A strict reading of the law
In his opinion on Ratliff’s case, Justice Thomas pointed to the language of the 1980 law. The court has long held, he wrote, “that the term ‘prevailing party’ in attorney’s fees statutes is a ‘term of art’ that refers to the prevailing litigant.”
While the court’s opinion was unanimous, Justice Sonia Sotomayor also wrote a concurring opinion, which was joined by Justices John Paul Stevens and Ruth Bader Ginsburg. In it, she agreed that a “textual analysis” of the law requires payment to a client, and not her attorney. But she noted that EAJA was written well before the Treasury Department began diverting attorneys’ fees to offset clients’ debts in 2005, and questioned whether Congress intended to permit that kind of behavior by the government.
“In my view, it is likely both that Congress did not consider that question and that, had it done so, it would not have wanted EAJA fee awards to be subject to offset,” she wrote.
Most of the fees paid by the Social Security Administration to lawyers under the law are small (the average was less than $3,600 in 2006). The brief filed in the case by AARP and several other public-interest advocacy groups argued that in Social Security cases, EAJA fees “are the first—and sometimes the only—fees the attorney may receive.”
Sotomayor also indicated her concern that curtailing those payments could have real consequences. Using attorneys’ fees to offset a client’s debt “will unquestionably make it more difficult for persons of limited means to find attorneys to represent them,” she wrote.
Assessing the impact
In most circumstances in which clients are not in debt to the government, a simple agreement or contract between attorney and client will be enough to ensure that attorneys’ fees awarded by the court end up in a client’s bank account, according to several experts.
Gerald McIntyre, an attorney with the National Senior Citizens Law Center, which joined with AARP in the friend of the court brief in the case, says the impact of the ruling will be felt most by people who have outstanding debts to the government. “It means that they are going to have great difficulty in getting an attorney,” he says. And while the success rate in such cases is high if an attorney works on the case, “if they don’t have an attorney, it’s unlikely they will win.”
As a result of the decision in Ratliff’s case, McIntyre says he is also concerned that people who owe child support could have their attorneys’ fees diverted to pay those debts. A system that discourages attorneys from representing clients who are fighting for government benefits would only make it more difficult to pay the child support debt, he argues.
Jones, the AARP lawyer, says that the Ratliff ruling will likely prompt attorneys who take such cases to find out whether potential clients owe the federal government any money. But clients may not be truthful about their debts, or may be unaware of them, and the work required to verify whether they are in debt could discourage some attorneys from taking these kinds of benefits cases.
The experience with Kills Rhee marked the third time that fees intended for Ratliff were diverted to cover a client’s government debt. (Another was for an unpaid student loan.) “I don’t have time to look” into whether potential clients owe the government money, she says, though she is aware that, in light of the court’s ruling, the same thing could happen yet again in a future case.
Ratliff worries that the decision could push some of her legal colleagues away from this kind of important work. “I think there will be some attorneys who don’t do a lot of Social Security cases who just say, ‘I’m not going to do them any more. This is the last straw.’ ”
Not giving up
But Ratliff, now semi-retired, isn’t discouraged. Her father, grandfather and great-grandfather were Methodist ministers, and she says she learned that “you’re supposed to serve people in need.”
The Supreme Court’s ruling is a disappointment, she says. But, she adds, “I’m not going to let it change my mind.”
Holly Yeager is a New York-based freelance journalist.