Petitioners Brief — Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding & Dry Dock Co.

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No. 93-1783 NOV 8 34 i

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In the Supreme Court of the United States

OCTOBER TERM. 1994

DIRECTOR, OFFICE OF WORKERS’ COMP!

PROGRAMS, UNITED STATES DEPARTMENT OF I.

PETITIONER

NEWPORT NEWS SHIPBUILDING AND DD)

Dock COMPANY. ET Al

ON WRIT OF CERTIORAR

TO THE UNITED STATES COURT ©)

FOR THE FOURTH CIRC

BRIEF FOR THE PETITIONER

DREW'S. Days. III

Nolicitor Ge?

THOMAS S. WILLIAMS, JR

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

LAWRENCE G. WAL!

Deputy Solicitor Gen

BETH S. BRINKMAN?

Assistant toy Thre A

STEVEN J. MANDEL General

Deputy Associate Solicitor Lie partme nt of Just

MARK S. FLYNN Washington, D.C

Senior Appellate Attorney 202) 314-2217

Department of Labor

Washington, D.C. 20210

BEST AVAILABLE COP

QUESTION PRESENTED

Whether the standing of the Director, Office of

Workers’ Compensation Programs in the United States

Department of Labor, to petition the courts of appeals for

review of a decision of the Benefits Review Board under

Section 21(c) of the Longshore and Harbor Workers’

Compensation Act, 33 U.S.C. 921(c), is limited to issues

that affect the Director’s pecuniary interest or disrupt a

specific administrative function.

(I)

II

PARTIES TO THE PROCEEDINGS

The Director of the Office of Workers’ Compensation

Programs in the United States Department of Labor

was the petitioner in the proceeding below. The

employer, Newport News Shipbuilding and Dry Dock

Company, was the respondent, and Jackie Harcum was

designated the claimant.

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Argument:

The standing of the Director of the Office of Workers’

Compensation Programs to petition for judicial review

of decisions by the Benefits Review Board is not limited

to decisions that affect the Director’s pecuniary interest

or disrupt her performance of specific administrative

EEE ESN

A. The text and structure of the Longshore and Harbor

Workers’ Compensation Act indicate that Congress

gave the Director a stake in claim adjudications

and vested her with standing to obtain judicial

review of erroneous Benefits Review Board

IRI e

1. The Act confers broad adminstrative and en-

forcement duties on the Director . .

2. Congress imposed specific duties on the Director

with regard to the claims adjudication process and

assisting disabled employees, which also give the

e .

B. The history of the Act confirms Congress’s intention

to confer on the Director standing to seek judicial

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Cases:

IV

TABLE OF AUTHORITIES

Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S.

K 0 ( 15

American Ship Bldg. Co. v. Director, OWCP, 865 F. 2d

IL ae ee en 16

Bell v. New Jersey, 461 U.S. 773 (1983) . . 28

Boudreaux v. American Workover, Inc., 680 F.2d 1034

(5th Cir. 1982), cert. denied, 459 U.S. 1170 (1983) ......... 16

Coleman v. Miller, 307 U.S. 433 (1939) . 15

Columbia Gas Systems Inc., In re, 33 F.2d 294 (3d Cir.

BOG) —— —wwæ . ] ). 25

Curtis v. Schlumberger Offshore Serv., Inc., 849 F.2d 805

Ae 20, 21

FINL cccccccnntsnncetvindenatintneeitatnn 15

Director, OWCP v. Alabama By-Products Corp., 560

if bh: lL, x ae ee eee 30

Director, OWCP v. Bethlehem Steel Corp., 949 F.2d 185

Geli x A 19, 22

Director, OWCP v. Donzi Marine, Inc., 586 F. 2d 377

Genie 9, 20, 22

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

0 centnccacessecteedinneeseeaae 14-15, 20, 25, 27, 30

Director, OWCP v. General Dynamics Corp. 982 F. 2d

III. 0 et eer NS 16

Director, OWCP v. National Mines Corp., 554 F.2d 1267

II. c ae 30

Director, OWCP v. National Van Lines, Inc., 613 F. 2d

972 (D.C. Cir. 1979), cert. denied, 448 U.S. 907 (1980) 19

Director, OWCP v. Newport News Shipbuidling & Dry

Dock Co., 676 F.2d 110 (4th Cir. 1982) ... . 9

Director, OWCP v. Peabody Coal Co., 554 F.2d 310

aneh. r 30

Director, OWCP v. Perini N. River Assocs., 459 U.S.

960 — 8 20, 21

V

Cases Continued: Page

Director, OWCP v. Rochester & Pittsburgh Coal Co.,

e 20, 30

Donovan v. University of Texas at El Paso, 643 F. 2d 1201

T a csemecucnes 18

FCC v. Sanders Bros. Radio Station, 309 U.S. 470

% èÜè¼ -( ͤ 25

Flast v. Cohen, 392 U.S. 83 (1968) . .. .. . . 12, 13

Fusco v. Perini N. River Assocs., 601 F.2d 659 (2d Cir.

1979), vacated and remanded on other grounds, 444

U.S. 1028, reinstated on remand, 622 F.2d 1111 (2d Cir.

1976), cert. denied, 449 U.S. 1131 (1981) 20

General Tel. Co. v. EEOC, 446 U.S. 318 (1980) ................. 18

Goldsmith v. Director, OWCP, 838 F.2d 1079 (9th Cir.

0 21

Heckman v. United States, 224 U.S. 413 (1912 18

Henderson v. Glens Falls Indem. Co., 134 F.2d 320 (Sth

Cir.), cert. denied, 319 U.S. 756 (1943) 26

J. T. O. Corp. v. Benefits Review Bd., 563 F.2d 646 (4th

Cir. 1977), reinstating in pertinent part, 542 F.2d 903

(4th Cir. 1976), vacated and remanded, 433 U.S. 904

ZS 10, 20, 27

Ingalls Shipbuilding Div., Etc. v. White, 681 F.2d 275

(5th Cir. 1982), overruled in part on other grounds,

Newpark Shipbuilding & Repair, Inc. v. Roundtree,

723 F.2d 399 (5th Cir.), cert. denied, 469 U.S. 818

Zee 21, 27-28, 30

Kalaris v. Donovan, 697 F.2d 376 (D.C. Cir.), cert. deni-

e Se 26, 27

Krolick Contracting Corp. v. Benefits Review Bd., 558

r .... 30

Linda R. S. v. Richard D., 410 U.S. 614 (1973) ................ 12

Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992) ...... 12, 13

Marchie Tiger v. Western Inv. Co., 221 U.S. 286 (1911) ... 28

Martin v. OSHRC, 499 U.S. 144 (1991) 16-17

Moe v. Confederated Salish & Kootenai Tribes, 425 U.S.

Sew Pe oe are n.

*

R ee AA

VI

Cases—Continued: Page

Mullins Coal Co. v. Director, OWCP, 484 U.S. 135

— * ——p—p—cjp̃ — ũͥ n p A Raey tas: 16

Newport News Shipbuilding & Dry Dock Co. v. Howard,

904 F.2d 206 (4th Cir. 1990) ...........ccsccccccsccerccssesessorseeees 16

Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249

„% ttt 17

Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424

» I tad 18

Potomac Elec. Power Co. v. Director, OWCP, 449 U.S.

2 — ̃ ͤ——̃ ——— 16

Sea-Land Serv., Inc. v. Rock, 953 F.2d 56 (3d Cir.

PR ON See wet a 0 16

SEC v. United States Realty & Improvement Co., 310

a.. a iil 15

Secretary of Labor v. Fitzsimmons, 805 F.2d 682 (7th

/ itil tiie, 18

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

Ne eS ee See 19, 21, 27

Sierra Club v. Morton, 405 U.S. 727 (1972) ............... 12, 13, 25

Stevens v. Director, OWCP, 909 F.2d 1256 (9th Cir.

1990), cert. denied, 498 U.S. 1073 (1991) . . . 7

Stevens v. Lockheed Shipbuilding Co., 22 Ben. Rev. Bd.

Serv. (MB), 155 (1989), rev’d 909 F.2d 1256 (9th Cir.

1990), cert. denied, 498 U.S. 1073 (1991) 6

Thornton v. Brown& Root, Inc., 707 F.2d 149 (5th Cir.

