*1 ADMINISTRATOR OF WALTERS, VETERANS’ et al. v. NATIONAL AFFAIRS, ASSOCIATION RADIATION SURVIVORS OF et al. 1985 Decided Argued 84-571. March June

No. *2 Court, Rehnquist, opinion Burger, J., delivered which Blackmun, J., White, Powell, O’Connor, JJ., joined. and C. O’Connor, J., Blackmun, J., concurring opinion, joined, filed a which Brennan, J., p. dissenting opinion, filed a Mar- post, 336. which J., shall, J., joined, p. Stevens, dissenting opinion, 338. filed a post, Marshall, JJ., joined, post, p. Brennan 358. which appellants. Levy argued I. him Mark cause for With Acting Lee, Solicitor General Assistant on the briefs were Attorney Deputy Geller, General Willard, General Solicitor Kanter. and William argued Erspamer P. the cause filed a brief

Gordon appellees Association Radiation Survivors et al. National appellee I. Robert L. Gnaizda filed a brief for American G. Forum.*

*Joseph Zengerle C. filed a brief for Disabled American Veterans urging curiae reversal. amicus filed for urging

Briefs of amici curiae affirmance were the American Neubome, et Burt Liberties Union Foundation al. Charles S. Civil opinion delivered the of the Court. Rehnquist Justice 3404(c) Title 38 U. S. C. limits to the fee $10 paid attorney agent represents who a veteran seek- ing disability. benefits for service-connected death or United States District Court for the Northern District of California held that this limit violates the Due Process Clause of the Fifth Amendment, and the First Amendment, because opportunity it denies veterans or their survivors the to retain pursuing counsel of their choice their claims. We noted probable jurisdiction appeal, of the Government’s (1984), and we now reverse.

I—I *3 Congress by sys- has statute established an administrative granting disability tem for service-connected death or bene- § seq. fits to veterans. See 38 U. S. C. 301 et The amount upon upon of the benefit award is not based need, but service disability causally is, connection—that whether the related injury degree to an sustained the service—and the of inca- pacity by disability. system caused A detailed has been by (VA) established statute and Veterans’ Administration regulation determining for a veteran’s entitlement, with final authority resting body with an administrative known as the (BVA). Appeals Board of Veterans’ Judicial review of VA § precluded by 211(a); decisions is statute. 38 U. S. C. John- controversy Robison, son v. 415 U. S. 361 The opportunity applicant this case centers on the for a benefit Sims, Schlosser, Schwartz; Alan L. Amitai and for the American Veterans Inc., Beasley, Kamerow, Michael W. Allan L. Committee, by Lawrence Panzer; Lewy, Irving E. R. M. for the Federal by Bar Association Belcuore; F. Lawyers’ Jerome by for the Club of San Francisco Alfred Altshuler; Sapiro, Jr., and Fred H. for the National Association of Atomic Allan, Keil; by Wegner, Walter R. Karen J. Debra B. Veterans for Baluss, Jr., Vietnam Mary Sipe, E. M. by Samuel Veterans of America David Addlestone, Stichman; F. and Barton F. and for Andrew Groza Joseph Lynch, James Jr. presentation recipient legal in the to obtain counsel aid or 3404(c) provides: of Title of his claim to the VA. Section pay fees to “The Administrator shall determine agents attorneys recognized this under section monetary under admin- allowed claims for benefits laws fees— istered the Veterans’ Administration. Such “(2) respect any not with one shall exceed $10 . claim . . penalties any person provides who criminal

Section § charges 3404. in excess of the limitation of fees Appellees organizations, in- here are two veterans’ three veterans, and a veteran’s widow.1 two veter- dividual organizations are of Radiation ans’ the National Association organization principally Survivors, an concerned with obtain- resulting ing compensation injuries for its members for tests, from atomic bomb and Swords to Plowshares Veterans Rights Organization, organization particularly devoted complaint contains the concerns of Vietnam veterans. The allegation respect further to the numbers members no Appellees organization in either are veteran claimants. who did not seek class certification.

Appellees limi- fee contended in the District that the opportu- provision tation of 3404 them realistic denied nity legal representation presenting claims their to obtain *4 rights Due the the VA hence their under to violated First under the Process Clause of the Fifth Amendment appellees agreed the Amendment. The District Court “prelimi- grounds, nationwide of these and entered a on both enforcing nary injunction” barring appellants the fee from fully Supp. To understand limitation. 589 F. necessary posture is to us it in reaches the which the case detail. in the scheme some discuss administrative during pendency the of the plaintiff died 1 A fourth individual veteran proceedings.

Congress began providing pensions veterans in early 1789, and after every conflict in which the Nation has been in- volved in Congress has, the words of Abraham Lincoln, “pro- vided for him who has borne the battle, and his widow and his orphan.” The VA was created in by 1930, and Congress since that time has been for responsible administering congressional program for veterans’ benefits. In 1978, the year covered by of report the Legal Services Corporation Congress that was introduced into evidence the District Court, approximately 800,000 claims service-connected or disability death and pensions were decided re- by gional offices the VA. Slightly more than half of these were claims for service-connected or disability death, remainder were pension claims. Of the 800,000 total claims 400,000 more than were allowed, and some 379,000 were denied. Sixty-six thousand of these denials were con- tested at the regional about a level; quarter these contests were 15% dropped, on prevailed reconsideration at the local level, and the 36,000 remaining were appealed the BVA. At that level some 4,500, or 12%, prevailed, and another 13% won a remand for further proceedings. Although these fig- ures are from 1978, the statistics evidence indicate that the figures remain fairly constant from year year.

As in a might expected system which such a processes large number of year, claims each by prescribed Congress for obtaining not disability benefits does contem- plate adversary mode of utilized dispute by resolution courts this It country. is commenced the submission of by a claim form to the local form agency, pro- veterans which vided VA either upon receipt of notice upon request death a veteran. a claim Upon generally application is first reviewed board” three-person “rating VA regional specialist, of a medical consisting legal spe- office— and an A cialist, claimant is “occupational specialist.” “enti- tled to issue involved in a any time on claim hearing §3.103(c) (1984). . . . .” 38 CFR Proceedings front in nature,” the rating parte board “are ex no §3.103(a); *5 opposition. principal appears in official is- Government disability sues are the extent of the claimant’s and whether required by regulation it The board is is service connected. developing pertinent claimant in the facts to his “to assist a §3.103(a), any by and to consider evidence offered the claim,” §3.103(b). deciding See the claim the board claimant. generally request applicant’s will the Armed Service and by records, medical and will order a medical examination by hospital. regulation Moreover, VA board is directed all reasonable doubts in favor of the to resolve claimant. §3.102.2 reviewing the renders a

After evidence board decision denying assigning disability “rating” either the claim or regulations developed pursuant assessing to detailed vari- Money ous disabilities. benefits are calculated based on the rating. The claimant is notified of the board’s decision and appeal by reasons, its and the claimant then initiate an (1984) §3.102 Title 38 CFR states: consistently applied policy “It is the defined and of the Veterans Admin- interpretation, consistent, istration to administer the law under a broad however, When, every facts shown case. after careful consid- data, procurable all a reasonable eration of assembled doubt arises origin, degree disability, any point, regarding service or other such By will be resolved in favor of the claimant. doubt reasonable doubt is exists meant one which reason of the fact that the evidence does not satisfactorily prove disprove claim, yet or a substantial doubt and one range probability distinguished pure speculation from within as or possibility. reconciling It remote is not a means of actual conflict or a evidence; required contradiction the claimant is to submit evidence justify impartial a belief in a fair mind that sufficient his claim is well grounded. suspicion Mere or doubt as to the truth of statements sub- mitted, impeachment distinguished from or contradiction evidence or facts, justifiable denying application known is not a basis for of the rea- entire, complete doubt doctrine if the record sonable otherwise warrants involving applicable this doctrine. The reasonable doubt doctrine is also records, particularly even in the absence of official if the basic incident combat, allegedly similarly conditions, under arose strenuous and is probable hardships.” consistent with the results of such known *6 filing disagreement” agency. a “notice of with the local If agency original the local adheres to its decision it must then provide the claimant with a “statement of the case”—a writ- description applicable upon ten of the facts and law which the may board based its determination —so that the claimant ade- quately present appeal Hearings his to the BVA. front of subject agency are BVA to the same rules as local hear- ings they parte, questioning are ex there is no formal or — apply. cross-examination, and no formal rules of evidence §19.157 subject CFR The BVA’s decision is not to 211(a).3 judicial § review. 38 U. S. C. designed throughout high to function with a

degree informality and solicitude for the claimant. There is no statute of limitations, and denial of benefits has no for- judicata long mal res a claimant effect; resubmit as as he presents previously new facts not forwarded. See 38 CFR (1984). Although §§3.104, 3.105 there are time limits for submitting disagreement although a notice of and a claimant may prejudice opportunity challenge legal his factual or by failing challenge decisions them that notice, the time quite up year limit is to one the VA boards are liberal— —and any light instructed to read submission most favor- able to the claimant. §§19.129, See CFR 19.124, 19.121 (1984). Perhaps importantly present purposes, more organizations country however, various veterans’ across the agents, charge, make available trained service free of developing presenting assist claimants in and their claims. representatives contemplated by These service are the VA they recognized statute, 38 U. S. C. and as an im- part portant Appellees’ of the administrative scheme. coun- agreed argument representative sel that a is available for 3Despite general preclusion judicial respect review with to VA Robison, claims, Johnson benefits this Court held in 415 U. S. 361 (1974), jurisdiction that the district courts have to entertain constitutional operation systems. attacks on the of the claims regardless any requests claimant’s one, claimant who group.4 particular veterans’ affiliation present statutory support and of their claim that appellees Constitution, scheme violates the administrative rejected claimants affidavits and declarations submitted attorneys, recipients practicing depositions of sev employees, and various exhibits. The District VA eral opinion hearing 52-page then issued Court held granting requested “preliminary injunction.”5 order *7 process respect appellees’ claim, to the merits of due With recipients of first determined that service- the District Court “property” disability possess death and benefits connected by protected see Clause, the Due Process Mathews interests (1976) (recipients Eldridge, 424 of Social U. S. 319 Secu- v. interest), protected “property” rity possess benefits possess applicants for benefits such an that such also held Although noting has never ruled on that this Court interest. opinions question, the court relied on several the latter holding, respect Appeals Ninth for the Circuit Court applicants possess such benefits, that to similar Government g., See, Pierce, Ressler v. 692 F. 2d an interest. e. subsidies). (1982)(applicants federal rent 1214-1216 strong appellees had likelihood The then held that court showing scheme violated the due that the administrative holding process rights In that of those entitled to benefits. “fundamentally process unfair,” above was described analysis developed by this relied on the court represented by 4 The VA show that 86% of all claimants are statistics se, represented by proceed pro are representatives, service 12% 2% agreed argument pro the 12% lawyers. App. 190. who Counsel by pro ceed se do so their own choice. appellants’ argument question rejected District Court summary this affirmance in presented was controlled Court’s Gendron (DC Saxbe, summarily Supp. Cal.), sub F aff’d nom. Gendron v. Levi, probable jurisdiction and Because we noted case on the merits is no argument in order to decide this there heard oral properly distinguished the District Court need for us to determine whether Gendron. Eldridge, swpra,

Mathews v. in which we stated the factors weighed determining that must be what is due an subject deprivation: individual to a private

“First, the interest that will be affected official depriva- action; second, the risk of an erroneous through procedures tion of such interest used, and probable any, if value, of additional or substitute procedural safeguards; finally, the Government’s including interest, the function involved and the fiscal and administrative burdens that the additional or substi- procedural requirement tute would entail.” S.,U. at 335. applying heavily this test the District Court relied on

appellees’ it evidence; noted that the veterans’ interest receiving significant many recipients benefits was in that totally primarily dependent disabled, and on benefits for support. Supp., their respect 589 F. at 1315. With to the present system, likelihood of error under the and the value of safeguard legal representation, the additional it first noted appellees represented by that some of the had been service *8 agents representation, and had been dissatisfied with their sought legal.counsel solely and had and failed to obtain due to expert legal the fee limitation. The court found that absent significant forfeiting counsel ran claimants risk of their rights, highly complex because of the issues in involved some processes, cases. VA the court reasoned, allow claimants to points disagreement appeal, appeal waive on or to waive altogether by failing disagreement; to file the notice of simply equipped engage addition, claimants are not to legal development necessary the factual or in some cases, or spot by errors made Id., administrative boards. 1319-1321. respect present process

With to whether the alleviated problems, these the court found that “neither the VA officials organizations providing themselves nor the service are array paid attorneys might full of services that make avail- assuming all that Id., at 1320. Even to claimants.” able way go willing personnel for each out of their were VA fully accept,6 point not the court would which claimant, any have the does not event VA that court found permit of time that investments the substantial resources independent necessary. testi- not seek The VA does independent mony might connection, or service establish disability. respect to medical examinations heavily reaching relied on the court its conclusions “complex presented problems it described as what depositions. inon also focused class of cases cases”—a expressly Though Court, these the District defined never disability apparently is slow include those which cases developing connected, find service difficult to and therefore exposure or to radiation associated with as the claims such by the cases identified as well as other chemicals, harmful judgment. involving deponents matters of medical difficult any opinion there the District Court is in the Nowhere percentage caseload of of the annual VA of what estimate precise comprise, more nor is there cases 800,000 these question description the 3 There is no but what the class. plaintiff plaintiffs widow asserted veteran’s named in the are declarations in addition there claims, and such asserting such who were 12 other claimants record from sug- record, however, in the contained The evidence claims. gests extremely small; of such claims is that the sum total roughly example, the BVA caseload consisted 2% of orange” “agent what evidence claims, “radiation” “the extent to which it is opinion questioned in its 6 The District Court the VA and claimants simulta the interests of both possible to serve per that “the VA there was a “conflict” and neously,” suggested ” purse. F. protect government pressure to might feel some sonnel *9 in the record- of such bias Supp., at n. 17. There is no indication willing accept to that administrative contrary. Nor are we quite subject bias. presumptively to such adjudicators percentage suggests in the' of such claims that the is there perhaps regional 1,000. little as 3 as was even offices less— representatives, respect the court to the service With unsatisfactory. Although representation again found the any admitting dedication,” “lack of not due to that this was legal heavy and the lack caseload court found that representatives prevent from training service combined to developed, researching adequately are not claim. Facts organization repre- practice for service and “it is standard merely page handwritten a one to two to submit sentatives Id., at 1322. brief.” organizations inability the VA and service on the

