HARRY N. WALTERS, ADMINISTRATOR OF VETERANS' AFFAIRS, ET AL.,
APPELLANTS v. NATIONAL ASSOCIATION OF RADIATION SURVIVORS, ET AL.

   No. A-214

   In The Supreme Court Of The United States

   October Term, 1984

   Application For A Stay Pending Direct Appeal From The United States
District Court For The Northern District Of California

   Application For A Stay Pending Direct Appeal From The United States
District Court For The Northern District Of California

   Pursuant to Rules 43 and 44 of the Rules of this Court, the
Solicitor General, on behalf of the Administrator of Veterans' Affairs
and the other appellants, applies for a stay pending direct appeal of
the preliminary injunction entered by the district court that enjoins
on constitutional grounds the enforcement of 38 U.S.C. 3404 and 3405.
/1/ The jurisdiction of this Court to review the preliminary
injunction would be invoked under 28 U.S.C. 1252.  See McLucas v.
DeChamplain, 421 U.S. 21, 30-31 (1975);  Railway Labor Executives'
Assn. v. Gibbons, 448 U.S. 1301, 1303-1304 & n.2 (1980) (Stevens,
Circuit Justice), subsequent order, 448 U.S. 909 (1980).

   This action was filed in the United States District Court for the
Northern District of California on April 13, 1983.  Plaintiffs are two
veterans' groups and several veterans or their surviving spouses;  no
plaintiff class was requested or certified.  Following extensive
discovery by plaintiffs, /2/ the district court entered the
preliminary injunction here at issue.

   Plaintiffs challenge the constitutionality of 38 U.S.C. 3404.
Section 3404(c) prohibits (subject to criminal penalties, see 38
U.S.C. 3405) the payment of a fee of more than $10 by a beteran to an
agent or attorney in connection with a claim for monetary benefits
under laws administered by the Veterans' Administration.  Plaintiffs
alleged that the $10 limitation prevents veterans from retaining
attorneys and that, in the absence of such representation, the
administrative claims system is fundamentally unfair and denies
veterans their Fifth Amendment right to procedural due process and
their First Amendment rights of association and free speech and to
petition for a redress of grievances.

   A statutory limitation on fees regarding veterans' claims has
existed since 1862.  This Court, summarily affirming the decision of a
three-judge district court, has sustained the constitutionality of 38
U.S.C. 3404(c).  Gendron v. Levi, 423 U.S. 802, aff'g Gendron v.
Saxbe, 389 F. Supp. 1303 (C.D. Cal. 1975).  /3/ In addition, the Ninth
Circuit has recently upheld the validity of Section 3404(c), and this
Court declined further review.  Demarest v. United States, 718 F.2d
964 (1983), cert. denied, No. 83-1176 (Apr. 23, 1984).  /4/ Indeed, as
we pointed out in our motion to affirm in Gendron (at 3-4) and our
brief in opposition in Demarest (at 3, 6 n.11), every court to
consider the issue (now with the exception of the court below) has
held that Section 3404(c) is constitutional, and this Court has
consistently denied certiorari.

   In addition, Congress has repeatedly considered the fee limitation
over the years -- most recently in the current Congress -- and has
concluded that the existing system is fair and adequate and that
Section 3404(c) should not be amended (see Br. in Opp. in Demarest, at
7).  As explained in our motion to affirm in Gendron (at 4-7) and our
brief in opposition in Demarest (at 3-4, 7), this reflects Congress's
assessment that the VA claims system is an informal and nonadversarial
process in which VA employees assist the veteran in understanding the
proceedings and developing his claim.  Moreover, Congress has provided
for accredited service organizations to furnish, without charge,
assistance and representation to a veteran in preparing and presenting
his claim.  See 38 U.S.C. 3402(a).  Thus, Congress has long recognized
that the $10 fee limitation is not fundamentally unfair in the
nonadversarial VA claims process in which expert help from a service
organization is available to a veteran for free.

