National Ass'n of Radiation Survivors v. Derwinski

• Decision Date: 29 January 1992
• Docket Number: No. C-83-1861-MHP.,C-83-1861-MHP.
• Citation: 782 F. Supp. 1392
• Parties: NATIONAL ASSOCIATION OF RADIATION SURVIVORS, et al., Plaintiffs, v. Edward J. DERWINSKI, Secretary of Veterans Affairs, et al., Defendants.
• Court: U.S. District Court — Northern District of California

782 F. Supp. 1392

NATIONAL ASSOCIATION OF RADIATION SURVIVORS, et al., Plaintiffs, v. Edward J. DERWINSKI, Secretary of Veterans Affairs, et al., Defendants.

No. C-83-1861-MHP.

United States District Court, N.D. California.

January 29, 1992.

James J. Garrett, Gordon P. Erspamer, Michael F. Ram, Morrison & Foerster, San Francisco, Cal., for plaintiffs.

Robert H. King, Jr., William C. Morison-Knox, Sonnenchein Carlin Nath & Rosenthal, San Francisco, Cal., for Reason F. Warehime.

George C. Stoll, Asst. U.S. Atty., Civ. Div., San Francisco, Cal., Theodore C. Hirt, Gena E. Cadieux, Dept. of Justice, Civ. Div., Richard A. Hertling, Thomas H. Peebles, Dept. of Justice, Civ. Div., Federal Programs Branch, Washington, D.C., Jack Nagan, Office of the Dist. Counsel of the V.A., San Francisco, Cal., Edward J. Luke, Deputy Asst. Gen. Counsel, Veterans Dept., Anne M. Gulyassy, Dept. of Justice, Civ. Div., Washington, D.C., for defendants.

Charles Horsky, Covington & Burling, Washington, D.C., Special Master.

Robert L. Gnaizda, Public Advocates, Inc., San Francisco, Cal., for American G.I. Forum.

AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

PATEL, District Judge.

Plaintiffs have brought this action to challenge the constitutionality of 38 U.S.C. §§ 3404 and 3405 (now codified as amended at 38 U.S.C. §§ 5904 and 5905), which limit the fee a veteran or veteran's survivor may pay to an attorney to assist him or her in prosecuting a claim before the Veterans Administration ("VA") to $10.00, and which impose criminal penalties on attorneys who accept fees in excess of the $10.00 limit. By order of June 12, 1984, this court granted plaintiffs' motion for a preliminary injunction prohibiting the enforcement of the $10.00 fee limit. National Ass'n of Radiation Survivors v. Walters, 589 F.Supp. 1302 (N.D.Cal.1984) "NARS I". The Supreme Court reversed, holding that the fee limit was not unconstitutional on its face. Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985) "NARS II". However, the Court's opinion left open the possibility that, on remand, plaintiffs would be able to show that the fee limit was unconstitutional as applied to particular classes of complex claims. See NARS II, 473 U.S. at 337-38, 105 S.Ct. at 3197-98 (O'Connor, J., concurring).

On remand, plaintiffs amended their complaint to challenge the constitutionality of the fee limit as applied to claimants with service-connected disability or death ("SCDD") compensation claims based on exposure to ionizing radiation. This court granted plaintiffs' motion for certification of a class consisting of "all past, present and future ionizing radiation claimants who have, or will have, some form of `active' claim relating to SCDD benefits before the VA." National Ass'n of Radiation Survivors v. Walters, 111 F.R.D. 595, 598 (N.D.Cal.1986) "NARS III". After extensive pretrial proceedings, the matter was tried to the court over a period of nearly two months. The trial included testimony by numerous expert witnesses regarding the medical, scientific and legal complexities characteristic of ionizing radiation claims.

During and after the trial Congress worked to change the manner in which veterans' claims were adjudicated and reviewed. After adoption of the Veterans' Judicial Review Act of 1988, Pub.L. No. 100-687, 102 Stat. 4105 (1988), the parties went to great lengths to settle this action in light of the new legislation.¹ Ultimately, the efforts to settle were unsuccessful and the parties returned to this court for a decision on the merits based upon the trial record and other post-trial submissions.

Having considered the evidence presented at trial and the arguments of the parties, and based on the findings of fact and conclusions of law set forth below, the court holds that the $10.00 fee limitation on attorneys' fees imposed by 38 U.S.C. §§ 3404 and 3405 (now codified as amended at 38 U.S.C. §§ 5904 and 5905) is unconstitutional as applied to SCDD claims for benefits based on exposure to ionizing radiation.

