No. 93-1783 In the Supreme Court of the United States OCTOBER TERM, 1994 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 THOMAS S. WILLIAMSON, Jr. Solicitor of Labor Department of Labor Washington D.C. 20210 DREW S. DAYS, III Solicitor General Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- TABLE OF AUTHORITIES Cases: Page Albemarle Paper Co. V. Moody, 422 U.S. 405 ( 1975) . . . . 2 Carozza v. United States Steel Corp., 727 F.2d 14 (3d Cir. 1984) . . . . 10 Director, OWCP v. Cargill, Inc., 718 F.2d 886 (9th Cir. 1983) . . . . 17 Director, OWCP v. Eastern Coal Corp., 561 F.2d 632 (6th Cir. 1977) . . . . 10 Director, OWCP V. General Dynamics Corp., 982 F.2d 790 (2d Cir. 1992) . . . . 17 Director, OWCP v. Greenwich Collieries, 114 s. ct. 2251 (1994) . . . . 17, 18 Director, OWCP v. National Van Lines, Inc., 613 F.2d 972 (D.C. Cir. 1979), cert. denied, 448 U.S. 907 (1980) . . . . 17 Director, 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. 1982) . . . . 15 Far East Conference v. United States, 342 U.S. 570 (1952) . . . . 16 General Tel. Co. V. EEOC, 446 U.S. 318 (1980) . . . . 5 Gibas v. 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) . . . . 12 Ingalls Shipbuilding Div. V. White, 681 F.2d 275 (5th Cir. 1982) . . . . 12 International Primate Protection League V. Ad- ministrators of Tulane Educ. Fund, 500 U.S. 72 (1991) . . . . 16 Kalaris V. Donovan, 697 F.2d 376 (D.C. Cir.), cert. denied, 462 U.S. 1119 (1983) . . . . 9-10 McCord v. Benefits Review Bd., 514 F.2d 198 (D.C. Cir. 1975) . . . . 7 Maine V. Taylor, 477 U.S. 131 (1986) . . . . 12 Martin V. OSHRC, 499 U.S. 144 (1991) . . . . 11 Monell V. Department of Social Serv., 436 U.S. 658 (1978) . . . . 16 (I) ---------------------------------------- Page Break ---------------------------------------- II Cases Continued: Page NLRB V. E.D.P. Medical Computer Sys., Inc., 6 F.3d 951 (2d Cir. 1993) . . . . 4 Nacirema Operating Co. v. Benefits Review Bd., 538 F.2d 73 (3d Cir. 1976) . . . . 7 Nathanson v. NLRB, 344 U.S. 25 (1952) . . . . 4 Nevada V. United States, 463 U.S. 110 (1983) . . . . 7 Newpark Shipbuilding & Repair, Inc. V. Roundtree, 723 F.2d 399 (5th Cir.), cert. denied, 469 U.S. 818 (1984) . . . . 12 Ohio V. Helvering, 292 U.S. 360 (1934) . . . . 16 Oil, Chem. & Atomic Workers Int'1 Union V. OSHRC, 671 F.2d 643 (D.C. Cir.), cert. denied, 459 U.S. 905 (1982) . . . . 7 Perry, In re, 882 F.2d 534 (lst Cir. 1989) . . . . 11 Ryan-Walsh Stevedoring Co. V. Trainer, 601 F.2d 1306 (5th Cir. 1979) . . . . 10 Shepard V. NLRB, 459 U.S. 344 (1983) . . . . 3-4 United States v. Nixon, 418 U.S. 683 (1974) . . . . 12 Vaca V. Sipes, 386 U.S. 171 (1967) . . . . 4 Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978) . . . . 13 Weiss V. United States, 114 S. Ct. 752 (1994) . . . . 10 Constitution, statutes, regulations and rule: U.S. Const. Art. III . . . . 2, 3, 4, 6, 12 Administrative Procedure Act, 5 U.S.C. 551 et seq.: 5 U.S.C. 551 (2) . . . . 17 5 U.S.C. 556 (C) (7(c)) . . . . 18 5 U.S.C. 701 (b) (2) . . . . 17 5 U.S.C. 702 . . . . 17 5 U.S.C. 703 . . . . 18 Black Lung Benefits Act, 30 U.S.C. 932 (k) . . . . 14, 15 Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e et seq . . . . . 2, 3 Employee Retirement Income Security Act, 29 U.S.C. 1001 et seq . . . . . 3 Fair Labor Standards Act of 1938, 29 U.S.C. 201 et seq . . . . . 3 ---------------------------------------- Page Break ---------------------------------------- III Statutes, regulations and rule-Continued: Page Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq. . . . . 1 33 U.S.C. 902 (1) . . . . 15 33 U.S.C. 902 (4) . . . . 16 33 U.S.C. 902 (6) . . . . 15 33 U.S.C. 906 . . . . 2 33 U.S.C. 907 (a) . . . . 5 33 U.S.C. 907 (b) . . . . 5 33 U.S.C. 908 . . . . 2 33 U.S.C. 908 (f) (8 (f)) . . . . 17 33 U.S.C. 908 (i) . . . . 3, 5, 11 33 U.S.C. 909 . . . . 2 33 U.S.C. 910 . . . . 2 33 U.S.C. 915 (b) . . . . 3 33 U.S.C. 916 . . . . 3 33 U.S.C. 919 (d) . . . . 17 33 U.S.C. 921 (b) (1) . . . . 9 33 U.S.C. 921 (b) (2) . . . . 9 33 U.S.C. 921 (b) (3) . . . . 10 33 U.S.C. 921 (b) (4) ( 21 (b) (4)) . . . . 13 33 U.S.C. 921 (c) (21 (c)) . . . . 6, 7,13, 15, 16, 17, 18 33 U.S.C. 921 (d) . . . . 3, 6 33 U.S.C. 921a ( 21a) . . . . 11, 13 33 U.S.C. 939 (a) . . . . 13 33 U.S.C. 939 (c) (1) . . . . 3, 5 33 U.S.C. 941 . . . . 6 33 U.S.C. 944 . . . . 6 29 U.S.C. 661 . . . . 10 42 U.S.C. 1983 . . . . 16 20 C.F.R.: Sections 725.410-725.422 . . . . 14 Section 725.522 . . . . 15 Section 801.104 . . . . 10 Sup. Ct. R. 12.3. . . . 17 Miscellaneous: H.R. Rep. No. 1441, 92d Cong., 2d Sess. (1972) . . . . 2, 9, 14 S. Rep. No. 1125, 92d Cong., 2d Sess. (1972) . . . . 9, 13 S. Rep. No. 209, 95th Cong., 1st Sess. (1977) . . . . 14 Sec. Order 38-72,38 Fed. Reg. 90 (1973) . . . . 10 ---------------------------------------- Page Break ---------------------------------------- In 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. Id. at 19, 25-28. Congress created the federal compensation scheme of the LHWCA to further interests broader than merely those (1) ---------------------------------------- Page Break ---------------------------------------- 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 wi11 have to seek financial assistance from other public programs-a result Congress specifically intended to avoid. See Pet. Br. 17-18.1 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- ___________________(footnotes) 1 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. ---------------------------------------- Page Break ---------------------------------------- 3 terests that neither the employer nor the employee may have the same incentive to protect. 2 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).3 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 ether 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 ___________________(footnotes) 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 33 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 compensation 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). 3 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 vocational rehabilitation. See 33 U.S.C. 939 (c) (1); see also Pet. Br. 19. ---------------------------------------- Page Break ---------------------------------------- 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 111 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 position 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 employers. In either instance, the fact that the em- ployee or employer shares her interest does not mean that ---------------------------------------- Page Break ---------------------------------------- 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" ).4 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 ___________________(footnotes) 4 Respondent's assertions that "there is no need for the Director to act as an 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. See, e.g., 33 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.g., 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 ). ---------------------------------------- Page Break ---------------------------------------- 6 determined, what length of time payments are awarded, ibid., and whether respondent becomes insolvent. Id. 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. Id. 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.5 Cf. ___________________(footnotes) 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." Ibid. 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 cognizable 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. ---------------------------------------- Page Break ---------------------------------------- 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'1 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 v. 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 ---------------------------------------- Page Break ---------------------------------------- 8 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 ---------------------------------------- Page Break ---------------------------------------- 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 delegates (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 ---------------------------------------- Page Break ---------------------------------------- 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, 38Fed. 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 for 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. v. Trainer, 601 F.2d 1306, 1314 n.7 (5th 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.6 Thus, although the ___________________(footnotes) 6 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 ---------------------------------------- Page Break ---------------------------------------- 11 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 (lst 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 ___________________(footnotes) 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. ---------------------------------------- Page Break ---------------------------------------- 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).7 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. 5-1 1; 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 (5th 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 (5th Cir.), cert. denied, 469 U.S. 818 ( 1984). The Act expressly authorizes the Secre- tary to issue rules and regulations for purposes of admin- ___________________(footnotes) 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 INS V. Chadha, 462 U.S. 919, 939-940 (1983) . ---------------------------------------- Page Break ---------------------------------------- 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. 921a, 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.8 ___________________(footnotes) 8 The amendment to Section 21a of the Act was described in the legislative history as follows: "Under present law, it is the obliga- ---------------------------------------- Page Break ---------------------------------------- 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., 1st 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,9 and there is no indication ___________________(footnotes) 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. 9 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 ---------------------------------------- Page Break ---------------------------------------- 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 ___________________(footnotes) 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. ---------------------------------------- Page Break ---------------------------------------- 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 Interna- 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 ---------------------------------------- Page Break ---------------------------------------- 17 the Special Fund under Section 8(f) of the Act, 33 U.S.C. 908(f), and reversed the Board's ruling on that issue. See Pet. App. 9a, 13a (Director is "person * * * aggrieved" by a Board ruling that the Special Fund is liable under Section 8(f)). Thus, contrary to respond- 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. 16-1 7; 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 10 because, according to the APA itself, "[t]he ___________________(footnotes) 10 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 ---------------------------------------- Page Break ---------------------------------------- 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 ___________________(footnotes) (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. * U.S. GOVERNMENT PRINTING OFFICE; 1994 387147 20025 ---------------------------------------- Page Break ---------------------------------------- No. 93-1783 In the Supreme Court of the United States OCTOBER TERM, 1993 DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT THOMAS S. WILLIAMSON, Jr. Solicitor of Labor ALLEN H. FELDMAN Associate Solicitor STEVEN J. MANDEL Deputy Associate Solicitor MARK S. FLYNN Senior Appellate Attorney Department of Labor Washington D.C. 20210 DREW S. DAYS, III Solicitor General EDWIN S. KNEEDLER Deputy Solicitor General BETH S. BRINKMANN Assistant to the Solicitor General Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the standing of the Director of the Office of Workers' Compensation Programs in the United States Department of Labor, to petition the court of appeals for review of a decision of the Benefits Review Board under Section 21(c) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 921(c), is limited to issues that affect the Director's pecuniary interest or disrupt a specific administrative function. (I) ---------------------------------------- Page Break ---------------------------------------- II PARTIES TO THE PROCEEDINGS Jackie Harcum was the claimant in the proceeding below where the employer, Newport News Shipbuilding and Dry Dock Company, was the respondent and the Director of the Office of Workers' Compensation Pro- grams in the United States Department of Labor was the petitioner. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Opinions below . . . . 1 Jurisdiction . . . . 2 Statutory and regulatory provisions involved . . . . 2 Statement . . . . 2 Reasons for granting the petition . . . . 10 Conclusion . . . . 25 Appendix A . . . . 1a Appendix B . . . . 25a Appendix C . . . . 27a Appendix D . . . . 37a Appendix E . . . . 63a TABLE OF AUTHORITIES Cases: Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U. S. 592 (1982) . . . . 21 American Ship Bldg. Co. v. Director, OWCP, 865 F.2d727(6th Cir. 1989) . . . . 24 Baker v. Carr, 369 U.S. 186(1962) . . . . 20 Be/iv. New Jersey, 461 U.S. 773 (1983) . . . . 19 Boudreaux v. American Workover, Inc., 680 F.2d 1034 (5th Cir. 1982), cert. denied, 459 U.S. 1170 (1983) . . . . 24 Coleman v. Miller, 307 U.S. 433 (1939) . . . . Curtis v. Schlumberger Offshore Serv., Inc., 849 F.2d 805(3d Cir. 1988) . . . . 11, 12 Debs, ln re,158U.S. 564(1895) . . . . 21 Director, OWCP v. Alabama By-Products Corp., 560 F.2d 710(5th Cir. 1977) . . . . 19-21 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page Director, OWCP v. Bethlehem Steel Corp. 949 F.2d 185(5th Cir. 1991) . . . . 13, 24 Director, OWCP v. Donzi Marine, Inc., 586 F.2d 377(5th Cir. 1978) . . . . 8, 9, 1O, 2O, 24 Director, OWCP v. Eastern Coal Corp., 561 F.2d 632 (6th Cir. 1977) . . . . 16, 17, 20, 22 Director, OWCP v. General Dynamics Corp., 982 F.2d 790(2d Cir. 1992) . . . . 24 Director, OWCP v. National Mines Corp., 554 F.2d 1267(4th Cir. 1977) . . . . 19 Director, OWCP v. National Van Lines, Inc., 613 F.2d 972 (D.C. Cir. 1979), cert. denied, 448 U.S. 907(1980) . . . . 10 Director, OWCP v. Newport News Shipbuilding & Dry Dock Co., 676 F.2d 110 (4th Cir. 1982) . . . . 9 Director, OWCP v. O'Keefe, 545 F.2d 337 (3d Cir. 1976) . . . . 13 Director, OWCP v. Peabody Coal Co., 554 F.2d 310(7th Cir. 1977) . . . . 20 Director, OWCP v. Perini N. River Assocs., 459 U. S. 297(1983) . . . . 10, 14 Director, OWCP v. Rochester & Pittsburgh Coal Co., 678 F.2d 17(3d Cir. 1982) . . . . 13 Donovan v. University of Texas at El Paso, 643 F.2d 1201(5th Cir. 1981) . . . . 22 Flast v. Cohen, 392 U.S. 83(1968) . . . . 15 Fusco v. Perini N. River Assocs., 601 F.2d 659 (2d Cir. 1979), vacated and remanded, 444 U.S. 1028, reinstated on remand, 622 F.2d 1111 (2d Cir. 1980), cert. denied, 449 U.S. 1131 (1981) . . . . 10 General Tel. Co. v. EEOC, 446 U.S. 318 (1980) . . . . 22 Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91 (1979) . . . . 23 Goldsmith v. Director, OWCP, 838 F.2d 1079 (9th Cir. 1988) . . . . 11 Heckman v. United States, 224 U.S. 413 (1912) . . . . 22 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page Henderson v. Glens Falls Indem. Co., 134 F.2d 320 (5th Cir.), cert. denied, 319 U.S. 756 (1943) . . . . 17 I. T. O. Corp. v. Benefits Review Bd., 563 F.2d 646 (4th Cir. 1977), reinstating in pertinent part, 542 F.2d 903 (4th Cir. 1976), vacated and re- manded, 433 U. S. 904(1977 ) . . . . 9, 11 Ingalls Shipbuilding Div., Etc. v. White, 681 F.2d 275 (5th Cir. 1982), overruled in part on other grounds, Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399 (5th Cir.), cert. denied,469 U. S. 818(1984) . . . .1 Kalaris v. Donovan, 697 F.2d 376 (D.C. Cir.), cert. denied, 462 U.S. 1119(1983) . . . . 4, 5, 12 Krolick Contracting Corp. v. Benefits Review Bd., 558 F.2d 685(3d Cir. 1977) . . . . 19 Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992) . . . . 15, 23 Moe v. Confederated Salish & Kootenai Tribes, 425 U. S. 463(1976) . . . . 22 Mullins Coal Co. v. Director, OWCP, 484 U.S. 135 (1987 ) . . . . 24 Newport News Shipbuilding & Dry Dock Co. v. Howard, 904 F.2d 206 (4th Cir. 1990) . . . . 24 Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249 (1977 ) . . . . 21 Potomac Elec. Power Co. v. Director, OWCP, 449 U. S. 268 (1980) . . . . 24 Sea-Land Service, Inc. v. Rock, 953 F.2d 56 (3d Cir. 1992) . . . . 24 Secretary of Labor v. Fitzsimmons, 805 F.2d 682 (7th Cir. 1986) . . . . 22 Shahady v. Atlas Tile & Marble Co., 673 F.2d 479 (D. C. Cir.1982) . . . . ll, 15, 17, 22 Sierra Club v. Morton, 405 U.S. 727 (1972) . . . . 15 Stevens v. Director, OWCP, 909 F.2d 1256 (9th Cir. 1990), cert. denied, 498 U.S. 1073 (1991) . . . . 6 ---------------------------------------- Page Break ---------------------------------------- VI Cases - Continued: Page Stevens v. Lockheed Shipbuilding Co., 22 Ben. Rev. Bd. Serv. (MB) 155 (1989), rev'd, 909 F.2d 1256 (9th Cir. 1990), cert. denied, 498 U.S. 1073 (1991 ) . . . . 6 Thornton v. Brown & Root, Inc., 707 F.2d 149 (5th Cir. 1983), cert. denied, 464 U.S. 1052 (1984) . . . . 11 Tiger v. Western investment Co., 221 U.S. 286 (1911) . . . . 19 Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972 ) . . . . 20, 23 United States v. Federal Maritime Comm'n, 655 F.2d247(D.C. Cir. 1980) . . . . 22 United States v. Federal Maritime Comm'n, 694 F.2d793(D.C. Cir. 1982) . . . . 22 United States ex rel. Chapman v. Federal Power Comm'n, 345 U.S. 153(1953) . . . . 21 Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U. S. 464(1982 ) . . . . 23 Voris v. Eike/, 346 U.S. 328(1953) . . . . 21 West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83 (1991 ) . . . . 19 Zapata Haynie Corp. v. Barnard, 933 F.2d 256 (4th Cir. 1991) . . . . 24 Constitution, statutes, regulations and rules: U. S. Const. Art. 111 . . . . 10, 14, 15, 20, 23 Black Lung Benefits Act, 30 U.S.C. 932(a) . . . . 18 Black Lung Benefits Reform Act of 1977, Pub. L. No.95-239, 92 Stat. 95 . . . . . . . . . . . . . . . . . . . . . . 18 7(h), 92 Stat. 99(30 U.S.C. 932(k)) . . . . . . . . 18, 19 Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. 901 et seq . . . . 2 33 U.S.C. 907 . . . . 2, 16 33 U.S.C. 908(f) (8( f)) . . . . 5 ---------------------------------------- Page Break ---------------------------------------- VII Statutes, regulations and rules - Continued: Page 33 U.S.C. 908(i) . . . . 2, 16 33 U.S.C. 913(a) . . . . 3 33 U.S.C. 919(c) . . . . 3 33 U.S.C. 919(d) . . . . 3 33 U.S.C. 919(e) . . . . 3 33 U. S. C. 921(b) . . . . 2, 63a 33 U. S. C. 921(b)(l) . . . . 4 33 U. S. C. 921(b)(3) . . . . 4, 6 33 U.S.C. 921(c) (21(c)) . . . . passim 33 U. S. C. 921(d) . . . . 2, 3, 65a 33 U. S. C. 921a . . . . 2, 3, 16, 65a 33 U. S. C. 928(a) . . . . 23 33 U. S. C. 939(a) . . . . 2, 3, 15, 65a 33 U. S. C. 939(b) . . . . 3 33 U. S. C. 939(c) . . . . 2, 3, 16, 66a 33 U. S. C. 941 . . . . 3, 16 33 U. S. C. 944 . . . . 3, 16 33 U. S. C. 944(a) . . . . 5 Longshoremen's and Harbor Workers' Compensa- tion Act, ch. 509, 21(b), 44 Stat. 1436 (1927) (33 U. S. C. 921(b) (1970)) . . . . 17 Longshoremen's and Harbor Workers' Compensa- tion Act Amendments of 1972, Pub. L. No. 92-576, 86 Stat. 1251 . . . . 4 28 U. S. C. 1254( 1) . . . . 14 28 U. S. C. 1291 . . . . 4,17 20 C. F. R.: Section 701.201 . . . . 2, 3, 67a Sections 701.201-701.203 . . . . 3 Section 701.202 . . . . 2, 3, 67a Section 701.202(a) . . . . 19 Section 701.202( f) . . . . 19 Section 701.301 (a)(7) . . . . 3 Sections 702.301 -702.317 . . . . 3 Section 702.333 . . . . 2, 67a ---------------------------------------- Page Break ---------------------------------------- VIII Regulations and rules - Continued: Page Section 702.333 (a) . . . . 3 Section 702.333( b) . . . . 4, 15 Sections 702.348-702 349. . . . 3 Section 801.2(a)(10) . . . . 4, 15 Section 801.102 . . . . 2, 6, 8a Section 802.201 (a)(l) . . . . 4, 15 Section 802.410 . . . . 2, 5, 68a Section 802.410(b) . . . . 4, 15, 68a Fed. R. App. P. 15(a) . . . . 11, 12 Fed. R. Civ. P. 24 . . . . 11 Miscellaneous: E. Chemerinsky, Federal Jurisdiction (1989) . . . . 8 42 Fed. Reg. 16,133 (1977 ) . . . . 5 55 Fed. Reg. 9033 (1990) . . . . 3 H.R. Rep. No. 1441, 92d Cong., 2d Sess. (1972 ) . . . . ...16, 8, 21 A. Larson, The Law of Workmen's Compensation (1993): Vol. 1 . . . . 21 VoI. 3 . . . . 21 S. Rep. No. 1125, 92d Cong., 2d Sess. (1972) . . . . 18, 21-22 S. Rep. No. 209, 95th Cong., 1st Sess. (1977) . . . . 19 ---------------------------------------- Page Break ---------------------------------------- OCTOBER TERM, 1993 No. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT The Solicitor General, on behalf of the Director of the Office of Workers' Compensation Programs in the Department of Labor, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App., infra, la-24a) is reported at 8 F.3d 175. The decision of the Benefits Review Board (App., infra, 27a-36a) is un- reported. The decision of the administrative law judge (App., infra, 37a-62a) is reported at 23 Ben. Rev. Bd. Serv. 515. (1) ---------------------------------------- Page Break ---------------------------------------- 2 JURISDICTION The court of appeals entered its judgment on October 29, 1993, and denied a petition for rehearing on January 7, 1994. App., infra, 25a-26a. On March 28, 1994, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including May 7, 1994. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED Pertinent provisions of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 921(b), 921(c), 921 (d), 921 a, 939(a), 939(c)) are reprinted at App., infra, 63a-66a. Pertinent provisions of the Department of Labor's regulations (20 C.F.R. 701.201,701.202,702.333, 801.102, 802.4 10) are reprinted at App., infra, 67a-68a. STATEMENT This case concerns the standing of the Director of the Office of Workers' Compensation Programs in the Department of Labor to petition the court of appeals to review a decision of the Benefits Review Board under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. 901 et seq. 1. The LHWCA creates a comprehensive federal scheme to compensate workers injured or killed while em- ployed upon the navigable waters of the United States. Congress directed the Secretary of Labor to "administer the provisions" of the Act and authorized him to issue "rules and regulations" necessary to the Act's administra- tion. 33 U.S.C. 939(a), Congress also specifically provided that the Secretary shall actively supervise the medical care rendered to injured employees, 33 U.S. C. 907; approve ---------------------------------------- Page Break ---------------------------------------- 3 settlements, 33 U.S. C. 908(i); appear before courts of ap- peals through attorneys appointed to represent him, 33 U.S.C. 921a; bring actions in district court to enforce compensation awards, 33 U.S.C. 921(d); furnish informa- tion to claimants, assist them in obtaining medical and rehabilitate ion services, and, upon request, provide legal assistance in processing a claim, 33 U.S.C. 939(c); ad- minister a Special Fund for payment of benefits in speci- fied circumstances, 33 U.S.C. 944; and issue and enforce rules and regulations pertaining to employee safety, 33 U.S.C. 941. The Secretary has delegated most of his re- sponsibilities under the LHWCA to the Director of the Of- fice of Workers' Compensation Programs (Director). 20 C.F.R. 701.201, 701.202; see 55 Fed. Reg. 9033 (1990) (Secretary of Labor's delegation of some safety and health responsibilities to Assistant Secretary for Occupational Safety and Health). Workers seeking compensation under the Act must file a claim with one of the local district directors (referred to in the LHWCA as "deputy commissioners") in the Office of Workers' Compensation Programs (OWCP), who carry out the day-to-day administration of the Act. 33 U.S.C. 913(a), 939(a) and (b); 20 C.F.R. 701.201-701.203, 701.301 (a)(7). The district director conducts such investi- gation of the claim as he deems necessary and, if able to resolve the claim informally, is authorized to issue a com- pensation order; if he is unable to resolve the claim infor- mally, it is forwarded for hearing to an administrative law judge (ALJ), who is then empowered to issue a compensa- tion order. 33 U.S.C. 919(c), (d) and (e); 20 C.F.R. 702.301-702.317, 702.348-702.349. Implementing regula- tions provide that the claimant and the employer (or its in- surance carrier) are necessary parties for a hearing, 20 C.F.R. 702.333(a), and that the Solicitor of Labor, or his ---------------------------------------- Page Break ---------------------------------------- 4 designee may participate on behalf of the Director, as an "interested party. " 20 C.F.R. 702.333(b). An ALJ's decision is reviewable by the Benefits Review Board (Board) whose members are appointed by the Secre- tary. 33 U.S.C. 92 l(b)(l). The Board reviews the ALJ's decision to determine if it is supported by substantial evi- dence and is in accordance with law. 33 U.S.C. 921(b)(3); 20 C.F.R. 801. 102; see generally Kalaris v. Donovan, 697 F.2d 376, 382 (D.C. Cir.), cert. denied, 462 U.S. 1119 (1983). Any "party in interest" may file an appeal from the ALJ to the Board. 33 U.S.C. 921(b)(3). The term "party in interest" is defined by regulation to mean "the Secretary or his designee and any person or business entity directly af- fected by the decision or order from which an appeal to the Board is taken." 20 C.F.R. 801.2(a)(10); see also 20 C.F. R. 802.201(a)(l). The Board's decision is reviewable by the court of ap- peals. Under Section 21(c) of the LHWCA, any "person adversely affected or aggrieved" may petition the court of appeals for such judicial review. 33 U.S.C. 921(c). The Secretary's regulations provide that the Director, as the designee of the Secretary "responsible for the administra- tion and enforcement" of the Act, "shall be deemed to be the proper party on behalf of the Secretary of Labor in all review proceedings conducted pursuant to section 21(c) of the LHWCA [33 U.S.C. 921(c), i.e., in the court of ap- peals]." 20 C.F.R. 802.410(b).1 ___________________(footnotes) 1 The procedures for adjudication of claims reflect substantial modifications made by the 1972 amendments to the LHWCA. See Pub. L. No. 92-576,86 Stat. 1251. Before those amendments, OWCP deputy commissioners conducted hearings and issued compensation orders in disputed cases. Those decisions were reviewable in an injunc- tive action against the deputy commissioner in district court, subject to further review by appeal to the court of appeals under 28 U.S.C. 1291. See Kalaris, 697 F.2d at 381-382. The 1972 amendments trans- ---------------------------------------- Page Break ---------------------------------------- 5 2. Jackie Harcum, an employee of Newport News Shipbuilding and Dry Dock Co. (Newport News), suffered a work-related, disabling back injury and filed a claim for benefits under the LHWCA. App., infra, 2a. The claim was referred to an ALJ to resolve several disputed issues, including whether claimant Harcum was entitled to benefits for temporary total disability (not merely partial disability) from the date that he stopped work at the shipyard (May 6, 1988) until the date he found alternative employment (February 16, 1989). Id. at 6a, 39a.2 ___________________(footnotes) ferred the deputy commissioners' hearing authority to ALJs and replaced the district court injunctive proceedings with appeals to the Board, whose decisions are subject to review by the court of appeals under 33 U.S.C. 921(c). Under the new regime, "[t]he Board * * * performs a review function identical to that which the [d]istrict [c]ourts performed" before the 1972 amendments. Kalaris, 697 F.2d at 382. As a purely adjudicatory body, the Board, like a district court, does not participate as a party in appeals from its decisions. See 42 Fed. Reg. 16,133 (1977) (notice accompanying promulgation of 20 C.F.R. 802.410 stating that "[a]s a quasi-judicial body the Board does not participate in any court proceedings challenging the validity of its decisions"). 2 Newport News also asserted that the claimant suffered from a pre- existing permanent partial disability that contributed to his current disability, and that Newport News was entitled to a reduction in the amount of benefits it was required to pay because the Special Fund ad- ministered by the Secretary should assume payment for part of the benefits under Section 8(f) of the Act. App., infra, 7a. See 33 U.S.C. 908(f) (Special Fund assumes liability for compensation payment for injury after 104 weeks of permanent disability if claimant had pre- existing permanent partial disability that combined with his compen- sable injury to render him more disabled than he would have been from the injury alone); 33 U.S.C. 944(a). The ALJ and the Board agreed with Newport News that Section 8(f) applied to this case. App., infra, 7a, 33a-36a, 59a-61a. The court of appeals, however, rejected both parties' interpretations of Section 8(f), reversed the Board's rul- ing and remanded the" case for further proceedings. App., infra, 14a-24a. Newport News filed a petition for rehearing and suggestion ---------------------------------------- Page Break ---------------------------------------- 6 The ALJ applied the rationale of the Board's decision in Stevens v. Lockheed Shipbuilding Co., 22 Ben. Rev. Bd. Serv. (MB) 155 (1989) (total disability becomes partial when claimant regains residual wage-earning capacity and it relates back to date of maximum medical improvement). The ALJ reasoned that the claimant was entitled only to permanent partial (rather than temporary total) disability benefits as of May 6, 1988, because that was the date he left employment at Newport News and because the date of his maximum medical improvement had already passed. App., infra, 6a, 56a-57a. The ALJ held that the claimant regained residual wage-earning capacity as of May 6, 1988, and that he therefore should have received compen- sation after that date based only on a permanent partial disability. Id. at 57a. The Director appealed the ALJ's ruling to the Board as a "party in interest," pursuant to 33 U.S.C. 921(b)(3). App., infra, 7a. The Director contended that the claimant was entitled to benefits based on permanent total disability until February 16, 1989, when he secured other employ- ment. The claimant responded in support of the Director's argument and Newport News responded in support of af- firmance. Id. at 29a. The Board affirmed the ALJ's ruling, although it clari- fied the underlying rationale. The Board vacated the ALJ's reliance on its Stevens decision because the decision had subsequently been reversed on judicial review. App., infra, 29a-31a; Stevens v. Director, OWCP, 909 F.2d 1256 (9th Cir. 1990), cert. denied, 498 U.S. 1073 (1991). The Board affirmed, however, on the alternative rationale that ___________________(footnotes) of rehearing en bane on the Section 8(f) issue, which the court of ap- peals denied. App., infra, 25a-26a. Although the Director disagrees with the court's Section 8(f) ruling, she does not believe that review of that issue by this Court is warranted. ---------------------------------------- Page Break ---------------------------------------- 7 Newport News' uncontradicted evidence showed that there was suitable alternate employment for the claimant as of May 1988, and that the claimant had not shown that he was unable to obtain such employment. App., infra, 31a-33a. The Board also ruled that a statement by New- port News to the claimant that it would determine whether it had a light-duty position available for him, and its sub- sequent hiring of a vocational consultant to assist the claimant in securing alternate employment, did not affect that finding, because Newport News was not under any obligation to rehire claimant or to find him an actual job offer. Id. at 32a-33a. The Board therefore concluded that the claimant was only partially disabled as of May 1988. 