   In the present case, the district court, rejecting the longstanding
congressional policy to limit fees for VA claims and purporting to
distinguish Gendron and Demarest, concluded that "plaintiffs have a
high probability of success" on their constitutional arguments (App.
A, infra, 5;  see also id. at 44).  /5/ With respect to the due
process issue, the court held that the prior decisions involved
challenges to Section 3404 on its face and did not preclude an attack
on the statute "as applied to the facts of this case" (App. A, infra,
9;  see also id. at 13, 14, 59 n.7).  The court explained that "(i)t
is particularly important to conduct a careful inquiry into a
statute's application to all the facts at hand where that statute is
being challenged as violative of procedural due process" (id. at 10),
and it noted (id. at 11-12) that plaintiffs

      have gathered a great deal of evidence regarding the way the
      claims process functions and whether it tends to be adversarial,
      the extent to which VA employees or service organization
      representatives are able to aid veterans in gathering supporting
      materials and presenting their claims, the special difficulties
      posed by such complex claims as those relating to Agent Orange
      or radiation-related illnesses, the way in which the lack of an
      attorney renders veterans unable to present their claims
      adequately, and the financial hardship imposed on veterans by
      the $10.00 limit.  They have also presented statistical evidence
      regarding the success rates of various types of * * * claims
      before the several levels of the VA.

Based on that evidence, the court determined that (1) while the VA
process was designed to be informal and nonadversarial (id. at 34-35),
"both the procedures and the substance entailed in presenting * * *
claims to the VA are extremely complex" (id. at 31) and "particularly
so with respect to those claimants seeking to obtain benefits for
deaths or disabilities arising from such causes as exposure to atomic
radiation or Agent Orange, or from Post Traumatic Stress Syndrome"
(id. at 33), and (2) because of resource limitations, neither service
organization personnel representing claimants nor VA employees are
able to devote the same time and resources to a case that a retained
attorney would (id. at 28, 35, 38-39, 40).

   The district court also held that, independently of the Due Process
Clause, the First Amendment entitles the individual plaintiffs to
"meaningful" (App. A, infra, 48) and "effective" (id. at 49) access to
the VA and protects the right of the organizational plaintiffs to
"provid(e) adequate legal services to their members" (id. at 43).  The
court determined (id. at 50-51) that "plaintiffs have submitted vast
numbers of depositions, declarations, and documents demonstrating that
claimants' inability to employ counsel for a fee of more than $10.00
severely impedes their efforts to investigate and present their death
and disability claims to the VA." Finding that Gendron and Demarest
had not presented First Amendment challenges to Section 3404(c) (id.
at 43), the court concluded that plaintiffs had "shown a high
probability of success on their First Amendment claim" (id. at 52).

   Finally, the district court held that plaintiffs had demonstrated
that they would suffer irreparable injury if a preliminary injunction
were denied and that the balance of hardships between the parties
favored the plaintiffs (App. A, infra, 52-56).  Accordingly, the
district court entered a broad preliminary injunction against
enforcement of Sections 3404(c) and 3405;  that injunction is of
nationwide scope, is not limited to the plaintiffs in this case, and
is not confined to unusually complex or complicated cases or otherwise
restricted to instances in which the claims procedure would be unfair
or inadequate in the absence of a retained attorney.  In addition, the
court required the VA to take various affirmative steps to remove
references to the fee limitation in its forms and other documents and
to post a summary of the preliminary injunction in VA offices across
the country.  App. A, infra, 56-57.  On the government's motion for a
stay pending appeal, the district court modified the injunction (1) to
expand the government's obligation to publicize the preliminary
injunction by circulating a summary of its provisions to such entities
as veterans' service organizations, state bar associations, and legal
and veterans' publications, and (2) to allow the VA to continue to use
its existing forms and other documents without reprinting them,
provided that any references to the fee limitation are either deleted
or explained to be inoperative as a result of the court's order.  App.
B, infra.  In addition, in an effort to clarify the consequences of
the litigation and to ameliorate confusion on the part of both
veterans and attorneys, the VA was authorized to state in the notice
it is to issue (ibid.):

