Transcript

IN THE SUPREME COURT OF THE UNITED STATES

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, DEPARTMENT OF LABOR, Petitioner v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, ET AL.

No. 93-1783

January 9, 1995

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:02 a.m.

APPEARANCES:

BETH S. BRINKMANN, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Petitioner.

LAWRENCE P. POSTOL, ESQ., Washington, D.C.; on behalf of the Respondents.

PROCEEDINGS

10:02 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument first this morning in Number 93-1783, the Director of the Office of Workers' Compensation Programs v. the Newport News Shipbuilding and Dry Dock Company.

Ms. Brinkmann.

ORAL ARGUMENT OF BETH S. BRINKMANN ON BEHALF OF THE PETITIONER

MS. BRINKMANN: Mr. Chief Justice and may it please the Court:

This case concerns the standing of the Director of the Office of Workers' Compensation Programs to seek judicial review of rulings by the Benefits Review Board of claims under the Longshore & Harbor Workers' Compensation Act.

The Director has standing to seek court-of-appeals review as a person adversely affected or aggrieved by a final board ruling under 33 U.S.C. 921(c).

The Director is charged with a myriad of duties under the act. Incorrect board rulings adversely affect her ability to carry out those duties consistent with her interpretation of the act when that interpretation differs from the board ruling.

QUESTION: Is it true, Ms. Brinkmann, that both the Director and the board are located within the Labor Department?

MS. BRINKMANN: Yes, Your Honor, it is. It's somewhat analogous to the situation of the Occupational Safety & Health Review Commission, which came before the Court in Martin.

Although that Commission was an independent Commission, it was a situation in which Congress had taken the adjudicatory authority for a program and vested it somewhere other than where the administrative and enforcement authority was. As in this case, the administrative and enforcement authority are vested in the Director, where the adjudicative authority is vested in the Commission.

QUESTION: And are both -- are all of them appointees of the Secretary?

MS. BRINKMANN: Yes, Your Honor, but in this particular case, it's different than what one might think is a traditional agency structure in that it's not a unitary structure, and that the administrator and enforcer of the act cannot overrule the Benefits Review Board decisions. That's why we believe it's analogous to the situation before the Court in Martin.

QUESTION: Now, can the Secretary change rules if a situation arises in the board's interpretation that the Secretary doesn't like?

MS. BRINKMANN: Yes --

QUESTION: Rulemaking is possible?

MS. BRINKMANN: Yes, Your Honor, but --

QUESTION: And I assume the Secretary relies on the Director for advice on those matters?

MS. BRINKMANN: Yes, Your Honor. We don't believe, however, that that adequately protects the public interest, which the Director is vested and charged with carrying out under the act.

QUESTION: Well, do you think the other person would have standing to appeal? For instant, the President, or the chairman of the Senate committee that oversees these matters in the Congress? Would they also have an interest in seeing how it's carried out, and have standing to appeal, do you suppose?

MS. BRINKMANN: I don't believe so, Your Honor. The Director's vested interests were imposed, or she was charged with those through the act of Congress under section 939. The Secretary and her delegate, the Director, is charged with administering and enforcing the act --

QUESTION: Well, in the proceeding below, I guess your position was sustained on standing with regard to the effect on the special fund, and as to that, that's not before us.

MS. BRINKMANN: No, Your Honor.

QUESTION: It's not clear to me why the Secretary is a person. Why is the Secretary a person under the act?

MS. BRINKMANN: Well, Your Honor, we believe that the Secretary is an individual, and as -- in the authority that we've cited in our brief, Government officials can be considered persons depending on the context of the statute. This was not a basis that any of the courts of appeals or the parties below raised as a challenge, and it has never been viewed as such, that she would be excluded from that.

QUESTION: But the only reason she is suing is in her official capacity, in which case she's really no different from the agency, and the agency doesn't have -- the agency isn't defined as -- in the statute --

MS. BRINKMANN: Your Honor, the --

QUESTION: -- as being a person.

MS. BRINKMANN: -- the Director has particular duties under the statute to further public purposes under the act that the court of appeals didn't recognize. The court of appeals had much too narrower a view of the Director's responsibilities under the act.

QUESTION: But those responsibilities derived from the prerogatives and the interests of the agency, and it seems to me that the Secretary is in no different position than the agency is.

MS. BRINKMANN: Your Honor, the Secretary and the delegate, the Director, is a Government official acting on behalf of the agency, but she is not an official that is permitted to overrule the board ruling, so in her role as the policymaker under the act, she is vested with the right and the ability to seek judicial review of board rulings if she disagrees with them.

QUESTION: But again, only by reason of her official connection to the agency.

MS. BRINKMANN: Yes, Your Honor, but we don't believe a person excludes that. Under that rationale, a person in the structure of those definitions would also exclude employer, and not permit an employer --

QUESTION: No. No, because that includes corporation.

MS. BRINKMANN: But an employer is elsewhere defined in that section, also. We just think that the fact there's a separate provision explaining that the Secretary of Labor that is referred to when the term "Secretary" is used doesn't undermine the fact that the Secretary is included as a person.

QUESTION: Well, it isn't that that undermines it, it's the fact that the definition is strikingly different from the definition in the Administrative Procedure Act, which has a similar provision about who has standing, and the language is almost the same, any person adversely affected or aggrieved may obtain review, and "person" is defined in the Administrative Procedure Act similar to the definition here, except it goes on to include public or private organization.

MS. BRINKMANN: Well, Your Honor, I think that in order to assess the Director's standing, it's important to focus on the structure of the Longshore & Harbor Workers' Compensation Act and the history of it. At the time that the board was created, these provisions was created, it had been the longstanding recognition that the Director did have standing to appeal from the district court to the court of appeals.

