Amicus Brief — Kalaris v. Donovan

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

ISMENE M. KALARIS,

Administrative Appeals Judge, and

JULIUS MILLER,

Administrative Appeals Judge,

Petitioners,

v.

RAYMOND J. DONOVAN,

Secretary of Labor,

MALCOLM R. LOVELL, JR.,

Under Secretary of Labor, and

ROBERT L. RAMSEY,

Chief Administrative Appeals Judge,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

er

Tuomas C. FiTznHuau, Il

815 Walker Avenue

1600 Mellie Esperson Building

Houston, Texas 77002

(713) 223-1415

STEPHEN M. VAUGHAN

21st Floor, 806 Main Building

Houston, Texas 77002

(713) 228-1521

Amici Curiae

Alpha Law Briel Co, Inc--5006 Parkersburg-Houston, Texas 77036--213-3003

—_

Vil

TABLE OF CONTENTS

MOTION TO FILE BRIEF OF AMICI CURIAE ......

QUESTIONS PRESENTED .........ccsccccccccccees

BRIEF OF AMICI CURIAE .........ccccsseeceeeeees

INTEREST OF THOMAS C. FITZHUGH, III AND

STEPHEN M. VAUGHAN ........cscccesevcvors

ARGUMENT: REASONS FOR GRANTING THE WRIT

I. The Decision Below Denies Party Litigants Under

the LHWCA Due Process of Law .............-

II. The LHWCA As Construed Violates The Due

PIO, Ce ore is ee RNa ec heruleoreveveres

III. The LHWCA As Construed Violates The Separa-

tion of Powers Doctrine ..........5:eeeeeceees

TV. The Decision Below Conflicts With The LHWCA

And Decisions Of Other Circuit Courts Constru-

See TRAE DOMED on ccc cccccscvscccensoeceevers

CONCLUSION .nncccccccccscscccvcvccssvcsccceseces

TABLE OF AUTHORITIES

CASES

Association of National Advertisers v. FTC, 201 U.S. App.

D.C. 165, 627 F.2d 1151 (D.C. Cir. 1979), cert. denied,

MF GR. GEE CURD ovcbn ccc cekctecctsnpesseensies

Boating Industries Association v. Marshall, 601 F.2d 1376,

1362 (Othe Car. 1979) cccvcccccesccoscsvccccsvececes

Church v. Donovan, Civil No. H-83-70, D. Conn. ........

Cinderella Career and Finishing Schools v. FTC, 138 USS.

App. DC. 152, 425 F.2d S63 (1970) ..ccccccccvsens

Director, OWCP v. Eastern Coal Corporation, 561 F.2d 632

CGE CH, IGT) ccccccccnccccaceccdcvvesteccveveces

Director, OWCP v. Perini North River Association, __US.

9 108 S.Ct. 634 (1983S) .nccccccccvccvcsccccecees

Director, OWCP v. Rasmussen, 440 U.S. 29 (1979) .....

Hudson v, Donovan, No, G-83-31, S.D. Texas, Galveston

PUR pakknnnas oincudees bashes baeeu as cues s abet ae

Ingalls Shipbuilding v. White, 681 F.2d 275 (Sth Cir. 1982)

Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123

EUUUED -.ncdcbetonscukansetedcucaeus nbepe sence neers

Kalaris v. Donovan, 697 F.2d 376 (D.C. Cir. 1982) ....

Marshall v. Jerrico, Inc., 446 U.S. 238 (1980) .........

Page

Page

VIII

CASES

ath Marine Terminal Co. v. Caputo, 432 US. 249

DOPED. vb. dneevvdpeddnonneverrseeenebertarcnes eee

P. C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979) ..........

Potomac Electric Power Co. v. Director, OWCP, 449 US.

ZOD CISOED icdacasG ae reas ends cdehesh ene ee seh aSs

Shahady v. Atlas Tile & Marble Co., 673 F.2d 479 (D.C.

CA. CRE. wavenscosevdesresees Perr eT ere

Silliman v. Donovan, No. C-830991RPA, N.D. Cal.......

Tumey v. Ohio, 273 U.S. 510 (1927) 2... cece cece eeeeee

Underhill v. Peabody Coal Co., 687 F.2d 217 (7th Cir.

MS cass Le caxsn ads ecsacandedusridentadvensans

United Farm Workers of America, AFL-CIO v. Arizona

Agricultural Employment Relations Board, 696 F.2d 1216

SG, SUD -bndvaanererhrectaces csacousnessacs

United States Industries v. Director, OWCP, 455 U.S. 608,

SUS DAR, BFGe CORSE) cccsccccesceesccsonsseccvese

Wiener v. United States, 357 U.S. 349, 356 (1958) .....

