After a Social Security disability claimant gets denied, appeals, gets denied again, appeals again, has a hearing and gets denied again, appeals again and is denied one last time by the Social Security Administration he or she can file a civil action in United States District Court saying that Social Security's final decision was in error. There are several thousand of these civil actions each year. If the claimant wins outright in District Court, which doesn't happen much, or if he or she succeeds in getting the case remanded for a new hearing, which happens a lot, Social Security will probably be liable for the claimant's federal court attorney fees under the Equal Access to Justice Act (EAJA). Social Security has to release a report on EAJA payments. Here's the
numbers for recent years.
| Year |
Amount |
| 2010 |
$19,743,189.12 |
| 2011 |
$21,668,646.47 |
| 2012 |
$24,666,171.13 |
| 2013 |
$27,720,951.87 |
| 2014 |
$31,637,462.36 |
| 2015 |
$38,132,381.48 |
Is there a legitimate policy reason why EAJA fees are payable simply when a case gets remanded? Doesn't it make more sense to make the fee depend on an ultimate finding of disability? I don't handle federal appeals yet so I don't have much first-hand experience, but I've seen a lot of cases remanded for some pretty minor technical flaws in the decisions.
ReplyDeleteDan:
ReplyDeleteYou might want to read up on the Equal Access to Justice Act and when such fees are payable. Your comment seems to suggest that the attorneys shouldn't be compensated for their time in these situations, particularly if the remand is for a "minor technical flaw."
EAJA fees are not awarded for minor technical flaws but are instead awarded when the position of the agency in denying the clam was not substantially justified. Your "minor technical flaws" sound like harmless error which doesn't result in a remand or in EAJA fees. While claims are routinely remanded due to technical errors in the decision making, I would not call these minor by any stretch of the imagination as they go directly to the issue of whether the Agency conducted itself in such a manner as to justify the denial of the claim.
Seeking justice for clients in federal court isn't always about ultimately winning the case but it is ALWAYS about whether the denial that lead to that litigation was appropriate and justice was administered appropriately by the agency. When it is not appropriately administered, its not justice at all.
For example, if an ALJ decided a claim simply by flipping a coin, they would probably be right 1/2 the time. But is that due process for the claimants involved? I would think we can both agree that its not. Would you still suggest that EAJA fees only be awarded to claimants who can ultimately win their case after it is remanded under that scenario? Both the claimants who can ultimately win their claims and the claimants who cannot were equally denied justice by the initial coin flip decision.
One good reason is to discourage a federal agency from adopting unreasonable litigating positions to defend bad policies and/or poor management practices. Unfortunately, with most agencies (SSA and VA in particular) the managers who promulgate the policies and insist on contesting legitimate claims are insulated from any responsibility for increasing EAJA fees incurred by their agencies (and ultimately paid by taxpayers). The only way SSA will feel any discomfort at all due to this obvious measure of management disfunction is if they are grilled on it at a Congressional hearing.
ReplyDelete@11:13
ReplyDeleteCases aren't remanded for minor technical errors (i.e. harmless error). I have seen voluntary remands sought by SSA when there is an arguably minor technical errors which is a breach of agency policy, but the courts will not remand unless you can clearly show that the error directly renders the ALJ's decision unsupportable. SSA pretty much always offers to stipulate to EAJA to encourage the plaintiff to agree to the remand.
Finally, EAJA is not SSA specific. It applies to the federal government generally. EAJA is not meant to punish SSA for poor decisions. EAJA is meant to punish the federal government for allowing lawsuits that never should have gone to court in the first place. As such, the ultimate finding of disability is irrelevant to an EAJA award.
Dan, your the statement that you don't handle Federal Appeals speaks volumes about you.
ReplyDeleteTypo, remove the.
ReplyDelete@12:03
ReplyDeleteYou're right. It says that I haven't had a case denied since I started at my solo practice.
Dan,
ReplyDeleteIn theory, EAJA shouldn't be paid simply because a case is remanded. It should be paid only when SSA's position is not "substantially justified," and there are no "special circumstances" that would make an EAJA award unjust. Substantial justification is not a particularly high bar - it requires only that SSA's defense of the case has a reasonable basis in fact and law.
In practice, however, courts often assume (incorrectly) that if the decision isn't supported by substantial evidence, then SSA's defense cannot be substantially justified. The circuit case law is very clear on the distinction between those two concepts, but many district judges simply don't know how to reconcile them. That confusion, combined with good old-fashioned laziness, compels many judges to treat EAJA fees as spoils of war -- if you win, you get paid.
