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A controversy simmering for nearly two years within the legal community practicing administrative law at the U.S. Department of Labor has boiled over into a federal lawsuit. The suit was filed quietly last December by an association of employers that often defends claims brought under the Longshore and Harbor Workers Compensation Act and the Black Lung Benefits Act. The action argues that Chief Administrative Law Judge John M. Vittone and the Labor Department discarded centuries of legal custom � and made litigation research practically impossible � when Vittone ordered that only the initials of claimants be placed on documents publicly available via the Internet. The suit seeks to have the U.S. Department of Labor either rescind the order or go through the rule-making process of the Administrative Procedure Act. National Association of Waterfront Employers v. Elaine Chao, No. 1:07-cv-02250 (D.D.C.). “This [order] makes it more difficult for employers to research people, which is critical in the maritime industry. If somebody is a frequent filer, you want their claims history,” said Mark Solomon of Greenberg Traurig, representing Old Republic Insurance. The insurance company, which defends many black lung claims, is an intervener in the case with the National Association of Waterfront Employers. There are signs of unrest among Labor Department administrative law judges about the rule. Judge Thomas F. Phalen Jr. added a footnote to an order of remand noting that “the Department has installed software that prevents entry of the claimant’s full name on final decisions and related orders.” He argued that the prohibition on use of full names “contravenes the plain language” of the Freedom of Information Act requirement that “in each case the justification for the deletion [of identification] shall be explained fully in writing.” J.R. v. Rose Ann Coal Co., No. 2006-BLA-6137. Phalen declined further comment. Vittone, in his July 2006 memo ordering the exclusive use of initials, wrote that commercial Internet search engines removed the “practical obscurity” of claimants’ records that have always been public but available primarily in paper files. The Labor Department decided no longer to use claimants’ names to “limit their exposure on the Internet.” The department stood by that reasoning when, in January 2007, it eliminated a regulation that required full names on decisions about black lung benefits. Vittone referred a request for comment to the U.S. Department of Justice. A DOJ spokesman said that the government will file a response by Feb. 25.

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