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

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CS aaa ma Se

as Supreme Court, U.S.

BOR ARGUMENT iy, FILED

No. 84-571 MAR 8 - 1985

EXANOER L. STEVAS

In the Supreme Court’ cies

OF THE

United States

OCTOBER TERM, 1984

Harry N. WALTERS, Administrator of

Veterans’ Affairs, et al., Appellants,

NATIONAL ASSOCIATION OF

RADIATION SURVIVORS, et al., Appellees.

On Appeal Fr

The United States D © Court

for the Northern District vx California

BRIEF FOR THE

NATIONAL ASSOCIATION OF ATOMIC VETERANS

AS AMICUS CURIAE IN SUPPORT OF APPELLEES

WALTER R. ALLAN

KAREN J. WEGNER

Counsel of Record

DesrRA B. KEIL

Ceci E. Morris

225 Bush Street

Mailing Address: P.O. Box 7880

San Francisco, CA 94120

Telephone: (415) 983-7225

Counsel for the National

Association of Atomic Veterans,

Amicus Curiae in Support of

Appellees )

PILLSBURY, MADISON & SUTRO

225 Bush Street

Mailing Address: P.O. Box 7880

San Francisco, CA 94120

Of Counsel

JEFFRIES BANKNOTE CO. @ 425 CALIFORNIA ST. @ S.F., CA 94104 @ (415) 951-1300

TABLE OF CONTENTS

Interest Of Amicus Curiae ...........:cccccecseeeereeeeeeeeennes vatsddnenaid

Statement of the Case............:ceceeeee ssidaineadaiiadieaonentibidaaiancitiniee

Summary of Argument ............ccccceseseseeneneneesesesceseneneenenennenes

ATZUMERL...........cccccceseesseesesenessesensnenserssrsenssneessensensasnsnneaeaserses

I. The $10 fee limit effectively precludes SCDD

claimants from consulting attorneys in develop-

ing and presenting their V.A. claims and thereby

deprives them of procedural due process .............-+-+-++++

A. SCDD applicants, like recipients, have a

property interest in the expected receipt of

COMPENSALION........0.0ceceeceressereeressenenessnesnsnesnenneneesenenes

B. The freedom to retain counsel is an im-

portant element of procedural due process

In V.A. adjudications ...........ccsececereesreeresereseerereeeees

C. Assistance from V.A. personnel and service

organizations cannot substitute for profes-

sional legal aSSiStaNCe...........-.-essseeereereeseresressereees

D. The interests of V.A. claimants in a fair

presentation of their claims and access to

legal advice far outweigh the asserted

QZOVErNMeENtal INtETESES.............ceeeesereererrerereererreneenens

Il. The $10 fee limit impermissibly infringes

claimants’ First Amendment rights of petition

ANA ACCESS tO JUSTICE ...........ceccereerreereerseresseseesnssnssrseeeees

A. An application for SCDD benefits consti-

tutes an exercise of the right of petition, and

the fee limit impairs the exercise of that

right and the right of access tO justice.........-.-.-++.

B. This serious infringement of the First

Amendment right of petition cannot be jus-

tified because the statutes advance no sub-

stantial government interest and, in any

EVEN, ATE OVETDIOA .............cccceseerreeeeeereeseseeeessnsnees

eee, |... :scicsovcscdenetiotensnsenscbenssesessssenssensesenenstouasstossesnense

Page

TABLE OF AUTHORITIES

Cases

Pages

Agent Orange Product Liability Litigation, In re,

ITED tdsciisinsinteinennnoenvensesvecssecennsvesescscvssccsveecceoovonoeee 15

Alexander v. Silverman, 356 F. Supp. 1179 .........:cccccccssseeeeereees 10

American Civil Liberties Union of New Jersey v.

New Jersey Election Law Enforcement

IL TY Ws GMI, BEAD crcceccersccscovccccscccsessovcccssocossccecs 29

PE Oe I, BE WIM SD crececccecccccscccvcoscesoccsccssccsccceccees 12

Barnett v. Lindsay, 319 F. Supp. 610 ...............csccssssesseerreeereees 10, 18

Batchelder v. Kenton, 383 F. Supp. 299 ..........cccccccessceesseeeeeeeeeens 18

Baxter v. Palmigiano, 425 U.S. 308 ................ccccrcsrreceerserceeseees 19

Black Coalition v. Portland School

I ET ED To sccceressccsesessnencoversveonscssocsoooseoecoorce 18

Board of Regents v. Roth, 408 U.S. 564 ........:ccccccsccseeeseeeeneeees 11, 23

Boddie v. Connecticut, 401 U.S. 371 .........:ccccccessssereeeeseeenes 14, 27, 28

EE TET cs creiccnmenpepengeneqeosnovecsnnvevsceosvectese 27

Brotherhood of Railroad Trainmen v. Virginia

ee 26

Beta 0. Veda, 4B4 US. 8 ...cccccovcccccvvscccccccecsccccccvecscsercensecsesees 28, 29

I SEE TELE, 8 DD cncescccccsccsecnsvescvssssscencsoosccosscososoes 12

California Motor Transport Co. v. Trucking

I I rs saa ctdanecccncencssecserscccccscsorcces 25, 26, 28

Capital Trust Co. v. Calhoun, 250 U.S. 208 ..........:cccccccseseeeenees 12

Caulder v. Durham Housing Authority, 433 F.2d

FR, GUUE, GIR, GE UE, BGO ccccccccccccccccccccvccccccccccccsccccscccees 18

Citizens Energy Coalition of Indiana, Inc. v.

Sendak, 459 F. Supp. 248, aff'd, 594 F.2d 1158 .............0. 29

Clean-up '84 v. Heinrich, 582 F. Supp. 125..........:ccssseseeseeeeees 28

Comets ©. Bateer, SO6 F. BGawp. 153) ...ccccccccccrccsccvccccccccccoccsccesseeseees 18

EE EEL, BU vcscessepecececsccsseerecsnscscevvceccveccesevcosoeesocors 26

Daniels v. Woodbury County, lowa, 742 F.2d 1128 ............:0+ 10

Davis v. Toledo Metropolitan Housing Authority,

STII “TI tctenepsacsessenssncsouserseunpeserenrcscsovccossescovecovececoesoees 10

Davis v. United States, 415 F. Supp. 1086.............:ccccccseeeeeees 10, 18

Demarest v. United States, 718 F.2d 964, cert.

IIIS SI 0 csapnmnpcancnnsonssepqnecerecevecssooecopescseqcosecees 11

Devine v. Cleland, 616 F.2d 1080..............sccsscsssseerseeereseereeeeseeess 9

SE, SL, GED CPI, GE coccecececsnsvcresevscsscccscecosscccsosscccocees 11

Feinberg v. Federal Deposit Insurance Corp., 420

Be MIG WI vccnsecorccovesenesesscesescosevsesscvsessesceoececsocecoscvecsecseovenseneerees 18

Feres v. United States, 340 U.S. 135 ............ssccccsscsrsseereeeereeeeeeeens 18

a EEE

Ferguson v. Metropolitain Development & Housing

Agency, 485 F. Supp. 517 .....sesssssssssesssnensnenensnsnensersserensnsnanenens 18

Frisbie v. United States, 157 U.S. 160...........ccceecscerereeeeeeeenenens 12

Fuentes v. Shevin, 407 U.S. 67 ......cccccccccsssesereeeseressnnnerennennennnnes 12, 25

Gagnon v. Scarpelli, 411 U.S. 778 .......:essssesssssereneensersnserensnenenns 16

Gault, In re, 387 U.S. 1 .....cccccscessesseensensenenssnessnnsensnnsnnansannnsnnanes 16, 18

Gendron v. Saxbe, 389 F. Supp. 1393, affd mem.

sub nom. Gendron v. Levi, 423 U.S. 802.......:sccseesseereeneeeeees 10-11

Geneva Towers Tenants Organization v. Federated

Mortgage Investors, 504 F.2d 483 .........c-ssssssesserersrsnseserenenenes 10

Gilmore v. Lynch, 319 F. Supp. 105, aff'd per

curiam sub nom. Younger v. Gilmore, 404 U.S. 15 .......-+-+:+-+0+ 27

Givens v. Poe, 346 F. Supp. 202........cscsercerserssrssenennsnrsnsannnnnnes 18

Goldberg v. Kelly, 397 U.S. 254......csesesssssssnensneneneneesnsennnenes 8, passim

Goldsmith v. United States Board of Tax Appeals,

pe, tk | ) aN 9

Goss v. Lopez, 419 U.S. 565......ssssssssessseserseseenenenensnenens 11, 19, 23

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 ......:ce:ese0e0+ 9

Griffeth v. Detrich, 603 F.2d 118, cert. denied 445

IG, DIO vcccocecccorecceccsccccscccccsssossnssescscnsesssscoossosssocsenossosoonsosssanoossseses 9-10

Hines v. Lowrey, 305 U.S. 85.......ssscssesessssesesnensresnenenensnsensnnnenens 12

Hudson v. Palmer, 104 S.Ct. 3194 ......ccccccccsssseerssereessennesnnneennnes 26

Indiana Planned Parenthood v. Pearson, 716 F.2d

91.27 ..ccceccocecccsccccccococcosesosescsscesscoeesssoosooonnonscsssenevenssososooscoooooooooooes 18

Jeanette Rankin Brigade v. Chief of Capitol Police,

342 F. Supp. 575, aff'd mem., 409 U.S. 972....-.-cseereeneereeneers 28

Johnson v. Avery, 393 U.S. 483......ssssessesseneeeesnenseensnnensnnsnens 27

Kelly v. Railway Retirement Board, 625 if % ao 10

Logan v. Zimmerman Brush Co., 455 it ® ., 9

Margolin v. United States, 269 U.S. 93.......ssssssereersersnsenseneees 12

Mathews v. Eldridge, 424 U.S. 319.......cssssserneeensnennenenes 8, passim

Middendorf v. Henry, 425 U.S. 25......sssessesrsensnnenernenennnnnnnenens 17

Milhouse v. Carlson, 652 F.2d 371........c:csssssesseseeresernsnenssennnnnes 26

Moffett v. Killian, 360 F. Supp. 228 ...........scsseseesernsnnennennsenenees 28

Morrissey v. Brewer, 408 U.S. 471........cs:ssesesesssnenserenensnsenenenensnns 12