That's great for the bottom-line of attorneys who file lots of federal court appeals, but the flipside is that it encourages many of them to play the numbers by filing essentially the same brief in every case. Those attorneys know that no matter what they write, they can collect in anywhere from 30-70% of their cases, depending on the jurisdiction.
Another consequence of the lax attitude toward EAJA is that many attorneys do not accurately record their time like they're supposed to, and they pad their timesheets. It's difficult to prove intent, so courts tend to look the other way, even when it's clear that certain time entries were copied and pasted from other cases.
Keep in mind that EAJA only covers legal work in the federal court. There's a separate statute that covers fees for representation at the administrative level after benefits are awarded.
@12:22
ReplyDeleteEAJA awards go to the claimant and offset the award of attorney fees under 406(b). EAJA fees are irrelevant to the attorney as he gets paid either way so long as he wins.
@Dan Smith
Take harder cases!
I must concur with 12:27PM. Dan, if you have never lost a case you are not trying hard enough. If I cherry-picked only the best of the best that came in my door I could achieve the same result but that would leave a lot of deserving people without representation.
ReplyDelete12:27 PM,
ReplyDeleteYou're right that EAJA awards offset 406(b) fees, but I would dispute your claim that they're "irrelevant to the attorney." Some courts will even penalize attorneys seeking 406(b) fees for their failure to seek EAJA on behalf of their clients, on the grounds that competent attorneys should be doing everything they can to reduce the amount taken from their clients' past-due benefits.
If there are attorneys out there who think EAJA is "irrelevant" when 406(b) is involved, then they should be disciplined for putting their own financial interests before their clients'.
it's more a function of my only having been in solo practice for 2.5 years and not starting out with many cases. my auspicious start at the moment is buoyed by some clutch OTR's (don't let people tell you they're impossible) and a backlog that is holding everyone's decisions up. but rest assured, when i have a need to take up a federal practice (which i will), I'll do so. i just couldnt pass up a pointed retort to an ignorant insult.
ReplyDeleteas for the EAJA issue, like i said in my initial question, i'm not experienced in that area. it was just a question. i just remember reading a lot of cases on Schnaufer's list where EAJA fees were awarded (or augmented!) where the underlying claim on the remand stood very little chance even with a lucky alj draw. i can go back and find them if ppl are interested.
@12:27
ReplyDeleteI stated EAJA are irrelevant to the attorney fees. My point was that attorneys are not "getting rich" due to EAJA, they are "getting rich" due to winning. EAJA and 406(b) fees are equivalent in regard to the attorney's income.
Dan, seriously?
ReplyDeleteIn all seriousness, does Dan Smith really exist or is he an Agency directed hologram? Only asking because I have never, ever seen him disagee with anything the Agency has done. In fact, it always seems to me like he comes running to their defense like a a Knight to a damsel in distress. Has anyone ever met him?
ReplyDeleteGive me a call if you're so concerned. Otherwise stick to the topic.
DeleteDan's willingness to steer clear of the hyperbole and concede that not everything the agency does is evil will actually serve his clients well in the long run. When attorneys make an effort to actually understand the law and avoid making frivolous arguments, they're taken seriously when they speak. On the other hand, when attorneys resort to name-calling and throw a bunch of crap against the wall to see what sticks, everything they say is taken with a huge grain of salt, and potentially valid arguments are drowned out by their incompetence.
ReplyDeleteBottom line: Dan's doing it right, and those calling him an agency shill almost certainly fall in the second class of attorneys -- the bottom-feeders who make the system more adversarial than it needs to be.
The incompetence of the Appeals Council in all of this seems to be overlooked.
ReplyDelete@7:31pm. I must disagree with your comment about citing Dan as an example of the proper way to conduct oneself. I have seen far too many reps like Dan in my years, willing to go along with whatever Agency action or rhetoric comes down the pike. Never wanting to ruffle any feathers. And where has that gotten us? With the current system where claimants walk in to hearings rooms already suspect. Where ALJs can do whatever they damn please because most of the time they don't get challenged on it by the representative so they get away with it and believe they are entitled to.
ReplyDeleteI think making the comments section to this post all about Dan is irrelevant and potentially embarrassing to us.
ReplyDeleteThe point I see is that with such high EAJA fees, the Agency should be feeling pressure to issue proper decisions rather than defend poor ones. If only they could afford the time, staff, money, support, and training to do so.
ALJs do whatever they damn please because ODAR, for some silly reason, is run by a robe-wearer at every level until you get to the DC, and DCs haven't even shown much willingness to bring them to heel. It's cute you reps think anything you do/could have done could ever have changed that. The only thing that's going to change ALJ behavior in a big way is to reorganize ODAR's management structure or amend the APA.
