Social Security Loses A Lot In Federal Court

     The Administrative Conference of the United States (ACUS) compiles a yearly report on the attorney fees paid by federal agencies under the Equal Access to Justice Act (EAJA) to those who sue them or are sued by them when the court determines that the agency's actions were not "substantially justified." 

     The Fiscal Year 2019 report has come out. It shows that the Social Security Administration paid out a total of $45,842,213.45 in 8,223 cases, an average of $5,574.88 per case. To give a comparison, the agency that paid out the second most dollars was the Department of Commerce with $6,068,000.00 in just three cases. In terms of numbers, the Department of Homeland Security was second at 46 cases. Overall, Social Security accounted for 99% of the number of EAJA awards and 78% of the dollar amount of all EAJA awards.

EAJA Payments Escalating Rapidly

     When Social Security issues a final administrative decision denying disability benefits, a claimant may bring a civil action in United States District Court to appeal from the decision. If the claimant prevails in federal court and the court determines that Social Security's position wasn't "substantially justified" the court can order the Social Security Administration to pay attorney fees under the Equal Access to Justice Act (EAJA). As you can see below, Social Security's EAJA payments have been escalating rapidly in recent years.

Fiscal Year	Total Payments
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
2016	$40,045,962.42

     I think there are at least three factors causing this. Social Security's Administrative Law Judges are turning down more claimants than in the past. Social Security is more willing to defend weak denial decisions than in the past. The courts became less conservative as a result of President Obama's appointments.

EAJA Payments Doubled In Five Years

     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

Your Name Doesn't Have To Be Atticus Finch

     Most claimants caught up in the Eric Conn mess in Kentucky and West Virginia have received decisions from Administrative Law Judges (ALJs). About half have won. The Appeals Council is fast-tracking appeals from those who were denied. There are many claimants now in need of representation in federal court. There will be several hundred of these cases.
     Let me address some concerns that attorneys might have about taking on these cases:

• These are fee-generating cases. Once the ALJ denies the claim, the interim benefits stop. There's also the possibility of fees under the Equal Access to Justice Act (EAJA).
• There are attorneys available to serve as local counsel.
• Social Security is not suggesting that any of these claimants participated in Eric Conn's questionable behavior. They've done nothing wrong. Taking on one of these cases doesn't involve an attorney in a complicated criminal matter.
• There's nothing odd about these disability claims. Like other Social Security disability claims some are stronger than others but they're not phony.
• There are good arguments that can and should be made on the merits of individual cases.
• There are strong arguments that can be made concerning Social Security's methods. Social Security is simply assuming that there is fraud or similar fault in each of these cases. The claimant cannot see the evidence upon which this determination was made. They were not allowed to contest the determination of fraud or similar fault. ALJs were forbidden to consider this issue. The claimants were compelled to prove all over again that they were disabled. Important medical evidence was excluded from consideration and the claimant could not contest this. The process is completely different than what Social Security has done in the past in cases involving allegations of fraud or similar fault. For that matter, it's completely different from what Social Security is doing right now in other cases. 
• Claimants were not allowed to prove that they became disabled at a date later than the prior ALJ decision approving their claim except through a new claim. Most of the claimants caught up in this became sicker as time went on. I've looked at the statute involved and I can't even figure out what argument that Social Security can make on this issue.
• This is going to be a mess for the District Court in Kentucky where most of these cases will be heard. They're going to be deluged with hundreds of these cases. Are those District Court judges really prepared to slog through these cases, one by one? They're going to be strongly tempted to find a way to get these cases off the docket quickly. The easiest way to do that is to remand. How can I predict this? I was around for the huge wave of terminations in the early 1980s. That's what happened then.

     If you're interested in getting involved in these fee-generating cases in federal court, contact Mary Going at Appalachian Research and Defense Fund (AppalRed) at maryg[@]ardfky.org. Of course, there aren't any brackets in her real e-mail address. I just put them in there so she doesn't get so much spam.

EAJA Payments In Social Security Cases Increasing Rapidly

     Social Security has recently released information on payments it has made under the Equal Access of Justice Act (EAJA), which shifts the cost of attorney fees to the government in some cases where a claimant is the prevailing party in a civil action in the federal courts. Here are the numbers

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

What Data Do You Want To See?