         The Order means THAT YOU MAY HIRE AN ATTORNEY OF YOUR CHOICE
      AND PAY HER/HIM ANY AMOUNT YOU AGREE UPON AND THAT THE TEN
      DOLLAR ATTORNEY'S FEE LIMITATION IS NOT CURRENTLY IN EFFECT.  On
      June 20, 1984, the government appealed this decision to the
      United States Supreme Court.  You are advised that the Supreme
      Court might reverse or modify the District Court's decision in
      whole or in part.  ACCORDINGLY, ANY FEE AGREEMENT BETWEEN YOU
      AND AN ATTORNEY SHOULD TAKE INTO ACCOUNT THE UNCERTAINTY ARISING
      OUT OF THE ABOVE FACTS.

In all other respects, the government's motion for a stay was denied.

                               ARGUMENT

   The district court has held unconstituional a century-old federal
statute that has previously been sustained by both this Court and
other courts.  The Solicitor General has recently authorized a direct
appeal to this Court from the preliminary injunction entered below,
and the government's jurisdictional statement is due to be filed by
October 8, 1984.  In these circumstances, it appears that the Court
will dispose of this case during the present Term.  The immediate
question, therefore, is whether, during the brief pendency of the
appeal, the statutory provision enacted by Congress should remain in
effect or whether the VA's procedures should be summarily revamped on
a nationwide basis in accordance with the preliminary injunction of a
single district judge.  For the following reasons, we submit that the
former course is appropriate and that a stay pending appeal is
warranted.

   The standard for granting a stay pending appeal is well
established.  A stay should issue if (1) there is a "reasonable
probability" that four Justices will vote to note probable
jurisdiction, (2) there is a "fair prospect" that the Court will
ultimately conclude that the decision under review is erroneous, and
(3) considerations of irreparable injury, the balance of hardships
between the parties, and the public interest militate in favor of a
stay.  See Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan,
Circuit Justice);  see also, e.g., Schweiker v. McClure, 452 U.S. 1301
(1981) (Rehnquist, Circuit Justice).  This standard is clearly
satisfied in the present case.

   1. First, there is a "reasonable probability" that the Court will
note probable jurisdiction.  A single district judge has invalidated a
statute that has represented congressional policy for more than 100
years and that Congress has repeatedly revisited and recently decided
to leave in force.  Cf. Brennan v. United States Postal Service, 439
U.S. 1345, 1347 (1978) (Marshall, Circuit Justice).  The power "to
judge the constitutionality of an Act of Congress * * * (is) 'the
gravest and most delicate duty that * * * (a court) is called upon to
perform'" (Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (citation
omitted)), and in exercising that power a court must "accord() 'great
weight to the decision of Congress'" (453 U.S. at 64 (citation
omitted)).  The very existence of the direct appeal statute (28 U.S.C.
1252) reflects the gravity and sensitivity of a lower court decision
striking down an Act of Congress.  See, e.g., Heckler v. Edwards, No.
82-874 (Mar. 21, 1984);  McLucas v. DeChamplain, supra.  Given the
strong presumption in favor of the constitutionality of congressional
enactments, it is both likely that the Court will note probable
jurisdiction and appropriate that the statute remain in effect pending
such review.  See, e.g., Schweiker v. McClure, 452 U.S. at 1303;  New
Motor Vehicle Board v. Orrin W. Fox Co., 434 U.S. 1345, 1351, 1352
(1977) (Rehnquist, Circuit Justice);  Marshall v. Barlow's, Inc., 429
U.S. 1347, 1348 (1977) (Rehnquist, Circuit Justice);  Katzenbach v.
McClung, 85 S. Ct. 67, 7 (1964) (Black, Circuit Justice);  Heart of
Atlanta Motel v. United States, 85 S. Ct. 1, 2 (1964) (Black, Circuit
Justice).