NAACP v. Button, 371 U.S. 415 .....cccccccseereeerreseressernesenesnnnens 26, 29

Nelson v. Dysart, 267 U.S. 540 .......ssssssssssesesensnenensnsnsnsnsnsnenenenens 12

Newman v. Moyers, 253 U.S. 182........:sssssssssesesersnesnsnennensnennsnens 12

Perry v. Sindermann, 408 U.S. 593........--ss-sssssseeneersnsenensensnsenes 11

Pizzolato v. Perez, 524 F. Supp. 914........ccscsesscereseereerensennsenesnnes 26

Plato v. Roudebush, 397 F. Supp. 1295........cssssereersenernseennnnens 9

Pages

Potashnick v. Port City Construction Co., 609 F.2d

1101, cert. demied, 449 U.S. 820..........cccccseecesereeeseseeeeeeesneeeens 19

Powell v. Alabama, 287 U.S. 45 ....ccccccscccccssccssssccccorscccescsccssecsees 15, 19

Primus, In re, 436 U.S. 412.....c..ccccccrcccccssccccresorssscccressseccssssseres 26, 29

Ressler v. Pierce, 692 F.2d 1212.................sscsccccssssssssssrsecesesseees 10, 18

Ryland v. Shapiro, 708 F.2d 967..........csssssseeesersessesenereensnsenenenes 28

Schware v. Board of Bar Examiners, 353 U.S. 232..........::cee0+ 9

Shaw v. Weinberger, 395 F. Supp. 268 ...........:sscseseeeeeeeeseesees 10

Specht v. Patterson, 386 U.S. 605 ........cccsesesseseeeseeererenseneneenenenes 18

Stanley v. Illinois, 405 U.S. 645 ........ccccseesseneeeensseeseneeseeeneenesnnnes 25

Staub v. Roudebush, 424 F. Supp. 1346, vacated

and remanded, 574 F. 26 637 .......cccccccccsscscseccsssccccscocosesscsovsseees 29

Thomas Vv. Collins, 323 U.S. 516 .......cccccscccoccccccccccesccocccvscscscccesoes 29

United Mine Workers v. Illinois State Bar Ass’n,

I sa saitseenebebbnstcnsaenmpnememneninadeengeanets 26, 29

United States v. Hall, 98 U.S. 343..............cccsscscssrsssscecrrrerseees 12

United Transportation Union v. State Bar of

Michigan, 401 U.S. 576.......:ccscssessesseessersssenersensensceseseessenseneenes 26

Wilson v. Thompson, 593 F.2d 1375 ........cssessessersesesreseeenenenees 26

Wolff v. McDonnell, 418 U.S. 539 ...........:cccceecsseseeeeeeeeeenees 12, 19, 27

Wright v. Califano, 587 F.2d 345.........sssssssesessrseseseesnensnennnnenens 10

Vitek v. Jones, 445 U.S. 480...........cccccccccssssrorecssccssrerecessssnessosses 16-17

Constitutions

U. S. Constitution

First Amendment ............cccccscscccsrcccccsccccsseserscccceccssesnssessososs 7, passim

Fifth Amendment (Due Process Clause) ................+++ 12, 14, 25, 27

Federal Statutes

United States Code

5 U.S.C. § S55(B) ........cccccsssccsscsssreccccercereneeseecssessscsssscssssnensenes 19

B U.S.C. § 1362 ...ccccccsscsorercesesscsecrecsccscssreressovecsssssssesssssssossssooess 19

10 U.S.C. § 1553(C).......cccsccsssssrceseesereersrcerensenssesscessnssssassrsesenees 19

18 U.S.C. § 4208(2) ........ccccsscssesssrcersrcereesersneesensscsesssssesssensnsenens 19

3B U.S.C. § 211 (a) .......ecccccsscesssccssccescereersesee: seseessssessnssssessesenses 18

38 U.S.C. §$§ 301-423 .........cccsccsscrssssereereenesensensssssseesessesensnsenees 10

3B U.S.C. $310 2... ..cccccccccscssrcscsccsrssccersessesscssncersessesscssssensnsencoeres 10

3B U.S.C. $§ 311-393 0... cccssssessercsseecerensereesensessessessssrsesenensenenss 13

3B U.S.C. § 312 ....cccccrccerscoersersssccecssccorsrescsessrssensesosssossosocoosssessess 13

3B U.S.C. § 321 .....ccecceccescecsosscceccsossssesescscrecssesssssessscssossosensesesses 10

3B U.S.C. § 331 ....ccccccocsccssrescecsessescosessesencessessessessessossscsossosesossoss 10

3B U.S.C. § 333 .....ccccrcccsrssssscscsscsrsseeserencessesensecsssssssssseessscnsecenss 13

er eee ree Cy a eR TT 13

I 10

i 13

I 13

SES OS 2, 30

Veterans’ Dioxin and Radiation Exposure

Compensation Standards Act, Pub. L. No.

BF Een ere 20

Federal Regulations

Code of Federal Regulations

Re Be ccsccsnnsctistdteininciitnttinnlitpsigtiitnisweemmanemannegetiin 19

ee Be iinet dcincencinninectinginctanipeinnibaniinepmioes 16, 19

ee ee thssteicccsnecnengietannneonimantecmmitdied 16, 19

a I naiinibtiincciieatdentsteseitennnatticninntiieiaitidineenitanignetianiodees 13, 16

te ine icisniccrrsssccictctidydanceiiniaiianiieiiniatitenitaniniiupicmanthinilines 20

PE EE ae en Cee 13

ee ee icririctntnnnesnscttecrinintictndtetenineinnenae 13

pS 8 ee oe ee eR 13

Legislative Materials

S. Rep. No. 97-466, 97th Cong., 2d Sess. (1982)...........cccccseee 6, i5

S. Rep. No. 98-130, 98th Cong., Ist Sess. (1983) 0.00.00... 25

Other Authorities

Speech of John Quincy Adams Upon the Right of

the People to Petition (1838), reprinted in The

Anti-Slavery Crusade in America (J. McPherson

Se ae as eee 26

No. 84-571

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1984

‘y Harry N. Wa.ters, Administrator of

Veterans’ Affairs, et al., Appellants,

NATIONAL ASSOCIATION OF

RADIATION SURVIVORS, et al., Appellees.

On Appeal from

The United States District Court

for the Northern District of California

BRIEF FOR THE

NATIONAL ASSOCIATION OF ATOMIC VETERANS

AS AMICUS CURIAE IN SUPPORT OF APPELLEES

THE INTEREST OF AMICUS CURIAE'

The National Association of Atomic Veterans (“NAAV”) is a

nationwide membership organization composed primarily of

U.S. veterans exposed to atomic radiation during military ser-

vice (“atomic veterans”), their families and their survivors. Its

co-founder, Orville Kelly, was one of the few American veterans

ever determined by the Veterans Administration (“V.A.”) to be

1 Pursuant to Supreme Court Rule 36.2, NAAV requested and was granted

ission by counsel for all parties to file this brief, and letters of consent

permiss

will be filed concurrently herewith.

entitled to service-connected disability compensation for a radia-

tion-related disability. Establishing his entitlement consumed

seven years of his life. Seven months later, Kelly died.

Kelly’s experience with the V.A. alerted him to the almost

insurmountable barriers faced by atomic veterans in proving

their entitlement to compensation. In response, he and his wife

founded NAAV as a non-profit organization’ dedicated to pro-

moting the interests of atomic veterans, especially helping them

establish entitlement to V.A. compensation for radiation-related

disabilities.

Many of NAAV’s members are severely disabled, some

terminally ill, and many are recipients of service-connected

death and disability (“SCDD”) compensation, but very few

receive SCDD compensation for radiation-related disabilities.

Many have applied for compensation for the radiation-related

injuries they have suffered, but the $10 attorneys’ fee limitation

under 38 U.S.C. §§ 3404-3405 has prevented them from

presenting their claims in a meaningful way, and their applica-

tions have been denied. Many other members of NAAV have

been deterred from appiyiag due to the evident futility of doing

so. On behalf of its members, and especially on behalf of unsuc-

cessful applicants and potential applicants for SCDD compensa-

tion, NAAV presents its views as amicus curiae, and joins the

Appellees in urging affirmance of the district court’s order.

STATEMENT OF THE CASE

The operation of the V.A. claims adjudication system is ac-

curately described in the district court’s opinion (J.S.App. 28a-

38a) and in Appellees’ Brief at 2-20. NAAV joins in Appellees’

Statement of the Case. However, we add the following further

statement of facts about the individual Appellees:

In December 1940, Appellee Albert Maxwell, then 21 years

old, was. inducted into the Army (J.A. 46). When Pearl Harbor

was attacked, Maxwell was stationed in the Philippines (J.A.

46). He fought in the Battle of Bataan from December 1941

until Bataan fell in Apri! 1942 (J.A. 46-47). Maxwell was one of

2 NAAV gratefully acknowledges the services and materials provided free of

charge by Jeffries Banknote Co. in connection with the printing of this brief.

approximately 5,000 survivors of the 22,000 soldiers in the

Bataan Death March (J.A. 21, 48-49). He was held as a

prisoner of war in the Philippines (J.A. 48-49), and was confined

for a time in a Philippine prison under sentence of death (J.A.

49). His death sentence was commuted as he stood before the

firing squad (J.A. 49). He was later herded, along with 1,100

other prisoners, into the hold of a “hell ship” destined for Japan

(J.A. 21, 49). The ship was torpedoed and sunk, and Maxwell

was among the 52 survivors picked up by a Japanese

merchantman (J.A. 21).

Maxwell was eventually imprisoned in a POW camp near

Nagoya, Japan (J.A. 50), 65-80 miles from Hiroshima (J.A. 51,

67). He was still there when Hiroshima and Nagasaki were

bombed, and he was puzzled by the “black rain,” which he later

learned was nuclear fallout (J.A. 51, 66, 67). A few days after

the bombing, Maxwell was sent into Hiroshima to clear debris

from the roads (J.A. 51, 67). Maxwell used his bare hands as

tools and wore no protective clothing (J.A. 67). He drank the

water in the bombed areas and ate food cooked in the open (J.A.

