Last Update: 1/28/03 (Transmittal I-1-44)
The component or individual that issues a final favorable determination or decision or takes the last unfavorable action in a claim acts on the fee petition. At the hearing level, the Administrative Law Judge (ALJ) has the authority to authorize a representative's fee. The Attorney Fee Branch (AFB), Office of Appellate Operations, authorizes fees in cases the Appeals Council (AC) decided.
Examples:
The ALJ reviews the fee petition and authorizes the fee if he/she issues a fully favorable decision.
The AFB reviews the fee petition and authorizes the fee if an ALJ issued a partially favorable decision, the claimant appealed, and the AC denied the request for review.
The ALJ reviews the fee petition and authorizes the fee if he/she issued a partially favorable decision, the claimant appealed, the AC granted the request for review and remanded the case to an ALJ for further proceedings, and the ALJ issued the final decision.
The processing center reviewer who has jurisdiction over the favorable action on the subsequent claim acts on any fee petition(s) the representative(s) submits if the AC denies the request for review of an ALJ's decision denying an application for disability benefits after the claimant filed a subsequent application that the Disability Determination Services allowed (with an onset date no earlier than the day after the date of the ALJ's decision in the original claim).
If the ALJ, or a decision maker above the reconsideration level who acted on behalf of an ALJ (e.g., an adjudicative officer), with jurisdiction over the fee petition is unavailable for a period of 30 days or more, to avoid inordinate delays in processing fee petitions, the Hearing Office Chief ALJ, subject to the $7,000 limit (see C. below), must review the petition and make a fee determination or delegate that responsibility to another ALJ.
The regulations describe services before the Social Security Administration (SSA) (20 CFR 404.1735 and 416.1535) and before State or Federal courts (20 CFR 404.1728 and 416.1528). Whether services during the interim period between the denial of the request for review and before a civil action is filed are services before SSA or before the court depends on whether the services were directed to, and action is expected from SSA or the court. A decision maker must determine whether SSA or a Federal court has jurisdiction to authorize fees for services a representative performs in the interim period after the AC denies a request for review, but before a civil action is filed in the case.
Services are before SSA if:
the AC receives additional briefs or evidence to have the AC reconsider or vacate its previous action; or
the representative's activities are directed to obtaining a ruling or further action from the AC, whether or not the case subsequently proceeds to Federal court.
Services are before the court if the representative's services/activities:
involve counseling with the claimant concerning the advisability of filing a civil action or requesting an extension to file a civil action without submitting additional evidence or briefs to the AC;
pertain to preparing a civil complaint or motion to have the court set aside the action of the AC; or
are directed to obtaining a decision or ruling from the court.
If the ALJ or the Regional Chief ALJ (RCALJ) with initial jurisdiction over the fee petition proposes to authorize a fee in excess of $7,000, he/she must refer the fee petition(s) to the reviewing official, as indicated in the chart below, and recommend the amount of the fee(s) to be authorized. (Before February 1, 2002, the maximum amount an ALJ could authorize was $5,000.)
| Authorizer with Initial Jurisdiction | Reviewing Official |
|---|---|
| ALJ | RCALJ |
| RCALJ | Deputy Chief ALJ |
| Deputy Chief ALJ | Chief ALJ |
The RCALJ or Deputy Chief ALJ, as appropriate, will then review the recommendation and authorize the fee.
NOTE:
In establishing whether the $7,000 limit applies, the determinative factor is the amount of the fee(s) the ALJ proposes to authorize rather than the amount the representative(s) requested.
The AFB is not limited in the fee amount it can authorize.