3. The Director filed a petition in the court of appeals for review of the Board's decision pursuant to 33 U.S.C. 921 (c). The claimant did not file a petition for review. In response to an inquiry from the court of appeals (follow- ing the Director's motion to amend the case caption and Newport News' statement that it did not object), the claim- ant stated that he had not appealed, but that the Director could pursue the case as she chose. See Attachments A and B to Respondent's Answer to Petitioner's Petition for Rehearing. The court of appeals granted the Director's motion and amended the caption to show Harcum as a claimant in the proceedings below. The Director challenged the Board's holding as to suit- able alternative employment, contending that the Board usurped the ALJ's fact-finding role. The Director also contended that, even if the employer made a showing of suitable alternative employment, the claimant had legiti- mately relied on the employer's vocational rehabilitation program, rather than independently seeking work, during the period in question. Thus, the Director argued that the Board's decision erroneously denied total disability bene- ---------------------------------------- Page Break ---------------------------------------- 8 fits for the period between May 1988 and February 1989. App., infra, 2a. Although the issue of standing was not raised or briefed by the parties, the court of appeals held that the Director did not have standing to petition for review of the Board's ruling as to the onset date of claimant's partial disability. App., infra, 9a n.1, 13a-14a. The LHWCA provides in relevant part that "[a]ny person adversely affected or ag- grieved by a final order of the Board may obtain a review of that order" in the court of appeals. 33 U.S.C. 921(c). The court concluded that 33 U.S. C. 921(c) "codifies the constitutional requirement that limits standing to those persons who can allege `that they personally have suffered or imminently will suffer an injury.' " App., infra, 9a n. 1 (quoting E. Chemerinsky, Federal Jurisdiction 2.3.2, at 52 (1989)). In the court's view, the Director suffers such an injury only when a Board decision "alter[s] the Director's ability to carry out his or her responsibilities under the LHWCA or to protect the fiscal integrity of the special fund." App., infra, 14a. In holding that the Director lacks standing, the court of appeals relied upon Director, OWCP v. Donzi Marine, Inc., 586 F.2d 377 (5th Cir. 1978). App., infra, 10a-12a. The court explained that in Donzi Marine, the Fifth Cir- cuit held that the Director "would have standing only if an interest of the Director arising from his or her specifically delegated responsibilities was adversely affected by the Board's decision." App., infra, 10a. The court below indi- cated that, under the Donzi Marine rationale, the Director "may redress Board decisions that adversely affect the Director's legitimate administrative interests. * * * For example, if a Board decision substantially augmented the nature of the administrative duties delegated to the Direc- tor, increased the Director's necessary expenditure of ad- ministrative resources, or created confusion as to how the ---------------------------------------- Page Break ---------------------------------------- 9 Director was to carry out specific functions, the Director's responsibilities under the LHWCA would be bound up suf- ficiently with the merits of the appeal to evidence a cogniz- able administrative injury." App., infra, 1 la, citing Donzi Marine, 586 F.2d at 381-382. The court of appeals noted that it had adopted the logic of Donzi Marine in Director, OWCP v. Newport News Shipbuilding & Dry Dock Co. (Langley), 676 F.2d 110 (4th Cir. 1982), where it had questioned whether "the Board's decision sufficiently implicated an administrative or eco- nomic interest of the Director so as to give rise to a redress- able injury. " App., infra, 13a. The court treated its decision in Langley as holding that the Director had standing because of his interest in protecting the fiscal integrity of the Special Fund. App., infra, 13a, citing 676 F.2d at 114.3 Applying the foregoing analysis to this case, the court concluded that the Director had standing to seek review of the portions of the Board's decision that would result in in- creased payments from the Special Fund administered by the Director (see note 2, supra), but did not have standing to appeal the issue of the onset date of the claimant's partial disability. The court reasoned that although the Director contended that the Board misapprehended the LHWCA'S requirements, the Board's conclusion as to when claimant's disability became partial neither altered the Director's abili- ty to carry out her responsibilities under the LHWCA nor affected the fiscal integrity of the Special Fund. App., in- fra, 13a-14a.4 ___________________(footnotes) 3 The court below also noted its own prior holding that the Director is not a proper respondent to a petition for review under 33 U.S.C. 921 (c). App., infra, 12a n.2 (citing I. T.O. Corp. v. Benefits Review Bd., 563 F.2d 646, 648 (4th Cir. 1977) (en bane)), discussed at note 6, infra. 4 The court denied the Director's petition for rehearing and sugges- tion of rehearing en bane on the standing issue. Two judges voted to rehear the case en bane. App., infra, 25a-26a. ---------------------------------------- Page Break ---------------------------------------- 10 REASONS FOR GRANTING THE PETITION The court of appeals erred in holding that the Director does not have standing to petition the court of appeals for review of a ruling by the Benefits Review Board unless the Director has a pecuniary interest or the Board's ruling will disrupt the Director's performance of specific administra- tive functions. The court of appeals failed to recognize that the Director is "aggrieved or adversely affected" by the Board's ruling in the instant case, and thus has stand- ing to appeal, due to the interests created by Congress in the Secretary and the Director in their broad authority to administer the LHWCA and to participate in the claims adjudication process. This Court specifically noted, but left unresolved, the issue of the Director's standing in Director, OWCP v. Perini N. River Assocs., 459 U.S. 297, 302-305 (1983), and that issue continues to divide the courts of appeals. Review by this Court therefore is war- ranted. 1. Although the decision below is in accord with deci- sions of the Second Circuit and Fifth Circuit, 5 it conflicts with decisions of the D.C. Circuit. In Director, OWCP v. National Van Lines, Inc., 613 F.2d 972 (1979), cert. denied, 448 U.S. 907 (1980), the D.C. Circuit held that the Director "has standing as a petitioner in this proceeding ___________________(footnotes) 5 See Fusco v. Perini N. River Assocs., 601 F.2d 659 (2d Cir. 1979), vacated and remanded on other grounds, 444 U.S. 1028, reinstated on remand, 622 F.2d 1111, 1113 (2d Cir. 1980), cert. denied, 449 U.S. 1131 (1981); Donzi Marine, Inc., 586 F.2d at 382. Fusco and Donzi Marine hold that the Director lacks statutory standing under 33 U.S.C. 921 (c) to appeal Board orders denying compensation claims. Fusco, 601 F.2d at 670, 622 F.2d at 1113; Donzi Marine, 586 F.2d at 382. Neither Fusco nor Donzi Marine addressed whether the Director would have standing under Article III if she was statutorily authorized to seek review. Fusco, 601 F.2d at 670; Donzi Marine, 586 F.2d at 378 n.2. ---------------------------------------- Page Break ---------------------------------------- 11 both because of his official responsibility for administra- tion of the LHWCA and because of his financial interest as administrator of the special fund." 613 F.2d at 977 n.6. The D.C. Circuit reinforced that ruling in Shahady v. Atlas Tile & Marble Co., 673 F.2d 479 (1982), where it ex- plained that it had "previously held that the Director's general supervisory and enforcement interest, apart from any pecuniary interest, is sufficient to convey upon the Director standing to file a petition for review under section 921(c)." 673 F.2d at 483.6 The Fourth Circuit in Langley ___________________(footnotes) 6 Shahady specifically involved the question whether the Director is a proper respondent in proceedings before the court of appeals. The D.C. Circuit held that "[b]ecause the statutory scheme of the LHWCA and regulations promulgated thereunder clearly contemplate that the Secretary or his delegate shall participate as a matter of course in sec- tion 921 (c) review proceedings, we hold the Director should be named a party-respondent in all review proceedings brought under section 921(c), whether or not the Director supports the Board's order." 673 F.2d at 480. Other courts of appeals have agreed with Shahady that the Director is a proper respondent under the Act. See Goldsmith v. Director, OWCP, 838 F.2d 1079, 1080 (9th Cir. 1988); Thornton v. Brown & Root, Inc., 707 F.2d 149, 154 (5th Cir. 1983), cert. denied, 464 U.S. 1052 (1984); Ingalls Shipbuilding Div., Etc. v. White, 681 F.2d 275, 286-287 (5th Cir. 1982), overruled on other grounds by Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399 (5th Cir.) (en bane), cert. denied, 469 U.S. 818 (1984); see also Curtis v. Schlumberger Offshore Serv., Inc., 849 F.2d 805, 807 n.4 (3d Cir. 1988). But see I. T. O. Corp. v. Benefits Review Bd., 563 F.2d 646,648 (4th Cir. 1977) (en bane), reinstating in pertinent part, 542 F.2d 903 (4th Cir. 1976) (en bane), vacated and remanded, 433 U.S. 904 (1977) (Director limited to intervention under Fed. R. Civ. P. 24). Some of the decisions upholding the Director's status as respondent are based on 33 U.S.C. 921(c) and some are based solely on Fed. R. App. P. 15(a), which provides that petitions for review of administrative agen- cy orders must name the agency as a respondent. Brown & Root, Inc., 707 F.2d at 154; Ingalls Shipbuilding, 681 F.2d at 282-284. ---------------------------------------- Page Break ---------------------------------------- 12 understood National Van Lines as holding that the Direc- tor "has standing to appeal because of his general admini- strative responsibility and his financial interest in the special fund. " 676 F.2d at 113. And in the instant case, the Fourth Circuit specifically recognized that its ruling is in- consistent with Shahady. See App., infra, 12a. 7 The Third Circuit has indicated its approval of Shahady, as "sound on policy because the Director's supervisory and enforcement interest should be sufficient to entitle him to participate as a party; his responsibility to oversee the development of a consistent body of law in this area should not depend upon the vagaries of the parties' private, albeit adversary, interests ." Curtis v. Schlum- berger Offshore Serv., Inc., 849 F.2d 805, 807 n.4 (1988). The Third Circuit did not decide the issue in Curtis be- cause the employer and employee were both parties before that court. In an earlier case under the Black Lung Bene- fits Act which incorporates the same judicial review proc- ess as under the LHWCA, however, the Third Circuit noted that the Director had standing to petition the court of appeals for review of a Board ruling even though the Director lacked a pecuniary interest in the litigation. The court explained that it concurred "in the Director's view ___________________(footnotes) 7 Although Shahady presented the question of whether the Director may appear as respondent when a private party has petitioned for review of a Benefits Review Board decision, its holding that the Direc- tor is an automatic respondent in review proceedings is based not on Fed. R. App. P. 15(a), but rather on National Van Lines, which held that the Director has standing as a petitioner and which Shahady inter- preted as holding that the Director's general interest in enforcement of the LHWCA is an independent basis for standing. 673 F.2d at 483. Thus, Shahady clearly establishes in the D.C. Circuit that the Direc- tor, based on her status as administrator of the Act, may appear as petitioner or respondent in proceedings under 33 U.S. C. 921(c). See Kalaris v. Donovan, 697 F.2d 376, 381 n.8 (D.C.Cir.), cert. denied, 462 U.S. 1119 (1983). ---------------------------------------- Page Break ---------------------------------------- 13 that he has standing because of his responsibility to ensure the proper enforcement and lawful administration of the black lung benefits program ." Director, OWCP V. Rochester & Pittsburgh Coal Co., 678 F.2d 17, 18-19 n.2 (3d Cir. 1982); see also Director, OWCP v. O'Keefe, 545 F.2d 337, 339 & n.7 (3d Cir. 1976) (assuming Director has authority under 33 U.S.C. 921(c) to petition court of ap- peals for review of Board decision). Significantly, moreover, the Fifth Circuit itself appears to have retreated from the standard it set forth in Donzi Marine, on which the court below relied. In Director, OWCP v. Bethlehem Steel Corp., 949 F.2d 185, 186-187 (1991), the Fifth Circuit held that the Director has statutory standing to challenge a Board ruling as to when a total disability becomes a partial disability - an issue that is, for present purposes, analytically indistinguishable from the one the Fourth Circuit held that the Director did not have standing to raise in this case. The Fifth Circuit reasoned that the Director was "faced by the ruling of three Courts of Appeals that the Board of Review is simply wrong," which "poses a major problem in the administration of an Act which was conceived out of the * * * constitutional de- mand for a nationwide uniformity." Id. at 187. The court pointed out that if the Director did not have standing to seek relief from the Board's ruling, "injured workers in the extensive maritime activities in the Fifth Circuit must en- dure a ruling fraught with substantial dollar loss."" Ibid. 8 Thus, the Fifth Circuit standard appears to permit the court to substitute its judgment for the Director's judgment as to the impact that a Board decision has on the administration of the LHWCA, thereby leading to great unpredictability. ___________________(footnotes) 8 The Fifth Circuit also noted that although the claimant had not filed his own petition for review of the Board's decision, the claimant had entered a formal appearance in the case and had adopted the Direc- tor's briefs and argument. 949 F.2d at 186. ---------------------------------------- Page Break ---------------------------------------- 14 In Director, OWCP v. Perini N. River Assocs., 459 U.S. 297, 302-305 (1983), this Court took note of the ques- tion whether the Director has statutory and Article III standing to file a petition for a writ of certiorari. The Court found it unnecessary to decide the question, how- ever, because the employer in Perini conceded that the Direct or was a proper respondent before the court of ap- peals and, as such, was entitled to petition for a writ of certiorari under 28 U.S. C. 1254(1). 459 U.S. at 304. More- over, the claimant in Perini participated before this Court and filed briefs in support of the Director thereby ensuring that the Court was presented with an admittedly justifi- able controversy. Id. at 304-305. The Court noted that in some earlier cases, the Director had petitioned for writs of " certiorari that were granted by the Court, but because of the procedural posture, resolution of the standing issue had been unnecessary in those cases as well. Id. at 303 n. 11.9 The Court should now resolve the standing issue that it has left open and that continues to divide the lower courts. 2. a. The panel's holding that the Director does not have standing to petition the court of appeals for review of the Board's ruling on the partial disability issue is incor- rect. There is an ongoing dispute in this case as to the proper amount of benefits that the claimant should be ___________________(footnotes) 9 The Court also pointed out that the courts of appeals that had re- jected the Director's standing argument in Fusco, Donzi Marine, and I. T. O. Corp., had relied on statutory grounds and did not address the Article 111 standing issue. 459 U.S. at 302 n.9. The Court concluded in the Perini case that "the Director has statutory authority to seek review in this Court," but that the Director "may not have Art. 111 standing to argue the merits of [claimant's] claim because the Director's presence does not guarantee the existence of a justifiable controversy with respect to the merits of [claimant's] coverage under the LHWCA." 459 U.S. at 304. ---------------------------------------- Page Break ---------------------------------------- 15 awarded. And "where a dispute is otherwise justifiable, the question whether the litigant is a `proper party to re- quest an adjudication of a particular issue,' * * * is one within the power of Congress to determine. " Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972) (quoting Flast v. Cohen, 392 U.S. 83, 100 (1968)). Congress thus may determine whether an interest is "legally-protected," see Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992), such that an invasion of that interest results in an "injury in fact" for standing purposes. In this case, Congress has vested the Secretary of Labor with authority to promulgate regulations to aid in his ad- ministration of the LHWCA (33 U.S. C. 939(a)); those regulations grant the Director standing to participate at all levels, administrative and judicial, of a LHWCA dispute. Shahady, 673 F.2d at 483. The regulations specifically provide that the Director, as the designated official "re- sponsible for the administration and enforcement" of the Act, "shall be deemed to be the proper party on behalf of the Secretary of Labor in all review proceedings" in the courts of appeals. 20 C.F.R. 802.410(b).1'J In holding that the Director nevertheless lacks Article 111 standing, the court of appeals failed to recognize the extensive duties conferred on the Director (through the Secretary) by Congress and the attendant interests the Secretary and Director are entitled to advance. As noted above, Congress has vested the Secretary of Labor with the following duties: "administer[ing] the provisions" of the Act and issuing necessary "rules and regulations," 33 U.S.C. 939(a); actively supervising the medical care ___________________(footnotes) 10 The regulations also make clear that the Director has standing to participate in administrative proceedings, including by appealing to the Board from an ALJ decision with which she disagrees. 20 C.F. R. 702.333(b), 801.2(a)(10), 802.201(a)(l). ---------------------------------------- Page Break ---------------------------------------- l6 rendered to injured employees, including maintaining a list of health care providers not authorized to render serv- ices under the LHWCA and regulating the medical ex- penses, 33 U.S.C. 907; approving settlements, 33 U.S.C. 908(i); appearing before courts of appeals through at- torneys appointed to represent him, 33 U.S.C. 921a; bringing actions (through deputy commissioners) in district court to enforce compensation awards, 33 U.S.C. 921 (d); furnishing information to claimants, assisting them in obtaining medical and rehabilitation services, and, upon request, providing them with legal assistance in proc- essing a claim, 33 U.S. C. 939(c); administering a Special Fund for payment of benefits in specified circumstances, 33 U.S.C. 944; and issuing and enforcing rules and regula- tions pertaining to employee safety, 33 U.S.C. 941. In sum, the Secretary is charged with ensuring that employers fulfill their statutory responsibility to pay valid claims (thereby relieving the claimant and the public at large of that cost), assisting claimants in both administra- tive hearings and the courts, and defending the special fund against invalid claims. Cf. Director, OWCP v. Eastern Coal Corp., 561 F.2d 632,641-648 (6th Cir. 1977) (discussing Secretary's analogous duties under Black Lung Benefits Act). The Secretary's role in ensuring payment by employers and assisting claimants not only serves the in- terest in "meeting the needs of the injured employee and his family," but also "by assuring that the employer bears the cost of unsafe conditions, serves to strengthen the employer's incentive to provide the fullest measure of on- the-job safety." H.R. Rep. No. 1441, 92d Cong., 2d Sess. 1 (1972). This statutory assignment of authority to the Secretary and, by delegation, to the Director, gives the Director standing to petition for review of Board decisions that she believes are erroneous. ---------------------------------------- Page Break ---------------------------------------- 17 b. The history of the LHWCA strongly supports the conclusion that the Director is "adversely affected or ag- grieved" by Board orders that incorrectly reject a claim for benefits under the Act. Prior to the 1972 Amendments to the Act (see note 1, supra), the deputy commissioners (field administrators under the authority of the Director's predecessor) conducted hearings on claims, and their deci- sions were subject to review in injunctive proceedings in district court. The deputy commissioner was denominated as a respondent in such district court proceedings, see former Section 21(b), 44 Stat. 1436 (1927) (codified at 33 U.S.C. 921(b) (1970)), and it was clear that the deputy commissioner had standing to appeal under 28 U.S.C. 1291 from a district court ruling enjoining his decision, even in the absence of an appeal by another party. See Henderson v. Glens Falls Indem. Co., 134 F.2d 320 (5th Cir.), cert. denied, 319 U.S. 756 (1943). The 1972 Amendments transferred the authority to con- duct hearings to ALJs and replaced district court injunc- tive actions with review by the Board, subject to review in the court of appeals. There is no indication, however, that those changes were intended to divest the LHWCA'S ad- ministrator of authority to seek review in the courts of ap- peals of decisions on benefits claims that are adverse to her position. Cf. Director, OWCP v. Eastern Coal Corp., 561 F.2d 632, 649 (6th Cir. 1977) ("[w]e do not find in the [1972 Amendments] any Congressional intention * * * to compel the Secretary or his duly designated representative to accept [Board decisions] without recourse to the courts when he conscientiously disagrees"); Shahady, 673 F.2d at 485. Indeed, such a restrictive interpretation of 33 U.S.C. 921 (c) would thwart the Director's policymaking, admini- strative and protective roles under the LHWCA, and would be directly at odds with a major purpose of the 1972 ---------------------------------------- Page Break ---------------------------------------- 18 Amendments, which was to augment these roles. See S. Rep. No. 1125, Cong., 2d Sess. 13-14 (1972) (placing responsibility for hearings with ALJs will better enable deputy commissioners to perform their administrative responsibilities under the Act); see generally id. at 14-15 (ensuring Director's active involvement at all stages of claim-processing under LHWCA); H.R. Rep. No. 1441, 92d Cong., 2d Sess. 12-13 (1972) (same). That the Director's interest in the resolution of benefit claims is sufficient to confer standing is confirmed by the text and legislative history of the Black Lung Benefits Act, as amended in 1977, Pub. L. No. 95-239, 92 Stat. 95 (BLBA). The BLBA generally incorporates the procedures of the LHWCA, 30 U.S. C. 932(a), and explicitly provides that "[t]he Secretary shall be a party in any proceeding relative to a claim" for black lung benefits. 30 U.S.C. 932(k). The Senate Committee on Human Resources (the successor to the Committee on Labor and Public Welfare that drafted the 1972 amendments to the LHWCA) ex- plained that this provision reflects the intent that the Director have standing under both Acts: Some question has arisen as to whether the adjudica- tion procedures applicable to black lung claims incor- porating various sections of the amended Longshore- men's and Harbor Workers' Compensation Act con- fers standing upon the Secretary of Labor or his designee to appear, present evidence, file appeals or respond to appeals filed with respect to the litigation and appeal of claims. In establishing the Longshore Act procedures it was the intent of this Committee to afford the Secretary the right to advance his views in the formal claims litigation context whether or not the Secretary had a direct financial interest in the out- come of the case. The Secretary's interest as the of- ficer charged with the responsibility for carrying forth ---------------------------------------- Page Break ---------------------------------------- 19 the intent of Congress with respect to the Act should be deemed sufficient to confer standing on the Secre- tary or such designee of the Secretary who has the re- sponsibility y for the enforcement of the Act, to active- ly participate in the adjudication of claims before the Administrative Law Judge, Benefits Review Board, and appropriate United States Courts. S. Rep. No. 209, 95th Cong., 1st Sess. 21-22 (1977) (em- phases added). "When several acts of Congress are passed touching the same subject-matter, subsequent legislation may be considered to assist in the interpretation of prior legislation upon the same subject ." Tiger v. Western In- vestment Co., 221 U.S. 286, 309 (191 1); Bell v. New Jersey, 461 U.S. 773, 784 (1983). See also West Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 83, 100-101 (1991). That is especially so here. Congress specifically in- tended that the procedures for administrative and judicial review under the LHWCA and BLBA be the same. To recognize the Director's standing under one Act but not the other would be inconsistent with that intent and would introduce unwarranted complexity into the implementa- tion of the statutory mandates. 11 ___________________(footnotes) 11 The Director, OWCP, administers both the LHWCA and the BLBA. 20 C.F. R. 701 .202(a) and (f). As set forth above, a specific provision of the BLBA (30 U.S.C. 932(k)), as well as its legislative history establish that Congress intended to permit the Director to seek review of Board decisions on BLBA claims, even in the absence of a financial interest in the outcome. Nonetheless, the lower court's con- stitutional ruling could have implications for the BLBA, which incor- porates 33 U.S.C. 921(c) from the LHWCA. Although several courts of appeals, even before the addition of 30 U.S.C. 932(k), recognized the Director's standing to petition for review of Board decisions on black lung claims, the courts gave at least some weight to the Director's interest in those cases in obtaining reimbursement from mine operators for benefits paid from the Black Lung Disability Trust Fund. See Krolick Contracting Corp. v. Benefits Review Bd., 558 F.2d 685, 689-690 (3d Cir. 1977); Director, OWCP v. National Mines Corp., 554 F.2d 1267, 1271-1272 (4th Cir. 1977); Director, OWCP v. ---------------------------------------- Page Break ---------------------------------------- 20 c. The court of appeals correctly viewed 33 U.S.C. 921 (c) in this context as authorizing standing as broadly as is permitted by Article III of the Constitution. App., in- fra, 9a n. 1; see Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209 (1972). In concluding that the Director lacks the "injury in fact" required for constitutional stand- ing, however, the court of appeals confused the Director's interest in the resolution of LHWCA cases with the inter- ests of private parties, whose standing to litigate the merits of a particular case depends upon an economic or other personal stake in the outcome of a controversy. See Baker v. Carr, 369 U.S. 186, 204-208 (1962). "[T] he Director in this litigation is no private party required to show `that he has suffered injury in fact' * * * [;] [t]he question in this case is whether or not the interest of the Department of Labor of the United States Government has been adverse- ly affected or aggrieved." Eastern Coal Corp., 561 F.2d at 646. Because the Director appears "not as a private indi- vidual in any sense, but as the authorized representative of the Department of Labor" who is entrusted with responsi- bility for the administration of the LHWCA, ibid., her in- terest is analogous not to that of private parties, but rather to that of other government officials carrying out their public duties under particular statutes. See, e.g., United ___________________(footnotes) Alabama By-Products Corp., 560 F.2d 710, 717 (5th Cir. 1977); Eastern Coal Corp., 561 F.2d at 646; Director, OWCP v. Peabody Coal Co., 554 F.2d 310, 336-338 (7th Cir. 1977); see Donzi Marine, 586 F.2d at 380 (distinguishing black lung cases on ground that, unlike LHWCA case before the court, government had an interest in estab- lishing its right to recover funds already disbursed). The Director may also, however, wish to petition for review of Board decisions in some BLBA cases in which the Director did not initially find eligibility on behalf of the claimant and interim benefits therefore have not been paid out of the Black Lung Disability Trust Fund. In those cases, government would not have a pecuniary interest in the case. ---------------------------------------- Page Break ---------------------------------------- 21 States ex rel. Chapman v. Federal Power Comm`n, 345 U.S. 153, 155-156 (1953); In re Debs, 158 U.S. 564, 584-586 (1895); cf. Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982) (State has parens patriae standing based on the health and well being of its residents in general). The benefits scheme established by the LHWCA does far more than provide for adjudication and vindication of purely private rights. As a workers' compensation system, it has many of the elements of social insurance, and as such is designed to promote the public interest: [T]he entire [workers'] compensation system has been set up and paid for, not by the parties, but by the public. The public has ultimately borne the cost of compensation protection in the price of the product, and it has done so for the specific purpose of avoiding having the disabled victims of industry thrown on private charity or public relief. * * * . 3 A, Larson, The Law of Workmen's Compensation $82.41 (1993); 1 id. 1.20 ("like social insurance, but unlike tort, the right to benefits and amount of benefits are based largely on a social theory of providing support and preventing destitution, rather than settling accounts between two individuals according to their personal deserts or blame"); see Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249,268 (1977) (LHWCA, as amended, is remedial legislation that "must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results," quoting Voris v. Eikel, 346 U.S. 328, 333 (1953)). The United States has an in- terest in ensuring that claimants receive the maximum benefits to which they are entitled under such protective legislation. See H.R. Rep. No. 1441, 92d Cong., 2d Sess. 12-13 (1972); S. Rep. No. 1125, 92d Cong., 2d Sess. 15 ---------------------------------------- Page Break ---------------------------------------- 22 (1972). It may advance that interest through its agent, the Director, in the courts of the United States. Compare, e.g., Heckman v. United States, 224 U.S. 413, 437-444 (19 12); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 473-474 (1976).12 Given her broad responsibilities and the public interest inhering in them, the Director has a material interest in the administration and application of the LHWCA beyond the narrow range that the court of appeals grudgingly acknowledged. The Director's interest, on behalf of the United States, is engaged every time she concludes that the Board has improperly denied a particular claim. Shahady, 673 F.2d at 483; cf. Eastern Coal Corp., 561 F.2d at 645 (Director is "adversely affected or aggrieved" under 33 U.S.C. 921(c) "in that * * * he is seeking what he deems to be lawful administration of the [BLBA] and assisting ___________________(footnotes) 12 Cf. General Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980) (when EEOC acts under Title VII of the Civil Rights Act of 1964, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimina- tion); Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 692-693 (7th Cir. 1986) (en bane) (Secretary's interest in bringing enforcement ac- tion under Employee Retirement Income Security Act is based not only on his duty to protect individual beneficiaries of specific pension programs, but also on the public interest in protecting "the very in- tegrity, heart and lifeline of the program itself."); Donovan v. Univer- sity of `Tex. at El Paso, 643 F.2d 1201, 1208 (5th Cir. 1981) (Secretary sues to protect the public interest under Fair Labor Standards Act); United States v. Federal Maritime Comm'n, 694 F.2d 793, 800-802 (D.C. Cir. 1982) (Federal Maritime Commission's order approving rate agreement between shippers interfered with Justice Department's responsibility to enforce antitrust laws, and that injury established that Justice Department was "party aggrieved" entitled to assert public interest under Shipping Act and seek judicial review of Commission order); United States v. Federal Maritime Comm`n, 655 F.2d 247, 251-252 (D.C. Cir. 1980). ---------------------------------------- Page Break ---------------------------------------- 23 claimants * * * whose awards of benefits have been vacated by the Benefits Review Board, as well as defend- ing the regulations he is charged with administering"). According standing to the Director in these circum- stances does not impugn any of the core concerns under- lying Article II I's "case or controversy" requirement. Here there is a concrete dispute as to the onset date of the claim- ant's permanent partial disability, the resolution of which will af feet the amount of benefits awarded to the claimant. And the Director's presence advocating that a greater pay- ment of benefits by the employer is required "assure[s] that the * * * questions presented to the court will be re- solved, not in the rarified atmosphere of a debating socie- ty, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial act ion." Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982); see also Lujan, 112 S. Ct. at 2136; Trafficante, 409 U.S. at 211; Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 112-115 (1979). 3. The court of appeals' ruling presents a serious obstacle to the Director's enforcement of the LHWCA. Under the court of appeals' narrow view of standing, the Director is left powerless to challenge erroneous Board rulings in many circumstances. Although the Act author- izes recovery of attorneys' fees by a prevailing claimant, 33 U.S.C. 928(a), because of the relatively modest amount of most awards, and the significant legal costs and risks asso- ciated with appellate review, an individual claimant may lack the incentive or ability to petition for review in a par- ticular case in which his claim is meritorious and import- ant legal issues are involved. The decision below also undermines the Director's dis- tinct policymaking role under the LHWCA. It is the Direc- tor's views on questions of statutory and regulatory inter- pretation, not the views of the Board, that are entitled to ---------------------------------------- Page Break ---------------------------------------- 24 deference from the courts. See Director, 0WCP v. General Dynamics Corp., 982 F.2d 790, 795 (2d Cir. 1992); Zapata Haynie Corp. v. Barnard, 933 F.2d 256,258 (4th Cir. 1991); Newport News Shipbuilding & Dry Dock Co. v. Howard, 904 F.2d 206, 208 (4th Cir. 1990); Boudreaux v. American Workover, Inc., 680 F.2d 1034, 1046 (5th Cir. 1982) (en bane), cert. denied, 459 U.S. 1170 (1983); 13 see also Potomac Elec. Power Co. v. Director, 0WCP, 449 U.S. 268, 278 n. 18 (1980) (Board is not a policymaking agency and its interpretations are not en- titled to special deference from the courts); cf. Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 159-160 (1987) (Director's construction of BLBA is entitled to deference). Under the Fourth Circuit's ruling, the Direc- tor's ability to advance her expert views, and thereby maintain uniform administration of the LHWCA, would be substantially impaired. See, e.g., Director, OWCP v. Bethlehem Steel Corp., 949 F.2d 185, 187 (5th Cir. 1991) (LHWCA was conceived out of a "constitutional demand for a nationwide uniformity"). Finally, the test applied by the court below, which was drawn from the Fifth Circuit's decision in Donzi Marine, creates confusion over what constitutes injury to a "legiti- mate administrative interest" of the Director. Compare, e.g., the Fifth Circuit's ruling in Donzi Marine, 586 F.2d at 381-382 (Director's legitimate administrative interests are not adversely affected by Board's legal ruling that recreational boat industry employees are not covered by LHWCA), with the Fifth Circuit's more recent decision in Bethlehem Steel Corp., 949 F.2d at 186-187 (Director's ___________________(footnotes) 13 But see Sea-Land Service, Inc. v. Rock, 953 F.2d 56, 59 (3d Cir. 1992); American Ship Bldg. Co. v. Director, OWCP, 865 F.2d 727, 730 (6th Cir. 1989) (neither Board nor Director is entitled to special deference). ---------------------------------------- Page Break ---------------------------------------- 25 interest adversely affected by Board ruling concerning when a total disability becomes a partial disability, when three courts of appeals had already rejected Board's posi- tion). A more straightforward approach to standing in this context, fully justified under the terms of the LHWCA and fully in accord with the Constitution, would permit the Director to petition for review of any Board decision resolving a benefits controversy that she, as a party to pro- ceedings before the Board, regards as erroneous. The D.C. Circuit has endorsed this approach to the Director's stand- ing, and the Third Circuit has expressed its approval of that approach as well. See pages 10-13, supra. The Court should resolve this important and recurring issue. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. THOMAS S. WILLIAMSON, JR. Solicitor of Labor ALLEN H. FELDMAN Associate Solicitor STEVEN J. MANDEL Deputy Associate Solicitor MARK S. FLYNN Senior Appellate Attorney Department of Labor DREW S. DAYS III Solicitor General EDWIN S. KNEEDLER Deputy Solicitor General BETH S. BRINKMAN Assistant to the Solicitor General MAY 1994 ---------------------------------------- Page Break ---------------------------------------- APPENDIX A UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 92-1864 DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, RESPONDENT v. JACKIE H. HARCUM, CLAIMANT On Petition for Review of an Order of the Benefits Review Board (90-1287) Argued: February 5, 1993 Decided: October 29, 1993 Before: ERVIN, Chief Judge, NIENEYER, Circuit Judge, and WARD, Senior United States District Judge for the Middle District of North Carolina, sitting by designation. (la) ---------------------------------------- Page Break ---------------------------------------- 2a OPINION ERVIN, Chief Judge: Jackie Harcum ("Claimant"), a former employee of Newport News Shipbuilding & Dry Company ("Newport News"), suffers from a work-related, disabling back in- jury. As an employee covered under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. 901-950, the Claimant filed a request for com- pensation benefits, which was partially granted and denied. On appeal, the Director of the Office of Worker's Compensation Programs in the United States Department of Labor ("Director") challenges the Benefits Review Board ("Board") as to its construction of the LHWCA on two grounds. First, the Director asserts that the Board im- properly determined that the Claimant's disability shifted from the status of temporary total disability to that of per- manent partial disability on May 6, 1988. In addition, the Director challenges the Board's application of a provision of the LHWCA to lessen substantially Newport News's obligation to pay benefits and to shift responsibility for compensation to a special fund organized under the LHWCA. Because we believe the Director lacks standing to raise the first issue, we decline to address it. Finding, however, that the Board erred in implicating the special fund and that the Director is the proper party to redress improper use of the fund, we reverse the Board's decision to limit Newport News's obligation to pay benefits. I The Claimant worked for Newport News as a machine installer from February 26, 1963 until May 6, 1988. Dur- ing his tenure with Newport News, the Claimant suffered a series of back injuries. According to his medical records, the Claimant sustained a lumbar strain on June 3, 1965, ---------------------------------------- Page Break ---------------------------------------- 3a and a more severe lumbosacral strain on February 8, 1966. At the time of this second injury, an x-ray of the Claimant's back revealed a sacral arch defect. The Claim- ant again experienced a lumbar strain on February 7, 1977, and was unable to work from February 27, 1977 through March 28, 1977 as a result. After two more related injuries in 1981 and 1983, the Claimant's physician referred him to a neurosurgeon. The neurosurgeon diagnosed the Claimant with a herniated disc in the cervical spine area and performed a hemilami- nectomy on January 24, 1984 to remove the disc. The Claimant responded well to the surgery and was able to return to work on March 5, 1984. On October 24, 1984, the Claimant suffered the injury that serves as the subject of this appeal. While bending down in the bilge area of a steam barge, the Claimant was struck in the lower back by a piece of falling grating. After a month of unabated leg and back pain, the Claimant returned to the neuro- surgeon. Tests revealed another herniated disc, this time in the lumbar spine area, and on January 11, 1985, the neurosurgeon removed the disc. On March 15, 1985, addi- tional surgery was performed to free a pinched nerve root and remove retained fragments of disc material. After a protracted recovery, the Claimant returned to light-duty work at Newport News on October 4, 1985, but immediately experienced back pain and was "passed out" of service temporarily to recuperate. Newport News paid the Claimant benefits under the LHWCA for temporary total and temporary partial disability until the Claimant again returned to Newport News's light duty facility in April 1987. On November 4, 1987, the Claimant's neuro- surgeon formulated restrictions by which he could return to his regular department. The doctor rated the Claimant as having an eighteen-percent whole body impairment and restricted his lifting to thirty pounds. The Claimant also ---------------------------------------- Page Break ---------------------------------------- 4a was to alternate regularly between sitting and standing and to refrain from ladder climbing. The Claimant returned to his regular department in January 1988, but was unable to perform the necessary tasks. Therefore, on May 6, 1988, the Claimant was passed out of the shipyard once again. Newport News of- ficials informed the Claimant that they would look for another job for him in the shipyard within his restrictions. The Claimant suggests that, based upon this reassurance, he did not look for a job outside of the shipyard at the time he was passed out. In August 1988, however, New- port News's supervisor of employee relations at the shipyard arranged a meeting with the Claimant. At the meeting, the Claimant was told that the shipyard had no work to offer him within his restrictions and that he was being referred to a rehabilitation counselor. The Claimant met with the rehabilitation counselor for the first time on September 20, 1988, and the two began developing a job placement and rehabilitation program for the Claimant. The Claimant then started his search for a new job. After following several leads supplied by the rehabilitation counselor, the Claimant was able to secure a job with the Hampton Sheet Metal Company ("Hampton Sheet Metal") on February 16, 1989. The Claimant still works at Hampton Sheet Metal in a job that is comfort- ably within his disability restrictions. At the time of the hearing on this matter before the Administrative Law Judge ("ALJ"), the Claimant was earning $5.00 per hour and working fort y hours per week. Subsequent to the Claimant's employment by Hampton Sheet Metal, New- port News requested that the rehabilitation counselor con- duct a labor survey of the available jobs for which the Claimant may have qualified during the period of May 6, 1988 to February 15, 1989. The completed survey listed eleven job possibilities. ---------------------------------------- Page Break ---------------------------------------- 5a The Claimant filed a request for compensation benefits under the LHWCA, and a hearing was held before an ALJ on October 20, 1989. In addition to the above facts, the parties presented medical opinions of three doctors. A doctor opined, at Newport New's behest, that [i]t is obvious the Mr. Harcum's current low back condition was not caused by any one injury. Rather, it is clear that Mr. Harcum's current low back condi- tion is the result of cumulative and repeated lumbar injuries. Each injury aggravated Mr. Harcum's low back problems and made him more susceptible to fur- ther back injuries, and each injury increased the severity of the subsequent injuries. This clearly con- stitutes a pre-existing permanent partial disability, and a cautious employer would not have hired Mr. Harcum with this manifest condition. Additionally, Mr. Harcum's cervical spine condition also substantially contributes to his current level of disability. As a result of shoulder injuries in 1981 and 1983, surgery was performed on Mr. Harcum's cer- vical spine. As I noted previously, this equates to a five percent (5070) whole body impairment. I agree with Dr. Peach's statement in his December 1, 1987 letter. Dr. Peach indicated that Mr. Harcum's level of whole body impairment is a result of two surgical pro- cedures: the 1984 surgery on Mr. Harcum's cervical spine and the 1985 surgery on his lumbar spine. The cervical and lumbar injuries, and the surgery they necessitated, clearly combined to create a greater im- pairment than would otherwise have occurred. This condition was manifest in Mr. Harcum's clinical record, and a cautious employer would not have hired him with this condition ---------------------------------------- Page Break ---------------------------------------- 6a Dr. Peach, the Claimant's neurosurgeon, indicated, in a December 1, 1987 letter, that the Claimant's permanent partial disability was due in part to both surgical pro- cedures involving the Claimant's cervical and lumbar spinal areas. Another doctor opined that "[i]t is clear that Mr. Harcum had a pre-existing partial impairment or disability that was materially increased by the second in- jury and disc herniation." After disposing of two issues not raised on this appeal, the ALJ addressed whether the Claimant was entitled to a temporary total disability award from May 6, 1988 until February 16, 1989. Citing Stevens v. Lockheed Ship- building Co., 22 BRBS 155, 157-59 (1989), the ALJ established the date of maximum medical improvement as the onset of permanent partial disability. As the parties had stipulated that date to be December 7, 1987, several months before the Claimant was passed out of the shipyard permanently, the ALJ determined that, for the purpose of benefit payments, permanent partial disability began when the Claimant was passed out or on May 6, 1988. Alternatively, the ALJ held that Newport News had shown successfully the availability of suitable alternate jobs that the Claimant was capable of performing from May 6, 1988 to February 15, 1989. Therefore, the Claim- ant's disability ceased to be a total disability on May 6, 1988, when the Claimant regained wage-earning capacity. The ALJ concluded that, from May 6, 1988, the Claim- ant should have received compensation based on a perm- anent partial disability rather than a temporary total disability. Based on the improper classification, the Claimant had received $101.34 per week in excess benefits during the period from May 6, 1988 to February 16, 1989. The ALJ held that Newport News was entitled to a credit against future benefits payments owed to the Claimant in ---------------------------------------- Page Break ---------------------------------------- 7a the amount of $101.34 per week for approximately forty weeks, the period of the overpayment. The ALJ addressed, as the final issue, whether Newport News was entitled to a reduction in the benefits it was re- quired to pay the Claimant pursuant to section 8(f) of the LHWCA, 33 U.S.C. 908(f). Section 8(f) limits an employer's responsibility to pay disability benefits to one hundred and four weeks if the employee's work-related in- jury was substantially exacerbated by a pre-existing per- manent partial disability. See id. 908(f)(1). Finding that Newport News had established each of the elements need- ed to enjoy section 8(f) relief, the ALJ limited Newport News's obligation to pay weekly benefits to the Claimant accordingly. The Director appealed the ALJ's decision to the Benefits Review Board as a "party in interest" pursuant to 33 U.S.C. 921(b)(3). On appeal, the Board affirmed the ALJ's decision in all respects, but with one clarification. The ALJ had relied, for its determination of the com- mencement of partial disability, on Stevens v. Lockheed Shipbuilding Co., 22 BRBS 155 (1989), which the Ninth Circuit court of appeals subsequently reversed. Stevens v. Director, Office of Workers' Compensation Programs, 909 F.2d 1256 (9th Cir. 1990), cert. denied sub nom. Lockheed Shipbuilding Co. v. Director, Office of Workers' Compensation Programs, 498 U.S. 1073 (1991). The Ninth Circuit court held that the date total disability becomes partial is the date on which the employer establishes that suitable alternate employment is available, not the date on which maximum medical improvement oc- curs. Id. at 1259-60. The Board vacated "the ad- ministrative law judge's reliance on the Board's decision in Stevens to commence Claimant's award of benefits for permanent partial disability on May 6, 1988." The Board ---------------------------------------- Page Break ---------------------------------------- 8a noted, however, that the ALJ alternatively held that May 6, 1988 was the proper date because Newport News had established job availability as of that date. On that basis, the Board affirmed the ALJ's decision. The Director petitioned this court for review of the Board's decision pursuant to 33 U.S.C. 921(c). The Director raises two issues on appeal: (1) whether the Board erred as a matter of law in accepting the ALJ's determina- tion of the Claimant's injury status change from that of temporary total disability to that of permanent partial disability; and (2) whether, in determining Newport News's entitlement to section 8(f) relief, the Board applied the incorrect standard. II The ALJ is the only adjudicative body handling a benefits determination that may make factual findings. See Lavino Shipping Co. v. Donovan, 267 F.2d 59, 61-62 (3d Cir. 1959). Therefore, the Board's review of the ALJ's factual findings is limited by the statutory requirement that "[t]he findings of fact in the decision under review by the Board shall be conclusive if supported by substantial evidence in the record considered as a whole. " 33 U.S. C. 921(b)(3). We review the Board's decision for errors of law and to ascertain whether the Board adhered to its statutorily-mandated standard for reviewing the ALJ's factual findings. Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 543 (4th Cir. 1988). The Board's adjudicatory interpretation of the LHWCA is entitled to no special deference because the Board serves no policy-making role. See Zapata Haynie Corp. v. Bar- nard, 933 F.2d 256, 258 (4th Cir. 1991). The Director is charged with administration of the LHWCA; therefore, we should respect a reasonable interpretation of the ---------------------------------------- Page Break ---------------------------------------- 9a LHWCA by the Director. See id.; Newport News Ship- building & Dry Dock Co. v. Howard, 904 F.2d 206, 209 (4th Cir. 1990). We are guided by Chevron U. S. A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984) when deciding whether to accept a reasonable interpretation of the LHWCA advocated by the Director. Zapata, 933 F.2d at 258; Howard, 904 F.2d at 208. Absent clear congressional intent as to the proper construction of the LHWCA, we must give deference to the Director's reasonable and permissible interpretation. Zapata, 933 F.2d at 259; Howard, 904 F.2d at 209. Before reviewing the Board's determinations, however, we must address whether the Director has standing to peti- tion this court for review of the issues raised.1 The LHWCA permits "[a]ny person adversely affected or ag- grieved by a final order of the Board [to] obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred." 33 U.S. C. 92 l(c). Unlike the provision of the LHWCA permitting "any par- ty in interest" to seek review before the Board, id. 921(b)(3), section 921(c) requires that the appellant be a "person . . . aggrieved," id. 921(c), or a party that has suffered an injury in fact, economic or otherwise. See Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 676 F.2d ___________________(footnotes) 1 Although not raised by the parties, standing presents an issue of the very justifiability of the claim presented and strikes at the core of the constitutional limitations placed upon this court by Article III of the Constitution. In this case, the LHWCA codifies the constitutional requirement that limits standing to those person who can allege "that they personally have suffered or imminently will suffer an injury." Er- win Chemrinsky, Federal Jurisdiction 2.3.2, at 52 (1989); see 33 U .S.C. 921(c). Before we can address the merits of the Director's ap- peal, we must determine whether this basic and nonwaivable mandate is met. ---------------------------------------- Page Break ---------------------------------------- 10a 110, 113 (4th Cir. 1982). We must decide whether the issues raised on appeal represent an actual injury to the Director. The Fifth Circuit court of appeals was the first circuit court to address the extent of the Director's standing to ap- peal pursuant to 33 U.S.C. 921(c). See Director, Office of Workers' Compensation Programs v. Donzi Marine, Inc., 586 F.2d 377 (5th Cir. 1978). In Donzi Marine, the Director questioned the extent to which the LHWCA ap- plied to the employees of small boat builders, marine operators, and other firms in the recreational boating in- dustry. Id. at 377. The court recognized that, before it could address the merits of the appeal, it must resolve "whether the Director, the sole petitioner, is `adversely af- fected or aggrieved' by the Board's decision [not to award benefits] as required by section 921(c). " Id. at 379 (quoting 33 U.S.C. 921(c)). The Donzi Marine court began its analysis by outlining the responsibilities conferred upon the Director by the LHWCA. The court concluded that the Director would have standing only if an interest of the Director arising from his or her specifically delegated responsibilities was adversely affected by the Board's decision. Id. The LHWCA confers four responsibilities upon the Director: (1) the performance of an assortment of general ad- ministrative and supervisory responsibilities, e.g. 33 U.S.C. 906(b)(3), 907, 914, 919, 923(b), 930, 932; (2) the provision of assistance to persons covered by the LHWCA in processing their claims and receiving compen- sation, id. 939; (3) the promulgation and enforcement of safety rules and regulations, id. 941; and (4) the duty to administer the special fund established for the payment of certain benefits, id. 944. See Donzi Marine, 586 F.2d at 379-80. ---------------------------------------- Page Break ---------------------------------------- lla The court suggested that the nature of the Director's responsibilities presented two avenues by which the Direc- tor might have standing to petition for appellate review. First, the Director may redress Board decisions that adversely affect the Director's legitimate administrative in- terests. Id. at 381. For example, if a Board decision substantially augmented the nature of the administrative duties delegated to the Director, increased the Director's necessary expenditure of administrative resources, or created confusion as to how the Director was to carry out specific functions, the Director's responsibilities under the LHWCA would be bound up sufficiently with the merits of the appeal to evidence a cognizable administrative in- jury. Id. at 381-82. In addition, the Director may seek review of a Board decision adversely impacting the special fund created to pay employees in certain instances in which the employer is relieved of that obligation. Id. at 380-81; see 33 U.S.C. 944. If the Board's decision favors payment out of the fund as opposed to by the employer, the depletion of the fund represents an injury in fact to the Director as ad- ministrator of the fund. The Donzi Marine court determined that, under the facts at hand neither the Director's legitimate ad- ministrative interests nor his or her pecuniary interest in protecting the fund was implicated. Id. at 380-82. Therefore, the court held that [the Director] does not meet the standing requirement imposed by section 921(c) and may not, on his own initiative and without the company of the claimant, petition to review the Board's decision to this court. At bottom, the Director appears here to claim no more than an interest in receiving from the Board an interpretation of the [LHWCA]'S coverage consistent ---------------------------------------- Page Break ---------------------------------------- 12a with his own belief as to what that coverage should be. The mere fact that the Board has chosen not to ac- cept the Director's view does not aggrieve the Director in any meaningful sense and, hence, cannot give him standing to appeal. We are unable, therefore, under the statute to render the advisory legal opinion which the Director seeks by his petition to this court. Id. at 382; see also Director, Office of Workers' Compen- sation Programs v. Bethlehem Steel Corp., 620 F.2d 60, 63 (5th Cir. 1980) (holding that Director is not a person "adversely affected or aggrieved" by an order of the Board which denies disability payments under the LHWCA); but see Shahady v. Atlas Tile & Marble Co., 673 F.2d 479,483 (D.C. Cir. 1982) ("[T]he Director's general supervisory and enforcement interest, apart from any pecuniary in- terest, is sufficient to confer upon the Director standing to file a petition for review under section 921(c)."). We adopted the clear logic of the Fifth Circuit court's Donzi Marine holding in Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., F.2d 110 (4th Cir. 1982).2 In that case, we ___________________(footnotes) 2 We had decided previously that the Director is not a proper respondent in a petition for review under section 921(c), "although upon application and for good cause shown he may be permitted to in- tervene therein." I. T. O. Corp. v. Benefits Review Bd. (I.T.O. Corp. II), 563 F.2d 646, 648 (4th Cir. 1977) (en bane) (adopting in full the view expressed in I. T. O. Corp. v. Benefits Review Bd. (I. T. O. Corp. I), 542 F.2d 903,906-909 (4th Cir. 1976) (en bane), vacated sub nom. Adkins v. I.T.O. Corp., 433 U.S. 904(1977)). In I.T.O. Corp. I, we recognized that section 921 (c) requires an injury in fact, economic or otherwise. 542 F.2d at 907. We held the Director's asserted stake - that "[h]e is directly affected in his official capacity by the cor- rectness of the Board's decision involving the proper scope of coverage of the Act with whose administration he is charged'' -was not suffi- cient to "confer upon the Director any specific interest in the proper admistration of the Act. " Id. at 907-08. ---------------------------------------- Page Break ---------------------------------------- 13a faced an appeal by the Director of the Board's decision that section 8(f) of the LHWCA limited the employer's duty to pay benefits to one hundred and four weeks. Id. at 112. Before addressing the merits of the applicability of the section 8(f) limitation, we question whether the Board's decision sufficiently implicated an administrative or economic interest of the Director so as to give rise to a redressable injury. The Board's decision would allow the employee to draw benefits from the LHWCA'S special fund after one hundred and four weeks of employer com- pensation. We recognized that "the Director has an obliga- tion to protect [the fund] from unjustified claims," id. at 113, and, therefore, that the Director may be best situated to complain when the fund is at risk of being improperly accessed, id. at 114. Noting that this grievance represented a valid injury, we held that the fact that the Director in this case has an additional interest in protecting the fiscal integrity of the special fund convinces us that the Director has standing to appeal the Board's decision. Id. Applying this analysis to the facts of the case at hand, we acknowledge that the Director clearly has standing to pursue an appeal on the applicability of the section 8(f) limitations pursuant to our holding in Director, Office of Workers' Compensation Programs v. Newport News Ship- building & Dry Dock Co., 676 F.2d 110, 114 (4th Cir. 1982). The appealability of the first issue- the timing of the onset of partial disability - is more problematic. The Director asserts that the Board misapprehended the LHWCA'S requirements for a determination of partial disability. The Director's claim challenges the Board's con- struction of the LHWCA, but does not press the remedia- tion of an administrative or economic injury suffered by ---------------------------------------- Page Break ---------------------------------------- 14a the Director directly. The Board's construction of partial disability commencement does not alter the Director's ability to carry out his or her responsibilities under the LHWCA or to protect the fiscal integrity of the special fund. 3 We hold, therefore, that the Director has not persented a cognizable injury through the appeal of the partial disability issue and that we must refrain from ad- dressing the merits of this issue based on the Director's lack of standing to raise it. III Turning to the merits of this appeal for which the Direc- tor has standing, we confront the issue whether, in deter- mining Newport News's entitlement to section 8(f) relief, the Board applied the incorrect standard. ___________________(footnotes) 3 The only conceivable way in which the special fund might be im- plicated is if Newport News becomes insolvent and is no longer able to make the payments required under the LHWCA. If such a plight should befall Newport News, the Secretary of Labor has the discretion to make payments from the special fund to the Claimant. See 33 U.S.C. 918(b). The possibility that the fund will be accessed under these circumstances is too tenuous to represent an injury in fact to the Director. Additionally, the position that the Director presses on ap- peal would have an unfavorable effect on the fund if tapped pursuant to section 918(b). The Board's holding permits Newport News to credit its payments due to the Claimant by $101.34 per weeks. If we were to reverse the Board's decision, on remand the ALJ could decide that the credit is not due at all or is available for more limited number of weeks. A decision adjusting the credit downward would increase the aggregate amount of compensation that Newport News owes the Claimant; therefore, if Newport News were to become insolvent, the burden on the fund would be larger than possible under the Board's current decision. This possibility further emphasizes the absence of an injury to the Director resulting from the Board's decision to establish partial disability on May 6, 1988. ---------------------------------------- Page Break ---------------------------------------- 15a Section 8(f) of the LHWCA serves to limit the amount of benefits an employer must pay an employee for a work- related injury when the injury was preceded by a perma- nent partial disability. The section provides, in pertinent parts: (f) Injury increasing disability: (1) In any case in which an employee having an ex- sting permanent partial disability suffers an injury, the employer shall provide compensation for such disability as is found to be attributable to that injury based upon the average weekly wages of the employee at the time of the injury. . . . In all other cases of total permanent disability or of death, found not to be due solely to that injury, of an employee having an existing permanent partial disability, the employer shall provide . . . compensation payments or death benefits for one hundred and four weeks only . . . . In all other cases in which the employee Has a perma- nent partial disability, found not to be due solely to that injury and such disability is materially and substantially greater than that which would have resulted from the subsequent injury alone, the employer shall provide . . . compensation for one hundred and four weeks only. 33 U.S.C. 908(f)(l). In other words, when an employee, who has a pre-existing permanent partial disability, sus- tains an additional work-related injury that results in per- manent partial disability, the employer must provide com- pensation for one hundred and four weeks only, if: (1) the ultimate permanent partial disability is due to both the work-related injury and the pre-existing partial disability, and; (2) the ultimate permanent partial disability is materially and substantially greater than a disability from ---------------------------------------- Page Break ---------------------------------------- 16a the work-related injury alone would be.4 To establish section 8(f) relief, the employer must show that the employee had a pre-existing permanent partial disability and that this disability was manifest to the employer prior to the subsequent work-related injury. s The employer also must establish that the subsequent work-related injury alone would not have caused the employee's ultimate permanent partial disability and that the ultimate permanent partial disability materially ex- ceeds the disability which would have resulted in the absence of the pre-existing permanent partial disability. See Id.; Director, Office of Workers' Compensation Pro- grams v. Newport News Shipbuilding & Dry Dock Co., 676 F.2d 110, 114 (4th Cir. 1982). ___________________(footnotes) 4 For the remainder of this discussion, we will refer to the condi- tions giving rise to the first disability as the "pre-existing permanent partial disability"; the disability that serves as the basis for the current claim for benefits as the "ultimate permanent partial disability"; and the injury that culminated in the ultimate permanent partial disability as the "work-related injury. " 5 Although section 8(f) itself does not require the employer's manifest knowledge of the initial injury, courts have added this re- quirement to further the policy behind the limitation provision. See, e.g., Newport News Shipbuilding & Dry Dock Co. v. Harris, 934 F.2d 548, 550-51 (4th Cir. 1991); Lambert's Point Docks, Inc. v. Harris, 718 F.2d 644, 648 (4th Cir. 1983). Section 8(f) operates to prevent employers from discriminating against disabled employees by firing or refusing to hire them based on the increased risk of work-related in- jury their pre-existing permanent partial disability poses. Courts have reasoned that if the employer has no knowledge of the pre-existing permanent partial disability, the employer cannot use it as a basis for discrimination; therefore, an employer must have known about a pre- existing permanent partial disability to seek relief from its impact on the ultimate permanent partial disability. See, e.g., Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding& Dry Dock Co., 676 F.2d 110, 114 n.5 (4th Cir. 1982). ---------------------------------------- Page Break ---------------------------------------- 17a The parties agree that the Claimant suffered from a pre- existing permanent partial disability and that the disability was manifest to the employer. The parties disagree, however, on the contribution element. Newport News ad- vances the Board's decision that the section 8(f) limitation is available only when the employee's pre-existing perma- nent partial disability combines with the disability caused by the employee's subsequent injury "to cause a greater degree of impairment than that caused by the second in- jury alone." In other words, Newport News contends that an employer may seek section 8(f) relief any time a pre- existing permanent partial disability exists and contributes to a subsequent work-related injury. The Director asserts that the section 8(f) limitation is available only when the employee's pre-existing permanent partial disability causes the employer to incur more com- pensation liability than it would had the employee not been disabled at the time of the subsequent work-related injury. The Director suggests the analysis should involve comparing a healthy employee with the pre-existing per- manent partial disability. If a healthy employee's level of disability would be similar to the disabled employee's after suffering the subsequent work-related injury, then the pre- existing permanent partial disability does not make the ultimate disability materially and substantially greater. The parties' interpretations of section 8(f) differ in how they define the word "disability," Newport News's position requires the equation of "disability" with "impairment." Thereby, an employee's pre-existing permanent partial disability contributes to a subsequent work-related injury if it causes the employee to suffer a greater level of physical impairment. In this case, greater impairment was demonstrated by the testimony of Dr. Harmon, who opined that the Claimant's cervical spine surgery resulted ---------------------------------------- Page Break ---------------------------------------- 18a in a five-percent whole boy impairment. He further sug- gested that this five-percent impairment joined with the subsequent lumbar injury "to create a greater impairment than would otherwise have occurred." The Director's position utilizes the statutory definition of "disability" to construe section 8(f). The LHWCA defines "disability" as an "incapacity because of the injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment. " 33 U.S. C. 902(10). Grafting this definition of disability in- to section 8(f) renders the following construction. The employer only should benefit from the section's limitation when the employee's pre-existing permanent partial disability contributes to the ultimate permanent partial disability to decrease the employee's overall wage-earning capacity. The Director contends that, if the pre-existing permanent partial disability only causes the ultimate per- manent partial disability to be more physically impairing, but does not decrease the employee's overall capacity to earn, then the pre-existing permanent partial disability does not cause the ultimate disability to be "materially and substantially greater than that which would have resulted from the subsequent injury alone." 33 U.S.C. 908(f)(l). We reject both parties' constructions of section 8(f). Newport News's and the Board's interpretations require a showing that the pre-existing permanent partial disability combined with the Claimant's subsequent work-related in- jury to cause a greater degree of impairment than that which would have been caused by the work-related injury alone. Under Newport News's purported interpretation, an employer need only show medical evidence that a percentage of whole body impairment existed before the work-related injury, that a greater percentage of whole body impairment exists after the work-related injury, and that the ultimate permanent partial disability was causally ---------------------------------------- Page Break ---------------------------------------- 19a connected to the earlier impairment to satisfy its burden on the contribution element.6 This showing eviscerates the requirement from section 8(f) that the ultimate permanent partial disability y be materially and substantially greater than a disability from the work-related injury alone would be, by overlooking the possibility that the work-related in- jury alone could cause virtually the same level of disability as that manifested in the ultimate permanent partial disability through the contribution of the pre-existing per- manent partial disability. The Director suggests an interpretation of section 8(f) that allegedly will address the magnitude of the relation- ship between the ultimate permanent partial disability and a disability arising from the work-related injury alone. By requiring the employer to show that it incurs a larger com- pensation liability based on the ultimate permanent partial disability, the Director contends that the employer will ___________________(footnotes) 6 In support of its proposition, Newport News relies largely on our decisions in Director, Office of Workers' Compensation Programs v, Newport News Shipbuilding & Dry Dock Co., 737 F.2d 1295, 1298-99 (4th Cir. 1984); Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 676 F.2d 110, 115 (4th Cir. 1982); John T. Clark & Son of Maryland, Inc. v. Benefits Review Bd., 621 F.2d 93, 95-% (4th Cir. 1980); and Maryland Ship- building & Drydock Co. v. Director, Office of Workers' Compensa- tion Programs, 618 F.2d 1082, 1085 (4th Cir. 1980). We conclude that these cases are not relevant to the issues at hand, however, because they deal with an ultimate permanent total disability. An employer is entitled to section 8(f) relief from fully compensating a permanent total disability when "the employee is totally and permanently disabled, and the disability is found not to be due solely to that injury." 33 U.S.C. 908(f)(1). Unlike the case of a permanent partial disability, under the circumstances of permanent total disability, the employer need not establish that the ultimate disability is materially and substantially greater than the disability otherwise would be due solely to the work-related injury. ---------------------------------------- Page Break ---------------------------------------- 20a establish that the ultimate permanent partial disability must be materially and substantially greater than that which would have resulted from the work-related injury alone. The Director's construction of section 8(f) involves a mechanical grafting of the statutory definition of disability found at 33 U.S.C. 902(10) into the language of section 8(f), an approach rejected by the Supreme Court in Lawson v. Suwannee Fruit & Steamship Co., 336 U.S. 198, 206 (1949).7 Because we find Newport News's construction of section 8(f) to overlook a basic premise of the section and we are compelled by Lawson v. Suwannee Fruit & Steamship ___________________(footnotes) 7 Lawson presented the issue whether, in an earlier but substantially similar version of section 8(f), the pre-exiting permanent partial disability must be an economic disability. The Claimant had ex- perienced a previous noncompensable partial disability, and sought compensation for an ultimate permanent partial disability triggered by a subsequent work-related injury. Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 199 (1949). Recognizing that the LHWCA provides a statutory definition for disability, the Court noted that incorpora- tion of this definition into section 8(f) would require the employer to pay total compensation, while applying a broader meaning to disabili- ty would implicate the special fund for a portion of the compensation benefits. Id. at 201. Pointing to Congress's intent in enacting section 8(f) to prevent employers from declining to hire or firing employees with disabilities of any nature that would put them at an increased risk of work-related injury, the Court stated: If we read the definition into 8(f)(1) in a mechanical fashion, we create obvious incongruities in the language, and we destroy one of the major purposes of the second injury provision: the preven- tion of employer discrimination against handicapped workers. We have concluded that Congress would not have intended such a result. Id. at 201-02. The Court went onto hold that "the term `disability' was not used as a term of art in 8( f)(l)." Id. at 206. ---------------------------------------- Page Break ---------------------------------------- 21a Co. 8 to reject the Director's construction, we now turn to the task of discerning independently the reading of section 8(f) by which the Board and the ALJ are governed. To do this, we look again at the language of the statute: (f) Injury increasing Disability: (1) In any case in which an employee having an ex- isting permanent partial disability suffers an injury, the employer shall provide compensation for such disability as is found to be attributable to that injury based upon the average weekly wages of the employee at the time of the injury. . . . In all other cases of total permanent disability or of death, found not to be due solely to that injury, of an employee having an ___________________(footnotes) 8 Recently, the Supreme Court addressed the proper construction of similar terms appearing in different sections of the LHWCA. See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. _, 120 L. Ed. 2d 379 (1992). The Director suggests that this case should alter our ap- plication of Lawson, In Cowart, the Supreme Court was asked to con- strue the undefined term "person entitled to compensation" found in section 33(g)(l) of the LHWCA. Id. at 386; see 33 U.S.C. 933(g)(l). In rendering its construction, the Court noted it must consider other provisions of the LHWCA containing the same term. The Court re- jected the Board's construction of section 33(g)(1), holding that [the Board] had adopted differing intrpretations of the identical language in section 33(f) and 33(g). This result is contrary to the basic canon of statutory construction that identical terms within an Act bear the same meaning. The Board's willingness to adopt such a forced and unconventional approach does not convince us we should do the same. Cowart, 120 L. Ed. 2d at 391. While the Court's holding in Cowart serves to advance consistent construction of a single term throughout the LHWCA, it does not ex- pressly disavow the Court's earlier position in Lawson as to the con- struction of section 8(f). Without clearer guidance from the Court, we [continue to be bound by it precedent. Therefore, the Director's at- tempt to have us apply the LHWCA' statutory definition of "disabili- ty" to section 8(f) based on Cowart is in vain. ---------------------------------------- Page Break ---------------------------------------- 22a existing permanent partial disability, the employer shall provide . . . compensation payments or death benefits for one hundred and four weeks only . . . . In all other cases in which the employee has a per- manent partial disability, found not to be due solely to that injury, and such disability is materially and substantially great than that which would have re- sulted from the subsequent injury alone, the employer shall provide . . . compensation for one hundred and four weeks only. 33 U.S.C. 908(f)(l) (emphasis added). To establish section 8(f) relief when an employee is per- manently totally disabled, the employer must establish: (1) that the employee seeking compensation had an "existing permanent partial disability" before the occurrence of the work-related injury; (2) that the pre-existing permanent partial disability was manifest to the employer; and (3) that the ultimate permanent total disability is "not [ ] due solely to the work-related] injury. " Id.; see Director, Of- fice of Workers' Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 676 F.2d 110, 114 (4th Cir. 1982). When an employee is permanently partial- ly disabled, but not totally disabled, section 8(f) informs us that the employer must make the additional showing that the ultimate permanent partial disability "is materially and substantially greater than that which would have re- sulted from the subsequent injury alone." 33 U.S.C. 908(f)(l); see also Two "R" Drilling Co. v. Director, Of- fice of Workers' Compensation Programs, 894 F.2d 748, 750 (5th Cir. 1990) (recognizing that a "heavier burden" is placed on the employer to obtain section 8(f) relief in the case of a permanently partially disabled employee). To satisfy this additional prong of the contribution ele- ment, the employer must show by medical evidence or otherwise that the ultimate permanent partial disability ---------------------------------------- Page Break ---------------------------------------- 23a materially and substantially exceeds the disability as it would have resulted from the work-related injury alone. A showing of this kind requires quantification of the level of impairment that would ensue from the work-related injury alone. In other words, an employer must present evidence of the type and extent of disability that the claimant would suffer if not previously disabled when injured by the same work-related injury. Once the employer establishes the level of disability in the absence of a pre-existing perma- nent partial disability, an adjudicative body will have a basis on which to determine whether the ultimate perma- nent partial disability is materially and substantially greater. In this case, both the ALJ and the Board failed to re- quire a showing of this "materiality prong" of the contri- bution element. We hold that, by not applying this compo- nent of the statutory standard, the ALJ and the Board er- red as a matter of law in awarding section 8(f) relief to Newport News. In addition, we note that Newport News put on no evidence relevant to the "materiality prong."9 ___________________(footnotes) 9 Newport News showed that the Claimant suffered from a pre- existing permanent partial disability in the cervical spine area that created a five-percent whole body impairment. After the work-related injury at issue, the Claimant suffered an ultimate permanent partial disability that produced whole body impairment of eighteen percent. Newport News introduced the following evidence concerning the cor- relation between the ultimate permanent partial disability and the disability that would have resulted from the work-related injury alone: . . . . Mr. Harcum's cervical spine condition also substantially contributes to his current level of disability. . . . The cervical and lumbar injuries, and the surgery they necessitated, clearly com- bined to create a greater impairment than would otherwise have occurred. From this evidence, the ALJ concluded, and the Board affirmed, that the Claimant's pre-existing permanent partial disability combined with ---------------------------------------- Page Break ---------------------------------------- 24a IV Concluding that the Director has no standing to raise the issue whether the Board erred as a matter of law in accepting the ALJ's determination of the Claimant's in- jury status change from that of temporary total disability to that of permanent partial disability, we decline to ad- dress that issue altogether. We reverse the ALJ's decision to assess the special fund for compensation payments to the Claimant after c ~e hundred and four weeks of payments by Newport News pursuant to the provisions of section 8(f), and we remand for further proceedings before the ALJ not inconsistent with this opinion. REVERSED AND REMANDED ___________________(footnotes) his subsequent work-related injury to cause a greater degree of disability than that which would have resulted solely from the work- related injury. This conclusion stops short of identifying whether the ultimate permanent partial disability is materially and substantially greater than a disability caused by the work-related injury only. ---------------------------------------- Page Break ---------------------------------------- 25a APPENDIX B UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Nos. 92-1864 and 90-1287 DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, RESPONDENT v. JACKIE H. HARCUM, CLAIMANT On Petition for Rehearing with Suggestion for Rehearing In Banc FILED January 7, 1994 Respondent-employer filed a petition for rehearing with suggestion for rehearing in bane. No member of the Court requested a poll on the respondent-employer's suggestion for rehearing in bane. The original judicial panel voted to deny the petition for rehearing. ---------------------------------------- Page Break ---------------------------------------- 26a The government filed a petition for rehearing with sug- gestion for rehearing in bane. A member of the Court re- quested a poll on the suggestion for rehearing in bane, and a majority of the judges voted to deny rehearing in bane. Judges Hall and Murnaghan voted to rehear the case in bane, and Judges Ervin, Widener, Phillips, Wilkinson, Wilkins, Niemeyer, Hamilton, Luttig, Williams, and Michael voted against rehearing in bane. Judge Russell was disqualified and did not participate in the poll. The original judicial panel voted to deny the government's peti- tion for rehearing. The Court denies the petitions for rehearing with sug- gestion for rehearing in bane. Entered at the direction of Judge Ervin, with the con- currence of Judge Niemeyer and Judge Ward. For the Court, /s/ Bert M. Montague Clerk ---------------------------------------- Page Break ---------------------------------------- 27a APPENDIX C U.S. DEPARTMENT OF LABOR BRB No. 90-1287 JACKIE H. HARCUM, CLAIMANT-RESPONDENT v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, SELF-INSURED RED EMPLOYER-RESPONDENT v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER DECISION AND ORDER DATE ISSUED: May 28, 1990 Appeal of the Decision and Order of Daniel A. Sarno, Jr., Administrative Law Judge, United States Department of Labor. Before: STAGE, Chief Administrative Appeals Judge, SMITH, Administrative Appeals Judge, and LIPSON, Administrative Law Judge. * ___________________(footnotes) * Sitting as a temporary Board member by designation pursuant to the Longshore and Harbor Workers' Compensation Act as amended in 1984, 33 U.S.C. 921(b)(5) (Supp. V 1987). ---------------------------------------- Page Break ---------------------------------------- 28a PER CURIAM: The Director, Office of Workers' Compensation Pro- grams (the Director), appeals the Decision and Order (88-LHC-1635) of Administrative Law Judge Daniel A. Sarno, Jr., awarding benefits on a claim filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. 901 et seq. (the Act). We must affirm the findings of fact and conclu- sions of law of the administrative law judge if they are ra- tional, supported by substantial evidence, and in accord- ance with law. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 340 U.S. 359 (1965); 33 U.S.C. 921(b)(3). Claimant was injured on October 21, 1984, during the course of his employment as a machinery installer when steel grating fell onto his lower back. He required a lum- bar laminectomy, and a second operation to remove scar tissue. Employer voluntarily paid benefits for temporary total and temporary partial disability, 33 U.S.C. 908(b), (e), for various periods until claimant was able to return to sustained light-duty employment in April 1987. ALJ Ex. 1. The parties stipulated that claimant reached maximum medical improvement on December 7, 1987. On January 18, 1988, claimant returned to his usual employment as a machinery installer. He was unable to perform his heavy- duty regular employment due to residuals from the work injury, and employer therefore released claimant on May 6, 1988. In September 1988, employer referred claimant to a vocational counselor, who developed a placement pro- gram for claimant. Claimant obtained alternate employ- ment with another employer as a tool room clerk on Feb- ruary 16, 1989, one month after he actually began apply- ing for jobs with the counselor's assistance. Employer voluntarily paid benefits for total disability from May 6, ---------------------------------------- Page Break ---------------------------------------- 29a 1988 to February 16, 1989, and employer thereafter volun- tarily paid benefits for continuing permanent partial dis- ability, 33 U.S.C. 908(c) (21). A formal hearing was held on October 29, 1989, to resolve the issues of claimant's entitlement to benefits for lost overtime when he worked for employer in light-duty employment, his entitlement to benefits for temporary total disability from January 18, 1988 to February 16, 1989, and employer's application for relief from continuing compen- sation liability pursuant to Section 8(f), 33 U.S.C. 908(f). The administrative law judge found that claimant was en- titled to temporary partial disability benefits for lost over- time from April 11 to December 7, 1987, and he also awarded claimant benefits for temporary partial disability from January 18, until May 6, 1988, based on his finding that claimant was working in employment beyond his medi- cal restrictions. These findings are not appealed. The ad- ministrative law judge next determined that claimant is en- titled to continuing benefits for permanent partial disability commencing on May 6, 1988, based on employer's later showing of suitable alternate employment in February 1989. Employer was awarded Section 8(f) relief. On appeal, the Director challenges the commencement date of claimant's award for permanent partial disability, arguing that it should begin on February 16, 1989, when claimant secured alternate employment as a tool room clerk, and that claimant is entitled to permanent total disability until that date. The Director also challenges the administrative law judge's award of Section 8(f) relief. Employer responds, urging affirmance. Claimant responds in support of the Director's argument that his permanent disability award should commence on February 16, 1989. The Director first argues that the administrative law judge erred by relying on the Board's decision in Stevens v. Lockheed Shipbuilding Co., 22 BRBS 155 (1989), rev'd in ---------------------------------------- Page Break ---------------------------------------- 30a pert. part sub nom. Stevens v. Director, OWCP, 909 F.2d 1256, 23 BRBS 89 (CRT) (9th Cir. 1990), cert. denied, 111 S. Ct. 798 (1991), as authority to begin the permanent par- tial disability award on May 6, 1988. The administrative law judge found that the job claimant obtained as a tool room clerk in February 1989 met employer's burden of demonstrating the availability of suitable alternate em- ployment dating back to the day claimant was released by employer. He also found irrelevant claimant's argument that he is entitled to total disability benefits until February 16, 1989, because he delayed his job search in reliance on employer's promise after his release that it would seek light-duty work for him at its facility, and employer's sub- sequent contracting with a vocational rehabilitation specialist to assist claimant in securing alternate employ- ment. In Stevens, supra, the Board held that when employer establishes the availability of suitable alternate employ- ment, an award for permanent partial disability should commence on the date of maximum medical improve- ment. Stevens, 22 BRBS at 157-158. The Board's holding was reversed on appeal to the United States Court of Ap- peals for the Ninth Circuit. See Stevens, 909 F.2d at 1259-1260, 23 BRBS at 94 (CRT). The court held that the date employer establishes that suitable alternate employ- ment is available is the date total disability becomes par- tial. Id.; accord Director, OWCP v. Berkstresser, 921 F.2d 306, 24 BRBS 69 (CRT) (D.C. Cir. 1990); Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS 1 (CRT) (2d Cir. 1991 ). The court commented that its holding would not prevent an employer from retroactively establishing the availability of suitable alternate employment at the date of maximum medical improvement, even if several years had passed, as employer may submit a retrospective job survey which the administrative law judge may find to be credible. ---------------------------------------- Page Break ---------------------------------------- 31a See Stevens, 909 F.2d at 77, 23 BRBS at 95 (CRT); accord I Palombo, supra, 937 F.2d at 1260,25 BRBS at 12 (CRT). Although the instant cases arises within the jurisdiction of the United States Court of Appeals for the Fourth Circuit, the Board held in Rinaldi v. Gernal Dynamics Corp., 25 BRBS 128(1991), modifying on reconsideration, BRB No. 88-1721 (Jan. 29, 1991) (unpub.), that the court's rationale in Stevens, supra, will be applied in all circuits. Accord- ingly, the administrative law judge's reliance on the Board's decision in Stevens to commence claimant's award of benefits for permanent partial disability on May 6, 1988 is vacated. Pursuant to Rinaldi, supra, we hold that claim- ant's award should commence on the earliest date employer established the availability of suitable alternate employment. See Rinaldi, 25 BRBS at 131. Nevertheless, we affirm the administrative law judge's award of permanent partial disability dating from May 6, 1988, as employer established suitable alternate employ- ment at this time. In the instant case, after claimant ob- tained the position as a tool room clerk in February 1989, employer requested that Charles DeMark, a vocational consultant, identify specific job opportunities within claimant's work restrictions that were available between May and November 1988. Mr. DeMark located specific job opportunities as a desk clerk, service station attend- ant, and dispatcher that were actually available during that time, and which claimant's treating physician, Dr. Peach, approved as within claimant's injury-related work restrictions. EX 19-20. Specifically, three of the desk clerk positions were available in May 1988. EX 19 at 2-3. This uncontradicted evidence establishes, as a matter of law, that employer demonstrated the availability of suitable alternate employment as of May 1988. See Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 21 BRBS 10 (CRT) (4th Cir. 1988); Hogan v. Schiavone Ter- ---------------------------------------- Page Break ---------------------------------------- 32a minal, Inc., 23 BRBS 290 (1990); see generally New Orleans (Gulfwide) Stevedores, Inc. v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981); see also Rieche v. Tracer Marine, Inc., 16 BRBS 272 (1984). Claimant, however, may rebut employer's showing of suitable alternate employment by showing that he dili- gently tried but was unable to obtain suitable alternate employment during the period after which employer estab- lished the availability of job opportunities within claimant's medical restrictions. See generally Tann, 841 F.2d at 540, 21 BRBS at 10 (CRT); Turner, 661 F.2d at 1031, 14 BRBS at 156. In this regard, the Director argues that claimant's reliance on employer's offer that it would seek light-duty employment for claimant at its facility, and claimant's subsequent cooperation with employer's voca- tional consultant, establishes his diligence in seeking alter- nate employment after May 6, 1988. We disagree. After employer released claimant on May 6, 1988 because he was not physically able to perform his usual employment, it was required under the Act to establish the availability of suitable alternate employment or to provide claimant with continuing compensation for total disability. See Turner, supra. Employer, however, is not obligated under the Act to rehire claimant, Turner, supra, 661 F.2d at 1043, 14 BRBS at 165, to find claimant an actual job offer, Palom- bo, supra, 937 F.2d at 74, 25 BRBS at 6 (CRT), or to pro- vide him the opportunity to apply for the actual jobs it contends establish the availability of suitable alternate employment, see Tann supra, 841 F.2d at 543, 21 BRBS at 15 (CRT). Accordingly, employer's statement that it would determine whether a light-duty position was avail- able at its facility, and its subsequent hiring of a voca- tional consultant to assist claimant in securing alternate employment, do not affect its showing of suitable alter- nate employment in May 1988 or establish that claimant ---------------------------------------- Page Break ---------------------------------------- 33a exercised diligence in seeking alternate employment. See generally Palombo, supra, 937 F.2d at 73-74, 25 BRBS at 6-8 (CRT). The uncontradicted evidence in this case establishes that although claimant cooperated fully with Mr. DeMark after his referral in September 1988, claimant did not con- tact potential employers after his release on May 6, 1988, until January 20, 1989, and he successfully secured alter- nate employment within a month thereafter on February 16, 1989. Tr. at 43, 105. Under these circumstances, claim- ant has not rebutted employer's showing of suitable alter- nate employment dating to May 1988. See Turner, supra, 661 F.2d at 1043, 14 BRBS at 165. Accordingly, as a mat- ter of law, we hold that employer established the avail- ability of suitable alternate employment in May 1988, and, pursuant to Rinald, supra, claimant's award of benefits for permanent partial disability should commence on May 6, 1988, when claimant was released from his employment with employer. The Director's arguments are therefore re- jected, and we affirm the administrative law judge's per- manent partial disability award commencing May 6, 1988.1 The Director next challenges the administrative law judge's award of Section 8(f) relief. 2 The Director argues ___________________(footnotes) 1 As a result, we affirm the administrative law judge's finding that employer is entitled to offset its overpayment of total disability bene- fits after May 6, 1988 against its liability for permanent partial disa- bility benefits. 33 U.S.C. 914(j) (Supp. V 1987). 