National Ass'n of Radiation Survivors v. Walters, No. C-83-1861-MHP.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtPATEL
Citation589 F. Supp. 1302
PartiesNATIONAL ASSOCIATION OF RADIATION SURVIVORS, a California non-profit corporation; Swords to Plowshares Veterans Rights Organization, a California non-profit corporation; Don E. Cordray, an individual; Albert R. Maxwell, an individual; Reason F. Warehime, an individual; Doris J. Wilson, an individual, Plaintiffs, v. Harry N. WALTERS, Administrator of The Veterans Administration; the United States of America; the Veterans Administration; Paul D. Ising, Director, San Francisco Regional Office, The Veterans Administration, Defendants.
Docket NumberNo. C-83-1861-MHP.
Decision Date12 June 1984

589 F. Supp. 1302

NATIONAL ASSOCIATION OF RADIATION SURVIVORS, a California non-profit corporation; Swords to Plowshares Veterans Rights Organization, a California non-profit corporation; Don E. Cordray, an individual; Albert R. Maxwell, an individual; Reason F. Warehime, an individual; Doris J. Wilson, an individual, Plaintiffs,
v.
Harry N. WALTERS, Administrator of The Veterans Administration; the United States of America; the Veterans Administration; Paul D. Ising, Director, San Francisco Regional Office, The Veterans Administration, Defendants.

No. C-83-1861-MHP.

United States District Court, N.D. California.

June 12, 1984.


589 F. Supp. 1303
COPYRIGHT MATERIAL OMITTED
589 F. Supp. 1304
COPYRIGHT MATERIAL OMITTED
589 F. Supp. 1305
Kathleen V. Fisher, Gordon P. Erspamer, Michael F. Ram, Morrison & Foerster, San Francisco, Cal., for plaintiffs

George Christopher Stoll, Asst. U.S. Atty., San Francisco, Cal., Edward J. Lukey, Deputy Asst. Gen. Counsel, Veterans Dept., Washington, D.C., Jack Nagan, San Francisco, Cal., for defendants.

OPINION

PATEL, District Judge.

I. Introduction

Plaintiffs, who were veterans organizations, veterans, and a veteran's widow, seek a preliminary injunction enjoining the enforcement of 38 U.S.C. ?? 3404-3405.1 These sections impose a flat $10.00 fee limit for all work performed by an attorney in representing a veteran pursuing Service-Connected Death and Disability ("SCDD") claims, 38 U.S.C. ? 301 et seq., before the Veterans Administration ("VA").2 Section 3404 limits fees for attorneys and claims agents to $10.00 per successful claim:

(c) The administrator shall determine and pay fees to agents or attorneys recognized under this section in allowed claims for monetary benefits under laws administered by the Veterans' Administration. Such fees?€”
(1) shall be determined and paid as prescribed by the Administrator;
(2) shall not exceed $10 with respect to any one claim; and
(3) shall be deducted from monetary benefits claimed and allowed.

Section 3405 subjects an attorney to possible imprisonment at hard labor or a fine if she independently seeks to charge a fee in excess of the $10.00 provided by the VA for successful claims:

Whoever (1) directly or indirectly solicits, contracts for, charges, or receives, or
589 F. Supp. 1306
attempts to solicit, contract for, charge or receive, any fee or compensation except as provided in sections 3404 or 784 of this title, ... shall be fined not more than $500 or imprisoned at hard labor for not more than two years, or both.

Plaintiffs argue that the application of the $10.00 fee limit imposed by 38 U.S.C. ?? 3404-3405 is unconstitutional because it deprives them of their right to procedural due process under the Fifth Amendment of the United States Constitution and their First Amendment rights to petition for redress of grievances and to associate freely. They do not suggest that the government is obliged to appoint an attorney to act on their behalf, but argue that the due process clause and First Amendment of the Constitution proscribe the government from preventing veterans from hiring their own qualified attorneys to represent them in pursuing SCDD benefits.

