Culbertson v. Berryhill , 202 L. Ed. 2d 469 ( 2019 )

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CULBERTSON v. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 17–773. Argued November 7, 2018—Decided January 8, 2019
The Social Security Act regulates the fees that attorneys may charge
claimants seeking Title II benefits for representation both before the
Social Security Administration and in federal court. For representa-
tion in administrative proceedings, the Act provides two ways to de-
termine fees. If a fee agreement exists, fees are capped at the lesser
of 25% of past-due benefits or a set dollar amount—currently $6,000.
42 U.S. C. §406(a)(2)(A). Absent an agreement, the agency may set
any “reasonable” fee. §406(a)(1). In either case, the agency is re-
quired to withhold up to 25% of past-due benefits for direct payment
of any fee. §406(a)(4). For representation in court proceedings, fees
are capped at 25% of past-due benefits, and the agency has authority
to withhold such benefits to pay these fees. §406(b)(1)(A).
Petitioner Culbertson represented Katrina Wood in Social Security
disability benefit proceedings before the agency and in District Court.
The agency ultimately awarded Wood past-due benefits, withheld
25% of those benefits to pay any attorney’s fees, and awarded Cul-
bertson fees under §406(a) for representation before the agency. Cul-
bertson then moved for a separate fee award under §406(b) for the
court proceedings, requesting a full 25% of past-due benefits. The
District Court granted the request, but only in part, because Culbert-
son did not subtract the amount he had already received under
§406(a) for his agency-level representation. The Eleventh Circuit af-
firmed, holding that the 25% limit under §406(b) applies to the total
fees awarded under both §§406(a) and (b).
Held: Section 406(b)(1)(A)’s 25% cap applies only to fees for court repre-
sentation and not to the aggregate fees awarded under §§406(a) and
(b). Pp. 5–9.
2 CULBERTSON v. BERRYHILL
Syllabus
(a) Section 406(b) provides that a court rendering a favorable
judgment to a claimant “represented before the court by an attorney”
may award “a reasonable fee for such representation, not in excess of
25 percent” of past-due benefits. Here, the adjective “such,” which
means “[o]f the kind or degree already described or implied,” refers to
the only form of representation “already described” in §406(b)—i.e.,
“represent[ation] before the court.” Thus, the 25% cap applies only
to fees for representation before the court, not the agency.
Subsections (a) and (b) address different stages of the representa-
tion and use different methods for calculating fees. Given this statu-
tory structure, applying §406(b)’s 25% cap on court-stage fees to
§406(a) agency-stage fees, or the aggregate of §§406(a) and (b) fees,
would make little sense. For example, such a reading would subject
§406(a)(1)’s reasonableness limitation to §406(b)’s 25% cap—a limita-
tion not included in the relevant provision of the statute. Had Con-
gress wanted agency-stage fees to be capped at 25%, it presumably
would have said so directly in subsection (a). Pp. 5–7.
(b) The fact that the agency presently withholds a single pool of
25% of past-due benefits for direct payment of agency and court fees
does not support an aggregate reading. The statutory text provides
for two pools of money for direct payment of fees. See §§406(a)(4),
(b)(1)(A). The agency’s choice to withhold only one pool of 25% of
past-due benefits does not alter this text. More fundamentally, 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. Pp. 7–9.
861 F.3d 1197, reversed and remanded.
THOMAS, J., delivered the opinion for a unanimous Court.
Cite as: 586 U. S. ____ (2019) 1
Opinion of the Court
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SUPREME COURT OF THE UNITED STATES
_________________
No. 17–773
_________________
RICHARD ALLEN CULBERTSON, PETITIONER v.
NANCY A. BERRYHILL, ACTING COMMISSIONER
OF SOCIAL SECURITY
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[January 8, 2019]
JUSTICE THOMAS delivered the opinion of the Court.
Federal law regulates the fees that attorneys may
charge Social Security claimants for representation before
the Social Security Administration and a reviewing court.
See 42 U.S. C. §§406(a)–(b). The question in this case is
whether the statutory scheme limits the aggregate
amount of fees for both stages of representation to 25% of
the claimant’s past-due benefits. Because §406(b) by its
terms imposes a 25% cap on fees only for representation
before a court, and §406(a) has separate caps on fees for
representation before the agency, we hold that the statute
does not impose a 25% cap on aggregate fees.
