concurring in part and dissenting in part.
I regret that I am‘not able fully to subscribe to the court’s eminently reasonable opinion. I agree that it makes good sense to adopt the generous construction of the Long-shore and Harbor Workers’ Compensation Act, 33 U.S.C. 901 et seq. (“Longshore Act”), contended for by the Secretary of Labor. Under the regime espoused by the Secretary, a worker who has, without having filed a claim with the Office of Workers’ Compensation Programs (“OWCP”), actually received compensation for an injury assertedly compensable under the Longshore Act would have standing to ask the OWCP for a formal declaration of coverage. In the event that the worker should at some later time suffer a disability alleged to be a recurrence of, or derivative from, the original injury, the existence of the declaration of coverage would obviate litigation of the coverage issue at a point in the future when some witnesses might have disappeared and the memories of' available witnesses might have dimmed. The court — correctly, in my view — reads the Longshore Act as not mandating the regime advocated by the Secretary; but the court also — again correctly, in my view — finds, in effect, that the Secretary has made a persuasive case that the regime would be a salutary elaboration of the Act’s prescribed procedures, and that measured judicial respect for the Secretary’s policy-making responsibilities counsels acquiescence in the Secretary’s position. But to all this the court adds a significant caveat — one which I also agree with— namely, that a claimant is not entitled to a declaration of coverage unless the claimant is able to establish •“ ‘a significant possibility’ of future disability based on the past injury.”
Given my agreement with the core of the court’s opinion, what is it I disagree with? My disagreement has nothing to do with the court’s analysis of the circumstances in which the issuance of a declaration of coverage is appropriate. My disagreement with the court is with its decision — namely, that the order of the Benefits Review Board is to be vacated and the case remanded to the Board with a view, presumably, to a further remand to Administrative Law Judge Tureck with instructions to entertain a motion to be submitted by Neely for a declaration of coverage. This would be the proper disposition of Neely’s petition for review if Neely had sought a declaration of coverage from Judge Tureck and had been turned down, and had then on appeal sought the same relief from the Benefits Review Board and again been turned down, and had, finally, come to this court on petition for review seeking judicial vindication of a procedural claim incorrectly held to be non-cognizable at two levels of administrative adjudication. But that is not what happened.
What did happen is this:
*283As the court’s opinion explains, Neely, an employee of Bath Iron Works, suffered work-related back injuries on September 29 and 30, 1992. On October 1 Bath received word that Neely had hurt his back, and on that date Bath authorized Neely to seek treatment from a physician. On October 2 Bath filed a report of injury under the Longshore Act with the OWCP. Four days later, on October 6, Bath filed a “Notice of Controversion of Right to Compensation”, the ground of controversion being “Claimant pursuing under State Act.” Because of his injuries, Neely was off work from October 5 to October 11, and from October 12 through October 18. Bath, without delay, (1) paid compensation for Neely’s two sequential weeks of disability, and (2) took care of Neely’s medical expenses.
A year and half later, in the spring of 1994, Neely filed an “Employee’s Claim for Compensation” under the Longshore Act; Bath promptly countered with what the court rightly characterizes as an “apparently boilerplate” controversion, disputing all aspects of liability. When the matter came before Judge Tureck in the summer of 1995, Bath’s attorney, Stephen Hessert, presented a more coherent legal position on his Ghent’s behalf:
Bath Iron Works paid various periods of temporary total disability benefits for the injury under the State of Maine Workers’ Compensation Act, and they paid all outstanding medical bills. As far as I know, there is no claim for additional monetary benefits.
A first report was filed under the Long-shore Act, but nothing else was filed under the Longshore Act. I think the issue is whether Mr. Gabree is entitled — or his client is entitled to some sort of protective decree....
Gary Gabree, Neely’s attorney, responded:
I generally agree with what Mr. Hessert has said.... There really is no claim for additional benefits. We are seeking a protective decree at this time....
Judge Tureck asked:
What do you mean by a protective decree? ....
Mr. Gabree replied:
- I think what we’re — the real dispute here, I guess, is the reluctance of the employer to file the LS -206 or the 208[5] acknowledging that payments have been made under the Longshore Act. I think 14(g) [33 U.S.C. 914(g) ] requires that, and down the road, I think that could be a potential problem.
ADMINISTRATIVE LAW JUDGE:
So what is it you want me to do here?
MR. GABREE:
Well, I mean, if we could — I’d settle for an order requiring the employer to file the LS-206, 208, acknowledging that this claim is compensable under the Longshore Act, and that payments in fact made were as much under the Longshore Act as under the state act. I think it comes down to a choice of remedy, and I believe that’s the employee’s choice, not the employer’s.
