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STAUB v. ROUDEBUSH

December 22, 1976

EMANUEL STAUB, Plaintiff,
v.
RICHARD L. ROUDEBUSH, Defendant



The opinion of the court was delivered by: WADDY

 This is an action challenging the constitutionality of 38 U.S.C. § 3404(c)(2) which limits the fees payable to agents or attorneys representing veterans on claims for monetary benefits before the Veterans Administration (VA) to $10 for any one claim.

 Relying on Hines v. Lowrey, 305 U.S. 85, 83 L. Ed. 56, 59 S. Ct. 31 (1938), and Hoffmaster v. Veterans Administration, 444 F.2d 192 (3rd Cir. 1971), this Court granted defendant's motion for judgment on the pleadings and dismissed the action. The Court of Appeals vacated the dismissal and remanded, sub nom., Staub v. Johnson, 171 U.S. App. D.C. 162, 519 F.2d 298 (1975), for reconsideration in the light of Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970) and cases which have followed in guaranteeing the right to be represented by retained counsel. It noted that a three-judge court in California had held that the limitation on attorneys fees was constitutional, Gendron v. Saxbe, 389 F. Supp. 1303 (C.D. Cal. 1975), but concluded that that development was insufficient to deprive plaintiff of the opportunity for a full adjudication of the substantial issues raised by his complaint. After the remand of the instant case, the decision of the three-judge court in Gendron was summarily affirmed, sub nom., Gendron v. Levi, 423 U.S. 802, 46 L. Ed. 2d 23, 96 S. Ct. 9 (1975) by the Supreme Court of the United States. *fn1" The case is currently before the Court on defendant's motion for summary judgment on remand.

 Plaintiff, Emanuel Staub, is a veteran who served on active duty in the United States Marine Corps for approximately ten years. He suffers from medical conditions known as spondylolysis and spondylolythesis, characterized by chronic back pain and numbness of the legs, which he contends are the result of a World War II service incident in which he was partially buried by the explosion of a Japanese bomb.

 The Veterans Administration is an agency of the United States Government charged with "administration of laws relating to the relief and other benefits provided by law for veterans, their dependents, and their beneficiaries." 38 U.S.C. § 201. Defendant Richard L. Roudebush is the Administrator of Veterans Affairs and is responsible for the execution and administration of all laws administered by the VA.

 In 1968, plaintiff sought recovery of "service connected" disability benefits from defendant VA under 38 U.S.C. § 310.

 In accordance with applicable VA regulations, plaintiff requested and was afforded the right to a hearing, to assistance at that hearing and to arrangements for the attendance of witnesses. His claim for benefits was denied on the grounds his disability was not "service connected". Plaintiff appealed this decision to the Board of Veterans Appeals where he was again given a full hearing. At both hearings he was assisted by VA-accredited representatives provided free-of-charge by the Jewish War Veterans organization. The Board affirmed the denial of benefits. That decision is final and not subject to judicial review. See 38 U.S.C. § 211.

 Plaintiff seeks a declaratory judgment that 38 U.S.C. § 3404(c)(2) is unconstitutional because it (1) effectively denies him of his Fifth Amendment due process rights to consult with and be represented by legal counsel and frustrates his right to unimpeded meaningful access to the legal process, and (2) vitiates his First Amendment right to associate with legal counsel in pursuit of his rights under laws administered by the VA. Plaintiff further seeks an injunction ordering defendant to afford him a new hearing at which plaintiff individually may be represented by counsel consistent with the declaration he seeks. *fn2"

 The Court of Appeals observed in the conclusory paragraph of the remand:

 
"The identical question was recently considered in Gendron v. Saxbe, 501 F.2d 1087 (9th Cir. 1974), where the court noted that Margolin and Hines had not decided the question of the constitutional rights of veterans and concluded that the issues presented were not frivolous in light of Goldberg." Staub v. Johnson, supra, at 303.

 38 U.S.C. § 3404(c) provides:

 
(c) The Administrator shall determine and pay fees to agents or attorneys recognized under this section in allowed claims for monetary benefits under laws administered by ...

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