OCTOBER TERM, 1994
Syllabus
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, DEPARTMENT
OF LABOR
v. NEWPORT NEWS SHIPBUILDING & DRY DOCK CO. ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 93-1783. Argued January 9, 1995-Decided March 21,1995
The Director of the Labor Department's Office of Workers'
Compensation Programs petitioned the Court of Appeals for review of
a Benefits Review Board decision that,
inter alia, denied
Jackie Harcum fulldisability compensation under the Longshore and
Harbor Workers' Compensation Act (LHWCA). Harcum did not seek
review and, while not opposing the Director's pursuit of the
action, expressly declined to intervene on his own behalf in
response to an inquiry by the court. Acting
sua sponte, the
court concluded that the Director lacked standing to appeal the
benefits denial because she was not "adversely affected or
aggrieved" thereby within the meaning of § 21(c) of the Act, 33 U.
S. C. § 921(c).
Held: The Director is not "adversely affected or
aggrieved" under § 921(c). pp. 125-136.
(a) Section 921(c) does not apply to an agency acting as a
regulator or administrator under the statute. This is strongly
suggested by the fact that, despite long use of the phrase
"adversely affected or aggrieved" as a term of art to designate
those who have standing to appeal a federal agency decision, no
case has held that an agency, without benefit of specific
authorization to appeal, falls within that designation; by the fact
that the United States Code's general judicial review provision, 5
U. S. C. § 702, which employs the phrase "adversely affected or
aggrieved," specifically excludes agencies from the category of
persons covered, § 551(2); and by the clear evidence in the Code
that when an agency in its governmental capacity
is meant to
have standing, Congress says so, see,
e. g., 29 U. S.
C. §§ 660(a) and (b). While the text of a particular statute could
make clear that "adversely affected or aggrieved" is being used in
a peculiar sense, the Director points to no such text in the LHWCA.
Pp. 125-130.
(b) Neither of the categories of interest asserted by the
Director demonstrates that "adversely affected or aggrieved" in
this statute must have an extraordinary meaning. The Director's
interest in ensuring adequate payments to claimants is
insufficient. Agencies do not automatically have standing to sue
for actions that frustrate the purposes
123
of their statutes; absent some clear and distinctive
responsibility conferred upon the agency, an "adversely affected or
aggrieved" judicial review provision leaves private interests (even
those favored by public policy) to be vindicated by private
parties.
Heckman v.
United States, 224 U. S. 413;
Moe
v.
Confederated Salish and Kootenai Tribes of Flathead
Reservation, 425
U. S. 463;
Pasadena City Ed. of Ed. v.
Spangler,
427 U. S. 424;
and
General Telephone Co. of Northwest v.
EEOC, 446
U. S. 318, distinguished. Also insufficient is the Director's
asserted interest in fulfilling important administrative and
enforcement responsibilities. She fails to identify any specific
statutory duties that an erroneous Board ruling interferes with,
reciting instead conjectural harms to abstract and remote concerns.
Pp. 130-136.
8 F.3d
175, affirmed.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, KENNEDY, SOUTER, THOMAS,
and BREYER, JJ., joined. GINSBURG, J., filed an opinion concurring
in the judgment,
post, p. 136.
Beth S. Brinkmann argued the cause for petitioner. With her on
the briefs were Solicitor General Days, Deputy Solicitor General
Wallace, Allen H. Feldman, Steven
J. Mandel, and Mark S.
Flynn.
Lawrence P. Postol argued the cause for respondents.
With him on the brief was
James M. Mesnard. *
JUSTICE SCALIA delivered the opinion of the Court.
The question before us in this case is whether the Director of
the Office of Workers' Compensation Programs in the United States
Department of Labor has standing under § 21(c) of the Longshore and
Harbor Workers' Compensation Act (LHWCA or Act), 44 Stat. 1424, as
amended, 33 U. S. C. § 901
et seq., to seek judicial review
of decisions by the Benefits Review Board that in the Director's
view deny claimants compensation to which they are entitled.
*Charles T. Carroll, Jr., Thomas D. Wilcox, and
Dennis J. Lindsay filed a brief for the
National Association of Waterfront Employers et al. as
amici
curiae urging affirmance.
124
I
On October 24, 1984, Jackie Harcum, an employee of respondent
Newport News Shipbuilding and Dry Dock Co., was working in the
bilge of a steam barge when a piece of metal grating fell and
struck him in the lower back. His injury required surgery to remove
a herniated disc, and caused prolonged disability. Respondent paid
Harcum benefits under the LHWCA until he returned to light-duty
work in April 1987. In November 1987, Harcum returned to his
regular department under medical restrictions. He proved unable to
perform essential tasks, however, and the company terminated his
employment in May 1988. Harcum ultimately found work elsewhere, and
started his new job in February 1989.
