One might think that the market for treatments of the life and legacy
of Justice Ruth Bader Ginsburg would be saturated by now. The past
three years alone have seen the release of a carefully curated
collection of the justice’s writings, “My Own Words,” a surprise hit
documentary about her life and career, “RBG,” and a recent feature film,
“On the Basis of Sex,” which focuses on the first sex-discrimination
case Ginsburg argued in federal court. Now comes “Ruth Bader Ginsburg: A Life,”
by Jane Sherron De Hart, a retired professor of history at the
University of California, Santa Barbara. This book began as a research
project examining Ginsburg’s early career as a women’s-rights litigator
at the American Civil Liberties Union, and it expanded into a
full-length biography (540 pages of text and 110 pages of footnotes).
Ginsburg spoke at length to the author during the early, limited part
of the project, but she curtailed her cooperation later, likely because
an authorized biography was (and remains) in the works. Whether because
of De Hart’s own initial interest or the benefits of consultation with
Ginsburg, the book is strongest when it focuses on Ginsburg’s early life
and her work before her appointment to the U.S. Court of Appeals for
the District of Columbia Circuit in 1980. Readers will meet straight-A
student and Brooklyn baton-twirler “Kiki” Bader, whose mother Celia died
of cancer two days before Kiki’s high-school graduation. They will
shake their heads at the notion that Ginsburg, although graduating at
the top of her class from Columbia Law School, was offered a clerkship
with a federal judge only after her law professor Gerald Gunther offered
to substitute another (presumably male) candidate if Ginsburg did not
pan out. And they will be touched by Ginsburg’s enduring partnership
with her husband, Marty, who, as Ginsburg has said, “believed in me more
than I believed in myself.”
Some of De Hart’s most valuable insights come in her account of how
Ginsburg, who, in an effort “not [to] be considered confrontational,”
responded to Harvard Law School Dean Erwin Griswold’s query about why
she was occupying a place in the first-year class that could have gone
to a man by saying it was important for her to “understand her husband’s
work,” came to espouse women’s rights so whole-heartedly. De Hart
traces some through lines that help explain how Ginsburg developed the
ideas of equality that informed her determination to secure equal
treatment for women under the law. Notable among these was a fortuitous
sojourn in Sweden to research Swedish civil procedure. Ginsburg was
struck by “the greater gender equality Swedes enjoyed” and by Swedish
theorists’ and social scientists’ contention that “culturally
constructed roles – stereotypical assumptions about the proper role of
men and women – imposed constraints on both sexes that penalized
individuals and impoverished society.”
Ginsburg’s experiences in Sweden, coupled with the sexism she had
experienced and the influence of feminist writers like Simone de
Beauvoir, prompted her to helm the ACLU’s new Women’s Rights Project.
Her analytical tenacity, single-minded focus on work, meticulous
planning, and uncompromisingly high standards enabled her to devise and
carry out her goals successfully. De Hart offers detailed accounts of
the series of cases through which Ginsburg succeeded in persuading the
Supreme Court to raise the standard of review for laws that treated men
and women differently based on damaging stereotypes about gender roles.
She observes, as have others before her, that Ginsburg’s incremental
approach – building in small steps on early cases with sympathetic
plaintiffs, often men – was modeled on Justice Thurgood Marshall’s
strategy of combating racial discrimination as a litigator for the
NAACP. But she also highlights the pitfalls of equating gender
discrimination with racial discrimination, particularly as an
increasingly conservative Supreme Court began to insist on a “color
blind” approach to the Constitution that subjected affirmative action
programs to strict scrutiny.
Readers familiar with the pop-culture trope of Ginsburg as a fearless
champion of liberal ideals may be surprised by De Hart’s reminder that
the justice’s nomination was almost forestalled by her criticism of Roe v. Wade,
which she publicly suggested may have done abortion rights a disservice
by, among other things, leapfrogging legislative change and prompting a
powerful political backlash. De Hart exposes the rifts within the
feminist movement that led President Bill Clinton to respond, when
Ginsburg’s name was first floated, that “the women are against her.”
De Hart’s account of Ginsburg’s years on the Supreme Court, though
detailed and methodical, is less compelling, perhaps because De Hart had
to rely on oral argument transcripts and opinions instead of interviews
and the contemporaneous documents of the justices, most of which are
not publicly available. Also evident in this section of the book is De
Hart’s unhappiness with the conservative bent of the current Supreme
Court. Although this ideological stance is not surprising given the
clear respect for Ginsburg’s work that led De Hart to write this book,
the author’s stridency sometimes detracts from her analysis.
