Astrue v. Ratliff , 130 S. Ct. 2521 ( 2010 )

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ASTRUE, COMMISSIONER OF SOCIAL SECURITY v.
RATLIFF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 08–1322. Argued February 22, 2010—Decided June 14, 2010
Respondent Ratliff was Ruby Kills Ree’s attorney in Ree’s successful
suit against the United States Social Security Administration for So­
cial Security benefits. The District Court granted Ree’s unopposed
motion for attorney’s fees under the Equal Access to Justice Act
(EAJA), which provides, inter alia, that “a court shall award to a pre­
vailing party . . . fees and other expenses . . . in any civil action . . .
brought by or against the United States.” 28 U. S. C. §2412(d)(1)(A).
Before paying the fees award, the Government discovered that Ree
owed the United States a debt that predated the award. Accordingly,
it sought an administrative offset against the award under 31
U. S. C. §3716, which subjects to offset all “funds payable by the
United States,” §3701(a)(1), to an individual who owes certain delin­
quent federal debts, see §3701(b), unless, e.g., payment is exempted
by statute or regulation. See, e.g., §3716(e)(2). The parties to this
case have not established that any such exemption applies to
§2412(d) fees awards, which, as of 2005, are covered by the Treasury
Department’s Offset Program (TOP). After the Government notified
Ree that it would apply TOP to offset her fees award against a por­
tion of her debt, Ratliff intervened, challenging the offset on the
grounds that §2412(d) fees belong to a litigant’s attorney and thus
may not be used to satisfy the litigant’s federal debts. The District
Court held that because §2412(d) directs that fees be awarded to the
“prevailing party,” not to her attorney, Ratliff lacked standing to
challenge the offset. The Eighth Circuit reversed, holding that under
its precedent, EAJA attorney’s fees are awarded to prevailing parties’
attorneys.
Held: A §2412(d)(1)(A) attorney’s fees award is payable to the litigant
2 ASTRUE v. RATLIFF
Syllabus
and is therefore subject to an offset to satisfy the litigant’s pre­
existing debt to the Government. Pp. 3–11.
(a) Nothing in EAJA contradicts this Court’s longstanding view
that the term “prevailing party” in attorney’s fees statutes is a “term
of art” that refers to the prevailing litigant. See, e.g., Buckhannon
Board & Care Home, Inc. v. West Virginia Dept. of Health and Hu
man Resources, 532 U. S. 598, 603. That the term has its usual
meaning in subsection (d)(1)(A) is underscored by the fact that sub­
section (d)(1)(B) and other provisions clearly distinguish the party
who receives the fees award (the litigant) from the attorney who per­
formed the work that generated the fees. The Court disagrees with
Ratliff’s assertion that subsection (d)(1)(A)’s use of the verb “award”
nonetheless renders §2412(d) fees payable directly to a prevailing
party’s attorney. The dictionaries show that, in the litigation context,
the transitive verb “award” has the settled meaning of giving or as­
signing by judicial decree. Its plain meaning in subsection (d)(1)(A) is
thus that the court shall “give or assign by . . . judicial determina­
tion” to the “prevailing party” (here, Ree) attorney’s fees in the
amount sought and substantiated under, inter alia, subsection
(d)(1)(B). That the prevailing party’s attorney may have a beneficial
interest or a contractual right in the fees does not alter this conclu­
sion. Pp. 3–6.
(b) The Court rejects Ratliff’s argument that other EAJA provi­
sions, combined with the Social Security Act (SSA) and the Govern­
ment’s practice of paying some EAJA fees awards directly to attor­
neys in Social Security cases, render §2412(d) at least ambiguous on
the question presented here, and that these other provisions resolve
the ambiguity in her favor. Even accepting that §2412(d) is ambigu­
ous¸ the provisions and practices Ratliff identifies do not alter the
Court’s conclusion. Subsection (d)(1)(B) and other provisions differ­
entiate between attorneys and prevailing parties, and treat attorneys
on par with other service providers, in a manner that forecloses the
conclusion that attorneys have a right to direct payment of subsec­
tion (d)(1)(A) awards. Nor is the necessity of such payments estab­
lished by the SSA provisions on which Ratliff relies. That SSA fees
awards are payable directly to a prevailing claimant’s attorney, see
42 U. S. C. §406(b)(1)(A), undermines Ratliff’s case by showing that
Congress knows how to create a direct fee requirement where it de­
sires to do so. Given the stark contrast between the language of the
SSA and EAJA provisions, the Court is reluctant to interpret subsec­
tion (d)(1)(A) to contain a direct fee requirement absent clear textual
evidence that such a requirement applies. Such evidence is not sup­
plied by a 1985 EAJA amendment requiring that, “where the claim­
ant’s attorney receives fees for the same work under both [42 U. S. C.
