Amicus Curiae Brief — Metropolitan Stevedore Co. v. Rambo

MOTION FILED

Jan 10 1997 No. 96-272 oe

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

METROPOLITAN STEVEDORE COMPANY,

. Petitioner,

JoHN RAMBO, et al.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF AMICI CURIAE ON BEHALF OF THE

NATIONAL ASSOCIATION

OF WATERFRONT EMPLOYERS,

MASTER CONTRACTING STEVEDORE ASSOCIATION

OF THE PACIFIC COAST, INC.,

SHIPBUILDERS COUNCIL OF AMERICA,

THE ALLIANCE OF AMERICAN INSURERS, AND

SIGNAL MUTUAL INDEMNITY ASSOCIATION, LTD.

IN SUPPORT OF PETITIONER

DENNIs J. LINDSEY CHARLES T. CARROLL, JR.*

LINDSAY, HART, NEIL & WEIGLER F. EDWIN FROELICH

General Counsel WILcox, CARROLL & FROELICH

MASTER CONTRACTING STEVEDORE

P P.L.L.C.

ASSOCIATION OF THE PACIFIC 2011 Pennsylvania Avenue, N.W.

Coast, INc. .

1300 S.W. Fifth Avenue Wachinaten. DC 20006

Suite $400 (202) 296-3005

Portland, OR 97201-5696

(508) 226-7677 FRANKLIN W. LOSEY

General Counsel

SHIPBUILDERS COUNCIL

OF AMERICA

901 North Washington Street

Suite 204

Alexandria, VA 22314

(703) 548-7447

* Counsel of Record

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-272

METROPOLITAN STEVEDORE COMPANY,

7 Petitioner,

JOHN RAMBO, et ai.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

Pursuant to Rule 37 of the Rules of the Supreme Court

of the United States, the National Association of Water-

front Employers, Master Contracting Stevedore Associa-

tion of the Pacific Coast, Inc., Shipbuilders Council of

America, the Alliance of American Insurers, and Signal

Mutual Indemnity Association, Ltd. move for leave to

file the brief amicus curiae in support of Petitioner,

Metropolitan Stevedore Company.

The Petitioner has consented in writing to the filing of

a brief amici curiae on its bebalf. The Federal Respond-

ent has also consented. Letters of consent have been

filed with the Clerk of this Court pursuant to Rule 37.3

of the Court. Respondent has not so consented.

The National Association of Waterfront Employers

(NAWE), formerly the National Association of Steve-

dores (NAS), is a not-for-profit tax exempt [26 U.S.C.

§ 501(c)(6)] trade association organized under the laws

of the Distirct of Columbia whose 33 member companies

are stevedore contractor/marine terminal operators-doing

business at 110 ports on all four of the nation’s sea-

coasts, the states of Alaska and Hawaii, and the Common-

wealth of Puerto Rico. With the exception of the Puerto

Rico members, every NAWE member company employs

longshore labor engaged in maritime employment subject

to the Longshore and Harbor Workers’ Compensation

Act (LHWCA).

The Master Contracting Stevedore Association of the

Pacific Coast, Inc. (MCSA) is a not-for-profit trade

association whose 15 member companies provide contract

stevedoring services in all principal ports in the states of

California, Oregon, Washington, Alaska and Hawaii and

provide substantially all the marine terminal and steve-

doring services performed by private contractors to ocean-

going vessels calling at ports in those states. MCSA

member companies employ a work force of approximately

8,000 longshoremen and clerks who are engaged in mari-

time employment subject to the LHWCA.

The Shipbuilders Council of America (SCA) is a

not-for-profit trade association whose member companies

are shipbuilders, ship repairers, and component manu-

facturers located in all sections of the country. Shipyard

workers employed by SCA member companies are en-

gaged in maritime employment subject to the LHWCA.

The Alliance of American Insurers is an association of

214 insurance companies whose member companies write

property and casualty insurance, including state workers’

compensation and federal LHWCA insurance, employers’

miscellaneous or general liability throughout the United

States.

Signal Mutual Indemnity Association, Ltd. is a group

self-insurance facility authorized by the Secretary of Labor

2

to secure the benefits payable under the LHWCA on a

non-profit and cost effective basis for selected employers

over the long term.

