994 F.2d 583 (9th Cir. 1992), 92-15988, National Ass'n of Radiation Survivors v. Derwinski

Docket Nº:92-15988.
Citation:994 F.2d 583
Party Name:NATIONAL ASSOCIATION OF RADIATION SURVIVORS, et al., Plaintiffs-Appellees, v. Edward J. DERWINSKI, Secretary of the Department of Veterans Affairs, et al., Defendants-Appellants.
Case Date:November 24, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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994 F.2d 583 (9th Cir. 1992)




Edward J. DERWINSKI, Secretary of the Department of Veterans

Affairs, et al., Defendants-Appellants.

No. 92-15988.

United States Court of Appeals, Ninth Circuit

November 24, 1992

Argued and Submitted Sept. 15, 1992.

As Amended on Denial of Rehearing and

Rehearing En Banc

June 18, 1993.

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[Copyrighted Material Omitted]

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Lowell V. Sturgill Jr., Dept. of Justice, Washington, DC, for defendants/appellants.

Gordon P. Erspamer, Morrison & Foerster, and Matthew L. Larrabee, Heller, Ehrman, White & McAuliffe, San Francisco, CA, for plaintiffs/appellees.

Appeal from the United States District Court for the Northern District of California.

Before: CHOY, ALARCON and HALL, Circuit Judges.

CHOY, Circuit Judge:

A class of individuals with claims for Veterans' Administration ("VA") benefits based on exposure to ionizing radiation during service ("IR claimants/plaintiffs") challenges the constitutionality of a statute that limits to $10 the amount a claimant can pay an attorney representing him in pursuit of VA benefits. The United States District Court for the Northern District of California held that this fee limitation violates the IR claimants' procedural due process rights as well as their First Amendment right to free speech and to petition the government. We reverse.


In 1983, plaintiffs--two veterans' organizations and four individuals--brought an action challenging 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 his survivor may pay an attorney to assist him in prosecuting a claim before the VA to $10. The district court granted a nationwide preliminary injunction prohibiting the enforcement of the fee limit. National Ass'n of Radiation Survivors v. Walters, 589 F.Supp. 1302 (N.D.Cal.1984). The government appealed directly to the Supreme Court, and the 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). 1 The Court left open the possibility of a constitutional attack on the fee limit as applied to particular classes of veterans. See id. at 337, 105 S.Ct. at 3198 (O'Connor, J., concurring) ("the Court, in reversing the lower court's preliminary injunction, does not determine the merits of the appellees' individual 'as applied' claims").

On remand, plaintiffs amended their complaint to assert that the fee limit was unconstitutional as applied to individuals with claims based on exposure to ionizing radiation. The district court certified the class of IR claimants. National Ass'n of Radiation Survivors v. Walters, 111 F.R.D. 595 (N.D.Cal.1986). 2 After extensive pretrial proceedings, the case went to trial.

During and after the trial Congress passed several pieces of legislation relevant to the plaintiffs' claims. Congress passed the Veterans' Judicial Review Act of 1988 ("JRA"), Pub.L. No. 100-687, 102 Stat. 4105 (1988). Prior to the enactment of the JRA a veteran could only appeal a benefits claim up to the Board of Veterans Appeals ("BVA"), an adjudicatory body within the VA. The JRA created

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the United States Court of Veterans Appeals ("CVA") to review decisions of the BVA. JRA §§ 4051, 4052(a), 102 Stat. at 4113. It also provided for judicial review of CVA decisions by the Court of Appeals for the Federal Circuit. Id. § 4092, 102 Stat. at 4120. In addition, the JRA amended the fee limitation by providing that a claimant may pay an attorney for services rendered after the BVA makes an initial decision about his claim. Id. § 104(a), 102 Stat. at 4108. This scheme allows the claimant to obtain a lawyer for appeals to the CVA and the Federal Circuit, or to conduct further administrative proceedings within the VA by reopening a claim. 3 Id. However, the amendment easing the fee limitation only applies to claimants who have filed a Notice of Disagreement on or after November 18, 1988. 4 Id. § 403, 102 Stat. at 4122. The JRA may moot the complaints of some IR claimants but it does not affect those who filed Notices of Disagreement before the effective date of the JRA.

