Nov 8, 2018

Transcript Of Culbertson v. Berryhill Oral Argument

     The Supreme Court has posted the transcript of the oral argument in Culbertson v. Berryhill, concerning attorney fees for federal court work. The argument was more spirited than I would have thought. I wouldn't predict the Court's decision in this case but I would predict that it won't be unanimous. 
     To my mind this is a straightforward plain language case. The statute says there's a separate cap on attorney fees for federal court. You can certainly make an argument that it shouldn't say that but that's what it says. If that's not what Congress intended, they can change the statute but it's not up to the Court to change it to something they think makes more sense. Judges or justices shouldn't use the plain language argument only when it suits their purposes and ignore it when they don't like the result. Plain language should always be the first consideration.


Anonymous said...


Agreed. The plain language point is strong. I'm still confused how the 5th circuit ever reached the congressional intent issue, given how plain the language is.

Anyways, the weird part I found about the argument was the focus on EAJA; whether it was a sufficient encouragement for attorneys to take cases to the courts, regardless of 406(b). EAJA was enacted in 1980, well after the Social Security Act. It could not have been meant to satisfy the underlying purpose of 406(b), representation before the court, at most it could only enhance it.

Seems odd.

Tim said...

The Plaintiff talks about the potential back-benefits accruing. So are the bills.m The "right" thing to do is make SSA pay the lawyer's fees. After all, they are the ones who wrongfully denied the claimant!