     Social Security has a webpage where anyone can submit their ideas for data sets that the agency should make available online. Submit your own ideas. Here are the ideas I submitted:

• Productivity, backlog and allowance rates for each state DDS
• Percent of claimants with attorney or other representation
• EAJA fees paid
• Appeals Council productivity and backlog
• Percent of claimants who are rejecting video hearings
• Number of attorney-advisor decisions issued
• Number of on the record reversals issued by ALJs
• Processing time data for each payment centers
• Average speed of answer and agent busy rate for 800 number service
• Average speed of answer and agent busy rate for field office telephone lines

Shutdown Questions

     Some questions about the shutdown, for anyone who can answer them:

• What was it like in the office when employees came in Tuesday to be officially told they were furloughed?
• Am I correct that the next scheduled payday for most federal employees is October 11? Whatever the date is, it's important. No federal civilian employee gets a paycheck until the shutdown ends, even if they've been working through the shutdown.
• What's it like for Administrative Law Judges (ALJs) and others working in mostly deserted offices?
• If you've been furloughed, how are you spending your time so far?
• Is there some word on the street about when or if the employees furloughed at the Office of Disability Adjudication and Review (ODAR) will be called back to work despite the shutdown? Is there any risk that instead of calling the other ODAR employees back that the ALJs will be sent home instead? I think we can all agree that it's impractical to have the ALJs working without support staff for more than a short time.
• Has there been a problem with claimants not showing up for hearings and appointments, thinking that Social Security is completely shut down?
• The Appeals Council receives lots and lots of faxes. The fax machines I'm familiar with print out received faxes. If the fax machine runs of paper, the fax machine stores the fax in its memory but that memory is finite. Faxes can be lost if the machine runs out of paper and memory. The faxes coming into the Appeals Council won't stop. Will there be someone there to stock the fax machines with paper? Is there sufficient memory to cover days, maybe weeks, of faxes?
• The Office of General Counsel (OGC) has to process lots of attorney fees under the Equal Access to Justice Act (EAJA). I'm afraid I know the answer, but will OGC be able to process these during the shutdown? More generally, how will OGC discharge its core responsibilities with something like 90% of its staff furloughed? There must be scheduled hearings, trials, settlement conferences, oral arguments, etc. Is OGC just getting all of these continued?
• For employees still at work, are there bottlenecks caused by the large number of furloughed employees?

How Much Would It Cost Social Security To Give All Disability Claimants The Assistance They Need?

      From the San Francisco Chronicle:

In a legal settlement that advocates described as the first of its kind, Social Security has agreed to provide staff training and assistance to two mentally disabled San Francisco men who said they lost benefits because they couldn't understand the rules.

The settlement, approved Tuesday by a federal judge, requires the Social Security Administration to assign a staff expert to meet regularly with each man, explain the agency's forms and requirements, and help them respond in ways that protect their rights.

The agency also agreed to pay $900,000 in fees for the two men's lawyers, who have worked on the case for five years. ...

The agency offers no such assistance to at least 2 million Social Security recipients, and an undetermined number of applicants, who have mental or learning disabilities and have to decipher the complex eligibility requirements on their own, Bruce [the attorney for the plaintiffs] said.

Everybody Agrees That The District Court Decision Was Weird

The 5th Circuit Court of Appeals has issued an opinion in Murkledove v. Astrue, holding that an attorney fee is "incurred" for purposes of the Equal Access to Justice Act (EAJA) at the time a case is remanded by a federal court. The lower court had denied an EAJA fee on a remanded cases saying that the contingent fee had not been "incurred." Social Security had not opposed the EAJA award at the District Court level and also supported the appeal.

Why Did The House Of Representatives Vote To Cut Off EAJA Payments?

If you wonder why the House of Representatives decided to cut off funding for attorney fee awards under the Equal Access to Justice Act (EAJA) for the rest of the fiscal year, take a look at the deliberations.

EAJA Deliberations

What Is Behind The Effort To Halt EAJA Payments?

If you have wondered what is behind the vote in the House of Representatives to suspend payments under the Equal Access to Justice Act (EAJA) which forces the Social Security Administration to reimburse attorney fees for most claimants who prevail in federal court, take a look at this and this and this. This has nothing to do with Social Security. It appears to be people who are unhappy with the federal court successes of some environmental groups. They wish to inhibit the litigation by making it harder for the attorneys working for their adversaries to get paid.

House Votes To Suspend EAJA

The House of Representatives has voted to suspend payments of attorney fees under the Equal Access to Justice Act (EAJA) for six months. EAJA fees are available where the litigation involves government action that is not "substantially justified." In terms of numbers of cases if not dolar amount, Social Security pays more EAJA fees than all other government agencies combined. This is part of the appropriations bill passed early this morning. This is one of many issues presented by this bill which must be resolved.

