On January 8, 2019, the U.S. Supreme Court issued a unanimous opinion in Culbertson v. Berryhill, 586 U.S. ____ (2019), holding that 42 USC § “406(b)(1)(A)’s 25% cap applies only to fees for court representation and not to the aggregate fees awarded under §§ 406(a) and (b).” The 11th Circuit decision limiting the fees to an aggregate of 25% is reversed and remanded.
The Court reasoned that the Social Security Act addresses fees in administrative proceedings separately from those in court proceedings. 42 USC § 406(b), which states that a court may award “a reasonable fee for such representation, not in excess of 25%” of past-due benefits (emphasis added) refers only to the representation described in this section, which is “represent[ation] before the court.” Section 406(a)(1), which involves the use of the fee petition, permits the agency to set any “reasonable” fee. In the case of the fee agreement (406(a)(2)(A)) the fee must be the lesser of 25 % of past due benefits of the amount set by the Commissioner. Although Culbertson’s client paid an EAJA fee as well, the issue of the EAJA offset was not in the question presented and was not discussed by the Court.
The Supreme Court also concluded that the fact that SSA withholds a single pool of 25% of past-due benefits for direct payment is not relevant to the total amount of the fee that can be authorized for representation before the agency or the court. “Any concerns about a shortage of withheld benefits for direct payment and the consequences of such a shortage are best addressed to the agency, Congress, or the attorney’s good judgment.”