Petition for Writ of Certiorari — Department of Labor v. Triplett

Supreme Court brief1990

Ask Donna

What actually matters in this document.

Text

APR 12 1809

aosere rs an a ;

* Octoser TERM, 1988

UNITED STATES DEPARTMENT OF LABOR, PETITIONER

GEORGE R. TRIPLETT, ET AL.

3 ‘ PETITION FCR A WRIT OF CERTIORARI TO THE :

t SUPREME COURT OF APPEALS OF WEST VIRGINIA '

WILLIAM C. BRYSON

Acting Solicitor General

JOHN R. BOLTON q

Assistant Attorney General >:

DAVID L. SHAPIRO J

: ; Deputy Solicitor General

oe MICHAEL R. DREEBEN -

4 Assistant to the Solicitor General ‘

WILLIAM KANTER |

JOHN S. KOPPEL

. Attorneys Y

Department of Justice i

Washington, D.C. 20530 }

(202) 633-2217 5

JERRY G. THORN :

Acting Solicitor of Labor ;

ALLEN H, FELD*AAN :

‘ Associate Solicitor

g MARY-HELEN MAUTNER j

% Counsel for Appellate Litigation 3

= EDWARD D. SIEGER

; Altorney

| Department of Labor

Washington, D.C. 20210

QUESTION PRESENTED

Whether the attorney’s fee provisions of the Black Lung

Benefits Act, as applied, violate the Due Process Clause of

the Fifth Amendment by denying claimants access to

counsel.

(1)

PARTIES TO THE PROCEEDING

Petitioner, intervenor below, is the United States

Department of Labor. Respondent, the respondent below,

is George R. Triplett. The Committee on Legal Ethics of

the West Virginia State Bar, the petitioner below, is a

respondent in this Court under Rule 19.6 of the Rules of

this Court.

TABLE OF CONTENTS

Page

EY Pee eee l

ee ke liccecesececesten l

Statutory and regulatory provisions involved ............... 2

eh CRs cin cca de ec edbdecccenccces 2

Reasons for granting the petition ...................000005 11

Ree Cdl cen aceeesee veceseecuseceses 24

OE EE eee Tree ee ey EEE YE ET la

ah Cita. Whe hon acebdss sevens eeesnen 37a

ie Cie hav ehh wdndae ceeecceeeceecébecaces 42a

es Liane ece cess Gd bee eiesceetes 52a

a a seep db ctencesse 53a

TABLE OF AUTHORITIES

Cases:

Banks v. Chicago Grain Trimmer’s Ass’n, 390 U.S. 459

EE «Oe oe a dae ccc eccecccess 14

Blanchard v. Bergeron, 109 S. Ct. 939 (1989) ........... 16

Blodgett v. Holden, 275 U.S. 142 (1972) ............... 12

Camp v. Herzog, 104 F. Supp. 134(D.D.C. 1952) ....... 22

Director, Office of Workmen’s Compensation Programs

v. Hemingway Transport, Inc., | Ben. Rev. Bd. Serv.

a Oe ccc ceebeedecetécees 3

Fisch, In re, 188 App. Div. 525, 177 N.Y.S. 338 (1919) ... 14

General Dynamics Corp. v. Horrigan, 848 F.2d 321 (ist

Cir.), cert. denied, 109 S. Ct. 554 (1988) ............. 3

Goldberg v. Kelly, 397 U.S. 254 (1970) ........... ren, =

Hobbs v. Director, Office of Workers’ Compensation

Programs, 820 F.2d 1528 (9th Cir. 1987) ............. 4, 16

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

CE eae CSU TCU Ch cS ccctececcdcccveseces 19

Levins v. Benefits Review Board, 724 F.2d 4 (ist Cir.

ERE M eS 2 CL Sebi ewe gacedesesescceesess 16

Lyng v. Payne, 476 U.S. 926 (1986) .................4.. 20

Mathews v. Eldridge, 424 U.S. 319 (1976) ............ 7, 13, 20

(III)

IV Vv

Cases — Continued: Page Statutes and regulations — Continued: Page

Pennsylvania v. Delaware Valley Citizens’ Council for ; ro - “ery ay Cee eeccecccceccccuses sy ron

Clean Air, 107 S. Ct. 3078 (1987) ............eeee eee 15-16 c), 33 U.S.C. 928(c) ........... 222s eee eee , 5, 55a

Pittston Coal Group v. Sebben, 109 S. Ct. 414 (1988) .... 3 § 28(€), 33 U.S.C. 928(e) (1982 & Supp. IV 1986) ... 22, 56a

Rostker v. Goldberg, 453 U.S. 57 (1981) ............45. 12 Federal Coal Mine Health and Safety Act of 1969, Pub.

Schweiker v. Wilson, 450 U.S. 221 (1981) .............. 18 L. No. 91-173, Tit. IV, § 422, 83 Stat. 796 ........... 14

Shoemaker, In re, 11 Black Lung Rep. 3-145 (ALJ as rae eS ae 23

Pe. megane, pti ibeitiaas °° peeing se! 23 EE a 23

udent ic Interest Research Group v. 42 9

Laboratories, 842 F.2d 1436 (3d Cir. 1988) ........... 16 - mee Tee eg bee bkaeeaee 16

Taylor v. Director, Office of Workers’ Compensation aan 725.351(aXs »

Programs, 9 Black Lung Rep. 3-184 (ALJ 1988) ...... 23 re pag Dive ce eee eee e ene e eee eens ;

Thompson v. Potashnick Construction Co., 812 F.2d roger a 5 362-725 3 67 > seshtythy adhe lp Cathal ated ahicin avs .

SR A HE Ca cb cb bcdcntewbecsecccccesceecs 4, 16 Section 725 363 gt etter mca tai 3

United States v. Carte’, 760 F.2d 266 (4th Cir. 1985) ..... 22 Section 125.365 es NTS 3.5

Velasquez v. Director, Office of Workers’ Compensation Sections 725.365-725.367 ....................... 2, $Ta

Programs, 844 F.2d 738 (10th Cir. 1988) ............. 4, 16 aii RRR RE en 3, $7a

Walters v. National Association of Radiation Survivors, a aa —_

Gp ls Eb Grind Knee cenensencnss seeeees passim Nene nnn evncueuccel 4

Wells v. Director, Office of Workers’ Compensation Pro- nu casesewcne 59a

grams, 9 Black Lung Rep. 1-63 (Ben. Rev. Bd. 1986)... 23 ii Sa Ra ee esa ol 4

Yeiser v. Dysart, 267 U.S. $40 (1925) ..........--20005- 15 SE ee eR 4

i 4

Constitution, statutes, and regulations: TEE De ee eee eee 4

rey a eee 4

U.S. Const.: :

PI ee See a 21 Section 802.202(e) ....... 2.6... e cece e ence eees 22

Amend. V (Due Process Clause) ................ 2, 20, 24 es os a dis pysehieaunaen 22

Act of Mar. 4, 1927, ch. 509, § 28, 44 Stat. 1438 ........ l : Miscellaneous:

Black Lung Benefits Act, 30 U.S.C. 901 ef seg. ......... 115 Cong. Rec. (1969):

TN ac ansacoswess >. 37,970 -

Gs Ps TEE oc ockccencccacceceesececcess 53a >. 39.709 es Tr ee ee Meee eee» 14

§ 422(a), 30 U.S.C. 932(a) (1982 & Supp. IV 1986) .. 2, 3, 4 nm agg anak aeanemat amen

Black Lung Benefits Act Amendments of 1981, Pub. L. eS wales ches cevéceviunesscee st 14

No. 97-119, 95 Stat. 1643 ... 2.0... cece eee eee ees 18 a ee ie, 14

Longshore and Harbor Workers’ Compensation Act, 33 i as Solas oh'deeae ed navens evans 14

U.S.C. 921 ef seq. Bier Gy EID ok ccc ccccesccvicceces 18

§ 21(c), 33 U.S.C. 921(C) .... 0... eevee eee eee: ‘ SO PET GRIIP ORI os 5... oe ec csecceceesss 22

§ 28, 33 U.S.C. 928 (1982 & Supp. IV 1986) ........ 2, 3, J. Stein, G. Mitchell & B. Mezines, Administrative Law

4, 13, 54a "EES a a pf oma RR aa 22

Miscellaneous — Continued:

H.R. 9498, 69th Cong., Ist Sess. (1926) ................

H.R. Conf. Rep. No. 761, 91st Cong., Ist Sess. (1969) ...

H.R. Rep. No. 1441, 92d Cong., Ist Sess. (1972) ........

Hearing on H.R. 9498 Before the House Comm. on the

Judiciary, 69th Cong., Ist Sess. (1926) ..............

Hearnigs on S. 3170 Before a Subcomm. of the Senate

Comm. on the Judiciary, 69th Cong., Ist Sess. (1926) . .

House Comm. on Education and Labor, 96th Cong., Ist

Sess., Black Lung Benefits Reform Act and Black Lung

Benefits Revenue Act of 1977 (Comm. Print 1979) ....

Investigation of the Backlog in Black Lung Cases: Hear-

ings before the Subcomm. on Labor Relations of the

House Comm. on Education and Labor, 99th Cong.

ff FO See re ee ee ee

Oversight Hearing on the Administration of the Black

Lung Program: Hearing Before the-Subcomm. on

Labor Standards of the House Comm. on Education

and Labor, 100th Cong., 2d Sess. (1988) .............

Report to the Honorable Donald J. Pease, House of

Representatives by the U.S. General Accounting Office,

Adjudication of Black Lung Claims by Labor’s Office

of Administrative Law Judges and Benefits Review

ED bed cbkn ede Cecadeds cdvedecess

S. 3170, 69th Cong., Ist Sess. (1926) .............0555.

U.S. Department of Labor, Employment Standards Ad-

ministration, A Sample Survey of All Sources of Both

Monetary and Non-Monetary Income of vlack Lung

PET 0.6 00:6 06:40:00 c00600eseredbonnees

6, 18

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No.

UNITED STATES DEPARTMENT OF LABOR, PETITIONER

GEORGE R. TRIPLETT, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF APPEALS OF WEST VIRGINIA

The Acting Solicitor General, on behalf of the United

States Department of Labor, petitions for a writ of cer-

tiorari to review the judgment of the Supreme Court of

Appeals of West Virginia in this case.

OPINIONS BELOW

The opinion of the Supreme Court of Appeals (App.,

infra, 1a-32a), is reported at 376 S.E. 2d 818. A dissenting

opinion (App., infra, 33a-36a) and an opinion on rehear-

ing (App., infra, 37a-41a) are unreported. The Findings of

Fact, Conclusions of Law, and Recommendation Con-

cerning Discipline of the Committee on Legal Ethics of the

West Virginia State Bar (App., infra, 42a-5la), are

unreported.

JURISDICTION

The judgment of the Supreme Court of Appeals was

entered October 26, 1988. A petition for rehearing was

denied on December 21, 1988 (App., infra, 52a). On

March 14, 1989, Chief Justice Rehnquist extended the

time for filing a petition for a writ of certiorari to and

(1)

including April 20, 1989. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATUTORY AND REGULATORY PROVISIONS INVOLVED

Section 422(a) of the Black Lung Benefits Act, 30

U.S.C. 932(a) (1982 & Supp. IV 1986), incorporating

various provisions of the Longshore and Harbor Workers’

Compensation Act (LHWCA), and Section 28 of the

LHWCA (33 U.S.C. 928 (1982 & Supp. IV 1986)), which

is one of the provisions so incorporated, are set forth in an

appendix (App., infra, 53a-56a).

The Department of Labor’s regulations governing the

payment of claimants’ attorney’s fees in black lung cases,

20 C.F.R. 725.365-725.367, are set forth in an appendix

(App., infra, 57a-60a).

STATEMENT

In this case the Supreme Court of Appeals of West

Virginia determined that the system for awarding

attorney’s fees in black lung cases violates the Due Process

Clause of the Fifth Amendment, by denying claimants ac-

cess to counsel. The court concluded that the attorney’s fee

system produces undue delays in payment and provides in-

adequate compensation, thereby discouraging most at-

torneys in West Virginia from representing claimants for

black lung benefits. The court thus held that, as apnlied,

the attorney’s fee provisions are unconstitutional, and,

consequently, the violation of those provisions cannot

serve as the basis for attorney disciplinary proceedings.

1. The Black Lung Benefits Act, 30 U.S.C. 901 ef seq.

(1982 & Supp. IV 1986), “provides benefits to those who

have become totally disabled because of pneumoconiosis,

a chronic respiratory and pulmonary disease arising from

coal mine employment,” and to their eligible survivors.

Pittston Coal Group v. Sebben, 109 S. Ct. 414, 417 (1988).

A claimant for benefits may be represented “in any pro-

ceeding for determination of a claim” by a qualified repre-

sentative, including an attorney. 20 C.F.R. 725.362,

725.363. As part of its protection for eligible beneficiaries,

the Act regulates the payment of fees for a claimant’s at-

torney. See 30 U.S.C. 932(a) (1982 & Supp. IV 1986)

(incorporating, inter alia, 33 U.S.C. 928 (1982 & Supp. IV

1986)). The Department of Labor has also issued com-

prehensive regulations governing the a‘‘ard of such fees.

20 C.F.R. 725.362-725.367.

Under the Act and the Department of Labor’s regula-

tions, an attorney for a black lung claimant is prohibited

from charging a fee unless the fee has been approved by

the appropriate agency or court. 33 U.S.C. 928(c); 20

C.F.R. 725.365. The regulations also provide that “[n]o

contract or prior agreement for a fee shall be valid.” 20

C.F.R. 725.365. When the claimant does not prevail in his

effort to win benefits, no fee is approved. See General

Dynamics Corp. v. Horrigan, 848 F.2d 321 (Ast Cir.), cert.

denied, 109 S. Ct. 554 (1988); Director, Office of Work-

men’s Compensation Programs v. Hemingway Transport

Inc., 1 Ben Rev. Bd. Serv. 73 (Ben. Rev. Bd. 1974). When

the claimant does prevail in a contested case, the coal mine

operator, its insurance carrier, or, in certain instances, the

Black Lung Disability Trust Fund (administered by the

Director of the Office of Workers’ Compensation Pro-

grams in the Department of Labor) pays “a reasonabie at-

torney’s fee.” 30 U.S.C. 932(a) (1982 & Supp. IV 1986) (in-

corporating 33 U.S.C. 928(a)); 20 C.F.R. 725.367.

The black lung regulations establish the procedures for

applying for a fee and the criteria for its award. See 20

C.F.R. 725.366. The application must itemize the work

done and note “the customary billing rate” of the person

who performed it. /bid. An approved fee “shall be reason-

7 +

ably commensurate with the necessary work done.” 20

C.F.R. 725.366(b). The regulation identifies as factors to

be taken into account in setting a fee “the quality of the

representation, the qualifications of the representative, the

complexity of the legal issues involved, the level of pro-

ceedings to which the claim was raised, the level at which

the representative entered the proceedings, and any other

information which may be relevant to the amount of fee

requested.” Ibid.

An attorney must apply separately to the “deputy com-

missioner, administrative law judge, or appropriate appel-

late tribunal” before whom the services were performed.

20 C.F.R. 725.366(a). A claim begins with processing by a

Department of Labor deputy commissioner. 20 C.F.R.

725.401. Any party can then request a de novo hearing

before an administrative law judge (ALJ). 20 C.P.R.

725.419. The ALJ’s decision is subject to review by the

Benefits Review Board, and review of that decision is

available in a court of appeals. 30 U.S.C. 932(a) (1982 &

Supp. IV 1986) incorporating, inter alia, 33 U.S.C. 921(c);

20 C.F.R. 725.481, 725.482. An award of attorney’s fees is

not enforceable until the claimant receives a final award of

benefits (33 U.S.C. 928(a)). An approved fee at that point

“shall be paid promptly and directly by the operator or

carrier to the claimant’s attorney in a lump sum after the

order becomes final.” 20 C.F.R. -725.367(a). The fees

ultimately paid do not include interest. See Hobbs v.

Director, Office of Workers’ Compensation Programs,

820 F.2d 1528, 1530-1531 (9th Cir. 1987). Nevertheless,

the attorney’s risk of loss and the delay in payment can be

reflected in the hourly rate charged by claimant’s attorney.

See Velasquez v. Director, Office of Workers’ Comyeisa-

tion Programs, 844-F.2d 738, 739 (10th Cir. 1988); Hobbs,

820 F.2d at 1529; Thompson v. Potashnick Construction

Co., 812 F.2d 574, 577 (9th Cir. 1987).

2. a. Beginning in 1978, respondent, a West Virginia

lawyer, entered into contingent fee agreements with ap-

proximately fifteen black lung claimants (see App., infra,

2a, 46a-48a). These agreements entitled him to 25% of the

back benefits recovered by the claimants as a result of his

representation. Jbid. Between 1978 and 1983, claimants

represented by respondent were awarded benefits, and he

collected fees under the contingent fee arrangements.