ReplyDelete@6:38AM:
DeleteSpot On!
Just to add another point (not mentioned due to the understandable reaction to Dan Smith's comments, based on a clear lack of experience and lack of understanding of EAJA): (1) EAJA doesn't pay all that well. The hourly rate is substantially less than the hourly rate for private litigation. (2) OGC objects to EAJA fees regularly for some really bad reasons which, when overruled, can then result in a supplemental award of still more fees. (3) OGC counsel get paid whether they win or loose. EAJA is contingent on winning at the District Court or above and then only if the agency position was not "substantially justified."
ReplyDeleteOk Dan, 4:37 here. My remarks were snarki and I apologize for that. I do hope though that you can understand what prompted them. We will just have to agree to disagree. I believe that a good attorney, especially a claimant's rep in our forum, should zealously question the Agency making up the rules. I would love to call you to chat, but it would no doubt be catagorised as an ethics violation.
ReplyDeleteOK, so before I come off as some kind of troll, at least let me explain where my uneasiness with EAJA fees comes from. I used to work as an associate in a volume practice for about 18 months. When we would get an AC denial, the firm's practice was to refer the matter to a federal appeal specialist to see if he wanted to take the case. And what was strange to me about it was that this federal practitioner only wanted to see the ALJ's unfavorable decision in order to decide whether to take the case on appeal. He didn't ask for the e-file or any synopsis of intake notes. He'd apparently just make his decision purely on the unfavorable alone. And honestly, the choices he'd make in terms of which appeals to take always confused myself and the other associates.
ReplyDeleteThat was years ago but the situation still makes very little sense to me. How can anyone evaluate the sufficiency of an ALJ decision without cross-referencing the e-file? Now maybe I'm being paranoid, or a player-hater, or whatever; but after learning a little bit about EAJA fees my suspicion is that this practitioner was combing through ALJ decisions simply looking for any technicality to get a remand and collect the fee, without any particular care about the long-term prospects of the claimant's case. If there's a more innocuous explanation for this scenario, please let's discuss it.
@Dan
ReplyDeleteOkay, I believe I understand your concerns.
The courts reverse an ALJ's decision for legal error, not factual error (Rarely they do, but only for egregious clear factual errors, i.e. a paraplegic is found capable of construction work, schizophrenic claimant could be a judge...). This means that an ALJ's decision is most importance. While I would never recommend filing a federal claim without reviewing the evidence of record, the federal practitioner does receive a full copy of the administrative record once the district court claim is filed, so it isn't like the federal practitioner can be assumed to be arguing technicalities...just that he may have taken a case without anything to go on other than technicalities. Small distinction, but I hope it helps.
In regard to the federal practitioner being only concerned with a remand, this might depend on whether or not the "volume practice" waived their fee agreements. Depending on the circuit, 406(a) attorney fees (administrative level) and 406(b) attorney fees (court-level) might be combined meaning if the volume practice won't waive their fees, the federal practitioner might be left out from attorney fees even if disability is awarded.
Well, this comment section got off on a tangent going after poor Dan Smith. The real point of Charles' post is that EAJA fees are rising, which corresponds to the increase in unjustifiable denials by the ALJs over more or less the same time period. Unfortunately, at this point the feedback loop is not working as it should, and these ALJs are, if anything, doubling down on their denials. This means more federal court appeals, and more EAJA fees, in the future. This may be good for the bottom line of attorneys who practice in the federal court, but bad news for the claimants who must now expect wait times of 5 years or more (from their initial applications) to get justice.
ReplyDelete@ Annie42 Thanks for bringing the main issue back into focus. Increased EAJA means there has been a significant increase in decisions which cannot be substantially justified.
ReplyDeleteTo ODAR insiders, other than when the claim gets reassigned to the original ALJ following a USDC remand, which certainly doesn't happen 100% of the time for various reasons, what type of feedback, if any, do ALJs and decision writers receive regarding decisions that are reversed by a District Court?
@11:28
ReplyDeleteI would be curious as well. However, as the acquiescence ruling process has become rather dilapidated, a reversal/remand does not mean the ALJs and decision writers did anything wrong. The ALJs and decision writers are following agency policy. The courts reverse under caselaw. The ALJs and decision writers continue to follow agency policy.
