Walters v. National Assn. of Radiation Survivors
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Full Opinion
WALTERS, ADMINISTRATOR OF VETERANS' AFFAIRS, ET AL.
v.
NATIONAL ASSOCIATION OF RADIATION SURVIVORS ET AL.
Supreme Court of United States.
*306 Mark I. Levy argued the cause for appellants. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, and William Kanter.
Gordon P. Erspamer argued the cause and filed a brief for appellees National Association of Radiation Survivors et al. Robert L. Gnaizda filed a brief for appellee American G. I. Forum.[*]
*307 JUSTICE REHNQUIST delivered the opinion of the Court.
Title 38 U. S. C. § 3404(c) limits to $10 the fee that may be paid an attorney or agent who represents a veteran seeking benefits for service-connected death or disability. The 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 it denies veterans or their survivors the opportunity to retain counsel of their choice in pursuing their claims. We noted probable jurisdiction of the Government's appeal, 469 U. S. 1085 (1984), and we now reverse.
I
Congress has by statute established an administrative system for granting service-connected death or disability benefits to veterans. See 38 U. S. C. § 301 et seq. The amount of the benefit award is not based upon need, but upon service connection that is, whether the disability is causally related to an injury sustained in the service and the degree of incapacity caused by the disability. A detailed system has been established by statute and Veterans' Administration (VA) regulation for determining a veteran's entitlement, with final authority resting with an administrative body known as the Board of Veterans' Appeals (BVA). Judicial review of VA decisions is precluded by statute. 38 U. S. C. § 211(a); Johnson v. Robison, 415 U. S. 361 (1974). The controversy in this case centers on the opportunity for a benefit applicant *308 or recipient to obtain legal counsel to aid in the presentation of his claim to the VA. Section 3404(c) of Title 38 provides:
"The Administrator shall determine and pay fees to agents or attorneys recognized under this section in allowed claims for monetary benefits under laws administered by the Veterans' Administration. Such fees
.....
"(2) shall not exceed $10 with respect to any one claim . . . ."
Section 3405 provides criminal penalties for any person who charges fees in excess of the limitation of § 3404.
Appellees here are two veterans' organizations, three individual veterans, and a veteran's widow.[1] The two veterans' organizations are the National Association of Radiation Survivors, an organization principally concerned with obtaining compensation for its members for injuries resulting from atomic bomb tests, and Swords to Plowshares Veterans Rights Organization, an organization particularly devoted to the concerns of Vietnam veterans. The complaint contains no further allegation with respect to the numbers of members in either organization who are veteran claimants. Appellees did not seek class certification.
Appellees contended in the District Court that the fee limitation provision of § 3404 denied them any realistic opportunity to obtain legal representation in presenting their claims to the VA and hence violated their rights under the Due Process Clause of the Fifth Amendment and under the First Amendment. The District Court agreed with the appellees on both of these grounds, and entered a nationwide "preliminary injunction" barring appellants from enforcing the fee limitation. 589 F. Supp. 1302 (1984). To understand fully the posture in which the case reaches us it is necessary to discuss the administrative scheme in some detail.
*309 Congress began providing veterans pensions in early 1789, and after every conflict in which the Nation has been involved Congress has, in the words of Abraham Lincoln, "provided for him who has borne the battle, and his widow and his orphan." The VA was created by Congress in 1930, and since that time has been responsible for administering the congressional program for veterans' benefits. In 1978, the year covered by the report of the Legal Services Corporation to Congress that was introduced into evidence in the District Court, approximately 800,000 claims for service-connected disability or death and pensions were decided by the 58 regional offices of the VA. Slightly more than half of these were claims for service-connected disability or death, and the remainder were pension claims. Of the 800,000 total claims in 1978, more than 400,000 were allowed, and some 379,000 were denied. Sixty-six thousand of these denials were contested at the regional level; about a quarter of these contests were dropped, 15% prevailed on reconsideration at the local level, and the remaining 36,000 were appealed to the BVA. At that level some 4,500, or 12%, prevailed, and another 13% won a remand for further proceedings. Although these figures are from 1978, the statistics in evidence indicate that the figures remain fairly constant from year to year.