Since these fees were never approved by the appropriate

agency or court, they were collected in violation of the

Statute and Department of Labor regulations. Jd. at

47a-49a; see 33 U.S.C. 928(c), 20 C.F.R. 725.365.

In 1987, the Committee on Legal Ethics of the West

Virginia State Bar began a disciplinary proceeding against

respondent based on his violations of the Department’s fee

regulations. Following a hearing, the Committee found re-

spondent to have engaged in professional misconduct.

App., infra, 42a-44a. The misconduct consisted of “{h]is

failure to abide by the [Department] regulation,” a failure

that constituted among other things, “conduct that is prej-

udicial to the administration of justice” and that “adverse-

ly reflects on his fitness to practice law”. Jd. at 50a (citing

West Virginia Code of Professional Responsibility, DR

1-102(A)(4), (5), and (6) (1982)). The Committee filed a

complaint in the Supreme Court of Appeals of West

Virginia to enforce a recommended six-month suspension.

App., infra, la.

b. The Supreme Court of Appeals denied enforcement

of the suspension. App., infra, la-32a. The court held that

the provisions for awarding attorney’s fees under the black

lung statute and the Department’s regulations, as applied,

“severely restrict [black lung] claimants’ ability to find

competent lawyers to represent them, and therefore the

system violates due process.” Jd. at 24a. The court con-

cluded that because the attorney’s fee limitations were un-

constitutional, respondent’s failure to comply with the

Department’s regulations did not violate West Virginia

ethical rules.' Jd. at 30a.

The court acknowledged that the Department’s regu-

lations “appear[{] to provide for attorneys’ fees that will

fairly compensate cumpetent counsel,” but it nevertheless

found that “the factual record before us reveals that this is

not the case.” App., infra, 16a. This “factual record” con-

sisted solely of the affidavits of five attorneys submitted to

the court as attachments to an amicus brief and of at-

torney testimony before a House of Representatives Sub-

committee in 1985. Jd. at 17a-20a (citing Investigation of

the Backlog in Black Lung Cases: Hearings Before the

Subcomm. on Labor Relations of the House Comm. on

Education and Labor, 99th Cong., Ist Sess. (1985)). Based

on that record, the court determined that the fee provi-

sions manifested two inadequacies that deter “most” at-

torneys from taking on black lung cases. Those problems

were “the long delay in payment, without any provision

for interest, and the lack of premiums to offset the con-

tingent nature of the work.” App., Infra, 20a. The court

added that “[t}his latter factor has become increasingly

prominent as the approval rate [for claimants] has steadily

declined” as a result of tighter eligibility criteria under

1981 amendments to the black lung statute. /bid. The

court cited an approval rate of 22.7% for claimants before

an ALJ and 5.8% overall under the 1981 amendments.

Ibid. The low approval rate, the court believed, estab-

lished “not only the necessity of lawyer representation, but

[also] the substantial risk that a lawyer will receive no fee

at all for his work.” Jbid.

' The court rejected the Committee’s charge in its complaint that

Triplett had misrepresented his fee arrangements to the Department,

finding that the Committee had not adequately alleged such a viola-

tion and that the evidence did not support it in any event. App., infra,

Sa-6a.

—

The court then evaluated the attorney’s fee system under

the three-factor test articulated by this Court in Mathews

v. Eldridge, 424 U.S. 319 (1976), and Walters v. National

Association of Radiation Survivors, 473 U.S. 305 (1985).

App., infra, 20a-24a. Under this test, the court noted, it

must weigh “the private interest that will be affected by the

official action; the risk of an erroneous deprivation of

such interest through the procedures used, the probable

value, if any, of additional or substitute procedural safe-

guards; and the Government’s interest in adhering to the

existing system.” Jd. at 8a (quoting Walters, 473 U.S. at

321). Applying those factors, this Court in Walters had

upheld Congress’s $10 fee limitation for attorneys in

Veterans’ Administration (VA) benefits proceedings, find-

ing no due process violation. The court here applied the

same factors to reach the opposite result.

First, the court identified two government interests in

the regulation of fees in the bl.ick lung program: (1) the fee

approval requirement serves “to ensure that neither the

responsible operator nor the Trust Fund will be over-

charged,” and (2) the prohibition of private fee agreements

serves “to protect claimants from improvident agreements

that needlessly deplete their benefits.” App., infra, 21a.

The court discounted these interests, however, because of

its view that the fee system in operation has made lawyers

“almost enti ‘ely unavailable to claimants,” with the result

that “under the current system the claimant seldom has an

award to share.” bid.

Turning to the second factor, the court surmised that

the absence of counsel poses a serious risk of an erroneous

result. While acknowledging that it lacked statistics com-

paring the s’*ccess rates of black lung claimants with and

without counsel, the court asserted that the “black lung

claims process is procedurally, factually and legally com-

plex,” and that “lawyer representation is virtually essential

to prevent erroneous deprivations of benefits for victims

of black lung.” App., infra, 22a-23a. The court found sup-

port for its determination in the experiences of

respondent’s clients, who, the court stated, had failed to

win benefits without counsel but had succeeded in winning

benefits with counsel. Jd. at 22a. The court speculated that

respondent’s “clients can probably be taken as representa-

tive of most claimants.” Jbid. The court added that the

advantage of having an attorney in a black lung case dis-

tinguished this case from Walters, where veterans repre-

sented by counsel were only “marginally more successful”

than those who proceeded without lawyers. Jd. at 2la-22a.

The court also observed that, in contrast to the network of

veterans’ groups in Walters, nonlawyer representatives are

not widely available for black lung claimants. Jd. at 23a.

Finally, the court evaluated the weight of the private in-

terests at stake. In Walters, this Court had emphasized

that VA benefits are awarded on the basis of disability

rather than need, which reduced their weight in the

analysis of the process that was due. 473 U.S. at 333.

Although black lung benefits are also awarded on the basis

of disability, not need, the court here insisted that the in-

terest in obtaining black lung benefits deserved a weight

comparable to the strong interest in retaining subsistence

welfare benefits that was recognized in Goldberg v. Kelly,

397 U.S. 254 (1970). App., infra, 23a-24a. The court ex-

plained that since black lung benefits are awarded for total

disability or death, they “may well provide the only means

of subsistence” to claimants. Jd. at 24a.

Summarily balancing these factors, the court concluded

that “the system as currently administered denies claim-

ants for black lung benefits property without due process

of law by severely restricting their right to obtain epre-

sentation by competent counsel.” App., infra, 28a; id. at

24a. Without citing any specific provision of the Constitu-

tion, the court also discovered an “independent” constitu-

tional ground for invalidating the fee system: it effectively

denies “qualified claimants the procedural safeguards pro-

vided by Congress that are essential to vindicate the right

to benefits granted by Congress.” Jd. at 24a-25a.?

Two justices dissented. App., infra, 33a-36a. The dis-

senting opinion noted that the majority had decided a con-

stitutional question never raised below, and, as a conse-

quence, “there is no factual record developed.” /d. at 33a.

In particular, the dissent stated that “[t]he ex parte affi-

davits” of attorneys practicing in the black lung field were

“woefully inadequate” to sustain the finding that the black

on fee system deprived claimants of access to counsel.

id.

The dissent also found the majority’s reliance on

Walters to be “completely misplaced.” App., infra, 33a.

The dissent took issue with the majority’s failure to give

the appropriate deference to the “ ‘duly enacted and care-

fully considered decision’” of Congress (id: at 34a

(quoting Walters, 473 U.S. at 319)), and recalled that this

Court in Walters had stressed that “ ‘{i]t would take an

extraordinarily strong showing of ‘probability of ‘error

under the present system—and the probability that the

presence of attorneys would sharply diminish that

possibility—to warrant a holding that the fee limitation

denies claimants due process of law.’” App., infra,

34a-35a (quoting Walters, 473 U.S. at 326). Applying that

standard, the dissent was convinced that no such “ ‘ex-

traordinarily strong showing’ has been made based on the

generalized ex parte affidavits filed with this Court.”

App., infra, 35a (footnote omitted).

? While not purporting to direct the Labor Department to adopt

any particular fee regulations, the court suggested that the Depart-

ment “could provide for a contingent fee,” or could use a “multiplier

* * * to enhance the ‘normal’ hourly fee to compensate for the risk of

loss.” App., infra, 2Sa.

10 :

3. Recognizing that its decision “involves an important

question of federal law,” the majority invited the Depart-

ment of Labor to intervene as a party. App., infra, 30a. In

response, the Department of Labor did intervene, to sup-

plement the record and to petition for rehearing, but the

petition for rehearing was denied (App., infra, 37a-4la).

In a brief opinion, the court rejected or ignored the

Department’s arguments that the fee system advances im-

portant government interests and does not unduly hinder

black lung claimants in obtaining counsel. In particular,

the court ignored the argument that Congress specifically

intended, in regulating fees, to shield claimants from im-

provident fee agreements and to prevent dissipation of

their benefits through payments to attorneys. The court

also ascribed no significance to the Department’s argu-

ment that, especially in view of the Trust Fund’s $3 billion

debt to the government, the fee system serves an important

governmental interest in avoiding overpayment. The court

viewed this to be an argument that the current system of

fees is justified as a way to keep down the number of suc-

cessful claimants. Jd. at 39a-40a.

As to the factual record, the Department presented

statistics with its rehearing petition regarding the outcome

of recent black lung cases before administrative law

judges. App., infra, 40a. The statistics indicated that in

92% of cases resulting in an award or denial of benefits,

the claimants had attorneys, and prevailed 29% of the

time; in the remaining 8% of cases, the claimants pro-

ceeded pro se, and prevailed 11.6% of the time. /bid.

Without commenting on the overwhelming rate of repre-

sentation at the ALJ level shown by these figures, the

court read the statistics to mean only that claimants with

counsel “have a likelihood of prevailing that is 2.5 times

greater than claimants appearing pro se.” Ibid. Thus, the

court concluded, the Department “has simply reinforced

with more elaborate statistics the conclusion that we

reached in the original opinion — namely, that a claimant’s

chance of prevailing when he is represented by counsel is

substantially higher than when he appears pro se.” Ibid.

REASONS FOR GRANTING THE PETITION

The court below has declared unconstitutional the

federal black lung attorney’s fee system, as applied, in one

of the nation’s principal coal-mining states. That holding

cannot be reconciled with the decisions of this Court ad-

dressing due process challenges to administrative pro-

cedures, and, in particular, is wholly at odds with the

reasoning and result in Walters v. National Association of

Radiation Survivors, supra. In Walters, this Court sus-

tained against a due process challenge Congress’s decision

to limit to $10 the attorney’s fee available in VA proceed-

ings. Contrary to Walters, the court below failed to pay

any deference to the congressional policy in favor of fee

regulation, and relied on a factual showing far too meager

to justify a sweeping conclusion that an Act of Congress is

heing unconstitutionally applied.

The decision below has important, and detrimental,

practical ramifications. The black lung benefits program

handles thousands of claims each year. The decision below

substantially deprives black lung claimants in West

Virginia of the protection against overreaching and

against unjustified diminution of their benefits that Con-

gress mandated in regulating attorney’s fees. Although the

decision does not preclude the Department’s own enforce-

ment of the attorney’s fee limitations, it does remove the

primary method on which the Department relies to enforce

the fee provisions in West Virginia —state bar disciplinary

proceedings. If not reversed by this Court, the decision

may also encourage attorneys in other coal-mining States

to flout the black lung fee requirements. Because the deci-

sion below is wrong, and because it undermines the protec-

tion for black lung claimants envisioned by Congress,

review by this Court is warranted.

1. The court’s holding that the black lung fee system is

unconstitutional cannot be squared with this Court’s deci-

sions regarding the regulation of attorney’s fees. From the

outset, the court below starkly misconceived its proper

role by failing to pay the necessary deference owed to an

Act of Congress. This Court has admonished that “[jJudg-

ing the constitutionality of an Act of Congress is properly

considered the gravest and most delicate duty that [the

judiciary] is called upon to perform, and we begin our

analysis here with no less deference than we customarily

must pay to the duly enacted and carefully considered

decision of a coequal and representative branch of our

Government.” Walters, 473 U.S. at 319 (citations and in-

ternal quotation marks omitted); Rostker v. Goldberg,

453 U.S. 57, 64 (1981); Blodgett v. Holden, 275 U.S. 142,

148 (1927) (Holmes, J.). The court below failed to heed

that guiding principle. Instead, it insisted on drawing

broad and unsound conclusions from a record far too

sparse to serve as the basis for overturning an Act of Con-

gress as administered by a federal agency.

~—tn finding the black lung-attorney’s fee system to be un-

constitutional, the court purported to follow this Court’s

established framework for assessing due process chal-

lenges. In executing that task, however, the lower court

misapplied all three factors to which this Court has

directed inquiry: (1) the private interest that will be af-

fected, (2) the risk of an erroneous deprivation of that in-

terest through the procedures used, and the probable value

of additional or alternative procedural safeguards, and (3)

the government’s interest in adhering to the present

system, including the fiscal and administrative burdens the

additional requirements would entail. Walters, 473 U.S. at

321; Mathews, 424 U.S. at 335.

a. The court significantly undervalued the government

interests served by the black lung attorney’s fee limits.

Congress’s purpose in regulating black lung attorney’s fees

is to protect claimants from improvident agreements that

needlessly deplete their benefits. The regulation of at-

torney’s fees in the black lung program results from Con-

gress’s incorporation of Section 28 of the Longshore and

Harbor Workers’ Compensation Act (LHWCA) (33

U.S.C. 928) into the Black Lung Benefits Act. The

LHWCA has protected claimants against imprudent fee

arrangements since its enactment in 1927. Act of Mar. 4,

1927, ch. 509, § 28, 44 Stat. 1438. The same reasons that

prompted the regulation of attorney’s fees in the LHWCA

context are equally applicable here.

Section 28 of the LHWCA, as originally enacted, pro-

vided that no one may charge a claimant a fee unless ap-

proved by the appropriate court or administrative officer.

Ibid. This provision was specifically designed to protect a

class of unsophisticated workers who had been subjected

to “sharp practices” of people who represented them. See

Hearing on H.R. 9498 Before the House Comm. on the

Judiciary, 69th Cong., Ist Sess. 40 (1926) (statement of

Harry S. Austin, attorney for the International Long-

shoremen’s Association) (1926 House Hearings); Hearings

on S. 3170 Before a Subcomm. of the Senate Comm. on

the Judiciary, 69th Cong., Ist Sess. 68-69 (1926) (state-

ment of O.G. Brown, Council of American Shipbuilders

and the New York and New Jersey Dry Dock Association)

(1926 Senate Hearings).* The provision was modeled on

> Both the Senate and the House considered bills requiring approval

of claims for “legal services” for claimants’ representatives. See H.R.

9498, 69th Cong., Ist Sess. § 38 (1926), reprinted in the 1926 House

an early New York worker’s compensation law, see Banks

v. Chicago Grain Trimmer’s Ass'n, 390 U.S. 459, 466

(1968), that was intended to “insure as large a return to the

injured workman in compensation for injuries incurred in

the course of his employment as possible.” Jn re Fisch, 188

App. Div. 525, 177 N.Y.S. 338, 341 (1919).

The Black Lung Benefits Act has included the LHWCA

fee provision since its enactment in 1969. See Federal Coal

Mine Health and Safety Act of 1969, Pub. L. No. 91-173,

Tit. IV, § 422, 83 Stat. 796.4 As with LHWCA claimants,

Hearings, supra, at 11; S. 3170, 69th Cong., Ist Sess. § 38 (1926),

reprinted in 1926 Senate Hearings, supra, at 11. The attorney for the

International Longshoremen’s Association proposed a criminal sanc-

tion, modeled on New York’s worker’s compensation law, to

strengthen the fee provision. 1926 House Hearings, supra, at 40. The

attorney for the Council of American Shipbuilders and the New York

and New Jersey Dry Dock Association pointed out that limiting ap-

proval requirements to “legal services” allowed non-lawyers to exploit

injured workers and suggested that only lawyers be allowed to repre-

sent claimants. 1926 Senate Hearings, supra, at 68-69. The Senate

later passed a bill incorporating a criminal sanction and requiring ap-

proval of claims for legal services “or for any other services rendered

in respect of a claim,” 1926 House Hearings, supra, at 129; the full

provision of that bill was enacted without change in 1927. In 1972,

when Congress added a fee shifting provision to Section 28, it re-

affirmed the principle that “no fee may be received unless approved”

by the appropriate court or administrative official. H.R. Rep. No.

1441, 92d Cong., 2d Sess. 21 (1972).

4 The fee provisions, and other portions of the Longshore .tatute,

were added to Part C of the black lung statute in conference. See H.R.

