Bonus principle: Legal issues are important. They need to be resolved. Especially when they're relevant to multiple cases. I'm down with that too.
So David Traschel, a longshoreman in Portland, slips on a ship -- say that three times fast -- and hurts his shoulder. He has surgery and misses six weeks of work before coming back. So he's entitled to a compensation award (like worker's comp) under the Longshore and Harbor Workers’ Compensation Act (the "LHWCA"). Yep. We all agree on that.
The only lingering issue after the trial court's ruling is how precisely we calculate this award. Here's the issue on appeal:
"The LHWCA provides that Trachsel’s average daily wage, on which compensation is based, should be calculated by dividing his total annual salary in the year preceding his injury by the number of days he was employed in that year. 33 U.S.C. § 910(a). The ALJ included unworked paid holidays in the number of days Trachsel was employed, which resulted in a lower award than Trachsel would have received had those days not been included. The Benefits Review Board (“BRB”) affirmed and Trachsel petitions for review, arguing that the ALJ erred by including unworked paid holidays."
I can see why that's a difficult issue, and there are indeed arguments on both sides. One side says that paid holidays are essentially work days because you were paid. The other side says that paid holidays aren't work days because you didn't work. Fair enough.
The Ninth Circuit ultimately agrees with the ALJ. Seems entirely plausible and reasonable, and I've got no substantive objection on the merits.
But here's the thing. I knew from the Ninth Circuit's opinion what the legal issue was about, and presumably why it mattered, but I also had a keen sense that it didn't matter much. Traschel was only injured for six weeks, after all, and presumably was paid roughly (though not exactly) the same on paid holidays as on the days he actually worked. So how much are we talking about here?
You can't figure that out at all from the opinion, so I went and read all three briefs. Which also do not precisely tell you how much's at stake. But I can figure it out. 'Cause Traschel's lawyer says that the ALJ awarded $1365.75 a week with the paid holidays included, whereas everyone agrees that the actual number is $1427.00 a week if they're left out. And remember that we're only talking about six weeks of injury, with no disputes about permanent damages, etc.
So the difference is exactly $61.25 a week. Times six weeks. For a whopping $367.50.
That's what the whole appeal is about. $367.50.
Which is less than the filing fee for a Ninth Circuit appeal. Or the plane tickets for even one of the panel members (much less the attorneys) to Portland for the oral argument. Or even the cost to print the opinion in the pages of the Federal Appellate Reports!
Which made me think: Why is anyone doing this?! Why is Traschel filing the appeal (other than for principle, attorney fee, or other non-rational or socially deleterious reasons)? Why is Rogers Terminal opposing it (ditto)? Why even bother to resolve it?!
Yes, yes, I know, we can't just refuse to hear an issue just because there's virtually nothing at all at stake, or at least nothing that's not totally swamped by the transaction costs of the resolution. But we can't mediate these things? Split the freaking difference? It's Three Hundred And Sixty Seven Dollars (and Fifty Cents), for goodness sake. We can't find some way to work this out in a manner that doesn't involve two lawyers briefing the thing, multiple law clerks reading the thing, and three Article III judges participating in oral argument and writing an opinion? Really?!
Heck, I figure the time I spent even reading the thing resulted in an opportunity cost that was greater than the value of the whole case. Even at my absurdly low hourly rate.
There's got to be some way to do these things better. Though I admit that I can't come up with it at the outset. When only money is at stake, and the amount is, say, in two or three figures, it seems reasonable to me to say something like: "We'll totally hear your appeal, of course. But the side that ends up losing will have to pay triple costs, okay?" Seems to me like that would be a possible solution -- one that would either bring the parties to the table or result in the proper party paying for the deadweight social costs incurred by pretty darn marginal litigation.
Which is not to diminish the non-frivolous nature of the issue at hand. Again, both sides had a reasonable argument. But when you've got $367.50 at stake, I can't imagine that there's not a better way to resolve the dispute than by filing and resolving a full-blown appeal.
At a minimum, next time you've got a $300 case, and are thinking about filing an appeal with the Ninth Circuit, send me an e-mail. I might well just write you a check. If only to avoid wasting an hour of my time reading the opinion and whining about why your decision to appeal is far from the most rational social use of legal resources in the history of mankind.
