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:

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  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.

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  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.

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.

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.

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).

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.

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.

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.

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:

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  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

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  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.

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.))

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.

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.

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.