1983), cert. denied, 464 U.S. 1052 (1984) q . 21

United States v. Federal Maritime Comm’n:

, 15

neee. 15

United States ex rel. Chapman v. Federal Power

Comm’n, 345 U.S. 153 (1953) * 15

Valley Forge Christian College v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464

, ͤ W600 12

Voris v. Eikel, 346 U.S. 328 (1953) .. . ...... . .. 18

nee

Vil

Cases—Continued: Page

Warth v. Seldin, 422 U.S. 490 (1975) ..... ...n. 12

Washington Utils. & Transp. Comm’n v. FCC, 513 F.2d

e 25

West Virginia Univ. Hosp., Inc. v. Casey, 499 U.S. 83

HE CS GENS er 29

White v. Ingalls Shipbuilding Div., Litton Sys., Inc.,

12 Ben. Rev. Bd. Serv. (MB) 905 (1980) 28

Zapata Haynie Corp. v. Barnard, 933 F.2d 256 (4th Cir.

laa —————5—5i 16

Constitution, statutes, regulations and rule:

tg § ee 11, 12, 13, 21

Federal Mines Safety and Health Act of 1977, as amended

Black Lung Benefits Act, Pub. L. No. 95-239, 92 Stat.

GB, BO UB.C. SOL „ . ———————..— 3, 17, 28

BD Teele. TED cccccsnccsecescsceccecevsvccccsccesceseccosovesees 30

130 29, 30

Defense Base Act, 42 U.S.C. 1651 ef se.. .. 3

District of Columbia Workmen’s Compsensation Act,

36 D.C. Code 501 et seq. (1973) 3

390 9———5—ð 4

Longshore and Harbor Workers’ Compensation Act,

4 passim

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999 2

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9399 5, 23

1 23

33 U.S.C. 9080) (5 80 f) ...... . .... . . . . . . . 6. 24

0 5, 23

911111 3

9990 3

1 4. 19

993 3, 23

eee 4. 23

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Statutes, regulations and rule Continued: Page Statutes, regulations and rule Continued: Page

33 U.S.C. 914 ——..f̃——⁊ꝓòL(———U.)ͤ.f.—⸗P. 9 4 ESSE — OOD 3

% „— . 8 24 r ̃è eR ee 3

33 U.S.C. 915b—L———.:m⁊.—u—! důãƷ—!———är.] ——ꝰ—r. 24 r ’T‚ ... 3

R . Section 702.301 et 11111111„% ———— 19

1 ˖»ͤ ͤ—— .... 4, 19, 23 Sections 702.901-702.817 ...........<....ccecoccceeecoccccccesecceeeese 4

r ! 4 Sections 702.33 1-702. 311 4

Se Fe SE ‘neieiqncncsiccintesrencnteccneschevedinamsadiamiidnansaiens 4 lS 2

I tenieepticteccsnbsevenscctdscsccensccesictiiegsntediiinaiceia 2 r ̃ͤ . 4

33 U.S.C. 9210 b)(3) (F 21h) (3) .... 4. 7, 15, 27 e .. 4. 15

2 U.S. C. Side) G 21% passim .. 3

1 . 2, 5, 16 SES a 4, 15

15 .. . 2, 14 r ̃è ñß a ee 2,4, 15

( ———— — » 23 = ̃ũͤõ˖ð ee aaa ome 4

1 —j—;ZL—— 14 D 31

114. — 2 r ̃ͤ . 15

33 U.S. C. 9390a) ...... 2, 15 DW . 28

33 U.S. C. 93906) ...... .net 2, 5, 24 ES 15, 16

33 U.S.C. 939(e)(1) ...... e. 23 n 2

33 U.S. C. 939de)(2) ...e. 24 e ˙ A“ 16. 28

33 U.S. C. 940 (a) ...... ...n. 3 ER 5, 16

2 0„„„% 5, 24 r ..... 21

L vseiicentnttntscscpnciecid tihsiabiibibiadiibisniniencsns 6

Longshoremen’s and Harbor Workers’ Compsensation : ,

Act, ch. 509, § 21(b), 44 Stat. 1436 (1927)... .. . 26, 28 — 5

Longshoremen’s and Harbor Workers’ Compensation E. Chemerinsky, Federal Jurisdiction (1989) . 8

Act Amendments of 1972, Pub. L. No. 92-576, 86 H.R. Conf. Rep. No. 864, 95th Cong., Ist Sess. (1978) ...... 30

. 26 H.R. Rep. No. 1441, 92d Cong., 2d Sess. (1972) ...... 18, 2

Nonappropriated Fund Instrumentalities Act, 5 U.S.C. A. Larson, The Law of Workmen’s Compensation (1993):

rr / (( / en 3 11110 ——̃ 17

Outer Continental Shelf Lands Act, 43 U.S.C. 1331 3 . 17

90 I FD iit citersosiesiniccenilaceeaadaenaeeltad 26 S. Rep. No. 1125, 92d Cong., 2d Sess. (1972) ... 18, 27

20 C. F. R.: S. Rep. No. 209, 95th, Cong., Ist Sess. (1977) ............... 29

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P e rn . m ̃ —̃˙! ñ·ẽrLꝛLLͤ̃ ᷣ G! ? si as 0 8 ng

In the Supreme Court ol the United States

OCTOBER TERM, 1994

No. 93-1783

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

PETITIONER

v.

NEWPORT NEWS SHIPBUILDING AND Dry

Dock COMPANY, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-24a) is

reported at 8 F.3d 175. The decision of the Benefits

Review Board (Pet. App. 27a-36a) is unreported. The

decision of the administrative law judge (Pet. App. 37%

62a) is reported at 23 Ben. Rev. Bd. Serv. (MB) 515.

JURISDICTION

The court of appeals entered its judgment on October

29, 1993, and denied petitions for rehearing on January 7,

1994. Pet. App. 25a-26a. On March 28, 1994, the Chief

Justice extended the time within which to file a petition

(1)

‘al

2

for a writ of certiorari to and including May 7, 1994. The

petition for a writ of certiorari was filed on May 9, 1994

(a Monday). The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

Pertinent provisions of the Longshore and Harbor

Workers’ Compensation Act (33 U.S.C. 921(b), 921(c),

92i(d), 921a, 939(a), 939(c)) are reprinted at Pet. App. 63a-

66a. Pertinent provisions of the Department of Labor

regulations (20 C.F.R. 701.201, 701.202, 702.333, 801.102,

802.410) are reprinted at Pet. App. 67a-68a.

STATEMENT

A. The Statutory Framework

1. The Longshore and Harbor Workers’ Compen-

sation Act (LHWCA or Act), 33 U.S.C. 901 et seq.,

creates a comprehensive federal scheme to compensate

maritime workers injured or killed while employed upon

the navigable waters of the United States. Under the

Act, employers are liable up to a statutory maximum for

covered injuries without regard to fault as a cause for

the injury or death, and have certain duties to furnish

medical services in connection with injuries. 33 U.S.C.

904, 906-909. In most instances, the employer’s liability

under the Act is exclusive and in place of all other

liability to the employee on account of the injury or

death. 33 U.S.C. 905 and 933(i).

Congress directed the Secretary of Labor to “admin-

ister the provisions” of the LHWCA and to issue any

necessary rules and regulations. 33 U.S.C. 939(a). The

Secretary established the Office of Workers’ Compen-

sation Programs (OWCP) and delegated the respons-

ibility for administration of the benefits program under

3

the LHWCA to the OWCP Director (Director). See 20

C. F. R. 701.201, 701.202(a).'

Employees or survivors seeking compensation under

the LHWCA must notify the employer and file a claim

with a district director of OWCP. 33 U.S.C. 912 and

913(a).’ Compensation generally is to be paid promptly to

eligible persons without issuance of a formal

compensation award. 33 U.S.C. 914(a). A district

director may, upon his own initiative at any time,

The history of the authority to administer the Act and the

delegation of that authority is set forth in 20 C.F.R. 701.203. The

statutory language speaks in terms of powers vested in the

Secretary. In light of the Secretary’s delegation of those

responsibilities to the Director, however, we refer throughout this

brief to the Director rather than the Secretary as the bearer of the

statutory duties.

In addition to administering the LHWCA benefits program, the

Director is responsible for administration of the benefits programs

under the Defense Base Act, 42 U.S.C. 1651 et seq., the District of

Columbia Workmen’s Compensation Act, 36 D.C. Code 501 et seq.