Harcum filed a claim for further benefits under the LHWCA.
Respondent contested the claim, and the dispute was referred to an
Administrative Law Judge (ALJ). One of the issues was whether
Harcum was entitled to benefits for total disability, or instead
only for partial disability, from the date he stopped work for
respondent until he began his new job. "Disability" under the LHWCA
means "incapacity because of 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).
After a hearing on October 20, 1989, the ALJ determined that
Harcum was partially, rather than totally, disabled when he left
respondent's employ, and that he was therefore owed only
partial-disability benefits for the interval of his unemployment.
On appeal, the Benefits Review Board affirmed the ALJ's judgment,
and also ruled that under 33 U. S. C. § 908(f), the company was
entitled to cease payments to Harcum after 104 weeks, after which
time the LHWCA special fund would be liable for disbursements
pursuant to § 944.
The Director petitioned the United States Court of Appeals for
the Fourth Circuit for review of both aspects of the Board's
ruling. Harcum did not seek review and, while not
125
opposing the Director's pursuit of the action, expressly
declined to intervene on his own behalf in response to an inquiry
by the Court of Appeals. The Court of Appeals
sua sponte
raised the question whether the Director had standing to appeal the
Board's order.
8 F.3d
175 (1993). It concluded that she did not have standing with
regard to that aspect of the order denying Harcum's claim for
full-disability compensation, since she was not "adversely affected
or aggrieved" by that decision within the meaning of § 21(c) of the
Act, 33 U. S. C. § 921(c).1 We granted the Director's petition for
certiorari. 512 U. S. 1287 (1994).
II
The LHWCA provides for compensation of workers injured or killed
while employed on the navigable waters or adjoining,
shipping-related land areas of the United States. 33 U. S. C. §
903. With the exception of those duties imposed by §§ 919(d),
921(b), and 941, the Secretary of Labor has delegated all
responsibilities of the Department with respect to administration
of the LHWCA to the Director of the Office of Workers' Compensation
Programs (OWCP). 20 CFR §§ 701.201 and 701.202 (1994); 52 Fed. Reg.
48466 (1987). For ease of exposition, the Director will hereinafter
be referred to as the statutory recipient of those
responsibilities.
A worker seeking compensation under the Act must file a claim
with an OWCP district director. 33 U. S. C. § 919(a); 20 CFR §§
701.301(a) and 702.105 (1994). If the district director cannot
resolve the claim informally, 20 CFR § 702.311, it is referred to
an ALJ authorized to issue a compensation order, § 702.316; 33 U.
S. C. § 919(d). The ALJ's decision is reviewable by the Benefits
Review Board, whose members are appointed by the Secretary. §
921(b)(1). The Board's
1 The court found that, as administrator of the § 944 special
fund, the Director did have standing to appeal the Board's decision
to grant respondent relief under § 908(f). That ruling is not
before us, and we express no view upon it.
126
decision is in turn appealable to a United States court of
appeals, at the instance of "[a]ny person adversely affected or
aggrieved by" the Board's order. § 921(c).
With regard to claims that proceed to ALJ hearings, the Act does
not by its terms make the Director a party to the proceedings, or
grant her authority to prosecute appeals to the Board, or thence to
the federal courts of appeals. The Director argues that she
nonetheless had standing to petition the Fourth Circuit for review
of the Board's order, because she is a "person adversely affected
or aggrieved" under § 921(c). Specifically, she contends the
Board's decision injures her because it impairs her ability to
achieve the Act's purposes and to perform the administrative duties
the Act prescribes.
The phrase "person adversely affected or aggrieved" is a term of
art used in many statutes to designate those who have standing to
challenge or appeal an agency decision, within the agency or before
the courts. See,
e. g., federal Communications Act of
1934,47 U. S. C. §402(b)(6); Occupational Safety and Health Act of
1970, 29 U. S. C. § 660(a); Federal Mine Safety and Health Act of
1977, 30 U. S. C. §816. The terms "adversely affected" and
"aggrieved," alone or in combination, have a long history in
federal administrative law, dating back at least to the federal
Communications Act of 1934, §402(b)(2) (codified, as amended, 47 U.
S. C. § 402(b)(6)). They were already familiar terms in 1946, when
they were embodied within the judicial review provision of the
Administrative Procedure Act (APA), 5 U. S. C. § 702, which
entitles "[a] person ... adversely affected or aggrieved by agency
action within the meaning of a relevant statute" to judicial
review. In that provision, the qualification "within the meaning of
a relevant statute" is not an addition to what "adversely affected
or aggrieved" alone conveys; but is rather an acknowledgment of the
fact that what
constitutes adverse effect or aggrievement
varies from statute to statute. As the United States Department of
Justice, At-
127
torney General's Manual on the Administrative Procedure Act
(1947) put it, "The determination of who is 'adversely affected or
aggrieved ... within the meaning of any relevant statute' has 'been
marked out largely by the gradual judicial process of inclusion and
exclusion, aided at times by the courts' judgment as to the
probable legislative intent derived from the spirit of the
statutory scheme.'"
