National Ass'n of Waterfront Employers v. Solis

Decision Date27 October 2009
Docket NumberCivil Action No. 07-2250 (RMC).
Citation665 F.Supp.2d 10
CourtU.S. District Court — District of Columbia
PartiesNATIONAL ASSOCIATION OF WATERFRONT EMPLOYERS, Plaintiff, and Old Republic Insurance Company and Bituminous Contractors, Inc., Intervenors, v. Hilda L. SOLIS, Secretary of Labor, Defendant.<SMALL><SUP>1</SUP></SMALL>

Francis Edwin Froelich, Carroll & Froelich, PLLC, Washington, DC, for Plaintiff.

Mark Elliott Solomons, Greenberg Traurig, L.L.P., Washington, DC, for Plaintiff/Intervenors.

Precious Murchison, Greenberg Traurig LLP, Mary Lou Smith, Howe, Anderson & Steyer, P.C., Washington, DC, for Intervenors.

Scott Risner, U.S. Department of Justice, Washington, DC, for Defendant.


ROSEMARY M. COLLYER, 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 & 702.331.2 After a hearing, the ALJ issues a decision and order awarding benefits or rejecting the worker's claim.3

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.4 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 282.5 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 preexisting 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).6 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).7 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.8 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 construction companies are potentially liable under the Black Lung Act to employees whose work involves exposure to coal dust and who become disabled as a result. ABC also publishes a newsletter regarding developments under the Black Lung Act.

NAWE filed an amended complaint alleging four counts against the Secretary: (1) the adoption of the Rule violates the procedural requirements of the Longshore Act and the APA; (2) the Rule is arbitrary and capricious because the Chief ALJ adopted it without the authority to do so; (3) the Rule violates the Longshore Act, the APA, the common law, and the First and Fifth Amendments to the U.S. Constitution; and (4) if the Rule is lawful, then the "Fourteen Day Rule," 33 U.S.C. § 914(b) & (e), violates the Fifth Amendment. See Am. Compl. [Dkt. # 32].9 The Intervenors' amended complaint adds allegations that the Rule violates the Black Lung Act and FOIA. See Intervenors' Am. Compl. [Dkt. # 33].10

NAWE alleges that the Secretary did not identify third parties who have an interest in knowing the claimants' identities in ALJ orders and decisions, the Secretary did not balance the interests of such third parties against claimants' interests, and the Secretary did not consider a more narrowly tailored rule. Am. Compl. ¶¶ 23-25, 35. NAWE asserts that it needs to know the identity of claimants for a variety of reasons including, for example, the need to determine: whether a current claimant previously was denied benefits for the same or similar injury, whether a payment owed by a second employer should be reduced by compensation already paid for the injury by a prior employer, and whether a claim should be paid out of a "special fund" for employees who were previously injured. Id. ¶¶ 64, 66, 68. Intervenors similarly assert that the Rule prevents them "from obtaining the claims history of individual claimants on a timely basis for the purpose of investigating and defending claims within the regulatory time limits." Intervenor's Am. Compl. ¶ 15. Because both NAWE and ABC publish newsletters, they also assert that as members of the press they need to know the identity of claimants. See id. ¶¶ 16-17, 49; Am. Compl. ¶¶ 75-79

NAWE and Intervenors seek a declaratory judgment that the Rule violates the law, and they seek an injunction requiring the Secretary to withdraw the Rule, prohibiting the Secretary from adopting a new rule unless the Secretary uses formal rulemaking procedures, and prohibiting the Secretary from adopting a new rule requiring concealment of claimant names except when anonymity is based on individual special circumstances. The Secretary moves to dismiss or for summary judgment. NAWE and Intervenors also move for summary judgment.


The Secretary moves to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), or in the alternative, for summary judgment under Federal Rule of Civil Procedure 56. Where matters outside the pleadings are presented in a motion to dismiss, the court must treat the motion as one for summary judgment under Rule 56. Fed.R.Civ.P. 12(d). Here, the Court looks to the pleadings as well as the Administrative Record. Because the Court...

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    • U.S. District Court — District of Columbia
    • March 20, 2013
    ...13,526 § 3.5(a), 3.5(c) (emphasis added). As discussed above, these are substantive interests. See, e.g., Nat'l Ass'n of Waterfront Emp'rs v. Solis, 665 F.Supp.2d 10, 17 (D.D.C.2009) (holding that “informational interests are substantive and are entitled to APA protection” (citing Chrysler ......
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