UNITED STATES CONSTITUTION

I WE cic Peale re ey RA RT RRO S ERE Ee RAL

eee, OD oa ec vlna bee atan sc eee nee ben nnewe

STATUTES

Defense Base Act, 42 U.S.C. § 1651 et seg. (1976 and

Supp. TV 1980) ......ccccccsccccccccccccvccssecers

District of Columbia Workers’ Compensation Act, 36 D.C.

Code § 501 et seg. (1981) ....ccecccccecceerceeeeces

Longshoremen’s and Harbor Workers’ Compensation Act,

33 U.S.C. § 901 et seg. (1976 and Supp. V. 1981) ....

SB Ws BOE. ee ceases ianVesseecuns yesds cuenrenens

33 USL. SOOB(EH (AD) on cccccccccccsevescvcsesvcsere

BD USE. BHD cccecccserecdoccssvcccevevnevceses

B5 ios ns Sodio betn vasa Kanereuaeses

SE TB BONS ches dvenicodvesdcctsnccee:» -seesve

53 USC. SOZU(D)E) cccccccvscccccsccvccccccccvcce

Nonappropriated Fund Instrumentalities Act, 5 U.S.C.

§ 8171 et seq. (1976 and Supp. V 1981) ......eeeeeees

Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq.

(1976 and Supp. IV 1980) ......ce cee ce ec eeeeen ees

REGULATIONS

20 C.F.R. § 702.147(b) (1982) .... cece cece eeeeneees

MISCELLANEOUS

Ariz. Rev. Stat. Ann. §§ 23-1386 to 23-1391 (Supp. 1981)

K. Davis, Administrative Law of the Seventies (1976)

CEG GE TIDE Saxccccccccctcccvcessaveccsivassees

NO.

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1982

ISMENE M. KALARIS,

Administrative Appeals Judge, and

JULIUS MILLER,

Administrative Appeals Judge,

Petitioners,

Vv.

RAYMOND J. DONOVAN,

Secretary of Labor,

MALCOLM R. LOVELL, JR.,

Under Secretary of Labor, and

ROBERT L. RAMSEY,

Chief Administrative Appeals Judge,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICI CURIAE

INTEREST OF THOMAS C. FITZHUGH, III

AND STEPHEN M. VAUGHAN

Amici curiae are attorneys licensed to practice law in

the State of Texas, and each has practiced in that state

in the City of Houston for the past several years. During

2

that period, much of their practice has been involved in

cases arising under the Longshoremen’s and Harbor

Workers’ Compensation Act (hereafter LHWCA), 33

U.S.C. 901 et seq., and its various extensions.’

Amicus Fitzhugh has been involved exclusively in de-

fense of claims brought under the LHWCA by represent-

ing employers, insurance carriers, and self-insured em-

ployers. Amicus Vaughan’s experience has been primarily

concerned in representing claimants. Therefore, amici

curiae have been involved on both sides of such proceed-

ings and are often adversaries in cases arising under the

LHWCA.

Due to their extensive experience amici curiae have in

regard to the operation of the LHWCA, and each has par-

ticipated several times as lecturers to national conferences

on the LHWCA, and each is recognized as a legal expert

in that area of the law. Amici curiae have a compelling

interest in the orderly administration of claims under the

LHWCA. Amici curiae strongly contend that public policy

reasons support the Petitioners in this case.

Petitioners have cogently presented to the Court the

statement of the case, the questions presented, and have

set forth the jurisdiction of this Court, along with the

Constitutional provisions, statutes, and regulations in-

volved in this matter. Amici curiae fully agree with the

propositions presented by Petitioners for granting review

1. Defense Base Act, 42 U.S.C. § 1651 et seg. (1976 and Supp

IV 1980); Nonappropriated Fund Instrumentalities Act, 5 U.S.C.

§ 8171 et seq. (1976 and Supp. V 1981); Outer Continental Shelf

Lands Act, 43 U.S.C. § 1331 et seg. (1976 and Supp. IV 1980);

District of Columbia Workers’ Compensation Act, 36 D.C. Code

§ 501 et seq. (1981).

3

in this case. However, significant factors which impact

amici curiae and others involved in the daily administra-

tion of claims arising under the LHWCA should be con-

sidered in the resolution of this controversy by this Court.

