The Equal Access to Justice Act (EAJA) reimburses civil litigants who sue or who are sued by the federal government for their legal fees if the government's position is not "substantially justified." EAJA is used far more often by claimants suing the Social Security Administration than by any other group of litigants.
EAJA has evolved into a well understood routine for the Social Security Administration and attorneys who represent Social Security claimants. The end result if EAJA is approved has been that Social Security makes a direct deposit of the fee into the attorney's bank account. Since the EAJA fee is almost always received long before any other fee in a Social Security case and, indeed, before the claimant is paid, the EAJA fee is just used to reduce the fee that the attorney would otherwise receive coming out of the claimant's benefits.
The problem is that the Department of Justice -- not Social Security -- is insisting that the EAJA fees be sent to the person who has sued or been sued by the federal government. This means the end of payments to the attorney. Instead, the Social Security claimant, who generally has not yet received any Social Security benefits, will be paid the EAJA fee, leaving it to the attorney to try to collect the fee directly from the client. I have heard directly from Social Security today that a memo has come out directing Social Security's attorneys from refusing to agree to an EAJA payment that goes directly to the claimant's attorney.
This is going to lead to two things. First, there will be efforts to get Social Security claimants to agree to assign the EAJA fee to the attorney. Second, there will be litigation that will probably get to the Supreme Court eventually, if some new Attorney General appointed after George W. Bush leaves office decides that this is not worth fighting over.
EAJA has evolved into a well understood routine for the Social Security Administration and attorneys who represent Social Security claimants. The end result if EAJA is approved has been that Social Security makes a direct deposit of the fee into the attorney's bank account. Since the EAJA fee is almost always received long before any other fee in a Social Security case and, indeed, before the claimant is paid, the EAJA fee is just used to reduce the fee that the attorney would otherwise receive coming out of the claimant's benefits.
The problem is that the Department of Justice -- not Social Security -- is insisting that the EAJA fees be sent to the person who has sued or been sued by the federal government. This means the end of payments to the attorney. Instead, the Social Security claimant, who generally has not yet received any Social Security benefits, will be paid the EAJA fee, leaving it to the attorney to try to collect the fee directly from the client. I have heard directly from Social Security today that a memo has come out directing Social Security's attorneys from refusing to agree to an EAJA payment that goes directly to the claimant's attorney.
This is going to lead to two things. First, there will be efforts to get Social Security claimants to agree to assign the EAJA fee to the attorney. Second, there will be litigation that will probably get to the Supreme Court eventually, if some new Attorney General appointed after George W. Bush leaves office decides that this is not worth fighting over.
2 comments:
it may not be as easy, but attorneys will still get paid, will just have to go the 406b route.
Some courts are already disregarding assignment of the fee by the client to the attorney. The reasoning is that the statute says the fee is to be paid to the client and an assignment can not be used to avoid the "clear language" of the statute.
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