UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. GEORGE R.
TRIPLETT, ET AL.

   COMMITTEE ON LEGAL ETHICS OF THE WEST VIRGINIA STATE BAR,
PETITIONER V. GEORGE R. TRIPLETT, ET AL.

   No. 88-1671, No. 88-1688

   In The Supreme Court Of The United States

   October Term, 1989

   On Writ Of Certiorari To The Supreme Court Of Appeals Of West
Virginia

   Brief For The Federal Petitioner

                       PARTIES TO THE PROCEEDING

   The petitioner in No. 88-1671 is the United States Department of
Labor, intervenor below.  The petitioner in No. 88-1688 is the
Committee on Legal Ethics of the West Virginia State Bar, the
petitioner below.  George R. Triplett, the respondent below, is the
respondent in this Court.

            TABLE OF CONTENTS
   Question Presented
   Parties To The Proceeding
   Opinions below
   Jurisdiction
   Statutes and regulations involved
   Statement
   Introduction and summary of argument
   Argument:
      A. The Department of Labor's attorney's fee regulations,
         as applied, are presumed to be constitutional,
         and that presumption is not overcome
         absent a substantial showing that the black lung
         program inadequately protects the due process
         rights of claimants
      B. Applying principles of deference, and the
         Mathews v. Eldridge balancing test, the black
         lung fee system, as applied, does not violate the
         Due Process Clause
         1. The governmental interest in the regulation
            of black lung attorney's fees is substantial
         2. Changes in the regulation of attorney's fees
            are not necessary to reduce the probability
            of error under the present system
         3. A claimant's interest in black lung disability
            benefits is not equivalent to that of a
            recipient of subsistence welfare benefits
         4. The balance of the Mathews factors requires
            the conclusion that the fee system is
            constitutional
      C. The fee system does not violate procedural due
         process in any other respect
   Conclusion

                            OPINIONS BELOW

   The opinion of the Supreme Court of Appeals (Pet. App. 1a-32a), was
originally reported at 376 S.E.2d 818.  It was subsequently withdrawn
and reported as corrected, with a dissenting opinion (Pet. App.
33a-36a) and an opinion on the denial of rehearing (Pet. App.
37a-41a), at 378 S.E.2d 82.  The Findings of Fact, Conclusions of Law,
and Recommendation Concerning Discipline of the Committee on Legal
Ethics of the West Virginia State Bar (Pet. App. 42a-51a) is
unreported.

                             JURISDICTION

   The judgment of the Supreme Court of Appeals was entered October
26, 1988.  A petition for rehearing was denied on December 21, 1988
(Pet. App. 52a).  On March 14, 1989, Chief Justice Rehnquist extended
the time for filing a petition for a writ of certiorari to and
including April 20, 1989.  The petitions for certiorari were filed on
April 12, 1989 (No. 88-1671) and April 18, 1989 (No. 88-1688), and
granted on October 2, 1989.  The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

                   STATUTES AND REGULATIONS INVOLVED

   Section 422(a) of the Black Lung Benefits Act, 30 U.S.C. 932(a)
(1982 & Supp. V 1987), incorporating various provisions of the
Longshore and Harbor Workers' Compensation Act (LHWCA), and Section 28
of the LHWCA, 33 U.S.C. 928 (1982 & Supp. V (1987), which is one of
the provisions so incorporated, are set forth in the appendix to the
Department of Labor's petition (88-1671 Pet. App. 53a-56a).

   The Department of Labor's regulations governing the payment of
claimants' attorney's fees in black lung cases, 20 C.F.R.
725.365-725.367, are also set forth in that appendix (Pet. App.
57a-60a).

                          QUESTION PRESENTED

   Whether the attorney's fee provisions of the Black Lung Benefits
Act, as applied, violate the Due Process Clause of the Fifth Amendment
by denying claimants access to counsel.

                               STATEMENT

   1. The Black Lung Benefits Act, 30 U.S.C. 901 et seq. (1982 & Supp.
V 1987), "provides benefits to those who have become totally disabled
because of pneumoconiosis, a chronic respiratory and pulmonary disease
arising from coal mine employment," and to their eligible survivors.
Pittston Coal Group v. Sebben, 109 S. Ct. 414, 417 (1988).  Claims for
benefits are determined administratively under the auspices of the
Department of Labor.  30 U.S.C. 932 (1982 & Supp. V 1987);  20 C.F.R.
725.350.  /1/ A claimant may be represented "in any proceeding for
determination of a claim" by a qualified representative, including an
attorney.  20 C.F.R. 725.362, 725.363.  As part of its protection for
eligible beneficiaries, the Act, through its incorporation of
provisions of the Longshore and Harbor Workers Compensation Act
(LHWCA), regulates the payment of fees for a claimant's attorney.  See
30 U.S.C. 932(a) (1982 & Supp. V 1987) (incorporating, inter alia, 33
U.S.C. 928 (1982 & Supp. V (1987)).  The Department of Labor has also
issued comprehensive regulations governing the award of attorney's
fees.  20 C.F.R. 725.362-725.367.

   Under the Act and the Department of Labor's regulations, an
attorney for a black lung claimant is prohibited from charging a fee
unless the fee has been approved by the appropriate agency or court.
33 U.S.C. 928(c);  20 C.F.R. 725.365.  The regulations also provide
that "(n)o contract or prior agreement for a fee shall be valid." 20
C.F.R. 725.365, 725.362(a).  See also 20 C.F.R. 802.203(f) (Benefits
Review Board regulation).  When the claimant does not prevail in his
effort to secure benefits, no fee is approved.  See General Dynamics
Corp. v. Horrigan, 848 F.2d 321 (1st Cir.) (applying LHWCA), cert.
denied, 109 S. Ct. 554 (1988);  Director, OWCP v. Hemingway Transp.
Inc., 1 Ben. Rev. Bd. Serv. (MB) 73 (Ben. Rev. Bd. 1974).  When the
claimant does prevail in a contested case, the coal mine operator, its
insurance carrier, or, in certain instances, the Black Lung Disability
Trust Fund pays "a reasonable attorney's fee." /2/ 30 U.S.C. 932(a)
(1982 & Supp. V 1987) (incorporating 33 U.S.C. 928(a)), 932(j);  see
20 C.F.R. 725.367.

   The black lung regulations establish the procedures for applying
for a fee and the criteria for its award.  See 20 C.F.R. 725.366.  The
application must itemize the work done and note "the customary billing
rate" of the person who performed it.  Ibid.  An approved fee "shall
be reasonably commensurate with the necessary work done." 20 C.F.R.
725.366(b).  The regulation identifies as factors to be taken into
account in setting a fee "the quality of the representation, the
qualifications of the representative, the complexity of the legal
issues involved, the level of proceedings to which the claim was
raised, the level at which the representative entered the proceedings,
and any other information which may be relevant to the amount of fee
requested." Ibid.  See also 20 C.F.R. 802.203(d) and (e) (Benefits
Review Board provisions).

   An award of attorney's fees is not enforceable until the claimant
receives a final award of benefits.  33 U.S.C. 928(a).  A claim for
benefits is first submitted to a Department of Labor deputy
commissioner for an initial determination.  20 C.F.R. 725.401-725.420.
 Any party dissatisfied with the deputy commissioner's determination
can request a de novo hearing before an administrative law judge
(ALJ).  20 C.F.R. 725.419(a), 725.421.  The ALJ's decision is subject
to review by the Benefits Review Board.  Review of that decision, in
turn, is available in a court of appeals.  30 U.S.C. 932(a) (1982 &
Supp. V 1987) incorporating, inter alia, 33 U.S.C. 921(c);  20 C.F.R.
725.481, 725.482.

   An attorney must apply for fees separately to the "deputy
commissioner, administrative law judge, or appropriate appellate
tribunal" before whom the services were performed.  20 C.F.R.
725.366(a).  An approved fee "shall be paid promptly and directly by
the operator or carrier to the claimant's attorney in a lump sum after
the order becomes final." 20 C.F.R. 725.367(a).  The fee award does
not bear post-judgment interest pending an appeal.  See Hobbs v.
Director, OWCP, 820 F.2d 1528, 1530-1531 (9th Cir. 1987) (applying
LHWCA).  Nevertheless, the attorney's possible delay in being paid, as
well as his risk of loss, are assumed to be reflected in his hourly
rates.  Id. at 1529 (delay);  Thompson v. Potashnick Constr. Co., 812
F.2d 574, 577 (9th Cir. 1987) (describing Board policy under LHWCA
regarding delay and risk of loss).

   2. Beginning in 1978, respondent, a West Virginia lawyer, entered
into contingent fee agreements with sixteen black lung claimants.
These agreements entitled him to 25% of the back benefits recovered by
the claimants as a result of his representation.  /3/ Between 1978 and
1983, claimants represented by respondent were awarded benefits, and
he collected fees under the contingent fee arrangements.  These fees
were never approved by the appropriate agency or court;  as a result,
the fees were collected in violation of both the statute and governing
regulations.  Pet. App. 2a, 46a-49a;  see 33 U.S.C. 928(c);  20 C.F.R.
725.365.

   In 1987, the Committee on Legal Ethics of the West Virginia State
Bar initiated a disciplinary proceeding against respondent based on
his violations of the Department's fee regulations.  Following a
hearing, the Committee found respondent to have engaged in
professional misconduct.  Pet. App. 42a-44a.  The misconduct consisted
of "(h)is failure to abide by the (Department) regulation," a failure
that constituted, among other things, "conduct that is prejudicial to
the administration of justice" and that "adversely reflects on his
fitness to practice law." Id. at 50a (citing West Virginia Code of
Professional Responsibility DR 1-102(A)(4), (5), and (6) (1982)).  The
Committee filed a complaint in the Supreme Court of Appeals of West
Virginia to enforce a recommended six-month suspension.  Pet. App. 1a.

