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

No. 93-1783

bein

In the Supreme Court of the United States

OCTOBER TERM, 1994

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

PETITIONER

Vv.

NEWPORT NEWS SHIPBUILDING AND

Dry Dock COMPANY, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

DREw S. Days, III

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

THOMAS S. WILLIAMSON, JR.

Solicitor of Labor

Department of Labor

Washington, D.C. 20210

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TABLE OF AUTHORITIES

Cases: Page

Albemarle Paper Co. Vv. Moody, 422 U.S. 405

SE ee Oe Sem eee mee ee 2

Carozza V. United States Steel Corp., 727 F.2d 14

EEE ee eee aN 10

Director, OWCP Vv. Cargill, Inc., 718 F.2d 886 (9th

RAL EC ERI Er ae a 17

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

I eae 10

Director, OWCP v. General Dynamics Corp., 982

fk fh eae aan 17

Director, OWCP v. Greenwich Collieries, 114

a aa 17-18

Director, OWCP v. National Van Lines, Inc., 613

F.2d 972 (D.C. Cir. 1979), cert. denied, 448 U.S.

REESE A a FP AEP RP Ope Ee 17

Directer, OWCP v. Newport News Shipbuilding &

Dry Dock Co., 676 F.2d 110 (4th Cir. 1982) ........ 17

Director, OWCP v. Rochester & Pittsburgh Coal

Co., 678 F.2d 17 (3d Cir. 1962) ............................. 15

Far East Conference v. United States, 342 U.S. 570

a iinet decibels 16

General Tel. Co. v. EEOC, 446 U.S. 318 (1980)...... 5

Gibas Vv. Saginaw Mining Co., 748 F.2d 1112 (6th

Cir. 1984), cert. denied, 471 U.S. 1116 (1985)... 10

INS v. Chadha, 462 U.S. 919 (1983) -....0..00002000.... 12

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

| 8 ae 12

International Primate Protection League Vv. Ad-

ministrators of Tulane Educ. Fund, 500 U.S. 72

LCI Pi re me IS IONE cee NO ee 16

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

cert. denied, 462 U.S. 1119 (1983) —.........000........ 9-10

McCord V. Benefits Review Bd., 514 F.2d 198 (D.C.

ga Hie A ele EE 7

Maine V. Taylor, 477 U.S. 181 (1986) —.................. 12

Martin v. OSHRC, 499 U.S. 144 (1991) ................. 11

Monell v. Department of Social Serv., 436 U.S. 658

RRR Rr ER Ete has” Fie SSN ne 16

II Il

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

NLRB v. E.D.P. Medical Computer Sys., Inc., 6 Longshore and Harbor Workers’ Compensation

FBG G51 (BE Cle. 19GB) .2n...ncncccsnccscsensensecesssessnsese 4 eee 1

Nacirema Operating Co. v. Benefits Review Bd., EE 15

588 F.2d 78 (Sd Cir. 1976) ...........-.c-ne-neccessessneseeees 7 | TT 16

Nathanson v. NLRB, 344 U.S. 25 (1952) ...............- 4 (a 15

Nevada v. United States, 463 U.S. 110 (1983) ........ 7 TT 2

Newpark Shipbuilding & Repair, Inc. V. Roundtree, IT 5

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

GRD OOO) anicncscensnnsscneesssnerssetsinecncittintticiestati 12 cen 2

Ohio V. Helvering, 292 U.S. 360 (1984) ..................- 16 BB U.S.C. 908 (£) (§ BCL) ) coccccccccccccceceesseesveoveseeoes 17

Oil, Chem. & Atomic Workers Int'l Union Vv. | __-——I—Il—~—~™——”——~————E sssee, 5, 11

OSHRC, 671 F.2d 643 (D.C. Cir.), cert. denied, i mea 2

GBD UB. COE (RBI) cccscncececcnccscscssrenscncesseniconincnanscs 7 a 2

Perry, In re, 882 F.2d 534 (1st Cir. 1989) ............... 11 ND 3

Ryan-Walsh Stevedoring Co. v. Trainer, 601 F.2d TT 3

OR ne 10 TT 17

Shepard v. NLRB, 459 U.S. 344 (1983) .................- 3-4 RRR 9

United States v. Nizon, 418 U.S. 683 (1974) .......... 12 9

Vaca V. Sipes, 386 U.S. 171 (1967) .......-.---------0--0- 4 | _7__ 10

Vermont Yankee Nuclear Power Corp. ¥. Natural $3 U.S.C. 921(b) (4) (§ 21(b) (4)) 0 138

Resources Defense Council, Inc., 435 U.S. 519 88 U.S.C. 921(c) (§ 21(c))......... 6, 7, 18, 15, 16, 17, 18

CROWD raecinonscscpninimnenspcensscstiateneiiiitiniidiate a 13 (ih i aaa. 3, 6

Weiss V. United States, 114 S. Ct. 752 (1994) ........ 10 BB U.S.C. 9210 (§ Qa) ..n.oenececcececcocceceecoececseeseeeee 11,13

