Federal Court Strikes Down OALJ/BRB Efforts to Conceal Identity of Longshore and Black Lung Claimants

The National Association of Waterfront Employers has prevailed in its lawsuit filed against the Secretary of Labor over the use of claimant initials in case captions under the LHWCA (33 U.S.C.S. § 901 et seq.) and the Black Lung Benefits Act (30 U.S.C.S. §§ 901-944).  The National Association of Waterfront Employers is a trade association representing stevedoring companies and marine terminal operators.  They were joined in the suit by Old Republic Insurance Company and Bituminous Contractors, Inc., who were challenging the use of claimant initials in cases arising under the Black Lung Benefits Act.

On October 27, 2009, United States District Judge Rosemary M. Collyer of the United States District Court for the District of Columbia issued a Memorandum Order enjoining the continued use of claimant initials in case captions by both the Office of Administrative Law Judges and, by extension, the Benefits Review Board who had also adopted the practice by not revealing the full names once the cases reached their level.  By contrast, the various courts of appeals refused to go along with the practice and continued to issue case decisions using the full names of claimants.

Administrative rulemaking is governed by the Administrative Procedures Act ("APA"), 5 U.S.C.S. § 551 et seq.   Under the APA, formal rule making, including notice and comment, is required for any "substantive" rule promulgated by any administrative agency.  See 5 U.S.C.S. § 553(b), (c).  On the other hand, agency "procedural" rules do not require formal rulemaking.  See 5 U.S.C.S. § 553(b)(A).  In her Memorandum Order, Judge Collyer found that OALJ Chief Judge Vittone's July 3, 2006 policy announcement which was effective on August 1, 2006, was "substantive" rather than "procedural" in nature.  Accordingly, Judge Collyer found that under the APA, the OALJ should have engaged in formal rulemaking before implementing this policy.

Additionally, Judge Collyer found that only the Director of the Office of Workers' Compensation Programs and not the Chief Judge of the OALJ, was delegated authority by the Secretary to engage in formal rulemaking.  Thus, even if OALJ wanted to engage in formal rulemaking to continue the practice of concealing the names of the individual claimants, only the Director, and not the Chief Judge, has the authority to engage in formal rulemaking.

Finally, the court rejected the balance of the counts including those brought under the Freedom of Information Act, the First Amendment, and the Due Process Clause of the Fifth Amendment on various grounds including the fact that complete relief had already been granted through her analysis under the APA.

At this point the future of the continued use of claimant's initials remains unclear. In addition to appealing Judge Collyer's decision, the Director could engage in formal rulemaking.  Naturally, OALJ wished to avoid formal rulemaking because it is a time-consuming and cumbersome process.  However it looks like, at least for now, the use of initials is a thing of the past.  

© Copyright 2009 LexisNexis. This article will appear in a forthcoming release of the Benefits Review Board Service—Longshore Reporter.