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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 122

## Text

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

ot me

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anal

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0511%3A8. Public record. Not legal advice.