ARGUMENT: REASONS FOR GRANTING

THE WRIT

The Decision Below Denies Party Litigants Under

the LHWCA Due Process of Law

The decision below stands for the proposition that

Administrative Appeals Judges of the Benefits Review

Board can be summarily dismissed without cause or with-

out a hearing. If this decision stands, it will render the

Administrative Appeal Judges accountable solely to the

Secretary of Labor.’ Allowing the Secretary (hereafter

“the Secretary”) such direct influence over the Bene-

fits Review Board deprives litigants before the Board

(which often includes the Secretary) of the fair and im-

partial consideration of their cases in this judicial setting

guaranteed them by the Due Process Clause.

The LHWCA extends benefits to a vast and varied

group of American workers. In addition to Longshore-

men and shipyard workers, the Act, through its exten-

sions, applies, inter alia, to the members of the peacekeeping

force in the Sinai desert, to civilian employees of defense

contractors working abroad, to most of the workers drill-

ing for oil and gas on the outer continental shelf, to

commissary and club employees on all United States

2. Kalaris v. Donovan, 697 F.2d 376, at 388, n.45; at 391, n.60;

at 397, n.87 (D.C. Cir. 1983).

4

military bases, and to the workers of the District of

Columbia.’ The financial impact of the LHWCA is like-

wise significant. For example, a 23 year-old offshore

worker earning $1,000 per week, if totally and perma-

nently disabled, would receive more than $7,291,795

if he lived to his projected life expectancy.‘ If his wife

(same age) survived his death and lived her normal life

expectancy, she could receive an additional $1,878,318

in compensation benefits alone.” The LHWCA would

also provide the injured worker with medical treatment

for life,’ and an allowance for funeral benefits would

be paid upon his death.’ The value of the claims that

could be filed by this one offshore worker approaches

$10 million. With hundreds of thousands of employees

covered by the LHWCA, the impact of biased decisions

from the Benefits Review Board can readily be seen.

At oral argument, Judge Wald questioned the govern-

ment’s counsel regarding the government’s position. Specifi-

cally, she asked whether the Secretary could remove Board

members following rendition of a decision the Secretary

considered unacceptable. The government’s attorney re-

sponded that the Secretary would have that power. Judge

Wald then asked if the Secretary could direct Board

members to reach a certain result prior to hearing a case.

Again the government’s attorney indicated that the Secre-

tary should have this power. The opinion of the court

below leaves no doubt that the Secretary, by utilizing the

Id.

33 U.S.C. § 908(c) (21), § 910(f).

Id., § 909(b), § 910(f).

Id., § 907.

Id., § 909(a).

~O wesw

5

power to remove, has the direct power to influence the

decisions of the Benefits Review Board.” Thus, the Bene-

fits Review Board, as viewed by the court below, has no

independence, but is simply an extension of the Secretary.

In reaching this conclusion, the court specifically did not

decide the due process problem that would arise from

claims of unfairness made by parties litigating before

the Board.°

Amici curiae, on the other hand, are directly affected,

as are their clients, by the potential unfairness in such a

situation.

The Secretary of Labor, through his delegatee, the

Director, OWCP, has the right by statute and by regula-

tion to participate in proceedings before the Benefits

Review Board.’° As a result of the court below’s decision,

the Secretary also has the right to control the outcome of

decisions of the Board. The bias in this arrangement is

patent and obvious. The situation created by these results

should not be allowed to stand. It is more egregious than

the system which the Ninth Circuit found denied due

process in United Farm Workers of America, AFL-CIO

v. Arizona Agricultural Employment Relations Board,

696 F.2d 1216 (9th Cir. 1983).

The Arizona Agricultural Employment Relations Board

(AERB)" was composed of members appointed by the

8. “(W]e find that Congress did not intend to make the Board

independent of the Secretary [of Labor].” Kalaris v. Donovan, 697

F.2d 376, 381; 391, n.60 (D.C. Cir. 1983).

9. Id. at 399, “The removed members have not raised and could

not raise due process allegations here because they cannot be subject

to potential unfairness in adjudication the process protects against.”

n.91.

