An application to stay the District Court's injunction
prohibiting on constitutional grounds the enforcement of 38 U.S.C.
§§ 3404 and 3405 -- which forbid the payment of a fee of
more than $10 by a veteran to an agent or attorney in connection
with a claim for monetary benefits under laws administered by the
Veterans Administration -- is granted pending applicant' timely
filing of a jurisdictional statement and the disposition of the
same by this Court. Respondents' contention that the balance of
hardships militates against the granting of a stay is not
persuasive under the circumstances of the case.
JUSTICE REHNQUIST, Circuit Justice.
Applicants request that I stay an injunction issued by the
United States District Court for the Northern District of
California prohibiting, on constitutional grounds, the enforcement
of 38 U.S.C. §§ 3404 and 3405. These sections prohibit
the payment of a fee of more than $10 by a veteran to an agent or
attorney in connection with a claim for monetary benefits under
laws administered by the Veterans Administration.
The statute, which the single District Judge found
unconstitutional, has been on the books in some form for 122 years.
Within the past decade, this Court has summarily affirmed a
decision of a three-judge District Court upholding the
constitutionality of 38 U.S.C. § 3404(c).
Gendron v.
Levi, 423 U.S. 802 (1975),
aff'g Gendron v.
Saby, 389 F.
Supp. 1303 (CD Cal.). The Court of Appeals for the Ninth
Circuit has also recently upheld the validity of § 3404(c).
Demarest v. United States, 718 F.2d 964 (1983),
cert.
denied, 466 U.S. 950 (1984).
Page 468 U. S. 1324
The application for a stay is granted. Respondents urge that the
balance of hardships militates against the granting of a stay. It
would take more than the respondents have presented in their
response, however, to persuade me that the action of a single
District Judge declaring unconstitutional an Act of Congress that
has been on the books for more than 120 years should not be stayed
pending consideration of the jurisdictional statement of applicants
by this Court. The presumption of constitutionality which attaches
to every Act of Congress is not merely a factor to be considered in
evaluating success on the merits, but an equity to be considered in
favor of applicants in balancing hardships.
Marshall v.
Barlow's, Inc., 429 U.S. 1347 (1977) (REHNQUIST, J., in
chambers)
The application for a stay is accordingly granted pending the
timely filing of a jurisdictional statement and the disposition of
the same by this Court.