Cite as: 560 U. S. ____ (2010) 3
Syllabus
§406(b) and 28 U. S. C. §2412(d)], the . . . attorney [must] refun[d] to
the claimant the amount of the smaller fee.” See note following
§2412. Ratliff’s argument that this recognition that an attorney will
sometimes “receiv[e]” §2412(d) fees suggests that subsection (d)(1)(A)
should be construed to incorporate the same direct payments to at­
torneys that the SSA expressly authorizes gives more weight to “re­
cei[pt]” than the term can bear: The ensuing reference to the attor­
ney’s obligation to “refund” the smaller fee to the claimant
demonstrates that the award belongs to the claimant in the first
place. Moreover, Ratliff’s reading is irreconcilable with the textual
differences between the two Acts. The fact that the Government, un­
til 2006, frequently paid EAJA fees awards directly to attorneys in
SSA cases in which the prevailing party had assigned the attorney
her rights in the award does not alter the Court’s interpretation of
the Act’s fees provision. That some such cases involved a prevailing
party with outstanding federal debts is unsurprising, given that it
was not until 2005 that the TOP was modified to require offsets
against attorney’s fees awards. And as Ratliff admits, the Govern­
ment has since discontinued the direct payment practice except in
cases where the plaintiff does not owe a federal debt and has as­
signed her right to fees to the attorney. Finally, the Court’s conclu­
sion is buttressed by cases interpreting and applying 42 U. S. C.
§1988, which contains language virtually identical to §2412(d)(1)(A)’s.
See, e.g., Evans v. Jeff D., 475 U. S. 717, 730−732, and n. 19. Pp. 6–
11.
540 F. 3d 800, reversed and remanded.
THOMAS, J., delivered the opinion for a unanimous Court. SO-
TOMAYOR, J., filed a concurring opinion, in which STEVENS and GINS-
BURG, JJ., joined.
Cite as: 560 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1322
_________________
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL
SECURITY, PETITIONER v. CATHERINE G. RATLIFF
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 14, 2010]
JUSTICE THOMAS delivered the opinion of the Court.
Section 204(d) of the Equal Access to Justice Act
(EAJA), codified in 28 U. S. C. §2412(d), provides in perti
nent part that “a court shall award to a prevailing party
. . . fees and other expenses . . . in any civil action . . .
brought by or against the United States . . . unless the
court finds that the position of the United States was
substantially justified.” We consider whether an award of
“fees and other expenses” to a “prevailing party” under
§2412(d) is payable to the litigant or to his attorney. We
hold that a §2412(d) fees award is payable to the litigant
and is therefore subject to a Government offset to satisfy a
pre-existing debt that the litigant owes the United States.
I
This case arises out of proceedings in which a Social
Security claimant, Ruby Willows Kills Ree, prevailed on a
claim for benefits against the United States. Respondent
Catherine Ratliff was Ree’s attorney in those proceedings.
The District Court granted Ree’s unopposed motion for a
§2412(d) fees award in the amount of $2,112.60. Before
the United States paid the fees award, however, it discov
2 ASTRUE v. RATLIFF
Opinion of the Court
ered that Ree owed the Government a debt that predated
the District Court’s approval of the award. Accordingly,
the United States sought an administrative offset against
the fees award to satisfy part of that debt.
The Government’s authority to use administrative
offsets is statutory. See 31 U. S. C. §§3711(a), 3716(a)
(authorizing an agency whose debt collection attempts are
unsuccessful to “collect the claim by administrative off
set”).1 Congress has subjected to offset all “funds payable
by the United States,” §3701(a)(1), to an individual who
owes certain delinquent federal debts, see §3701(b),
unless, as relevant here, payment is exempted by statute,
see §3716(e)(2). No such exemption applies to attorney’s
fees awards under 28 U. S. C. §2412(d)(1)(A) (hereinafter
subsection (d)(1)(A)), which are otherwise subject to offset,
see 31 CFR §285.5(e)(1) (2009), and which, as of January
2005, are covered by the Treasury Offset Program (TOP)
operated by the Treasury Department’s Financial Man
agement Service (FMS). See Brief for Petitioner 4 (ex
plaining TOP’s extension to cover so-called “ ‘miscellane
ous’ ” payments that include attorney’s fees payments
the Treasury Department makes on behalf of federal
agencies).2
——————
1 Section
3701 defines an administrative offset as “withholding funds
payable by the United States” to the debtor. §3701(a)(1). An agency
may effect such an offset by cooperating with another agency to with
hold such funds, or by notifying the Treasury Department of the debt so
Treasury may include it in Treasury’s centralized offset program. See
31 CFR §§285.5(d)(2), 901.3(b)(1), (c). Alternatively, the Treasury
Department may attempt an administrative offset after receiving notice
from a creditor agency that a legally enforceable nontax debt has
become more than 180 days delinquent. See 31 U. S. C. §3716(c)(6); 31
CFR §§285.5(d)(1), 901.3(b)(1).