Judge Tureck then interjected: “Okay, are any benefits ongoing right now?” After being assured by Mr. Gabree that “all [benefits] have been paid, in the amounts that we would be seeking,” and indeed that “the payments were made contemporaneously” [i.e., in 1992], Judge Tureck put a further question:
Assuming I went ahead and issued the kind of order that you want required the employer to file the appropriate forms, what would you do with them? I mean, at this point in time, what effect would it have even if they acknowledged the fact that this was a potential Longshore Act claim?
MR. HESSERT:
I can tell you — do you mind if I respond to that?
MR. GABREE:
No, go ahead.
*284MR. HESSERT:
From my client’s point of view, what this is about is attorney’s fees. We are in a situation where cases like this happen; Bath accepts responsibility for them; they pay the benefits; file the federal first report; file the state first report; and make payments. Mr. Gabree brings a, you know, asks for Longshore filed, the 206 and 208, and then asks for an attorney’s fee based on the assumption that somehow provides a benefit to his client....
MR. GABREE:
Conversely, Your Honor, it seems to be a relatively simple matter to file the LS-206 or 208, and it also seems to be the appropriate course in claims that are clearly made under the Longshore Act once payments are made, so that the employer’s reluctance to do so indicates something to me, and while I admit that we have discussed and I have kicked around for many hours what apparent advantage it gives us, and I’m prepared to address that issue in my brief, I can say that it’s not a particularly strong argument, and there isn’t a lot.
There is a possibility that some of the case law might support — it might strengthen our case in future cases if and when we seek to pursue this claim and are confronted with the failure to prosecute defense arguably, and as far as the fees issue goes, perhaps this is to some degree a reaction to the administrative requirements we face in dealing with the U.S. Department of Labor. I have in the past run into problems when there is an appropriate fee to be made, in. getting that fee paid, because the employer fails to file the 206 or the 208 when clearly the work was done under the Longshore Act, but the additional step of filing that paperwork seems to be essential for the OWCP to award us any fees for whatever we’ve achieved for a client up to that point. I say all this, recognizing that the additional work we do in this case in presenting this issue to you hopefully is a one-time deal, and I don’t necessarily hold out any great hopes for making a lot of money on this case.
As the court notes in its opinion, Judge Tureck was not persuaded that he should direct Bath to file LS-206 and LS-208. Judge Tureck ruled that because Bath had made its payments under Maine law the Longshore Act’s requirement that an employer file notices relating to compensation payments were without application: “nothing in the Act or the regulations requires an employer to file notices of payment or termination of compensation which was not paid pursuant to.the Act.” In declining to order Bath to file the forms, Judge Tureck reached the right result but for the wrong reason. The correct reason is the one which was urged upon' this court in the brief of the Solicitor of Labor — “The reporting requirements are intended to serve administrative purposes in the district director’s and Director’s offices — neither to establish nor to safeguard the claimant’s right to benefits”— and which this court very sensibly accepts in its opinion: “[T]hese filing provisions are not designed to confer rights on the employee or to be enforced by him or her.”
On appeal to the Benefits Review Board, Neely evidently hewed to the line taken before Judge Tureck. The Board, in its per curiam affirmance, summarized Neely’s contentions as follows:
Claimant contends the administrative law judge erred in failing to find that: his claim is compensable under the Act; payments made under the Maine Act are also required under the Longshore Act; employer is liable for these payments and should be ordered to file the appropriate forms and acknowledge its liability under the Act; and employer is liable for payment of the Section 14(g) penalty[6] and for an attorney’s fee.
The Board’s analysis of the Longshore Act was in accord with Judge Tureck’s: “[P]ay-ments made under another compensation law need not be reported to the district director *285on forms provided by the Secretary under this Act. Therefore, we agree with the administrative law judge’s conclusion that payments made under the Maine Act do not compel the employer to file forms LS-206 or LS-208 in compliance with Section 14 of the Longshore Act.” (Like the administrative law judge, the Board reached the right result, albeit for the wrong reason). In a footnote, the Board opined: “In light of our decision herein, we need not address claimant’s argument regarding counsel’s entitlement to an attorney’s fee. However, we note that as claimant has neither sought nor been awarded additional benefits beyond those voluntarily paid by employer, counsel is not entitled to a fee.”
In his petition for review in this court Neely has again advanced the arguments which Judge Tureck and the Benefits Review Board found unavailing. In his “Summary of Argument” Neely states his contentions in three paragraphs, the gist of which is as follows: (1) “The decision below improperly denies the employee the right to choose his remedy and the right tó pursue his claim under the Longshore and Harbor Workers’ Compensation Law_” (2) “Since the parties stipulated to the essential elements of the Longshore claim and the employer voluntarily paid comparable benefits under the state workers’ compensation law, it was error for the administrative law judge and the Benefits Review Board below to hold otherwise. Accordingly, the employer’s failure to file the paperwork acknowledging their responsibility under 914(g) of the Longshore and Harbor Workers’ Compensation Act subjects them to the penalties mandated by that section.” (3) “Lastly, under the reasoning in Kinnes [v. General Dynamics Corp., 25 B.R.B.S. 311 (1992) ], the employee has successfully established that he is entitled to an award and consequently has prevailed in this proceeding. Therefore he has successfully prosecuted this claim and is entitled to an attorney fee.”