Constitution, statutes, regulations and rule: ea

| 2, 3, 4, 6, 12 LTT 6

Administrative Procedure Act, 5 U.S.C. 551 et seq.: eT 6

© BK, GR GI) iaicsssecscccanicccscessccssegnennmenincs 17 eee 10

© UBL. GER) (8h TCO) ) ann nannannnnnecccccnsnsinnccccresene 18 A 16

fo) ee 17 20 C.F.R.:

B U.S.C. 102 eeeenesneseeseeeceeeceeeeceeenenceceeeceeenenene 17 Sections 725.410-725.422 o......ceceoeecosseseeeeveeeeeeee 14

BU B.C. F086 a nenanenccnncnnnnnnnesecneenenne 18 Ramana 15

Black Lung Benefits Act, 30 U.S.C. 932(k) -............ 14, 15 ( [_[ 10

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e ee Ce cceueneuneeormeenceuns 17

GB GO, <consncsucsittnncitiiitnsiantescpitiaaiiai x

Employee Retirement Income Security Act, 29 ‘ Miscellaneous:

U.S.C. 1002 66 86. ....-2...-.cecccecseecereccseenseesenemenesenes H.R. . No. 1441, 92d Cong., 2d Sess. (1972)......2, 9, 14

Fair Labor Standards Act of 1938, 29 U.S.C. 201 S. tng %y 1125, 92d Cong., 2d Sess. (1972) <a 9, 18

CO COG anna cncnnmennnsnenensnenencnreeseeem 3 S. Rep. No. 209, 95th Cong., Ist Sess. (1977) .......... 14

Sec. Order 38-72, 38 Fed. Reg. 90 (1978) ................ 10

Iu the Supreme Court of 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

REPLY BRIEF FOR THE PETITIONER

1. Respondent’s contention that the Director, Office of

Workers’ Compensation Programs, does not have standing

to seek judicial review of an erroneous determination by

the Benefits Review Board (Board) of a claims award

under the Longshore and Harbor Workers’ Compensation

Act, 33 U.S.C. 901 et seq. (LHWCA), is premised on a

misconception of the matter as a purely private dispute.

See Resp. Br. 6-7, 26, 28, 29. It also rests on the er-

roneous assertion that because the Director is a “neutral”

administrator, she cannot “advocate” for either a claimant

or an employer without creating an impermissible conflict

of interest. Jd. at 19, 25-28.

Congress created the federal compensation scheme of

the LHWCA to further interests broader than merely those

(1)

2

of the particular employer and employee involved in an

individual dispute. The program was enacted to “provide

adequate income replacement for disabled workers cov-

ered” under the LHWCA, “to mee[t] the needs of the

injured employee and his family,” and also to ensure

“that the employer bears the cost of unsafe conditions,”

thereby “strengthen[ing] the employer’s incentive to pro-

vide the fullest measure of on-the-job safety.” H.R. Rep.

No. 1441, 92d Cong., 2d Sess. 1 (1972). Proper deter-

mination of award disputes affects the incentive placed by

the Act on employers to enhance on-the-job safety; it also

affects the extent to which surviving dependents of de-

ceased workers as well as disabled workers themselves

will have to seek financial assistance from other public

programs—a result Congress specifically intended to

avoid. See Pet. Br. 17-18.’ Cf. Albemarle Paper Co. v.

Moody, 422 U.S. 405, 417-418 (1975) (backpay award

decisions under Title VII of 1964 Civil Rights Act must

“be measured against the purposes which inform Title

VII”; “the reasonably certain prospect of a backpay

award” provides “the spur or catalyst which causes em-

ployers and unions to self-examine and to self-evaluate

their employment practices”). Accordingly, under the

LHWCA, the Director, who is the person charged with

administering and enforcing the Act, has Article III stand-

ing to seek judicial review of improper awards to vindicate

these public interests entrusted to her responsibility—in-

! Accordingly, in contrast to the ordinary situation in purely

private disputes, the remedy under the LHWCA is carefully cir-

cumscribed by the Act’s detailed standards for calculating benefits

under the LHWCA. The Act specifies what time periods compensa-

tion may cover and establishes formulae for determining the

amount of compensation (including minimum and maximum

amounts) based on a percentage of weekly wages that varies

according to such factors as the degree of disability, the part of

the body injured, and in cases of death, the number of dependents.

See 33 U.S.C. 906, 908, 909, 910.

3

terests that neither the employer nor the employee may

have the same incentive to protect.”