These criticisms aside, De Hart offers the reader a comprehensive
tour of Ginsburg’s Supreme Court career. She catalogs the justice’s
occasional victories, like United States v. Virginia,
in which Ginsburg wrote a majority opinion striking down the Virginia
Military Institute’s male-only admission policy, and her more frequent
setbacks. Those setbacks spurred Ginsburg to write the strong dissents
that inspired her pop-culture persona, the “Notorious RBG.”
Court-watchers humorously compared her scathing critique of the
conservative majority’s decision in a landmark voting-rights case to
Biggie Smalls’ biting rap lyrics. The rest is history – and shelves full
of RBG merchandise.
A central question in the book is how a tiny, soft-spoken
civil-procedure maven memorably described by Justice Harry Blackmun
after an oral argument as a “very precise female” became a progressive
icon. To some degree, this apparent contradiction simply reflects the
differing facets of the justice’s personality: She is a detail-oriented
workaholic who is moved to tears by grand opera, an ambitious achiever
who delights in friends and family, and a rule-follower willing to
rewrite the rules to correct injustice. In another sense, Ginsburg’s
perceived evolution from “a woman for whom the word ‘moderate’ dangled
from her wrist like an ID bracelet” to the inspiration for a
Kickstarter-funded action figure is a function of the increasing
conservatism of the Supreme Court. Yesterday’s New Deal moderate is
today’s left-wing dissenter. In the immortal words of Norma Desmond in
“Sunset Boulevard” – whom Ginsburg otherwise resembles only in her
fondness for wearing turbans – “I am big. It’s the pictures that got
small.”
The author of this book review clerked for Ginsburg from
1989-1990 on the U.S. Court of Appeals for the District of Columbia
Circuit and testified before the Senate Judiciary Committee in support
of Ginsburg’s nomination to the Supreme Court in 1993.
The post Book review: “Ruth Bader Ginsburg”: The evolution of a justice appeared first on SCOTUSblog.
Friday, January 11, 2019
No Cap On Attorneys' Fees For Lawyers Representing Social Security Claimants
Opinion analysis: Social Security cap on attorney’s fees applies separately to successful representation before a court
The case turned on the meaning of “such representation” in 42 U.S.C. § 406(b), which provides in relevant part:
Whenever a court renders a judgment favorable to a claimant under [Title II of the Social Security Act] 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.The opinion, written by Justice Clarence Thomas, first applied a plain-meaning approach. The court quoted the Concise Oxford Dictionary of Current English for the definition of “such”: “[o]f the kind or degree already described or implied,” and declared that “the only form of representation ‘already described’ in § 406(b) is ‘represent[ation] before the court by an attorney.’” Based on this statutory language, the court announced that “the 25% cap applies only to fees for representation before the court, not the agency.”
Although the court began its analysis by quoting an earlier opinion: “We begi[n] with the language of the statute itself, and that is also where the inquiry should end, for the statute’s language is plain,” the court did not end the inquiry with the dictionary definition of “such.” Instead, it also considered other provisions of the statute and found that the structure of the statute and its other provisions were consistent with its interpretation of the statute.
The court noted that two different provisions, 42 U.S.C. § 406(a) and 42 U.S.C. § 406(b), address different stages of representation and calculate fees differently. Section 406(b) applies to court representation and imposes a flat 25 percent cap on fees for court representation. Section 406(a) applies to representation before the agency and provides two methods for determining fees for agency representation. One method, Section 406(a)(2), applies to fee agreements and caps fees at the lesser of 25 percent of past-due benefits or $6,000. The second method, Section 406(a)(1), applies when there is no fee agreement and authorizes the agency to set any fee, including a fee that exceeds 25 percent of past-due benefits, as long as the fee is “reasonable.”
The Supreme Court concluded that it would make little sense to apply the Section 406(b) court-stage cap to agency-stage Section 406(a) fees or the aggregate of Sections 406(a) and 406(b) fees. First, because many claimants never litigate in court, it would be incongruous to impose a 25 percent cap on agency fees based on a statutory provision regulating representation before a court. Second, applying the 406(b) cap to agency representation without a fee agreement would impose a limitation that Congress did not include in the relevant statutory provision. According to the court, “[i]f Congress had wanted these fees to be capped at 25%, it presumably would have said so directly in subsection (a), instead of providing for a ‘reasonable fee’ in that subsection [§ 406(a)(1)] and adding a 25% cap in § 406(b) without even referencing subsection (a).”