2 Respondent Ratliff argues for the first time in her merits brief be
fore this Court that the 2005 amendments to the FMS regulations
exempt the EAJA fees award in this case from administrative offset
against Ree’s outstanding federal debt. See Brief for Respondent 8, 46
Cite as: 560 U. S. ____ (2010) 3
Opinion of the Court
In this case, the Government, relying on the TOP, noti
fied Ree that the Government would apply her §2412(d)
fees award to offset a portion of her outstanding federal
debt. Ratliff intervened to challenge the offset on the
grounds that §2412(d) fees belong to a litigant’s attorney
and thus may not be used to offset or otherwise satisfy a
litigant’s federal debts. The District Court held that
because §2412(d) directs that fees be awarded to the pre
vailing party, not to her attorney, Ratliff lacked standing
to challenge the Government’s proposed offset. See No.
CIV. 06–5070–RHB, 2007 WL 6894710, *1 (D SD, May 10,
2007).
The Court of Appeals for the Eighth Circuit reversed.
540 F. 3d 800 (2008). It held that under Circuit precedent,
“EAJA attorneys’ fees are awarded to prevailing parties’
attorneys.” Id., at 802. The Court of Appeals recognized
that its decision did not accord with a “literal interpreta
tion of the EAJA,” ibid., and exacerbated a split among the
Courts of Appeals, compare id., at 801–802, with, e.g.,
Reeves v. Astrue, 526 F. 3d 732, 733 (CA11 2008); Manning
v. Astrue, 510 F. 3d 1246, 1249–1251 (CA10 2007); FDL
Technologies, Inc. v. United States, 967 F. 2d 1578, 1580
(CA Fed. 1992); Panola Land Buying Assn. v. Clark, 844
F. 2d 1506, 1510–1511 (CA11 1988).3 We granted certio
rari. 557 U. S. ___ (2009).
——————
(citing 31 CFR §285.5(e)(5)). We need not decide this question because
Ratliff did not raise the regulations as a bar to offset in her brief in
opposition to the Government’s petition for a writ of certiorari, see this
Court’s Rule 15.2, or in the proceedings below.
3 The split exists in the Social Security context because the Social
Security Act (SSA), 49 Stat. 620, as amended, 42 U. S. C. §301 et seq.,
provides for payment of attorney’s fees awards directly to counsel, see
§406(b)(1)(A), and until 2006 the Government in many cases treated
fees awards under EAJA the same way, see Reply Brief for Petitioner
13−14.
4 ASTRUE v. RATLIFF
Opinion of the Court
II
Subsection (d)(1)(A) directs that courts “shall award to a
prevailing party . . . fees and other expenses . . . incurred
by that party.” (Emphasis added.) We have long held that
the term “prevailing party” in fee statutes is a “term of
art” that refers to the prevailing litigant. See, e.g., Buck
hannon Board & Care Home, Inc. v. West Virginia Dept. of
Health and Human Resources, 532 U. S. 598, 603 (2001).
This treatment reflects the fact that statutes that award
attorney’s fees to a prevailing party are exceptions to the
“ ‘American Rule’ ” that each litigant “bear [his] own attor
ney’s fees.” Id., at 602 (citing Key Tronic Corp. v. United
States, 511 U. S. 809, 819 (1994)). Nothing in EAJA sup
ports a different reading. Cf. Arthur Andersen LLP v.
Carlisle, 556 U. S. ___, ___, n. 4 (2009) (slip op., at 6, n. 4)
(where Congress employs “identical words and phrases
within the same statute,” they are presumed to carry “the
same meaning” (internal quotation marks omitted)).
Indeed, other subsections within §2412(d) underscore that
the term “prevailing party” in subsection (d)(1)(A) carries
its usual and settled meaning—prevailing litigant. Those
other subsections clearly distinguish the party who re
ceives the fees award (the litigant) from the attorney who
performed the work that generated the fees. See, e.g.,
§2412(d)(1)(B) (hereinafter subsection (d)(1)(B)) (the “pre
vailing party” must apply for the fees award and “sho[w]”
that he “is a prevailing party and is eligible to receive an
award” by, among other things, submitting “an itemized
statement from any attorney . . . representing or appearing
in behalf of the party” that details the attorney’s hourly
rate and time spent on the case (emphasis added)); see
also Part III, infra.
Ratliff nonetheless asserts that subsection (d)(1)(A)’s
use of the verb “award” renders §2412(d) fees payable
directly to a prevailing party’s attorney and thus protects
the fees from a Government offset against the prevailing
Cite as: 560 U. S. ____ (2010) 5
Opinion of the Court
party’s federal debts. See Brief for Respondent 11−19
(arguing that subsection (d)(1)(A)’s use of the word
“ ‘award’ ” “expressly incorporates a critical distinction”
between the right to an “ ‘award’ ” of fees and the right to
“ ‘receiv[e]’ ” the fees). We disagree.
