Lawyers, guns and money go to court

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In 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.