   3. a. A divided Supreme Court of Appeals denied enforcement.  Pet.
App. 1a-32a.  Although respondent had not challenged the black lung
fee system on constitutional grounds, the court concluded, sua sponte,
that the fee system violates the Due Process Clause.  The court
reasoned that the provisions for awarding attorney's fees under the
black lung statute and the Department's regulations, as applied,
"severely restrict (black lung) claimants' ability to find competent
lawyers to represent them." Id. at 24a.  Consequently, the court
found, claimants are denied adequate procedural protection of their
property interest in the continued receipt of black lung benefits.
The court concluded that because the attorney's fee limitations were
unconstitutional, respondent's failure to comply with the Department's
regulations did not violate West Virginia ethical rules.  /4/ Id. at
30a.

   The court acknowledged that the Department's regulations "appear()
to provide for attorneys' fees that will fairly compensate competent
counsel," but it nevertheless stated that "the factual record before
us reveals that this is not the case." Pet. App. 16a.  That record
consisted solely of the affidavits of five attorneys submitted to the
court as attachments to an amicus brief, excerpts from testimony
below, and statements by attorneys before a House of Representatives
Subcommittee in 1985.  Id. at 17a-20a (citing Investigation of the
Backlog in Black Lung Cases:  Hearings Before the Subcomm. on Labor
Standards of the House Comm. on Education and Labor, 99th Cong., 1st
Sess. (1985)).  See also Br. in Opp. App. A36-45 (testimony at
disciplinary hearing).

   Based on that record, the court determined that the fee provisions
manifested two inadequacies that deter "most" attorneys from taking on
black lung cases.  Those problems were "the long delay in payment,
without any provision for interest, and the lack of premiums to offset
the contingent nature of the work." The court added that the
contingency factor had assumed greater importance as approval rates
"steadily declined" under the tighter eligibility criteria of the 1981
amendments to the black lung statute.  The court cited an approval
rate of 22.7% for claimants whose cases went before an ALJ and a 5.8%
overall rate under the 1981 amendments.  The low approval rate, the
court believed, established "not only the necessity of lawyer
representation, but (also) the substantial risk that a lawyer will
receive no fee at all for his work." Pet. App. 20a.

   The court then evaluated the attorney's fee system under the
three-factor test articulated by this Court in Mathews v. Eldridge,
424 U.S. 319 (1976), and Walters v. National Association of Radiation
Survivors, 473 U.S. 305 (1985).  Pet. App. 20a-24a.  Applying that
test, this Court in Walters upheld Congress's $10 fee limitation for
attorneys in Veterans' Administration (VA) benefits proceedings in the
face of a due process challenge.  The court here applied the Mathews
factors to reach the opposite result.

   As to the first factor, the court identified two government
interests in the regulation of fees in the black lung program:  (1)
the fee approval requirement serves "to ensure that neither the
responsible operator nor the Trust Fund will be overcharged";  and (2)
the prohibition of private fee agreements serves "to protect claimants
from improvident agreements that needlessly deplete their benefits."
Pet. App. 21a.  The court discounted these interests, however, because
of its view that the fee system in operation has made lawyers "almost
entirely unavailable to claimants." The result, in the court's view,
was that "under the current system the claimant seldom has an award to
share." Ibid.

   Turning to the second factor, the probability of error under the
current system and the likely value of additional procedures, the
court surmised that the absence of counsel poses a serious risk of an
erroneous result.  Although acknowledging that it lacked statistics
comparing the success rates of black lung claimants with and without
counsel, the court asserted that the "black lung claims process is
procedurally, factually and legally complex," and that "lawyer
representation is virtually essential to prevent erroneous
deprivations of benefits for victims of black lung." Pet. App.
22a-23a.

   Finally, the court evaluated the weight of the private interests at
stake.  The court noted that in Walters, this Court had emphasized
that VA benefits are awarded on the basis of disability rather than
need, which reduced their weight in the analysis of the process that
was due.  Pet. App. 23a.  Although black lung benefits are likewise
awarded on the basis of disability, not need, the court below
concluded that the interest in obtaining black lung benefits deserved
a weight comparable to the strong interest, recognized in Goldberg v.
Kelly, 397 U.S. 254 (1970), in retaining subsistence welfare benefits.
 Pet. App. 23a-24a.

   Considering those factors, the court concluded that "the system as
currently administered denies claimants for black lung benefits
property without due process of law by severely restricting their
right to obtain representation by competent counsel." Pet. App. 28a;
id. at 24a.  The court also relied on an "independent" due process
theory for invalidating the fee system:  the fee system effectively
denies "qualified claimants the procedural safeguards provided by
Congress that are essential to vindicate the right to benefits also
granted by Congress." Id. at 25a.  The court found it "fundamentally
unfair" for the government "to confer a right with one hand, and take
it away with the other hand." Id. at 24a.  /5/

   b. Two justices dissented.  Pet. App. 33a-36a.  The dissenters
stated that the majority had resolved a constitutional question never
raised below, and, as a consequence, "there is no factual record
developed." Id. at 33a.  In particular, the dissent contended that
"(t)he ex parte affidavits" of attorneys practicing in the black lung
field were "woefully inadequate" to sustain the majority's finding
that the black lung fee system deprived claimants of access to
counsel.  Ibid.

   4. Recognizing that its decision "involved an important question of
federal law," the majority invited the Department of Labor to
intervene as a party.  Pet. App. 30a.  In response, the Department of
Labor intervened, supplemented the record, and petitioned for
rehearing;  however, the petition for rehearing was denied.  Id. at
37a-41a.  In a brief opinion, the court rejected the Department's
arguments that the fee system advances important government interests
and does not unduly hinder black lung claimants in obtaining counsel.

   As to the factual record, the Department presented statistics
regarding the outcome of recent black lung cases presented before
ALJs.  The statistics indicated that claimants had representatives in
92% of cases resulting in an ALJ's award or denial of benefits.  These
claimants prevailed 29% of the time.  In the remaining 8% of cases,
the claimants proceeded pro se, and prevailed 11.6% of the time.
Without commenting on the overwhelming rate of representation at the
ALJ level as evidenced by these figures, the court read the statistics
to mean only that claimants with counsel "have a likelihood of
prevailing that is 2.5 times greater than claimants appearing pro se."
Thus, the court concluded, the Department "has simply reinforced with
more elaborate statistics the conclusion that we reached in the
original opinion -- namely, that a claimant's chance of prevailing
when he is represented by counsel is substantially higher than when he
appears pro se." Pet. App. 40a.

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   The system for awarding attorney's fees in the black lung program
does not violate the procedural due process rights of claimants.  In
reaching the contrary conclusion, the court below misapplied the due
process analysis set forth in Mathews v. Eldridge, 424 U.S. 319, 349
(1976), and used in Walters v. National Association of Radiation
Survivors, 473 U.S. 305, 319-320 (1985).  In Walters, this Court held
that the $10 limitation on fees for an attorney in VA benefits
proceedings was consistent with procedural due process.  Applying the
analysis of Mathews and Walters, and giving due deference to
Congress's purposes in enacting the black lung program and to the
actions of the Department of Labor in administering it, the same
conclusion follows here.

   A. In addressing procedural due process claims, statutory
procedures as well as those formulated by the administrative agencies
are presumed to be constitutional.  The black lung program, a massive
administrative enterprise, triggers both grounds for deference.
Congress determined to regulate black lung attorney's fees and
entrusted administration of the black lung program to the Department
of Labor.  Substantial weight attaches both to Congress's policy
choice -- to protect black lung claimants against sharing an award
with an attorney -- and to the Department of Labor's considered
judgment that the program is being administered fairly.  At a minimum,
therefore, it would take a substantial evidentiary showing of the
inadequacy of the current fee system to warrant a holding that the
system unconstitutionally denies claimants access to counsel.  The
court below, however, failed to apply those principles and
consequently erred in its due process analysis.

   B. The touchstone of procedural due process is "fundamental
fairness," Lassiter v. Department of Social Services, 452 U.S. 18, 24
(1981), in providing "an opportunity (to be heard) at a meaningful
time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545,
552 (1965).  Three distinct factors bear on the adequacy of a
particular procedure:  (1) the private interest that will be affected,
(2) the risk of an erroneous deprivation of that interest through the
procedures used, and the probable value of additional or alternative
procedural safeguards, and (3) the government's interest in adhering
to the present system, including the fiscal and administrative burdens
the additional requirements would entail.  Mathews, 424 U.S. at 335.
While recipients of black lung benefits have a "property" interest in
continuing to receive benefits to which they are entitled under the
statute, this interest is adequately protected under the current
system.

   1. The black lung fee system provides for an agency-approved award
of a reasonable attorney's fee to a prevailing claimant's counsel,
shifted to the payor of benefits.  The award becomes enforceable when
a benefits award is final.  30 U.S.C. 932(a) (1982 & Supp. V 1987)
(incorporating 33 U.S.C. 928(c));  20 C.F.R. 725.362-725.367.  The
policy underlying those provisions is entitled to great weight.
Congress's purpose in regulating claimants' attorney's fees is to
protect black lung claimants from improvident agreements that
needlessly deplete their benefits.  The court below, however, failed
to credit the importance of that policy.  It also ignored the
increased cost to the government and complication of administrative
proceedings that would result from a systematic effort to increase
attorney's fees.

   2. The second Mathews factor is the risk of an erroneous result
under the procedures currently being used, and the probable value of
other procedural safeguards.  Under Walters, 473 U.S. at 326, it would
take an "extraordinarily strong showing" on these points to establish
the unconstitutionality of the black lung fee regulation system.  No
such showing was made here.