Amici collectively comprise the majority of insured and

self-insured employers and insurance carriers covered by

the Longshore and Harbor Workers’ Compensation Act

and the largest group self-insurance facility authorized to

write LHWCA coverage, and thus have an interest in the

proper payment of disability benefits to a claimant whose

original award is modified due of an increased wage-

earning capacity. These amici also participated as amicus

in Metropolitan Stevedore Company v. Rambo (Rambo

/), US. , 115 S.Ct. 2144 (1955).

Accordingly amici respectfully move for leave to file

the attached brief amici curiae in support of the Petitioner.

DENNIS J. LINDSEY CHARLES T. CARROLL, JR.*

LINDSAY, HART, NEIL & WeicLeR F. EDWIN FROELICH

General Counsel

M Con ne 8 “or _— & FROELICH,

ay tag OF THE PACIFIC 2011 Pennsylvania Avenue, N.W.

Coast, INC. Suite 301

1300 S.W. Fifth Avenue Washington, DC 20006

Suite 3400

Portland, OR 97201-5696 (308) 396-5008

(508) 226-7677 FRANKLIN W. LOSEY

General! Counsel

SHIPBUILDERS COUNCIL

oF AMERICA

900 North Washington Street

Suite 204

Alexandria, VA 22314

(703) 548-7447

* Counsel of Record

TABLE OF CONTENTS

Ne Oe

STATEMENT OF INTEREST OF AMICI CURIAE....

SUMMARY OF ARGUMENT ...............

rr

I. THE DECISION BELOW VIOLATES TWO

Il.

a

CRITICAL REQUIREMENTS OF THE AD-

MINISTRATIVE PROCEDURE ACT: THE

§ 706 STANDARDS GOVERNING JUDICIAL

REVIEW AND THE §556(d) STANDARDS

GOVERNING THE BURDEN OF PROOF

CO Oe

A. The Court Below Ignored the Whole Record

and Substituted Its Judgment for That of the

Administrative Factfinder in Violation of the

Standards Governing Judicial Review .._......

B. The Ninth Circuit’s Decision Violates the

APA by Placing the Burden of Persuasion

on the Wrong Party and Substituting

Speculation for the Substantial Evidence

THE NINTH CIRCUIT SUBSTITUTED ITS

JUDGMENT FOR THAT OF CONGRESS,

THUS USURPING THE POLICY MAKING

ROLE OF CONGRESS ................2.22...-c-ecccsecseseoee

(i)

ii

TABLE OF AUTHORITIES

Cases: Page

Citizens to Preserve Overton Park v. Volpe, 401

IR UE Se 7

Director, Office of Workers’ Compensation Pro-

grams v. Greenwich Collieries, —— U.S. ——,

Se Cr, i a a

Director, OWCP v. Newport News Shipbuilding

& Dry Dock Co.., U.S. ——, 115 S.Ct. 1278

AS ISP ERR SE SEL 4

Metropolitan Stevedore Company v. Rambo

(Raiibo I), — US. ——, 115 S.Ct. 2144

TITS SRE SE EG Re EE SEEN a coo? passim

Northeast Marine Terminal Company, Inc. v.

Caputo, 482 U.S. 249 (1977) .. 3

Potomac Electric Power Co. v. Director, Office of

Workers’ Compensation Programs, 449 U.S. 268

Fe es ee es 3

Universal Camera v. NLRB, 340 U.S. 474 (1951). 6,7

Statutes :

Administrative Procedure Act (“APA”), 5 U.S.C.

§ 551 et seq.

| EE aS EE EE es

RE A he SR Re

TET EAL TOE

I a

Federal Employees’ Compensation Act, 5 U.S.C.

§ 8101 et seq. .

Longshore and Harbor ‘Workers’ ‘Compensation

Act, 33 U.S.C. § 901 ef seq... een... passim

EET SA LS at

RRR SUES

33 U.S.C. § 908(b) hy CORRES ell

33 U.S.C. § 9OB(e) (21) eee i

distinc 4,

ee 4,5

aa

i kT Ra 4,

o Aan @w

-

omvaaawwe

#

TABLE OF AUTHORITIES—Continued

Legislative :

S. Rept. 98-81 (May 10, 1983)

IN THE

Supreme Court of the United States

OcTOBER TERM, 1996

No. 96-272

METROPOLITAN STEVEDORE COMPANY,

Petitioner,

Vv.

