Amicus Curiae Brief — Walters v. National Assn. of Radiation Survivors

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1984

Harry N. WALTERS, ADMINISTRATOR OF

VETERANS’ AFFAIRS, et al.,

Appellants,

V.

NATIONAL ASSOCIATION OF RADIATION

SURVIVORS, ef al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF CALIFORNIA

BRIEF AMICUS CURIAE

OF THE DISABLED AMERICAN VETERANS

IN SUPPORT OF THE UNITED STATES

JosEPH C. ZENGERLE*

WILLIAM N. BERKOWITZ

BINGHAM, Dana & GOULD

1724 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 822-9320

Counsel for

The Disabled American Veterans

*Counsel of Record

TABLE OF CONTENTS

Page

Ne on icc cccncucunscseseseeesesens ili

INTEREST OF AMICUS CURIAE ...........sccccccssccccssece |

RP GEE” FUEPITD occccvccccesccnccccscecsccccsees 4

Nee as a scetnattendenavanonee 5

I. PRINCIPLES OF JUDICIAL RESTRAINT, IMPROPERLY

IGNORED BY THE DISTRICT COURT, APPLY TO THIS

CONTROVERSY BECAUSE OF THE CourRT’s HISTOR-

ICAL SOLICITUDE IN THIS AREA AND CONGRESS’

PLENARY CONSIDERATION OF VA BENEFIT Sys-

TEM PROCEDURES AND REPEATED RECENT DE-

TERMINATIONS TO LEAVE THEM UNCHANGED ........ 5

Il. By MISCONSTRUING THE NATURE OF THE PRI-

VATE INTEREST INVOLVED, UNDERVALUING THE

QUALIFICATIONS OF VETERANS SERVICE OFFI-

CERS AND FAILING TO CONSIDER IMPORTANT

NON-FINANCIAL GOVERNMENT INTERESTS, THE

DisTRICT COURT STRUCK A SKEWED DUE PROC-

nh ETE Tp aE a Be 1]

A. Preservation of the $10 Fee Limitation Would

Foster the Psychological Value of Meaningful

Communication .f Veterans’ Claims By and

Through Similarly Situated Disabled Service

I Sieh alicia di dae esebonnsceces 13

B. The Extensive Training, Agency Familiarity,

Organizational Expertise and Specia. Motiva-

tion of Amicus Curiae’ s National Service Offi-

cers, When Combined With the Nonadver-

sarial Setting of VA Claims Administration,

Minimize the Risk of Error Which Paid Attor-

ney Involvement May Increase ................... 15

TABLE OF CONTENTS

C. The Non-Financial Government Interests of

Preventing the Diversion of Veterans’ Bene-

fits, Maintaining Nonadversarial Proceedings

Involving Veterans, and Preserving Veterans’

Organizations’ Full Capacity to Represent

Claimants and Assist the Congress, Warrant

Upholding the $10 Fee Limitation ................. 23

CONLIN ............000000000000enmmaniiisnnnnninnnnnnnnnnn 28

ili

TABLE OF AUTHORITIES

Page

CASES:

“Agent Orange” Product Liability Litigation, In Re,

MDL No. 381, slip op. (E.D.N.Y. Jan. 7, 1985) . 20n, 24n

“Agent Orange” Product Liability Litigation, In Re,

MDL No. 381, slip op. (E.D.N.Y. Sept. 25, 1984) . 20n

Califano v. Boles, 443 U.S. 282 (1979) ...............0005. 15

Califano v. Yamasaki, 442 U.S. 682 (1979) ............. 16n

Columbia Broadcasting System v. Democratic National

Committee, 412 U.S. 94 (1973) ...............0055. 8,9, 10

Devine v. Cleland, 616 F.2d 1080 (9th Cir. 1980) ....... 13

Fullilove v. Klutznick, 448 U.S. 448 (1980) ............... 10

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ............ ee

Gendron v. Levi, 423 U.S. 802 (1975), aff g Gendron

v. Saxbe, 389 F. Supp. 1303 (C.D. Cal.) ............. 12n

Goss v. Lopez, 419 U.S. 565 (1975) .............. 21, 23, 25

Johnson v. Robison, 415 U.S. 361 (1974) ............... 5, 6

Lassiter v. Departmeni of Social Services, 452 U.S. 18

Neen cas ccccsecesceccesocccccesecs 21

Landon v. Plasencia, 459 U.S. 21 (1982) .................. 11

Mathews v. Eldridge, 424 U.S. 319 (1976) .......... passim

McCarty v. McCarty, 453 U.S. 210 (1981) .............. iln

Mitchell v. Cohen, 333 U.S. 411 (1948) ............... 5, 24

Morrissey v. Brewer, 408 U.S. 471 (1972) ..............5. 21

iv

TABLE OF AUTHORITIES — Continued

Page

National Ass'n of Radiation Survivors v. Walters, 589

F.Supp. 1302 (N.D. Cal. 1966) .......cccccccccssees passim

Ortwein v. Schwab, 410 U.S. 656 (1973) ................5. 27

Parham v. J.R., 442 U.S. 584 (1979) ................. 21, 25

Personnel Administrator of Massachusetts v. Feeney,

rer iene edenaialibtes 5, 6, 24

Pratte v. N.L.R.B., 683 F.2d 1038 (7th Cir. 1982) .... 12n

Primus, in Re, 436 U.S. 412 (19TE) .....ccccccccccccccss: 27n

Regan v. Taxation with Representation of Washington,

Te Ts IED sb ccccnccadicsadeducdantidtinesane 5, 6, 24

Santosky v. Kramer, 455 U.S. 745 (1982) ............ 8n, 10

Schweicker v. McClure, 456 U.S. 188 (1982) ............. 12

Triumph Hosiery Mills, Inc. v. Triumph International

Corp., 308 F.2d 196 (2d Cir. 1962) .................... 12n

United States v. Kras, 409 U.S. 434 (1973) ............... 10

United States v. Swords to Plowshares, No. CR-84-776

ee Sa, SI SR a als On

Vitek v. Jones, 445 U.S. 480 (1980) .............. 17, 21, 23

Wolff v. McDonnell, 418 U.S. 539 (1974) ....... ye ee

Woodby v. INS, 385 U.S. 276 (1966) .................eee eee 10

UNITED STATES CONSTITUTION:

EE os acis ick sntcacertmebonbenasdannneiaadaaiea lin

I in ctiienndinddsaligpebenaasene: 4,5, 10, 27n

Ue PIII vc aitindciccdsdlaccsscencascecusipepiseien passim

FEDERAL STATUTES:

is Se I OD vidiininvccaescecnadncmomerannsed 22n

Vv

TABLE OF AUTHORITIES — Continued

Page

rs Se ddiecindicdsdeniacatdvnsodeatonncsupananniinen 2

ee IED sii co-cndusdguntadenonsdessuusseanunicennnes 2

Be ice TEU. vaicinnensesensccccorevenses lsiahbar eatin 2

BS TED chicccnedansinocknebsieiasakdsumnenbninnetéd 3, 26

I ion hiss scnndnnnsiduniemeamonsunietimvepnniatete 2

BR MI iin caine pa mieliinambisenaaneniieannne 2

I ioc cininatdndnetanddceusnuneeeninenienade 6

IED vaikdtinsnsantsadartardebheiedenenienninn 18

es EE: bh. ck bicdaadicesebaniseacsabdaeinenaaponns 8n, 18

eS SE oisiccaicccntdscndiesstscocneacsuseceiehinds 2

EE PE ois scicacicnasispenakaaumuabieiiod bade 3, 6

IU, a ha i il eerie 3, 6

At ED. inna ta coercion ddmepoaeadoniise sauktil On

Pub. L. 98-542, 98 Stat. 2725 (1984) ................ 19n, 20

DURES COUT TRIED BD onsen cccnensecscrssosccsvccssesesccsses In

FEDERAL REGULATIONS:

es ED unccisnccussecenvnckeneennebielabedesouiien 16

SI I oo inal dilate llede cap eeaNieD 20n

I a dea dbdneuinmaaenenennee 20n

ED ss nndeensecadentiineanessiienesions 22

ee te IE axsinninstscinicssasonmessmeemeiaoncouns 2

CONGRESSIONAL MATERIALS:

119 Cong. Rec. H10622 (daily ed. April 2, 1973) ....... 17

131 Cong. Rec. H102 (daily ed. Jan. 7, 1985) ............. 9

131 Cong. Rec. H129-130 (daily ed. Jan. 22, 1985) ...... i)

{

vi

TABLE OF AUTHORITIES — Continued

Page

FY82 Legislative Recommendations of Veterans’ Or-

ganizations: Hearings Before the Senate Comm. on

Veterans’ Affairs, 97th Cong., 2d Sess. (1982) ...... 25n

H.R. 313, 99th Cong., Ist Sess. § 401 (1985) ............. )

H.R. 585, 99th Cong., Ist Sess. § 401 (1985) ............. 9

Hearings on Legislative Recommendations, etc., Before

the Senate Comm. on Veterans’ Affairs, 96th Cong..,

I as ee tdi ae ds lin, 25

Judicial Review of Veterans’ Claims: Hearings Before

the Subcomm. on Oversight and Investigations of the

House Comm. on Veterans’ Affairs, 98th Cong., Ist

I ee aki is 6n, 7n

Readjustment Counseling: Hearing Before the Sub-

Comm. on Hospitals and Health Care of the House

Comm. on Veterans’ Affairs, 97th Cong., Ist Sess.

TEE Risidaedcarintadlsnsvelacedesaniuseiaseensswsdeldeneiiee 1Sn

>. 350, 96 Comg., tet Seas. (ID7D) ..........cccccccseseees 7n

S. 349, Fith Cong., 26 Seas. (1962) ................... 7n, 15

D. GE, Fee GE. BEE TES. CITED vccsvcsscsssccncesesves 7n

S. Rep. No. 97-466, 97th Cong., 2d _ Sess.

EEE. siisecnkinnnatseinniieniacnsummeedanbaie 16, 17, 24, 26

Sixty-Third National Report, Disabled American Vet-

erans, 1983, H.R. Doc. No. 98-150, 98th Cong. , 2d

ls 3

Veterans’ Administration Adjudication and Judicial

Review Act, etc.: Hearing Before the Senate Comm.

on Veterans’ Affairs, 98th Cong., Ist Sess. (1983) .... 6n

Vii

TABLE OF AUTHORITIES — Continued

Page

Veterans’ Administration Analysis and Evaluation,

etc., 95th Cong., 2d Sess., Report by the Administra-

tor of Veterans’ Affairs (House Comm. Print 1978) .

Veterans’ Administration Evaluation of Benefits, etc.,

95th Cong., 2d Sess., Report by the Administrator

of Veterans’ Affairs (House Comm. Print 1978) ......

Veterans’ Claims for Disabilities for Nuclear Weapons

Testing: Hearing Before the Senate Comm. on Veter-

ans’ Affairs, 96th Cong., Ist Sess. (1979) ..............

Veterans’ Exposure to Agent Orange: Hearing Before

the Senate Comm. on Veterans’ Affairs, 98th Cong.

Ist Sess. (1983) ........... Sink SclasdasdlesAsbantibenihiae ciidenabeciieabiaebalani

MISCELLANEOUS:

American Psychiatric Association, DIAGNOSTIC AND

STATISTICAL MANUAL OF MENTAL DISORDERS (3d

lin

ee eiikcabichcniaentinadinistevinedsntedbesesseseisssases 20n

Fy PU IE edstncdeccncstnnsnesncdscsvevssiocs

Barton, Behind the Legal Explosion, 27 STAN. L. REv.

EF GN da iteddneencdinesudindben dia ditdnndespinssscessecs 24n

The Forgotten Warriors: New Concern for the Vietnam

Vet., BEHAV. MED. 38 (July, 1979) ...................04.

PostT-TRAUMATIC STRESS DISORDERS OF THE VIETNAM

VETERAN: OBSERVATIONS AND RECOMMENDATIONS

FOR THE PSYCHOLOGICAL TREATMENT OF THE VET-

ERAN AND His FAmMILy (T. Williams ed. 1980) .........

es

— — A TERE SN _—

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1984

No. 84-571

HARRY N. WALTERS, ADMINISTRATOR OF

VETERANS’ AFFAIRS, ef al.,

Appellan..,

NATIONAL ASSOCIATION OF RADIATION

SURVIVORS, ef al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF CALIFORNIA

BRIEF AMICUS CURIAE

OF THE DISABLED AMERICAN VETERANS

IN SUPPORT OF THE UNI ED STATES

INTEREST OF AMICUS CURIAE'

The Disabled American Veterans (“DAV”) is one of the

nation’s largest nonprofit veterans’ organizations, chartered

‘Pursuant to Supreme Court Rule 36, written consent to the filing of this

brief has been obtained from counsel for all parties and the letters of consent

have been filed with the Clerk of the Court.

2

in 1932 by an Act of Congress, 36 U.S.C. §§ 90a et seq.,

and exempted from federal income taxation under the Internal

Revenue Code. 26 U.S.C. §§ 501(a) and 501(c)(4). Member-

ship in PAV is restricted essentially to those persons disabled

in time of war while serving in the armed forces of the United

States and subsequently discharged under honorable condi-

tions. 36 U.S.C. § 90e. DAV has more than 900,000 members,

of whom nearly 300,000 are disabled Vietnam veterans.

DAV’s principal activities are the conduct of various pro-

grams designed to assist member and nonmember veterans

alike in obtaining the fair compensation, adequate medical

care »nd suitable employment to which their disabling wartime

military service entitles them. As reflected in DAV’s most

recent audit report submitted to the Coinptroller Generai of

the United States for the year ended December 31, 1983, see

36 U.S.C. § 90i(b), the annual budget for the operation of

these programs is in excess of $25 million.? Approximately

$18 million, or 70% of that program budget, is used to maintain

the largest service program of all the nation’s veterans’ or gani-

zations.

DAV’s service program is conducted by a paid professional

staff of more than 250 full-time employees called National

Service Officers (“NSOs”). During 16 months of initial training

conducted by DAV, each NSO must secure accreditation from

the Veterans’ Administration (“VA”) as a representative of

DAV, a recognized service organization. 38 U.S.C. § 3402(a);

38 C.F.R. § 14.629(a). This accreditation authorizes the NSO

to assist veterans in making claims under laws administered

by the VA. DAV has NSOs assigned to every VA Regional

Office in the United States and Puerto Rico, certain VA Med-

ical Centers, the Pentagon and elsewhere, totaling approxi-

* Approximately 80% of DAV’s annual financial support derives from public

donations; the balance is roughly divided among investment income and mem-

bership dues. More than 60% of DAV’s total revenue is devoted to the operation

of these programs.

3

mately 70 office locations. In addition, NSOs regularly provide

services to veterans living in more remote areas of the ccuntry

through the operation of DAV’s Mobile Field Service Unit

Program. As an indication of the scope of NSO representation,

in the year ended June 30, 1983, NSOs obtained more than

100,000 powers of attorney from veterans seeking some form

of claims assistance. Sixty-Third National Report, Disabled

American Veterans, 1983, H.R. Doc. No. 98-150, 98th Cong.,

2d Sess. 102 (1984).

