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Supreme Court Advocacy

NOSSCR and its members have written amicus briefs and argued cases before the U.S. Supreme Court in such cases as:

Kisor v. Wilkie, will open oral arguments before the Supreme Court on March 27, 2019 on the question of whether the Court should overrule its decisions in Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), which “direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.”  Although the agency involved in this case is the Department of Veterans Affairs, not the Social Security Administration (SSA), the decision in this case will undoubtedly affect the deference courts give to SSA’s, and all agencies’, interpretation of its regulations when their meanings are at issue. NOSSCR will be monitoring the argument and opinion and will provide guidance on its effects in the Social Security practice.

Smith v. Berryhill, argued on March 18, 2019 before the Supreme Court to determine “whether the Appeals Council’s decision to reject a disability claim on the ground that the claimant’s appeal was untimely is a ‘final decision’ subject to judicial review under Section 405(g).” 

Biestek v. Berryhill, which will answer the question of whether a vocational expert’s (VE’s) testimony can constitute substantial evidence of “other work” at step five of sequential evaluation process when the VE fails to provide the underlying data on which that testimony is premised upon the applicant’s request.  This case was argued on December 4, 2018.

Culbertson v. Berryhill, which was argued on November 7, 2018, held that 42 U.S.C. § “406(b)(1)(A)’s 25% cap applies only to fees for court representation and not to the aggregate fees awarded under §§ 406(a) [for administrative representation] and (b) [for court representation].”

Lucia v. SEC, holding that administrative law judges (ALJs) appointed within the Securities and Exchange Commission (SEC) must be done in a way that aligns with the Appointments Clause of the U.S. Constitution.

Astrue v. Capato, 132 S.Ct. 2021 (2012), holding that a posthumously conceived child who can inherit under the laws of intestacy of the relevant state can receive Social Security survivor’s benefits.

Astrue v. Ratliff, 560 U.S. 586, 130 S.Ct. 2521 (2010), involving the issue of whether the EAJA fee belongs to the plaintiff or the attorney.

Richlin Security Service Co. v. Chertoff, 553 U.S. 571 (2008), holding that EAJA fees for paralegal services should be paid at “prevailing market rates” rather than considered an “other expense.”

Gisbrecht v. Barnhart, 535 US 789 (2002) involving the calculation of attorneys’ fees for representation in federal court.

Sims v. Apfel, 530 U.S. 103 (2000) holding that an issue not raised at the Appeals Council level is not waived in federal court.

 

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