I-1-2-6.Delegation of Authority for Fee Authorization

Last Update: 7/22/16 (Transmittal I-1-86)

A. Initial or Reconsideration Levels

For the delegation of authority for authorizing representative fees at the initial or reconsideration levels, see Program Operations Manual System (POMS) GN 03920.015.

B. Hearing Level

1. Fee Agreement

An administrative law judge (ALJ) who favorably decides a claim(s) or post-entitlement action(s) has the authority to approve or disapprove a fee agreement. An ALJ takes no action on a fee agreement when issuing an unfavorable decision or dismissal order. For general policy related to fee agreements, see Hearings, Appeals and Litigation Law (HALLEX) manual I-1-2-11. If a fully favorable decision is issued by an attorney advisor (see 20 CFR 404.942 and 416.1442), the attorney advisor has the authority to approve or disapprove the fee agreement.

NOTE:

Except in very unusual circumstances, a decision maker will act on a fee agreement at the same time he or she issues a decision. However, should a situation arise where the decision maker who has the authority to approve or disapprove a fee agreement did not act on the fee agreement at the time of the decision, and the decision maker is now unavailable for 30 or more days, the Hearing Office Chief Administrative Law Judge (HOCALJ) will act on the fee agreement, or delegate that responsibility to another ALJ, to avoid inordinate delays in processing fee related actions.

There are some circumstances when action on or the fee authorized under a fee agreement may change, including the following:

  • If the claimant or representative requests administrative review of the approval or disapproval of the fee agreement, see HALLEX I-1-2-42.

  • If an effectuating component requests administrative review of the approval of a fee agreement, see HALLEX I-1-2-49.

  • If the claimant or representative requests administrative review of the fee amount authorized under the fee agreement process, see HALLEX I-1-2-44.

  • If the Appeals Council (AC) issues a decision after taking own motion review of a hearing level decision, see HALLEX I-1-2-6 C below and I-1-2-11.

  • If the claimant appeals a fully or partially favorable decision, see HALLEX I-1-2-14.

2. Fee Petition

Under the fee petition process, the ALJ who issued the final decision or dismissal order generally reviews the fee petition and issues the fee authorization, except when the AC takes the last administrative action on the claim (see NOTE below). If a fully favorable decision was issued by an attorney advisor (see 20 CFR 404.942 and 416.1442), the attorney advisor generally reviews any submitted fee petition and issues the initial fee authorization. When the decision maker is unavailable for 30 days or more, the HOCALJ will review the fee petition and issue the initial fee authorization, or delegate that responsibility to another ALJ, to avoid inordinate delays in processing fee petitions.

NOTE:

When the AC denies a request for review, it is considered “the last administrative action” for fee petition jurisdiction purposes. If the AC selects a case for possible own motion review but then declines to take own motion review, the hearing level decision maker will evaluate any submitted fee petition.

The decision maker must deny a request for a fee if the representative's fee contract is contingent on a favorable outcome and the outcome was ultimately unfavorable. For more information, see HALLEX I-1-2-51.

The initial authorizer may authorize a fee up to and including $10,000.00. If, after reviewing the fee petition, the initial authorizer believes a fee of more than $10,000.00 is warranted, he or she will recommend a fee amount to a designated authorizing official, as shown in the chart below. In establishing whether the $10,000.00 limit applies, the determinative factor is the fee amount(s) the initial authorizer is recommending, not the amount the representative(s) requested.

When multiple representatives request fees for the same case, the initial authorizer will issue a fee authorization for each fee petition filed, unless the cumulative total of the fees authorized would exceed $10,000.00. If the cumulative total exceeds that amount, the initial authorizer will recommend a fee for each fee request to the designated authorizing official identified in the chart below, and the designated authorizing official will be responsible for authorizing any fees. The designated authorizing official is not bound by the initial authorizer's recommendation.