The transitive verb “ ‘award’ ” has a settled meaning in
the litigation context: It means “[t]o give or assign by
sentence or judicial determination.” Black’s Law Diction
ary 125 (5th ed. 1979) (emphasis added); see also Web
ster’s Third New International Dictionary 152 (1993) (“to
give by judicial decree” (emphasis added)). The plain
meaning of the word “award” in subsection (d)(1)(A) is
thus that the court shall “give or assign by . . . judicial
determination” to the “prevailing party” (here, Ratliff’s
client Ree) attorney’s fees in the amount sought and sub
stantiated under, inter alia, subsection (d)(1)(B).
Ratliff’s contrary argument does not withstand scrutiny.
According to Ratliff, subsection (d)(1)(B), which uses “the
noun ‘award’ ” to mean a “ ‘decision,’ ” requires us to con
strue subsection (d)(1)(A) (which uses “award” as a verb)
to mean that “[o]nly the prevailing party may receive the
award (the decision granting fees), but only the attorney
who earned the fee (the payment asked or given for profes
sional services) is entitled to receive it.” Brief for Respon
dent 16, 15 (emphasis in original; some internal quotation
marks and footnote omitted). This argument ignores the
settled definitions above, and even the definitions Ratliff
proffers, because each makes clear that the verb “award”
in subsection (d)(1)(A) means to “give by the decision of a
law court” or to “grant . . . by judicial decree,” not simply to
“give a decision” itself. Id., at 16, and n. 39 (emphasis
added; internal quotation marks omitted). We thus agree
with the Government that under the statutory language
here, the “judicial decision is the means by which the court
confers a right to payment upon the prevailing party; it is
not itself the thing that the court gives (or orders the
6 ASTRUE v. RATLIFF
Opinion of the Court
defendant to give) to the party.” Reply Brief for Petitioner
4 (emphasis in original) (citing Hewitt v. Helms, 482 U. S.
755, 761 (1987) (explaining that “[i]n all civil litigation,
the judicial decree is not the end but the means”)). This
settled and natural construction of the operative statutory
language is reflected in our cases. See, e.g., Scarborough
v. Principi, 541 U. S. 401, 405 (2004) (“EAJA authorizes
the payment of fees to a prevailing party” (emphasis
added)).
Ratliff’s final textual argument—that subsection
(d)(1)(A)’s reference to “attorney’s fees” itself establishes
that the fees are payable to the prevailing party’s attor
ney, see Brief for Respondent 19−22—proves far too much.
The fact that the statute awards to the prevailing party
fees in which her attorney may have a beneficial interest
or a contractual right does not establish that the statute
“awards” the fees directly to the attorney. For the reasons
we have explained, the statute’s plain text does the oppo
site—it “awards” the fees to the litigant, and thus subjects
them to a federal administrative offset if the litigant has
outstanding federal debts.
III
In an effort to avoid the Act’s plain meaning, Ratliff
argues that other provisions of EAJA, combined with the
SSA and the Government’s practice of paying some EAJA
fees awards directly to attorneys in Social Security cases,
render §2412(d) at least ambiguous on the question pre
sented here, and that these other provisions resolve the
ambiguity in her favor. Again we disagree. Even accept
ing §2412(d) as ambiguous on the question presented, the
provisions and practices Ratliff identifies do not alter our
conclusion that EAJA fees are payable to litigants and are
thus subject to offset where a litigant has outstanding
federal debts.
To begin with, §2412(d)(1)’s provisions differentiate
Cite as: 560 U. S. ____ (2010) 7
Opinion of the Court
between attorneys and prevailing parties, and treat attor
neys on par with other service providers, in a manner that
forecloses the conclusion that attorneys have a right to
direct payment of subsection (d)(1)(A) awards. As noted
above, subsection (d)(1)(B) requires the prevailing party to
submit a fee application showing that she is otherwise
“eligible to receive an award” and, as a complement to that
requirement, compels the prevailing party to submit “an
itemized statement from any attorney . . . representing or
appearing in behalf of the party” that details the attorney’s
hourly rate and time the attorney spent on the case.
(Emphasis added.) This language would make little sense
if, as Ratliff contends, §2412(d)’s “prevailing party” lan
guage effectively refers to the prevailing litigant’s attor
ney. Subsection (d)(1)(B) similarly makes clear that the
“prevailing party” (not her attorney) is the recipient of the
fees award by requiring the prevailing party to demon
strate that her net worth falls within the range the statute
requires for fees awards. And EAJA’s cost provision fur
ther underscores the point. That provision uses language
identical to that in the attorney’s fees provision to allow
prevailing parties to recover “the reasonable expenses of
expert witnesses” and “any study, analysis, engineering
report, test, or project” necessary to prepare “the party’s
case,” §2412(d)(2)(A), yet Ratliff does not argue that it
makes costs payable directly to the vendors who provide
the relevant services.
Nor do the SSA provisions on which Ratliff relies estab
lish that subsection (d)(1)(A) fees awards are payable to
prevailing parties’ attorneys. It is true that the SSA
makes fees awards under that statute payable directly to a
prevailing claimant’s attorney. See 42 U. S. C.
