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Lawyers, guns and money go to court

ImageIn its first orders granting certiorari for the new term beginning Oct. 5, the U.S. Supreme Court has agreed to consider whether the Second Amendment applies to the states.

The court will review the Seventh Circuit’s holding in NRA v. City of Chicago (PDF), 567 F.3d 856 (7th Cir. 2009), rejecting a challenge to municipal ordinances in Chicago and Oak Park, Ill., which banned citizens from possessing handguns in their own homes.

The court has also agreed to consider whether attorney fees awarded under the Equal Access to Justice Act (EAJA) belong to the attorney or the client. If the fee award belongs to the client, it is subject to offset if the client owes the government back taxes. If it belongs to the attorney, the offset is not allowed.

The respondent is attorney Catherine G. Ratliff, who successfully represented two claimants in obtaining benefits from the Social Security Administration. She then moved for fees under the EAJA, which were granted.

However, the government reduced the fee award because of other debts her clients owed. The district court held that, because the fees were awarded to the clients, not their attorney, Ratliff lacked standing to challenge the offset.

The Eighth Circuit reversed, Ratliff v. Astrue (PDF), 540 F.3d 800 (8th Cir. 2008), relying on prior precedents to hold that fees awarded under the EAJA could not be recovered by a third-party creditor of the client.

The court acknowledged that other circuits have held that the EAJA unambiguously gives the award to the “party,” and thus the government can offset the award by the party’s debt to it. Reeves v. Astrue, 526 F.3d 732 (11th Cir. 2008); Manning v. Astrue, 510 F.3d 1246 (10th Cir. 2007).

But the Eighth Circuit stuck by its own precedent, holding that the fee belongs to the attorney.

One of the three judges on the panel did write a concurring opinion expressing the opinion that, while the court is bound by its own precedent, the other circuits have it right.

Besides the fact that the EAJA gives the award to the “party,” Judge Raymond Gruender cited U.S. Supreme Court opinions in civil rights actions which state that the attorney fee award belongs to the party, rather than the attorney. Venegas v. Mitchell, 495 U.S. 82, 88-89 (1990); Evans v. Jeff D., 475 U.S. 717, 730 (1986).

Gruender acknowledged, “I recognize the policy argument that Congress created the EAJA to encourage attorneys to provide representation in certain cases where they might otherwise be unwilling and that to hold that the attorney’s fees belong to the client might frustrate this purpose. …[But] Congress knows how to ensure that attorney’s fees be awarded directly to the attorney and plainly chose to award the fees to the party when it enacted the EAJA.”

More Seventh Circuit cases

Of the ten cases in which the court granted certiorari, two others arose in the Seventh Circuit: Lewis v. City of Chicago (PDF), No. 08-974; and Carr v. U.S. (PDF), No. 08-1301.

In Lewis, the court will consider whether under Title VII’s disparate impact’s provision, a plaintiff must file an EEOC charge within 300 days after the announcement of an allegedly discriminatory practice, or within 300 days after implementation.

The Seventh Circuit held that the plaintiff firefighters’ claims were time-barred, because they failed to file within 300 days of the city’s announcement that few black applicants had rated “well qualified” on a test required for promotion.

In Carr, the court will consider whether a person can be prosecuted for failure to register as a sex offender, when the underlying offense and the travel in interstate commerce both predate the enactment of the Sex Offender Registration and Notification Act (SORNA).

The Seventh Circuit held that a sex offender must register within a “reasonable time” after enactment of SORNA, unless he can show that he could not do so because of “uncontrollable circumstances,” such as a coma.


  1. The “Incorporation doctrine” is nothing more than legal BS perpetrated by corrupt courts so they could rationalize the violation of both the US Constitution and their Oaths to uphold it as the “supreme law of the land.”

    The original text of the US Constitution contained language “incorporating” it entirely against the states. Simply read Article IV, Sections 1 and 2 and Section VI. You know phrases like, “The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” And, “This Constitution,…, shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.” And, “… all executive and judicial Officers, both of the United States and of the several States shall be bound by Oath or Affirmation, to support this Constitution; ….”

    Plus, all the States were required to “ratify” the US Constitution. Why be required to ratify something if you’re NOT being required to comply with it?

    If SCOTUS rules against incorporation of the 2nd Amendment, it will have to go against all the other incorporation cases it has decided the last century or so. And, it will be prima facie evidence of Judicial Activism on the nation’s highest court.

    And the Justice system has the power to punish citizens for “contempt of court”? My question is, “Just how the hell can any patriotic American have anything but contempt for our courts these days.”

    It’s all a legal crock of crap! We need to cleanup the so-called Justice system while we’re at it.

    Here’s one example that thoroughly ticks me off!

    The First Amendment MAY be the ONE amendment that was not intended to apply against the States. The reason is that it starts off, “Congress shall make no law ….”

    It is my understanding that SCOTUS has ruled in the past that the 1st Amendment IS incorporated against the States.

    If the courts are NOT corrupt, how can they logically and with integrity, rule that an amendment beginning with, “Congress shall make no law…” is “incorporated against the states” but one that contains the phrase, “SHALL NOT BE INFRINGED” is NOT?

    The “real” answer is they CAN’T!!!

  2. My question is, “How can you exercise your God-given right to self-defense (imbued in the 2nd Amendment) if you can’t ‘bear’ arms outside your home?” In Heller, if I remember correctly, Scalia said Americans have the right to self-defense which means the right to bear arms, “…loaded and available for immediate use…” (or words to that effect). Also, personally, I think there are problems with Scalia’s assertion that the right can be restricted in “sensitive places.” I think the only “sensitive places” whereby the government can legitimately restrict the right would be locations whereby ALL who enter are searched or scanned by metal detectors, armed security is provided and the gov’t assumes full responsibility for everyone’s safety!

  3. Writer Ziemer has the wrong gun case. SCOTUS agreed to hear McDonald v. Chicago; not NRA v. Chicago. SCOTUS probably will not rule on NRA v. Chicago, until after it has ruled on McDonald.

  4. Every other amendment has been “incorporated” into the 14th Amendment and so this one must be as well. One trait shared by all totalitarian governments is a ban on personal gun ownership. Those cities in the US which have the most stringent gun-control laws also have the most gun-related crimes. Criminals don’t care about those laws leaving the honest public defenseless. It is ironic that judges who benefit from the highest security in the world will be ruling on whether the public, which is not only defenseless, but often victimized by government, will be allowed to defend themselves in their own homes. My guess is the court will find the Chicago restrictions reasonable and keep pushing this country down the road to totalitarianism.

  5. luis, you are correct that the case is mcdonald, a companion case to nra v. chicago. but the issue — incorporation — is the same.

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