   The court's pivotal finding -- that the fee system has produced a
shortage of lawyers for black lung cases -- lacks any adequate
foundation in the record.  The record contains no statistics about the
rate of representation, other than the Department of Labor's showing
that 92% of claimants receiving an award or denial of benefits from an
ALJ were represented.  The court relied on several statements by
attorneys that the compensation in the black lung program was
inadequate, but such self-serving "anecdotal evidence" cannot sustain
findings about the operation of vast federal programs.  Even assuming
that attorneys are presently unavailable for substantial numbers of
claimants, the court overrated the probable value of changes to the
attorney's fee system as a corrective measure.

   A variety of procedures in the current program protect pro se
claimants from an erroneous denial of benefits.  Most importantly,
deputy commissioners must assist claimants in gathering evidence;
ALJs must ensure that a pro se claimant can adequately proceed without
counsel;  and the Benefits Review Board will independently review the
record, without requiring pro se claimants to file a brief.  Although
the black lung program is not intended to function as informally as
the VA benefits system at issue in Walters, existing procedures
substantially cushion the difficulties that pro se claimants might
otherwise encounter in seeking black lung benefits.

   This Court's cases establish that access to the services of a
lawyer -- whether retained or appointed -- is not essential in all
cases in order to ensure a fair proceeding.  When the interest at
stake is an entitlement to government benefits -- even one that
qualifies as "property" -- the Court has never held that due process
requires the presence of counsel in a particular proceeding in order
to guarantee fundamental fairness.  In Walters, the Court specifically
rejected the contention that the Fifth Amendment entitles a claimant
in a VA benefits proceeding to pay for counsel with his own funds.
Against that background, the court below clearly erred in concluding
that black lung proceedings are, across-the-board, constitutionally
inadequate absent the presence of counsel.

   3. Mathews' third and final factor is the private interest
affected.  Here, as in Mathews and Walters, the interest is in
retaining disability benefits.  Unlike the subsistence welfare
benefits involved in Goldberg v. Kelly, 397 U.S. 254 (1970), such
disability entitlements are not awarded on the basis of indigence and
are complemented by other forms of government aid;  accordingly, they
do not carry compelling weight in the due process analysis.

   4. Applying the three Mathews factors, the balance decidedly tips
in favor of the black lung fee system's constitutionality.  The
governmental interest is important, while changes to the attorney's
fee system would be both administratively difficult to effect as well
as costly.  Moreover, current procedures contain adequate safeguards
to protect pro se claimants.  Finally, the claimants' interest in the
receipt of non-subsistence disability benefits does not require
invalidation of the fee regime as a means of enticing attorneys to
enter (or remain involved in) the system.

   C. The court below suggested, almost in passing, an alternative
theory of due process that the fee system is invalid because it
"effectively denies claimants the right to benefits granted by
Congress," which the court believed to be "fundamentally unfair." Pet.
App. 24a.  That analysis is flawed.  To the extent that benefits
conferred by Congress are protected by the Fifth Amendment, the
measure of the process that is due is defined by consideration of the
Mathews factors.

   Respondent also argues that black lung claimants have a liberty
interest in consulting with counsel about a claim.  Br. in Opp. 6.
Any such "liberty" interest, however, is coextensive with the
claimant's interest in effectively presenting a claim for black lung
benefits.  Cf. Walters, 473 U.S. at 335.  Consequently, the asserted
liberty interest in retaining counsel has no "independent
significance," ibid., and does not enhance the underlying due process
"property" claim.

                               ARGUMENT

   A. The Department of Labor's Attorny's Fee Regulations, As Applied,
Are Presumed To Be Constitutional, And That Presumption Is Not
Overcome Absent A Substantial Showing That The Black Lung Program
Inadequately Protects The Due Process Rights of Claimants

   An Act of Congress challenged on procedural due process gounds is
presumed to be constitutional, and a challenger bears the heavy burden
of demonstrating its unconstitutionality.  See Walters v. National
Association of Radiation Survivors, 473 U.S. 305, 319-320 (1985);  cf.
Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 729
(1984);  Rostker v. Goldberg, 453 U.S. 57, 64 (1981).  The Court has
applied a similar presumption of constitutionality in reviewing
procedural due process challenges to procedures formulated and applied
by administrative agencies.  Mathews v. Eldridge, 424 U.S. 319, 349
(1976);  Schweiker v. McClure, 456 U.S. 188, 200 (1982).  That
deference flows from the recognition that "substantial weight must be
given to the good-faith judgments of the individuals charged by
Congress with the administration of social welfare programs that the
procedures they have provided assure fair consideration of the
entitlement claims of individuals." Mathews, 424 U.S. at 349.

   The constitutional adequacy of the black lung attorney's fee system
must be judged in light of these principles.  The black lung program
is of considerable dimensions.  At the time of enactment of the
Federal Coal Mine Health and Safety Act of 1969, Pub. L. No. 91-173,
Tit. IV, 83 Stat. 792-798, Congress anticipated that there would be
approximately 100,000 afflicted miners.  See Usery v. Turner Elkhorn
Mining Co., 428 U.S. 1, 6 n.1 (1976).  As of December 31, 1974,
however, more than one-half million benefits claims had been filed
under the temporary Part B provisions administered by the Department
of Health, Education, and Welfare (see note 1, supra).  428 U.S. at 8
n.7.  After major amendments to the statute in 1978, the Department of
Labor experienced a surge in the number of filed claims.  /6/ This
resulted in part from Congress's direction to reopen claims that had
been denied before the effective date of the 1978 amendments.  See 30
U.S.C. 945.  The 1978 amendments also dramatically enhanced the rate
of approval of claims, see Lopatto, The Federal Black Lung Program:  A
1983 Primer, 85 W. Va. L. Rev. 677, 693 (1983), and resulted in severe
backlogs in their processing.  See Report to the Honorable Donald J.
Pease, House of Representatives, by the U.S. General Accounting
Office, Adjudication of Black Lung Claims by Labor's Office of
Administrative Law Judges and Benefits Review Board App. I, at 7 (Oct.
26, 1984) (1978 amendments to the black lung statute required the
reopening of about 200,000 claims).

   In 1981, Congress responded to these problems by tightening the
eligibility criteria applicable to post-1981 claims.  The Black Lung
Benefits Amendments of 1981, Pub. L. No. 97-119, Sections 202(a),
203(b), 95 Stat. 1643, repealed, among other things, three statutory
presumptions in favor of claimants, a provision for benefits where a
miner's death was not due to pneumoconiosis, and a prohibition on the
rereading of certain x-rays.  See 127 Cong. Rec. 31,747-31,748 (1981).
 In enacting those changes, Congress considered two General Accounting
Office reports indicating that more than 80 percent of black lung
claims approved under prior law "were based on inadequate or
conflicting medical evidence." Id. at 31,977-31,978 (remarks of Sen.
Hatch).  The 1981 amendments were intended to "restor(e) (the black
lung program) as a disability program, and no longer a pension
program." Id. at 31,978.  Under the 1981 amendments, Congress
contemplated a drastically reduced approval rate "in the neighborhood
of 4 percent." Id. at 31,979 (remarks of Sen. Nickles).  In light of
Congress's deliberate decision to impose more stringent criteria for
black lung benefits, and considering the processing backlogs that the
program has experienced, it is no surprise that some attorneys have
found it not worthwhile to represent black lung claimants.  The court
below, however, determined that black lung attorneys were nearly
unavailable in West Virginia, and assigned the responsibility for that
situation, virtually entirely, to the system for awarding attorney's
fees.

   The court's process of analysis is incompatible with a proper
approach to judging the constitutional adequacy of a large-scale
federal program.  The decision to regulate black lung attorney's fees
belongs to Congress, see 33 U.S.C. 928(a), and that body has entrusted
the administration of the fee system to the Department of Labor, 30
U.S.C. 932(a), 936(a) (1982 & Supp. V 1987).  Those legislative
actions should have led the court below to give substantial weight to
Congress's policy choice -- to protect black lung claimants against
the payment of attorney's fees (Walters, 473 U.S. at 326) -- and to
accord deference to the Department of Labor's judgment that the
program is being administered fairly (Mathews, 424 U.S. at 349).  At a
minimum, that deference should have entailed an insistence that a
substantial evidentiary showing of the current system's inadequacy be
made before concluding that it unconstitutionally denies claimants
access to counsel.  Cf. Walters, 473 U.S. at 330.

   On several different levels, however, the court's approach departed
from those principles.  The court gave little or no credence to the
policy adopted by Congress to regulate fees.  It relied on anecdotal
evidence, compiled for the first time at the appellate level, to
conclude that the attorney's fee system discourages attorneys from
representing black lung claimants.  And it found, without review of
any particular black lung proceeding or any discussion of the law
regarding the right to counsel, that the presence of an attorney is at
all times a necessary component of due process to protect the rights
of claimants.  The deficiencies in the evidentiary record alone would
require rejection of the court's conclusions.  Cf. Schweiker v.
McClure, 456 U.S. at 196 n.10.  However, as we show below, the court's
incorrect approach also resulted in misapplication of the established
framework for analyzing due process claims.