   Moreover, the decision below is plainly at odds with the decision
of this Court in Gendron, the decision of the Ninth Circuit in
Demarest, and the decisions of the other courts that have upheld
Section 3404(c) (see pages 203, supra).  This consideration
significantly enhances the likelihood of review by this Court.  /6/

   2. For much the same reasons, there is also a "fair prospect" that
the Court will reverse the decision below.  The usual presumption of
constitutionality of Acts of Congress, the long-standing and recently
continued adherence by Congress to the fee limitation, and the
inconsistency between the district court's ruling and those of this
and other courts, indicate that at a minimum the decision below is
open to substantial doubt.  See, e.g., Marsh v. Chambers, No. 82-23
(July 5, 1983), slip op. 3, 6-7;  Fullilove v. Klutznick, 448 U.S.
448, 472-473 (1980) (plurality opinion);  Katzenbach v. McClung, 379
U.S. 294, 303-304 (1964);  United States v. National Dairy Products
Corp., 372 U.S. 29 (1963);  cf. Arnett v. Kennedy, 416 U.S. 134,
151-155 (1974) (plurality opinion);  Hurtado v. United States, 410
U.S. 578 (1973);  Romero v. International Terminal Operating Co., 358
U.S. 354, 370-371 (1959).  /7/

   This conclusion is reinforced by the decisions of this Court that
recognize that a lawyer (whether retained or appointed) is not always
necessary to a fair proceeding.  See Baxter v. Paomigiano, 425 U.S.
308, 312, 314-315 (1976);  Goss v. Lopez, 419 U.S. 565, 583 (1975);
Wolff v. McDonnell, 418 U.S. 539, 569-570 (1974);  Vitek v. Jones, 445
U.S. 480, 499-500 (1980) (Powell, J., concurring in part);  cf.
Schweiker v. McClure, 456 U.S. 188, 199 n.14 (1982);  Parham v. J.R.,
442 U.S. 584, 607 (1979).  Moreover, in this case, the need for
counsel must be considered in the setting of a nonadversarial process
(see Richardson v. Perales, 402 U.S. 389, 403 (1971)) in which
representatives are provided without charge by service organizations.
In effect, Congress has set up an alternative dispute resolution
procedure in which lawyers are not necessary to a fair resolution, and
the district court erred in striking down this legislative
"experiment" as unconstitutional.  See Parham v. J.R., 442 U.S. at 608
n.16.  /8/

   Beyond all this, and more fundamentally, the district court
misconceived the proper role of the judiciary and its relationship to
the legislative branch of government.  As noted above, Congress has
reviewed the VA fee limitation and decided that no change in the
provision is necessary in light of the informal and nonadversarial
nature of the claims process and the expert representation provided by
service organizations without charge.  For example, as recently found
by the Senate Committee on Veterans' Affairs:

      Many of the VA's internal procedures, particularly in the area
      of adjudication of claims, have developed over the years in such
      a way as to afford to VA claimants some advantages not afforded
      to claimants before other agencies.  Advantages most often cited
      are the VA's very liberal standards for the admission of
      evidence, and free representation before the VA by skilled
      officers of the various national veterans' service organizations
      -- advantages which are often credited for the informal,
      "nonadversarial" nature of VA proceedings.

         * * * (The Committee has) abiding respect * * * for the high
      quality of representation offered by the veterans' service
      organizations * * * .

                      * * * * *

         * * * (T)he Committee is concerned 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.  The mainstays of
      that network are veterans' service officers, employees of
      national veterans' service organizations, and other
      organizations approved pursuant to present section 3402 of title
      38, who provide representation without charge to veterans and
      other claimants before the VA, without regard to whether the
      individual claimant is a member of the service officer's
      organization.  It is widely recognized, as the VA noted * * *
      (,) that veterans' service officers "render sophisticated and
      expert assistance in prosecuting a claim", and the Committee
      strongly believes that the availability of their services should
      be maintained and fostered.