Id., at 96 (citation omitted). We have
thus interpreted § 702 as requiring a litigant to show, at the
outset of the case, that he is injured in fact by agency action and
that the interest he seeks to vindicate is arguably within the
"zone of interests to be protected or regulated by the statute" in
question.
Association of Data Processing Service Organizations,
Inc. v.
Camp, 397 U. S. 150, 153 (1970); see also
Clarke v.
Securities Industry Assn., 479 U. S. 388, 395-396
(1987).
Given the long lineage of the text in question, it is
significant that counsel have cited to us no case, neither in this
Court nor in the courts of appeals, neither under the AP A nor
under individual statutory-review provisions such as the present
one, which holds that, without benefit of specific authorization to
appeal, an agency, in its regulatory or policymaking capacity, is
"adversely affected" or "aggrieved." Cf.
Director, Office of
Workers' Compensation Programs v.
Perini North River
Associates, 459
U. S. 297, 302-305 (1983) (noting the issue of whether the
Director has standing under § 921(c), but finding it unnecessary to
reach the question).2
2 In addition to not reaching the § 921 (c) question,
Perini also took as a given (because it had been conceded
below) the answer to another question: whether the Director (rather
than the Benefits Review Board) is the proper party respondent to
an appeal from the Board's determination. See 459 U. S., at 304, n.
13. Obviously, an agency's entitlement to party respondent status
does not necessarily imply that agency's standing to appeal: The
National Labor Relations Board, for example, is always the party
respondent to an employer or employee appeal, but cannot initiate
an appeal from its own determination. 29 U. S. C. §§ 152(1),
160(f). Indeed, it can be argued, as
amici in this case have
done, that if the Director
is the proper party respondent in
the court of appeals (as her
128
There are cases in which an agency has been held to be adversely
affected or aggrieved in what might be called its nongovernmental
capacity-that is, in its capacity as a member of the market group
that the statute was meant to protect. For example, in
United
States v.
ICC, 337 U. S. 426 (1949), we
held that the United States had standing to sue the Interstate
Commerce Commission (ICC) in federal court to overturn a Commission
order that denied the Government recovery of damages for an
allegedly unlawful railroad rate. The Government, we said, "is not
less entitled than any other shipper to invoke administrative and
judicial protection."
Id., at 430.3 But the status of the
Government as a statutory beneficiary or market participant must be
sharply distinguished from the status of the Government as
regulator or administrator.
The latter status would be at issue if-to use an example that
continues the ICC analogy-the Environmental Protec-
regulations assert, see 20 CFR § 802.410 (1994)), in initiating
an appeal she would end up on both sides of the case. See Brieffor
National Association of Waterfront Employers et al. as
Amici
Curiae 17, n. 14. Our opinion today intimates no view on the
party-respondent question.
3 United States v.
ICC accorded the United
States standing despite the facts that (1) the Interstate Commerce
Act contained no specific judicial review provision, and (2) the AP
A's general judicial review provision ("person adversely affected
or aggrieved") excludes agencies from the definition of "person."
See
infra, at 129. It would thus appear that an agency suing
in what might be termed a nongovernmental capacity escapes that
definitional limitation. The LHWCA likewise contains a definition
of "person" that does not specifically include agencies. 33 U. S.
C. § 902(1). We chose not to rely upon that provision in this
opinion because it seemed more likely to sweep in the question of
the Director's authority to appeal Board rulings that are adverse
to the § 944 special fund, which deserves separate attention. It is
possible that the Director's status as manager of the privately
financed fund removes her from the "person" limitation, just as it
may remove her from the more general limitation that agencies
qua agencies are not "adversely affected or aggrieved." We
leave those issues to be resolved in a case where the Director's
relationship to the fund is immediately before us.
129
tion Agency sued to overturn an ICC order establishing high
tariffs for the transportation of recyclable materials. Cf.
United States v.
Students Challenging Regulatory Agency
Procedures (SCRAP), 412 U. S. 669 (1973). Or
if the Department of Transportation, to further a policy of
encouraging so-called "telecommuting" in order to reduce traffic
congestion, sued as a "party aggrieved" under 28 U. S. C. § 2344,
to reverse the Federal Communications Commission's approval of rate
increases on second phone lines used for modems. We are aware of no
case in which such a "policy interest" by an agency has sufficed to
confer standing under an "adversely affected or aggrieved" statute
or any other general review provision. To acknowledge the general
adequacy of such an interest would put the federal courts into the
regular business of deciding intrabranch and intraagency policy
disputes-a role that would be most inappropriate.