67). About seven to ten days after he began to work on the

clean-up detail, he developed nausea and itching, welts, blisters

and a rash covering his arms and legs (J.A. 51, 67). In

September 1945 his POW camp was liberated by United States

Marines (J.A. 51). Maxwell, who is 6'3” tall, weighed 89 pounds

(J.A. 52).

After his return to the United States, Maxwell intended to

make a career of the Army, but was medically discharged in

1947 with a 50% disability rating, later reduced to 40% (J.A.

82), for residuals of beriberi, malaria, shrapnel injury to the

right ankle, optic atrophy, conjunctivitis and diminishing

eyesight of the left eye (J.A. 22, 54-56).

Maxwell and his wife had five children, born between 1948

and 1961 (J.A. 57-61, 76-77). Four of the five children died in

infancy or early childhood due to rare congenita! diseases which

family doctors believe were associated with Maxwell’s exposure

to radiation (J.A. 57-61, 70-71, 76-77).

In 1981, Maxwell was diagnosed as having multiple my-

elomas, a rare form of bone cancer which the Federal Govern-

ment has identified as “meaningfully” associated with exposure

to radiation (J.A. 67). His doctor believes that his cancer is

related to his exposure to radiation in Japan during World War

II (J.A. 67-68). Maxwell filed a claim with the V.A. to increase

his disability rating to 100% on the basis of his multiple my-

elomas and other medical problems (J.A. 74-77, 79-80, 83-86).

He asked an attorney to represent him in connection with his

V.A. claim, but the attorney declin>1 because of the $10 limita-

tion on attorneys’ fees (J.A. 312-314). The V.A. denied

Maxwell’s claim, giving as the sole reason:

“The medical evidence of record would not support a grant of

service connection for the disabilities of multiple myelomas, a

degenerative joint disease, or a peptic ulcer. An increase in the

evaluation of your disabilities already establishec as service

connected is not warranted” (J.A. 81).

This, or a very similarly worded “reason” for denial is, in fact, a

stock paragraph used by the V.A. in explaining denials of

benefits (J.A. 95, 386).

Maxwell has been able to work only sporadically since 1978

(J.A. 80, 367), and not at ail since 1983 (J.A. 84-85, 308). He

has now spent his life’s savings and has been forced to sell his

home and declare bankruptcy (J.A. 322-323). He is 64 years

old, and both he and his wife depend on his SCDD compensation

for their modest existence (J.A. 46, 322).

Unfortunately, Maxwell’s experience is not an isolated case.

The other individual Appellees have suffered equally tragic

consequences of atomic radiation exposure. Appellee Reason

Warehime is a thrice-wounded World War II and Korean War

veteran who was among the occupational forces that entered

Nagasaki on a clean-up detail in August 1945 (J.A. 195). In

1953, Warehime was assigned to duty at an atomic bomb test

site in Arizona, and was positioned in a trench located a mere

2,000 yards from , ound zero (J.A. 196). He and the men under

his command were actually located in the “stem” of the

mushroom cloud that resulted trom the blast (J.A. 196). The

heat was so intense that objects at the edge of the trench were

reduced to charcoal (J.A. 196). The men in the trench were

surrounded by a “dense fog” of radioactive fallout, and they

immediately became nauseous (J.A. 196). After the blast, and

pursuant to orders from his superiors, Warehime ordered his

men to advance to ground zero (J.A. 196). Several months later,

Warehime lost all of his body hair (J.A. 196).

Warchime now suffers from osteoporosis of the bone, muscle

atrophy, sterility, cataracts and lung cancer, which he believes

were caused by his exposure to radiation (J.A. 196). His left

lung was surgically removed in 1982 (J.A. 196). He is confined

to a wheelchair, is partially paralyzed, and is blind in one eye

(J.A. 24, 196). Warehime received a 30% disability rating from

the V.A. for conditions unrelated to his exposure to radiation

(J.A. 196-197). He has filed several claims for his radiation-

related disabilities, which consistently have been denied (J.A.

197). His most recent claim was filed in 1980 (J.A. 197). Nearly

five years later, after numerous hearings, decisions, reversals,

remands and deliberations, that claim is still pending (J.A. 197).

Warehime has been unable to hire a private attorney to help him

pursue his claim because of the $10 fee limit (J.A. 198). Both he

and his wife live solely on the $549 per month that he receives

from the V.A. (J.A. 199).

Appellee Doris Wilson is the widow of a seaman who was

exposed to radiation while assigned to a series of ships involved

in atomic testing in the Pacific Theatre between 1943 and 1947

(J.A. 25, 216). During one of those tests, several men on board

lost their hair and others became nauseated (J.A. 216). The

officers and crew were disturbed by their inability to decon-

taminate the ship (J.A. 216). Wilson’s husband died of pan-

creatic cancer in 1980 and, based on her belief that his death

was caused by his exposure to radiation in the military, Wilson

applied for V.A. benefits (J.A. 216). Her application was denied

(J.A. 216). Wilson, too, was unable to obtain legal assistance

due to the fee limitation (J.A. 217).’

3 The late Don Cordray, a plaintiff when this litigation began, did not live to

see the case reach the Supreme Court. He succumbed to oat cell carcinoma in

March 1984. During Operation Crossroads in Bikini in 1946, he had wit-

nessed tests Able and Baker from the deck of the USS Fulton, where he and

(footnote continued on next page)

SUMMARY OF ARGUMENT

The V.A. is the only agency in the country empowered to

compensate veterans and their survivors for disability or death

resulting from military service. Under the Feres doctrine, veter-

ans cannot sue for such disabilities under the Federal Tort

Claims Act. Moreover, decisions of the V.A. are absolutely final;

judicial review is prohibited by statute.

By the V.A.’s own admission, the $10 fee limitation “effectively

precludes attorney representation before the V.A.” S. Rep. No.

97-466, 97th Cong., 2d Sess. 102 (1982). So sweeping is its appli-

cation that it not only precludes V.A. claimants from securing

representation by attorneys in V.A. hearings, but also prevents

them from obtaining legal advice in the investigation, development

and preparation of their claims. The statute likewise precludes

attorney representation in V.A. appeals, even though such appeals

constitute a final determination on the merits.

The problem is most serious in complex cases, such as atomic

veteran, Agent Orange and post-traumatic stress disorder

(“PTSD”) claims, where proof of causation is especially dif-

ficult. Effective presentation of such claims would routinely

require legal, scientific and medical research, development of

statistical data, acquisition of information concerning the dis-

position of similar claims, physical examination by medical

specialists and the testimony of medical experts.

Even in less complex cases, the V.A. application and appeal

procedures are difficult for a layman to grasp. Claimants are

commonly required to call witnesses on their behalf and to

gather and present medical data and other documentary

evidence to prove the existence of a disability, its causation and

(footnote continued from previous page)

18 others had been positioned as “guinea pigs” (J.A. 146). The Fulton was

ordered to move in immediately after blast Able to recover scientific test materi-

als from the target ships (J.A. 20, 146). Cordray was aboard the Fulton when it

towed one of the target ships to Pear! Harbor (J.A. 147). He remained aboard

for over three months after the blasts, while the ship was highly contaminated

with radiation (J.A. 147). Before his death, Cordray had applied for service-

connected disability benefits. He received a 10% disability rating for a condition

unrelated to his radiation exposure (J.A. 147, 150), but continued to press for

increased benefits for his oat cell carcinoma and related conditions. His radia-

tion-related claims were denied (J.A. 147-149) .

the degree of impairment. Legal points, such as presumptions of

service-connection, often dictate the outcome of an application,

yet claimants have no recourse to professional advice in under-

standing such legalities. And, too, applicants are often severely

disabled, which makes self-representation all the more difficult

and ineffective. Though free assistance is available from service

organization representatives, this assistance is inadequate due to

heavy caseloads and lack of legal training.

The district court correctly held that this virtual prohibition

on the participation of attorneys in the claims process denies

claimants procedural due process and violates their First

Amendment rights of petition and association. This Court

should affirm that decision.

The criteria for entitlement to SCDD compensation are objec-

tively defined by statute, and the award of benefits is not

discretionary. These factors make such benefits a matter of

statutory entitlement and create a protectible property interest

for applicants for SCDD compensation, as well as for its

recipients. Indeed, it is especially important that applicants be

afforded procedural safeguards in the claims process, since it is

most often at this initial adjudicatory stage that benefits are

denied in complicated or controversial cases.

The freedom to retain counsel for advice concerning one’s

legal rights is fundamental, and cannot lightly be stripped away.

It is one of the means by which individuals may shield them-

selves from arbitrary government action. Moreover, the value of

attorneys in adjudicative proceedings, however “informal,” has

often been recognized by this Court. Representation by retained

counsel is uniformly allowed in similar benefit adjudication

schemes, either as a matter of due process or by statutory

provision. Appellants cite no cases in which claimants to statu-

tory entitlements similar to V.A. benefits are precluded from

being represented by retained counsel; this harsh rule for V.A.

claimants is truly an anomaly.

Claimants’ interests in obtaining a fair hearing and being

allowed to consult attorneys on their legal rights clearly out-

weigh the relatively weak interests of the government in

maintaining the fee limit, especially when it is of such question-

able value in achieving any of the asserted statutory purposes.

Appellants misleadingly suggest that removal of the fee limit

would somehow subvert the Congressional intent that the V.A.

operate in an informal and nonadversarial manner. This simply

is not true. Appellees do not challenge the procedures estab-

lished by Congress for V.A. claims adjudication and do not seek

to disrupt the informality of that system. They seek only the

assistance of counsel in complying with those procedures so that

they might have a meaningful opportunity to present their

claims.

This Court also should affirm the district court’s order on

First Amendment grounds. A claim for SCDD benefits consti-

tutes an exercise of the First Amendment right to petition the

government for redress of grievances, and the $10 fee limit

substantially impairs the ability of claimants to formulate those

grievances. Such an infringement of the First Amendmen, is

warranted only if it is substantially related to a compelling

government interest and is narrowly drawn to avoid unnecessary

encroachment. That test is not met in this case.