Conf. Rep. No. 761, 91st Cong., Ist Sess. 89-91 (1969). During debate

on the conference report, supporters of the legislation uniformly

stated their intent to incorporate into Part C the enumerated Long-

shore provisions. See 115 Cong. Rec. 39,707, 39,709 (Rep. Perkins),

39,712-39,713 (Rep. Dent); 39,718 (Rep. Burton); 39,996 (section-by-

section analysis of the Conference Report, presented by Sen.

Williams); 39,999 (Sen. Javits).

black lung claimants are susceptible to exploitation

because they typically have limited education. See U.S.

Department of Labor, Employment Standards Admin., A

Sample Survey of All Sources of Both Monetary and Non-

Monetary Income of Black Lung Beneficiaries 14 (1983)

(while some widows have more education, three-fourths of

miners did not attend high school). “[RJational paternal-

ism” in restricting fees is a proper legislative purpose

(Walters, 473 U.S. at 323), especially when, as in this in-

stance, the claimant population is susceptible to exploita-

tion that might deprive them of their full share of benefits.

This Court long ago recognized the legitimacy of pro-

tecting claimants “against improvident contracts, in the in-

terest not only of themselves and their families, but of the

public.” Yeiser v. Dysart, 267 U.S. 540, 541 (1925) (up-

holding provision in Nebraska worker’s compensation

statute requiring approval of fees charged a claimant). The

court below gave that congressional policy short shrift be-

cause of its view that “under the current system the claim-

ant seldom has an award to share.” See App., infra, 21a.

Like the district court in Walters (473 U.S. at 323), the

West Virginia court erred by “cavalierly dismissing” Con-

gress’s long-asserted purpose.

The court also erred by ignoring the impairment of

other government interests that would flow from its pre-

ferred fee system. The court suggested that the Depart-

ment could adopt a statewide “multiplier” to compensate

claimant’s attorneys for their risk of loss. App., infra, 25a.

But that approach would drive up costs to operators and,

more particularly, to the Black Lung Disability Trust

Fund, which is already some $3 billion in debt to the

federal treasury. See /d. at 39a.

Moreover, it is unclear what kind of a multiplier would

be permissible in view of this Court’s opinion in Pennsyl-

vania v. Delaware Valley Citizens’ Council for Clean Air,

107 S. Ct. 3078 (1987), where four Members opposed any

risk of loss enhancement in fee-shifting arrangements (id.

at 3087) and a fifth Member found an enhancement per-

missible only when limited to the range necessary to attract

competent counsel in the local market (id. at 3090-3091

(O’Connor, J., concurring)). Judging from the experience

of lower courts, see, e.g., Student Public Interest Research

Group v. AT&T Bell Laboratories, 842 F.2d 1436,

1451-1452 (3d Cir. 1988), the court’s proposed multiplier

would likely lead to expensive and counterproductive

litigation over fees. See also Levins v. Benefits Review

Board, 724 F.2d 4 (ist Cir. 1984) (employers have due

process rights to hearings to contest attorney’s fees).

Likewise, the court’s proposal (App., infra, 25a) to allow

contingent fees would defeat Congress’s purpose of pre-

serving as much as possible of the pool of benefits for the

claimant. Those problems underscore the government s in-

terest in adhering to the present system, which fairly com-

pensates claimants’ attorneys without the complications

caused by the alternatives proposed by the court.’

b. Given the weight of these government interests, as

the dissent here recognized, “{iJt would take an extra-

ordinarily strong showing of probability of error under the

5 As discussed above (at 4), the hourly component of the fee —

can now take into account the delay in payment, as well as the risk o

loss borne by the attorney. See Velasquez, 844 F.2d at 739; ogo

820 F.2d at 1529; Potashnick Construction Co., 812 F.2d at 577.

These provisions for delay and risk of loss satisfy the statutory a

quirement that a prevailing attorney obtain a “reasonable fie” G

U.S.C. 928(a)). Indeed, for meritorious claims, existing procedures

could result in a greater attorney’s fee for the claimant’s lawyer than

would be available under a contingent fee arrangement. cf . Blanchard

v. Bergeron, 109 S. Ct. 939 (1989) (reasonable attorney’s fee under 42

U.S.C. 1983 not limited to contingent fee agreement).

present system —and the probability that the presence of

attorneys would sharply diminish that possibility —to war-

rant a holding that the fee limitation denies claimants due

process of law.” App., infra, 34a-35a (quoting Walters,

473 U.S. at 326). There plainly was no such showing here.

To begin, the court’s pivotal conclusion—that the fee

system had produced a shortage of lawyers—lacks any

adequate foundation in the record. The court relied solely

on a few attorney affidavits, together with excerpts from

congressional testimony expressing a general unhappiness

with the fee system and a belief that there was a conse-

quent shortage of attorneys. App., infra, 16a-20a. That

sort of impressionistic evidence is not sufficient to sustain

a finding of unconstitutionality for an administrative pro-

gram receiving 7,000 or 8,000 new claims a year —as the

Department of Labor says is the case with the Black Lung

Program — particularly when the Department presented

Statistics showing a 92% rate of representation at the ALJ

level. This Court has made clear its rejection of such

“anecdotal evidence” to sustain across-the-board findings

about the operation of vast federal programs. See, é.g.,

Walters, 473 U.S. at 324 n.11. The court here failed even

to acknowledge the Department’s evidence of the high rate

of representation of black lung claimants at the ALJ level,

thereby overlooking its obligation to consider “the risk of

error inherent in the truth-finding process as applied to the

generality of cases.” Walters, 473 U.S. at 321 (emphasis

added).

Moreover, even assuming that substantial numbers of

attorneys are generally unavailable, the court never ade-

quately explained how the present fee system bears re-

sponsibility for the attorney shortage. The 5% initial ap-

proval rate of claims under the 1981 amendments to the

black lung statute may well be a significant factor dis-

couraging attorney representation (App., infra, 14a n.15,

20a. This low rate derives naturally from Congress’s deci-

i 6

i igibility standards in 1981.

ion to tighten black lung eligibi |

nvm Black Lung Benefits Son ap ope

. 97-119, 95 Stat. 1643 (J : siete

ann (statement of pre gpa a ace ees :

ing a 4% approval rate under the

reat attorney interest — menacing rete _

igati ith limi ances :

litigation area with limited c an

i buted to the fee sys

result cannot rationally be attri eae a

Similar! , the court erroneously seize |

vnc tana aed ~ wa ge viele veound _

ilability of c

key reason for the unavai ee.

ji . Delays also exist for claims ad)

(App., infra, 20a). De eon

i i law that are more fa

under earlier versions of the |! om

dely available to ha

claimants—and attorneys are wi Syren

| the Backlog_in

such claims. See Investigation of sora

j Subcomm. on

Cases: Hearings Before the

rt ow of the House Comm. on Education and rp

99th Cong., Ist Sess. 103 (1985) ewe 4 sone Soa

es . . ; ay ;

, counsel for District 28, UM el

pints is not the determinative factor in any attorney

shortage that may exist.’

6 Of course, Congress’s choice to tighten eligibility Sree Po

no due poe question. See Schweiker v. Wilson, 450 U.S. '

1981). :

: , pile and the Department of Labor = eee bow

resulting from the 1978 amendments to the blac re ome ae

ired the reopening of about 200,000 claims. by the U.S.

presi ble Donald J. Pease, House of Representatives, by the rn

pune nee Office, Adjudication = ew ~~ :

— ae pony ag rhe ccm has made eam

ae my ape the backlog at the ALJ level, though de =

sill exist at the Benefits Review Board. See Oversight a, a

peter seat of the Black ne shy ceePsemsatyy B iieenaion

poy pode 9 oo A (1988) (statement of Rep. Wise).

an , .

I Ne

—_

The court also marshalled no persuasive evidence to

show that in the “generality of cases” (Walters, 473 U.S. at

330), attorneys materially improve the results for black

lung claimants. In its initial opinion, the court relied ex-

Clusively on the experiences of the handful of claimants

represented by respondent. The court found it significant

that after retaining respondent as their lawyer, those

claimants had obtained benefits that had been previously

denied. App., infra, 22a. But even if the improved results

in those few cases were attributable to respondent’s ef-

forts, there was no basis for the court’s speculation that

these claimants “can probably be taken as representative

of most claimants.” Jbid.

Moreover, in its opinion on rehearing, the court serious-

ly misconstrued the Department’s statistics as showing that

lawyers necessarily produce a better outcome for claim-

ants. Jd. at 40a (characterizing the Statistics as “con-

Clusively demonstrat[ing] that at the [ALJ] level, claimants

represented by counsel have a likelihood of prevailing that

is 2.5 times greater than claimants appearing pro se”). The

Department’s figures do not support any inference that at-

torneys were the reason for the difference in outcome

noted by the court. Most critically, almost all (92%) of the

claimants were represented by counsel and Only a small

percentage of the claimants proceeded pro se. That fact

significantly undercuts the use of comparative success

rates as a ground for concluding that pro se claimants win

less frequently because they lack lawyers. An equally likely

explanation of the results is that the pro se claimants sim-

ply failed to attract lawyers because their Cases were not

strong enough. Compare Lassiter v. Department of Social

Services, 452 U.S. 18, 29 n.5 (1981) (similar statistics were

“unilluminating”). Even if the fee system discourages

representation in such marginal cases, it remains true that

“a process which is sufficient for the large majority of a

group of claims is by constitutional definition sufficient

for all of them.” Walters, 473 US. at 330. i

c. Finally, by giving too much weight to the priv i

terest affected, the court erred in its nee : — ba “s

i Walters an '

n the Mathews test. In both W

aa ca stressed that the disability benefits involved

por not based on need, nor did they — a

recipient’s sole means of wines a8 et somes pew : a

i ack lu

The court’s efforts to categorize hae

i ts in Goldberg v.

imilar to the subsistence welfare benefi !

poe mye this Court’s previous assessment . on

relative weight of disability gna “ mse ne M a

_ As the Court explain in Ma { U.S.

340), the unusually heavy weight given ve pep —

ique na

in Goldberg came from the uniqu ee

i the very margin

“assistance * * * given to persons on the |

rer ***” Terminating aid may a on

eligible recipient of the on - neg + ep wo oo

its.’ ” Ibid. (quoting Golaverg).

we the an of * * * virtually anyone else whose

pararcictie entitlements are ended. ae

Goldberg; ellipsis in Mathews). Here, as in a a

disability benefits sought are but one form o ” =

aid that claimants may seek. Id. at 342. Thus, the cou a

low erred in placing black lung benefits on the same p

as the welfare payments in Goldberg.

y . —— . t

® Additionally, the court appeared to believ- a ee

applicants for benefits, who have not yet been found lig cd =

~ 2 rty” interest in benefits as current recipients, ~~

me Pi eli ible for benefits under an entitlement program. -

pret held that applicants have any property interest at al

aa i satis hanentailial much less that an applicant's ee is

pe a recipient’s. See Lyng v. Payne, 476 U.S. 926, 942 (1986).

In sum, the lower court erred by ignoring or trivializing

important government interests, overemphasizing claim-

ants’ interests, and failing adequately to assess the effect

of the fee system on the availability of claimants’ at-

torneys. The court’s determination that the black lung fee

system violates the due process rights of claimants rests on

an entirely inadequate factual record, and should be

reversed. °

2. The court’s declaration that the black lung fee

system is unconstitutional allows West Virginia attorneys

to enter into fee arrangements with black lung claimants

without the risk of state bar disciplinary sanctions. At-

torneys may thus charge claimants contingent fees, con-

trary to the Department’s regulations and to the intent of

Congress that a claimant’s contested award be preserved

intact for the claimant. Also contrary to the statute, at-

torneys may charge fees to claimants who will never even

receive benefits. _

West Virginia is an important state for such a gap in

protection to emerge. The Department of Labor informs

us that, in fiscal year 1987, approximately 18% of the

8,292 black lung filings arose in West Virginia, and it esti-

mates that a comparable percentage of the approximately

7,000 benefit filings in fiscal year 1988 were in that State.

The court’s decision therefore affects attorneys who han-

dle almost one-fifth of the claims filed in the black lung

program.

* The alternative theory advanced by the court —that it was uncon-

stitutional for the Department to administer a process that denied

claimants access to benefits that Congress has provided —simply

restates the due process claim in a different guise and therefore has no

“independent significance.” ‘Walters, 473 U.S. at 335 (rejecting claim

that the $10 fee limitation violated the First Amendment because that

claim is “at base, * * * inseparable from the[] due process claim”).

Removing the state bar’s disciplinary proceedings as a

sanction will significantly damage the Department of

Labor’s ability to protect claimants from inappropriate

and unlawful fees. The Department advises us that it relies

on such proceedings as the primary means of enforcing the

black lung fee requirements. Existing regulations are un-

likely to fill the void left by the court’s holding here. As a

practical matter, the Department's multi-level, case-by-

case system of adjudication is simply not equipped to

undertake an investigation into conduct that typically in-

volves multiple claimants and comes to light after claims

have been finally adjudicated.'® Moreover, criminal pros-

ecution is not an effective tool to deal with unlawful fee

arrangements. Indeed, while the LHWCA authorizes fines

or imprisonment for unauthorized fee activities (33 U.S.C.

928(e)), that provision has been held not to be incor-

porated into the black lung statute. United States v.

Carter, 760 F.2d 266 (4th Cir. 1985) (per curiam).'!

10 As discussed above (at 4), black lung claims and fee petitions are

processed first by deputy commissioners in the Office of Workers’

Compensation Programs (OWCP) and may then go to ALJs and the -

Benefits Review Board. Deputy commissioners have general authority

to issue “appropriate orders” (20 C.F.R. 725.351(a)(5)), but such a

provision may not be specific enough to allow discipline. See Camp v.

Herzog, 104 F. Supp. 134, 137-138 (D.D.C. 1952); J. Stein, G.

Mitchell & B. Mezines, Administrative Law § 42.02(1}, at 42-17

(1987). While an ALJ has authority to exclude an attorney from the

proceeding because of unethical or improper conduct (29 C.F.R.

18.34(g)(3)), the provision has not been tested as a general means of

enforcing the fee requirements. The Benefits Review Board may ex-

clude attorneys whose conduct merits a suspension or loss of license

(see 53 Fed. Reg. 16,519 (1988), adding 20 C.F.R. 802.202(e)), but this

provision cannot be used against West Virginia lav yers in light of the

Supreme Court of Appeals’ decision here that violations of the

Department’s regulations are not unethical.

'! It is also generally difficult to prove that entering into a fee agree-

ment satisfies the elements, for example, of mail fraud or obstruction

It is difficult, of course. to j

; » to predict the extent to whi

ne - — will encourage noncompliance Fe a

irements either in West Virgini

where. But based on past experi i eo.

But! perience in the black lun -

~~ = on some lawyers will take cannot

ee me — entering _ unsupervised fee ar-

7 y years, the black lung s

nessed certain lawyers “soakin i lie toe

! Oal miners with f.

for very little work” (see H C on ng

ouse Comm. on Ed i

2 ucation and

a a a eo ssc Benefits Reform Act and

enue Act of 1977, at 1(C

Print 1979) (Statement of R , —

ep. Heckler)), and the De

ment advises us that it continues t onl

i to see attorneys enteri

— contingent fee agreements or other et ig

ey See, e. g., Wells v. Director, Office of

ne i —e Programs, 9 Black Lung Rep

-63 (Ben. Rev. Bd. 1986); In re Shoemak :

; er, 11 Black

pi Rep. 3-145 (ALJ 1988); Taylor v. Director, Office of

ers’ Compensation Programs, 11 Black L

3-184 (ALJ 1988),2 —

As a practical matter, while isi

) ca A the decision below will

directly prohibit the Department from enforcing its a

of justice (see 18 U.S.C. 134]

; =. » 1505; cf. RXs 16,17: A i

pa beg ten ieee conduct did not pace” tg

> eve Ss happened here, the threat of pro i ;

in an attorney's agreement to reimburse clients, te Bie te "Fe

hearing before Commi

ttee on Le j :

pre-trial diversion). gal Ethics concerning respondent’s

12 : .

aus be [ney rtm case substantiates the prevalence of such con-

before the State Bar: “I thint Oy respondent's attorney at the hearing

of edema nae ~ think we all know that it’s something that a lot

these Black Lun ims taking their contingent fee contracts on

fatmnar tianlian ~ es ); Tr. 178 (testimony by Floyd Gibson. a

feeling, discussed prsnrene ieaanaee nye “yey strong

not have any business regulating bateamuten’” os

regulations, it threatens to expose black lung claimants to

precisely the harms that Congress has sought to prevent. It

is not for the courts to revise Congress’s economic and

social policies under the aegis of general constitutional

guarantees, particularly on a factual record as frail as the

one here. The policy choices in the black lung program

reflect a careful balance of competing values, after ex-

amination by Congress and by the agency charged with ad-

ministering the program. Courts should not use the Due

Process Clause as the vehicle for redetermining federal

policy with respect to the reasonable regulation of at-

torney’s fees.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

JOHN R. BOLTON

Assistant Attorney General

DAVID L. SHAPIRO

Deputy Solicitor General

MICHAEL R. DREEBEN

Assistant to the Solicitor General

WILLIAM KANTER

JOHN S. KOPPEL

JERRY G. THORN Altorneys

Acting Solicitor of Labor Department of Justice

ALLEN H. FELDMAN

Associate Solicitor

MARY-HELEN MAUTNER

Counsel for Appellate Litigation

EDWARD D. SIEGER

Attorney

Department of Labor

APRIL 1989

APPENDIX A

IN THE SUPREME COURT OF APPEALS

OF WEST VIRGINIA

No. 18396

COMMITTEE ON LEGAL ETuics OF

THE WEST VirGINIA STATE BAR

Vv.