§406(b)(1)(A) (providing that where a claimant “who was
represented before the court by an attorney” obtains a
favorable judgment, “the court may determine and allow
as part of its judgment a reasonable fee for such represen
8 ASTRUE v. RATLIFF
Opinion of the Court
tation, not in excess of 25 percent of” the benefits award
and may certify the full amount of the statutory fees
award “for payment to such attorney out of, and not in
addition to, the amount of” the claimant’s benefits award
(emphasis added)). But the SSA’s express authorization of
such payments undermines Ratliff’s case insofar as it
shows that Congress knows how to make fees awards
payable directly to attorneys where it desires to do so.
Given the stark contrast between the SSA’s express au
thorization of direct payments to attorneys and the ab
sence of such language in subsection (d)(1)(A), we are
reluctant to interpret the latter provision to contain a
direct fee requirement absent clear textual evidence sup
porting such an interpretation.
Ratliff contends that Congress’ 1985 amendments to
§206(b) of EAJA supply just such evidence, at least in
Social Security cases. See §3(2), 99 Stat. 186, note follow
ing 28 U. S. C. §2412. The 1985 amendments address the
fact that Social Security claimants may be eligible to
receive fees awards under both the SSA and EAJA, and
clarify the procedure that attorneys and their clients must
follow to prevent the windfall of an unauthorized double
recovery of fees for the same work. Section 206(b) pro
vides that no violation of law occurs “if, where the claim
ant’s attorney receives fees for the same work under both
[42 U. S. C. §406(b) and 28 U. S. C. §2412(d)], the claim
ant’s attorney refunds to the claimant the amount of the
smaller fee.” According to Ratliff, the fact that §206(b)
recognizes, or at least assumes, that an attorney will
sometimes “receiv[e]” fees under 28 U. S. C. §2412(d)
suggests that we should construe subsection (d)(1)(A) to
incorporate the same direct payments to attorneys that
the SSA expressly authorizes.
This argument gives more weight to §206(b)’s reference
to attorney “recei[pt]” of fees than the reference can bear.
Section 206(b)’s ensuing reference to the attorney’s obliga
Cite as: 560 U. S. ____ (2010) 9
Opinion of the Court
tion to “refun[d]” the amount of the smaller fee to the
claimant, which reference suggests that the award belongs
to the claimant in the first place, alone undercuts Ratliff’s
reading of “receives” as implying an initial statutory pay
ment to the attorney.4 And Ratliff’s reading is in any
event irreconcilable with the textual differences between
EAJA and the SSA we discuss above. Thus, even accept
ing Ratliff’s argument that subsection (d)(1)(A) is ambigu
ous, the statutory provisions she cites resolve any ambigu
ity in favor of treating subsection (d)(1)(A) awards as
payable to the prevailing litigant, and thus subject to
offset where the litigant has relevant federal debts.
The Government’s history of paying EAJA awards di
rectly to attorneys in certain cases does not compel a
different conclusion. The Government concedes that until
——————
4 Ratliffargues that fees awarded under 42 U. S. C. §406(b) can never
be “ ‘refund[ed]’ ” in this sense because SSA fees are “never paid initially
to the client.” Brief for Respondent 14 (emphasis in original). That is
not accurate. As we have explained, Social Security claimants and
attorneys normally enter into contingent-fee agreements that are
subject to judicial “review for reasonableness.” Gisbrecht v. Barnhart,
535 U. S. 789, 809 (2002). Where the court allows a fee, §406(b) per
mits the Commissioner to collect the approved fee out of the client’s
benefit award and to certify the fee for “payment to such attorney out
of” that award. §406(b)(1)(A). In such cases, the attorney would
“refun[d]” the fee to the client in the event that the attorney also
receives a (larger) EAJA award, because the attorney “receive[d]” the
SSA fee from the client’s funds. Similarly inaccurate is Ratliff’s sugges
tion that our construction of EAJA §206(b)’s reference to “refun[d]”
would preclude attorneys from collecting any fees from a prevailing
party until both SSA and EAJA payments are awarded. Our construc
tion does not alter or preclude what we have recognized as courts’
common practice of awarding EAJA fees at the time a court remands a
case to the Social Security Administration (Administration) for benefits
proceedings. Such awards often allow attorneys to collect EAJA fees
months before any fees are awarded under 42 U. S.C §406(b), because
§406(b) fees cannot be determined until the Administration enters a
final benefits ruling. See Shalala v. Schaefer, 509 U. S. 292, 295−302
(1993).
10 ASTRUE v. RATLIFF
Opinion of the Court
2006, it “frequently paid EAJA fees in Social Security
cases directly to attorneys.” Reply Brief for Petitioner 13.
