underly-
ing 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 lan-
guage the interpretive rule addresses comes from Congress,
not the Attorney General, and the near equivalence of the stat-
ute 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 def-
erence. 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 [Fed-
eral Reserve] Board presents in its brief is consistent with the regulatory
text, we need look no further in deciding this case.”)
                    PRICE v. STEVEDORING SERVICES                    10457
   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 formulat-
ing those regulations and instead merely paraphrases statutory
language. Id. In other words, an agency presumably under-
takes careful deliberation about how best to effectuate statu-
tory 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 rep-
resents 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 rec-
onciling conflicting policies . . . [that] Congress intended to
accommodate . . . .”) (footnotes omitted); Christopher v.
SmithKline Beecham Corp., 132 S. Ct. 2156 (2012). In addi-
tion, 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 com-
pleted, the agency’s later litigating positions can ordinarily be
understood as resting on its earlier research and consideration.4
   4
     At times, however, “there is reason to suspect that the agency’s inter-
pretation ‘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 liti-
gating position,’ ” id. (quoting Bowen, 488 U.S. at 213); or an appearance
that the agency’s interpretation is no more than a “ ‘post hoc rationaliza-
tion advanced by an agency seeking to defend past agency action against
attack,’ ” id. (quoting Auer, 519 U.S. at 462). Where such indicia are pres-
ent, Auer deference is inappropriate. See id.
10458              PRICE v. STEVEDORING SERVICES
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 provi-
sion 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 con-
structions 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
   5
     Consistent with Mead and Barnhart, we have determined that some
agency interpretations advanced through means other than formal rule-
making 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 inter-
pretation 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 rule-
making 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.
                    PRICE v. STEVEDORING SERVICES                    10459
1339 (noting that “litigation decisions are generally commit-
ted 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 advo-
cated 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 promulgat-
ing 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 defer-
ence); 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 expres-
sions of policy by the Director, who does administer the statute, but settled
law precludes us from affording deference to an agency’s litigating posi-
tion.”) (internal citation omitted), abrogated on other grounds by Bath
Iron Works Corp. v. Dir., OWCP, 506 U.S. 153 (1993).
10460               PRICE v. STEVEDORING SERVICES
   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 liti-
gating 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
  7
    This 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 appel-
late 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 regula-
tions 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 adjudi-
cations 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 liti-
gating 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
                    PRICE v. STEVEDORING SERVICES                     10461
  In sum, neither the Board’s decision nor the Director’s liti-
gating position interpreting the Longshore Act is entitled to
Chevron deference.

  2.        Skidmore Deference

   Where Chevron is inapplicable, reasonable agency interpre-
tations may still carry “at least some added persuasive force.”
Metro. Stevedore Co., 521 U.S at 136. “An agency’s interpre-
tation may merit some deference whatever its form, given the
‘specialized experience and broader investigations and infor-
mation’ available to the agency, and given the value of unifor-
mity in its administrative and judicial understandings of what
a national law requires.” Mead, 533 U.S. at 234 (quoting Skid-
more 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 pronounce-
ments, 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 Direc-
tor’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.
10462               PRICE v. STEVEDORING SERVICES
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 Direc-
tor 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 com-
pound, because his position on that issue is simply unpersua-
sive, 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 com-
pound interest is flawed because it selectively adopts the
§ 1961 statutory rate without adopting the accompanying pro-
vision 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
  8
    Of course, “the ‘weight’ assigned to any advocate’s position is presum-
ably 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 Skid-
more deference to agency litigating positions is more likely to turn on fac-
tors such as the consistency of its position and its application of that
position through administrative practice than on the quality of its court
advocacy.
                 PRICE v. STEVEDORING SERVICES             10463
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 enti-
tled to Skidmore respect, its observation that OSHRC essen-
tially 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 cir-
cuit 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. Rus-
sell 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 question-
able whether the BRB should be entitled to any kind of spe-
cial 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 author-
10464           PRICE v. STEVEDORING SERVICES
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 conun-
drum 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 interpreta-
tions 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 com-
pensation” 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
                    PRICE v. STEVEDORING SERVICES                    10465
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 manda-
tory under the LHWCA as a “ ‘necessary and inherent compo-
nent 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 sta-
tutorily entitled to compensation is when he first becomes dis-
abled. See Roberts, 132 S. Ct. at 1356.

