05/28/2008 05:12 am ET Updated May 25, 2011

Unequal Access to Justice

There are many ways to make the eyes of the average reader glaze over, and a discussion of Social Security Disability legal practice ranks high on most lists. The topic may induce profound slumber, but a recent nasty, mean-spirited action by the Bush administration ought to induce outrage as well. Problem is, it is hard to be outraged when you are sleeping. In order to understand the outrage, I need to utter the four most dangerous words in any lawyer's vocabulary: "By way of background..."

An applicant for Supplemental Security Income walks into your office and says "My application has been denied. I had a hearing with an Administrative Law Judge and she denied my claim as well. Can you help me?" You review the file, conclude that the claimant should never have been denied, and you agree to be retained. The claimant willingly agrees to pay you a fee equal to 25% of the back benefit found to be due him. If you lose, 25% of zero is zero.

Your review of the file indicates that the claimant meets a listing for spinal disorders. But you also find that at the hearing - where the claimant was unrepresented - the Administrative Law Judge repeatedly questioned your client about references to cocaine use that appear in the medical records that are in evidence. Your client testifies that he used cocaine occasionally, but that he stopped putting poison up his nose a year before his disability began. You note that there is in fact no reference in the medical records to cocaine for fifteen months before the disability began and none thereafter. You also note that under Social Security's rules, the long-past drug use is irrelevant to a determination of disability. The Administrative Law Judge's decision, in utter disregard of the evidence and the rules of law, found drug abuse to be a material factor contributing to disability and denied the claim for benefits. Your client, who has been without a job for over two years and who literally does not know how he is going to pay next month's rent, is devastated. You immediately file an appeal with the Appeals Council and you document the clear errors of law made by the Administrative Law Judge. Two years later (shockingly, about average) you receive a two page boiler-plate decision from the Appeals Council saying "Review denied."

So you at once take the next step and file suit against the Commissioner of Social Security in Federal Court. You beg and plead with the U.S. Attorney to agree to remand the case since the Administrative Law Judge's error was clear. The government refuses, and you spend the better part of a week writing a brief in support of a Motion to Reverse the decision of the Commissioner. At that point, someone at the Regional Counsel's office reads your brief, concludes that the case cannot be defended, and asks if you will accept a voluntary remand to allow an administrative law judge (likely the same one) to get it right a second time. Your client is overjoyed.

You, being an experienced attorney, move within the time permitted by law for the Court to order a fee to be paid to you under the Equal Access to Justice Act, commonly known as "the EAJA." The EAJA provides that if the government's position is without substantial justification, fees in an amount to be set by the Court will be awarded to "the prevailing party." Typically, fees under EAJA are awarded at an inflation adjusted "lodestar" rate, these days roughly $170 an hour, which is about half what reasonably experienced counsel normally charge. The government, having finally concluded that the Commissioner's position was devoid of substantial justification, agrees that you are entitled to a fee under the EAJA in the amount of $4,000.00. The court enters an order accordingly.

Until recently, what happened next was predictable. The attorney did the work and the fee under the EAJA was calculated based upon that work. The lawyer, not the claimant, spent 25 hours of his time doing the work which would not have been necessary if the government had not mishandled the claim in the first place. Until recently, the $4,000 check was sent to the lawyer and the case proceeded back before the Administrative Law Judge. More often than not, that check represented the lion's share of the money the claimant's lawyer ever saw on the case.

This practice made it easier (not "easy", easier) for a claimant who was harmed by the government's wrongful action to get an attorney to aid him in getting the wrong redressed in Federal Court. As the law's name implied, it allowed the wronged claimant to have access to the courts equal to that of a person capable of paying for legal services. There are not many lawyers who are willing to say "Sure, I'll drop everything and spend four days doing nothing but working on this case despite the fact that you don't have two dimes to rub together and God alone knows how I will get paid."

The Bush administration, ranking lawyers just below hurricanes and slightly above Osama bin Laden, decided that there had to be a way to restore The Balance of Nature by "un-leveling the playing field." Some nameless drelb somewhere in the bowels of the federal bureaucracy well versed in the pamphleteering that passes for analysis amongst members of The Federalist Society, had a brain-storm: "Prevailing party" means just that. It means that the claimant, and not the lawyer, is entitled to the fee awarded under the EAJA. And if the fee is owed to the claimant, (here is the "Ah-ha! Moment") we can use it to offset money that the claimant owes for defaulted student loans, back taxes, improperly received crop support payments, or any other "debt" we can gin up.

This is utter idiocy. This flies in the face of the entire purpose behind the EAJA. This means that no matter how appallingly you have been treated by the Social Security administration, you are going to have a nearly impossible time finding a lawyer to vindicate your rights in Federal Court if you owe an existing debt to the Federal Government. And lest you think I am making up some improbable hypothetical, I learned last week of a lawyer who handled such a case, fought with the government over a fee under the EAJA, got an agreement to be paid $2,200 for her excellent work, and then found that she was paid precisely $200. Why? "Because I involuntarily paid off my client's student loan."

This narrow, cramped, reading of the EAJA overturned decades of practice under that enactment, practice that insured the lawyer who did the work got compensated for it. The prior interpretation was in full and complete accord with the stated purposes of the EAJA and worked well, despite its complexity. Staggeringly, the Bush administration's view has been swallowed contents, bottle, twist cap and label by the U.S. Courts of Appeal, which have taken the position "prevailing party means prevailing party and not the prevailing party's lawyer." It was in a similar context that Dickens uttered his immortal comment likening The Law unto a notoriously brainless beast of burden.

Congressman Peter DeFazio of Oregon has introduced H.R. 5833, a piece of legislation that undoes this mischief and restores reason and good sense to the field. This legislation simply states that fees awarded under EAJA in Social Security appeals are the property of the claimant's lawyer and are not subject to offset by the government for debts owed by the claimant himself or herself. The Bush administration, believing that H.R. 5833 helps people it does not want to help, opposes it. It believes it to be "a lawyer's bill" when, in fact, it is a "disabled persons who have been screwed by the government" bill. It may well be among the most clear-cut, rational pieces of legislation introduced in the Congress of the United States in years. It is short, simple, and comprehensible by even the densest of Congressional staff members.

But with the current administration having elevated Ronald Reagan's habit of making it fashionable to hate the poor to a level approaching the National Religion, the bill stands scant chance of passage. That is, unless and until Members of Congress stop getting glassy-eyed when the words "Social Security Disability" are mentioned and instead become appropriately outraged over this and line up in support of Rep. DeFazio's bill. After all, it is their constituents (remember them?) who are being severely disadvantaged by the administration's mischief.