SSA - POMS: GN 03920.060 - Court-Awarded Attorneys Fees

A. Policy - General

1. Policy - Court-awarded fees

Claimants who have exhausted all administrative appeals in their Title II, Title XVI, or concurrent claims can appeal a final administrative decision to Federal district court. If an attorney represents a claimant during those Federal court proceedings and the court renders a favorable judgment that ultimately results in pat-due benefits, the court may award a reasonable attorney fee for the services performed before the court. According to the Act, the fee cannot exceed 25 percent of the total past-due benefits resulting from the courts judgment.

When we effectuate a favorable decision resulting in past-due benefits under Title II, Title XVI, or both Titles of the Act, we withhold 25 percent of the past-due benefits for possible direct payment of fees authorized to an eligible representative for their services before us or awarded to a court attorney for their services before the court. If the claimants judicial appeal results in past-due benefits, we will withhold and may directly pay up to 25 percent of the past-due benefits resulting from that appeal.

Our role in the fees the Federal court awards is limited. If requested, we provide the court and the court attorney with the necessary information for the court attorney to petition for the fee and for the court to award the fee. We also make direct payment, up to 25 percent of a claimants past-due benefits, consistent with agency policy. However, court-awarded fees are outside our administrative authority, and we cannot:

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Authorize 406(b) fees;
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Modify a court's 406(b) fee order;
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Authorize or modify a reimbursement order under the Equal Access to Justice Act (EAJA).

NOTE:

Non-attorneys generally cannot represent claimants at the court level.

B. Definitions

1. Court attorney

A court attorney is someone who represents claimants during Federal court proceedings. A court attorney may also serve as a representative before us if properly appointed before the agency. A person who represents a claimant before us and in court proceedings may seek both a 406(a) fee for services before the agency and a 406(b) fee for services before the court.

2. Favorable judgment

A Federal court may award 406(b) fees only after issuing a favorable judgment that results in past-due benefits. There are two types of favorable judgments:

a. The court finds the claimant entitled to or eligible for benefits

A Federal court may find that the claimant is entitled to or eligible for benefits and remand a case to the agency for effectuation without the need for a new administrative decision (i.e., an ALJ or Appeals Council decision).

b. The court remands for further administrative action and we issue a more favorable decision on remand

A Federal court may remand a case to us for further administrative action. On remand, the administrative law judge (ALJ) or the Appeals Council (AC) may issue a new decision. If the new decision is more favorable to the claimant, we consider the courts remand order to be a favorable judgment for purposes of Section 406(b)(1)(a).

NOTE: We may also authorize a fee to the representative handling the additional administrative proceeding for the remand under the fee agreement or fee petition process pursuant to our rules.

3. Dual Entitlement

Dual entitlement occurs when a beneficiary is entitled to more than one type of benefit under the same title of the Act (e.g., disability and Disabled Adult Child benefits).

C. Calculating past-due benefits in cases with Federal court involvement

1. Past-due benefit period

The definition of past-due benefits in administrative and court level cases is the same, except that the past-due benefits period in court cases in which the court finds the claimant entitled to or eligible for benefits ends the month before the month of the court's favorable decision. When the court remands the case to us for a decision and an ALJ or the AC issues a favorable administrative decision, we use the applicable administrative level procedure to determine past-due benefits. For a discussion of Title II and Title XVI past-due benefits for cases decided at the administrative level, see GN 03920.030B. and GN 03920.031B., respectively.

2. Past-due benefits in cases involving appeals of partially favorable decisions

When a claimant appeals a partially favorable administrative decision to a Federal court, the claimant may be awarded additional past-due benefits because of the courts involvement. When calculating the past-due benefits amount generated following this involvement, we do not consider any past-due benefits that were already awarded because of the earlier partially favorable administrative decision.