EAJA Offset Decision

From Kellems v. Astrue (5th Cir. December 16, 2010):

In this social security case, we are asked to decide whether a federal court may order an attorney to remit to his client an award of attorney’s fees under the Equal Access to Justice Act (the “EAJA”) as an offset against fees awarded to the attorney pursuant to 42 U.S.C. § 406(a) for work before the Social Security Administration. This appeal was stayed pending our decision in Rice v. Astrue, 609 F.3d 831 (5th Cir. 2010). There we held that federal courts do not have the discretion to offset an EAJA award of attorney’s fees for work performed before a court with a future award of attorney’s fees by a federal agency pursuant to 42 U.S.C. § 406(a). Id. at 839. We now hold, in accordance with Rice, that a federal court may not order an award of attorney’s fees for work performed before a federal agency pursuant to 42 U.S.C. § 406(a) to be offset by an award of attorney’s fees for work performed before a federal court pursuant to the EAJA. We therefore vacate the order of the district court.

Ratliff Decision No Surprise

The Supreme Court has issued an opinion in Astrue v. Ratliff. No surprise. The government won. The Court held that an attorney fee under the Equal Access to Justice Act (EAJA) belongs to the plaintiff and may be seized by the government for debts owed the government. Justices Sotomayor, Stevens and Ginsburg filed a concurring opinion inviting Congressional action on the issue, saying that the decision in the case would make it more difficult for Social Security claimants to obtain representation in federal court.

Justices Seemed Sympathetic To Government In Ratliff

From the National Law Journal:

A majority of the Supreme Court appeared sympathetic on Monday to the Obama administration's arguments that attorney fee awards under a key fee shifting statute belong to the clients, not the attorneys who earn them, and the awards can be offset to pay debts owed to the government.

In Astrue v. Ratliff, Assistant to the Solicitor General Anthony Yang and James Leach of Rapid City, S.D., sparred over what each claimed was the "plain meaning" of the Equal Access to Justice Act. The act awards attorney fees and expenses to "a prevailing party other than the United States" in any civil action against the government unless the court finds the government's position was "substantially justified" or an award would be unjust.

The government is urging the high court to overturn a ruling by the 8th U.S. Circuit Court of Appeals (pdf) which, counter to most courts that have ruled on the issue, held that the fee award belongs to the prevailing party's attorney and cannot be used to offset the client's government debts.

Here is the transcript of the oral argument if you wish to read it.

Legal Aid Can Now Take EAJA Fees

The Legal Services Corporation has announced that the legal aid organizations it funds may now apply for and accept fees under fee shifting statutes, such as the Equal Access to Justice Act (EAJA). This will make it easier for legal aid organizations to represent Social Security claimants in federal court.

Astrue v. Ratliff Wiki

The SCOTUS Blog has started a Wiki for each case to be argued before the Supreme Court this term. One of these cases is Astrue v. Ratliff which is on the issue of whether attorney fees payable under the Equal Access to Justice Act (EAJA) belong to the Plaintiff or the Plaintiff's attorney.

The government is ordered to pay EAJA fees far more often in Social Security cases than in any other type of case. If the EAJA fee belongs to the Plaintiff, it is subject to offset for debts that the Plaintiff owes the federal government.

The case is set for oral argument on February 22, 2010. The certiorari stage briefs are available through the Wiki. The government's brief on the merits is also available. The opposing brief should be available in the near future.

Cert Granted For EAJA Case

The Supreme Court has granted a writ of certiorari in the case of Astrue v. Ratliff. This means that the Supreme Court will hear the case. The issue is "Whether an 'award of fees and other expenses' under the Equal Access to Justice Act, is payable to the 'prevailing party' rather than to the prevailing party’s attorney, and therefore is subject to an offset for a pre-existing debt owed by the prevailing party to the United States."

Cert Petition Denied In Manning

The Supreme Court has denied the petition for a writ of certiorari in Manning v. Astrue, having to do with the issue of whether attorney’s fees awarded under the Equal Access to Justice Act must be paid to the plaintiff directly, where it may be attached by the government for outstanding debts, or to the plaintiff’s attorney. This means that the Supreme Court will not hear the case.

Cert Petition To Watch

From the SCOTUS [Supreme Court of the United States] Blog's list of cases that have a reasonable change of being granted certiorari at the conference of the Supreme Court Justices on October 31. Granting a writ of certiorari (or cert for short) means that the Supreme Court agrees to hear the case.

Docket: 07-1468
Title: Manning v. Astrue

Issue: Whether attorney’s fees awarded under the Equal Access to Justice Act must be paid to the plaintiff directly, where it may be attached by the government for outstanding debts, or to the plaintiff’s attorney.

• Opinion below (10th Circuit)
• Petition for certiorari
• Brief in opposition

Timothy White of Tulsa, OK is the attorney for the appellant.

A new Solicitor General, who represents the federal government before the Supreme Court, will be appointed by the next President. The new Solicitor General could have a different position on this issue than President Bush's Solicitor General, particularly if the next President is Barack Obama.