Administrative Offset of Attorney Fees Under the Equal Access to Justice Act
DATE: June 29, 2012
TO: State and Tribal IV-D Directors
FROM: Vicki Turetsky, Commissioner, Office of Child Support Enforcement
SUBJECT: Administrative Offset of Attorney Fees Under the Equal Access to Justice Act (EAJA)
We have received inquiries asking for policy guidance regarding the administrative offset of attorney’s fees awarded under the Equal Access to Justice Act.
The Equal Access to Justice Act, 5 U.S.C. § 504; 28 U.S.C. § 2412, (EAJA) provides for the award of attorney’s fees (up to $125 per hour) and other expenses to a plaintiff who is successful in litigation against the government.
QUESTION 1: If a plaintiff wins a claim for benefits against the Social Security Administration and part of the claim includes his or her attorney fees, is that fee paid to the plaintiff or to the attorney?
RESPONSE 1: The Supreme Court of the United States ruled in Astrue v. Ratcliff, 130 S.Ct. 2521 (2010), that attorney fees are to be paid to the prevailing party and not the attorney (28 U.S.C. §2412(d)(1)(A)). Even though the attorney may have a beneficial interest or a contractual right in the fees awarded, the statute awards the claim, including attorney fees, to the prevailing party.
QUESTION 2: If the plaintiff is a noncustodial parent (NCP) owing past-due child support, can the attorney’s fee awarded under the EAJA be administratively offset to satisfy his or her debt?
RESPONSE 2: The Supreme Court also held that, since the attorney fees under the EAJA are to be paid directly to the prevailing party, in this case the NCP, they can be administratively offset to satisfy certain eligible debts owed by the NCP. Because the Debt Collection Improvement Act (DCIA) allows certain federal payments to be administratively offset to collect past-due child support obligations, past-due child support is an eligible debt.
Therefore, attorney’s fees can be administratively offset to satisfy past-due child support. All payments that are eligible for offset under the DCIA, other than federal tax refunds, are categorized as "administrative" offsets (Debt Collection Improvement Act of 1996, P.L. 104-134, 31 U.S.C. 3701, et seq.; and 31 CFR 285.1).
cc: ACF/OCSE Regional Program Manager