In 1972, when these provisions were added, all that Congress did was replace the district court's role with the board's role, and there's no indication in the text or structure of the act that there was any intent to change the fact that the Director had standing to seek court of appeals review of that ruling.

QUESTION: It's a strange -- your argument is simply because the Secretary has policymaking concerns and policymaking interests, the Secretary is a person adversely affected.

Let's take a case in which an employer and employee get involved in a contract dispute under State law, and the employer wins on the ground that -- the decisional ground is that the National Labor Relations Act preempts the contractual question. Do you think that the Labor Board, even though it was not a party to that private contractual dispute, would have standing to appeal? That's a -- it's an awfully broad interpretation of when public officers have authority to go into court and continue litigation in which they are not personally at all involved.

MS. BRINKMANN: Your Honor, if I may, I think I have about three answers to that question.

QUESTION: Okay. Give me the best one first.

(Laughter.)

MS. BRINKMANN: First of all, are our position is on the interest that -- how Congress vested the Director with standing is not limited to the fact that she's a policymaking authority. She is the Government official that's charged with ensuring that the act is lawfully administered.

Part of that interest is ensuring that claims are correctly determined under the act, and that is so because underlying this act are public purposes, both through the nature of a Workers' -- Workmans' Compensation Program through the structure of the act, and the fact that employers and employees don't have incentives to protect those.

QUESTION: Well, why is that different from the Labor Board?

MS. BRINKMANN: In this case, Congress set up this statute, set up the statutory scheme and designated the Secretary as the person to play that role. The public purpose is including not just providing compensation to an injured or maritime worker, but ensuring that that payment comes from the industry fund so that the burden isn't placed on other public disability benefits for private charities, and also that payment serves as an incentive to the employer.

QUESTION: Do you rely to any extent in this respect to her role as the person who proposes a compensation award? In answering Justice Scalia's question about, is there something different from just any agency that's interested in the sound enforcement of the law, does she have an initiating role? Does she participate in this proceeding in a way that doesn't happen in other agencies?

MS. BRINKMANN: Yes, there are many provisions throughout the statute that provide for the Director to have a specific role, in particular, the Director is charged with responsibility under section 939 with assisting claimant in the process and with assisting claimants in obtaining services such as rehabilitation services.

QUESTION: In the proceeding, is what Justice Ginsburg is asking about. In the proceeding before the board, does she play a part?

MS. BRINKMANN: Yes, Your Honor. I think we have to step back all the way to the initiation of the proceeding. In fact, under this statutory scheme, employers are obligated to make payment even without an award being entered. If it's not controverted under 914(a), the employer has to pay even without an award.

At that stage, under 914(h) the Director has the authority to sua sponte initiate an investigation into that payment even if it's not controverted and there's no dispute about it. On her own, she has the initiative to go in and investigate that to see if it's in compliance with the --

QUESTION: Even if it's not controverted, or only if it's not controverted?

MS. BRINKMANN: In either case. Under another provision --

QUESTION: Well, wait. Now, if it is controverted, she has no authority, does she?

MS. BRINKMANN: Yes. Under 919, then, if it's controverted, the notice is filed with the Director and she is charged with an informal resolution period which she meets with the employer and the employee and attempts to achieve a resolution, and --

QUESTION: But not as an advocate, as an impartial adjudicator, presumably.

MS. BRINKMANN: The regulations make clear that at that stage she is charged with informing that as to -- with her expertise under the scheme about the rigid framework for compensation under this scheme. Congress set up a very clear mechanism for calculating the amount of compensation that a worker is entitled to under this scheme. That's her role at that stage. Then, it is referred -- if an informal resolution is not achieved, it's referred to an ALJ for a hearing.

I should also point out, if it's settled, the parties cannot settle without the approval of the Director or the ALJ. Congress also prohibits claimants from waiving their rights to claim.

QUESTION: Could she appeal on the part of the employer, as well?

MS. BRINKMANN: Yes.

QUESTION: Suppose the employer loses below, you could appear --

QUESTION: Yes, Your Honor, and in fact in the O'Keefe case, which was a case that ultimately came to this Court through the Rasmussen case, the Director has proceeded -- I wouldn't say necessarily on behalf of the employer or on behalf of the employee at that point. She is pursuing the public's interest in ensuring that the correct compensation is paid, so that employers don't have to pay too much.

That also is inconsistent with the aims of this Workers Compensation Program that was set up to ensure that there were certainties and availability of awards for injured workers at the same time eliminating other legal rights of workers to sue.

QUESTION: What if the employee chooses not to sue? Let's assume an employee who's entitled, in the Secretary's view, to compensation. The employee chooses not to litigate at all. Could the Secretary initiate litigation on that employee's behalf?

MS. BRINKMANN: Again, going back to the different phases, if there was an employer who was obligated to make an award, and was making an award, and the employee was satisfied with that but the employer thought -- the director thought that it was not an -- under 1914(h), she couldn't invest -- initiate investigations, no.

At that point, the claimant and the employer usually come in and there's informal resolution, and that may lead to a settlement, that may -- to an award that the Director can then issue, or the claimant --

QUESTION: But it doesn't. Let's assume it doesn't. The employer listens and says, Secretary, I think you're wrong, I'm not going to pay any more than this, and the employee, a very complaisant kind of a person, says, that's okay with me. I don't really want any more. Can the Secretary initiate a suit before the board on the --

MS. BRINKMANN: Your Honor, that's not a situation that has arisen, and we're not aware of the Director doing a claim -- initiating a claim on her own. For the most part --

QUESTION: But it seems to me strange that if the employer does go, gets a judgment from the board and says, it's good enough for me, she can take an appeal, but she can't go into the board in the first place, if he chooses not to go before the board. That's very strange.