Based attorney range provide that a retained of services the full to appellees might, had demonstrated concluded that the court deprivation” as “high from the risk of erroneous then found that Govern- Ibid. The court administered. that it would suffer to demonstrate ment had “failed statutory Id., lifted.” . . . were fee limitation harm if the suggested only was the interest 1323. The Government necessary “paternalistic” the fee limitation assertion that portions of turn substantial claimants do not ensure that to lawyers. unscrupulous The court to over their benefits to confront suggested means” “less drastic that there were problem. this appellees

Finally, agreed there was a the court also violates fee limitation that the likelihood substantial this Court’s deci- relied on The court Amendment. First Assn., Illinois Bar v. in Mine Workers sions Virginia Virginia (1967), ex rel. Trainmen Railroad (1964), establishing principle “the Bar, State rights petition, association to Amendment that the First by organizations speech protect and individuals efforts legal representation or constituents of their obtain effective right “ade- Supp., This at 1324. themselves.” 589 F. “meaningful courts,” legal representation” quate access again infringed fee court was found, limitation— *10 justification by Id., the without substantial Government. 1325-1326. reiterating proof failure

After the Government’s of with likely doing respect arising away harms the the from with “preliminary injunction” limitation, fee the court entered a enjoining appellants “enforcing the from or at- Government any way provisions tempting to the of 38 C. enforce U. S. injunction §§3404-3405 Id., at . . . .” 1329. was not particular plaintiffs, it limited to the nor was limited to claims processed in District of the California, the Northern where sits. court

II proceeding sig- Before to the must deal a merits we question jurisdiction, nificant as to our one not raised appellees appeal in this Court. This was taken under 28 § grants jurisdiction which an U. S. C. this Court “from interlocutory judgment, any or order or final decree court holding Congress . . . Act of of the United States an uncon- any action stitutional civil ... to which United States any employee agencies, thereof, of its or officer or employee, party.” have inter- such officeror is We here an locutory in a civil to which an decree action officer party, only question United is a and the is whether States Congress Act of uncon- District Court’s decision “holds” an given problem, is that that course, stitutional. The opinion “preliminary of a court’s and order cast terms “high only injunction” likeli- is there the court states that appellees’ claims, and does hood success” on merits of provision specifically not fee limitation state unconstitutional. In McLucas v. do not on a slate.

We write clean similarly (1975), DeChamplain, en- this preliminary granted appeal an from an tertained order Congress injunction uncon- Act an and in the held jurisdiction holding under had that we stitutional. “exception” an to “the constitutes noted that that section we mandatory minimizing policy Court,” docket of this ... of we went on to state: deciding pre- might argued “It to issue that, only liminary injunction, the District Court made *11 appellee’s probability interlocutory of of determination finally the article on merits and did not ‘hold’ success the § By applies terms, its 1252 however, unconstitutional. interlocutory judgments, decrees, as well as final to previously has section orders, Court found the and this only properly below made when the court has invoked unconstitutionality, interlocutory of at determination necessary as that determination forms the if, here, least preliminary grant equitable predicate of denial to the Id., at 30. relief.” true think is McLucas. It is

We this case controlled actually its hold- in District stated that McLucas the ing unconstitutional, here that the was whereas statute merely a se- less But that is court’s statements are direct. any in this inasmuch as conclusions case; mantic difference stage subject injunction preliminary to reached University Camenisch, 390, Texas 451 U. S. v. revision, (1981), the court whether it make little difference 395 should conclusively unconstitutional, or that a was statute stated injunction granted merely likely, long so said it was appellate operation. enjoined This Court’s the statute’s niceties. See jurisdiction not turn on such semantic does Church, 393, 405 Brethren Grace also (1982) v. California (“§ though jurisdiction the lower provides 1252 even expressly statute unconstitu- federal did not declare a court .”). . . tional problem raised statute’s

Indeed, we note that any “holding” event be bit of a in red use of word § provided original this Court herring. 1252 form its “against jurisdiction appellate constitu- over decisions Congress,” Aug. tionality Act of any see Act § ch. Stat. 754, 2, 752;7 although this was language changed § when the was codified 1948, so that provision now from a grants jurisdiction decision Act of “holding Con- gress unconstitutional,” this change was effected without substantive comment, and absent such comment it is gener- ally held that a change codification is not intended during See Muniz v. alter the Hoffman, scope. statute’s 454, 467-474 fair Any of the decision at reading issue would it conclude “against constitutionality” §3404, and are loath read an we unheralded change to divest us of phraseology jurisdiction here.

Finally, acceptance this appellate jurisdiction case is in accord with the purpose Last statutory grant. Term, Edwards, Heckler (1984), S. 870 U. we discussed § 1252’s legislative noted history. We enacting Congress sought identify category of important decisions *12 — adverse to of an the Act constitutionality Congress of which decisions, because the or United States its was a agent party, had implications beyond the then before controversy the an court —and to provide expeditious means for cer ensuring tainty and in uniformity the enforcement such an of Act by direct over in establishing review such decisions this Id., at 879-883. Edwards Court. the teaches that decisions § for Congress targeted under 1252 those appeal were which involved the exercise of judicial power to the en impair forcement Act of an on Congress constitutional grounds, and that it was the constitutional question that Congress wished this Court to decide. As we McLucas, pointed out

7 24, 1937, 754, Aug. §2, 752, Act of ch. 50 Stat. provided: any “In proceeding any suit or court the United to which States the States, any thereof, agency any employee United or or thereof, officer or employee, party, as such officer or is a or in which United States has party, intervened and which against become the decision is any constitutionality Congress, appeal may Act directly be taken Supreme Court United States the United States other party. ...” impairment

§1252 contemplates that this can arise from just original provided interlocutory as the statute decrees, appeal “any proceedings.” from decisions Cf. Gold (1970) (28 § 471, stein v. 396 U. S. U. S. C. 1253 Cox, appeals preliminary injunctions direct from issued authorizes courts). single judge’s by three-judge A district interlocu tory grounds an Act of decision on constitutional Con gress Congress frustrates the will of should not be enforced just surely a final in the short run as decision §By Congress gave right effect. the Government appeal of immediate to this Court such situation so that only injunctions those district court which had been reviewed upheld this Court would continue to have such an swpra. injunction effect. at issue here Edwards, Cf. § precisely problem to which 1252was addressed, creates enjoins operation inasmuch as it of the fee limitation on grounds, country all constitutional across the and under injunction is Thus, circumstances. whether or not here “holding” unconstitutionality we believe we framed as jurisdiction have under 1252.

I—i n —I HH constitutionality Congress prop- Judging of an Act of “ duty erly gravest that this considered ‘the and most delicate Goldberg, upon perform,’” Rostker v. is called (1981) Blodgett (quoting Holden, S. U. (1927)(Holmes, J.)), analysis begin here and we our *13 customarily pay than we must to the with no less deference carefully coequal duly decision of a enacted and considered representative of our Government. Indeed one branch anything, might if that more deference is called for think, purposes question all has statute for relevant here; the years. 120 McCulloch v. on the books for over Cf. been (1819). Maryland, This deference to 316, 4 Wheat. 401-402 though judgment congressional be afforded even must 320 Congress that a statute has enacted effects a denial

claim is process guaranteed by procedural the Fifth due Amend- ofthe (1982); McClure, v. 456 U. S. 188 Mathews ment. Schweiker Eldridge, 424 at 349. think that the District S., v. U. We seriously constitutionality awry assessing went §3404. accepted by

Appellees’ claim, Court, first the District is statutory limitation, fee as it bears on the adminis- that the deprives rejected operation, a claimant or trative scheme liberty property, process recipient “life, without due by depriving represen- him 5, Arndt. law,” Const., U. S. by expert legal counsel.8 Our decisions establish that tation concept processes process” a re- “due flexible —that pro- respect quired to the termination of a the Clause with importance vary depending upon the interest will at- tected particular circumstances tached to the interest and under may supra, deprivation Mathews, occur. at which the See (1972). Morrissey Brewer, 471, In de- v. U. S. 334; fining necessary to ensure “fundamental fairness” require recognized that the does not that we have Clause depriva- procedures guard against an erroneous “the used to any possibility comprehensive preclude tion ... be so (1979), Mackey Montrym, 13 1, v. 443 U. S. error,” marginal gains emphasized that the from in addition we have procedural safeguard affording often an additional benefits, per applicants held that no less than The District Court them, already receiving “legitimate claim of entitlement” had sons they statutory qualifications. if met the court noted benefits held, although person held that a has never so this Court has this Court receipt. “property” interest in their continued receiving such benefits has Parker, Eldridge, Mathews (1985); See Atkins v. alleged one of the claimants here Since at least received, however, already being we must diminution of benefits process” “due under the circumstances includes the event decide whether light represented by employed counsel. of our decision on right to be infra, presently need not define what class would question, we process requested. to the be entitled *14 by providing

outweighed the societal cost of such a safe- guard. Mathews, 424 at 348.9 S., See U. general principles in reflected the test set in

These out purported to Mathews, which test the District Court follow, private requires and which a court to consider interest the risk of an erro- action, the official that will be affected through procedures deprivation of such interest neous proce- probable or substitute value of additional used, the government’s adhering safeguards, interest dural applying existing system. Id., at 335. this test we keep in in addition to the deference owed to Con- mind, must very process inquiry gress, that the nature of the due the fact particular proce- the fundamental fairness of a indicates that turn on the result obtained individual dure does not shaped by “procedural due rules are rather, case; truth-finding process applied risk of error inherent exceptions.” generality Id., the rare cases, not to the (1979). R., v. 612-613 see also Parham J. 344; which has been articulated interest, The Government congressional first en- the fee limitation was debates since during has this: that the War, the Civil been acted managed system administering in a benefits should be sufficiently way should be no need for that there informal attorney employment which to obtain benefits to of an the claimant would receive entitled, claimant so that was having entirety divide it with of the award without lawyer. Hall, 352-355 See United States pro- purpose a similar absolute This is reinforced organization repre- compensation any service on hibition 1267, 1276 Hearing,” 123 U. Pa. L. Rev. Friendly, “Some Kind of See (1975): expenditure procedural requirements entail the realized that “It should be resources, from an point that at some the benefit to individuals limited providing substantially outweighed by the cost of safeguard is additional likely found expense protecting those to be and that the protection, such deserving.” pockets of the probably come out of the undeserving will *15 3402(b)(1). Congress sentative. 38 U. S. C. While has recently proposals modify considered to the fee limitation respects, Report in high- some a Senate Committee in 1982 lighted body’s “any changes relating that concern that attorneys’ carefully fees be made so as not to induce un- necessary attorneys by retention of VA claimants and not disrupt unnecessarily very effective network of non- attorney signifi- resources that in has evolved the absence of attorney Rep. cant involvement in VA claims matters.” S. (1982). p. Although Report pro- No. 97-466, this same original fessed the Senate’s belief that the stated interest protecting unscrupulous lawyers veterans from was “no longer tenable,” the Senate nevertheless concluded that the exception fee limitation should with a limited remain in “protect being effect, order to claimants’ benefits” from unnecessarily lawyers.10 diverted to congressional

In the face of this commitment to the fee century, limitation for more than the District Court had only say respect governmental this to to the interest: government argued

“The has neither nor shown that lift- ing government any way, the fee limit would harm the 10 Justice Stevens’ quotes dissent liberally from this same Senate Report, -post, 365-366, Committee apparently intending suggest that the Committee determined that the fee longer justified. limitation was no quote context, is taken out of quite and as such it is misleading. The respect Report bill with to which the was provided issued would have for judicial the first time for limited review of end, BVA decisions. To this easing Committee determined that “some of the limitation on attor neys’ necessary fees” would be to allow pursue a claimant to an effective appeal the federal But proposed courts. bill retained the limita fee proceedings all up including tion VA to and denial a claim first by Report the BVA. In the Justice Ste quoted by sections of the not vens the Committee explained “protect the limitation was retained to benefits,” judicial claimant’s and because until contemplated review was there attorneys. Rep. 97-466, was “no need” for p. S. No. Finally, noting any it is worth proposed event the bill died in House Committee and thus was never enacted.

except paternalistic protector sup- as the of claimants’ posed paternalistic best interests. To the extent the role valid, there are less drastic means available to attorneys’ deplete ensure that fees do not veterans’ disability Supp., death or benefits.” 589 F. at 1323. It is not for the District Court or other federal court cavalierly dismissing to invalidate a federal statute so long-asserted congressional purpose. “paternalism” If is an insignificant Congress Government interest, then first went astray year in 1792, when its Act of March 23 of that it prohibited mortgage pension “sale, transfer or ... of the *16 [of a] . . . soldier . . . before the same shall become due.” Congress long 11, Ch. 16, Stat. 245. Acts of on the books, might similarly such as the Fair Labor Act, Standards be “paternalistic”; opined described as indeed, this Court once “[statutes limiting of the nature of that review, under grown intelligent may the hours which men labor to living, earn their are mere meddlesome interferences with rights of the individual . . . .” Lochner York, v. New day fortunately long gone, 198 U. 45, S. That is paternalism and with it the condemnation of rational aas legitimate legislative goal.

