SUPREME COURT OF THE UNITED STATES

No. 95–1081

INGALLS SHIPBUILDING, INC., et al., PETITION-

ERS v. DIRECTOR, OFFICE OF WORKERS' COM-

PENSATION PROGRAMS, DEPARTMENT

OF LABOR, et al.

on writ of certiorari to the united states court of appeals for the fifth circuit

[February 18, 1997]

Justice Scalia, with whom Justice Thomas joins, concurring in part and dissenting in part.

Today's opinion concludes, on the basis of Federal Rule of Appellate Procedure 15(a), that the Director of the Office of Workers' Compensation Programs, a sub-agency within the Department of Labor, is a proper respondent in the courts of appeals when review is sought of an order of the Benefits Review Board (BRB), an independent adjudicatory body within that Department. This conclusion is at odds with the plain language of the Rule, and produces a bizarre arrangement that will have troublesome consequences for both agencies and private parties. I respectfully dissent from the Court's judgment on this issue.

Federal Rule of Appellate Procedure 15(a) provides:

"Review of an order of an administrative agency, board, commission, or officer (hereinafter, the term `agency' will include agency, board, commission, or officer) must be obtained by filing [a petition for review]. . . . In each case the agency must be named respondent."

It is clear (and the Court does not say otherwise) that despite the Rule's shorthand use of "agency" in the second sentence, the entity that must be named respondent is the one whose order is under review, whether it is an agency, board, commission, or officer. Thus, in determining whether the Rule authorizes the Director, as representative of the Department of Labor, to appear as a respondent in the courts of appeals, the central question is whether the order under review is that of the Department. The answer to that question is obviously and unavoidably no.

To begin with, the very statute that provides for the judicial review at issue indicates that the order under review is that of the BRB:

"Any person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred . . . . Upon such filing, the court shall have jurisdiction of the proceeding and shall have the power to give a decree affirming, modifying, or setting aside, in whole or in part, the order of the Board . . . ." 44 Stat. 1436–1437, as amended, 33 U. S. C. §921(c) (emphasis added).

The governing statute elsewhere specifies that the Board is the statutorily created entity responsible for "hear[ing] and determin[ing] appeals . . . taken by any party in interest from decisions with respect to claims of employees under" the Longshore and Harbor Workers' Compensation Act (LHWCA). §921(b)(3). The Board's disposition of those appeals is not subject to review by the Secretary of Labor in his capacity as head of the Department, but must be appealed to the courts pursuant to the review provision quoted above.

Despite the clarity of the statute, the Court concludes that it is "in reality" an order of the Department that is under review in the courts of appeals. Ante, at 18–21. It offers two arguments in support of this proposition. First, it says—relying upon a regulation promulgated by the Secretary, 20 CFR §801.1 (1996), and upon a statement in the House Report on the LHWCA Amendments of 1972, 86 Stat. 1251—that the Board is "a subdivision of the Department of Labor." Ante, at 20. But of course neither a Secretary's regulation nor a House Committee's report has the power to transform a statutory entity into something it is not. While the Board may be a "subdivision" of the Department of Labor—and thereby subject to the Secretary's authority—for certain purposes, see, e.g., 33 U. S. C. §921(b)(1) (Secretary appoints Board members); §939(a) ("Except as otherwise specifically provided, the Secretary shall administer the provisions of" the LHWCA); 20 CFR §802.101 et seq. (1996) (regulations of Secretary establishing rules of procedure for Board), the Court expressly acknowledges that the Board is not a subdivision in the sense that the Secretary, as head of the Department, can direct or override its decisions. Ante, at 19–20. But that sense is the one relevant to the question whether an order of the Board is "in reality" an order of the Department, ante, at 19. Insofar as vindication of the order is concerned, there is no "necessary identity of interest" between the Board and the Department or the Director as its chosen delegate. Shahady v. Atlas Tile & Marble Co., 673 F. 2d 479, 485 (CADC 1982) (emphasis deleted). Indeed, the Department through its delegate may well be hoping to see the Board's order overturned in the court of appeals. See, e.g., Parker v. Director, Office of Workers' Compensation Programs, 75 F. 3d 929, 932–934, 935, n. 7 (CA4), cert. denied, 519 U. S. ___ (1996); Simpson v. Director, Office of Workers' Compensation Programs, 681 F. 2d 81, 82 (CA1 1982), cert. denied sub nom. Bath Iron Works Corp. v. Director, Office of Workers' Compensation Programs, 459 U. S. 1127 (1983). The Court's attribution of the Board's order to the Department contradicts our recognition, only two Terms ago, that it is "quite simply contrary to the whole structure" of the LHWCA to view the Board's adjudicatory functions as the province of (implicitly) the Department as overarching agency and (explicitly) the Director as its delegate. Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U. S. 122, ___ (1995) (slip op., at 12).