I
A
Title II of the Social Security Act, 49 Stat. 622, as
amended, 42 U.S. C. §401 et seq., “is an insurance pro-
gram” that “provides old-age, survivor, and disability
benefits to insured individuals irrespective of financial
need.” Bowen v. Galbreath, 485 U.S. 74, 75 (1988). A
claimant’s application for Title II benefits can result in
2 CULBERTSON v. BERRYHILL
Opinion of the Court
payments of past-due benefits—i.e., benefits that accrued
before a favorable decision, 20 CFR §404.1703 (2018)—as
well as ongoing monthly benefits, see 42 U.S. C. §423(a).
A claimant who has been denied benefits “in whole or in
part” by the Social Security Administration may seek
administrative review of the initial agency determination,
§405(b), and may then seek judicial review of the resulting
final agency decision, §405(g).
As presently written, the Social Security Act “discretely”
addresses attorney’s fees for the administrative and
judicial-review stages: Ҥ406(a) governs fees for representa-
tion in administrative proceedings; §406(b) controls fees for
representation in court.” Gisbrecht v. Barnhart, 535 U.S.
789, 794 (2002). The original Social Security Act made no
such provision for attorney’s fees in either proceeding. Id.,
at 793, n. 2. But in 1939, “Congress amended the Act to
permit the Social Security Board to prescribe maximum
fees attorneys could charge for representation of claimants
before the agency.” Ibid. In 1965, Congress added a new
subsection (b) to §406 that explicitly prescribed fees for
representation before a court and “allow[ed] withholding
of past-due benefits to pay” these fees directly to the at-
torney. Social Security Amendments of 1965, §332, 79
Stat. 403; Bowen, 485 U.S., at 76. In 1968, Congress
amended subsection (a) to give the agency similar with-
holding authority to pay attorney’s fees incurred in admin-
istrative proceedings. Id., at 76.
Section 406(a) is titled “Recognition of representatives;
fees for representation before Commissioner” of Social
Security. It includes two ways to determine fees for repre-
sentation before the agency, depending on whether a prior
fee agreement exists. If the claimant has a fee agreement,
subsection (a)(2) caps fees at the lesser of 25% of past-due
benefits or a set dollar amount—currently $6,000.
§406(a)(2)(A); Maximum Dollar Limit in the Fee Agree-
ment Process, 74 Fed. Reg. 6080 (2009). Absent a fee
Cite as: 586 U. S. ____ (2019) 3
Opinion of the Court
agreement, subsection (a)(1) gives the agency authority to
“prescribe the maximum fees which may be charged for
services performed in connection with any claim” before
the agency. If the claimant obtains a favorable agency
determination, the agency may allot “a reasonable fee to
compensate such attorney for the services performed by
him.”
Subsection (a)(4) requires the agency to withhold up to
25% of past-due benefits for direct payment of any fee for
representation before the agency:
“[I]f the claimant is determined to be entitled to past-
due benefits under this subchapter and the person
representing the claimant is an attorney, the Com-
missioner of Social Security shall . . . certify for pay-
ment out of such past-due benefits . . . to such attor-
ney an amount equal to so much of the maximum fee
as does not exceed 25 percent of such past-due
benefits . . . .”
Section 406(b) is titled “Fees for representation before
court.” Subsection (b)(1)(A) both limits these fees to no
more than 25% of past-due benefits and allows the agency
to withhold past-due benefits to pay these fees:
“Whenever a court renders a judgment favorable to a
claimant under this subchapter who was represented
before the court by an attorney, the court may deter-
mine 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, and
the Commissioner of Social Security may . . . certify
the amount of such fee for payment to such attorney
out of, and not in addition to, the amount of such past-
due benefits.”
At issue is whether §406(b)’s 25% cap limits the aggre-
4 CULBERTSON v. BERRYHILL
Opinion of the Court
gate fees awarded for representation before both the agency
under §406(a) and the court under §406(b), or instead
limits only the fee awarded for court representation under
§406(b).
B
Petitioner Richard Culbertson represented claimant
Katrina Wood in proceedings seeking Social Security
disability benefits. After the agency denied Wood benefits,
she brought an action in district court. For the court
action, Wood signed a contingency-fee agreement “to pay a
fee of 25 percent of the total of the past-due benefits to
which [she] is entitled” in consideration for Culbertson’s
“representation of [her] in Federal Court.” App. 8–9. The
agreement excludes fees for “any representation before”
the agency. Id., at 9.