There can be little doubt that invalidation of the fee limita- seriously oft-repeated congressional tion would frustrate the purpose enacting Attorneys freely employ- for it. would be able claimants to benefits, veterans’ and the claimant up paying part as a would result end of the or award, its equivalent, attorney. only to an But this would not be the consequence striking down the fee limitation that would congressional plan. deleterious to the necessary Congress’ A concomitant of desire that a veteran representative making not need a to him in assist his claim system was that the should be as informal and nonadversarial possible. say complicated as This is not in- factual quiries may simple by expedient be rendered of informal- ity, surely Congress proceedings but desired that the be as regular possible.11 in- and nonadversarial informal quite proceedings lawyers would be into the troduction unlikely Describing prospective goal. this to further proceedings, probation lawyers we impact revocation of Gagnon (1973): Scarpelli, 787-788 said proceeding a revocation of counsel into “The introduction proceeding. If significantly of the the nature alter will parolee, probationer provided for counsel normally provide law- counsel; its own in turn will State by training disposition, yers, advocates and duty present by professional evi- all available bound positions arguments support of their clients’ dence and vigor evidence and views. all adverse to contest with hearing body . . become more itself. The role of the judge to the and less attuned trial, of a at a akin to that Certainly, the individual .... needs of rehabilitative and attor opinion in its that “both claimants Court stated The District system as adversarial. ...” system view that neys familiar with the VA conclusion, reaching this the District Supp., at 1321. 589 F. attorneys and two claimants. One two

referred to statements not take practice in but does attorneys admitted to California was familiarity with the fee limitation. His the VA because of claims before representative the VA certified before procedures acquired was as a VA during time as a law student. Ploughshares his appellee Swords *17 has in and attorney practice in Wisconsin was admitted to The second His 1980. Ploughshares since appellee Swords to been a staff member boards, but discharge primarily been before representation of veterans has rules VA with representation become familiar in course of this he has as “ad procedures they regarded stated that the VA practices. and Both experience, their own the basis of Two claimants testified on versarial.” “the VA other “very and the had been adversarial” one that the VA every ...” opposed me at turn. has support a find- to may sufficient such as this well be Anecdotal evidence particular that a parties private by judge jury litigation between ing pro- massive benefits deal with But when we fact did or did not exist. year per are decided 800,000 claims by Congress in provided which gram BVA, it is sim- appealed to offices, 36,000 claims are regional and by 58 that the entire conclusion permit that will ply not the sort of evidence regulations. governing contrary to its operated system is decisionmaking process prolonged, and the will be appointed counsel, ... a financial cost to the State—for judicial possibility longer review—will and the record, not be insubstantial.” similarly McDonnell,

We noted Wolff prison disciplinary proceed- (1974), that the use of counsel adversary “inevitably give proceedings ings a more would cast. . . .” thoughtful

Knowledgeable have made the observers point language: same other perform functions can often useful sure,

“To be counsel justice; or other instances of mass even welfare cases ignored by they may bring facts or unknown to out satisfactory compro- help to work out authorities, or only the coin. Under our But this is one side of mises. adversary system not to make sure the role of counsel is advance his client’s cause the truth is ascertained but to professional by any the limits of ethical means. Within only delay sowing propriety, causing not confusion duty. appearance right may but be his are his likely government to lead the for the citizen is counsel government’s provide to cause the one—or at least representative The result to act like one. leading might have a short conference

turn what been controversy. protracted result into a an amicable concerning problems confrontation counsel “These not inevitably bring up question would we whether system adversary in certain to abandon the do better experiment justice. such . . . While of mass areas adversary sharp our tradition be a break would process, under serious come has tradition, which distinguished thoughtful and challenge general from a many in which judge, a situation not formulated was *18 provided hearings each month.” must be thousands Friendly, Hearing,” Kind of L. “Some U. Pa. Rev. 1287-1290 apart Congress’ princi- Thus, even from the frustration of wanting pal goal get entirety the veteran to award, the destruction of the fee limitation would bid fair to complicate proceeding Congress keep which wished to as simple possible. scarcely open It is to doubt that if claim- permitted compensated attorneys day ants to retain were might attorney might come when it could be said that an necessary present properly system indeed be a claim in a adversary complex by very rendered more presence and more lawyer representation. only step It is a small beyond that to the situation in which the claimant who has a factually simple obviously deserving claim nonethe- impelled attorney simply less feel to retain an because so many attorneys. other claimants retain And this additional complexity undoubtedly engender greater will administrative being money costs, with the end result that less Government its reaches intended beneficiaries. accordingly

We conclude that under the Mathews v. Eldridge analysis great weight must be accorded to the Gov- flexibility ap- ernment interest at stake here. The of our proach process part in due cases is intended to allow room dispute respect for other forms of resolution; with to the indi- legislatures vidual interests at stake here, are to be allowed leeway processes considerable to formulate such without being rigid pro- forced to conform to a constitutional code of R., cedural necessities. See Parham v. S., J. U. at extraordinarily strong showing n. 16. It would take an probability present system prob- of error under the the—and ability presence attorneys sharply that would diminish possibility holding warrant a that the fee limitation —to denies claimants due of law. We have no hesitation deciding showing that no such was made out on the record before the District Court. *19 by opinion, in this the statistics set out earlier

As indicated annually processed by 800,000 claims more than half of regional An awards at the level. the VA result benefit request claims succeed on for reconsider- 10,000 additional regional level, not, 36,000 and of those that do ation at the approximately appealed 16%suc- these, to the BVA. Of simply possible It is not to determine before the BVA. ceed plain- named of the claims of the on this record whether parties the action, who are not tiffs, or of other declarants by rejected regional wrongfully at the level were quantify depriva- possible it the “erroneous BVA, nor is general rejected among claimants. If one class of tions” regards the “correct” result in the decision of the BVA as regional against every it follows that the determination case, “wrong” in the 16% of the cases that are the claimant is by reversed the Board. quantifying

Passing problems with the likelihood of deprivation, Mathews however, under we must an erroneous proposed procedure additional also ask what value reducing fortunate such error. this case we are have directly question, which that bear on this to have statistics These un- the District Court. statistics were addressed challenged rates chronicle the success before statistics type representation depending of the claim- on the BVA following figures taken from ant, and are summarized App. record. 568. the Board Rates Before Success Ultimate Representation Appeals Mode of Veterans’ Legion 16.2% American . 16.8% Red Cross . American . 16.6% American Veterans Disabled Foreign 16.7% Wars . Veterans of nonattorney . 15.8% Other representation 15.2% . No Attorney/Agent 18.3% . opined The District Court that these statistics were not helpful, lawyers in its view because were retained so infre- body lawyers quently expertise that no with an in VA lawyers practice developed, represented had who veter- regularly might lawyers represented ans do better than who only pro sporadic them bono on a basis. The District Court lawyers felt that a more reliable index of the effect would proceedings study showing *20 have on the was a statistical suc- representatives appeals discharge in cess of various to review in the boards uniformed services—statistics that showed a significantly higher repre- success rate for those claimants by lawyers compared sented as to those claimants not so represented. analysis totally

We think the District Court’s of this issue unconvincing, quite lacking ought and in the deference which by any evaluating to federal in be shown court the constitu- tionality Congress. of an Act of We have the most serious competent lawyer taking doubt whether a a veteran’s case on pro give bono basis would less than his effort, best and we why experience developing see no reason in facts as to causa- tion the numerous other areas of the law where it is rele- readily proceedings vant would not be transferable to before lawyers’ the VA. Nor do we think that success rates in — proceedings military upgrade discharges before boards to proceedings which are not even conducted VA, before the military but before boards of the uniformed services—are to preferred be to the BVA statistics which show reliable suc- by representation very type proceeding cess mode of litigation to which the is devoted. apparently independ-

The District concluded, Court also (1) ently analysis of its ill-founded of the claim statistics, that processes procedurally, factually, legally the VA (2) complex, system presently that the VA does not work designed, particularly representation terms of the by personnel representatives, afforded VA and service representatives perform these are “unable to all of might performed by the services which be a claimant’s own attorney.” Supp., Unfortunately paid 589 F. 1322. “complexity” entirely findings on are based almost court’s administering description plan benefits in the on a “complex” together to references cases involv- abstract, post-traumatic agent orange, ing exposure radiation or to attempt syndrome. The court did not state even stress procedural complex- approximately often or substantive how in the case, or even unusual ities arise the run-of-the-mine permit procedures do cited the court The VA case. respond by failing prejudice rights in a his claimant agency timely initial claim, notice of denial of an manner to an nothing possibility despite in the District there is this but procedural require- indicating opinion these Court’s part of a forfeiture on led to an unintended ments have procedures, diligent claimant. the face On does not seem burdensome: the District Court described ample judgment year time to in the most one would response. requesting respond to notice a claimant to allow required submission the to read addition, the VA represent- light and service claimant, to the *21 most favorable steps procedural are to see that various atives are available representative complied that the service with. It hypothesized, provide all the as the District Court cannot, lawyer in the but there is no evidence could, services that they provide time advice about cannot or do not record that limits. similarly opinion short on definition

The District Court’s “complex” quantification If under- cases. this term be or injury asserts in which the claimant to include all cases stood only approxi- agent orange, exposure to radiation from mately regional at the level 2% in of the claims 1,000 appeals it such claims. Nor does to the involve BVA by any complex appear fair defi- claims would be that all such orange agent cases and 25% of all of that term: least nition disposed example, are of be- cases, for of the radiation 30% disability. reveals no What examination cause the medical great appear that the in record indicates evidence does majority simple questions fact, of claims involve or medical questions relating degree disability; to the of a claimant’s only ques- record also indicates that the rare case turns on a undoubtedly “complex” pending tion of law. There are cases they undoubtedly tiny are VA, before fraction of pending. opinion the total cases Neither the District Court’s nor matter the record to which our attention has been directed tells us more than this. likely

The District Court’s treatment of the usefulness of attorneys plane quantify is on the same with its efforts to present system. the likelihood of error under the The court opinion lawyers provide states several times in its could presently more services than claimants receive—a fact which may freely suggest be conceded—but does not how the avail- ability of these services would reduce the likelihood of error Simple questions in the run-of-the-mine case. factual capable of resolution context, nonadversarial and it is crystal why lawyers less than clear must be available to iden- tify possible judgment. errors in medical Cf. Parham v. availability particular R., 442 S., J. U. at 609-612. The lawyers’ “complex” might services in so-called cases be more preventing of a factor error in such cases, but on this simply record we do not know those how cases should be percentage defined or what of all of the cases before the VA they up. showing make if Even the the District Court had appellees been much more favorable, still would confront the posed by principle constitutional hurdle enunciated process cases such as Mathews to the effect that a must be judged by generality applies, of cases to which it large majority therefore a which is sufficient for the group aof of claims is constitutional definition sufficient appellees for all of them. But here have failed to make the *22 very showing necessary.12 difficult factual operation understanding Our of the claims is further findings bolstered of the Senate Committee alluded to earlier. As supra, 322, noted inquiry that Committee conducted an extensive into

Reliable evidence before the District Court showed that represented by lawyers slightly claimants have a better suc- represented by cess rate before the BVA than do claimants representatives, slightly service and that both have a better represented success rate than claimants who were not at all. complex Evidence also showed that there issues of comparatively causation few of the hundreds of thousands adequate showing of cases VA, before the but there is no availability lawyers of the effect the would have on the proper disposition of these cases. Neither the difference complexity success rate nor the existence of some cases is right sufficient to warrant a conclusionthat the to retain and compensate attorney necessary an in VA cases is a element of procedural under fairness the Fifth Amendment. process in proposed connection with several pro- bills that would have judicial decisions,

vided for review of BVA and also would have withdrawn proceedings occurring the fee limitation for after the first denial BVA, retaining while proceedings prior the limitation for to that time. Report accompanying The Committee a 1982 bill noted its belief that the process presently operates informally nonadversarially, claims there was no evidence that most claimants were not satisfied "withthe VA’s claims, general attorneys resolution of their that there inwas “no need” for applying “relatively uncomplicated pro- inasmuch as for benefits was a cedure,” organizations and that “high quality service afforded a (1982). representation.” 97-466, 25, Rep. pp. No. Each S. 49-50 bill Senate, unanimously passed Committee, leaving but died in House system (1982); present operation. 349, Cong., 2d See S. 97th Sess (1983). 636, Cong., 98th S. 1st Sess. essentially Congress findings When makes on factual issues such as these, findings great deference, those are of course entitled to a deal of Congress equipped inasmuch as institution better to amass and evalu- bearing of data on such an issue. ate the vast amounts See Rostker v. (1981); Goldberg, Bradley, 72-73 Vance v. (1979); McClung, 111-112 Katzenbach v. 379 U. S. 294 Because we do not believe the record the District Court contradicted these find- however, them, ings, rely we need not on or determine what deference congressional record; must be afforded on this we mention the Committee’s findings only understanding they entirely because our consistent with developed of the record in the District Court. *23 only previous held cases, course, in not have of

We attorney, permits also of an but retention the Constitution provide requires the it the to on occasion Government attorney. affords of an The Sixth Amendment services proceedings, by in representation in all and counsel criminal (1963), Wainwright, U. as v. S. cases such Gideon (1972), Argersinger Hamlin, have we v. and provision requires prosecuting an indi- a State that this held legal representation gent for his No him defense. to afford proceedings gainsay that criminal are adversarial would one only applies to Amendment in and of course Sixth nature, proceedings. such (1973), Gagnon Scarpelli, 411 U. v. S.