Plaintiffs are all either veterans' organizations, members of which have pending SCDD claims before the VA, or individuals who were prevented from obtaining an attorney to represent them in their claims before the VA because of the $10.00 limit. The plaintiff class includes both recipients of benefits who have been threatened with termination and applicants for benefits. Plaintiff National Association of Radiation Survivors ("NARS") is an organization of veterans whose purpose is to obtain health care, compensation, and other benefits for its members and their families. Its members are veterans who participated in atomic bomb tests, and many have pending SCDD claims. Plaintiff Swords to Plowshares Veterans Rights Organization ("Swords to Plowshares") is a veterans organization which focuses its efforts on Vietnam veterans. Some of its staff and many of its clients are recipients or applicants for SCDD benefits. Plaintiff Albert R. Maxwell alleges that as a prisoner of war during World War II he was exposed to radiation from the Hiroshima and Nagasaki bombs, causing him to contract cancer and other disorders and causing four of his five children to die of rare congenital abnormalities in early childhood. His claims for radiation-related ailments were denied. Although he contacted an attorney to represent him the attorney declined because of the $10.00 fee limitation. Plaintiff Reason F. Warehime was part of a clean-up detail to Nagasaki and present at an atomic test which he alleges caused a variety of ailments. When his disability rating was lowered from 100% to 60% by the VA he contacted several attorneys to challenge this change, but was unable to obtain representation because of the $10.00 limit. Plaintiff Doris Wilson, finally, is the widow of a veteran whose ship was allegedly contaminated by radiation and who subsequently died of cancer. Ms. Wilson attempted to hire an attorney to represent her in her husband's claim for SCDD but failed due to the $10.00 limit. The claim was denied.3

Defendants are the VA, its Administrator, Walters, and its San Francisco Regional Director, Ising.

While 38 U.S.C. ? 211(a) provides that VA decisions concerning veterans' benefits are final, and while this provision has been construed to prohibit judicial review of the VA's handling of benefit claims, the section does not bar constitutional challenges to the veterans' benefits laws. Demarest v. United States, 718 F.2d 964, 965-66 (9th Cir.1983). Accordingly, ? 211(a) does not deny this court jurisdiction over plaintiffs' case. Nor did this court find it appropriate to dismiss plaintiffs' case for failing to state a claim upon

589 F. Supp. 1307
which relief could be granted. National Association of Radiation Survivors, et al. v. United States, et al., No. C-83-1861 (N.D.Cal. Oct. 21, 1983).4

For the reasons set forth below the court now grants plaintiffs' motion for preliminary injunction.5

II. Standard for Obtaining Preliminary Injunctive Relief

The Ninth Circuit has held that preliminary injunctive relief is available where the moving party establishes either "a combination of probable success and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor." William Inglis & Sons Baking Co. v. ITT Continental Baking Co., Inc., 526 F.2d 86, 88 (9th Cir.1976) (emphasis omitted), quoting Charlie's Girls, Inc. v. Revlon, Inc., 483 F.2d 953, 954 (2d Cir.1973). While, as demonstrated below, plaintiffs are entitled to injunctive relief under either standard, this court will tailor its analysis to the more traditional standard, looking to plaintiffs' probability of success and the possibility of irreparable injury.6

III. Plaintiffs' Likelihood of Success on the Merits

A. Does the $10.00 limit violate plaintiffs' right to procedural due process?

In considering procedural due process claims a court must look first to whether plaintiff has a protected liberty or property interest in the benefits which are sought. If plaintiff has such an interest the court must determine what process is due and whether the procedures used meet the requirements of the due process clause. Mathews v. Eldridge, 424 U.S. 319, 332-35, 96 S.Ct. 893, 901-03, 47 L.Ed.2d 18 (1976); Devine v. Cleland, 616 F.2d 1080, 1086 (9th Cir.1980). As discussed below, this court finds that plaintiffs have a high probability of success on their due process claim.

1. Has the $10.00 limit already been definitively upheld against due process challenges?

Defendants argue that the Supreme Court and the Ninth Circuit have already determined that the $10.00 limit does not violate plaintiffs' due process rights, citing Gendron v. Saxbe, 389 F.Supp. 1303 (C.D. Cal.1975), aff'd per curiam sub nom. Gendron v. Levi, 423 U.S. 802, 96 S.Ct. 9, 46 L.Ed.2d 23 (1975); and Demarest v. United States, 718 F.2d 964 (9th Cir.1983).7 Yet,

589 F. Supp. 1308
while both Gendron and Demarest held that the $10.00 fee limitation did not deny plaintiffs their due process rights, the cases do not determinatively hold either that plaintiffs in the instant case do not have a protectible property interest, or that the procedures provided by the VA are adequate to protect such a property interest

a. Do Gendron and Demarest hold that veterans' claims to SCDD benefits are not protected property interests?

