Marasco & Nesselbush Secures a Huge Victory in the First Circuit Court of Appeals

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Donna Nesselbush of Marasco & Nesselbush Secures a Huge Victory in the First Circuit Court of Appeals Allowing Law Firms to Get Paid for Associates’ Legal Work

Donna Nesselbush and the Marasco & Nesselbush team recently achieved a huge victory in the First Circuit Court of Appeals over the Social Security Administration in the decision Marasco & Nesselbush, LLP v. Collins, et al.  The ruling will have long-standing benefits for clients and law firms who help the injured and disabled obtain Social Security disability benefits.

Marasco & Nesselbush, LLP has won an important federal lawsuit against the Social Security Administration (SSA), challenging the agencys rules about compensation for attorneys and law firms that represent Social Security disability claimants. 

In a ruling issued on July 16, 2021, by the United States First Circuit Court of Appeals, a three-judge panel struck down as arbitrary and capricious” and therefore unenforceable SSA rules that prohibited law firms from getting paid on cases handled by associate attorneys who later left the employ of the law firm, moving on to work for the government or elsewhere.

The case involved five M&N associate attorneys who were hired by SSA to work in various positions at SSA or the Office of Hearing Operations. After hiring these 5 M&N associates, SSA then took the position that Marasco & Nesselbush must forfeit the fees associated with any cases handled by these associates, where the cases were not yet finally adjudicated. This potentially put tens of thousands of dollars in M&N fees at risk because Social Security disability cases can often take years for final adjudication and payment to claimants and their attorneys.

“Whether associates go to work for the government, go to work for another firm, or fall in love and move to Tahiti, we as a law firm should not have to continue to track these former associates and essentially beg them so we can get paid for the work they did while they worked for us months or years ago,” Nesselbush said.

“I always knew that fundamental fairness, justice and the Constitution were on our side,” said attorney Donna M. Nesselbush. “This case was never just about fees. This case was always about access to justice because access to justice requires access to attorneys.”   

Rhode Island Lawyers Weekly states in their July 30, 2021 article, Social Security law firms wrongly denied payment, “Vacating the lower court decision, the 1st Circuit found that the two rules in question were arbitrary and capricious, necessitating a rewrite. “  

We hope this decision sets the stage for a much-needed sea change within the Social Security Administration that spawns a more collegial and less acrimonious relationship between them and the people whom they are supposed to serve.  An improved relationship can only help us all work together more effectively to better serve the needs of the truly disabled among us.

Jennifer Gehringer Puerini, President of the Rhode Island Association for Justice commended Marasco & Nesselbush for their courage and tenacity in pursuing the suit. “Marasco & Nesselbush dedicated great effort and resources to fighting a difficult battle and prevailed in obtaining justice for attorneys who represent the disabled and our society’s most vulnerable,” said Gehringer Puerini, who further congratulated Marasco and Nesselbush on “a big victory for those who are already underrepresented in society.”

Nesselbush thanked the First Circuit Court of Appeals and lauded attorneys Robert Corrente, Timothy Baldwin and Caroline Thibeault from Whelan, Corrente and Flanders saying, “[W]e could never have prevailed without our steadfast attorneys and their legal wisdom, strategy, tenacity and skillful writing.”