In cases such as identifying legal ques- can that counsel aid observed we charged presenting arguments, that one tions and right probation have to counsel because violation liberty also after involved. have concluded interest We the weighing right appointed

the Mathews factors that involving in a the threatened termination counsel case par- rights depends upon parental of each the circumstances Department Lassiter v. Social Services case, ticular see (1981), County, S. three of Durham 452 U. while of dissenters required balancing appointment thought the same joined Id., J., in all 35 (Blackmun, counsel such cases. dissenting). JJ., Marshall, Brennan only protected by Due where, here, But interest receipt property interest the continued Process Clause is a ter- which interest is conferred benefits, of Government nonadversary proceeding, precedents in a these minated Goldberg rely only tangential Appellees on relevance. (1970), Kelly, held that 397 U. S. 254 which possible recipient subject of benefits termination welfare attorney. represented The Court entitled was present help issues, that “counsel can delineate said orderly manner, cross- conduct in an the factual contentions safeguard generally the interests examination, and defining recipient.” But Id., at 270-271.

required crucial factor that “the also observed the Court pending resolution of aid is that termination this context... *24 eligible may deprive controversy eligibility an re- over of a very by cipient he waits. . . . to live while means which daily finding upon means for sub- concentrate His need to ability adversely to seek redress his in affects sistence, turn, (emphasis bureaucracy.” in Id., at 264 from the welfare original). proceedings, in VA the benefits at stake think that

We granted akin to need, are more on the basis of which are not they Security in Mathews than benefits involved the Social recipients upon payments in which the to the welfare daily Goldberg depended this Just as for their subsistence. dispositive in in the Court’s determina- Mathews factor was hearing required prior evidentiary to a tem- was no tion that porary deprivation so we S., 342-343, U. at benefits, right employ counsel. of the to here determinative think it is policy appears on the been no stated to have Indeed, there applicant Goldbergagainst permitting part in York of New rep- attorney up who had check with an his welfare to divide simply procedures proceeding; there him the resented recipient personal appearance or with- prohibited with of the compen- regardless was of whether counsel out counsel reaching on relied the Court its conclusion sated, by represented allowing recipients regulations agency to be at 342-343. S., 424 U. some circumstances. counsel under prior distinguishable decisions from our further This case is operate designed adver- to here is not because respond sarially. needed counsel well While trial-type adversary in a opposing or other forms counsel adversary appears, proceeding, no such where as here provided recipient with substitute a claimant addition representative, a decision- competent safeguards as a such significant claimant, and duty to aid it is maker whose proof, burden respect claimant’s with concessions considerably have diminished. We counsel is the need for holding expressed in other cases that coun- similar concerns approxi- proceedings required that do not in various is not sel nonadversary. more informal and trials, but instead are mate Lopez, R., 442 v. S., 608-609; v. U. at Goss Parham J. See (1975); McDonnell, S., U. Wolff 570. dealing constitutionally re- none of our cases Thus requires representation quired counsel the conclusion Especially light the District Court. reached the evidence adduced before stake, interests at Government success rates claims handled with disparity the District Court as to lawyers great as to war- shows no such or without congressional that the fee limitation under rant the inference Due Process Clause of the here violates the consideration *25 pointed to What evidence we have been Fifth Amendment. regarding complex cases falls far short of the in the record upsetting Congress’judgment that kind which would warrant manner in which it wishes claims for veterans’ this is the adjudicated. McClure, S. Schweiker v. U. benefits (1982); Mathews, at 349. The District S., U. holding otherwise. abused its discretion

hH < suggestion Finally, appellees that the fee we must address rights. Appellees First Amendment limitation violates their Bar as Mine v. Illinois State claim that cases such Workers (1967), Trainmen Assn., and Railroad v. Vir- 389 U. S. (1964), Virginia ginia Bar, establish ex rel. State organizations right “meaning- and a to ensure for individuals members, themselves or their ful access to courts” for holding right this Court was correct that that District There are numerous con- violated the fee limitation. was extending ceptual the cited cases to cover the difficulties with rights example, cases involved the for those here; situation union members to retain or recommend counsel unions and proceedings appear, for where counsel were allowed to primarily the First Amendment interest at stake was right collectively good. to associate for the common con- primar- here the First trast, asserted Amendment interest is ily prosecuting the individual claim, interest best and the applies challenged limitation across-the-board to individuals organizations alike. passing problems, appellees’ But those First Amendment arguments, really inseparable are base, from their due process they claims. thrust is that have been denied “meaningful present access to courts” to their claims. This must be based in some claimants, notion that VA who presently speak court, allowed and to have someone speak right pay have a them, also First Amendment surrogate beyond speaker;13 questionable proposi their appellees’ argument recog however, tion, even as framed nizes that such a First Amendment interest would attach only “meaningful” in the absence of alternative. The fore analysis going appellees’ process due claim focused on substantially question the same allows —whether meaningful presentation claimant make a we con —and appellees opportunity cluded that had such an under the present process, significant claims and that Government “speech” appellees favored limitation interests on appellees’ attack. Under those circumstances First Amend independent significance. ment claim has no The decision of accordingly the District Court is

Reversed. 13 FEC National Conservative quotes our v. The dissent from decision Committee, post, Political Action 480, (1985), 364, 13, 470 U. n. S. at analysis if in that answers the raised One the case issues here. would proposition another “so [it] need[s] think that obvious that seldom to be 368, post, explicitly,” 16, analysis stated at n. is that the constitutional political speech, regulation that core such regulation of restricts as the at FEC, analysis issue in will differ the of a from constitutional restriction on proceedings. claimant in the available resources of a Government benefit O’Connor, with whom Justice joins, Blackmun Justice concurring. I and its because judgment agree

I the Court’s join opinion under 28 U. jurisdiction has S. C. that this Court appellate abused its discretion in § 1252 the District Court enforce- injunction against a nationwide issuing preliminary 3404(c). I § fee limitation in 38 U. S. C. also ment of the $10 us is insufficient to evaluate the that the record before agree I or write individuals identifiable any groups. claims of claims remain on remand. to note that such open separately § under 1252 does not appellate jurisdiction of grant from depart license to established standards the Court give Court, courts, This like other appellate of review. appellate re- the “abuse of discretion” standard on applied has always g., e. Doran v. Salem See, injunction. view a preliminary Inn, Inc., (1975). 931-932 As the Court ex- 922, § under injunction of a appeal preliminary direct plains, rare case such as this where district is appropriate in practical issued a nationwide injunction court has circumstances, such invalidates a federal law. effect affirming means remov- expeditious § “assure[s] on Federal administration the restraint Government’s ing Edwards, .” Heckler . . . law id., (§ 15 and 16 1252 is closely also nn. See injunctions preventing tied to the need to resolve speedily of Acts of to the Congress). Contrary sug- the effectuation post, at 355, fully the Court of Justice gestion Brennan, prelimi- of 1252 purpose vacating effectuates which the District Court issued. nary improperly injunction merits, District did not reach cloud Since the that remains $10 fee limitation constitutionality on no than greater prior judg- decision is exists today’s after a statute’s proceeding questioning on the merits in any ment constitutionality. where there is injunction only appropriate

A preliminary on the merits. Doran likelihood success a demonstrated *27 supra. justify Inn, Inc., order to the sort of v. Salem categorical afforded here, the District Court the fee relief deprivation rights pose a risk of erroneous must limitation injunctive generality reached the relief. of cases Eldridge, 319, 424 U. S. Given Mathews v. Cf. simplified typical claim and the Veterans’ the nature of procedures, the record falls short estab- Administration invalidity. sweeping lishing facial of such likelihood Ante, 329-330. at also “is . . . short on observes, the record

As the Court might ‘complex’ quantification which cases” definition or pro- process respect “group” to which with constitute a majority.” large “[insufficient Ante, 329, for the is vided (1979). The “de- R., Parham v. J. 330; var[y]” regard [may] due what termination of important respects group differs” whose “situation to a typical R., Parham v. claimant. J. benefit veterans’ from Appellees’ supra, however, are not framed claims, at 617. findings re- court’s the lower action nor were as a class complex narrowly class of reach some discrete drawn to lief posture, present no sound case affords this In its cases. complex carving claims that a subclass out basis beyond capabili- expert require assistance nature their “‘[a] representatives veterans to assure service ties of Boddie v. hearing appropriate of the case.’” to the nature (1971), quoting Mullane Connecticut, 371, 378 Co., S. Trust 339 U. Hanover Bank & v. Central (1950). Ante, at 329. understanding my Court, that the

Nevertheless, it is injunction, preliminary not reversing does the lower court’s applied” appellees’ individual “as merits of the determine challenged appellees complaint that indicates claims. applied them, and as on its face both fee limitation rehearing they ruling sought entitled to were attorney. App. I processed of an assistance without claims alleges example, Appellee Maxwell, for Albert 39-42. *28 notify representative him and failed to retired his service dropped records indi- his case. Mr. Maxwell’s that he had the after effects of malaria con- that he suffers from cate multiple march as well as from in the Bataan death tracted exposure allegedly myelomas to radiation when a result prisoner atomic of war detailed to remove debris he was a Japan. that his claims Id., at 45-89. Maxwell contends expert developing of lack of assistance have failed because facts of his case. As another ex- the medical and historical ample, claims her husband’s can- Wilson, Doris widow who exposure testing, alleges from to atomic cer was contracted representative right hearing waived her her service represent unprepared to her. She contends he was because claim failed because she was unable without assistance to her Id., and medical information. at 217. obtain service records are difficult to evaluate on The merits of these claims depositions developed pre- affidavits and at the the record of liminary injunction stage.

Though Court concludes expert representation “per se is not unconstitu- denial availability representatives given of service tional,” and the Veterans’ Administration boards’ assist the veteran procedures, “[o]n emphasis remand, on nonadversarial to and should consider District Court is free individual procedures] [the did not meet the standards we claims that opinion.” supra, R., in this Parham v. J. at have described 616-617. with whom Justice Marshall Brennan, joins,

Justice dissenting. today mandatory juris- concludes that it has

The Court directly pursuant to 28 U. S. C. to review the diction entry preliminary injunction restraining of a District Court’s enforcing provisions from of 38 U. S. C. the Government §§3404 appel- pending a full trial on the merits of lees’ contention that those statutes violate the First and

Fifth Ante, Amendments. at 316-319.1 The then proceeds constitutionality to sustain the of those statutes ground on the that “the allows a claimant to make a meaningful presentation” on of his behalf claim for service- disability connected death and benefits even without the attorney. having assistance of his Ante, 335. The Court my strong I reached this feel issue, constrained to note dis- agreement eloquently on the merits for the reasons set forth join. dissent, which I Justice Stevens’ separately,

I write I however, because believe Court’s *29 appellate jurisdiction exercise of in this case is not authorized §by interlocutory 1252. Because the District Court’s order granting preliminary injunction a did not constitute a deci- striking challenged sion down the statutes on constitutional grounds, appellate propriety scope review of the and preliminary injunction initially instead rests in the Court Appeals pursuant of for the Ninth Circuit to 28 U. S. C. §1292(a)(1), from which review in this Court could then sought through petition a for a writ of certiorari. The contrary wholly to the Court’s decision inconsistent with § purpose history principles and of 1252,well-established respecting interlocutory preliminary injunctions, review of and common sense.

I §§3404 3405 District Court did not hold that applied. unconstitutional either on their face or as Instead, purposes considering appellees’ pre- motion for a preliminary injunction pursuant trial to Rule 65 of the Fed- appellees it found Procedure, eral Rules of Civil had 1 prohibits § pay Title 38 a veteran or U. S. C. his survivors from ing attorney more in attempting $10 than to an for assistance to obtain disability benefits, provides service-connected death and any attorney who more than in these “shall be $10 receives circumstances imprisoned fined not more than than two $500 or at hard labor for not more years, or both.” prevailing” high on the merits likelihood of

“demonstrated challenges. First Amendment of their due (ND 1984); Supp. 1307, id., see also 1302, Cal. F. irrepa- weighed potential for The court then 1329. light hardships injury of this likeli- and the balance rable appellees had “shown the It found that hood of success. injunctive injury necessary irreparable relief” and to obtain hardship weighs heavily in also that “the balance of concluded Accordingly, [their] court entered Id., favor.” at 1329.2 injunction restraining preliminary enforcement of the a broad challenged “pending the merits of the a trial on statutes was advised at Ibid. As this Court above-entitled action.” contemplate argument, appellees further extensive oral absolutely no government that “the has submitted The court noted hardship entry potential from the evidentiary support” for its claim of Appellees, Supp., at n. 23. on the preliminary relief. 589 F. hardships support hand, alleged pointed had to a number of other (1) who would be “a substantial number of SCDDC Claimants their motion: lawyer during pendency litigation of this proceed forced to without (2) claims”; “the fee limitation exacts go to lose or abandon their would on ability petition A. heavy the V. for a redress toll terms of Claimants’ A., rights speech and fundamental of free grievances, access to the V. *30 association,” Amend being well established that the “loss of First and it (3) irreparable injury”; and freedoms, temporarily, constitutes ment even “many veterans, particularly whose cancer claims arise out and those Maxwell, Cordray Agent Orange exposure and Ware- radiation or such as veterans, hime, instant may prior trial For these die on merits. Indeed, the intended only opportunity is their for redress. one of motion action herein, this Targett, died of brain cancer before plaintiffs Charles Authorities be filed.” Plaintiffs’ Memorandum of Points could even C-83-1861 Preliminary Injunction, No. Support Application for a added) 1983) (Preliminary (ND 14, MHP, (emphasis pp. 17-19 Cal. Nov. Memorandum). P. of Gordon E, also Exhibit Declaration Injunction See (“Based 3, Preliminary Injunction ¶ Memorandum attached to Erspamer Maxwell, Cordray of Messrs. my knowledge of the medical conditions upon records, believe, I medical Warehime, my acquaintance with their more of them will one or possibility regrettably, there is a substantial trial”). through not survive