   B. Applying Principles of Deference, And the Mathews v. Eldridge
Balancing Test, The Black Lung Fee System, As Applied, Does Not
Violate the Due Process Clause

   The touchstone of procedural due process is "fundamental fairness,"
Lassiter v. Department of Social Services, 452 U.S. 18, 24 (1981), in
providing "an opportunity (to be heard) at a meaningful time and in a
meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552 (1965).  The
initial step in the due process inquiry is to identify the interest
that the Constitution is alleged to protect.  We agree with the court
below (Pet. App. 23a) that current recipients of black lung benefits
have a protected "property" interest in continuing to receive benefits
to which they are entitled under the statute.  See Walters, 473 U.S.
at 320 & n.8;  Atkins v. Parker, 472 U.S. 115, 128 (1985);  Mathews,
424 U.S. at 332.  /7/ Additionally, the court appeared to believe that
applicants for benefits, who have not yet been found eligible, possess
such a "property" interest.  Pet. App. 23a & n.31.  This Court has
never held that applicants for government benefits have a protected
property interest under the Fifth Amendment.  Lyng v. Payne, 476 U.S.
926, 942 (1986).  Because, however, the court below correctly noted
(Pet. App. 23a & n.31) that at least one of respondent's clients was
receiving benefits, the Court need not determine in this case if black
lung applicants have a property interest that brings into play the
protection of the Fifth Amendment.  See Walters, 473 U.S. at 320 n.8.

   "Once it is determined that due process applies, the question
remains what process is due." Morrissey v. Brewer, 408 U.S. 471, 481
(1972).  To guide the inquiry into the adequacy of a particular
procedure, the Court has considered three distinct factors:  (1) the
private interest that will be affected, (2) the risk of an erroneous
deprivation of that interest through the procedures used, and the
probable value of additional or alternative procedural safeguards, and
(3) the government's interest in adhering to the present system,
including the fiscal and administrative burdens the additional
requirements would entail.  Mathews, 424 U.S. at 335;  see FDIC v.
Mallen, 108 S. Ct. 1780, 1788 (1988);  Walters, 473 U.S. at 321;
Schweiker v. McClure, 456 U.S. at 198;  Lassiter, 452 U.S. at 27.
Together, those factors establish that the fee system is
constitutional.

   1. The Governmental Interest In The Regulation of Black Lung
Attorney's Fees Is Substantial

   The black lung fee system provides for an agency-approved award of
a reasonable attorney's fee, shifted to the payor of benefits, which
is enforceable when a benefits award is final.  Legal fees are not
approved unless a claimant prevails.  30 U.S.C. 932(a) (1982 & Supp. V
1987) (incorporating 33 U.S.C. 928(c));  20 C.F.R. 725.362-725.367;
see p. 4, supra.  Congress's purpose in regulating the fees payable to
attorneys for black lung claimants is to protect claimants from
improvident agreements that needlessly deplete their benefits.  This
Court long ago recognized the validity of such a policy.  In Yeiser v.
Dysart, 267 U.S. 540, 541 (1925), the Court upheld the provision in
the Nebraska worker's compensation laws requiring approval of the
attorney's fees charged a claimant.  The Court noted that legislatures
may protect claimants "against improvident contracts, in the interest
not only of themselves and their families but of the public." Ibid.
The Court likewise upheld the statutory protection of VA benefits
awards against dissipation on attorney's fees in Walters, 473 U.S. at
323.  While such regulation can be characterized as "paternalism"
(ibid.), it is beyond doubt that Congress may pursue that policy as a
proper legislative purpose.  Cf. Ferguson v. Skrupa, 372 U.S. 726,
728-730 (1963);  Williamson v. Lee Optical Co., 348 U.S. 483, 488
(1955).  "The paternalistic interest in protecting the (claimant) from
his own improvidence would unquestionably justify a rule that simply
prevented lawyers from overcharging their clients." Walters, 473 U.S.
at 365 (Stevens, J., dissenting).  /8/

   The regulation of attorney's fees in the black lung program stems
from Congress's incorporation of Section 28 of the Longshore and
Harbor Workers' Compensation Act (LHWCA) (33 U.S.C. 928 (1982 & Supp.
V 1987)) into the Black Lung Benefits Act.  The LHWCA has protected
claimants against imprudent fee arrangements since its enactment in
1927.  Act of Mar. 4, 1927, ch. 509, Section 28, 44 Stat. 1438.
Section 28 of the LHWCA, as originally enacted, provided that no one
may charge a claimant a fee unless approved by the appropriate court
or administrative officer.  Ibid.  This provision was specifically
designed to protect a class of unsophisticated workers who had been
subjected to the "sharp practices" of people who represented them.
See Hearing on H.R. 9498 Before the House Comm. on the Judiciary, 69th
Cong., 1st Sess. 40 (1926);  Hearings on S. 3170 Before a Subcomm. of
the Senate Comm. on the Judiciary, 69th Cong., 1st Sess. 68-69 (1926).
 /9/ The provision was modeled on an early New York worker's
compensation law, see Banks v. Chicago Grain Trimmers Ass'n, 390 U.S.
459, 466 (1968), that was intended to "insure as large a return to the
injured workman in compensation for injuries incurred in the course of
his employment as possible." In re Fisch, 188 A.D. 525, 177 N.Y.S.
338, 341 (1919).

   The same reasons that prompted the regulation of attorney's fees in
the LHWCA context are equally applicable here.  The Black Lung
Benefits Act has included the LHWCA fee provision since its enactment
in 1969.  See Federal Coal Mine Health and Safety Act of 1969, Pub. L.
No. 91-173, Tit. IV, Section 422, 83 Stat. 796.  /10/ Its manifest
purpose is "to ensure that a claimant's disability benefits not be
eroded by legal fees." Bethenergy Mines Inc. v. Director, OWCP, 854
F.2d 632, 637 (3d Cir. 1988).  As with LHWCA claimants, Congress could
reasonably conclude that black lung claimants -- consisting primarily
of elderly coal miners and their eligible survivors -- are susceptible
to exploitation and require protection against depletion of their
benefits.  Cf. U.S. Department of Labor, Employment Standards Admin.,
A Sample Survey of All Sources of Both Monetary and Non-Monetary
Income of Black Lung Beneficiaries 14 (1983) (hereinafter Sample
Survey) (while some widows have more education, three-fourths of
miners did not attend high school).  Congress has also been made aware
that in the early years of the black lung system certain lawyers were
"soaking coal miners with fat fees for very little work." House Comm.
on Education and Labor, 96th Cong., 1st Sess., Black Lung Benefits
Reform Act and Black Lung Benefits Revenue Act of 1977, at 1 (Comm.
Print 1979) (statement of Rep. Hechler).

   Indeed, Congress's concerns have proved to be well-founded, as some
attorneys have attempted to collect amounts from claimants contrary to
the statute.  See, e.g., In re Shoemaker, 11 Black Lung Rep. (MB)
3-145 (ALJ 1988) (attorney charged claimant $4480.00, then submitted
fee petition for additional $1987.50);  Taylor v. Director, OWCP, 11
Black Lung Rep. (MB) 3-184, 3-185 (ALJ 1988) (attorney collected
$2,015.95 at hourly rate of $120 from Director, but required claimant
to agree "to a fee of 25% of accumulated benefits, or $3,000 or $120
per hour, whichever was the greatest, plus expenses").  See also
Committee on Professional Ethics and Conduct v. Christoffers, 348
N.W.2d 227 (Iowa 1984).  /11/

   The court below failed to credit Congress's intention to protect
black lung claimants against depletion of benefits by sharing them
with an attorney.  The court gave that congressional policy short
shrift because of its view that "under the current system the claimant
seldom has an award to share." See Pet. App. 21a.  Yet, the low
approval rate of claims has nothing to do with the legitimacy and
importance of Congress's policy choice to preserve a benefits award
for a claimant, not his attorney.

   Changing the fee system would impair other government interests.
The court's suggestion (Pet App. 25a) to allow contingent fees based
on a percentage of the claimant's award would obviously frustrate
Congress's purpose of preserving the pool of benefits for the
claimant.  See Lebel v. Bath Iron Works Corp., 544 F.2d 1112, 1113
(1st Cir. 1976) (per curiam).  Moreover, a rule requiring the Trust
Fund or a responsible operator to pay attorney's fees calculated as a
set percentage of an award would likely not satisfy this Court's
standards for analysis of whether a particular fee award is
"reasonable." Cf. Blanchard v. Bergeron, 109 S. Ct. 939 (1989) (a
"reasonable" attorney's fee under 42 U.S.C. 1988 is not controlled by
the contingency arrangement between counsel and the plaintiff).

   The court's alternative suggestion (Pet. App. 25a) -- that the
Department adopt a statewide contingency "multiplier" to compensate
claimants' attorneys for their risk of loss -- would impose additional
costs on operators and, more particularly, on the Black Lung
Disability Trust Fund, which is already some $3 billion in debt to the
federal treasury.  See id. at 39a.  Such increased costs, while not
determinative, receive some weight in the due process analysis.
Mathews, 424 U.S. at 348.