   [7] While the parties agree that Price should receive inter-
est 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 stan-
dards 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
  9
   Nonetheless, all the parties have treated the interest rate issues in this
case as questions of statutory interpretation. We therefore do so as well.
10466               PRICE v. STEVEDORING SERVICES
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 rea-
sons 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 consis-
tently used that rate. See B.C. v. Stevedoring, 41 BRBS at
111. In Grant, the Board held that interest on past-due com-
pensation 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 amend-
ments 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 there-
fore no longer appropriate to further the purpose of making
  10
    The federal short-term rate is “the rate determined by the [IRS] Secre-
tary based on the average market yield . . . on outstanding marketable obli-
gations of the United States with remaining periods to maturity of 3 years
or less.” 26 U.S.C. § 1274(d)(1)(C)(i).
                 PRICE v. STEVEDORING SERVICES             10467
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 “fed-
eral short-term rate,” 26 U.S.C. § 6621(a), it also fluctuates in
accordance with changing economic conditions. Indeed, Con-
gress 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 [chang-
ing] 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 pro-
priety 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. Specifi-
cally, 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 com-
missioners. 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 there-
fore endorsed the § 1961 rate, which is used to calculate inter-
est 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
10468            PRICE v. STEVEDORING SERVICES
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 com-
pensation 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 pen-
alty 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 controver-
sion. 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 Direc-
tor 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 Direc-
tor maintains, “[t]he claimant can then promptly invoke the
Longshore Act’s dispute resolution procedures — procedures
designed to resolve disputes quickly and informally.” Accord-
ing 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 infor-
mally. Although Stevedoring Services filed a notice of con-
                 PRICE v. STEVEDORING SERVICES            10469
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 mari-
time context, “that the measure of interest rates prescribed for
post-judgment interest in 28 U.S.C. § 1961(a) is also appro-
priate 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 dis-
ability is an essential part of compensation under the Long-
shore 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 addi-
tion, 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 Long-
shore 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 par-
10470              PRICE v. STEVEDORING SERVICES
ticipants and beneficiaries”), with Found. Constructors, 950
F.2d at 625 (emphasizing “the remedial intent of the [Long-
shore] Act”). Our view that the § 1961 rate is adequate to
effectuate the remedial purpose of ERISA supports the propri-
ety 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. Mar-
tin, 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 dis-
crimination.” 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 opportuni-
ties 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 admin-
istered 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 impor-
tance in weakening the analogy to the Longshore Act for pur-
poses of determining the appropriate rate of interest: Although
“[s]ignificant portions of the Longshore Act have been incor-
porated 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,
  11
    See 30 U.S.C. § 932(a) (adopting parts of the Longshore Act “except
as otherwise provided . . . by regulations of the Secretary [of Labor]”).
                 PRICE v. STEVEDORING SERVICES            10471
unlike the Longshore Act and its implementing regulations,
expressly apply the § 6621 rate to interest due on late pay-
ments. 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 paral-
lelism 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 con-
cerned with interest on debts to the United States govern-
ment.” (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). Signifi-
cantly, the Trust Fund was created as part of the Internal Rev-
enue 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 explic-
itly 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 estab-
lishes 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).
10472            PRICE v. STEVEDORING SERVICES
   It is true that the Black Lung Act’s implementing regula-
tions also apply the § 6621 rate to interest on late payments
made directly to miners. See 20 C.F.R. § 725.608(d)(3). How-
ever, we find convincing the Director’s argument that this
arrangement “is reasonable because it makes all interest cal-
culations 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 apply-
ing 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, aban-
doning 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 postpone-
ment 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
                 PRICE v. STEVEDORING SERVICES             10473
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 over-
payment 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 approxi-
mate 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 gov-
ernment in the § 6621 underpayment context; and individuals
who have overpaid their taxes in the § 6621 overpayment con-
text). In the Longshore Act context, it is impossible to ascer-
tain 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. Sec-
tion 1961 approximates the value of prompt payments to pre-
vailing 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 equiva-
lent 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 rea-
sonable 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
10474              PRICE v. STEVEDORING SERVICES
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 incor-
poration 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 alterna-
tives 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 imple-
mented 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 pay-
ments 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,
  12
    Should the Director consider altering his position, however, our hold-
ing does not preclude him from adopting the § 6621 rate through the for-
mal rulemaking process or other appropriate means.
                 PRICE v. STEVEDORING SERVICES             10475
promptly, and directly to the person entitled thereto without
an award, except where liability to pay compensation is con-
troverted by the employer.” 33 U.S.C. § 914(a) (emphasis
added). In addition, as we have seen, employers who contro-
vert the right to compensation must file a notice with the dep-
uty 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 con-
sume 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 com-
pensate parties for the decrease in a judgment’s value over
time is reflected in § 1961 itself. Subsection (b) of that provi-
sion requires that interest “shall be compounded annually.” 28
U.S.C. § 1961(b). Because the subsections of § 1961 work
10476               PRICE v. STEVEDORING SERVICES
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 com-
pounding only of post-judgment interest. But that is a distinc-
tion 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 admin-
istration 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’ com-
pensation 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
  13
     Price points out that the § 6621 rate is higher than the § 1961 rate even
when the latter is compounded.
  14
     Because the BRB’s reasoning is not persuasive, we need not and thus
do not address whether the BRB is entitled to Skidmore deference.
                    PRICE v. STEVEDORING SERVICES                     10477
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 com-
pound 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 sim-
ple rather than compound basis in the absence of express
authorization otherwise.”)). Many courts have begun, how-
ever, to move away from this rule.15