LEGAL FRAMEWORK

Plaintiffs argue that the $10.00 fee limit, as applied to SCDD claimants whose claims are based on exposure to ionizing radiation and who are not covered by the Veterans' Judicial Review Act of 1988, violates due process and the First Amendment because it deprives claimants of a meaningful opportunity to present their claims to the VA and to petition the government.

A court faced with a procedural due process challenge must initially determine whether the plaintiffs possess a life, liberty or property interest protected by the Constitution. In reversing this court's order granting a preliminary injunction, the Supreme Court found it unnecessary to decide whether applicants for SCDD benefits possessed a protected property interest in those benefits. NARS II, 473 U.S. at 320 n. 8, 105 S.Ct. at 3189 n. 8. This court sees no reason to disturb its earlier determination that both recipients of and applicants for SCDD benefits possess a property interest protected by the Constitution. See NARS I, 589 F.Supp. at 1313-14. Indeed, the Ninth Circuit's decision in Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990), in which the court ruled that an applicant for social security disability benefits has a property interest in those benefits, buttresses this court's earlier ruling.

Once a court has concluded that the plaintiffs possess a protected interest, the court must examine the procedures provided for the protection of that interest to determine whether they meet the requirements of a due process challenge. See NARS II, 473 U.S. at 320, 105 S.Ct. at 3188. Determining what process is due requires consideration of the three factors set forth in Mathews v. Eldridge:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of 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.

424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976); see NARS II, 473 U.S. at 321, 105 S.Ct. at 3189.

A deprivation of a liberty or property interest is not required as a premise for a First Amendment claim. Perry v. Sindermann, 408 U.S. 593, 596-98, 92 S.Ct. 2694, 2696-98, 33 L.Ed.2d 570 (1972). Moreover, "the right of access to the courts is subsumed under the first amendment right to petition the government for redress of grievances." Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.1989). The Supreme Court has held that the First Amendment protects efforts by organizations and individuals to obtain legal representation for themselves or their constituents. The First Amendment protects union members' efforts to advise workers to obtain legal advice and to recommend specific lawyers, Brotherhood of Railroad Trainmen v. Virginia ex rel. Va. State Bar, 377 U.S. 1, 8-9, 84 S.Ct. 1113, 1117-18, 12 L.Ed.2d 89, reh'g denied, 377 U.S. 960, 84 S.Ct. 1625, 12 L.Ed.2d 505 (1964); the employment of counsel by unions to represent their members, United Mine Workers of America Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217, 221-22, 88 S.Ct. 353, 355-56, 19 L.Ed.2d 426 (1967), United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 580-85, 91 S.Ct. 1076, 1079-82, 28 L.Ed.2d 339 (1971); and the efforts of non-profit organizations to provide legal representation for persons seeking to vindicate their civil rights. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).

FINDINGS OF FACT

I. Evidence Relevant To The Private Interest Affected

Ionizing radiation ("IR") claimants are either veterans or their survivors (usually widows). Ex. 461. The record before the court indicates that IR claimants are generally poor, and in the cases of veterans themselves, almost always in poor health. RT at 1185-86. The Legal Services Corporation estimates that more than ten percent of all poor people in the United States are veterans or their dependents. Ex. 70 at 55. Evidence introduced by plaintiffs indicates that eleven percent of IR claimants have annual family incomes below $5000, forty-three percent have annual family incomes below $10,000, and sixty-eight percent have annual family incomes below $20,000. Ex. 460 at 5. In addition, seventeen percent of IR claimants have annual family medical expenses over $20,000, twenty-nine percent have medical expenses in excess of $10,000, and forty-five percent have medical expenses in excess of $5000. Id.

In light of this evidence, the court finds that a substantial majority of IR claimants would rely primarily on SCDD benefits for their basic maintenance and support.

II. Evidence Relevant To The Risk Of Erroneous Deprivation

A. Complexity of Governing Law and Procedures

IR claims, like other SCDD claims, are adjudicated within the framework of existing Veterans Administration ("VA") rules and regulations. In addition, a series of special VA rules and regulations have been promulgated specifically to address IR claims.

Veterans' law encompasses an extensive body of statutes, regulations, and other materials. RT at 23:2-27:4, 28:5-35:1, 38:8-40:4, 40:10-41:20, 50:17. The principal applicable statute is 38 U.S.C. §§ 101-7298 (formerly 38 U.S.C. §§ 1-4098). SCDD claims are also governed by regulations codified in the Code of Federal Regulations; a body of VA General Counsel opinions and Board of Veterans' Appeals ("BVA") decisions; VA circulars; and adjudication and program manuals. RT at 23-27. These materials interface with each other and form a complex web of governing authority. RT at 71.

The competent use of these materials is a laborious task. For example, it is necessary to monitor the Federal Register for changes in governing...