   More fundamentally, across-the-board contingency multipliers have
never received the unqualified approval of this Court.  The black lung
statute limits fee shifting to contested cases where a claimant
prevails and further requires that any fee charged be "reasonable."
See 33 U.S.C. 928(a);  20 C.F.R. 725.367.  In Pennsylvania v. Delaware
Valley Citizens' Council for Clean Air, 483 U.S. 711 (1987), the Court
considered the permissibility of risk enhancement under the Clean Air
Act fee-shifting provision, 42 U.S.C. 7604(d).  The plurality opinion
opposed any enhancement for risk of loss, noting it would "force()
losing defendants to compensate plaintiff's lawyers for not prevailing
against defendants in other cases";  alternatively, the plurality
would allow such enhancement only in "exceptional cases." 483 U.S. at
724-725, 728 (White, J., joined by Rehnquist, C.J., and Powell and
Scalia, JJ.).  Justice O'Connor would have found risk enhancement
permissible only when necessary to attract competent counsel for a
"class" of cases in a "particular market," and would have required a
showing that the plaintiff would encounter "'substantial difficulties
in finding counsel'" absent such enhancement.  Id. at 733 (concurring
in part and concurring in the judgment).  The four dissenting
Justices, in contrast, urged the award of contingency premiums under a
different formula.  Id. at 735-755 (Blackmun, J., joined by Brennan,
Marshall, and Stevens, JJ.).  Thus, while five Justices of this Court
have endorsed some form of contingency enhancement -- in the context
of fee-shifting statutes designed to encourage "private attorneys
general" -- the standards governing any such enhancement are not at
all settled.  /12/

   Quite apart from the difficulty in crafting a permissible formula
for enhancing fees for risk of loss, the determination of an
appropriate multiplier can be expected to produce expensive and
burdensome litigation.  "'(P)inpointing the degree of risk (is) one of
the most subjective and difficult components of the fee computation
process,'" 483 U.S. at 732 (O'Connor, J., concurring in part and
concurring in the judgment).  Consequently, courts have noted that
"determining and applying the contingency multiplier would present
vast administrative problems." Student Public Interest Research Group
v. AT&T Bell Laboratories, 842 F.2d 1436, 1452 (3d Cir. 1988).  See
also McKenzie v. Kennickell, 875 F.2d 330 (D.C. Cir. 1989).  The
government has a substantial interest in avoiding additional
complexities in administering the black lung program.  The system is
already deeply backlogged and is ill-equipped to gather "extensive
market information" about attorney's fees in order "to calculate how
the market accounts for contingency cases as a class." Student Public
Interest Research Group, 842 F.2d at 1452.  Adopting the contingency
multiplier approach as a routine ingredient of fee litigation runs
counter to this Court's admonition that "(a) request for attorney's
fees should not result in a second major litigation." Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983).

   2. Changes In The Regulation of Attorney's Fees Are Not Necessary
To Reduce The Probability of Error Under the Present System

   Given the weight of the government's interests, as the dissent
below recognized, "'(i)t 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.'" Pet. App. 34a-35a (quoting Walters,
473 U.S. at 326).  No such "extraordinarily strong showing" was made.

   a. The court's pivotal finding -- that the fee system has produced
a shortage of lawyers for black lung cases -- lacks any adequate
foundation in the record.  Apart from the Department of Labor's
submission, discussed below, there were no statistics in the record
regarding the rate of representation of black lung claimants.  Nor was
there adequate information suggesting that most claimants were
encountering substantial difficulty in attracting competent counsel.
Cf. Delaware Valley Citizens' Council, 483 U.S. at 731 (plurality
opinion) ("Before adjusting for risk assumption, there should be
evidence in the record * * * that without risk enhancement the
plaintiff would have faced substantial difficulties in finding counsel
in the local or other relevant market.");  id. at 733 (O'Connor, J.,
concurring in part and concurring in the judgment) (same).  Rather,
the court relied solely on a few attorney affidavits, together with
selective citations from congressional testimony, expressing a general
unhappiness with the fee system and a belief that there was a
consequent shortage of attorneys.  Pet. App. 16a-20a.  The court
entirely overlooked, however, other reports from the same sources
downplaying the significance of attorney's fees.  For example, in the
congressional hearing cited by the court, an attorney who had
represented coal miners in black lung cases since 1960 disagreed with
the assertions that the attorney's fee system deterred black lung
lawyers from taking cases.  He observed:  "Lawyers never can be paid
enough.  I honestly think that, to a degree, (criticism of the fee
system) is a red herring, and most of the attorneys that have been in
this practice, while we have grumbled about the fee arrangement,
continue to be in the practice." Investigation of the Backlog in Black
Lung Cases:  Hearings Before the Subcomm. on Labor Standards of the
House Comm. on Education and Labor, 99th Cong., 1st Sess. 45 (1985)
(hereinafter 1985 Hearings).  See also id. at 103-104 (United Mine
Workers attorney expressing the view that difficulties in obtaining
counsel flow primarily from tightened criteria for an award of
benefits).

   The type of impressionistic evidence in this record is not
sufficient to support a finding of unconstitutionality for an
administrative program receiving 7,000 or 8,000 new claims a year.
Such "anecdotal evidence" cannot sustain findings about the operation
of vast federal programs.  See Walters, 473 U.S. at 324 n.11.  The
court's analysis is particularly flawed in light of the statistics
submitted by the Department of Labor.  Although not comprehensive,
those statistics showed a 92% rate of representation at the ALJ level
in cases resulting in an award or denial of benefits.  /13/ That
showing is hardly consistent with the view that the fee system has
virtually eliminated the pool of lawyers willing to take black lung
cases.  /14/

   b. Even assuming that attorneys are presently unavailable for
substantial numbers of claimants, the court overrated the probable
value of changes to the attorney's fee system as a corrective measure.
 First of all, in light of the flexible criteria governing the award
of fees, it is doubtful that the current fee system is the cause of
any shortage of attorneys.  Black lung fees are generally computed on
the attorney's usual and customary rate when the work was performed.
Applying that approach, "the scale upon which lawyers are generally
compensated" in black lung cases has recently been from $60 to $120
per hour.  Alexander v. Director, OWCP, 12 Black Lung Rep. (MB) 3-566
(ALJ 1988) (awarding $70 an hour for new attorney and $135 an hour for
senior associate in large law firm).  The information presented to the
court below was consistent with that range.  See Br. in Opp. App. A24
(affidavit of Frederick Muth that attorneys may expect $85 an hour at
the deputy commissioner level and up to $125 an hour from ALJs and the
Board).  In some cases, ALJs have boosted fees by using the rates
prevailing at the time of the award.  Cloos v. Director, OWCP, 8 Black
Lung Rep. (MB) 3-55 (ALJ 1985) (1983 rates of $100 an hour awarded for
attorney retained in 1976 for work in 1981 and 1983).  Cf. Missouri v.
Jenkins, 109 S. Ct. 2463, 2468-2469 (1989).  That level of
compensation is hardly so inadequate as to destroy all attorney
interest in black lung cases.  Cf. Superior Court Trial Lawyers Ass'n
v. FTC, 856 F.2d 226, 228 (D.C. Cir. 1988) (from 1970 to 1983,
Criminal Justice Act attorneys in the District of Columbia were paid
$30 an hour for court time and $20 per hour for office time), cert.
granted, 109 S. Ct. 1741 (1989).

   Of course, an award of attorney's fees is not enforceable until a
black lung benefits award is final.  A reasonable hourly rate,
however, will account for the possibility of such delay.  /15/ See
Missouri v. Jenkins, 109 S. Ct. at 2468-2469.  In the black lung
program, the Department assumes that the attorney's customary hourly
rate incorporates a component for delay.  See Hobbs v. Director, OWCP,
820 F.2d 1528, 1529 (9th Cir. 1987) (the Board reasonably assumes that
"any potential devaluation of a fee award as the result of delay (in
LHWCA cases) is comprehended in the basic fee structure of the
attorneys providing services");  Thompson v. Potashnick Constr. Co.,
812 F.2d 574, 577 (9th Cir. 1987) (describing Board policy that hourly
rates adjust for anticipated delays).  Given the prevalence of delayed
payment in the black lung field, as in the LHWCA context, Hobbs, 820
F.2d at 1529, an assumption that hourly rates are set with that
prospect in mind is entirely reasonable.  /16/

   Courts have also recognized that an attorney's hourly rate may
incorporate an adjustment for risk of loss.  See, e.g., Cotter v.
Bowen, 879 F.2d 359, 363 (8th Cir. 1989).  Cf. Delaware Valley, 483
U.S. at 726 (plurality opinion) ("it may well be that using a
contingency enhancement is superfluous and unnecessary under the
lodestar approach to setting a fee").  The Board has applied this
principle under the black lung statute, stating that an hourly rate is
"manifestly inadequate" if it does not compensate for risk of loss.
See, e.g., Taylor v. Director, OWCP, 6 Black Lung Rep. (MB) 1-427
(Ben. Rev. Bd. 1983) ($50 an hour at initial stages of the case is
manifestly inadequate for attorney who practices in West Virginia);
McKee v. Director, OWCP, 6 Black Lung Rep. (MB) 1-233, 1-237 (Ben.
Rev. Bd. 1983) (vacating fee award).  Cf. Esselstein v. Director,
OWCP, 676 F.2d 228 (6th Cir. 1982) (per curiam) (no abuse of
discretion to award hourly rate of $65, based on $50 market rate in
attorney's county plus $15 for risk of loss, even though national
hourly rate might be higher).  /17/

   An additional reason for doubting that the fee system has driven
lawyers from the black lung field is that there is an entirely
separate disincentive to representation:  the dramatically reduced
claims-approval rate under revisions to the black lung statute.  Under
the 1981 amendments, as the court noted (Pet. App. 14a), the approval
rate for claims at the initial adjudicatory level has dropped to
approximately 5 percent.  /18/ This factor was prominently mentioned
in the attorney affidavits on which the court relied in concluding
that the fee system discouraged attorney representation.  See Br. in
Opp. App. A3-A4, A11-A12, A24, A27, A30.  With such limited chances of
success, the interest of some attorneys has undoubtedly waned.  That
result, however, cannot rationally be attributed to the
characteristics of the fee system.

   Experience under earlier versions of the black lung statute
confirms that the current low approval rate -- and not the delay in
the payment of fees -- is the primary reason for any reduction in the
number of claimants' attorneys.  Delays also existed for claims
adjudicated under earlier versions of the law that were far more
favorable to claimants.  Nevertheless, attorneys were widely available
to handle such claims.  See 1985 Hearings, supra, at 103.

   c. In analyzing the risk of error in light of the fee system, it is
relevant to consider the existence of procedures that protect
claimants from an erroneous denial when a lawyer is not present.  Cf.
Walters, 473 U.S. at 330.  While the black lung program is not
intended to function as informally as the VA benefits system at issue
in Walters, the Department of Labor nonetheless uses a variety of
mechanisms to reduce the risk of error for pro se claimants.

