Justia Legal Ethics Opinion Summaries

Articles Posted in Public Benefits
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Graham served in the Marine Corps from 1967-1970 and has been receiving disability compensation benefits since 2001. The VA regional office (RO) informed Graham in 2009 that authorities had identified him as a fugitive felon and the subject of an outstanding warrant issued in 1992. That warrant was withdrawn in February 2009. In May 2009, the RO issued a rating decision that retroactively discontinued Graham’s compensation from December 2001 through February 2009, due to his then-fugitive felon status, and informed Graham that he had been improperly paid $199,158.70 and that his monthly compensation would be partially withheld to pay back the debt.Graham appointed Gumpenberger as his representative on appeal and signed a direct-pay agreement stating that Gumpenberger’s fee would be “20 percent of all past-due benefits awarded … as a result of winning … as provided in 38 C.F.R. 14.636.” In 2013, the Board reversed the RO’s debt ruling, finding that Graham was not a fugitive felon for VA purposes because he had never been aware of the outstanding warrant. The VA had recouped $65,464 from Graham’s monthly benefits. The Veterans Court and Federal Circuit affirmed the RO’s determination that Gumpenberger was entitled to a fee of $13,092.80. Although the total debt invalidated was $199,158.70, the past-due benefit, per 38 U.S.C. 5904(d)(1), being awarded was $65,464. View "Gumpenberger v. Wilkie" on Justia Law

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Attorney Ravin represented veteran Cook on a claim for past-due disability benefits. Their agreement provided for a contingent fee and contemplated that VA would withhold the fee from any past-due benefits awarded and pay that amount directly to Ravin under 38 U.S.C. 5904(d)(3). Within days of executing that agreement, Ravin sent a copy to the Board of Veterans’ Appeals, where it was date-stamped on December 11, 2009. No copy of the agreement was submitted to the Regional Office (RO) “within 30 days of the date of execution,” as required by 38 C.F.R. 14.636(h)(4). The RO awarded Cook past-due benefits in April 2010. On April 13, 2010, the RO’s Attorney Fee Coordinator searched for any attorney fee agreement and determined that “no attorney fee decision is required” and “[a]ll retroactive benefits may be paid directly to the veteran.” The RO paid the past-due benefits to Cook. On April 27, 2010, Ravin mailed a copy of Cook’s direct-pay fee agreement to the RO. The RO informed Ravin that it had not withheld his attorney’s fees because the agreement was “not timely filed.”The Veterans Court and Federal Circuit affirmed the Board’s denial of Ravin’s claim. Section 5904(d)(3) does not mandate withholding and direct payment; 38 C.F.R. 14.636(h)(4)'s submission requirement is valid. Ravin’s fees have not been forfeited; he may use all available remedies to obtain them from Cook, per their agreement. View "Ravin v. Wilkie" on Justia Law

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After appellant successfully litigated her claim to supplemental social security income, she challenged the district court's denial of her application for attorney's fees under 42 U.S.C. 406(b).The Second Circuit affirmed the denial of appellant's attorney's fee application as untimely, because she filed well beyond the 14 days prescribed by Federal Rule of Civil Procedure 54(d)(2)(B). Assuming the court would entertain appellant's argument, it failed on the merits because she provided no factual basis to support a claim that it was reasonable to delay the filing of her section 406(b) application for more than six months after she received notice of the benefits calculation on remand. View "Sinkler v. Berryhill" on Justia Law

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For representation in administrative proceedings, the Social Security Act provides that 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, section 406(a)(1). In either case, the agency is required to withhold up to 25% of past-due benefits for direct payment of fees. For representation in court proceedings, section 406(b) caps fees at 25% of past-due benefits; the agency may withhold benefits to pay these fees. Culbertson represented Wood in Social Security disability benefit proceedings before the agency and in court. The agency ultimately awarded Wood past-due benefits, withheld 25%, and awarded Culbertson fees under section 406(a) for representation before the agency. Culbertson sought a separate award under 406(b) for the court proceedings, requesting 25% of past-due benefits. The Eleventh Circuit held that 406(b)’s 25% limit applies to the total fees awarded under both sections.The Supreme Court reversed. Section 406(b)(1)(A)’s 25% cap applies only to fees for court representation, not to the aggregate fees awarded under 406(a) and (b). The subsections address different stages of the representation and use different methods for calculating fees. Applying 406(b)’s 25% cap on court-stage fees to 406(a) agency-stage fees, or the aggregate fees, would make little sense and would subject 406(a)(1)’s reasonableness limitation to 406(b)’s 25% cap—a limitation not included in the statute. The fact that the agency presently withholds a single pool of past-due benefits for payment of fees does not support an aggregate reading. The amount of past-due benefits that the agency can withhold for payment does not delimit the amount of fees that can be approved for representation before the agency or the court. View "Culbertson v. Berryhill" on Justia Law

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The Fifth Circuit affirmed the district court's denial of attorneys' fees for plaintiff under the Individuals with Disabilities Education Act (IDEA). The court held that the hearing officer's decision did not make plaintiff a prevailing party under the IDEA and thus she was not entitled to attorneys' fees. In this case, the officer's decision effected no change to plaintiff's educational plan, which the officer agreed was entirely appropriate despite lacking a prior autism diagnosis. Furthermore, the IDEA focuses, not on a student's diagnostic label, but on whether the student received appropriate education services, which the officer found plaintiff had received from the school district. View "Lauren C. v. Lewisville Independent School District" on Justia Law