@ 11:28
ReplyDeleteI think this will answer your question:
Decision writers have access to a report that shows them their agree rate (with the AC; fed ct cases are caught under here, too, since the AC actually effectuates the remand back to us) for cases with AC disposition dates within the last 13 months. ALJs do, too. Mgmt can see everyone's data. The spreadsheet contains each and every case that is appealed to the AC whether review is denied or not. It also contains basic info re: the rationale for the remands and reversals, and also contains hyperlinks to (usually) both CPMS and e-view so that you can pop into the file and read the AC order and see in detail. I guess I should mention there are technically two identical reports of this kind--one for requests for review and one for own motion.
Agree rates for ALJs and decision writers are used as a gauge for quality/legal sufficiency for both writers and ALJs, though since ALJs can't be evaluated it really doesn't mean or do much for them. Similarly, the metric really isn't even that useful for writers since their drafts can/often are heavily edited by the ALJ before being closed, it could have been a bozo move by the ALJ that led to the remand, etc. so who's to say the agree rate for a writer is actually reflective of the quality of their writing?
Any decision maker will get remanded at one time or another. We are all human.
ReplyDeleteHowever, many ALJ's are frequent flyers.
I had about a dozen remands from the Court in a short period from one ALJ. The remands were not "technical" as Dan previously described. Most of these claimants have already been approved on new hearings.
In the criminal world, 10 percent of the population commits over 90% of the crime. I have a feeling the same holds true for ALJ's.
Unfortunately SSA does not seem to care about this cancer in the Administration. I infer that the SSA doesn't care because this cancer is a result of the denial culture. "Pop out the denials that get rubber stamps from the Appeals Council and we will keep you fed for life."
We attorneys need to be vigilant and appeal these matters even though it can be time consuming with low fee generation. SSA loves non-attorney reps because they cannot file in the District Court. SSA also loves potted plant attorneys that don't make a peep at the hearing and preserve nothing for appeal. I for one do not like appealing the work of someone else that only wanted the quick 6k and threw the proverbial crap at the wall with no intention of doing any lawyering. But sometimes I have to.
The AC and FDC remand rate for ALJs should be publicly available information, just like their disposition data is.
ReplyDeleteThere is gross ignorance about the EAJA. The EAJA is a contingent non-contingent fee. There is contingent recovery but payment on a non-contingent basis. Plaintiffs prevail in about 45% of civil actions. EAJA fees are awarded in maybe 80% of those cases with about 90% of hours paid at an artificial rate of about $185 per hour. Thus, $185 x 0.45 x.8 x .9 = $60 per hour. That $60 includes all overhead. Assume 1,500 billable hours per year = $90,000K gross before paying rent, phone, a legal assistant, etc. Thus, it is silly, just silly, to talk about the EAJA as some significant incentive. Adjust the numbers as you want. But any skilled attorney loses a lot of money in any case for which the EAJA is the sole compensation. The attorney would be better off driving a city bus.There is gross ignorance about the EAJA. The EAJA is a contingent non-contingent fee. There is contingent recovery but payment on a non-contingent basis. Plaintiffs prevail in about 45% of civil actions. EAJA fees are awarded in maybe 80% of those cases with about 90% of hours paid at an artificial rate of about $185 per hour. Thus, $185 x 0.45 x.8 x .9 = $60 per hour. That $60 includes all overhead. Assume 1,500 billable hours per year = $90,000K gross before paying rent, phone, a legal assistant, etc. Thus, it is silly to talk about the EAJA as some significant incentive. Adjust the numbers as you want. But any skilled attorney is losing money in any case for which the EAJA is the sole compensation. The attorney would be better off driving a city bus. A typical attorney in Anytown, USA with ten years experience and so-so credentials is worth maybe $250 hours. The EAJA on average is about one-quarter of an attorney's worth.
ReplyDeleteDan Smith: "OK, so before I come off as some kind of troll, at least let me explain where my uneasiness with EAJA fees comes from. I used to work as an associate in a volume practice for about 18 months. When we would get an AC denial, the firm's practice was to refer the matter to a federal appeal specialist to see if he wanted to take the case. And what was strange to me about it was that this federal practitioner only wanted to see the ALJ's unfavorable decision in order to decide whether to take the case on appeal. He didn't ask for the e-file or any synopsis of intake notes. He'd apparently just make his decision purely on the unfavorable alone. And honestly, the choices he'd make in terms of which appeals to take always confused myself and the other associates."
ReplyDeleteThe comments are ridiculous. Dan should blame the partner for having the litigator review cases for claimants who are not disabled. Dan worked for a mill. No skilled litigator would care what a mill attorney's notes are. A mill attorney like Dan is a hack. Dan's comments show his gross ignorance of the law, disability, and litigation. Of course no litigator cared what he thought.