   Under regulations governing the black lung program, the initial
stage of a claim is submission to an appropriate office of the
Department of Labor, either directly or through the Social Security
Administration.  20 C.F.R. 725.303(a)(1).  That office must give
assistance to claimants in filling out the requisite forms.  20 C.F.R.
725.304(a).  Following the filing of a claim,

         (e)ach miner * * * shall be provided an opportunity to
      substantiate his or her claim by means of a complete pulmonary
      evaluation.  Accordingly, the Office (of Workers' Compensation
      Programs) shall assist each claimant in obtaining the evidence,
      including medical evidence, necessary for a complete
      adjudication of a claim.  In the case of a miner's claim,
      initial medical tests and examinations shall be arranged for the
      miner by the Office, at no cost to the miner.

   20 C.F.R. 718.401.  The deputy commissioner, who initially
determines the claim, is required to give a claimant an opportunity
for a pulmonary examination, 30 U.S.C. 923(b);  20 C.F.R. 725.405(b)),
at the Trust Fund's expense (20 C.F.R. 725.406(c));  to gather
evidence of the miner's employment (20 C.F.R. 725.405(d));  and
otherwise to "take such action as is necessary to develop, process,
and make determinations with respect to the claim" (20 C.F.R.
725.401).  In survivor's cases, the deputy commissioner must also
gather "whatever medical evidence is necessary and available" (20
C.F.R. 725.405(c)).  The deputy commissioner has authority to schedule
an "informal conference in any claim where it appears that such
conference will assist in the voluntary resolution of any issue raised
with respect to the claim." 20 C.F.R. 725.416(a).  At such a
conference, the deputy commissioner must inform the claimant about the
consequences of any proposed agreement and, if the claimant does not
understand it, the deputy commissioner "shall not permit the execution
of any stipulation * * * unless it is clear that the best interests of
the claimant are served thereby." 20 C.F.R. 725.416(d).  If the
evidence does not support an initial award of benefits, the deputy
commissioner sends the claimant a letter specifying the reasons for
the denial and outlining the precise procedures and time limits for
further review.  20 C.F.R. 725.410(c).  This form of notice has been
held adequate to protect the due process rights of pro se claimants.
Jordan v. Benefits Review Board, 876 F.2d 1455 (11th Cir. 1989).  See
also Adams v. Harris, 643 F.2d 995 (4th Cir. 1981).

   An appeal from the deputy commissioner's determination may be taken
to an ALJ.  It is true that the proceedings before an ALJ take place
in a more adversarial, trial-type setting.  See 20 C.F.R.
725.450-725.457.  Nevertheless, there are safeguards to protect
against the risk of error for pro se claimants.  In any case involving
a hearing, an ALJ must determine whether a pro se claimant is able to
proceed without an attorney.  20 C.F.R. 725.362(b).  In the absence of
such a determination, an ALJ's denial of benefits will generally be
vacated.  See Shapell v. Director, OWCP, 7 Black Lung Rep. (MB) 1-304
(Ben. Rev. Bd. 1984).  Moreover, ALJs as a matter of practice assist
pro se claimants in finding attorneys by providing hearing notices
that include names and addresses of attorneys who represent black lung
claimants and by recommending bar association referral services,
unions, legal aid societies, and law schools that may provide clinical
programs.  See R. 27 (Affidavit of Nahum Litt, Chief ALJ for the
Department of Labor).  /19/ If a claimant wants legal representation
but is unable to retain an attorney in time for a hearing, it may
constitute an abuse of discretion, under those circumstances, for an
ALJ not to grant a continuance.  See Johnson v. Director, OWCP, 9
Black Lung Rep. (MB) 1-218 (Ben. Rev. Bd. 1986).

   Finally, the Benefits Review Board has adopted procedures to
provide for a fair review of a pro se claimant's case on appeal.  The
Board does not require pro se claimants to submit briefs;  moreover,
it conducts an independent review of ALJ decisions for error.  McFall
v. Jewell Ridge Coal Corp., 12 Black Lung Rep. (MB) 1-176 (Ben. Rev.
Bd. 1989) (applying 20 C.F.R. 802.211(e), 802.220);  Antonio v.
Bethlehem Mines Corp., 6 Black Lung Rep. (MB) 1-702 (Ben. Rev. Bd.
1983).

   In sum, the Department of Labor has focused on the problem of
assuring fairness to pro se claimants and developed regulations
designed to protect their procedural rights.  These procedures cushion
the process for pro se black lung claimants seeking to apply for or
retain benefits.

   d. This Court has recognized that a lawyer -- whether retained or
appointed -- is not essential in all cases in order to have a fair
proceeding;  rather, the due process interest in being represented by
counsel varies substantially depending upon the particular setting and
the competing interests at stake.  /20/ The Court has applied a
"presumption that an indigent litigant has a right to appointed
counsel only when, if he loses, he may be deprived of his physical
liberty." Lassiter v. Department of Social Services, 452 U.S. at
26-27;  see In re Gault, 387 U.S. 1 (1967) (juvenile delinquency
proceedings).  When a person faces a less severe loss of liberty,
however, there is no absolute right to counsel;  rather, any right to
appointed counsel must be established from considerations arising from
the facts of a particular proceeding, evaluated on a case-by-case
basis.  See Lassiter, 452 U.S. at 31-32 (parental termination
proceeding);  Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probation
revocation hearing);  Morrissey v. Brewer, 408 U.S. 471, 480 (1972)
(parole revocation hearing).  Cf. Vitek v. Jones, 445 U.S. 480, 496,
497 (1980) (plurality opinion);  id. at 499-500 (Powell, J.,
concurring in part) (hearing regarding involuntary transfer of an
inmate to mental institution for treatment).  In cases affecting even
weaker liberty interests, the government's interest in less formal
procedures, considered with the other Mathews factors, has led to the
conclusion that counsel need not be provided in any case.  See Wolff
v. McDonnell, 418 U.S. 539, 569-570 (1974) (inmate facing prison
disciplinary proceedings has no "right to either retained or appointed
counsel");  Goss v. Lopez, 419 U.S. 565, 583 (1975) (students facing
short suspensions have no right to "secure counsel").  /21/

   In cases involving an entitlement to government benefits that
qualifies as "property," the Court has never held that due process
requires the presence of counsel in order to guarantee fundamental
fairness.  In Randolph v. United States, 274 F. Supp. 200 (M.D.N.C.
1967) (per curiam), summarily aff'd, 389 U.S. 570 (1968), the Court
affirmed the judgment of a three-judge district court rejecting a due
process claim quite similar to that accepted by the court below.  The
plaintiff in Randolph contended that 42 U.S.C. 406(a), which governs
the payment of attorney's fees by Social Security claimants, "so
effectively discourage(s) attorneys from handling social security
cases that the claimants are deprived of the assistance of counsel."
274 F. Supp. at 203.  The court reasoned that even if the fee system
had the effect ascribed to it, the claim must fail because the court
could not "accept the plaintiff's initial premise * * * that claimants
for social security benefits have a constitutionally protected right
to counsel in pursuing their claims through the administrative
procedures of the social security system." Ibid.

   Indeed, in Walters, the Court went further and specifically
rejected the claim that the Fifth Amendment entitles a claimant to pay
for counsel with his own funds in a VA benefits proceeding.  The Court
in Walters took note that Goldberg v. Kelly, 397 U.S. 254 (1970), had
interpreted the Due Process Clause to require an evidentiary hearing
before the suspension of welfare benefits and had said that while
counsel need not be provided, "the recipient (in that hearing) must be
allowed to retain an attorney if he so desires." Id. at 270.  As the
Court observed in Walters, however, the State in Goldberg did not have
a policy "against permitting an applicant to divide up his welfare
check with an attorney who had represented him in the proceeding."
Walters, 473 U.S. at 333.  Moreover, the Walters Court also
distinguished Goldberg by noting that disability benefits have far
lesser "weight" in the due process analysis than welfare benefits,
"upon which the recipients in Goldberg depended for their daily
subsistence." Ibid.  The Court found that factor "determinative of the
right to employ counsel." Ibid.  /22/ Against that background, the
court below clearly erred in concluding that black lung proceedings
are, across-the-board, constitutionally inadequate without the
presence of counsel.  /23/

   The nature of black lung proceedings supports that conclusion.  The
determination of black lung benefits turns largely on medical matters.
 To be eligible for benefits, a miner must establish that he is (a)
totally disabled;  (b) by pneumoconiosis;  (c) arising from coal mine
employment.  See 30 U.S.C. 922(a), 932(c);  Sebben, 109 S. Ct. at 420.
 Given that medical focus, "it is less than crystal clear why lawyers
must be available to identify possible errors in medical judgment."
Walters, 473 U.S. at 330.  See also Mathews, 424 U.S. at 344;
Richardson v. Perales, 402 U.S. 389, 404 (1971).  Apart from medical
matters, the primary issue is to verify the facts regarding a miner's
employment.  Again, counsel is not essential for that purpose.  /24/

   Certainly, some black lung cases may be legally or factually more
complex, or contentious, than others.  Justice Powell emphasized for
the Court in Mathews, however, that "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." 424 U.S.
at 344.  See Walters, 473 U.S. at 330 ("a process must be judged by
the generality of cases to which it applies, and therefore a process
which is sufficient for the large majority of a group of claims is by
constitutional definition sufficient for all of them");  Califano v.
Yamasaki, 442 U.S. 682, 696 (1979).  While case-by-case determinations
of the requirements of due process may be appropriate when significant
liberty interests are at stake, see, e.g., Lassiter, 452 U.S. at
31-32, such an individualized approach is not required here, given the
nature of the property interest and the government's countervailing
interest in generally-applicable rules to govern a massive benefits
program.  In any event, the court below clearly erred in concluding
that the regulations violate due process in every black lung
proceeding, and there is nothing in the record from which to determine
whether the regulations have a more serious or detrimental impact on a
particular type or group of black lung cases.