The court then turned to amicus Amy Weil’s argument that, when the statute is read as a whole, it is evident that Congress intended to place a cumulative 25 percent cap on attorney’s fees. The court acknowledged that Weil was correct in noting that the Social Security Administration only withholds a single pool of 25 percent of past-due benefits from which to pay fees for both agency and court representation. The court, however, noted that the single pool was the result of agency policy and the statute itself authorizes two pools of money for direct payment of fees. More importantly, according to the court, “the amount of past-due benefits that the agency can withhold for direct payment does not delimit the amount of fees that can be approved for representation before the agency or the court.” Until 1968, the Social Security Act allowed fees for successful representation before the agency but did not provide for direct payment from past-due benefits. In addition, under current “§§ 406(a)(1) and (4), the agency can award a ‘reasonable fee’ that exceeds the 25% of past-due benefits it can withhold for direct payment.”
The outcome is not surprising in light of the clear text of the statute and the fact that neither party defended the judgment below. Although Weil “ably discharged her assigned responsibilities” as amicus, and “despite the force of [her] arguments,” the court ruled against her as it does in 75 percent of cases with court-appointed amici curiae.
Argument preview: Justices consider cap on attorney’s fees for successful representation of Social Security disability claimants (Corrected)
Attorney Richard Culbertson successfully represented several Social Security disability claimants both before the Social Security Administration and in federal court. Prior to his representation, he entered into fee agreements that provided that the clients would pay him attorney’s fees equal to 25 percent of past-due benefits for successful representation before the court as well as separate attorney’s fees for successful representation before the agency. Following longstanding precedent of the U.S. Court of Appeals for the 5th Circuit, adopted by the U.S. Court of Appeals for the 11th Circuit, the court below capped his attorney’s fees at 25 percent of past-due benefits for representation before both the Social Security Administration and the court.
In granting certiorari, the Supreme Court agreed to resolve a split among the federal courts of appeals as to whether the Social Security Act imposes an aggregate cap on attorney’s fees of 25 percent of past-due benefits for representation before both the court and the Social Security Administration, or instead the 25 percent cap applies separately to representation before the court.
The Social Security Act regulates the amount and manner in which an attorney may collect fees from a disability claimant for successful representation before the agency and the court. 42 USC § 406(a) governs attorney’s fees for successful representation before the agency, while 42 USC § 406(b) governs attorney’s fees for successful representation before the court. The Equal Access to Justice Act also authorizes a court to order recovery of “reasonable attorney’s fees” from the government in certain cases in which the claimant is successful and the government’s position was not “substantially justified.” If attorney’s fees are awarded under the EAJA and under Section 406(b), the attorney must refund the lesser fee to the claimant. The Social Security Administration withholds a single pool of 25 percent of past-due benefits from which to certify for payment any and all attorney’s fees awarded under Section 406(a) and/or 406(b).
Section 406(a) authorizes two avenues for recovery of attorney’s fees from a claimant for successful representation before the agency. Under Section 406(a)(1), an attorney may file a “fee petition” with the Social Security Administration. Alternatively, under a more recent and more commonly used, streamlined process, an attorney may seek approval of a “fee agreement” with a claimant under Section 406(a)(2). No cap is imposed under Section 406(a)(1). Section 406(a)(2) limits attorney’s fees to the lesser of 25 percent of past-due benefits or a specified dollar amount, currently set at $6,000.
For successful representation before a court, Section 406(b)(1)(A) provides in relevant part:
Whenever a court renders a judgment favorable to a claimant under [Title II] 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.Section 406(b)(1)(A) further provides that “no other fee may be payable or certified for payment for such representation except as provided in this paragraph.”
Focusing on the “plain meaning” of Section 406(b), Culbertson argues that the term “such representation” in Section 406(b)(1)(A) clearly refers to the antecedent phrase “represented before the court,” and thus under the plain meaning of Section 406(b), the 25 percent cap applies to representation “before the court by an attorney” and does not include representation before the agency. Culbertson also argues that a separate cap on attorney’s fees for representation before the court is consistent with the structure of Section 406 as well as the purpose of the statute and its legislative history.
