Astrue v. Ratliff

(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).