   In its initial opinion, the court relied exclusively on the
experiences of the handful of claimants represented by respondent to
support a generalization about the necessity of employing counsel.
The court found it significant that respondent was able to obtain
benefits for his clients that were previously denied when the clients
were without counsel.  Pet. App. 22a.  The court did not consider,
however, that the awards in question may have simply resulted from
amendments to the statute under the Black Lung Benefits Reform Act of
1977, Pub. L. No. 95-239, 92 Stat. 95, which required reconsideration
of the previous denials under standards more favorable to claimants.
/25/ See Sebben, 109 S. Ct. at 418 (discussing 1977 Act).  Even
granting that the improved results in those few cases were
attributable to respondent, there is no basis for speculating that the
experience of those claimants was representative of black lung
claimants generally.

   Nor do the Department of Labor's statistics show that lawyers
necessarily produce a better outcome for claimants.  Cf. Pet. App. 40a
(characterizing the statistics as "conclusively demonstrat(ing) that
at the (ALJ) level, claimants represented by counsel have a likelihood
of prevailing that is 2.5 times greater than claimants appearing pro
se").  In the Department's submission, 92% of the claimants were
represented in cases resulting in an award or denial of benefits;
only a small percentage proceeded pro se.  That fact significantly
undercuts the use of comparative success rates as a ground for
concluding that pro se claimants win less frequently because they lack
lawyers.  A more likely explanation of the results is that the pro se
claimants did not attract lawyers because their cases were weaker.
Compare Lassiter, 452 U.S. at 29 n.5 (finding similar statistics
"unilluminating").

   3. A Claimant's Interest In Black Lung Disability Benefits Is Not
Equivalent To That Of A Recipient Of Subsistence Welfare Benefits

   The third Mathews factor is the private interest affected.  In both
Walters and Mathews, this Court stressed that the disability benefits
at issue were not based on need, nor did they constitute a recipient's
sole means of livelihood.  See Walters, 473 U.S. at 333;  Mathews, 424
U.S. at 342-343.  Consequently, the Court declined to equate the
significance of those benefits to the subsistence welfare benefits
considered in Goldberg v. Kelly.  The Court explained in Mathews that
the unusually heavy weight given the private interest in Goldberg came
from the unique nature of welfare as "assistance * * * given to
persons on the very margin of subsistence." 424 U.S. at 340.  "'The
crucial factor in this context -- a factor not present in the case of
. . . virtually anyone else whose government entitlements are ended --
is that the termination of aid pending resolution of a controversy
over eligibility may deprive an eligible recipient of the very means
by which to live while he waits.'" Ibid. (quoting Goldberg, 397 U.S.
at 264).

   Here, as in Mathews (424 U.S. at 342), the disability benefits
sought are but one form of government aid that claimants may seek.
Over 90% of black lung beneficiaries' households receive social
security benefits and 31% also receive union pensions.  Sample Survey,
supra, at 18.  What is more, black lung benefits are awarded to former
miners who are unable to do coal mining jobs or comparable work.  See
30 U.S.C. 902(f)(1)(A).  That is a less stringent test of disability
than in Mathews, where the benefits were available only for inability
to do any substantial gainful work in the national economy (424 U.S.
at 336).  See also 30 U.S.C. 901 (survivors of miners, who do not have
to prove any personal disability, are also eligible for benefits).

   Respondent argues (Br. in Opp. 7) that black lung claimants more
closely resemble the welfare recipients in Goldberg because of their
modest resources.  But the claimants in Mathews also had modest
resources.  Compare 424 U.S. at 342 n.26, with Sample Survey, supra,
at 17.  Respondent's observation (Br. in Opp. 7-8) that the black lung
benefits (like social security disability benefits in Mathews, see 42
U.S.C. 424(a) may be reduced by other sources of income is an argument
against their importance to a claimant, not in favor of it.

   4. The Balance Of The Mathews Factors Requires The Conclusion That
The Fee System Is Constitutional

   Considering the three Mathews factors, the balance decidedly tips
in favor of the black lung fee system's constitutionality.  The
government interest in preserving a benefit award for a claimant
through fee regulation is important, while changing the attorney's fee
system, as contemplated by the court below, would be administratively
difficult as well as costly.  The current procedures contain adequate
safeguards to protect against the erroneous denial of benefits for pro
se claimants, and, at all events, an attorney is not an essential
element of due process in all black lung cases.  Finally, the
claimant's interest in the receipt of non-subsistence disability
benefits is not so strong as to require the invalidation of the fee
system as a means to encourage new attorneys to take these cases.
Balancing those factors, the black lung fee system does not violate
the due process rights of claimants.

   C. The Fee System Does Not Violate Procedural Due Process In Any
Other Respect

   The court also stated that "(a)lternatively, there is an
independent basis for finding a violation of due process." Pet. App.
24a.  Citing only Marbury v. Madison, 5 U.S. (1 Cranch) 49 (1803), the
court concluded that the "fee limitation scheme * * * effectively
denies claimants the right to benefits granted by Congress," which it
believed to be "fundamentally unfair." Pet. App. 24a.  That conclusory
analysis is flawed.  To the extent that benefits conferred by Congress
are protected by the Fifth Amendment, the measure of the process that
is due is defined by consideration of the Mathews factors.  If the
procedures are adequate under that test, then the due process inquiry
is at an end.

   Respondent also attempts to inject into the due process calculus a
liberty interest "of an individual to consult with attorneys on
matters affecting his legal rights." Br. in Opp. 6.  That interest
furnishes no additional support for the contention that the fee system
is invalid.  /26/ A "liberty" interest in hiring counsel to seek
government benefits is inextricably intertwined with the claimant's
interest in effectively presenting a claim for those benefits.  Such a
liberty interest thus has no more "independent significance" than the
asserted First Amendment interest in Walters, 473 U.S. at 335.  There,
the Court rejected the theory that a VA claimant had a First Amendment
right to use his resources to obtain "meaningful access to the
courts," reasoning that the asserted right was "inseparable" from the
due process argument that the VA fee system denies claimants a
meaningful opportunity to present a claim.  Ibid.  Here, too, any
liberty interest in hiring counsel to prosecute a black lung benefits
claim stands or falls with the underlying due process "property"
claim.  Consequently, the asserted liberty interest does not enhance
respondent's due process argument.

                              CONCLUSION

   The judgment of the West Virginia Supreme Court of Appeals should
be reversed and the case remanded for further proceedings.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   JOHN G. ROBERTS, JR.

      Deputy Solicitor General

   MICHAEL R. DREEBEN

      Assistant to the Solicitor General

   WILLIAM KANTER

   JOHN S. KOPPEL

      Attorneys

   ROBERT P. DAVIS

      Solicitor of Labor

   ALLEN H. FELDMAN

      Associate Solicitor

   EDWARD D. SIEGER

      Attorney Department of Labor

   NOVEMBER 1989

   /1/ Black lung claims filed between July 1 and December 31, 1973
(transitional claims), and claims filed after December 31, 1973 (Part
C claims) are administered by the Department of Labor.  See 30 U.S.C.
925, 931-932 (1982 & Supp. V 1987).  A temporary program of federally
funded benefits for claims filed before July 1, 1973 (Part B), was
administered by the Secretary of Health, Education and Welfare.  See
30 U.S.C. 921-924 (1982 & Supp. V 1987);  20 C.F.R. 725.1(b).  See
Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 138-139 (1987).

   /2/ The Black Lung Disability Trust Fund is a Treasury account
financed by the coal-mining industry through an excise tax on coal.
The Trust Fund is administered by the Director of the Office of
Workers' Compensation Programs in the Department of Labor.  See 30
U.S.C. 934;  26 U.S.C. 4121(a), 9501 (1982 & Supp. V 1987).

   /3/ A claimant, when found eligible for benefits, receives a lump
sum representing past due benefits from the onset of disability to the
date of the award.  In addition, claimants receive future benefits,
paid monthly, after they are determined to be eligible.  20 C.F.R.
725.502.

   /4/ The court rejected the Committee's charge in its complaint that
Triplett had misrepresented his fee arrangements to the Department,
finding that the Committe had not adequately alleged such a violation
and that the evidence did not support it in any event.  Pet.App.
5a-6a.

   /5/ Although not purporting to direct the Department of Labor to
adopt any particular fee regulations, the court suggested that the
Department "could provide for a contingent fee," or could use a
"multiplier * * * to enhance the 'normal' hourly fee to compensate for
the risk of loss." Pet. App. 25a.

   /6/ In 1978, Congress amended the Black Lung Benefits Act, Pub. L.
No. 92-303, 86 Stat. 150, by enacting the Black Lung Benefits Revenue
Act of 1977, Pub. L. No. 95-227, 92 Stat. 11, and the Black Lung
Benefits Reform Act of 1977, Pub. L. No. 95-239, 92 Stat. 95.

   /7/ We assume, for purposes of this brief, that respondent had
standing to raise the due process rights of his clients with respect
to the fee arrangements at issue here.  Cf. Caplin & Drysdale,
Chartered v. United States, 109 S. Ct. 2646, 2651 n.3 (1989)
(defendant's attorney had jus tertii standing to advance his client's
constitutional objections to the application of drug forfeiture
statute to attorney's fees).  We note, however, that in a civil action
by an attorney challenging the constitutionality of the black lung fee
system, the district court dismissed the action on the basis that the
attorney lacked standing to assert the rights of claimants.  Howell v.
Dole, No. 88-303 (E.D. Ky. Oct. 13, 1989).

