I-1-2-33. Fee Agreement - Appeals Council (AC) Level — AC Procedures

A. AC Makes Favorable or Partially Favorable Decision

When making a favorable or partially favorable decision, the “A” Administrative Appeals Judge (AAJ) will:

• approve or disapprove the fee agreement, unless an Administrative Law Judge's (ALJ's) prior approval remains in effect;

  NOTE:

  The AAJ's approval or disapproval of a fee agreement is limited to whether the fee agreement meets the statutory conditions and is not otherwise excepted.

• sign the AC order the Attorney Fee Branch (AFB) prepared, if he/she agrees with the recommendation; and

• advise the AFB that he/she wants a copy of the letter that notifies the claimant about the fee amount set under the fee agreement, if the AAJ approves the fee agreement but may wish to file a request for administrative review of the fee amount. (See I-1-2-41 for general policy on fee agreement administrative review.)

B. AC Makes Unfavorable Decision/Action or Reviews the Favorable Portion of a Decision on Its Own Motion

When the AC takes an unfavorable action, it will not make a determination on a fee agreement.

If the AC vacates a favorable hearing decision on a request for review or own motion review and remands the case to an ALJ for further proceedings, and if the ALJ had approved the fee agreement, the fee agreement determination is vacated when the favorable decision is vacated because there is no longer a determination favorable to the claimant.

C. Appeals Assistant Actions on Favorable Decision Involving a Fee Agreement

When the AC issues a favorable or partially favorable decision, the appeals assistant will:

• Retain a copy of the appointment of representative, the fee agreement and the order approving or disapproving the agreement in the appeals file.

• Mail the order with the decision and distribute copies of the order with copies of the decision.

• Enclose a Form SSA-1560-U4 (Petition to Obtain Approval of a Fee for Representing a Claimant before the Social Security Administration) with the representative's copy of the decision and order, if the AAJ disapproves the fee agreement. (See I-1-2-1(C.), Informing Representatives of Fee Regulations, and I-3-8-22, Release of Files — Fully or Partially Favorable Decision.)

• Ensure that the claim(s) file contains the original appointment of representative document, the fee agreement and a copy of the order. In concurrent titles II and XVI claims, place the original copy of the fee agreement and a copy of the order in the title II file, and copies in the title XVI file.

• Ensure that all the representative information has been entered into ACAPS, the Appeals Council Automated Processing System.

D. AAJ Requests Administrative Review of the Fee Amount

If the AAJ requests administrative review, he/she must send the written request (see I-1-2-103) and copies of all pertinent materials to the Deputy Chair, AC.

The AAJ must:

• file the request within 15 days of OHA receiving the notice of the fee amount (assumed to be 5 days after the date of the notice), and

• explain in the request why he/she believes there is evidence that the representative did not represent the claimant's interest adequately or that the fee is clearly excessive in light of the services provided.

Refer to I-1-2-44 and I-1-2-45 for guidance on requesting administrative review.