341 discovery underlying and a full trial on the First and Fifth Arg. Amendment issues. Tr. of Oral 31-32.3 Contrary to the Court’s assertion, there is much more than finding a “semantic difference” between a of likelihood of support preliminary success sufficient to relief and a final holding today, on the merits. Ante, at 317. Until the Court always recognized findings has that district court on “likeli hood of success on the merits” are not “tantamount to deci underlying “significantly sions on the merits”; the two are University different.” Texas v. Camenisch, U. S. (1981). Preliminary injunctions granted 390, 393-394 are on through the basis of a broad “balance of factors” determined “procedures that are less formal and evidence that is less complete parties than a trial on merits,” and the opportunity present accorded neither “a full their cases judicial nor ... a final decision based on the actual merits of added). controversy.” (emphasis Id., at 395-396 District granting preliminary injunctions may court orders therefore only ap be reviewed on an abuse-of-discretion standard: an pellate prelimi court conclude that the district court’s nary sweeps broadly, improper relief too or is based on an balancing hardships, or even that the likelihood of success generally has been overdrawn. See Inn, Doran v. Salem (1975); Inc., 922, U. S. 931-932 Chote, Brown v. But under the abuse-of-discretion appellate obviously may standard, courts no view “intimate controversy. underlying as to the ultimate merits” of the supra, Inn, Doran Chote, v. Salem Brown v. Inc., at 934; supra, particularly at 457.4 For several true reasons, this is observed, As argument [before court] the District Court oral “[a]t attorneys plaintiffs agreed for both that this was a motion and defendants solely preliminary permanent injunctive injunctive and not for relief Supp., relief.” 589 F. n. 5. Corrick, (1936); United States Alabama generally 298 U. S. 435 See *31 States, Fuel Gas Co. v. Public United United Serv (1929); 279 U. S. 229 “grave, far-reaching questions” pre where constitutional are developed preliminary-injunction sented: the records cases “simply insufficient” to allow a final decision on the mer litigants matter of fairness the its; as a are entitled to a full evidentiary presentation reached; before final decision is questions disputed and where of constitutional law turn on initially by such decisions must be rendered fact,5 district supra, Chote, court factfinder. Brown v. at 457. empower directly police

Section 1252does not this Court preliminary-injunctive in the district In- courts. “prompt it enacted to ensure stead, was determination disputed questions the court of last resort of of the constitu- tionality Congress.”6 of acts of Whether one relies on Virginia, (1929); ice Comm’n West 278 U. S. 322 R. Robertson & of Kirkham, Supreme 196, §§ F. of the Jurisdiction Court of the United States (1951). 208, 217 process balancing inquiry As in the due conducted the District Court (1976). pursuant Eldridge, in this case to Mathews v. 424 U. S. 319 (1937) added). 212, Rep. Cong., Sess., 2 (emphasis 6 H.R. No. 75th 1st Rep. Cong., (1937); Rep. See also H. R. Conf. No. 75th 1st Sess. S. Cong., during No. 75th 1st Sess. Remarks floor debate re provide mandatory inforce the conclusion that 1252 was intended to Supreme only underlying where Court review constitutional issue was dispositive See, properly presented g., Cong. resolution. e. Rec. Sumners) (1937) (remarks Rep. (provision appeal of would enable an “directly Supreme question to the Court from an adverse decision on the (remarks Brewster) id., constitutionality”); Rep. (provi at 3256 of delays designed sion to “obviate in our courts so far as determination (remarks questions concerned”); id., of constitutional is at 3260-3261 Sumners) (case up Rep. question constitutionality”; “would come on the raised, question constitutionality Congress of an act of “[w]hen question, judgment it and it is a serious is the of the members of the com presented question ought Supreme just mittee that that to be to the Court (remarks id., properly”); it quickly as can be carried there at 3267 McFarlane) (provision “expedite Rep. testing would of the constitution (remarks Sumners) (“where id., ality Congress”); Rep. at 3272 of acts of constitutionality question, . . . the decision is adverse to the of the act in Government, event, may appeal directly Supreme in such to the expedite question”). in order to the determination of the constitutional Fisher, Supreme See also Frankfurter & Business of the Court at the *32 language permitting appeal the codified a direct from a — “holding Congress lower-court decision an Act of unconstitu- original language permit- tional”7—or on the of the statute — ting appeal against a direct where “the decision is the con- stitutionality any Congress”8 Act of is obvious that —it Terms, 1936, (1938) 577, October 51 Harv. L. Rev. 616-617 (the legislation § “essence” of the now codified as 1252 was to ensure speedy “a constitutionality test” of the of a by promptly federal statute Court”). “securing the final Supreme word from the § provides Title 28 U. S. C. 1252 in full:

“Any party may appeal Supreme to the interlocutory Court from an or judgment, final any States, decree or order of court of the United United States District Zone, Court for the District of the Canal the District Court of Guam and the Virgin any District Court of the Islands and court of Rico, holding record of Puerto an Act Congress any unconstitutional in action, suit, civil proceeding or to which any the United States or of its agencies, any employee thereof, or officer employee, or as such officer or is party. party “A appeal who has received notice of under this section shall take any subsequent appeal appeal Supreme or cross appeals All Court. appeals or cross prior taken to other courts to such notice shall be treated directly Supreme as taken to the Court.” 1937, 2, Judiciary § provided Act of 50 Stat. in full: any “In proceeding any suit or court of the United States to which the States, any thereof, agency any thereof, United or or employee officer or employee, party, as such officer or is a inor which the United States has party, intervened and against become a and which the decision is constitutionality any Congress, appeal Act of may directly be taken Supreme Court of the any United States the United or States other party proceeding upon application to such suit or therefor or notice thereof thirty days entry within interlocutory judgment, after the of a final or decree, order; taken, appeal any or and in the event that appeal such is cross-appeal by any party proceeding or to the suit or previously, taken sixty days appeal section, taken within after notice of an under this shall directly be or be Supreme also treated as taken to the Court of the United appeal section, States. the event that an is taken under this the record up Supreme shall be made and the case docketed in the Court of the United sixty days appeal allowed, States within from the time such is under such may prescribed by proper Appeals rules as courts. under this sec- Supreme tion shall be heard the United States at the earli- possible precedence est time and shall take over all other matters not of a contemplates fully § consummated lower-court deci- carry unconstitutionality so that this Court out sion of rendering prompt dispositive statutory purpose of constitutionality respecting of the chal- determination pursuant lenged legislation. to 1252 Jurisdiction accord- only ingly proper of the decision below where “the basis *33 Congress unconstitutional,” Act was that the of was fact (1960) (emphasis 17, S. 20 Raines, v. 362 U. United States added)9 simply equate with “in does not “likelihood” —and merely has that district court concluded fact.” Where a unconstitutionality sup- to of sufficient is a “likelihood” there § underlying purpose port temporary cannot be relief, 1252’s (if precedent) cannot Court faithful to fulfilled because this underlying constitutional “ultimate merits” of resolve the Inn, S., 422 Brown Inc., 934; U. at Doran v. Salem issue. all the could do S., Instead, 411 U. at 457. Court Chote, v. prelimi- scope the nature or of to consider whether would be perhaps nary discretion, to abuses of relief constituted respecting disagree “likelihood” district court with the my opinion, ultimately prevail. appellees would that the injunctive relating supervision questions of to these process § properly in 1252 are left in are not subsumed appeals. of instance to the courts the first § explicitly argues, that 1252 however, because The Court interlocutory grants jurisdiction or to this Court “from surely Congress unconstitutionality, judgment” in final of injunctions granted preliminary on “likeli tended to include scope Ante, of 1252. at 316- hood success” within of argument by noting The Court reinforces this 317, 318-319. derogation of shall not be construed be like This section character. Supreme of the United States under appeal to the right of direct provisions of law.” existing 9 Edwards, 465 U. McLucas v. 870, (1984); See also Heckler v. S. States v. Christian United (1975); DeChamplain, 30-31 (1972) Ministry, Inc., (per 563-566 National 404 U. S. Echoes Rhodes, Garment (1947); curiam); Fleming 100, 103-104 v. Co., 243, 249 Donnelly U. Garment S. Workers interlocutory all dispositive decisions, even if cast in subject entry judg terms, “are to revision” before of final wholly argument unpersuasive. 317. This Ante, ment. body large precedent applying As demonstrated §§ 1292(a), U. S. C. 1291and is a substantial there difference interlocutory between that are “tentative, decisions informal incomplete”10 practical purposes or and those that for all “conclusively disputed question.”11 determine Interlocu tory falling category may, decisions within the latter in a immediately appealed set circumstances, small because they represent “fully on consummated decisions” the matter question capable being disposi- that are reviewed and tively every fact”13 affirmed reversed.12 “bare theoretically “subject order short a final decree is to re opening judge” at the discretion the district is insufficient preclude Instead, review these circumstances.14 inter locutory §§ appeals appeals pursuant to the courts of 1292(a) proper and disputed when no further consideration of the *34 contemplated by is

issue the district court and practical suppose” when, matter, as a there is “no basis to anything that the resolution is than definite.15 less disputed open, Where the “remains decision unfinished or inconclusive,” on it is hand, the other well established that 1292(a) §§1291 under be no “there intrusion appeal” of the unresolved issue.16 The reasons are manifest. appellate If court an inconclu- addressed the issue such 10 (1949). Corp., Cohen Industrial Loan 541, v. 337 U. S. 546 Beneficial 11 (1978). Livesay, Coopers Lybrand & 463, v. S. 437 U. 468 12 States, (1977). Abney 651, v. United 659 431 U. S. Miller, Wright, Cooper, C. A. E. 13 15 & Federal Practice and Procedure (1976) §3911, p. Miller, Cooper). (Wright, 470 & Hospital Mercury Corp., 14 Moses H. Memorial Cone Construction v. (1983). 1, 12 460 U. S. 15 Id., Firestone Risjord, Tire & Rubber Co. v. generally at 13. See 449 MacDonald, 368, United (1981); 850, States U. v. 435 U. S. 854-855 S. Jacquelin, Bisen v. Carlisle & (1978); 156, Corp., Cohen v. Industrial Loan S., at 546. U. Beneficial advisory opinion posture, render an it either would sive binding binding intended, if were effect effect or, had no pass usurp authority the district court on would “Appeal gives upper court a in the instance. issue first power not intervention.”17 review, one of elementary applies distinction with direct force

This § pursuant appeals a district court issues to 1252.18 Where fully interlocutory deter- order based on consummated an appeal unconstitutional, is mination that a federal statute question proper can authorita- because the constitutional Fleming tively dispatch. Rhodes, Thus in be decided with (1947), pre- District had denied S. 331 U. liminary ground enjoining on the the eviction of tenants relief prohibiting evictions uncon- statute was federal DeChamplain, 421 in McLucas v. And stitutional. (1975), for the District of Columbia

26-27 the District Court enjoined preliminarily of a the enforcement statute had Appeals for on the Court of the District reliance a decision unconstitutional— that the statute was of Columbia Circuit “binding on District decision,” noted, we that was “a case there basis to Court,” id., at 28. neither was unconstitutionality interlocutory holding that the believe anything final. was but 48-year history never in the hand, the other we have

On jurisdiction where the district court had done 1252assumed simply than determine that there was “likelihood” no more unconstitutionality temporary support relief sufficient to pending Because deter- a final decision on the merits. such

17 (1961) Boyle, 1, (opinion Ibid. See also Stack v. 342 U. S. 12 of Jack J.) (“[I]t final decision that Congress made . . . son, has reviewable. is a always decision, a final there instances judgment a final is While (emphasis original). judgment”) final is not final which a decision 18 scope jurisdic concerning have the of our Similar distinctions evolved pursuant 28 S. C. judgments over “final” or decrees to U. tion state-court Cohn, Broadcasting See, 469, g., Corp. e. Cox § 1267. v. 420 U. S. Curry, 542, Laborers (1976); Construction 648-551 476-487 unfinished inconclu- inherently [and] minations are “open, 19 the for immediate con- sive,” only proper questions appellate would be whether of entry scope prelimi- sideration relief abuses of discretion. But such review is not nary were § 1252 as the Court because, today concedes, of purpose constitutional wished this Congress “it was the question Ante, added).20 If the Court to decide.” at 318 (emphasis in these circum- did address the constitutional issue it either would be sub- stances, rendering advisory opinion or, to revision once the district court reached the merits ject it to on the issue with pass finality, to extent purported ... of intervention” exercising “power would be forbidden than of review.21 have that such long recognized rather We 1292(a), §§ is barred under 1291 and and should intervention have so here as well.22 recognized Corp., supra, Industrial Loan at 546. Cohen v. Beneficial right bypass the court Congress exceptional created the “When directly right a lower court’s invalidation of an

appeals, it linked that Congress. Although it is in the nature of cases and controversies Act of only statutory the issue of con judgment that the court’s address not fees, well, attorney’s remedy, stitutionality, such as but other issues as claims, jurisdictional provision of the related state-law the natural sense issues, statutory unconstitutionality, not these other holding that the is Congress to review in the instance. is what unshed this Court first holding a federal statute “Because direct review is linked to a court’s unconstitutional, appeals judgment must logical test of which from alone, which, standing must brought directly to follow this Court review, appeal whether the issue on is appellate normal route of Edwards, statutory unconstitutionality.” Heckler v. holding added). S., (emphasis at 880 U. Corp., supra, Loan at 546. Industrial Cohen v. Beneficial finality herring” given a “bit a red argues that the issue is The Court supra, provided jurisdiction §of see n. original that the version constitutionality Congress,” Act of “against over decisions it is “[a]ny reading of the decision at issue would conclude that fair ” Ante, 318. ‘against constitutionality’ challenged statutes. of the this that denies disagree. Every litigation I order in such as district court temporary re summary grants a judgment, a motion to dismiss or for order, discovery proceed based straining 26, infra, see n. or even allows being substantiality plaintiff’s could be characterized on the claim *36 348 contends, however, that the District Court in enjoined challenged country

this case statute “across the mandatory and under all and that circumstances,” immediate appeal purpose to this Court therefore “is accord with the statutory grant” provision expeditious “an means — certainty ensuring uniformity in the enforcement of Ante, ante, such an Act.” at 318-319. also See 336-337 concurring). Congress unquestionably J., in- (O’Connor, §1252 provide “expeditious” tended means for resolving questions,23 appeal proper constitutional but an only questions when it is those themselves that have been preliminary-injunction decided—a condition not met cases where, here, we “intimate no view as to the ultimate controversy. underlying merits” of the Doran v. Salem Inn, 422 Inc., S.,U. at 934. reasoning sweeps narrowly