10. E.g., 20 C.F.R. § 702.147(b).

11. Ariz. Rev. Stat. ANN. §§ 23-1386 to 23-1391 (Supp. 1981).

6

governor. The state act specified that two members would

be appointed as representatives. of employers, two would

represent unions, and three would represent the general

public. The United Farm Workers contended the com-

position of the AERB was unconstitutional in that having

employer representatives on the AERB would make them

biased against the United Farm Workers and deprive it of

an impartial tribunal in any cases it might bring to the

board. The Ninth Circuit held the state act unconstitu-

tional on its face “because we conclude that the act’s

requirement that the AERB contain members who repre-

sent labor and employer interests deprives parties of the

impartiality required of the due process clause.”’* Relying

on Tumey v. Ohio, 273 U.S. 510 (1927), the court con-

cluded:

“{T]hat unconstitutional bias exists whenever favor-

itism or animosity toward a party, or purely personal

interests of the decision maker, might tempt the de-

cision maker to decide on the basis of his feelings

toward a party or his purely personal interests.”

(Footnote omitted). (Emphasis supplied).

The scheme struck down by the Ninth Circuit involved

a board composed of a variety of interests, any one of

which might have been biased. The composition of the

Benefits Review Board, as interpreted by the court below,

is far more invidious in its potential for abuse. In the

scheme resulting from the decision below, not only is the

Secretary permitted to retain his role as an advocate

before the Board, but he is freely allowed to dictate the

12. 696 F.2d at 1219.

13. Jd. at 1220,

7

decision of the Board, regardless of its impact on other

parties.

This Court has frequently interpreted the 1972 Amend-

ments to the LHWCA." In those cases, it has permitted

the Director, OWCP, to participate in the arguments of

the cases before it.’° In some instances, the Director

directly opposed the result reached by the Board, and in

other circumstances the Director supported the Board’s

decisions.’ This clearly demonstrates that the interests

of the Director have not in the past been synonymous

with the decisions of the Board. However, should the

decision reached below stand, these interests would be-

come synonymous, as Board members would have the

“sword of Damocles”’ hanging over their head should

they decide cases contrary to the position set out by the

Director and adopted by the Secretary.

The Court of Appeals overlooked its own carefully

drawn distinction concerning impartiality for rulemaking

purposes and impartiality for adjudicatory purposes cre-

ated in Association of National Advertisers v. FTC."*

14. E.g., Director, OWCP v. Perini N. River Assocs., US.

ee S.Ct. 634 (1983); United States Industries v. Director,

OwcP, 455 U.S. 608, 102 S.Ct. 1312 (1982); Potomac Elec. Power

Co. v. Director, OWCP, 449 U.S. 268 (1980); P. C. Pfeiffer Co. v.

Ford, 444 US. 69 (1979) ; Director, OWCP v. Rasmussen, 440 US.

29 (1979); Northeast Marine Terminal Co. v. Caputo, 432 US.

249 (1977).

15. Id.

16. Id.

17. Wiener v, United States, 357 U.S. 349, 356 (1958). See also

K. Davis, Administrative Law of the Seventies (1976), § 1.09

at 13-14.

18. 201 U.S. App. D.C, 165, 627 F.2d 1151 (1979), cert. denied,

447 US, 921 (1980).

8

There is no dispute that the Benefits Review Board is

purely an adjudicatory body. The court below also ig-

nored its holding in Cinderella Career and Finishing

Schools v. FTC’® in which it held that the test for dis-

qualification in an adjudicatory proceeding was:

“Whether a disinterested observer may conclude that

{the agency] had in some measure adjudged the facts

as well as the law of a particular case in advance of

hearing it.”*”

Such advance judgment of the facts and laws by the

judges of the Benefits Review Board, as mandated by

the Court below, is precisely the situation created by

the Court of Appeals decision. Amici curiae stand be-

fore the Court to represent those parties who will par-

ticipate in claims before the Benefits Review Board and

who will not have an impartial tribunal to adjudicate

their disputes.

The fundamental principle of the decision below is that

the Secretary of Labor can dictate the results of cases

to be decided by the Benefits Review Board. This is con-

stitutionally impermissible, and the decision below ad-

versely affects the rights of the litigants before the Board

to an impartial hearing and to the due process of law

afforded by the Constitution of the United States.”

19. 138 U.S. App. D.C. 152, 425 F.2d 583 (1970).

20. United Farm Workers of America, AFL-CIO v. Ariz. Agr.

Empl. Rel. Bd., 696 F.2d 1216, 1221 (9th Cir. 1983).

21. United States Constitution, 5th Amendment.

9

Il.

The LHWCA As Construed Violates The

Due Process Clause.

