Culbertson v. Berryhill

Summary

The Social Security Act’s fee cap of 25% of past-due benefits imposed on attorneys who successfully represent Title II benefit claimants in court proceedings applies only to fees for court representation and not to aggregate fees for both court and agency representation.

Text

(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 t he 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 represent a-
tion in administrative proceedings, the Act provides two ways to d e-
termine fees.  If a fee agreement exists, fees are capped at the less er 
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 r e-
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 Cu l-
bertson fees under §406(a) for representation before the agency.  Cu l-
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 a f-
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 repr e-
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 cour t 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 representa tion “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 represent a-
tion and use different methods for calculating fees.  Given this stat u-
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, s uch a reading would subjec t 
§406(a)(1)’s reasonableness limitation to §406(b)’s 25% cap —a limita-
tion not include d 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. 
 T
HOMAS, J., delivered the opinion for a unanimous Court.

Cite as: 586 U. S. ____ (2019) 1 
 
Opinion of the Court 
NOTICE: This opinion is subject to formal revision before publication in the 
preliminary print of the United States Reports.  Readers are requested to 
notify the Reporter of Decisions, Supreme Court of the United States, Wash -
ington, D.  C. 20543, of any typographical or other formal errors, in order 
that corrections may be made before the preliminary print goes to press.  
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] 
 J USTICE 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 pr o-
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 p ast-due benefits—i.e., benefits that accrue d 
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 se ek 
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 “a llow[ed] withholding 
of past -due benefits to pay ” these  fees directly to the a t-
torney.  Social Security Amendments of 1965, §332, 79 
Stat. 403; Bowen , 485 U.  S., at 76.  In 1968, Congress 
amended subsect ion (a) to give the agency  similar wit h-
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 am ount—currently $6,000.  
§406(a)(2)(A); Maximum Dollar Limit in the Fee Agre e-
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 t o 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 Co m-
missioner of Social Security shall .  . . certify for pa y-
ment out of such past- due benefits .  . . to such atto r-
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 tit led “ 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 dete r-
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 percen t 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 ben e-
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) fee s for repr e-
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); e m-
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 jud g-
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 i m-
plied.”  H. Fowler & F. Fowler, Concise Oxford Dictionary 
of Current English 1289 (5th ed. 1964); Black’s Law Di c-
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[ati on] before 
the court by an attorney.”  Accordingly, the 25% cap a p-
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 conte m-
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 repr e-
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 subse c-

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 A micus, “[b]ecause the Commi s-
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 A micus 
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 plaus i-
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 wit h-
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 wit h-
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 neve r-
theless “exercised its discretion .  . . to withhold a total of 
25% of past -due benefits for direct payment of the a p-
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 repr e-
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 prov i-
sion for direct payment of such fees from past -due ben e-
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 representa tion, 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.

Retrieval chunks

• #1

  (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 t he Court but has been prepared by the Reporter of Decisions for t…

• #2

  2 CULBERTSON v. BERRYHILL Syllabus (a) Section 406(b) provides that a court rendering a favorable judgment to a claimant “represented before the cour t 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…

• #3

  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] J USTICE THOMAS delivered the opinion of the Court. Federal law regulates the fees that attorneys may charge Social Security claimants for representat…

• #4

  of past -due benefits to pay ” these fees directly to the a t- torney. Social Security Amendments of 1965, §332, 79 Stat. 403; Bowen , 485 U. S., at 76. In 1968, Congress amended subsect ion (a) to give the agency similar wit h- holding authority to pay attorney’s fees incurred in admin- istrative proceeding…

• #5

  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 cou…

• #6

  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…

• #7

  These subsections also calculate fees differently. Sec- tion 406(b) applies a flat 25% cap on fees for court repr e- 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 $6,0…

• #8

  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 03920.0…

• #9

  attorney is entitled. Indeed, prior to 1968, the statute allowed fees for agency representation but lacked a prov i- sion for direct payment of such fees from past -due ben e- 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…