DAV has developed its extensive national service program

as a primary means of fulfilling its statutory purposes to ad-

vance the interests of disabled veterans and cooperate with the

VA. 36 U.S.C. § 90c. This development has been possible

because the claims representation services of NSOs have been

provided io all veterans free of charge, thereby complying

with the $10 fee limitation imposed by the statutory provisions

challenged in this case. 38 U.S.C. §§ 3404-05. An examina-

tion of the nature of DAV’s service program and the VA claims

representation services provided to veterans from other sources

will necessarily play an important role in this Court’s analysis

of the constitutional issues presented herein. Because the out-

come of this case will therefore unavoidably raise an inference

about the adequacy of DAV’s most significant nonprofit activ-

ity on behalf of disabled veterans, DAV seeks this opportunity

to present its views to this Court as amicus curiae.’

«4

‘At tne Government’s request and without the benefit of its own counsel,

DAV provided information of record in the District Court proceedings. Mr.

Charles E. Joeckel, Jr., DAV’s National Director of Services, executed a

declaration (“Joeckel Decl.”) attached to the closing brief filed on November

21, 1983, in support of the Government's opposition to appellees’ motion for

a preliminary injunction.

4

SUMMARY OF ARGUMENT

The District Court demonstrated an insufficient regard for

a coordinate branch of government when it preliminarily en-

joined the operation of the statutory provisions at issue. In

light of the facts that Congress has repeatedly rejected modifi-

cation of the statutory scheme that includes those provisions

after having thoroughly considered the same veterans’ interests

at conflict in this case, and that it now has before it again

similar proposals for reform, this Court should hesitate to

displace legislative competence with constitutional adjudica-

tion, especially with regard to subject matter historically treated

with judicial deference. When «...amined with principles of

resiraint in mind, it is evident that the judgment under review

proceeds from an application of Mathews v. Eldridge, 424

U.S. 319 (1976), that strikes an analytically and factually

deficient balance of due process considerations and concludes

with an unjustified extension of First Amendment doctrine.

The private interests of veterans in the property at stake

include a psychological value fostered by the free claims assist-

ance rendered by disabled service officers that calls for mainte-

nance of the challenged $10 fee limitation. The unusual qual-

ifications possessed by these service officers particularly enable

them to function in the nonadversarial proceedings of the VA

with an effectiveness that yields a more than acceptable risk of

erroneous Claim determination — a risk that an influx of paid

attorneys, with its predictably formalizing effect on agency

behavior, could weil increase rather than diminish. The Gov-

ernment’s substantial non-financial interests in guarding

against unnecessary legal expenses and preserving an informal

benefit system supported administratively and legislatively by

strong veterans’ service organizatioius demonstrate finally the

validity of the status quo as a matter of due process of law.

The existing statutory and regulatory scheme also adequately

safeguards the First Amendment rights of petition and free

5

speech of appellees, whose associational rights have not been

abridged by the fee limitation because of their economic mo-

tive.

ARGUMENT

|. PRINCIPLES OF JUDICIAL RESTRAINT, IMPROPERLY IGNORED

BY THE DistricT CouRT, APPLY TO THIS CONTROVERSY

BECAUSE OF THE CourRT’S HISTORICAL SOLICITUDE IN THIS

AREA AND CONGRESS’ PLENARY CONSIDERATION OF VA

BENEFIT SYSTEM PROCEDURES AND REPEATED RECENT

DETERMINATIONS TO LEAVE THEM UNCHANGED.

This Court has traditionally given Congress a wide constitu-

tional berth in enacting statutes for the benefit of those who have

served in the armed forces of the United States. See, e.g.,

Regan v. Taxation with Representation of Washington, 461

U.S. 540 (1983) (upholding tax exemption of veterans’ organi-

zations against equal protection and First Amendment chal-

lenges); Personnel Administrator of Massachusetts v. Feeney,

442 U.S. 256 (1979) (upholding Massachusetts veterans’ pre-

ference law against equal protection challenge); and Johnson

v. Robison, 415 U.S. 361 (1974) (upholding “G.I. Bill” for

veterans against equal protection and First Amendment chal-

lenges). This historical solicitude has in part been based upon

the “moral obligation and debt of gratitude,” Mitchell v. Cohen,

333 U.S. 411, 420 (1948), that the country owes to veterans

for their subjection to “the mental and physical hazards as

well as the economic and family detriments which are peculiar

to military service and which do not exist in normal civil life.”

Johnson, supra, 415 U.S. at 380 (emphasis in original).

In such cases, the parties seeking relief have not, as a general

rule, shared the interests of the veterans for whose benefit the

6

statutes challenged by these parties were enacted. See, e.g.,

Regan, supra (challengers were charitable organizations not

including veterans’ groups); Feeney, supra (challenger was

nonveteran woman); and Johnson, supra (challenger was con-

scientious objector). Accordingly, the special obligation owed

to veterans could be invoked without compromise to shield

the statutes under attack and thus preserve Congress’ attempt

to discharge the nation’s obligations to the veteran-ben-

eficiaries of the enactments.

In this case, however, the original parties seeking relief —

appellees herein — are two veterans’ organizations and four

individual veterans. Since the nation’s special obligation runs

in part to the challengers of the statutory provisions at issue

here, 38 U.S.C. §§ 3404-3405, the degree to which that obli-

gation operates to shield those provisions is unclear. This un-

certainty is enhanced by DAV’s own alignment as amicus

curiae. On the one hand, DAV would generally support the

District Court’s view as to the importance of veterans’ benefits

made available under Title 38 of the U.S. Code. National

Ass'n of Radiation Survivors v. Walters, 589 F.Supp. 1302,

1314-1315 (N.D. Cal. 1984) (“NARS”). See infra p. 13. Indeed,

as a matter of policy, DAV has no objection to modification of

the fee limitation provisions attacked by appellees, to the extent

that the current prohibition under 38 U.S.C. § 211(a) of judicial

review of decisions by the VA Administrator is also modified.‘

*See Judicial Review of Veterans’ Claims: Hearings Before the Subcomm. on

Oversight and Investigations of the House Comm. on Veterans’ Affairs, 98th

Cong., Ist Sess. 22 and 154 (1983) (“House Hearings”) (statement of John F.

Heilman, DAV National Legislative Director); Veterans’ Administration Adjudi-

cation and Judicial Review Act, etc.: Hearing Before the Senate Comm. on

Veterans’ Affairs, 98th Cong., Ist Sess. 237 (1983) (“Senate Hearing’’) (statement

of Mr. Heilman). DAV would have no objection to the payment of reasonable

fees by veteran claimants for attorney representation in judicial review proceedings,

as distinguished from proceedings conducted under laws administered by the VA.

House Hearings, supra, at 34; Senate Hearing, supra, at 250.

7

On the other hand, DAV vigorously supports the United

States «nd opposes appellees in defending the constitutionality

of the $10 fee limitation under the current statutory scheme.

Although this fundamental conflict between the positions of

DAV and appellees shifts some component of the special ob-

ligation running to veterans away from appellees and back to

the defenders of the statutes, that traditional basis for deference

to Congressional action remains of uncertain strength. DAV

submits, however, that the conflict of veterans’ interests herein

provides an independent basis for this Court to exercise self-re-

straint in considering the constitutionality of the $10 fee limi-

tation.

The independent basis for the Court to stay its constitutional

hand arises from the fact that essentially the same multiplicity

of veterans’ interests at work in this case has recently and

consistently been resolved by the Congress in favor of preserv-

ing unchanged the statutes challenged here. For the last three

consecutive Congresses, the statutory scheme containing the

$10 fee limitation has been the subject of intense Congressional

scrutiny without ultimate legislative action.* DAV has provided

extensive testimony on the legislative proposals considered by

the Congress in this regard, see, e.g., supra note 4, while

other veterans’ organizations that support appellees in this

litigation have also presented views to the Congress on these

same legislative proposals to modify the fee limit.° The refusal

of Congress to enact legislation disrupting the statutory scheme

‘In each of the 96th, 97th and 98th Congresses, the Senate passed a bill

modifying, inter alia, both the judicial review and fee limitation provisions of

Title 38. The House, however, refused to adopt companion measures, thus

preventing agreement with the Senate that might have permitted alteration of

the statutory scheme. See S. 636, 98th Cong., Ist Sess. (1983); S. 349, 97th

Cong., 2d Sess. (1982); S. 330, 96th Cong., ist Sess. (1979).