2 In the case of permanent partial disability, employer is entitled to Section 8(f) relief if it establishes (1) that claimant has a pre-existing permanent partial disability; (2) that the disability was manifest to employer; and (3) that claimant's ultimate disability is materially and substantially greater due to the combination of the disabilities than it would be due to the work injury alone. See Sproull v. Stevedoring Services of America, 25 BRBS 100 (1991); 33 U.S.C. 908(f)(l). ---------------------------------------- Page Break ---------------------------------------- 34a that employer failed to establish the existence of a serious and lasting pre-existing disability that combined with claimant's work injury to cause a materially and substan- tially greater degree of permanent disability than the degree of disability caused by the work injury alone. Prior to claimant's October 21, 1984, work injury, claimant sus- tained lumbar muscle strains in 1965, 1966, and 1977. X-rays taken after the 1966 back injury revealed a sacral arch defect. Additionally, in 1983 claimant sustained a herniated cervical disc from a work-related injury, which required surgery, and which resulted in a 5 percent perma- nent partial disability. Claimant's October 1984 back in- jury ruptured the lumbar disc that the 1966 x-rays revealed had the sacral arch defect. The administrative law judge credited the uncontradicted medical opinions of Drs. Har- mon, Peach and Bobbitt that claimant's prior back in- juries and neck injury are serious and lasting pre-existing permanent partial disabilities that combined with claim- ant's October 1984 work injury to cause a greater degree of disability than would have resulted from the October 1984 injury alone. He further found that claimant's pre-existing disabilities were manifest to employer from its clinic records, and accordingly awarded employer Section 8(f) relief. See generally Director, OWCP v. Newport News Shipbuilding & Dry Dock Co., 737 F.2d 1295, 16 BRBS 107 (CRT) (4th Cir. 1984). The Director first challenges the administrative law judge's finding that claimant's three prior back injuries and sacral arch defect constitute a serious and lasting pre- existing permanent partial disability. However, the Direc- tor does not challenge the administrative law judge's find- ing that claimant's prior neck injury also is a pre-existing permanent partial disability for purposes of awarding Sec- tion 8(f) relief. Accordingly, we need not address the ---------------------------------------- Page Break ---------------------------------------- 35a Director's argument regarding claimant's pre-existing back condition. The Director next challenges the administrative law judge's finding that claimant's pre-existing neck impair- ment combined with the disability caused by claimant's subsequent back injury to cause a greater degree of impairment than that caused by the second injury alone. Specifically, the Director argues that the proper standard for determining whether the contribution element of Sec- tion 8(f) is met is whether claimant sustained a greater loss of wage-earning capacity due to the combination of the prior and subsequent injuries than the loss of wage-earn- ing capacity he sustained due to the second injury alone. The Director's argument was addressed and rejected by the Board in Luccitelli v. General Dynamics Corp., 25 BRBS 30 (1991). For the reasons stated in Luccitelli, we hold that the administrative law judge properly found that employer established the contribution element based on the medical opinions of record. 3 See also Sproull v. Stevedoring Serv- ices of America, 25 BRBS 100, 111 (1991). As the Director does not appeal the administrative law judge's finding that claimant's pre-existing neck impairment was manifest to ___________________(footnotes) 3 Only Dr. Harmon's opinion clearly meets the contribution ele- ment. Dr. Harmon stated that claimant's cervical spine condition substantially and materially contributes to his current level of disa- bility, and that the cervical and work injuries and the surgery they necessitated combined to create a greater impairment than would otherwise have occurred. EX 16. Dr. Bobbitt noted that claimant had a five percent impairment from the cervical disc surgery and that claimant's disability is materially increased by the work injury and disc herniation; however, it is the pre-existing injury that must materially increase the resulting disability. EX 8. Dr. Peach, who performed both the cervical and lumbar laminectomies, states only that claimant has an 18 percent whole man impairment as a result of the disc prob- lems and the two previous surgical procedures. EX 10 at 46. ---------------------------------------- Page Break ---------------------------------------- 36a employer, we therefore affirm the administrative law judge's award of Section 8( f,) relief. Accordingly, the administrative law judge's Decision and Order is affirmed. SO ORDERED. /s/ Betty J. Stage BETTY J. STAGE, Chief Administrative Appeals Judge /s/ Roy P. Smith ROY P. SMITH Administrative Appeals Judge /s/ Sheldon R. Lipson SHELDON R. LIPSON Administrative Law Judge ---------------------------------------- Page Break ---------------------------------------- 37a APPENDIX D [SEAL] U.S. DEPARTMENT OF LABOR Office of Administrative Law Judges Suite 201 55 West Queens Way Hampton, Virginia 23669 804-722-0571 CASE NO.: 88-LHC-1635 OWCP NO.: 5-53121 IN THE MATTER OF JACKIE H. HARCUM, CLAIMANT v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, EMPLOYER v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, PARTY-IN-INTEREST Appearances: John H. Klein, Esq. For the Claimant James M. Mesnard, Esq. For the Employer BEFORE: DANIEL A. SARNO, JR. Administrative Law Judge ---------------------------------------- Page Break ---------------------------------------- 38a DECISION AND ORDER This proceeding arises from a claim filed under the pro- visions of the Longshoremen's and Harbor Workers' Compensation Act, as amended, 33 U.S.C. 901 et seq. A hearing was held on October 20, 1989. 1 Stipulations The Employer and the Claimant entered into the follow- ing stipulations: 1. That jurisdiction of the Act over this claim is appro- priate; 2. That an employer/employee relationship existed at all pertinent times; 3. That the Claimant sustained an injury arising out of and in the course of employment on October 21, 1984; 4. That the Claimant's average weekly wage on Oc- tober 21, 1984 was $662.43 per week; 5. That the Claimant reached maximum medical im- provement on December 7, 1987; 6. That the Claimant has not worked at the Shipyard since May 5, 1988;2 7. That the number of overtime hours worked listed on Claimant's wage and overtime printout (EX E-1, p. 2) reflects the actual number of overtime hours worked. Thus, the Claimant worked 48 hours of overtime in 1988 (Tr. 50-53). 8. That the Claimant's wage-earning capacity adjusted back to the date of injury is $3.80 per hour for 40 hours ___________________(footnotes) 1 The parties filed post-hearing briefs. The Employer filed a response to the Claimant's brief. The response brief was not author- ized by the Presiding Judge and will not be considered. 3 Stipulations 1-6 appear at Tr. 5-8. ---------------------------------------- Page Break ---------------------------------------- 39a per week. Thus, the Claimant's wage-earning capacity is $152.00 per week.3 9. That there was a timely claim for compensation, notice of injury and notice of controversion (ALJ 1; Tr. 5, 6). Issues 1. Is the Claimant entitled to a temporary partial disability award for lost overtime from April 11 through December 7, 1987? 2. Is the Claimant entitled to a temporary total disa- bility award from January 18, 1988 through May 6, 1988? 3. Is the Claimant entitled to a temporary total disa- bility award from May 6, 1988 until February 16, 1989? 4.Is the Employer entitled to relief pursuant to Sec- 8(f) of the Act? FINDINGS OF FACT AND CONCLUSIONS OF LAW Jackie H. Harcum Jackie H. Harcum was 48 years old on the hearing date and resides in Hampton, Virginia. He completed 11th grade and eventually earned his G.E.D. in the Army (Tr. 24, 25; EX 14, p. 6). The Claimant took a pre-employment physical at the Shipyard which he passed; he began work- ing for the Employer in February 1963 with no work restrictions (Tr. 25). The Claimant worked in the X-43 Machinery Installa- tion Department. He performed such heavy work on ships as lifting 75-100 pounds, frequent bending, working in tight quarters, climbing a lot of steps and ladders, and pushing and pulling (Tr. 25-28). ___________________(footnotes) 3 Stipulation 8 is referred to in the Employer's January 24, 1990 cover letter to its brief. The Claimant refers to this stipulation in his brief at pp. 5-6. ---------------------------------------- Page Break ---------------------------------------- 40a On October 21, 1984, while working on a steam barge, the Claimant sustained a back injury when a 30-40 pound steel plate fell about four feet and struck his back while he was leaning over (Tr. 29, 30). He went to the Shipyard clinic and was referred to Dr. Peach. Dr. Peach had treated the Claimant in the past and had also performed an operation on the Claimant's neck. As a result of the Oc- tober 21, 1984 injury, Dr. Peach performed two opera- tions on the Claimant's back (Tr. 30). The Claimant testified that prior to his injury, overtime work was available on a regular basis on the weekends in the X-43 Department. The claimant believed that of the approximately 800 hours per year of overtime offered, he took advantage of about half that amount. The Claimant maintained it was difficult to work 16 hours of overtime every weekend (Tr. 31, 33, 46, 47). The Claimant's over- time record clearly corroborates the Claimant's testimony that prior to his 1984 injury he averaged in excess of 400 hours overtime from 1977 through October 21, 1984 (CX 3, p. 2). The overtime record shows he worked the follow- ing amounts of overtime:4 1977 -423. 1 hours 1978 -450.2 hours 1979 - 356.5 hours 1980 - 376 hours 1981 -443.7 hours 1982 - 460.5 hours 1983 -459.9 hours 1984-406.0 hours Prior to his 1984 injury, the Claimant worked on a crew supervised by Mr. Wainwright. The Claimant identified a ___________________(footnotes) 4 The Claimant averaged 421.9 hours of overtime during this ap- proximate 8-year period. ---------------------------------------- Page Break ---------------------------------------- 41a co-worker on that crew as "Scobie" Watson. The Claimant testified that he believes that individual has since retired (Tr. 44-47). Shipyard records reflect that a Mr. Watson did accrue overtime from 1979 through 1988 (CX 3, p. 1). The Claimant eventually returned to work with restric- tions. There was no work available within his restrictions in the regular X-43 Department. Consequently, the Claim- ant was assigned to the MRA Shop with other workers with work restrictions (Tr. 32). He worked in the MRA Shop from April 11, 1987 through December 7, 1987 (Tr. 32). While in the MRA Shop, the Claimant worked only 40 hours per week. Overtime was not available to MRA Shop employees (Tr. 32, 33). Mr. Harcum testified that while he was in the MRA Shop, the X-43 Department continued to have overtime available on a regular basis. Indeed, the Claimant noted that in his 25-year experience as an X-43 Department em- ployee, overtime was regularly available in that depart- ment. He recalled that while working in the MRA Shop, he would see members of Mr. Wainwright's crew about twice a week and would ask about overtime. They indi- cated to him that overtime was available almost every weekend (Tr. 45, 46). Yet, during his prior deposition, the Claimant had stated he did not know how he was aware that overtime was available to Wainwright's crew while he was working in the MRA Shop (EX 14, p. 14).5 The Claimant further stated that had he not been working with restrictions in the MRA Shop, he would have taken ad- ___________________(footnotes) 5 I find that the deposition testimony does not affect the credibility of the Claimant's hearing testimony. I find the Claimant's testimony in regard to his own overtime as well as that of other workers in X-43 Department to be forthright and credible. Even the Shipyard records introduced at hearing corroborate the Claimant's testimony that over- time was available to workers in the X-43 Department from 1977 through 1989 (CX 2, 3; EX 18). ---------------------------------------- Page Break ---------------------------------------- 42a vantage of overtime with his old crew under Mr. Wain- wright (Tr. 33, 34). On January 18, 1988, the Claimant returned to the X-43 Department. He was moved from the MRA Shop and assigned work aboard an aircraft carrier. He was still under Dr. Peach's care and still under work restrictions from Dr. Peach (Tr. 34). To get to his work station, the Claimant was required to climb two flights of stairs to get on the aircraft carrier. Then he had to descend 5 steeper flights of permanent shipboard steps to the work level. He described the 5 flights onboard the ship as "a ladder with handrails". (Tr. 34, 35, 47-49; EX 14, pp. 18, 19). He was required to climb these flights numerous times during his work day (Tr. 49; EX 14, p. 17). The Claimant maintained that this daily climbing irritated is back "real bad" and caused pain which ran down his legs. He averred that he barely got through each work day because of the pain caused by climbing (Tr. 35, 53, 54). The Claimant agreed that during the time he worked on the aircraft carrier, from January until May 6, 1988, he did work 48 hours of overtime. This constituted about three weekends of over- time (Tr. 50-55). However, the Claimant maintained that other members of his crew worked more overtime than he did and overtime was made available every weekend to his crew (Tr. 62). The Claimant maintained that this work was about as physically strenuous as his pre-injury work in X-43 De- partment (Tr. 34). He complained to Mr. Payne, his supervisor. Mr. Payne sent him to Dr. Bobbitt at the Ship- yard clinic. Dr. Bobbitt, in turn, sent him to Dr. Peach. Dr. Peach gave the Claimant a letter for the clinic. The let- ter addressed the Claimant's climbing restriction.6 (Tr. 35, 56, 50). Notwithstanding the letter, ___________________(footnotes) 6 Dr. Peach's letter is dated March 22, the Shipyard made no 988 (EX 10, pp. 49, 50). ---------------------------------------- Page Break ---------------------------------------- 43a changes in the nature of the Claimant's work. He con- tinued to complain until he was "passed out" on May 6, 1988 (Tr. 36, 37). The Claimant testified that although he later filed a claim for benefits over this matter, he did not specifically file a grievance through his union concerning the alleged work restriction violation (Tr. 53). He did not get along with the union. At an earlier deposition, the Claimant maintained that he has filed a union grievance over this matter; however, he never heard anything about it being resolved (EX 14, p. 20). When the Claimant was "passed out" on May 6, 1988, he began collecting temporary disability payments of $442.62 per week. He was told that the Shipyard would look for another job for the Claimant in the Shipyard (Tr. 38, 57, 58). He did not begin to look for another job out- side the Shipyard at that time because he was still on the company roles and might still return to another job (Tr. 57, 58). The Claimant next heard from the Shipyard in August, 1988. He received a letter from Mr. Decker setting up a meeting in the Personnel Department. At that meeting, Mr. Decker told the Claimant that the Shipyard could find no other jobs for the Claimant within his restrictions. The Claimant's employment would be termi- nated after 30 months. He was also told that he was being referred to Mr. DeMark, a rehabilitation counselor (Tr. 30-40). The Claimant later met with Mr. DeMark who gave him some tests (Tr. 40). Eventually, Mr. DeMark prepared the Claimant's resume. Then, when Mr. DeMark suggested he seek employment, the Claimant complied (Tr. 40, 41, 58). The Claimant began to check out his own leads as well as those suggested by Mr. DeMark about January 1, 1989 (Tr. 41, 61). He went to every job suggested by Mr. ---------------------------------------- Page Break ---------------------------------------- 44a DeMark (Tr. 41). He finally got a job offer from Hamp- ton Sheet Metal to start on February 16, 1989. The job started at $4.00 per hour and now pays $5.00 per hour. He is now a tool room clerk and the work is within his physi- cal abilities. Mr. DeMark spoke to the employer prior to the job offer (Tr. 42-44). George Decker George Decker is the Supervisor of Employee Relations for the X-43 Machinery Installation Department and the X-44 Insulation Department (Tr. 63, 64). He is responsible for administering the labor agreement and maintaining employment records of both hourly and salaried em- ployees. Mr. Decker stated that under the collective bargaining agreement, every attempt is made to divide overtime equally in each pay rate classification (Tr. 67, 68, 78, 79). He identified a Mr. Kaufman as one employee in the same pay rate classification as the Claimant while the Claimant was working on the aircraft carrier from January 1988 un- til May 6, 1988 (Tr. 68, 69).7 Mr. Decker also identified Messrs. Hopson, Conner and Holmes as three individuals with the same seniority as the Claimant. * Mr. Decker agreed that from May to August, 1988, the Shipyard conducted a job search within the Shipyard for the Claimant. Had that search been successful, the Claim- ant would have been put to work elsewhere in the Shipyard (Tr. 74, 75). He further acknowledged that he did not con- tact the Claimant during the time that the job search was ongoing (Tr. 75). The job search proved to be unsuccessful ___________________(footnotes) 7 Mr. Kaufman's overtime hours from 1977 to 1989 are listed at EX 18. 8 Their respective overtime hours from 1977 to 1989 appear at CX 2a-c. ---------------------------------------- Page Break ---------------------------------------- 45a in August 1988. The clinic notified Mr. Decker (Tr. 74), Mr. Decker met with the Claimant on August 24, 1988 and told him of the job search results. He further told the Claimant that he would be placed on an inactive status for 30 months, after which the employment relationship would end (Tr. 70). Mr. Decker further testified that the effective date of transferring the Claimant to the inactive roll was then made retroactive to May 6, 1988 (Tr. 75, 76), Mr. Decker equivocated whether the Claimant's verbal complaints to his supervisor about his job exceeding his work restrictions could be interpreted as sufficient to com- ply with initiating the first step requirement for a griev- ance (Tr. 76, 77). A union representative need not be pre- sent to initiate a complaint (Tr. 77). However, to go any farther along in the grievance procedure requires union in- volvement (Tr. 78). Francis DeMark Francis DeMark is a Certified Rehabilitation Counselor (Tr. 83, 84). The Claimant was referred to him by the Shipyard. Mr. DeMark and the Claimant had their first meeting on September 20, 1988 (Tr. 84, 85). During the first meeting, the Claimant appeared to be quite anxious at the prospect of a career change after more than 20 years at the Shipyard. The Claimant indicated that he desired to return to the Shipyard and Mr. DeMark agreed to check out the possibility (Tr. 101-103).9 At this first meeting, the Claimant was not presented with any job leads (Tr. 99). Then, over the next few months, Mr. DeMark developed a job placement and rehabilitation program for the Claim- ant. He obtained the Claimant's medical records concern- ___________________(footnotes) 9 Mr. DeMark's later conversation with Dr. Harmon on November 29, 1988, made it fairly clear that the Claimant could not return to the Shipyard (Tr. 103). ---------------------------------------- Page Break ---------------------------------------- 46a ing work restrictions from Dr. Peach on October 5, 1988 (Tr. 85, 86). He counseled the Claimant extensively con- cerning his rehabilitation program and job interviewing skills (Tr. 85). At Mr. DeMark's suggestion, the Claimant obtained a chauffeur's license (Tr. 89). The Claimant was administered a battery of vocational tests on November 1, 1988 (Tr. 104). A resume was completed for the Claimant on January 20, 1989 (Tr. 109). That same day was the first day that Mr. DeMark and the Claimant "really sat down with the newspaper and looked at job listings and started talking about actually applying for jobs." (Tr. 105). That was the date when the Claimant began looking for jobs on a full time basis. (Tr. 105, 106). Mr. DeMark agreed that the Claimant was extremely cooperative throughout the whole process. He did every- thing asked of him within a reasonable time (Tr. 98). Mr. DeMark also agreed that the Claimant was relying upon him to find a job (Tr. 99). Mr. DeMark also believes that he did provide Claimant the confidence to present himself in a positive manner to potential employers (Tr. 113). The Claimant responded well to all counseling efforts and by January 25, 1989, he had applied for jobs (Tr. 106). On February 14, 1989, Mr. DeMark saw a newspaper ad for a tool room clerk position at Hampton Sheet Metal. He personally took a copy of the Claimant's resume and drivers license to the prospective employer. He gave the company a profile of the Claimant's work restrictions and vocational situation. Mr. DeMark immediately set up an interview for the Claimant at the company on the follow- ing day. After setting up the interview, Mr. DeMark met with the Claimant. The following day, the Claimant had an interview and was immediately offered a job starting at $4.00 per hour. Mr. DeMark agreed that he had recom- mended that the Shipyard offer to pay for on-the-job training as an incentive for a prospective employer to hire ---------------------------------------- Page Break ---------------------------------------- 47a the Claimant. An on-the-job training program was imple- mented at Hampton Sheet Metal and the Claimant com- pleted it successfully. His present pay is $5.00 per hour (Tr. 89-91). The Hampton Sheet Metal job offer was the first job offer which the Claimant received (Tr. 107). Subsequent to the Claimant's employment by Hampton Sheet Metal, the Shipyard, through counsel, requested that Mr. DeMark conduct a labor market survey of avail- able jobs for which the Claimant may have qualified from May 6, 1988 to February 15, 1989 (Tr. 93). After receiving input from Dr. Peach concerning the Claimant's restric- tions (EX 20), Mr. DeMark centered his attentions on such approved restrictions as dispatcher, service station attend- ant and motel/hotel desk clerk (Tr. 94). Mr. DeMark listed eleven job possibilities which were available during that time period and for which the Claimant was qualified (EX 19). Counsel for the Claimant did not contest the existence of those jobs as described in Mr. DeMark's re- port (Tr. 95). Mr. DeMark found no reason why the Claimant could not have sought employment during that time period (Tr. 89, 90). Mr. DeMark estimated that the Claimant's wage earning capacity from May 6, 1988 to February 16, 1989 was $4.00 per hour (Tr. 95, 96). Mr. DeMark agreed that he never brought any of these jobs to the attention of the Claimant. Nor was Mr. DeMark aware of these jobs while he was working with the Claimant (Tr. 109). MEDICAL EVIDENCE The Shipyard clinic records document several back in- juries. The Claimant sustained a lumbar muscle strain on June 3, 1965 and a lumbo-sacral strain on February 8, 1966 (EX 7, p. 2). The 1965 injury was treated with Dar- von by the clinic (EX 7, p. 18). The 1966 injury was located ---------------------------------------- Page Break ---------------------------------------- 48a in the Claimant's spine at L5-S1, 1 and x-rays revealed a sacral arch defect (EX 7, pp. 16, 18). The Claimant's next back injury occurred on February 7, 1977 while lifting a pump. He was diagnosed as having sustained a lumbar strain; he was placed on work restric- tions and was "passed out" from February 27, 1977 through March 28, 1977 (EX 7, p. 9). The Claimant con- tinued to be treated for about 9 months for his back (EX 7, pp. 20-21). The Claimant sustained left shoulder injuries on Febru- ary 27, 1981 and December 13, 1983 (EX 7, pp. 11-12). The 1983 injury was originally treated by Dr. Prillaman, an orthopedist (EX 7, p. 14). By January, 1984, the Claim- ant's condition had not improved. Dr. Prillaman referred the Claimant to Dr. Peach, a neurosurgeon (EX 9). Dr. Peach examined the Claimant on January 19, 1984 and admitted the Claimant to Riverside Hospital for a cer- vical myelogram. The myelogram was performed, and it revealed a herniated cervical disc at C6-C7 (EX 10, pp. 1-4). Dr. Peach performed a hemilaminectomy to remove the herniated disc on January 27, 1984 (EX 10, p, 6), and the Claimant was discharged from the hospital on Febru- ary 4, 1984 (EX 10, p. 8). The Claimant progressed well after he was released from the hospital, and Dr. Peach returned him to work on March 5, 1984 (EX 10, pp. 9-10). The Claimant was totally disabled from January 4, 1984 through March 4, 1984, and he was voluntarily paid temporary total disability for this period (EX 15, pp. 2-3).10 On October 21, 1984, the Claimant was working inside a bilge on a steam barge when someone knocked over a piece of grating, and it struck the Claimant in the low ___________________(footnotes) 10 The claimant's interrogatory answers indicate that he still experi- ences "stinging" in his neck (EX 13, p. 2). ---------------------------------------- Page Break ---------------------------------------- 49a back. The Claimant was diagnosed as having sustained a lumbar contusion (EX 7, p. 13). His symptoms continued (EX 7, pp. 24-25), and on November 26, 1984, the Claim- ant selected Dr. Peach to treat this injury (EX 7, p. 15). Dr. Peach examined the Claimant on November 28, 1984, and Dr. Peach suspected that the Claimant might have a herniated lumbar disc (EX 10, pp. 11-13). A lumbar myelogram was performed on December 31, 1984, but it was negative (EX 10, p. 15). A CT scan, however, indi- cated a bulging or herniated disc at L5-S1 (EX 10, p. 16).'] When an injection of lumbar steroids did not alleviate the Claimant's complaints, Dr. Peach performed a hemilami- nectomy at L5-S1 (EX 10, pp. 18-20). The Claimant was discharged from the hospital on January 17, 1985, but he did not progress as hoped. Another CT scan and more x-rays were performed in March 1985, and these tests suggested problems at the site of the recent surgery (EX 10, pp. 22-24). On March 15, 1985, Dr. Peach surgically explored the site of the earlier surgery, and removed some scar tissue. Dr. Peach also freed the nerve root from an adhesion (EX 10, p. 26). The Claimant was discharged from Riverside Hospital on March 20, 1985 (EX 10, p. 27), but his course of recovery was protracted (EX 10, pp. 28-29). Dr. Peach examined the Claimant on July 2, 1985, and the doctor's notes reflect his opinion that the Claimant had progressed to a point where he could return to work on some type of restricted duty (EX 10, p. 31). The Claimant underwent another injection of lumbar epidural steroids on August 2, 1985 (EX 10, p. 32). Dr. Peach wrote the Employer's clinic on September 17, 1985, and stated that the Claimant looked healthy, but he told Dr. Peach that ___________________(footnotes) 11 This is the same level at which a sacral arch defect was noted in 1966 (EX 7, pp. 16, 18). ---------------------------------------- Page Break ---------------------------------------- 50a he was not much better. Dr. Peach explained to the Claim- ant that he would not be absolutely pain free, but the doc- tor also felt that Claimant should return to light duty work (EX 10, p. 34). The Claimant returned to light duty on October 4, 1985 (EX 2, p. 3; EX 7, pp. 29, 57), but he immediately went to the clinic complaining of pain, and he was passed back out. The Employer's clinic sent the Claimant to Dr. K. Singh Sahni at the Medical College of Virginia (MCV) for an evaluation because of his complaints (EX 7, pp. 79-80), but other than continued conservative treatment, Dr. Sahni had no suggestions for further treatment (EX 11). Dr. Peach wrote Dr. Bobbitt on December 19, 1985 and expressed some frustration with the Claimant's continued complaints of great pain, when Dr. Peach could find no objective evidence of that degree of symptomology (EX 10, pp. 35-36). The Claimant returned to light duty work again in January 1986 (EX 2, p. 4), and he was assigned to the Shipyard's MRA shop (EX 7, p. 59). During the remainder of 1986, the Claimant worked under light duty restrictions (EX 2, p. 4; EX 7, pp. 59-66). He was also treated sporadically by Dr. Peach (EX 10, p. 37). In January 1987, the Claimant complained of leg pain, and a facet block injection was performed on Janu- ary 28, 1987 at Riverside Hospital (EX 10, pp. 40-42). The injection caused some temporary relief, but the Claimant still had pain in his low back (EX 10, p. 44), and he con- tinued to work under restrictions (EX 7, pp. 66-70). Dr. Peach determined that the Claimant had reached maximum medical improvement on November 4, 1987, and on that date the doctor imposed permanent restric- tions of lifting no more than thirty pounds on a repetitive basis, and that the Claimant should work in an area where he could alternate between sitting and standing. It was also noted that the Claimant should be able to stretch from ---------------------------------------- Page Break ---------------------------------------- 51a time to time. Finally, Dr. Peach restricted the Claimant to no climbing of vertical ladders. However, Dr. Peach saw no reason why the Claimant could not climb steps (EX 10, p. 45). The Employer's clinic instituted the restrictions as ordered by Dr. Peach (EX 7, p. 71). On December 1, 1987, Dr. Peach advised the clinic that the Claimant had a per- manent 18% whole body impairment based on the AMA Guides (EX 10, p. 46). The Claimant had been assigned to the MRA Shop dur- ing his convalescence, but when his restrictions became permanent, he was returned to his department at the Ship- yard (EX 7, p. 83). The Claimant was assigned work within his restrictions (EX 7, p. 72), but he continued to complain of pain (EX 7, p. 45). In a January 11, 1988 note, Dr. Peach requested that the Claimant avoid either ladders or steep steps (EX 10, p. 47). Dr. Peach further stated, "If any work could be found off the ship, I see no reason why he could not continue to work full time." On January 11, 1988, the clinic acknowl- edged Dr. Peach's request for non-shipboard work (EX 7, p. 45). On January 18, 1988, the Claimant complained to Dr. Bobbitt of back pain caused by the shipboard climb- ing; however, Dr. Bobbitt told the Claimant that if he wanted his restrictions changed, he had to see Dr. Peach (EX 7, p. 46). The Claimant did so on that very date. Dr. Peach's January 18, 1988 treatment note which was sent to the Shipyard clinic, restated the doctor's opinion that the Claimant should work in a non-shipboard shop setting. Moreover, Dr. Peach specifically stated, "I still strongly feel that he should not be climbing ladders or steep steps aboard ship" (EX 7, p. 48). After the Claimant complained to the U.S. Department of Labor that he was being worked outside his restrictions, Dr. Bobbitt contacted Dr. Peach and requested clarifica- tion of the term "steep stairs" used in Dr. Peach's January ---------------------------------------- Page Break ---------------------------------------- 52a 11, 1988 note. This was done on March 4, 1988 (EX 7, p. 85). Dr. Bobbitt did not reference Dr. Peach's January 18, 1988 note and explanation. Dr. Peach's March 22, 1988 letter states unequivocally: When I referred to the steep steps, I was referring to the usual type of steps aboard ship that are usually greater than 60 degrees in incline, fairly typical of what I am familiar with from when I worked on air- craft carriers at the Shipyard. I just feel that since the patient is required to climb two flights to get aboard the carrier, go down, and then back up another five flights to and from the area in which he is working that this is somewhat stressful on someone with a chronic problem like Mr. Harcum. I guess the ideal environment would be if he could continue to work in the machine shop where he was moving a little more, where he could constantly turn, sit briefly, lean, etc., rather than have to be in the for- ward flexed position for long periods of time. I have explained to Mr. Harcum that this situation may not be obtainable, in which case his choices are to put up with his discomfort or to quit the job and find another job. Mr. Harcum does not want to quit the job and find another job. Mr. Harcum does not want to quit his job, so I suggested that he talk with his supervisor to see if any other work is available in a shop setting. His most recent exacerbation of discomfort I feel could best be treated with an epidural block, and we will carry this out Dr. Hamill performed a lumbar epidural steroid injec- tion on March 31, 1988 (EX 10, p. 51). on May 3, 1988, ---------------------------------------- Page Break ---------------------------------------- 53a the Shipyard clinic changed the Claimant's permanent re- strictions to the following (EX 7, pp. 73, 74): No lifting over 30 lbs. Should work in area that allows frequent change of position. No ladder climbing. Limited stair climbing. Recommend no more than 2 flights 4 times a day. There was no work available within these restrictions in the Claimant's home department and he was passed out (EX 10, p. 74). A search of other departments in the Ship- yard was conducted, and the Employer's personnel office had the Claimant fill out a transfer application in case per- manent light duty work was located elsewhere, but none was found (EX 7, pp. 87-90). Dr. Harmon reviewed the Claimant's Shipyard clinic record and his outside clinic records. 