Case No. 17-773 | 11th Cir.
Preview by Michelle Divelbiss, Online Editor
Petitioner Culbertson was the attorney for four individuals challenging the Social Security Administration’s denial of disability benefits. After a finding that the individuals were wrongly denied disability benefits, Culbertson asked the court to award him attorney fees for all four cases. Culbertson now challenges the attorney fees amount calculated by the court.
Two subsections of 42 U.S.C. § 406 govern attorney fees: § 406(a) governs attorney fees for representation before the Commissioner of Social Security and § 406(b) governs fees for representation before a court. 42 U.S.C. § 406 (2018). Under § 406(a), a fee for representation before the Commissioner may “not exceed the lesser of . . . 25 percent of the total amount of such past-due benefits . . . or $4,000,” and under § 406(b), a fee for representation before a court may not be more than “25 percent of the total of past-due benefits.” Id. Attorney fees are also governed under the Equal Access to Justice Act (“EAJA”), which permits a separate statutory award of attorney fees. 28 U.S.C. § 2412(d) (2018).
One of Culbertson’s clients was awarded $4107.27 in attorney fees under the EAJA and the Social Security Commissioner withheld $8595.75, 25 percent of the client’s total award for attorney fees under § 406(b). Culbertson calculated his fees for this client to be the 25 percent withheld minus the EAJA fees already awarded, totaling $4488.48. The district court found that Culbertson failed to subtract the attorney fees awarded under § 406(a) for the representation before the Commissioner and limited the award of attorney fees to $1623.48. The district court explained that this method of calculation ensures that an attorney does not recover fees twice and that a client is not charged duplicative fees.
Culbertson claims that the court below erred in the calculation of attorney fees. He argues that the court erred by placing the 25 percent cap of § 406(b) on attorney fees collected under both § 406(a) and (b) combined. Further, Culbertson argues, the plain language of the statute indicates that attorney fees for representation before the Commission and before a court are to be calculated separately and not jointly subjected to the 25 percent maximum. To illustrate this point, if the 25 percent cap were instituted for both § 406(a) and (b) together, an attorney representing a claimant before the Commissioner could use up the entire award, and a different attorney representing the same claimant before a court would not be awarded any attorney fees.
Somewhat uniquely, Respondent, the Acting Commissioner of Social Security, agrees with Culbertson. Respondent argues that “Congress has not imposed a 25% cap on the aggregate amount of attorney’s fees” under § 406 (a) and (b) and has instead “vested the agency and the courts with adequate authority to ensure that such fees are not excessive in particular cases.” Brief for the Respondent Supporting Reversal and Remand at 25–26, Culbertson v. Berryhill, No. 17-773 (U.S. filed July 16, 2018).
Several of the circuit courts are split on this issue. The Sixth, Ninth, and Tenth Circuits have held that the 25 percent cap applies only to § 406(b), as Culbertson argues, while the Fourth, Fifth, and Eleventh Circuit have held that the 25 percent cap applies to both § 406(a) and (b).