GEORGE R. TRIPLETT

[Filed Oct. 26, 1988]

Chief Justice McHu :

; gh and Justice Miller dj

reserve the right to file a dissenting Prasad me a

Disciplinary Proceeding Attorney Exonerated

NEELY, Justice:

This is a disciplinar i

lary proceeding brought b

tc on Legal Ethics of the West Virginia Prd —

on ee ) against George R. Triplett, a member of the

- The Committee has recommended a six mo

i = lawyer shall not: (4)

1-102 — Misconduct (A) a

en in conduct involving dishonesty, f ——

or misrepresentation; (5) Engage in conduct

prejudicial to the administration of justice; (6)

Engage in any other conduct that adversely reflects on

his fitness to practice law. 7 |

i ide by regulations promut

espondent failed to abide

Be am the federal Black Lung Benefits nd -

U S.C. 901, ef seq., for the collection of attorneys

lung cases. .

coo ceniuaene at issue in this proceeding require that

any attorney fee be approved by the Department of Labor;

contingent fees are prohibited. Mr. ry not ~ Se

clients to execute dryer = od ne son “op soa

ent of accru nefits. :

erg pe approval for these seengnners = _—_ -

fee whatsoever from the Department. agi

evailed, they paid Mr. Triplett, who put ——

be k accounts in his name as agent, trustee, or “attor y

se escrow” for the individual clients.’ The committee

; :

found the respondent guilty of geome romper

reflecting on his fitness to practice law in vio ation

1-102(A)(4), (5) and (6).

Introduction

initiated when a miner files a claim

k lung cases are! es a

ian Renan of Labor (DOL). The claim is then

i ong the

i that he heard discussion am

aol regulations might be changed to allow

he money into escrow accounts

i fees and, therefore, he putt on

per eg time. Record at 235, 257-8, 269. Respondent has

turned all of the fee money, with interest, to his clients.

' Respondent test

plaintiffs bar that the

ee eee

ct ene Ts la —

reviewed at the administrative level by a claims examiner

or the deputy commissioner, and approved or denied after

a medical examination by a DOL doctor. The claimant

and defendant operator (if one can be identified) are then

allowed to submit additional evidence and have the case

reconsidered, again at the deputy commissioner level.

Either side can then appeal the decision of the deputy com-

missioner to the Office of Administrative Law Judges

(OALJ) and, from that decision, appeal to the Benefits

Review Board (BRB). Appeal from a decision of the BRB

lies in the U.S. Court of Appeals for the circuit in which

the injury (last exposure) arose. 33 U.S.C. § 921(C). Bene-

fits are awarded on a finding of total disability or death

due to pneumoconiosis (“black lung”), and are payable by

either the responsible operator (if one can be identified) or

the Black Lung Disability Trust Fund. Who pays the claim

depends on a number of factors including whether a

responsible operator can be identified, when the claim was

filed, and the date of last exposure.

Section 932 of the Black Lung Benefits Act (30 U.S.C.

§ 901 ef seg.) incorporates several provisions of the Long-

shore and Harbor Workers’ Compensation Act (33 U.S.C.

§ 901 et seq.) including 33 U.S.C. § 928 which provides

that no one who represents a claimant shall be paid a fee

unless it is approved by the deputy commissioner, the board

or the court before whom the work is performed. Anyone

who receives an unapproved fee is subject to a fine of

$1,000 or imprisonment for not more than one year, or

both.? If a defendant employer declines to pay compensa-

tion within thirty days of receiving written notice of the

claim, and the claimant thereafter uses the services of a

lawyer to win his claim, the deputy commissioner, the

board or the court awards a reasonable attorney’s fee to be

2 33 U.S.C. 928(c) and (e).

chanedhpaishonne qusstaaguatate tin tex BUR elt

sae oa ae benefits when a claimant oe =

the lawyer files a fee petition that, when approved, is p

gan screen under the oo oe iy —

fas ghee bo ogits air in part:

No fee charged for representation services rendered

i i laim under this part

laimant with respect to any c

shall be valid unless approved under this subpart. No

contract or prior agreement for a fee shall b

valid. ... ‘ ;

ides i rt:

20 C.F.R. § 725.366 provides in pa | .

A representative seeking a fee for services “al

formed on behalf of a claimant shall make app —

tion therefor to the deputy commissioner, administr

i tribunal, as

judge, or appropriate appellate '

re bs ae be, before whom the services were per

formed. The application shall be supported by a Fo.

plete statement of the extent and character o

necessary work done... ; |

The criteria for determining fees are listed gma

§ 725.366(b).* Subsection (e) of 20 C.F.R. § p

3 33 U.S.C. 928(a).

Bapeseyinvte tn h (a) of this section shall be rea-

an pont, engin work done and shall

i 10 Isic) account the quality of the representation, om

aa fc - ns of the representative, the complexity of the lega

nawiay nee the level of proceedings to which the claim was

“aa ‘ level at which the representative entered the pro-

saa pte any other information which may be relevant to the

pe fee requested. No fee approved shall include payment

~~. =~

Cases.

The Committee, in a Supplemental Memorandum,

argues that any problems associated with black lung fee

limitations are irrelevant because they did not charge Re-

rather with “, , . misrepresentation to the Department of

Labor regarding his intentions to collect a fee.” Complain-

ant’s Supplemental Memorandum. However, this argu-

ment is not supported by the Committee’s own Full Hear-

approval was required and, in several Cases, that he au-

thorized the DOL to release to the respective clients the

Portion of benefits retained to pay attorneys’ fees. In these

cases, Respondent also informed the DOL that he was not

going to submit fee applications for their approval. The

Committee Says these documents

+ + are all strong evidence of the knowledge of Re-

spondent that the way to have a fee paid for his suc-

cessful representation of his Black Lung clients was to

file a petition for fees as provided by Section 725.365

of the Regulations. His ailure to abide by the regu-

for time spent in Preparation of a fee application. No fee shall be

approved for work done on claims filed between December 30,

1969, and June 30, 1973, under Part B of Title IV of the Act, ex-

cept for services rendered on behalf of the claimant in regard to

the review of the claim under section 435 of the Act and Part 727

of this subchapter.

lation make [sic] him guilty of violation of DR 1-102

(A)(4), (5) and (6)...

It is evident, then, that the Committee found Réspond-

ent’s misconduct to be his knowing violation of the DOL

regulations, not his alleged misrepresentation to the DOL

regarding his intentions to collect a fee. Moreover, had the

Committee stated in its Conclusions of Law that Respond-

ent lied to the DOL, such a finding would not have been

supported by the record. The evidence establishes that Re-

spondent communicated to DOL representatives that he

would not submit fee applications to them in most of his

cases. There is no evidence in the record that Respondent

told the DOL he would not collect fees directly from his

clients. In fact, the record suggests that the DOL, at least

in one case, suspected the Respondent was collecting fees

directly in violation of the regulations because they sent

him an admonition against doing so.‘

The gravamen of Respondent’s alleged professional mis-

conduct is not statements he made to the DOL, but his col-

lection of fees in knowing violation of DOL regulations.

The defendant argues in mitigation that the black lung at-

torneys’ fees provisions, as they are applied, make it

almost impossible for claimants to find competent counsel

to represent them. Several lawyers who appeared on be-

half of respondent testified about their own experience

representing black lung claimants.* These lawyers were, at

best, not paid adequately or promptly. Some were not

> See State Bar exhibit 3.

* Record at 196-198, testimony of William M. Miller stating that he

has won three or four cases for claimants but has not been paid in any

of them, including a case in which his client was awarded over thirty

thousand dollars in back benefits in 1980; record at 206, testimony of

James F. Cain stating that he no longer accepts black lung cases due to

the difficulty of getting paid.

The Constitutional Issue

Due Process Analysis under Walters

: “apie

The fee limitation was first enacted in 1862 during the Civil Wa

tion, the Supreme Court pointed out that due process Is .

flexible concept that requires a balancing of interests;

thus, there is no absolute right either to a trial-like pe

or to representation by counsel in every genoa 3 t ns

adjudicates a property right. More specifically, Y -

applied the test set out in Matthews v. Eldridge, 4 S.

319 (1976): | | |

_ . . which requires a court to consider the private in-

terest that will be affected by the official action, the

risk of an erroneous deprivation of such =

through the procedures used, the probable value »

additional or substitute procedural safeguards, an

the government’s interest in adhering to the existing

system ... In applying this test we must keep in

mind, in addition to the deference owed to Congress,

the fact that the very nature of the due process inquiry

indicates that the fundamental fairness of a particular

procedure does not turn on the result obtained in any

individual case; rather, “procedural due process rules

are shaped by the risk of error inherent in the truth-

finding process as applied to the generality of cases,

not the rare exceptions.” [citations omitted]

473 U.S. at 321. The Court went on to conclude that the

government interest in the fee limitation in veterans cases

was to ensure: , 7

_. . that the system for administering benefits should

be managed in a sufficiently informal way that there

should be no need for the employment of an attorney

to obtain benefits to which a claimant was entitled, so

that the claimant would receive the entirety of the

award without having to divide it with a lawyer. [cita-

tions omitted]

Id.

9a mee

In Walters, the Court pointed out that destruction of

the fee limitation in VA cases would result not only in

claimants’ paying over part of their Lenefits to lawyers,

but would also complicate a process that Congress intend-

ed to keep uncomplicated and non-adversarial. The result-

ing transformation of the current VA system to a compli-

cated, adversarial one would then virtually require claim-

ants to hire lawyers to be successful. 473 U.S. at 323-324.

The increased complexity, in turn, would require greater

administrative costs, which would leave less money avail-

able for benefits. Accordingly, the Court reasoned, the

government interest in the fee limitation was entitled to

great weight. To prevail against such a reasonable con-

gressional policy required an “. . . extraordinarily strong

showing of probability of error under the present system —

and the probability that the presence of attorneys would

sharply diminish that possibility . . .” 473 U.S. at 326.

The Court frankly admitted in Walters that it was not

possible to quantify exactly the danger of erroneous depri-

vation under the present system. However, the Court was

quick to point out that only 16 percent of the cases that are

appealed to the Board of Veterans Appeals (BVA) are re-

versed, which suggests a relatively low danger of errone-

ous deprivation if one assumes the BVA decision to be the

“correct” result in every case. 473 U.S. at 327.

In Walters, the court made an important factual finding

that lifting the fee limitation would not significantly re-

duce the danger of erroneous deprivation of--veterans’

benefits. For this finding the Court relied on statistics cor-

relating the rate of ultimate success by claimants before

the BVA by mode of representation. These Statistics

demonstrated that claimants who were represented by

lawyers (pro bono) were only marginally more successful

than pro se claimants or claimants represented by veterans’

10a

organizations.* The Court noted that various veterans’ ser-

vice organizations supply high quality representation for

any claimant who requests it regardless of a claimant’s af-

filiation with a veterans’ organization. 473 U.S. at

311-312. Congress had recently considered proposals to

modify the fee limitation, and a Senate Committee report

in 1982,° stated that body’s concern

“that any changes relating to attorneys’ fees be made

carefully so as not to induce unnecessary retention of

attorneys by VA claimants and not to disrupt un-

necessarily the very effective network of non-attorney

resources that has evolved in the absence of signifi-

cant attorney involvement in VA claims matters.”

473 U.S. at 322.

The Court in Walters specifically rejected the veterans’

argument that the Veterans Administration’s procedures

are so complex, procedurally and factually, that they re-

quire lawyer representation of claimants. Although the

Court conceded that cases of agent orange or radiation ex-

posure might be considered “complex,” these cases consti-

‘ The following statistics were taken from the record and relied

upon by the Court. 473 U.S. at 327.

ULTIMATE SUCCESS RATES BEFORE THE

BOARD OF VETERANS APPEALS BY

MODE OF REPRESENTATION

American Legion 16.2%

American Red Cross 16.8%

Disabled American Veterans 16.6%

16.7%

Veterans of Foreign Wars

Other non-attorney 15.8%

No representation 15.2%

Attorney/Agent 18.3%

® The proposed bill allowed limited judicial review of BVA deci-

sions and payment of attorneys’ fees for representation in that review,

but the bill was never enacted. 473 [U.S.] at 322, note 10.

lia

tuted, at most, two percent of a

st, “re ppeals to the BVA. In con-

ae with the principle that the fundamental litte

ee depends on the risk of error inherent in the

7 - re ng process as applied to the generality of cases

ror than the rare exceptions, the Court was not per-

Pe tem the VA process should be changed to accom-

rar . ” “ ”

~ araoe € exception” of “complex” cases. 473 U.S.

Finally, the Court examined

7 the nature of the

remy : er In Goldberg v. Kelly, 397 U.S 254 i370,

ourt held that a welfare recipient subje ible

termination of benefits was entitled may corey

) . to a lawyer. In Mat-

a ve Eldridge, supra, the Court held that nana nes,

. lisability benefit recipients had no right to a pre-termi-

pgp gore a The Court found that the bene-

pr ings, which are not

the basis of need, are closer i Diane

‘ to the social security be

By in than they are to welfare payments “ ae

‘h the recipients in Goldberg d heir dai

subsistence.” 473 U.S. at 332-333. ~ esemianaemiiaaed

History of Black Lung Legislation

There currently exists in

the State of West Virgini

. . =

ae 0p of elderly, sick coal miners, their seat

eir survivors. Many have waited for

vii . extend

Perk for administrative review of their black _

: oe have had their claims denied, and have sub

n unable to obtain i ;

ee counsel to review and

“ te. py — - demanded of those who extract the life’s

irginia’s economy from the arteries j

mountains. As his lungs become cl ith insidi ce

. Ogged with insidio

and pervasive dust, the miner is given a graphic rene

12a

of the quality of life that lies ahead. The nature of the

disease being progressive, the miner feels himself increas-

ingly weakened and helpless, unable to provide even the

most modest means of support for his family.

The full extent of the debilitating impact of long term

exposure to coal dust was recognized with the passage of

Title IV of the Federal Coal Mine and Safety Act of

1969.'° This legislation was Congress’ acknowledgement

of the failure of state workers’ compensation programs to

address the devastating effects of black lung. The original

legislation covered only underground miners and their

wives or widows, and allowed recovery of benefits only in

cases of total disability or death. The original legislation

divided claims into Part B claims—those filed before 31

December 1972, to be administered by the Secretary of

Health Education and Welfare (HEW), and Part C

claims —thiose filed after 31 December 1972. Part C claims

were to be administered by the Secretary of Labor under

certain provisions of the Longshoreman’s and Harbor

Workers’ Compensation Act of 1927.'' Payment of Part C

claims was to be made by the responsible operator, or if no

responsible operator could be found, from federal

revenues. ,

In 1972, Congress passed the Black Lung Benefits Act'?

which amended the earlier legislation. In addition to ex-

tending coverage to surface miners and changing some of

the eligibility criteria, the 1972 Act postponed Department

of Labor jurisdiction to claims filed after 31 December

1973, established a transitional category for claims filed

between | July 1973 and 31 December 1973, and required

coal companies to carry insurance or to qualify for self-

10 Pub.L.No. 91-173, 83 Stat. 742 (1969).

'! 33 U.S.C. § 901 ef seq.

'2 Pub.L. No. 92-3-3 [sic], 86 Stat. 153 (1972).

a...

l3a

insurance. The Act also allowed the Secretary of HEW to

promulgate regulations to reopen all pending or denied

claims and review them under the new legislation. The

Secretary established a set of liberal “interim” regulations

that caused a surge in Part B approvals. Part B claims

were decided without any individual employer liability.

See Lopatto, “The Federal Black Lung Program: A 1983

Primer” 85 W.Va.L.Rev. 677 at 686 (1983). The DOL en-

countered much difficulty in finding “responsible opera-

tors” to pay Part C claims due to the changing structure of

the coal industry. In spite of considerable expense and ef-

fort by the government, responsible operators were being

identified in only twenty-five to thirty percent of the cases.

Id. at 689-690.