MS. BRINKMANN: Your Honor, to the extent -- I think most of the situations that you're referring to would be characterized as settlements that would require the approval of the Director if there was any kind of monetary payoff.

The act frankly is structured to prohibit collusion between employers and employees, for example, and this is why the employers and employees --

QUESTION: May I interrupt for a minute? I'm not sure I understand your answer to Justice Scalia's question. You say they don't do it. Could they do it? Could the Director initiate a proceeding in the situation he posits, in your view?

MS. BRINKMANN: I can think of a situation in which that may be possible. As I said, Your Honor, that issue has not been litigated, and that frankly has not arisen as a practical matter, but, for example --

QUESTION: But I still am curious, you know, what your construction of the statute is with regard to the power of the director to do it if she wants to.

MS. BRINKMANN: I think that, for example, in a situation where an employee was preferring to obtain disability insurance benefits under the Social Security Administration Program, for example, in lieu of pursuing that, the Director would have an interest in the lawful administration of this act certainly by initiating an informal investigation.

And then at the point if there was still a lack of initiative by the claimant to view that as a settlement under the act that was not adequate and not approve it and commence proceedings under that authority --

QUESTION: Practically, how would she even know about it if the claimant doesn't even initiate a claim?

MS. BRINKMANN: There are all kinds of obligations on the employer and the employee --

QUESTION: To report.

MS. BRINKMANN: -- to notify -- yes. Yes. It's a very rigid reporting scheme and compensation scheme, and the Director is involved in that throughout, and --

QUESTION: Is there any scheme like this -- apart from the Black Lung Benefits Act, in all of Federal claims, is there any other regime quite like this, with this split, and -- well --

MS. BRINKMANN: Not that -- we believe that OSHRC and the Mine Safety Health Review Commission are the most analogous situations, although we concede those are different because their mission is wholly independent.

QUESTION: And the Secretary appears all the time. Doesn't the agency there have prosecutory authority before the independent commission?

MS. BRINKMANN: Your Honor, the Director also has enforcement authority for boards here. The only difference is, unlike those, here the Secretary, the Director enforces the award in district court.

QUESTION: Not enforcing. I'm talking about litigating, going in to initiate an action against the employer.

MS. BRINKMANN: Your Honor, Workers' Compensation schemes were set up to try and --

QUESTION: But am I not correct that these other schemes that you're appealing to as being the same thing are schemes in which the Secretary or the agency goes in before the Commission as an aggressor, as a postulant, to seek relief?

MS. BRINKMANN: That's certainly one of the roles that the Secretary --

QUESTION: Which is not a role that at least has been played here. Whether it might be or not, it hasn't been.

MS. BRINKMANN: Your Honor, we believe, however, when we look at standing, when you look at the responsibility that the Secretary has been charged with under this act, for example, approving settlement, fostering informal resolution, entering awards, in the informal resolution process the Director does have authority to enter award.

Also, if there's a request for modification for an award, the Director has the authority to enter awards, so there are certain situations in which the Director does have that type of authority, and considering the overall structure of this and the public goals that underlie the act, it's only the Director that has the incentive to further those interests. The Congress expressly recognized that by precluding the employer or employee from settling it, from waiving claims --

QUESTION: I don't know why you say it's only the Secretary. Why doesn't the employee have the interest? I mean, you have the classic situation in all of these cases where one person is owed money, and you would normally expect that person to be -- to have a keen enough interest to get the money.

MS. BRINKMANN: Well, Your Honor, for example, if I go back to the situation where the employee also has an opportunity to receive compensation through the Social Security disability insurance, Workers' Compensation is offset to that relief, so there's no benefit if the employee can get this money from somewhere else, or from a private charity, perhaps. If an employer wants to set up some kind of private charity to avoid this rigid framework, that's prohibited by this act.

That is the exact purpose, the effect that Congress was intending to preclude by setting up this framework so that the industry was charged with paying for these injuries according to a rigid schedule. At the same time employees had to surrender rights, and -- to further the safety incentives placed on the employer. That's I think a very unique aspect of the public interest that must be furthered by a Government official under the Workers' Compensation scheme.

QUESTION: Is there any difference in looking at standing, that here we're dealing with a Government enforcer, an article II entity, as distinguished from -- from your brief, I gather you're treating this just like citizens' standing. Do you get anything extra because this is an Article II official?

MS. BRINKMANN: Absolutely, Your Honor. We do cite several cases in our brief concerning the Government official's standing to enforce public duty. For example, on page 15, one of the cases we cite is the SEC v. United States Realty & Improvement Company.

That was a situation in which the SEC went into bankruptcy court to further the public interest in ensuring that the proper bankruptcy proceeding was followed. They moved to dismiss the proceeding that had already done, arguing that they should have been proceeding under another provision, and the Court upheld the SEC's position to, standing to intervene in that case, and the standing to appeal when they lost.

We believe that that's an analogous situation here, and when Government officials are enforcing the public duties that Congress has charged them with enforcing and administering, that that is a different situation than just a private party attempting to establish standing.

QUESTION: And you take the position that the Director has standing to appeal here even if the employee opposes it and might stand to lose benefits as a result of the appeal?

MS. BRINKMANN: We believe -- yes, Your Honor. We believe that if the Director believes that the board erroneously charged the employer too much under the, again, the rigid scheme set up for calculating compensation, yes, it is furthering the public interest to appeal that determination.

