Cite as: 521 U. S. 121 (1997)
Opinion of the Court
2. Although the Ninth Circuit adopted the correct legal standard, it erred in directing entry of a nominal award based on its own appraisal of the evidence, rather than remanding the case to the ALJ for further findings of fact. Since the ALJ is the factfinder under the Act, see §§ 21(b)(3), (c), it is the ALJ's duty, not the Court of Appeals's, to consider whether a future decline in Rambo's earning capacity is sufficiently likely to justify nominal compensation. The ALJ failed to do so. Pp. 138-141.
81 F. 3d 840, vacated and remanded.
Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Kennedy, Ginsburg, and Breyer, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined, post, p. 141.
Robert E. Babcock argued the cause and filed a brief for petitioner.
Malcolm L. Stewart argued the cause for the federal respondent. With him on the brief were Acting Solicitor General Dellinger, Deputy Solicitor General Kneedler, J. Davitt McAteer, Allen H. Feldman, Nathaniel I. Spiller, and Scott Glabman. Thomas J. Pierry III argued the cause for respondent Rambo. With him on the brief was Thomas J. Pierry.*
Justice Souter delivered the opinion of the Court.
This case under the Longshore and Harbor Workers' Compensation Act is before us a second time, now raising the question whether the Act bars nominal compensation to a worker who is presently able to earn at least as much as before he was injured. We hold nominal compensation proper when there is a significant possibility that the worker's wage-earning capacity will fall below the level of his preinjury wages sometime in the future.
*Briefs of amici curiae urging reversal were filed for the National Association of Waterfront Employers et al. by Charles T. Carroll, Jr., F. Edwin Froelich, and Franklin W. Losey; and for the National Steel and Shipbuilding Co. by Alvin G. Kalmanson and Roy D. Axelrod.
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