Earlier today, I wrote to express the following thoughts and opinions to Senator Mary Landrieu, Senator David Vitter, and Congressman Charles Boustany:

Dear Elected Representatives:

I am writing to respectfully urge you to oppose Amendment 195 to the House’s Continuing Resolution.  Amendment 195 would temporarily suspend the payment of attorneys’ fees under the Equal Access to Justice Act (EAJA), 5 U.S.C.A. § 504.  The passage of Amendment 195 into law would make it nearly impossible for Social Security claimants to appeal adverse decisions by the Social Security Administration (SSA).

When your constituents apply for Social Security Disability Insurance Benefits (DIB), SSA, an executive branch agency, makes an administrative decision on the application.  On occasion, SSA renders fundamentally flawed decisions that violate a claimant’s right to due process.  The only way to remedy these violations is to file a civil action in a United States District Court against SSA.

I am one of the few attorneys in Southwest Louisiana that routinely represents Social Security claimants in federal court, and I prosecute these cases on essentially a contingent basis.  If the claimant prevails, then under EAJA, I can petition the court to be paid on an hourly basis for my time.  If the claimant loses, I receive no fee at all.  Accordingly, I only bring meritorious cases.

My clients do not have the means to pay me out of pocket to appeal a case to federal court because they are all out of work and have no income.  To be eligible for disability benefits, claimants must be out of work for at least one year; thus, without the availability of EAJA fees, disabled workers have no way to seek redress in federal court for the SSA’s violation of their due process rights.  This is of particular concern since DIB is financed by FICA taxes deducted from every paycheck a worker earns.  In other words, after SSA takes hard-earned money out of a worker’s paycheck to fund DIB, it can then can arbitrarily deny a worker’s claim after he or she becomes disabled.  Without the availability of EAJA fees, SSA’s arbitrary violations of claimants’ due process rights will go unremedied.  

EAJA was passed to correct this very problem, because as you know, a right without a remedy is no right at all. Yes, economic times are tough, but stripping fundamental protections from disabled workers is not the solution.  So long as SSA decides claims in a reasonable fashion and in accordance with due process, there is no need to bring cases to federal court or to pay EAJA fees.  Allowing Amendment 195 to pass into law, however, will remove a necessary check on SSA, will undermine the separation of powers between the executive and judicial branches, and will leave some of your most vulnerable constituents with no practical way to remedy violations of their right to due process under the U. S. Constitution.

If you or your staff would like further information on the issues discussed herein, please feel free to contact me or the National Association of Social Security Claimants’ Representatives (NOSSCR), of which I am a sustaining member.

In closing, I respectfully urge you to oppose Amendment 195 to the Continuing Resolution. 

Sincerely, 

Matthew D. Lane, Jr.