QUESTION: Well, you know, if we disagree and think that under the language and scheme of this statute that there is no standing in this situation, what are the practical results of it? Can't the Director ultimately see to it that the policies are carried out by other means?

MS. BRINKMANN: Your Honor, frankly, because of the unique structure that Congress set up, this Commission is a creature of Congress, not a creature of agency as in most other instances. Congress set up this Benefits Review Board, and the Secretary does not have authority to overrule those rulings. Review of that goes to the court.

QUESTION: Who appoints the members?

MS. BRINKMANN: The Secretary.

QUESTION: I still have exactly the question that Justice O'Connor had. That is, there is an employer, and an employee, and there's some transfer of money. The employer doesn't care. He's satisfied. The employee is satisfied. He doesn't care.

In any case in which in any money whatsoever that belongs to the public would be at stake, and there are because of the funds, there is standing, so we're not talking about that. In any future case, where the law is wrong according to the Secretary, you can always file an amicus brief. She may be a party.

So what is the practical difference? What do you care if, in fact, in one case where nothing is at stake for the Government, except maybe the board got it wrong, what difference does it make to anyone --

MS. BRINKMANN: It makes a difference --

QUESTION: -- practically?

MS. BRINKMANN: It makes a difference if, in the same reason as settlement, that both parties agree to but the Director disapproves makes a difference.

QUESTION: Why?

MS. BRINKMANN: Because there's certain public interests underlying it.

QUESTION: What?

MS. BRINKMANN: That it is the industry that should be charged to compensate according to a rigid scheme.

For example, Your Honor, if in every case the employer was willing to pay 80 cents on the dollar, that would be something that would completely undermine Congress' purpose.

QUESTION: Well, if the employer wants to pay 80 cents --

MS. BRINKMANN: At the same time, every employee might be willing to accept --

QUESTION: Sorry. Then let's take that example. Let's suppose an employer wants to pay 80 cents, and the employer says, great, the employee says, great, neither of them care whatsoever. No public money is at stake. In any future case where the law generally is at issue, you can file an amicus brief. All right, how does that hurt anybody or anything?

MS. BRINKMANN: Congress intended that the Director have the authority to ensure that the compensation award is adequate and not subject -- not a result of duress by giving her the express approval to reject settlements under section 908(i). That is the type of --

QUESTION: She can reject a settlement even though both parties are satisfied with it?

MS. BRINKMANN: Yes.

Also, Justice Breyer, under your scenario, the issue eludes judicial review forever. It's only according to happenstance, to await a private litigant to have the incentive to go to judicial review of the incorrect interpretation of the act that the Secretary is charged with administering and enforcing.

QUESTION: Isn't your strongest argument that -- not that the Secretary's interest is in seeing that the right amount is paid, but in something you alluded to a moment ago, and that is, if the Secretary cannot ensure that the right amount is paid, the Secretary ultimately has no basis for, or the Government has no basis in its own right to induce employers to follow safety standards?

Is the ultimate goal that your argument appeals to the safety standard argument rather than compensation, as such?

MS. BRINKMANN: Certainly, Your Honor, we believe that the safety incentive was a strong underlying purpose of the act, and part of that is also to make sure that it is the industry and not some other public benefit program or private charity that is burdened.

QUESTION: Okay. How do we assess the significance of the Secretary's lack of standing in ultimately imposing safety standard? Aren't there other, more direct ways to impose appropriate safety standards?

MS. BRINKMANN: Certainly there are, but we're looking at what Congress did, and what Congress -- what responsibilities Congress charged the Secretary with, and that's usually with standing because of those responsibilities. The fact that Congress may also have pursued other means for achieving the same result doesn't undermine the fact that in this particular case that's what Congress intended.

I can also provide a very specific example of another role of the Secretary's that would be undermined by this particular situation. Under 939(c) she's directly charged with assisting claims to obtain rehabilitation services. As it stands under the board's incorrect interpretation of the act, the Secretary is put in the position of being able to -- not being able to recommend pursuit of rehabilitation services consistent with her view of it, which would permit a claimant to continue to receive total disability benefits during that period, where the board's ruling would cut that back to partial disability benefits retroactively in this case.

If I may, Your Honor --

QUESTION: Could I ask --

QUESTION: Wait, just before you sit down, I'd like -- I mean, you're talking about what Congress wanted. The words "adversely affected or aggrieved" are words of art, aren't they? They come out of Sanders Brothers. They underlie the APA, and there's no case which I'm aware of in which those words were interpreted to protect an interest simply in seeing that the law is properly administered, or properly interpreted.

MS. BRINKMANN: Your Honor --

QUESTION: I don't know of any others. So if we're looking at what Congress intended, wouldn't we follow those words as words of art with a long meaning?

MS. BRINKMANN: I think it's crucial at that point, Your Honor, to look at the status of this program prior to the amendment of 1972. The case that we cite in our brief makes clear under Glen Falls, there was no dispute --

QUESTION: Before, I take it, the Secretary was in district court, why? Defending an order?

MS. BRINKMANN: Yes, Your Honor.

QUESTION: Defending an order.

MS. BRINKMANN: But she was permitted without question to appeal to the court --

QUESTION: Well, of course. Was it her -- whose order was it? I may have that wrong. Whose order was it?

MS. BRINKMANN: The deputy commissioner was named --

QUESTION: Fine. Well --

MS. BRINKMANN: -- as the respondent.

QUESTION: Well then, that's the difference.

MS. BRINKMANN: But Your Honor, in 1972, it's clear that what Congress wanted was to have the Director play a increased role in the adjudication process. This would be cutting her back and tying her hands, in effect, and we believe that's inconsistent with the structure and history of the act.

