Effective Dates: 08/31/2023 - Present Previous | Next

TN 29 (08-23)

GN 03930.091 No Fee Petition or Fee Authorization Received by PC or FO Before Diary Matures and SSA is Withholding Past-Due Benefits – Court Case

A. Procedure – court case diary matures

If the 120-day diary matures, and the processing center (PC) or field office (FO) has not received the fee authorization for the administrative fee and/or the court’s authorization, take the following actions, as appropriate:

  1. 1. 

    Check the Payment History Update System (PHUS), Single Payment System (SPS) or Supplemental Security Income Display (SSID) to see if any payment has been made to the representative for an administrative fee or the attorney for the court fee. On SPS, PICS SA – SZ identify payments made to representatives from title II; direct fee payments paid from title XVI past-due benefits do not have a PIC.

  2. 2. 

    Check the Public Access to Court Electronic Records (PACER) or CourtLink to see whether a court fee has been approved, or is pending.

    If you have access CourtLink, log on at http://www.courtlink.com/

    • •

      Enter a valid SSA-issued 7-character Lexis ID;

    • •

      Enter 'courtlink1' in the 'Password' window;

    • •

      If a first time user, respond to set up "My CourtLink;" and

    • •

      Proceed to Search from "My CourtLink."

  1. 3. 

    For court remand cases, check to see if there was a fee agreement and whether it was approved by the Administrative Law Judge or Administrative Appeals Judge. If the fee agreement was approved, check the conditions and determine if the approval was the correct action. If the fee agreement was approved incorrectly, follow the procedures in GN 03940.025B.5.

  2. 4. 

    Refer to GN 03930.091B if the representative has not filed for an administrative fee.

  3. 5. 

    Refer to GN 03930.091C if the attorney has not filed for the court fee.

B. Procedure – administrative fee on case decided by the court

On a case favorably decided by a Federal court, when SSA is continuing to withhold the claimant’s past-due benefits and the representative has not submitted a fee petition or waived the right to a fee for their administrative services, request the representative to state their intent relative to any fee for administrative services.

NOTE: 

A court remand to the Commissioner for “an award of benefits” or similar language 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. If the proceedings on remand do not result in a favorable decision, however, the court’s order remanding the case is not considered a favorable court decision for purposes of section 206(b) of the Act.

If the representative filed a fee agreement and the court issued the favorable decision, refer to GN 03930.040G.1. for sample language.

If the representative did not file a fee agreement, refer to GN 03930.040G.3. for sample language.

C. Procedure – court fee

If the diary matures and the PC or FO has not received the court’s authorization, contact the attorney and ask if they have petitioned the court for a fee.

NOTE: When the procedure is to diary the case, the specific procedure for OCO is to prepare a PCACS diary related to the existing ACR and route the case to the DHF PAY.

1. Attorney has petitioned the court

If the attorney has petitioned the court, do one of the following:

  1. a. 

    If the attorney petitioned the court recently, diary the case for 150 days. In the PC, send the folder/ACR/paperless action to the holding file. In the FO, to diary the case and document the request process, the claims representative (CR) takes these actions:

    • •

      Change the follow-up date for the FEE PETITION issue on the Development Worksheet (or MDW) each time a contact is made; and

    • •

      Set up a Report of Contact and record and explain each follow-up action taken to get the authorized fee amount.

  2. b. 

    If the attorney petitioned the court more than 90 days earlier and they have no reason to expect a fee authorization soon:

    • •

      Diary for 60 days;

    • •

      Prepare a Report of Contact (R/C) documenting the conversation; and

    • •

      In the PC, send the folder/ACR/paperless action to the holding file. In the FO, to diary the case and document the request process, the CR takes these actions:

      • –

        Change the follow-up date for the FEE PETIION issue on the Development Worksheet (or MDW) each time a contact is made; and

      • –

        Set up a Report of Contact and record and explain each follow-up action taken to get the authorized fee amount.