ARGUMENT

I. THE $10 FEE LIMIT EFFECTIVELY PRECLUDES SCDD

CLAIMANTS FROM CONSULTING ATTORNEYS IN

DEVELOPING AND PRESENTING THEIR V.A. CLAIMS

AND THEREBY DEPRIVES THEM OF PROCEDURAL

DUE PRCCESS.

A. SCDD applicants, like recipients, have a property interest

in the expected receipt of compensation.

That recipients of SCDD compensation have a property inter-

est in continued receipt of such benefits cannot seriously be

disputed. Recipients of welfare and social security benefits have

a property interest in those entitlements, Goldberg v. Kelly, 397

U.S. 254, 261-62 (1970); Mathews v. Eldridge, 424 U.S. 319,

332 (1976), as do recipients of V.A. educational benefits and

pensions, Devine v. Cleland, 616 F.2d 1080, 1086 (9th Cir.

1980); Plato v. Roudebush, 397 F. Supp. 1295, 1308 (D. Md.

1975). Any recipient of governmental benefits has a property

interest in such payments, so long as the expectation of con-

tinued receipt is grounded in the statute establishing the entitle-

ment. Indeed, Appellants seem to concede that SCDD recipients

have a property interest in such compensation. Appellants’ Brief

at 46 n.49.

However, it is especially important that the property interests

of initial applicants also be recognized, for it is in the application

stage that complex claims are most often denied and procedural

protections, including legal representation, are most needed to

assure a fair adjudication. This Court has not squarely decided

whether applicants for statutory benefits have a property inter-

est entitling them to due process. However, its recognition of the

due process rights of applicants in government licensing and

regulation cases leads inevitably to the conclusion that appli-

cants for statutory entitlements must also be accorded due

process.‘

Many lower Federal courts have specifically held, in the

context of other benefit distribution schemes, that due process

does apply in the application stage, for it is the statu.ory crea-

tion of an entitlement, and not the actual receipt of benefits, that

establishes the property inierest. Thus, where the qualifications

for entitlement are objectively defined by statute and the dispen-

sation of benefits is not discretionary, applicants, like recipients,

have a property interest sufficient to invoke due process

protections.

The Ninth Circuit has unequivocally adopted this rule. Grif-

feth v. Detrich, 603 F.2d 118, 120-22 (9th Cir. 1979), cert.

denied, 445 U.S. 970 (1980) (unsuccessful applicant for general

relief had a property interest sufficient to allow a due process

4 See, e.g., Greenholtz v. Nebraska Penal Inmates, 442 US. 1, 11-12 (1979)

(applicants for parole); Schware v. Board of Bar Examiners, 353 U.S. 232

(1957) (applicant for admission to practice law); Goldsmith v. United States

Board of Tax Appeals, 270 U.S. 117, 123 (1926) (applicant to practice

before Board of Tax Appeals). Cf. Logan v. Zimmerman Brush Co., 455 U.S.

422, 428-33 (1982) (claimant under Illinois Fair Employment Practices Act).

challenge to the procedures used in denying the applica-

tion).° Other circuits have also held that initial applicants under

a statutory entitlement scheme are entitled to due process,* and

many district courts are in accord.’

The SCDD entitlement provisions clearly fall within these

principles. Objective entitlement criteria are set forth in 38

U.S.C. §§ 301-423 and in Title 38 of the Code of Federal

Regulations. Payments are not discretionary. See 38 U.S.C.

§§ 310, 321, 331, 341 (using the mandatory language, “the

United States will pay,” or the survivors “shall be entitled”).

Moreover, applicants for such compensation have a greater

property interest than applicants for many other public benefits

because SCDD compensation is, in a very real sense, “earned”

by the military service and service-connected injuries that are

prerequisites of entitlement.

Appellants do not press the distinction between applicants and

recipients as a basis for deciding this case, and the Court should

draw no such distinction. The Federal District Court for the

Central District of California once held that applicants for

SCDD compensation have no property interest in the receipt of

such benefits, and this Court summarily affirmed that decision.

Gendron v. Saxbe, 389 F. Supp. 1303 (C.D.Cal.), aff'd mem.

5 See also Ressler v. Pierce, 692 F.2d 1212, 1214-16 (9th Cir. 1982) (appli-

cants for Section 8 rent subsidies are entitled to due process under Griffeth

rationale, and also “by virtue of [their] membership in a class of individuals

whom the Section 8 program was intended to benefit.” Jd. at 1215). Cf.

Geneva Towers Tenants Organization v. Federated Mortgage Investors, 504

F.2d 483 (9th Cir. 1974).

® Daniels v. Woodbury County, lowa, 742 F.2d 1128, 1132-33 (8th Cir. 1984)

(applicant for state general assistance); Kelly v. Railway Retirement Board,

625 F.2d 486, 489-90 (3d Cir. 1980) (applicant for disabled child’s annuity

under Railway Retirement Act). Accord Wright v. Califano, 587 F.2d 345,

354 (7th Cir. 1978) (applicants initially denied social security benefits).

7 Davis v. United States, 415 F. Supp. 1086, 1090-92, 1095-96 (D. Kan. 1976)

(applicant for compensation for injuries incurred while engaged in prison

employment); Shaw v. Weinberger, 395 F. Supp. 268, 270-71 (W.D.N.C.

1975) (applicant for Supplemental Security Income); Alexander v.

Silverman, 356 F. Supp. 1179, 1179-80 (E.D. Wisc. 1973) (applicants for

general relief); Barnett v. Lindsay, 319 F. Supp. 610, 612 (D. Utah 1970)

(welfare applicant); Davis v. Toledo Metropolitan Housing Authority, 311

F. Supp. 795, 796-97 (N.D. Ohio 1970) (applicant for public housing).

sub nom. Gendron v. Levi, 423 U.S. 802 (1975).* It is unclear,

however, whether the applicant-recipient distinction was the

basis for the summary affirmance. Moreover, that case involved

a purely facial challenge to the fee limitation, and was decided

without the careful inquiry into the actual operation of the V.A.

adjudication system that was made by the district court in this

case (see J.S.App. 26a-38a). The record developed in the instant

case demonstrates the falsity of Gendron’s assumptions about

the “nonadversarial” operation of the V.A. system and the

adequacy of representation by service organizations.

Summary affirmances, while binding on the lower courts,

have only limited stare decisis effect when the same issues are

presented for full consideration by this Court, particularly where

constitutional issues are implicated. Edelman v. Jordan, 415

U.S. 651, 671 (1974). This Court has never before given plenary

consideration to the constitutionality of these fee provisions in

the face of procedural due process and First Amendment chai-

lenges such as those raised in this case. In considering the issues

now presented, this Court should not give undue consideration to

its summary affirmance of Gendron.’

8 The applicant-recipient distinction drawn in Gendron is derived primarily

from two statements in Board of Regents v. Roth, 408 U.S. 564, 577 (1972):

first, that in order to have a property interest in an entitlement, a claimant

must have more than a “unilateral expectation” of its receipt, and second,

that there is a property interest in “legitimate” claims of entitlement.

However, it seems clear that those statements were intended to distinguish

between claims of entitlement resting upon some objectively identifiable

basis, such as a statute, contract or “existing rules or understandings,” see,

e.g., Perry v. Sindermann, 408 U.S. 593, 599-603 (1972), and those based

upon a claimant's purely subjective belief that he should be entitled to a

particular substantive right. The quoted passages were not intended to distin-

guish between “legitimate” and “illegitimate” claims in the sense that only

favorably adjudicated claims could be considered “legitimate”; adoption of

that view would require an assumption that all claims adjudication processes

are 100% accurate, efficient and fair, which is simply untenable. Cf. Goss v.

Lopez, 419 U.S. 565, 579-80 (1975).

® The Court should likewise disregard Demarest v. United States, 718 F.2d 964

(9th Cir. 1983), cert. denied, 104 S.Ct. 2150 (1984), which simply followed

what the Ninth Circuit regarded as the mandate of Gendron. The other lower

court cases cited in Appellants’ Brief at 18 n.17 rested on earlier Supreme

Court authority which decided constitutional issues or issues of statutory

construction other than the procedural due process and First Amendment

(footnote continued on next page)

B. The freedom to retain counsel is an important element of

procedural due process in V.A. adjudications.

Appellees do not ask that the government appoint counsel for

them; they ask only that ihey be allowed to spend their own

money to hire attorneys to assist them in the V.A. claims

process. Under the Due Process Clause, they are entitled to no

less.

Before an individual may be finally deprived of a property or

liberty interest, he is entitled to notice and an opportunity to be

heard. E.g., Mathews v. Eldridge, 424 U.S. at 333; Wolff v.

McDonnell, 418 U.S. 539, 557-58 (1974); Fuentes v. Shevin,

407 U.S. 67, 82 (1972). Moreover, the necessary hearing must

be provided “at a meaningful time and in a meaningful man-

ner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965). The

specific requirements of due process are flexible, but in all cases

the procedures must be fair and must befit the circumstances of

the actual or potential deprivation. Morrissey v. Brewer, 408

U.S. 471, 481 (1972).

