Opinion
No. 12031.
Argued June 19, 1968.
Decided June 21, 1968.
Franklin W. Kern, Charleston, W. Va., for appellant.
Edward I. Eiland, Logan, W.Va. [Estep, Smith Eiland, Logan, W. Va., on the brief], for appellee.
Before HAYNSWORTH, Chief Judge, and SOBELOFF and BOREMAN, Circuit Judges.
In light of the factual suggestions made in the course of this litigation, the case presents an issue of the deprivation of equal protection and due process in violation of the Fourteenth Amendment arising from the West Virginia Code, § 23-4-6a(d) (1966), the silicosis provisions of that State's Workmen's Compensation Act. This is made to appear from a now undisputed history of the processing of seemingly identical claims with wholly irreconcilable results. The circumstances call for the resolution of the issue by a three-judge district court. The court may on application afford the parties an opportunity for further development of the record.
The order of dismissal is vacated and the case remanded with directions to the District Judge to take appropriate steps for the convening of a three-judge district court.