# United States Department of Labor v. Triplett/Concurrence Marshall

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Stevens Marshall
Justice MARSHALL, with whom Justice BRENNAN joins as to Part II, concurring in the judgment.
In the context of an attorney disciplinary action, the West Virginia Supreme Court of Appeals held the provision of the Black Lung Benefits Act of 1972 that governs attorney's fees awarded to counsel for a successful claimant, 83 Stat. 796, as amended, 30 U.S.C. § 932(a) (1982 ed., Supp. V), unconstitutional as applied. I agree with the Court's decision to reverse this judgment because the evidence supporting it does not establish that the Department of Labor's regulation of attorney's fees deprives black lung claimants of adequate legal assistance. Ante, at 726. Nevertheless, I write separately to underscore the limited nature of the Court's holding.
* Before the Court proceeds to the merits of this litigation, it discusses the standing of petitioners and respondent Triplett (hereinafter respondent). I agree that we must examine the standing of one of the petitioners and that petitioners can seek review in this Court. Ante, at 719. I am bewildered, however, by the Court's lengthy discussion of respondent's standing to assert the due process rights of black lung claimants. Ante, at 720-721. As long as one of the petitioners has standing and the litigation presents a live case or controversy, this Court has jurisdiction on certiorari from a state-court judgment even if, had the state court applied federal standing requirements, the respondent would have lacked standing. ASARCO Inc. v. Kadish, 490 U.S. 605, 623-624, 109 S.Ct. 2037, 2048-2049, 104 L.Ed.2d 696 (1989). The rule we announced so recently in ASARCO renders examination of respondent's standing in the state courts through the lens of federal standing principles completely irrelevant. To the extent that the Court's extended treatment of the issue implies otherwise, it is blatantly inconsistent with our precedent.
In ASARCO, the petitioners sought review of a state-court decision on a federal issue in favor of the respondents, who were the plaintiffs in state court. The United States as amicus curiae argued that this Court should dismiss the case because the respondents would not have satisfied the standing requirements for bringing the suit in a federal district court. Id., at 620, 109 S.Ct. at 2047. This Court held, however, that the respondents were not required to meet federal standing requirements. Rather, only the parties "first invoking the authority of the federal courts in th[at] case," the petitioners were required to prove standing. Id., at 624, 109 S.Ct., at 2049. See also id., at 617-618, 109 S.Ct., at 2045-2046.
The ASARCO Court began its analysis with the well-established rule that "state courts are not bound to adhere to federal standing requirements [even though] they possess the authority, absent a provision for exclusive federal jurisdiction, to render binding judicial decisions that rest on their own interpretations of federal law." Id., at 617, 109 S.Ct., at 2045. The Court then reasoned that if it were to examine the respondents' standing and determine that the respondents failed to satisfy federal standing requirements, the only logical course would be to dismiss the case, leaving the state-court judgment intact. See id., at 620-621, 109 ,S.Ct., at 2047. The unavailability of federal review of such a state court judgment would undermine the preclusive effect of that judgment on subsequent litigation between the parties in federal court, because a state-court judgment on a federal issue normally has collateral-estoppel effect in federal court only if the state-court judgment was subject to federal review. Id., at 621-622, 109 S.Ct., at 2047. A state court that sought to render a binding decision on a federal issue would be forced to adhere to federal standing requirements to ensure the availability of federal review. Id., at 622, 109 S.Ct., at 2048. The ASARCO Court concluded, therefore, that dismissing the case on the ground that the respondents lacked standing under federal principles would effectively impose those federal requirements on state courts.