That an agency in its governmental capacity is not "adversely
affected or aggrieved" is strongly suggested, as well, by two
aspects of the United States Code: First, the fact that the Code's
general judicial review provision, contained in the AP A, does not
include agencies within the category of "person adversely affected
or aggrieved." See 5 U. S. C. § 551(2) (excepting agencies from the
definition of "person"). Since, as we suggested in
United
States v.
ICC, the APA provision reflects "the general
legislative pattern of administrative and judicial relationships,"
337 U. S., at 433-434, it indicates that even under specific
"adversely affected or aggrieved" statutes (there were a number
extant when the APA was adopted) agencies as such normally do not
have standing. And second, the United States Code displays
throughout that when an agency in its governmental capacity
is meant to have standing, Congress says so. The LHWCA's
silence regarding the Secretary's ability to take an appeal is
significant when laid beside other provisions of law. See,
e. g., Black Lung Benefits Act (BLBA), 30 U. S. C. §
932(k) ("The Secretary shall be a party in any proceeding
130
relative to [a] claim for benefits"); Title VII of the Civil
Rights Act of 1964, 42 U. S. C. § 2000e-5(f)(1) (authorizing the
Attorney General to initiate civil actions against private
employers) and § 2000e-4(g)(6) (authorizing the Equal Employment
Opportunities Commission to "intervene in a civil action brought
... by an aggrieved party ... "); Employee Retirement Income
Security Act of 1974, 29 U. S. C. § 1132(a)(2) (granting Secretary
power to initiate various civil actions under the Act). It is
particularly illuminating to compare the LHWCA with the
Occupational Safety and Health Act of 1970 (OSHA), 29 U. S. C. §
651
et seq. Section 660(a) of OSHA is virtually identical to
§ 921(c): It allows "[a]ny person adversely affected or aggrieved"
by an order of the Occupational Safety and Health Review Commission
(a body distinct from the Secretary, as the Benefits Review Board
is) to petition for review in the courts of appeals. OSHA, however,
further contains a § 660(b), which expressly grants such
petitioning authority to the Secretary-suggesting, of course, that
the Secretary would
not be considered "adversely affected or
aggrieved" under § 660(a), and should not be considered so under §
921(c).
All of the foregoing indicates that the phrase "person adversely
affected or aggrieved" does not refer to an agency acting in its
governmental capacity. Of course the text of a particular statute
could make clear that the phrase is being used in a peculiar sense.
But the Director points to no such text in the LHWCA, and relies
solely upon the mere existence and impairment of her governmental
interest. If that alone could ever suffice to contradict the normal
meaning of the phrase (which is doubtful), it would have to be an
interest of an extraordinary nature, extraordinarily impaired. As
we proceed to discuss, that is not present here.
III
The LHWCA assigns four broad areas of responsibility to the
Director: (1) supervising, administering, and making
131
rules and regulations for calculation of benefits and processing
of claims, 33 U. S. C. §§ 906, 908-910, 914, 919, 930, and 939; (2)
supervising, administering, and making rules and regulations for
provision of medical care to covered workers, § 907; (3) assisting
claimants with processing claims and receiving medical and
vocational rehabilitation, § 939(c); and (4) enforcing compensation
orders and administering payments to and disbursements from the
special fund established by the Act for the payment of certain
benefits, §§ 921(d) and 944. The Director does not assert that the
Board's decision hampers her performance of these express statutory
responsibilities. She claims only two categories of interest that
are affected, neither of which remotely suggests that she has
authority to appeal Board determinations.
First, the Director claims that because the LHWCA "has many of
the elements of social insurance, and as such is designed to
promote the public interest," Brief for Petitioner 17, she has
standing to "advance in federal court the public interest in
ensuring adequate compensation payments to claimants,"
id.,
at 18. It is doubtful, to begin with, that the goal of the LHWCA is
simply the support of disabled workers. In fact, we have said that,
because "the LHWCA represents a compromise between the competing
interests of disabled laborers and their employers," it "is not
correct to interpret the Act as guaranteeing a completely adequate
remedy for all covered disabilities."
Potomac Elec. Power
Co. v.
Director, Office of Workers' Compensation
Programs, 449 U.
S. 268, 282 (1980). The LHWCA is a scheme for fair and
efficient resolution of a class of private disputes, managed and
arbitered by the Government. It represents a "quid pro quo
between employer and employee. Employers relinquish certain
legal rights which the law affords to them and so, in turn, do the
employees." 1 M. Norris, The Law of Maritime Personal Injuries
§4.1, p. 106 (4th ed. 1990) (emphasis added).