(1973), the Outer Continental Shelf Lands Act, 43 U.S.C. 1331, the

Nonappropriated Fund Instrumentalities Act, 5 U.S.C. 8171 et

seq., and Title IV of the Federal Mine Safety and Health Act of

1977, as amended (known as the Black Lung Benefits Act (BLBA)),

30 U.S.C. 901 et seg. See 20 C.F.R. 701.202(b)-(f). The first four of

those Acts are direct extensions of the LHWCA, and the same

regulations generally govern the administration of the programs

under those Acts, with a few exceptions. See 20 C.F.R. 701.101.

701.102. The regulations governing administration of the BLBA

are set forth immediately following the LHWCA regulations. See

20 C.F.R. 718 et seq.

Congress provided for the appointment by the Secretary of

“deputy commissioners,” 33 U.S.C. 940(a), who are now referred

to as “district directors” for administrative purposes. See 20

C. F. R. 701.301(a)(7), 702.105. District directors, under the

authority of the Secretary and Director, perform much of the day-

to-day administration of the Act.

1

investigate a case in which payments are being made

without an award. 33 U.S.C. 914(h)(1), 9190). If a dispute

regarding a claim arises, a district director must

conduct an investigation and “take such further action

as he considers will properly protect the rights of all

parties.” 33 U.S.C. 914(h)(2). District directors have

authority to make a compensation award. 33 U.S.C. 914.

If a district director is unable to resolve a claim

informally, the claim is forwarded to an administrative

law judge (ALJ). 33 U.S.C. 919(d).

ALJs are empowered to conduct formal hearings in

compliance with the provisions of 5 U.S.C. 554, and to

issue compensation orders. 33 U.S.C. 919(c), (d) and (e);

20 C. F. R. 702.301-702.317; 702.331-702.351. Implementing

regulations provide that the claimant and the employer

(or its insurance carrier) are necessary parties for a

hearing before an ALJ. 20 C.F.R. 702.333(a). The

Solicitor of Labor or his designee may participate in ALJ

hearings on behalf of the Director as an “interested

party.” 20 C. F. R. 702.333(b).

Appeals raising a substantial question of law or fact

may be taken to the Benefits Review Board (Board) by

any party in interest“ from ALJ decisions with respect

to benefit and compensation claims under the Act. 33

U.S.C. 921(b)(3); 20 C.F.R. 801.102. The terms “party”

and “party in interest” are defined to mean “the

Secretary or his designee and any person or business

entity directly affected by the decision or order from

which an appeal to the Board is taken.” 20 C. F. R.

801.2(a)(10). The Board reviews an ALJ’s decision to

determine if it is supported by substantial evidence and

is in accordance with the law. 33 U.S.C. 921(b)(3); 20

C.F.R. 801.102.

Decisions by the Board are reviewable by the courts of

appeals. 33 U.S.C. 921(c). “Any person adversely

5

affected or aggrieved by a final order of the Board may

obtain a review of that order” in a court of appeals. Ibid.

The Director, as designee of the Secretary “responsible

for the administration and enforcement” of the Act,

“shall be deemed to be the proper party on behalf of the

Secretary of Labor in all review proceedings conducted

pursuant to section 21(c).” 20 C. F. R. 802.410(b).

2. In addition to her statutorily established role in the

claim adjudication process, the Director performs a wide

range of duties under the Act that promote the public

interest, including providing assistance to individual

claimants. For example, the Director must provide

information and assistance in the claim adjudication

process to any claimant who requests it, and she is

permitted to provide claimants with legal assistance in

processing a claim. 33 U.S.C. 939(c). The Director,

through the district directors, reviews settlements to

ensure that they are not inadequate and not procured by

duress. 33 U.S.C. 908(i). She actively supervises the

medical care rendered to injured employees, 33 U.S.C.

907(b), and provides information about medical and

rehabilitative services, 33 U.S.C. 939(c). District

directors may also bring actions in district court to

enforce compensation awards, 33 U.S.C. 921(d), and the

Director administers a special fund for payment of

benefits in specified circumstances, 33 U.S.C. 944.

B. The Pending Case

1. Claimant Jackie Harcum, an employee of

respondent Newport News Shipbuilding and Dry Dock

Co., suffered a work-related, disabling back injury and

filed a claim for benefits under the Act. Pet. App. 2a.

The claim was referred to an ALJ for a hearing to

resolve several disputed issues, including whether

claimant Harcum was entitled to benefits for total (not

6

merely partial) disability from the date that he stopped

work at respondent’s shipyard (May 6, 1988) until the

date he found alternative employment (February 16,

1989). Id. at 6a, 39a.

The ALJ applied the rationale of the Board’s decision

in Stevens v. Lockheed Shipbuilding Co., 22 Ben. Rev.

Bd. Serv. (MB) 155 (1989), which held that total disability

becomes partial when a claimant regains residual wage-

earning capacity, and the partial disability relates back

to the date of a claimant’s maximum medical

improvement. The ALJ thus reasoned that claimant

Harcum was entitled only to partial (rather than total)

disability benefits as of May 6, 1988, because that was the

date he left employment with respondent and because the

date of his maximum medical improvement had already

passed. Pet. App. 6a, 56a-57a. The ALJ held that Harcum

* Respondent also asserted that Harcum suffered from a

preexisting permanent partial disability that contributed to his

current disability, and that respondent consequently was entitled

to a reduction in the amount of benefits it was required to pay

because the special fund administered by the Secretary should

assume payment for part of the benefits under Section 8(f) of the

Act. Pet. App. 7a. See 33 U.S.C. 908(f) (special fund assumes

liability for compensation payment for injury after 104 weeks of

permanent disability if claimant had preexisting permanent partial

disability that combined with his compensable injury to render him

more disabled than he would have been from the injury alone); 33

U.S.C. 944(a).

The ALJ and the Board agreed with respondent that Section

8(f) applied to this case. Pet. App. 7a, 33a-36a, 59a-6la. The court

of appeals, however, rejected both the Director’s and respondent’s

interpretations of Section 8(f), reversed the Board’s ruling on that

issue, and remanded the case for further proceedings. Pet. App.

14a-24a. Although the Director disagrees with the court of appeals’

Section 8(f) ruling, she did not seek this Court’s review of that

ruling.

7

should be deemed to have regained residual wage-earning

capacity as of May 6, 1988, and that he therefore should

have received compensation after that date based only on

a partial disability. Id. at 57a.

2. The Director appealed the ALJ’s ruling to the

Board pursuant to Section 21(b)(3) of the LHWCA, 33

U.S.C. 921(b)(3). Pet. App. 7a. The Director contended

that the claimant was entitled to benefits based on total

disability until February 16, 1989, when he secured other

employment. Claimant Harcum did not appeal, but did

respond in support of the Director. Jd. at 29a.

Respondent urged affirmance. [hid.

The Board affirmed the ALJ’s ruling, although it

clarified the underlying rationale. The Board vacated the

ALJ’s reliance on its Stevens ruling because that

decision had subsequently been reversed on judicial

review. Pet. App. 29a-3la; Stevens v. Director, OWCP,

909 F. 2d 1256 (9th Cir. 1990), cert. denied, 498 U.S. 1073

(1991). The Board affirmed, however, on the rationale

that respondent’s uncontradicted evidence showed that

there was suitable alternative employment for Harcum

as of May 1988, and that Harcum had not shown that he

was unable to obtain such employment. Pet. App. 3la-

33a. The Board also ruled that a statement by

respondent to Harcum that it would determine whether

it had a light-duty position available for him, and its

subsequent hiring of a vocational consultant to assist

Harcum in securing alternative employment, did not

affect his obligation to show inability to find other

employment, because respondent was not under any

obligation to rehire Harcum or to find him an actual job

offer. Id. at 32a-83a. The Board therefore concluded that

Harcum was only partially disabled as of May 1988.

3. The Director filed a petition in the court of appeals

for review of the Board’s decision pursuant to 33 U.S.C.

8

921(c). Claimant Harcum did not file a petition for

review. In response to an inquiry from the court of

appeals (following the Director’s motion to amend the

case caption and respondent’s statement that it did not

object), Harcum stated that he had not appealed, but that

the Director could pursue the case as she chose. See

Attachments A and B to Respondent’s Answer to

Petitioner’s Petition for Rehearing. The court of appeals

granted the Director’s motion and amended the caption

to show Harcum as a “claimant.”