If I may, Your Honor, I'd like to save the remainder --

QUESTION: Very well, Ms. Brinkmann.

Mr. Postol, we'll hear from you.

ORAL ARGUMENT OF LAWRENCE P. POSTOL ON BEHALF OF THE RESPONDENTS

MR. POSTOL: Mr. Chief Justice, and may it please the Court:

If I could follow up on Justice Breyer's question, because I think it's a key point, and that is, before the 1972 amendments, the Secretary of Labor never appealed her own agency decision. The only time the Secretary of Labor would go from the district court to the court of appeals was to defend her agency's decision, which she can do now.

If at the court of appeals the agency decision is thrown out, then, of course, as a respondent, the agency is allowed to go petition this Court, but at no time for the first 45 years of the Longshore act -- and we did a LEXIS search -- never did the Secretary of Labor ever challenge her own decision, and that's to be expected.

The way the set-up was, you need an injunction against the Deputy Commissioner to challenge the Deputy Commissioner's decision. The Secretary of Labor never sought an injunction against her own employee. That was the picture that Congress saw in 1972. There was no direct -- the Department of Labor never challenged its own decision. Just like every other agency in this town, there is no precedent for an agency challenging its own decision.

All the Congress did in 1972 was, they said, look, we don't like the idea that the Deputy Commissioner does administrative paperwork, tries to bring the parties together informally, and then there's also the judge, the adjudicator, so they said, we've got a better idea. Deputy Commissioner, you just do administrative work, try to bring the parties together, but the decisionmaker, the adjudicator, will now be replaced. Instead of the Deputy Commissioner, it will be the administrative law judge, and ultimately the Benefits Review Board.

QUESTION: Mr. Postol, let me get this straight. You say that if the board's decision is disagreed with by one of the parties before the board, and that party goes to court, and the court reverses the board, the board would then be able to appeal --

MR. POSTOL: Well, the agency --

QUESTION: -- to us?

MR. POSTOL: -- whether it's --

QUESTION: The agency would be able to appeal, even though the private individual is content with the court of appeals?

MR. POSTOL: Well, under appellate rule 15, the agency is a respondent, and theoretically a respondent -- theoretically a respondent --

QUESTION: The agency is a respondent? How can the agency be a -- the agency wasn't a party below.

MR. POSTOL: Under appellate rule 15, when there is an appeal of an agency decision, the agency is a respondent. Whether it's the Benefits Review Board, or the Director, whoever the agency wants to name is a respondent.

QUESTION: Gee, I thought that meant when there's an appeal -- this is not an appeal of an agency decision, it's an appeal of the decision of the court of appeals.

MR. POSTOL: Well, you could --

QUESTION: But you -- you're sure about that, then.

MR. POSTOL: No, I'm -- I'm not.

QUESTION: Well --

(Laughter.)

MR. POSTOL: I think -- I think rule -- I think that is in support of Rule 15. I think Your Honor is correct in the sense that Congress never envisioned its agency being a litigant, and so I guess you could say the congressional --

QUESTION: I mean, you're -- it seems to me the structure you're proposing is even stranger than the one the Secretary is proposing, that the Secretary can come in at one level but not at the earlier level.

MR. POSTOL: I don't think so, Your Honor. Let me explain why. I think it is one thing to say the agency has a right to defend its own agency decision. I don't think that is a novel concept. Agencies do it all the time. Now, whether in the Longshore act, where two private parties fight it, Congress ever envisioned that the agency would agree to go up to defend some decision. Maybe you could come to the conclusion Congress never envisioned that.

But I think one thing is certain. The agency -- that Congress never envisioned an agency appealing its own decision, and I think if you look at the situation in 1972, that becomes clear, because in the first 45 years the agency never appealed its own decision.

QUESTION: You would have no problem, then, with this agency appearing as a respondent in the court of appeals, or as an appellee.

MR. POSTOL: Well, that's correct.

QUESTION: That's okay.

MR. POSTOL: As a prac -- first of all --

QUESTION: And they do have standing.

MR. POSTOL: They do not have standing. They are a respondent under the law --

QUESTION: Why don't they have standing there but they have standing here, at the next stage?

MR. POSTOL: Well, because to appear as a respondent is not standing. To appear as respondent means that they defended the decision below, and presumably an agency you would think would want to defend its own decision.

QUESTION: Is that right? Everybody in the world can come in and defend cases before us as a party?

MR. POSTOL: No.

QUESTION: Why not?

MR. POSTOL: Because that is --

QUESTION: I thought it was because they don't have standing.

MR. POSTOL: Yes.

QUESTION: All right. Now, why does the agency have standing at this level to defend its decision, but not at the court of appeals level to defend its decision?

MR. POSTOL: Well, because it doesn't have -- because there is a difference between trying to challenge -- standing is ability to challenge, to appeal. Amicus curiae can come in to give their interest --

QUESTION: They're not parties, though. They're not parties, though.

MR. POSTOL: That is correct.

QUESTION: But you're saying the agency has a right to come here as a plaintiff party, in effect, before this Court, but not to appear as a defendant party in the court of appeals.

MR. POSTOL: Well, I'm saying that's an import of rule -- appellate rule 15. Your Honor may be right that under Article III they do not have standing because they do not have an interest.

QUESTION: I guess the question was, initially it used to be simple a long time ago, I thought, where normally agencies issued orders and people who were aggrieved by those orders could go and fight them in court. Obviously, the agency wouldn't be in there but to defend it, because it was the agency's order. I take it that was the situation here before this new statute.