As we show in our opening brief, the Director also has

legally cognizable interests in the propriety and sufficiency

of an award under the LHWCA because of the many spe-

cific duties imposed on her by Congress, see Pet. Br. 15-

16, 22-25, including her power to bring actions to enforce

compensation awards, 33 U.S.C. 921(d).* The Director's

standing to protect against injury to her duties under the

Act, by challenging erroneous decisions on claims for ben-

efits, cannot be distinguished materially under Article III

from other statutory schemes in which government officials

seek to protect the public interest and obtain relief that

also benefits private individuals. See Pet. Br. 18 (discuss-

ing government’s authority under Title VII of the Civil

Rights Act, the Employee Retirement Income Security

Act, and the Fair Labor Standards Act); see also Shepard

2 Congress recognized that in some cases employers and employees

might prefer to reach a settlement or to arrange their financial

relationship in a different manner that might better serve their

individual interests but not the public goals, but it significantly

restricted their ability to do so. See 38 U.S.C. 908(i) (employer’s

liability not discharged unless settlement approved by deputy com-

missioner or ALJ, and settlement may be approved only if adequate

and not procured by duress); 33 U.S.C. 915(b) (prohibiting em-

ployees from waiving their rights to compenseation under the

LHWCA) ; 33 U.S.C. 916 (providing that “[n]o assignment, release,

or commutation of compensation or benefits due or payable” under

the Act, except as provided by the Act, shall be valid).

® One of the issues raised by the Director in the court of appeals

concerned whether the Board erred in resolving as a matter of

law the question whether the claimant made diligent efforts to

obtain employment in the circumstances of this case, since the

claimant reasonably relied on employer statements about a possible

position and cooperated with a vocational counselor. How that

question is resolved affects the Director’s policies on vocational

rehabilitation services and her duty to advise employees’ regarding

their obligations to seek employment during transition periods and

1 ie rehabilitation. See 33 U.S.C, 989(c) (1); see also Pet.

r. 19.

4

v. NLRB, 459 U.S. 344, 351-352 (1983); Vaca v. Sipes,

386 U.S. 171, 182-183 (1967); Nathanson v. NLRB, 344

U.S. 25, 27 (1952) (NLRB is creditor within meaning

of Bankruptcy Act of company against whom Board has

issued backpay order); NLRB v. E.D.P. Medical Com-

puter Sys., Inc., 6 F.3d 951 (2d Cir. 1993) (NLRB acts

in public interest when it seeks backpay for workers in-

jured by unfair labor practices).

Respondent and its amici attempt to distinguish those

statutes by arguing that Congress in those schemes “spe-

cifically conferred standing” on a government official

(Amici Br. 13) or set forth a “central governmental en-

forcement mechanism” (Resp. Br. 34). These, however,

are statutory, not constitutional, arguments against stand-

ing. If, as we maintain, the LHWCA allows the Director

to participate in LHWCA adjudications and their judicial

review, then the Director has Article III standing to seek

a compensation order that will provide the claimant his

rightful benefits, just as government officials have Article

III standing under numerous other statutes to vindicate

the public interest by obtaining relief that benefits private

individuals.

Respondent contends (Br. 25-27, 28) that the Director

is a “neutral” administrator. To the extent respondent

means that the Director argues in favor of an accurate

award under the Act regardless of who stands to benefit

from any necessary correction, we agree. To the extent,

however, respondent argues that the Director therefore

cannot “advocate” for the posifton advanced by either

claimants or employers (Resp. Br. 19, 25-27), we dis-

agree. In any instance where a claimant seeks an accurate,

adequate award of the maximum benefits to which he is

entitled under the Act, the Director’s interests necessarily

coincide with those of the claimant. In other instances,

when a claimant is seeking an award greater than what he

is due under the Act, the Director’s interests coincide with

the employer’s. In either instance, the fact that the em-

ployee or employer shares her interest does not mean that

wee ee =

5

the Director is either biased or no longer protecting the

governmental interests conferred by the Act. Cf. General

Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980) (when

“EEOC acts, albeit at the behest of and for the benefit

of specific individuals, it acts also to vindicate the public

interest in preventing employment discrimination”).* The

Director has a material interest in the proper construction

and application of the Act, and that interest is engaged

each time the Director concludes that the Board has in-

correctly adjudicated a particular claim, no matter who

stands to benefit from the resolution of the dispute—the

affected employee, employer, or insurer.

Respondent also argues (Br. 19, 31-32) that if the

Director participates in proceedings where a claim award

is being determined, it “may result in the Director taking

positions which are in direct conflict with her pecuniary

interest in protecting the assets of the Special Fund.”

Resp. Br. 31. As respondent points out, even in this

case, there is a potential to increase the liability of the

Special Fund, depending on what degree of disability is

* Respondent’s assertions that “there is no need for the Director

to act as on advocate for claimants” (Br. 29) ignores the fact that

by urging an accurate award for the claimant in this case, the

Director is espousing her own interests as the official charged with

administering and enforcing the Act, which here coincide with

those of the claimant. In any event, there is no legal prohibition

against the Director’s acting as an advocate for or protector of a

claimant’s interests, inasmuch as Congress determined that in some

instances there is a need for her to do so. Sce, e.g., 38 U.S.C.

939(c)(1) (authorizing Director to provide legal assistance to

claimants): 33 U.S.C. 908(i) (authorizing Director to approve

settlements only after review to ensure not inadequate and not

procured by duress).