The Director contended on judicial review that the

Board usurped the ALJ’s fact-finding role with regard to

its holding that respondent had established that there

was suitable alternative employment for Harcum. The

Director also argued that, even if respondent had made a

showing of suitable alternative employment, Harcum had

legitimately relied on respondent’s vocational

rehabilitation program, rather than independently

seeking work, during the period in question. Thus, the

Director argued that the Board’s decision erroneously

denied Harcum total disability benefits for the period

between May 1988 and February 1989. Pet. App. 2a.

The court of appeals raised, sua sponte, the question of

the Director’s standing to appeal. It concluded that the

Director did not have standing to petition for review of

the Board’s ruling with regard to the degree of Harcum’s

disability. Pet. App. 9a n.1, 13a-14a. The court reasoned

that 33 U.S.C. 921(c), which permits “[a]Jny person

adversely affected or aggrieved by a final order of the

Board” to obtain judicial review of that order, “codifies

the constitutional requirement that limits standing to

those persons who can allege ‘that they personally have

suffered or imminently will suffer an injury. Pet. App.

9a n.1 (quoting E. Chemerinsky, Federal Jurisdiction §

2.3.2, at 52 (1989)). In the court’s view, the Director

9

suffers an injury only when a Board decision “alter{s]

the Director’s ability to carry out his or her

responsibilities under the LHWCA or to protect the

fiscal integrity of the special fund.” Pet App. 14a.

In holding that the Director lacks standing, the court

of appeals relied on Director, OWCP v. Donzi Marine,

Inc., 586 F.2d 377 (5th Cir. 1978). Pet. App. 10a-12a. The

court explained that in Donzi Marine, the Fifth Circuit

held that the Director “would have standing only if an

interest of the Director arising from his or her

specifically delegated responsibilities was adversely

affected by the Board’s decision.” Id. at 10a. The court

indicated that, under the Donzi Marine rationale, the

Director “may redress Board decisions that adversely

affect the Director’s legitimate administrative interests.

* * * For example, if a Board decision substantially

augmented the nature of the administrative duties

delegated to the Director, increased the Director’s

necessary expenditure of administrative resources, or

created confusion as to how the Director was to carry

out specific functions, the Director’s responsibilities

under the LHWCA would be bound up sufficiently with

the merits of the appeal to evidence a cognizable

administrative injury.” Id. at lla, citing Donzi Marine,

586 F. 2d at 381-382.

The court of appeals noted that it had adopted the logic

of Donzi Marine in Director, OWCP v. Newport News

Shipbuilding & Dry Dock Co. (Langley), 676 F.2d 110

(4th Cir. 1982), where it had questioned whether “the

Board’s decision sufficiently implicated an admini-

strative or economic interest of the Director so as to

give rise to a redressable injury.” Pet. App. 13a. The

court treated its decision in Langley as holding that the

Director had standing because of his interest in

10

protecting the fiscal integrity of the special fund. Ibid.,

citing 676 F.2d at 114.

The court concluded that the Director had standing to

seek review of the portions of the Board’s decision that

would result in increased payments from the special fund

administered by the Director (see note 3, supra), but did

not have standing to appeal the issue of the degree of the

claimant’s disability during the period in question. The

court reasoned that although the Director contended

that the Board misapprehended the LHWCA’s

requirements, the Board’s conclusion as to when the

claimant’s disability became partial neither altered the

Director’s ability to carry out her responsibilities under

the LHWCA nor affected the fiscal integrity of the

special fund. Pet. App. 13a-14a.°

SUMMARY OF ARGUMENT

The standing of the Director of the Office of Workers’

Compensation Programs to seek judicial review under 33

U.S.C. 921(c), as a person “adversely affected or

aggrieved” by a final order of the Benefits Review Board

(Board) in compensation claim cases under the

Longshore and Harbor Workers’ Compensation Act, 33

U.S.C. 901 et seg. (LHWCA), is not limited to issues that

directly affect the Director’s pecuniary interest or

The court below also noted its own prior holding that the

Director is not a proper respondent to a petition for review under

33 U.S.C. 921(c). Pet. App. 12a n.2 (citing 1.7.0. Corp. v. Benefits

Review Bd., 563 F.2d 646, 648 (4th Cir. 1977) (en banc), reinstating

in pertinent part 542 F.2d 903 (1976), vacated and remanded, 433

U.S. 904 (1977)). But see note 9, infra (other court of appeals

holdings that Director is proper respondent).

5 The court denied the Director’s petition for rehearing and

suggestion of rehearing en banc on the standing issue. Two judges

voted to rehear the case en banc. Pet. App. 25a-26a.

11

disrupt a specific administrative function. Through the

LHWCA, Congress conferred broad administrative and

enforcement responsibilities on the Director, which give

the Director a significant stake in the correct

interpretation of the Act and its consistent application.

The elimination of uncertainties and inconsistencies in

the Act’s implementation is important to the overall

efficiency of the administrative claims process. It

enhances the Director’s ability to fulfill her

responsibilities to ensure that the Act achieves its social

welfare goals. Congress also imposed on the Director

specific legal duties to participate directly in the claim

adjudication process and to assist claimants, thereby

vesting the Director with legally cognizable interests

with regard to the correctness of claim determinations.

The history of the LHWCA (including the Black Lung

Benefits Act, in which Congress generally incorporated

the LHWCA procedures) confirms that Congress

intended for the Director to have standing to obtain

judicial review of any allegedly erroneous Board

determinations of claims.

ARGUMENT

THE STANDING OF THE DIRECTOR OF THE

OFFICE OF WORKERS’ COMPENSATION

PROGRAMS TO PETITION FOR JUDICIAL REVIEW

OF DECISIONS BY THE BENEFITS REVIEW

BOARD IS NOT LIMITED TO DECISIONS THAT

AFFECT THE DIRECTOR’S PECUNIARY INTEREST

OR DISRUPT HER PERFORMANCE OF SPECIFIC

ADMINISTRATIVE FUNCTIONS

The Constitution of the United States limits the

jurisdiction of federal courts to “Cases” and “Contro-

versies.” Art. III, § 2. An essential element of the case-

12

or-controversy requirement of Article III is standing.

Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136

(1992). The standing doctrine ensures that “questions

presented to the court will be resolved, not in the rarified

atmosphere of a debating society, but in a concrete

factual context conducive to a realistic appreciation of

the consequences of judicial action.” Valley Forge

Christian College v. Americans United for Separation

of Church & State, Inc., 454 U.S. 464, 472 (1982); see also

Lujan v. Defenders of Wildlife, 112 S. Ct. at 2136.

The question whether a person has standing to sue has

traditionally been framed as “[wJhether a party has a

sufficient stake in an otherwise justiciable controversy

to obtain judicial resolution of that controversy.” Sierra

Club v. Morton, 405 U.S. 727, 731 (1972). This require-

ment ensures that “the dispute sought to be adjudicated

will be presented in an adversary context and in a form

historically viewed as capable of judicial resolution.“ Id.

at 732 (quoting Flast v. Cohen, 392 U.S. 83, 101 (1968)).

Although Congress “may not confer jurisdiction on Art.

III federal courts to render advisory opinions, * * * or

to entertain ‘friendly’ suits, * * * or to resolve ‘political

questions, * * * because suits of this character are

inconsistent with the judicial function under Art. III,”

Congress may create legally protected interests not

present at common law, which in turn give rise to

standing. Sierra Club v. Morton, 405 U.S. at 732 n.3.

“The actual or threatened injury required by Art. III

may exist solely by virtue of ‘statutes creating legal

rights, the invasion of which creates standing.“ Warth

v. Seldin, 422 U.S. 490, 500 (1975) (quoting Linda R. S. v.

Richard D., 410 U.S. 614, 617 n.3 (1973), and citing

Sierra Club v. Morton, 405 U.S. at 732)). Moreover, “the

question whether the litigant is a ‘proper party t

request an adjudication of a particular issue,’ * * * is

13

one within the power of Congress to determine.” Id. at

732 n.3 (quoting Flast v. Cohen, 392 U.S. at 100).