   /8/ Indeed, in another major entitlement program, Congress has
expressed the same policy, albeit in different form from the black
lung statute.  In regulating the attorney's fees that can be paid by
Social Security old age, survivor, and disability claimants, Congress
placed a ceiling on attorney's fees of 25% of a claimant's back
benefits award.  42 U.S.C. 406(b);  see S. Rep. No. 404, 89th Cong.,
1st Sess. Pt. 1, at 122 (1965).  See Hopkins v. Cohen, 390 U.S. 530,
534-535 & n.6 (1968).

   /9/ The regulation of fees was contained in both of the bills that
led to the 1927 LHWCA, and Congress reaffirmed that policy when it
added a fee-shifting provision to the LHWCA in 1972.  See Pet. 13-14
n.3 (discussing legislative history of LHWCA).

   /10/ The fee provisions and other portions of the LHWCA were
applied to Part C of the black lung statute in conference.  See H.R.
Conf. Rep. No. 761, 91st Cong., 1st Sess. 89-91 (1969).  During debate
on the conference report, supporters of the legislation uniformly
stated their intent to incorporate into Part C the enumerated LHWCA
provisions.  See 115 Cong. Rec. 39,707, 39,709 (1969) (Rep. Perkins);
id. at 39,712-39,713 (Rep. Dent);  id. at 39,718 (Rep. Burton);  id.
at 39,996 (section-by-section analysis of the Conference Report,
presented by Sen. Williams);  id. at 39,999 (Sen. Javits).

   /11/ Respondent, for example, generally ignored the possibility of
having the Trust Fund or a coal mine operator pay his attorney's fees,
instead requiring claimants to share their benefits with him.  See
generally R. 4, pt. 1 (stipulation before Committee on Legal Ethics).
On the two occasions where respondent submitted fee petitions, he also
collected unapproved extra fees from the claimants who retained him.
See Pet. App. 46a (claimant DeMotto);  id. at 48a;  R. 4, pt. 2
(claimant Hedrick).

   /12/ The court below distinguished Delaware Valley by noting (Pet.
App. 27a) that under the fee-shifting provision before the Court in
that case, plaintiffs were not barred from entering into supplementary
fee arrangements with their counsel.  That assumption, however, is by
no means certain.  The question whether, under a typical fee-shifting
statute (such as 42 U.S.C. 1988), plaintiff's counsel can collect from
the plaintiff the difference between a contingency fee and a
"reasonable" fee paid by the defendant is presently before the Court
in Venegas v. Mitchell, cert. granted, 110 S. Ct. 45 (1989).

   /13/ See R. 27 (Affidavit of Jane G. Denney).  The information
submitted to the court was compiled in connection with the Department
of Labor's petition for rehearing and reflects the evaluation of ALJ
determinations in cases filed during fiscal year 1987.  The Department
advises us that it does not generally prepare statistics on the rate
of representation in black lung cases.  Recently, the General
Accounting Office, in connection with a forthcoming report, has
requested more detailed information about the rate of representation
before the Board in black lung cases.

   /14/ It is also significant that at congressional hearings,
attorneys have presented to lawmakers the same type of arguments that
were presented to the court here about the alleged impact of the fee
system on the availability of competent counsel.  See 1985 Hearings,
supra.  Despite that information, and continued congressional
attention to the problem, see Oversight Hearing on the Administration
of the Black Lung Program:  Hearing Before the Subcomm. on Labor
Standards of the House Comm. on Education and Labor, 100th Cong., 2d
Sess. (1988), Congress has never made legislative "findings" that the
attorney's fee system bears responsibility for any difficulties in
arranging for representation in the black lung program.  Nor has
Congress revised the attorney's fee system, as it was urged to do, to
take account of the deficiencies perceived by some black lung
attorneys.  In light of Congress's superior fact-finding ability
regarding the operation of massive benefits programs, Walters, 473
U.S. at 330-331 n.12, the court below should have given consideration
to Congress's "refusal to impose on the Secretary" a different set of
fee regulations than currently prevails.  Cf. Heckler v. Day, 467 U.S.
104, 112 (1984) (district court erred in issuing statewide injunction
against the government to comply with mandatory deadlines for
disability determinations in light of Congress's awareness of the
problem and consistent refusal to impose similar deadlines).

   /15/ An enhancement to an attorney's customary hourly rate to
compensate for delay, insofar as it is seen as an award of interest,
may not be available against the United States absent congressional
consent.  Library of Congress v. Shaw, 478 U.S. 310 (1986).  In cases
arising before Shaw, courts found it unnecessary to decide whether an
award of attorney's fees against the Trust Fund is an award against
the United States because they construed the statutory incorporation
of the LHWCA fee-shifting provision, in conjunction with 30 U.S.C.
934(a), to authorize payment of attorney's fees from the Trust Fund.
See, e.g., Director, OWCP v. Black Diamond Coal Mining Co., 598 F.2d
945, 948-949 (5th Cir. 1979);  Republic Steel Corp. v. United States
Department of Labor, 590 F.2d 77, 82 & n.6 (3d Cir. 1978).  Whatever
the status of the Trust Fund, which is a federally administered
Treasury account derived mainly from an excise tax on coal (see note
2, supra), it "may not be comparable" to other federal agencies or
corporations.  Black Diamond, 598 F.2d at 948 n.3.

   /16/ To the extent that claimants' attorneys desire a different or
more explicit treatment of delay, they can of course litigate the
issue under the black lung fee system.  See also Workman v. Director,
OWCP, 6 Black Lung Rep. (MB) 1-1281, 1-1283 (Ben. Rev. Bd. 1984)
(attorney's time litigating a fee award can be compensated).

   /17/ Respondent seems to have understood that proposition because
he cited risk of loss as one of the factors in determining an hourly
rate of $125 that he requested from an ALJ.  See R. 4, pt. 2 (claimant
Hedrick).  The ALJ noted that respondent's total requested fee,
divided by the number of hours requested, in fact produced a rate
closer to $75, which the ALJ awarded.  Ibid.

   /18/ Congress's adjustment of the eligibility standards, of course,
presents no due process problem.  See Bowen v. Gilliard, 483 U.S. 587,
598 (1987);  Atkins v. Parker, 472 U.S. 115, 129-130 (1985).

   /19/ The Department of Labor originally submitted this affidavit in
Nuckles v. Brock, No. 87-0125-B (W.D. Va.), a due process challenge to
the black lung fee system that the district court dismissed on March
4, 1988, essentially for plaintiff's failure to prosecute.  The
Department resubmitted the affidavit to support its petition for
rehearing below.

   /20/ In criminal cases, of course, the Sixth Amendment (applied to
the States through the Fourteenth Amendment) requires the availability
of counsel to all defendants at the trial level, Gideon v. Wainwright,
372 U.S. 335 (1963), and through one level of appeal as of right,
Douglas v. California, 372 U.S. 353 (1963).  Cf. Ross v. Moffitt, 417
U.S. 600 (1974) (right to counsel does not apply to discretionary
review of intermediate appellate court by state supreme court);
Pennsylvania v. Finley, 481 U.S. 551 (1987) (State has no
constitutional obligation to provide counsel for indigent prisoners
seeking postconviction collateral relief);  Murray v. Giarratano, 109
S. Ct. 2765 (1989) (same conclusion as to death row inmates).

   /21/ See also Baxter v. Palmigiano, 425 U.S. 308, 314-315 (1976)
(applying Wolff v. McDonnell, supra, to a prison disciplinary hearing
involving charges of conduct that also violate state criminal law);
Middendorf v. Henry, 425 U.S. 25, 42-48 (1976) (serviceman facing
summary court martial has no right to have counsel provided);  Parham
v. J.R., 442 U.S. 584 (1979) (minor facing involuntary civil
commitment by a parent has no right to an adversary hearing or,
implicitly, counsel).

   /22/ The Court in Walters also stated, as an additional means of
distinguishing prior cases, that the VA process is designed to work
nonadversarily and that "counsel may well be needed to respond to
opposing counsel or other forms of adversary in a trial-type
proceeding." 473 U.S. at 333.  Walters, however, had no occasion to
consider the application of the Due Process Clause to those types of
proceedings, nor to define with precision what factors might tip the
due process balance in favor of an unregulated right to retain
counsel.

   /23/ We recognize that the due process analysis of the right to
appointed counsel is not identical to that of the right to retain
counsel with one's own funds.  But Congress clearly may restrict an
entitlement claimant's funds in order to ensure that the benefits are
applied to a claimant's personal needs rather than defraying legal
expenses, see pp. 21-25, supra.

   /24/ For example, in Esselstein v. Director, OWCP, 676 F.2d 228
(6th Cir. 1982) (per curiam), the court of appeals noted that a
claimant's counsel had a "straightforward" task to perform because
medical evidence had already been submitted by the claimant himself
and because "the only thing necessary to qualify the claimant for
benefits was submission of proof of coal mine employment." Id. at 229.
 There is no reason to believe that counsel is indispensable in such a
situation.

   /25/ See R. 4, pt. 1 (awards to claimants in State Bar materials);
R. 27 (Department of Labor materials) (showing that all awards to
respondent's clients were made under the 1977 amendments).

   /26/ The Court has long since rejected any view that an attorney's
"liberty" interest in contracting with a client is immune from
government regulation.  See Hines v. Lowrey, 305 U.S. 85 (1938);
Margolin v. United States, 269 U.S. 93, 102 (1925);  Calhoun v.
Massie, 253 U.S. 170, 174-175 (1920).