JOHN RAMBO, et ai.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE ON BEHALF OF THE

NATIONAL ASSOCIATION

OF WATERFRONT EMPLOYERS,

MASTER CONTRACTING STEVEDOPE ASSOCIATION

OF THE PACIFIC COAST, INC,

SHIPBUILDERS COUNCIL OF AMERICA,

THE ALLIANCE OF AMERICAN INSURERS, AND

SIGNAL MUTUAL INDEMNITY ASSOCIATION, LTD.

IN SUPPORT OF PETITIONER

STATEMENT OF INTEREST OF AMICI CURIAE

The National Association of Waterfront Employers

(NAWE), formerly the National Association of Steve-

dores (NAS), is a not-for-profit tax exempt [26 U.S.C.

§ 501(c)(6)] trade association organized under the laws

of the District of Columbia whose 33 member companies

are stevedore contractor/marine terminal operators doing

business at 110 ports on all four of the nation’s seacoasts,

the states of Alaska and Hawaii, and the Commonwealth

2

of Puerto Rico. With the exception of the Puerto Rico

members, every NAWE member company employs long-

shore labor engaged in maritime employment subject to

the Longshore and Harbor Workers’ Compensation Act

(LHWCA).

The Master Contracting Stevedoring Association of the

Pacific Coast, Inc. (MCSA) is a not-for-profit trade as-

sociation whose 15 member companies provide contract

stevedoring services in all principal ports in the states of

California, Oregon, Washington, Alaska and Hawaii and

provide substantially all the marine terminal and steve-

doing services performed by privte contractors to ocean-

going vessels calling at ports in those states. MCSA

member companies employ a work force of approximately

8,000 longshoremen and clerks who are engaged in mari-

time employment subject to the LHWCA.

The Shipbuilders Council of America (SCA) is a not-

for-profit trade association whose member companies are

shipbuilders, ship repairers, and component manufactur-

ers located in all sections of the country. Shipyard work-

ers employed by SCA member companies are engaged

in maritime employment subject to the LHWCA.

The Alliance of American Insurers is an association

of 214 insurance companies whose member companies

write property and casualty insurance, including state

workers’ compensation and federal LHWCA insurance,

employers’ miscellaneous or general liability throughout

the United States.

Signal Mutual Indemnity Association, Ltd. is a group

self-insurance facility authorized by the Secretary of Labor

to secure the benefits payable under the LHWCA on a

non-profit and cost effective basis for selected employers

over the long term.

Amici collectively comprise the majority of insured

and self-insured employers and insurance carriers covered

by the Longshore and Harbor Workers’ Compensation

3

Act and the largest group self-insurance facility authorized

to write LHWCA coverage, and thus have an interest in

the proper payment of disability benefits to a claimant

whose original award is modified due of an increased

wage-earning capacity. These amici also participated as

amicus in Metropolitan Stevedoring Company v. Rambo

(Rambo 1), US. , 115 S.Ct. 2144 (1995).

SUMMARY OF ARGUMENT

The Ninth Circuit’s decision below, reading into § 22

of the Longshore and Harbor Workers’ Compensation

Act, 33 U.S.C. $901 et seq. (“LHWCA”—*“Act”) a

non-existent provision for a “nominal award,” ignores

the plain text of the statute and Congressional intent.

The court exceeded its review authority under the Ad-

ministrative Procedure Act, 5 U.S.C. $551 ef seq., by

not considering the record as a whole, ignored the APA’s

evidentiary requirements, and usurped the policy making

role of the Congress in violation of the separation of

powers doctrine of the Constitution.

ARGUMENT

The Longshore and Harbor Workers’ Compensation

Act, 33 U.S.C. § 901 et seq. (““LHWCA”—“Act”), is a

federal workers’ compensation statute designed to provide

indemnity compensation and medical benefits to certain

classes of maritime employees injured on covered work-

sites. Northeast Marine Terminal Company, Inc. vy.

Caputo, 432 U.S. 249 (1977). LHWCA § 8, 33 U.S.C.