In response to the expense resulting from the surge in

approvals without a corresponding increase of responsible

operators to pay the claims, Congress passed the Black

Lung Benefits Reform Act of 1977'? and the Black Lung

Benefits Revenue Act of 1977.'* These amendments estab-

lished the Black Lung Disability Trust Fund to be financed

by an excise tax on each ton of surface or underground

mined coal. In addition, the fund was made liable for all

valid Part C claims in which the miner’s last covered em-

ployment ended before 1 January 1970. These 1978

amendments also contained liberal eligibility criteria that

resulted in a relatively high approval rate.

Almost immediately, the Trust Fund became insolvent.

The 1978 amendments also directed that all previously

denied and pending cases be reviewed under the new

criteria. This new review created a large backlog of cases

and systemic backlog has continued. Congress amended

the legislation again in 1981, raising the excise tax and

'? Pub. L. No. 95-239, 92 Stat. 95 (1978).

'* Pub. L. No. 95-227, 92 Stat. 11 (1978).

l4a

restricting eligibility criteria in an effort to make the Trust

Fund solvent. The 1981 amendment has resulted in a

sharply reduced approval rate for claims. DOL statistics

show that for the period January 1982, through March

1988, the number of initial claims filed was 58,680, and

the number of final approvals (after appeals to an Ad-

ministrative Law Judge and the BRB) was 3,383—a total

approval rate of 5.8 percent.'®

Black Lung Claims Process and Attorney Fee Provisions

Without considering the detailed eligibility criteria and

regulations promulgated under each of the amendments

discussed in part V, the history of black lung legislation

demonstrates that even the filing of a claim for benefits is

complex. It often requires a lawyer to determine which

benefit structure applies to a particular claim. When re-

sponsible operators are represented by lawyers of their

choice, at a fee set by whatever agreement they make

(there is no regulation of defense attorneys’ fees), and the

trust fund is represented by the Office of the Solicitor in

the DOL, a claimant who appears without a lawyer is in

for a baffling and frustrating experience. Black lung liti-

gation has none of the homey, claimant-oriented ambi-

ance that one finds in the Veterans’ Administration.

1S See Brief of Amicus Curiae, Jane Moran, DOL Statistics at 4,

note 5. Also, a Government Accounting Office report confirr .s that

the Office of Workers’ Compensation which makes the initial deter-

mination of claims at the administrative level in the DOL approves

only about 5% of claims made under the 1981 amendments. Delays in

Processing and Adjudicating Black Lung Claims: Hearing Before the

Employment and Housing Subcommittee of the House Committee on

Government Operations, 9%h Cong., 1st Sess. at 55-56 (1985) (GAO

Report HRD-85-19).

= oe

15a

Furthermore, in black lung cases the legislation and

regulations specifically contemplate representation by

lawyers and, unlike the VA claim process in Walters, for

payment of attorneys’ fees. For Part B claims (filed before

December 31, 1972), claimants are responsible for the at-

torneys’ fees. For claims filed after December 31, 1973,

either the responsible operator (if one can be identified) or

the Trust Fund is liable for the attorneys’ fees. But in

either situation the fee must be approved under 20 C.F.R.

§§ 725.365 and 755.366.

In our consideration of the constitutionality of the fee

provisions, we must examine not only the words of the

Statute and regulations, but also the manner of their ad-

ministration. In this regard we do not find that the statu-

tory requirements assuring “reasonable” fees are unconsti-

tutional on their face as a matter of principle; rather we

find that the total regulatory scheme is unconstitutionally

applied. As the U.S. Supreme Court stated in overturning

a state compulsory work statute in U.S. v. Reynolds, 235

U.S. 133 (1914):

If such state statutes, upon their face, or in the man-

ner of their administration, have the effect to deny

rights secured by the Federal Constitution or to nul-

lify statutes passed in pursuance thereto, they must

fail. [citations omitted, emphasis supplied]

235 U.S. at 149. In Griffin v. Illinois, 351 U.S. 12 (1956)

the U.S. Supreme Court held unconstitutional a state law

which, in effect, required a transcript to perfect a criminal

appeal but did not provide a free transcript to indigents.

The Court pointed out that:

Dissenting opinions here argue that the Illinois Law

should be upheld since by its terms it applies to rich

and poor alike. But a law nondiscriminatory on its

face may be grossly discriminatory in its operation.

351 U.S. at 17, note 11.

l6a

As we explained above, 20 C.F.R. § 725.366(a) provides

that the claimant’s lawyer should file a fee application with

the deputy commissioner, the administrative law judge or

the Benefits Review Board for the services performed

before that individual or tribunal. The fee is then to be

determined from the information provided in the applica-

tion and in accordance with the criteria provided in 20

C.F.R. § 725.366(b). In addition, the Benefits Review

Board has ruled that the contingent nature (i.e., risk of

loss) of the litigation may be included as a criterion under

the provision in part (b) that allows consideration of “any

other information which may be relevant to the amount of

fee requested.” Risden v. Director, BRB No. 78-488, 11

BRBS 819 (1980).

Although 20 C.F.R. § 726.366(b) appears to provide for

attorneys’ fees that will fairly compensate competent

counsel, thus guaranteeing claimants’ due process rights,

an examination of the factual record before us reveals that

this is not the case. Numerous attorney affidavits filed in

this case as well as testimony before the House of Repre-

sentatives Subcommittee on Labor Standards establishes

that the attorney fees policy of the DOL discourages

lawyers from representing black lung claimants so that

many claimants, with cxses of at least arguable merit, are

unable to find counsel to represent them.

Actual Implementation of the DOL’s Attorneys’ Fee System

The DOL will not award any attorneys’ fee until a

“final” decision has been made in a case. See 33 U.S.C.

§ 928(a) and Thompson v. Potashnick, 812 F.2d 574 (9th

Cir. 1987). Although a claimant may prevail before the

Deputy Commissioner and Administrative Law Judge

(assuming an appeal is taken at each stage) and his at-

a .

17a

torney files a fee petition that is approved at each stage,

the fee will not be paid until after a final decision by the

Benefits Review Board (BRB). If the BRB remands the

case to the Administrative Law Judge, the attorney must

wait even longer for his fee. The record reveals that

lawyers wait for years, often five to ten years, before re-

ceiving any payment.'* There is no provision in the law for

payment of interest on attorneys’ fees.'’? One affiant at-

torney states that he is currently owed more than $30,000

in fees that have been awarded but not paid. Brief of

Amicus Curiae Jane Moran, affidavit of Robert F. Cohen,

Jr. at 7. In a small, depressed West Virginia town $30,000

is a substantial amount of money for an individual practi-

tioner. In the long run, as John Maynard Keynes once ob-

served, we are all dead. In the short run, lawyers have of-

fices to run, mortgages to pay and children to educate.

'6 A report by the Government Accounting Office, relying on DOL

Statistics, states that 78% of cases disposed of by the Office of Ad-

ministrative Law Judges between October 1, 1983, and August 21,

1984 took more than two years to adjudicate. When time is added for

the initial administrative determination as well as an appeal to the

BRB, it is clear that it does, indeed, take years to resolve a claim.

Delays in Processing and Adjudicating Black Lung Claims: Hearing

Before the Employment and Housing Subcommittee of the House

Committee on Government Operations, 99th Cong., Ist Sess. at 41

(1985) (GAO Report HRD-85-19).

'? Although the DOL seems cavalier about the fact that lawyers

must wait for years to collect fees without also receiving interest on the

fees, we note that the Internal Revenue Service is Rhadamanthine in

its collection of interest when the U.S. government is a payee rather

than a payor. In addition to any penalty that might be properly as-

sessed, the IRS collects interest on any overdue or unpaid taxes, even

if the taxpayer has been granted an extension of time in which to pay.

See 26 U.S.C. § 6601, 26 CFR § 301.6601-1 ef seg. We also note that a

responsible operator must pay interest if it fails to pay benefits award-

ed either initially by the deputy commissioner, or on appeal. 30

U.S.C. § 934, 20 CFR § 725.608.

18a

Another affiant attorney states that the DOL has an in-

formal policy'* of allowing a maximum hourly rate of

$85.00 for proceedings before the Deputy Commissioner,

and a maximum hourly rate of $125.00 for proceedings

before the Office of Administrative Law Judges or BRB.

Id., affidavit of Frederick Muth at 3. This same affiant

states that a typical case will average between two and

eight years, depending on the length of appellate litiga-

tion, and that because of this factor and the low rate of

compensation (in light of its contingent nature), fewer

qualified attorneys are accepting black lung claims than

are required to process existing meritorious claims. He

also points out that “. . . it has become increasingly com-

mon to find instances of U.S. Department of Labor hear-

ing dockets populated primarily with pro se claimants

.. .” and that his law firm has been inundated with pro-

spective clients who have been unsuccessful in their efforts

to retain competent representation. /d. at 4.

Another affiant attorney, employed for five years by the

United Mine Workers of America, who has handled black

lung cases during all five years, and worked exclusively on

black lung cases for two years, states that few attorneys

are willing to represent black lung claimants due to the risk

of no recovery (and, therefore, no fee). This affiant also

points out that because a lawyer generally accepts the case

before either parties’ medical evidence is complete, the

lawyer is usually unable to assess the merits of a black lung

claim until after he agrees to represent the claimant. Fur-

thermore, it is nearly impossible to handle a few cases on a

pro bono basis because the complexity of black lung liti-

gation requires a level of expertise that is consistent only

'® The DOL does not have a formal policy establishing a maximum

hourly rate. Ashmore v. Director, BRB No. 79-639, 3 BLR 1-374

(1981).

19a

with a large number of cases due to the enormous invest-

ment of time necessary to learn the law and keep current

with changes.'®

In 1985, the House Subcommittee on Labor Standards?°

held several hearings in coal regions to study the problem

of the systemic backlog of black lung cases. Two lawyers

who testified before the Subcommittee in Wise, Virginia,

who have been representing black lung claimants since the

first law was enacted, provided ten specific examples

where fees were approved, but no payment was received

for at least two years, and in some cases, for five years or

more.?' Another lawyer testified that there are 26 cases in

his office in which fees were awarded but not paid for

more than three years.?? Even if we assume that these ex-

amples are “exceptional” in some way, the very existence

of “exceptional” cases in which lawyers are required to

subsidize the operation of the federal government must

have a chilling effect on lawyer willingness to enter the

system.

Finally, one lawyer testified that many of his colleagues

had “. . . stated unequivocally that they would not take

black lung cases because of the delay in receiving the pay

for their work as well as the possibility that they may re-

ceive no fee at all.”?3 Virtually all of the lawyers who testi-

fied before this subcommittee stated that they rarely, if

ever, took black lung cases due to the long delay before a

'9 See Appendix A.

20 Subcommittee of the House Committee on Education and

Labor.

2! Investigation of the Backlog in Black Lung cases: Hearings

before the Subcomm. on Labor Relations of the House Comm. on

Education and Labor, 99th Cong., Ist Sess. 82-83 and 88-89 (1985).

22 Id. at 194.

23 Id. at 188.

20a

decision, the additional delay in having fees paid, and the

uncompensated risk of receiving no payment, particularly

in light of the significantly lower approval rate under the

1981 eligibility rules.

It is hardly surprising then, that most lawyers, at least

most who have any choice, choose to handle cases that do

not require a five year delay for fee payment. The two fac-

tors that currently keep most attorneys from accepting

black lung cases are the long delay in payment, without

any provision for interest, and the lack of premiums to

offset the contingent nature of the work. This latter factor

has become increasingly prominent as the approval rate

has steadily declined following the enactment of the 1981

amendments. DOL statistics demonstrate an approval rate

for claims decided under the 1981 law of 22.7% for claim-

ants before the Administrative Law Judges, and an overall

approval rate of 5.8% .?* This approval rate is significantly

smaller than that for VA claims,?5 and demonstrates not

only the necessity of lawer representation, but the substan-

tial risk that a lawyer will receive no fee at all for his work.

Vil

Application of Walters Criteria to Black Lung Litigation

When the criteria set forth by the U.S. Supreme Court

in Walters to assess the constitutionality of fee limitations

are applied to black lung cases, it becomes apparent that

the Fifth Amendment’s due process clause requires that

the provisions for awarding attorneys’ fees in black lung

cases-must, in fact, allow claimants representation by

competent counsel.

24 See supra, note 15.

25 Of 800,000 VA claims in 1978, more than 400,000 were allowed

at the initial level and approximately 14,400 more were allowed after

appeals. Walters, 473 U.S. at 309.

A EAS NR So om

2la

When the Court in Walters examined the nature of the

government interest in limiting fees in veterans’ cases, it

found that the purpose of the limitation was to avoid

lawyers’ needlessly sharing claimants’ benefits. The Court

found that VA procedures are designed to be non-adver-

sarial, and that if lawyers become involved on a large scale

a more complicated and adversarial process will evolve

without any improvement in terms of rates of error over

the current system. However, in black lung litigation, it is

clear that Congress intended that lawyers be used by

claimants because it specifically provides for lawyers, and

for payment of a “reasonable” attorney’s fee. 33 U.S.C.

§ 928. And although the VA benefits process is relatively

simple and non-adversarial, the black lung process is both

complex and adversarial.?®

The government interest in requiring approval of at-

torneys’ fees in black lung cases is to ensure that neither

the responsible operator nor the Trust Fund will be over-

charged. The prohibition against direct agreement be-

tween a claimant and his lawyer is to protect claimants

from improvident agreements that needlessly deplete their

benefits. See Moore v. Califano, 471 F.Supp. 146 at 149

(1979). Unfortunately, the result of these regulations has

been to make lawyers almost entirely unavailable to claim-

ants. Indeed, although the ordinary claimant is not called

upon to share his award with a lawyer, under the current

system the claimant seldom has an award to share.

This turns our attention, then, to the second factor the

Court analyzed in Walters, namely, the risk of erroneous

deprivation of benefits under the existing VA procedure,

and the probable value of additional or substitute safe-

guards. Relying on the statistics before it in Walters

(supra, note 8), which demonstrated that claimants with

26 See discussion, supra, at Sections IV and V.

22a

lawyers are only marginally more successful in VA cases

than claimants without lawyers, the Court found that

allowing claimants free access to lawyers would not sig-

nificantly increase the number of prevailing claimants.

Factually, this is decidedly not the situation in black lung

cases.

The black lung claims process is procedurally, factually

and legally complex. Furthermore, at least in cases where a

responsible operator is potentially liable for benefits, it is

viciously adversarial.?”? Unfortunately, we do not have be-

fore us the kind of statistical evidence that the Court had

in Walters. However, the Respondent’s clients can prob-

ably be taken as representative of most claimants; they

were all refused benefits before they reiained Respondeni

who then won their cases.?* Ironically, a responsible

operator is free to retain lawyers to resist claims. Because

benefits are expensive, operators often oppose claims

vigorously.?® In causes where the award will be paid by the

27 Although the Office of Workers’ Compensation in the Depart-

ment of Labor (which is responsible for ihe initial decision of black

lung claims) approves only about 5% of claims filed, responsible

operators appeal more than 90% cf these approvals to the Office of

Administrative Law Judges. Of the 95% of the claims denied, appli-

cants appeal about 40% to the OALJ. Delays in Processing and Ad-

judicating Black Lung Claims: Hearing Before the Employment and

Housing Subcommittee of the House Committee on Government

Operations, 9%h Cong., Ist Sess. at 55-56 (1985) (GAO Report

HRD-85-19).

2* Record at 34, 66-70, 82-83, 95, 111, 138-9, and 152.

29 Brief of Amicus Curiae, Jane Moran, affidavit of Robert Cohen

at 8-9, affidavit of Frederick Muth at 5-6. “The actuarial value of a

1982 claim by a living miner with a spouse is nearly $150,000 dollars.”

Lopatto, “The Federal Black Lung Program: A 1983 Primer,” 85

W. Va.L.Rey. 677 (1983) at 086, citing actuarial chart in Black Lung

Benefits Act Annuai Report, U.S. Department of Labor 33 (Jan.

198i).

a a A A

23a

Trust Fund, the Fund is represented by lawyers from the

DOL Office of the Solicitor. Finally, although the veter-

ans’ service organizations provide knowledgeable repre-

sentatives to aid claimants for VA benefits, a fact that

greatly impressed the Court in Walters, no such system of

alternative representation exists to aid black lung claim-

ants.3° Therefore, lawyer representation is virtually essen-

tial to prevent erroneous deprivations of benefits for vic-

tims of black lung.

The third 2nd final factor considered by the Court in

Walters was the nature of the private interest at stake. The

Court found that VA benefits are more akin to the social

security benefits considered in Matthews than they are to

the welfare benefits considered in Goldberg.*'! Because

3® Although the United Mine Workers of America (UMWA) has

provided substantial representation for claimants in the past, District

31 of the UMWA, one of three districts serving West Virginia, has

ceased such representation due to lack of money. Brief of Amicus

Curiae, Jane Moran, attached letter of January 26, 1987 from Eugene

Claypole, John Darcus and James Slusser of UMWA.