But now we have a new world. It's as if Congress set up some other little agency --

MR. POSTOL: But I --

QUESTION: -- or a board. Now, obviously, the Secretary sometimes could be upset about what that board does. It wasn't his or her order any more, it's the board's order, so our problem is what to do in this new world, where -- and I don't know, the Solicitor General may or may not. They may want to -- they're saying, okay, it's all right if the agencies fight each other before other agencies.

MR. POSTOL: I don't --

QUESTION: So it used to be that they could control it, but now Congress has these new -- now, what should we do in this new world, where in fact the board may sometimes do something that the Secretary of Labor himself wouldn't want done?

MR. POSTOL: Your Honor, I think if you look at what Congress intended in 1972, they did not intend a new world.

QUESTION: But they created one.

MR. POSTOL: But they did not. They did not. All they said was, instead of the Deputy Commissioner issuing decisions, we don't want him to do that. We're going to replace him by an administrative law judge and the board.

QUESTION: Mr. Postol, would you concede that they did -- Congress did intend a new world in the Black Lung Benefits Act, which is the only other act that I know of that's at all like -- that's at all comparable with --

MR. POSTOL: Well, but yes, they did grant the Director explicit standing in the Black Lung Act. The Director has a much greater role in the Black Lung Act because oftentimes it is the Black Lung Fund that is paying the benefits.

QUESTION: Well, it's conceded by all around that there's standing where the fund, here the 8(f) fund, there the counterpart is at stake, but under both acts there are cases where there's no pecuniary interest of the Government at stake, and yet we know that Congress provided expressly, with the virtually identical regime, for standing.

MR. POSTOL: But it isn't an identical regime? Because under the Black Lung Act the Government says 30 percent of people can retire. In a large percentage of the claims, there is no employer. They can't identify the coal mine.

QUESTION: Let's take the ones where they can. If it's 30 percent, 40 percent, no matter, there's a significant number where they can.

MR. POSTOL: I think in those cases it is true that Congress explicitly gave the Director standing. I don't think that they have -- that they have the power under Article III. In those cases where the Director has no interest, I think that they exceed their power under Article III, that Article III says, you must have something at stake. You must have an injury in fact. That's all the decisions of this Court.

This Court has repeatedly held that no matter how vigorous someone believes that the decision below is not correct, that it's wrong, that that interest in correctness is not enough to have Article III standing, so that in the Black Lung Act, if the Director has nothing at stake, no financial interest, it is true that Congress gave them explicit standing, unlike the Longshore act. I think, though, in those cases where the Director has nothing at stake, I think they exceeded their power under Article III.

QUESTION: And couldn't come in as an intervenor either, if -- let's say the employee initiated the review proceeding in court.

MR. POSTOL: That is correct. They could, of course, come in --

QUESTION: Do you have an Article III problem with the Fair Labor Standards Act, the administrator enforcing the Fair Labor Standards Act at the initial level of enforcement?

MR. POSTOL: No, because under the Fair Labor Standards Act, just like under OSHA, the Department of Labor is the prosecutor. They have -- they stand in the place --

QUESTION: Well, but for -- I agree with you absolutely under the statute, but from the standpoint of Article III, why does an administrator under the Fair Labor Standards Act have any more or less interests than -- for Article III purposes for injury in fact --

MR. POSTOL: Because --

QUESTION: -- than the administrator in the other cases we're talking about?

MR. POSTOL: Because in those cases Congress has said your job is to make sure the safety laws are enforced, or under the Fair Labor Standards Act, your job is to make sure the overtime laws are enforced.

QUESTION: Well, suppose in this case Congress had said, it's your job to participate in all of these cases?

MR. POSTOL: If Congress said, we want the Director to represent claimants, claimants who have a vested -- there's something -- there's an injury in fact, that Director, your job is to make sure they get the most money possible, that in fact they could have standing.

But that's not what Congress did. What Congress said was, we're going to have an adjudicator, an administrator-adjudicator, and that's going to be the Benefits Review Board.

Now, the Director's point is, well, Congress made a mistake. They should have said the Director, who didn't exist, by the way, in 1972, should be some kind of super adjudicator to overrule -- try to overrule the Benefits Review Board, but that's not what Congress did. Congress said, the final agency decision is the Benefits Review Board.

QUESTION: Well, but the point is, Congress could have enacted it without an Article III problem. It seems to me we have just a statutory problem before us.

MR. POSTOL: That -- if, in fact, they said that the Director's job was to maximize the claimant's benefits, then Your Honor would be correct, but the Government has conceded, in fact, that's not what they did.

In other words, Congress can give a Government agency an interest to protect, and then in protecting that interest they have standing, but merely having an interest in a "accurate decision," 1) that wouldn't meet Article III standing. Those -- you've got to take sides. You have to have a client to have standing.

That is the heart of the controversy, and that, frankly, is one of the problems the Director has always had. At least twice before this Court they changed sides. Why did they change sides? Because they don't have anything at stake.

They're sitting there with some kind of super adjudicatory body, which I believe is this Court, and they're saying, well, maybe it should be this way, or maybe we're going to change our minds from the court of appeals here.

They have nothing at stake. Therefore, they don't have the controversy, and therefore they don't have the standing, and similarly, even in the briefs before this Court they've changed their position.

In their petition for certiorari, they took the position that our job is to maximize the claimant's benefits. When we challenged them in our response brief and said, look, you're an agency, then they changed their position and said no, we're not taking sides, we are here to help the Court decide what's the accurate decision.

But in fact, that's the Benefits Review Board. That's what Congress created the Benefits Review Board to do.

QUESTION: Why does an administrator have to be identified for all times and in all cases with one side alone in order to have a concrete stake?

MR. POSTOL: Because otherwise he has nothing at stake.

