Culbertson -- Predictions

Culbertson v. Berryhill - a case in which the Supreme Court granted certiorari to resolve the split in the circuits.  The question presented:

QUESTION PRESENTED:

"Fees   for [the] representation of individuals claiming Social Security old-age, survivor, or disability benefits [at] the administrative and judicial review stages [are handled] discretely: [42 U.S.C.] § 406(a) governs fees for representation in administrative proceedings; § 406(b) controls fees for representation in court.” Gisbrecht v. Barnhart, 535 U.S. 789, 793- 794 (2002).  Section 406(b) specifies in particular that

[w]henever a court renders a judgment favorable to a claimant * * * who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due  benefits to which the claimant is entitled by reason of such judgment.

42 U.S.C. § 406(b)(l)(A) (emphasis added).

The question presented is:  Whether fees subject to § 406(b)'s 25-percent cap include, as the Sixth, Ninth, and Tenth Circuits hold, only fees for representation in court or, as the Fourth, Fifth, and Eleventh Circuits hold, also fees for representation before the agency.

 The chances of the Supremes granting certiorari went way up when the Solicitor General agreed that the Court should resolve the split among the circuits.  Is there a de jur 25% cap on fees when cases go to federal court?  We know that there is no cap if a case is resolved at the agency level only -- just a reasonableness cap.

So we all entered the merits stage sitting fat and happy -- the Supreme Court was going to agree that there did not exist a cumulative cap on fees under section 406(a) and (b), just a 25% cap on fees under 406(b).  The SG threw a curveball.  While a de jur 25% cumulative cap on fees did not exist, the agency and the courts could exercise their discretion to impose a 25% cap when the courts believed that a reasonable fee should not exceed 25% of the past due benefits.

So here are my predictions:

1.  Culbertson will win a pyrrhic victory.  The Supreme Court will vacate and remand back to the 11th Circuit the fee petition where the court will entertain the question of whether Culbertson can or should get 25% of the past due benefits plus keep the EAJA fee and the 11th Circuit will say "no."

2.  Whichever decides fees second, the agency or the court, will take the decision in Culbertson as permission if not a mandate to limit the aggregate fees in court remand cases to a de facto cumulative cap of 25% of the past due benefits.

3.  Neither party nor any amicus to date has explained why the attorneys would ever want overlapping or coterminous fees that exceed 25% of the past due benefits and so the Court will assume that no good reason exists other than trying to avoid the mandatory reimbursement provisions of the Equal Access to Justice Act.

4.  Attorneys that share fees to even out the 25% distribution on a pro rata basis will lose that ability because it will remain a crime for either to receive an unauthorized fee.

5.  In the anti-claimant representative era, the practice of  Social Security law will get more cumbersome thanks to Mr. Culbertson.

We can all expect changes that will not be good in the long run.  This arises from the desire to avoid the uncodified portions of the EAJA to refund to the claimant the smaller of the two fees under the EAJA and 406(b).