270
Opinion of Scalia, J.
we held that the Director does not always have the right to appeal as a petitioner to the courts of appeals, 514 U. S., at 135-136, and we now hold that the Director may appear as a respondent before those courts, this will not result in a "lopsided" scheme whereby the Director can appear only in defense of the Benefits Review Board's decisions. The Director, even as a respondent, is free to argue on behalf of the petitioner, see Director, Office of Workers' Compensation Programs v. Perini North River Associates, 459 U. S. 297, 301 (1983) (Director appeared as respondent before the Court of Appeals for the Second Circuit but filed a brief on behalf of the petitioner), and to challenge the decision of the Board. Indeed, the Director's participation before the courts of appeals would be plenary but for the inability to initiate an appeal; the Director must usually wait for someone else to do so first. Although this is unusual, it does not result in a "lopsided" proceeding and is an oddity wrought by congressional "oversight," Newport News, 514 U. S., at 128-129 (Ginsburg, J., concurring), and not by virtue of our holding today.
For these reasons, the judgment of the United States Court of Appeals for the Fifth Circuit is affirmed.
It is so ordered.
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 subagency 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 (Board or 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
Page: Index Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 NextLast modified: October 4, 2007