Under sections 206(b)(1) and 1631(d)(2) of the Social Security Act (Act), a Federal court that renders a judgment favorable to the claimant has jurisdiction to authorize a reasonable fee for an attorney who represented the claimant before the court. However, the attorney's fee for services in court may not exceed 25 percent of the total of past-due benefits to which the claimant is entitled. If a court awards a fee under this provision, the Social Security Administration (SSA) may pay the fee from past-due benefits.

Any fee authorized for services before the court is in addition to the fee, if any, SSA authorizes for proceedings at the administrative level (see subsection B below). However, SSA only withholds a maximum of 25 percent of past-due benefits for direct payment of fees, whether authorized by SSA, a court, or both.

In some situations, a representative may be authorized a fee by both a court and SSA. This dual authorization results from a strict interpretation of sections 206(b)(1) and 1631(d)(2) of the Act that indicates the court's authorization is for services before the court only. Therefore, the representative is authorized two separate fees: one for services before the court and one for services before SSA.

In considering an administrative fee, a decision maker will not consider service the representative gave in any proceeding before a court. See 20 CFR 404.1728 and 416.1528. The dual fee authorization context can raise unique issues in assessing whether a service is before SSA or before the court. Most commonly, this issue arises regarding services provided after the Appeals Council (AC) denies a request for review and before a civil action is filed. Generally, whether a service is before a court or before SSA depends on whether the representative directed the services to and expects action from the court or SSA.