QUESTION: No. Otherwise, he chooses, in effect, what to place at stake. He's kind of like a -- well, the analogy isn't right -- sort of like a private lawyer who could represent a plaintiff or a defendant --

MR. POSTOL: Sure, if --

QUESTION: -- and in one case chooses one, in another chooses the other. There may, from the administrator's standpoint, the Director's standpoint, be something very much at stake in each case.

MR. POSTOL: But Congress has to tell the agency, has to give them that interest. The agency can't assume it itself. In effect --

QUESTION: Why can't Congress give the agency the choice and say, if you -- if you as someone charged with the appropriate administration of the statute believe that something is at stake which merits your taking the position of the employer in one case or the employee in another case, so long as there is something concrete at stake in each of those cases, you may have the choice.

MR. POSTOL: One is --

QUESTION: Why can't Congress do that?

MR. POSTOL: One is Congress would have to do it, which they did not. Secondly, as Your Honor points out --

QUESTION: Well, it didn't do it -- it didn't do it very clearly, but we might say that's what Congress intended.

MR. POSTOL: Then the director would have to tell the Court in this case what is the concrete thing that they're protecting? Whether Mr. Harcum gets paid or not has nothing to do with the safety standard, it has nothing to do with vocational rehabilitation, because --

QUESTION: Well, but your opponent says that's a short view, because ultimately if there is an appropriate administration on a case-by-case basis, the safety standards or the inducement to follow them will take care of itself.

MR. POSTOL: Well, in each particular case, they're going to have to establish standards. This Court has made clear you have to do that in each case, and certainly in this case there's nothing there. Now, maybe they can come up with a case --

QUESTION: Could I interrupt with a question that helps me along the lines of Justice Souter? Do you agree they have standing to approve or disapprove of settlements before the proceeding gets started?

MR. POSTOL: Well, that -- yes, they do, at the administrative level. Interestingly enough, Congress enacted -- in section 8(i) of the act, if the Director doesn't approve a settlement, either party has a right to go de novo to the administrative law judge and ultimately the Benefits Review Board to overrule the Director's decision, so that's --

QUESTION: No, but you do recognize that they have a sufficient interest in the proceeding to be able to say yes or no to settlement --

MR. POSTOL: Yes.

QUESTION: at the --

MR. POSTOL: Well, Congress --

QUESTION: Why, then, is this not analogous, if the -- an employee decides not to seek further review and accept what's on the table, isn't that in the nature of a settlement? Why wouldn't they have the same kind of standing to say, no, you can't make that particular deal?

MR. POSTOL: Because in section 8(i) Congress explicitly said, Director, we want you to ultimately rule on the settlement, but although the administrative law judge and Benefits Review Board then has a right to appeal. In this case they didn't do that. They didn't say, we want -- and they knew how to do it in the Black Lung Act. They said, you have standing in all cases. They did not do that in this case.

QUESTION: Your argument on this point is entirely statutory?

MR. POSTOL: Well, it can be both. I think the easy way --

QUESTION: Well, but let me back up a little. In constitutional Article III terms, is there a difference between the standing to approve or disapprove settlements before the proceeding begins and approve or disapprove termination of appellate proceedings?

MR. POSTOL: Yes, there is. The difference is, Congress, under section 8(i), gave the Director the duty to make sure the settlement was fair. Therefore, Congress --

QUESTION: But if we read the statute to say they intended the same duty as to the intermediate proceeding, why wouldn't the article III issue be the same? If we read the statute that way, and I understand you --

MR. POSTOL: Sure.

QUESTION: -- say we should not.

MR. POSTOL: I think -- sure. You could say that -- well, I'm not -- no, I do not believe so. I think if Congress said, Director, we want you to make sure every decision is correct, I think this is what we'd have a hard time saying. That vague correctness is enough. I think you need something more --

QUESTION: It's enough at the trial level, but not at the appellate level.

MR. POSTOL: No, I --

QUESTION: You must make sure every settlement is fair at the trial level, but abandonment of appeal as a species of settlement, you don't have the same --

MR. POSTOL: I don't think they could go to the court of appeals on the standing -- on the settlement. In other words, the settlement level is all structured at the administrative level. They have at the administrative level the agency -- Congress has said the agency could decide if it's appropriate. I think the -- then they can go to the ALJ, and the benefits Review Board, because that's the agency. The agency --

QUESTION: You're saying there's no Article III issue at that point?

MR. POSTOL: I think at the agency level I do not believe there's an Article III standing.

QUESTION: Your primary argument is not Article III, as I understand it. It's just that adversely affected or agreed within the meaning of the statute here does not --

MR. POSTOL: That's correct.

QUESTION: Does embrace it.

MR. POSTOL: I think if you look at the -- our main argument is, if you look at the '72 amendments, there was no such thing as the agency appealing the decision, and there's nothing in the '72 amendments that suggests that Congress envisioned the Department of Labor to all of a sudden start appealing its own decisions.

QUESTION: And you're not relying, as I understand it, upon the definition of "person." That is not an argument you're making.

MR. POSTOL: Well, I think if Your Honor rejects -- well, no, I think we are, as an alternative.

QUESTION: I don't think you are, because you acknowledge that the Secretary would have standing if the Secretary's fund were affected.

MR. POSTOL: No. I think --

QUESTION: You don't acknowledge that?

MR. POSTOL: I don't acknowledge that.

QUESTION: You don't?

MR. POSTOL: I think that is an argument. I do not think that -- well --

QUESTION: I thought you'd given that away.

MR. POSTOL: You're right. Let me back up.