The Court's decision in ASARCO clearly forecloses the need for any examination of whether respondent here satisfies federal standing requirements. It is of no importance that the standing issue raised in this case is whether respondent can raise the claims of third parties, whereas the issue in ASARCO was whether the respondent taxpayers and teachers association had shown distinct, concrete injury fairly traceable to the state statute and likely to be redressed by the requested relief. The general principle that a party must raise his own legal rights and interests and not those of third parties, and the limited exceptions to that principle, are part of the same set of standing requirements devised by this Court to limit the category of parties who may seek relief in federal court. See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 474, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982). Nothing in ASARCO suggests that some of the federal standing requirements are applicable to the States, while others are not. Because respondent has not invoked the authority of any federal court, then, federal standing principles are simply inapplicable to him. Under this Court's clear pronouncement in ASARCO, the only relevant question for us here is whether one of the petitioners has standing to seek review by this Court of the state court's judgment. As in ASARCO, these petitioners have standing because "[t]he state proceedings ended in a . . . judgment adverse to petitioners, an adjudication of legal rights which constitutes the kind of injury cognizable in this Court on review from the state courts." ASARCO, 490 U.S., at 618, 109 S.Ct., at 2046. The injury to the Committee on Legal Ethics is the nonenforcement of its disciplinary action. This injury is directly traceable to the state high court's judgment and can be redressed by a decision of this Court.
Turning to the merits, I find it readily apparent that attorneys are necessary to vindicate claimants' rights under the Black Lung Benefits Act. As the West Virginia Supreme Court of Appeals noted, a black lung claimant must negotiate through a complex regulatory system to receive benefits from either the Black Lung Disability Trust Fund or the responsible mine operator. 180 W.Va. 538, 539, 378 S.E.2d 82, 88 (1988). The complexity of the system is well documented. See, e.g., Hearings on Investigation of Backlog in Black Lung Cases before the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong., 1st Sess., 186 (1985) (statement of attorney Thomas Makowski) ("Through the years, the standards have gotten more rigorous with regard to the sufficiency of evidence needed to prove a claim that a miner has black lung. As Congress made standards stricter, the regulations became more and more confusing, not only to the claimants, but to the attorneys and the administrative law judges as well"); id., 378 S.E.2d, at 85 (statement of attorney Robert T. Winston, Jr.) (describing the difficult task of developing evidence necessary to support a benefits award); Smith & Newman, The Basics of Federal Black Lung Litigation, 83 W.Va.L.Rev. 763 (1981) (detailing both the intricate regulatory scheme and the types of medical evidence required to prove a case).
More significantly, the black lung process is highly adversarial. Attorneys representing either the Department of Labor or the responsible mine operator actively oppose the award of benefits to a claimant at all levels of the black lung system. Because an operator faces the prospect of paying significant awards, it is often willing to pay substantial legal fees to defend against black lung claims. See Hearings, supra, at 22 (testimony of attorney Martin Sheinman). As we acknowledged in Walters v. National Assn. of Radiation Survivors (NARS), 473 U.S. 305, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985), participation of counsel in administrative proceedings " 'inevitably give[s] the proceedings a more adversary cast.' " Id., 473 U.S., at 325, 105 S.Ct., at 3191 (quoting Wolff v. McDonnell, 418 U.S. 539, 570, 94 S.Ct. 2963, 2981, 41 L.Ed.2d 935 (1974)). The black lung benefits system is thus qualitatively different from the Veterans' Administration system, which "is designed to function throughout with a high degree of informality and solicitude for the claimant." NARS, supra, 473 U.S., at 311, 105 S.Ct., at 3184.
By specifically providing for lawyers and for the payment of reasonable attorney's fees in black lung cases, 30 U.S.C. § 932(a) (1982 ed., Supp. V) (incorporating 33 U.S.C. § 928(a) (1982 ed.)), Congress acknowledged that legal representation is crucial to black lung claimants' success in this complex, adversarial process. Cf. NARS, supra, at 321, 105 S.Ct. at 3189 (Congress intended that Veterans' Administration system be managed so as to avoid the need for attorneys). An unsophisticated and desperately ill miner, unfamiliar with legal concepts and practices, is at a severe disadvantage when he faces the expert lawyers of the Government or operators without professional assistance of his own. If the system operates so that claimants cannot obtain representation, it undoubtedly denies those claimants their right to due process.