§ 908, sets forth four distinct classifications of indemnity

benefits, labeled “disability” benefits, designed to recom-

pense disabled workers according to the severity and

length of their disabilities. Potomac Electric Power Co. v.

Director, Office of Workers’ Compensation Programs,

449 U.S. 268 (1980).

In turn, LHWCA § 2(10) expressly defines the term

“disability” to mean, in pertinent part, “incapacity because

4

of injury to earn the wages which the employee was

receiving at the time of injury in the same or any other

employment [.]”

This wage-earning capacity concept is found through-

out $8 of the Act. Congress expressly incorporated it

into the two disability classifications that are “partial” in

character, including that governing an award of permanent

partial benefits, the type of award made in satisfaction

of Respondent's initial claim.’ A change in conditions,

including a change in claimant’s economic condition, e.g.,

an increased wage-earning capacity, permits a LHWCA

§ 22 modification request. Metropolitan Stevedore Co. v.

Rambo, US. (1995) (“Rambo I’).

In analyzing an initial claim for §8 disability or a

§ 22 request for modification, the Department of Labor

applies the essential wage-earning capacity factors found

in LHWCA § 8(h), including the economic factors al-

lowed by this Court in Rambo I. Actual earnings is the

1 The statutory definitions read as follows: “In all other cases

in the class of [permanent partial] disability, the compensation

shall be 662, per centum of the difference between the average

weekly wages of the employee and the employee’s wage-earning

capacity thereafter in the same employment or otherwise, payable

during the continuance of partial disability.” LHWCA § 8(c) (21),

83 U.S.C. § 908(c) (21); “Temporary partial disability: In case of

temporary partial disability resulting in decrease of earning capac-

ity the compensation shall be two-thirds of the difference between

the injured employee’s average weekly wages before the injury and

his wage-earning capacity after the injury in the same or another

employment, to be paid during the continuance of such disability,

but shall not be paid for a period exceeding five years.” LHWCA

§ 8(e), 33 U.S.C. § 908(e).

2 Many elements of the Department of Labor are involved in the

LHWCA statutory scheme. Disputed claims are initially decided

by an ALJ. Review is to the Benefits Review Board (“BRB”).

The Act is administered, however, by the Director, Office of Work-

ers’ Compensation Programs (“OWCP”). See Director, OWCP v.

Newport News Shipbuilding & Dry Dock Co., U.S. ——, 115

S.Ct. 1278 (1995).

5

Starting point, with the Department of Labor required to

consider the complete range of statutory factors if such

earnings do not fairly and reasonably represent a claim-

ant’s wage-earning capacity. These factors include “the

nature of [ ] injury, the degree of physical impairment, [the

claimant's] usual employment, and any other factors or

circumstances in the case which may affect his capacity

to earn wages in his disabled condition{]” and fix such

capacity “in the interests of justice.” Notably, the De-

partment is authorized to take into account the effect of

a disability “as it may naturally extend into the future."

The text of the Act describing each of these disability

classifications, other than the section dealing with a

permanent total disability, expressly requires payment of

the specified benefit, but only “during the continuance”

of the disability, ic., the “incapacity . . . to earn the

wages which the employee was receiving at the time of

injury at the same or any other employment.” See

LHWCA §§ 8(b), 8(c)(21), and 8(e). This limitation

on benefit payments has been an integral part of the Act

since its enactment in 1927, and was recognized by this

Court in Rambo I, Slip Opinion at 6.

Moreover, as this Court recognized in Rambo I, a § 22

modification must be requested within one year of the

last payment of compensation. The Act makes no pro-

vision for a “nominal award” designed to extend indefi-

nitely the modification period.‘

* Accordingly, under certain conditions, a claimant may be found

to be disabled, either at an initial hearing or at a § 22 modification

proceeding, and given an award even though he has actual wages

because, after considering all of §8(h)’s economic factors, the

claimant is deemed to be without his wage-earning capacity at the

time of the injury. The concept of a “nominal award,” on the other

hand, presupposes no loss of wage earning capacity.