  The growing recognition that compound interest can be
necessary to compensate plaintiffs fully is justified by chang-
ing economic realities. The Eighth Circuit has explained:
  15
     See, 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 Amend-
ment 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 pre-
judgment 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 pre-
judgment 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 pre-
judgment interest).
10478              PRICE v. STEVEDORING SERVICES
       [The] common law presumption against compound
       interest stemmed from a historical view that interest
       upon interest was “iniquitous and against public pol-
       icy.” 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 sav-
ings 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
  16
    Even 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”).
                    PRICE v. STEVEDORING SERVICES                    10479
have more to lose than to gain from delays in their compensa-
tion payments, and are more likely to encounter those delays
not because of their own lassitude but because of the opportu-
nities 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 compound-
ing 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 com-
       pensated 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
  17
     See 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.”).
10480            PRICE v. STEVEDORING SERVICES
    since, and the rule simply persists from blind imita-
    tion 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 com-
pound interest is available. Although the BRB has never
explained in a published order what it means by “normal cir-
cumstances,” 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). Har-
ris 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 appro-
priate where violation was intentional and indeed outra-
geous.’ ” 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 com-
pounding pre-judgment interest in the first place. As dis-
cussed, 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 pen-
alty; 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
                PRICE v. STEVEDORING SERVICES           10481
(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 punish-
ment 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 Direc-
tor’s argument that “full compensation is ensured by simple
interest and the additional compensation available under sec-
tion 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 ensur-
ing 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 provi-
sions 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 pay-
ments 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.
10482            PRICE v. STEVEDORING SERVICES
O’SCANNLAIN, Circuit Judge, dissenting in part:

   I agree with the majority that the Director’s litigating posi-
tion 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’ Compensa-
tion 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 adju-
dications 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 consis-
tent 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 Long-
shore Procedure Manual, used by district directors nation-
wide, since at least 1989. See Div. of Longshore and Harbor
Workers’ Compensation, Dep’t of Labor, Longshore Proce-
                 PRICE v. STEVEDORING SERVICES            10483
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) (not-
ing consistency, thorough consideration, and valid reasoning
as factors contributing to persuasiveness). We should defer to
the agency’s consistent, long-standing implementation of sim-
ple 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 agen-
cy’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 State-
ment . . . since 1992 convinces us that we must accord defer-
ence 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 claim-
ants. 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 com-
promise 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
10484               PRICE v. STEVEDORING SERVICES
compensation for injuries, even if it is not “complete compen-
sation 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.” New-
port News, 514 U.S. at 136. Whatever our views on the effec-
tiveness 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 war-
ranted based on “changing economic realities” and a “grow-
ing 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 Elec-
tric, 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).
                    PRICE v. STEVEDORING SERVICES                     10485
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 Direc-
tor’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 Direc-
tor 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 long-
standing 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.
  2
    The majority also suggests that we can tell that simple interest is unrea-
sonable because the Board has indicated that compound interest might be
warranted in exceptional circumstances. Op. at 10480-81. But compound-
ing interest in exceptional circumstances, such as when a party engages in
willful misbehavior, accords with the general rule giving trial judges dis-
cretion 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 ‘puni-
tive’ ” and instead noting that a proper remedy should be formulated with
the unique circumstances of the case in mind). Though we deal with pre-
judgment interest rather than post-judgment interest, the distinction, as the
majority notes, “carries no significance here.” Op. at 10476.
10486            PRICE v. STEVEDORING SERVICES
                                D

   The majority’s failure to defer under Skidmore to the Direc-
tor’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 determi-
nation 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 sim-
ple interest, recognizing that the Director is in the best posi-
tion 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.