*See, e.g., House Hearings, supra note 4, at 73-76 (statement of John F.

Terzano, Legislative Director, Vietnam Veterans of America (“VVA")). VVA

is expected to file herein a brief amicus curiae in support of appellees.

8

after plenary consideration of these proposals reflects the judg-

ment of Congress that the competing interests among veterans

with respect to statutory reform are properly balanced by the

maintenance of the status quo.’

As this Court observed in upholding another statutory and

regulatory scheme (the Fairness Doctrine) against constitu-

tional attack: “Congress and its chosen regulatory agency have

established a delicately balanced system of regulation intended

to serve the interests of all concerned.” Columbia Broadcasting

System v. Democratic National Committee, 412 U.S. 94, 102

(1973) (“CBS”). DAV submits that Congress is constitutionally

better equipped not only to make comprehensive inquiry into

the procedural operation of the VA benefit system, but also

to assess the weight that should be accorded the views of those,

like DAV, of whom it makes such inquiry so as to balance

“the interests of all.”* This is especially so when the environ-

’ Appellees reject this implication because “the $10.00 fee limitation has

never been separately considered by Congress.” Appellees’ Motion to Affirm

(“Mot. to Aff.”), at 30. But the fairness of a complicated and interrelated

Statutory and regulatory scheme for mass claims administration cannot sensibly

be judged piece by piece, but rather must be examined as a whole. The principle

emerges in the Court’s own due process examinations:

[I]t is obvious that a proper due process inquiry cannot be made by

focusing upon one narrow provision of the challenged statutory scheme.

Such a focus threatens to overlook factors which may introduce constitu-

tionally adequate protections into a particular government action. San-

tosky v. Kramer, 455 U.S. 745, 775 (1982) (Rehnquist, J. , dissenting).

“For example, the status of a service organization recognized by the VA

carries with it implications of organizational standing and experience with the

VA claims administration process that are familiar to Congress and are undoubt-

edly taken into account by it when considering the effect of testimonial infor-

mation. In this regard, DAV was included by name in the statute authorizing

such recognition when it was enacted. 38 U.S.C. § 3402. With respect to the

two original organizational plaintiffs in this case, however, appellee National

Association of Radiation Survivors is not recognized by the VA. Appellee

\

|

9

ment in which the scheme operates is “dynamic.” /d. That

characteristic is applicable to the modern VA benefit system,

which has witnessed the development of DAV’s (and other

organizations’) service programs contemporaneously with the

increasingly complicated nature of benefit claims “arising from

such causes as exposure to atomic radiation or Agent Orange,

or from Post Traumatic Stress Syndrome.” NARS, supra, 589

F.Supp. at 1320.

A final consideration bearing upon the degree to which the

respect due a coordinate branch of government is implicated

in this case was also noted in CBS, supra. There, the Court

commented that the agency administering the constitutionally

challenged regime was conducting a “wide-ranging study” of

the scheme that had gotten underway during the pendency of

the case, stating: “At the very least, courts should not freeze

this necessarily dynamic process into a constitutional holding.”

412 U.S. at 132. Similarly here, the Legislative Branch has

during the last three Congresses considered (and rejected) pro-

posals to modify the fee limitation and other related provisions

of Title 38. See supra noe 5. In addition, in the 99th Congress,

bills have already been introduced which, if enacted, would

modify the $10 fee limit. H.R. 585, 99th Cong., Ist Sess.

§ 401 (1985) (introduced by more than eighty-five (85) original

sponsors, see 131 Cong. Rec. H129-130 (daily ed. Jan. 22,

1985)); H.R. 313, 99th Cong., Ist Sess. § 401 (1985), see

131 Cong. Rec. H102 (daily ed. Jan. 7, 1985). There is more

than equal reason here to allow Congress, in its “continuing

search,” CBS, supra, 412 U.S. at 132, for a means to balance

all the competing interests of veterans, to proceed without its

Swords to Plowshares Veterans Rights Organization has been so recognized,

but its status may be adversely affected by its recent criminal conviction under

38 U.S.C. § 3502(b) for accepting payment from the VA with the intent to

defraud the Government. United States v. Swords to Plowshares, No. CR-84-

776 (N.D. Cal. Nov. 6, 1984).

10

options being unduly restricted by a constitutional holding.

See United States v. Kras, 409 U.S. 434, 451 (1973) (Burger,

C.J., concurring) (observing, in the context of a Congressional

commission’s continuing review of the bankruptcy laws: “The

Constitution is not the exclusive source of law reform, even

needed reform, in our system.”).

The rule of according “great weight to the decisions of

Congress” has been applied when a statute “raises equal pro-

tection concerns,” Fullilove v. Klutznick, 448 U.S. 448, 472

(1980), and when legislation implicates fundamental rights

under the First Amendment, as appellees assert here. See, e.g.,

CBS, supra, 412 U.S. at 102. One analytical consequence of

applying the rule in these kinds of cases may have been a

reduction in the magnitude of the governmental interest re-

quired to justify the effect of the challenged enactment on the

constitutional rights involved.

The rule of restraint shou!d have a like effect in resolving

a due process challenge, but the strength of the governmental

interest required to uphold a statute against a due process attack

has not been differentiated by the Court as it has in First

Amendment and equal protection cases, where a compelling

or substantial increment can be demanded — and offset by

the exercise of restraint. Accordingly, one way DAV might

characterize the analytical consequence of applying the rule

to appellees’ due process ciaim is that Congress’ comparatively

more comprehensive institutional powers to inquire into the

fairness of the procedural aspects of the VA benefit system

and to weigh the competing interests among those affected by

it, at least when those powers have been fully exercised and

are being invoked again, call for a suspension of the ordinary

rule that the judiciary is the expert among the Branches on

matters of procedure See, e.g., Santosky, supra note 7, 455

U.S. at 755-756 (standard of proof “is the kind of question which

has been traditionally left to the judiciary to resolve.) (quoting

Woodby v. INS, 385 U.S. 276, 284 (1966)). To put the propos)-

\

\

11

tion alternatively: “The role of the judiciary . . . does not

extend to imposing procedures that merely displace congres-

sional choices of policy.” Landon v. Plasencia, 459 U.S. 21,

34-35 (1982).°

Il. By MISCONSTRUING THE NATURE OF THE PRIVATE INTER-

EST INVOLVED, UNDERVALUING THE QUALIFICATIONS OF

VETERANS SERVICE OFFICERS AND FAILING TO CONSIDER

IMPORTANT NON-FINANCIAL GOVERNMENT INTERESTS,

THE District CouRT STRUCK A SKEWED DUE PROCESS

BALANCE.

DAV will conform its due process argument to the three-fac-

tor test set forth in Mathews, supra, 424 U.S. at 335, to dem-

*The contribution of VA disability benefits to the strength of the nation’s

active military forces is of particular relevance in this regard given Congress’

power to “raise and support Armies . . . and maintain a Navy.” U.S. Const.

art. I, § 8. As far back as the 16th century, England enacted a statute for the

relief of disabled veterans after battle with the Spanish Armada “to encourage

others to serve,” Veterans’ Administration Evaluation of Benefits, etc., 95th

Cong., 2d Sess., Report by the Administrator of Veterans’ Affairs | (House

Comm. Print 1978). In this country, the Continental Congress enacted the first

national legislation to assist those with service-connected disabilities “to encour-

age enlistments.” /d. at 4. Even before the Revolutionary War, veterans’

benefits were provided by Plymouth Colony “to encourage the colony's soldiers

against the Indians.” Veterans’ Administration Analysis and Evaluation, etc.,

95th Cong., 2d Sess., Report by the Administrator of Veterans’ Affairs 5

(House Comm. Print 1978). Continuing into the present, the Chairman of the

Senate Veterans’ Affairs Committee affirmed that efforts to “maintain our

national security . . . include our commitment to those who must wage the

war after they have served.” Hearings on Legislative Recommendations, etc.,

Before the Senate Comm. on Veterans’ Affairs, 96th Cong., 2d Sess. 63 (1980)

(1980 Senate Hearings”) (statement of Sen. Cranston). As the Court recently

emphasized in protecting military retirement benefits from diversion by state

community property laws, “in no area has the Court accorded Congress greater

deference than in the conduct and control of military affairs.” McCarty v.