Similarly, Congress determined that the Director’s interests

would sometimes coincide with the employers’ interests. See, e.9.,

33 U.S.C. 907(b) (Secretary has authority to determine sufficiency

of medical care and may on his own, or at request of employer, order

a change of physicians or hospitals when desirable, including when

the charges (which the employer pays, 33 U.S.C. 907(a)) exceed

customary community charges).

6

determined, what length of time payments are awarded,

ibid., and whether respondent becomes insolvent. /d. at

32. Respondent reasons that as administrator of the

Special Fund, the Director “is obligated to protect its

assets,” id. at 31, and that there is therefore a potential

conflict of interest when the Director advocates a position

that could increase the financial burden on the Special

Fund. /d. at 31-32.

Again, respondent misperceives the duties Congress im-

posed on the Director under the LHWCA. As adminis-

trator of the Special Fund, the Director’s role is not to

resist payment of meritorious claims; to the contrary, her

duty is to authorize payment on claims that meet the

criteria for Special Fund payment. The fact that an in-

crease of a claimant’s award would increase the liability

of the Fund does not present a conflict of interest; it is

wholly consistent with the duties assigned to the Director

under the Act, as long as the award is an accurate deter-

mination of what is due the claimant under the Act.° Cf.

5 Respondent concedes that the Director has Article III stand-

ing to appeal awards decisions in certain circumstances, e.g.,

where the award affects the Special Fund or where the decision

deals “with her procedural rules for administering Longshore Act

claims.” See Resp. Br. 28. Respondent also states that the Director

“arguably has Article III standing to appeal decisions on the

jurisdictional scope of the Longshore Act, since such decisions

define her administration.” Jbid. Likewise, amici acknowledge

(Br. 21, 18-19) that the Director “may well incur injury in fact

* * * when [] a [Board] order conflicts with her delegated statu-

tory enforcement responsibilities,” which amici identify (Br. 19) as:

the Secretary’s authority to enforce final compensation awards,

33 U.S.C. 921(d); his authority over the Special Fund, 33 U.S.C.

944: and his authority to promulgate and enforce safety rules,

33 U.S.C. 941.

Respondent and amici suggest, however, that the Director does

not have statutory standing under 33 U.S.C. 921(c) to protect

even those concededly legally cognifigle interests against injury

because, they assert, the Director is not a “person” within the

meaning of 921(c). Resp. Br. 38-39; Amici Br. 19. That contention

is contrary to the court of appeals’ express holding (Pet. App. 9a,

13a), and, as we show, pp. 15-17, infra, is in error.

7

Nevada v. United States, 463 U.S. 110, 127-128 (1983)

(noting responsibility of Secretary of the Interior to per-

form and reconcile competing statutory duties affecting

private interests).

2. Respondent and amici repeatedly argue (Resp. Br.

7-9, 25, 28-29, 38; Amici Br. 13-14) that because the

purpose underlying the 1972 amendments to the LHWCA

was to separate the administrative and adjudicatory func-

tions under the LHWCA, Congress therefore intended to

restrict the administrator’s right to judicial review. While

we agree that a major purpose of the 1972 amendments

was to remove the administrator from also serving the role

of adjudicator, that rearrangement undermines rather than

supports respondent’s position that the administrator can-

not seek judicial review of the Board’s decisions.

A purely adjudicatory entity has no legally cognizable

interest in defending its decision on review; hence, a dis-

trict court does not appear in the court of appeals to

defend its decisions. For the same reason, an administra-

tive agency whose role is purely adjudicatory “has no

duty or interest in defending its decision on appeal.” Oil,

Chem. & Atomic Workers Int'l Union v. OSHRC, 671

F.2d 643, 652 (D.C. Cir.) (per curiam), cert. denied,

459 U.S. 905 (1982). That is one of the reasons courts

have declined to accord respondent status to the Benefits

Review Board, a purely adjudicatory body, in Section

21(c) review proceedings before the court of appeals.

Nacirema Operating Co. v. Benefits Review Bd., 538 F.2d

73, 75 (3d Cir. 1976) (Board “performs a review func-

tion which prior to the 1972 amendments was performed

by the district courts [and like] * * * those courts ha[s]

no duty or interest in defending [its] actions on appeal’);

McCord Vv. Benefits Review Bd., 514 F.2d 198, 200 (D.C.

Cir. 1975) (“[t]o require the Board to appear as a party

would parallel requiring the [d]istrict court to appear and

defend its [own] decision [on] * * * appeal”).

Prior to 1972, the situation under the LHWCA was

different. The administrative function was vested in the

same persons as the adjudicatory function—the deputy

commissioners. A deputy commissioner was accorded

standing to seek court of appeals review of a district court

judgment overturning the commissioner’s decision on a

claim, even in the absence of an appeal by another party.

See Pet. Br. 26. (Neither respondent nor amici dispute

the deputy commissioners’ pre-1972 authority to seek

court of appeals review of district court decisions.) This

was so because the interest that supported the deputy com-

missioners’ standing to appear before courts and secure

judicial review was premised on their policy making, ad-

ministrative, and enforcement interests, not on their ad-

judicatory function. When the 1972 amendments sepa-

rated those functions, the natural inference is that Con-

gress acted on the premise that the administrator, now in

the person of the Director, would retain the right to seek

federal court of appeals review of claim determinations

she believes to be erroneous.

