*1 378 S.E.2d 82

COMMITTEE ON LEGAL ETHICS OF

the WEST VIRGINIA STATE BAR

George R. TRIPLETT.

No. 18396. Appeals Virginia.

West

Oct.

Rehearing Denied Dec.

534 1- practice law in of DR Cynthia M. Santoro fitness to violation

Jack Marden & (6). Gustke, Charleston, 102(A)(4),(5) Virginia for West Bar. State Fahrenz, Charleston, for Frederick D. I

George Triplett. R.

Introduction NEELY, Justice: initiated Black cases are when Department miner a claim with the files brought disciplinary proceeding This is a (DOL). The is then Labor claim reviewed Legal the by the Committee on Ethics of by a “Committee”) at the administrative level claims ex- (the Virginia West State Bar commissioner, the George deputy aminer or against Triplett, a member R. approved or denied after a medical exami- Bar. The Committee has recommended Triplett’s Mr. suspension a six month nation a DOL doctor. The claimant and (if practice alleged his operator license to law for viola- can be defendant one identi- (5), (6) 1-102(A)(4), fied) DR of the tion of then allowed additional to submit Virginia Re- West Code of Professional reconsidered, have the case evidence and provide: sponsibility again deputy commissioner level. appeal Either can then the decision of side Misconduct—(A) DR 1-102— (4) deputy commissioner Office of Engage not: in conduct involv- shall (OALJ) and, fraud, Judges Administrative Law ing dishonesty, misrepre- or deceit decision, sentation; (5) appeal from to the Benefits Engage in conduct that is that (BRB). jus- Appeal from a prejudicial the administration Review Board deci- tice; (6) Engage other conduct sion BRB lies in the U.S. of the adversely on his fitness to Appeals reflects the injury for the circuit in which practice law. (last 921(c). exposure) arose. 33 U.S.C. § finding are awarded on a of total Benefits respondent regula- The failed to abide disability pneumoconiosis death or due to promulgated Black tions under federal (“black lung”), payable by and are either Act, Lung seq., Benefits 30 901 et U.S.C. (if operator one can be responsible iden- for the collection of fees in black tified) Lung Disability Black or the Trust lung cases. depends pays the claim on a Fund. Who regulations proceed- in this at issue including of factors whether a re- number ing require any attorney ap- fee be identified, sponsible operator can be when Labor; by the proved Department con- filed, date of the claim was last arrangements between sensual exposure. contingent prohibit- fees are and clients 932 of Section Benefits Triplett Mr. his clients to exe- ed. asked (30 incorporates seq.) Act U.S.C. et § contingent allowing him cute fee contracts Longshore provisions several percent of accrued He did not benefits. (33 Compensation Harbor Workers’ Act approval seek of Labor seq.) including 901 et U.S.C. U.S.C. sought arrangements no fee § these provides rep- no one who 928 which Department. from When whatsoever paid resents a claimant shall be fee un- prevailed, they paid Triplett, his clients Mr. approved deputy less commis- it is put money bank who into accounts sioner, or agent, trustee, the board the court before whom “attorney name as or his performed. Anyone who re- escrow” for clients.1 The work individual unapproved subject respondent guilty found ceives an fee is to a committee $1,000 professional reflecting imprisonment on his fine of misconduct Respondent awaiting heard Record testified that he discussion accounts 257-8, that time. among plaintiffs regula- Respondent bar that the DOL has returned might changed contingent interest, tions to allow money, to his clients. therefore, and, money put he into escrow successful, lawyers paid at year, more or both.2 If a defen- are not all in than one compensa- employer dant declines unsuccessful days written thirty receiving tion within Committee, in Supplemental Mem- claim, and there- notice of the the claimant orandum, argues any problems associ- *3 lawyer after of a to win uses the services ated with black fee limitations are commissioner, claim, deputy his the the charge because did not Re- irrelevant board or the court awards a reasonable spondent collecting illegal with fee un- attorney’s paid directly by be the fee to 2-106, der DR but rather “... mis- employer lawyer.3 In where to the representation to the of La- fee, pays attorney’s the claimant the the regarding his to bor intentions collect a part DOL withholds of the benefits when a Complainant’s Supplemental fee.” Memo- prevails claimant until the files a argument is randum. this that, paid petition approved, fee when supported by the Committee’s own Full from the withheld funds. Fact, Panel Hearing Findings Conclu- Regulations the promulgated under sions Law and Recommendation Con- Lung proce- Act Benefits define the Discipline. cerning its Conclusions of awarding attorneys’ dure for and criteria the Law at Committee lists the docu- provides, part: fees. 725.365 20 C.F.R. mentary § evidence which establishes that Respondent approval charged representation No fee for ser- knew DOL fee was and, cases, respect required to a vices rendered claimant with several that he au- any to this valid respec- claim under shall be thorized the DOL to release to the approved subpart. unless under No portion tive the clients of benefits retained prior agreement a fee contract or fees. In these shall be valid.... Respondent also informed DOL that the he going applications was not submit fee provides part: C.F.R. 725.366 § approval. says for their The Committee A representative seeking ser- a fee for these documents performed vices on behalf of a claimant strong ... are evidence the knowl- shall application make therefor to the Respondent way edge of have commissioner, deputy law administrative paid representa- a fee his successful tribunal, judge, appropriate appellate tion of his Black was to clients file be, may as the before whom petition by provided fees as Section performed. applica- services were The Regulations. of the His 725.365 failure supported complete tion by shall be regulation make him abide [sic] statement of the extent and character of 1-102(A)(4),(5) violation of guilty of DR work necessary done ... (6) ... determining criteria for listed fees are evident, 725.366(b).4 (e) then, in 20 C.F.R. It is that the Subsection Committee § provides Respondent’s of 20 C.F.R. 725.366 that a fee found misconduct to be his § deputy knowing regulations, award of the commissioner violation DOL challenged alleged misrepresentation Bene- not may be reviewed his to the fits regarding Review Board. Because a fee is DOL his intentions to collect a Moreover, awarded in the event a fee. had the claimant Committee stated 928(c) (e). proceedings, 2. 33 § U.S.C. entered other infor- mation relevant amount 928(a). 3. 33 U.S.C. § requested. approved of fee No fee shall in- spent preparation payment for clude time 725.366(b) 4. The text of reads: application. approved of a fee No fee shall be (a) Any approved paragraph under of this done on for work claims filed between De- reasonably section shall be commensurate cember and June under necessary with the work done and take shall Act, except Title IV Part B of of the for servic- quality representa- in to account the of the tion, es on behalf qualifications representative, rendered of the claimant in re- involved, complexity legal gard the review of the under issues claim section proceedings level of subchapter. which the claim 435 of the Act and Part 727 of this raised, representative at which level legal the mere Respondent both factual and issues: its Conclusions Lawof DOL, of his choice finding would not denial to a claimant of counsel lied to the such counsel) (or matter, any does not supported by the record. for that have been Respondent com- due necessarily imply establishes that a denial of evidence Fortunately, that he representatives rights. municated to DOL clear, bright to them line standards applications not submit fee Court has set would legal no evidence issues of his There is under which we can decide most the DOL Ass’n. Respondent record that told of this case in v. National Walters Survivors, directly from his he would not collect fees Radiation of S.Ct. fact, (1985). suggests that clients. the record 87 L.Ed.2d *4 case, DOL, suspected the at least in one the in collecting directly Respondent was fees Ill they regulations because