12 He noted that following the Claimant's employment at the Shipyard, the Claimant sustained a series of back injuries beginning in 1965. Dr. Harmon opined that the low back injuries sus- tained in the 1960's and 1970's, as well as the sacral arch defect detected in a 1966 x-ray, constitute a pre-existing permanent partial disability. These injuries permanently weakened the Claimant's low back, and made him more susceptible to injury with a more severe resulting dis- ability. Second, Dr. Harmon opined that according to the AMA Guides, the Claimant's 1984 cervical spine caused a 5% permanent partial disability. Dr. Harmon went on to say: It is obvious that Mr. Harcum's current low back con- dition was not caused by any one injury. Rather, it is clear that Mr. Harcum's current low back condition is the result of cumulative and repeated lumbar injuries. Each injury aggravated Mr. Harcum's low back prob- ___________________(footnotes) 12 Dr. Harmon's report is dated March 15, 1989 (EX 16). ---------------------------------------- Page Break ---------------------------------------- 54a lems and made him more susceptible to further back injuries, and each injury increased the severity of the subsequent injuries. This clearly constitutes a pre- existing permanent partial disability, and a cautious employer would not have hired Mr. Harcum with this manifest condition. Additionally, Mr. Harcum's cervical spine condition also substantially contributes to his current level of disability. As a result of shoulder injuries in 1981 and 1983, surgery was performed on Mr. Harcum's cer- vical spine. As I noted previously, this equates to a five percent (5070) whole body impairment. I agree with Dr. Peach's statement in his December 1, 1987 letter. Dr. Peach indicated that Mr. Harcum's level of whole body impairment is a result of two surgical pro- cedures: the 1984 surgery on Mr. Harcum's cervical spine and the 1985 surgery on his lumbar spine. The cervical and lumbar injuries, and the surgery they necessitated, clear] y combined to create a greater im- pairment than would otherwise have occurred. This condition was manifest in Mr. Harcum's clinic record, and a cautious employer would not have hired him with this condition. Dr. Peach's December 1, 1987 letter indicates his opinion that the Claimant's permanent partial disability is due in part to both surgical procedures which involved the Claim- ant's cervical and lumbar spinal areas (EX 10, p. 46). Dr. Bobbitt also reviewed the medical records and sub- mitted an opinion dated November 18, 1988 (EX 8, pp. 3, 4, 5). From this review of the records as well as his knowl- edge of the Claimant, Dr. Bobbitt opined: "It is clear that Mr. Harcum had a pre-existing partial impairment or disa- bility that was materially increased by the second injury and disc herniation, " ---------------------------------------- Page Break ---------------------------------------- 55a Is the Claimant entitled to a temporary partial disability award for lost overtime from April 11, through December 7, 1987? It is clear from the Claimant's testimony as well as the Company records of his overtime work in the X-43 Department that prior to his October 21, 1984 injury, overtime work was available to the Claimant and he took advantage of a considerable amount of that overtime. I find his testimony quite credible that he took advantage of about half of the estimated 800 overtime hours offered on an annual basis. He averaged in excess of 400 hours of overtime work available from 1977 until his injury in 1984. It is also clear that while the Claimant was working on restriction in the MRA Shop from April 11, 1987 through December 7, 1987, no overtime work was available to MRA Shop employees, Had such overtime work been available, the Claimant would have worked overtime. Yet, during that same time, overtime was still available on a regular basis in the X-43 Department to members of his old crew under Mr. Wainwright's supervision. The Claimant need only show that absent his injury, he would have worked available overtime. I find that the evi- dence of record is sufficient to demonstrate a loss of over- time which resulted in a loss of wage-earning capacity dur- ing the time he worked in the MRA Shop which entitles him to temporary partial disability compensation. See Brown v. Newport News Shipbuilding, BRB No. 87-957 (November 27, 1989). 13 ___________________(footnotes) 13 The Claimant was previously paid compensation for loss of over- time on a voluntary basis by the Employer for loss of overtime at the rate of $87.83 per week (ALJ 1, pp. 5-6). This same rate is to be ap- plied to the period from April 11, 1987 through December 7, 1987. ---------------------------------------- Page Break ---------------------------------------- 56a Is the Claimant entitled to a temporary total disability award from May 6, 1988 until February 16, 1989? The parties agree that at the present time, the Claimant has a wage-earning capacity of $152.00 per week. This is based upon the fact that the Claimant has been working at Hampton Sheet Metal since February 16, 1989 in a job within his medical restrictions. 14 The parties have also stipulated that the Claimant reached maximum medical improvement (MMI) on December 7, 1987. Both parties further agree that since being "passed out" on May 6, 1988 from the Shipyard, the Claimant received temporary total disability payments in the amount of $441.62 per week. The Employer, relying upon Stevens v. Lockheed Ship- building Co., 22 BRBS 155, 157-159 (1989) maintains that, as a matter of law, the Claimant's now established residual wage earning capacity relates back to the date of maxi- mum medical improvement. Moreover, the Employer maintains that even if the residual wage earning capacity did not relate back as a matter of law, the Employer has established the availability of suitable alternate jobs which the Claimant was capable of performing from May 6, 1988 until February 16, 1989. The Claimant, however, main- tains that the Claimant should not now be penalized for holding off until February, 1989 before seeking and find- ing work. The Claimant avers that the Employer's promise to attempt to find him another job at the Shipyard caused him to delay his search. Moreover, he believes that his re- liance upon and complete cooperation with Mr. DeMark's vocational rehabilitation efforts indicates his willingness to ultimately obtain a job. ___________________(footnotes) 14 The parties do not contest that from February 16, 1989 to the present and continuing, the Claimant is entitled to receive $340.28 per week as an award for permanent partial disability. ---------------------------------------- Page Break ---------------------------------------- 57a Based upon the specific facts of this case as discussed above, the Claimant may well have delayed his job search in reliance upon either the Shipyard or Mr. DeMark. However, that is simply not determinative of this issue. The Employer's argument is compelling on this issue. The subsequent employment of the Claimant absolutely settled any question of suitable alternate employment, This done, the date of permanency is the date of onset of permanent partial disability. See Stevens, supra. Therefore, I find that the Employer is entitled to a credit of $101.34 per week from May 6, 1988 to February 16, 1989. Is the Claimant entitled to a temporary total disability award from January 18, 1988 through May 6, 1988? 15 The record is clear that no sooner had the Claimant re- turned to work in the X-43 Department aboard the aircraft carrier on January 18, 1988, he started complaining that the daily climbing was too strenuous and violated his work restrictions. In his January 11, 1988 letter, Dr. Peach had advised against shipboard work as well as climbing ladders and steep steps. On January 18, 1988, Dr. Peach's note to the Shipyard reaffirmed this and referred specifically to steep steps aboard ship. The Claimant's continued com- plaints bore no further fruit until he complained to the U.S. Department of Labor. On March 4, 1988, Dr. Bob- bitt finally asked for clarification from Dr. Peach about the term "steep steps". No mention was made of Dr. Peach's clarification in his January 18, 1988 note. In late ___________________(footnotes) 15 Based upon my conclusions on the previous issue, I find that since the Employer has established suitable alternate employment and the date of permanency (December 7, 1987) is the date of onset of per- manent partial disability, the present issue can no longer be one of total disability since the Claimant retained some wage-earning capaci- ty during this time period. ---------------------------------------- Page Break ---------------------------------------- 58a March Dr. Peach then clearly and unequivocally reaf- firmed that steep stairs referred to the type found aboard ships. It was not until May 6, 1988, that the Claimant's duties no longer required shipboard work involving steep stair climbing. Based upon the Claimant's testimony as well as the Shipyard records and reports of Dr. Peach, I find that the Shipyard did violate the Claimant's medical restrictions and was put on notice of this fact by both the Claimant and Dr. Peach on January 18, 1988. The Claimant maintains that notwithstanding the fact that the Claimant was working during this period, he is en- titled to disability compensation. Haughton Elevator Company v. Lewis, 572 F.2d 447 (4th Cir. 1978). The Em- ployer maintains that this case is inapposite since it has not been shown that the Claimant worked in excruciating pain. Moreover, the Claimant had worked 48 hours of overtime during the period. Furthermore, the Employer , maintains the Claimant could have resolved the question by filing a grievance; yet he chose not to do so. I find the most compelling evidence concerning the ques- tion of whether or not the Claimant was required to work in extreme pain, to be the testimony of the Claimant himself. I find him to be an extremely credible witness. He testified that the continuous shipboard climbing was very difficult on him and that he barely got through the work day be- cause of it. I believe his testimony. The fact that he worked 48 hours of overtime during that period is inconsequential. He had a long history of working a lot of overtime in the past when it was available. He worked as much overtime s he could get because he needed the money (Tr. 31). This was the first time overtime was available to him in a number of years. This limited amount of overtime suggests to me an attempt by an individual to persevere through adversity. I will draw no negative inference because the I Claimant worked some overtime during this time frame. ---------------------------------------- Page Break ---------------------------------------- 59a The Employer maintains that the Claimant's testimony is not credible because he could have resolved the matter by simply filing a grievance. Moreover, the Employer points out inconsistencies in the Claimant's testimony con- cerning whether or not a grievance was filed. I do not find that this in any way affects the credibility of the Claimant. Whether or not the Claimant chose to file a grievance in his concern. There was no requirement for him to do this. Apparently he did not get along well with his union. Nor do I find his testimony inconsistent about whether a griev- ance was actually initiated or not. Even Mr. Decker had a problem establishing precisely what specifically consti- tuted the first step of filing a grievance. I'm certainly not going to discredit the Claimant's testimony because he may have only a layman's knowledge concerning the subtleties of a bargaining agreement. Consequently, I find that the Claimant's testimony con- cerning the extent of his pain during the time he was worked in violation of his medical restrictions to be proba- tive. While Dr. Peach did not specifically indicate that the Claimant was in excruciating pain during this time period, his reports do reflect the doctor's concern for the Claim- ant's ongoing chronic discomfort and pain caused by the shipboard climbing. Therefore, I find that Dr. Peach's reports support the Claimant's testimony rather than detract from it. Accordingly, I find that the Claimant has established entitlement to partial disability compensation notwithstanding the fact that he was working during this time period. Haughton, supra. The Claimant is entitled to permanent partial disability compensation of $340.28 per week from January 18, 1988 through May 6, 1988. Is the Employer entitled to Section 8(f) relief? Turning attention first to the requirement that the Em- ployer demonstrate that the Employee had a pre-existing permanent, partial disability, it should be noted that this ---------------------------------------- Page Break ---------------------------------------- 60a need not be an economic disability, but a physical disa- bility sufficiently serious to motivate an employer to dis- charge the employee due to an increased risk of an em- ployment-related accident and increased compensation liability. Atlantic and Gulf Stevedores, Inc. v. Director, OWCP, 541 F.2d 602 (1976). Also, the pre-existing disa- bility need not be employment related. However, the mere fact that the employee has suffered a prior injury does not in and of itself establish a pre-existing disability. There must be some serious lasting physical problems resulting from the injury. Director, OWCP v. Belcher Erectors, 770 F.2d 1220 (1985). After considering the medical evidence of record, I find that it is clear that the Claimant suffered a series of back and neck injuries beginning in 1965. The opinions of Drs. Harmon, Peach and Bobbitt leave no doubt that they believe that prior to Claimant's 1984 lum- bar injury, he suffered from a pre-existing permanent par- tial disability. This was brought about by the Claimant's low back injuries sustained in the 1960's and 1970's, the sacral arch defect detected in 1966, and the 1984 cervical surgery. These are well reasoned decisions. Moreover, the Claimant's testimony concerning ongoing lower back and neck problems corroborates their opinions. The record is devoid of contrary probative evidence. Therefore, I find that the Employer has demonstrated that the Claimant suffered a serious pre-existing permanent partial disa- bility. The next question is whether the Claimant's pre-existing disability combined with his last injury and, thus, caused a greater degree of disability than that which would have re- sulted solely from the final injury. Again, the opinions of Drs. Harmon, Peach and Bobbitt support this proposi- tion. Sincer there is no contrary probative evidence, I find that the Employer has met its burden of proof in establish- ing that the Claimant's pre-existing disability combined ---------------------------------------- Page Break ---------------------------------------- 61a with his last injury and caused a greater degree of disabili- ty than that which would have resulted solely from the final injury. Finally, the Employer must establish that the Claimant's pre-existing disability was manifest to it. A pre-existing impairment is manifest to the Employer if the Employer knew or could have discovered the impairment prior to the most present injury. Lowry v. Willamette Iron and Steel Co., 11 BRBS 372 (1979). The mere existence of records showing the impairment is sufficient. I find that the Ship- yard clinic records clearly reflect the Claimant's ongoing back and neck problems form 1965 on. These conditions were clearly manifest to the Employer. I find that the Employer has established that the Claimant's pre-existing disability was manifest to it. Therefore, the Claimant's disability is within the scope of Section 8(f) of the Act. The Employer is entitled to relief pursuant to that Section. ORDER 1. The Employer is to pay the Claimant compensation for temporary partial disability for lost overtime at the rate of $87.83 per week from April 11, 1987 through December 7, 1987. 2. The Employer is to pay the Claimant compensation for temporary partial disability at the rate of $340.28 per week from January 18, 1988 until May 6, 1988. 3. The Employer is to pay the Claimant compensation for permanent partial disability at the rate of $340.28 per week from May 6, 1988 to the present and continuing. 16 4. The Employer is to receive a credit from the Claim- ant of $101.34 per week from May 6, 1988 to February 16, 1989. ___________________(footnotes) 16 It is noted that the Employer has already complied with this. ---------------------------------------------- Page Break ---------------------------------------- 62a 5. Upon the expiration of 104 weeks beginning May 6, 1988, the Special Fund shall be liable for continuing pay- ments at the same weekly rate. 17 /s/ Daniel A. Sarno, Jr. DANIEL A. SARNO, JR. Administrative Law Judge DAS/jbm Dated: March 28, 1990 Hampton, Virginia ___________________(footnotes) 17 The Special Fund will not be penalized for the Employer's viola- tion of the Claimant's medical restrictions from January 18, 1988 to May 6, 1988. ---------------------------------------- Page Break ---------------------------------------- 63a APPENDIX E STATUTORY AND REGULATORY PROVISIONS The Longshore and Harbor Workers' Compensation Act, as codified at 33 U.S.C. 901 et seq., provides in rele- vant part: 921. Review of compensation orders ***** (b) Benefits Review Board; establishment; members; chairman; quorum; voting; questions reviewable; record; conclusiveness of find- ings; stay of payments; remand (1) There is hereby established a Benefits Review Board which shall be composed of five members ap- pointed by the Secretary from among individuals who are especially qualified to serve on such Board. The Secretary shall designate one of the members of the Board to serve as chairman. The Chairman shall have the authority, as delegated by the Secretary, to exercise all administrative functions necessary to operate the Board. (2) For the purpose of carrying out its functions under this chapter, three members of the Board shall constitute a quorum and official action can be taken only on the af- firmative vote of at least three members. (3) The Board shall be authorized to hear and deter- mine appeals raising a substantial question of law or fact taken by any party in interest from decisions with respect to claims of employees under this chapter and the exten- sions thereof. The Board's orders shall be based upon the hearing record. The findings of fact in the decision under review by the Board shall be conclusive if supported by substantial evidence in the record considered as a whole. The payment of the amounts required by an award shall not be stayed pending final decision in any such proceed- ing unless ordered by the Board. No stay shall be issued ---------------------------------------- Page Break ---------------------------------------- 64a unless irreparable injury would otherwise ensue to the employer or carrier. (4) The Board may, on its own motion or at the re- quest of the Secretary, remand a case to the administrative law judge for further appropriate action. The consent of the parties in interest shall not be a prerequisite to a re- mand by the Board. ***** (c) Court of appeals; jurisdiction; persons entitled to review; peti- tion; record; determination and enforcement; service of process; stay of payments Any person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred, by filing in such court within sixty days following the issuance of such Board order a written peti- tion praying that the order be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court, to the Board, and to the other parties, and thereupon the Board shall file in the court the record in the proceedings as provided in section 2112 of Title 28. Upon such filing, the court shall have jurisdiction of the proceeding and shall have the power to give a decree af- firming, modifying, or setting aside, in whole or in part, the order of the Board and enforcing same to the extent that such order is affirmed or modified. The orders, writs, and processes of the court in such proceedings may run, be served, and be returnable anywhere in the United States. The payment of the amounts required by an award shall not be stayed pending final decision in any such pro- ceeding unless ordered by the court. No stay shall be issued unless irreparable injury would otherwise ensue to the employer or carrier. The order of the court allowing any stay shall contain a specific finding, based upon evi- dence submitted to the court and identified by reference ---------------------------------------- Page Break ---------------------------------------- 65a thereto, that irreparable damage would result to the em- ployer, and specifying the nature of the damage. (d) District court; jurisdiction; enforcement of orders; application of beneficiaries of awards or deputy commissioner; process for com- pliance with orders If any employer or his officers or agents fails to comply with a compensation order making an award, that has be- come final, any beneficiary of such award or the deputy commissioner making the order, may apply for the en- forcement of the order to the Federal district court for the judicial district in which the injury occurred (or to the United States District Court for the District of Columbia if the injury occurred in the District). If the court deter- mines that the order was made and served in accordance with law, and that such employer or his officers or agents have failed to comply therewith, the court shall enforce obedience to the order by writ of injunction or by other proper process, mandatory or otherwise, to enjoin upon such person and his officers and agents compliance with the order. ***** 921a. Appearance of attorneys for Secretary, deputy commis- sioner, or Board Attorneys appointed by the Secretary shall represent the Secretary, the deputy commissioner, or the Board in any court proceedings under section 921 of this title or other provisions of this chapter except for proceedings in the Supreme Court of the United States. ***** 939. Administration by Secretary (a) Prescribing rules and regulations; appointing and fixing com- pensation of employees; making expenditures Except as otherwise specifically provided, the Secretary ---------------------------------------- Page Break ---------------------------------------- 66a shall administer the provisions of this chapter, and for such purpose the Secretary is authorized (1) to make such rules and regulations; (2) to appoint and fix the compensa- tion of such temporary technical assistants and medical advisers, and, subject to the provisions of the civil service laws, to appoint, and, in accordance with chapter 51 and subchapter III of chapter 53 of Title 5, to fix the compen- sation of such deputy commissioners (except deputy com- missioners appointed under subsection (a) of section 940 of this title) and other officers and employees; and (3) to make such expenditures (including expenditures for per- sonal services and rent at the seat of government and else- where, for law books, books of reference, periodicals, and for printing and binding) as may be necessary in the ad- ministration of this chapter. All expenditures of the Secre- tary in the administration of this chapter shall be allowed and paid as provided in section 945 of this title upon the presentation of itemized vouchers therefor approved by the Secretary. ***** (c) Furnishing information and assistance; directing vocational rehabilitation (1) The Secretary shall, upon request, provide persons covered by this chapter with information and assistance relating to the chapter's coverage and compensation and the procedures for obtaining such compensation and in- cluding assistance in processing a claim. The Secretary may, upon request, provide persons covered by this chapter with legal assistance in processing a claim. The Secretary shall also provide employees receiving compen- sation information on medical, manpower, and vocational rehabilitation services and assist such employees in obtain- ing the best such services available. **** ---------------------------------------- Page Break ---------------------------------------- 67a 20 C. F. R., Pts. 701, 702, 801 and 802 provide in rele- vant part: 701.201 Establishment of Office of Workers' Compensation Pro- grams. The Assistant Secretary of Labor for Employment Standards, by authority vested in him or her by the Secre- tary of Labor in Secretary's Order No. 7-87 (52 FR 48466), established in the Employment Standards Administration (ESA) an Office of Workers' Compensation Programs (OWCP). The Assistant Secretary further designated as the head thereof a Director, who shall administer the pro- grams assigned to that office by the Assistant Secretary. 701.202 Transfer of functions. Pursuant to the authority vested in him or her by the Secretary of Labor, the Assistant Secretary for Employ- ment Standards transferred from the Bureau of Employees' Compensation to the Office of Workers' Com- pensation Programs all functions of the Department of Labor with respect to the administration of benefits pro- grams under the following statutes: (a) The Longshore and Harbor Workers' Compensa- tion Act, as amended and extended, 33 U.S. C. 901 et seq.; ***** 702.333 Formal hearings; parties. (a) The necessary parties for a formal hearing are the claimant and the employer or insurance carrier, and the administrative law judge assigned the case. (b) The Solicitor of Labor or his designee may appear and participate in any formal hearing held pursuant to these regulations on behalf of the Director as an interested party. ***** ---------------------------------------- Page Break ---------------------------------------- 68a 801.102 Review authority. (a) The Board is authorized, as provided in 33 U.S.C. 921 (b), as amended, to hear and determine appeals raising a substantial question of law or fact taken by any party in interest from decisions or orders with respect to claims for compensation or benefits arising under the following Acts, as amended and extended: (1) The Longshore and Harbor Workers' Compensa- tion Act (LHWCA), 33 U.S.C. 901 et seq.; ***** 802.410 Judicial review of Board decisions. (a) Within 60 days after a decision by the Board has been filed pursuant to 802.403(b), any party adversely affected or aggrieved by such decision may file a petition for review with the appropriate U.S. Court of Appeals pursuant to section 21(c) of the LHWCA. (b) The Director, OWCP, as designee of the Secretary of Labor responsible for the administration and enforce- ment of the statutes listed in 802.101, shall be deemed to be the proper party on behalf of the Secretary of Labor in all review proceedings conducted pursuant to section 2 l(c) of the LHWCA. * * * * U S. GOVERNMENT PRINTING OFFICE: 1994-301-157/86141 ---------------------------------------- Page Break ---------------------------------------- No. 93-1783 In the Supreme Court of the United States OCTOBER TERM, 1994 DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES SPEARMINT OF LABOR, PETITIONER v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF FOR THE PETITIONER THOMAS S. WILLIAMSON, Jr. Solicitor of Labor ALLEN H. FELDMAN Associate Solicitor STEVEN J. MANDEL Deputy Associate Solicitor MARK S. FLYNN Senior Appellate Attorney Department of Labor Washington D.C. 20210 DREW S. DAYS, III Solicitor General LAWRENCE G. WALLACE Deputy Solicitor General BETH S. BRINKMANN Assistant to the Solicitor General Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the standing of the Director, Office of Workers' Compensation Programs in the United States Department of Labor, to petition the courts of appeals for review of a decision of the Benefits Review Board under Section 21(c) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 921(c), is limited to issues that affect the Director's pecuniary interest or disrupt a specific administrative function. (I) ---------------------------------------- Page Break ---------------------------------------- II PARTIES TO THE PROCEEDINGS The Director of the Office of Workers' Compensation Programs in the United States Department of Labor was the petitioner in the proceeding below. The employer, Newport News Shipbuilding and Dry Dock Company, was the respondent, and Jackie Harcum was designated the claimant. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Opinions below . . . . 1 Jurisdiction . . . . 1 Statutory and regulatory provisions involved . . . . 2 Statement . . . . 2 Summary of argument . . . . 10 Argument: The standing of the Director of the Office of Workers' Compensation Programs to petition for judicial review of decisions by the Benefits Review Board is not limited to decisions that affect the Director's pecuniary interest or disrupt her performance of specific administrative functions . . . . 11 A. The text and structure of the Longshore and Harbor Workers' (`compensation Act indicate that Congress gave the Director a stake in claim adjudications and vested her with standing to obtain judicial review of erroneous Benefits Review Board rulings . . . . 14 1. The Act confers broad adminstrative and en- forcement duties on the Director . . . . 14 2. Congress imposed specific duties on the Director with regard to the claims adjudication process and assisting disabled employees, which also give the Director standing . . . . 22 B. The history of the Act confirms Congress's intention to confer on the Director standing to seek judicial review of board rulings . . . . 25 Conclusion . . . . 32 (III) ---------------------------------------- Page Break ---------------------------------------- IV TABLE OF AUTHORITIES Cases: Alfred L. Snapp & Son), Inc. v. Puerto Rico, 458 U.S. 592 (1982) . . . . 15 American Ship Bldg. (`o. v. Director, OWCP, 865 F.2d 727 (6th Cir. 1989) . . . . 16 Bell v. New Jersey. 461 U.S. 773 (1983) . . . . 28 Boudreaux v. American Workover, Inc., 680 F.2d 1034 (5th Cir. 1982), cert. denied, 459 U.S. 1170 (1983) . . . . . . . . . 16 Coleman v. Miller, 307 U.S. 433 (1939) . . . . 15 Columbia Gas Systems Inc., In re, 33 F.2d 294 (3d Cir. 1994) . . . . 25 Curtis v. Schlumberger Offshore Serv., Inc., 849 F.2d 805 (3d Cir. 1988) . . . . 20, 21 Debs, Inre, 158 U.S. 564 (1895) . . . . 15 Director, OWCP v. Alabama By-Products Corp., 560 F.2d 710 (5th Cir. 1977) . . . . 30 Director, OWCP v. Bethlehem Steel Corp., 949 F.2d 185 (5th Cir. 1991) . . . . 19, 22 Director, OWCP v. Donzzi Marine, Inc., 586 F.2d 377 (5th Cir. 1978) . . . . 9, 20, 22 Director, OWCP v. Eastern Coal Corp., 561 F.2d 632 (6th Cir. 1977) . . . . 14-15, 20, 25, 27, 30 Director, OWCP v. General Dynamics Corp. 982 F.2d 790 (2d Cir. 1992) . . . . 16 Director, OWCP v. National Mines Corp., 554 F.2d 1267 (4th Cir. 1977) . . . . 30 Director, OWCP v. Notional Van Lines, Inc., 613 F.2d 972 (D.C. Cir. 1979), cert. denied, 448 U.S. 907 (1980) . . . . 19 Director, OWCP v. Newport News Shipbuidling & Dry Dock Co., 676 F.2d 110 (4th Cir. 1982) . . . . 9 Director, OWCP v. Peabody Coal Co., 554 F.2d 310 (7th Cir. 1977) . . . . 30 Director, OWCP v. Perini N. River Assocs., 459 U.S. 297 (1983) . . . . 20, 21 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued Page Director, OWCP v. Rochester & Pittsburgh Coal Co., 678 F.2d 17 (3d Cir. 1982) . . . . 20, 30 Donovan v. University of Texas at El Paso, 643 F.2d 1201 (5th Cir. 1981 . . . . 18 FCC v. Sanderss Bros. Radio Station, 309 U.S. 470 (1940) . . . . 25 Flast v. Cohen, 392 U.S. 83 (1968) . . . . 12, 13 Fusco v. Perini N. River Assocs., 601 F.2d 659 (2d Cir. 1979), vacated and remanded on other grounds, 444 U.S. 1028, reinstated on remand, 622 F.2d 1111 (2d Cir. 1976), cert. denied, 449 U.S. 1131 (1981) . . . . 20 General Tel Co. v. EEOC, 446 U.S. 318 (1980) . . . . 18 Goldsmith v. Director, OWCP, 838 F.2d 1079 (9th Cir. 1988) . . . . 21 Hecktman v. United States, 224 U.S. 413 (1912) . . . . 