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In November 2010, Hayes engaged Cybriwsky to represent him related to the denial of Hayes’s application for Social Security disability benefits. In February 2011, the case was remanded for further administrative hearings (42 U.S.C. 405(g)) because faulty recordings of the hearings rendered the record inaudible. On remand, the Administrative Law Judge entered a fully favorable decision for Hayes in August 2011. The district court affirmed in April 2012. The next month Cybriwsky sought attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. 2414. The court granted attorney’s fees of $2,225 in August 2012. In April 2017, Cybriwsky moved, under 42 U.S.C. 406(b), seeking more than $11,000. in fees. He subsequently provided documentation of the fee arrangement, benefits paid to Hayes, and an itemized description of the work performed. By the time Cybriwsky filed his 2017 motion, the SSA had released the 25% of past-due benefits normally reserved to pay attorney’s fees; $5,300 was awarded to Hayes’s attorney at the administrative level and the remainder was released to Hayes. Any fees awarded to Cybriwsky would have to be recovered from Hayes, either directly or by having fees taken from Hayes’s monthly disability payments. The Sixth Circuit affirmed denial of the motion as untimely and determined that the circumstances did not merit the exercise of equitable tolling. View "Hayes v. Commissioner of Social Security" on Justia Law

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Robinson, a Marine Corps veteran, served in Vietnam from 1966-1969 and later had coronary problems. He sought treatment at a VA medical facility. In 2006, a VA cardiologist recommended that he undergo certain medical testing. The tests, performed 14 months later, revealed that Robinson suffered from left ventricular diastolic dysfunction. The VA granted Robinson a 60% disability rating effective April 2, 2007, the date he underwent cardiac testing. The Board denied Robinson entitlement to a higher rating. In the Veterans Court, Robinson argued for the first time—through the same counsel that represented him before the Board—that his rating should have been assigned an effective date in February 2006, when his doctor ordered tests. The court did not identify any error by the Board but “set aside” its decision and remanded for it to address Robinson’s argument in the first instance. Robinson sought attorney fees, arguing that, because he secured remand, he was a prevailing party under the Equal Access to Justice Act. The Federal Circuit affirmed denial of Robinson’s application. This particular remand did not confer prevailing party status on Robinson because it “was not predicated on administrative error by the Board,” did not materially alter the legal relationship of the parties, and was solely to allow the Board to consider an issue first raised on appeal. View "Robinson v. O'Rourke" on Justia Law

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Simmons contacted counsel in 2011, claiming that he developed Guillain-Barre Syndrome as a result of his 2010 flu vaccination. He provided his vaccination record. Counsel agreed to represent him. Counsel was subsequently unable to contact Simmons and sent a letter in 2013, stating that their attorney-client relationship had terminated. That letter was returned as undeliverable. Nearly two years later, shortly before the limitations period on his Vaccine Act claim would expire, Simmons contacted counsel’ and expressed that he would like to proceed. Counsel spoke with Simmons one additional time. The next day, on October 22, 2013, counsel filed Simmons’s petition, without any medical records or other supporting evidence. In January 2014, the special master ordered counsel to produce medical records. Counsel stated that counsel had again lost contact with Simmons and was unable to acquire those records. The master dismissed the case for failure to prosecute. Counsel then filed petitions seeking $8,267.89 in fees and costs. The master noted that because there was no direct evidence of bad faith and counsel had a vaccination receipt, counsel had satisfied the good faith and reasonable basis requirements and awarded fees. The Claims Court and Federal Circuit disagreed. The master erred in finding that counsel had a reasonable basis for Simmons’s claim. The fact that the statute of limitations was about to expire did not excuse counsel’s obligation to show some basis for the claim that Simmons suffered Guillain-Barre beyond their conversations. View "Simmons v. Secretary of Health and Human Services" on Justia Law

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Kerr sought judicial review of the final determination that Kerr’s husband was not disabled and not entitled to any Social Security disability insurance benefits before his death. Kerr was due to receive any payment owed to Mr. Kerr. The parties stipulated to reversal and remand under 42 U.S.C. 405(g). Kerr then sought an award of $3,206.25 in attorney fees under the Equal Access to Justice Act, 28 U.S.C. 2412(d), with any fees awarded “be made payable to Plaintiff’s counsel,” attaching an “Affidavit and Assignment of EAJA Fee.” The Commissioner did not oppose the motion. The district court granted the award, declined to honor Kerr’s assignment, and concluded that it was required to order payment to Kerr as the prevailing party. The court held that it could not “ignore the Anti-Assignment Act,” which prohibits “an assignment of a claim against the United States that is executed before the claim is allowed, before the amount of the claim is decided, and before a warrant for payment of the claim has been issued” but “le[ft] it to the Commissioner’s discretion to determine whether to waive the Anti-Assignment Act and make the fee payable to Mr. Marks.” The Commissioner responded that she would accept [Kerr’s] assignment and suggested that the court deny as moot Kerr’s Rule 59(e) motion. The district court and Sixth Circuit agreed that Kerr’s motion was moot, and did not reconsider the application of the AAA to the EAJA assignment. View "Kerr v. Commissioner of Social Security" on Justia Law

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Richard Culbertson was counsel for the four plaintiffs in these consolidated Social Security disability benefits cases. At issue in this appeal was the attorney's fees for Culbertson under 42 U.S.C. 406 and the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412(d). The Eleventh Circuit held that the district court did not err in its interpretation and application of Dawson v. Finch, 425 F.2d 1192 (5th Cir. 1970) and by imposing a 24% cap on section 406 fees; it was necessary for the district court to add the requested section 406(b) fee together with his EAJA award; and the district court did not abuse its discretion and did not exceed its authority. Accordingly, the court affirmed the judgment. View "Wood v. Commissioner of Social Security" on Justia Law