A party asserting standing must establish (1) that she

suffered a concrete and actual invasion of a legally

protected right (an “injury in fact”), (2) that there is a

causal connection between the injury and the conduct

complained of, and (3) that it is likely that the injury will

be redressed by a favorable decision. Lujan v. Defenders

of Wildlife, 112 S. Ct. at 2136. The instant case concerns

the court of appeals’ conclusion that petitioner did not

establish the* she suffered an injury in fact.“

Congress permits “[aJny person adversely affected or

aggrieved by a final order of the Board [to] obtain a

review of that order in the United States court of

appeals.” 33 U.S.C. 921(c). As the court of appeals noted,

Section 21(c) of the Longshore and Harbor Workers’

Compensation Act thereby codifies, in effect, the Article

III threshold requirement that a person have suffered an

injury in fact, economic or otherwise, in order to have

standing to appeal. Pet. App. 9a & n.1. Thus, the

question for the Court is whether the Director has a

stake in the adjudication of compensation claims under

The other two factors necessary to establish standing are

present in this case. There is a causal connection between the

allegedly erroneous determination of the claimant’s compensation

and the injury to the Director’s interests under the Act (including

ensuring fair compensation to claimants, payment by employers,

and accurate claim adjudications). The Director’s injury will be

redressed by a judicial ruling correcting the erroneous

compensation determination, which would yield an order that the

claimant be accurately compensated through additional payments.

And the compensation dispute is “otherwise justiciable” because

the interests of respondent and the claimant are adverse as well.

See Sierra Club v. Morton, 405 U.S. at 731.

14

the Act sufficient to give her standing to seek judicial

review of an allegedly erroneous ruling by the Board.

Congress authorized the Director to participate in

appeals of Board decisions to the courts of appeals under

33 U.S.C. 921(c), by providing that the Secretary shall

appoint attorneys to represent him in “any court

proceedings under section 921.” 33 U.S.C. 921a.

Congress did not indicate an intent to limit such

participation only to issues that directly affect the

Secretary’s pecuniary interest or disrupt a specific

administrative function, as the court of appeals held.

Rather, through the Act, Congress imposed a variety of

legal duties on the Director that give her a significant

stake in the outcome of claim adjudications and vest her

with standing to seek review of erroneous rulings in the

adjudication process.

A. The Text And Structure Of The Longshore

And Harbor Workers’ Compensation Act

Indicate That Congress Gave The Director A

Stake In Claim Adjudications And Vested

Her With Standing To Obtain Judicial Review

Of Erroneous Benefits Review Board

Rulings

1. The Act Confers Broad Administrative

And Enforcement Duties On The Director

In concluding that the Director did not establish an

“injury in fact” with regard to her appeal of the partial

disability issue (Pet. App. 14a), the court of appeals failed

to recognize that the Director participates in this

litigation “not as a private individual in any sense, but as

the authorized representative of the Department of

Labor” who is entrusted with responsibility for the

administration of the LHWCA. Director, OWCP v.

15

Eastern Coal Corp., 561 F.2d 632, 646 (6th Cir. 1977).

The Director’s interest is analogous not to that of

private parties, but rather to that of other government

officials carrying out their public duties under

particular statutes. See, e.g., United States ex rel.

Chapman v. Federal Power Comm’n, 345 U.S. 158, 155-

156 (1953); SEC v. United States Realty & Improvement

Co., 310 U.S. 434, 460 (1940); Coleman v. Miller, 307 U.S.

433, 441-442 (1939); In re Debs, 158 U.S. 564, 584-586

(1895); United States v. Federal Maritime Comm’n, 694

F.2d 793, 800-802 (D.C. Cir. 1982); United States v.

Federal Maritime Comm’n, 655 F.2d 247, 251-252 (D.C.

Cir. 1980); cf. Alfred L. Snapp & Son, Inc. v. Puerto

Rico, 458 U.S. 592, 607 (1982) (State has parens patriae

standing based on the health and well being of its

residents in general).

Congress conferred on the Director the broad

responsibility of administering the Act, including the

authority to make expenditures, appoint personnel, and

issue any necessary rules and regulations. 33 U.S.C.

939(a)." Congress also conferred enforcement authority

The Secretary promu’geted regulations that interpret the Act

as granting the Director standing to participate at all stages of the

claim adjudication process, including appeals from the Board to the

court of appeals. The Director, through the Solicitor of Labor or

his designee, may participate in ALJ hearings as an “interested

party.” 20 C.F.R. 702.333(b). The Director may appeal to the

Board as a “party in interest” from ALJ decisions or orders with

respect to claims for compensation or benefits arising under the

Act. See 33 U.S.C. 921(b)(3); 20 C. F. R. 801.102, 802.201. The terms

“party” and “party in interest” are defined to mean “the

Secretary or his designee and any person or business entity

directly affected by the decision or order from which an appeal to

the Board is taken.” 20 C.F.R. 801.2(a)(10); see also 20 C.F.R.

802.201(a)(1) (specifying that “(t]he Director, OWCP, when acting

as a representative of the Special Fund * * * or, when appealing

16

on the Director, including authority for district

directors to bring actions in district court to enforce

compensation awards. 33 U.S.C. 921(d). The Director

has been recognized to be the policymaking authority

whose views on questions of statutory and regulatory

interpretation are entitled to deference from the courts.

See Director, OWCP v. General Dynamics Corp., 982

F. 2d 790, 795 (2d Cir. 1992); Zapata Haynie Corp. v.

Barnard, 933 F.2d 256, 258 (4th Cir. 1991); Newport

News Shipbuilding & Dry Dock Co. v. Howard, 904 F.2d

206, 208 (4th Cir. 1990); Boudreaux v. American

Workover, Inc., 680 F.2d 1034, 1046 (5th Cir. 1982) (en

banc), cert. denied, 459 U.S. 1170 (1983); see also Potomac

Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278

n.18 (1980) (Board is not a policymaking agency and its

interpretations are not entitled to special deference from

the courts); ef. Mullins Coal Co. v. Director, OWCP, 484

U.S. 135, 159-160 (1987) (Director's construction of

analogous Black Lung Benefits Act (BLBA), 30 U.S.C.

901 et seq., is entitled to deference); Martin v. OSHRC,

a decision or order which affects the administration of one of the

Acts, shall be considered a party adversely affected”). The

regulations further provide that a “party adversely affected or

aggrieved” by a Board decision may seek judicial review in the

court of appeals. 20 C.F.R. 802.410(a). The term “party adversely

affected or agrieved” includes the Director when the Board’s

decision is adverse to her position (cf. 20 C.F.R. 802.201(a)(1)), and

indeed the regulations specifically provide that the Director, as the

designated official “responsible for the administration and

enforcement” of the Act, “shall be deemed to be the proper party

on behalf of the Secretary of Labor in all review proceedings” in

the courts of appeals. 20 C.F.R. 802.410(b).

8 But see Sea-Land Serv., Inc. v. Rock, 953 F.2d 56, 59 (8d Cir.

1992); American Ship Bldg. Co. v. Director, OWCP, 865 F.2d 727,

730 (6th Cir. 1989) (neither Board nor Director is entitled to special

deference).

17

499 U.S. 144, 154 (1991) (deference should be given to

Secretary’s interpretation of regulation promulgated

under Occupational Safety and Health Act, rather than

to interpretation by Occupational Safety and Health

Review Commission).

By charging the Director with the responsibility for

administering and enforcing the compensation system,

Congress gave the Director a material interest in

ensuring that the Act is construed and applied in a

manner consistent with Congress’s intent. In creating

the LHWCA benefits scheme, Congress did far more

than provide for adjudication and vindication of private

claims. Congress established the Act to serve as a

workers’ compensation system. Therefore, it has many

of the elements of social insurance, and as such is

designed to promote the public interest:

[T]he entire [workers’] compensation system has

been set up and paid for, not by the parties, but by the

public. The public has ultimately borne the cost of

compensation protection in the price of the product,

and it has done so for the specific purpose of avoiding

having the disabled victims of industry thrown on

private charity or public relief.

3 A. Larson, The Law of Workmen’s Compensation

§ 82.41 (1994); 1 id. § 1.20 (“like social insurance, but

unlike tort, the right to benefits and amount of benefits

are based largely on a social theory of providing support

and preventing destitution, rather than settling

accounts between two individuals according to their

personal deserts or blame”); see Northeast Marine

Terminal Co. v. Caputo, 432 U.S. 249, 268 (1977)

(LHWCA is remedial legislation that “must be liberally

construed in conformance with its purpose, and in a way

18

which avoids harsh and incongruous results,” quoting

Voris v. Eixel, 346 U.S. 328, 333 (1953)).