* Under current practice the Respondent could claim a reduced

wage earning capacity even at or after retirement. Unlike approxi-

mately one half of the state compensation acts and the Federal

Employees’ Compensation Act, 5 U.S.C. § 8101 et seq., the LHWCA

6

The Circuit Court, however, disregarded these statu-

tory limitations and directed the Benefits Review Board

to award a “nominal award” because if perceived a “sig-

nificant possibility” that Respondent will at some future

time suffer economic harm even though the trier of fact

perceived no such possibility. Thus, the court has laid

down a rule of law equally applicable to every § 22

request to modify an award of permanent benefits. In so

doing the court exceeded its review authority under the

Administrative Procedure Act (“APA”), 5 U.S.C. § 551

et seq., ignored the evidentiary provisions of the APA,

and usurped the policy making role of the Congress.

I. THE DECISION BELOW VIOLATES TWO CRITI-

CAL REQUIREMENTS OF THE ADMINISTRATIVE

PROCEDURE ACT: THE § 706 STANDARDS GOV-

ERNING JUDICIAL REVIEW AND THE § 556(d)

STANDARDS GOVERNING THE BURDEN OF

PROOF AND EVIDENCE.

A. The Court Below Ignored the Whole Record and

Substituted Its Judgment for That of the Adminis-

trative Factfinder in Violation of the Standards

Governing Judicial Review.

Appellate review of a BRB decision is governed by the

APA’s review standards set forth at 5 U.S.C. § 706.

The Court below rested its decision on its belief that the

ALJ /BRB decision under review was not supported by

the substantial evidence test set forth at 5 U.S.C. § 706

(2)(E). However, this belief and decision are not sup-

ported by the facts in this case.

In a review of an administrative adjudication, this

court has held that the record must be considered as a

whole, Universal Camera v. NLRB, 340 U.S. 474 (1951).

Moreover, the reviewing court’s scope of review under

this provision of the APA is narrow and limited solely

does not require an election, a cessation of benefits, or a credit for

employer funded pension and social security payments, at retire-

ment.

7

to the question of whether or not the decision was sup-

ported by substantial evidence.

The ALJ below concluded that Respondent, trained in

a new and more financially rewarding profession, no longer

has an incapacity to earn the wages he was receiving at

the time of his injury. Therefore, under the statutory

scheme and definitions pointed out above, the ALJ con-

cluded that the Respondent is no longer disabled and is

ineligible for benefit payments of any amount. However,

the circuit court ignored the factfinder’s evaluation of

Respondent’s increased wage earning capacity and job

market potential. Instead, it rested its decision on one

highly speculative “fact”: “Rambo testified that he didn’t

know how long his job as a crane operator would last.”

The court concluded that the ALJ overemphasized Re-

spondent’s current status and failed to consider the effect

of his permanent partial disability on his future earnings.

Amici suggest that the court’s analysis can hardly be

construed as meeting Universal Camera's requisite direc-

tive to examine the whole record.” In fact, the court's

analysis appears to be akin to a de novo review, sub-

Stituting speculative thought for the substantial evidence

of the greatly increased wage-earning capacity relied upon

by the BRB and the ALJ.” If not an outright de novo

review, it appears to Amici that the court resorted to

® Amici also note that this Court appears to have no problems

with the ALJ’s substantial evidence analysis, which took into

account the whole record: “[T]he ALJ, recognizing that higher

wages do not necessarily prove an increase in wage-earning capac-

ity, took care to account for inflation and risk of job loss .. .”

Rambo I (slip opinion at 10) (emphasis added).

* This Court has permitted de novo review under § 706 in only

two circumstances, one of which is only applicable to a rulemaking

proceeding. De novo review of whether or not the BRB decision

was unwarranted by the facts is authorized by § 706(2)(F) when

the proceeding is adjudicatory and the agency factfinding proce-

dures are inadequate. Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402, 415 (1971).

devising its own evidence on the effects of Respondent's

injury on his future earnings, even though virtually noth-

ing was offered by way of evidence at the administrative

level.

B. The Ninth Circuit’s Decision Violates the APA by

Placing the Burden of Persuasion on the Wrong

Party and Substituting Speculation for the Substan-

tial Evidence Standard.

LHWCA administrative adjudications are governed by

the APA. LHWCA § 19(d) specifically requires that all

LHWCA hearings be conducted in accordance with 5

U.S.C. § 554 and those additional APA sections incor-

porated by reference to § 554. 33 U.S.C. § 919(d).

