Sections 206(b) and 1631(d)(2) Fees

Sections 206(b) and 1631(d)(2) of the Social Security Act (the Act) authorize a Federal court that makes a favorable title II and/or title XVI judgment to award an attorney a reasonable fee for services in proceedings before the court. The attorney must obtain judicial authorization of a fee for services provided before a court, from the court that ultimately made the favorable judgment. The attorney's fee may not exceed 25 percent of the claimant's title II and/or title XVI past-due benefits.

If a court awards a fee under this provision, generally SSA will certify direct payment of up to 25 percent of the title II and/or title XVI past-due benefits. However, SSA withholds a maximum of 25 percent of past-due benefits for payment of fees, whether authorized by SSA, a court, or both.

Equal Access to Justice Act (EAJA) , 5 U.S.C. 504, 28 U.S.C. 2412:

  • Authorizes an attorney to obtain reimbursement of expenses incurred (e.g., legal fees, expert witness fees, etc.) in the course of representing a litigant in a court action and certain administrative proceedings involving a government agency;

  • Stipulates that reimbursement of legal fees and other expenses applies only with respect to proceedings in which the party prevails against the agency, and only if the court finds that the position of the government was not substantially justified; and

  • Provides that when a representative received fees for the same work under both sections 206(b) and 1631(d)(2) of the Social Security Act and EAJA, the representative must refund to the claimant the amount of the smaller fee.

If a representative is known or suspected to have collected fees under both statutes, but did not refund the smaller fee to the claimant, the representative may be in violation of sections 206(b)(2) and 1631(d)(2) of the Act.