This week may well be the lull before the storm of highly anticipated decisions. The justices meet in conference Thursday—the traditional change in conference days from Fridays to Thursdays in May—and they are back on the bench May 14 for orders and perhaps decisions. This morning we look at a petition dealing with a subject dear to the hearts of lawyers everywhere—attorney fees. We also checked in with the federal judiciary working group on sexual harassment. Also: a television series is in development featuring Justices Ruth Bader Ginsburg and Sandra Day O'Connor. Thanks for reading SCB. We welcome your feedback, tips and suggestions: [email protected] and [email protected].

 

Solicitor General's Social Security Switch

 

U.S. Solicitor General Noel Francisco has changed Obama administration positions in three high-profile cases in the current Supreme Court term. On Thursday, the justices will take a first look at another switch in a under-the-radar case whose outcome could be welcomed by certain group of practicing attorneys.

Francisco's office is siding with Richard Culbertson, an Orlando, Florida, attorney who represents Social Security claimants. Culbertson challenges how fees are awarded to attorneys under the Social Security Act for their work recovering past-due benefits before the agency and in federal district court.

The federal circuit courts are split on whether a 25 percent cap on fees for representation of claimants in court are only for in-court work or a cap on total fees earned for court and agency representations.

Culbertson is arguing against a cap on total fees. Three circuits—Sixth, Ninth and Tenth—hold the cap is only on fees for court representation. But the Fourth, Fifth and Eleventh circuits hold that the cap applies to total fees awarded for court and agency representations.

For Culbertson, the Eleventh Circuit decision in his fee case meant the difference between a fee award of $4,488.48 for reversing the agency's initial decision in court, and an ultimate award of $1,623.48 under the overall cap of 25 percent for both his agency and court work.

The case, if it's granted review, would require the justices to work their way through the statutory language, structure and legislative history of two fee provisions in the act.

In addition to his statutory arguments, Culbertson's lawyer, Daniel Ortiz of the University of Virginia School of Law's Supreme Court Litigation Clinic, tells the justices in his petition that attorneys who represent claimants in these cases “do not do so to get rich.” And he offers some data from the Office of the Inspector General of the Social Security Administration to back up that statement.

Of the attorney and non-attorney representatives of claimants before the agency, 91 percent made less than $100,000 in annual income in the 2013 tax year. Their median annual income related to direct payments by the agency was only $7,800 in that tax year.

Francisco tells the court that the government has been “on both sides of the issue.” In 1994, the government argued against a 25 percent cap on total fees. But by 2007, it was defending an overall 25 percent cap and argued against Culbertson in the Eleventh Circuit.

“The government has now reconsidered its position in light of the certiorari petition,” Francisco tells the justices. “For that reason, if the court grants plenary review, the court may wish to consider appointing an amicus curiae to defend the judgment of the court of appeals.”

That was music to the ears of Ortiz and his client, no doubt.

“We're very happy that the government has come round to our view of the case for the same reasons and hope that those same arguments ultimately prevail at the court,” Ortiz says.

 

Working Group on Harassment Will Issue Report

 

The federal judiciary's working group on sexual harassment is still on schedule to issue a full report this month on reforms to address workplace harassment throughout the federal judicial system, according to David Sellers of the Administrative Office of the U.S. Courts.

The working group, created in the aftermath of the harassment scandal involving Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, released an interim report in March that identified nearly 20 reforms to address.

The group last met in April and established a mailbox on uscourts.gov to receive comments from current and former judiciary employees.

James Duff, director of the Administrative Office of the U.S. Courts, told members of a U.S. House committee in April:

“What we've been hearing—and what's supported by all the studies we've examined up to this point—employees need and want a less formalistic process. The formal complaint process works—to the extent it's utilized. But many employees want guidance and counseling and we think intervention earlier on in the process so that you don't need to get to the formal complaint process. We are going to create other outlets for employees within the branch both at a national level and throughout the circuits.”

Duff said the working group implemented “immediate improvements” regarding confidentiality provisions in place for judiciary employees and law clerks.

SCOTUS TV Stars?

 

While the big screen documentary about Justice Ruth Bader Ginsburg continues to draw rave reviews since its official opening May 4, the small screen—television—soon may be the next medium conquered by the justice and her friend, retired Justice Sandra Day O'Connor.

The news broke last week that actress Alyssa Milano's company, Peace Productions, is joining with PatMa Productions to develop a limited television series about the lives of the court's first two female justices.

The series reportedly will draw on the book, “Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World,” by Linda Hirshman.

The New York Times and Washington Post have reviews of the new RBG movie, and Big Law Business looks at how the filmmakers got access to Ginsburg.

In Case You Missed It: Kagan Embraces New Law Clerk Hiring Plan

 

  • At the annual meeting of the Seventh Circuit Bar Association and Judicial Conference, Justice Elena Kagan signaled her support of the new law clerk hiring process by saying she will “take into account” in her own clerk hiring whether judges and law schools are complying with the plan.
  • “The four-year absence of U.S. Supreme Court justices on the law school commencement circuit is over,” our colleague Karen Sloan reports. U.S. Supreme Court Justice Stephen Breyer is set to give New York Law School's commencement address at Carnegie Hall on June 1.
  • “Opinions related to orders” generally don't get the amount of attention that goes to opinions on the merits of argued cases, but those rulings can offer clues to the justices' personalities and the issues that they would like the court to address, according to a new report by Bloomberg Law.
  • Fix The Court reports that the justices have recused themselves 198 times this term—194 times at the certiorari stage and four times at the merits stage. Most of the recusals—137 of them (133 cert stage, four merits stage)—were because of previous work. Justice Neil Gorsuch not surprisingly leading the group with 72 (71 cert., one merits), followed by Justice Elena Kagan with 33 (31 cert; two merits) and Justice Sonia Sotomayor with 16 (all cert).