                      * * * * *

      As noted above, there is a strong and vital system of veterans
      service officers who provide excellent representation at no cost
      to claimants.

S. Rep. 97-466, 97th Cong., 2d Sess. 25, 49-50, 50-51 (1982);  see
also id. at 19, 32, 63;  129 Cong. Rec. S1897 (daily ed. Mar. 1, 1983)
(remarks of Sen. Simpson);  Veterans' Administration Adjudication
Procedure and Judicial Review Act and the VA's Fiscal Year 1984 Major
Construction Project Proposals:  Hearing on S. 636 Before the Senate
Comm. on Veterans' Affairs, 98th Cong., 1st Sess. 67, 139 (1983).  In
addition Congress was informed that claimants represented by service
organizations have virtually the same rate of success -- and in some
instances a higher rate -- than claimants represented by an attorney
(id. at 67, 237, 252-256, 259).

   Despite Congress's determination of legislative fact regarding the
operation of the claims system, the district court simply disregarded
the legislative assessment and, based on the record developed in this
litigation, undertook to re-weigh essentially the same evidence that
had been presented to Congress and to make de novo findings on the
same issues concerning the general workings of the claims process.
This was not within the province of the district court to do.  To be
sure, it is the ultimate responsibility of the judiciary to decide
whether the constitutional standards of due process are satisfied.
But in addressing that question, the courts are not free to ignore the
legislature's findings concerning those subjects of broad and general
applicability -- such as are involved in understanding and evaluating
the nature of the VA claims procedure -- that are not matters of
historical or adjudicative fact and do not lend themselves to
resolution through the judicial process in litigation between two
parties.  Where, as here, a broad challenge is made to the
constitutionality of a federal statute, the validity of the statute
does not vary from case to case and district to district depending
upon the record that the parties develop in the particular lawsuit.

   Of course, Congress is not required to make findings of fact to
support legislation.  See Katzenbach v. McClung, 379 U.S. at 299, 304.
 But where Congress has done so, due regard for the proper separation
of powers and for the superior ability of the legislature to gather
information and analyze issues of legislative fact (see, e.g.,
Eastland v. United States Servicemen's Fund, 421 U.S. 491, 504-505
(1975);  Branzburg v. Hayes, 408 U.S. 665, 693-694 (1972)) requires
that courts defer to Congress's determinations unless those
determinations can be said to be irrational.  See, e.g., Ruckelshaus
v. Monsanto Co., No. 83-196 (June 26, 1984), slip op. 26 n.18;
Texaco, Inc. v. Short, 454 U.S. 516, 532-533 (1982);  Rostker v.
Goldberg, 453 U.S. at 68, 74, 81-83;  United States Railroad
Retirement Board v. Fritz, 449 U.S. 166, 179 (1980);  Harris v. McRae,
448 U.S. 297, 325-326 (1980);  Vance v. Bradley, 440 U.S. 93, 106, 111
(1979);  Califano v. Webster, 430 U.S. 313, 318 (1977);  Kleppe v. New
Mexico, 426 U.S. 529, 541 n.10 (1976);  Firemen v. Chicago, R.I. &
P.R. Co., 393 U.S. 129, 136, 138-139 (1968);  Clark v. Paul Gray,
Inc., 306 U.S. 583, 594 (1939).  Judged under the correct legal
standards, it is clear that Section 3404(c), viewed in the context of
the nonadversarial claims system in which veterans are provided with
free expert representation by service organizations, does not deny
fundamental fairness.  Likewise, any argument that the $10 fee
limitation has become obsolete or is undesirable as a matter of policy
must be addressed to Congress rather than to the courts.  See, e.g.,
United States v. Lorenzetti, No. 83-838 (May 29, 1984), slip op. 11;
Morrison-Knudson Construction Co. v. Director, OWCP, No. 81-1891 (May
24, 1983), slip op. 11-12.  /9/