Moreover, the Court’s both too broadly. sweeps narrowly and too It too because manda § tory jurisdiction pursuant 1252 is not confined to district striking country court decisions down statutes “across the Ante, ante, and under all circumstances.” at 319. See also concurring). long at 336 (O’Connor, J., We have instead recognized requires that 1252 we review decisions simply challenged only applied invalidate statutes even as particular particular Allow individuals circumstances.24 “against” validity “for” squarely of a statute the sense that it is not statute, Preliminary injunc litigation else the would be terminated. do, sure, represent on a more defi tions based “likelihood” of success to be denying degree respecting than, say, nite of doubt the statute an order summary judgment remaining. Cf. Fed. Rule “genuine based on issues” 56(e). not of kind. A degree Civ. Proc. But these are differences of constitutionality of a statute if squarely “against” decision cannot inconclusive.” question “open, [and] the constitutional is still unfinished S., at 546. v. Corp., Cohen Industrial Loan 337 U. Beneficial 23 history 6, supra. legislative See in n. discussed (1983); 226, 229 See, g., Wyoming, e. S. EEOC v. U. California (1982); 393, United Church, 404-407 States v. Grace Brethren Darusmont, 449 Lee, (1982); v. U. S. States United (1981) curiam). (per thought ing appeal in these circumstances is an immediate securing “prompt “great public *37 interest” to further the validity precedent of lower court determinations” of the beyond might binding in cases the one at that have effect granted pre simply has a hand.25 a district court Where liminary injunction temporary restrain for that matter —or barring applied ing to enforcement of a statute as order26— precedential effect is far more ob individuals, certain case-specific balancing are based on a scure. Such orders carry equities that well not over into other of the simply It is too burdensome for this Court to situations. jurisdiction every preliminary mandatory direct over bear injunction, temporary restraining pretrial order, and other constitutionality potentially implicating the in cases order § might respond that federal statutes. The Court of preliminary appeals in limited to relief this context can be bootstrap having impact, this would be rea nationwide but precedents: propriety soning support in our without § scope potential appeal under 1252 turns not on the underlying impact, nature of the district court’s but on determination.27 S., Rhodes, 104. Fleming v. 331 U. absent restraining generally granted cannot be

26 Temporary orders merits on the probability of eventual success showing of reasonable prob cases, required degree although, preliminary-injunction inas injury and the may vary depending irreparable extent of ability on the § at 507-510. Miller, Cooper hardships. Wright, & See balance of. limitation to all apparent reasoning therefore extends without The Court’s challenging the constitu litigation temporary restraining orders issued in tionality of federal statutes. determining for ‘impact’ test open-ended “Congress did not enact an Although review. reme for direct cases should come to this Court which appeal of direct under touchstone important, the aspects of a case are dial significance of a decision. judgment of party’s § 1252is not a or our own grant certiorari in our discretion judgment under We exercise after, judgment. rendition of before, well as civil or criminal case § Congress 18. mandated 1254(1); Rule this Court’s U. S. C. impact, but rather for decisions simply for decisions not direct review broadly reasoning sweeps too because there The Court’s §1252 reading expansive than an are means other injunctions improvident court based on district ensure impede functioning do not the effective “likelihoodof success” Congress emphasized, has Federal Government. As public judicial “[s]wift review can be had cases where the through mandatory requires it” means short of interest § 1292(a), appeals jurisdiction.28 Pursuant to 28 U. S. C. appeals may promptly example, the courts of review district injunctions. granting denying preliminary orders court routinely supervise injunc- appeals the trial-court Courts of superior position in far tive and are therefore initially questions irreparable injury, pass on balance of *38 ques- hardships, if Moreover, of discretion.29 and abuse issuing a district court abused its discretion tion whether imperative public importance preliminary relief “is of such justify appellate practice from normal as to the deviation require Court,” immediate settlement this this Court’s Rule certiorari review can be obtained before the court of 2101(e). § judgment. appeals renders See 28 U. S. C. This power of inter- has not hesitated to exercise this swift extraordinary moment vention cases of constitutional impact predicated upon” holding was a lower-court that an Act of whose Edwards, S., Congress is unconstitutional. Heckler 465 U. at 884. why today’s jurisdictional There is an additional reason decision will bring every granting preliminary single as-applied relief in order cases directly jurisdictional before the Court: rules must be clear cut and can- “importance” “wide-ranging impact.” or not turn on indefinite notions of apply whether, “[Ljitigants ought to be able to a clear test to determine review, exception general appellate they perfect as an to the rule of must Id., appeal directly Supreme to the Court.” at 877. 28 94-204, p. Report pertained Congress’ 11 Rep. S. No. This § repeal three-judge provisions court of 28 C. 2282 of the district (1970 infra, 351-354, ed.), nn. discussed 32-35. 29 Moore, Lucas, Sinclair, generally 7 & K. Moore’s Federal See J. J. Practice, (1985); Miller, §§2947-2950. Wright, Cooper & ch. demanding prompt

in cases resolution for other reasons.30 procedure, Under this the Court has discretion to limit imme- exceptional diate review to cases and to leave initial review appeals of most matters the courts of of course —which “recognize importance the vital of the time element” in con- challenges involving granting stitutional or denial of interlocutory today’s § relief.31 Under construction of 1252, accordingly however, the Court has no such discretion and respectfully expanded I mandatory has, submit, its docket resolving to matters that we have no business in the first instance. history §1252 final consideration,

One based on the provisions, light fallacy and related sheds further on the jurisdictional reasoning. originally Court’s Section 1252 Judiciary was enacted as Act of 1937, 50 Stat. 752. since-repealed three-judge Section of that Act created the (1970 ed.). provisions §2282 district court of 28 U. S. C. provided “[n]o interlocutory permanent Section or in- junction suspending restraining opera- or the enforcement, setting part, any or execution tion, of, or aside, whole or in Congress” challenging constitutionality Act of in cases granted presented the Act could be unless to and resolved three-judge district court. That section also contained its jurisdictional Supreme own built-in authorization for direct judgment” “order, Court review of decree, issued *39 30See, g., Nixon, e. (1974) (cer- United States v. 683, 418 U. S. 686-687 granted by judgment Appeals tiorari before the Court of “because of the public importance presented the issues and the need prompt for their resolution”); Youngstown Sawyer, Sheet & Tube Co. v. 343 U. S. 579 Workers, (1952); United States v. Mine (1947); parte Ex 330 258 U. S. Quirin, Co., Carter v. Carter Coal (1942); 1 (1936); 317 U. S. 298 U. S. 238 Co., Railroad Retirement Board v. Alton R. (1935); United 295 U. S. 330 Co., States v. Bankers Trust with Norman v. Baltimore together decided Co., (1935). & Ohio R. 294 U. S. 240 31 Cooper, Aaron v. Cooper Aaron, (1958); see also denying interlocutory perma- granting “an or or a court such § provided injunction Moreover, 3 that a in case.” such nent stay “temporary suspen- single judge or could enter district part,” of the chal- in of the enforcement in or sion, whole provided application,” upon lenged “until decision statute showing applicant inter of, alia, made a sufficient that the damage.”32 “irreparable loss or provided in full: Section restraining injunction suspending interlocutory permanent or or “No aside, in of, setting in whole or enforcement, operation, or or execution any part that such or thereof any Congress upon ground

part, Act of States shall be issued or of the United repugnant to the Constitution is States, thereof, by any judge or by any district court of the United granted judge, application any judge acting a district unless by circuit as or judge, and be heard a circuit or district shall presented shall be the same at least one shall be a circuit judges, three of whom and determined judge, imme- any application presented to a he shall such judge. When (or absence, presiding cir- judge in his diately request the senior circuit designate in district court is located to judge) the circuit which such cuit determining applica- participate hearing and such judges to two other judge presiding circuit duty the senior circuit or It shall be the tion. be, immediately judges two other from may designate judge, as the case duty judges desig- purpose, it shall be the of the so for such and such circuit application hearing and determination. Such participate nated to such days’ before at least five notice of the be heard or determined shall not persons Attorney and to such other hearing given to the General has been Provided, opinion irrepara- That if of may in the suit: as be defendants petitioner temporary re- damage result to the unless loss or would ble application granted, judge to whom the is made straining order is hearing temporary restraining order at time before the grant such temporary restraining application, but such order determination upon only hearing and determination notice in force until such shall remain specific aforesaid, temporary restraining order shall contain a and such making the court the order and upon evidence submitted to finding, based thereto, irreparable damage that such loss or would reference identified damage. nature of the or petitioner specifying loss result to the upon may, hearing application, such a like court at the time of The said stay suspension, part, temporary or whole or finding, continue the upon any application application. hearing such upon the until decision precedence interlocutory permanent injunction given shall be for an assigned hearing for a at the earli- every way expedited and be shall be *40 § of 3 is relevant history to the instant in question two this respects. First, Court has held flatly temporary relief granted by district single judge pending conven- of a ing court is reviewable in three-judge the first instance courts of and not on appeals direct appeal to this g., e. House, Hicks v. Pleasure Inc., Court. See, curiam) (per (1971) relief “issued (preliminary pursuant §2284(3) is in [28 C.] reviewable a court of appeals to the extent such order is reviewable under 28 1292(a)”).33 §§1291 U. S. C. It would have made no sense to channel §3 of such orders appeals under to the of identical courts of while appeals channeling appeals pre- in orders cases that liminary § fall might ultimately within to this Court the first instance.

Second, §2282 when Congress repealed 197634it specifi- cally considered the of the question best means for policing injunctive process constitutional challenges pending decision on the underlying merits. Whereas review of three- judge orders in such interlocutory cases had formerly been (1970 routed to this directly Court, §§2282, see ed.), Congress believed that review interlocutory courts of practicable day. appeal may est An directly Supreme be taken to the upon application Court of the United States therefor or notice thereof thirty days entry order, decree, within judgment after the of the or grant- ing denying, hearing, interlocutory or after notice and permanent injunction appeal in such case. In the event that an is taken under this section, the up Supreme record shall be made and the case docketed the sixty days Court of the United appeal States within from the time such allowed, under prescribed by proper such rules as courts. Appeals Supreme under this section shall be heard Court of the possible United States at the precedence earliest time and take shall over all other matters not of a like character. This section shall not be con- derogation strued to be in any right appeal Supreme direct to the existing provisions the United States under of law.” §2284(3) Title 28 part portions U. S. C. derives in from the of 3 dis text, provides cussed above in judge may grant tempo that a district rary restraining pending hearing disposition order underlying by three-judge merits district court. 94-381, §2, L. See Pub. Stat. 1119.

354 1292(a) §§

appeals pursuant 1291 and be most con- would judicial sistent with sound administration.

“One other concern of the committee was the review of stay injunction granting, the denial, by a district court. The committee believes that with appeals clearly 11 of these cases vested Circuit Appeal, they Courts of will more than able Supreme carefully Court to consider and evaluate re- stay quests ample proce- for a these cases and that effectively dures exist to act See, these cases. ed.) §§ {Wright Rep. Barron and 1371-78.” S. Holtzoff (1975).35 p. 11 94-204, No. Congress thereby firm indicated its intention to leave moni toring equitable injunctive process to the courts of appeals mandatory in the instance, first to reserve direct Supreme Court review for those cases in which this Court properly underlying could resolve merits of the constitu challenges tional themselves.36

hH I—< Although deciding appeal preliminary that a direct of this injunction proper, today’s majority is the six Members of appear sharply to be divided over the nature of the issues proper scope authority before us and the of our on review. joined by eschews Justice O’Connor, Blackmun, Justice any attempt underlying to resolve the merits of the consti- challenge. properly recognizes tutional She that, because Holtzoff, The reference is to 3 W. Barron & A. Federal Practice and alia, inter (1958), discusses, §§ Procedure 1371-1378 which the standards staying pending appeals. district court orders Congress repealed three-judge requirement Because district court “clearly interlocutory for cases such as this and vested” review of matters 94-204, appeals, Rep. p. (1975), such eases in the courts of No. S. precedent respecting appeals Court’s reliance three-judge on interlocu ante, tory obviously misplaced. 319, citing Goldstein orders See Cox, 396 U. S. on the to evaluate “[t]he are difficult claims merits of these prelimi- developed depositions at the affidavits and record of express improper stage,” nary injunction it would be challenges. as-applied appellees’ the merits of on views properly, opinion). (concurring does Nor, at 338 Ante, validity purport the facial to determine O’Connor Justice given has challenged District Court that the statutes, fully on that determination consummated reached a never simply “the record question. observes Instead, she *42 sweeping establishing any likelihood of such falls short added). (emphasis invalidity.” at 337 Ante, facial Justice analysis application accordingly to limits her O’Connor governs review of that standard abuse-of-discretion the concluding District that “the preliminary-injunction orders, prelim- issuing nationwide discretion abused its Although I this inary injunction.” find Ante, at 336. opinion for preferable the approach to that taken far respectfully inconsistent with that it is submit I Court, application § above, as set forth First, two reasons: 1252for equitable to the standard of the abuse-of-discretion §in 1252 and preliminary granting relief is not subsumed appeals first instance. in the properly courts of left to the avoiding by properly the ultimate approach, Second, this as-applied chal- constitutional and the facial resolution underlying way slightest lenges, furthered has not dispositive prompt ensuring § reso- and purpose of 1252— as-applied constitutional merits of facial of the lution challenges statutes.37 to federal very appears take a different opinion to the Court three times that notes two or the Court sure, To be

tack. appel- simply a “likelihood”that found District Court that a correctly, appears it opinions this ease If I various read the con Blackmun in their O’Connor of the Court —Justices majority not determined that opinion, three Justices dissent —has curring and the facially applied or as §§ either 3405 are constitutional 38 U. S. C. categories of claims. particular full trial would be able to demonstrate the uncon lees after a challenged stitutionality statutes, and it states once passing in so that the District Court “abused its discretion” finding. But that is not the es Ante, 312-313, 315, at 334. approach. repeatedly seeks of the Court’s The Court sence entry fides of the District Court’s to cast doubt on bona pursuant by describing preliminary that relief to Rule 65 really quotation did not relief in marks: the District Court injunc grant preliminary injunction, “preliminary but Having suggested thus that Ante, 308, 312, tion.” at 316. making “semantic[s]” difference,” “little the matter is one of proceeds repeatedly, assert, that ante, 317, at the Court [the actually $10] “held that limit violates the District Court Amendment, Fifth and the the Due Process Clause of the added).38 Having (emphasis Amendment,” ante, First at 307 decision, the thus mischaracterized the District Court’s purports merits,” ante, this case on the Court then “to decide bootstrapping way past n. its the rule we 5— preliminary-injunction merits” in “intimate no view as to the ultimate by observing under “it was that, cases question Congress this Court constitutional wished *43 added). (emphasis at 318 decide,” ante, paved way

