ON PETITION FOR REVIEW OF A DECISION OF THE BENEFITS REVIEW BOARD UNITED STATES DEPARTMENT OF LABOR
Before: ADAMS and WEIS, Circuit Judges and FOGEL,*fn* District Judge
Before us are consolidated petitions filed by the Director of the Office of Workers' Compensation Programs, Department of Labor (Director), for review of the decisions of the Benefits Review Board, Department of Labor. Jurisdiction is asserted under Section 422(a) of the Federal Coal Mine Health and Safety Act of 1969 (Black Lung Act), 30 U.S.C. § 922(a), which incorporates by reference, the review provisions of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 921.
The claimants below, Leonard F. Conrad and Stanley F. Solarczyk, filed their claims for benefits with the Department of Labor in July, 1973 and February, 1975, respectively. Both claims were adjudicated by hearing officers appointed by the Secretary of Labor pursuant to 20 C.F.R. § 715.101(a)(27); in each case an award was entered against the Rochester & Pittsburgh Coal Company, a respondent in this matter.*fn1 The respondents appealed the awards to the Benefits Review Board (Board), which vacated them on the ground that the hearing officers who conducted the formal hearings preceding the awards were not qualified as hearing examiners pursuant to the Administrative Procedure Act.*fn2 Following each determination, the Director sought judicial review in this Court through the petitions that are now before us, which we have consolidated for purposes of review.
Prior to oral argument we requested that the parties address the question
whether the Director of the Office of Workers' Compensation Programs has standing to file the petition involved in this matter in view of the usual rules relating to standing, and in view particularly of 33 U.S.C. § 921(c) (Supp. II 1972).
After argument, we allowed the parties additional time to submit supplemental briefs on the issue of standing. A review of the entire record before us, including the principal and supplemental briefs, as well as consideration of the matters presented at oral argument, has led us to conclude that petitioner lacks standing. The petitions for review will therefore be dismissed.
I. STANDING UNDER THE LHWCA AS INCORPORATED IN THE BLACK LUNG ACT.
Under the procedures established by the LHWCA, claims filed by coal miners or their dependents are heard initially by a hearing examiner. 33 U.S.C. § 919(a), (d). Under the Black Lung Act, primary liability for payment of benefits rests with the responsible coal mine operator. The responsible operator is defined as one who operated a mine employing a claimant who died or suffered total disability due to pneumoconiosis arising, at least in part, during the course of employment with that operator. The Secretary of Labor, under Part C, is secondarily liable for payment of benefits; his obligation attaches (1) if the responsible operator either does not have insurance or fails to pay benefits within a reasonable time, or (2) if there is no identifiable responsible operation, 30 U.S.C. § 934. Thus, the Secretary of Labor, through his designated representative, the Director*fn3 is defined by the applicable regulations as a party in interest "in any proceeding in which is obligation to pay benefits under section 424 [30 U.S.C. § 934] of the Act or to take other action under provisions of the Act may depend on the resolution of an issue or issues to be determined or adjudicated in that proceeding." 20 C.F.R. § 725.411(b).
Appeals from determinations of a hearing examiner may be prosecuted by any "party in interest" and are heard by the Benefits Review Board of the Department of Labor. 33 U.S.C. § 921(b). Review of a final order of the Board may be obtained by "[any] person adversely affected or aggrieved" by the order, in the Court of Appeals for the circuit in which the claim arose. 33 U.S.C. § 921(c).
Under the LHWCA, the test for standing to seek judicial review of administrative agency determinations is the same as that enunciated in the Administrative Procedure Act.*fn4 See e.g. Sierra Club v. Morton, 405 U.S. 727 (1972); Data Processing Service v. Camp, 397 U.S. 150 (1970). Hence, the Director, in order to sustain his contention that he does have standing before us, must establish that he has suffered injury in fact to an interest arguably within the zone of interests sought to be protected by the Act. Data Processing, supra, 397 U.S. at 152-53. He must demonstrate that "he is himself adversely affected" by the actions for which review is sought. Sierra Club, supra, 405 U.S. at 740.
We turn, then, to the contentions of the parties.
II. CONTENTIONS OF THE PARTIES REGARDING STANDING.
The Director, at oral argument and in his supplemental briefing, asserts a two-pronged basis for standing. First, he claims to be a person "adversely affected or aggrieved" by the order of the Board in that he is obligated, by reason of his secondary liability under Section 424 of the Black Lung Act, to pay benefits to the claimants in the cases before us. Second, he contends that the pervasiveness of his interest in securing proper and effective implementation of the provisions of the Black Lung Act, including the achievement of ...