The District Court reversed the agency’s denial of bene-
fits and remanded for further proceedings. The court
granted Wood attorney’s fees under the Equal Access to
Justice Act (EAJA), which authorizes an award against
the Government for reasonable fees in “civil action[s].” 28
U.S. C. §§2412(d)(1)(A) and (2)(A).
On remand, the agency awarded Wood past-due disabil-
ity benefits and withheld 25% of those benefits to pay any
attorney’s fees that might ultimately be awarded. The
agency also awarded Culbertson §406(a) fees for repre-
senting Wood before the agency.
Culbertson then moved the District Court for a separate
fee award under §406(b) for representing Wood there.
After accounting for the EAJA award, see Gisbrecht, su-
pra, at 796; App. 9, this request amounted to a full 25% of
past-due benefits. 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, relying on
Circuit precedent to hold that “the 25% limit from §406(b)
Cite as: 586 U. S. ____ (2019) 5
Opinion of the Court
applies to total fees awarded under both §406(a) and (b),
‘preclud[ing] the aggregate allowance of attorney’s fees
greater than twenty-five percent of the past due benefits
received by the claimant.’ ” Wood v. Commissioner of
Social Security, 861 F.3d 1197, 1205 (2017) (quoting
Dawson v. Finch, 425 F.2d 1192, 1195 (CA5 1970); em-
phasis deleted).*
Given a conflict between the Circuits on this question,
see 861 F.3d, at 1205–1206, we granted certiorari. 584
U. S. ___ (2018). Because no party defends the judgment,
we appointed Amy Weil to brief and argue this case as
amicus curiae in support of the judgment below. 584 U. S.
___ (2018). Amicus Weil has ably discharged her assigned
responsibilities.
II
A
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.” Puerto Rico v. Franklin Cal. Tax-Free
Trust, 579 U. S. ___, ___ (2016) (slip op., at 9) (internal
quotation marks omitted). Under §406(b), when a court
“renders a judgment favorable to a claimant . . . who was
represented before the court by an attorney,” the court
may award “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 judg-
ment.” 42 U.S. C. §406(b)(1)(A) (emphasis added). Both
at the time of enactment and today, the adjective “such”
means “[o]f the kind or degree already described or im-
plied.” H. Fowler & F. Fowler, Concise Oxford Dictionary
of Current English 1289 (5th ed. 1964); Black’s Law Dic-
tionary 1661 (10th ed. 2014) (“[t]hat or those; having just
——————
* See Bonner v. Prichard, 661 F.2d 1206, 1209 (CA11 1981) (en banc)
(adopting all decisions of the former Fifth Circuit announced prior to
October 1, 1981, as binding precedent in the Eleventh Circuit).
6 CULBERTSON v. BERRYHILL
Opinion of the Court
been mentioned”). Here, the only form of representation
“already described” in §406(b) is “represent[ation] before
the court by an attorney.” Accordingly, the 25% cap ap-
plies only to fees for representation before the court, not
the agency.
This interpretation is supported by “the structure of the
statute and its other provisions.” Maracich v. Spears, 570
U.S. 48, 60 (2013). As an initial matter, subsections (a)
and (b) address different stages of the representation.
Section 406(a) addresses fees for representation “before
the Commissioner,” whereas §406(b) addresses fees for
representation in court. Because some claimants will
prevail before the agency and have no need to bring a
court action, it is unsurprising that the statute contem-
plates separate fees for each stage of representation.
These subsections also calculate fees differently. Sec-
tion 406(b) applies a flat 25% cap on fees for court repre-
sentation. By contrast, §406(a) provides two ways to
determine fees for agency proceedings. Subsection (a)(2)
caps fees based on a fee agreement at the lesser of 25% of
past-due benefits or $6,000. Supra, at 2. If there is no fee
agreement, the agency may set any fee, including a fee
greater than 25% of past-due benefits, so long as the fee is
“reasonable.” §406(a)(1).
Given this statutory structure, applying §406(b)’s 25%
cap on court-stage fees to §406(a) agency-stage fees, or the
aggregate of §§406(a) and (b) fees, would make little sense.