Having con- thus the for its consideration proceeds the to “review” merits, stitutional the Court then “holding” light evidence and of the record District Court’s (1976), three-part Eldridge, 319 424 S. the Mathews v. U. balancing factors of the Mathews test. The Court focuses on proce- through the current the risk of an decision erroneous safeguards. probable dures and the value of additional developed rummages through partially record and the upon the Govern- introduced seizes scattered evidence hearing preliminary-injunction the the ment on eve of —evi- neyer the on merits —and in a trial has been tested dence compelling. pronounces See, that evidence “reliable” 38 ante, 312-313, 326, 334. also at See Inn, Inc., 922, 934 39 Doran v. Salem S. 422 U. g., ap- ante, Moreover,

e. 331.40 the Court excoriates the at repeatedly failing pellees for to muster and the District Court support “holding” the of sufficient evidence to unconstitu- presentation tionality: appellees made “no such” sufficient the “nothing” support “holding,” to the of introduced evidence, very showing” factual neces- “failed make the difficult to “holding” unconstitutionality. sary support at Ante, the preordained: the conclusion statutes 329, 330.41 The 326, opportunity present give appellees “an under claims presentation” process” meaningful at- to “make a without an “holding” torney’s un- assistance, and the District Court’s constitutionality Ante, 335. must therefore be reversed. at extraordinary. adjudication is

This brand of constitutional faithfully to the limited Whereas Justice adheres O’Connor reviewing injunctions appellate judges preliminary role of § thereby departs purposes opinion 1252, from the underlying purposes upon for of 1252 the Court seizes prohibiting appellate .order to rule evade well-established purporting view[s]” . . on courts from even to “intimate . injunctions reviewing preliminary the ultimate merits when granted Inn, Inc., Doran v. Salem on likelihood of success. opinion turns out 934. If the the Court S.,U. at aberration, it threaten be more than an unfortunate will process grant- equitable fundamental transformation of ing challenging preliminary the constitutional- relief cases seeking litigants ity such action.42 Individual of Government ante, 327-330, 330-331, n. at 12. also See ante, 11, 324, n. 327-334. also and n. See implicate appear to reasoning would also jurisdictional The Court’s challenging in eases relief reviewing preliminary federal-court preliminary relief constitutionality and state-court of state statutes See U. S. C. federal statutes. constitutionality of challenging the cases §1254(2) jurisdiction this Court where (granting mandatory appeals *44 repugnant be invalid as appeals to by a court of [is] “a statute held State 1257(1) States”); § of the United Constitution, treaties, or laws to the judgments final state-court over mandatory jurisdiction (granting appeals validity” treaty a [the] of federal against is “the and decrees where decision statute). irreparable injury balancing grounds relief and a of on essentially required hardships be confront will to the Govern- they if ment with hands tied behind their backs: success- both fully immediately such Court relief, obtain this will intervene §1252 pursuant “holding” to to review the of unconstitu- tionality, findings de will make novo that selected is evidence castigate failing for “reliable,” will the individuals to adduce support “holding,” sufficient to the “merits” of evidence the ringing proclamation challenged and will a that issue statute is constitutional.

I—I l-H HH § permit I that 1252 believe should have been construed to only appeal a direct to this from lower Court a court decision represents fully a consummated determination Congress permit Act unconstitutional so as to this Court properly question resolve the constitutional on the merits. § I Unlike Justice do not believe that O’Connor, requires directly police injunctive process Court this challenges constitutional the first instance. Unlike the opinion may I do not Court, for believe that 1252 orderly invoked in such cases to short-circuit the principled adjudication. Accordingly, and constitutional I judgment believe Court have should vacated the entry remanded to the District Court for of a fresh de- proper appeal cree, so that Government could take preliminary-injunction Appeals order to the Court of g., e. the Ninth United States See, Circuit. v. Christian (1972) Ministry, (per Echoes National curiam). having contrary decided having join I merits, reached the Justice Stevens’ dissent. whom Stevens,

Justice Justice Brennan Justice Marshall join, dissenting. appreciate does

The Court not the value of individual lib- erty. majority It well be that in true the vast of cases employ lawyer, not veteran does need to ante, 329-330, system processing and that the veterans claims, benefit *45 the partici- and without fairly effectively and functions large, Ante, at 327. Everyone agrees, of retained counsel. pation at least some cases there are however, complicated to the veteran of a would be usefiil lawyer which the services by helping the work of the indeed, simplify agency would and, the controlling relevant facts and to identify organize Ante, 329. is the reason for denying at What issues. in such cases? to counsel of his choice right the veteran inter- First, us two answers: the paternalistic The Court gives of his own the veteran from the consequences est protecting ante, second, and the bureaucratic 323; improvidence, the cost of the benefit minimizing administering interest Ante, at 323-325. I that both interests agree program. justification but neither provides adequate are legitimate, limitation. on liberty imposed by $10-fee for the restraint I shall first Court, with the my disagreement To explain limitation, fee then about the history add a few words and analysis, finally explain the flaws the Court’s identify 3404(c) § an unconstitutional I and 3405 impose believe why individual liberty. restraint on

I—< claim —was enacted per first fee $5 limitation — later and years limitation was two repealed 1862.1 That 14, 1862, grant of July which authorized a 6 and 7 of the Act of Sections military personnel, provided as follows: pensions to certain enacted, attorneys And be it agents That the fees of and “Sec. 6. further necessary papers to estab- making causing to be executed out and allowance, bounty, before the Pension pension, and other claim for a lish a making out act, following rates: For shall not exceed under this Office applicant, with the duly a declaration causing to be executed Office, Pension with affidavits, forwarding the same to the necessary In cases wherein additional correspondence, five dollars. requisite Pensions, for each affidavit testimony by the Commissioner of required surgeons, (except the affidavits of and forwarded required and executed so fees,) any one attorneys shall not be entitled agents and for which such fifty cents. dollar shall, enacted, attorney who And be it agent That “Sec. 7. further any greater compensation for his indirectly, or receive directly or demand replaced which has survived ever limitation, the 10-fee $ protect designed to the veteran The limitation was since.2 bargains unscrupulous improvident extortion or from Obviously, lawyers.3 the number of it was believed that *46 legis large enough justify practicing a law was scoundrels charging prohibition against excessive fees. lative Congress enacted, At the time the limitation was $10-fee legal presumably that fee reasonable. The work considered prescribed preceding in the section under this act than is of this services pension, act, agree prosecute claim for a or who shall contract or act, that he shall bounty, allowance under this on the condition or other claim, upon, any portion of the amount of such or per a centum or receive pensioner a or other claimant the wrongfully withhold from who shall pensioner any part pension or claim allowed and due to such whole or misdemeanor, claimant, high upon and con- guilty shall be deemed of a or shall, every offence, exceeding for such be fined not three viction thereof years, dollars, imprisoned exceeding at hard labor not two or hundred both, aggravations of the offence.” according to the circumstances and or 12 Stat. 568. 4,1864, July Congress repealed the sixth and seventh sections of the On Act, following sections which raised the maximum and substituted to $10: fee enacted, agents attorneys 12. And be it That the fees of and “Sec. further necessary causing papers executed the to estab- making out and to be bounty, pension- pension, and other allowance before the lish a claim for act, office, following making rates: For out under this shall not exceed by applicant, causing duly executed a declaration with the and to be affidavits, forwarding pension-office, the same to the necessary and dollars; by correspondence, ten which sum shall be received requisite obtaining pension, attorney in full for all services in such agent such or part pension or in until such be demanded or received whole shall not obtained; and the sixth and seventh sections of an act entitled shall be fourteenth, approved July eighteen hundred grant pensions,’ ‘An act to sixty-two, hereby repealed.” 13 Stat. 389. penalties criminal contained in 7 13 the 1864Act reenacted the Section 1, supra. Ibid. n. of the 1862 Act. See Globe, Globe, Sess., 2101, (1862); Cong. Cong., 2d Cong. 37th 3 See (1870). Massie, Sess., 1967, 4459 See also Calhoun v. Cong., 41st 2d 170, 173 preparing a veteran’s claim involved consisted of little filling appropriate an form, more than out and, terms of average pay, a serviceman’s base fee $10 then was roughly equivalent today.4 inception, of a fee At its $580 purpose therefore, the fee limitation had neither the nor the precluding employment reputable effect of counsel expressly Indeed, then, now, veterans. the statute con templated pro veterans that claims for benefits could be by “agents attorneys.”5 cessed unscrupulous

The fact that the statute was aimed at attor- neys provision penalties. is confirmed for criminal just making agreement pay greater Instead of fee anticipatory pledge unenforceable—as an of an interest pension future benefits unenforceable—the Act contains prohibition against a flat the direct or indirect collection of attorney greater provides charges that an fee, who *47 imprisoned up years than to two more $10 unscrupulous moneylender or mer- Thus, hard labor.6 military personnel annually in pay averaged $231 The base for all 1865. Commerce, Census, Dept, U. S. Bureau Historical Statistics of (1975). States, I, By p. the United Colonial Times to Part con trast, military $13,400 in pay personnel averaged base for all 1984. See Dept, Commerce, Census, Bureau of the Statistical Abstract of 1985, p. the United States 345. course, Today, procedures they are more elaborate than were presenting complex and the number issues of law or of claims fact has greatly attorney seldom, longer increased. It is no true that the would if ever, simple be asked to do more than fill out a form.

6 Recently, we noted the effect of criminal sanctions on constitutional analysis: merely

“The restriction involved here is not an effort the Government to property, regulate the use of its own such as was involved in United States Assns., (1981), Greenburgh Postal Service v. Civic 453 U. S. or the speaker employment, dismissal of a from Government such as was involved (1983). Myers, flat, in Connick v. 461 U. S. 138 It is a across-the-board PAC, criminal sanction . . . .” FEC v. National Conservative 480, 496 might try advantage improvident chant who to take of an might difficulty collecting veteran have his bill, but the lawyer unscrupulous might go jail. language particularly in 3405, the use of the words

“directly indirectly,” apparently apply would to consulta- lawyer concerning tions between veteran and a a claim that ultimately appearance allowed, as well as to an before the agency today’s In market, itself. the reasonable fee for even surely the briefest conference would exceed Thus, $10. protect

law that was enacted pulous 1864to veterans from unscru- lawyers charge who excessive fees—effec- —those tively today’s lawyers denies veteran access to all who charge reasonable fees for their services.7

1—1 I—I opinion paternalis- The Court s blends its discussion of the protecting unscrupulous lawyers tic interest veterans from minimizing and the bureaucratic interest in the cost of admin- way implies istration that each interest reinforces Actually quite the other. the two interests are different and separate analysis. merit my opinion, minimizing the bureaucratic interest nothing herring.8

cost of administration is but a red Con- gress prohibited lawyers participating has not from in the processing why of claims for benefits and there is no reason it Report Congress, In its on S. 349 in the 97th the Veterans’ Administra tion stated: *48 that, probably except “It is true qualifies for those whose low income them services, legal effectively

for free the current precludes fee limitation attorney representation Rep. 97-466, before p. the VA.” S. No. 102 (1982) (letter Acting of Veterans’ Administration’s Director to Hon. Alan 1981). Simpson, July K. dated 8 approved unanimously by Section 401 of a bill the Senate Committee on Veterans’ Affairs would have removed the $10-fee limitation for services in representing following rendered a claimant an initial decision of the (cid:127) Appeals. Report Board of Veterans’ The Committee stated: “Enactment Id., provisions Section 401 are estimated entail no cost.” at 79. agency procedures complexity can be should.9 The hearings, by limiting regulated the time for the number of length argument, and in other submissions, of written agency’s ways, there is no reason to believe that the cost but increased a claimant is of administration will be because pro appearing represented se.10 The counsel instead of informality emphasizes that the Court is desirable because many lay representa- veterans, or their it no doubt enables of coun- to handle their claims without the assistance tives, lawyers would sel. But there is no reason to assume clarity proceedings. than to the As a add confusion rather lawyers profession, are skilled communicators dedicated to Only if of their clients. it is assumed that the av- the service lawyer unscrupulous erage incompetent is can one ration- efficiency agency’s ally work would conclude that the by allowing participate whenever undermined counsel to categorically willing pay I for his services. a veteran reject any assumption. such lawyer’s unnecessary in most

The fact that services counterproductive might in few, does cases, and even be pen- participation justify prohibition in all a total on their not proceedings. perhaps best illustrated claim This fact is sion (1973), by Gagnon Scarpelli, a case which obliga- does not have a constitutional we held that the State interest is based on The Court’s entire discussion of bureaucratic “pro constitutes a assumption of the fee limitation the removal ante, would be more accu procedure.” at 327. It posed additional See spokesmen proposal permit qualified more that the would rate to state existing procedure. participate in the that, apart paternalis from the unequivocally found The District Court slightest by lifting in the interest, would not be harmed tic the Government The District Court wrote: the fee limitation. lifting the fee limit government argued

“The has neither nor shown that paternalistic pro- any way, except as the government would harm the Supp. supposed 589 F. tector of claimants’ best interests.” 1984). (ND Cal. 8, supra. also n. See *49 every probationer provide parolee in counsel a or with

tion to informality proceeding proceeding. The revocation unnecessary squarely cases, in most but we counsel makes lawyer’s presence was constitution- in some cases a held that Although, surprisingly, ally required.11 relies on opin- Gagnon today, at not a word that ante, 324-325, see probationer implies parolee could denied the a or be ion that case-by- represent right him. The retained counsel to have participation approach of counsel endorsed to the case apply Gagnon12 approach to veterans claim that should Lawyers may proceedings. cases, not needed most but be permitted appropriate cases.13 The interest should justify prohi- plainly a total administration does not efficient justify representation by can it a rule counsel. Nor bition on by discouraging indirectly accomplishes their that result that participation in all cases. stated:

11 We justification inflexible constitutional rule with find no for a new “We thus rather, think, respect requirement of counsel. We the decision to the case-by-ease basis in the exer- the need for counsel must be made on a as to authority charged responsibility by the state cise of a sound discretion parole system. Although pres- administering probation for con- participation probably be both undesirable and ence and of counsel will stitutionally unnecessary hearings, there will remain in most revocation proc- due eases in which fundamental fairness —the touchstone of certain indigent for require provide expense at its counsel ess-will that the State S., probationers parolees.” 411 U. at 790. expressly As we noted: the invari- derives, from hearings at not

“The need counsel revocation peculiarities hearings, rather from the able attributes of those but Id., particular cases.” at 789. S., the Court PAC, 470 U. In FEC v. National Conservative expen forbidding the “allowing presentation of views while noted allowing speaker like $1,000 present them is much diture of more than the use of an am denying him public express in a hall to his views while by pro views presentation system.” By analogy, allowing the plifying present $10 than more expenditure of forbidding claimant while se express his views hall public in a allowing speaker like them is much system. amplifying denying him the use of an while *50 paternalistic protecting in The interest the veteran from improvidence unquestionably justify his own would a rule simply prevented lawyers overcharging that from their cli- appropriately, might require agency ents. Most such a rule perhaps approval, judicial of counsel fees. It review, might ceiling, subject excep- also establish a reasonable especially complicated I fact, tions for cases. assume that justified by limitation was this interest when it $10-fee changes brought was first enacted in But time in 1864. has legal profes- the value of the in dollar, the character of the agency procedures, ability and in sion, of the veteran proceed without the assistance of counsel. In 1982, the Senate Committee on Affairs re- Veterans’ the fee viewed limitation and concluded: agency report “As was discussed the VA’s on S. (VA report pages (reprinted pages on S. 330 at 16-17 96-178)), Rept. Congres- 98-99 of S. No. the basis for action, sional first after the Civil War and then after limiting attorney I, World War the amount an could representing receive for a claimant before the VA was grounded lawyers day in a that the belief of that were unscrupulous taking advantage and were unfair of veter- by retaining portion ans statutory an unwarranted of the veterans’ legal very

entitlement return for limited at the assistance. Whatever the merits of such a view imposed, despite numerous time the limitation was statutory opinions upholding validity court constitutionality challenges limitation the face of to its (C. (see, Supp. g., 1303 D. e. Saxbe, Gendron v. 389 F. Cal.), nom, Levi, mem. sub Gendron aff’d (D. (1975); F. 2d C. Roudebush, Staub v. 1978)), position that such a it is the Cir. Committee’s light today’s organized particularly bar, view of of widespread associations now network local bar of longer generally police attorney behavior, is no tenable. view that the current “The is also Committee of rights statutory hindrance on the an undue limitation is representatives to select and other claimants veterans choosing represent them in matters. their own VA strong system there is above, noted vital As repre- provide officers veterans service who excellent fully at no cost to claimants. Committee sentation expects system will and believes this continue and right judicial prosper, the new re- undiminished attorney participation opportunity for created view legislation. However, in this an individual should retaining arbitrarily attorney, not be restricted in representation whether such is desired reasons *51 personal preference or a that the because concern of likely claim is to be a second time the Board denied appealed Appeals and will be to court. A Veterans’ of example, conclude, claimant could well that some for development the administrative record in a further of complex importance would be the case critical while of agency attorney matter is still the and that an before ” develop Rep. would be better able to so the record. S. (1982) added). pp. (emphasis No. 50-51 97-466, growth strong system the Moreover, the of of active serv- provide representation ice officers who excellent at no cost significant virtually to claimants is because it has eliminated danger tempted money will to the that a claimant waste unnecessary legal on services. As the Senate Committee recognized, availability competent, the of such free however, denying representation a reason is not for claimant the right employ appropriate of his in an to counsel own choice case.

I—I H—I I—I regard I It that I is evident from what have written legal profession. limitation and an to the fee as unwise insult however, It does not that it is unconstitutional. The follow, correctly presumption notes that the of constitutional- every requires ity Congress Act that attaches to of the chal- lenger demonstrating invalidity. to bear the of burden its attempting aspects Before to I so, do must on comment two age of the Court’s rhetoric: Its references of the stat- repudiation ute and to the of York, Lochner New 198U. S. The fact that the $10-fee limitation has on been the books my opinion, since 1864 not, does add force at all presumption validity. Surely age jure seg- of of the de regation at issue Brown v. Board Education, 347 S.U. (1954), age gerrymandered voting or the of the districts (1962), provided issue Baker v. Carr, no legitimate support passage for case, those rules. this providing support time, instead of for fee limitation, effectively legitimate justification has eroded the one that formerly legislation age made rational. The of the stat- against, validity. ute cuts not in favor of, its incorrectly is true It that the statute that was invalidated provided protection group in Lochner but workers, protection response disparity was a to the assumed power employers bargaining employees, and was justified by protecting the interest in the health and welfare protected group. misleading imply It is rather rejection holding of the Lochner is an endorsement ra- *52 paternalism legitimate legislative goal. tional as a See ante, paternalism at in 323. But the kind of in event, reflected (cid:127) operates today purports this statute itas is irrational. It to protect protection, the veteran has who little or no need actually and it him denies assistance cases which the help lawyer may importance.14 of his be of own critical States, Olmstead v. United

14 Justice Brandeis’ statement (1928), remembering 438 is worth this context: “Experience guard protect liberty teach our should us to most on to purposes when the Government’s are beneficent. born to Men freedom naturally repel liberty by are alert to invasion of their evil-minded rulers. liberty by lurk in greatest dangers to insidious encroachment men of Id., zeal, (Brandéis, J., well-meaning understanding.” but without at dissenting). is for a reason that is more

But the statute unconstitutional irrationality. apparent What is at fundamental than its attorney right to consult an is the of an individual stake controversy the with Govern- his choice in connection with firmly protected by my opinion right that is the ment. In the the Fifth Amendment15 Due Process Clause of First Amendment.16 recognizes that the Veterans’ Administration’s

The Court provide procedures law, must claimants due requirement is sat- then that the constitutional but concludes proved “prob- appellees not that the isfied because the have present system” unacceptable.17 ability is under the error percent if 80 short, at or 90 cases Ante, 326. worry correctly why those individuals whose decided, about erroneously might rejected and who have been claims have represented by they prevailed counsel? if had been analysis as- error the Court’s is its The fundamental right employ sumption to counsel of his the individual’s sovereign is a his kind second-class choicein a contest with (CA7 1971). Ingold, 109, 111-112 Wright v. 445 P. 2d Cf. they need to be stated propositions are so obvious that seldom Some has considered the extent to explicitly. In a series of cases lawyer’s business, protects right to solicit Amendment which First Compare not In re Pri- finding protection in some situations but others. (1978), Assn., mus, 423-426 with Ohralik v. Ohio State Bar S.U. necessarily in all of cases it was assumed S. 447 But those 436 U. for, receive, right legal ask to advice from the individual’s by the That lawyer fully protected First Amendment. of his choice was parties by the in the Primus ease assumption explicitly acknowledged was (“There opinion, S., n. to our 436 U. recognized in a footnote Amendment”). activity protected If is First is no doubt that such attorney protected, it ordinary and client is so between communication support abridgment of communication in doubly important prevent right petition Government for the redress of a of an exercise of Trucking Transport Motor Co. v. See grievances. veteran’s California *53 508, Unlimited, 404 U. S. opinion point position in its the Court seems to take the Indeed, one at system operated “the entire defect unless is there is no constitutional Ante, 11. regulations.” n. contrary governing to its assigned interest that can be a material value and balanced on a scale utilitarian of costs and benefits.18 It is true that right property right the to is a veteran’s benefits and that in fashioning procedures administering pro- the for the benefit gram, may appropriately weigh the Government the value procedural safeguards against of pecuniary additional their may, example, properly provide costs. It for decide not to considering free But counsel to claimants. we are not a procedural right that would involve cost to the Govern- explained protesting denigration As I Court’s of right the the proceedings parental rights: counsel to terminate fairness, of weighing “The issue is one fundamental not of pecuniary the against Accordingly, costs the societal benefits. even if the costs to the relatively insignificant just State were but great not rather were as prosecutors, the providing judges, costs of and defense counsel to ensure the proceedings, fairness of criminal I would reach the same result in this category protecting liberty of For depriva- eases. the value of our from by priceless.” tion the without of law State due Lassiter v. Department (1981) County, Services Durham Social of of (dissenting). Moreover, Framers the of the Constitution created a federal sovereign powers whose Legislature, were to be exercised different branches —a Executive, Judiciary expected was which to coexist with at —and sovereigns having jurisdiction least 13 other people over the same and the territory. Surely, if they improve same motivated were a desire to the efficiency economy, they have developed could a much simple more design they for the Government. The reason not per- new did do so is fectly replete provisions clear. text of the Constitution is with liberty blessings conversely, protect intended to secure the —or against dangers tyranny notwithstanding possible the their costs. — Significantly, protections only recognized those not the evils associated monarch, power, with a anor executive with absolute but also the risk of tyranny by majority. delegations power an unrestrained The limited Government, authority tripartite among Federal division of three Government, Legislature branches of Federal division of the into Houses, staggered office, two serving years, terms of six Senators years, Representatives only two, provision the President four Congress, guarantee Presidential veto Acts of of life tenure for judges federal of the checks and balances are consistent with the inter- —all protecting liberty possible est in individual power by from misuse majority. transient unrestrained *54 to individual’s right concerned with the

ment.19 We and the advice assistance obtain money his to own spend the against his claim advancing in counsel independent of Government.20 is expressly pro- that right criminal proceedings,

In all in indicated, I have Amendment. As by the Sixth tected I is also right believe with Government disputes civil Fifth Amend- Clause of the the Due Process protected in Government, If Amendment. the First ment in the citizen interest protecting a paternalistic of guise him to deny independ- can access his improvidence, from own of our it can the character choice, change of his ent counsel the sovereign dispute Even though free society.21 or a statu- as this case rights, involve may only property procedural-due- Eldridge way the Mathews v. the Court utilizes Here, misleading. appellees seek do not process analysis is somewhat heard, appointed govern to to have counsel opportunities additional procedure. They to expense, any type simply want or of additional mental consult, employ choose, the services of right to to and to exercise their manage personal right to their affairs —a legal counsel in order conduct society. unfettered a free that should be (1877): Illinois, 94 See Munn v. life, property deprive person liberty, of without due

“No State 'shall law,’ . . . says of the Fourteenth Amendment to Constitution. something ‘liberty,’ provision, in the more is meant By the term used prison. bounds physical from restraint or the of a than the mere freedom manner, choose, go may and to act such It means freedom to where one equal others, judgment may dic- rights of as his not inconsistent with is, pursue callings happiness; to such promotion for the his tate develop capacities, give to be most suitable his and avocations as Id., (Field, J., enjoyment.” dissenting).' highest at 142 them their Assn. recognized As American Communications Justice Jackson (1950): Douds, 382, 442-443 heritage society unrestricted constitutional priceless “The of our copyright is a right Thought of each to think as he 'will. control member it. totalitarianism, It is not the function of our and we have no claim falling error; keep into it is function the citizen from Government keep falling from into error.” the citizen to the Government tory right independ- entitlement, the citizen’s of access to the private aspect liberty ent, bar is itself an that is of critical importance democracy.22 disagree I our Just as with the present concept “liberty,”23 Court’s crabbed view of the so reject apparent Ido its unawareness of function of the independent lawyer guardian as a of our freedom.24 *55 my regardless dispute view, nature of the be sovereign tween the and the citizen—whether it be a criminal proceeding parental rights, a to terminate trial, a claim for security dispute social a benefits, benefits, over welfare or by pension claim asserted a widow of soldier who was right killed on the battlefield—the citizen’s to consult an lawyer independent lawyer speak and to retain that on his aspect liberty priceless. her is an or behalf that is It cavalierly “[n]othing The General states that in the First Solicitor suggests Amendment that the fee limitation is unconstitutional because it lawyer other, hiring private adequate repre restricts a claimant in where charge.” Appellants sentation is available without Brief for 47. This principle plain I think statement misses a so and fundamental that would Every country presumed it need to be citizen in this would not stated: is attorney any matter, consulting employing an on or be unrestricted representation any purpose not making legal the decision that for is whether, proposition, needed. As to this it makes no difference claims, procedure fair and existing “the VA claims is Solicitor General attorneys,” ibid., adequate privately a conclusion that without retained statute, moreover, hand, recog rejected. on the one District Court legal representation, but on the other hand restricts the nizes and allows legal representative consult a mean right veteran’s to choose and to manner, virtually reducing right to counsel to nonexistence. ingful thus (1976), id., Fano, 225-226 23 CompareMeachum v. (Stevens, J., dissenting). was, however, well understood Jack Cade and his That function followers, forgotten and whose famous line who are often most characters (“The do, thing let’s Dick’s statement first we is often misunderstood. liberty. by rebel, See lawyers”) spoken kill all was not a friend VI, II, IV, As a Shakespeare, King Henry pt. Act scene line 72. W. reveal, Shakespeare insightfully realized reading careful will text form of disposing lawyers step in the direction of a totalitarian is a government. away bargained on that a not be the notion totalitarian

should processed appraisal of the mass of claims the Veterans’ especially identify high proba not Administration does bility of error.25

Unfortunately, today the reason the Court’s mistake appreciate too obvious. It does not the value of individual all liberty. respectfully

I dissent. *56 large for the ma According Court, sufficient “process which is definition sufficient for all jority group aof of claims is constitutional Ante, them.” at 330.