But this fact does not alter our interpretation of subsec
tion (d)(1)(A)’s “prevailing party” language or the Govern
ment’s rights and obligations under the statute. As the
Government explains, it most often paid EAJA fees di
rectly to attorneys in cases in which the prevailing party
had assigned its rights in the fees award to the attorney
(which assignment would not be necessary if the statute
rendered the fees award payable to the attorney in the
first instance). The fact that some such cases involved a
prevailing party with outstanding federal debts is unsur
prising given that it was not until 2005 that the Treasury
Department modified the TOP to require offsets against
“miscellaneous” payments such as attorney’s fees awards.
And as Ratliff admits, the Government has since contin
ued the direct payment practice only in cases where “the
plaintiff does not owe a debt to the government and as
signs the right to receive the fees to the attorney.” Brief
for Respondent 28 (boldface deleted). The Government’s
decision to continue direct payments only in such cases is
easily explained by the 2005 amendments to the TOP, and
nothing about the Government’s past payment practices
altered the statutory text that governs this case or es
topped the Government from conforming its payment
practices to the Treasury Department’s revised regula
tions. For all of these reasons, neither EAJA nor the SSA
supports Ratliff’s reading of subsection (d)(1)(A).
Our cases interpreting and applying 42 U. S. C. §1988,
which contains language virtually identical to the EAJA
provision we address here,5 buttress this conclusion. Our
——————
5 Section 1988(b) provides that in actions covered by the statute and
subject to exceptions not relevant here, “the court, in its discretion, may
allow the prevailing party, other than the United States, a reasonable
attorney’s fee.”
Cite as: 560 U. S. ____ (2010) 11
Opinion of the Court
most recent cases applying §1988(b)’s “prevailing party”
language recognize the practical reality that attorneys are
the beneficiaries and, almost always, the ultimate recipi
ents of the fees that the statute awards to “prevailing
part[ies].” See, e.g., Venegas v. Mitchell, 495 U. S. 82, 86
(1990). But these cases emphasize the nonstatutory (con
tractual and other assignment-based) rights that typically
confer upon the attorney the entitlement to payment of
the fees award the statute confers on the prevailing liti
gant. As noted above, these kinds of arrangements would
be unnecessary if, as Ratliff contends, statutory fees lan
guage like that in §1988(b) and EAJA provides attorneys
with a statutory right to direct payment of awards. Hence
our conclusion that “the party, rather than the lawyer,”
id., at 87, is “entitle[d] to receive the fees” under §1988(b),
id., at 88, and that the statute “controls what the losing
defendant must pay, not what the prevailing plaintiff
must pay his lawyer,” id., at 90; see also Evans v. Jeff D.,
475 U. S. 717, 730−732, and n. 19 (1986) (explaining that
the “language of [§1988] . . . bestow[s] on the ‘prevailing
party’ (generally plaintiffs) a statutory eligibility for a
discretionary award of attorney’s fees” and does not “be
sto[w] fee awards upon attorneys” themselves (footnote
omitted)). These conclusions apply with equal force to the
functionally identical statutory language here.
* * *
We reverse the Court of Appeals’ judgment and remand
the case for further proceedings consistent with this
opinion.
It is so ordered.
Cite as: 560 U. S. ____ (2010) 1
SOTOMAYOR, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1322
_________________
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL
SECURITY, PETITIONER v. CATHERINE G. RATLIFF
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 14, 2010]
JUSTICE SOTOMAYOR, with whom JUSTICE STEVENS and
JUSTICE GINSBURG join, concurring.
I join the Court’s opinion because I agree that the text of
the Equal Access to Justice Act (EAJA) and our precedents
compel the conclusion that an attorney’s fee award under
28 U. S. C. §2412(d) is payable to the prevailing litigant
rather than the attorney. The EAJA does not legally
obligate the Government to pay a prevailing litigant’s
attorney, and the litigant’s obligation to pay her attorney
is controlled not by the EAJA but by contract and the law
governing that contract. That conclusion, however, does
not answer the question whether Congress intended the
Government to deduct moneys from EAJA fee awards to
offset a litigant’s pre-existing and unrelated debt, as the
Treasury Department began to do only in 2005 pursuant
to its authority under the Debt Collection Improvement
Act of 1996 (DCIA). 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. Because such offsets undercut the effec
tiveness of the EAJA and cannot be justified by reference
to the DCIA’s text or purpose, it seems probable that
Congress would have made, and perhaps will in the future
make, the opposite choice if clearly presented with it.
In enacting the EAJA, Congress found “that certain
2 ASTRUE v. RATLIFF
SOTOMAYOR, J., concurring
individuals, partnerships, corporations, and labor and
other organizations may be deterred from seeking review
of, or defending against, unreasonable governmental
action because of the expense involved in securing the
vindication of their rights in civil actions and in adminis
trative proceedings.” §202(a), 94 Stat. 2325, note following
5 U. S. C. §504, p. 684 (Congressional Findings). As we
have often recognized, “the specific purpose of the EAJA is
to eliminate for the average person the financial disincen
tive to challenge unreasonable governmental actions.”
