Gendron v. Saxbe

• Decision Date: 07 August 1974
• Docket Number: No. 73-3436,73-3436
• Citation: 501 F.2d 1087
• Parties: Ronald GENDRON, Plaintiff-Appellant, v. Honorable William B. SAXBE, Attorney General of the United States of America, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1087

501 F.2d 1087

Ronald GENDRON, Plaintiff-Appellant, v. Honorable William B. SAXBE, Attorney General of the United

States of America, et al., Defendants-Appellees.

No. 73-3436.

United States Court of Appeals, Ninth Circuit.

Aug. 7, 1974.

Scott J. Tepper (argued), Los Angeles Selective Service Lawyer's Panel, Los Angeles, Cal., Dennis H. Devermont (argued), Santa Monica, Cal., for plaintiff-appellant.

Carolyn M. Reynolds (argued), Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellees.

Before BARNES, BROWNING and HUFSTEDLER, Circuit Judges.

OPINION

HUFSTEDLER, Circuit Judge:

Gendron, a totally disabled veteran, brought suit challenging the constitutional validity of 38 U.S.C. 3404, a statute that recognizes a veteran's right to the assistance of a lawyer to help him prepare and present to the Veterans' Administration claims for benefits, but limits to $10 the compensation that a lawyer can receive for his services. ¹ We hold that the complaint presented questions that were not constitutionally insubstantial and, therefore, the district court erred in denying Gendron's motion to convene a three-judge court and in dismissing his complaint.

The following facts are drawn from the complaint and the affidavit annexed to it. Gendron had been found totally disabled by the State of California and by the Social Security Administration of the United States. He sought veterans' disability benefits, claiming that his illness was service connected. Personnel of the Veterans' Administration thought otherwise; the Administration's Ratings Board rejected his claims stating that he 'did not meet the schedular requirements for nonservice-connected pension benefits nor were his disabilities considered sufficient to permanently preclude some form of substantially gainful employment.' He tried to retain a lawyer to help him prepare his appeal to the Veterans' Administration Board of Veterans Appeals, but the search was in vain because he could find no lawyer who would take the case for $10. ²

The district court refused to convene a three-judge district court pursuant to 28 U.S.C. 2281 because it concluded that Gendron's constitutional claim was insubstantial.

"Claims are constitutionally insubstantial only if the prior decisions inescapably render the claim frivolous; previous decisions that merely render claims doubtful or of questionable merit do not render them insubstantial for the purpose of 28 U.S.C. 2281. A claim is insubstantial only if "its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy." Ex parte Poresky ((1933), 290 U.S. 30), at 32, (54 S.Ct., at 4, 78 L.Ed. 152) quoting from Hannis Distilling Co. v. Baltimore ((1910) 216 U.S. 285), at 288 (30 S.Ct. at 327, 54 L.Ed. 482) . . .." (Hagans v. Lavine (1974), 415 U.S. 528, 537, 94 S.Ct. 1372 at 1379, 39 L.Ed.2d 577, quoting from Goosby v. Osser (1973), 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36.)

The constitutionality of federal legislation limiting the fees that veterans could pay lawyers for handling their claims against the Government has been before the Supreme Court twice, directly in Margolin v. United States (1925), 269 U.S. 93, 46 S.Ct. 64, 70 L.Ed. 176 and obliquely in Hines v. Lowrey (1938), 305 U.S. 85, 59 S.Ct. 31, 85 L.Ed. 56. In each case, the attack was launched on substantive due process grounds by lawyers seeking to sustain fees arranged by contract (Margolin) or by court award (Hines) in excess of the statutory limit. (Cf. Calhoun v. Massie (1920), 253 U.S. 170, 40 S.Ct. 474, 64 L.Ed. 843 (statute limiting lawyer's contingent fees for recovery of Civil War reparations upheld against substantive due process attack by lawyer).) The Supreme Court has never...