violation Analysis Due Process under Walters against doing so.5 him admonition sent Supreme In the U.S. Court alleged gravamen Respondent’s of The constitutionality of a statute upheld the is not statements professional misconduct that that limits to ten dollars DOL, his collection of he made to the agent represents paid lawyer be a or who a knowing regula- fees in violation of DOL seeking benefits from the Veter veteran argues mitigation in tions. The defendant (VA).7 Walters, an’s Administration provi- lung attorneys’ fees that the black argued that the fee limi plaintiff veterans sions, applied, are make it almost effectively precluded them from ob tation competent find impossible for claimants to and, therefore, taining deprived counsel represent them. law- counsel to Several property process due of them of respondent yers appeared on behalf of who assertion, However, in answer to this law. experiences repre- testified about their own pointed out that due senting lung claimants.6 These law- black concept requires process is a flexible that a were, best, paid adequately not or yers interests; thus, balancing of there is no paid all. This promptly. Some were not right hearing to a trial-like absolute either Court, then, allega- if perceived that every representation by counsel to supporting wit- respondent tions of and his property proceeding adjudicates find counsel nesses that claimants cannot applied right. specifically, More the Court true, fee limits this because of DOL were Eldridge, the test set out Mathews v. presented significant constitutional 424 47 L.Ed.2d 18 96 S.Ct. Accordingly, we invited interested issue. (1976): parties file additional briefs. requires court to consider ... which that will affected private be II action, by the official the risk of an erro- The Constitutional Issue deprivation of such interest neous used, through procedures proba- question us is whether now before pro- value of additional or substitute limits on ble the federal safeguards, govern- process cedural lung cases violate the due adhering to the exist- the Fifth Amendment to the ment’s interest clause of Con- applying ing system ... this test we by effective- stitution the United States mind, keep must addition ly denying necessary claimants access Congress, the fact raises deference owed to Answering question counsel. stating longer Cain he no ac- of James F. 5. See State Bar exhibit 3. difficulty cepts due to the 196-198, testimony William M. 6. Record at getting paid. stating or four Miller that he has won three paid cases for claimants but has not been first 1862 7.The fee limitation was enacted in them, including a case in which his client during War. the Civil thirty awarded over dollars in was thousand 1980; 206, testimony back benefits in record at

537 probability present very process sys that the nature of the due error under the presence inquiry probability indicates that the fundamental tem—and the particular procedure attorneys sharply fairness of a does of would diminish that 326, 105 in any not turn result 473 possibility on the obtained ...” U.S. at S.Ct. at case; rather, “procedural due individual shaped by risk of rules frankly The Court admitted Walters truth-finding pro- error in the inherent possible exactly that it quantify was applied generality cess as danger deprivation erroneous under exceptions.” not the omit- rare [citations present system. the Court ted] quick point percent was out that

473 U.S. at S.Ct. at 3189. appealed of the cases that are to the Board govern- Court went on to conclude that the (BVA) reversed, Appeals Veterans ment interest in fee limitation in veter- suggests relatively danger low ans’ cases to ensure: deprivation if assumes the erroneous one administering

... BVA decision be the “correct” result in managed suffi- every benefits should in a case. U.S. at S.Ct. at ciently way that informal there should be 3192.

no employment need for the of attor- an Walters, important In the an court made ney to benefits obtain to which a claim- finding lifting factual that fee the limita- entitled, ant was so that the claimant not significantly tion would reduce the dan- entirety would receive the of award the ger deprivation of erroneous of veterans’ having lawyer, to divide it with a For finding benefits. the Court relied [citations omitted] correlating rate of statistics the ulti- Id. by mate success claimants the BVA before representation. of mode These statis- pointed Court that the out tics demonstrated that who were claimants destruction limitation YA bono) represented by lawyers (pro were cases would result not in claimants’ only marginally pro than more successful paying of over to law- represented se claimants claimants yers, complicate but also process would organizations.8 The veterans’ Court noted Congress keep uncompli- that intended to organizations that veterans’ various service resulting cated and non-adversarial. The supply high quality representation for any transformation of the current YA regardless requests claimant who of a complicated, to a adversarial one would orga- claimant’s affiliation with a veterans’ virtually require then claimants to hire law- 311-312, nization. U.S. at 105 S.Ct. at yers to be successful. 473 U.S. at Congress recently 3184. had considered 105 S.Ct. at 3190-3191. The increased com- limitation, modify to proposals the fee and turn, plexity, require greater would ad- 1982,9 report a Senate Committee stated costs, ministrative which would leave less body’s that concern money Accordingly, available for benefits. reasoned, government any changes relating inter- “that carefully