Neither respondent nor amici point to any evidence

that the 1972 amendments eliminated the authority of the

administrator to seek judicial review. Their argument

appears to view any official who participates as a party

in an adjudication as exercising some type of “adjudica-

tory” authority. The adjudicator itself (the Board) is, of

course, the only entity serving an adjudicatory function in

the proceedings. The participation of the parties (includ-

ing the Director) does not mean they too are performing

an adjudicatory role. Rather, the parties are properly ad-

vocating their distinct interests. Respondent claims that

Congress “did not intend the administrative function to be

involved in the adjudication process.” Resp. Br. 8. Yet,

the excerpt from the 1972 House Report cited by respond-

ent in support of that proposition merely reveals an intent

to keep separate the functions of administering the pro-

gram and “sitting in judgment” at the hearing, i.e., being

the adjudicator; it does not indicate an intent to prevent

the administrator from participating as a party in the

9

adjudicatory process. See Resp. Br. 8, quoting H.R. Rep.

No. 1441, supra, at 11; Amici Br. 6 (same).

In fact, by transferring the administrator’s adjudicatory

role to ALJs and the Board, the administrator’s enforce-

ment role and concomitant interest in securing judicial

review of decisions adverse to her position was enhanced,

not diminished. The amendments freed the administrator

to play a fuller role in the claims process, without inter-

fering with the independent role of the Board. The sep-

aration of functions accords the Director greater ability

to advocate her administrative interest as a participant in

proceedings under the Act. See S. Rep. No. 1125, 92d

Cong., 2d Sess. 14 (1972) (“it will be extremely impor-

tant to have full time able administrators who will not

also have to wear the dual hat of being hearing officers

for purposes of the disputes brought under this statute”).

3. Respondent contends that the Secretary is impermis-

sibly seeking an “advisory opinion” on the correctness of

competing interpretations of the Act by seeking, through

one of his delgates (the Director), review of the decision

of another of his delegates (the Board). See Resp. Br. 22

n.13, 23-25, 29, 36-38, 39. This argument miscompre-

hends the nature of the Benefits Review Board.

The Board, insofar as it issues decisions on claims, is

not a delegate of the Secretary; that adjudicatory duty is

assigned by statute directly to the Board itself. See 33

U.S.C. 921(b)(2). In arguing to the contrary, respond-

ent mistakenly relies (Br. 37) on 33 U.S.C. 921(b)(1),

which permits the Secretary to delegate to the Board’s

chairman oversight of “all administrative functions” nec-

essary to operate the Board. That provision does not con-

cern delegation of adjudicatory functions, which are statu-

torily lodged in the Board in the first instance.

Congress clearly intended the Board’s adjudicatory

function to be exercised independently of the administra-

tion of the Act, and it entrusted the Secretary with the

obligation to ensure that independence. See H.R. Rep.

No. 1441, supra, at 11; see also Kalaris v. Donovan, 697

10

F.2d 376, 390 & 392 n.64 (D.C. Cir.), cert. denied, 462

U.S. 1119 (1983); Director, OWCP v. Eastern Coal Corp.,

561 F.2d 632, 649 (6th Cir. 1977) (Board is independent

of Secretary “as far as policy and decision making are

concerned”). The Secretary has therefore accorded the

Board complete independence from both the Director and

the Secretary in its decisionmaking. See Sec. Order 38-72,

38 Fed. Reg. 90, 91 (1973) (Secretary’s order establish-

ing Board directs Under Secretary of Labor to “promul-

gate such rules and regulations as may be necessary or

appropriate fer effective operation of the Board as an

independent quasi-judicial body in accordance with the

provisions of the statute”); see also 20 C.F.R. 801.104.

Indeed, courts have held that the Board has the power

to declare the Secretary’s regulations to be contrary to

law. Gibas v. Saginaw Mining Co., 748 F.2d 1112,

1119-1120 (6th Cir. 1984), cert. denied, 471 U.S. 1116

(1985); Carozza v. United States Steel Corp., 727 F.2d

74, 77 (3d Cir. 1984). The Board does not, however,

have authority to engage in administration of the LHWCA

by promulgating rules. See Ryan-Walsh Stevedoring Co.

Vv. Trainer, 601 F.2d 1306, 1314 n.7 (Sth Cir. 1979);

33 U.S.C. 921(b) (3).

To be sure, the Board differs somewhat from other

fully independent adjudicatory bodies, such as the Occu-

pational Safety and Health Review Commission (OSHRC),

see 29 U.S.C. 661, in that the Board is placed within the

Department of Labor and the Secretary has the power to

appoint and remove members as well as to exercise other

operational control over the Board. Kalaris, 697 F.2d at

390-391. Cf. Weiss v. United States, 114 S. Ct. 752

(1994). Nonetheless, the Secretary plays no part in the

Board’s determination of an award.’ Thus, although the

* Amici err in chastising (Br. 16 & n.12) the Department

for “commingling [administrative and adjudicatory] functions” by

permitting “the OWCP and the ‘quasi-independent’ BRB [to]

share the same attorneys and legal advice from the Office of the

il

Board is located within the Department of Labor, it, like

OSHRC, deviates “from the conventional agency model

in that it is purely an adjudicator; there is no intermixing

of regulatory, prosecutorial, and adjudicative functions.”