Although representation is necessary to protect claimants' rights under the Act, I agree with the Court that the West Virginia Supreme Court of Appeals had insufficient grounds for holding that the Department of Labor's regulation of attorney's fees deprives claimants of adequate legal assistance. The Court's holding today, however, in no way precludes a future constitutional challenge to the Department's implementation of the Act, founded on a more developed factual record.
Finally, I emphasize the Court's observation that the current fee structure should compensate attorneys for any delay in payment and for the contingent nature of claims. Ante, at 725-726. See also Risden v. Director, OWCP, 11 BRBS 819, 824 (1980) (Benefits Review Board holding that fee should account for contingency). The West Virginia Supreme Court of Appeals identified delay and the absence of premiums to offset the risk of loss as the cause of the dearth of attorneys willing to represent claimants. 180 W.Va., at 542, 378 S.E.2d, at 91. When fee awards do not adequately account for these factors, individual attorneys can challenge the awards in the courts of appeals as violative of the Act's requirement of "reasonable" fees. Ante, at 725. If an attorney or claimant alleges that the regulations governing attorneys' fees do not allow the Department to award "reasonable" fees as required by the Black Lung Benefits Act, those regulations also may be challenged.
Although the allegations in the sparse record before us raise legitimate concerns that black lung claimants may not be able to retain legal counsel and the suspicion that this inability may stem from the Department of Labor's regulation of attorney's fees, concerns and suspicions are insufficient to justify striking down on constitutional grounds "the duly enacted and carefully considered decision of a coequal and representative branch of our Government." NARS, supra, 473 U.S., at 319, 105 S.Ct., at 3188. Accordingly, I concur in the Court's decision today to reverse the judgment of the West Virginia Supreme Court of Appeals.
Separate statement of Justice BRENNAN.
I write separately to explain why it is prudent that we not resolve the issue whether respondent Triplett (hereinafter respondent) has standing in these cases. As Justice MARSHALL explains, see ante, at 728-732, we held in ASARCO Inc. v. Kadish, 490 U.S. 605, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989), that if a petitioner in a case arising from a state court satisfies Article III's core standing requirements, we need not inquire whether the respondent also satisfies these requirements. Nevertheless, today the Court still inquires whether respondent is entitled to " 'rest his claim . . . on the legal rights or interests of third parties,' " ante, at 720 (citations omitted), an inquiry heretofore characterized as a "prudential" standing limitation on the jurisdiction of federal courts. The Court suggests that there might be a "third-party claim" exception to the rule of ASARCO because the question whether a litigant may assert the rights of a third party is " 'closely related to the question whether a person in the litigant's position would have a right of action on the claim.' " Ante, at 721, n., quoting Warth v. Seldin, 422 U.S. 490, 500, n. 12, 95 S.Ct. 2197, 2206, n. 12, 45 L.Ed.2d 343 (1975). I take the Court to be suggesting that the traditional "third-party standing" inquiry might be reformulated as a straight-forward question of substantive federal law: whether the litigant is entitled to raise the legal claim asserted, either because her own legal rights are at stake or because principles of federal law justify her status as a "private attorney general" on behalf of those absent parties whose rights are at stake.
Perhaps the Court's suggestion may provide a more coherent explanation for what is now perceived as a confusing area of standing doctrine. But this suggested recharacterization, even if ultimately persuasive, would seem to depart from our present understanding, and the issue has been neither briefed nor argued here. Because the requisites of "third-party standing" doctrine are satisfied, ante, at 720-721, it is prudent that we not decide today whether to distinguish ASARCO on the basis of this recharacterization.