In V.A. proceedings, this means that claimants must have the

right to retain counsel. As Appellees have demonstrated, and as

(footnote continued from previous page)

chailenges raised in this case. The Supreme Court cases cited by Appellants

are briefly described as follows: Hines v. Lowrey, 305 U.S. 85, 87, 90-91

(1938) ($10 fee limit deprived state courts of jurisdiction to award higher

fees for services rendered on behalf of an incompetent); Margolin v. United

States, 269 U.S. 93, 95-96, 101-02 (1925) (fee limit upheld against substan-

tive due process challenge by attorney); Nelson v. Dysart, 267 U.S. 540

(1925) (state workers’ compensation statute limiting legal fees to amount set

by court upheld against substantive due process challenge by attorney);

Calhoun v. Massie, 253 U.S. 176, 173-75 (1920) (20% limit on legal fees

payable under a special congressional appropriation for compensation of Civil

War claims upheld against substantive due process challenge by attorney);

Newman v. Moyers, 253 U.S. 182, 183, 185 (1920) (same); Capital Trust

Co. v. Calhoun, 250 U.S. 208, 216-20 (1919) (20% limit on fees payable

under special congressional appropriation upheld against substantive due

process challenge by attorney, insofar as the excess fee was to be satisfied out

of the money paid under the appropriation); Frisbie v. United States, 157

U.S. 160, 165-66 (1895) (predecessor of $10 fee limit upheld against substan-

tive due process challenge by attorney); United States v. Hali, 98 U.S. 343,

349-58 (1878) (upholding constitutionality of Federal criminal statute

prohibiting guardian from embezzling the military pension funds of his

ward). None of these cases is even remotely dispositive of the issues now

before the Court.

the district court found, “both the procedures and the substance

entailed in presenting SCDD claims .. . are extremely complex”

(J.S.App. 30a). V.A. claims processing is governed by an array

of published and unpublished sources, including statutes, regula-

tions, procedural manuals, circulars, guides and precedential

decisions, the interrelation of which is so complicated that one

regional office has sought authorization to purchase a computer

to cross-reference them (J.S.App. 30a, J.A. 394). Claimants are

permitted to introduce documentary, testimonial or other

evidence, 38 C.F.R. § 3.103(b) (1984), and in fact must submit

“evidence sufficient to justify a belief in a fair and impartial

mind that [the] claim is well grounded.” 38 C.F.R. § 3.102

(1984). Inaction can result in a final disallowance of the claim,

with no right of appeal, as when the V.A. requests additional

evidence and the claimant fails to respond within a year

(J.S.App. 30a-31a). In such cases, all accrued or retroactive

benefits are forfeited, even if the claim is later reopened

(J.S.App. 31a). Claimants must meet deadlines for filing either

a notice of disagreement or an appeal, depending upon the stage

of the adjudication (J.S.App. 28a-29a). The substantive appeal

must state all disputed issues of fact or law, 38 C.F.R.

§ 19.123(a) (1984); the claimant is “presumed to be in agree-

ment with any statement of fact ... to which no exception is

taken.” 38 C.F.R. § 19.121(b)(3) (1984).

A number of statutory presumptions apply to SCDD claims,

depending upon the period and conditions of service, the nature

of the disability and the date of onset. See, e.g., 38 U.S.C.

§§ 311-313, 333, 337, 353, 354. These presumptions are in-

tended to protect claimants, but their language is confusing to a

layman, and without advice as to their meaning, the intended

protections may well be unavailing.’®

10 For instance, under 38 U.S.C. § 312 there is a presumption of service-

connection for any chronic disease which manifests itself within one year

after separation, despite lack of evidence of the disease during the service

period. However, the V.A. frequently misapplies this presumption by deny-

ing benefits if the condition did not manifest itself within the one-year

presumptive period. This kind of legal error will almost never be apparent to

a claimant untrained in the law.

The claims themselves involve proof of medical disability,

causation and degree of impairment, which are traditional tort

issues on which attorneys can offer substantial assistance. Par-

ticularly in complex cases, SCDD claims require the acquisition,

organization and presentation of sophisticated scientific and

medical evidence, expert opinions and statistical data. Profes-

sional legal assistance is necessary to help claimants comply with

procedural intricacies, identify witnesses with relevant informa-

tion, secure and interpret documentary evidence, prevent or

discover procedural or substantive errors by the V.A., present

evidence at personal hearings, and delineate the legal and fac-

tual issues for adjudication or appeal.”

A 1983 V.A. study shows that 2,067 claims were filed for

death or disability resulting from the testing of nuclear weapons;

all but 14 were denied (J.A. 515). An additional 388 claims were

filed based on exposure to radiation in Nagasaki or Hiroshima;

all of those claims were denied (J.A. 515). Unless this Court

accepts as accurate the V.A.’s determination that virtually no

U.S. military personnel have been harmed by the testing or use

of nuclear weapons, then something is seriously wrong with the

V.A. claims adjudication process. Whether the process is

denominated “adversarial” or “nonadversarial,” the fact is that

11 In fact, Appellants admit that attorneys would be of assistance to V.A.

claimants in some cases, Government’s motion to affirm Gendron at 7 n.9,

but argue that due process rules are not designed to accommodate “the rare

exceptions.” Appellants’ Brief at 36 (citing Mathews v. Eldridge, 424 U.S.

at 344). There have been almost 19,000 atomic veteran and Agent Orange

claims alone (J.A. 509, 515), many more thousand PTSD clairas, and many

other claims incapable of precise categorization in which attorneys could

offer crucial assistance. We do not believe that Mathews v. Eldridge in-

tended to sanction the kind of grievous sacrifices here imposed on thousands

of American veterans, even assuming arguendo that a simple body count

might show them to be a minority of the total number of claimants. The Due

Process Clause is intended to protect the rights of individuals against

arbitrary action by the state; the interests of these thousands of individuals

cannot simply be deemed “rare exceptions” and disregarded. “[T)he right to

a meaningful opportunity to be heard within the limits of practicality, must

be protected against denial by particular laws that operate to jeopardize it

for particular individuals.” Boddie v. Connecticut, 401 U.S. 371, 379-80

(1971).

it results in an inordinately high percentage of denials ia compli-

cated cases (J.A. 509, 515)."* Applicants are unable to prove

their claims to the satisfaction of the V.A., and they do not know

why. As in Albert Maxwell’s case, the “reason” for the denial of

benefits is often a conclusory statement that the disability is not

service-connected, and claimants have no recourse to effective

assistance in establishing the disputed facts, whatever they

might be, to convince the V.A. to the contrary. For this reason, it

is especially important that applicants for SCDD compensation

be allowed to hire attorneys so that they have a fair chance to

establish their entitlement to benefits in the first instance.

Appellants argue that the present system provides V.A. claim-

ants with a fair procedure, despite their acknowledgement that

the $10 fee limitation has the effect of excluding the participa-

tion of attorneys in the process."* Appellants’ Brief at 19, 26, 30- |

31; S. Rep. No. 97-466, 97th Cong., 2d Sess. 102 (1982). This is

plainly wrong.

The practical value of attorney representation in a variety of

adjudicative settings has often been recognized by this Court.

See, e.g., Goldberg v. Kelly, 397 U.S. at 270-71 (holding the

right to retained counsel to be an element of due process in

welfare termination hearings because “[t]he right to be heard

would be, in many cases, of little avail if it did not comprehend

the right to be heard by counsel” (quoting Powell v. Alabama,

287 U.S. 45, 68-69 (1932)).

Seeking to dispose of this issue simply by dubbing the V.A.

process “informal” and “nonadversarial” not only distorts the

facts (see J.S. App. 33a-38a), but fundamentally misconceives

the nature of the problem. Regardless of the degree of formality

12 Appellants cite several isolated passages from Jn re Agent Orange Product

Liability Litigation, 597 F. Supp. 740 (E.D.N.Y. 1984), which tend to cast

doubt on the strength of the plaintiffs’ case on the issue of causation. That

opinion did not contain findings of fact after a trial. It was written to justify

the $180 million settlement in the face of opposition by the majority of

plaintiffs who expressed their views at the Fairness Hearings. See id. at 759,

761-75. Naturally, in such a posture, the court would emphasize the risks of

litigation for the plaintiffs.

18 Only 2% of all V.A. claimants were represented by counsel in fiscal year

1983. See Appellants’ Brief at 9 n.9.

of V.A. hearings, the burden of proof is on the applicant, 38

C.F.R. § 3.102 (1984), and if he fails to develop and present

available evidence due to ignorance or incapacity, the proof fails,

even in the absence of an “adversary.”

The purportedly “informal” and “nonadversarial” nature of

the proceeding does not eliminate the need for counsel. See In re

Gault, 387 US. 1, 14-30, 34-42 (1967) (appointed counsel

necessary in ‘uvenile delinquency proceedings despite their

nonadversarial nature). In Gagnon v. Scarpelli, 411 U.S. 778

(1973), for instance, this Court recognized the need for legal

representation, even in the context of “informal” probation revo-

cation proceedings because “the unskilled or uneducated proba-

tioner or parolee may well have difficulty in presenting his

version of a disputed set of facts where the presentation requires

the offering or dissecting of complex documentary

evidence.” Id. at 786-87 (emphasis added). This factor is even

more compelling in V.A. adjudications because attorneys are

needed not only to “offer and dissect” documentary evidence,

such as medical records, statistical data and the opinions of

experts, but also to appreciate its necessity in the first instance,

determine from which sources it might be available, gather it,

understand it and convince the factfinder of its probative value.

Nor does the fact that these adjudications relate to medica!

issues reduce the need for attorney representation.’ In Vitek v.

\4 Mathews v. Eldridge, 424 US. at 343-44, distinguished the inquiry involved

in social security disability claims from that involved in welfare claims by

referring to the medical nature of disability claims, the predominance of

documentary evidence and the relative lack of credibility and veracity as

critical factors. This distinction was not drawn, however, to determine

whether representation by counsel was necessary — social security disability

claimants, unlike V.A. claimants, have a right to be represented by counsel,

20 C.F.R. §§ 404.950(a), 404.1705(a) (1984). Rather, the issue in Eldridge

was whether an oral pretermination hearing would substantially reduce the

risk of erroneous deprivation where a post-termination hearing was available.

In that connection, the Court observed that in disability claims a written

presentation would be more likely to suffice than in cases where credibility and

veracity are more critical factors. Jd. at 345. V.A. claimants have a right to oral

hearings, so the Eldridge issue does not arise. Rather, the question in this case is

Cee ee ee ee ee a ee

preparing disability claims and in presenting medical evidence, whether in

written form or through live testimony. Neither Eldridge nor the other cases

cited by Appellants undercut the need for attorneys in such capacities.

