
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1006                                 JUAN ANTONIO GARCIA,                            INSURANCE COMMISSIONER, ETC.,                                Plaintiff, Appellant,                                          v.                            ISLAND PROGRAM DESIGNER, INC.,                                 Defendant, Appellee.                              __________________________                              UNITED STATES OF AMERICA,                                Intervenor, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                [Hon. Gilberto Gierbolini, Senior U.S. District Judge]                                           __________________________                              _________________________                                        Before                                Selya, Cyr and Stahl,                                    Circuit Judges.                                    ______________                              _________________________               Carlos J.  Morales Bauza and Rossello-Rentas & Rabell-Mendez               ________________________     _______________________________          on brief for appellant.               Loretta  C. Argrett,  Assistant  Attorney  General, Gary  R.               ___________________                                 ________          Allen, Bruce R.  Ellisen, and Laurie Snyder,  Tax Division, Dep't          _____  _________________      _____________          of Justice, and Guillermo  Gil, United States Attorney,  on brief                          ______________          for intervenor.                              _________________________                                    August 9, 1995                              _________________________                    Per  Curiam.   This case  involves a  dispute over  the                    Per  Curiam.                    ___________          relative priority to be accorded to federal tax claims against an          insolvent  health maintenance  organization.    After an  earlier          opinion in  which we  held that the  federal court  had exclusive          jurisdiction  to hear  and determine  the  competing claims,  see                                                                        ___          Garcia v. Island Program Designer, Inc., 4 F.3d 57, 60 (1st  Cir.          ______    _____________________________          1993),   the  district  court  rejected  the  position  urged  by          appellant, Puerto Rico's Insurance  Commissioner, and ruled  that          the  tax claims  asserted by the  Internal Revenue  Service (IRS)          were entitled to  priority over the claims  of unpaid health-care          providers.  See  Garcia v. Island Program Designer,  Inc., 875 F.                      ___  ______    ______________________________          Supp. 940, 944  (D.P.R. 1994).   The Insurance Commissioner  then          prosecuted the instant appeal.                    We  will not  dawdle.   The court  below has  written a          careful,  well-reasoned  opinion,  correctly  applying the  legal          doctrines  articulated  by  the Supreme  Court  in  Department of                                                              _____________          Treasury  v.  Fabe,  113  S.  Ct.  2202  (1993),  and  adequately          ________      ____          exploring  the interplay among  the federal priority  statute, 31          U.S.C.    3713, the McCarran-Ferguson  Act, 15 U.S.C.    1012(b),          and local law, particularly P.R. Laws  Ann. tit. 26,   1914.   It          is our preferred  practice that when, as now, "a  trial court has          produced a first-rate  work product, a reviewing  tribunal should          hesitate  to wax  longiloquent  simply  to  hear  its  own  words          resonate."   In re San Juan  Dupont Plaza Hotel Fire  Litig., 989                       _______________________________________________          F.2d 36, 38 (1st Cir. 1993).  That wise adage is fully applicable          here.   Accordingly, we affirm  the entry of summary  judgment in                                          2          the IRS's favor  for substantially the reasons  elucidated in the          opinion below.                    Withal, we add  one flourish.   In the district  court,          appellant  essayed only  a  fleeting  reference  to  the  Chevron                                                                    _______          principle.   See Chevron U.S.A. Inc. v. Natural Resources Defense                       ___ ___________________    _________________________          Council, Inc., 467 U.S. 837  (1984).  On appeal, the Commissioner          _____________          makes Chevron the centerpiece  of his argument.  This is both too                _______          late and too little.                    In the first  place, it is our settled  rule that legal          theories   not   developed   in  the   trial   court   cannot  be          splendiforously unveiled on  appeal.  See Teamsters,  Chauffeurs,                                                ___ _______________________          Warehousemen and Helpers Union, Local No. 59 v. Superline Transp.          ____________________________________________    _________________          Co., 953 F.2d 17,  21 (1st Cir. 1992).  In  the second place, the          ___          Chevron  principle does not apply "to agency litigating positions          _______          that  are   wholly  unsupported   by  regulations,  rulings,   or          administrative practice."   Bowen v. Georgetown Univ.  Hosp., 488                                      _____    _______________________          U.S. 204, 212 (1988); accord United States v. 29 Cartons of * * *                                ______ _____________    ___________________          An Article  of  Food,  987  F.2d  33, 38  n.6  (1st  Cir.  1993).          ____________________          Consequently, it would  be wholly inappropriate for  us to defer,          as appellant importunes, to what  strikes us as nothing more than          a position of convenience.  In  all events, to win our allegiance          an administrative agency's  statutory interpretation must "flow[]          rationally  from  a  permissible construction  of  the  statute,"          Strickland v. Commissioner,  Me. Dep't of  Human Servs., 48  F.3d          __________    _________________________________________          12, 17 (1st Cir. 1995), and cannot be "`arbitrary, capricious, or          manifestly  contrary  to the  statute.'"    id. at  18  (citation                                                      ___                                          3          omitted).  Appellant's interpretation of  P.R. Laws Ann. tit. 26,            1914 fails this test.                    We need  go no further.   The judgment of  the district          court must be summarily affirmed.  See 1st Cir. Loc. R. 27.1.                                              ___          Affirmed.          Affirmed.          ________                                          4
