Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 16 (1995)

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Cite as: 514 U. S. 122 (1995)

Ginsburg, J., concurring in judgment

ferred standing upon the [OWCP] Director without infringing Article III of the Constitution." Ante, at 133 (emphasis in original).1 While I do not challenge the Court's conclusion that the Director lacks standing under the amended Act, I write separately because I am convinced that Congress did not advert to the change—the withdrawal of the LHWCA administrator's access to judicial review—wrought by the 1972 LHWCA amendments. Since no Article III impediment stands in its way, Congress may speak the final word by determining whether and how to correct its apparent oversight.

I

Before the 1972 amendments to the LHWCA, the OWCP Director's predecessors as administrators of the Act, officials called OWCP deputy commissioners, adjudicated LHWCA claims in the first instance. 33 U. S. C. 919, 923 (1970 ed.); see Kalaris v. Donovan, 697 F. 2d 376, 381-382 (CADC), cert. denied, 462 U. S. 1119 (1983). A deputy commissioner's claim determination could be challenged in federal district court in an injunctive action against the deputy commissioner. 33 U. S. C. 921(b) (1970 ed.); see Parker v. Motor Boat Sales, Inc., 314 U. S. 244, 245 (1941). As a defending party in district courts, the deputy commissioner could appeal adverse rulings to the courts of appeals pursuant to 28 U. S. C. 1291, even when no other party sought appeal. See Henderson v. Glens Falls Indemnity Co., 134 F. 2d 320, 322 (CA5 1943) ("There are numerous cases in which the deputy commissioner has appealed as the sole party, and his

1 In contrast, the Court of Appeals for the Fourth Circuit raised the standing issue in this case on its own motion because it feared that judicial review initiated by the Director would "strik[e] at the core of the constitutional limitations placed upon th[e] court by Article III of the Constitution." 8 F. 3d 175, 180, n. 1 (1993); see also Director, Office of Workers' Compensation Programs v. Perini North River Associates, 459 U. S. 297, 302-305 (1983) (noting but not deciding Article III issue).

137

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