In turn the APA requires that all LHWCA adjudica-

tions rest on substantial evidence. 5 U.S.C. § 556(d).

The trier of fact may not make an award unless it meets

the substantial evidence threshold. Moreover, as_ this

Court recently held, § 556(d) also places the burden of

persuasion on the party seeking an award or other order

during a dispute over an award. Director, Office of

Workers’ Compensation Programs v, Greenwich Collieries,

US. , 114 S.Ct. 2251 (1994).

At the initial claim stage it is the claimant who bears

the burden of persuasion to prove all of the necessary

elements of his claim. Likewise an employer seeking a

§ 22 modification because of a “change in conditions”

must bear the burden of proving to the satisfaction of the

trier of fact that a claimant’s “incapacity to earn wages”

has changed sufficiently for a new order to be issued.

Just as clearly, a claimant seeking to retain a “nominal

award” during a § 22 modification proceeding because of

a “significant possibility” of future economic harm bears

the burden of persuasion. It appears to Amici that the

issue of future harm, raised below by the Respondent

during the initial hearing although not supported by any

hard evidence, was completely discounted by the ALJ.

9

The circuit court chose to ignore the entire matter of

proof and evidence, instead ordering the BRB to award

a nominal sum as a matter of law. This, too, runs con-

trary to this Court’s decision in Rambo |: “[{L]oss of

wage-earning capacity is an element of the claimant’s case

. . . @ claimant is not ‘disabled’ unless he proves ‘incapac-

ity because of injury to earn the wages.” (Slip opinion

at 5) (emphasis added).

Il. THE NINTH CIRCUIT SUBSTITUTED ITS JUDG-

MENT FOR THAT OF CONGRESS, THUS USURP-

ING THE POLICY MAKING ROLE OF CONGRESS.

_ The concept of a “nominal award” is not to be found

in the Act or in corresponding OWCP regulations." The

court ignored the evidence credited by the ALJ and BRB,

and handed down its own rule of law based on conjecture.

This “rule” is equally applicable to every other request to

modify an award for permanent disability benefits.

Amici realize that § 22’s one year time limitation in

practice may well be a strict rule. However, it is the rule

that Congress has chosen." Judicial amelioration dimin-

ishes the prospect of Congressional oversight and legisla-

tive correction. Ultimately it serves neither the interests

of employers or employees covered by the Act.

However, in spite of Congress’ express and clear rule,

the circuit court chose to rest its decision on its judgment

* The position advanced on behalf of the Director, OWCP is yet

another in a long string of departmental litigating positions. It

finds no support in the text of the statute or in OWCP regulations.

While it has been accepted by several circuit courts over the years,

the department's refusal to incorporate this judicial “mechanism”

into its regulations reflects the Department’s continuing disdain

for the rulemaking processes required by the APA.

* As recently as 1984 Congress considered—but rejected—chang-

ing LHWCA § 22 and § 8(h) in a way that would have permitted

Respondent to seek a § 22 modification in his own right at any

point in the future. See S. Rept. 98-81 (May 10, 1983), pp. 37-38.

However, the proposed changes discussed here were never enacted.

CONCLUSION

Amici respectfully submit that the decision of the U.S.

Court of Appeals for the Ninth Circuit exceeds its statu-

tory review authority, ignores the crucial evidentiary ele-

ments of the APA, and usurps the policy-making role of

Congress, and therefore must be reversed.

DENNIs J. LINDSEY

LINDSAY, HART, NEIL & WEIGLER

Genera! Counsel

MASTER CONTRACTING STEVEDORE

ASSOCIATION OF THE PACIFIC

Coast, INc.

1300 S.W. Fifth Avenue

Suite 3400

Portland, OR 97201-5696

(508) 226-7677

Respectfully submitted,

CHARLES T. CARROLL, JR.*

F. EDWIN FROELICH

WILocox, CARROLL & FROELICH,

P.L.L.C.

2011 Pennsylvania Avenue, N.W.

Suite 301

Washington, DC 20006

(202) 296-3005

FRANKLIN W. LosEY

Genera! Counsel

SHIPBUILDERS COUNCIL

oF AMERICA

901 North Washington Street

Suite 204

Alexandria, VA 22314

(703) 548-7447

* Counsel of Record