UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: January 17, 1977.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR PETITIONER
ROCHESTER & PITTSBURGH COAL COMPANY AND OLD REPUBLIC INSURANCE COMPANY RESPONDENTS
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*
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 an interpretation of the legislation which he considers fair and correct is sufficient to confer standing upon him as an aggrieved party.
A. Secondary Liability of the Director.
The first contention of the Director is clearly lacking in merit. Section 424 of the Black Lung Act provides for secondary liability on the part of the Secretary only when the claimant "is entitled to benefits." 30 U.S.C. § 934. In the cases before us, the awards of the hearing officers in favor of claimants were vacated by the Board because of the asserted lack of proper qualifications of the hearing officers. (Joint Appendix, 21, 51). Claimants are not, therefore, presently entitled to payment of benefits under the Act, and the Director cannot confer standing upon himself by his gratuitous payment of benefits to the claimants below.
While it is correct that under the Black Lung Act, the Director may take an adversary position to the extent that the Secretary may be subject to potential secondary liability under section 424 of the Act, the instant action does not present such a situation. The obligation of the Secretary to pay benefits out of the public treasury attaches under section 424 either when there is no identifiable responsible operator or when the responsible operator has no insurance or fails to pay benefits. There is no allegation in this case that a responsible operator has not been identified; indeed, the responsible operator is a respondent before us. There is no allegation that the operator is uninsured; indeed, the insurance company is another respondent before us. In fact, the record before us reflects that the Director did not appeal from the initial ruling of the hearing officer. To the contrary, the very respondents who were held to be liable are the parties who prosecuted that appeal. The director was galvanized into action only after the Board vacated the award of the hearing examiner, thus eliminating, at least temporarily, any remaining possibility of secondary liability on the part of the Secretary. Only then did the Director assert an active interest in these cases through his appeal to this Court.
It is clear, therefore, under the facts before us, that the Director does not seek review of the Board's decision as an adverse party litigant. The only parties who are actually aggrieved or adversely affected by the Board's decision are the claimants below, who are not parties before us.*fn5
B. The Director's Interest in obtaining a fair and correct interpretation of the Act.
A more substantial argument in support of standing arises from the Director's contention that his statutory responsibility to administer the Black Lung Act, and to promulgate the necessary and appropriate administrative regulations to fulfill his obligations, gives him a sufficient interest in the manner in which the Act is implemented and interpreted. Hence, he argues he derives standing from the provisions of Section 921(c) of the LHWCA, 33 U.S.C. § 921(c).
He cites several state appellate court decisions in support of this contention (but no federal court decisions). In State v. Hix, 132 W. Va. 516, 54 S.E.2d 198 (1949), the court held that the State Director of Unemployment Compensation was
entitled to prosecute appeals to bring about what he believes to be a fair and correct interpretation of the statutes under which he operates.
Id. 54 S.E.2d at 199-200.
In re Halifax Paper Company, Inc., 259 N.C. 589, 131 S.E.2d 441 (1963), held that the State Commissioner of Revenue had standing to challenge what he considered to be an incorrect interpretation of the applicable state statutes which he was charged with enforcing.
The Director argues that the rationale of these decisions is compelling, and that we should therefore conclude that he does, indeed, have standing before us. We disagree. In State v. Hix, supra, the judicial review statute, which provided that "any party aggrieved" by the decision of the Board of Review could secure judicial review of the determination, specifically included the Director as a necessary party to any judicial review. In Halifax the decision which the Commissioner of Revenue sought to review would have had the direct effect of depriving the state of revenues to which the Commissioner asserted the state was entitled. The Commissioner, as the state official primarily responsible for overseeing those revenue funds, was clearly aggrieved by the Board's determination. Thus, those two decisions do not support the Director's contention under the facts, circumstances, and controlling legislation with which we are faced in this matter.*fn6
Moreover, the necessary underpinning to support invocation of the doctrine of standing is simply not present in this case. We note that the LHWCA is not a typical administrative review statute in that it does not cast the individual claimant and the agency in adverse roles. The benefits sought by claimants are private benefits, not government benefits. The hearing examiner who initially determines a claimant's entitlement to benefits, and the Board which reviews that decision, perform purely adjudicative functions.
Additionally, the Director's status as a party in interest before the hearing officer and the Board is not a sufficient basis for establishing standing before this Court. One's participation in an administrative agency proceeding as an "interested party" does not in and of itself provide the springboard for that person to claim the right to judicial review as an aggrieved person. Independent Investor Protective League v. Securities & Exchange Commission, 495 F.2d 311 (2d Cir. 1974). Under the LHWCA this distinction is critical. Section 921(b) provides that appeals to the Benefits Review Board may be taken by any party in interest; in contrast, further review in the appropriate Court of Appeals may be sought only by persons "adversely affected or aggrieved" by the decision of the Board. 33 U.S.C. § 921(c).
Finally, we note the recent decision of the Court of Appeals for the Fourth Circuit, I.T.O. Corporation of Baltimore v. Benefits Review Board, 542 F.2d 903 (4th Cir. 1976) (en banc), dismissing the Director as a party respondent for lack of standing under the LHWCA. It has been held in I.T.O., supra, that in order to be properly before the Court the Director had to have "some concrete stake in the outcome of the case." Id. at 907. The Director asserted, in I.T.O., supra, that he had a stake in the outcome because he was
directly affected in his official capacity by the correctness of the Board's decision involving the proper scope of coverage of the Act with whose administration he is charged as the designee of the Secretary of Labor.
Id., quoting from Brief of Respondent. The Court stated, however, that the Director's general administrative duties, in connection with implementation of the provisions of the Act, and, indeed, his specific duty to give legal and other assistance to claimants under the Act, 33 U.S.C. § 939(c)(1), did not establish the requisite concrete stake in the outcome of the case necessary to support his status as a party.
The failure to demonstrate a distinctly personal interest which has been adversely affected by the decisions of the Board, precludes the Director from obtaining review of the matter in this Court. Simon v. Eastern Kentucky Welfare Rights Organization, U.S. , , 48 L. Ed. 2d 450, 461 (1976); Sierra Club v. Morton, supra. The Director's duties of administration of the statutory program involved here will not alone supply that interest.
Accordingly, we hold that the Director of the Office of Workers' Compensation Programs lacks standing to prosecute the within Petitions for Review, Nos. 76-1828 and 76-1868. Therefore, the petitions will be dismissed.*fn7