McCarty, 453 U.S. 210, 236 (1981). The Court should similarly exercise

restraint when considering veteran benefit legislation given its historical con-

tribution to «ctive military forces.

12

onstrate that the District Court erroneously applied that test in

measuring the validity of the $10 fee limitation.'"? As DAV

has just argued, the District Court failed to exhibit proper

regard for the “strong presumption in favor of the validity of

congressional action.” Schweicker v. McClure, 456 U.S. 188,

200 (1982) (reversing District Court for holding that due proc-

ess requires hearing officers on Medicare claims to be lawyers).

This failure warrants particularly critical scrutiny of the District

Court’s application of the Mathews factors.''

To the extent that this Court’s summary affirmance in Gendron v. Levi,

423 U.S. 802 (1975), aff g Gendron v. Saxbe, 389 F.Supp. 1303 (C.D. Cal.),

was based upon the benefit-applicant status of the VA claimant-appellant there,

the fact that certain individual appellees here are VA benefit recipients distin-

guishes Gendron. But to the extent that the affirmance was based on the

Gendron District Court's determination that the $10 fee limitation satisfied

due process, the decision calls for reversal of the District Court in this case.

'' As a matter of either law or fact, this Court should make a final determi-

nation of appellees’ claim despite the preliminary nature of the relief under

review. As a matter of law — in this case, the District Court's failure, inter

alia, to apply principles of judicial restraint — appeals courts ordinarily engage

in plenary review of grants or denials of preliminary relief when the appeal is

based upon an error of law. See, e.g., Pratte v. N.L.R.B., 683 F.2d 1038,

1040 (7th Cir. 1982) (“when the availability of preliminary relief turns on

interpretation of the law rather than the facts, the appellate court is free to

review de novo the District Court’s judgment.”). As a matter of fact, the

District Court purported to examine the due process adequacy of the fee limi-

tation “as applied” to appellees. NARS, supra, 589 F.Supp. at 1309. But that

characterization apprurs to have been no more than an attempt to distinguish

the “great deal of evidence” marshalled in this case, NARS at 1310, from the

“sparse,” id., record in Gendron, supra note 10, not an effort to confine the

effect of the ruling herein to the appellees. As such, sound judicial administra-

tion should lead the Court to resolve this case finally rather than to require

that the costs of further trial proceedings be borne for the comparatively small

evidentiary gain that would be likely. See, e.g., Triumph Hosiery Mills, Inc.

v. Triumph International Corp., 308 F.2d 196, 200 (2d Cir. 1962) (court

would not remand case following review of preliminary injunction in light of

extensive record).

13

A. Preservation of the $10 Fee Limitation Would Foster the

Psychological Value of Meaningful Communication

of Veterans’ Claims By and Through Similarly Situated

Disabled Service Officers.

DAV does not disagree with the District Court’s conclusion

that “[mJany of the claimants and recipients are totally or

primarily dependent upon [VA] benefits for their support.”

NARS, supra, 589 F.Supp. at 1314. Plainly the importance of

such property interests as are at stake in many VA claims

proceedings militates in favor of insuring that the $10 fee

limitation does not deprive claimants of a fundamentally fair

procedure.

But DAV believes that the District Court misconstrued the

effect of “certain less direct interests” it found VA claimants

also to possess. /d. at 1315. The trial court was sensitive to

the “‘psychological value to the veteran of personally com-

municating with bureaucracy’” before the veteran’s claim is

denied by the VA. /d. (quoting Devine v. Cleland, 616 F.2d

1080, 1088 (9th Cir. 1980) ). Presumably, the District Court’s

view was that the $10 fee limitation operated as a barrier to

full realization of that “psychological value,” thus further un-

dermining the statutes’ constitutional validity.

In fact, however, the $10 fee limitation has itself indirectly

served to foster that psychological value, rather than inhibit

its realization, by contributing to the development of a dedi-

cated corps of accredited representatives of recognized vete-

rans’ service organizations whose free assistance to VA claim-

ants may be best illustrated by the NSOs who operate DAV’s

national service program. See supra pp. 2-3. As presented to

the D:strict Court:

{A]ll DAV NSOs are wartime disabled veterans with serv-

ice-connected, wartime disabilities. Like the clients they

I4

represent, they have had to learn to face the handicaps

that overshadowed their futures. Thus, they are able to

relate to and understand the plight of the claimants they

serve, not on the level of a cold business relationship,

but on the personal level of individuals who have shared

similar, painful and tragic experiences. Joeckel Decl.,

supra note 3, at § 11.

It does not take a leap of faith to recognize that veterans’

service organization representatives, and especially those pos-

sessing the characteristics of NSOs, supply to the veteran

claimants whom they assist more than the substance of their

skills, qualifications that DAV wiil address in the next section

of argument. See infra pp. 17-21. These representatives also

impart to claimants a sense that the personal conditions under-

lying their claims are fully appreciated and that these claims

will be handled in the reaningful way that only one who

shares a similar condition, produced by a similar experience,

can assure. Tne fact that this assistance is rendered free of

charge surely intensifies the claimants’ perception of being

well served.

The psychological consideration invoked by the District

Court therefore works in favor of the $10 fee limitation, espe-

cially if invalidation of that provision would weaken the service

officer system, as DAV will later argue would occur. See infra

pp. 25-27. At the very least, it may be posited that those who

would represent veterans for a profitable fee should appellees

prevail would also, as a general rule, be less likely to conve:

the same measure of psychic satisfaction concerning meaning-

ful communication. On balance, then, the “private interest that

will be affected by the official action,” Mathews, supra, 424

U.S. at 335, presents a factor of mixed influence in the due

process analysis rather than one that unqualifiedly supports

the judgment of the District Court.

ee ee

15

B. The Extensive Training, Agency Familiarity, Organiza-

tional Expertise and Special Motivation of Amicus

Curiae’s National Service Officers, When Combined

With the Nenadversarial Setting of VA Claims Adminis-

tration, Minimize the Risk of Error Which Paid Attorney

Involvement May Increase.

The principal reason for DAV’s participation in this case,

as Stated earlier, supra p. 3, is that the Court’s decision will

necessarily raise an inference about the adequacy of DAV’s

most important nonprofit activity: the nationwide provision of

free claims service through the NSO system. The inevitability

of such an inference arises from the Court’s necessary determi-

nation of whether the contribution of NSOs (and other service

organization representatives) to the administration of VA

claims, in conjunction with the nature of those proceedings,

yields an “acceptable rate of error.” Califano v. Boies, 443

U.S. 282, 283, 285 (1979) (recognizing the “special difficulties

presented by the mass administration of the social security

system,” akin to the VA benefit system in which nearly five

million claims were pending in one year, Jurisdictional State-

ment at 21 n.14). DAV submits that the current procedural

structure of the VA benefit system more than satisfies that

standard.

A useful starting point is the observation made by the Senate

Veterans’ Affairs Committee when it reported S. 349, a recent

unsuccessful effort to alter the statutory scheine governing the

adjudication of VA claims, sec supra note 5:

Many of the VA’s internal procedures, particularly in the

area of adjudication of claims, have developed over the

years in such a way as to afford to VA claimants some

advantages not afforded to claimants before other agen-

16

cies. Advantages most often cited are the VA’s very liberal

standards for the admission of evidence, and free represen-

tation before the VA by skilled officers of the various

national veterans’ service organizations — advantages

which are often credited for the informal, “nonadversa-

rial” nature of VA proceedings. . . . [T\he Committee

has given renewed attention and the utmost deference to

these unique and desirable VA practices. S. Rep. No.