18 Henderson v. glens Falls Indem. Co., 134 F.2d 320 (5th Cir.), cert. denied, 319 U.S. 756 (1943) . . . . 26 I. T.O. Corp. v. Benefits Review Bd., 563 F.2d 646 (4th Cir. 1977). reinstating in pertinent part, 542 F.2d 903 (4th Cir. 1976), vacated and remanded, 433 U.S. 904 (1977) . . . . 10, 20, 27 Ingalls Shipbuildinq Div., Etc. v. White, 681 F.2d 275 (5th Cir. 1982), overruled in part on other grounds, Newpark , Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399 (5th Cir.), cert. denied, 469 U.S. 818 (1984) . . . . 21, 27-28, 30 Kalaris v. Donovan, 697 F.2d 376 (D.C. Cir.), cert. deni- ed, 462 U.S. 1119 (1983) . . . . 26,27 Krolick Contracting Corp. v. Benefits Review Bd., 558 F.2d 685 (3d Cir. 1977) . . . . 30 Linda R.S. v. Richard D., 410 U.S. 614 (1973) . . . . 12 Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992) . . . . 12, 13 Marchie Tiger v. Western Inv. Co., 2.21 U.S. 286 (1911) . . . . 28 Martin v OSHRC, 499 U.S. 144 (1991) . . . . 16-17 Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976) . . . . 18 ---------------------------------------- Page Break ---------------------------------------- VI Cases-Continued: Mullins Coal Co. v. Director, OWCP, 484 U.S. 135 (1987) . . . . 16 Newport News Shipbulding & Dry Dock Co. v. Howard, 904 F.2d 206 (4th Cir 1990) . . . . 16 Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977) . . . . 17 Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976) . . . . 18 Potomac Elec. Pouwer (`o. v. Director, OWCP, 449 U.S. 268 (1980) . . . . 16 Sea-Land Serv., Inc. v Rock, 953 F.2d 56 (3d Cir. 1992) . . . . 16 SEC v. United States Realty & Improvement Co., 310 Us. 434 (1940) . . . . 15 Secretary of Labor v. Fitzsimmons, 805 F.2d 682 (7th Cir. 1986) . . . . 18 Shahady v. Atlas Tile & Marble Co., 673 F.2d 479 (D.C. Cir. 1982) . . . . 19,21,27 Sierra Club v. Morton, 405 U.S. 727 (1972) . . . . 12, 13,25 Stevens v. Director, OWCP, 909 F.2d 1256 (9th Cir. 1990), cert. denied. 498 U.S. 1073 (1991) . . . . 7 Stevens v. Lockheed Shipbuilding Co., 22 Ben. Rev. Bd. Serv. (MB), 155 ( 1989), rev'd 909 F.2d 1256 (9th Cir. 1990), cert. denied, 498 U.S. 1073 (1991) . . . . 6 Thornton v. Brown & Root, Inc., 707 F.2d 149 (5th Cir. 1983), cert. denied, 464 U.S. 1052 (1984) . . . . 21 United States v. Federal Maritime Comm`n: 655 F.2d 247 (D.C. Cir. 1980) . . . . 15 694 F.2d 793 (D.C. Cir. 1982) . . . . 15 United States ex rel. Chapman v. Federal Power Comm'n, 345 U.S. 153 (1953) . . . . 15 Valley Forge Christian College v. Americans United for Separation-action of Church & State, Inc., 454 U.S. 464 (1982) . . . . 12 Voris v. Eikel, 346 U.S. 328 (1953) . . . . 18 ---------------------------------------- Page Break ---------------------------------------- VII Cases-Continued: Page Warth v. Seldin , 422 U.S. 490 (1975) . . . . 12 Washington Utils & Transp. Comm'n v. FCC, 513 F.2d 1142 (9th Cir. 1975) . . . . 25 West Virginia Univ., Hosp., Inc. v. Casey, 499 U.S. 83 (1991) . . . . 29 White v. Ingalls Shipbuilding Div., Litton Sys., inc., 12 Ben. Rev. Bd. Serv. (MB) 905 (1980) . . . . 28 Zapata Haynie Corp. v. Barnard, 933 F.2d 256 (4th Cir. 1991) . . . . 16 Constitution. statutes, regulations and rule: U.S. Const. Art. III . . . . 11, 12, 13, 21 Federal Mines Safety and Health Act of 1977, as amended Black Lung Benefits Act, Pub. L. No. 95-239, 92 Stat. 99, 30 U.S.C. 901 et seq . . . . 3, 17, 28 30 U.S.C 932(a) . . . . 30 30 U.S.C. 932 (k) . . . . 29, 30 Defense Base Art, 42 U.S.C. 1651 et seq . . . . 3 District of Columbia Workmen's Compensation Act, 36 D.C. Code 501 et seq. (1973) . . . . 3 5 U.S.C. 554 . . . . 4 Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq. . . . . passim 33 U.S.C. 904 . . . . 2 33 U.S.C. 905 . . . . 2 33 U.S.C. 906-909 . . . . 2 33 U.S.C. 907(b) . . . . 5, 23 33 U.S.C. 907(c) . . . . 23 33 U.S.C. 908(f) (8(f)) . . . . 6, 24 33 U.S.C. 908(i) . . . . 5, 23 33 U.S. C . 912 . . . . 3 33 U.S.C. 913 (a) . . . . 3 33 U.S.C. 914 . . . . 4, 19 33 U.S.C. 914(a) . . . . 3, 23 33 U.S. C. 914(h)(1) . . . . 4, 23 ---------------------------------------- Page Break ---------------------------------------- VIII Statutes, regulations and rule - Continued: Page 33 U.S.C. 914(h)(2) . . . . 4 33 U. S. C. 915(a) . . . . . 24 33 U.S.C. 915(b) . . . . 24 33 U.S.C. 918(b) . . . . 33 U.S.C. 919(C) . . . . 4, 19, 23 33 U.S.C. 919(d) . . . . 4 33 U.S.C. 919(e) . . . . 4 33 U.S.C 921(b) . . . . 2 33 U.S.C. 921(b)(3) ( 21(b)(3) . . . . 4, 7, 15, 27 33 U.S.C 921(c) (21(c) . . . . passim 33 U.S.C.( 921(d) . . . . 2, 5, 16 33 U.S.C 921a . . . . 2, 14 33 U.S.C. 931 . . . . 23 33 U.S.C. 932(k) . . . .14 33 U.S.C. 933(i) . . . . 2 33 U.S.C. 939(a) . . . . 2, 15 33 U.S.C 939(c) . . . . 2, 5, 24 33 U.S.C. 939(C)(1) . . . . 23 33 U.S.C. 939(c)(2) . . . . 24 33 U.S.C. 940(a) . . . . 3 33 U.S.C. 944 . . . . 5, 24 33 U. S.C. 944(a) . . . . 6 Longshoremen's and Harbor Workers' Compensation Act, ch. 509, 21(1). 44 Stat. 1436 (1927) . . . . 26, 28 Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, Pub. L. No. 92-576, 86 Stat. 1251 . . . . 26 Nonappropriated Fund Instrumentalities Act, 5 U.S.C. 8171 et seq . . . . 3 Outer Continental Shelf Lands Act, 43 U.S.C. 1331 . . . . 28 U.S.C. 1291 . . . . 3 20 C.F.R.. Section 701.101 . . . . 3 Section 701.102 . . . . 3 Section 701.201 . . . . 2, 3 Section 701.202 . . . . 2 Section 701.20(a) . . . . 3 Section 701.202 (b)-(f) . . . . 3 ---------------------------------------- Page Break ---------------------------------------- IX Statutes, regulations and rule-Continued: Page Section 701.203 . . . . 3 Section 701 .301 (a)(7) . . . . 3 Section 702.105 . . . . 3 Section 702.301 et seq . . . . 19 Sections 702.301-702.317 . . . . 4 Sections 702.331-702.351 . . . . 4 Section 702.333 . . . . 2 Section 702.333(a) . . . . 4 Section 702.333(b) . . . . 4, 15 Sections 718 et seq . . . . 3 Section 801.2 (a)(10) . . . . 4, 15 Section 801.102 . . . . 2,4, 15 Section 801.104 . . . . 4 Section 802.101 et seq . . . . 31 Section 802.201 . . . . 15 Section 802.201(a) . . . . 28 Section 802.201 (a)(a) . . . . 15, 16 Section 802.410 . . . . 2 Section 802.410(a) . . . . 16, 28 Section 802.410(b) . . . . 5, 16 Fed. R. App. P 15(a) . . . . 21 Miscellaneous: E. Chemerinsky. Federal Jurisdiction (1989) . . . . 8 H.R. Conf. Rep. No. 864, 95th Cong., 1st Sess. (1978) . . . . 30 H.R. Rep. No. 1441, 92d Cong., 2d Sess. (1972) . . . . 18, 27 A. Larson, The law of Workmen's Compensation (1993): vol. 1 . . . . 17 vol. 3 . . . . 17 S. Rep. No. 1125, 92d Cong., 2d Sess. (1972) . . . . 18, 27 S. Rep. No. 209.95th, Cong., 1st Sess. (1977) . . . . 29 ---------------------------------------- Page Break ---------------------------------------- OCTOBER TERM, 1994 No. 93-1783 DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY. ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF FOR THE PETITIONER OPINIONS BELOW The opinion of the court of appeals (Pet. App. la-24a) is reported at 8 F.3d 175. The decision of the Benefits Review Board (Pet. App. 27a-36a) is unreported. The decision of the administrative law judge (Pet. App. 37a- 62a) is reported at 23 Ben. Rev. Bd. Serv. (MB) 515. JURISDICTION The court of appeals entered its judgment on October 29, 1993, and denied petitions for rehearing on January 7, 1994. Pet. App. 25a-26a. On March 28, 1994, the Chief Justice extended the time within which to file a petition (1) ---------------------------------------- Page Break ---------------------------------------- 2 for a writ of certiorari to and including May 7, 1994. The petition for a writ of certiorari was filed on May 9, 1994 (a Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED Pertinent provisions of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 921(b), 921(c), 921(d), 921a, 939(a), 939(c)) are reprinted at Pet. App. 63a- 66a. Pertinent provisions of the Department of Labor regulations (20 C. F. R. 701.201, 701.202, 702.333, 801.102, 802.410) are reprinted at Pet. App. 67a-68a. STATEMENT A. The Statutory Framework 1. The Longshore and Harbor Workers' Compen- sation Act (LHWCA or Act), 33 U.S.C. 901 et seq., creates a comprehensive federal scheme to compensate maritime workers injured or killed while employed upon the navigable waters of the United States. Under the Act, employers are liable up to a statutory maximum for covered injuries without regard to fault as a cause for the injury or death, and have certain duties to furnish medical services in connection with injuries. 33 U.S.C. 904, 906-909. In most instances, the employer's liability under the Act is exclusive and in place of all other liability to the employee on account of the injury or death. 33 U.S.C. 905 and 933(i). Congress directed the Secretary of Labor to "admin- ister the provisions" of the LHWCA and to issue any necessary rules and regulations. 33 U.S.C. 939(a). The Secretary established the Office of Workers' Compen- sation Programs (OWCP) and delegated the respons- ibility for administration of the benefits program under ---------------------------------------- Page Break ---------------------------------------- 3 the LHWCA to the OWCP Director (Director). See 20 C.F.R. 701.201, 701.202(a).1 Employees or survivors seeking compensation under the LHWCA must notify the employer and file a claim with a district director of OWCP. 33 U.S.C. 912 and 913(a).2 Compensation generally is to be paid promptly to eligible persons without issuance of a formal compensation award. 33 U.S. C. 914(a). A district director may, upon his own initiative at any time, ___________________(footnotes) 1 The history of' the authority to administer the Act and the delegation of that authority is set forth in 20 C.F.R. 701.203. The statutory language speaks in terms of powers vested in the Secretary. In light of the Secretary's delegation of those responsibilities to the Director, however, we refer throughout this brief to the Director rather than the Secretary as the bearer of the statutory duties. In addition to administering the LHWCA benefits program, the Director is responsible for administration of the benefits programs under the Defense Base Act, 42 U.S.C. 1651 et seq., the District of Columbia Workmen's Compensation Act, 36 D.C. Code 501 et seq. (1973), the Outer Continental Shelf Lands Act, 43 U.S.C. 1331, the Nonappropriated Fund Instrumentalities Act, 5 U.S.C. 8171 et seq., and Title IV of the Federal Mine Safety and Health Act of 1977, as amended (known as the Black Lung Benefits Act (BLBA)), 30 U.S.C. 901 et seq. See 20 C.F.R. 701.202(b)-(f). The first four of those Acts are direct extensions of the LHWCA, and the same regulations generally govern the administration of the programs under those Acts, with a few exceptions. See 20 C.F.R. 701.101, 701.102. The regulations governing administration of the BLBA are set forth immediately following the LHWCA regulations. See 20 C.F.R. 718 et seq. 2 Congress provided for the appointment by the Secretary of "deputy commissioners," 33 U.S.C. 940(a), who are now referred to as "district directors" for administrative purposes. See 20 C.F.R. 701.301(a)(7), 702.105. District directors, under the authority of the Secretary and Director, perform much of the day- to-day administration of the Act. ---------------------------------------- Page Break ---------------------------------------- 4 investigate a ease in which payments are being made without an award. 33 U.S.C. 914(h)(l), 919(c). If a dispute regarding a claim arises, a district director must conduct an investigation and "take such further action as he considers will properly protect the rights of all parties." 33 U.S.C. 914(h)(2). District directors have authority to make a compensation award. 33 U.S.C. 914. If a district director is unable to resolve a claim informally, the claim is forwarded to an administrative law judge (ALJ), 33 U.S.C. 919(d). ALJs are empowered to conduct formal hearings in compliance with the provisions of 5 U.S.C. 554, and to issue compensation orders. 33 U.S.C. 919(c), (d) and (e); 20 C.F.R. 702.301-702.317; 702.331-702.351. Implementing regulations provide that the claimant and the employer (or its insurance carrier) are necessary parties for a hearing before an ALJ, 20 C.F.R. 702.333(a). The Solicitor of Labor or his designee may participate in ALJ hearings on behalf of the Director as an "interested party." 20 C.F.R. 702.333(b). Appeals raising a substantial question of law or fact may be taken to the Benefits Review Board (Board) "by any party in interest" from ALJ decisions with respect to benefit and compensation claims under the Act. 33 U.S.C. 921(b)(3); 20 C.F.R. 801.102. The terms "party" and "party in interest" are defined to mean "the Secretary or his designee and any person or business entity directly affected by the decision or order from which an appeal to the Board is taken." 20 C.F.R. 801.2 (a)(10). The Board reviews an ALJ's decision to determine if it is supported by substantial evidence and is in accordance with the law. 33 U.S.C. 921(b)(3); 20 C.F.R. 801.102. Decisions by the Board are reviewable by the courts of appeals. 33 U.S. C. 921(c). "Any person adversely ---------------------------------------- Page Break ---------------------------------------- 5 affected or aggrieved by a final order of the Board may obtain a review of that order" in a court of appeals. Ibid. The Director, as designee of the Secretary "responsible for the administration and enforcement" of the Act, "shall be deemed to be the proper party on behalf of the Secretary of Labor in all review proceedings conducted pursuant to section 21(c)." 20 C.F.R. 802.410(b). 2. In addition to her statutorily established role in the claim adjudication process, the Director performs a wide range of duties under the Act that promote the public interest, including providing assistance to individual claimants. For example, the Director must provide information and assistance in the claim adjudication process to any claimant who requests it, and she is permitted to provide claimants with legal assistance in . processing a claim. 33 U.S.C. 939(c). The Director, through the district directors, reviews settlements to ensure that they are not inadequate and not procured by duress. 33 U.S.C. 908(i). She actively supervises the medical care rendered to injured employees, 33 U.S.C. 907(b), and provides information about medical and rehabilitative services, 33 U.S. C. 939(c). District directors may also bring actions in district court to enforce compensation awards, 33 U.S.C. 921(d), and the Director administers a special fund for payment of benefits in specified circumstances, 33 U.S.C. 944. B. The Pending Case 1. Claimant Jackie Harcum, an employee of respondent Newport News Shipbuilding and Dry Dock Co., suffered a work-related, disabling back injury and filed a claim for benefits under the Act. Pet. App. 2a. The claim was referred to an ALJ for a hearing to resolve several disputed issues, including whether claimant Harcum was entitled to benefits for total (not ---------------------------------------- Page Break ---------------------------------------- 6 merely partial) disability from the date that he stopped work at respondent's shipyard (May 6, 1988) until the date he found alternative employment (February 16, 1989). Id. at 6a, 39a.:" The ALJ applied the rationale of the Board's decision in Stevens v. Lockheed Shipbuilding Co., 22 Ben. Rev, Bd. Serv. (MB) 155 (1989), which held that total disability becomes partial when a claimant regains residual wage- earning capacity, and the partial disability relates back to the date of a claimant's maximum medical improvement. The ALJ thus reasoned that claimant Harcum was entitled only to partial (rather than total) disability benefits as of May 6, 1988, because that was the date he left employment with respondent and because the date of his maximum medical improvement had already passed. Pet. App. 6a, 56a-57a. The ALJ held that Harcum ___________________(footnotes) 3 Respondent also asserted that Harcum suffered from a preexisting permanent partial disability that contributed to his current disability, and that respondent consequently was entitled to a reduction in the amount of benefits it was required to pay because the special fund administered by the Secretary should assume payment for part of the benefits under Section 8(f) of the Act. Pet. App. 7a. See 33 U.S.C. 908(f) (special fund assumes liability for compensation payment for injury after 104 weeks of permanent disability if claimant had preexisting permanent partial disability that combined with his compensable injury to render him more disabled than he would have been from the injury alone); 33 U.S.C. 944(a). The ALJ and the Board agreed with respondent that Section 8(f) applied to this case. Pet. App. 7a, 33a-36a, 59a-61a. The court of appeals, however, rejected both the Director's and respondent's interpretations of Section 8(f), reversed the Board's ruling on that issue, and remanded the case for further proceedings. Pet. App. 14a-24a. Although the Director disagrees with the court of appeals' Section 8(f) ruling, she did not seek this Court's review of that ruling. ---------------------------------------- Page Break ---------------------------------------- 7 should be deemed to have regained residual wage-earning capacity as of May 6, 1988, and that he therefore should have received compensation after that date based only on a partial disability. Id. at 57a. 2. The Director appealed the ALJ's ruling to the Board pursuant to Section 21(b)(3) of the LHWCA, 33 U.S.C. 921(b)(3). Pet. App. 7a. The Director contended that the claimant was entitled to benefits based on total disability until February 16, 1989, when he secured other employment. Claimant Harcum did not appeal, but did respond in support of the Director. Id. at 29a. Respondent urged affirmance. Ibid. The Board affirmed the ALJ's ruling, although it clarified the underlying rationale. The Board vacated the ALJ's reliance on its Stevens ruling because that decision had subsequently been reversed on judicial review. Pet. App. 29a-31a; Stevens v. Director, OWCP, 909 F.2d 1256 (9th Cir. 1990), cert. denied, 498 U.S. 1073 (1991). The Board affirmed, however, on the rationale that respondent's uncontradicted evidence showed that there was suitable alternative employment for Harcum as of May 1988, and that Harcum had not shown that he was unable to obtain such employment. Pet. App. 31a- 33a. The Board also ruled that a statement by respondent to Harcum that it would determine whether it had a light-duty position available for him, and its subsequent hiring of a vocational consultant to assist Harcum in securing alternative employment, did not affect his obligation to show inability to find other employment, because respondent was not under any obligation to rehire Harcum or to find him an actual job offer. Id. at 32a-33a. The Board therefore concluded that Harcum was only partially disabled as of May 1988. 3. The Director filed a petition in the court of appeals for review of the Board's decision pursuant to 33 U.S.C. ---------------------------------------- Page Break ---------------------------------------- 8 921(c). Claimant Harcum did not file a petition for review. In response to an inquiry from the court of appeals (following the Director's motion to amend the case caption and respondent's statement that it did not object), Harcum stated that he had not appealed, but that the Director could pursue the case as she chose. See Attachments A and B to Respondent's Answer to Petitioner's Petition for Rehearing. The court of appeals granted the Director's motion and amended the caption to show Harcum as a "claimant." The Director contended on judicial review that the Board usurped the ALJ's fact-finding role with regard to its holding that respondent had established that there was suitable alternative employment for Harcum. The Director also argued that, even if respondent had made a showing of suitable alternative employment, Harcum had legitimately relied on respondent's vocational rehabilitation program, rather than independently seeking work, during the period in question. Thus, the Director argued that the Board's decision erroneously denied Harcum total disability benefits for the period between May 1988 and February 1989. Pet. App. 2a. The court of appeals raised, sua sponte, the question of the Director's standing to appeal. It concluded that the Director did not have standing to petition for review of the Board's ruling with regard to the degree of Harcum's disability. Pet. App. 9a n.1, 13a-14a. The court reasoned that 33 U.S.C. 921(c), which permits "[a]ny person adversely affected or aggrieved by a final order of the Board" to obtain judicial review of that order, "codifies the constitutional requirement that limits standing to those persons who can allege `that they personally have suffered or imminently will suffer an injury.'" Pet. App. 9a n.1 (quoting E. Chemerinsky, Federal Jurisdiction 2.3.2, at 52 (1989)). In the court's view, the Director ---------------------------------------- Page Break ---------------------------------------- 9 suffers an injury only when a Board decision "alter[s] the Director's ability to carry out his or her responsibilities under the LHWCA or to protect the fiscal integrity of the special fund." Pet App. 14a. In holding that the Director lacks standing, the court of appeals relied on Director, OWCP v. Donzi Marine, Inc., 586 F.2d 377 (5th Cir. 1978). Pet. App. 10a-12a. The court explained that in Donzi Marine, the Fifth Circuit held that the Director "would have standing only if an interest of the Director arising from his or her specifically delegated responsibilities was adversely affected by the Board's decision." Id. at lOa. The court indicated that, under the Donzi Marine rationale, the Director "may redress Board decisions that adversely affect the Director's legitimate administrative interests. * * * For example, if a Board decision substantially augmented the nature of the administrative duties delegated to the Director, increased the Director's necessary expenditure of administrative resources, or created confusion as to how the Director was to carry out specific functions, the Director's responsibilities under the LHWCA would be bound up sufficiently with the merits of the appeal to evidence a cognizable administrative injury." Id. at 1 la, citing Donzi Marine, 586 F.2d at 381-382. The court of appeals noted that it had adopted the logic of Donzi Marine in Director, OWCP v. Newport News Shipbuilding & Dry Dock Co. (Langley), 676 F.2d 110 (4th Cir. 1982), where it had questioned whether "the Board's decision sufficiently implicated an admini- strative or economic interest of the Director so as to give rise to a redressable injury." Pet. App. 13a. The court treated its decision in Langley as holding that the Director had standing because of his interest in ---------------------------------------- Page Break ---------------------------------------- 10 protecting the fiscal integrity of the special fund. Ibid., citing 676 F.2d at 114.4 The court concluded that the Director had standing to seek review of the portions of the Board's decision that would result in increased payments from the special fund administered by the Director (see note 3, supra), but did not have standing to appeal the issue of the degree of the claimant's disability during the period in question. The court reasoned that although the Director contended that the Board misapprehended the LHWCA'S requirements, the Board's conclusion as to when the claimant's disability became partial neither altered the Director's ability to carry out her responsibilities under the LHWCA nor affected the fiscal integrity of the special fund. Pet. App. 13a-14a.5 SUMMARY OF ARGUMENT The standing of the Director of the Office of Workers' Compensation Programs to seek judicial review under 33 U.S.C. 921(c), as a person "adversely affected or aggrieved" by a final order of the Benefits Review Board (Board) in compensation claim cases under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq. (LHWCA), is not limited to issues that directly affect the Director's pecuniary interest or ___________________(footnotes) 4 The court below also noted its own prior holding that the Director is not a proper respondent to a petition for review under 33 U.S.C. 921(c). Pet. App. 12a n.2 (citing I.T.O. Corp. v. Benefits Review Bd., 563 F.2d 646, 648 (4th Cir. 1977) (en bane), reinstating in pertinent part 542 F.2d 903 (1976), vacated and remanded, 433 U.S. 904 (1977)). But see note 9, infra (other court of appeals holdings that Director is proper respondent). 5 The court denied the Director's petition for rehearing and suggestion of rehearing en bane on the standing issue. Two judges voted to rehear the case en bane. Pet. App. 25a-26a. ---------------------------------------- Page Break ---------------------------------------- 11 disrupt a specific administrative function. Through the LHWCA, Congress conferred broad administrative and enforcement responsibilities on the Director, which give the Director a significant stake in the correct interpretation of the Act and its consistent application. The elimination of uncertainties and inconsistencies in the Act's implementation is important to the overall efficiency of' the administrative claims process. It enhances the Director's ability to fulfill her responsibilities to ensure that the Act achieves its social welfare goals. Congress also imposed on the Director specific legal duties to participate directly in the claim adjudication process and to assist claimants, thereby vesting the Director with legally cognizable interests with regard to the correctness of claim determinations. The history of the LHWCA (including the Black Lung Benefits Act, in which Congress generally incorporated the LHWCA procedures) confirms that Congress intended for the Director to have standing to obtain judicial review of any allegedly erroneous Board determinations of claims. ARGUMENT THE STANDING OF THE DIRECTOR OF THE OFFICE OF WORKERS' COMPENSATION PROGRAMS TO PETITION FOR JUDICIAL REVIEW OF DECISIONS BY THE BENEFITS REVIEW BOARD IS NOT LIMITED TO DECISIONS THAT AFFECT THE DIRECTOR'S PECUNIARY INTEREST OR DISRUPT HER PERFORMANCE OF SPECIFIC ADMINISTRATIVE FUNCTIONS The Constitution of the United States limits the jurisdiction of federal courts to "Cases" and "Contro- versies." Art. III, 2. An essential element of the case- -------------------------------------- Page Break ---------------------------------------- 12 or-controversy requirement of Article III is standing. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992). The standing doctrine ensures that "questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U. S. 464,472 (1982); see also Lujan v. Defenders of Wildlife, 112 S. Ct. at 2136. The question whether a person has standing to sue has traditionally been framed as "[w]hether a party has a sufficient stake in an otherwise justifiable controversy to obtain judicial resolution of that controversy." Sierra Club v. Morton, 405 U.S. 727, 731 (1972). This require- ment ensures that "the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." Id. at 732 (quoting Flast v. Cohen, 392 U.S. 83, 101 (1968)). Although Congress "may not confer jurisdiction on Art. III federal courts to render advisory opinions, * * * or to entertain `friendly' suits, * * * or to resolve `political questions,* * * because suits of this character are inconsistent with the judicial function under Art. III," Congress may create legally protected interests not present at common law, which in turn give rise to standing. Sierra Club v. Morton, 405 U.S. at 732 n.3. "The actual or threatened injury required by Art. III may exist solely by virtue of `statutes creating legal rights, the invasion of which creates standing.'" Warth v. Seldin, 422 U.S. 490, 500 (1975) (quoting Linda R.S.V. Richard D., 410 U.S. 614, 617 n.3 (1973), and citing Sierra Club v. Morton, 405 U.S. at 732)). Moreover, "the question whether the litigant is a `proper party to request an adjudication of a particular issue,' * * * is ---------------------------------------- Page Break ---------------------------------------- 13 one within the power of Congress to determine." Id. at 732 n.3 (quoting Flast v. Cohen, .392 U.S. at 100). A party asserting standing must establish (1) that she suffered a concrete and actual invasion of a legally protected right (an "injury in fact"), (2) that there is a causal connection between the injury and the conduct complained of, and (3) that it is likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 112 S. Ct. at 2136. The instant case concerns the court of appeals' conclusion that petitioner did not establish that she suffered an injury in fact.6 Congress permits "[a]ny person adversely affected or aggrieved by a final order of the Board [to] obtain a review of that order in the United States court of appeals." 33 U.S.C. 921(c). As the court of appeals noted, Section 21(c) of the Longshore and Harbor Workers' Compensation Act thereby codifies, in effect, the Article 111 threshold requirement that a person have suffered an injury in fact, economic or otherwise, in order to have standing to appeal. Pet. App. 9a & n.1. Thus, the question for the Court is whether the Director has a stake in the adjudication of compensation claims under ___________________(footnotes) 6 The other two factors necessary to establish standing are present in this case. There is a causal connection between the allegedly erroneous determination of the claimant's compensation and the injury to the Director's interests under the Act (including ensuring fair compensation to claimants, payment by employers, and accurate claim adjudications). The Director's injury will be redressed by a judicial ruling correcting the erroneous compensation determination, which would yield an order that the claimant be accurately compensated through additional payments. And the compensation dispute is "otherwise justifiable" because the interests of respondent and the claimant are adverse as well. See Sierra Club v. Morton, 405 U.S. at 731. ---------------------------------------- Page Break ---------------------------------------- 14 the Act sufficient to give her standing to seek judicial review of an allegedly erroneous ruling by the Board. Congress authorized the Director to participate in appeals of Board decisions to the courts of appeals under 33 U.S.C. 921(c), by providing that the Secretary shall appoint attorneys to represent him in "any court proceedings under section 921." 33 U.S.C. 921a. Congress did not indicate an intent to limit such participation only to issues that directly affect the Secretary's pecuniary interest or disrupt a specific administrative function, as the court of appeals held. Rather, through the Act, Congress imposed a variety of legal duties on the Director that give her a significant stake in the outcome of claim adjudications and vest her with standing to seek review of erroneous rulings in the adjudication process. A. The Text And Structure Of The Longshore And Harbor Workers' Compensation Act Indicate That Congress Gave The Director A Slake In Claim Adjudications And Vested Her With Standing To Obtain Judicial Review Of Erroneous Benefits Review Board Rulings 1. The Act Confers Broad Administrative And Enforcement Duties On The Director In concluding that the Director did not establish an "injury in fact" with regard to her appeal of the partial disability issue (Pet. App. 14a), the court of appeals failed to recognize that the Director participates in this litigation "not as a private individual in any sense, but as the authorized representative of the Department of Labor" who is entrusted with responsibility for the administration of the LHWCA. Director, OWCP v. ---------------------------------------- Page Break ---------------------------------------- 15 Eastern Coal Corp., 561 F.2d 632, 646 (6th Cir. 1977). The Director's interest is analogous not to that of private parties, but rather to that of other government officials carrying out their public duties under particular statutes. See, e.g., United States ex rel. Chapman v. Federal Power Comm'n, 345 U.S. 153, 155- 156 (1953); SEC v. United States Realty & Improvement Co., 310 U.S. 434,460 (1940); Coleman v. Miller, 307 U.S. 433, 441-442 (1939); In re Dehs, 158 U.S. 564, 584-586 (1895); United States v. Federal Maritime Comm'n, 694 F.2d 793, 800-802 (D.C. Cir. 1982); United States v. Federal Maritime Comm'n, 655 F.2d 247, 251-252 (D.C. Cir. 1980); cf. Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982) (State has parens patriae standing based on the health and well being of its residents in general). Congress conferred on the Director the broad responsibility of administering the Act, including the authority to make expenditures, appoint personnel, and issue any necessary rules and regulations. 