132
But even assuming the single-minded, compensate-theemployee goal
that the Director posits, there is nothing to suggest that the
Director has been given authority to pursue that goal in the
courts. Agencies do not automatically have standing to sue for
actions that frustrate the purposes of their statutes. The Interior
Department, being charged with the duty to "protect persons and
property within areas of the National Park System," 16 U. S. C. §
1a-6(a), does not thereby have authority to intervene in suits for
assault brought by campers; or (more precisely) to bring a suit for
assault when the camper declines to do so. What the Director must
establish here is such a clear and distinctive responsibility for
employee compensation as to overcome the universal assumption that
"person adversely affected or aggrieved" leaves private interests
(even those favored by public policy) to be litigated by private
parties. That we are unable to find. The Director is not the
designated champion of employees within this statutory scheme. To
the contrary, one of her principal roles is to serve as the broker
of informal settlements between employers and employees. 33 U. S.
C. § 914(h). She is charged, moreover, with providing "information
and assistance" regarding the program to
all persons covered
by the Act, including employers. §§ 902(1), 939(c). To be sure, she
has discretion under § 939(c) to provide "legal assistance in
processing a claim" if it is requested (a provision that is perhaps
of little consequence, since the Act provides attorney's fees to
successful claimants, see § 928); but that authority, which is
discretionary with her and contingent upon a request by the
claimant, does not evidence the duty and power, when the claimant
is satisfied with his award, to contest the award on her own.
The Director argues that her standing to pursue the public's
interest in adequate compensation of claimants is supported by our
decisions in
Heckman v.
United States, 224 U. S. 413 (1912),
Moe v.
Confederated Salish and Kootenai Tribes of
Flathead Reservation, 425 U. S. 463 (1976),
Pasa-
133
dena City Bd. of Ed. v.
Spangler, 427 U. S. 424 (1976), and
General Telephone Co. of Northwest v.
EEOC, 446 U. S. 318 (1980).
Brief for Petitioner 18. None of those cases is apposite.
Heckman and
Moe pertain to the United States'
standing to represent the interests of Indians; the former holds,
see 224 U. S., at 437, and the latter indicates in dictum, see 425
U. S., at 474, n. 13, that the Government's status as guardian
confers standing. The third case,
Spangler, supra, at 427,
based standing of the United States upon an explicit provision of
Title IX of the Civil Rights Act of 1964 authorizing suit, 42 U. S.
C. § 2000h-2, and the last,
General Telephone Co., supra, at
325, based standing of the Equal Employment Opportunity Commission
(EEOC) upon a specific provision of Title VII of the Civil Rights
Act of 1964 authorizing suit, 42 U. S. C. § 2000e-5(f)(1). Those
two cases certainly establish that Congress
could have
conferred standing upon the Director without infringing Article III
of the Constitution; but they do not at all establish that Congress
did so. In fact,
General Telephone Co. suggests just the
opposite, since it describes how, prior to the 1972 amendment
specifically giving the EEOC authority to sue, only the "aggrieved
person" could bring suit,
even though the EEOC
was
authorized to use" 'informal methods of conference, conciliation,
and persuasion'" to eliminate unlawful employment practices, 446 U.
S., at 325-an authority similar to the Director's informal
settlement authority here.
The second category of interest claimed to be affected by
erroneous Board rulings is the Director's ability to fulfill
"important administrative and enforcement responsibilities." Brief
for Petitioner 18. The Director fails, however, to identify any
specific statutory duties that an erroneous Board ruling interferes
with, reciting instead conjectural harms to abstract and remote
concerns. She contends, for example, that "incorrect claim
determinations by the Board frustrate [her] duty to administer and
enforce the statutory scheme in a uniform manner."
Id., at
18-19. But it is impossible to
134
understand how a duty of uniform
administration and
enforcement by the Director (presumably arising out of the
prohibition of arbitrary action reflected in 5 U. S. C. § 706)
hinges upon correct
adjudication by someone else. The
Director does not (and we think cannot) explain, for example, how
an erroneous decision by the Board affects her ability to process
the underlying claim, § 919, provide information and assistance
regarding coverage, compensation, and procedures, § 939(c), enforce
the final award, § 921(d), or perform any other required task in a
"uniform" manner.
If the correctness of adjudications were essential to the
Director's performance of her assigned duties, Congress would
presumably have done what it has done with many other agencies:
made adjudication
her responsibility. In fact, however, it
has taken pains to
remove adjudication from her realm. The
LHWCA Amendments of 1972, 86 Stat. 1251, assigned administration to
the Director, 33 U. S. C. § 939(a); assigned initial adjudication
to ALJ's, § 919(d); and created the Board to consider appeals from
ALJ decisions, § 921. The assertion that proper adjudication is
essential to proper performance of the Director's functions is
quite simply contrary to the whole structure of the Act. To make an
implausible argument even worse, the Director must acknowledge that
her lack of control over the adjudicative process does not even
deprive her of the power to resolve legal ambiguities in the
statute. She retains the rulemaking power, see § 939(a), which
means that if her problem with the present decision of the Board is
that it has established an erroneous rule of law, see
Chevron
U. S.
A. Inc. v.
Natural Resources Defense Council,
Inc., 467 U. S.