   3. Finally, consideration of the equities and the public interest
strongly supports the granting of a stay.  /10/ A statutory limitation
on fee payments has been in place for more than a century.  That
limitation has remained in effect since the complaint was filed in
this case in April 1983, since the motion for a preliminary injunction
was filed (following the denial of the government's motion to dismiss)
in November 1983, and since the injunction motion was argued in
December 1983.  Given the seven months that elapsed between the
submission of the motion for decision and the issuance of the district
court's opinion and order of June 12, 1984, it is not unreasonable for
Section 3404(c) to continue in operation during the period that the
matter is before this Court.  See Los Angeles v. Lyons, 453 U.S. 1308,
1312 (1981) (Rehnquist, Circuit Justice) (granting stay to allow the
city "to use a particular procedure, already in use for at least four
years, for the few additional months before this Court acts on its
petition for certiorari").

   Moreover, compliance with the district court's injunction would
necessitate a significant revision in the VA claims process.  However,
if, as discussed above, that order is reversed by this Court, further
modifications would be required simply to return to the now-existing
procedure.  Especially in light of the fact that the case will be
decided by the Court this Term, such a course would only promote
needless burden, disruption, and confusion.  See Schweiker v. McClure,
452 U.S. at 1303;  Rostker v. Goldberg, 448 U.S. at 1310 n.3;
Houchins v. KQED, 429 U.S. 1341, 1346 (1977) (Rehnquist, Circuit
Justice);  cf. New Motor Vehicle Board v. Orrin W. Fox Co., 434 U.S.
at 1351.

   Indeed, as even the district court recognized in its order of July
20, 1984 (see page 6, supra), the outstanding preliminary injunction
may cause considerable uncertainty and consternation for both
claimants and attorneys.  Because of the prospect that the injunction
will be reversed by this Court, veterans and prospective counsel are
unable to come to intelligent and informed decisions about
representation;  we are advised by the VA that it has received a
number of communications from veterans expressing confusion and
concern about the issue.  Furthermore, if the injunction is not stayed
and veterans retain counsel to represent them, such arrangements will
have to be completely set aside -- with consequences that may not be
wholly foreseeable but that surely will be unsettling and disruptive
-- in the event the Court ultimately reverses the district court's
order.  The possible need to undo these relations in medias res
strongly counsels in favor of a stay at this juncture.

   Finally, the appropriateness of a stay is further reinforced by the
nature of the decree entered by the district court.  The purpose of a
preliminary injunction "is to preserve the status quo pending final
determination of the action after a full hearing." 7 Moore's Federal
Practice Paragraph 65.04(1) at 65-36 (1984);  see also, e.g.,
University of Texas v. Camenisch, 451 U.S. 390, 395 (1981).  Here,
however, the district court's preliminary injunction changed rather
than preserved the status quo and afforded plaintiffs all of the
affirmative relief to which they would be entitled if they prevailed
on a permanent injunction.  Moreover, the opinion of the district
court, in finding a likelihood that Section 3404(c) is
unconstitutional as applied in this case, focused on such factors as
the complexity of certain types of benefit claims and the inadequacy
of the assistance furnished by the VA and the service organizations in
certain circumstances;  yet the court's order enjoining enforcement of
Section 3404(c) applies broadly on a nationwide basis and is not
limited to the plaintiffs in this action, to unusually complex claims,
or to cases of fundamental unfairness in the absence of privately
retained counsel.  Cf. Califano v. Yamasaki, 442 U.S. 682, 702 (1979);
 Withrow v. Larkin, 421 U.S. 35, 43 (1975);  Hartford-Empire Co. v.
United States, 323 U.S. 386, 410 (1945).