est the fee limitation was fees made as not to in- entitled so great prevail weight. against unnecessary To such a of attorneys duce retention congressional policy required disrupt reasonable claimants and VA un- extraordinarily strong showing necessarily very “... of effective network of following non-attorney 8. The statistics were taken from Other 15.8% upon by record and relied the Court. 473 U.S. representation No 15.2% at at 105 S.Ct. 3192. Attorney/Agent 18.3% ULTIMATE RATES THE SUCCESS BEFORE judicial proposed 9. bill allowed re- limited BOARD OF VETERANS APPEALS BY payment decisions of view of BVA attor- MODE OF REPRESENTATION review, neys' representation that Legion American 16.2% the bill was never enacted. 473 U.S. at American Red Cross 16.8% 105 S.Ct. at note note Disabled American Veterans 16.6% Foreign Veterans of Wars 16.7% had their claims. Others have non-attorney resources that evolved denied, significant attorney subsequently of been absence and have matters.” involvement VA claims to obtain counsel to review unable prosecute their cases. 473 U.S. 105 S.Ct. at at specifically reject The Court in Walters high price of those who A is demanded argument ed the Veter veterans’ Virginia’s of extract the life’s blood West procedures Administration’s are so ans economy from in her moun- the arteries complex, procedurally factually, lungs clogged his with tains. As become they require lawyer representation of dust, pervasive the miner is insidious and Although conceded claimants. the Court given graphic quality projection agent orange or radiation cases of life that lies ahead. nature “complex,” exposure might be considered being progressive, miner feels disease most, constituted, per these two cases help- increasingly himself weakened appeals cent of to the BVA. conform less, provide even the most mod- unable principle ance with the fundamen family. support est means of his procedure depends on the tal fairness of debilitating impact The full extent of truth-finding inherent in the risk error long exposure term dust coal was applied generality recognized passage Title IV of exceptions, than the rare rather Safety Act of Federal Coal Mine persuaded pro that the VA Court was not legislation Congress’ This ac- 1969.10 changed to accommodate cess should be knowledgement of the failure state exception” “complex” the “rare compensation programs to workers’ ad- 328-330, 105 S.Ct. at 3193-3194. *6 lung. devastating dress the effects of black Finally, the Court examined nature legislation only original covered under- In property of the interest at issue. widows, ground miners and their wives or Goldberg Kelly, 90 S.Ct. v. recovery and allowed of benefits (1970), 25 287 the Court held L.Ed.2d disability orig- cases of total or death. The possible recipient subject that a to welfare legislation Part B inal divided claims into termination of was entitled to a filed before 31 December claims—those lawyer. Eldridge, supra, In v. Mathews by Secretary to administered security disability the Court held that social (HEW), of Health and Welfare Education right recipients pre- had no to a benefit Part C filed after 31 claims—those termination, hearing. The trial-like December 1972. Part C claims were to be stake in found that the benefits at VA by Secretary administered of Labor granted proceedings, which are not on the provisions Longshore- certain of the under need, of are closer to the social secur- basis Compensation man’s and Harbor Workers’ ity benefits in Mathews than of Payment Act of 1927.11 Part C claims payments upon “... which the re- welfare responsible opera- by was to be made cipients Goldberg dai- depended their tor, operator responsible or if no could be 332-333, 105 ly subsistence.” 473 U.S. at found, from federal S.Ct. .revenues. 1972, Congress passed Lung In the Black IV Benefits Act12 amended the earlier Lung Legislation Black History legislation. extending In addition cover- age changing to surface miners some currently There exists in State criteria, eligibility post- 1972 Act Virginia large elderly, population West poned Department jurisdiction Labor miners, dependents sick coal their and their filed after 31 December estab- Many have for extended survivors. waited category review lished a transitional for claims periods for administrative 92-303, (1972). (1969). 10. Pub.L. No. No. 86 Stat. Stat. 742 Pub.L. 153 83 11. seq. 901 et U.S.C. July restricting eligibility 1973 and 31 criteria in an ef-

filed between December required companies carry coal make the Trust Fund fort to solvent. qualify or to for self-insurance. insurance sharply 1981 amendment has resulted in a Secretary The Act also allowed the approval reduced rate claims. DOL regulations reopen promulgate HEW to period January that for the statistics show pending or denied claims and review 1982, through March number legislation. them under the new The Secre 58,680, initial claims filed was and the num- tary a set “interim” established of liberal (after approvals appeals ber of final to an regulations surge caused a in Part B BRB) Judge Administrative Law approvals. B Part claims were decided 3,383 approval total rate of 5.8 —a employer liability. individual percent.15 Lopatto, Lung “The Federal Black Pro See gram: A 1983 Primer” 85 W. Va.L.Rev. V (1983). at 686 The DOL encountered much Lung Black Claims Process and difficulty finding “responsible opera Attorney Fee Provisions pay tors” to Part claims due to C considering changing industry. structure of the coal Without the detailed eli spite expense gibility regulations promul of considerable criteria and effort by government, responsible operators gated under each of the amendments dis being only twenty-five V, were identified in history cussed of black thirty percent of the cases. Id. at 689-690. legislation demonstrates that even fil complex. of a claim for benefits is It response expense resulting requires often to determine which surge approvals from the without a cor- applies particular benefit structure to a responding responsible opera- increase of responsible operators claim. When claims, Congress passed tors to choice, represented by lawyers of their at a Lung Benefits Reform Act of 197713 agreement they fee set whatever make and the Black Benefits Revenue Act (there regulation is no of defense attor of 1977.14 These amendments established fees), neys’ represent and the trust fund is Lung Disability the Black Trust Fund to be ed Office the Solicitor financed an excise tax on ton each *7 DOL, appears a claimant who without a underground surface or In mined coal. baffling frustrating inis for a and addition, the fund was made liable for all experience. lung litigation Black has none valid in Part C claims which the miner’s homey, of the claimant-oriented ambiance employment last covered ended before 1 that one finds in the Veterans’ Administra January 1970. These 1978 amendments tion. eligibility also contained liberal criteria that relatively high approval

resulted in a rate. Furthermore, leg- in black cases the regulations specifically islation and contem- immediately, Almost the Trust Fund be- and, plate representation by lawyers unlike came insolvent. The 1978 amendments pay- in the VA claims also previously directed that all denied and attorneys’ ment of For B fees. Part pending cases be reviewed under the new (filed 31, 1972), before claimants large criteria. December This new review created a backlog backlog responsible attorneys’ for the fees. systemic of cases and 31, 1973, Congress legisla- continued. amended the For claims filed after December again (if raising responsible operator tion in the excise either the one can tax 95-239, (1978). approves only 13. Pub.L. No. 92 Stat. trative level in the DOL about 95 5% of claims made under the 1981 amendments. 95-227, (1978). 14. Pub.L. No. 11 92 Stat. Delays Processing Adjudicating and Hearing Employment Claims: Curiae, Moran, 15. See Before Brief of Amicus Jane Housing and Subcommittee the House Com- Also, DOL statistics at note Government a of Cong., Operations, mittee on Government 99th Accounting report Office confirms that the Of- (1985) (GAOReport Compensation 1st Sess. at 55-56 19). HRD-85- fice of Workers' which makes the initial determination of claims at adminis- 540 identified) provided

be or the Trust Fund is liable for mined from information attorneys’ application fees. in either But situation accordance with cri- approved 725.366(b). under 20 provided fee must be C.F.R. teria in 20 C.F.R. § addition, 725.365 755.366. the Benefits Review Board has §§ (i.e., contingent ruled that the nature risk In our consideration of the constitutional- loss) litigation may included as ity provisions, must the fee we examine (b) provision criterion under the regu- statute the words of the “any consideration other in- allows lations, also the of their manner admin- may formation which be relevant regard we do istration. not find requested.” amount Risden v. Di- statutory requirements assuring rector, No. BRB BRBS 819 fees “reasonable” are unconstitutional on (1980). principle; their as a matter of face rather regulatory we find that the total scheme is 726.366(b) Although appears C.F.R. § As unconstitutionally applied. the U.S. Su- provide fees will fair- preme overturning Court stated a state ly counsel, compensate competent thus compulsory work statute in v. Reyn- guaranteeing process rights, claimants’ due olds, 86, 59 235 U.S. 35 S.Ct. L.Ed. 162 an record examination factual before (1914): us reveals that this is not the case. Nu- statutes, face, attorney If upon such state their merous filed in affidavits this case administration, testimony as well the manner before the House of rights deny by Representatives the effect to have secured Subcommittee on Labor or to nullify attorney Federal Constitution Standards establishes that thereto, passed pursuance policy discourages lawyers statutes DOL fail, omitted, representing must from em- claimants so [citations phasis supplied] claimants, many with cases at least merit, arguable are unable to find counsel 90. In U.S. at 35 S.Ct. at Griffin represent them. Illinois, v. 76 S.Ct. (1956) L.Ed. 891 the U.S. Court VI which, held unconstitutional a state law effect, transcript required perfect Implementation Actual the DOL’s provide appeal criminal but did not a free Attorneys’ Fee System transcript indigents. pointed any attorneys’ The DOL will not award out that: fee until “final” decision has been made Dissenting opinions argue here that the 928(a) in a case. See 33 U.S.C. upheld Illinois Law should be since its Potashnick, Thompson v. 812 F.2d 574 applies poor terms to rich alike. (9th Cir.1987). Although a claimant *8 nondiscriminatory But a law on its face prevail the Deputy before Commissioner grossly discriminatory oper- its Judge and (assuming Administrative Law ation. appeal stage) taken is at each and his 351 U.S. at note S.Ct. note attorney petition files a fee ap- proved stage, at each fee will not be above, explained