As might be expected in a system which processes such a large number of claims each year, the process prescribed by Congress for obtaining disability benefits does not contemplate the adversary mode of dispute resolution utilized by courts in this country. It is commenced by the submission of a claim form to the local veterans agency, which form is provided by the VA either upon request or upon receipt of notice of the death of a veteran. Upon application a claim generally is first reviewed by a three-person "rating board" of the VA regional office consisting of a medical specialist, a legal specialist, and an "occupational specialist." A claimant is "entitled to a hearing at any time on any issue involved in a claim. . . ." 38 CFR § 3.103(c) (1984). Proceedings in front of the rating board "are ex parte in nature," § 3.103(a); no *310 Government official appears in opposition. The principal issues are the extent of the claimant's disability and whether it is service connected. The board is required by regulation "to assist a claimant in developing the facts pertinent to his claim," § 3.103(a), and to consider any evidence offered by the claimant. See § 3.103(b). In deciding the claim the board generally will request the applicant's Armed Service and medical records, and will order a medical examination by a VA hospital. Moreover, the board is directed by regulation to resolve all reasonable doubts in favor of the claimant. § 3.102.[2]
After reviewing the evidence the board renders a decision either denying the claim or assigning a disability "rating" pursuant to detailed regulations developed for assessing various disabilities. Money benefits are calculated based on the rating. The claimant is notified of the board's decision and its reasons, and the claimant may then initiate an appeal by *311 filing a "notice of disagreement" with the local agency. If the local agency adheres to its original decision it must then provide the claimant with a "statement of the case" a written description of the facts and applicable law upon which the board based its determination so that the claimant may adequately present his appeal to the BVA. Hearings in front of the BVA are subject to the same rules as local agency hearings they are ex parte, there is no formal questioning or cross-examination, and no formal rules of evidence apply. 38 CFR § 19.157 (1984). The BVA's decision is not subject to judicial review. 38 U. S. C. § 211(a).[3]
The process is designed to function throughout with a high degree of informality and solicitude for the claimant. There is no statute of limitations, and a denial of benefits has no formal res judicata effect; a claimant may resubmit as long as he presents new facts not previously forwarded. See 38 CFR §§ 3.104, 3.105 (1984). Although there are time limits for submitting a notice of disagreement and although a claimant may prejudice his opportunity to challenge factual or legal decisions by failing to challenge them in that notice, the time limit is quite liberal up to one year and the VA boards are instructed to read any submission in the light most favorable to the claimant. See 38 CFR §§ 19.129, 19.124, 19.121 (1984). Perhaps more importantly for present purposes, however, various veterans' organizations across the country make available trained service agents, free of charge, to assist claimants in developing and presenting their claims. These service representatives are contemplated by the VA statute, 38 U. S. C. § 3402, and they are recognized as an important part of the administrative scheme. Appellees' counsel agreed at argument that a representative is available for *312 any claimant who requests one, regardless of the claimant's affiliation with any particular veterans' group.[4]
In support of their claim that the present statutory and administrative scheme violates the Constitution, appellees submitted affidavits and declarations of 16 rejected claimants or recipients and 24 practicing attorneys, depositions of several VA employees, and various exhibits. The District Court held a hearing and then issued a 52-page opinion and order granting the requested "preliminary injunction."[5]
With respect to the merits of appellees' due process claim, the District Court first determined that recipients of service-connected death and disability benefits possess "property" interests protected by the Due Process Clause, see Mathews v. Eldridge, 424 U. S. 319 (1976) (recipients of Social Security benefits possess a protected "property" interest), and also held that applicants for such benefits possess such an interest. Although noting that this Court has never ruled on the latter question, the court relied on several opinions of the Court of Appeals for the Ninth Circuit holding, with respect to similar Government benefits, that applicants possess such an interest. See, e. g., Ressler v. Pierce, 692 F. 2d 1212, 1214-1216 (1982) (applicants for federal rent subsidies).
The court then held that appellees had a strong likelihood of showing that the administrative scheme violated the due process rights of those entitled to benefits. In holding that the process described above was "fundamentally unfair," the court relied on the analysis developed by this Court in *313 Mathews v. Eldridge, supra, in which we stated the factors that must be weighed in determining what process is due an individual subject to a deprivation:
"First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." 424 U. S., at 335.