   The foregoing are among the considerations that the Solicitor
General took into account in authorizing an appeal from the district
court's preliminary injunction.  The same considerations also indicate
the propriety of a stay pending appeal.  During the brief period that
the case is before the Court, the longstanding statute enacted by
Congress, not the erroneous legal ruling of a single district judge,
should govern the VA claims process.  Accordingly, a stay pending
appeal is warranted.

                              CONCLUSION

   The application for a stay pending appeal should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   SEPTEMBER 1984

   /1/ The opinion of the district court is attached hereto as
Appendix A.  The preliminary injunction granted by the district court
is set forth at pages 56-57 of the opinion.  The court's order
partially modifying the preliminary injunction on the government's
motion for a stay pending appeal is attached hereto as Appendix B.

   /2/ As the district court recognized, plaintiffs' discovery in this
case has been "extensive" (App. A, infra, 11) and involves "a great
deal of evidence" (ibid.), including depositions of seven VA officials
and interrogatories and requests for documents that led to the
government's production of more than 25,000 pages of material.

   /3/ Of course, a summary affirmance by this Court constitutes a
ruling on the merits.  See Southern Ry. v. Seaboard Allied Milling
Corp., 442 U.S. 444, 462 (1979);  Tully v. Griffin, Inc., 429 U.S. 68,
74 (1976);  Hicks v. Miranda, 422 U.S. 332, 343-345 (1975).

   /4/ Copies of the jurisdictional statement, the motion to affirm,
and the reply brief in Gendron, and the brief in opposition in
Demarest, are attached hereto as Appendices C-F.  The history and
development of the statutory fee limitation is traced in the appendix
to our motion to affirm in Gendron and in our brief in opposition in
Demarest (at 4 n.3).

   /5/ The district court had previously denied the government's
motion to dismiss the complaint, finding that plaintiffs had stated a
claim under both the Due Process Clause of the Fifth Amendment and the
First Amendment.

   /6/ The court below sought (App. A, infra, 12) to distinguish
Gendron on the ground that, in contrast to the instant case, the
plaintiff there "presented no evidence that service organization
representation was inadequate or that the veteran's claim was
particularly complex." As the court elsewhere recognized, however (id.
at 60 n.9), the jurisdictional statement in Gendron specifically
presented the question whether "the District Court improperly
refuse(d) to receive evidence * * * that private veterans'
organizations and their lay persons do not provide adequate
representation * * * ." See App. C, infra, 5.  Indeed, throughout the
jurisdictional statement, the issues of the adequacy of representation
by service organizations and the complexity of veterans' claims were
raised (id. at 6-7, 9 & n.4, 10, 12, 20, D2).  The same points were
reiterated in the reply brief at the jurisdictional stage (App. E,
infra, 4-5, 6, 7, 8-9).  We also note that the three-judge district
court in Gendron, unlike the court in this case (see pages 4, supra,
and 11-12, infra), relied on Congress's evaluation of the nature and
operation of the VA claims system (389 F. Supp. at 1307) and did not
independently take evidence on that issue.  Thus, Gendron and the
decision below are fundamentally in conflict.

   /7/ Because, as we show, the district court's preliminary
injunction rests on an error of law, it is subject to plenary review
by this Court.  See Withrow v. Larkin, 421 U.S. 35, 46, 55 (1975);
Houchins v. KQED, 429 U.S. 1341, 1344 (1977) (Rehnquist, Circuit
Justice);  Delaware & H. Ry. v. United Transportation Union, 450 F.2d
603, 620 (D.C. Cir.) (Leventhal, J.), Cert. denied, 403 U.S. 911
(1971);  7 Moore's Federal Practice Paragraph 65.21 at 65-154 & n.26
(1984).  Likewise, on an appeal from a preliminary injunction, the
Court has jurisdiction to review the denial by a district court, as in
this case (see page 4 note 5, supra), of a motion to dismiss the
complaint.  See Deckert v. Independence Shares Corp., 311 U.S. 282,
286-287 (1940);  Energy Action Educational Foundation v. Andrus, 645
F.2d 735, 745-746 & n.54 (D.C. Cir. 1980), rev'd on other grounds sub
nom. Watt v. Energy Action Educational Foundation, 454 U.S. 151
(1981);  FTC v. Cinderella Career and Finishing Schools, Inc., 404
F.2d 1308, 1310-1311 (D.C. Cir. 1968).