In re Perry, 882 F.2d 534, 537 (1st Cir. 1989); see also

Martin v. OSHRC, 499 U.S. 144, 151 (1991).

The Board’s decisions therefore cannot be considered

“unitary” agency decisions, as respondent and amici sug-

gest (Resp. Br. 20; Amici Br. 15), because they are not

decisions of the Secretary and do not reflect the Secre-

tary’s resolution of the claim. In fact, the bifurcated

structure of the administrative scheme established by the

LHWCA reinforces the fact that the Secretary and the

Board may reach differing positions in light of their dif-

ferent roles. The Secretary “enjoys readily identifiable

structural advantages” over the Board in certain respects

because he participates in informal resolutions of claims,

33 U.S.C. 908(i), and “comes into contact with a much

greater number of regulatory problems than does the

[Board], which encounters only those regulatory episodes

resulting in contested [claims].” Martin v. OSHRC, 499

U.S. at 152. Thus, the Secretary, through the Director,

is free to seek judicial review of Board decisions when,

in his view, the Board incorrectly has resolved a claim.

The Director is clearly not seeking an advisory opinion

from the court of appeals, as respondent suggests (Br. 22

n.13, 24). If the Secretary were to prevail on the merits

in this case, the victory would have a concrete effect: It

would result in entry by an OWCP district director of a

new compensation order requiring the employer to pay a

Solicitor of Labor.” In fact, the Board employs its own staff of

attorneys, who are in the Board’s Office of General Counsel, wholly

apart from the Office of the Solicitor of Labor. The Office of the

Solicitor represents the Board, in conformity with 33 U.S.C. 921a,

only in the rare instances when the Board has been the subject

of a mandamus action, and it is the Solicitor’s policy to assign

those cases to attorneys from the Solicitor’s Office who do not

represent the Director before the Board.

12

higher level of benefits to his injured employee. The Sec-

retary cannot provide such relief; under the terms of the

LHWCA, such relief can come only from the court of

appeals once a final Board decision has been entered. Cf.

Maine v. Taylor, 477 U.S. 131, 137 (1986) (a State, as

intervenor in federal criminal prosecution, has standing to

appeal ruling invalidating state law even though federal

prosecutor did not seek further review, because contro-

versy remained live inasmuch as reversal of judgment

would result in automatic reinstatement of defendant’s

conviction); United States v. Nixon, 418 U.S. 683, 692-

697 (1974).”

4. Although respondent and its amici do not dispute

that the Secretary’s regulations specifically identify the

Director as a party entitled to assert his interest in the

administrative process and seek judicial review, they sug-

gest that those regulations conflict with the Act. Amici

Br. 5-11; Resp. Br. 24 n.14. The amici go so far as to

contend (Br. 8), without any supporting authority, that

the Secretary overstepped his authority by authorizing the

Director to appear as a “part[y] in interest” in adminis-

trative proceedings. That contention has no merit. See

Ingalls Shipbuilding Div. v. White, 681 F.2d 275, 288

(Sth Cir. 1982) (upholding Director’s party-in-interest

Status in administrative proceedings), overruled in part on

other grounds, Newpark Shipbuilding & Repair, Inc. v.

Roundtree, 723 F.2d 399 (Sht Cir.), cert. denied, 469

U.S. 818 (1984). The Act expressly authorizes the Secre-

tary to issue rules and regulations for purposes of admin-

7 Respondent errs in suggesting (Br. 7, 20, 22 & n.13, 36-37)

that petitioner lacks Article III standing because the sole contro-

versy here is between the Director and the Board, and that the

Director’s injury is not attributable to respondent. It is respond-

ent that has refused to pay what the Director contends is the

appropriate disability benefit for the period in question; thus,

there is a controversy between the parties “attributable to the

[conduct of the] opposing party (the employer) [as] required for

Article III * * * standing.” Resp. Br. 20. Compare JNS v. Chadha,

462 U.S. 919, 939-940 (1983).

13

istering the Act, 33 U.S.C. 939(a), and it is a “very

basic tenet of administrative law that agencies should be

free to fashion their own rules of procedure.” Vermont

Yankee Nuclear Power Corp. v. Natural Resources De-

fense Council, Inc., 435 U.S. 519, 544 (1978). That

tenet is particularly applicable here, because Congress in

1972 intended “that the Secretary take full advantage of

the requirement of separating the functions under this

statute to consider a complete reorganization of the * * *

administration of th{e] Act” and “to revise the regulations

under this Act which ha[d] not been amended for many

years.” S. Rep. No. 1125, supra, at 14.