2. Attorney has not petitioned the court

If the attorney has not petitioned the court and additional delay seems probable:

  • •

    Prepare an R/C documenting the conversation;

  • •

    Send a status letter, using the sample language below, to the attorney;

  • •

    Diary for 120 days; and

  • •

    In the PC, send the folder/ACR/paperless action to the holding file. In the FO, to diary the case and document the request process, the CR takes these actions:

    • –

      Change the follow-up date for the FEE PETITION issue on the Development Worksheet (or MDW) each time a contact is made; and

    • –

      Set up a Report of Contact and record and explain each follow-up action taken to get the authorized fee amount.

a. Sample 1 (modify as necessary to fit the case situation):

This refers to _______’s claim for disability insurance benefits. We are withholding $_______, which represents 25 percent of the past-due benefits for ____ and their family, in anticipation of direct payment of an authorized attorney’s fee. We are writing to determine whether you have petitioned the U.S. District Court for the ____ District of _____, and/or the Social Security Administration (SSA) for a fee.

Please write to: __________ to let us know whether you have petitioned or will petition for a fee.

If the court or SSA has authorized you to receive a fee in this case, please send us a copy of that authorization. If you do not intend to petition for a fee, your written statement expressly waiving a fee is necessary before we can release the withheld benefits to the claimant.

If the attorney does not respond before the diary matures and there is no indication on CourtLink that the attorney has requested a court fee, send a 20-day close out letter, using the Sample 2 language below for guidance. Diary for 60 days.

b. Sample 2 – close out letter

We have withheld $____, which represents 25 percent of the past-due benefits payable to _____, as required by sections 206(a) and (b) [and/or 1631(d) of the Social Security Act. We have withheld this amount since ______. We previously notified you that you should submit a request for a fee for services before the court to the United States District Court for the ___ District of ______. [You should submit any petition for a fee for services before the Administration to the Attorney Fee Officer in the Office of Disability Adjudication and Review.]

We do not wish to delay the release of funds withheld from the claimant’s past-due benefits. Therefore, pursuant to section 404.1730(c) of Social Security Administration (SSA) Regulations No. 4 (20 CFR 404.1730(c)), we will certify for payment to the claimant all withheld benefits unless you file a petition for approval of a fee within 20 days from the date of this letter, or a written request for an extension of time. If you request an extension of time, send a copy of your request to your client.

Any fee you may wish to charge hereafter for your services on this claim will still be subject to court or SSA approval. Failure to comply with this requirement could result in a violation of section 206 and/or 1631of the Act (42 U.S.C. 406 and 1383). Collection of any such approved fee shall be a matter between you and your client.

Please forward your petition for a court fee to the U.S. District Court. [If you request a separate administrative fee, send the fee petition to:

Social Security Administration

Office of Appellate Operations

Attn: Attorney Fee Branch

6401 Security Blvd

Baltimore, MD 21235-6401

If you are waiving your fee, please forward a statement, signed and dated by you, that you will not charge a fee. Send the statement to:

Social Security Administration

(PC or FO address)______________

_____________________________

The fax number is ____________. Please fax any statements or questions about this notice to us at that number.

We are sending a copy of this letter to your client.

If the attorney does not submit a petition for the court fee within 60 days, check all sources to ensure that there has been no fee activity. If there has been none, release the withheld benefits to the claimant(s).

If the attorney has petitioned the court, refer to GN 03930.091C.1.

If the attorney indicates that they will waive the fee, refer to GN 03930.091C.3.

3. Attorney will waive court fee

If the attorney indicates they will waive the right to a fee:

  • •

    obtain a signed waiver (see GN 03920.020B);

  • •

    forward a copy to the Office of the General Counsel (OGC) (see GN 03930.180 for regional OGC addresses);

  • •

    in title II and concurrent title II and XVI claims,

    • –

      instruct the BA/BTE to release to the claimant and any auxiliary beneficiary(ies) the past-due benefits withheld via MACADE (special entry EA); and

    • –

      provide the BA/BTE with notice language, including a statement that SSA’s release of the benefits withheld does not relieve the attorney of the obligation to petition the court if they later decide to charge a fee. If concurrent claims, fax the waiver to the FO after taking the actions to release the title II withheld past-due benefits.

  • •

    in title XVI claims, release to the claimant and the spouse, the past-due benefits withheld by closing out the FEE PETITION issue and removing the U TAC from the Supplemental Security Record (SSR).

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GN 03930.091 - No Fee Petition or Fee Authorization Received by PC or FO Before Diary Matures and SSA is Withholding Past-Due Benefits – Court Case - 08/31/2023
Batch run: 08/31/2023
Rev:08/31/2023