Jones, 445 U.S. 480, 495 (1980), this Court held that a prison

inmate threatened with transfer to a mental hospital was entitled

to a pre-transfer due process hearing, despite the “medical

nature of the inquiry.” Four members of the Court believed that

due process also required appointment of counsel, id. at 496-97

(White, Brennan, Marshali and Stevens, JJ.), and a fifth be-

lieved it required appointment of “qualified and independent

assistance,” dut not necessarily a lawyer, id. at 497-500 (Powell,

J., concurring in part). In Vitek, a “licensed psychiatrist or

mental health professional,” id. at 500, might have been as

capable as a lawyer in protecting the inmate’s righ.s, for the

medical decision there was largely predictive — whether the

individual’s mental condition required that he be institutional-

ized.’ Claims for SCDD compensation, in contrast, turn on the

proof of past and current facts — the existence of a disability, its

service-connection, and the disability “rating.” These issues,

similar to those involved in other personal injury actions, are

exactly the kind on which an attorney’s assistance would be

invaluable. And, too, in SCDD claims the physical or psycho-

logical disability itself contributes significantly to the need for

legal assistance. Cf. id. at 496-97.

The availability of additional safeguards through alterna-

tive’® or subsequent” proceedings is also a factor in determining

the constitutional adequacy of 2 particular procedure. Such

protections are nonexistent in this case. The fee limit applies at

all stages of V.A. proceedings, and there is no right to judicial

15 Even if a medical professional could adequately “represent” a V.A. c!aimant,

the $10 fee limitation’ would preveni the veteran from securing such

representation.

16 See Middendorf v. Henry, 425 U.S. 25, 46-48 (1976) (counsel need not be

appointed in summary court-martial proceedings in part due to the unique

ability of the accused to refuse such proceedings and instead to accept a

special or general court-martial, which would carry with it the right to

retained or appointed counsel). Cf. Boddie v. Connecticut, 401 U.S. at 374-

77 (absence of alternative forum to effect divorce supports conclusion that

the state court filing fee, which precluded indigents, violated due process).

17 See Mathews v. Eldridge, 424 U.S. at 349 (availability of post-termination

hearings and judicial review prior to final deprivation of social security

disability benefits heavily influenced the decision that pretermination hear-

ings need not be provided).

review. 38 U.S.C. § 211(a). And because veterans cannot sue for

disabilities stemming from their military service under the

Federal Tort Claims Act, Feres v. United States, 340 U.S. 135

(1950), it is essential that they be given a fair hearing before the

V.A.

It may be true that the V.A. does not hire attorneys specifi-

cally to act as “adversaries” to claimants,” but neither do other

agencies charged with the distribution of statutory entitlement:

Yet, the right to retained counsel has been held to be an element

of procedural due process in claims adjudications before a wide

variety of such agencies’® and in other purportedly “nonad-

versarial” hearings.”” Moreover, even where not judicially deter-

mined to be an element of due process, the right to retained

18 However, many V.A. staff members are, in fact, attorneys, see Appellees’

Brief at 7, and the district court found that V.A. claimants perceive the

process as adversarial! (J.S. App. 35a; see also J.A. 122-125, 149, 159, 180,

182, 187-189, 192-194, 200, 217).

19 E.g., Goldberg v. Kelly, 397 U.S. at 270 (termination of public assistance

payments); Ressler v. Pierce, 692 F.2d at 1219-20 (applications for Section

8 subsidized housing); Caulder v. Durham Housing Authority, 433 F.2d

998, 1004 (4th Cir. 1970), cert. denied, 401 U.S. 1003 (1971) (termination

of lease in Federally assisted public housing project); Ferguson v. Metropoli-

tan Development & Housing Agency, 485 F. Supp. 517, 522, 528 (M.D.

Tenn. 1980) (termination of Section 8 housing subsidies); Davis v. United

States, 415 F. Supp. at 1098 (claim for injuries resulting from employment

with Federal prison); Barnett v. Lindsay, 319 F. Supp. at 611-12 (all

hearings on welfare benefits, including initial denials).

20 E.g., In re Gault, 387 U.S. at 34-42 (commitment proceedings for juvenile

delinquents); Specht v. Patterson, 386 U.S. 605, 610 (1967) (sex offender

commitment following criminal conviction); Indiana Planned Parenthood v.

Pearson, 716 F.2d 1127, 1138 (7th Cir. 1983) (appointed counsel necessary

for minor's petition to bypass parental notification of abortion); Black

Coalition v. Portland School Dist. No. 1, 484 F.2d 1040, 1045 (9th Cir.

1973) (expulsion from school); Crook v. Baker, 584 F. Supp. 1531, 1556,

1559-60 (E.D. Mich. 1984) (proceeding to rescind college degree); Feinberg

v. Federal Deposit Insurance Corp., 420 F. Supp. 109, 120 (D.D.C. 1976)

(FDIC proceeding to suspend bank officer from duties); Batchelder v.

Kenton, 383 F. Supp. 299, 302 (C.D. Cal. 1974) (inmate’s parole date

revocation); Givens v. Poe, 346 F. Supp. 202, 209 (W.D.N.C. 1972) (dismis-

sal of students from public school).

counsel is uniformly provided for by statute or regulation in

administrative proceedings similar to V.A. proceedings.”

Indeed, Appellants cite no cases which hold that retained

counsel may not participate in claims adjudications comparable

to the V.A. system. Instead, they rely on cases dealing with

appointment of counsel for indigents in various noncriminal

contexts, see Appellees’ Brief at 27-28 n.18, a considerably

different issue. Indeed, most of the “appointed counsel” cases

cited by Appellants either implicitly or explicitly recognized the

right to retained counsel, which is all that Appellees seek in this

case. The only cases cited by Appellants that considered the

issue held only that retained counsel need not be allowed in

prison disciplinary hearings, Baxter v. Palmigiano, 425 U.S.

308, 315 (1976) (but inmates could consult with counsel outside

the hearing room, see id. at 312); Wolff v. McDonnell, 418

U.S. at 570, or in procedures imposing high school suspensions

of ten days or less, Goss v. Lopez, 419 U.S. at 583 (recognizing

also that longer suspensions might require greater protections,

and that even in “difficult” short suspensions, counsel should be

allowed as a matter of discretion, id. at 584). Obvious factual

differences make those cases completely unpersuasive.

Aside from the necessity of counsel, there is also an important

liberty interest at stake: the right of an individual to consult with

attorneys on matters affecting his legal rights. See, e.g., Powell

v. Alabama, 287 U.S. at 60, 68-69; Potashnick v. Port City

Construction Co., 609 F. 2d 1101, 1117-19 (Sth Cir.), cert.

denied, 449 U.S. 820 (1980). The infringement of this right

through the $10 fee limitation is a serious intrusion on the

liberty and privacy of the individual in deciding when legal

counsel is necessary for the explanation or protection of his

rights, how much he should pay for such services, and upon

which matters he may receive legal counseling. These are issues

traditionally left to the discretion of the individual without

governmental interference. They are a matter of long tradition

21 See, e.g., 5 U.S.C. § 555(b) (Administrative Procedure Act); 20 C.F.R.

§§ 404.950(a), 404.1705(a) (1984) (SSA hearings); cf 8 U.S.C. § 1362

(deportation hearings); 10 U.S.C. § 1553(c) (military discharge review hear-

ings); 18 U.S.C. §4208(2) (parole determination hearings); 5 C.F.R.

§ 771.302(c)(2) (1984) (Federal employment grievance hearings).

and deeply held values which may not be discarded without

strong justification. This liberty interest is entitled to great

weight in the assessment of the right to retained counsel in V.A.

proceedings.

C. Assistance from V.A. personnel and service organizations

cannot substitute for professional legal assistance.

Appellants make much of the fact that free lay representation

is available through veterans’ service organizations and argue

that this, coupled with the assistance supposedly provided by

V.A. personnel, obviates the need for legal representation.

However, as the district court found, V.A. personnel do not live

up to their statutory obligation to assist claimants in developing

the facts pertinent to their claims,” 38 C.F.R. § 3.103(a), and

service organization representation is inadequate, given the com-

plexity of V.A. procedures and the difficult factual showings

that many claimants must make.

Service organization representatives work under “crushing”

caseloads; at the national level, each has “about 5 cases to

present per working day” (J.A. 547). Under these circum-

stances, as the district court found, the service representatives

22 In fact, the V.A. rarely goes beyond the claimant's service history and

military medical records in “developing the facts” (see, e.g., J.A. 158-159);

it does not seek corroborating evidence, experts’ reports or independent

medical opinions (J.S.App. 34a). Instead, claims examiners “are allocated a

mere 2.84 hours in which to develop the facts underlying an initial SCDD

claim,” and “their performance is measured in part by the speed with which

they process claims” (J.S.App. 33a). An internal V.A. memo shows that it is

V.A. policy to encourage claimants to waive their right to a personal hearing

(J.A. 512, 248-249; see also J.A. 91, 93). And, though the V.A. rarely

exercises its subpoena power to help support claims, it has occasionally

subpoenaed documents to try to refute them (J.S.App. 35a). Furthermore, in

the case of atomic veterans, the V.A. has failed to document patterns of

exposure or disease by cross-referencing claims files and has never requested

an expert opinion (J.S.App. 34a). Congress itself has found that the V.A.

“has not promulgated permanent regulations setting forth specific guide-

lines, standards and criteria for the adjudication of claims ... based on

exposure ... to ionizing radiation.” Veterans’ Dioxin and Radiation Ex-

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

(1984). Indeed, in light of its dual role as guardian of the government purse

and benefactor of the veteran, see 38 C.F.R. § 3.103(a) (1984), it is ques-

tionable whether the V.A. can ever purport to represent adequately the

interests of individual claimants.

rarely gather documentary evidence or seek expert opinions on

behalf of their clients (J.S.App. 36a). In almost all cases, the

record consists of the claimant’s service history and his service

medical history (J.S.App. 36a). At hearings before the local

rating panels, these representatives commonly rely on the board

members to ask questions of their clients, rather than eliciting

the testimony themselves (J.S.App. 37a; J.A. 432). Service or-

ganization representatives often waive their clients’ rights to a

personal hearing, submitting instead an “informal hearing

memorandum,” which is usually two pages or less in length

(J.S.App. 37a). In that case, the claimant never meets his

representative. Even when persona! hearings are not waived, the

representative usually meets his client for the first time about

half an hour before the hearing (J.S.App. 37a).