837 (1984), she has full power to alter that rule. See
Estate of Cowart v.
Nicklos Drilling Co., 505 U. S.
469, 476 (1992) ("[T]he [Board] is not entitled to any special
deference"). Her only possible complaint, then, is that she does
not agree with the outcome of this particular case. The Director
also claims that precluding her from seeking review of erroneous
Board rulings "would reduce
135
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." Brief for Petitioner 19. This argument assumes that
her informal resolution efforts are
supposed to be
"authoritative." We doubt that. The structure of the statute
suggests that they are supposed to be facilitative-a service to
both parties, rather than an imposition upon either of them. But
even if the opposite were true, we doubt that the unlikely prospect
that the Director will appeal
when the claimant does not
will have much of an impact upon whether the employer chooses to
spurn the Director's settlement proposal and roll the dice before
the Board. The statutory requirement of adverse effect or
aggrievement must be based upon "something more than an ingenious
academic exercise in the conceivable."
United States v.
SCRAp' 412 U. S., at 688.
The Director seeks to derive support for her position from
Congress' later enactment of the BLBA in 1978, but it seems to us
that the BLBA militates precisely
against her position. The
BLBA expressly provides that "[t]he Secretary shall be a party in
any proceeding relative to a claim for benefits under this part."
30 U. S. C. § 932(k). The Director argues that since the Secretary
is explicitly made a party under the BLBA, she must be meant to be
a party under the LHWCA as well. That is not a form of reasoning we
are familiar with. The normal conclusion one would derive from
putting these statutes side by side is this: When, in a legislative
scheme of this sort, Congress wants the Secretary to have standing,
it says so.
Finally, the Director retreats to that last redoubt of losing
causes, the proposition that the statute at hand should be
liberally construed to achieve its purposes, see,
e. g.,
Northeast Marine Terminal Co. v.
Caputo, 432 U. S. 249, 268
(1977). That principle may be invoked, in case of ambiguity, to
find present rather than absent elements that are essential
136
GINSBURG, J., concurring in judgment
to operation of a legislative scheme; but it does not add
features that will achieve the statutory "purposes" more
effectively. Every statute purposes, not only to achieve certain
ends, but also to achieve them by particular means-and there is
often a considerable legislative battle over what those means ought
to be. The withholding of agency authority is as significant as the
granting of it, and we have no right to play favorites between the
two. Construing the LHWCA as liberally as can be, we cannot find
that the Director is "adversely affected or aggrieved" within the
meaning of § 921(c).
***
For these reasons, the judgment of the United States Court of
Appeals for the Fourth Circuit is affirmed.
So ordered.
JUSTICE GINSBURG, concurring in the judgment.
The Court holds that the Director of the Office of Workers'
Compensation Programs of the United States Department of Labor
(OWCP) lacks standing under § 21(c) of the Longshore and Harbor
Workers' Compensation Act (LHWCA or Act), 44 Stat. 1424, as
amended, 33 U. S. C. § 901
et seq., to seek judicial review
of LHWCA claim determinations. Before amendment of the LHWCA in
1972, the Act's administrator had authority to seek review of LHWCA
claim determinations in the courts of appeals. The Court reads the
1972 amendments as divesting the Act's administrator of access to
federal appellate tribunals formerly open to the administrator's
petitions. The practical effect of the Court's ruling is to order a
disparity between two compensatory schemesthe LHWCA and the Black
Lung Benefits Act (BLBA), 83 Stat. 792, as amended, 30 U. S. C. §
901
et seq.-measures that Congress intended to work in
essentially the same way.
Significantly, however, the Court observes that our precedent
"certainly establish[es] that Congress
could have con-
137
ferred standing upon the [OWCP] Director without infringing
Article III of the Constitution."
Ante, at 133 (emphasis in
original).l While I do not challenge the Court's conclusion that
the Director lacks standing under the amended Act, I write
separately because I am convinced that Congress did not advert to
the change-the withdrawal of the LHWCA administrator's access to
judicial review-wrought by the 1972 LHWCA amendments. Since no
Article III impediment stands in its way, Congress may speak the
final word by determining whether and how to correct its apparent
oversight.
I
Before the 1972 amendments to the LHWCA, the OWCP Director's
predecessors as administrators of the Act, officials called OWCP
deputy commissioners, adjudicated LHWCA claims in the first
instance. 33 U. S. C. §§ 919, 923 (1970 ed.); see
Kalaris v.
