SCOTUSblog reports on this past week’s oral argument before the Supreme Court in Culbertsonv. Berryhill, a case concerning the cap or caps on attorney fees for representing Social Security claimants in federal court.
3 comments:
Anonymous
said...
Two underlying problems I keep seeing in this case: 1.) The Act was revised as if cases were only decided favorably once, either administratively or in court, not both. Without further Congressional changes, the parts do operate separately; and, 2.) There continues to be a huge discrepancy between how SSA values attorney services and federal courts do.
100+ hours of work before SSA may warrant $6,000 in the ALJ's eyes. Even 30 hours on a case which results in no past due benefits can result in only $600. But in court, a fee approaching $20,000 isn't a windfall. More legal skills are involved in federal court, but the value of the attorney's services should be treated the same there as before SSA. IF SSA would see this and stat authorizing fees based on 2018 and not 1990, attorneys -the entire disability industry - would self regulate and employee fee agreement and retention contracts capping all fees to 25 percent. Even if they did try and collect an authorized fee above 25 percent, it would be done over an extended period of time without the ability to collect interest on the fee.
Certain for-profit disability groups (that have trash representation with their Conga Doc billing) will always try and demand more than 25 percent, but the majority of attorneys take the 25 percent and move on.
After reading the summary, I'm confused. The essence of this case involves those times where there are both EAJA fees and fees paid out of back benefits at Agency level that are not subject to offset by EAJA fees paid.
In that case, there would never be a case where more than 25% comes from the client. The amount over 25% would come from the Government under EAJA.
In any case, there is always the possibility that fees charged to claimants could exceed 25% of back benefits. BUT, in order for that to be the case, first the rep would have to file a fee petition, that petition would have to be approved by the SSA and client could object at any stage of the process, and any such fee approved would have to be paid directly by the client, without any garnishment from the SS benefits being paid.
That is why it never happens except in cases there are no back benefits such as continuing disability claims. It can also happen where due to WC offset or some similar issue such as client already gets RIB benefits, both the client and the rep know that the back benefits will be very low and the agreed fee is based on other than a typical contingent fee with either an hourly rate or set fee amount.
It doesn't seem from the digest that these issues were clearly explained.
Intent vs. how written. Protect the claimants vs. paying the lawyers for their services. What is really lost here is that SSA is denying so many claimants that are clearly disabled, often in the name of "quality." Maybe the Democrats will help... Ya, I am not holding my breath. They would much rather go after Trump. I would give a prediction, but after reading Blackmun's opinion for Roe v. Wade and other decisions, I am convinced that most judges decide cases largely because that's how they wanted to decide. The law is merely twisted to fit their decision. I am still trying to find the right to privacy in the Constitution, the clause that gives a commissioner the power to make any decision he wants and other "rights" the court has found (Miranda). I am not necessarily against some of these aims... Just that it should have been changed by Congress.
3 comments:
Two underlying problems I keep seeing in this case:
1.) The Act was revised as if cases were only decided favorably once, either administratively or in court, not both. Without further Congressional changes, the parts do operate separately; and,
2.) There continues to be a huge discrepancy between how SSA values attorney services and federal courts do.
100+ hours of work before SSA may warrant $6,000 in the ALJ's eyes. Even 30 hours on a case which results in no past due benefits can result in only $600. But in court, a fee approaching $20,000 isn't a windfall. More legal skills are involved in federal court, but the value of the attorney's services should be treated the same there as before SSA. IF SSA would see this and stat authorizing fees based on 2018 and not 1990, attorneys -the entire disability industry - would self regulate and employee fee agreement and retention contracts capping all fees to 25 percent. Even if they did try and collect an authorized fee above 25 percent, it would be done over an extended period of time without the ability to collect interest on the fee.
Certain for-profit disability groups (that have trash representation with their Conga Doc billing) will always try and demand more than 25 percent, but the majority of attorneys take the 25 percent and move on.
After reading the summary, I'm confused. The essence of this case involves those times where there are both EAJA fees and fees paid out of back benefits at Agency level that are not subject to offset by EAJA fees paid.
In that case, there would never be a case where more than 25% comes from the client. The amount over 25% would come from the Government under EAJA.
In any case, there is always the possibility that fees charged to claimants could exceed 25% of back benefits. BUT, in order for that to be the case, first the rep would have to file a fee petition, that petition would have to be approved by the SSA and client could object at any stage of the process, and any such fee approved would have to be paid directly by the client, without any garnishment from the SS benefits being paid.
That is why it never happens except in cases there are no back benefits such as continuing disability claims. It can also happen where due to WC offset or some similar issue such as client already gets RIB benefits, both the client and the rep know that the back benefits will be very low and the agreed fee is based on other than a typical contingent fee with either an hourly rate or set fee amount.
It doesn't seem from the digest that these issues were clearly explained.
Intent vs. how written. Protect the claimants vs. paying the lawyers for their services. What is really lost here is that SSA is denying so many claimants that are clearly disabled, often in the name of "quality." Maybe the Democrats will help... Ya, I am not holding my breath. They would much rather go after Trump. I would give a prediction, but after reading Blackmun's opinion for Roe v. Wade and other decisions, I am convinced that most judges decide cases largely because that's how they wanted to decide. The law is merely twisted to fit their decision. I am still trying to find the right to privacy in the Constitution, the clause that gives a commissioner the power to make any decision he wants and other "rights" the court has found (Miranda). I am not necessarily against some of these aims... Just that it should have been changed by Congress.
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