EXAMPLE 1: The administrative decision resulted in past-due benefits from April 2024 through December 2025. On appeal, the court decision found the claimant disabled beginning May 2023, which meant that the claimant received approximately eleven months of additional past-due benefits due to the courts decision (from May 2023 through March 2024).

EXAMPLE 2: An ALJ issues a partially favorable decision finding Jane disabled beginning June 2022, resulting in $15,000 in past-due benefits. Jane was represented by Mary at the administrative level under an approved fee agreement. She later hired attorney JB to represent her in Federal court, and the court remanded the case back to us for further administrative proceedings. On remand, the ALJ issued a new favorable decision finding Jane disabled as of January 2020, which generated an additional $10,000 in past-due benefits. Technicians must withhold $2,500 (25 percent) from the $10,000 in additional past-due benefits for possible direct payment of any court-awarded fee to attorney JB. JB is eligible for direct payment only from the past-due benefits resulting from the courts involvement and not from the past-due benefits generated by the earlier administrative decision because JB did not work on the prior administrative proceedings. Considering the ALJ remanded the case back to us, Mary may also be eligible for additional fees based on the extended past-due period, provided Mary assisted with the remand proceeding.

NOTE: In cases with Federal court involvement, technicians must promptly notify OGC if the court-awarded fee is more than 25 percent of the past-due benefits generated by the favorable court judgement.

3. Past-due benefits in cases with auxiliary beneficiaries or eligible spouses

a. Title II Auxiliary Beneficiaries

When calculating the past-due benefits amount, we include benefits of any Title II auxiliary beneficiaries (whether living in the same household or not) with the primary claimant's past-due benefits, if the auxiliary beneficiaries: (1) are not independently represented; and (2) file or have a protective filing date for benefits on the same date or earlier than the date of the court's judgment.

For more information on Title II past-due benefits subject to withholding from the claimant and the auxiliary beneficiary, see GN 03920.035.

b. Title XVI Spouse

For Title XVI couples cases, a claimants spouses benefits will be included in the past-due benefits used to calculate the court attorneys fee, but only when the spouse: (1) is not independently represented; and (2) becomes eligible for, or has an increase in, Title XVI benefits because of the primary claimants favorable change in eligibility resulting from the courts involvement.

For the definition of Title XVI past-due benefits subject to withholding from the claimant and the spouse, see GN 03920.036.

For the definition of Title II past-due benefits subject to withholding, see GN 03920.035.

NOTE: During the course of the court proceedings and in direct payment processing, technicians must be diligent in their inputs and calculations to ensure accuracy and must promptly correct and report any miscalculations or inaccuracies, if any are discovered.

4. Effect of overpayments on past-due benefits

a. Prior overpayment

We will not adjust the computation of the amount of Title II or Title XVI past-due benefits for overpayments arising during a period not impacted by the favorable court decision. The court attorneys fee is based on the full past-due benefits amount. However, we determine the amount payable to the claimant after withholding for the prior overpayment. For more details, see the example in GN 03920.032B.2.

b. Current overpayment

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Primary claimant: We will adjust Title II and Title XVI past-due benefits by the amount of any assessed overpayment that occurred for the primary claimant during the past-due benefits period that results from the court decision.
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  If a court issues a decision finding the claimant entitled to or eligible for benefits, any current overpayment will be calculated and assessed based on the months for which the claimant was overpaid in the past-due benefits period determined by the courts decision, through the month before the month of the court's judgment.
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  If the court remands the case to the agency for a new decision which then results in the claimant becoming entitled to or eligible for benefits, any current overpayment will be calculated and assessed based on the months for which the claimant was overpaid in the past-due benefits period determined by the agency's favorable decision, through the month before the month of the favorable decision.
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Auxiliary beneficiary or spouse: If a Title II auxiliary beneficiary or a Title XVI spouse in an SSI couples case is currently overpaid, we will adjust only that auxiliary beneficiary's or spouses past-due benefits amount, not the primary claimant's or another auxiliary's beneficiary's past-due benefits, see GN 02205.003, SI 02201.020. The recovery of overpayments for auxiliaries and spouses follows the same process used for the primary claimants. For more information on the Benefits Adjustment from the Overpaid Individual, see GN 02210.006.