This Court discussed due process requirements in en-

forcing a federal statute in Marshall v. Jerrico, Inc., 446

U.S. 238 (198°. Writing for an unanimous court, Justice

Marshal! concluded:

“The due process clause entitles a person to an

impartial and disinterested tribunal in both civil

and criminal cases. The requirement of neutrality in

adjudicative proceedings safeguards the two central

concerns of procedural due process, the prevention

of unjustified or mistaken deprivations and that pro-

motion of participation affected individuals in the

decision-making process. [Cit. omitted] The neutral-

ity requirement helps to guarantee that life, liberty,

or property will not be taken on the basis of an

erroneous or distorted conception of the facts or the

law. [Cit. omitted] At the same time, it preserves

both the appearance and reality of fairness, ‘gener-

ating the feeling, so important to a popular govern-

ment, that justice has been done.’ Joint Anti-Fascist

Committee v. McGrath, 341 U.S. 123 (1951)

(Frankfurter, J., concurring), by insuring that no

person will be deprived of his interests in the

absence of a proceeding in which he may present

his case with assurance that the arbiter is not pre-

disposed to find against him. The requirement of

neutrality has been jealously guarded by this

Court.”** (Emphasis supplied. )

The interpretation of the Act given by the court below

creates an impermissible and biased situation in the ad-

ministration of the Act. The Act gives the Secretary,

22. 446 US. at 242.

10

who has delegated the authority to the Director, Office

of Workers’ Compensation Programs, the right to partici-

pate in proceedings before the Board. This right has

been further recognized by the Courts of Appeals as an

absolute right of the Director, as the Secretary’s delegatee,

to intervene in cases that involve interpretation of the

Act, e.g., Ingalls Shipbuilding v. White, 681 F.2d 275

(Sth Cir. 1982); Shahady vy. Atlas Tile & Marble Co.,

673 F.2d 479 (D.C. Cir. 1982). This Court has fre-

quently discussed the status of the Director as a proper

party in litigation. Most recently this issue was addressed

in Director, OWCP v. Perini North River Assocs. (here-

after “Churchill” ).*°

III.

The LHWCA As Construed Violates The

Separation of Powers Doctrine.

In Churchill the Court discussed situations in which

the Director, OWCP, and the Benefits Review Board took

differing views of important questions involving interpre-

tation of the LHWCA.”* The recognition of such dif-

fering views is strong evidence that this Court considers

the Board independent of the Director. If, as the

court below suggests, the Benefits Review Board is

nothing but an extension of the Secretary, this Court

and other appellate courts could not become involved

in deciding disputes between the Director and the

Benefits Review Board, for to do so would be to in-

volved in deciding disputes between the Director and

the Benefits Review Board for to do so would be to in-

ject the judicial system into the midst of an administra-

23. USS. , 103 S.Ct. 634 (1983).

24. Id., at 640, n.11.

11

tive squabble among officers of the same cabinet de-

partment. The fact that this Court’s opinion in Churchill

was published eight days after the court below’s decision

may be viewed as effectively vitiating the interpretation

of the relationship of the Benefits Review Board to the

Secretary of Labor contained in that decision. The

court below’s position would place the Secretary not only as

a participant in litigation through the Director, OWCP’s

office, but would also allow him to be the judge of his own

issues by directly influencing the decisions of the Board.

The party litigants—the injured workers, their em-

ployers and insurers, the parties whose financial (i.e.

property) rights are at issue—would be mere spectators

to Board actions and would have the results dictated

without any independent adjudication of the issues in

their various cases.

If such a situation existed, there would be no standing

for the Director to appeal decisions of the Board he

considered adverse, nor would any justiciable controversy

be presented to any court for resolution. One office

inside the Department of Labor would simply be dis-

agreeing with another office inside the Department of

Labor, all under the control of the Secretary. This

cannot be the result Congress intended. Nor, as one

surveys the cases which have developed under the

amended statute, can one conceive such results were

contemplated or considered by any of the courts which

have faced the issue squarely. However, that result is the

only outcome if the decision below is permitted to stand.

The decision below has prompted a series of lawsuits

by parties involved in LHWCA litigation.”* These suits

25. Hudson v. Donovan, No. G-83-31, S.D. Texas, Galveston

Div’n; Church v. Donovan, Civil No. H-83-70, D. Conn.; Silliman

v. Donovan, No. C-830991RPA, N.D. Cal.

12

challenge the attempted removal of the appellants on

grounds that such action violates the due process rights

of party litigants who appear before the Benefits Review

Board. By granting the writ in this case, the Court could

effectively terminate additional litigation on this point

and could conclusively establish the rights of party liti-

gants to a fair and unbiased hearing before the Benefits

Review Board. More importantly, if litigants lose con-

fidence in the impartiality of the Benefits Review Board,

appeals of its decisions to the overloaded Courts of

Appeals and to this Court will inevitably increase.