97-466, 97th Cong., 2d Sess. 25 (1982) (“S. Rep. No.

97-466") (emphasis added).

Other participants in this case will describe these “desirable

VA practices,” including, by way of prominent example, the

resolution of any reasonable doubt in favor of the claimant,

38 C.F.R. § 3.103(b), in more detail.'* DAV would only con-

clude that the effect of veterans’ service organization represent-

atives like NSOs must thus be measured from a starting point

at which the risk of erroneous deprivation of veterans’ benefits

is already substantially iower than it would be in the traditional

adversary setting.

‘? The Government has described the VA benefit system principally by refer-

ence to VA regulatory provisions. Jurisdictional Statement at 3-8. Appellees

assert that this description “departs dramatically from the record.” Mot. to

Aff., supra note 7, at 3. To the extent that the VA regulatory system as

described by the Government satisfies constitutional requirements, as DAV

submits it does, appellees’ remedy is te attack not the constitutionality of

statutes implemented by the regulations, but the VA's failure to follow its own

‘egulations. To the extent that the VA's regulations implementing the statutory

scieme are themselves viewed by the Court as falling short of constitutional

requirements, a conclusion DAV would oppose, the Court should avoid un-

necessary constitutional adjudication and deciare that the VA improperly im-

plemented the statutory scheme since the Court has been “willing to assume

a congressional solicitude for fair procedure.” Califano v. Yamasaki, 442 U.S.

682, 693 (1979) (reversing constitutional basis for requirement of a hearing

by construing Social Security Act to require it).

17

The same Senate Committee quoted above later commented

that “there is a strong and vital system of veterans service

officers who provide excellent representation at no cost to

claimants.” S. Rep. No. 97-466, supra, at 50-51 (emphasis

added). The Chairman of the House Veterans’ Affairs Commit-

tee, discussing DAV specifically, had earlier and in another

context noted that its NSOs are “fully qualified to assist veterans

in all phases and in all matters pertaining to benefits for the

disabled veteran.” 119 Cong. Rec. 10622 (daily ed. April 2,

1973) (statement of Rep. Dorn) (emphasis added). These au-

thoritative characterizations of service officer skills substan-

tiate the view that in appropriate circumstances, as here, “due

process may be satisfied by the provision of a qualified and

independent adviser who is not a lawyer.” Vitek v. Jones, 445

U.S. 480, 499 (1980) (Powell, J., concurring in part).

The applicability of that view to this case is fully justified

by the qualifications of NSOs. These include (a) the completion

of an extensive NSO training program supported by the VA,

(b) the familiar relationship with the agency before which the

NSOs appear, (c) the organizational expertise acquired from

DAV in such subject areas as those giving rise to the complex

claims of special concern to the District Court, and (d) the

special motivation to assist the claimants they represent. All

of the more than 250 NSOs employed by DAV, whose training

and operations are funded by approximately $18 million an-

nually, see supra p. 2 & note 2, share these qualifications.

The NSQOs’ qualifications derive in part from their participa-

tion in a comprehensive 16 month training program which the

VA usually sponsors under chapter 31 of Title 38, U.S. Cede,

because of each NSO’s disabled status. Joeckel Decl., supra

note 3, at { 7. This targeted program is designed to educate

NSOs in all aspects of the VA’s benefit programs, the laws and

regulations governing the allocation of benefits and the proce-

dures used by the VA in processing claims. /d. at {4 7 and 8

18

and Appendix G attached thereto (“App.”). Of the more than

2600 hours of on-the-job training, for example, half is devoted

to compensation ¢ “ms alone. /d., App. at G-1 and G-2. In

addition, the DAV ___nal Serv.ce and Legislative Headquar-

ters in Washington, D _*reauently conducts intensive con-

tinuing education semina: =. ~~ NSOs are updated with

new materials and information. sa. at { 9.

Another advantage attributable to DAV representation is

that NSOs are highly familiar with VA personnel and have

ready access to VA institutional resources. /d. at | 10. The

close relationship that NSOs have with the VA has developed

as a result of the nonadversarial nature of the claims procedures

described earlier and the VA’s provision to recognized service

organizations like DAV of office space in the VA, 38 U.S.C.

§ 3402, and full access to the records and libraries of the

agency. 38 U.S.C. § 3301(d). NSOs are therefore accustomed

to dealing with VA personnel on a regular and informal basis

i: the nearly 70 VA offices where they work. See supra p. 3.

The practica! advantages that NSOs thus possess in seeking

to successfully shepherd claims through the VA system should

not be underestimated.

The District Court concluded that NSOs lack the expertise

to handle cases in which there are “substantive” and “pro-

cedural” complexities. NANS, supra, 589 F.Supp. at 1322-

1323. On the contrary, by virtue of the NSO training program

and the access which NSOs have to both VA and DAV re-

sources, the NSOs have accumulated substantial expertise in

both the procedural workings of the VA claims process and

the difficulties associated with the proof of complicated claims.

Complex though the operation of the VA claims system may

be, NSOs have been educated in the intricacies of this process

and have become highly specialized as a result of their concen-

trated practice.

As to the substantive complexities involved in modern VA

claims such as those relating to exposure to atomic radiation,

19

Agent Orange and Post Traumatic Stress Disorder (“PTSD”),

id. at 1320, these are well understood by DAV and its NSOs.

For example, the first Congressional hearing on the effect of

veterans’ exposure to atomic radiation was held in 1979. Vet-

erans’ Claims for Disabilities for Nuclear Weapons Testing:

Hearing Before the Senate Comm. on Veterans’ Affairs, 96th

Cong., Ist Sess. (1979). DAV testified extensively at that

hearing on the health effects of exposure to atomic radiation

and urged legislation to provide relief to the claimants. /d. at

220 and 234-237 (statement of Charles E. Joeckel, Jr.)."°

DAV enjoys a particularly distinguished record with respect

to its activities concerning PTSD. As reported in The Forgotten

Warriors: New Concern for the Vietnam Vet., BEHAV. MED.

38, 40 (July, }°79), DAV funded the “Forgotten Warrior Proj-

ect” — “th. first comprehensive study of the psychological

and social protile of Vietnam veterans.” Springing from this

study, D+.V developed a nationwide outreach project operated

by its own NSOs — “one of the first positive steps toward helping

the Vietnam veteran.” APA Monitor, April, 1979 (published by

the American Psychological Association). DAV subsequently

published its own book on the subject: Post-TRAUMATIC STRESS

DiSORDERS OF THE VIETNAM VETERAN: OBSERVATIONS AND

RECOMMENDATIONS FOR THE PSYCHOLOGICAL TREATMENT OF

THE VETERAN AND HIS FAMILY (T. Williams ed. 1980).'*

‘Among other things, Mr. Joeckel stated that the VA “should develop

guidelines” to grant assistance in this area. /d. at 220. After years of persistent

DAV effort, last fall the Congress enacted the Veterans’ Dioxin and Radiation

Exposure Compensation Standards Act, Pub. L. No. 98-542, 98 Stat. 2725

(1984) (“Exposure Standards Act of 1984”). Section 5(a)(1)(B) of the Act now

requires the VA to “establish guidelines” to resolvé claims concerning veterans’

exposure to atomic radiation. 98 Stat. 2727.

‘*DAV’s ground-breaking effort was the forerunner for the estabiishment of

the VA's own “Vet Centers.” See generally, Readjustment Counseling: Hearing

Before the Subcomm. on Hospitals and Health Care of the House Comm. on

Veterans’ Affairs, 97th Cong., ist Sess. 205 (1981) (statement of Robert H.

Lenham, Speciai Projects Officer, DAV). This ultimately led to the recognition

of PTSD as a psychological disorder by the American Psychiatric Association.