In applying this test the District Court relied heavily on appellees' evidence; it noted that the veterans' interest in receiving benefits was significant in that many recipients are disabled, and totally or primarily dependent on benefits for their support. 589 F. Supp., at 1315. With respect to the likelihood of error under the present system, and the value of the additional safeguard of legal representation, it first noted that some of the appellees had been represented by service agents and had been dissatisfied with their representation, and had sought and failed to obtain legal counsel due solely to the fee limitation. The court found that absent expert legal counsel claimants ran a significant risk of forfeiting their rights, because of the highly complex issues involved in some cases. VA processes, the court reasoned, allow claimants to waive points of disagreement on appeal, or to waive appeal altogether by failing to file the notice of disagreement; in addition, claimants simply are not equipped to engage in the factual or legal development necessary in some cases, or to spot errors made by the administrative boards. Id., at 1319-1321.
With respect to whether the present process alleviated these problems, the court found that "neither the VA officials themselves nor the service organizations are providing the full array of services that paid attorneys might make available *314 to claimants." Id., at 1320. Even assuming that all VA personnel were willing to go out of their way for each claimant, a point which the court would not fully accept,[6] the court found that in any event the VA does not have the resources to permit the substantial investments of time that are necessary. The VA does not seek independent testimony that might establish service connection, or independent medical examinations with respect to disability.
In reaching its conclusions the court relied heavily on the problems presented by what it described as "complex cases" a class of cases also focused on in the depositions. Though never expressly defined by the District Court, these cases apparently include those in which a disability is slow developing and therefore difficult to find service connected, such as the claims associated with exposure to radiation or harmful chemicals, as well as other cases identified by the deponents as involving difficult matters of medical judgment. Nowhere in the opinion of the District Court is there any estimate of what percentage of the annual VA caseload of 800,000 these cases comprise, nor is there any more precise description of the class. There is no question but what the 3 named plaintiffs and the plaintiff veteran's widow asserted such claims, and in addition there are declarations in the record from 12 other claimants who were asserting such claims. The evidence contained in the record, however, suggests that the sum total of such claims is extremely small; in 1982, for example, roughly 2% of the BVA caseload consisted of "agent orange" or "radiation" claims, and what evidence *315 there is suggests that the percentage of such claims in the regional offices was even less perhaps as little as 3 in 1,000.
With respect to the service representatives, the court again found the representation unsatisfactory. Although admitting that this was not due to any "lack of dedication," the court found that a heavy caseload and the lack of legal training combined to prevent service representatives from adequately researching a claim. Facts are not developed, and "it is standard practice for service organization representatives to submit merely a one to two page handwritten brief." Id., at 1322.
Based on the inability of the VA and service organizations to provide the full range of services that a retained attorney might, the court concluded that appellees had demonstrated a "high risk of erroneous deprivation" from the process as administered. Ibid. The court then found that the Government had "failed to demonstrate that it would suffer any harm if the statutory fee limitation . . . were lifted." Id., at 1323. The only Government interest suggested was the "paternalistic" assertion that the fee limitation is necessary to ensure that claimants do not turn substantial portions of their benefits over to unscrupulous lawyers. The court suggested that there were "less drastic means" to confront this problem.
Finally, the court agreed with appellees that there was a substantial likelihood that the fee limitation also violates the First Amendment. The court relied on this Court's decisions in Mine Workers v. Illinois Bar Assn., 389 U. S. 217 (1967), and Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S. 1 (1964), as establishing "the principle that the First Amendment rights to petition, association and speech protect efforts by organizations and individuals to obtain effective legal representation of their constituents or themselves." 589 F. Supp., at 1324. This right to "adequate legal representation" or "meaningful access to courts," the court found, was infringed by the fee limitation again *316 without substantial justification by the Government. Id., at 1325-1326.