As paid by we 20 C.F.R. until a 725.- after final decision the Ben- § 366(a) provides (BRB). lawyer that the claimant’s efits Board If Review the BRB a application should file with depu- remands the case to the Administrative commissioner, ty Judge, the administrative Law the attorney law must wait even judge longer or the Benefits Review Board for the for his fee. The record reveals that performed years, services for before individual wait often five to ten or years, receiving any payment.16 tribunal. fee is then to be deter- before 16. A report by Accounting August years the Government took Of- more than two to fice, statistics, relying adjudicate. on DOL states that When 78% of time is added for the initial disposed cases ap- the Office Administra- administrative determination well as an 1, 1983, BRB, Judges does, indeed, peal tive Law between October and it is clear that it pay- provision attorney, employed There is no the law for Another affiant for ment of interest on fees.17 One years five the United Mine Workers of currently attorney affiant states that he is America, who has lung handled black cases $30,000 in owed more than fees that have during years, all five and worked exclusive- paid. Ami- been awarded Brief of but ly lung years, on black cases for states two Moran, cus Curiae Jane affidavit of Robert willing represent attorneys that few are to Cohen, small, depressed F. In a Jr. at lung black claimants due to risk of no $30,000 Virginia West is a town substantial (and, therefore, fee). recovery no This affi- practi- amount of for an money individual points lawyer ant also out a that because long run, Maynard tioner. In the as John accepts generally the case before either observed, Keynes once we are all dead. In parties’ complete, medical evidence is run, lawyers run, the short have to offices lawyer usually unable to assess mer- mortgages and pay to children to educate. lung its of a black claim until after he attorney Another affiant states that agrees represent the claimant. Further- allowing DOL policy18 has an informal a more, nearly impossible handle a pro- maximum rate of hourly $85.00 on pro few cases bono basis because the Commissioner, ceedings Deputy before the complexity lung litigation requires of black hourly a maximum rate of $125.00 expertise level of that is consistent proceedings before Office of Adminis- large with a number of due to cases Id., Judges trative Law or BRB. affidavit necessary investment of enormous time of Frederick at 3. Muth This same affiant learn and keep the law current with average typical states that a case will be- changes.19 eight years, tween depending two and on the House Subcommittee La- length appellate litigation, hearings bor Standards20 held several because of this factor and the low rate of regions study coal problem compensation (in light contingent of its na- backlog systemic of black cases. Two ture), qualified accept- attorneys fewer lawyers who testified before Subcom- ing claims than required Wise, Virginia, mittee who have been process existing meritorious claims. He representing claimants since the points also out "... it has become enacted, provided specific was ten first law increasingly common to find instances examples approved, where fees were hearing of Labor dockets payment no received for least two populated primarily pro with se claimants years, years some five ...” and that law firm inun- his has been Another dated more.21 testified that prospective clients have who been retain there are his office which unsuccessful efforts to competent representation. paid Id. at 4. fees were awarded but not for more years operator Delays responsible pay take to resolve claim. in Process- must interest if it fails ing Adjudicating initially Claims: Hear- benefits awarded either commissioner, Employment Housing appeal. deputy Sub- or on 30 U.S.C. Before committee House Govern- 20 CFR § Committee on 725.608. Operations, Cong., ment 99th at 41 1st Sess. (1985) (GAO HRD-85-19). Report policy does not 18. The DOL have a formal estab- lishing hourly maximum rate. Ashmore v. *9 Director, (1981). BRB No. 3 BLR 1-374 17.Although the seems DOL cavalier about lawyers years fact that must wait for to collect Appendix A. 19. See fees, receiving fees without also interest on the we note that the Internal Revenue Service 20. Subcommittee of the House Committee on Rhadamanthine in its collection Education and Labor. government payee when the U.S. is a rather payor. any penalty than a In addition to that assessed, might Investigation properly Backlog collects 21. in IRS taxes, any Hearings unpaid interest on overdue or even if cases: the Subcomm. on Labor before Comm, taxpayer granted been has an extension of the House Relations Labor, on Education and pay. Cong., time in which to See 26 U.S.C. § 99th 1st Sess. 82-83 and 88-89 (1985). seq. CFR et We that § 301.6601-1 also note years.22 if assume than three Even we VII examples “exceptional” that these are in Application Walters Criteria way, very “excep- some existence of Lung Litigation to Black lawyers required tional” in are cases which When the criteria set forth the U.S. operation to subsidize the of the federal Court to assess the Walters government chilling effect must have on constitutionality ap- of fee limitations lawyer willingness system. to enter the cases, plied lung appar- it black becomes pro- ent Fifth that the Amendment’s due Finally, lawyer many one testified that requires provisions cess clause that the for colleagues unequivocal- his had stated "... awarding attorneys’ lung fees in black ly they lung not take black would must, fact, repre- allow claimants delay receiving cases because of the by competent sentation counsel. possibility for their work as well as the they may receive no fee at all.”23 When examined the Walters Virtually lawyers government all of the who testified nature of the interest in limit- fees in veterans’ it found that before this subcommittee stated that purpose of the limitation was to avoid ever, rarely, lung if took black cases due to lawyers’ sharing needlessly claimants’ ben- decision, long delay before addi- procedures efits. The Court found that VA delay having paid, tional fees non-adversarial; designed to be uncompensated receiving pay- risk of no lawyers large that if become involved on a ment, particularly light signifi- complicated scale a more and adversarial cantly approval lower rate under the 1981 process any improve- will evolve without eligibility rules. ment terms of rates of error over the then, hardly surprising It is that most system. current in black choice, lawyers, any at least most who have litigation, it Congress is clear that intended choose to require handle cases that do not lawyers be used claimants because year delay payment. a five for fee The specifically provides lawyers, and for currently keep two factors that most attor- payment of a attorney’s “reasonable” fee. neys accepting from cases are although U.S.C. 928. And the VA long delay in payment, relatively simple provision interest, pre- lack non-adversarial, lung process the black contingent miums to offset the nature of complex both and adversarial.26 the work. This latter factor has become government requiring ap- interest in increasingly prominent approval as the rate proval steadily following declined the enact- cases is to respon- ensure that neither the ment of the 1981 amendments. DOL sta- operator sible nor the Trust Fund will be tistics approval demonstrate an rate overcharged. prohibition against di- claims decided under the 1981 law of 22.7% agreement rect between claimant and his for claimants before the Administrative lawyer protect is to improv- claimants from Judges, Law approval and an overall rate agreements needlessly deplete ident approval significant- This 5.8%.24 rate is their benefits. Califano, See Moore v. ly claims,25 smaller than that for VA (1979). F.Supp. 146 at 149 Unfortunately, demonstrates not necessity of law- regulations the result of these has been to yer representation, but the substantial risk make almost entirely unavailable that a Indeed, will receive no fee at all for although claimants. the ordi- his work. nary upon claimant is not called to share 14,400 22. Id. at approximately 194. more were allowed after appeals. 