Rescinded September 14, 2018 by FR Vol. 83, No. 179, page 46771


20 CFR 404.975-404.977a

SSR 72-14c

Schneider v. Richardson, 441 F.2d 1320 (6th Cir. 4/28/71); petition for certiorari to Untied States Supreme Court denied 10/12/71

Held, under section 206(a) of the Social Security Act (42 U.S.C. 406(a)), the amount of an attorney's fee allowed by the Secretary for services performed at the administrative level is a matter legally committed to the Secretary's discretion and not subject to judicial review.

PER CURIAM. Plaintiff-appellant, Morton E. Schneider, an attorney, represented a social security claimant at an administrative hearing who was awarded benefits in the amount of $11,233.70. He then filed a petition with the hearing examiner requesting approval of a $2,808.42 legal fee, being twenty-five per cent of the benefits awarded. The hearing examiner allowed a fee of $500 and following an administrative appeal as authorized by 200 C.F.R. 404.975(e), the Appeals Council affirmed. The appellant then brought this action in District Court seeking judicial review. He alleges that his client had agreed to pay him a twenty-five per cent contingent fee, and further that he was required to spend some fourteen hours in preparing and presenting his client's case and an additional two hours in preparing his own petition for a fee. He brands the fee award of the Secretary as an abuse of discretion because of its alleged inadequacy.[1]

The District Court dismissed the action on the grounds that it lacked jurisdiction. This appeal followed and raises the single issue of whether the Social Security Act precludes judicial review of legal fees awarded by the Secretary of Health, Education and Welfare to an attorney who has represented a social security claimant at the administrative level. We affirm the District Court's dismissal of the action.

Appellant contends that the Secretary's award of legal fees is judicially reviewable under 5 U.S.C. 704 of the Administrative Procedure Act providing in part that "(a)gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. . . . However, 5 U.S.C. 701(a) of the Administrative Procedure Act clearly establishes two exceptions to the provisions for judicial review of agency action provided in Section 704. One exception is where "statutes preclude judicial review" and the other, directly on point in this case, is where "agency action is committed to agency discretion by law."

Section 403(a)[2] [206(a)] of the Social Security Act (42 U.S.C. 406(a)) commits to the discretion of the Secretary of Health, Education, and Welfare the setting of legal fees for administrative representation of social security claimants. In a factual situation similar to the present case in Chernock v. Gardner, 360 F.2d 257 (3rd Cir. 1966), it was held ". . . the setting of fees for representation of claimants before the Secretary is committed to that agency's discretion by Section 206 of the Social Security Act, and judicial review is therefore precluded by Section 10 of the Administrative Procedure Act. . . ." This decision in Chernock that the amount of an attorney's fee for services performed at the administrative level is a matter of discretion with the Secretary and is not subject to judicial review has been cited with approval in recent cases involving attorneys fees for representation in the district courts. Finix v. Finch, _____ F.2d _____ (1st Cir. 1971); Canner v. Gardner, 381 F.2d 497 (4th Cir. 1967); Robinson v. Gardner, 374 F.2d 949 (4th Cir. 1967); Gardner v. Menendez, 373 F.2d 488 (1st Cir. 1967).


[1] Because of our disposition of this case, we do not reach this issue.

[2] Section 406(a) of the Social Security Act provides in part ". . . [t]he Secretary may, by rule and regulations, prescribe the maximum fees which may be charged for services performed in connection with any claim before the Secretary under this subchapter, and any agreement in violation of such rules and regulations shall be void."

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