Ensuring “adequate workmen’s compensation

benefits” under the Act is “not only essential to meeting

the needs of the injured employee and his family, but, by

assuring that the employer bears the cost of unsafe

conditions, serves to strengthen the employer’s in-

centive to provide the fullest measure of on-the-job

safety.” H.R. Rep. No. 1441, 92d Cong., 2d Sess. 1 (1972).

The Director has important administrative and enforce-

ment responsibilities to further those purposes, and

these responsibilities give her standing to petition for

review of a Board decision. S. Rep. No. 1125, 92d Cong.,

2d Sess. 15 (1972). Cf. General Tel. Co. v. EE OC, 446 U.S.

318, 326 (1980) (EEOC vindicates public interest as well

as private rights in eliminating employment discrim-

ination); Secretary of Labor v. Fitzsimmons, 805 F.2d

682, 692-693 (7th Cir. 1986) (en banc) (Secretary’s

interest in bringing an enforcement action under the

Employee Retirement Income Security Act is based not

only on the duty of protecting individual beneficiaries of

specific pension programs, but also on the public interest

in protecting “the very integrity, heart and lifeline of

the program itself”); Donovan v. University of Texas at

El Paso, 643 F.2d 1201, 1208 (5th Cir. 1981) (Secretary

sues to protect public interest under Fair Labor

Standards Act).

The Director’s statutorily created role confers on her

the ability to advance in federal court the public interest

in ensuring adequate compensation payments to

claimants. Cf. Heckman v. United States, 224 U.S. 413,

437-444 (1912); Moe v. Confederated Salish & Kootenai

Tribes, 425 U.S. 463, 473-474 (1976); Pasadena City Bd.

of Educ. v. Spangler, 427 U.S. 424, 430-431 (1976).

Moreover, incorrect claim determinations by the Board

19

frustrate the Director’s duty to administer and enforce

the statutory scheme in a uniform manner. The

Director is thwarted in her duty to enforce

compensation orders that further the purpose of the Act

to fairly compensate employees and appropriately charge

employers.

Erroneous Board rulings also impair the Director’s

efficient administration of the statutory program by

undermining her authority to resolve compensation

disputes without recourse to formal hearings (see 33

U.S.C. 914, 919(c); 20 C. F. R. 702.301 et seq.). To preclude

the Director from obtaining judicial review of what she

believes are erroneous Board rulings would reduce the

incentive for employers to view the Director’s informal

resolution efforts as authoritative, because the employer

could proceed to a higher level of review from which the

Director could not appeal. Incorrect Board decisions

also harm the Director’s ability efficiently to

administer and enforce the Act because differences

between the Board and the Director are perpetuated

without assurance of an avenue for judicial resolution.

Such impairments of the Director’s ability to fulfill

her statutory duties cause her injury in fact. The

Director thus stands as a “person adversely affected or

aggrieved” by the Board’s erroneous ruling in this case,

who has standing to petition for judicial review under 33

U.S.C. 921(c). See Shahady v. Atlas Tile & Marble Co.,

673 F.2d 479, 483 (D.C. Cir. 1982) (Director’s standing to

petition under 33 U.S.C. 921(c) arises out of her “general

supervisory and enforcement interest” under the

LHWCA); Director, OWCP v. National Van Lines, Inc.,

613 F. 2d 972, 977 n.6 (D.C. Cir. 1979), cert. denied, 448

U.S. 907 (1980); Director, OWCP v. Bethlehem Steel

Corp., 949 F.2d 185, 186-187 (5th Cir. 1991) (Director has

standing, based in part on substantial responsibilities of

20

her office and need for national uniformity, to challenge

Board ruling as to when total disability becomes partial

disability); Curtis v. Schlumberger Offshore Serv., Inc.,

849 F.2d 805, 807 n.4 (8d Cir. 1988) (“the Director’s

supervisory and enforcement interest should be

sufficient to entitle him to participate as a party; his

responsibility to oversee the development of a consistent

body of law in this area should not depend upon the

vagaries of the parties’ private, albeit adversary,

interests”); ef. Director, OWCP v. Rochester &

Pittsburgh Coal Co., 678 F.2d 17, 18 n.2 (8d Cir. 1982)

(Director has standing under analogous BLBA statutory

scheme to petition for review of Board decision based

solely on “his responsibility to ensure the proper

enforcement and lawful administration of the black lung

benefits program”); Eastern Coal Corp., 561 F.2d at 645

(Director is “adversely affected or aggrieved” under 33

U.S.C. 921(c) “in that * * * he is seeking what he

deems to be lawful administration of the [BLBA] and

assisting claimants * * * whose awards of benefits have

been vacated by the Benefits Review Board, as well as

defending the regulations he is charged with

administering”).? Moreover, limiting the Director's

9 In Director, OWCP v. Perini N. River Assocs., 459 U.S. 297,

302-305 (1983), this Court noted that the courts of appeals had

rejected our standing argument in Fusco v. Perini N. River

Assocs., 601 F.2d 659 (2d Cir.), vacated and remanded on other

grounds, 444 U.S. 1028 (1979), reinstated on remand, 622 F. æd

1111, 1113 (1980), cert. denied, 449 U.S. 1131 (1981); Director,

OWCP v. Donzi Marine, Inc., 586 F.2d 377, 382 (5th Cir. 1978); and

J. T. O. Corp. v. Benefits Review Bd., 563 F.2d 646, 648 (4th Cir.

1977) (en banc), reinstating in pertinent part, 542 F.2d 903 (1976)

(en banc), vacated and remanded, 433 U.S. 904 (1977). The Court

observed that those courts had relied on statutory grounds and did

not address the Article III standing issue. 459 U.S. at 302 n.9. In

21

standing, as the court of appeals did, to only issues that

directly affect her pecuniary interest or disrupi a

specific administrative function would lead to case-by-

case adjudication regarding what constitutes injury toa

specific administrative function,” and inject additional

Perini, the Court concluded that “the Director has statutory

authority to seek review in this Court,” but that the Director “may

not have Art. III standing to argue the merits of [the claimant’s]

claim because the Director's presence does not guarantee the

existence of a justiciable controversy with respect to the merits of

[the elaimant's] coverage under the LHWCA.” 459 U.S. at 304.

The Court did not resolve the issue, however, because the claimant

was a party respondent under the rules of this Court, and had

standing to urge the Court’s consideration of the merits of the

court of appeals’ decision. Jd. at 304-305.

With regard to the Director’s standing as a respondent in the

court of appeals, the Fourth Circuit held that the Director is not a

proper respondent (see note 4, supra), but other courts of appeals

have disagreed and held that the Director is properly a respondent

to a petition for view of a Board decision. Goldsmith v. Director,

OWCP, 838 F.2d 1079, 1080 (9th Cir. 1988); Thornton v. Brown &

Root, Inc., 707 F.2d 149, 154 (5th Cir. 1983), cert. denied, 464 U.S.

1052 (1984); Ingalls Shipbuilding Div., Etc. v. White, 681 F.2d 275,

286-287 (5th Cir. 1982), overruled on other grounds, Newpark

Shipbuilding & Repair, Inc. v. Rowndtree, 723 F.2d 399 (5th Cir.)

(en banc), cert. denied, 469 U.S. 818 (1984); Shahady v. Atlas Tile

& Marble Co., 673 F.2d 479 (D.C. Cir. 1982); see also Curtis v.

Schlumberger Offshore Serv., Inc., 849 F.2d 805, 807 n.4 (3d Cir.

1988) (noting strength of Shahady rationale, but reserving

question). Some of the decisions upholding the Director’s standing

as a respondent are based on 33 U.S.C. 921(c) and some are based

solely on Fed. R. App. P. 15(a), which provides that petitions for

review of agency orders must name the agency as a respondent.

Brown & Root, Inc., 707 F.2d at 154; ingalls Shipbuilding, 681

F. ad at 282-284.

10 Compare the Fifth Cireuit's ruling in Donzi Marine, 586 F.2d

at 381-382 (although resolution of question whether employees of

recreational boat industry are covered under LHWCA would allow

22

uncertainties and inefficiencies into the claim adjudi-

cation process.