After reiterating the Government's failure of proof with respect to the likely harms arising from doing away with the fee limitation, the court entered a "preliminary injunction" enjoining the Government appellants from "enforcing or attempting to enforce in any way the provisions of 38 U. S. C. §§ 3404-3405 . . . ." Id., at 1329. The injunction was not limited to the particular plaintiffs, nor was it limited to claims processed in the District of Northern California, where the court sits.
II
Before proceeding to the merits we must deal with a significant question as to our jurisdiction, one not raised by appellees in this Court. This appeal was taken under 28 U. S. C. § 1252, which grants this Court jurisdiction "from an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action . . . to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party." We have here an interlocutory decree in a civil action to which an officer of the United States is a party, and the only question is whether the District Court's decision "holds" an Act of Congress unconstitutional. The problem, of course, is that given that the court's opinion and order are cast in terms of a "preliminary injunction" the court only states that there is a "high likelihood of success" on the merits of appellees' claims, and does not specifically state that the fee limitation provision is unconstitutional.
We do not write on a clean slate. In McLucas v. DeChamplain, 421 U. S. 21 (1975), this Court similarly entertained an appeal from an order that granted a preliminary injunction and in the process held an Act of Congress unconstitutional. In holding that we had jurisdiction under § 1252 we noted that that section constitutes an "exception" to "the *317 policy . . . of minimizing the mandatory docket of this Court," and we went on to state:
"It might be argued that, in deciding to issue the preliminary injunction, the District Court made only an interlocutory determination of appellee's probability of success on the merits and did not finally `hold' the article unconstitutional. By its terms, however, § 1252 applies to interlocutory as well as final judgments, decrees, and orders, and this Court previously has found the section properly invoked when the court below has made only an interlocutory determination of unconstitutionality, at least if, as here, that determination forms the necessary predicate to the grant or denial of preliminary equitable relief." Id., at 30.
We think this case is controlled by McLucas. It is true that in McLucas the District Court actually stated its holding that the statute was unconstitutional, whereas here the court's statements are less direct. But that is merely a semantic difference in this case; inasmuch as any conclusions reached at the preliminary injunction stage are subject to revision, University of Texas v. Camenisch, 451 U. S. 390, 395 (1981), it should make little difference whether the court stated conclusively that a statute was unconstitutional, or merely said it was likely, so long as the injunction granted enjoined the statute's operation. This Court's appellate jurisdiction does not turn on such semantic niceties. See also California v. Grace Brethren Church, 457 U. S. 393, 405 (1982) ("§ 1252 provides jurisdiction even though the lower court did not expressly declare a federal statute unconstitutional. . .").
Indeed, we note that the problem raised by the statute's use of the word "holding" may in any event be a bit of a red herring. In its original form § 1252 provided this Court with appellate jurisdiction over decisions "against the constitutionality of any Act of Congress," see Act of Aug. 24, 1937, *318 ch. 754, § 2, 50 Stat. 752;[7] although this language was changed when the provision was codified in 1948, so that § 1252 now grants jurisdiction from a decision "holding any Act of Congress unconstitutional," this change was effected without substantive comment, and absent such comment it is generally held that a change during codification is not intended to alter the statute's scope. See Muniz v. Hoffman, 422 U. S. 454, 467-474 (1975). Any fair reading of the decision at issue would conclude that it is "against the constitutionality" of § 3404, and we are loath to read an unheralded change in phraseology to divest us of jurisdiction here.
Finally, acceptance of appellate jurisdiction in this case is in accord with the purpose of the statutory grant. Last Term, in Heckler v. Edwards, 465 U. S. 870 (1984), we discussed § 1252's legislative history. We noted that in enacting § 1252 Congress sought to identify a category of important decisions adverse to the constitutionality of an Act of Congress which decisions, because the United States or its agent was a party, had implications beyond the controversy then before the court and to provide an expeditious means for ensuring certainty and uniformity in the enforcement of such an Act by establishing direct review over such decisions in this Court. Id., at 879-883. Edwards teaches that the decisions Congress targeted for appeal under § 1252 were those which involved the exercise of judicial power to impair the enforcement of an Act of Congress on constitutional grounds, and that it was the constitutional question that Congress wished this Court to decide. As we pointed out in McLucas, *319 § 1252 contemplates that this impairment can arise from interlocutory decrees, just as the original statute provided for appeal from decisions in "any proceedings." Cf. Goldstein v. Cox, 396 U. S. 471, 476 (1970) (28 U. S. C. § 1253 authorizes direct appeals from preliminary injunctions issued by three-judge courts). A single district judge's interlocutory decision on constitutional grounds that an Act of Congress should not be enforced frustrates the will of Congress in the short run just as surely as a final decision to that effect. By § 1252 Congress gave the Government the right of immediate appeal to this Court in such a situation so that only those district court injunctions which had been reviewed and upheld by this Court would continue to have such an effect. Cf. Edwards, supra. The injunction at issue here creates precisely the problem to which § 1252 was addressed, inasmuch as it enjoins the operation of the fee limitation on constitutional grounds, across the country and under all circumstances. Thus, whether or not the injunction here is framed as a "holding" of unconstitutionality we believe we have jurisdiction under § 1252.
