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National Association of Waterfront Employers v. Solis

October 27, 2009


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Plaintiff and Intervenors challenge the Department of Labor's adoption of an administrative rule requiring use of claimants' initials instead of their full names in decisions and orders of administrative law judges in cases under the Longshore and Harbor Workers' Compensation Act ("Longshore Act"), 33 U.S.C. §§ 901-950, and the Black Lung Benefits Act ("Black Lung Act"), 30 U.S.C. §§ 901-944. See AR 282-83 (Memorandum dated July 3, 2006, promulgating the "Rule"). Plaintiff and Intervenors contend that the Rule is arbitrary and capricious, that it violates the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, the Longshore Act, the Black Lung Act, common law, and the First and Fifth Amendments to the U.S. Constitution. The Secretary moves to dismiss or for summary judgment, and Plaintiff and Intervenors also move for summary judgment. As explained below, the motions will be granted in part and denied in part. The Rule will be set aside and its enforcement enjoined because it was not properly promulgated under the APA.


The Longshore Act and the Black Lung Act establish workers' compensation programs to pay benefits to certain maritime workers and coal mine employees, respectively. These programs require employers or their insurance carriers to pay benefits to eligible claimants at government mandated rates, and the programs share a statutory system for adjudication of benefit claims. The Department of Labor's Office of Workers' Compensation Programs ("OWCP") carries out the initial processing of claims and maintains records of the administration of these and other compensation programs. See 20 C.F.R. §§ 1.1, 1.2, & 701.201.

If claims are not resolved administratively by OWCP, they are adjudicated by Department of Labor administrative law judges ("ALJs"). Under the Longshore Act and the Black Lung Act , if a worker's claim for benefits is contested by the employer or by the employer's insurer, upon request of any party the matter is referred to the Office of the Chief Administrative Law Judge of the Department of Labor for a hearing by an ALJ. See 33 U.S.C. § 919(d); 20 C.F.R. §§ 725.451-.452 & 702.331.*fn2 After a hearing, the ALJ issues a decision and order awarding benefits or rejecting the worker's claim.*fn3

The Chief Administrative Law Judge of the Department of Labor declared by memorandum that as of August 1, 2006, decisions and orders by ALJs involving the Longshore Act and the Black Lung Act would no longer display the claimant's full name in the caption and text. AR at 282-83. Instead, claimants would be identified by their first and last initials. Id. The Chief ALJ instituted the Rule due to concerns about a claimant's privacy when ALJ orders and opinions are posted on the Internet. He explained in the memorandum:

The 1996 e-FOIA amendments required agencies to publish adjudicatory decisions on the Internet.*fn4 A consequence of that law is that commercial Internet search engines negated any "practical obscurity" that was previously true of agency decisions relating to the [Black Lung Act] and the [Longshore Act]. Thus, to limit a claimant's exposure on the Internet, the Department of Labor has decided that it will avoid referring directly to the claimant's name in decisions and other orders that are required to be posted on the DOL web site on or after August 1, 2006.

Id. at 282.*fn5 Even though claimants' names are concealed on all ALJ decision and orders, claimants' names are not considered secret. Parties to the administrative proceeding have notice of the claimant's full name. As the memorandum indicated further:

The caption will display the claimants initials. . . . A cover or referral memorandum, not part of the decision, will be sent only to the parties. That memo will identify the claimant's full name.

Id. at 283. Also, hearings under the Black Lung Act and the Longshore Act remain open to the public. See 20 C.F.R. §§ 702.344 & 725.464.

The Chief ALJ issued the Rule as a rule of agency procedure, without notice and comment. See 5 U.S.C. § 553(b)(3)(A). The Secretary of Labor did not publish a proposed rule and invite public comment and did not publish the final Rule in the Federal Register.

A pre-existing rule that applied to claims under the Black Lung Act provided that ALJ decisions "shall contain a statement of the basis of the order, the names of the parties, findings of fact, conclusions of law . . . ." 20 C.F.R. § 725.477(b) (version effective prior to Jan. 30, 2007) (emphasis added).*fn6 After the adoption of the Rule at issue here, § 725.477(b) was replaced with one that did not require ALJ decisions to contain party names. See 72 Fed. Reg. 4204 (Jan. 30, 2007); 20 C.F.R. § 725.477(b).*fn7 The new regulation was published in the Federal Register as a final rule without opportunity for notice and comment because it allegedly pertained "solely to the Department's formatting of decisions and orders." 72 Fed. Reg. at 4204-05.

Plaintiff and Intervenors object to the Rule created by the Chief ALJ's memorandum.*fn8

Plaintiff is the National Association of Waterfront Employers ("NAWE"), a trade association that represents stevedoring companies and marine terminal operators on issues under the Longshore Act and other federal laws. NAWE members are employers under the Longshore Act, see 33 U.S.C. § 902(4), and some members are also insurance carriers under the Longshore Act. See id. § 902(5). NAWE also publishes a monthly newsletter. Intervenors are Old Republic Insurance Company and the Association of Bituminous Contractors, Inc. ("ABC"). See Order [Dkt. # 5] (granting motion to intervene as plaintiffs). Old Republic Insurance Company is a workers' compensation and employer liability insurer, insuring liabilities under the Black Lung Act. It also acts as claims administrator for self-insured coal mine operators. ABC is an employer association, and its members are contractors who perform construction work for coal companies. Such ...

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