Donovan, 697 F.2d
376, 381-382 (CADC), cert. denied, 462 U. S. 1119 (1983). A
deputy commissioner's claim determination could be challenged in
federal district court in an injunctive action against the deputy
commissioner. 33 U. S. C. § 921(b) (1970 ed.); see
Parker v.
Motor Boat Sales, Inc., 314 U. S. 244, 245
(1941). As a defending party in district courts, the deputy
commissioner could appeal adverse rulings to the courts of appeals
pursuant to 28 U. S. C. § 1291, even when no other party sought
appeal. See
Henderson v.
Glens Falls Indemnity Co.,
134 F.2d 320, 322 (CA5 1943) ("There are numerous cases in which
the deputy commissioner has appealed as the sole party, and his
1 In contrast, the Court of Appeals for the Fourth Circuit
raised the standing issue in this case on its own motion because it
feared that judicial review initiated by the Director would
"strik[e] at the core of the constitutional limitations placed upon
thEe] court by Article III of the Constitution."
8 F.3d
175, 180, n. 1 (1993); see also
Director, Office of Workers'
Compensation Programs v.
Perini North River Associates,
459 U. S. 297,
302-305 (1983) (noting but not deciding Article III issue).
138
GINSBURG, J., concurring in judgment
right to appeal has never been questioned.") (citing,
inter
alia, Parker, supra).
The 1972 LHWCA amendments shifted the deputy commissioners'
adjudicatory authority to Department of Labor administrative law
judges (ALJ's). Although district directors-as deputy commissioners
are now called 2-are empowered to investigate LHWCA claims and
attempt to resolve them informally, they must order a hearing
before an ALJ upon a party's request. 33 U. S. C. § 919. The 1972
amendments also replaced district court injunctive actions with
appeals to the newly created Benefits Review Board. Just as the
deputy commissioners were parties before district courts prior to
1972, the Director-as the Secretary's delegate-is a party before
the Benefits Review Board under the current scheme. 20 CFR §
801.2(a)(10) (1994). Either the Director or another party may
invoke Board review of an ALJ's decision. 33 U. S. C. § 921(b)(3);
20 CFR §§ 801.102, 801.2(a)(10) (1994). As before the amendments,
further review is available in the courts of appeals. 33 U. S. C. §
921(c).
The Court holds that the LHWCA, as amended in 1972, does not
entitle the Director to appeal Benefits Review Board decisions to
the courts of appeals. Congress surely decided to transfer
adjudicative functions from the deputy commissioners to ALJ's, and
from the district courts to the Benefits Review Board. But there is
scant reason to believe that Congress consciously decided to strip
the Act's administrator of authority that official once had to seek
judicial review of claim determinations adverse to the
administrator's position. In amending the LHWCA in 1972, Congress
did not expressly address the standing of the Secretary of Labor or
his delegate to petition for judicial review. Congress did use the
standard phrase "person adversely affected or aggrieved" to
describe proper petitioners to the courts of appeals. See 33 U. S.
C. § 921(c). But it is doubtful that Con-
220 CFR §§ 701.301(a)(7), 702.105 (1994).
139
gress comprehended the full impact of that phrase: Not only does
it qualify employers and injured workers to seek judicial review
but, as interpreted, it ordinarily disqualifies agencies acting in
a governmental capacity from petitioning for court review.3
II
Congress' 1978 revision of the BLBA reveals the judicial review
design Congress ordered when it consciously attended to this
matter. The 1978 BLBA amendments were adopted, in part, to keep
adjudication of BLBA claims under the same procedural regime as the
one Congress devised for LHWCA claims. In the 1978 BLBA
prescriptions, Congress expressly provided for the party status of
the OWCP Director. See 30 U. S. C. § 932(k) ("The Secretary [of
Labor] shall be a party in any proceeding relative to a claim for
[black lung] benefits.").
Congress enacted the BLBA in 1969 to afford compensation to coal
miners and their survivors for death or disability caused by
pneumoconiosis (black lung disease). See
Usery v.
Turner
Elkhorn Mining Co., 428 U. S. 1, 8 (1976). The
BLBA generally adopts the claims adjudication scheme of the LHWCA.
30 U. S. C. § 932(a). Congress amended the BLBA in 1978 to clarify
that the BLBA
continuously incorporates LHWCA claim
adjudication procedures. See § 7(a)(1), 92 Stat. 98 (amending BLBA
to incorporate LHWCA "as it may be amended from time to time"); S.
Rep. No. 95-209, p. 18 (1977) (BLBA amendment "makes clear that any
and all amendments to the [LHWCA]" are incorporated by the BLBA,
including "the 1972 amendments relating to the use of
Administrative Law Judges in claims adjudication").
3 The law-presentation role OWCP's Director seeks to play might
be compared with the role of an advocate general or
ministere
public in civil law proceedings. See generally M. Glendon, M.
Gordon, & C. Osakwe, Comparative Legal Traditions 344 (2d ed.