III
Judging the constitutionality of an Act of Congress is properly considered " `the gravest and most delicate duty that this Court is called upon to perform,' " Rostker v. Goldberg, 453 U. S. 57, 64 (1981) (quoting Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J.)), and we begin our analysis here with no less deference than we customarily must pay to the duly enacted and carefully considered decision of a coequal and representative branch of our Government. Indeed one might think, if anything, that more deference is called for here; the statute in question for all relevant purposes has been on the books for over 120 years. Cf. McCulloch v. Maryland, 4 Wheat. 316, 401-402 (1819). This deference to congressional judgment must be afforded even though the *320 claim is that a statute Congress has enacted effects a denial of the procedural due process guaranteed by the Fifth Amendment. Schweiker v. McClure, 456 U. S. 188 (1982); Mathews v. Eldridge, 424 U. S., at 349. We think that the District Court went seriously awry in assessing the constitutionality of § 3404.
Appellees' first claim, accepted by the District Court, is that the statutory fee limitation, as it bears on the administrative scheme in operation, deprives a rejected claimant or recipient of "life, liberty or property, without due process of law," U. S. Const., Amdt. 5, by depriving him of representation by expert legal counsel.[8] Our decisions establish that "due process" is a flexible concept that the processes required by the Clause with respect to the termination of a protected interest will vary depending upon the importance attached to the interest and the particular circumstances under which the deprivation may occur. See Mathews, supra, at 334; Morrissey v. Brewer, 408 U. S. 471, 481 (1972). In defining the process necessary to ensure "fundamental fairness" we have recognized that the Clause does not require that "the procedures used to guard against an erroneous deprivation. . . be so comprehensive as to preclude any possibility of error," Mackey v. Montrym, 443 U. S. 1, 13 (1979), and in addition we have emphasized that the marginal gains from affording an additional procedural safeguard often may be *321 outweighed by the societal cost of providing such a safeguard. See Mathews, 424 U. S., at 348.[9]
These general principles are reflected in the test set out in Mathews, which test the District Court purported to follow, and which requires a court to consider the private interest that will be affected by the official action, the risk of an erroneous deprivation of such interest through the procedures used, the probable value of additional or substitute procedural safeguards, and the government's interest in adhering to the existing system. Id., at 335. In applying this test we must keep in mind, in addition to the deference owed to Congress, the fact that the very nature of the due process inquiry indicates that the fundamental fairness of a particular procedure does not turn on the result obtained in any individual case; rather, "procedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases, not the rare exceptions." Id., at 344; see also Parham v. J. R., 442 U. S. 584, 612-613 (1979).
