House Republicans dropped a round on low-income veterans and Social Security recipients. Legal-fee aid cut hits vets, elderly

Talk about collateral damage!

Taking aim at environmentalists last week, House Republicans dropped a round instead on low-income veterans and Social Security recipients, making it harder for them to retain counsel when taking on the government.


Adopted by 232-197, the budget amendment imposes a seven-month moratorium on all legal fees paid under the Equal Access to Justice Act (EAJA), a Reagan-era law designed to help the little guy battle Washington by making it easier for him to afford an attorney.

Conservatives from Reagan’s own West were the driving force, accusing environmentalists of turning EAJA into a taxpayer-financed, money-machine for lawsuits harassing ranchers. But thousands of veterans and elderly found themselves swept under in the process, losing their ability to retain counsel in disputes with government agencies.

It’s not on the level of 1981 when the House briefly cut off minimum Social Security benefits for thousands of elderly Roman Catholic nuns. But with U.S. troops fighting overseas, taking away lawyers from low-income veterans can get pretty close.

Robert Chisholm, a Rhode Island attorney prominent in veterans’ law, told POLITICO: “We’re in the middle of two wars right now and to make it harder for a veteran — fighting for his benefits — to have an attorney is a horrible thing. That’s not what this country is about.”

The story of EAJA’s impact is told by data compiled in the annual reports posted by the United States Court of Appeals for Veterans Claims.

For a veteran to have any solid chance of success, retaining counsel becomes more important as each case proceeds. And among those appeals which reach a decision on the merits, a very high percentage correspond with EAJA applications and fees paid for attorneys.

For example, about a quarter of all the cases in 2009 were dismissed on procedural grounds, but of the remaining 3270, EAJA-backed attorneys were decisive. As many as 2385 applications for fees were granted: that’s about 73 percent of all the cases decided, and since awards are made truly only in those cases where the citizen wins, EAJA attorneys are a still higher percentage measured against that standard.

“It’s going to adversely affect a lot of veterans” said Ronald Smith, another attorney with long experience before the court. “It would hurt a lot of veterans, that is for sure.”

Smith — who is part of the intellectual property giant Finnegan, Henderson, Farabow, Garrett & Dunner — does his work pro bono: the EAJA fees are collected from Veterans Affairs and then given to charity.

But as a practical matter, the typically below market-rate EAJA fees are important for many attorneys to “keep the lights on and pay the rent” Smith said while being available to veterans.

In the case of Social Security, claimants don’t have a special court to go to like veterans and are spread among federal district courts around the nation. In 2010, for example, there were as many as 12,143 decisions, about half of which were remanded back to the government or allowed directly in favor of the client.

Precise data on the level of EAJA awards is harder to get, but Nancy Shor, executive director of NOSSCR, an attorneys’ group representing beneficiaries, said the House’s “blanket” removal of all fees would tilt the odds against lower-income elderly who can’t afford an attorney.

“Over the past 30 years, EAJA has leveled the playing field for claimants by ensuring the availability of counsel,” she said, “We oppose this amendment because it would so unfairly turn Social Security and veteran claimants away from the federal court system.

There is confusion still as to why the Republican amendment reached so far, when the primary targets were environmental lawsuits and, specifically, those EAJA payments made by Western lands and wildlife agencies within the Interior Department.

Hayley Douglass, a spokesperson for Rep. Cynthia Lummis (R-Wyo.), the chief sponsor, said House rules made it hard to refine the language and Lummis was “well aware” that all payments “good, bad or indifferent” would be blocked through Sept. 30 if the amendment is enacted. But within those seven months, the congresswoman intended to introduce a reform bill to address what she sees as abuses in EAJA and make the system more transparent.

“The amendment was intended to highlight abuses, not to overturn EAJA,” Douglass told POLITICO.

Nonetheless, people familiar with House procedure said that exceptions could have been carved out for veterans and Social Security claimants if the sponsors had wished. Or the amendment targeted better to apply specifically to Interior alone.

“You’re going to be disempowering for the most part, Social Security and veterans cases that otherwise would not be able to be brought against the federal government,” said Rep. Edward Markey (D-Mass.) in floor debate. “You guys are here representing big government against the essence, the heart and soul of the tea party movement..”