The representative generally selects which fee authorization process to use. The two fee authorization processes are not interchangeable. When a representative who was a party to an approved fee agreement also files a fee petition, we generally treat the fee petition as the representative's request for review of the fee authorized under the fee agreement process (see GN 03960.010). We will never authorize a fee under both processes for the same case.

The representative and the claimant may submit a fee agreement in which they have agreed to a two-tiered agreement where the representative has specified that the parties will use:

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  The fee agreement process if we favorably decide the claim at a certain level (e.g., at or below the first administrative law judge (ALJ) hearing); and

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  The fee petition process if the claim progresses beyond the level specified in the agreement (e.g., at the OAO level or following a remand from OAO or a Federal court).

Unless the representative or claimant files a fee agreement before the date we make the first favorable determination or decision the representative worked toward achieving, we presume that the representative will either file a fee petition or waive the fee.

If a Federal court remands the case to us for further administrative action and an ALJ or the AC subsequently issues a new administrative decision, that decision becomes the final decision of the Commissioner. In these cases, any prior fee agreement approval or disapproval made in connection to the prior decision is vacated, and we may authorize a fee in this case to the representative(s) at the administrative level under the fee agreement on file, unless other reasons prevent authorization. A fee agreement submitted during the original administrative proceedings remains in effect and may be approved again (see GN 03940.001C). A representative may file a fee petition if the fee agreement is disapproved, or for other reasons (e.g., it was a two-tier fee agreement valid only through the hearing level).

If a Federal court makes the final decision regarding the claimant’s entitlement to or eligibility for benefits, and the fee agreement was disapproved at the administrative level when the case was denied, the representative may file a fee petition to charge and collect a fee for the services the representative provided before us during the administrative proceedings. In this situation, the fee petition request will be for the services the representative provided before us (i.e., before the Federal court appeal). If the final administrative decision was partially favorable and we had already authorized a fee to the representative based on the approved fee agreement, that authorization remains in effect. We will not further adjust the fee, unless there is a request for administrative review as described in GN 03960.040 (see GN 03920.040B). For more information on fees for cases that involve a Federal court appeal, see GN 03920.060.