We will not use overpayments incurred for months in or after the month a favorable court judgement is issued to offset the amount of the past-due benefits withheld for payment of an attorney fee. Technicians will calculate the attorney fee based on the total past-due benefits payable to the claimant, excluding months for which no benefits were paid due to suspension, deduction, or reduction. For more information on Title II benefits that are not past-due benefits, see GN 03920.030C.

D. Informing the court and court attorney of past-due benefits

To avoid exceeding the 25 percent statutory limit when awarding court attorney fees under Section 406(b), Federal courts must know the amount of the past-due benefits that resulted from the court's judgment.

When a court issues a favorable judgment, the technician processing the court case must prepare a notice with certain information, including the amount of the past-due benefits resulting from the decision. Those past-due benefits include past-due benefits due to the primary claimant as well as those due to any auxiliary beneficiary or eligible spouse, as applicable. The technicians will routinely provide this notice to the Office of General Counsel (OGC) for all favorable cases and, on request only, to the court attorney who:

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has also been appointed to the case at the administrative level, after completing the verification procedures set forth in GN 03910.025B.3.; or
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was not appointed before the agency, but who needs a copy of the notice with past-due benefit information to petition for 406(b) fees, after verifying that the inquirer is an attorney of record in the claimants Federal court case.

Technicians use Public Access to Court Electronic Records (PACER) or CourtLink to confirm the court attorney on file, and, if unavailable, they can work with the Office of General Counsel to verify the court attorney of record for the claimant in the Federal court case.

E. Paying court-awarded fees

If the court attorney is registered with us and provides the information discussed in Section GN 03920.060E.1., we may certify direct payment of the court-awarded fee of up to 25 percent of the Title II past-due benefits, minus the assessment (user fee).

Subject to GN 03920.060F.2, we may certify payment for Title XVI past-due benefits of the lesser of:

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the fee that does not exceed 25 percent of the past-due benefits as defined in GN 03920.031 and as determined before any reduction for interim assistance reimbursement; or
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the amount of the Title XVI retroactive payment available after reductions for interim assistance reimbursement, minus the user fee.

For more information on the user fee, see GN 03920.019, User Fee for Direct Fee Payments.

For more information on Title II Past-Due Benefits Subject to Withholding, see GN 03920.035.

For more information on Title XVI Past-Due Benefits Subject to Withholding, see GN 03920.036.

1. Registration and information a court attorney must submit to receive direct payment of court-awarded attorney fees

Court attorneys do not need to submit a Form SSA-1696 (Claimants Appointment of a Representative) unless they plan on representing the claimant before us at the administrative level. However, they must submit:

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Form SSA-1699 (Representative Registration) to register with us before we can make direct payment. Court attorneys who are not registered must submit the form as soon as possible and allow 15 days for processing.
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The claimants name and SSN, the attorneys name and Representative ID (Rep ID), and, if the court attorney wishes to affiliate with a registered entity for purposes of the claim, the entity's name and EIN. Court attorneys may provide this information by completing Section 5, Part B of Form SSA-1696, including filling in the claimants SSN and their own Rep ID at the top of page 5, or by submitting another writing to provide the information.

2. Waiver of direct payment in court cases

Payment Center (PC) and Field Office (FO) technicians handling a court case will add the following special message on the Master Beneficiary Record (MBR) and Supplemental Security Income Display (SSID) to alert other staff of the court cases: "Court Case - Do not remove the special message until the claimant and all auxiliary beneficiaries have been paid," This is to prevent inadvertently releasing the past-due benefits when: (1) there is no administrative fee; (2) the administrative fee has been paid and there are past-due benefits left; or (3) the administrative representatives waived direct payment of their fee.