When a recommending official recommends a fee greater than $10,000.00, the designated authorizing official is as follows:

Recommending Official

Designated Authorizing Official

Attorney Advisor, ALJ, or HOCALJ

Regional Chief Administrative Law Judge (RCALJ)

RCALJ

Deputy Chief ALJ

Deputy Chief ALJ

Chief ALJ

There are some circumstances when an authorized fee, based on a fee petition, may change. For example:

  • The claimant, any affected auxiliary beneficiary(ies), or the representative requests administrative review of the fee authorization. See HALLEX I-1-2-61. See also 20 CFR 404.1720(d) and 416.1520(d).

  • An effectuating component identifies a technical or administrative error that prevents direct payment of the authorized fee and refers the matter to the initial authorizer for correction. See POMS GN 03930.060 C.

  • The initial authorizer or other hearing office staff identifies a technical or administrative error in the fee authorization that requires correction, and, within a reasonable timeframe, the initial authorizer rescinds and revises the fee authorization.

C. AC Level

1. Fee Agreement

When the AC exercises its authority to issue a decision, the A member administrative appeals judge (AAJ) who favorably decides the claim(s) or post-entitlement action(s) will approve or disapprove a fee agreement. The AC takes no action on a fee agreement when it is denying review or issuing a remand, unfavorable decision, or dismissal order.

NOTE 1:

If the AC is issuing an unfavorable decision after reviewing a favorable ALJ decision in which a fee agreement was approved, see HALLEX I-1-2-14.

Of particular note, many fee agreements are tiered at the AC level (i.e., the fee agreement limits its application through a certain point in the administrative process). When a tiered fee agreement applies, in addition to the usual considerations, the AC will also consider the instructions in HALLEX I-1-2-15 in determining whether to approve the fee agreement.

NOTE 2:

As stated in HALLEX I-1-2-11, the AC will act on a fee agreement when it exercises its authority to issue a favorable decision after taking own motion review of a hearing level decision. This applies even if the AC limits review through the date of the hearing level decision, the hearing level decision maker approved a fee agreement, and the fee agreement approval was correct at the time of the hearing level decision. When the AC issues a decision, a revised fee action is necessary because there may have been a material change in circumstance as of the date of the revised AC decision (e.g., a tiered fee agreement that does not apply if the case was reviewed by the AC). For more information about own motion review by the AC, see HALLEX I-3-6-1.

If the claimant or the representative requests administrative review of the approval or disapproval of the fee agreement, see HALLEX I-1-2-42. If the claimant, affected auxiliary beneficiary(ies) (title II), eligible spouse (title XVI), representative, or decision maker requests administrative review of the fee amount authorized under the fee agreement process, see HALLEX I-1-2-44.

2. Fee Petition

When a representative requests a fee using the fee petition process, and the AC issued the final decision or took the last administrative action in the case, staff in the Attorney Fee Branch (AFB) in the Office of Appellate Operations (OAO) will review the fee request and make a recommendation. A designated individual then authorizes a fee after reviewing the recommendation. There are no authorization limits for the initial authorizer at the AC level.

If the claimant, any affected auxiliary beneficiary(ies), or the representative requests administrative review of the initial fee authorization under 20 CFR 404.1720(d) and 416.1520(d), see the instructions in HALLEX I-1-2-61. If an effectuating component, OAO staff, or AC member identifies a technical or administrative error in the fee authorization that prevents payment of the authorized fee or otherwise requires correction, within a reasonable timeframe, the AC will rescind and revise its fee authorization.

D. Federal Court

1. Favorable Court Decision

When a court issues a favorable decision for a claimant, the AFB in OAO is responsible for reviewing a representative's request for a fee for administrative services before the Social Security Administration (SSA). For detailed information about representative fees for services provided in court proceedings, see HALLEX I-1-2-71.

2. Remand From Court Resulting in Favorable SSA Decision

a. Fee Agreement

If SSA issues a favorable decision after a court remand, the ALJ or A member AAJ who favorably decides the claim acts on the fee agreement.

b. Fee Petition

If an ALJ issues the final decision of the Commissioner after court remand, the ALJ reviews the fee petition, as explained above in HALLEX I-1-2-6 B.2. If the AC issues the final decision after court remand, the AFB will process the fee petition, as explained above in HALLEX I-1-2-6 C.2.