   Of course, it is often appropriate for an appellate court to review
a preliminary injunction under a deferential "abuse of discretion"
standard where, for example, the need for an expeditious ruling at the
trial level limits the analysis of relevant legal issues or precludes
the development of a full factual record on which the outcome of the
controversy will turn.  See, e.g., University of Texas v. Camenisch,
451 U.S. 390, 394-396 (1981);  Brown v. Chote, 411 U.S. 452, 456-457
(1973).  Such a standard is inapplicable here, however.  The district
court's order is premised on a decisive legal error, the plaintiffs
engaged in extensive discovery to support their request for an
injunction, and the court had ample opportunity to consider the issues
and write a lengthy opinion.  Moreover, as discussed below (see page
15, infra), the district court's decree, while formally a preliminaty
injunction, is an exceedingly broad order that gives plaintiffs the
complete affirmative relief that would be sought in a permanent
injunction.  And we are advised by the Assistant United States
Attorney that the issue of a permanent injunction probably would not
be resolved by the district court for a year or more, and therefore
the preliminary injunction in this case, unlike in many other cases,
is intended to be in effect for an extended period.  In these
circumstances, there is no obstacle to the Court's review on the
merits of the legal validity of the injunction entered below.

   /8/ The district court heavily relied (see page 4, supra) on its
view that the VA and the service organizations have inadequate
resources to provide the same level of preparation and assistance to
every claimant that a privately retained representative would.  Even
assuming that to be true, however, the court's concern would not
implicate a right to counsel;  presumably a Legal Services attorney
(who would not charge a fee and thus would not be constrained by
Section 3404(c) from representing a client), or indeed a
representative from a service organization who happens to be a lawyer,
would labor under the same sorts of institutional and resource
limitations.  A right to counsel must rest on the special capabilities
of an attorney and cannot be invoked to further other objectives that
have little if anything to do with the role of lawyers.  See United
States v. Gouveia, No. 83-128 (May 29, 1984), slip op. 10-11.

   /9/ In addition, contrary to the conclusion of the district court,
we do not believe that this case presents a First Amendment issue that
is separate and independent of the due process issue.  If the existing
VA claims procedure is fair and adequate without privately retained
attorneys, there is no basis in the First Amendment for inferring a
right to counsel as necessary to effectuate the freedoms of speech,
association, and petition for redress.  In any event, Section 3404(c)
does not prevent veterans from associating or petitioning, or
veterans' organizations from furnishing supporting services (including
legal advice and representation), provided only that the claimant is
not charged more than $10.  This statute is a far cry from the
situations presented in the cases on which the district court relied,
and nothing in those decisions suggests that the fee limit is
unconstitutional because it limits a claimant from hiring a private
lawyer where other, adequate representation is available without
charge.

   /10/ See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-313 (1982)
(citations omitted):

         In exercising their sound discretion, courts of equity should
      pay particular regard for the public consequences in employing
      the extraordinary remedy of injunction.  * * * Thus, the Court
      has noted that "(t)he award of an interlocutory injunction by
      courts of equity has never been regarded as strictly a matter of
      right, even though irreparable injury may otherwise result to
      the plaintiff," and that "where an injunction is asked which
      will adversely affect a public interest for whose impairment,
      even temporarily, an injunction bond cannot compensate, the
      court may in the public interest withhold relief until a final
      determination of the rights of the parties, though the
      postponement may be burdensome to the plaintiff."

                               APPENDIX