A court attorney may specify in a written statement that they want to waive direct payment of the court-awarded fee. If the court attorney waives direct payment, we will release any withheld past-due benefits to the claimant after paying any administrative fee. In this situation, the technicians will also remove the special court case message once the claimant and potential auxiliaries have been paid.

For general information on waivers, see GN 03920.020.

NOTE: Removing the special message or court case indicator prior to completing all payments, including payments to auxiliaries, may result in incorrect coding of the auxiliary application and/or the inability to directly pay court-awarded fees.

3. Awards under Equal Access to Justice Act (EAJA) and payment of 406(b) fees

The EAJA permits a court to reimburse individuals for attorney fees and expenses incurred in court and certain administrative proceedings involving government agencies. EAJA awards are paid from the agency's administrative funds and not from the claimants past-due benefits. EAJA awards are handled by the OGC and the Office of Budget, Finance, and Management. For more information on EAJA fees, see GN 03990.001.

A Federal court may award an attorney fees under both the EAJA and Section 406(b) of the Act, but the EAJA specifically provides that when an attorney is awarded fees under both the EAJA and Section 406(b) for the same work, the attorney must refund the amount of the smaller fee to the claimant. When a court attorney is awarded both EAJA and 406(b) fees, some courts may offset the 406(b) award by the amount of the EAJA fee and order direct payment of the difference, a method referred to as netting. When the court uses the netting method to determine the amount of the 406(b) fee payment, the attorney is not required to return any amount to the claimant.

When funds are available, we will pay the full 406(b) fee or the "netted" fee pursuant to the court order. Technicians do not pay EAJA fees but can direct questions about EAJA to OGC by using the information on the chart in GN 03930.180.

NOTE: For more information about the EAJA, see GN 03920.060E.3., and for information on EAJA violations, see GN 03990.040.

F. Dual Fee Authorization

Dual fee authorization cases are cases in which we authorize a fee for services a representative provided before us at the administrative level, and the Federal court also awards fees to the court attorney for services provided before the court. In some of these cases, the representative and the attorney are the same person, and in others, they are not. In dual fee authorization cases, the PC and FO technicians must communicate using the Modernized Development Worksheet (MDW) and coordinate the response(s) to any request by a court attorney for information related to a 406(b) fee.

1. Withholding past-due benefits in dual fee authorization cases

The Supreme Court ruled in Culbertson v. Berryhill, 586 U.S. 53 (2019), that the 25 percent cap on the administrative fees authorized under section 406(a)(2) of the Act is separate and distinct from the 25 percent cap on the fees authorized by the court under section 406(b).This means that the court can award fees of up to 25 percent of a claimants past-due benefits for services the attorney performed before the court, regardless of the amount of fees we authorized for services that attorney, or another representative, performed before us. Nonetheless, we withhold only 25 percent of the claimants total past-due benefits for direct payment of any fees. If the total fees authorized or awarded exceed 25 percent of the claimants past-due benefits, the remainder of the fees not directly paid must be collected from the claimant.

2. Order of priority in dual fee authorization cases

We withhold up to 25 percent of the total past-due benefits for direct payment of all fees, whether they are authorized by the agency, awarded by the court, or both. We will pay the administrative fee first so long as the administrative fee is authorized before or near the time we receive and process the court-awarded fee for payment. While the Act does not require us to pay court-awarded fees directly, we do so to the extent that any of the withheld benefits are still available for direct payment. In situations where court fees are awarded before administrative fees are processed, see Example 2 in GN 03920.060F.2.

EXAMPLE 1: Mary, an unrepresented claimant, received an unfavorable decision in her Title II disability claim. The AC denied her request for review, and she hired Attorney Able to represent her in a Federal court appeal. The court remanded the case to us. The case was scheduled for a hearing, and Mary also appointed Attorney Able as her representative before us. Attorney Able filed a fee agreement allowing for a fee of the lesser of 25% of any past-due benefits awarded to Mary or $9,200. On remand, the administrative law judge (ALJ) issued a fully favorable decision resulting in $10,000 in past-due benefits. We withheld $2,500 (25 percent of $10,000) and received the ALJ's approval of the fee agreement. At the same time, we received a court order awarding Attorney Able $2,500 in 406(b) fees. We would pay the full administrative fee of $2,500 and inform Attorney Able that payment of the court fee is Mary's responsibility.