@12:27 & 1:06 on August 22,
ReplyDeleteAs a claimant I attended my first ALJ hearing only to hear him raise a "silly argument" according to my attorney. After the hearing my attorney said I had an excellent chance to receive a Fully Favorable decision IF the ALJ drops the silly technical argument. Apparently, he has dismissed cases before based on this silly argument and every dismissal that was appealed was reversed by the AC.
After waiting for over a year for his decision, he simply dismissed my case and denied my request for a proper hearing before an ALJ. My attorney submitted a two paragraph appeal to the AC which he said he completed in less than an hour. About 8 months later the AC vacated the dismissal and remanded my case to the original ALJ. I had to wait a year for a new hearing and then it took the ALJ a year to issue his decision that I received last week. It was fully favorable.
But the ALJ did not approve my attorney's fee agreement so he must submit a fee petition since he wants more than $6,000. In fact, he really wants the full 25% of my back pay which my award letter calculated to be ~$46,000 (25% of $184k). Is there anything similar to EAJA that could be used to pay some of his fee? While I doubt he will try to justify the full %46k (my case was not that complicated and the appeal to the AC was a cut & paste from the last time this ALJ pulled this stunt), I would be grateful if something was available that would permit him to pull some of his fee from the government rather than from my back pay. It's been well over 5 years of waiting and pain which could have been much less had the ALJ not tried to shove his favorite theory through again.
Thank you for your replies.
Why should the government--tax payers, really--pay for your legal representation when that lawyer just got you nearly $200k in back benefits and a monthly disability benefit payment?
ReplyDeleteIf you don't like the idea of how big their fee will be, avail yourself of the opportunity to dispute it when you get notice.
I also would love more details on the "silly little technical issue" that was so minor it resulted in your case being dismissed rather than being found unfavorable. Methinks that issue is not nearly as "silly" or "little" as you make it out to be and that your lawyer put in work to get that fixed with the AC. Sounds like there was a serious question about your eligibility for benefits period that the lawyer dealt with successfully for you. Trust and believe there are plenty of those issues that are extremely nuanced and difficult to deal with--go peruse the POMS on interesting issues related to SSI eligibility to see just some of those issues. Just because their argument to the AC wound up being two paragraphs doesn't mean they didn't spend many an hour researching, etc. your issue and crafting argument on your behalf. With eligibility, the hard work is compiling the evidence/data and making sense of it; once that hard work is done the actual rationale or decision or whatever related to those facts are often quite short and simple.
I personally believe that the government should pay attorney's fees on top of payments to the clients, instead of taking it away from the claimants. Making claimants wait 2, 3 or even more years is unjust! And then, you take $6,000 of it? Doesn't seem fair to those who've already been dealt a losing hand. Also, if structured correctly, it would encourage SSA to speed up the process and to make decisions quicker! How can anyone justify making someone wait a year after a hearing for a decision? Even if you actually believe that someone who's worked steadily for twenty years has all of a sudden decided they don't want to work AND you believe they are faking it... they still deserve a decision faster.
ReplyDelete@10:33 AM, September 01, 2016
ReplyDeleteWhy should the government--tax payers, really--pay for your legal representation when that lawyer just got you nearly $200k in back benefits and a monthly disability benefit payment?
To discourage poor behavior by the government, in this case an unjustifiable dismissal and denial of an ALJ hearing. If there is an analogue to EAJA that would apply to an appeal to the AC, I believe that the government should pay the fees of my attorney to research and write an appeal to the AC because the dismissal violates agency rules and this judge has had every similar dismissal that was appealed to the AC vacated by the AC. Clearly, this ALJ is not following the law or rules and that's why the AC has vacated and remanded every such case of his that has been appealed.
As Annie42 wrote:
The real point of Charles' post is that EAJA fees are rising, which corresponds to the increase in unjustifiable denials by the ALJs over more or less the same time period. Unfortunately, at this point the feedback loop is not working as it should, and these ALJs are, if anything, doubling down on their denials. This means more federal court appeals, and more EAJA fees, in the future. This may be good for the bottom line of attorneys who practice in the federal court, but bad news for the claimants who must now expect wait times of 5 years or more (from their initial applications) to get justice.
Clearly, this ALJ has not learned from his mistakes ... or he simply doesn't care. As stated in my original post, my attorney has had at least one other similar dismissal from this ALJ and the results were the same: the AC vacated his decision and remanded the case for a hearing before the ALJ. However, this causes a delay of two years or more for the claimant.
@12:22 PM, August 22, 2016 wrote:
Keep in mind that EAJA only covers legal work in the federal court. There's a separate statute that covers fees for representation at the administrative level after benefits are awarded.
I would be very interested to learn which statute (s)he is referring to.