473 U.S. at 105 S.Ct. at Id. at 188. *10 supra, 24. See note 15. discussion, supra, 26. See at Sections IV and V. 800,000 25. Of VA claims in more than 400,000 were allowed at the initial level and claimants; lawyer, representative they current of most his with a under the award system the claimant seldom has award re- they were all refused benefits before Respondent to share. tained who then won their Ironically, responsible operator cases.28 a then, attention, turns our This lawyers is free to retain to resist claims. Wal- analyzed second factor the Court expensive, operators Because benefits are ters, namely, depriva- the risk of erroneous oppose often claims vigorously.29 In cases existing pro- tion of benefits under the VA paid by where the award will be Trust cedure, probable value of addition- Fund, represented is by lawyers Fund Relying safeguards. al or substitute on from Fi- the DOL Office of the Solicitor. {supra, the statistics before it in Walters nally, although orga- the veterans’ service 8), note which demonstrated that claimants provide knowledgeable represent- nizations lawyers only marginally more suc- benefits, atives to claimants a aid for VA cessful VA cases than claimants impressed greatly fact the Court lawyers, allowing the Court found that rep- no such of alternative free access to would not claimants lung resentation exists aid black claim- significantly pre- increase the number Therefore, lawyer representation ants.30 is vailing Factually, claimants. is decid- virtually prevent essential erroneous lung edly not situation in black deprivations benefits for victims of black proce- process The black lung. factually complex. durally, legally The third and final factor considered Furthermore, at least in cases where a Walters the Court in was the nature of operator responsible potentially liable for private at benefits, interest stake. The it is Court found viciously adversarial.27 Un- fortunately, do us VA benefits more akin to we not have before considered Math- security statistical social benefits kind of evidence that Court had in Walters. ews than However, Respon- are to the welfare benefits clients probably dent’s can taken as in Goldberg.31 considered Because black Moran, Although Compensa- January 27. the Office of letter Workers’ attached from (which tion in the is re- Eugene Claypole, Labor John Darcus and James Slus- sponsible claims) for the initial decision of ser of UMWA. filed, approves only about 5% of claims responsible operators appeal more than 90% of Court 31.The District in the Walters held approvals these to the Office of Administrative benefits, applicants persons no less than denied, Judges. Of the Law 95% of the claims them, receiving already "property" have a inter- applicants appeal about OALJ. De- 40% to the applicants statutory est if the meet the criteria Processing lays Adjudicating Lung Black Supreme for benefits. Court has far thus Hearing Employment Claims: Before recipient held a of benefits has Housing Subcommittee Committee the House "property” receipt. in their interest continued Cong., Operations, on Government 1st Sess. 99th Since at one of the least claimants in Walters (1985) (GAO HRD-85-19). Report at 55-56 alleged being already a diminution benefits received, 34, 66-70, 111, 138-9, 82-83, 95, did not decide 28. Record whether "property” and 152. mere claimant has a his interest in prospective benefits. 473 U.S. at note Curiae, Moran, 29. Brief Amicus Jane affida Respondent Triplett note 105 S.Ct. at Robert Cohen at of Freder vit of affidavit represented one claimant from whom ick Muth at 5-6. “The of a 1982 actuarial value government sought repayment alleged of an by living nearly spouse claim $150,000 miner with a overpayment of benefits. Record at 100-102. Lopatto, dollars." “The Federal Black clearly property Because this client had a vested Primer," Program: Lung A 1983 W. Va.L.Rev. benefits, interest in we these need not rule (1983) citing in Black actuarial chart property a claimant’s nature of Depart Report, Benefits Act Annual benefits, prospective question (Jan.1981). ment Labor 33 far Court has so deferred. we here that a Although state our belief claimant who meets the United of Amer- Mine Workers making eligible (UMWA) provided represen- the criteria him ica substantial deprived past, should not be of due safe- tation claimants in the District 31 of UMWA, serving guards simply already one because he is of three districts West receiv- Virginia, representation has ceased such due to benefits. benefits are not a form Curiae, money. largesse, government lack of compen- Brief of Amicus Jane but rather are *11 regulations deny qualified claimants only in cases of are awarded lung benefits death,32 may by Con- they procedural safeguards provided well disability total or only means of subsistence. provide gress that are essential to vindicate the welfare similar to Congress. This makes them right granted by also benefits recipients “upon daily for their subsist- Goldberg depended VIII 473 U.S. at ence.” S.Ct. at 3195. The Risk Loss Problem sys- the DOL Accordingly, find that we possible ways to award There are several does, in awarding attorneys’ fees tem attorneys’ fees that take into account ability to fact, severely restrict claimants’ them, risk of loss factor represent competent find provide directly, could for a therefore, pro- Most law and, violates due percentage contingent fee on a set the decision of the based cess in accordance with awarded, lump Respondent Supreme Court in sum U.S. Walters. In the alterna- contracted for in this case. Alternatively, independent ba- there is tive, multiplier could be used to enhance process in finding a violation of due sis hourly compensate the “normal” effectively de- limitation scheme that a fee Supreme risk of loss. The U.S. granted right to benefits nies claimants use of “contin- recently has examined the Congress. fundamentally It is unfair multipliers” in context of fee- gency right government for the to confer shifting statutes. hand, away and take it with the other one John Marshall said hand. As Chief Justice Pennsylvania Valley v. Delaware (1 Cranch) Madison, Marbury v. 5 U.S. Council, 483 U.S. 107 S.Ct. Citizens (1803): 137, 2 L.Ed. 60 (1987), 3078, 97 L.Ed.2d 585 the Court re- cases,” says, “it is a “In all other he use of a versed a U.S. District Court’s rule, general indisputable that where contingency multiplier to enhance an award legal legal right, there is a there is also a plaintiffs fees to successful suit, law, remedy by or action at whenev- fee-shifting provisions of the under the right [quoting er that is awarded.” (42 7604(d)). Air Act Jus- Clean U.S.C.S. § ... Blackstone] White, writing plurality, for a said tice government of the United States whether, “The issue before us is when govern- emphatically termed a been prevails, attorney or plaintiff its should laws, and not of men. It will ment of separate compensation for be awarded certainly high ap- this cease to deserve being assuming paid.” the risk of not remedy pellation, if the laws furnish no Although 107 S.Ct. at 3081. right. legal of a for the violation vested joined plurality to Justice O’Connor (1 Cranch) at 163. her majority, make a she limited concur- particular circumstances of the rence to the upon qualified Congress has conferred Congress because she concluded that right claimants the to receive black to foreclose considera- “... did not intend Congress prescribed has also benefits. setting contingency a reasonable (the tion remedy process) guarantee fee-shifting provisions such as fee under right, is the an essential of which is, therefore, Air Act ...” Id. 107 S.Ct. at right unconsti- the Clean to counsel. It by its tutional for the of Labor