Amici also argue (Br. 8-9) that 33 U.S.C. 921(b)(4),

which permits the Board to remand a case to the ALJ

without the consent of “parties in interest,” somehow es-

tablishes that the Director cannot be a party in interest

and therefore precludes her from participating in the ad-

ministrative process. To the contrary, the most natural

reading of that statutory provision is that the Secretary is

one of the parties in interest before the Board. The Secre-

tary is expressly accorded the authority to request a re-

mand from the Board in recognition of his special role in

protecting the public interest through accurate claim deter-

minations. Indeed, the most natural way for the Secretary

to make such a request would be by participating as a

party to the administrative proceeding.

The arguments pressed by respondent and amici with

regard to the Director’s seeking judicial review are un-

availing as well. Respondent attempts (Br. 9) to limit

the significance of 33 U.S.C. 92la, which allows attor-

neys appointed by the Secretary to represent him “in any

court proceeding[].” Contrary to respondent’s contention

(Br. 9) that the provision is limited to “enforcement pro-

ceeding[s],” the provision by its terms is not so limited,

and clearly encompasses Section 21(c) review proceed-

ings in the court of appeals."

® The amendment to Section 2la of the Act was described in the

legislative history as follows: “Under present law, it is the obliga-

14

5. Respondent attempts (Br. 35) to downplay the sig-

nificance of the Black Lung Benefits Act (BLBA), which

adopted the pertinent LHWCA procedures. See also

Amici Br. 14-15 & n.11. Respondent points out that the

BLBA contains a provision that specifies that the Director

has party status. 30 U.S.C. 932(k).

We show in our opening brief, however, that the legis-

lative history of the BLBA provision makes clear that at

the time Congress enacted that provision, it viewed the

Secretary as already having standing under the LHWCA

to seek judicial review based on his “interest as the offi-

cer charged with the responsibility for carrying forth the

intent of Congress with respect to the Act.” S. Rep. No.

209, 95th Cong., Ist Sess. 22 (1977). Congress enacted

30 U.S.C. 932(k) to confirm that understanding at the time

it brought the BLBA under the same administrative scheme.

Neither respondent nor its amici provide sound reasons for

rejecting that considered judgment or for treating the black

lung scheme differently than the longshore scheme. Both

respondent and the amici assert (Resp. Br. 35-36; Amici

Br. 15 n.11) that the BLBA is different because in some

cases the Black Lung Disability Trust Fund, which the

Director administers, is liable on a claim. Many claims

under the BLBA, however, do not implicate the Black

Lung Disability Trust Fund,*® and there is no indication

tion of the United States attorney in the district where a case is

pending to represent the Secretary or deputy commissioner in cases

under the Act. Under the amendment made by this section, attor-

neys will be appointed by the Secretary to represent the Secretary,

the deputy commissioner, a hearing officer, or the Board, except in

proceedings in the Supreme Court.” H.R. Rep. No. 1441, supra,

at 21-22.

* Respondent states (Br. 36) that in the majority of black lung

claims the Black Lung Disability Trust Fund is primarily liable

for the claim. This is an overstatement. The Director estimates,

for example, that of claims decided during fiscal year 1994 at the

district director level, see 20 C.F.R. 725.410-725.422, no more than

15

that 30 U.S.C. 932(k) was intended to apply only to

cases implicating the Fund. Indeed, the legislative history

of the provision makes clear that a financial stake is not

a prerequisite to the Director’s standing, and the Direc-

tor’s standing has been upheld under the Act even in the

absence of a pecuniary interest. Director, OWCP v.

Rochester & Pittsburgh Coal Co., 678 F.2d 17, 18 n.2

(3d Cir. 1982). Denying the Director standing under

the LHWCA, or limiting her standing to cases in which

she has a financial interest, would create unwarranted

divergence between LHWCA and BLBA procedures,

whereas Congress intended that the procedures for ad-

ministrative and judicial review under the statutes be the

same.

6. Finally, respondent and amici argue (Resp. Br. 20,

23, 38-39; Amici Br. 3, 11-13) that the Director does not

have statutory standing under 33 U.S.C. 921(c) as a

“person adversely affected or aggrieved,” because she is

not a “person” within the meaning of the LHWCA. Their

argument appears to be that because the statutory defini-

tion of “person” (33 U.S.C. 902(1)) does not in terms

include “Secretary,” and because there also is a statutory

definition of “Secretary” (33 U.S.C. 902(6)), the Secre-

tary is necessarily excluded from being considered a per-

son under the Act.

That argument is illogical and inconsistent with the

structure of the Act. “Person” is defined for purposes of

the Act as an “individual, partnership, corporation, or

association.” 33 U.S.C. 902(1). “Secretary” is defined

to be the Secretary of Labor. 33 U.S.C. 902(6). The

mere fact that there is a separate definition to explain who

30% are claims in which the Director arguably has a financial

interest, i.e., are claims in which the Trust Fund is primarily liable

or are claims on which, although a responsible operator has been

identified, the Trust Fund is paying interim benefits, pending final

resolution, based on the district director’s initial finding of en-

titlement. See 20 C.F.R. 725.522.