The Government interest, which has been articulated in congressional debates since the fee limitation was first enacted in 1862 during the Civil War, has been this: that the system for administering benefits should be managed in a sufficiently informal way that there should be no need for the employment of an attorney to obtain benefits to which a claimant was entitled, so that the claimant would receive the entirety of the award without having to divide it with a lawyer. See United States v. Hall, 98 U. S. 343, 352-355 (1879). This purpose is reinforced by a similar absolute prohibition on compensation of any service organization representative. *322 38 U. S. C. 3402(b)(1). While Congress has recently considered proposals to modify the fee limitation in some respects, a Senate Committee Report in 1982 highlighted that body's concern that "any changes relating to attorneys' fees be made carefully so as not to induce unnecessary retention of attorneys by VA claimants and not to disrupt unnecessarily the very effective network of nonattorney resources that has evolved in the absence of significant attorney involvement in VA claims matters." S. Rep. No. 97-466, p. 49 (1982). Although this same Report professed the Senate's belief that the original stated interest in protecting veterans from unscrupulous lawyers was "no longer tenable," the Senate nevertheless concluded that the fee limitation should with a limited exception remain in effect, in order to "protect claimants' benefits" from being unnecessarily diverted to lawyers.[10]
In the face of this congressional commitment to the fee limitation for more than a century, the District Court had only this to say with respect to the governmental interest:
"The government has neither argued nor shown that lifting the fee limit would harm the government in any way, *323 except as the paternalistic protector of claimants' supposed best interests. To the extent the paternalistic role is valid, there are less drastic means available to ensure that attorneys' fees do not deplete veterans' death or disability benefits." 589 F. Supp., at 1323.
It is not for the District Court or any other federal court to invalidate a federal statute by so cavalierly dismissing a long-asserted congressional purpose. If "paternalism" is an insignificant Government interest, then Congress first went astray in 1792, when by its Act of March 23 of that year it prohibited the "sale, transfer or mortgage . . . of the pension. . . [of a] soldier . . . before the same shall become due." Ch. 11, § 6, 1 Stat. 245. Acts of Congress long on the books, such as the Fair Labor Standards Act, might similarly be described as "paternalistic"; indeed, this Court once opined that "[s]tatutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual . . . ." Lochner v. New York, 198 U. S. 45, 61 (1905). That day is fortunately long gone, and with it the condemnation of rational paternalism as a legitimate legislative goal.
There can be little doubt that invalidation of the fee limitation would seriously frustrate the oft-repeated congressional purpose for enacting it. Attorneys would be freely employable by claimants to veterans' benefits, and the claimant would as a result end up paying part of the award, or its equivalent, to an attorney. But this would not be the only consequence of striking down the fee limitation that would be deleterious to the congressional plan.
A necessary concomitant of Congress' desire that a veteran not need a representative to assist him in making his claim was that the system should be as informal and nonadversarial as possible. This is not to say that complicated factual inquiries may be rendered simple by the expedient of informality, but surely Congress desired that the proceedings be as *324 informal and nonadversarial as possible.[11] The regular introduction of lawyers into the proceedings would be quite unlikely to further this goal. Describing the prospective impact of lawyers in probation revocation proceedings, we said in Gagnon v. Scarpelli, 411 U. S. 778, 787-788 (1973):
"The introduction of counsel into a revocation proceeding will alter significantly the nature of the proceeding. If counsel is provided for the probationer or parolee, the State in turn will normally provide its own counsel; lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients' positions and to contest with vigor all adverse evidence and views. The role of the hearing body itself . . . may become more akin to that of a judge at a trial, and less attuned to the rehabilitative needs of the individual . . . . Certainly, *325 the decisionmaking process will be prolonged, and the financial cost to the State for appointed counsel, . . . a longer record, and the possibility of judicial review will not be insubstantial."
We similarly noted in Wolff v. McDonnell, 418 U. S. 539, 570 (1974), that the use of counsel in prison disciplinary proceedings would "inevitably give the proceedings a more adversary cast . . . ."
Knowledgeable and thoughtful observers have made the same point in other language:
"To be sure, counsel can often perform useful functions even in welfare cases or other instances of mass justice; they may bring out facts ignored by or unknown to the authorities, or help to work out satisfactory compromises. But this is only one side of the coin. Under our adversary system the role of counsel is not to make sure the truth is ascertained but to advance his client's cause by any ethical means. Within the limits of professional propriety, causing delay and sowing confusion not only are his right but may be his duty. The appearance of counsel for the citizen is likely to lead the government to provide one or at least to cause the government's representative to act like one. The result may be to turn what might have been a short conference leading to an amicable result into a protracted controversy.
.....
