TN 16 (11-06)

A. Policy - General

1. Overview

Sections 206(b)(1) and 1631(d)(2) of the Act authorize a Federal court, which renders a Title II and/or, after February 27, 2005, a Title XVI judgment favorable to a claimant who was represented before the court by an attorney, to authorize a reasonable fee for such representation.

When we effectuate a favorable court judgment on a claim for benefits under Title II and/or Title XVI of the Act, we withhold 25 percent of the past-due benefits for possible direct payment of a fee the court may authorize for the attorney’s services in proceedings before the court.

SSA will pay the court authorized fee to the representative as follows:

• If the court authorizes the fee before January 1, 2007, SSA will pay the fee to the attorney to the extent that past-due benefits permit.

• If the court authorizes the fee after December 31, 2006, SSA will pay the fee to the attorney if the attorney is registered for direct payment, as defined in GN 03920.017B.3 and GN 03910.042. Because SSA does not receive an appointment of representative in connection with a claim appealed to the Federal court, after January 1, 2007, SSA will ensure that the attorney has the opportunity to register for direct payment, before processing the court’s fee authorization.

NOTE: Non-attorneys cannot represent claimants at the court level.

2. Waiver of Fee

If an attorney agreed not to charge and collect a fee, the attorney must sign a statement waiving the attorney's fee. For processing instructions, see GN 03920.020D.

Note that an attorney may specify on the waiver document or comparable written statement that he/she waives the fee for his/her services before SSA, but not before the court, or vice versa.

3. Fee Authorization

The Act provides that the fee the court allows may not exceed 25 percent of Title II and/or Title XVI past-due benefits.

The attorney must obtain authorization of a fee for services provided before a court from the court that ultimately made the favorable judgment.

NOTE: A court remand to the Commissioner for an award of benefits is considered a favorable court decision for fee purposes. The treatment of a court order which remands the case for further administrative proceedings depends on the outcome of those administrative proceedings. The courts have interpreted section 206(b)(1) to include as a favorable court decision for fee purposes court remands which result in a favorable administrative decision. In such cases, after the favorable administrative decision on remand, the court may award a reasonable fee for the attorney's services before the court in obtaining the remand, and we can pay the court-ordered fee from withheld past-due benefits. However, if the proceedings on remand do not result in a favorable decision, the court's order remanding the case is not considered a favorable court decision for purposes of section 206(b) or 1631(d)(2) of the Act.

4. Dual Fee Authorization

In some situations, a Federal court may authorize a fee for services provided before the court, and the Office of Hearings Operations (OHO) may also authorize a fee for services provided before SSA. This dual authorization results from the language of §§206 and 1631(d)(2) of the Act (i.e., the court's authorization is for services before the court only, while SSA's authorization is for services before SSA only).

5. Identifying Attorneys for Court Proceedings

The attorney(s) for the court proceedings may differ from the representative(s) for the SSA administrative proceedings. Attorneys before the court often do not file a notice of appointment (i.e., SSA-1696) with SSA. Therefore when processing a court level allowance or a favorable ALJ/AC decision after a court remand, verify the identity of the court attorney via the Public Access to Court Electronic Records (PACER). Access PACER via the SSA Digital Library. Staff trained in court case processing are familiar with this query.

B. Policy - Past-Due Benefits

1. What Constitutes Past-Due Benefits

The definition of past-due benefits in administrative and court level cases is the same, except that the past-due benefits period in cases favorably decided by a court ends the month before the month of the court's decision awarding benefits. When the court does not award benefits but remands the case to us for a decision, we use the applicable administrative level procedure to determine past-due benefits. See GN 03920.030B and GN 03920.031B for a discussion of past-due Title II and Title XVI benefits, respectively, for cases decided at the administrative level.

2. Benefits of Title II Auxiliary Beneficiaries or Title XVI Spouse

SSA includes benefits of a Title II auxiliary beneficiaries (whether living in the same household or not) with the primary claimant's past-due benefits if the auxiliary beneficiaries effectively files, or has a protective filing date, for benefits as of, or earlier than, the date of the court's judgment.

For TXVI couple’s cases, a spouse’s benefits may be included in the past-due benefit amount used to calculate the representative’s fee. This occurs when the spouse becomes eligible for or has an increase in TXVI benefits as a result of the claimant’s eligibility.

3. Past-Due Benefits Withheld for Direct Payment

If the court awards an attorney's fee and the attorney is eligible for direct payment, as defined in GN 03920.060D. SSA will certify direct payment of up to 25 percent of the Title II past-due benefits, minus the assessment. See GN 03920.019 Assessment on Representatives Who Receive Direct Payment And GN 03920.035 Title II Past-Due Benefits Subject to Withholding.

If the court awards an attorney’s fee and the attorney is eligible for direct payment, SSA will pay out of the Title XVI past-due benefits to the attorney an amount equal to the lesser of:

• as much of the maximum fee as does not exceed 25 percent of the Title XVI past-due benefits as defined in GN 03920.031 (as determined before any reduction for interim assistance reimbursement), or

• the amount of the Title XVI retroactive check available after reductions for interim assistance reimbursement; minus the assessment.

See GN 03920.036 - Title XVI Past-Due Benefits Subject to Withholding.

NOTE: SSA withholds a maximum of 25 percent of past-due benefits for payment of fees, whether authorized by SSA, a court, or both.