The second argument offered in support of the view that the Director is a proper respondent when review is sought of an order of the Board is that (1) Rule 15(a) requires the naming of someone representing the agency, and (2) the Director is certainly a more sensible candidate than the Board. Ante, at 18, 19. The second part of this analysis, the faute de mieux point, is questionable: The Board could readily develop a staff to defend its judgments, and it is hard to imagine a worse defender than an entity that is free to disagree (and often does disagree) with the order under review. Cf. Pittston Stevedoring Corp. v. Dellaventura, 544 F. 2d 35, 42, n. 5 (CA2 1976) (Friendly, J.) (suggesting that Board rather than Director is proper respondent), aff'd on other grounds sub nom. Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249 (1977). But the real flaw in the reasoning is the first step, which assumes that when Rule 15(a) states that the "agency, board, commission, or officer" whose order is under review "must be named respondent," it means to confer upon such entities (or, in the Court's view, their parent agencies) a party status and litigating power they would not otherwise possess—so that a purely adjudicatory body with no policymaking responsibility, which would otherwise not be a party, is suddenly free to step in (perhaps through its parent) to "defend" its judgment. That is not only an unlikely function for the Federal Rules of Appellate Procedure to perform (and thus an unlikely reading of the language of Rule 15(a), which, contrary to the Court's suggestion, see ante, at 17, is far from unambiguous on this point); it is an impermissible function, since it may give appellate courts jurisdiction over a dispute (if it can be called a dispute) that would otherwise be beyond their ken, namely, one in which the victorious private party to the lower-court adjudication has no interest in defending it, and only the adjudicator itself (or its parent) appears. That extension of litigation would violate Rule 1(b), which provides that the Federal Rules of Appellate Procedure "shall not be construed to extend or limit the jurisdiction of the courts of appeals as established by law." Fed. Rule App. Proc. 1(b). In the present context, for example, if the victorious employer against whom the employee takes an appeal chooses not to contest it, or ceases to exist while the appeal is pending, the agency's status as a party respondent would permit continued litigation of the appeal. The concern with extending the jurisdiction of the courts of appeals through participation of the Director is more than theoretical; he has in the past sought to continue litigation of claims (at least at the Board level) that the employee and employer preferred not to pursue. E.g., Ingalls Shipbuilding Div., Litton Systems, Inc. v. White, 681 F. 2d 275, 277 (CA5 1982), overruled on other grounds, Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F. 2d 399, 407 (CA5 1984).

The Court's response to all of this is that concerns about extension of jurisdiction are "not . . . controlling" in this case, since both private parties are participating. Ante, at 17–18. But of course when we interpret a rule of general application, such as Rule 15(a), we are bound to take into account not only the ramifications of our interpretation for the case before us, but also the ramifications for future cases. Indeed, a different approach would make the meaning we ascribe to the general rule turn on the specifics of the case that first raises the issue. For good reason, that is not our practice. Because interpreting Rule 15(a) to make the Director a party would sometimes extend the jurisdiction of the courts of appeals, and because Rule 1(b) requires that the Rule be construed to avoid that result, the Rule should not be given the meaning that today's opinion accords it.

Invoking Rule 15(a) (and, of course, ignoring the identity of the body that issued the order) is the only imaginable basis for concluding that the Director is always a proper respondent in the courts of appeals, regardless of the outcome below. There is, however, a respectable argument in support of his respondent status when he participates before the Board and prevails. That parties in whose favor the judgment under review runs are ordinarily proper respondents or appellees in the courts of appeals is so obvious that the Federal Rules of Appellate Procedure—which, contrary to the Court's belief, purport to prescribe which parties must be named, not who is a party—do not bother to provide for the naming of such individuals. (That is to say, there is no analogue to Rule 15(a) for them.)

But the Director—even assuming he is entitled to participate as a party before the Board, compare 20 CFR §802.201(a)(1) (1996) (allowing participation) with Newport News, supra, at ___ (slip op., at 3–4) ("[T]he [LHWCA] does not by its terms . . . grant [the Director] authority to prosecute appeals to the Board")—is not an ordinary prevailing party. An ordinary party in that position would, if he had lost below, have the right to prosecute an appeal. The Director, in contrast, has no such power. Newport News, supra. This inability to appeal reflects the limited character of the interests of the Director affected by the Board's judgment, which include neither his exposure to financial or other liability, nor nullification of one of his own orders, but only legal or policy disagreement with the Board's decision. It would be an odd and novel result if the Director, in cases of this nature, could be named as a respondent if he was on the prevailing side below, but could not initiate an appeal if he was on the losing side. I would not reach such a result unless the statute left no choice, which is not the case here.

Finally, I may observe that today's game has really not been worth the candle. The strange and countertextual arrangement that the Court has constructed might perhaps be excused if excluding the Director from party status would do some substantial harm to the scheme of the LHWCA. But it does not. His "significant role" in administering the Act, ante, at 13, does not mean that his participation in proceedings before the courts of appeals is essential. As we emphasized in Newport News, limits on the Director's ability to participate in the judicial-review process are of relatively minor consequence because his "power to resolve legal ambiguities in the statute" may always be exercised through his rulemaking authority. 514 U. S., at ___ (slip op., at 13). In addition, the Director is guaranteed the right to file an amicus brief in the court of appeals, with or without the consent of the parties. Fed. Rule App. Proc. 29.

* * *

I think it plain that the intent of Rule 15(a) is not to restructure the Executive Branch, or to convert Article I courts (or their parent agencies) into litigating arms, but rather simply to require that those agencies entitled to party status—i.e., those that would be entitled to intervene in the appeal under the criteria set forth in Rule 15(d)—must be named as respondents. By making the Rule much more than that, and then flatly misidentifying, through sheer will power, the agency whose "order" is at issue, the Court creates a zany system in which an Executive officer from whom the Board has carefully been made independent, and one who will often disagree with—and perhaps even have argued against—

the Board's judgment, will be charged with "defending" that judgment in the court of appeals, where, once arrived, he is free instead to maintain an independent attack upon the judgment, even though, as we held in Newport News, he would not have been able to launch that attack by appealing on his own. Today's disposition regarding the Director's status is at odds with the relevant provisions of law and creates the potential for disruption of orderly litigation and settlement of disputes between employers and employees. I respectfully dissent from that portion of the judgment.