The district court found that even in presenting final adminis-

trative appeals it is “standard practice” for service organization

representatives to submit nothing more than a one- or two-page

handwritten “brief,” which rarely cites legal authority, and is

often written by the claimant rather than by the representative

(J.S.App. 36a-37a). “Almost none” of the service representa-

tives are lawyers (J.S.App. 36a); consequently, they seldom raise

legal issues on appeal (J.A. 365). This often results in waiver of

legal errors not raised (J.A. 344).

The district court found that “neither the V.A. officials them-

selves nor the service organizations are providing the full array

of services that paid attorneys might make available to claim-

ants” (J.S.App. 33a). That finding cannot be overturned unless

this Court concludes that it was clearly erroneous. Given the

record in this case, such a conclusion is impossible.”

23 The experiences of the individua! plaintiffs in this case exemplify the ineffec-

tiveness of representation by service organizations. Don Cordray, now

deceased, was represented by the Veterans of Foreign Wars (“VFW”’) in an

appeal from the denial of SCDD benefits for oat cell carcinoma and related

ailments that he believed were caused by his exposure to radiation during

Operation Crossroads. The written statement of the VFW representative in

(footnote continued on next page)

D. The interests of V.A. claimants in a fair presentation of

their claims and access to legal advice far outweigh the

asserted governmental interests.

In assessing the fairness of a given procedure, the Court must

balance the individual interests at stake against the interests of

the government in maintaining the established procedure, in

light of the risk of erroneous deprivation of the individual’s

interests and the probable value of the proposed additional

safeguards in reducing that risk. Mathews v. Eldridge, 424 U.S.

at 335.

The private interests of V.A. claimants are to obtain a fair

adjudication of their claims and to maintain the freedom to

consult attorneys concerning their legal rights. With respect to

the interest of V.A. claimants in securing a fair claims

procedure, the risk of erroneous deprivation resulting from the

(footnote continued from previous page)

support of Cordray’s final administrative appeal read, in its entirety, as

follows:

“The veteran appeals for service connection for sciatic nerve damage

which he contends was caused by injections after contamination by

Atomic fallout.

“He believes his arthritis is of many years standing and had its incep-

tion during service.

“The third part of the appeal is for an increased evaluation of his

Duodenal ulcer” (J.A. 44).

This statement apparently resulted in a hearing in which Cordray was

“represented” by the VFW. Cordray did not attend this hearing, however,

and, in fact, never received notice that it had been scheduled for him (J.A.

148).

Similarly, Albert Maxwell's representative from the Disabled American

Veterans (“DAV”) did nothing io help him develop the facts to support his

disability claim (J.A. 310-312, 314). Without Maxwell's authorization, the

representative later cancelled a personal hearing that had been scheduled for

Maxwell and did not even notify him that the hearing had been cancelled

(J.A. 83, 86). Maxwell did not find out about the cancellation, and assumed

that his claim was still pending, until he contacted the DAV to check on the

status of his claim and was told that his representative had retired and was

no longer handling the case (J.A. 309-310). Another DAV representative

unilaterally decided not to raise claims for certain of Maxwell's disabilities,

without obtaining Maxwell’s consent to waive those claims and without

informing him of any reason for not raising them (J.A. 321-322). See also

J.A. 122, 127, 131-138, 143-144, 149, 180, 182, 188, 197-199, 217.

current ban on leg~.i representation, because unquantifiable,™

must be assessed } y exe™ining the “probable value . . . of substi-

tute procedural safew = ° ” id., which was discussed in the

preceding section of . “ However, a claimant’s separate

interest in having essentia. ‘ wed access to legal counsel is

a liberty interest which has ‘ial weight of its own and

must be weighed in the balance... ‘rom any objective proof

of the efficacy of the attorney’s servi.

The gravity of the loss to which the claimant is subjected is

also entitled to weight in the balance, see Goss v. Lopez, 419

U.S. at 575-76; Board of Regents v. Roth, 408 U.S. at 570-71 &

n.8; Goldberg v. Kelly, 397 U.S. at 262-64, and here that loss is

severe. SCDD compensation, linked as it is to the disability or

death of an individual who traditionally has been the family’s

breadwinner, often provides for the bare necessities of life. See

Appellees’ Brief at 25.

These important individual interests clearly outweigh the

government’s asserted interest in the preservation of the fee

limitation. The district court found that the government had

“asserted little or no cognizable interest in maintaining the

$10.00 fee restriction” (J.S.App. 39a). That finding is fully

supported by an analysis of the statutory justifications advanced

by Appellants.

According to Appellants, the fee limitation serves a govern-

mental interest by helping to preserve the “nonadversarial”

nature of V.A. claims processing. Of course, the right to retained

counsel as an element of due process does not turn on a formu-

laic distinction between “adversarial” and “nonadversarial”

proceedings. See pp. 16-19, supra. Moreover, the V.A. claims

24 The risk of erroneous deprivation is difficult either to document or to refute

on the basis of statistics alone. Approximately 26.5% of all V.A. administra-

tive appeals result in reversal or remand (J.A. 584), which is certainly a

significant error rate. But, as the district court found, statistics reflecting the

success rate of claimants currently represented by attorneys are not very

probative (J.S. App. 27a) because the number of such cases is statistically

insignificant and becruse the attorneys currently representing V.A. claim-

ants do so under the strictures of the fee limitation. This Court, too, has

expressed dissatisfaction with mere statistics in reflecting the risk of errone-

ous deprivation. See Mathews v. Eldridge, 424 US. at 346.

adjudication process, as found by the district court (J.S.App.

33a-36a), is hardly “nonadversarial.” See notes 18 & 22, supra.

But more importantly, Appellants erroneously assume that

removal of the $10 fee limit would somehow disrupt the statu-

tory scheme for processing V.A. claims. This fear is unfounded.

Appellees challenge none of the V.A.’s procedural rules other

than the fee limitation. No veteran would be required to hire an

attorney, nor would the government be compelled to appear in a

more adversarial role. Assistance from service organizations

would continue as an option in any case in which the claimant

prefers such lay representation. Moreover, the other statutory

provisions regarding the informality of proceedings would

remain intact. Finally, and significantly, participation by attor-

neys, where the claimant desires such assistance, would help to

assure that the V.A. complies with its own regulations.

The other asserted justifications for the fee limitation do not

tip the balance in favor of its retention. Appellants, understand-

ably, have all but abandoned reference to the governmental

interest traditionally advanced to justify the fee limit — concern

for the welfare of veterans. There is no reason to believe that

veterans are in greater need of protection from “overreaching

and sharp practices” than are recipients of other statutory

benefits or the public generally. And while an interest in the

welfare of veterans may have motivated the statute’s original

enactment, radically changed circumstances since its inception

actually make the fee limit antithetical to that goal.

Appellants also suggest that the statute is necessary to ensure

that the V.A. benefits paid “inure solely to the benefit of the

[veteran].” Appellants’ Brief at 31. The bitter irony of that

statement cannot escape a veteran whose claim is denied due to

his inability to develop and present it effectively. In the absence

of the fee limit, any claimant concerned about the cost of legal

assistance could, and predictably would, seek the free assistance

of a service organization representative, at least during the

initial application stages. If the claim is initially denied,

however, the applicant might well conclude that professional

legal assistance is necessary on appeal, and he should be free to

make that decision.

As for the need to protect the Treasury from fraud, only the

most cynical assumptions would support the view that removal

of the fee limit would somehow entice attorneys to bring

fraudulent claims on behalf of veterans. In any event, such

practices are sufficiently deterred by ethical rules and criminal

penalties currently in place.

Appellants raise for the first time on appeal the potential for

increased administrative costs. Appellants’ Brief at 20 n.29.

However, that argument is disingenuous, for the legislative anal-

ysis estimated no increase in administrative costs as a result of

repealing the fee limit. S. Rep. No. 98-130, 98th Cong., Ist Sess.

50 (1983). Increased costs, if a factor at all, are not of “control-

ling weight,” Mathews v. Eldridge, 424 U.S. at 348, and cannot

outweigh the individual interests at stake here. See Goldberg v.

Kelly, 397 U.S. at 265-66. For while it is true that the V.A. is

charged with processing a large number of claims quickly and

efficiently, Appellants’ Brief at 27, “the Constitution recognizes

higher values than speed and efficiency.” Fuentes v. Shevin, 407

US. at 96 n.22 (quoting Stanley v. Illinois, 405 U.S. 645, 656

(1972)). The Due Process Clause was designed specifically to

protect individuals from the excess of “efficiency” that is often

the hallmark of an unfair proceeding. Jd.

Il. THE $10 FEE LIMIT IMPERMISSIBLY INFRINGES

CLAIMANTS’ FIRST AMENDMENT RIGHTS OF

PETITION AND ACCESS TO JUSTICE.

A. An application for SCDD benefits constitutes an exercise

of the right of petition, and the fee limit impairs the

exercise of that right and the right of access to justice.

The First Amendment right to petition the government for

redress of grievances extends to the courts and administrative

agencies, as well as the legislature. E.g., California Motor

Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972).

Where, as here, the grievance is one of disability or death

stemming from military service on behalf of the nation, an

application for compensation filed with a Federal agency vested

with the sole power to redress such injuries is quintessentially a

“petition” for “redress of grievances.” The petition of a “soldier

of the Revolution” was specifically cited in early House debates

as a prototypic exercise of the right of petition. Speech of John

Quincy Adams Upon the Right of the People to Petition (1838),

reprinted in The Anti-Slavery Crusade in America 23 (J.

McPherson & W. Katz eds. 1969). This reasoning applies with

even greater force in the case of atomic veteran and Agent

Orange claims, where the injury is not one stemming simply

from the circumstances of wartime service in general, or from an

injury inflicted by the enemy, but rather from a specific policy

decision on the part of the United States to employ a particular

type of weapon or chemical agent.”

The related right of access to the courts is now recognized as

one aspect of the First Amendment right of petition.” Thus, in

California Motor Transport Co. v. Trucking Unlimited, 404

U.S. at 510, this Court held that highway carriers applying to

administrative agencies for the acquisition of operating rights, as

well as those opposing such applications, have a constitutional

right of access to such agencies grounded in the right of petition.