sation for which the miner has exception paid dearly, The statute has one that allows eligible disability payment survivors of a death. If due of benefits either with total or 1, 1978, truly concept, who dies before March and who a flexible as the U.S. miner held, years employed in coal mines repeatedly can at least 25 Court has there 30, 1971, prior justification to June unless it is established be no for an inflexible rule that partially died, property miner he was not in benefits that when the claimants have no they qualify lung. yet totally U.S.C. disabled due to for which but which do not 921(c)(5) (1981). receive. *12 difficulty cases, addition to the mathematical lung however, black no contract be- computing contingency multipliers, allowed, tween a claimant lawyer and his pointed Court strongest out that one of the lawyers so accept forced to the risk of objections penalizes to them is that “... it receiving no fee at in large majority defense, the defendant strongest with the of cases. plaintiff’s forces him to subsidize the Furthermore, lung black when attorney bringing for other unsuccessful either the claimant or the Trust Fund must against actions other defendants.” Id. at fees, pay attorneys’ danger there is no 3085, citing Leubsdorf, Contingency “The losing defendants’ compensating plaintiffs’ Awards,” Attorney Factor in Fee 90 Yale lawyers prevailing against for not other 473 at

L.J. 488-491. The Court also noted defendants in other cases—the factor that contingency multiplier might encour- so disturbed the Valley. Delaware age risky litigation because the less chance Also, it is clear from the evidence before us prevailing, there is of higher the multi- that the administration lung of the black plier. Id. at 3086. Justice has, provisions fact, fee O’Connor, as dissenting well as the four caused claimants to face substantial diffi- Justices,33 argued reasoning that this cor- finding culties in willing counsel repre- rectly suggests awarding contingency them, sent specifically factor required by enhancement based on the par- merits of a the Court in Delaware Valley for enhance- may undesirable, ticular case be but the ment of in fee-shifting cases. Id. fact that it particu- be undesirable in a not, lar case does as a matter principle, IX undercut justification substantial contingency enhancement in types some It is clear from the evidence before (Blackman, J., cases. Id. at 3097 dissent- lawyers us that most unwilling rep ing)- lung resent black claimants because of the inadequate fees awarded the DOL. On

The Court held that enhancement of a hand, the one years takes a matter of fee for the fee-shifting risk of loss in cases case, litigate a and often an additional should two exceptional be made cases years after a successful when conclusion for a the risk of no recovery is clear from lawyer paid to be his fee. when, the outset of When there is a case and without risk- enhancement, provision interest, no plaintiff and a “... would have faced faces overhead costs that post substantial cannot be finding difficulties in poned, any lawyer counsel in will the local or other turn his attention to relevant mar- Id, addition, paying ket.” cases. In at 3089. The Court because there concluded systematic these elements no present were not enhancement of fees to com pensate lawyers before it and held that for the the District risk of loss—a multiplier very Court’s use of a risk in that case substantial decided under iihproper. the 1981 lawyers law—most who have a prefer contingent choice will fee cases that The Court’s decision Valley Delaware provide premiums for risk. preclude does not contingency use of a multiplier in lung black cases. suggest Delaware We do not what would Valley applies involving to cases fee-shift- system awarding attorneys’ best fees in ing statutes that are different from the cases. That properly decision is attorney provisions in black Congress left to promulgat- DOL Most importantly, fee-shifting statutes do regulations pursuant congressional ability plaintiffs affect the legislation to enter within the bounds set into do, whatever contracts however, desire with Constitution. We find that and thus increase the currently law- administered de- yer’s beyond ultimate fee the amount nies claimants for prop- fee-shifting awarded under a erty statute. by severely without due of law Blackman, Brennan, 33. Justices Marshall and Stevens. ac- interest-bearing escrow representa- ceived into right to obtain