Many claimants will never litigate in court, yet under the
aggregate reading, agency fees would be capped at 25%
based on a provision related exclusively to representation
in court. Absent a fee agreement, §406(a)(1) subjects
agency fees only to a reasonableness limitation, so apply-
ing §406(b)’s cap to such fees would add a limitation that
Congress did not include in the relevant provision of the
statute. If Congress had wanted these fees to be capped at
25%, it presumably would have said so directly in subsec-
Cite as: 586 U. S. ____ (2019) 7
Opinion of the Court
tion (a), instead of providing for a “reasonable fee” in that
subsection and adding a 25% cap in §406(b) without even
referencing subsection (a). Thus, the structure of the
statute confirms that §406(b) caps only court representa-
tion fees.
B
Amicus Amy Weil agrees that “§406(a) and §406(b)
provide separate avenues for an award of attorney’s fees
for representation of a Social Security claimant,” but
emphasizes that “these fees are certified for payment out
of a single source: the 25% of past-due benefits withheld
by the Commissioner.” Brief for Court-Appointed Amicus
Curiae 10. According to Amicus, “[b]ecause the Commis-
sioner withholds only one pool of 25% of past-due benefits
from which to pay attorney’s fees for both agency and
court representation, for an attorney to collect a fee that
exceeds the 25% pool of withheld disability benefits,” the
attorney may “need to file a lawsuit against his disabled
client” to collect the difference. Id., at 23–24. Therefore,
Amicus urges, “[w]hen the statute is read as a whole,” “it
is evident that Congress placed a cumulative 25% cap on
attorney’s fees payable for successful representation of a
Social Security claimant before both the agency and the
court.” Id., at 10.
Amicus is quite right that presently the agency with-
holds a single pool of 25% of past-due benefits for direct
payment of agency and court fees. See Social Security
Administration, Program Operations Manual System
(POMS), GN 03920.035(A), online at https://policy.ssa.gov/
poms.nsf/lnx/0203920035 (as last visited Jan. 2, 2019); see
also 20 CFR §§404.1730(a) and (b)(1)(i). And Amicus
sensibly argues that if there is only a single 25% pool for
direct payment of fees, Congress might not have intended
aggregate fees higher than 25%. This argument is plausi-
ble, but the statutory text in fact provides for two pools of
8 CULBERTSON v. BERRYHILL
Opinion of the Court
money for direct payment of fees. Any shortage of with-
held benefits for direct payment of fees is thus due to
agency policy.
Under §406(a)(4), the agency “shall” certify for direct
payment of agency representation fees “an amount equal
to so much of the maximum fee as does not exceed 25
percent of ” past-due benefits. In other words, this subsec-
tion requires that the agency withhold the approved fees
for work performed in agency proceedings, up to 25% of
the amount of the claimant’s past-due benefits. But this is
not the only subsection that enables the agency to with-
hold past-due benefits for direct payment of fees. Section
406(b)(1)(A) provides that the agency “may” certify past-
due benefits for direct payment of court representation
fees. As the Government explains, the agency has never-
theless “exercised its discretion . . . to withhold a total of
25% of past-due benefits for direct payment of the ap-
proved agency and court fees.” Reply Brief for Respondent
8 (emphasis added). The agency’s choice to withhold only
one pool of 25% of past-due benefits does not alter the
statutory text, which differentiates between agency repre-
sentation in §406(a) and court representation in §406(b),
contains separate caps on fees for each type of representa-
tion, and authorizes two pools of withheld benefits.
More fundamentally, 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 repre-
sentation before the agency or the court. The attorney
might receive a direct payment out of past-due benefits,
but that payment could be less than the fees to which the
attorney is entitled. Indeed, prior to 1968, the statute
allowed fees for agency representation but lacked a provi-
sion for direct payment of such fees from past-due bene-
fits. See supra, at 2. And under the 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
Cite as: 586 U. S. ____ (2019) 9
Opinion of the Court
direct payment.
In short, despite the force of Amicus’ arguments, the
statute does not bear her reading. 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.
* * *
Because the 25% cap in §406(b)(1)(A) applies only to fees
for court representation, and not to the aggregate fees
awarded under §§406(a) and (b), the judgment of the
United States Court of Appeals for the Eleventh Circuit is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.