Congress also passed the Radiation-Exposed Veterans Compensation Act of 1988, Pub.L. No. 100-321, 102 Stat. 485 (1988). This act creates a presumption that certain diseases, which manifest to a degree of ten percent within specified latency periods, are service-connected. If the veteran contracts a disease not listed in the statute or it remains latent beyond the specified periods, no presumption exists. This Act, therefore, does not affect the claims of all of the class plaintiffs. Moreover, those that it does affect are still subject to the fee limit.

Finally, Congress passed the Radiation Exposure Compensation Act, Pub.L. No. 101-426, 104 Stat. 920 (1990). This act provides for one-time payments of $50,000 to individuals who participated onsite in a test involving the atmospheric detonation of a nuclear device, developed a disease specified in the statute, and meet certain other criteria. The payment will be decreased by the amount of "any payment made pursuant to a final award of settlement on a claim" based on injuries resulting from exposure to radiation. Pub.L. No. 101-426, § 6(c)(2). The district court found that veterans' benefits may result in an offset of the lump sum payment. National Ass'n of Radiation Survivors v. Derwinski, 782 F.Supp. 1392, 1394 n. 1 (N.D.Cal.1992).

Because none of these statutes moot the claims of all of the class members, the district court found it necessary to pass on the constitutionality of the scheme as it applied to the remaining plaintiffs. The district court found that the fee limit, as applied to the class of IR claimants, was an unconstitutional deprivation under the Due Process Clause of the Fifth Amendment and the First Amendment's guarantee of the right to free speech and the right to petition the government for redress of grievances. Derwinski, 782 F.Supp. at 1412. The government appeals this ruling.

A main point of contention in this case is the alleged difficulty of pursuing an IR claim for benefits within the VA. In describing the procedure for processing service-connected disability or death ("SCDD") claims, the Supreme Court in Walters noted that "[t]he process is designed to function throughout with a high degree of informality and solicitude for the claimant." Walters, 473 U.S. at 311, 105 S.Ct. at 3184. A number of general regulations govern the procedure for examining SCDD claims.

A veteran applies for benefits by submitting a claim form to the local veterans agency. A three-person "ratings board" of the VA regional office reviews the claim application. A claimant is "entitled to a hearing at any time on any issue involved in a claim...." 38 C.F.R. § 3.103(c) (1991). These proceedings are ex parte. Id. § 3.103(a). The ratings board determines the extent of the veteran's disability and whether such disability is service-connected. The board is required to "assist a claimant in

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developing the facts pertinent to [his] claim," id., and to consider any evidence offered by the claimant. Id. § 3.103(d). Moreover, the board is required to resolve all reasonable doubts in favor of the claimant. Id. § 3.102.

After reviewing the evidence, the ratings board either denies the claim or assigns a disability rating upon which benefits are calculated. The board notifies the claimant of its decision, and the claimant may appeal the board's decision by filing a Notice of Disagreement with the local agency. If the local agency stands by its original decision, it issues a "Statement of the Case" that describes the facts and applicable law upon which its decision is based. The claimant may then appeal to the BVA. Before the amendments discussed above were enacted, the BVA's decisions were not subject to judicial review. See Walters, 473 U.S. at 311, 105 S.Ct. at 3184. Under the JRA, however, claimants who file a Notice of Disagreement on or after November 18, 1988 can appeal BVA decisions to the CVA and then to the Court of Appeals for the Federal Circuit while claimants who filed a Notice of Disagreement before November 18, 1988 do not have that option.

In addition to the general regulations, the VA has adopted regulations specifically dealing with IR claims pursuant to a mandate from Congress in the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub.L. No. 98-542, 98 Stat. 2725 (1984). Section 3.311b of Title 38 of the Code of Federal Regulations sets forth three requirements an IR claimant must meet in order to have the VA investigate his claim: (1) the veteran must have been exposed to ionizing radiation due to participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki from September 1945 until July 1946, or other activities as claimed; (2) the veteran must have subsequently developed one of seventeen delineated diseases; and, (3) the veteran must have developed the disease within a specified period of time.

If an IR claimant meets the criteria of § 3.311b, the VA will investigate the claim by gathering factual information and requesting an estimate from the Defense Nuclear Agency ("DNA") of the radiation dose the veteran was exposed to during service. 5 If any of the three requirements are not met the VA determines that the alleged disease did not result from ionizing radiation.

Various national veterans' organizations make available trained service representatives to assist claimants in developing and...

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