Gendron, a veteran's challenge to the $10.00 fee limitation on procedural due process and equal protection grounds, was tried on a meager set of stipulated facts. The district court initially dismissed for want of a substantial federal question. Following the Ninth Circuit's reversal and remand with instructions to convene a three-judge court, 501 F.2d 1087 (9th Cir. 1974), the district court upheld the constitutionality of the $10.00 limitation on the ground that an applicant for benefits, unlike a recipient threatened with termination, has no property interest in benefits. Although the analysis was not necessary to its conclusion, the district court also seemed to conclude that even if such a right existed the procedures were adequate to protect them, in light of the consideration which Congress had given to the problem. 389 F.Supp. at 1307.8

Plaintiff appealed this determination to the Supreme Court, presenting the following questions in the jurisdictional statement:

1. Is there a deprivation of property within the meaning of the Due Process Clause of the Fifth Amendment to the Constitution of the United States when the Veterans Administration denies a disabled veteran's claim for disability benefits under 38 U.S.C. ?? 310-13?
2. Does 38 U.S.C. ? 3404, which limits to $10.00 the fee a retained attorney may receive for consulting with a veteran, or for preparing, presenting, and
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10 practice notes
  • Walters v. National Association of Radiation Survivors, No. 84-571
    • United States
    • United States Supreme Court
    • June 28, 1985
    ...claim, which focused on the question whether the present process allows a claimant to make a meaningful presentation. Pp. 334-335. 589 F.Supp. 1302 (1984), reversed. Mark Irving Levy, Washington, D.C., for appellants. Gordon Paul Erspamer, San Francisco, Cal., for appellees. Page 307 Justic......
  • Mallette v. Arlington County Employees' Supplemental Retirement System II, No. 94-2298
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 1, 1996
    ...are applicants for benefits rather than current recipients is not determinative."); National Ass'n of Radiation Survivors v. Walters, 589 F.Supp. 1302, 1312 (N.D.Cal.1984), rev'd on other grounds, 473 U.S. 305, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985) ("Applicants for [veterans' Service-Connec......
  • Roa v. Lodi Medical Group, Inc., S.F. 24435
    • United States
    • United States State Supreme Court (California)
    • February 7, 1985
    ...fees in cases where veterans seek death and disability benefits. (See National Ass'n of Radiation Survivors v. Walters (N.D.Cal.1984) 589 F.Supp. 1302, 1323-1327, 1329, Walters v. National Assoc. of Rad. Survivors (1984) 469 U.S. 1085, 105 S.Ct. 588, 83 L.Ed.2d ---- [prob. jurisdiction note......
  • Saleeby v. State Bar, S.F. 24695
    • United States
    • United States State Supreme Court (California)
    • July 25, 1985
    ...(1985) --U.S.--, 105S.Ct.3180,85 L.Ed.2d--, revg.sub nom., National Association of Radiation Survivors v. Walters (N.D.Cal.1984) 589 F.Supp. 1302.) The high court reversed the district court's determination that the restrictions at issue unconstitutionally denied due process to veterans bri......
  • Request a trial to view additional results
10 cases
  • Walters v. National Association of Radiation Survivors, No. 84-571
    • United States
    • United States Supreme Court
    • June 28, 1985
    ...claim, which focused on the question whether the present process allows a claimant to make a meaningful presentation. Pp. 334-335. 589 F.Supp. 1302 (1984), reversed. Mark Irving Levy, Washington, D.C., for appellants. Gordon Paul Erspamer, San Francisco, Cal., for appellees. Page 307 Justic......
  • Mallette v. Arlington County Employees' Supplemental Retirement System II, No. 94-2298
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 1, 1996
    ...are applicants for benefits rather than current recipients is not determinative."); National Ass'n of Radiation Survivors v. Walters, 589 F.Supp. 1302, 1312 (N.D.Cal.1984), rev'd on other grounds, 473 U.S. 305, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985) ("Applicants for [veterans' Service-Connec......
  • Roa v. Lodi Medical Group, Inc., S.F. 24435
    • United States
    • United States State Supreme Court (California)
    • February 7, 1985
    ...fees in cases where veterans seek death and disability benefits. (See National Ass'n of Radiation Survivors v. Walters (N.D.Cal.1984) 589 F.Supp. 1302, 1323-1327, 1329, Walters v. National Assoc. of Rad. Survivors (1984) 469 U.S. 1085, 105 S.Ct. 588, 83 L.Ed.2d ---- [prob. jurisdiction note......
  • Saleeby v. State Bar, S.F. 24695
    • United States
    • United States State Supreme Court (California)
    • July 25, 1985
    ...(1985) --U.S.--, 105S.Ct.3180,85 L.Ed.2d--, revg.sub nom., National Association of Radiation Survivors v. Walters (N.D.Cal.1984) 589 F.Supp. 1302.) The high court reversed the district court's determination that the restrictions at issue unconstitutionally denied due process to veterans bri......
  • Request a trial to view additional results

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