Commissioner v. Jean, 496 U. S. 154, 163 (1990); see also
Scarborough v. Principi, 541 U. S. 401, 406 (2004) (by
“expressly authoriz[ing] attorney’s fee awards against the
Federal Government,” Congress sought “ ‘to eliminate the
barriers that prohibit small businesses and individuals
from securing vindication of their rights in civil actions
and administrative proceedings brought by or against the
Federal Government’ ” (quoting H. R. Rep. No. 96–1005, p.
9 (1979))); Sullivan v. Hudson, 490 U. S. 877, 883 (1989)
(the EAJA was designed to address the problem that
“ ‘[f]or many citizens, the costs of securing vindication of
their rights and the inability to recover attorney fees
preclude resort to the adjudicatory process’ ” (quoting
S. Rep. No. 96–253, p. 5 (1979))). EAJA fee awards, which
average only $3,000 to $4,000 per case, have proved to be
a remarkably efficient way of improving access to the
courts for the statute’s intended beneficiaries, including
thousands of recipients of Social Security and veteran’s
benefits each year.1 Brief for Respondent 4–5; see also
Jean, 496 U. S., at 164, nn. 12–13.
——————
1 The EAJA makes fee awards available to challenge Government
action under a wide range of statutes, but, as respondent notes, the
vast majority of EAJA awards are made in these two contexts, with
Social Security cases representing the lion’s share. Brief for Respon
dent 4–5; Brief for National Organization of Social Security Claimants’
Representatives et al. as Amici Curiae 22–23.
Cite as: 560 U. S. ____ (2010) 3
SOTOMAYOR, J., concurring
The EAJA’s admirable purpose will be undercut if law
yers fear that they will never actually receive attorney’s
fees to which a court has determined the prevailing party
is entitled. The point of an award of attorney’s fees, after
all, is to enable a prevailing litigant to pay her attorney.
See, e.g., Missouri v. Jenkins, 491 U. S. 274, 285 (1989)
(“We . . . take as our starting point the self-evident propo
sition that the ‘reasonable attorney’s fee’ provided by [42
U. S. C. §1988] should compensate” for “the work product
of an attorney”); Hensley v. Eckerhart, 461 U. S. 424, 435
(1983) (“Where a plaintiff has obtained excellent results,
his attorney should recover a fully compensatory fee”). We
have accordingly acknowledged that in litigants’ motions
for attorney’s fees, “the real parties in interest are their
attorneys.” Gisbrecht v. Barnhart, 535 U. S. 789, 798, n. 6
(2002). Subjecting EAJA fee awards to administrative
offset for a litigant’s debts will unquestionably make it
more difficult for persons of limited means to find attor
neys to represent them. See, e.g., Brief for National Or
ganization of Social Security Claimants’ Representatives
et al. as Amici Curiae 25 (hereinafter NOSSCR Brief).
In its arguments before this Court, the Government
resists this self-evident conclusion, but each of the three
reasons it proffers is unpersuasive. First, the Government
suggests that because EAJA fee awards are limited to
those circumstances in which the Government’s position is
not “substantially justified,” 28 U. S. C. §2412(d)(1)(A), no
lawyer can rely on an EAJA fee award when deciding to
take a case, so the possibility of an offset eliminating the
award will play no additional role in the lawyer’s deci
sion.2 Reply Brief for Petitioner 16–17. But it is common
——————
2 In its brief, the Government downplays the frequency with which fee
awards under the EAJA are made. At oral argument, respondent’s
counsel represented that EAJA fee awards are made in 42% of Social
Security cases in which the claimant prevails and in 70% of all vet
eran’s benefits cases filed. Tr. of Oral Arg. 42–43. The Government did
4 ASTRUE v. RATLIFF
SOTOMAYOR, J., concurring
sense that increasing the risk that an attorney will not
receive a fee award will inevitably decrease the willing
ness of attorneys to undertake representation in these
kinds of cases.
Second, the Government contends that any disincentive
the fear of administrative offset may create is mitigated in
the Social Security context by the Social Security Act’s
independent provision authorizing a fee award payable
directly to the attorney. See id., at 17–18 (citing 42
U. S. C. §406(b)(1)(A)). But as the Government acknowl
edges, the “EAJA’s fee-shifting provisions are potentially
more generous than [the Social Security Act’s] in at least
three respects”: (1) A court may not award attorney’s fees
under the Social Security Act, but may under the EAJA,
when the claimant wins only a procedural victory and does
not obtain any past-due benefits; (2) fees under the Social
Security Act are limited to a percentage of benefits
awarded, while EAJA fees are calculated under the lode
star method by examining the attorney’s reasonable hours
expended and her reasonable hourly rate; and (3) in con
trast to the Social Security Act, fees may be awarded
under the EAJA in addition to, rather than out of, the
benefits awarded. Brief for Petitioner 6–7. EAJA awards
thus provide an important additional incentive for attor
neys to undertake Social Security cases.