EXAMPLE 2: Same as above, except that Attorney Able performed considerable work at the administrative level and informed us that he would be filing a fee petition once the case is decided. While waiting for Attorney Able to file the fee petition, we receive a court order awarding Attorney Able $2,500 in 406(b) fees. We pay the full court-awarded fee, and Attorney Able submits a fee petition asking for $3,500 for his services representing Mary at the administrative level. After reviewing the fee petition, we authorize the full amount requested but inform Attorney Able that we have no remaining withheld funds available to directly pay the administrative fee, and he must seek payment of the authorized fee from Mary. If Attorney Able is unable to collect the administrative fee from Mary and asks for our assistance, we will directly pay $3,500, which reflects 25 percent of the past-due benefits, post an overpayment to Mary's record, and recoup the amount of the administrative fee from Mary.

3. The court orders direct payment

When the court specifically orders us to pay the court-awarded fee directly to the court attorney, but the amount of withheld past-due benefits available for payment is not sufficient to pay both the administrative fee and any unpaid court-awarded fee, the PC or FO technician will contact OGC for guidance, see GN 03930.180. Because of the court's involvement, it is important to notify OGC about this situation as soon as possible.

4. Claimant files a subsequent claim while the initial claim is pending in Federal court

Occasionally, while a claim is pending in Federal court, the claimant files a new initial claim. If the Federal court remands the original claim to us and the claims share common issues, we generally consider these cases together as a single claim. We also consider them together if the court provides instructions in the remand order requiring us to combine the claims.

In these situations, we will calculate a fee based on the total past-due benefits. We will withhold 25 percent of this total past-due benefits amount for direct payment of fees.

When we do not combine the initial claim with the subsequent claim, our determinations or decisions on the claims may result in two separate amounts of past-due benefits. In these cases, technicians will follow policy to calculate the amount to withhold for direct payment and the administrative fee for each case separately. We will provide the court attorney and court with the past-due benefit amount that corresponds to the court case, rather than the aggregate amount, since these are two different cases. For more information on subsequent disability applications, refer to DI 51501.001. For information on escalated claims with a common issue at the hearing or Appeals Council level, refer to HA 01220.022.

EXAMPLE: Clara, an attorney who represented Jacob (the claimant) before us, filed a court appeal of our denial of Jacobs Title II disability claim on December 31, 2019. While that case was pending, Jacob appointed Patrick, another attorney, to file a new initial Disabled Widows Benefits claim on Jacobs behalf on January 15, 2025. In this new claim, Jacob alleged a disability onset date of January 1, 2017- the same disability onset date alleged in his original claim (which was pending in Federal court) and provided additional evidence in support of his claim of disability. Jacob received a favorable administrative decision on his subsequent claim on February 25, 2025, and, on March 3, 2025, the court remanded Jacobs original claim to us for further administrative proceedings. An administrative law judge (ALJ) held a hearing and issued a favorable decision on the remanded case on March 31, 2025, establishing an onset date of January 1, 2017. However, the ALJ could not combine the two claims because the subsequent claim (for Disabled Widows Benefits) had already been decided before the original claim (for title II disability) was remanded by the court for further proceedings. Still, we consider this a single claim with a common issue and period of disability. Because attorneys Clara and Patrick did not sign on the same fee agreement, they must both file fee petitions. We will withhold 25 percent of the past-due benefits for possible direct payment of any authorized or court-awarded fees.

Social Security

Program Operations Manual System (POMS)

GN 03920.060 Court-Awarded Attorneys Fees