## Notes

* ↑ The ASARCO Court also considered the possibility of vacating the state-court judgment if it were to find that the respondents did not meet federal standing requirements. ASARCO Inc. v. Kadish, 490 U.S., at 620, 109 S.Ct., at 2047. As with dismissal, the "clear effect" of vacating the state-court judgment "would be to impose federal standing requirements on the state courts whenever they adjudicate issues of federal law, if those judgments are to be conclusive on the parties." Id., at 2047, 109 S.Ct., at 2047. The Court concluded, however, that vacating the state-court judgment would not be "a proper exercise of our authority. . . . It would be an unacceptable paradox to exercise jurisdiction to confirm that we lack it and then to interfere with a State's sovereign power by vacating a judgment rendered within its own proper authority." Ibid. See also id., at 621, n. 1, 109 S.Ct., at 2047, n. 1. Thus, vacating the state-court judgment would not be an appropriate option for the Court in this context. If the Court were to apply federal standing requirements to a respondent and find that he did not satisfy the requirements, the proper course of action would be to dismiss the case, thereby leaving the state-court judgment undisturbed.
* ↑ Indeed, had the ASARCO Court found that third-party standing issues deserved different treatment, it presumably would have distinguished the decision in Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984), on that ground, as that case involved the issue whether the respondents (again, the plaintiffs in state court below) had standing to raise the rights of third parties. See id., 467 U.S., at 954-958, 104 S.Ct., at 2845-48. Notably, however, the Court distinguished that case instead on the ground that the Court there had found that the respondents satisfied federal standing requirements, "which obviated any further inquiry." ASARCO, supra, at 623, n. 2, 109 S.Ct., at 2048, n. 2.
* ↑ The Court should not be surprised at the paucity of facts about representation of black lung claimants. When the writ of certiorari was granted, the Court was aware that the issue presented by the litigation had been raised for the first time before the State Supreme Court of Appeals, that it was only indirectly implicated in an attorney disciplinary action, and that the Department of Labor had not been a party when the issue was first resolved. Moreover, it was evident that the Government's late intervention in the case did not result in the development of an extensive record. And, most importantly, the Court was aware that such a record would be required before such a challenge to the entire regulatory scheme could be evaluated properly. See Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 324, n. 11, 105 S.Ct. 3180, 3190, n. 11, 87 L.Ed.2d 220 (1985). The Court therefore should not have granted the petition in the first place, or it should have dismissed the writ as improvidently granted as soon as oral argument made manifestly clear the insufficiency of the record.
* ↑ See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 474, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982).
* ↑ See, e.g., Fletcher, The Structure of Standing, 98 Yale L.J. 221, 243-247 (1988); Monaghan, Third Party Standing, 84 Colum.L.Rev. 277 (1984).
* ↑ The Court correctly notes that, in some cases, we have observed a similarity between the "third-party standing" inquiry and a "right of action" inquiry. See, e.g., Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975) ("In such instances [where the Court allowed litigants to raise the legal rights of third parties], the Court has found, in effect, that the constitutional or statutory provision in question implies a right of action in the plaintiff"). In Warth itself, however, we described the "third-party standing" inquiry as a "rule of self-governance . . . subject to exceptions." Id., at 509, 95 S.Ct., at 2210. Such language suggests that we have considered the "third-party standing" inquiry to turn on the prudence of exercising jurisdiction rather than the content of substantive federal law. See also, e.g., Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S.Ct. 2839, 2846, 81 L.Ed.2d 786 (1984) ("[T]here are situations where competing considerations outweigh any prudential rationale against third-party standing, and . . . this Court has relaxed the prudential-standing limitation when such concerns are present"); Craig v. Boren, 429 U.S. 190, 193, 97 S.Ct. 451, 455, 50 L.Ed.2d 397 (1976) ("[O]ur decisions have settled that limitations on a litigant's assertion of jus tertii . . . stem from a salutary 'rule of self-restraint' ").
* ↑ Even assuming the Court's suggested approach were persuasive, I do not understand why we ought to address sua sponte the question whether respondent is entitled to litigate his due process challenge. If this is indeed a question of substantive federal law and not one of Article III jurisdiction, then we should address this question only if petitioners argued unsuccessfully below that respondent was not entitled to raise the constitutional claim and petitioners sought certiorari on this legal question. But petitioners did not do so in this case, nor did they raise the issue in their briefs or at oral argument.
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