Finally, the Government argues that lawyers can easily
determine at the outset whether a potential client owes
the Government a debt and can then assist the client in
establishing a written repayment plan that would prevent
an offset. Reply Brief for Petitioner 18. At oral argument,
however, the Government acknowledged that it was not
——————
not contest the number for Social Security cases but suggested that the
percentage of veteran’s benefits cases resulting in EAJA awards is
closer to 50% or 60%. Id., at 52. Under either estimate, these are
hardly vanishing odds of success for an attorney deciding whether to
take a client’s case.
Cite as: 560 U. S. ____ (2010) 5
SOTOMAYOR, J., concurring
aware of any instance in which this has happened in the
five years since it began subjecting EAJA fee awards to
administrative offset. Tr. of Oral Arg. 12–13. It is not
difficult to understand why. Helping a client establish a
repayment plan would be a time-consuming endeavor
uncompensated by any fee-shifting provision, and a client
who needs such assistance is unlikely to have the funds to
pay the attorney for that service. If the Government is
instead suggesting that a lawyer can simply decline to
represent a prospective client once she knows of the cli
ent’s debtor status, that suggestion only proves my point.
Cf. NOSSCR Brief 25 (describing deterrent effect of offsets
on representation).
In the end, the Government has no compelling response
to the fact that today’s decision will make it more difficult
for the neediest litigants to find attorneys to represent
them in cases against the Government. I “find it difficult
to ascribe to Congress an intent to throw” an EAJA liti
gant “a lifeline that it knew was a foot short. . . . Given the
anomalous nature of this result, and its frustration of the
very purposes behind the EAJA itself, Congress cannot
lightly be assumed to have intended it.” Sullivan, 490
U. S., at 890.
The Government suggests that it is possible to glean
such intent from the fact that Congress did not expressly
exempt EAJA awards from administrative offset under the
DCIA. Reply Brief for Petitioner 19–20; 31 U. S. C.
§3716(c)(1)(C) (specifying certain federal payments that
are not subject to administrative offset); see also 31 CFR
§285.5(e)(2) (2009) (identifying payments that are not
subject to administrative offset because of a statutory
exemption). If “application of the offset program to such
awards will make it more difficult for Social Security
claimants or other litigants to find attorneys,” the Gov
ernment contends, the “provisions that govern the offset
program indicate that Congress is willing to bear that
6 ASTRUE v. RATLIFF
SOTOMAYOR, J., concurring
cost.” Reply Brief for Petitioner 20. The history of these
provisions indicates otherwise. For more than two dec
ades after the EAJA was enacted in 1980, the Commis
sioner of Social Security “consistently paid” EAJA fee
awards directly to the attorney, not the prevailing party.
Stephens ex rel. R. E. v. Astrue, 565 F. 3d 131, 135 (CA4
2009); see also Bryant v. Commissioner of Social Security,
578 F. 3d 443, 446 (CA6 2009); cf. ante, at 3, n. 3, 9–10.
“In fact, the Commissioner created a direct deposit system
for attorneys and issued [Internal Revenue Service] 1099
forms directly to the attorneys who received awards, not
ing the awards as taxable attorney income.” Stephens, 565
F. 3d, at 135. Not until 2005, when the Treasury Depart
ment extended the offset program to cover “miscellaneous”
federal payments, including “fees,” did the Commissioner
cease paying EAJA fee awards directly to attorneys and
adopt the position that the awards were appropriately
considered the property of the prevailing party. Id., at 136(internal quotation marks omitted); see also Bryant, 578
F. 3d, at 446; ante, at 2, 10. Congress therefore had no
reason to include a specific exemption of EAJA fee awards
(in the Social Security context or otherwise) from the offset
program when it enacted the DCIA in 1996.
I am further reluctant to conclude that Congress would
want EAJA fee awards to be offset for a prevailing liti
gant’s unrelated debts because it is not likely to effectuate
the DCIA’s purpose of “maximiz[ing] collections of delin
quent debts owed to the Government by ensuring quick
action to enforce recovery of debts and the use of all ap
propriate collection tools.” §31001(b)(1), 110 Stat. 1321–
358. This purpose would be better served if claimants are
able to find attorneys to help them secure the benefits
they are rightfully owed in the first place, thereby making
available a source of funds to permit repayment of the
claimants’ Government debts at all. See NOSSCR Brief
32; see also 31 U. S. C. §3716(c)(3)(A) (after initial $9,000
Cite as: 560 U. S. ____ (2010) 7
SOTOMAYOR, J., concurring
annual exemption, Social Security benefits are subject to
administrative offset).
While I join the Court’s opinion and agree with its tex
tual analysis, the foregoing persuades me that the practi
cal effect of our decision “severely undermines the
[EAJA’s] estimable aim. . . . The Legislature has just cause
to clarify beyond debate” whether this effect is one it
actually intends. Bartlett v. Strickland, 556 U. S. 1, __
(2009) (GINSBURG, J., dissenting) (slip op., at 1).