In this sense, the “right of access” is really a right of access to

justice, not merely to the courts. Since veterans and their

survivors are foreclosed from seeking redress through the courts

under the Feres doctrine, their right of access to the V.A. as an

adjudicative forum must be accorded the same protection as is

the right of access to the courts in other contexts.

25 NAAV is not an anti-nuclear organization. It simply believes that the

government must compensate its citizens for injuries incurred as a result of

its decision to test and use nuclear weapons, and it must give them a fair

opportunity to prove those injuries.

26 See, e.g., Hudson v. Palmer, 104 S.Ct. 3194, 3198 (1984) (“Like others,

prisoners have the constitutional right to petition the Government for redress

of their grievances which includes a reasonable right of access to the

courts.”); Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam); California

Motor Transport Co. v. Trucking Unlimited, 404 U.S. at 510 (“The right of

access to the courts is indeed but one aspect of the right of petition.”);

Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981); Wilson v.

Thompson, 593 F.2d 1375, 1387 (Sth Cir. 1979); Pizzolato v. Perez, 524

F. Supp. 914, 921 (E.D. La. 1981). Cf United Mine Workers v. Illinois

State Bar Ass'n, 389 U.S. 217, 221-23 (1967) (right of petition is among the

rights invaded when collective action to assert legal rights of association’s

members through litigation or administrative adjudication is prohibited);

accord In re Primus, 436 U.S. 412, 426 (1978); United Transportation

Union v. State Bar of Michigan, 401 U.S. 576, 585-86 (1971); Brotherhood

of Railroad Trainmen v. Virginia State Bar, 377 US. 1, 5-6 (1964);

NAACP v. Button, 371 U.S. 415, 428-31 (1963).

A statute infringes the right of access to justice, and hence the

right of petition, if it erects impediments, either on its face or as

applied, to the effective formulation of the grievance. Hence,

absent a reasonable alternative, prison officials cannot deprive

inmates of the legal advice available to them through “jailhouse

lawyers,” Johnson v. Avery, 393 U.S. 483, 490 (1969), and thus

impair their ability to prepare habeas corpus petitions, or even

civil rights actions, Wolff v. McDonnell, 418 U.S. at 577-

80." This Court and others have gone even further by requiring

state expenditure to furnish inmates with “adequate law librar-

ies or adequate assistance from persons trained in the law.”

Bounds v. Smith, 430 U.S. 817, 828 (1977); Gilmore v. Lynch,

319 F. Supp. 105, 110-11 (N.D. Cal. 1970) (three-judge court),

aff'd per curiam sub nom. Younger v. Gilmore, 404 U.S. 15

(1971).

The import of these decisions is that the right of access to the

courts requires more than physical access; there is no suggestion

in Avery, Bounds or Wolff that the prisoners were, in fact,

prevented from filing habeas petitions or civil rights actions. But

physical access was not enough to satisfy the constitutional

guarantee; the inmates had to be provided with the means to

make such access “meaningful.” Bounds v. Smith, 430 US. at

822 (right of access must be “adequate, effective, and mean-

ingful”). The concept of “meaningful access” goes to the ability

of the petitioner to formulate his grievance in such a way that it

will be susceptible of receiving meaningful consideration by the

adjudicator. See id. at 828 (inmates must be given assistance in

preparing “meaningful legal papers”); Gilmore v. Lynch, 319

F. Supp. at 110 (“ ‘Access to courts’ ... encompasses all the

means a defendant or petitioner might require to get a fair

hearing from the judiciary on all charges brought against him or

grievances alleged by him”).

In the prison context, due to the state’s physical incarceration

of inmates and the liberty and constitutional issues at stake in

27 Wolff v. McDonnell, 418 U.S. at 579, and certain other cases, e.g., Boddie v.

Connecticut, 401 U.S. at 382, found the right of access grounded in the Due

Process Clause. There is no evident consistency in the cases as to the

constitutional basis of the right. It may, in fact, derive from both the First

and Fifth Amendments. But where, as here, the petitioning parties seek not

only access to the procedural mechanisms provided by the government, but

substantive redress as well, the First Amendment is clearly implicated.

their petitions, this concept required state expenditure to assist

in the meaningful exercise of the right. But the rights of access

and petition are not limited to the prison context or to the

vindication of constitutional rights. See, e.g., California Motor

Transport Co. v. Trucking Unlimited, 404 U.S. 508; Boddie v.

Connecticut, 401 U.S. 371; Ryland v. Shapiro, 708 F.2d 967,

971-75 (5th Cir. 1983). The rationale underlying the right of

access cases dictates that the government may not, without

strong justification, restrict an individual’s access to justice by

depriving him of the means necessary to make such access

meaningful, including the ability effectively to formulate his

grievance.

Even aside from the question of access to justice, the govern-

ment may not impose unnecessary impediments on the effective

exercise of the right of petition. E.g., Clean-up ‘84 v. Heinrich,

582 F. Supp. 125,126 (M.D. Fla. 1984) (preliminary injunction

granted against statute prohibiting election-day circulation of

petitions near polling places); Moffett v. Killian, 360 F. Supp.

228, 231-32 (D. Conn. 1973) (three-judge court) (registration

fee for lobbyists in excess of amount required to administer

disclosure requirements of statute was an unconstitutional “tax”

on the right of petition); Jeanette Rankin Brigade v. Chief of

Capitol Police, 342 F. Supp. 575, 585 (D.D.C.) (three-judge

court), aff'd mem., 409 U.S. 972 (1972) (prohibition against

assemblies on capitol grounds violates, inter alia, right of

petition).

Arbitrary spending limits which hinder an individual in assert-

ing the right of petition also run directly counter to the rationale

of Buckley v. Valeo, 424 U.S. 1, 39-59 (1976), where this Court

struck down dollar limitations on personal expenditures for polit-

ical campaigns due to their “substantial and direct restrictions”

on the ability of individuals to exercise their First Amendment

rights. Jd. at 58-59. So, too, where a private citizen desires to use

his own money in pursuance of the First Amendment right of

petition, the government’s interference by placing a ceiling on

the amount he may spend, especially where the ceiling is so low

that it effectively precludes him from securing the assistance he

needs, runs afoul of the First Amendment.

For veterans, the $10 fee limitation creates a barrier to the

effective preparation of V.A. claims and perpetuates an adjudi-

cative atmosphere in which complicated claims almost never can

be proved to the satisfaction of the V.A. In other less complex

cases, the $10 limit similarly impairs the ability of claimants to

formulate their grievances for unique reasons ranging from the

illiteracy or incompetency of the veteran to individual proof

problems which require professional assistance for proper

development and presentation. In short, the fee limit impairs the

ability of claimants to formulate their grievances in many in-

stances which are incapable of precise categorization (see, e.g.,

J.A. 244-245, 331-333), and thereby deprives them of receiving

meaningful consideration of their claims by the V.A. This effec-

tively denies veterans a meaningful right of petition and access

to justice.”

B. This serious infringement of the First Amendment right of pe-

tition cannot be justified because the statutes advance no sub-

stantial government interest and, in any event, are overbroad.

The right of petition deserves the same constitutional protec-

tion as other First Amendment rights. See United Mine Workers

v. Illinois State Bar Association, 389 U.S. at 222; cf. Thomas v.

Collins, 323 U.S. 516 (1945) (right of assembly). Where First

Amendment rights are at stake, government regulation is subject

to exacting scrutiny, Buckley v. Valeo, 424 U.S. at 44-45, and it

must be drawn with “narrow specificity.” NAACP v. Button,

371 U.S. at 433, 438. Thus, any statute impinging on the

effective exercise of First Amendment rights must substantially

advance not only a legitimate government interest, but a compel-

ling one, and even if it does, it must be drawn narrowly so as to

infringe the First Amendmeni as little as is necessary to accom-

plish its purposes. In re Primus, 436 U.S. at 432; Buckley v.

Valeo, 424 U.S. at 25, 64-65; American Civil Liberties Union of

New Jersey v. New Jersey Election Law Enforcement Commis-

sion, 509 F. Supp. 1123, 1128-29 (D.N.J. 1981) (three-judge

court); Citizens Energy Coalition of Indiana, Inc. v. Sendak,

28 Contrary to Appellants’ assertion, the First Amendment issues presented

here were not resolved in Staub v. Roudebush, 424 F. Supp. 1346, 1349

(D.D.C. 1976), vacated and remanded, 574 F.2d 637 (D.C.Cir. 1978)

(Table). That case involved a claim that the fee limit improperly impaired

claimants’ right of association with attorneys and did not address at all the

right of petition.

459 F. Supp. 248, 258 (S.D. Ind. 1978), aff'd, 594 F.2d 1158

(7th Cir. 1979).

The government’s asserted interests in preserving the fee lim-

itation were discussed at pp. 23-25, supra. A broad phrasing of

those interests may make them appear more weighty than they

are. Thus, “protecting the Federal fisc from fraud” or “promot-

ing the welfare of veterans” are lofty-sounding goals which may

pass for “compelling” interests when stated in the abstract.

However, none of these interests, when considered in the context

of V.A. claims adjudications, constitutes a compelling state

interest. In any event, the $10 fee limit is not substantially

related to achieving such goals.

At the very least, these goals could be achieved by far less

drastic measures, such as reasonable yet realistic fee schedules

or specific rules of procedure designed to foster informality

while allowing attorney representation. We do not ask this Court

to design such alternative rules, but where, as here, First

Amendment rights are at stake, it is entirely proper for the

Court to consider such legislative alternatives in assessing the

validity of the means actually employed.

CONCLUSION

For the foregoing reasons, the order of the United States

District Court for the Northern District of California pre-

liminarily enjoining further enforcement of 38 U.S.C. §§ 3404-

3405 should be affirmed in its entirety.

Respectfully submicted,

WALTER R. ALLAN

KAREN J. WEGNER

Counsel of Record

Desra B. KEIL

CeEciL E. Morris

Counsel for the National

Association of Atomic

Veterans, Amicus Curiae

in support of Appellees

PILLSBURY, MADISON & SUTRO

Of Counsel

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