33 U.S.C. 939(a).7 Congress also conferred enforcement authority ___________________(footnotes) 7 The Secretary promulgated regulations that interpret the Act as granting the Director standing to participate at all stages of the claim adjudication process, including appeals from the Board to the court of appeals. The Director, through the Solicitor of Labor or his designee, may participate in ALJ hearings as an "interested party." 20 C.F.R. 702.333(b). The Director may appeal to the Board as a "party in interest" from ALJ decisions or orders with respect to claims for compensation or benefits arising under the Act. See 33 U.S.C. 921(b)(3); 20 C.F.R. 801.102, 802.201. The terms "party" and "party in interest" are defined to mean "the Secretary or his designee and any person or business entity directly affected by the decision or order from which an appeal to the Board is taken." 20 C.F.R. 801.2 (a)(10); see also 20 C.F.R. 802.201(a)(l) (specifying that "[t]he Director, OWCP, when acting as a representative of the Special Fund * * * or, when appealing ---------------------------------------- Page Break ---------------------------------------- 16 on the Director, including authority for district directors to bring actions in district court to enforce compensation awards. 33 U.S.C. 921(d). The Director has been recognized to be the policymaking authority whose views on questions of statutory and regulatory interpretation are entitled to deference from the courts. See Director, OWCP v. General Dynamics Corp., 982 F.2d 790, 795 (2d Cir. 1992); Zapata Haynie Corp. v. Barnard, 933 F.2d 256, 258 (4th Cir. 1991); Newport News Shipbuilding & Dry Dock Co. v. Howard, 904 F.2d 206, 208 (4th Cir. 1990); Boudreaux v. American Workover, Inc., 680 F.2d 1034, 1046 (5th Cir. 1982) (en bane), cert. denied, 459 U.S. 1170 (1983); see also Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n.18 (1980) (Board is not a policymaking agency and its interpretations are not entitled to special deference from the courts);g cf. Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 159-160 (1987) (Director's construction of analogous Black Lung Benefits Act (BLBA), 30 U.S.C. 901 et seq., is entitled to deference); Martin v. OSHRC, ___________________(footnotes) a decision or order which affects the administration of one of the Acts, shall be considered a party adversely affected"). The regulations further provide that a "party adversely affected or aggrieved" by a Board decision may seek judicial review in the court of appeals. 20 C.F.R. 802.410(a). The term "party adversely affected or aggrieved" includes the Director when the Board's decision is adverse to her position (cf. 20 C.F.R. 802.201(a)(l)), and indeed the regulations specifically provide that the Director, as the designated official "responsible for the administration and enforcement" of the Act, "shall be deemed to be the proper party on behalf of the Secretary of Labor in all review proceedings" in the courts of appeals. 20 C.F.R. 802.410(b). 8 But see Sea-Land Serv., Inc. v. Rock, 953 F.2d 56, 59 (3d Cir. 1992); American Ship Bldg. Co. v. Director, OWCP, 865 F.2d 727, 730 (6th Cir. 1989) (neither Board nor Director is entitled to special deference). ---------------------------------------- Page Break ---------------------------------------- 17 499 U.S. 144, 154 (1991) (deference should be given to Secretary's interpretation of regulation promulgated under Occupational Safety and Health Act, rather than to interpretation by Occupational Safety and Health Review Commission). By charging the Director with the responsibility for administering and enforcing the compensation system, Congress gave the Director a material interest in ensuring that the Act is construed and applied in a manner consistent with Congress's intent. In creating the LHWCA benefits scheme, Congress did far more than provide for adjudication and vindication of private claims. Congress established the Act to serve as a workers' compensation system. Therefore, it has many of the elements of social insurance, and as such is designed to promote the public interest: [T]he entire [workers'] compensation system has been set up and paid for, not by the parties, but by the public. The public has ultimately borne the cost of compensation protection in the price of the product, and it has done so for the specific purpose of avoiding having the disabled victims of industry thrown on private charity or public relief. 3 A. Larson, The Law of Workmen's Compensation 82.41 (1994); 1 id. 1.20 ("like social insurance, but unlike tort, the right to benefits and amount of benefits are based largely on a social theory of providing support and preventing destitution, rather than settling accounts between two individuals according to their personal deserts or blame"); see Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 268 (1977) (LHWCA is remedial legislation that "must be liberally construed in conformance with its purpose, and in a way ---------------------------------------- Page Break ---------------------------------------- 18 which avoids harsh and incongruous results," quoting Voris v. Eikel, 346 U.S. 328,333 (1953)). Ensuring "adequate workmen's compensation benefits" under the Act is "not only essential to meeting the needs of the injured employee and his family, but, by assuring that the employer bears the cost of unsafe conditions, serves to strengthen the employer's in- centive to provide the fullest measure of on-the-job safety." H.R. Rep. No. 1441, 92d Cong., 2d Sess. 1 (1972). The Director has important administrative and enforce- ment responsibilities to further those purposes, and these responsibilities give her standing to petition for review of a Board decision. S. Rep. No. 1125, 92d Cong., 2d Sess. 15 (1972). Cf. General Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980) (EEOC vindicates public interest as well as private rights in eliminating employment discrim- ination); Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 692-693 (7th Cir. 1986) (en bane) (Secretary's interest in bringing an enforcement action under the Employee Retirement Income Security Act is based not only on the duty of protecting individual beneficiaries of specific pension programs, but also on the public interest in protecting "the very integrity, heart and lifeline of the program itself "); Donovan v. University of Texas at El Paso, 643 F.2d 1201, 1208 (5th Cir. 1981) (Secretary sues to protect public interest under Fair Labor Standards Act). The Director's statutorily created role confers on her the ability to advance in federal court the public interest in ensuring adequate compensation payments to claimants. Cf. Heckman v. United States, 224 U.S. 413, 437-444 (1912); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 473-474 (1976); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 430-431 (1976). Moreover, incorrect claim determinations by the Board ---------------------------------------- Page Break ---------------------------------------- 19 frustrate the Director's duty to administer and enforce the statutory scheme in a uniform manner. The Director is thwarted in her duty to enforce compensation orders that further the purpose of the Act to fairly compensate employees and appropriately charge employers. Erroneous Board rulings also impair the Director's efficient administration of the statutory program by undermining her authority to resolve compensation disputes without recourse to formal hearings (see 33 U.S.C. 914, 919(c); 20 C.F.R. 702.301 et seq.). To preclude the Director from obtaining judicial review of what she believes are erroneous Board rulings would reduce the incentive for employers to view the Director's informal resolution efforts as authoritative, because the employer could proceed to a higher level of review from which the Director could not appeal. Incorrect Board decisions also harm the Director's ability efficiently to administer and enforce the Act because differences between the Board and the Director are perpetuated without assurance of an avenue for judicial resolution. Such impairments of the Director's ability to fulfill her statutory duties cause her injury in fact. The Director thus stands as a "person adversely affected or aggrieved" by the Board's erroneous ruling in this case, who has standing to petition for judicial review under 33 U.S.C. 921(c). See Shahady v. Atlas Tile & Marble Co., 673 F.2d 479, 483 (D.C. Cir. 1982) (Director's standing to petition under 33 U.S.C. 921(c) arises out of her "general supervisory and enforcement interest" under the LHWCA); Director, OWCP v. National Van Lines, Inc., 613 F.2d 972, 977 n.6 (D.C. Cir. 1979), cert. denied, 448 U.S. 907 (1980); Director, OWCP v. Bethlehem Steel Corp., 949 F.2d 185, 186-187 (5th Cir. 1991) (Director has standing, based in part on substantial responsibilities of ---------------------------------------- Page Break ---------------------------------------- 20 her office and need for national uniformity, to challenge Board ruling as to when total disability becomes partial disability); Curtis v. Schlumberger Offshore Serv., Inc., 849 F.2d 805, 807 n.4 (3d Cir. 1988) ("the Director's supervisory and enforcement interest should be sufficient to entitle him to participate as a party; his responsibility to oversee the development of a consistent body of law in this area should not depend upon the vagaries of the parties' private, albeit adversary, interests"); cf. Director, WCP v. Rochester & Pittsburgh Coal Co., 678 F.2d 17, 18 n.2 (3d Cir. 1982) (Director has standing under analogous BLBA statutory scheme to petition for review of Board decision based solely on "his responsibility to ensure the proper enforcement and lawful administration of the black lung benefits program"); Eastern Coal Corp., 561 F.2d at 645 (Director is "adversely affected or aggrieved" under 33 U.S.C. 921(c) "in that * * * he is seeking what he deems to be lawful administration of the [BLBA] and assisting claimants * * * whose awards of benefits have been vacated by the Benefits Review Board, as well as defending the regulations he is charged with administering'').9 Moreover, limiting the Director's ___________________(footnotes) 9 In Director, OWCP v. Perini N. River Assocs., 459 U.S. 297, 302-305 (1983), this Court noted that the courts of appeals had rejected our standing argument in Fusco v. Perini N. River Assocs., 601 F.2d 659 (2d Cir.), vacated and remanded on other grounds, 444 U.S. 1028 (1979), reinstated on remand, 622 F.2d 1111, 1113 (1980), cert. denied, 449 U.S. 1131 (1981); Director, OWCP v. Donzi Marine, Inc., 586 F.2d 377, 382 (5th Cir. 1978); and I.T.O. Corp. v. Benefits Review Bd., 563 F.2d 646, 648 (4th Cir. 1977) (en bane), reinstating in pertinent part, 542 F.2d 903 (1976) (en bane), vacated and remanded, 433 U.S. 904 (1977). The Court observed that those courts had relied on statutory grounds and did not address the Article III standing issue. 459 U.S. at 302 n.9. In ---------------------------------------- Page Break ---------------------------------------- 21 standing, as the court of appeals did, to only issues that directly affect her pecuniary interest or disrupt a specific administrative function would lead to case-by- case adjudication regarding what constitutes injury to a specific administrative function, l0 and inject additional ___________________(footnotes) Perini, the Court concluded that "the Director has statutory authority to seek review in this Court," but that the Director "may not have Art, III standing to argue the merits of [the claimant's] claim because the Director's presence does not guarantee the existence of a justifiable controversy with respect to the merits of [the claimant's ] coverage under the LHWCA." 459 U.S. at 304. The Court did not resolve the issue, however, because the claimant was a party respondent under the rules of this Court, and had standing to urge the Court's consideration of the merits of the court of appeals' decision. Id. at 304-305. With regard to the Director's standing as a respondent in the court of appeals, the Fourth Circuit held that the Director is not a proper respondent (see note 4, supra), but other courts of appeals have disagreed and held that the Director is properly a respondent to a petition for review of a Board decision. Goldsmith v. Director, OWCP, 838 F.2d 1.079, 1080 (9th Cir. 1988); Thornton v. Brown & Root, Inc., 707 F.2d 149, 154 (5th Cir. 1983), cert. denied, 464 U.S. 1052 (1984); lngalls Shipbuilding Div., Etc. v. White, 681 F.2d 275, 286-287 (5th Cir. 1982), overruled on other grounds, Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399 (5th Cir.) (en bane), cert. denied, 469 U.S. 818 (1984); Shahady v. Atlas Tile & Marble Co., 673 F.2d 479 (D.C. Cir. 1982); see also Curtis v. Schlumberger Offshore Serv., Inc., 849 F.2d 805, 807 n.4 (3d Cir. 1988) (noting strength of Shahady rationale, but reserving question). Some of the decisions upholding the Director's standing as a respondent are based on 33 U.S.C. 921(c) and some are based solely on Fed. R. App. P. 15(a), which provides that petitions for review of agency orders must name the agency as a respondent, Brown & Root, Inc., 707 F.2d at 154; Ingalls Shipbuilding, 681 F.2d at 282-284. 10 Compare the Fifth Circuit's ruling in Donzi Marine, 586 F.2d at 381-382 (although resolution of question whether employees of recreational boat industry are covered under LHWCA would allow ---------------------------------------- Page Break ---------------------------------------- 22 uncertainties and inefficiencies into the claim adjudi- cation process. 2. Congress Imposed Specific Duties O n The Director With Regard T o T h e Claims Adjudication Process And Assisting Disabled Employees, Which Also Give The Director Standing In addition to broad administrative and enforcement responsibilities under the Act, Congress charged the Director with certain specific legal duties that promote the public interest in achieving the Act's social welfare objectives by assisting claimants both in the adjudication process and thereafter. The Director "shall, upon request, provide persons covered by [the Act] with information and assistance relating to the [Act's] coverage and compensation and the procedures for ___________________(footnotes) Director to give more certain advice to claimants, Director's legitimate administrative interests are not adversely affected by Board's adverse legal ruling), with the Fifth Circuit's more recent decision in Bethlehem Steel Corp., 949 F.2d at 186-187 (Director's obligation to furnish information to claimants is adversely affected by Board ruling concerning when total disability becomes partial disability, when three courts of appeals had already rejected Board's position). At bottom, under the rationale of the court below, a court would be permitted to substitute its judgment for that of the Director regarding the impact that a Board decision has on the administration of the LHWCA, thereby leading to great unpredictability. For example, comparison of the Fifth Circuit's ruling in Bethlehem Steel Corp., 949 F.2d at 186-187, and the court of appeals ruling in this case reveals a striking inconsistency. The Fifth Circuit held that the Director has standing to challenge a Board ruling as to when a total disability becomes a partial disability-an issue that is, for present purposes, analytically indistinguishable from the one the Fourth Circuit held that the Director did not have standing to raise in this case. ---------------------------------------- Page Break ---------------------------------------- 23 obtaining such compensation and including assistance in processing a claim." 33 U.S.C. 939(c)(l). In addition, the Director polices the legal representation provided to claimants. The Director is responsible for maintaining a list of persons not authorized to represent claimants, which requires her to determine whether such persons have engaged in misconduct or fraud with regard to prior representations. 33 U.S.C. 931. The Director also "may, upon request, provide persons covered by [the Act] with legal assistance in processing a claim." 33 U.S. C. 939(c)(l). Congress also charged the Director with respon- sibility for protecting claimants' interests when their cases are resolved short of adjudication, e.g., when the employer pays compensation without issuance of a formal award (33 U.S.C. 914(a)), or when the employer and employee enter into a settlement. In the case of uncontroverted payments, the Director's district director may, upon his own initiative at any time, investigate the case. 33 U.S.C. 914(h)(l), 919(c). District directors also are authorized to review settlements between employers and employees to determine if they are adequate and not procured by duress. 33 U.S. C. 908(i). The Director has ongoing responsibility to disabled employees already receiving compensation as well. The Director actively supervises the medical care rendered to injured employees, requires periodic reports on such cases, and oversees the quality and appropriateness of the services and charges of medical care providers. 33 U.S.C. 907(b). The Act requires that the Director maintain a list of health care providers not authorized to render services under the LHWCA. 33 U.S.C. 907(c). The Director must provide claimants with "information on medical, manpower, and vocational rehabilitation ---------------------------------------- Page Break ---------------------------------------- 24 services. " 33 U.S.C. 939(c). Moreover, the Director must "assist such employees in obtaining the best such services available. " Ibid. The Director bears responsibility in some situations for directing vocational rehabilitation, furnishing prosthetic appliances, using specified funds to procure rehabilitation services, 33 U.S.C. 939(c)(2), as well as administering a special fund for payment of benefits in specified circumstances, including the supplementation of employers' payments to employees. 33 U.S.C. 908( f), 918(b), 944. Given her broad responsibilities under the LHWCA and the societal interests inhering in them, the Director has a material interest in the consistent and fair administration and application of the LHWCA beyond the narrow range that the court of appeals acknowledged. An erroneous denial of compensation to a claimant under- mines the Director's statutory interest in ensuring the adequacy of compensation payments to further the Act's purposes, including preventing claimants from otherwise burdening public benefit programs.11 Such a denial may also impair the Director's ability to fulfill her duties to an individual claimant with regard to informal ___________________(footnotes) 11 Indeed, Congress determined that the public interest in adequately compensating injured employees should not be defeated by employers' inducement of employees to surrender such compensation. The Act provides that "[n]o agreement by an employee to waive his right to compensation under this chapter shall be valid." 33 U.S.C. 915(b). The Act also invalidates any agreements by employees to contribute to an employer's benefit fund for purposes of providing compensation or medical services and supplies as required by the LHWCA. 33 U.S.C. 915(a). Any employer who makes such a deduction from the pay of an employee entitled to the benefits of the Act faces criminal prosecution. ibid. ---------------------------------------- Page Break ---------------------------------------- 25 resolutions, settlement, vocational rehabilitation or other services. By conferring this comprehensive range of public duties on the Director, Congress conferred standing on her to prosecute appeals from claim rulings that she believes have misinterpreted or misapplied the Act. Cf. In re Columbia Gas Systems Inc., 33 F.3d 294, 298-299 (3d Cir. 1994) (U.S. Trustee has standing in bankruptcy case due to statutorily imposed duties to protect public interest); Washington Utils. & Transp. Comm'n v. FCC, 513 F.2d 1142, 1149-1150 (9th Cir. 1975) (state agency has standing because of duty to protect telephone users); cf. FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 476- 477 (1940). By imposing on the Director a legal duty to assist claimants during the claim adjudication process, to ensure the adequacy of compensation payments, and to assist compensation recipients thereafter, Congress gave the Secretary a "sufficient stake" in the outcome of claim adjudication proceedings to press for judicial resolution of the controversy in this case. See Sierra Club v. Morton, 405 U.S. at 731; cf. Director, OWCP v. Eastern Coal Corp., 561 F.2d at 641-648 (discussing Secretary's analogous duties under Black Lung Benefits Act). B. The History Of T he Act Confirms Congress's Intention T o Confer On The Director Standing To Seek Judicial Review Of Board Rulings. The history of the LHWCA strongly supports the conclusion that the Director has standing under 33 U.S.C. 921(c) to obtain judicial review of a Board order that incorrectly rejects a compensation claim under the Act. ---------------------------------------- Page Break ---------------------------------------- 26 1. The current procedures for adjudication of compen- sation claims under the LHWCA reflect substantial modifications implemented by the 1972 amendments to the Act. See Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, Pub. L. No. 92- 576, 86 Stat. 1251. Before those amendments, OWCP deputy commissioners conducted hearings and issued compensation orders in disputed cases. Those decisions were reviewable in an injunctive action against the deputy commissioner in district court, with further review by appeal to the court of appeals under 28 U.S.C. 1291. See Kalaris v. Donovan, 697 F.2d 376,381-382 (D.C. Cir.), cert. denied, 462 U.S. 1119 (1983). The deputy commissioner was denominated as a respondent in such district court proceedings. See former Section 21(b), 44 Stat. 1436 (1927) (codified at 33 U.S.C. 921(b) (1970)). It was clear that the deputy commissioner had standing to appeal under 28 U.S.C. 1291 from a district court ruling enjoining his decision, even in the absence of an appeal by another part y. See Henderson v. Glens Falls Indem. Co., 134 F.2d 320 (5th Cir.), cert. denied, 319 U.S. 756 (1943). The 1972 Amendments transferred the authority to conduct hearings from deputy commissioners (rede- signated "district directors" by regulation, see note 2, supra) to ALJs. The Amendments also replaced district court injunctive actions with appeals to the newly created Benefits Review Board and subjected Board rulings to judicial review in the courts of appeals under Section 21(c) of the Act, 33 U.S.C. 921(c). The Board thus "performs a review function [under the new regime] identical to that which the District Courts performed" before the 1972 Amendments. Kalaris v. Donovan, 697 F.2d 376, 382 (D.C. Cir.), cert. denied, 462 U.S. 1119 (1983). ---------------------------------------- Page Break ---------------------------------------- 27 Congress could hardly have intended these changes to divest the Act's administrator of her pre-1972 authority to seek review in the courts of appeals of decisions on benefits claims that are adverse to her position. Cf. Shahady, 673 F.2d at 485; Eastern Coal Corp., 561 F.2d at 649 ("[w]e do not find in the [1972 Amendments] any Congressional intention * * * to compel the Secretary or his duly designated representative to accept [Board decisions] without recourse to the courts when he conscientiously disagrees"). That result would be directly at odds with a major purpose of the 1972 Amendments, which was to augment the Director's responsibilities. See S. Rep. No. 1125, supra, at 13-14 (placing responsibility for hearings with ALJs will better enable deputy commissioners to perform their administrative responsibilities under the Act); see generally id. at 14-15 (Amendments were intended to ensure Director's active involvement at all stages of claim-processing under LHWCA). The 1972 Amendments specifically increased the Director's responsibility for providing services to employees by requiring her to provide assistance to them in processing a claim. H.R. Rep. No. 1441, supra, at 12. This amendment was intended to ensure that the "assistance be all inclusive and enable the employee to receive the maximum benefits due to him without having to rely on outside assistance other than that provided by the Secretary." Id. at 13.12 ___________________(footnotes) 12 Some courts have suggested that Congress intended to distinguish between administrative standing and judicial standing when it provided "part[ies] in interest" with a right to administrative review by the Board, 33 U.S.C. 921(b)(3), but provided "person[s] adversely affected or aggrieved" with a right to judicial review, 33 U.S.C. 921(c). See I.T.O. Corp. v. Benefits Review Board, 542 F.2d at 908; Ingalls Shipbuilding Div., Etc. v. ---------------------------------------- Page Break ---------------------------------------- 28 2. That the Director's interest in the resolution of compensation claims is sufficient to confer standing to appeal is further confirmed by the text and legislative history of the Black Lung Benefits Act (BLBA), as amended in 1978, Pub. L. No. 95-239, 7(h), 92 Stat. 99. The BLBA generally incorporates the procedures of the LHWCA. 30 U.S.C. 932(a). This Court has recognized that "[w]hen several acts of Congress are passed touching the same subject-matter, subsequent legis- lation may be considered to assist in the interpretation of prior legislation upon the same subject." Marchie Tiger v. Western/ Inv. Co., 221 U.S. 286,309 (1911); Bell v. New Jersey, 461 U.S. 773, 784 (1983). See also West Virginia Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 100-101 (1991). The BLBA explicitly provides that "[t]he Secretary shall be a party in any proceeding relative to [a] claim" ___________________(footnotes) White, 681 F.2d 275, 287 (5th Cir. 1982), overruled on other grounds by Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399 (5th Cir.) (en bane), cert. denied, 469 U.S. 818 (1984); see also White v. Ingalls Shipbuilding Div., Litton Sys., Inc., 12 Ben Rev. Bd. Serv. (MB) 905, 907 (1980). Close examination of the Act refutes that argument. The Act also employs the term "party aggrieved" when referring to administrative review proceedings. See 33 U.S.C. 921(b)(5) (any "party aggrieved" by Board decision may seek review by full Board). And the LHWCA, before the 1972 amendments, authorized "any party in interest" to seek court review of compensation orders. 33 U.S.C. 921(b) (1970). These disparate uses of the terms "party in interest" and person or party "aggrieved" weigh against the inference that Congress intended separate tests to apply to the Director's standing to obtain Board review and her standing to obtain judicial review. Moreover, the distinction between administrative and judicial standing is not supported by agency regulations, which employ the "adversely affected or aggrieved" standard in both contexts. See 20 C.F. R. 802.201(a), 802.410(a). ---------------------------------------- Page Break ---------------------------------------- 29 for black lung benefits. 30 U.S.C. 932(k). In 1977, the Senate Committee on Human Resources (the successor to the Committee on Labor and Public Welfare that drafted the 1972 Amendments to the LHWCA) explained that this provision reflects the intent that the Director have standing under both Acts: Some question has arisen as to whether the adjudication procedures applicable to black lung claims incorporating various sections of the amended Longshoremen's and Harbor Workers' Compensation Act confers standing upon the Secretary of Labor or his designee to appear, present evidence, file appeals or respond to appeals filed with respect to the litigation and appeal of claims. In establishing the Longshore Act procedures it was the intent of this Committee to afford the Secretary the right to advance his views in the formal claims litigation context whether or not the Secretary had a direct financial interest in the outcome of the case. The Secretary's interest as the officer charged with the responsibility for carrying forth the intent of Congress with respect to the Act should be deemed sufficient to confer standing on the Secretary or such designee of the Secretary who has the responsibility for the enforcement of the Act, to actively participate in the adjudication of claims before the Administrative Law Judge, Benefits Review Board, and appropriate United States Courts. S. Rep. No. 209, 95th Cong., 1st Sess. 21-22 (1977) (emphases added). The Conference Committee adopted the Senate provisions regarding the claim adjudication procedures, specifically including the provision that "made future amendments to the Longshoremen's Act procedures automatically applicable to black lung ---------------------------------------- Page Break ---------------------------------------- 30 claims." H.R. Conf. Rep, No. 864, 95th Cong., 1st Sess. 22-23 (1978); see 30 U.S.C. 932(a). This unambiguous expression of congressional intent to confer standing on the Secretary under the LHWCA, regardless of any pecuniary interest in a particular case, should be given considerable weight by this Court in deciding this case.13 See Ingalls Shipbuilding Div,, Etc. v. White, 681 F.2d 275, 286-287 & n. 10 (5th Cir. 1982) (1977 report accompanying BLBA amendments is persuasive extrinsic evidence of Congress's intent under 1972 LHWCA amendments), overruled on other grounds by Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399 (5th Cir.) (en bane), cert. denied, 469 U.S. 818 (1984). The Senate Committee's statement is of ___________________(footnotes) 13 Several courts of appeals, even before the addition of 30 U.S.C 932(k), recognized the Director's standing to petition for review of Board decisions on black lung claims. See, e.g., Krolick Contracting Corp. v. Benefits Review Bd., 558 F.2d 685,689-690 (3d Cir. 1977); Director, OWCP v. National Mines Corp., 554 F.2d 1267, 1271-1272 (4th Cir. 1977); Director, OWCP v. Alabama By- Products Corp., 560 F.2d 710, 717 (5th Cir. 1977); Eastern Coal Corp., 561 F.2d at 646; Director, OWCP v. Peabody Coal Co., 554 F.2d 310, 336-338 (7th Cir. 1977). Those decisions gave at least some weight to the Director's interest in obtaining reimbursement from the mine operators for benefits paid from the Black Lung Disability Trust Fund, although some of the decisions also predicated standing on the Director's other administrative functions under the BLBA. See Eastern Coal Corp., 561 F.2d at 643-645; Alabama By-Products Corp., 560 F.2d at 717. As noted, the Third Circuit has since accorded the Director standing, in a case in which the Director lacked such a pecuniary interest, solely because of "his responsibility to ensure the proper enforcement and lawful administration of the black lung benefits program." Director, OWCP v. Rochester & Pittsburgh Coal Co., 678 F.2d 17, 18 n.2. (1982). ---------------------------------------- Page Break ---------------------------------------- 31 special significance in the circumstances at issue in this case because it is not an after-the-fact charac- terization of a prior statute; rather it is a statement about Congress's intent with regard to the manner in which a claims adjudication process is to function at the time Congress reexamined that process with regard to another benefits program that is subject to the same process. The same rules of practice and procedure before the Board (20 C.F.R. 802.101 et seq.) apply to claim adjudications under the LHWCA and the BLBA. To recognize the Director's standing under one Act but not the other would be inconsistent with congressional intent and would introduce unwarranted discrepancies into the implementation of the statutory mandates, A straightforward, realistic approach to the question of the Director's standing, in light of the full measure of the Director's statutory responsibilities and in accord with the Constitution, permits the Director to petition for review of what she concludes, in the exercise of her expert judgment, to be an erroneous Board ruling in a compensation award controversy. ---------------------------------------- Page Break ---------------------------------------- 32 CONCLUSION The judgment of the court of appeals Respectfully submitted. should be reversed. DREW S. DAYS, III Solicitor General THOMAS S. WILLIAMS, JR. Solicitor of Labor LAWRENCE G. WALLACE Deputy Solicitor General ALLEN H. FELDMAN Associate Solicitor BETH S. BRINKMANN Assistant to the Solicitor General STEVEN J. MANDEL Deputy Associate Solicitor MARK S. FLYNN Senior Appellate Attorney Department of Labor NOVEMBER 1994