I-1-2-71.Attorney's Fees for Representation in Proceedings Before a Court
Last Update: 7/22/16 (Transmittal I-1-86)
A. Fee Authorization
Under sections 206(b)(1) and 1631(d)(2) of the Social Security Act (Act), a Federal court that renders a judgment favorable to the claimant has jurisdiction to authorize a reasonable fee for an attorney who represented the claimant before the court. However, the attorney's fee for services in court may not exceed 25 percent of the total of past-due benefits to which the claimant is entitled. If a court awards a fee under this provision, the Social Security Administration (SSA) may pay the fee from past-due benefits.
The definition of past-due benefits in administrative and court level cases is generally the same, except that the past-due benefits period in court cases ends the month before the month of the court's favorable judgment. For more information about past-due benefits, see Hearings, Appeals and Litigation Law manual I-1-2-7.
Any fee authorized for services before the court is in addition to the fee, if any, SSA authorizes for proceedings at the administrative level (see subsection B below). However, SSA only withholds a maximum of 25 percent of past-due benefits for direct payment of fees, whether authorized by SSA, a court, or both.
When a court remands a case to the Commissioner to award benefits, this is considered a favorable court decision for court fee purposes. If a case is remanded for additional administrative proceedings, the courts have interpreted sections 206(b)(1) and 1631(d)(2) of the Act to apply to court remands that result in a favorable administrative decision (i.e., after the favorable administrative decision on remand, the court may award a reasonable fee for the attorney's services before the court). If the proceedings on remand do not result in a favorable decision, the court's remand order is not considered a favorable court decision for purposes of sections 206(b)(1) and 1631(d)(2) of the Act.
B. Dual Fee Authorization (Court and Administrative Fee)
In some situations, a representative may be authorized a fee by both a court and the Office of Disability Adjudication and Review. This dual authorization results from a strict interpretation of sections 206(b)(1) and 1631(d)(2) of the Act that indicates the court's authorization is for services before the court only. Therefore, the representative is authorized two separate fees: one for services before the court and one for services before SSA.
In considering an administrative fee, a decision maker will not consider service the representative gave in any proceeding before a court. See 20 CFR 404.1728 and 416.1528. The dual fee authorization context can raise unique issues in assessing whether a service is before SSA or before the court. Most commonly, this issue arises regarding services provided after the Appeals Council (AC) denies a request for review and before a civil action is filed. Generally, whether a service is before a court or before SSA depends on whether the representative directed the services to and expects action from the court or SSA.
1. When Services Are Before the Court
Generally, services are before a court if the representative's services or activities:
Involve counseling with the claimant concerning the advisability of filing a civil action or requesting an extension of time to file a civil action without submission of additional evidence or briefs to the AC;
Pertain to preparing a civil complaint or motion to have the court set aside the AC's action; or
Are directed to obtaining a decision or ruling from the court.
2. When Services Are Before SSA
Generally, services are before SSA if:
The representative submits additional briefs or evidence to the AC to reconsider or vacate its previous action; or
The representative's activities are directed at obtaining a ruling or further action from the AC, whether or not the case subsequently proceeds to court.