This completes my précis of the procedural history of this case up to the point at which it appeared on this court’s docket. I have canvassed this procedural history in what may arguably be regarded as superfluous (and hyper-tedious) detail with a view to making a single point. At no point in the proceedings before the administrative law judge or the Benefits Review Board, or in his opening brief in this court, did Neely present the contention — namely, that he might at some point in the future suffer a disability linked to his 1992 disability, and that he was therefore entitled to a present determination of Bath’s liability under the Longshore Act— acquiescence in which is the centerpiece of today’s opinion. ■ But because the Benefits Review Board — following the lead taken by Judge Tureck — did not see the merit of a contention not advanced, the Board’s decision is today vacated and this case remanded for further proceedings harmonious with today’s wisdom.
A thoughtful reader might well break in at this point to tell me that my concerns are both finicky and misdirected — that what has happened here is an instance of the not-all-that unusual scenario in which a legal argument that had not come into focus, or that had not even been conceived, at earlier stages of the litigation, emerges (whether through the efforts of counsel or of the court) and carries the day on appeal. That perception of what has happened here may be thought to be implicit in the court’s observation that the entry into this case of the Solicitor of Labor, “in partial support of [Neely’s] position” in this court, was reflected in the Solicitor’s “[rjeeasting the case somewhat.” But the Solicitor’s impressive “recasting” was not simply a rethinking of what arguments should be deployed to yield a result that had eluded Neely before Judge Tureck and the Board. The “recasting” was a restructuring of the case designed to achieve a result Neely had not sought. The Solicitor has, in effect, undertaken to substitute a new cause of action for the non-cognizable one Neely vainly deployed.7 The Solicitor’s advocacy has been of a high order, as is demonstrated by the fact that this court has, in its well-reasoned opinion, accepted the *286bulk of the Solicitor’s arguments. But even the Solicitor’s alchemy is insufficient to turn a sow’s ear into a silk purse. I have no quarrel with the proposition that a future claimant should be able to seek a declaration of coverage on the terms marked out by the court. But I am not persuaded that the new cause of action should redound to the benefit of the claimant who is before this court.
In noting that the court’s opinion has accepted “the bulk” of the arguments made by the Solicitor, I think it appropriate to point out that in one crucial particular the court has circumscribed the new cause of action, imposing a limitation not expressly called for by the Solicitor. In insisting that one who seeks a declaration of coverage “show a ‘significant possibility’ of future disability based on the past injury,” the court has built into the new cause of action an element of objectively demonstrable potential harm — harm which a declaration of coverage may at least soften the impact of. The addition of this ingredient probably suffices to make the new cause of action a sufficiently ripe case or controversy so as to be litigable in an Article III court, such as this one.8 However, Neely’s case, as it comes to this court, does not even prima facie fall within the stated limitation. Nothing in the record lends credence to the notion that Neely might some day suffer a disability traceable in any way to the 1992 episode. The only wisp of potential nexus is to be found in the court’s observation that “Neely’s was a back injury, an injury famously a source of recurring problems.” With all respect, I do not think that a judicial observation of this sort has sufficient grounding to elevate a conjecture into a controversy.
In sum, I am in accord with the court’s explication of a new cause of action under the Longshore Act — a cause of action that seeks a declaration of coverage as the court has defined such a declaration. But I am not persuaded that Martin Neely, having never sought a declaration of this kind with respect to his 1992 disability, should now acquire the opportunity to drag Bath into litigation all over again.
. The terms "LS-206” and "LS208” apparently are shorthand lingo for forms on which, under the Longshore Act, an employer is required to notify the OWCP of (1) an initial compensation payment, or a suspension of compensation payments, 33 U.S.C. 914(c), or (2) a final payment of compensation. 33 U.S.C. 914(g).
. This would appear to be a reference to the provision in 33 U.S.C. 914(g) that, in the event that an employer fails to file a notice of a final payment of compensation within sixteen days of such payment, "the Secretary shall assess against such employer a civil penalty in the amount of $100.”
. Not surprisingly, Neely has in his “Supplementary Memorandum” in this court embraced the Solicitor’s position; but that hardly serves to work an ex post conversion of the claims put forward by Neely prior to the filing of the Solicitor's opening brief.
. Like the court, I think it unnecessary to consider the questions that might be posed by a regime in which administrative law judges and the Benefits Review Board were vested with authority to entertain claims not bounded by the Article III case-or-controversy constraints. See footnote 2 of the court’s opinion.