3! The District Court in the Walters case held that applicants for

benefits, no less than persons already receiving them, have a “prop-

erty” interest if the applicants meet the statutory criteria for benefits.

The Supreme Court has thusfar held only that a recipient of benefits

has a “property” interest in their continued receipt. Since at ‘east one

of the claimants in Walters alleged a diminution of benefits already

being received, the Court did not decide whether a mere claimant has a

“property” interest in his prospective benefits. 473 U.S. at 320, note 8.

Respondent Triplett represented one claimant from whom the govern-

ment sought repayment of an alleged overpayment of benefits. Record

at 100-102. Because this client clearly had a vested property interest in

these benefits, we need not rule on the nature of a claimant’s property

interest in prospective benefits, a question the Supreme Court has so

far deferred. However, we here siate our belief that a claimant who

meets all the criteria making him eligible for benefits should not be

deprived of due process safeguards simply because he is not already

receiving benefits. Black lung benefits are not a form of government

24a

black lung benefits are awarded only in cases of total

disability or ¢d_ath,?? they may well provide the only means

of subsistence. This makes them similar to the welfare

benefits “... upon which the recipients in Goldberg

depended for their daily subsistence.” Walters, 473 U.S. at

332-333.

Accordingly, we find that the DOL system of awarding

attorneys’ fees does, in fact, severely restrict claimants’

ability to find competent lawyers to represent them, and,

therefore, the system violates due process in accordance

with the decision of the U.S. Supreme Court in Walters.

Alternatively, there is an independent basis for finding a

violation of due process in a fee l'mitation scheme that ef-

fectively denies claimants the right to benefits granted by

Congress. It is fundamentally unfair for the government

to confer a right with one hand, and take it away with the

other hand. As Chief Justice John Marshall said in Mar-

bury v. Madison, 5 U.S. (1 Cranch) 49 (1803):

“In all other cases,” he says, “it is a general and in-

disputable rule, that where there is a legal right. there

is also a legal remedy by suit, or action at law, when-

ever that right is awarded.” [quoting Blackstone]. . .

The goveinment of the United States has been em-

phatically termed a government of laws, and not of

largesse, but rather are compensation for which the miner has paid

~~ @éarly, either with total disability or death. If due process is truly a

flexible concept, as the U.S. Supreme Court has repeatedly held, there

can be no justification for an inflexible rule that claimants have no

property interest in benefits for which they qualify but which they do

not yet receive.

32 The statute has one exception that allows payment of benefits to

eligible survivors of a miner who dies before March 1, 1978, and who

was employed at least 25 years in coal mines prior to June 30, 1971,

unless it is established that when the miner died, he was not partially

or totai!y disabled due to black lung. 30 U.S.C. § 921(c)(S) 1981.

25a

men. It will certainly cease to deserve this high ap-

pellation, if the laws furnish no remedy for the viola-

tion of a vested legal right.

5 U.S. (1 Cranch) at 58-59.

Congress has conferred upon qualified claimants the

right to receive black lung-benefits. Congress has also pre-

scribed the remedy (the claims process) to guarantee this

right, an essential part of which is the right to counsel. It

is, therefore, unconstitutional for the Department of

Labor by its regulations to deny qualified claimants the

procedural safeguards provided by Congress that are

essential to vindicate the right to benefits also granted by

Congress.

Vinl

The Risk of Loss Problem

There are several possible ways to award attorneys’ fees

that take into account the risk of loss factor in black lung

cases. Most directly, the law could provide for a con-

tingent fee based on a set percentage of any lurip sum

awarded, as the Respondent contracted for in this case. In

the alternative, a multiplier could be used to enhance the

“normal” hourly fee to compensate for the risk of loss.

The U.S. Supreme Court has recently examined the use of

“contingen-y multipliers” in the context of fee-shifting

Statutes.

In Pennsylvania v. Delaware Valley Citizens Council,

483 U.S. _., 107 S.Ci. 3078 (1987), the Court reversed a

U.S. District Court’s use of a contingency multiplier to en-

hance an award of attorneys’ fees to successful plaintiffs

under the fee-shifting provisions of the Clean Air Act (42

U.S.C.S. § 7604(d)). Justice White, writing for a plurality,

said “The issue before us is whether, when a plaintiff pre-

vails, its attorney should or may be awarded separate com-

pensation for assuming the risk of not being paid.” 483

26a

U.S. _., 107 S.Ct. at 3081. Although Justice O’Connor

joined the plurality to make a majority, she limited her

concurrence to the circumstances of the particular case be-

cause she concludec that Congress”. . . did not intend to

foreclose consideration of contingency in setting a reason-

able fee under fee-shifting provisions such as the Clean Air

Act...” Id. at 3089.

In addition to the mathematical difficulty of computing

contingency multipliers, the Court pointed out that one of

the strongest objections to them is that “. . . it penalizes

the defendant with the strongest defense, and forces him

to subsidize the plaintiff's attorney for bringing other un-

successful actions against other defendants.” Jd. at 3085,

citing Leubsdorf, “The Contingency Factor in Attorney

Fee Awards,” 90 Yale L.J. 473 at 488-491. The Court also

noted that a contingency multiplier might encourage risky

litigation because the less chance there is of prevailing, the

higher the multiplier. Jd. at 3086. However, Justice

O’Connor, as well as the four dissenting Justices,** argued

that this reasoning correctly suggests that awarding con-

tingency enhancement based on the merits of a particular

case may be undesirable, but the fact that it may be un-

desirable in a particular case does not, as a matter of prin-

ciple, undercut the substantial justification for contingen-

cy enhancement in some types of cases. Jd. at 3097 (Black-

mun, J., dissenting).

The Court held that enhancement of a fee for the risk of

loss in fee-shifting cases should be made only in excep-

tional cases when the risk of no recovery is clear from the

outset of a case and when, without risk-enhancement,

plaintiff “. . . would have faced substantial difficulties in

finding counsel in the local or other relevant market.” Jd.

at 3089. The Court concluded that these elements were not

33 Justices Blackman, Brennan, Marshall and Stevens.

ee ee ee Coe

27a

present in the case before it and held that the District

Court’s use of a multiplier in that case was improper.

The Court’s decision in Delaware Valley does not pre-

clude the use of a contingency multiplier in black lung

cases. Delaware Valley applies to cases involving fee-

shitting statutes that are different from the attorney fee

provisions in black lung cases. Most importantly, fee-

shifting statutes do not affect the ability of plaintiffs to

enter into whatever contracts they desire with their lawyers

and thus increase the lawyer’s ultimate fee beyond the

amount awarded under a fee-shifting statute. In black

lung cases, however, no contract between a claimant and

his lawyer is allowed, so lawyers are forced to accept the

risk of receiving no fee at all in the large majority of cases.

Furthermore, in black lung cases, when either the claim-

ant or the Trust Fund must pay attorneys’ fees, there is no

danger of losing defendants’ compensating plaintiffs’

lawyers for not prevailing against other defendants in

other cases—the factor that so disturbed the Court in

Delaware Valley. Also, it is clear from the evidence before

us that the administration of the black lung attorneys’ fee

provisions has, in fact, caused claimants to face substan-

tial difficulties in finding counsel willing to represent

tiem, a factor specifically required by the Court in

Delaware Valley for enhancement of fees in fee-shifting

cases. Id.

It is clear from the evidence before us that most lawyers

are unwilling to represent black lung claimants because of

the inadequate fees awarded by the DOL. On the one

hand, it takes a matter of years to litigate a case, and often

an additional two years after a successful conclusion for a

lawyer to be paid his fee. When there is no provision for

interest, and a lawyer faces overhead costs that cannot be

postponed, any lawyer will turn his attention to paying

28a

cases. In addition, because there is no systematic enhance-

ment of fees to compensate lawyers for the risk of loss—a

very substantial risk in cases decided under the 1981 law —

most lawyers who have a choice will prefer contingent fee

cases that provide premiums for risk.

We do not suggest what would be the best system for

awarding attorneys’ fees in black lung cases. That decision

is properly left to Congress and the DOL promulgating

regulations pursuant to congressional legislation within

the bounds set by the Constitution. We do, however, find

that the system as currently administered denies claimants

for black lung benefits property without due >rocess of

law by severely restricting their right to obtain representa-

tion by competent counsel in the highly adversarial process

of black lung litigation.

The respondent, George Triplett, was forced into mak-

ing a tragic choice between conflicting duties. He either

had to refuse to represent deserving, disabled miners, run

the risk of bankrupting his practice, or violate the DOL

regulations. The U.S. Supreme Court stated in Ex Parte

Siebold, 100 U.S. 371 (1879) that:

An unconstitutional law is void, and is as no law. An

offence created by it is not a crime. A conviction

under it is not merely erroneous, but is illegal and

void, and cannot be a legal cause of imprisonment.

100 U.S. at 376-377. Accord, Norton v. Shelby County,

118 U.S. 425 (1885); 16 Am.Jur.2d § 256.*4

34 Generally we do not believe it is sound practice to cite Am. Jur.

because the treatise often states the majority and minority positions

on a given issue with equal force. However, we deviate from our

general rule here because with regard to the effect of unconstitutional

laws, it appears that the weight of authority for the proposition

quoted is so overwhelming that there is no minority position.

16 Am.Jur.2d § 256, in relevant part, reads:

A le a *

ee ae

29a

Six black lung clients of Respondent testified at the

ethics hearing before the Committee. One client was

dissatisfied and said that he never agreed to pay Mr.

Triplett anything for his work, although the client testified

that the signature of his name on a 25 percent contingent

fee contract did appear to be his. Record at 31. The

Respondent testified that he explained the fee azreement

fully to this client (and all of his other clients) before the

client signed it. Record at 144. The other five clients

testified that they agreed to pay Mr. Triplett 25 percent of

any past benefits they were awarded, and that they were

satisfied with Mr. Triplett’s work and felt he deserved to

be paid the 25 percent fee. The Respondent put the fee

money he received into interest-bearing escrow accounts in

the vain hope that the regulations would be changed to

allow contingent fee agreements. We do not believe that

this constitutes clear evidence of professional misconduct

by Respondent.

The general rule is that an unconstitutional statute, whether

federal or state, though having the form and name of law, is in

reality no law, but is wholly void, and ineffective for any pur-

pose; since unconstitutionality dates from the time of its enact-

ment, and not merely from the date of the decision so branding it,

an unconstitutional law, in legal contemplation, is as inoperative

as if it had never been passed. Such a statute leaves the question

that it purports to settle just as it would be had the statute not

been enacted. No repeal of such an enactment is necessary.

Since an unconstitutional law is void, the general principles

follow that it imposes no duties, confers no rights, creates no of-

fice, bestows no power or authority on anyone, affords no pro-

tection, and justifies no acts performed under it. A contract

which rests on an unconstitutional statute creates no obligation to

be impaired by subsequent legislation.

No one is bound to obey an unconstitutional law and no courts

are bound to enforce it. Persons convicted and fined under a

Statute subsequently held unconstitutional may recover the fines

paid. [Footnotes omitted]

30a

The Committee on Legal Ethics has the burden to prove

by full, preponderating and clear evidence that Respond-

ent is guilty of professional misconduct under DR

1-102(A)(4), (5) and (6) of the West Virginia Code of Pro-

fessional Responsibility. Accordingly, we find the Re-

spondent, George Triplett, not guilty of any ethical viola-

tion for resisting an administrative system that clearly and

unambiguously violates the Fifth Amendment to the Con-

stitution of the United States.

Because our decision involves an important question of

federal law, we grant leave to the Department of Labor to

intervene as a party litigant, either for the purpose of filing

a petition for rehearing before this Court, or for the pur-

pose of prosecuting an appeal to the Supreme Court of the

United States.

Attorney Exonerated.

3la

APPENDIX A

AFFIDAVIT SUPPLIED BY AMICUS, JANE MORAN

I, THOMAS H. ZERBE, being first duly sworn, states as

follows:

I am an attorney employed with District 17, United

Mine Workers of America in Charleston, West Virginia. I

have been employed by District 17, U.M.W.A. for five (5)

years. During all my five year tenure, I have either handled

federal black lung claims or supervised attorneys who

handled federal black lung claims. For two (2) years, my

work was almost exclusively handling federal black [lung]

claims. Currently, | am Director of Benefits, and as part

of that job I supervise the black lung attorney as well as

handle some claims myself.

I am familiar with virtually every attorney in West

Virginia who represents clients in federal black [lung]

cases. I have spoken personally with many of these at-

torneys about the economics of handling federal black

lung cases. I have also spoken with clients and ad-

ministrative law judges about the problem of claimants,

who are not members of the United Mine Workers of

America, in getting attorneys to represent them in federal

black [lung] claims.

The number of attorneys willing to accept federal black

lung claims has always been limited, but it has declined

even more in recent years. Of those attorneys who do not

accept federal black lung cases, many have a policy of ac-

cepting them only as a service to clients, whom they repre-

sent on other matters.

The reason attorneys are unwilling to represent claim-

ant’s in federal black lung claims is simple economics. The

cases are difficult to win and the fee awards are too low

considering the contingent nature of a fee. The federal

statute prohibits the attorney from charging the client. If

32a

the attorney wins the case, he submits a fee petition based

on the number of hours that he has in the claim to the ad-

ministrative law judge, who awards attorney’s fees against

the defendant. Most of the administrative law judges

award an hourly rate that would be generous were i: not a

contingent fee, but it is still not enough considering the |

contingent nature of the fee and the very low win rate. The

win rate for claimants before the Department of Labor ad-

ministrative law judge[s] deciding claims filed after

January 1, 1982, under the post-amendment law is only

22[.]7 percent.

Since the attorney generally accepts the case before

either parties’ [sic] medical evidence is fully developed, the

attorney is often unable to evaluate the merits of the case

at the time he accepts the client. This compounds the at-

torney’s risk. It is impossible for attorneys to handle only a

few cases pro bono because it is necesssary to handle a

substantial number of cases in order to justify the time the

attorney needs to invest to learn and keep current in this

complex law.

By prohibiting attorneys from taking a percentage of

the back award, the statute was designed to protect coal

miners and their widows from gouging attorneys. Unfor-

tunately, the effect has been to make lawyers unavailable

to the miners and widows whom the law was designed to

protect. The only way the system will work is to drastically

increase the fee awards. [Signature and acknowledgements

omitted] |

33a

IN THE SUPREME COURT OF APPEALS

OF WEST VIRGINIA

No. 18396

COMMITTEE ON LEGAL ETHICS OF

THE WEST VIRGINIA STATE BAR

GEORGE R. TRIPLETT

MILLER, Justice, dissenting:

We have traditionally stated that the scope of appellate

review is confined to those issues decided at the trial level

except where the lower court lacked jurisdiction to act in

the first instance. This has coalesced into the language

reflected in Syllabus Point 2 of Duquesne Light Co. v.

State Tax Dep’t, __ W. Va. __, 327 S.E.2d 683 (1984):

“ *This Court will not pass on a nonjurisdictional question

which has not been decided by the trial court in the first in-

stance.’ Syllabus Point 2, Sands v. Security Trust Co., 143

W.Va. 522, 102 S.E.2d 733 (1958).”

Here the question of the constitutionality of the black

lung fee statute could have been raised below, but it was

not. Because the issue was not raised below, there is no

factual record developed. The ex parte affidavits filed as

attachments to the amicus brief of Jane Moran are, to my

mind, woefully inadequate to predicate the factual conclu-

sion reached by the majority.

Furthermore, the majority’s reliance on Walters v. Na-

tional Ass’n of Radiation Survivors, 473 U.S. 305, 87 L.

Ed. 2d 220, 105 S. Ct. 3180 (1985), is completely mis-

placed. I find, contrary to the majority’s statement, slip

op. at 7, that Walters does not set “clear, bright line stand-

ards.” What Walters did was to uphold the ten dollar fee

Statutorily authorized for a lawyer or agent who

represented a veteran who was seeking veteran’s benefits.

34a

It did so chiefly because it began with this fundamental

legal proposition:

“Judging the constitutionality of an Act of Con-

gress is properly considered ‘ “the gravest and most

delicate duty that this Court is called upon to per-

form.” ’ Rostker v. Goldberg, 453 U.S. 57, 64 [69 L.

Ed. 2d 478, 486, 101 S. Ct. 2646, 2651] (quoting

Blodgett v. Holden, 275 U.S. 142, 148, 276 U.S. 594,

72 L. Ed. 206, 48 S. Ct. 105 (1927) (Holmes, J.)), and

we begin our analysis here with no less deference than

we customarily must pay to the duly enacted and

carefully considered decision of a coequal and

representative branch of our Government.” 473 U.S.

at 319, 87 L. Ed. 2d 232, 105 S. Ct. at 3188.

