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

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     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)

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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

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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

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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)

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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.

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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.

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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

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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 ).

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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.

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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

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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

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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

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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

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 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.

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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) .

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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-

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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

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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.

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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

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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

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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

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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

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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)
    
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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.

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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)

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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 

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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

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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

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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

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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)

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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

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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

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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-

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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

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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.

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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-

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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

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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.

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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.

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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.

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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).
 
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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.

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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.

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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).

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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.

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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

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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

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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.

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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.

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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

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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).

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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

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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).

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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

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         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)

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 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,

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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

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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.

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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

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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

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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
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 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

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 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.

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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.

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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

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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.

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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

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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.

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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

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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).

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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

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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

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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.

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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.

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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.

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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

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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.

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       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.

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          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

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     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).

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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,

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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

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          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.

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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-

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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

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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.

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 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

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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.

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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.

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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.

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          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).

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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).

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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.

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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.
  
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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).

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 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
                
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 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

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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).

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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).

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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

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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

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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,

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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).

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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, "

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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.

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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.

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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.

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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.

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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
         
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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
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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.

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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.

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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

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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

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 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

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 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.

      ****
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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.      

*****

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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)

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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)

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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

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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

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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

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       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)

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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

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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.

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 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

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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

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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.

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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

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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

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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.

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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

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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.

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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.

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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

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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).

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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

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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

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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

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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

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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

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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.

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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

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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.

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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.
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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).

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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.

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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).

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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
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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).

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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.

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        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