"These problems concerning counsel and confrontation inevitably bring up the question whether we would not do better to abandon the adversary system in certain areas of mass justice. . . . While such an experiment would be a sharp break with our tradition of adversary process, that tradition, which has come under serious general challenge from a thoughtful and distinguished judge, was not formulated for a situation in which many thousands of hearings must be provided each month." *326 Friendly, "Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1287-1290 (1975).
Thus, even apart from the frustration of Congress' principal goal of wanting the veteran to get the entirety of the award, the destruction of the fee limitation would bid fair to complicate a proceeding which Congress wished to keep as simple as possible. It is scarcely open to doubt that if claimants were permitted to retain compensated attorneys the day might come when it could be said that an attorney might indeed be necessary to present a claim properly in a system rendered more adversary and more complex by the very presence of lawyer representation. It is only a small step beyond that to the situation in which the claimant who has a factually simple and obviously deserving claim may nonetheless feel impelled to retain an attorney simply because so many other claimants retain attorneys. And this additional complexity will undoubtedly engender greater administrative costs, with the end result being that less Government money reaches its intended beneficiaries.
We accordingly conclude that under the Mathews v. Eldridge analysis great weight must be accorded to the Government interest at stake here. The flexibility of our approach in due process cases is intended in part to allow room for other forms of dispute resolution; with respect to the individual interests at stake here, legislatures are to be allowed considerable leeway to formulate such processes without being forced to conform to a rigid constitutional code of procedural necessities. See Parham v. J. R., 442 U. S., at 608, n. 16. It would take an extraordinarily strong showing of probability of error under the present system and the probability that the presence of attorneys would sharply diminish that possibility to warrant a holding that the fee limitation denies claimants due process of law. We have no hesitation in deciding that no such showing was made out on the record before the District Court.
*327 As indicated by the statistics set out earlier in this opinion, more than half of the 800,000 claims processed annually by the VA result in benefit awards at the regional level. An additional 10,000 claims succeed on request for reconsideration at the regional level, and of those that do not, 36,000 are appealed to the BVA. Of these, approximately 16% succeed before the BVA. It is simply not possible to determine on this record whether any of the claims of the named plaintiffs, or of other declarants who are not parties to the action, were wrongfully rejected at the regional level or by the BVA, nor is it possible to quantify the "erroneous deprivations" among the general class of rejected claimants. If one regards the decision of the BVA as the "correct" result in every case, it follows that the regional determination against the claimant is "wrong" in the 16% of the cases that are reversed by the Board.
Passing the problems with quantifying the likelihood of an erroneous deprivation, however, under Mathews we must also ask what value the proposed additional procedure may have in reducing such error. In this case we are fortunate to have statistics that bear directly on this question, which statistics were addressed by the District Court. These unchallenged statistics chronicle the success rates before the BVA depending on the type of representation of the claimant, and are summarized in the following figures taken from the record. App. 568.
ULTIMATE SUCCESS RATES BEFORE THE BOARD OF VETERANS' APPEALS BY MODE OF REPRESENTATION
American Legion ....................... 16.2%
American Red Cross .................... 16.8%
Disabled American Veterans ............ 16.6%
Veterans of Foreign Wars .............. 16.7%
Other nonattorney ..................... 15.8%
No representation ..................... 15.2%
Attorney/Agent ........................ 18.3%
*328 The District Court opined that these statistics were not helpful, because in its view lawyers were retained so infrequently that no body of lawyers with an expertise in VA practice had developed, and lawyers who represented veterans regularly might do better than lawyers who represented them only pro bono on a sporadic basis. The District Court felt that a more reliable index of the effect lawyers would have on the proceedings was a statistical study showing success of various representatives in appeals to discharge review boards in the uniformed services statistics that showed a significantly higher success rate for those claimants represented by lawyers as compared to those claimants not so represented.
We think the District Court's analysis of this issue totally unconvincing, and quite lacking in the deference which ought to be shown by any federal court in evaluating the constitutionality of an Act of Congress. We have the most serious doubt whether a competent lawyer taking a veteran's case on a pro bono basis would give less than his best effort, and we see no reason why experience in developing facts as to causation in the numerous other areas of the law where it is relevant would not be readily transferable to proceedings before the VA. Nor do we think that lawyers'