The Supreme Court’s bottom line in Walters was that

there was no factual showing that the fee system deprived

veterans of due process under Mathews v. Eldridge, 424

U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976):

“We accordingly conclude that under the Mathews

v. Eldridge analysis great weight must be accorded to

the Government interest at stake here. The flexibility

of our approach in due process cases is intended in

part to allow room for other forms of dispute resolu-

tion; with respect to the individual interests at stake

here, legislatures are to be allowed considerable

leeway to formulate such processes without being

forced to conform to a rigid constitutional ccde of

procedural necessities. See Parham v. J.R., 422 U.S..,

at 608, n.16, 61 L. Ed. 2d 101, 99 S. Ct. 2493. It

would take an extraordinarily strong showing of

probability of error under the present system—and

the probability that the presence of attorneys would

Sharply diminish that possibility—to warrant a

holding that the fee Jimitation denies claimants due

35a

process of law. We have no hesitation in deciding that

no such showing was made out on the record before

the District Court.” 473 U.S. at 326, 87 L. Ed. 2d at

236, 105 S. Ct. at 3192.!

In this case, I simply do not believe that such an “ex-

tradorinarily strong showing” has been made based on the

generalized ex parte affidavits filed with this Court.? Here

the main complaint by the several affiants is not so much

the amount of the fee received, but the delay in receiving

fees because of the backlog of black lung cases. I know of

no court which has seized on this fact to void a fee system.

Finally, there appears to me to be a lamentable lack of

due process extended to the Department of Labor, which

now finds its attorney’s fee mechanism declared un-

' Mathews v. Eldridge, 424 U.S. at 355, 47 L. Ed. 2d at 33, 96S. Ct.

at 903, formulated this set of factors to determine the appropriate due

process requirements:

“[F]irst, the private interest that will be affected by the official ac-

tion; second, the risk of an erroneous deprivation of such interest

through the procedures used, and the probable value, if any, or

additional or substitute procedural safeguards; and finally, the

Government’s interest, including the function involved and the

fiscal and administrative burdens that the additional or substitute

procedural requirement would entail.”

2 In Walters, the Supreme Court was confronted with similar

generalized assertions about the unfairness of the administrative pro-

cedures in the Veteran’s Administration and made this telling com-

ment:

“Anecdotal evidence such as this may well be sufficient to sup-

port a finding by a judge or jury in litigation between private par-

ties that a particular fact did or did not exist. But when we deal

with a massive benefits program provided by Congress in which

800,000 claims per year are decided by 58 regional offices, and

36,000 claims are appealed to the BVA, it is simply not the sort of

evidence that will permit a conclusion that the entire system is

operated contrary to its governing regulations.” 473 U.S. at 324

n.1i, 87 L. Ed. 2d at 235 n.11, 105 S. Cv 3191 n.11.

36a

constitutional without ever having the opportunity to be

neard before this Court announced its decision.

i am authorized to state that Justice McHugh joins me

in this dissent.

;

37a .

APPENDIX B

IN THE SUPREME COURT OF APPEALS

OF WEST VIRGINIA

No. 18396

COMMITTEE ON LEGAL ETHICS OF

THE WEST VIRGINIA STATE BAR

GEORGE R. TRIPLETT

[Filed Dec. 20, 1988]

NEELY, Justice:

On a former day, to-wit the 14th day of December 1988,

came the United States Department of Labor by its

Solicitor of Labor, George R. Salem, Esq., and pursuant

to leave heretofore granted, intervened to petition the

court to grant a rehearing in this matter. Intervenor, the

United States Department of Labor, also petitioned to

supplement the record by the inciusion of the following:

Affidavit of James L. De Marce, Associate Director, Divi-

sion of Coal Mine Workers’ Compensation; Affidavit of

Jane G. Denney; Affidavit of Nahum Litt; Department of

Labor Letters CM-1000a and CM-1000b; and the awards

and/or decisions in the cases of Charles Ice, Raymond

Corley, Thelma Beam, Jacob B. Godwin, Peter Guire,

Anna J. Poling, Euna Ball, Harry Hedrick, William F.

Scott, and Inobelle Stevenson. All of the aforesaid

38a

material is hereby ordered filed and made a part of the

vecord in this case for all purposes.

The court has carefully considered the supplemental

material filed by the Department of Labor in support of its

petition for rehearing, and has also carefully considered

the factual representations and legal arguments set forth in

intervenor’s brief in support of its petition for rehearing.

The court concludes that the arguments advanced by the

Department of Labor were maturely considered upon the

initial submission of this case and are adequately ad-

dressed in the court’s original opinion.

intervenor seeks to overcome the court’s conclusion that

lawyers are paid inadequately and too slowly under the

current Department of Labor fee limitation system

through the following representation:

“Nor is it reasonable to conclude from the record that

respondent would have experienced inordinate delays

in having his fee pet.tions approved. In the one in-

stance where he submitted a fee petition after obtain-

ing a Trust Fund award at the deputy commissioner

level, he received payment, at the requested rate and

for more hours than he documented (but less than he

requested), approximately eight months after his ap-

plication. . . In the one instance where he applied to

an ALJ for a fee award in a responsible operator case,

he received an award, despite the operator’s objec-

tions, within 11 months of the date of his application,

and within 7 months of the ALJ’s receipt of it.”

Intervenor’s Brief at p. 7. We find that an eight month and

eleven month delay in fee payments simply support the

findings of fact and conclusions of law set forth in the

court’s Original opinion.

Intervenor , defends the constitutionality of the fee

sy’ tem as apphied by arguing that a different system would

39a

be more expensive both in terms of the cost of lawyers’

fees and in terms of the added burden on the system of af-

fording claimants a fair opportunity to be heard. In this

regard intervenor asserts:

“Another legitimate government interest is to ensure

that responsible operators and the Trust Fund will not

be overcharged. The Court recognized (slip op. 23)

but gave very little weight to this interest. This interest

is substantial because of operators’ constitutional

rights (Levins, 724 F.2d at 9) and because the Trust

‘Fund, which is financed by the coal industry (26

U.S.C. (& Supp. IV) 4121(a), 9501), is currently

almost $3 billion in debt to the United States

Treasury. See Affidavit of James L. De Marce, supra.

Higher attorney’s fees could increase this debt, as

could the expense of more prolonged claims process-

ing from attorney participation in cases (cf. Walters,

473 U.S. at 324-326), the latter by requiring the hiring

of more personnel at the ALJ and Benefits Review

Board levels to prevent a rebuilding of a case

backlog. . . Such increased costs to the Fund; and

thereby to the government in the form of increased

debt, must be given serious consideration, as the

Court admonished in Mathews, 424 U.S. at 348, even

though they are not controlling. At some point, the

costs to government and the public (including the

resulting need to cut limited~ resources elsewhere)

outweigh the benefit to the individual of the addi-

tional safeguard.”

Intervenor’s brief at pp. 16, 17. We infer that the Solicitor

is arguing that the current fee limitation system, which

discourages adequate representation, is justified on the

grounds that if claimants had access to lawyers, claimants

would prevail more often and raise the costs of the black

\ f

40a

lung program. We do not find that Congress’s purpose in

authorizing limitations on fees was to reduce the number

of eligible claimants who would prevail and receive

benefits.

Intervenor makes explicit reference to statistics com-

piled specially for its rehearing petition in this case. The

Department of Labor’s own specially compiled statistics

(the Solicitor’s best shot) conclusively demonstrate that at

the administrative law judge level, claimants represented

by counsel have a likelihood of prevailing that is 2.5 times

greater than claimants appearing pro se. In this regard the

Sol.citor says:

“Statistics compiled by the Department in a sample of

recent cases resulting in awards or denials of benefits

show that claimants are represented at the ALJ level

in 92% of the cases, and prevail 29% of the time

when represented. While the statistics also show that

the small minority of pro se claimants have an 11.6%

success rate, this difference certainly is not so signifi-

cant as to establish that lawyers are indispensable in

the BLBA claims process — particularly in light of the

92% representation rate.”

Intervenor’s brief at p. 23. We find that the Solicitor has

simply reinforced with more elaborate statistics the con-

clusion that we reached in the original opinion— namely,

that a claimant’s chance of prevailing when he is

represented by counsel is substantially higher than when

he appears pro Se.

When claimants represented by counsel prevail 2.5 times

as frequently [as] pro se claimants, we cannot agree with

the Solicitor that the difference is not constitutionally sig-

nificant for due process purposes. The Solicitor argues

that:

“Assuming, without conceding, that applicants have a

property interest under the due process clause, their

ia Ae ee

’

4la

interest is only the intangible interest in receiving fair

consideration of their applications. They risk losing

only a chance at benefits rather than the benefits

themselves.” .

Intervenor’s brief at p. 19. However, we stand by our

original conclusions: We believe that “receiving fair con-

sideration” is exactly the type of abstract entitlement that

due process principles are designed to protect and en-

chance.

Finally, we have carefully considered the following

argument of the Solicitor:

“Moreover, as in Walters, 473 U.S. at 326, there is

also a risk that increased attorney representation may

exacerbate the adversarial nature of the black lung

adjudicatory system, resulting in an [sic] increased

administrative costs to the government and delay to

deserving claimants.”

Intervenor’s brief at p. 23. Because responsible operators

may be as adversarial as they wish in the defense of claims,

and may spend as much money as they choose on lawyers’

fees, we have a hard time understanding how claimant

representation by lawyers is liable to “exacerbate the

adversarial nature of the black lung adjudicatory

system. ...” Although we know the irony is uninten-

tional, we cannot help but infer that the Solicitor is argu-

ing that if claimants have full and fair access to lawyers,

they might do reprehensibly adversarial things such as in-

trodu ~* competent evidence, study the claims regulations,

vigorously prosecute cases, and perhaps even appeal to the

courts.

Accordingly, it is Adjudged, Ordered and Decreed that

Intervenor’s petition for rehearing be, and the same hereby

is denied. And it is further Ordered that this Order be

printed as an addendum to the original opinion.

42a

APPENDIX C

BEFORE THE COMMITTEE ON LEGAL ETHICS OF

1.D. #86-056

IN RE: GEORGE R. TRIPLETT, A MEMBER OF

THE WEST VIRGINIA STATE BAR

FULL HEARING PANEL FINDINGS OF FACT ,

CONCLUSIONS OF LAW AND RECOMMENDATION

CONCERNING DISCIPLINE

This matter came on for deliberation by the Full Hear-

ing Panel of the Committee on Legal Ethics of The West

Virginia State Bar at its meeting held on March 26, 1988,

in Charleston, West Virginia. After review of the Subcom-

mittee Report submitted by the Hearing Subcommittee

which had been assigned to the hearing of the matter, the

Hearing Panel entered upon deliberations of the matter

and, after consideration of the record in the Subcommittee

Report, voted unanimously, a quorum being present, to

make the following Findings of Fact, Conclusions of Law,

and Recommendation Concerning Discipiine:

FINDINGS OF FACT

The Hearing Fanel has carefully reviewed the outline of

evidence presented by the Hearing Subcommittee as found

on pages 2 through 5 of the Hearing Subcommittee Report

signed by the members of the Hearing Subcommittee.

43a

After review of the evidence and discussion of the matter,

the Full Hearing Panel further determined that the three

Findings of Fact (with all subparagraphs of paragraph

three) with regard to the allegations against Av »rney

George R. Triplett in 1.D. 86-056 as set-forth on paves 2

through 5 of the Hearing Subcommittee Report are sup-

ported by full and clear preponderance of the evidence and

are adopted as Findings of Fact by the Full Hearing Panel

of the Committee on Legal Ethics.

CONCLUSIONS OF LAW

After due consideration of the foregoing Findings of

Fact, the Full Hearing Panel of the Committee on Legal

Ethics determined that the Conclusions of Law listed on

pages 6 and 7 of the Hearing Subcommittee Report were

appropriate in this matter and voted to adopt the Conclu-

sions of Law recited in the Hearing Subcommittee Report

as those of the Full Hearing Panel of the Committee on

Legal Ethics.

RECOMMENDATION OF DISCIPLINE

After due deliberation of the Findings of Fact, the Con-

clusions of Law and the Recommendation of Discipline,

as contained on page 7 of the Hearing Subcommittee

Report, the Full Hearing Panel determined that it will pre-

sent a formal recommendation to the Supreme Court of

Appeals of the State of West Virginia that Respondent

George R. Triplett be suspended from the practice of law

for a period of six months by the Supreme Court of Ap-

44a

peals and that he be required to pay the costs incident to

the investigation and prosecution of this matter.

HEARING PANEL, COMMITTEE ON LEGAL ETHICS

OF THE WEST VIRGINIA STATE BAR

ARTHUR M. RECHT

Arthur M. Recht, Chairman

DATE: April 9 1988

45a

BEFORE THE COMMITTEE ON LEGAL ETHICS OF

THE WEST VIRGINIA STATE BAR

1.D. #86-056

IN RE: GEORGE R. TRIPLETT, A MEMBER OF

THE WEST VIRGINIA STATE BAR

SUBCOMMITTEE REPORT

The matter is before a Hearing Subcommittee upon a _

statement of charges filed by the Committee on Legal

Ethics of the West Virginia State Bar against George R.

Triplett, (herein “Respondent”).

The hearing upon the Statement of Charges was con-

ducted on August 3, 1987, before a Subcommittee com-

posed of John C. Skinner, Jr., Chairman, David Harris

and Warren A. Thornhill, III.

The written notice containing a plain statement of the

charges against the Respondent was served and executed in

accordance with Article 6, Sections 4 and 39 of the West

Virginia State Bar By-Laws.

The following constitutes the Subcoaunies Report

containing a State[ment] of the Findings of Facts, Conclu-

sions of Law and Recommendation as to the warranted

disciplinary procedure in accordance with Article 6, Sec-

tion 17 of the West Virginia State Bar By-Laws.

FINDINGS OF FACT

(1) Respondent is a licensed member of the West

Virginia State Bar.

(2) The venue of these proceedings was held in

Randolph County where Respondent has his principal of-

fice in accordance with Article 6, Section 14 of the West

Virginia State Bar By-Laws and there was no challenge to

the composition of the Subcommittee.

46a

(3) That both direct and circumstantial evidence in this

case establishes by full, preponderating, clear and con-

vincing evidence that:

(a) Beginning in approximately 1978, Respondent

represented various clients with respect to their claims for

compensation under the Black Lung Benefits Act, 30

U.S.C. Sec. 901, et seq.

(b) On February 18, 1980, Respondent wrote to Harry

L. Gayer, Deputy Commissioner of the U.S. Department

of Labor, requesting that payment of an award to his

client, Andrew M. DeMotto, be made directly to the client

and stated that Respondent would not file a Form CM-972

for attorneys’ fees from the Department of Labor. Mr.

Gayer responded, in a letter dated April 8, 1980, that the

Department of Labor would reimburse Mr. DeMotto in

the amount previously withheld for attorneys’ fees with

the understanding by all parties that any fee paid in the

case must first be approved by the Department in ac-

cordance with Section 725.365 of the regulations. On

April 15, 1980, Respondent submitted a Form CM-972

(Petition for attorney fees) for payment of 42 hours ex-

pended at a rate of $60.00 per hour for a total of

$2,250.00. However, the itemized list of time expended ac-

tually totaled twenty-two hours. On January 21, 1981, the

acting Deputy Coinmissioner approved a fee award of

$1,620.00, which represented 27 hours of legal services at

the rate of $60.00 per hour. The amended award of

benefits disallowed 15 additional hours because those

hours were not reflected on the fee application form.

Respondent received from Mr. DeMotto not less than

$2,535.00 in legal fees for representation in the Black

Lung Benefits case.

for approval of a representative’s fee with the United

47a

States Department of Labor on behalf of his client,

Charles G. Hillyard, which stated “No Applications for

fee.” Respondent certified that the information provided

on the application was true and correct to the best of his

knowledge and belief. On August 16, 1979, Respondent

wrote to Ms. Luckie Kee, a claims examiner for the United

States Department of Labor, that he did not plan to

submit a fee application for his representation of Mrs.

Thelma Beam. On September 3, 1980, Respondent wrote

to Dennis Allard, a claims examiner for the U.S. Depart-

ment of Labor, that he would not submit a claim for legal

fees on behalf of Letha Roberts. On September 3, 1980,

Respondent wrote to Mr. Edith Taylor, a claims examiner

for the U.S. Department of Labor, that he would not

submit a claim for legal services on behalf of Cosimo

Vallelonga. On December 10, 1980, Respondent wrote to

Ms. Taylor again, requesting that the $700.00 which the

Department of Labor was withholding from Mr.

Vallelonga’s benefit award for attorney’s fees be promptly

paid to Mr. Vallelonga because Respondent would not be

submitting a claim for legal services.

(d) Without making any application for fees as required

by 20 C.F.R. Section 725.365 and 725.366 and 33 U.S.C.