1994); R. David, French Law 59 (1972).
140
GINSBURG, J., concurring in judgment
In the context of assuring automatic application of LHWCA
procedures to black lung claims, see H. R. Conf. Rep. No. 95-864,
pp. 22-23 (1978), Congress added to the BLBA the provision for the
Secretary of Labor's party status "in any proceeding relative to a
claim for [black lung] benefits." See § 7(k), 92 Stat. 99.
According to the Report of the Senate Committee on Human
Resources:
"Some question has arisen as to whether the adjudication
procedures applicable to black lung claims incorporating various
sections of the amended [LHWCA] confe[r] 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 [LHWCA]
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 [BLBA]
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 [BLBA], to actively participate in the
adjudication of claims before the Administrative Law Judge,
Benefits Review Board, and appropriate United States Courts." S.
Rep. No. 95-209, supra, at 21-22 (emphasis added).
Even if this passage cannot force an uncommon reading of the
LHWCA words "person adversely affected or aggrieved," see
ante, at 130, it strongly indicates that Congress considered
vital to sound administration of the Act the administrator's access
to court review.
141
The Director has been a party before this Court in nine argued
cases involving the LHWCA.4 In two of these cases,5 the Director
was a petitioner in the Court of Appeals. As this string of cases
indicates, the impact of the 1972 amendments on the Director's
statutory standing generally escaped this Court's attention
just as it apparently slipped from Congress' grasp.
III
In addition to the BLBA, four other Federal Acts incorporate the
LHWCA's claim adjudication procedures. See Defense Base Act, 42 U.
S. C. § 1651; District of Columbia Workmen's Compensation Act, 36
D. C. Code Ann. § 501 (1973); 6 Outer Continental Shelf Lands Act,
43 U. S. C. § 1333(b); Employees of Nonappropriated Fund
Instrumentalities Statute, 5 U. S. C. § 8171. Claims under the
LHWCA, the BLBA, and these other Acts are handled by the same
administrative
4 Director, Office of Workers' Compensation Programs v.
Greenwich Collieries,
512 U. S. 267 (1994);
Bath Iron Works Corp. v. Director, Office of Workers' Compensation
Programs,
506 U. S.
153 (1993); Estate of Cowart v. Nicklos Drilling Co.,
505 U. S. 469 (1992);
Morrison-Knudsen Constr. Co. v. Director, Office of Workers'
Compensation Programs,
461 U. S. 624 (1983);
Director, Office of Workers' Compensation Programs v. Perini North
River Associates,
459
U. S. 297 (1983); U. S. Industries/Fed. Sheet Metal, Inc. v.
Director, Office of Workers' Compensation Programs,
455 U. S. 608 (1982);
Potomac Elec. Power Co. v. Director, Office of Workers'
Compensation Programs,
449 U. S. 268 (1980);
Director, Office of Workers' Compensation Programs v. Rasmussen,
440 U. S. 29
(1979); Northeast Marine Terminal Co. v. Caputo,
432 U. S. 249 (1977).
5 Morrison-Knudsen Constr. Co. v. Director, Office of
Workers' Compensation Programs,
461 U. S. 624 (1983);
Director, Office of Workers' Compensation Programs v. Rasmussen,
440 U. S. 29
(1979). In neither of these cases did the Board's ruling affect the
§ 944 special fund. See ante, at 128, n. 3.
6 This law "applies to all claims for injuries or deaths based
on employment events that occurred prior to July 2[4], 1982, the
effective date of the District of Columbia Workers' Compensation
Act [36 D. C. Code Ann. § 36-301
et seq. (1981)]." 20 CFR §
701.101(b) (1994).
142
GINSBURG, J., concurring in judgment
actors: the OWCP Director, district directors, ALJ's, and the
Benefits Review Board. Because the same procedures generally apply
in the administration of these benefits programs, common issues
arise under the several programs. See,
e. g.,
Director, Office of Workers' Compensation Programs v.
Greenwich Collieries, 512 U. S. 267, 281 (1994)
(invalidating "true doubt" burden of persuasion rule that
Department of Labor ALJ's applied in both LHWCA and BLBA claim
adjudications).
Under the Court's holding, the Director can appeal the Benefits
Review Board's resolution of a BLBA claim, but not the Board's
resolution of an identical issue presented in a claim under the
LHWCA or the other four Acts. I concur in the Court's judgment
despite the disharmony it establishes and my conviction that
Congress did not intend to put the administration of the BLBA and
the LHWCA out of sync. Correcting a scrivener's error is within
this Court's competence, see,
e. g., United States Nat. Bank of
Ore. v.
Independent Ins. Agents of America, Inc.,
508 U. S. 439
(1993), but only Congress can correct larger oversights of the kind
presented by the OWCP Director's petition.
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