restricting their regulations highly hope in the that the by competent counsel counts the vain tion *13 lung litigation. contingent of black changed to allow adversarial would be that this agreements. We do not believe Triplett, was respondent, George The professional constitutes clear evidence tragic choice making a between forced into by Respondent. misconduct He either had to refuse conflicting duties. miners, deserving, represent disabled to Legal Ethics has the The on Committee practice, or bankrupting his run the risk of full, preponderating prove to burden regulations. The U.S. Su- the DOL violate Respondent is clear and evidence Siebold, Parte preme Court stated Ex professional under DR guilty of misconduct (1879) that: 25 L.Ed. 717 1-102(A)(4),(5) (6) Virginia and of the West void, is and is as An unconstitutional law Responsibility. Ac- Code of Professional created it is not no law. An offence George cordingly, Respondent, find the we mere- A under it is not crime. conviction Triplett, guilty ethical violation void, erroneous, illegal and ly resisting system that an administrative legal imprisonment. cannot be a cause clearly unambiguously violates Accord, Norton v. 100 U.S. at 376-377. Fifth to the Amendment Constitution of 425, 6 County, 118 U.S. S.Ct. Shelby the United States. (1885); 16 Am.Jur.2d 256.34 30 L.Ed. 178 § impor- an Because our decision involves Respondent tes- clients Six law, grant question tant of federal we hearing the Com- tified at the ethics before Department of Labor to inter- leave to the dissatisfied and mittee. One client was party litigant, as a either for the vene Tri- agreed Mr. said that he never rehearing purpose filing petition work, although anything for his plett Court, purpose for the before this or signature of his client testified prosecuting appeal contingent percent name on a 25 fee con- of the United States. appear did to be his. Record at 31. tract Attorney Exonerated. explained Respondent The testified that he (and fully this client agreement the fee A APPENDIX clients) the client all of his other before signed it. at 144. The other five Record AMICUS, BY AFFIDAVIT SUPPLIED agreed pay Mr. they testified that clients JANE MORAN Triplett percent any past ZERBE, I, being duly H. first THOMAS awarded, they and that were were sworn, state as follows: Triplett’s felt satisfied with Mr. work and attorney employed I with District am an paid percent the 25 fee. he deserved to be Mine Workers of America Respondent put money the fee he re- United ques- prac- passed. leaves the Generally been Such a statute we do not believe it is sound just purports tice to cite AmJur. because the treatise often tion that it to settle as it would majority minority positions on states had the statute not been enacted. No re- given equal force. we devi- issue with necessary. peal an enactment of such general rule here because with ate from our regard void, unconstitutional law is Since an laws, unconstitutional to the effect of principles imposes general duties, follow that it no appears weight authority for the office, rights, no creates no confers overwhelming proposition quoted is so power authority anyone, or on bestows no minority position. there is no protection, justifies no acts affords no part, reads: 16 Am.Jur.2d in relevant performed A rests under it. contract which general that an unconstitutional rule is an unconstitutional statute creates no obli- state, statute, though hav- whether federal or by subsequent gation impaired legisla- to be law, reality ing law, name of is in no the form and tion. void, wholly ineffective for but is obey an unconstitution- No one is bound unconstitutionality any purpose; dates since are bound to enforce it. al law and no courts enactment, and not mere- from the time of its statute Persons convicted and fined under a branding ly from the date of the decision so subsequently re- held unconstitutional it, law, legal contem- an unconstitutional paid. [Footnotes omitted] cover the fines plation, inoperative as if it had never is as attorney generally accepts Since the Charleston, Virginia. West I have been before parties’ either medical evidence employed by District U.M.W.A. for fully developed, attorney five is often (5) During my tenure, years. year five unable evaluate the merits of the case at I have either handled federal black accepts the time he the client. This com- supervised attorneys who handled pounds attorney’s impossible risk. It is (2) federal black claims. For two attorneys handle fewa cases years, my exclusively work was almost pro necessary bono because it is to handle handling I Currently, federal claims. substantial number order to *14 Benefits, am Director of and as of that justify the the in- attorney time needs to job supervise lung I the attorney as vest to learn and keep current this com- myself. well handle some claims plex law. every I virtually am familiar with attor- By prohibiting attorneys taking a from ney Virginia in West represents who clients percentage award, the of back the statute I spoken per- federal black cases. have designed protect was coal and miners sonally many attorneys of these about gouging from attorneys. widows Un- handling the of economics federal black fortunately, the effect has been to make lung spoken I have also with clients lawyers unavailable to miners and wid- judges and administrative law about the designed protect. ows whom the law problem claimants, of not who are mem- only way system work will is to bers of United Mine of Workers Amer- drastically [Sig- increase the fee awards. ica, getting attorneys represent them acknowledgements nature and omitted] in federal black claims. ON REHEARING of attorneys willing The number to ac- cept federal black has always day, claims day On former to-wit the 14th of limited, been but it has declined even more December came the United States years. attorneys recent Of those Department by who do of Labor its Solicitor of accept Labor, Salem, not many federal black R. George Esq., pursu- and policy accepting granted, have a of them as a ant to leave heretofore intervened clients, service to represent petition grant whom on to rehearing the court to Intervenor, other matters. this matter. the United States Labor, Department petitioned also The reason attorneys unwilling supplement by record the inclusion represent claimants in federal black following: Affidavit James L. De simple claims economics. The cases are Maree, Director, Associate Division Coal difficult to and win the fee awards are too Compensation; Mine Workers’ Affidavit considering contingent low nature of Litt; Denney; G. Jane Affidavit of Nahum fee. prohibits The federal statute the at- Department of Labor Letters CM-1000a torney charging from the client. If the CM-1000b; de- awards and/or attorney case, wins the he submits a fee Ice, Ray- cisions the cases of Charles petition based number of hours that Beam, Corley, mond Thelma B. Jacob God- he in the claim the administrative win, Guire, Poling, Peter Anna J. Euna judge, attorney’s law who awards Ball, Hedrick, Scott, Harry F. William against the Most defendant. of the admin- All of Inobelle Stevenson. the aforesaid judges hourly istrative law award an rate hereby material is ordered filed made a generous that would be were it not a con- part of pur- the record in this case fee, tingent enough it is still consid- poses. ering contingent nature of the fee and very carefully low win rate. The rate The court has win considered the Department supplemental claimants before the Depart- Labor material filed judge deciding petition administrative law in support claims ment Labor of its 1, 1982, January post- rehearing, filed after carefully under and has also con- is only percent. representations amendment law 22.7 sidered the factual

F.2d ^[4] 9) and because the Trust Fund, in- legal arguments set forth in intervenor’s financed the coal (26 ( 4121(a), petition Supp. IV) its for rehear- support dustry & brief U.S.C. argu- ing. 9501), concludes that the currently court almost billion $3 of La- Treasury. ments advanced debt United States See upon the ini- maturely Maree, were considered supra. bor De Affidavit of James L. are ade- tial of this case and submission Higher attorney’s fees increase could original in the quately court’s debt, addressed expense more as could the opinion. prolonged processing from attor- (cf. ney participation in cases seeks to overcome the court’s Intervenor at 3191- at 324-326 S.Ct. [105 paid inade- conclusion that 3192]), by requiring hiring latter slowly the current quately and too under personnel of more at the and Bene- AU Department of Labor fee limitation prevent fits Review Board levels to through following representation: rebuilding backlog of a ... Such from “Nor is reasonable to conclude Fund, thereby increased costs to the *15 respondent that would have record government in the of in- form having experienced delays inordinate debt, given creased must be serious con- petitions approved. his fee In the one sideration, as the admonished peti- instance he a fee where submitted Mathews, 424 U.S. at S.Ct. at [96 obtaining a tion after Trust Fund award though they are even not control- 909] level, he re- deputy at the commissioner ling. point, govern- At some costs payment, requested ceived at the rate public (including ment and the the result- and for more hours than he documented ing need to cut limited resources else- (but requested), approxi- less than he where) indi- outweigh the benefit to the mately application eight months after his safeguard.” of vidual the additional applied In instance he ... the one where respon- pp. to an for a fee in a infer AU award Intervenor’s brief at 17. We case, arguing received an operator sible he that the Solicitor is that the cur- award, despite operator’s objections, system, rent fee limitation which discour- appli- ages adequate representation, justified within 11 months of the date of his is cation, grounds and within months of the AU’s on the that if claimants had access receipt lawyers, prevail of it.” claimants would more of often and raise the costs the black p. at that an Intervenor’s Brief We find program. Congress’s not find We do that eight delay eleven in fee month and month authorizing purpose limitations on fees payments simply support findings of eligible to reduce the number of claim- fact and of set forth conclusions law prevail who ants would receive bene- opinion. original court’s fits. constitutionality Intervenor defends the explicit Intervenor makes reference system applied by arguing as specially compiled statistics for its rehear- that a different more ex- would be ing petition Department in this case. The pensive in terms of the cost of law- both specially compiled Labor’s own statistics yers’ fees terms the added burden (the shot) conclusively Solicitor’s best dem- system affording a fair claimants onstrate that at the administrative law opportunity regard heard. to be this level, represented judge claimants coun- intervenor asserts: prevailing have a likelihood of that is sel legitimate government “Another interest greater appearing 2.5 times than claimants responsible operators is to ensure regard says: se. pro Solicitor and the Trust Fund will over not be compiled by charged. op. “Statistics recognized (slip The Court 28) sample resulting in a very of recent cases gave weight but little to this awards denials of benefits show that interest. This is substantial be operators’ rights represented cause the AU constitutional claimants are (Levins \y. Bd.], prevail Review level of the 92% 29% Benefits