Section 928(e), Respondent requested and received fees for

representation in Black Lung Benefit cases in the approx-

imate amounts listed below from the following clients:

1. Charles Hillyard $ 2,556.00

2. Thelma Beam $ 3,571.18

3. Letha Roberts $ 2,499.50

4. Cosimo Vallelonga $ 6,300.00

5. Mary Bertelli $ 995.41

6. Julie D. Rossi $ 1,433.00

7. Anna J. Poling $ 5,400.00

8. Peter G. Guire $ 6,564.30

48a

9. Jacob B. Godwin $13,533.50

10. Charles Ice $ 5,958.00

11. Raymond Coreiy $ 3,500.00

12. William Scott $ 2,000.00

13. Euna Ball $ 2,100.00

14. Inobell Stevenson $ 2,451.00

15. Harry Hedrick $ 2,367.50

(e) On September 19, 1986, Respondent signed an

Agreement for Pre-Trial Diversion which deferred prose-

cution by the United States Attorney for the Northern

District of West Virginia for alleged offenses in violation

of 18 U.S.C. Section 1341 and 1505 upon certain condi-

tions, including complete restitution with interest for all

legal fees collected in the amounts listed in paragraphs (b)

and (d) set forth above and an agreement by Respondent

not to represent persons in the prosecution in [sic] the

Black Lung Benefit claims. Respondent has made such

restitution. are

(f) The Respondent has been the Circuit Judge of

Randolph County, West Virginia, and had approved the

payment of fees to attorneys for services provided for in-

digents charged with crimes which forms required itemized

statements for the time spent both in and out of court. The

Respondent as Circuit Judge had approved infants’ set-

tlements of personal injury claims which allow attorney

“a early as February of 1978 Respondent had drafted a

fee petition in Mary Bertelli’s case. j

(g) The amounts taken in fees described in (d) above

equaled approximately 25% of the lump sum award. Most

of the recipients had executed a contingent fee contract

with Respondent providing for Respondent to receive 25 %

of the recovery although none of the contracts admitted

into evidence was executed by the Respondent.

—

49a

(h) The various clients enumerated in (d) paid the

Respondent the sums set forth and Respondent put the

sums in bank accounts in his name as agent or trustee or

attorney on escrow for the individual claimants. In 1983,

the Respondent spent some of the escrowed funds for his

own use.

(i) The Respondent made full restitution to all of his

Black Lung clients for all fees charged plus interest at the

going rate. Respondent cooperated fully with the Federal

authorities and cooperated fully with the State Bar.

Respondent enjoys a good reputation and has not been

previously charged with an ethics violation.

(j) The Respondent appears to enjoys a good reputation

among his clients and in the community as being a hard

worker and having good character.

CONCLUSIONS OF LAW

The Respondent had filed fee petitions very early in his

representation of Black Lung claimants. The fact that he

thought it necessary to escrow the 25% contingent fees he

charged Black Lung claimants manifests a clear awareness

on his part that the failure to secure fee approval was

wrong. The vague references to the possibility that the law

might be changed to legitimatize what he had done does

not stand up in the cold light of day. The designation by

Jacob B. Godwin of Respondent (S2), the letter from

Respondent to Mr. Gayer (S3) that he would not file a

petition for attorney fees for DeMotto, the response to

Respondent from Mr. Gayer (S3) “. . . that any fee to be

paid in this case must first be approved by the Department

of Labor in accordance with Section 725.365 of the regula-

tions.”, the January 21, 1981, letter from the Labor

Department to Mr. DeMotte [sic] with a copy to Respond-

ent allowing a fee of $1,620.00 and prov{idJe that “Pay-

50a

ment of any amount greater or lesser than that approved

shall be invalid.”, the August 16, 1979, letter from

Respondent to Luckie Kee (S4) that he did not plan to sub-

mit a fee application in Thelma Beam’s claim, the award

for Cosimo Valleglonga (S5), the December 10, 1980, let-

ter from Respondent to Edith Taylor that no fee petition

would be made for Vallelonga, the application for fees for

Charles H. Hillyard (S6) as well as the Award of Benefits,

Award of Benefits for Paul Roberts (S8), the Award of

Benefits for Julie Rossi (S9), the Award of Benefits for

Mary Bertelli (S10) are all strong evidence of the

knowledge of Respondent that the way to have a fee paid

for his successful representation of his Black Lung clients

was to file a petition for fees as provided by Section

725.365 of the Regulations. His failure to abide by the

regulation make[s} him guilty of violation of DR

1-102(A)(4), (5) and (6) of the Code of Professional

Responsibility which provide that a lawyer should not:

(4) Engage in conduct involving dishonesty, fraud,

deceit, or misrepresentation.

(5) Engage in conduct that is prejudicial to the ad-

ministration of justice.

(6) Engage in any other conduct that adversely

reflects on his fitness to practice law.

The Subcommittee concludes that Respondent is guilty

of violations charged but that the cooperation of the

Respondent, his good character and reputation together

with his previously unblemished record are mitigating

factors.

RECOMMENDATION

The Subcommittee recommends that Respondent

should be suspended from the practice of law for a period

Sla

of six (6) months and that he should be required to pay the

costs of this matter.

Dated this 24{th] day of March, 1988.

JOHN C. SKINNER, JR.

John C. Skinner, Jr.

DAVID HARRIS

David Harris

WARREN A. THORNHILL, III

Warren A. Thornhill, III

52a

APPENDIX D

IN THE SUPREME COURT OF APPEALS

OF WEST VIRGINIA

No. 18396

COMMITTEE ON LEGAL ETHICS OF

THE WEST VIRGINIA STATE BAR, COMPLAINANT

GEORGE R. TRIPLETT A MEMBER OF THE WEST

VIRGINIA STATE BAR, RESPONDENT

At a Regular Term of the Supreme Court of Appeals

continued and held at Charleston, Kanawha County, on

the 21st day of December, 1988, the following order was

made and entered:

The Court having maturely considered the petition for

rehearing and reargument filed in the above-captioned

case is of opinion to, and doth hereby deny the prayer of

the petitioner and doth order that the final order entered

herein be made absolute and certified as heretofore

directed. %

A True Copy

Attest: ANCEL G. RAMEY

Clerk, Supreme Court of Appeals

53a

APPENDIX E

Black Lung Benefits Act, 30 U.S.C. 932

§ 932. Failure to meet workmen’s compensation requirements

(a) Benefits; applicability of Longshore and Harbor Workers’ Com-

pensation Act; promulgation of regulations

Subject to section 28(h)(1) of the Longshore and Harbor

Workers’ Compensation Act Amendments of 1984, dur‘ng

any period after December 31, 1973, in which a State

workmen’s compensation law is not included on the list

published by the Secretary under section 931(b) of this

title, the provisions of Public Law 803, 69th Congress (44

Stat. 1424, approved March 4, 1927) as amended [33

U.S.C. 901 et seq.], as it may be amended from time to

time (other than the provisions contained in sections i, 2,

3, 4, 8, 9, 10, 12, 13, 29, 30, 31, 32, 33, 37, 38, 41, 43, 44,

45, 46, 47, 48, 49, 50, and 51 thereof) [33 U.S.C. 901, 902,

903, 904, 908, 909, 910, 912, 913, 929, 930, 931, 932, 933,

937, 938, 941, 943, 944, 945, 946, 947, 948, 948a, 949,

950], shall (except as otherwise provided in this subsection

or by regulations of the Secretary and except that refer-

ences in such Act to the employer shall be considered to

refer to the trustees of the fund, as the Secretary considers

appropriate and as is consistent with the provisions of sec-

tion 9501(d) of title 26), be applicable to each operator of

a coal mine in such State with respect to death or total

disability due to pneumoconiosis arising out of employ-

ment in such mine, or with respect to entitlements

established in paragraph (5) of section 921(c) of this title.

In administering this part, the Secretary is authorized to

prescribe in the Federal Register such additional provi-

sions, not inconsistent with those specifically excluded by

this subsection, as he deems necessary to provide for the

payment of benefits by such operator to persons entitled

54a

thereto as provided in this part and thereafter those provi-

sions shall be applicable to such operator.

Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 928

§ 928. Fees for services

(a) Attorney’s fee; successful prosecution of claim

If the employer or carrier declines to pay any compensa-

tion on or before the thirtieth day after receiving written

notice of a claim for compensation having been filed from

the deputy commissioner, on the ground that there is no

liability for compensation within the provisions of this

chapter and the person seeking benefits shall thereafter

have utilized the services of an attorney at law in the suc-

cessful prosecution of his claim, there shall be awarded, in

addition to the award of compensation, in a compensation

order, a reasonable attorney’s fee against the employer or

carrier in an amount approved by the deputy commis-

sioner, Board, or court, as the case may be, which shall F-

paid directly by the employer or carrier to the attorney f

the claimant in a lump sum after the compensation ord

becomes final.

(b) Attorney’s fee; successful prosecution for additional compensa-

tion; independent medical evaluation of disability controversy;

restriction of other assessments

If the employer or carrier pays or tenders payment of

compensation without an award pursuant to section 914(a)

and (b) of this title, and thereafter a controversy develops

over the amount of additional compensation, if any, to

which the employee may be entitled, the deputy commis-

sioner or Board shall set the matter for an informal con-

ference and following such conference the deputy commis-

sioner or Board shall recommend in writing a disposition

of the controversy. If the employer or carrier refuse to

5Sa

accept such written recommendation, within fourteen days

after its receipt by them, they shall pay or tender to the

employee in writing the additional compensation, if any,

to which they believe the employee is entitled. If the

employee refuses to accept such payment or tender of

compensation, and thereafter utilizes the services of an at-

torney at law, and if the compensation thereafter awarded

is greater than the amount paid or tendered by the

employer or carrier, a reasonable attorney’s fee based sole-

ly upon the difference between the amount awarded and

the amount tendered or paid shall be awarded in addition

to the amount of compensation. The foregoing sentence

shall not apply if the controversy relates to degree or

length of disability, and if the employer or carrier offers to

submit the case for evaluation by physicians employed or

selected by the Secretary, as authorized in section 907(e) of

this title and offers to tender an amount of compensation

based upon the degree or length of disability found by the

independent medical report at such time as an evaluation

of disability can be made. If the claimant is successful in

review proceedings before the Board or court in any such

case an award may be made in favor of the claimant and

against the employer or carrier for a reasonable attorney’s

fee for claimant’s counsel in accord with the above provi-

sions. In all other cases any claim for legal services shall

not be assessed against the employer or carrier.

In all cases fees for attorneys representing the claimant

shall be approved in the manner herein provided. If any

proceedings are had before the Board or any court for

review of any action, award, order, or decision, the Board

or court may approve an attorney’s fee for the work done

before it by the attorney for the claimant. An approved at-

56a

torney’s fee, in cases in which the obligation to pay the fee

is upon the claimant, may be made a lien upon the com-

pensation due under an award; and the deputy commis-

sioner, Board, or court shall fix in the award approving

the fee, such lien and manner of payment.

(d) Costs; witnesses’ fees and mileage; prohibition against diminution

of compensation to claimant

In cases where an attorney’s fee is awarded against an

employer or carrier there may be further assessed against

such employer or carrier as costs, fees and mileage for

necessary witnesses attending the hearing at the instance of

claimant. Both the necessity for the witness and the

reasonableness of the fees of expert witnesses must be ap-

proved by the hearing officer, the Board, or the court, as

the case may be. The amounts awarded against an

employer or carrier as attorney’s fees, costs, fees and

mileage for witnesses shall not in any respect affect or

diminish the compensation payable under this chapter.

(e) Unapproved fees; solicitation; penalty

Any person who receives any fees, other consideration,

or any gratuity on account of services rendered as a

representative of a claimant, unless such consideration or

gratuity is approved by the deputy commissioner, Board,

or court, or who makes it a business to solicit employment

for a lawyer, or for himself in respect of any claim or

award for compensation, shall upon conviction thereof,

for each offense be punished by a fine of not more than

$1,000 or by imprisonment for not more than one year, or

by both such fine and imprisonment.

57a

Department of Labor regulations: 20 C.F.R. 725.365-725.367

§ 725.365 Approval of representative's fees; lien against benefits.

No fee charged for representation services rendered to a

claimant with respect to any claim under this part shall be

valid unless approved under this subpart. No contract or

prior agreement for a fee shall be valid. In cases where the

obligation to pay the attorney’s fee is upon the claimant,

the amount of the fee awarded may be made a lien upon

the benefits due under an award and the adjudication of-

ficer shall fix, in the award approving the fee, such lien

and the manner of payment of the fee. Any representative

who is not an attorney may be awarded a fee for services

under this subpart, except that no lien may be imposed

with respect to such representative’s fee.

§ 725.366 Fees for representatives.

(a) A representative seeking a fee for services per-

formed on behalf of a claimant shall make application

therefor to the deputy commissioner, administrative law

judge, or appropriate appellate tribunal, as the case may

be, before whom the services were performed. The ap-

plication shall be filed and served upon the claimant and

all other parties within the time limits allowed by the

deputy tommissioner, administrative law judge, or ap-

propriate appellate tribunal. The application shall be sup-

ported by a complete statement of the extent and character

of the necessary work done, and shall indicate the profes-

sional status (e.g., attorney, paralegal, law clerk, lay

representative or clerical) of the persou performing such

work, and the customary billing rate for each such person.

The application shall also include a listing of reasonable

unreimbursed expenses, including those for travel, in-

curred by the representative or an employee of a represen-

58a

tative in establishing the claimant’s case. Any fee re-

quested under this paragraph shall also contain a descrip-

tion of any fee requested, charged, or received for services

rendered to the claimant before any State or Federal court

or agency in connection with a related matter.

(b) Any fee approved under paragraph (a) of this sec-

tion shall be reasonably commensurate with the necessary

work done and shall take into account the quality of the

representation, the qualifications of the representative, the

complexity of the legal issues involved, the level of pro-

ceedings to which the claim was raised, the level at which

the representative entered the proceedings, and any other

information which may be relevant to the amount of fee

requested. No fee approved shall include payment for time

spent in preparation of a fee application. No fee shall be

approved for work done on claims filed between

December 30, 1969, and June 30, 1973, under Part B of

Title IV of the Act, except for services rendered on behalf

of the claimant in regard to the review of the claim under

section 435 of the Act and Part 727 of this subchapter.

ficer shall consider, and shall add to the fee, the amount of

reasonable and unreimbursed expenses incurred in

establishing the claimant’s case. Reimbursement for travel

expenses incurred by an attorney shall be determined in ac-

cordance with the provisions of § 725.459(a). No reim-

bursement shall be permitted for expenses incurred in ob-

taining medical or other evidence which has previously

been submitted to the Office in connection with the claim.

(d) Upon receipt of a request for approval of a fee, such

request shall be reviewed and evaluated by the appropriate

adjudication officer and a fee award issued. Any party

may request reconsideration of a fee awarded by the ad-

judication officer. A revised or modified fee award may

then be issued, if appropriate.

59a

(e) Each request for reconsideration or review of a fee

award shall be in writing and shall contain supporting

statements or information pertinent to any increase or

decrease requested. If a fee awarded by a deputy commis-

sioner is disputed, such award shall be appealable directly

to the Benefits Review Board. In such a fee dispute case,

the record before the Board shall consist of the order of

the deputy commissioner awarding or denying the fee, the

application for a fee, any written statement in opposition

to the fee and the documentary evidence contained in the

file which verifies or refutes any item claimed in the fee ap-

plication.

§ 725.367 Payment of a claimant’s attorney’s fee by responsible

operator.

(a) If an operator declines to pay any benefits on or

before the 30th day after receiving written notice of its

liability for a claim on the ground that there is no liability

for benefits within the provisions of the Act, and the per-

son seeking benefits shall thereafter have utilized the serv-

ices of an attorney in the successful prosecution of the

claim, there shall be awarded, in addition to the award of

benefits, in an order, a reasonable attorney’s fee against

the operator or carrier in an amount approved by the

deputy commissioner, administrative law judge, Board, or

court as the case may be, which shall be paid promptly and

directly by the operator or carrier to the claimant’s at-

torney in a lump sum after the order becomes final.

(b) Section 205(a) of the Black Lung Benefits Amend-

ments of 1981, Pub. L. 97-119, amended section 422 of the

Act and relieved operators and carriers from liability for

the payment of benefits on certain claims. Payment of

benefits on those claims was made the responsibility of the

60a

Trust Fund. The claims subject to this transfer of liability

are described in § 725.496 of this part. On claims subject

to the transfer of liability described above the Trust Fund

will pay all fees and costs which have been or will be

awarded to claimant’s attorneys which were or would have

become the liability of an operator or carrier but for the

enactment of the 1981 Amendments and which have not

already been paid by such operator or carrier. Section

9501(d)(7) of the Internal Revenue Code, which was also

enacted as a part of the 1981 Amendments to the Act, ex-

pressly prohibits the Trust Fund from reimbursing an

operator or carrier for any attorney fees or costs which it

has paid on cases subject to the transfer of liability provi-

sions.

-: US. GOVERNMENT PRINTING OFFICE 1988— 24 1-699/00199

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.