IV.

The Decision Below Conflicts With The LHWCA

And Decisions Of Other Circuit Courts

Construing That Statute.

In legal proceedings, the Benefits Review Board has been

treated as a separate entity from the Secretary of Labor.**

The Secretary, acting through the Director, OWCP, has par-

ticipated in proceedings before the Board advocating the

views of the Secretary. On several occasions the Director,

dissatisfied with the decision of the Board, has petitioned

for review in the Circuit Courts of Appeals.*” In some cir-

cuits the Director has been given automatic standing to

participate in appeals from decisions of the Benefits Re-

view Board. Viz., Ingalls v. White, 681 F.2d 275 (Sth

Cir. 1982); Shahady v. Atlas Tile & Marble Co., 673 F.

2d 479 (D.C. Cir. 1982); Director, OWCP v. Eastern

26. See notes 13-15, supra.

27. Eyg., Ingalls v. White, 681 F.2d 275 (Sth Cir. 1982); Shahady

v. Atlas Tile & Marble Co., 673 F.2d 479 (D.C. Cir. 1982).

13

Coal Corp., 561 F.2d 632 (6th Cir. 1977); Underhill v.

Peabody Coal Co., 637 F.2d 217 (7th Cir. 1982).

In Director, OWCP v. Rasmussen, 440 U.S. 29 (1979),

the Director disagreed with the Benefits Review Board’s

position that death benefits were not subject to maximum

compensation limits contained in the Act. The Court of

Appeals and this Court agreed with the Benefits Review

Board, rejecting the arguments of the Director.

The court below views the Board as not independent

of the Secretary. However, this Court in U. S. Indus-

tries v. Director, OWCP, U.S , 102 S.Ct. 1312

(1982), Rasmussen, supra, and most recently in Churchill

has viewed the Board as independent of the Secretary

and of the Director.

The District of Columbia Circuit now clearly conflicts

with the view of the Ninth Circuit, which has held;

“neither the Secretary of Labor nor the OWCP can dic-

tate to the Benefits Review Board the manner in which

the [Act] should be interpreted . . . nor [can the Sevretary

determine] the outcome of [the claims] process.” Boating

Industries Association v. Marshall, 601 F.2d 1376, 1382

(9th Cir. 1979). Such a result is strengthened by refer-

ence to the terms of the statute itself. Section 921(b) (4)

states that:

the Board may, on its own Motion or at the request

of the Secretary, remand a case to the hearing ex-

aminers for further appropriate action. The consent

of the parties in interest shall not be a prerequisite

to a remand by the Board. (Emphasis supplied. )**

28. 33 U.S.C. § 921(b)(4) (1976 and Supp. V. 1981).

14

The court below acknowledged that this section was ger-

mane to determining “whether the Board is free from sub-

stantive agency oversight or review.”*’ However, the court

below was concerned with the Article III vel non status

of the Benefits Review Board judges and not with the due

process rights of party litigants.*°

CONCLUSION

To permit the Secretary of Labor to remove a majority

of the Benefits Review Board without cause and without

a hearing is to permit the Secretary to directly influence

the Board and its decision making process. Such a move,

which is not countenanced by the statute, directly in-

terferes with the rights of party litigants to a fair and

impartial adjudication of their disputes by the Benefits

Review Board. The sword of Damocles hangs over the

head of Board members and, as the court below indicated,

will render them totally susceptible to the direction of the

Secretary. Thus party litigants are left to appeal to a

kangaroo court, one in which the Secretary not only

appoints the judges, but participates as a party in interest

and then dictates the results. This is hardly justice and

certainly not the due process to which party litigants are

entitled.

29. Kalaris v. Donovan, 697 F.2d 376, 388, n.45 (D.C. Cir.

1983).

30. /d., 697 F.2d at 399, n.91.

15

WHEREFORE, PREMISES CONSIDERED, amici

curiae respectfully request the Court to grant the Petition

to the Court of Appeals, to reverse its judgment, and then

affirm the judgment of the District Court.

Respectfully submitted,

Tuomas C. FiTzHuGuH, III

815 Walker Avenue

1600 Mellie Esperson Building

Houston, Texas 77002

(713) 223-1415

STEPHEN M. VAUGHAN

21st Floor, 806 Main Building

Houston, Texas 77002

(713) 228-1521

Amici Curiae

May, 1983