Committee on Legal Ethics of the West Virginia State Bar v. Triplett

ON REHEARING

On a former day, to-wit the 14th day of December 1988, came the United States Department of Labor by its Solicitor of Labor, George R. Salem, Esq., and pursuant to leave heretofore granted, intervened to petition the court to grant a rehearing in this matter. Intervenor, the United States Department of Labor, also petitioned to supplement the record by the inclusion of the following: Affidavit of James L. De Maree, Associate Director, Division of Coal Mine Workers’ Compensation; Affidavit of Jane G. Denney; Affidavit of Nahum Litt; Department of Labor Letters CM-1000a and CM-1000b; and the awards and/or decisions in the cases of Charles Ice, Raymond Corley, Thelma Beam, Jacob B. God-win, Peter Guire, Anna J. Poling, Euna Ball, Harry Hedrick, William F. Scott, and Inobelle Stevenson. All of the aforesaid material is hereby ordered filed and made a part of the record in this case for all purposes.

The court has carefully considered the supplemental material filed by the Department of Labor in support of its petition for rehearing, and has also carefully considered the factual representations and *548 legal arguments set forth in intervenor’s brief in support of its petition for rehearing. The court concludes that the arguments advanced by the Department of Labor were maturely considered upon the initial submission of this case and are adequately addressed in the court’s original opinion.

Intervenor seeks to overcome the court’s conclusion that lawyers are paid inadequately and too slowly under the current Department of Labor fee limitation system through the following representation:

“Nor is it reasonable to conclude from the record that respondent would have experienced inordinate delays in having his fee petitions approved. In the one instance where he submitted a fee petition after obtaining a Trust Fund award at the deputy commissioner level, he received payment, at the requested rate and for more hours than he documented (but less than he requested), approximately eight months after his application ... In the one instance where he applied to an AU for a fee award in a responsible operator case, he received an award, despite the operator’s objections, within 11 months of the date of his application, and within 7 months of the AU’s receipt of it.”

Intervenor’s Brief at p. 7. We find that an eight month and eleven month delay in fee payments simply support the findings of fact and conclusions of law set forth in the court’s original opinion.

Intervenor defends the constitutionality of the fee system as applied by arguing that a different system would be more expensive both in terms of the cost of lawyers’ fees and in terms of the added burden on the system of affording claimants a fair opportunity to be heard. In this regard intervenor asserts:

“Another legitimate government interest is to ensure that responsible operators and the Trust Fund will not be overcharged. The Court recognized (slip op. 28) but gave very little weight to this interest. This interest is substantial because of operators’ constitutional rights (Levins \y. Benefits Review Bd.], 724 F.2d [4] at 9) and because the Trust Fund, which is financed by the coal industry (26 U.S.C. ( & Supp. IV) 4121(a), 9501), is currently almost $3 billion in debt to the United States Treasury. See Affidavit of James L. De Maree, supra. Higher attorney’s fees could increase this debt, as could the expense of more prolonged claims processing from attorney participation in cases (cf. Walters, 473 U.S. at 324-326 [105 S.Ct. at 3191-3192]), the latter by requiring the hiring of more personnel at the AU and Benefits Review Board levels to prevent a rebuilding of a case backlog ... Such increased costs to the Fund, and thereby to the government in the form of increased debt, must be given serious consideration, as the Court admonished in Mathews, 424 U.S. at 348 [96 S.Ct. at 909] even though they are not controlling. At some point, the costs to government and the public (including the resulting need to cut limited resources elsewhere) outweigh the benefit to the individual of the additional safeguard.”

Intervenor’s brief at pp. 16, 17. We infer that the Solicitor is arguing that the current fee limitation system, which discourages adequate representation, is justified on the grounds that if claimants had access to lawyers, claimants would prevail more often and raise the costs of the black lung program. We do not find that Congress’s purpose in authorizing limitations on fees was to reduce the number of eligible claimants who would prevail and receive benefits.

Intervenor makes explicit reference to statistics compiled specially for its rehearing petition in this case. The Department of Labor’s own specially compiled statistics (the Solicitor’s best shot) conclusively demonstrate that at the administrative law judge level, claimants represented by counsel have a likelihood of prevailing that is 2.5 times greater than claimants appearing pro se. In this regard the Solicitor says:

“Statistics compiled by the Department in a sample of recent cases resulting in awards or denials of benefits show that claimants are represented at the AU level in 92% of the cases, and prevail 29% *549 of the time when represented. While the statistics also show that the small minority of pro se claimants have an 11.6% success rate, this difference certainly is not so significant as to establish that lawyers are indispensable in the BLBA claims process — particularly in light of the 92% representation rate.”

Intervenor’s brief at p. 23. We find that the Solicitor has simply reinforced with more elaborate statistics the conclusion that we reached in the original opinion— namely, that a claimant’s chance of prevailing when he is represented by counsel is substantially higher than when he appears pro se.

When claimants represented by counsel prevail 2.5 times as frequently pro se claimants, we cannot agree with the Solicitor that the difference is not constitutionally significant for due process purposes. The Solicitor argues that:

“Assuming, without conceding, that applicants have a property interest under the due process clause, their interest is only the intangible interest in receiving fair consideration of their applications. They risk losing only a chance at benefits rather than the benefits themselves.”

Intervenor’s brief at p. 19. However, we stand by our original conclusions: We believe that “receiving fair consideration” is exactly the type of abstract entitlement that due process principles are designed to protect and enhance.

Finally, we have carefully considered the following argument of the Solicitor:

“Moreover, as in Walters, 473 U.S. at 326 [105 S.Ct. at 3193] there is also a risk that increased attorney representation may exacerbate the adversarial nature of the black lung adjudicatory system, resulting in an [sic] increased administrative costs to the government and delay to deserving claimants.”

Intervenor’s brief at p. 23. Because responsible operators may be as adversarial as they wish in the defense of claims, and may spend as much money as they choose on lawyers’ fees, we have a hard time understanding how claimant representation by lawyers is liable to “exacerbate the adversarial nature of the black lung adjudicatory system....” Although we know the irony is unintentional, we cannot help but infer that the Solicitor is arguing that if claimants have full and fair access to lawyers, they might do reprehensibly adversarial things such as introduce competent evidence, study the claims regulations, vigorously prosecute cases, and perhaps even appeal to the courts.

Accordingly, it is Adjudged, Ordered and Decreed that Intervenor’s petition for rehearing be, and the same hereby is denied. And it is further Ordered that this Order be printed as an addendum to the original opinion.