16

is referred to by the term “Secretary” does not mean that

the Secretary is not an “individual” for purposes of the

definition of “person.” In fact, if respondent’s logic were

correct, employers would not have standing under 33

U.S.C. 921(c), because “Employer” is defined separately

in 33 U.S.C. 902(4) and the definition of “person” does

not specifically include “employer.”

It is clear that the Director is an “individual,” and

hence a “person” entitled to obtain review under 33 U.S.C.

921(c). The term “person” may encompass a govern-

mental official, such as the Director, where the context of

the statute so indicates. See generally Ohio v. Helvering,

292 U.S. 360, 370 (1934) (whether term “person” in-

cludes a State or United States depends upon the legisla-

tive context in which the word is found); see also /nterna-

tional Primate Protection League v. Administrators of Tu-

lane Educ. Fund, 500 U.S. 72, 83 (1991) (“conventional

reading of ‘person’ [as excluding the sovereign] may * * *

be disregarded if ‘[t]he purpose, the subject matter, the

context, the legislative history, [or] the executive interpre-

tation of the statute * * * indicate an intent, by the use of

the term, to bring state or nation within the scope of the

law’); Monell v. Department of Social Serv., 436 U.S.

658 (1978) (municipal officials are persons under 42

U.S.C. 1983); Far East Conference v. United States,

342 U.S. 570, 576 (1952) (United States is “person”

who may file a complaint under Shipping Act of 1916).

The LHWCA’s structure and history compel the conclu-

sion that the Director is a “person.” Indeed, were this

not so, the Director would be powerless to seek review of

any Board decision, a result that would be inconsistent

with the holding of the court below and of every court of

appeals that has addressed the question of the Director’s

standing.

The court of appeals expressly held that the Director is

a “person adversely affected or aggrieved” by the Board’s

ruling on whether respondent was entitled to relief from

17

the Special Fund under Section 8(f) of the Act, 33

U.S.C. 908(f), and reversed the Board’s ruling on het

issue. See Pet. App. 9a, 13a (Director is “person *

aggrieved” by a Board ruling that the Special Fund

liable under Section 8(f)). Thus, contrary to oo

ent’s assertion (Br. 39) that the court of appeals “did

not * * * have to reach the issue,” the court of appeals’

holding necessarily includes a determination that the Di-

rector is a “person” within the meaning of the Act—a

holding that respondent did not challenge by filing a cross-

petition for certiorari under this Court’s Rule 12.3.

Moreover, no court has suggested that the Director is

without any authority to seek review under 33 U.S.C.

921(c), which would be the necessary consequence of

holding that the Director is not a “person” under the

Act. Every court that has addressed the issue in the con-

text of a Section 8(f) dispute has accorded the Director

standing to seek judicial review. See, e.g., Director, OWCP

v. Cargill, Inc., 718 F.2d 886, 888 (9th Cir. 1983); Direc-

tor, OWCP v. Newport News Shipbuilding & Dry Dock

Co., 676 F.2d 110, 114 (4th Cir. 1982); 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); see also

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

790 (2d Cir. 1992) (petition for review granted).

Amici (Br. 16-17; 21-22) err in suggesting that the

Director’s statutory standing is precluded by the Adminis-

trative Procedure Act (APA), which, unlike the LHWCA,

expressly excludes federal agencies from those “persons”

that it authorizes to obtain judicial review of agency ac-

tion. See 5 U.S.C. 702, 701(b)(2), 551(2). That provi-

sion is not applicable to judicial review proceedings under

the LHWCA ” because, according to the APA itself, “[t}he

-

” As we note in our opening brief, the LHWCA specifies that

hearings before ALJs shall be conducted in accordance with APA

procedures. See 33 U.S.C. 919(d). Although amici cite (Br. 17

n.13) Director, OWCP v. Greenwich Collieries, 114 S. Ct. 2251

18

form of proceeding for judicial review is the special statu-

tory review proceeding relevant to the subject matter in

a court specified by statute.” 5 U.S.C. 703. In the case

of Benefits Review Board decisions under the LHWCA,

that special statutory review proceeding is the proceeding

authorized by Section 21(c) of the LHWCA, 33 U.S.C.

921(c), which must be interpreted according to its own

terms and the structure and purposes of the LHWCA as

a whole.

For the foregoing reasons and those stated in petition-

er’s opening brief, the judgment of the court of appeals

should be reversed, and the case should be remanded for

further proceedings.

Respectfully submitted.

Drew S. Days, III

Solicitor General

THOMAS S. WILLIAMSON, JR.

Solicitor of Labor

DECEMBER 1994

(1994), that decision is inapposite. The Court there held that

Section 7(c) of the APA, 5 U.S.C. 556(c), placing the burden of

proof on a proponent of an order, governs in ALJ hearings because

the LHWCA does not indicate that a contrary rule applies.

® 6. 6. covesswert paerine orrice, 1994 se7147 20025