QUESTION: If you don't want to give it away --

MR. POSTOL: No, no --

QUESTION: -- then you can rely on person --

MR. POSTOL: I do precisely -- I agree that under Article III, Congress could give them standing to protect the fund. What I don't agree with is that Congress did that.

QUESTION: Did that.

MR. POSTOL: But you see, I think Congress said, when the agency rules to its Benefits Review Board, the agency is done.

QUESTION: That's it.

MR. POSTOL: All right. Now, if Congress wanted to, they could say in -- that --

QUESTION: You're saying, protect the fund by appointing good people to the Benefits Review Board. That's --

MR. POSTOL: They could do that.

QUESTION: That's the Secretary's --

MR. POSTOL: They have the ultimate power. They have the power to hire and fire the Benefits Review Board.

QUESTION: It is the Benefits Review Board also under the Black Lung Act.

MR. POSTOL: Yes, it is.

QUESTION: So it's --

MR. POSTOL: It's the same agency.

QUESTION: Right. But now, in answer to Justice Scalia, you seem to be making a purely statutory argument so that you'd have a dysjunction, if we accepted that argument. Congress appeared to have meant to have the same regime govern both acts --

MR. POSTOL: Yes.

QUESTION: -- is that not so?

MR. POSTOL: That is correct. But in the Black Lung Act, they said the Director has standing, and I think, as I pointed out in our brief, there's some logic to that, because in the Black Lung cases oftentimes the Director is protecting the Black Lung Fund.

QUESTION: Am I right that we just -- we got into this only because the Fourth Circuit raised the question on its own motion, and it did so because it thought that there was an Article III infirmity?

MR. POSTOL: Well, they raised it on their own. They did not rule on the Article III. what they said is, the affected and aggrieved standard is, in fact, identical to Article III, and we don't think that they are aggrieved or affected, so the Fourth Circuit equated the statutory definition with the Article III standard, and therefore didn't differentiate. If I can --

QUESTION: I assume that it's a question that the Court would have to raise sua sponte, whether the lack of standing is a constitutional lack or a statutory lack. If you have a case before you in which someone does not have statutory standing, I suppose that's a case over which you have no jurisdiction, so the mere fact that the court below raised it sua sponte doesn't mean that the court below was necessarily relying on constitutional grounds, isn't that right?

MR. POSTOL: That is correct. If they have no subject matter jurisdiction, they have no subject matter jurisdiction and they have to raise it.

May I go back to a point the Court raised earlier with the Solicitor, and that is, to understand the plaintiff's procedure, the fact is that the Director cannot file a claim. Under section 12 and 13 of the act, an employee must give notice of his injury, and within 1 year, under section 13, a claim, the injured party must file a claim.

The fact is, if the injured party does not file a claim, the Department of Labor cannot do anything about it. They are not some kind of super prosecutor. They are simply administrators, so that if the claimant decides, I don't want to file a claim, I was injured at work, but so be it, I don't want any money, the Director can't initiate the claims proceeding.

In addition --

QUESTION: Is that any different under the Black Lungs Act?

MR. POSTOL: I'm not sure, Your Honor. I tried a lot of Longshore cases. I've never tried a Black Lung case. I believe that they have to file a claim as well, but I'm not positive of that.

So that 1) the Director can't start the proceeding, so they have no control. Secondly, the Solicitor relies heavily on the fact that there is this administrative proceeding in which the Deputy Commissioner, now called District Directors, tries to bring the parties together, tries to get them to settle, but look what Congress did with that. Congress said, that's fine and good, but we're separating the administration from the adjudication, so when you go to the administrative law judge level, it's a de novo hearing. Nothing that happened before the administrator, the Deputy Commissioner, is in evidence. His ruling has no effect. That's how Congress set it up.

They then put an agency in, the Benefits Review Board, to give the final agency decision. Nowhere in there did they suggest that there would be some other part of the Department of Labor, because, in fact, when they amended the act in '72, there was no such thing.

And in fact, as Justice Scalia's question raised, if this agency has a right to intervene whenever it thinks a decision is wrong, then why can't the NLRB go around and say, this was a bad decision. We think it hurts labor unions. We would like to appeal.

So I think while the -- you could decide this on Article III grounds, I think there's a simple, easy way to decide it, and that is, in 1972, for the first 45 years, the agency never appealed its own decisions.

When Congress amended the act, and simply substituted the Benefits Review Board for the ultimate agency decision instead of the Deputy Commissioner, it changed nothing. It did not expect, it did not envision, and it did not authorize some creature to develop in the Department of Labor to then appeal one delegee's of the Secretary of Labor, the Benefit Review Board's decision.

If there are no more questions, despite the fact these nice lights haven't gone on yet, I think I've made all my points.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Postol.

Ms. Brinkmann, you have 1 minute remaining.

REBUTTAL ARGUMENT OF BETH S. BRINKMANN ON BEHALF OF THE PETITIONER

MS. BRINKMANN: Your Honor, the practical consequences to rule adversely would be that incorrect interpretations by the board would be binding on ALJ's even though the Director is the Government official charged with ensuring that the act is properly administered.

Also, the reason there was no appeals prior to 1972 was because it was not -- it was a unitary scheme at that point in time. In 1972, Congress intended to enlarge the Secretary's role in the adjudication of claims.

Third, I'd like to go back to the fact that the fact that the Director and the Secretary did not exercise the authority to instigate claims, we do believe under section 914 her authority to --

CHIEF JUSTICE REHNQUIST: Your time has expired, Ms. Brinkmann.

MS. BRINKMANN: Thank you, Your Honor.

CHIEF JUSTICE REHNQUIST: The case is submitted.

(Whereupon, at 10:56 a.m., the case in the above-entitled matter was submitted.)