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

Doing What You Won't Defend

Lambda Legal, "the oldest national organization pursuing high-impact litigation, public education and advocacy on behalf of equality and civil rights for lesbians, gay men, bisexuals, transgender people and people with HIV", says that it expects that the "executive branch will continue to enforce [the Defense of Marriage Act (DOMA) which prevents federal recognition of same-sex marriages] until it is repealed by Congress or struck down by the courts ..."

If this is accurate, and I expect it is, this puts the Social Security Administration in an awkward position. It must apply DOMA but if this is appealed to the federal courts, the Department of Justice will not defend what Social Security has done. I understand the logic that gets you to this position but how do you explain to a widow or widower that they cannot get Social Security benefits because theirs was a same-sex marriage -- even though the widow or widower has read that the Attorney General is unwilling to defend such a result?

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.

Inspector General Report On AFGE Allegations

From a recent report by Social Security's Office of Inspector General (OIG):

In April 2010, the president of the American Federation of Government Employees (AFGE), National Council of SSA Field Operations Locals, testified before the Subcommittee on Social Security, House Committee on Ways and Means, that SSA had banned its employees from explaining MOE [Month of Entitlement] choices with claimants. The AFGE president urged members of Congress to direct SSA to eliminate this “gag order.” In response to AFGE’s allegations, SSA reported to the Subcommittee, “We have not banned our employees from explaining month of election (MOE) choices. While we do not attempt to influence a claimant’s MOE choice, our technicians do provide information about different MOE options.” ...

[OIG speaking about the results of their investigation into the AFGE allegations] We do not believe SSA’s revised MOE policy bans employees from explaining pertinent information—including MOE options—to retirement claimants. Rather, the new policy states that claims technicians should only provide certain procedural calculations when a claimant specifically requests that they do so. Many claims technicians with whom we spoke agreed with limiting some of the information previously provided to retirement applicants, as it was confusing and overwhelming. However, over half of the claims technicians who responded disagreed with the removal of break-even points. In fact, some continued to provide this information to claimants without a specific request—contrary to the new policy. Although we did not determine whether break-even points were beneficial to claimants, we believe the Agency needs to explain more clearly its rationale to claims technicians if it believes these are no longer relevant for retirement applicants.

A Message From The Commissioner

From: ^Commissioner Broadcast
Sent: Wednesday, February 23, 2011 11:00 AM
To: Undisclosed recipients
Subject: COMMISSIONER’S BROADCAST--02/23/11

A Message To All SSA And DDS Employees

Subject: The Budget

In periods of uncertainty, rumors and misstatements abound so I want to tell you what I know. During a Continuing Resolution (CR), we are funded at the prior year’s dollar amount. While that is often called “level-funded,” that term does not fit our situation because we have fixed costs like rent and guards that increase each year, and because the Recovery Act money we received last year to handle case work is not part of our CR funding. For nearly half a year, we have had less money than we had last year.

The current CR ends March 4. At that time, Congress can extend the CR again which will continue our funding at last year’s level, pass a budget, or let the CR expire, essentially causing a government-wide shutdown. The truth is that we do not know what Congress will do. We are working hard to deliver the best possible result from Congress and to carefully manage the money we do receive.

As we await Congressional action, we are doing what we can to minimize the budget uncertainties from interfering with your lives and work. You should know that we are considering a variety of scenarios but we have not made any final decisions. We will do what we can to prevent furloughs caused by not having enough money to pay you. That strategy may mean tough choices like cutting back on or eliminating overtime and expanding the hiring freeze.

I regret that I cannot give you precise information about what will happen, but I am uncomfortable not letting you know some of the possible outcomes so that you can begin to plan accordingly. Given all of the uncertainty, I encourage you to be careful about believing everything you hear. I will continue to share what we know as more information becomes available.

Michael J. Astrue

Commissioner

Same Sex Marriages To Be Recognized At Social Security?

The Attorney General has released a statement saying that the Department of Justice will no longer defend the constitutionality of section 3 of the Defense of Marriage Act (DOMA) as applied to legally married same-sex couples and will so advise courts.

It would appear to me that Social Security must now recognize legally married same-sex couples. I do not think this would apply to civil unions.

Social Security should give advise to its employees on this subject pretty much immediately.

New Garnishment Rules

From today's Federal Register:

Treasury, SSA [Social Security Administration], VA [Department of Veterans Affairs], RRB [Railroad Retirement Board] and OPM [Office of Personnel Management] (Agencies) are issuing an interim final rule to implement statutory restrictions on the garnishment of Federal benefit payments. The rule establishes procedures that financial institutions must follow when they receive a garnishment order against an account holder who receives certain types of Federal benefit payments by direct deposit. The rule requires financial institutions that receive such a garnishment order to determine the sum of such Federal benefit payments deposited to the account during a two month period, and to ensure that the account holder has access to an amount equal to that sum or to the current balance of the account, whichever is lower.

No Place In A Debate

From Sam Stein writing at the Huffington Post:

Lost amid the budget battles in Congress and the anti-union legislation being considered in several states has been the White House's deliberate decision to take the topic of Social Security reform off the deficit debate menu.

The latest move in that direction came on Tuesday, when Jason Furman, deputy director of the President Barack Obama's National Economic Council, insisted that talk of Social Security reform "is not one you care about" if "you are worried about our long-run fiscal future." ...

Rather than merely ruling out drastic changes to the entitlement program, he is arguing that Social Security has no place in a debate over the deficit ...