2. Congress Imposed Specific Duties On The

Director With Regard To The Claims

Adjudication Process And Assisting Disabled

Employees, Which Also Give The Director

Standing

In addition to broad administrative and enforcement

responsibilities under the Act, Congress charged the

Director with certain specific legal duties that promote

the public interest in achieving the Act’s cial welfare

objectives by assisting claimants both in th adjudication

process and thereafter. The Director hall, upon

request, provide persons covered by [th. Act] with

information and assistance relating t’ the [Act’s]

coverage and compensation and the rocedures for

Director to give more certain adie . claimants, Director's

legitimate administrative interests re „ot adversely affected by

Board's adverse legal ruling), with t Fifth Circuit’s more recent

decision in Bethlehem Steel Corp., 9., F.2d at 186-187 (Director’s

obligation to furnish information to claimants is adversely affected

by Board ruling concerning when total disability becomes partial

disability, when three courts of appeals had already rejected

Board’s position).

At bottom, under the rationale of the court below, a court would

be permitted to substitute its judgment for that of the Director

regarding the impact that a Board decision has on the

administration of the LHWCA, thereby leading to great

unpredictability. For example, comparison of the Fifth Circuit’s

ruling in Bethlehem Steel Corp., 949 F.2d at 186-187, and the court

of appeals ruling in this case reveals a striking inconsistency. The

Fifth Circuit held that the Director has standing to challenge a

Board ruling as to when a total disability becomes a partial

disability—an issue that is, for present purposes, analytically

indistinguishable from the one the Fourth Circuit held that the

Director did not have standing to raise in this case.

23

obtaining such compensation and including assistance in

processing a claim.” 33 U.S.C. 939(c)(1). In addition, the

Director polices the legal representation provided to

claimants. The Director is responsible for maintaining

a list of persons not authorized to represent claimants,

which requires her to determine whether such persons

have engaged in misconduct or fraud with regard to prior

representations. 33 U.S.C. 931. The Director also “may,

upon request, provide persons covered by [the Act] with

legal assistance in processing a claim.” 33 U.S.C.

93900 (J).

Congress also charged the Director with respon—

sibility for proteeting elaimants' interests when their

cases are resolved short of adjudication, e. g., when the

employer pays compensation without issuance of a

formal award (33 U.S.C. 914(a)), or when the employer

and employee enter into a settlement. In the case of

uncontroverted payments, the Director’s district

director may, upon his own initiative at any time,

investigate the case. 33 U.S.C. 914(h)(1), 919(c). District

directors also are authorized to review settlements

between employers and employees to determine if they

are adequate and not procured by duress. 33 U.S.C.

908(i).

The Director has ongoing responsibility to disabled

employees already receiving compensation as well. The

Director actively supervises the medical care rendered

to injured employees, requires periodic reports on such

cases, and oversees the quality and appropriateness of

the services and charges of medical care providers. 33

U.S.C. 907(b). The Act requires that the Director

maintain a list of health care providers not authorized to

render services under the LHWCA. 33 U.S.C. 907(c).

The Director must provide claimants with “information

on medical, manpower, and vocational rehabilitation

. n =

r r

24

services.” 33 U.S.C. 939(c). Moreover, the Director

must “assist such employees in obtaining the best such

services available.” Jbid. The Director bears

responsibility in some situations for directing vocational

rehabilitation, furnishing prosthetic appliances, using

specified funds to procure rehabilitation services, 33

U.S.C. 939(c)(2), as well as administering a special fund

for payment of benefits in specified circumstances,

including the supplementation of employers’ payments

to employees. 33 U.S.C. 908( f), 918(b), 944.

Given her broad responsibilities under the LHWCA

and the societal interests inhering in them, the Director

has a material interest in the consistent and fair

administration and application of the LHWCA beyond the

narrow range that the court of appeals acknowledged. An

erroneous denial of compensation to a claimant under-

mines the Director’s statutory interest in ensuring the

adequacy of compensation payments to further the Act’s

purposes, including preventing claimants from otherwise

burdening public benefit programs.“ Such a denial may

also impair the Director’s ability to fulfill her duties to

an individual claimant with regard to informal

11 Indeed, Congress determined that the public interest in

adequately compensating injured employees should not be defeated

by employers’ inducement of employees to surrender such

compensation. The Act provides that Inlo agreement by an

employee to waive his right to compensation under this chapter

shall be valid.“ 33 U.S.C. 915(b). The Act also invalidates any

agreements by employees to contribute to an employer’s benefit

fund for purposes of providing compensation or medical services

and supplies as required by the LHWCA. 33 U.S.C. 915(a). Any

employer who makes such a deduction from the pay of an

employee entitled to the benefits of the Act faces criminal

prosecution. Ibid.

25

resolutions, settlement, vocational rehabilitation or

other services.

By conferring this comprehensive range of public

duties on the Director, Congress conferred standing on

her to prosecute appeals from claim rulings that she

believes have misinterpreted or misapplied the Act. Cf.

In re Columbia Gas Systems Inc., 33 F.3d 294, 298-299

(3d Cir. 1994) (U.S. Trustee has standing in bankruptcy

case due to statutorily imposed duties to protect public

interest); Washington Utils. & Transp. Comm’n v. FCC,

513 F. 2d 1142, 1149-1150 (9th Cir. 1975) (state agency has

standing because of duty to protect telephone users); cf.

FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 476-

477 (1940). By imposing on the Director a legal duty to

assist claimants during the claim adjudication process,

to ensure the adequacy of compensation payments, and to

assist compensation recipients thereafter, Congress

gave the Secretary a “sufficient stake” in the outcome of

claim adjudication proceedings to press for judicial

resolution of the controversy in this case. See Sierra

Club v. Morton, 405 U.S. at 731; ef. Director, OWCP vy.

Eastern Coal Corp., 561 F.2d at 641-648 (discussing

— analogous duties under Black Lung Benefits

et).

B. The History Of The Act Confirms

Congress’s Intention To Confer On The

Director Standing To Seek Judicial Review

Of Board Rulings.

The history of the LHWCA strongly supports the

conclusion that the Director has standing under 33

U.S.C, 921(c) to obtain judicial review of a Board order

1 incorrectly rejects a compensation claim under the

ct.

26

1. The current procedures for adjudication of compen-

sation claims under the LHWCA reflect substantial

modifications implemented by the 1972 amendments to

the Act. See Longshoremen’s and Harbor Workers’

Compensation Act Amendments of 1972, Pub. L. No. 92-

576, 86 Stat. 1251. Before those amendments, OWCP

deputy commissioners conducted hearings and issued

compensation orders in disputed cases. Those decisions

were reviewable in an injunctive action against the

deputy commissioner in district court, with further

review by appeal to the court of appeals under 28 U.S.C.

1291. See Kalaris v. Donovan, 697 F.2d 376, 381-382 (D.C.

Cir.), cert. denied, 462 U.S. 1119 (1983). The deputy

commissioner was denominated as a respondent in such

district court proceedings. See former Section 21(b), 44

Stat. 1436 (1927) (codified at 33 U.S. C. 921(b) (1970)). It

was clear that the deputy commissioner had standing to

appeal under 28 U.S.C. 1291 from a district court ruling

enjoining his decision, even in the absence of an appeal by

another party. See Henderson v. Glens Falls Indem. Co.,

134 F.2d 320 (5th Cir.), cert. denied, 319 U.S. 756 (1943).

The 1972 Amendments transferred the authority to

conduct hearings from deputy commissioners (rede-

signated “district directors” by regulation, see note 2,

supra) to ALJs. The Amendments also replaced district

court injunctive actions with appeals to the newly

created Benefits Review Board and subjected Board

rulings to judicial review in the courts of appeals under

Section 21(c) of the Act, 33 U.S.C. 921(c). The Board

thus “performs a review function [under the new regime]

identical to that which the District Courts performed”

before the 1972 Amendments. Kalaris v. Donovan, 697

F.2d 376, 382 (D.C. Cir.), cert. denied, 462 U.S. 1119

(1983).

27

Congress could hardly have intended these changes

divest the Act’s administrator of her pre-1972 —

to seek review in the courts of appeals of decisions on

benefits claims that are adverse to her position. Cf.