4. Effect of Overpayment on Past-Due Benefits

a. Prior Overpayment

SSA will not adjust the computation of the amount of Title II or Title XVI past-due benefits for overpayments arising during a period of time not adjudicated by the favorable court decision. Note the difference between the past-due benefits amount used for computing the representative's fee versus the past-due benefits amount payable to the claimant after the prior overpayment is deducted. See the example at GN 03920.032B.2.

b. Current Overpayment

SSA will adjust Title II and Title XVI past-due benefits by the amount of any overpayment that occurred during the past-due benefits period that results from the court decision. In a favorable decision rendered by a court, any current overpayment will be calculated based on months for which the claimant was overpaid during the past-due benefit period that results from the court decision, through the month before the month of the court's judgment.

If a Title II auxiliary beneficiaries or a Title XVI spouse in an SSI couples case is currently overpaid, SSA will adjust only the auxiliary beneficiaries’ or spouse’s past-due benefits amount that results from the court decision, not the claimant's or any other auxiliary's past-due benefits.

SSA will not use overpayments incurred for months in or after the month a favorable court judgment is issued to offset the amount of past-due benefits it withholds for payment of the attorney's fee.

5. No Past-Due Benefits Withheld

If the court orders payment of an attorney's fee from past-due benefits and the processing center or field office did not withhold benefits, the reconsideration reviewer, senior claims processing specialist, disability specialist, or claims representative will contact the Office of the General Counsel for further instructions. (See GN 03930.180, Office of the General Counsel Regional Contacts for Effectuation (Other Than Equal Access to Justice Act.))

C. Policy – Attorney Eligible for Direct Payment of Fee Authorized by the Court

1. Court Authorizes Fee Prior to January 1, 2007

If the Federal court renders a judgment favorable to the claimant under Title II and/or Title XVI, and prior to January 1, 2007, authorizes a fee for the claimant’s attorney’s services before the court, the attorney is eligible for direct payment of the court authorized fee.

2. Court Authorizes Fee after December 31, 2006

If the Federal court renders a judgment favorable to the claimant under Title II and/or Title XVI, and after December 31, 2006, authorizes a fee for the attorney’s services before the court, the attorney is eligible for direct payment if the attorney is registered to receive direct payment, as defined in GN 03920.017B.3 and GN 03910.042.

D. Procedure – Court Authorizes Fee Before January 1, 2007

When effectuating a favorable court judgment, withhold from the claimant’s past-due benefits for possible direct payment, as described in GN 03920.060B.3.

If the court’s fee authorization is received before January 1, 2007, pay the court authorized fee directly to the attorney, to the extent that the withheld past-due benefits permit.

E. Procedure – Court Authorizes Fee After December 31, 2006

When effectuating a favorable court judgment, withhold from the claimant’s past-due benefits for possible direct payment, as described in SM 0848.360 and MSOM MCS 008.004.

1. Court Judgment Effectuated Before January 1, 2007

If the favorable court judgment is effectuated before January 1, 2007, when the court’s fee authorization is received, determine if the attorney is registered for direct payment, as defined in GN 03920.017C.

a. Attorney Registered for Direct Payment

If the attorney is registered for direct payment, follow the procedure in GN 03920.060E.2.a.

b. Attorney Not Registered for Direct Payment

If the attorney is not registered for direct payment, notify the attorney that he/she must register for direct payment within 30 days, if he/she wishes for SSA to pay the fee directly to him/her, and diary the fee action for 45 days.

• If the attorney registers to receive direct payment by the end of the diary period, process the court’s fee authorization and pay the fee to the attorney to the extent the withheld past-due benefits permit.

• If the attorney has not registered to receive direct payment by the end of the diary period, notify the attorney that SSA will not pay the fee directly to him/her because he/she did not register for direct payment and that he/she must collect the fee from his/her client. Release the withheld past-due benefits to the claimant(s).

2. Court Judgment Effectuated After December 31, 2006

a. Attorney Is Registered

If the attorney is registered to receive direct payment when you effectuate the court’s favorable judgment, after effectuating the decision, diary the case for receipt of the court’s fee authorization. When the fee authorization is received, deduct the assessment, if applicable; pay the fee to the attorney; and release the difference between the amount of the withheld past-due benefits and the authorized fee, if any, to the claimant(s).

b. Attorney Is Not Registered

If the attorney is not registered to receive direct payment when you effectuate the court’s favorable judgment:

• Notify the attorney that SSA will pay the fee if he/she registers for direct payment within 30 days or before the fee is authorized for the attorney’s services before the court, whichever date is later.

• Diary the case for receipt of the fee action.

When the court’s fee authorization is received, determine if the attorney has registered. If the attorney has not registered and the 45 –day diary period has not ended, re-diary the case until the 45-day diary period expires.

• If the attorney has registered, see GN 03920.060E.2.a.

• If the attorney has not registered, notify the attorney that SSA is not paying the fee from the past-due benefits because he/she did not register for direct payment. The claimant is responsible for fee payment. Release the withheld past-due benefits to the claimant(s).

F. References

GN 03106.000, Litigation

GN 03990.000., Equal Access to Justice Act

MSOM INTRANETARDB 001.001, Appointed Representative System Overview

GN 03910.090 Exhibit 7 – Form SSA-1699 - Registration for Appointed Representative Services and Direct Payment

MSOM SPECPAYSYS 004.001, Appointed Representative Direct Pay

GN 03910.090 Exhibit 2 – SSA- 1696-U4 - Appointment of Representative

GN 03920.020C. - Procedure - FO and PC - Legal Services Organizations

GN 03940.000 Fee Authorization under the Fee Agreement Process