Opening Merits Brief for Petitioner in Culbertson V. Berryhill, No. 17-773

Abstract

In Gisbrecht v. Barnhart, 535 U.S. 789, 793-94 (2002), the United States Supreme Court held that 42 U.S.C. § 406(a) governs fees for representation in administrative proceedings for individuals claiming Social Security old-age, survivor, or disability benefits, while § 406(b) governs fees for representation in court for those claimants. Section 406(b)(1)(A) allows a court, whenever a judgment is rendered in favor to a claimant who was represented before the court by an attorney, to determine a reasonable fee as part of the judgment for such representation, but “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.” This opening merits brief argues that a court should not consider fees awarded under § 406(a) as subject to § 406(b)’s 25-percent cap.

Keywords: Title II of the Social Security Act, judicial representation fees, administrative representation fees, 25-percent cap