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Last Updated August 22, 2003 Gisbrecht v. Barnhart, 535 U.S. 789(2002) I. San Francisco NOSSCR Conference November 1, 2002
There is the question whether there is a 25% cap for 406(a) and 406(b) fees together. It is easy to prove that there is no such cap. There are two types of 406(a) fees: fee-agreement fees, e.g., $5,300 or 25% whichever is less, and fee-petition fees. There is no cap whatsoever on 406(a) fee-petition fees. 406(a) fee-petition fees can be for 100% of past-due benefits or 1,000% of past-due benefits. There is only a cap on withholding at 25% of past-due benefits. As the agency readily admits, 406(a) fee-petition fees can be awarded when there are no past-due benefits whatsoever. See AR 87-1(6), rescinded by 60 Fed. Reg. 11,977 (1995); Horenstein v. Secretary of Health and Human Servs., 35 F.3d 261 (6th Cir. 1994). Now consider 406(b) fees. There is a 25% cap on 406(b) fees. There is no logical reason why adding a 406(a) fee petition to a case with a 406(b) fee somehow limits the 406(a) fee and 406(b) fee together to 25% of past-due benefits. Because a 406(a) fee can be for 100% of past-due benefits, adding a 406(b) fee cannot logically limit the 406(a) fee. There are cases that do not recognize this. See Guido v. Schweiker, 775 F.2d 107, 108 (3d Cir. 1985); Morris v. Social Security Admin., 689 F.2d 495, 497-98 (4th Cir. 1982); Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir.), cert. denied, 400 U.S. 830 (1970); Webb v. Richardson, 472 F.2d 529, 536 (6th Cir. 1972), overruled by Horenstein v. Secretary of Health and Human Servs., 35 F.3d 261 (6th Cir. 1994); Harris v. Secretary of Health and Human Servs., 836 F.2d 496, 498 n.1 (10th Cir. 1987) (dictum); Davis v. Bowen, 894 F.2d 271, 273 n.3 (8th Cir. 1989). All these cases (but not Horenstein) are obviously wrong.
II. 42 U.S.C. § 406(b) III. Supreme Court Litigation Documents Gisbrecht v. Barnhart, 122 S. Ct.1817 (2002) (supremecourtus.gov) (FindLaw). FindLaw Resources - Supreme Court Center Supreme Court Documents
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