20

Finally, as it did with respect to radiation e> posure, see

supra note 13, DAV urged that “guidelines for the disposition

of phenoxy herbicide related claims” be developed. Veterans’

Exposure to Agent Orange: Hear ‘ngs Before the Senate Comm.

on Veterans’ Affairs, 98th Cong., Ist Sess. 539 (1983) (state-

ment of Stephen L. Edmiston, Associate Deputy National

Legislative Director, DAV). Section 5(a)(1)(A) of the Expo-

sure Standards Act of 1984, supra note 13, now requires the

VA to “establish guidelines” for this purpose. 98 Stat. 2727."

‘The disabled status of NSOs was previously described as

helping to foster the psychological value of\a veteran's sense

that his/her claim was personally communicated. See supra pp.

13-14. On the other side of that psychological equation is

the special motivation of a wartime disabled veteran to help

someone similarly situated. The unique bonding that such a shared

experience makes possible needs no elucidation for its force

to be conveyed. When it is combined with the extensive train-

See American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL

OF MENTAL Disorpers (3d ed. 1980). Mental disorders providing a basis for

VA benefits must be diagnosed in accordance with this manual. 38 C.F.R.

§§ 4.125 and 4.126.

''The District Court seems to have believed that attorneys could better

“assist” claimants with respect to such complex claims. NARS, supra, 589,

F.Supp. at 1322. DAV questions whether, assuming arguendo that NSOs’

expertise in these areas does not offset the advaniage of legal training, attorneys

could fair any better in outcome. For example, in preliminarily approving the

$180 million settlement of the Agent Orange litigation consolidated in the

Eastern District of New York, the U.S. District Court noted that despite “five

years of . . . extensive discovery,” the most serious doubt about plaintiffs’

case remained whether “present scientific knowledge would support a finding

of causality.” Jn Re “Agent Crange” ”roduct Liability Litigation, MDL No.

381, slip op. at 7 and 96 (E.D.N.Y. Sept. 25, 1984). The court suggested the

possibility of a directed verdict for defendants, but even if a jury were permitted

to find a causal link between Agent Orange exposure and plaintiffs’ diseases,

the court was dubious whether the verdict would survive a motion for judgment

n.o.v. Id. at 118 and 130. On January 7, 1985, the Court issued its final

judgment approving the settlement and awarding approximately $10 million

in legal fees. In Re “Agent Orange” Product Liability Litigation, MDL No.

381, slip op. (E.D.N.Y. Jan. 7, 1985). If the quantum of attorney effort in

that case yielded so little in the way of proving the Vietnam veterans’ claims,

it seems legitimate to ask how much better than NSOs attorneys would fair

with this and similar “complex” claims before the VA.

21

ing, agency familiarity and organizational expertise upon

which NSOs can draw in the nonadversarial setting of the VA

claims process, the risk that a claimant will be erroneously

deprived of benefits is more than acceptably minimized for

constitutional purposes.

Whatever risk does remain, DAV maintains that representa-

tion of veterans by private counsel would not significantly

improve claimants’ prospects. In a variety of contexts, this

Court has found that representation by an attorney does not

substantially reduce the risk of erroneous deprivation of a

liberty or property interest. Lassiter v. Department of Social

Services, 452 U.S. 18, 33 (1981); Vitek, supra, 445 U.S. at

499-500 (Powell, J., concurring in part); Wolff v. McDonnell,

418 U.S. 539, 569-570 (1974). Cf. Morrissey v. B..ewer, 408

U.S. 471, 489 (1972). Moreover, the Court has been particu-

larly reluctant to require counsel under the mandate of due

process in situations such as obtain under the VA claims sys-

tem, “where the prescribed procedure involved informal deci-

sion-making without the trappings of an adversarial trial-type

proceeding,” Lassiter, supra, 452 U.S. at 37 (Blackmun, J.,

dissenting). See Goss v. Lopez, 419 U.S. 565, 583 (1975);

Gagnon v. Scarpelli, 411 U.S 778, 785-789 (1973). Cf.

Parham v. J.R., 442 U.S. 584, 604-609 (1979); Wolff, supra,

418 U.S. at 569-570. The need for counsel to insure a just

result} _—_arily based upon the operation of an adversarial

syster which an “equal contest of opposed interests” is the

mode assiter, supra, 452 U.S. at 28. Outside such a system,

attor. . have significantly less value, see Gagnon, supra,

411 U.u. at 789, and assistance in conformity with due process

may be supplied in the form of a “qualified and independent

adviser who is not a lawyer.” Vitek, supra, 445 U.S. at 499

(Powell, J., concurring in part). Cf. Wolff, supra, 418 U.S.

at 570.

That attorneys are less likely to reduce the risk of an errone-

Ous decision in a nonaéversarial setting, particularly given the

22

availability of NSOs, is indicated by available statistics from

the VA’s Board of Veterans Appeals (“BVA”). During fiscal

years 1979 through 1982, the average allowance rate in BVA

cases in which an NSO represe.ited a veteran claimant was

13.3%, while the average allowance rate in cases in which a

private attorney represented a claimant was 13.2%. Joeckel

Decl., supra note 3, at § 13. These statistics suggest that

representation by private attorneys is no more effective than

that of NSOs. Although paid attorneys might arguably fare

better, the statistics also fail to reflect the fact that private

attorneys, paid or not, are able to select their cases. By contrast,

NSOs are obligated to represent all veterans who request rep-

resentation, 38 C.F.R. § 14.628(d)(4), including those whose

claims would have insufficient merit to induce an attorney to

become involved.

The District Court found these statistics to be “not helpful.”

NARS, supra, 589 F.Supp. at 1317. It relied instead upon

Statistics which compared the effectiveness of NSOs to private

attorneys in discharge-upgrade proceedings. These statistics

are particularly unreliable since discharge-upgrade proceedings

are formally adjudicated within the Department of Defense

and are ultimately subject to judicial review, making them

fundamentally different from VA claims proceedings.'° DAV

does not mean to suggest that NSOs and lawyers stand on an

equal footing in adversarial proceedings outside the VA.

Ironically, it is conceivable that an influx of attorneys into

the VA claims process could work to the overall detriment of

claimants. Apart from the probability that attorneys would

seek to limit their caseload primarily to meritorious claims as

to which NSOs would just as likely prevail, the predictable

result of substantial attorney participation in VA claims pro-

ceedings would be to make those proceedings more formal and

‘° Adverse upgrade decisions are administratively reviewable by the armed

forces’ Boards for Correction of Military Records, from which the normal

appeal would lie in the U.S. Claims Court. See generally, 10 U.S.C. §§ 1551

et seq.

23

adversarial. ve “ss, supra, 419 U.S. at 583 (1975); Wolff,

supra, 418U.s 909-570 (1974); Gagnon, supra, 411 U.S.

at 787-788 (1975 As Justice Powell noted in Vitek, supra:

“*The introduction of counsel into a revocation proceeding

[would] alter significar’ the nature of the proceeding’. . .

because the hearing would inevitably become more adversary.”

445 U.S. at 498 (Powell, J., concurring in part) (quoting

Gagnon, supra, 441 U.S. at 787). Non-lawyers would be less

prepared to represent claimants in a more adversarial and for-

mal context, and because of the larger numbers of veterans

they would likely represent, any comparatively lower margin

of allowed claims that non-lawyers would thus experience

could well exceed whatever increased margin attorneys might

produce.

In sum, not only does the “excellent representation,” S.

Rep. 97-466, supra at 50-51, provided by veterans service

officers like NSOs substantially minimize the risk of error in

the nonadversarial setting of the VA claims process, but the

added participation of paid attorneys in that process could operate

to increase that risk for veteran claimants as a whole. The Con-

stitution should not be read to reject the former in favor of the

latter.

