I-1-2-49.ALJ or AAJ Incorrectly Approved Fee Agreement
Last Update: 2/25/05 (Transmittal I-1-48)
A. Effectuating Component Actions
1. Referral Procedures
Processing center (PC) and field office (FO) personnel may not reverse an Administrative Law Judge's (ALJ's) or Administrative Appeals Judge's (AAJ's) fee agreement determination. If the PC or FO authorizer responsible for effectuating a favorable hearing or Appeals Council (AC) decision concludes that the ALJ or AAJ incorrectly approved a fee agreement because it does not meet the requirements of the Act or an exception to the fee agreement process applies (see I-1-2-12), the authorizer will take the following actions:
process the claim to payment;
withhold 25 percent of past-due benefits if the representative is eligible for direct fee payment ;
request an incomplete notice to the claimant, deferring action on the fee agreement;
if the decision maker is an ALJ, prepare a memorandum addressed to the Regional Chief ALJ (RCALJ);
if the decision maker is an AAJ, prepare a memorandum to the Deputy Chair, AC; and
send the above memo with a copy of the ALJ's or AAJ's decision, the appointment(s) of representative(s), the fee agreement, the order approving the fee agreement, and any relevant documents, to the RCALJ or the Attorney Fee Branch (AFB) if the Deputy Chair, AC has jurisdiction.
If the effectuating component does not get a response within 45 days, it will:
follow up with the RCALJ or the Deputy Chair, AC, through the AFB, by fax or telephone, and
diary the claim for another 15 days.
2. Procedures After ODAR Acts on Referral
If the Office of Disability Adjudication and Review (ODAR) reverses the fee agreement determination, the PC or FO will diary the case for receipt of a fee petition and fee authorization from ODAR.
If ODAR affirms the fee agreement determination, the PC will follow standard procedures for processing an approved fee agreement.
B. ODAR Actions
After a PC or FO authorizer refers a case to ODAR because he/she believes the ALJ or AAJ incorrectly approved a fee agreement:
on a case resolved at the hearing level, the RCALJ who has jurisdiction over the claimant's servicing hearing office (HO) will determine whether action on the fee agreement is needed; or
on a case resolved at the Appeals Council level, the Deputy Chair, AC, will determine whether action is needed.
Within 30 days, the RCALJ or Deputy Chair will review the disputed action to determine if the agreement meets the provisions in § 206(a)(2)(A) of the Social Security Act (refer to I-1-2-12 (A.)), or is excepted from the process for one of the reasons listed in I-1-2-12 (B.).
If the RCALJ or Deputy Chair, AC concludes that the fee agreement was approved incorrectly, he/she will:
Issue an order to the claimant disapproving the fee agreement and advising that if the representative intends to charge and collect a fee, he or she must file a fee petition.
Send a copy of the order disapproving the fee agreement to the representative with a cover letter.
Send a copy of the corrective action to the respective PC or FO and the ALJ or AAJ who signed the prior order. If the PC has jurisdiction, use the cover sheet at I-1-2-114 (B.) to fax the action to the PC.
Refer to I-1-2-112 for sample language for the order disapproving the fee agreement and the cover letter to the representative.
If the RCALJ or Deputy Chair affirms the fee agreement approval, he/she will advise the PC or FO by memorandum to process the representative's fee under the fee agreement process. Refer to I-1-2-113 for sample language for that memorandum.