versarial adjudica- nature represented. system....” the time when While the tory Although we know the statistics also that the unintentional, show small minori- irony is help we cannot ty pro se claimants have 11.6% arguing infer that the if Solicitor rate, certainly success this difference claimants have full and fair access to law- significant not so as to establish that yers, they might reprehensibly do adver- lawyers are indispensable in the BLBA things competent sarial such as introduce process particularly light claims evidence, regulations, vig- study the — representation rate.” 92% orously prosecute cases, perhaps even p. appeal brief Intervenor’s find the courts. We simply Solicitor has reinforced with Accordingly, is Adjudged, Ordered and more elaborate statistics the conclusion petition Decreed that re- Intervenor’s original opinion— that we reached in the be, hearing hereby and the same is denied. namely, prevail- claimant’s chance of itAnd is further Ordered that this Order represented when he is by counsel is printed original as an addendum to the substantially higher appears than he when opinion. pro se. represented by MILLER, Justice,

When claimants dissenting: counsel prevail frequently pro times 2.5 se traditionally We have stated that claimants, agree we cannot Solici- scope appellate review is confined to tor that the difference not constitutional- those issues decided at the trial level ex ly significant purposes. due *16 cept the jurisdic where lower court lacked argues Solicitor that: tion to act in the first instance. This has “Assuming, conceding, ap- that language coalesced into the reflected plicants property have a interest under Syllabus 2 of Duquesne Light Point Co. v. clause, process the due their interest 506, Dep’t, Tax 174 State W.Va. 327 S.E.2d intangible receiving the “ (1984): pass 683 ‘This Court not on a will applications. fair consideration nonjurisdictional question which not They losing only risk a chance at benefits by been decided the trial court the first rather than benefits themselves.” 2, Syllabus instance.’ Point Sands v. Se p. Intervenor’s brief at we Co., 522, curity Trust 143 102 W.Va. original stand our conclusions: We be- (1958).” 733 S.E.2d “receiving lieve fair that consideration” is question constitutionality Here exactly type of abstract entitlement of the black fee statute could have process principles designed that due below, been raised but it not. was Because protect and enhance. below, the issue was not raised there is no Finally, carefully we have considered developed. parte factual record The ex argument of following the Solicitor: affidavits filed ami- as attachments “Moreover, as in 473 U.S. at are, mind, my cus brief of Jane Moran 326 S.Ct. at there is also a risk 3193] [105 woefully predicate inadequate to the factu- attorney representation increased al conclusion majority. reached may exacerbate the adversarial nature of Furthermore, majority’s reliance on system, adjudicatory re- v. Walters National Ass’n

sulting Radiation increased administra- [sic] Survivors, 305, 3180, government tive to the 473 U.S. 105 S.Ct. 87 delay costs deserving (1985), completely claimants.” L.Ed.2d 220 misplaced. find, contrary statement, I majority’s to the p. Intervenor’s brief at Because re- 85, “clear, Walters does set sponsible operators may be as adversarial bright line standards.” did What Walters claims, as they wish the defense of uphold statutorily was to the ten fee dollar may spend as money much choose agent fees, rep- authorized for a lawyers’ who we have a hard time understanding seeking how claimant resented veteran who representation was veter- by lawyers is chiefly liable “exacerbate the ad- an’s benefits. It did so because

550

(1979) take an extraordinari- It would ]. legal proposi- began strong showing probability with this fundamental of error ly tion: present system prob- under —and constitutionality of an “Judging the presence attorneys ability that Congress properly considered Act possibility— sharply diminish that would ‘ duty most delicate gravest “the holding that the fee limita- to warrant a upon per- is called process of law. tion denies claimants due ’ 453 Goldberg, form.” Rostker v. deciding no that no We have hesitation 478, 486, 57, 101 S.Ct. 64 L.Ed.2d [69 showing was made out on the such 2646, (1981)] (quoting Blodgett v. record before the District Court.” 142, 148, Holden, 276 U.S. 275 U.S. 3192, 87 L.Ed.2d U.S. at 105 S.Ct. at (1927)(Holmes, 72 L.Ed. 48 S.Ct. at 236.1

J.)), analysis here begin our with we case, simply In this I do not believe customarily no deference than we less strong showing” “extraordinarily such an duly enacted and care- must to the generalized ex has been made based on the fully coequal of a considered decision filed this Court.2 parte affidavits of our Govern- representative branch complaint Here the main the several 105 S.Ct. at ment.” 473 U.S. affiants is not so much the amount of the L.Ed.2d at 232. received, receiving delay line in Court’s bottom Wal- backlog because showing that there no factual ters was I know of no court which has seized on this deprived that the fee veterans system. fact to a fee void process Eldridge, due under Mathews v. 893, 47 L.Ed.2d 18 96 S.Ct. Finally, appears to me to there (1976): lack of due extended to lamentable accordingly conclude that under “We Labor, Department of which now finds analysis great Eldridge the Mathews v. attorney’s its fee mechanism declared un- weight must be accorded Govern- having op- ever constitutional without here. The ment interest at stake flexibil- portunity to *17 heard this Court be before ity approach of our due announced its decision. is intended to allow room state I am authorized to that Justice resolution; dispute other forms of joins me in this dissent. McHUGH respect interests at to the individual here, legislatures are to allowed stake leeway to formulate such

considerable

processes being forced to con- rigid

form to a constitutional code of

procedural necessities. Parham v. See 608,

J.R., [584], 16, n. 61 [2507, n.

L.Ed.2d 99 S.Ct. 2493 procedures Eldridge, U.S. at S.Ct. unfairness of the administrative 1. Mathews v. 47 L.Ed.2d at formulated this set of the Veteran’s Administration and made this tell- appropriate pro- due factors to determine the comment: requirements: cess “Anecdotal evidence such as this well "[F]irst, private be affect- will finding by judge support be sufficient to action; second, ed the official the risk of jury litigation private parties or between deprivation an erroneous of such interest particular fact did or did not exist. But used, through procedures proba- pro- when we deal with a massive benefits value, any, ble if of additional substitute 800,000 by Congress gram provided in finally, procedural safeguards; per year regional claims offices, decided interest, including the function Government’s 36,000 appealed claims are involved and the fiscal and administrative BVA, simply it is not the sort of evidence that pro- burdens that the additional or substitute permit sys- a conclusion that the entire will requirement cedural would entail.” contrary governing reg- operated tem is to its ulations.” 473 U.S. at 324 n. 105 at S.Ct. at Court was confronted generalized 3191 n. 87 L.Ed.2d at 235 n. 11. with similar assertions about