Almost 40 years ago, in the first circuit-court decision to address this issue, Dawson v. Finch, the 5th Circuit held that Section 406(b) imposes an aggregate cap on attorney’s fees for representation in the administrative proceedings as well as before the court. In reaching this result, the 5th Circuit looked to the legislative history of the provision in order to discern Congress’ intent. Specifically, the court focused on the fact that Congress added Section 406(b) to address two goals. First, Congress sought to encourage effective legal representation by “insuring lawyers that they will receive reasonable fees directly through certification by the Secretary.” Second, Congress sought to protect claimants against excessive attorneys’ fees, which in the past had reached one-third to one-half of claimants’ past-due benefits, by imposing the 25 percent cap on fees. In 1982, the U.S. Court of Appeals for the 4th Circuit also looked to this legislative history to hold in Morris v. Social Security Administration that Section 406(b) imposes a cumulative 25 percent cap on attorney’s fees.
More recently, the U.S. Courts of Appeals for the 6th, 9th and 10th Circuits have focused on the text of section 406(b) to hold that the 25 percent cap only applies to representation before a court. See Horenstein v. Secretary of Health and Human Services; Clark v. Astrue; and Wrenn v. Astrue, respectively.
The commissioner’s position on this issue has flipflopped over the years. Almost 40 years ago, the commissioner sided with the 5th Circuit in interpreting Section 406(b) to impose an aggregate cap and opposed the grant of certiorari in Dawson. Then about 15 years later, the commissioner sought and obtained 6th Circuit en banc review of the panel’s decision in Horenstein v. Secretary of Health and Human Services based on arguments that were logically inconsistent with an aggregate 25 percent cap. Almost 15 years after that, the commissioner argued in briefs before the 9th and 10th Circuits that an aggregate cap honors congressional intent and it would be inappropriate to permit attorneys to potentially collect up to 25 percent of a disability claimant’s past-due benefits at both the agency and court levels.
In this case, the acting commissioner initially supported the 11th Circuit’s rule imposing an aggregate cap. Then, after requesting four extensions to file a response, the acting commissioner filed a response siding with Culbertson and arguing that the text of Section 406(b) unambiguously applies the 25 percent cap only to attorney’s fees for representation before a court. The acting commissioner further argues that a 25 percent cap would be inconsistent with other provisions of Section 406(a) and that the absence of an aggregate cap does not mean that the agency and courts should approve fees that in the aggregate are equal to or greater than 50 percent of a claimant’s past-due benefits.
Because the acting commissioner agrees with Culbertson, the Supreme Court appointed Amy Levin Weil, an experienced 11th Circuit appellate litigator, to serve as amicus curiae in support of the 11th Circuit’s decision. Weil argues that the statute itself does not specifically state whether combined attorney’s fees may exceed 25 percent, and that the text of Section 406(a) and Section 406(b), read together, supports the aggregate rule. She also points to the legislative history on which the 4th and 5th Circuits relied in support of an aggregate 25 percent cap. She contends that permitting attorney’s fees to exceed 25 percent in the aggregate could lead to attorneys suing their clients to collect fees out of their present or future Social Security benefits contrary to the Social Security Act’s purpose of ensuring beneficiaries a protected source of income. She also argues that rejecting the 25 percent aggregate rule would lead to absurd results, with fees of up to 75 percent of past-due benefits if a favorable district court opinion is appealed and the applicant is successful in the court of appeals. She contends that the aggregate cap allows a logical division of agency and court fees from the 25-percent-of-accrued-benefit pool in a manner that recognizes that a portion of the accrued benefits is attributable to the time that the case was pending before the agency while the other portion is attributable to the time the case was pending before the court.
The National Organization of Social Security Claimants’ Representatives filed an amicus brief in the case. The NOSSCR does not address the plain meaning of the statute. Instead, it contends that Section 406(b) cannot impose an aggregate 25 percent cap on attorney’s fees for representation before a court and the agency because Section 406(a)(1) does not impose a cap on fees before the agency. NOSSCR further argues that a court has no discretion to impose an aggregate cap. NOSSCR informs the court that in circuits without an aggregate cap, the prevailing market rate includes a cumulative cap either by contract or in practice.
Weil faces an uphill battle in convincing the Supreme Court to uphold the 11th Circuit’s decision. The plain-meaning approach to statutory interpretation currently favored by the court supports Culbertson’s position. Moreover, amici curiae appointed by the Supreme Court typically only win about 25 percent of their cases.
If, however, Weil can convince the court to look beyond the text of the Section 406(b) in isolation, it may, like Chief Judge Geoffrey Crawford of the District of Vermont, find that “it would be strange indeed to believe that Congress would in 1965 denounce 50% contingency fees as excessive and enact a statute to stop them, and then, in 1968, pass a law with the effect of permitting 50% contingency fees.”