C. The Non-Financial Government Interests of Preventing

the Diversion of Veterans’ Benefits, Maintaining Nonad-

versarial Proceedings Involving Veterans, and Preserv-

ing Veterans’ Organizations’ Full Capacity to Represent

Claimants and Assist the Congress, Warrant Upholding

the $10 Fee Limitation.

The District Court commented that “the government has

asserted little or no cognizable interest in maintaining the

$10.00 fee restriction.” NARS, supra, 589 F.Supp. at 1323.

Thus the trial court dispensed with the final Mathews factor

in one paragraph of a twenty-seven page opinion. While appel-

lants are best able to articulate the substantial financial costs

24

to the Government if the current VA benefit system were

altered as appellees desire, DAV would offer its views on

non-financial costs since the former “are not of controlling

weight in determining whether duc process requires a particular

procedural safeguard.” Mathews, supra, 424 U.S. at 348.

An uncontested purpose of the fee ‘imitation is to prevent

diversion of VA benefits from veterans to attorneys and others.

The District Court described the purpose as “paternalistic.”

NARS, supra, 589 F. Supp. at 1323. But even the Senate

Committee that sought in 1982 to revise the fee limit stated

that “continuing to discourage attorney representation .. .

would, the Committee believes, appropriately serve to protect

claimants benefits. . . .” S. Rep. 97-466, supra at 50 (em-

phasis added). In viewing the country’s “long standing po) :y”

of favoring veterans, this Court affirmed that it has “aiways

been deemed to be legitimate.” Regan, supra, 461 U.S. at

551 (quoting Feeney, supra, 442 U.S. at 279 n.25)."”

Furthermore, as suggested by the Senate Committee's “ut-

most deference” to the “ ‘nonadversarial’ nature of VA pro-

ceedings,” see supra p. 16, the creation of a more adversarial

context for claimants by the introduction of attorneys would

be particularly unseemly in light of the “moral obligation and

debt of gratitude” owed to veterans. Mitchell, supra, 333 U.S.

at 420. This Court has frequently recognized the government's

' The continuing legitimacy of guarding against unnecessary legal expenses

was evidenced on January 7, 1985, when the court rejected an attorney's fee

claim in the Agent Orange litigation,” supra note 15, “requesting $2,500.00

. . . for doing nothing more than submitting a claim form — a task accomplished

by tens of thousands of claimants without a lawyer's intervention.” /n Re

“Agent Orange” Product Liability Litigation, MLi. No. 381, slip op. at 55

(E.D.N.Y. Jan. 7, 1985). More broadly, the well-recognized litigious nature

of modern society could lead veterans mistakenly to believe that attorncys are

necessary to secure VA benefits in the event that their fees are constitutionally

made payable. See generally, Barton, Behind The Legal Explosion, 27 STan.

L. Rev. 567 (1975)

25

non-financial interest in preserving the nonadversarial nature

of proceedings in a variety of settings. See Parham, supra,

442 U.S. at 605; Goss, supra, 419 U.S. at 583; Wolff, supra,

418 U.S. at 570.

An additional non-financial consideration in maintaining the

current method of allocating veterans’ benefits involves the

Government's interest in maintaining the integrity and viability

of veterans’ organizations. In addition to the service programs

which they operate, these groups provide vital assistance to

the Congress in fulfilling its legislative, informing and over-

sight functions:"*

Those of us who have served on this Committee a number

of years are well aware of the excellent work of your

organization of disabled veterans in support of fair and

just compensation for service-connected disabilities. . . .

As in prior years, we will carefully review, consider and

act upon the observations and recommendations of the

Disabled American Veterans. 1980 Senate Hearings,

supra note 9, at 44-45 (statement of Sen. Stafford) (em-

phasis added).

The nature of DAV’s legislative activities with respect to VA

compensation for disabilities underlying certain complex

claims of concern to the District Court was suggested earlier.

See supra notes 13-15 and accompanying text.

‘* As the Chairman of the Senate Veterans’ Affairs Committee stated concern-

ing recommendations made by such groups on VA authorizations and appro-

priations for fiscal year 1982:

These annual presentations give us on the Committee an excellent oppor-

tunity for members to become more familiar with the views of the

membership of veterans’ organization» on the legislative needs relating

to veterans. These sessions assist the committee in planning its priorities

for the year. “Y82 Legislative Recommendations of Veterans’ Organiza-

tions: Hearings Before the Senate Comm. on Veterans’ Affairs, 97th

Cong., 2d Sess. 60 (1982) (statement of Sen. Simpson).

26

Two important aspects of veterans’ groups like DAV that

could be injured by a decision against the Government in this

case are their service programs specifically and their reputa-

tions generally. It takes little vision to imagine that legal entrep-

reneurs would find NSOs to be as skilled as described above

and would seek to lure them away from DAV to use them in

a paralegal-type capacity in order to maximize profits. In ad-

dition, reputational damage from such a decision would be

unavoidable, as mentioned above. See supra pp. 3 and 15.

One principal consequence of these injuries would directly

conflict with the Senate Committee’s expressed wish “not to

disrupt unnecessarily the very effective network of non-attor-

ney resources” that currently exists. S. Rep. No. 97-466,

supra, at 49-50. Loss of NSO personnel — without replace-

ments likely because even the youngest wartime disabled vet-

erans are now established in careers — would be accompanied

by lowered morale and a more adversarial VA that together

would significantly weaken the NSO system. This consequence

would in turn undermine the credibility of DAV’s presentations

to the Congress which, when combined with predictably ad-

verse reactions from actual and potential DAV members and

donors, would reduce the considerable value of the assistance

that DAV currently renders the Legislative Branch.

So weakened, DAV would be correspondingly less able to

provide the fraternal benefit to the veteran community intended

by Congress when it included in DAV’s charter the purpose

of “stimulat[ing] a feeling of mutual devotion, helpfulness,

and comradeship among all wounded, injured and disabled

veterans.” 36 U.S.C. § 90c. As Congress itself has thus indicated,

to harm veterans’ service organizations is to harm the nation’s

individual veterans as well. For those many veterans who would

continue to desire the free assistance of the service organizations

even if the fee limit were lifted, their choice would be restricted

27

by the opportunity made available to others to retain paid counsel.

This significant interest of the veterans whom Congress has de-

termined to benefit should not be subjected to such a delicate

policy trade-off under the limitations of constitutional decision-

making.

By ignoring the foregoing non-financial government interests,

the District Court assigned too little weight to this Mathews

factor, just as it assigned too much weight to the private interests

and risk of error involved in the current VA ciaims system.

Proper adjustment of the resulting imbalance will yield the con-

clusion that the $10 fee limitation does not violate appellees’

rights to due process of law.'®

'* As to appellees’ First Amendment claim, DAV’s due process analysis “dem-

onstrates that [appellees’ petition] mghts under the First Amendment have been

fully satisfied.” Ortwein v. Schwab, 410 U.S. 656, 660 n.5 (1973). The District

Court’s conclusion that appellees sought attorneys to “obtain . . . compensation

rather than . . . make a political statement,” NARS, supra, 589 F.Supp. at 1326,

subjects the individual appeliees’ interests in contracting with attorneys to economic

regulation outside First Amendment associational protection. In Re Primus, 436

U.S. 412, 438 n.32 (1978). Finally, the fact that the $10 fee limitation “indirectly

cripples” the organizational appellees’ fundraising, NARS, supra at 1324, does

not indicate an infringement of their First Amendment associational rights, but

merely that their viability should not depend so vitally on receiving money from

veteran claimants.

28

CONCLUSION

For the foregoing reasons, the judgment of the District Court

should be reversed.”

Respectfully submitted,

JosEPH C. ZENGERLE*

WILLIAM N. BERKOWITZ

BINGHAM, DaNaA & GOULD

1724 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 822-9320

Counsel for

The Disabled American Veterans

*Counsel of Record

January 31, 1985

This brief was prepared with the able assistance of Ms. Kate D. Balaban,

a third year student at the Univ -rsity of Chicago Law School.

‘

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