This educational guide is based on the linked primary sources. It is not a Court publication, is not affiliated with the Court, and is not legal advice.
In brief
Overview
Eric Schnaufer argued that 42 U.S.C. § 406(b) requires attorney fees to be contingent on success and that district‑court fee awards should reflect that contingent nature.
Eric Schnaufer contended that district courts awarded non‑contingent hourly rates, which he said is contrary to the statutory requirement that fees be contingent.
The Government says the statute directs courts to determine a reasonable fee.
According to Government, the Government states that the Commissioner interprets § 406(b) to require only contingent fees.
The Government says Congress enacted the statute to address a market failure in which lawyers charged excessively large contingency fees in Social Security cases.
According to Government, the Government notes that the agency rarely appeals attorney‑fee awards unless the case raises a broader legal principle.
The Government argues that the lodestar method has been used for decades in six circuits without evidence that it harms counsel availability.
- [1] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 3
- [2] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 8
- [3] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 38
- [4] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 37
- [5] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 40
- [6] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 42
- [7] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 49
Background and question before the Court
Justice Scalia asked whether the testimony reflected a universal practice among lawyers representing Social Security clients.
A Justice asked whether § 406(b) prohibits a lawyer from charging $300 per hour if the client pays after a successful claim.
A Justice followed up asking whether the lawyer could bill after the judgment is entered.
A Justice questioned whether the statute says all fees must be contingent.
A Justice asked about the frequency with which attorney‑fee awards are appealed to the Court of Appeals.
A Justice asked about statistics concerning the attorney in such appeals.
Justice Stevens asked about the EAJA lodestar method.
Justice O'Connor asked whether contingency could be considered by a district court in determining the fee.
- [1] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 19
- [2] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 36
- [3] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 37
- [4] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 38
- [5] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 42
- [6] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 43
- [7] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 53
- [8] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 53
What each side argues
Petitioners' Position
According to Eric Schnaufer, petitioners argue that § 406(b) requires attorney fees to be contingent on success and that district courts should award fees that reflect that contingency.
According to Eric Schnaufer, petitioners contend that district courts awarded non‑contingent hourly rates, contrary to the statutory requirement that fees be contingent.
Government's Position
The Government says the statute directs courts to determine a reasonable fee.
According to Government, the Government states that the Commissioner interprets § 406(b) to require only contingent fees.
The Government says Congress enacted the statute to address a market failure in which lawyers charged excessively large contingency fees in Social Security cases.
According to Government, the Government notes that the agency rarely appeals attorney‑fee awards unless the case raises a broader legal principle.
The Government argues that the lodestar method has been used for decades in six circuits without evidence that it harms counsel availability.
What happened at oral argument
Justice Scalia asked whether the testimony reflected a universal practice among lawyers representing Social Security clients.
A Justice asked whether § 406(b) prohibits a lawyer from charging $300 per hour if the client pays after a successful claim.
A Justice followed up asking whether the lawyer could bill after the judgment is entered.
A Justice questioned whether the statute says all fees must be contingent.
A Justice asked about the frequency with which attorney‑fee awards are appealed to the Court of Appeals.
A Justice asked about statistics concerning the attorney in such appeals.
Justice Stevens asked about the EAJA lodestar method.
Justice O'Connor asked whether contingency could be considered by a district court in determining the fee.
- [1] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 19
- [2] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 36
- [3] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 37
- [4] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 38
- [5] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 42
- [6] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 43
- [7] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 53
- [8] cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdf, p. 53
What the Court decided
Why it matters
Terms to know
No glossary terms are available for this guide.
Primary sources
Read the source materials on the official site or open the immutable repository copy used for this guide.
- cbf2d0dbeb9ff116e800-r1-9d1ddb689fb1bc2a.pdforal argument transcript
Guide generated September 19, 2026. Automated validation accepted this version.