A previous version of this post inadvertently implied that NOSSCR advocated a particular method for EAJA offsets.
Posted Wed, October 31st, 2018 11:04 am
CULBERTSON vs BERRYHILL
On January 8, 2019, the Supreme Court of the United States decided Culbertson v. Berryhill, No. 17-773, holding that the Social Security Act permits an attorney fee award greater than 25 percent of the claimant’s past-due benefits for representation before both the Social Security Administration and a reviewing federal court.
The Social Security Act, 42 U.S.C. § 406 et seq., addresses attorney’s fees in two discrete phases: ‘“§406(a) governs fees for representation in administrative proceedings; §406(b) controls fees for representation in court.’” (quoting Gisbrecht v. Barnhart, 535 U. S. 789, 794 (2002)). Section 406(a) gives the agency discretion to award a reasonable fee to an attorney who obtains a favorable agency determination in the absence of a fee arrangement with the claimant, but, if there is a fee arrangement, section 406(a) “caps fees at the lesser of 25 [percent] of past-due benefits or a set dollar amount—currently $6,000.” Section 406(b), titled “Fees for representation before court,” allows a court to award “a reasonable fee for such representation, not in excess of 25 [percent] of the total of the past-due benefits” if “a court renders a judgment favorable to a claimant.” Id. § 406(b)(1)(A).
Attorney Richard Culbertson represented a Social Security claimant before the Social Security Administration as well as before a federal district court. The agency denied the claimant’s benefits, and Culbertson sought review of that decision before the District Court. The District Court ruled in favor of the claimant, reversing the agency’s denial of benefits and remanding the case to the agency to determine the benefits due the claimant. On remand, the agency awarded the claimant past-due benefits and also awarded Culbertson fees under section 406(a) for representing the claimant before the agency. Culbertson subsequently moved the District Court for a separate fee award under section 406(b) based on his representation of the claimant there. “The court granted Culbertson’s request only in part because he did not subtract the amount he had already received under §406(a) for his agency-level representation.” The Eleventh Circuit affirmed based on its precedent at the time which dictated that ‘“the 25 [percent] limit from §406(b) applies to total fees awarded under both §406(a) and (b), precluding the aggregate allowance of attorney’s fees greater than [25] percent of the past due benefits received by the claimant.’” (quoting Wood v. Commissioner of Social Security, 861 F. 3d 1197, 1205 (11th Cir. 2017) (internal quotations omitted)).
The Supreme Court began and ended its inquiry with the language of the statute because ‘“the statute’s language is plain.’” The Court observed that § 406(b) specifically addresses representation in court and allows a court to award ‘“a reasonable fee for such representation.’” (quoting 42 U.S.C. § 406(b)(1)(A)). The Court held that the phrase “such representation” in section 406(b) demonstrated that section 406(b)’s “25 [percent] cap applies only to fees for representation before the court, not the agency.” The Court explained that “the adjective ‘such’ means ‘[o]f the kind or degree already described or implied,’” (quoting H. Fowler & F. Fowler, Concise Oxford Dictionary of Current English 1289 (5th ed. 1964)), and that “the only form of representation ‘already described’ in §406(b) is ‘represent[ation] before the court by an attorney.’”
The Court went on to explain that the structure of the statute confirmed the Court’s interpretation. First, “subsections (a) and (b) address different stages of the representation,” and it makes sense “that the statute contemplates separate fees for each stage of representation.” And, second, the subsections calculate the attorney’s fees differently. Were the Eleventh Circuit’s interpretation correct, section 406(b)’s calculation of fees would limit section 406(a)’s calculation, which “would make little sense” given that “[m]any claimants will never litigate in court.”
The Court rejected the argument advanced by amicus curiae that, reading the statute as a whole, Congress intended a cumulative 25 percent cap on attorney’s fees for successful representation before the agency and the court. Acknowledging the Commissioner’s current policy to withhold only 25 percent of past-due benefits for direct payment of agency and court fees, the Court nonetheless noted that the statute provides “two pools of money for direct payment of fees” and further that “[a]ny shortage of withheld benefits for direct payment of fees is thus due to agency policy.” The Court also observed that the amount of past-due benefits withheld for direct payment did not limit the amount of fees that could be charged, observing that the statute historically did not have a direct payment mechanism.
Justice Thomas delivered the decision for a unanimous Court.
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