Shahady, 673 F.2d at 485; Eastern Coal Corp., 561 F.2d

at 649 (“[w]e do not find in the [1972 Amendments] any

Congressional intention * * * to compel the Secretary

or his duly designated representative to accept [Board

decisions] without recourse to the courts when he

conscientiously disagrees”). That result would be

directly at odds with a major purpose of the 1972

Amendments, which was to augment the Director’s

responsibilities. See S. Rep. No. 1125, supra, at 13-14

(placing responsibility for hearings with ALJs will

better enable deputy commissioners to perform their

administrative responsibilities under the Act); see

generally id. at 14-15 (Amendments were intended to

ensure Director’s active involvement at all Stages of

claim-processing under LHWCA). The 1972

Amendments specifically increased the Director’s

responsibility for providing services to employees by

requiring her to provide assistance to them in

processing a claim. H.R. Rep. No. 1441, supra, at 12.

This amendment was intented to ensure that the

“assistance be all inclusive and enable the employee to

receive the maximum benefits due to him without having

to rely on outside assistance other than that provided by

the Secretary.” Id. at 13.12

12 Some courts have suggested that Congress intended to

distinguish between administrative standing and judicial standing

when it provided partlies] in interest” with a right to

administrative review by the Board, 33 U.S.C. 921(b)(3), but

provided “person{s] adversely affected or aggrieved” with a right

to judicial review, 33 U.S.C. 921(c). See J. T. O. Corp. v. Benefits

Review Board, 542 F. 2d at 908; Ingalls Shipbuilding Div., Etc. v.

28

2. That the Director’s interest in the resolution of

compensation claims is sufficient to confer standing to

appeal is further confirmed by the text and legislative

history of the Black Lung Benefits Act (BLBA), as

amended in 1978, Pub. L. No. 95-239, § 7(h), 92 Stat. 99.

The BLBA generally incorporates the procedures of the

LHWCA. 30 U.S.C. 932(a). This Court has recognized

that “[w]hen several acts of Congress are passed

touching the same subject-matter, subsequent legis-

lation may be considered to assist in the interpretation

of prior legislation upon the same subject. Marchie

Tiger v. Western Inv. Co., 221 U.S. 286, 309 (1911); Bell v.

New Jersey, 461 U.S. 773, 784 (1983). See also West

Virginia Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 100-101

(1991). :

The BLBA explicitly provides that ‘[t}he Secretary

shall be a party in any proceeding relative to [a] claim

White, 681 F.2d 275, 287 (5th Cir. 1982), —— on —

ounds by Newpark Shipbuilding & Repair, Inc. v. houn ‘

723 F.2d 399 th Cir.) (en bane), cert. denied, 469 U.S. 818 (1984);

see also White v. Ingalls Shipbuilding Div., Litton Sys., Inc., 12

Ben Rev. Bd. Serv. (MB) 905, 907 (1980). Close examination of the

Act refutes that argument. The Act also employs the term party

aggrieved” when referring to administrative review proceedings.

See 33 U.S.C. 921(b)(5) (any “party aggrieved” by Board decision

may seek review by full Board). And the LHWCA, before the 1972

amendments, authorized “any party in interest” to seek court

review of compensation orders. 33 U.S.C. 921(b) (1970). These

disparate uses of the terms “party in interest” and person or —

“aggrieved” weigh against the inference that Congress inten

separate tests to apply to the Director's standing to obtain Board

review and her standing to obtain judicial review. Moreover, the

distinction between administrative and judicial standing is not

supported by agency regulations, which employ the aoe

affected or aggrieved” standard in both contexts. See 20 C. F. R.

802.201 (a), 802.4 10(a).

29

for black lung benefits. 30 U.S.C. 982(k). In 1977, the

Senate Committee on Human Resources (the successor

to the Committee on Labor and Public Welfare that

drafted the 1972 Amendments to the LHWCA) explained

that this provision reflects the intent that the Director

have standing under both Acts:

Some question has arisen as to whether the

adjudication procedures applicable to black lung

claims incorporating various sections of the amended

Longshoremen’s and Harbor Workers’ Compensation

Act confers standing upon the Secretary of Labor or

his designee to appear, present evidence, file appeals

or respond to appeals filed with respect to the

litigation and appeal of claims. In establishing the

Longshore Act procedures it was the intent of this

Committee to afford the Secretary the right to

advance his views in the formal claims litigation

context whether or not the Secretary had a direct

financial interest in the outcome of the case. The

Secretary’s interest as the officer charged with the

responsibility for carrying forth the intent of

Congress with respect to the Act should be deemed

sufficient to confer standing on the Secretary or

such designee of the Secretary who has the

responsibility for the enforcement of the Act, to

actively participate in the adjudication of claims

before the Administrative Law Judge, Benefits

Review Board, and appropriate United States Courts.

S. Rep. No. 209, 95th Cong., Ist Sess. 21-22 (1977)

(emphases added). The Conference Committee adopted

the Senate provisions regarding the claim adjudication

procedures, specifically including the provision that

“made future amendments to the Longshoremen’s Act

procedures automatically applicable to black lung

30

claims.” H.R. Conf. Rep. No. 864, 95th Cong., Ist Sess.

22-23 (1978); see 30 U.S.C. 932(a). |

This unambiguous expression of congressional intent

to confer standing on the Secretary under the LHWCA,

regardless of any pecuniary interest in a particular case,

should be given considerable weight by this Court in

deciding this ease.“ See Ingalls Shipbuilding Div., Etc.

v. White, 681 F.2d 275, 286-287 & n. 10 (5th Cir. 1982)

(1977 report accompanying BLBA amendments is

persuasive extrinsic evidence of Congress’s intent under

1972 LHWCA amendments), overruled on other grounds

by Newpark Shipbuilding & Repair, Inc. v. Roundtree,

723 F.2d 399 (5th Cir.) (en banc), cert. denied, 469 U.S.

818 (1984). The Senate Committee’s statement is of

13 Several courts of appeals, even before the addition of 30

U.S.C 932(k), recognized the Director’s standing to petition for

review of Board decisions on black lung claims. See, e.g., Krolick

Contracting Corp. v. Benefits Review Bd., 558 F.2d 685, 689-690 (3d

Cir. 1977); Director, OWCP v. National Mines Corp., 554 F.2d

1267, 1271-1272 (4th Cir. 1977); Director, OWCP v. Alabama By-

Products Corp., 560 F.2d 710, 717 (5th Cir. 1977); Eastern Coal

Corp., 561 F.2d at 646; Director, OWCP v. Peabody Coal Co., 554

F.2d 310, 336-338 (7th Cir. 1977). Those decisions gave at least

some weight to the Director’s interest in obtaining reimbursement

from the mine operators for benefits paid from the Black Lung

Disability Trust Fund, although some of the decisions also

predicated standing on the Director’s other administrative

functions under the BLBA. See Eastern Coal Corp., 561 F.2d at

643-645; Alabama By-Products Corp., 560 F.2d at 717. As noted,

the Third Circuit has since accorded the Director standing, in a

case in which the Director lacked such a pecuniary interest, solely

because of “his responsibility to ensure the proper enforcement and

lawful administration of the black lung benefits program.”

Director, OWCP v. Rochester & Pittsburgh Coal Co., 678 F.2d 17,

18 n.2. (1982).

31

special significance in the circumstances at issue in

this case because it is not an after-the-fact charac-

terization of a prior statute; rather it is a statement

about Congress’s intent with regard to the manner in

which a claims adjudication process is to function at the

time Congress reexamined that process with regard to

another benefits program that is subject to the same

process. The same rules of practice and procedure before

the Board (20 C.F.R. 802.101 et seq.) apply to claim

adjudications under the LHWCA and the BLBA. To

recognize the Director’s standing under one Act but not

the other would be inconsistent with congressional

intent and would introduce unwarranted discrepancies

into the implementation of the statutory mandates.

A straightforward, realistic approach to the question

of the Director’s standing, in light of the full measure of

the Director’s statutory responsibilities and in accord

with the Constitution, permits the Director to petition

for review of what she concludes, in the exercise of her

expert judgment, to be an erroneous Board ruling in a

compensation award controversy.

ee ee

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

DREW S. Days, III

4 Solicitor General

THOMAS S. WILLIAMS, JR.

Solicitor of Lat 2 G. WALLACE

ALLEN H. FELDMAN

f * BETH S. BRINKMANN

Asseotate Bonetor Assistant to the Solicitor

STEVEN J. MANDEL General

Deputy Associate Solicitor

MARK S. FLYNN

Senior Appellate Attorney

Department of Labor

NOVEMBER 1994