Case: 1:17-cv JG Doc #: 87 Filed: 01/11/19 1 of 5. PageID #: 1056 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

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1 Case: 1:17-cv JG Doc #: 87 Filed: 01/11/19 1 of 5. PageID #: 1056 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION STEPHANIE LYNN STEIGERWALD on behalf of herself and the class, v. Plaintiffs, NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, ET AL. Defendants. CASE NO.: 1:17-CV-1516 JUDGE JAMES S. GWIN PLAINTIFFS NOTICE OF SUPPLEMENTAL AUTHORITY 1 Plaintiff Stephanie Lynn Steigerwald, on behalf of herself and the certified Class, respectfully submits this Notice of Supplemental Authority relating to Plaintiffs Motion for Summary Judgment. Doc. 50 (Plaintiffs Motion. One of the issues currently pending before the Court in Plaintiffs Motion is whether, should a favorable judgment be rendered in this case, Class Counsel would be eligible for reasonable attorneys fees pursuant to 42 U.S.C. 406(b. See Doc. 50-1, pp On January 8, 2019, the Supreme Court issued its Opinion in Culbertson v. Berryhill, 586 U.S., 2019 WL (2019, which speaks to this issue. The Supreme Court in Culbertson was tasked with interpreting 42 U.S.C. 406(b, the very statute at issue in Plaintiffs Motion. Justice Thomas, writing for a unanimous Court, found: 1 Class Counsel recognizes that, pursuant to Chief Judge Patricia A. Gaughan s General Order No , this civil matter is currently stayed, and will remain stayed until such time as appropriations funding the federal government are made available. Notwithstanding the current stay, Class Counsel believes it prudent to inform the Court of the Supreme Court s ruling this week in a case interpreting 42 U.S.C. 406(b. Undersigned counsel called the Northern District of Ohio Clerk s Office in order to inquire whether filings were allowed during the ongoing stay period. Undersigned counsel was told that, while filings during this period are not required, they are allowed.

2 Case: 1:17-cv JG Doc #: 87 Filed: 01/11/19 2 of 5. PageID #: 1057 We begi[n] with the language of the statute itself, and that is also where the inquiry should end, for the statute s language is plain. Puerto Rico v. Franklin Cal. Tax Free Trust, 579 U.S., (2016 (slip op., at 9 (internal quotation marks omitted. Under 406(b, when a court renders a judgment favorable to a claimant... who was represented before the court by an attorney, the court may award a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment WL , at *4 (quoting 42 U.S.C. 406(b(1(A (emphasis in Culbertson. In so holding, the Supreme Court emphasized two points that the briefings in support of Plaintiffs Motion had argued this Court should adopt. First, the above excerpt from Culbertson affirms Plaintiffs understanding that [t]he language of this statute [42 U.S.C. 406(b] is clear and unambiguous. Pursuant to its terms, when a court issues a favorable judgment, the attorney may be entitled to a reasonable fee for the attorney s representation. Doc. 50-1, p. 18. See also Doc. 54, p. 6 ( Pursuant to its plain terms, 42 U.S.C. 406(b applies should the Court award Plaintiff and a proposed class a favorable judgment ordering the Agency to pay class member claimants their past-due benefits. (Footnote omitted. Second, the Culbertson language cited above emphasizes that the focus of 406(b analysis is the attorney s representation before a court. In this case, should Plaintiffs prevail, it will be through Class Counsel s representation of the class in this Court. Thus, Culbertson mandates that 406(b should apply. See Doc. 54, p. 16 ( 42 U.S.C. 406(b applies [w]henever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney.... Should the Court render a favorable judgment in this case, by its clear terms 42 U.S.C. 406(b would apply.. By contrast, Defendants position that Class Counsel could not be entitled to attorneys fees under 42 U.S.C. 406(b, Doc. 52, p. 25, is belied both by the clear, unambiguous text of 2

3 Case: 1:17-cv JG Doc #: 87 Filed: 01/11/19 3 of 5. PageID #: 1058 the statute itself and by Culbertson s mandate that the statutory text be read pursuant to its plain terms. Respectfully submitted, s/jon H. Ressler, Ohio Bar No ROOSE & RESSLER A Legal Professional Association 6150 Park Square Drive Suite A Lorain, Ohio Telephone: ( Facsimile: ( jressler@rooselaw.com s/ Ira T. Kasdan, admitted pro hac vice s/ Joseph D. Wilson, admitted pro hac vice s/ Bezalel Stern, admitted pro hac vice KELLEY DRYE & WARREN LLP 3050 K Street, N.W., Suite 400 Washington, DC Telephone: ( Facsimile: ( ikasdan@kelleydrye.com jwilson@kelleydrye.com bstern@kelleydrye.com Attorneys for Plaintiff and the class Dated: January 11,

4 Case: 1:17-cv JG Doc #: 87 Filed: 01/11/19 4 of 5. PageID #: 1059 CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1 The undersigned declares under penalty of perjury that the Notice of Supplemental Authority complies with the page limitations for a Standard matter, and is 3 pages long. /s/ Ira T. Kasdan Ira T. Kasdan Attorney for Plaintiff and the class 4

5 Case: 1:17-cv JG Doc #: 87 Filed: 01/11/19 5 of 5. PageID #: 1060 CERTIFICATE OF SERVICE I hereby certify that on this 11th day of January, 2019, a copy of the foregoing Notice of Supplemental Authority was filed electronically. Notice of this filing will be sent to all parties by operation of the Court s electronic filing system. Parties may access this filing through the Court s system. /s/ Ira T. Kasdan Ira T. Kasdan Attorney for Plaintiff and the class 5