EFFECTIVE DATE: 1/6/87
Whether the tribunal, which ultimately allows an individual's retirement, survivor's or disability insurance (title II) claim, may approve an attorney's fee covering services provided during the entire appeal process and whether such approved fee is limited to 25 percent of the past-due benefits.
Section 206 of the Social Security Act (42 U.S.C. Section 406); 20 C.F.R. 404.1720-404.1740; Rulings 62-47, 65-33c, 66-19c, 67-54c, 68-47c, 68-61c, 72-31c, 72-14c, 80-20c, 82-19c, 82-39, 83-27 and 85-3
SIXTH (KENTUCKY, MICHIGAN, OHIO, TENNESSEE)
Webb v. Richardson, 472 F.2d 529 (6th Cir. 1972)
Glendal Webb, the claimant, applied for disability insurance benefits in 1961; the application was denied by the Social Security Administration and judicial review was not sought. In February 1965, Mr. Webb filed a second disability insurance benefits application which was denied on initial and reconsidered determinations. He then retained attorney William Kibbey. Mr. Kibbey represented Mr. Webb at an administrative hearing and in a subsequent appeal to the Appeals Council, which affirmed the hearing examiner's denial of benefits. The claimant, through his attorney, Mr. Kibbey, then filed a complaint in the United States District Court for the Eastern District of Kentucky seeking review of the administrative action denying his claim for benefits, pursuant to section 205(g) of the Social Security Act. The Secretary filed an answer and a motion for summary judgment. Mr. Kibbey filed a brief in opposition to the Secretary's motion, who then filed a reply brief. In April 1967, the district court, sua sponte, entered an order continuing the case indefinitely, which it subsequently renewed approximately every 6 months for the next 3½ years. In January 1971, the court denied the Secretary's motion for summary judgment and remanded the case to the Secretary with directions to enter an award of disability insurance benefits retroactive to February 1964. The Secretary did not appeal the court's decision.
In March 1971, Mr. Kibbey moved the district court to allow him a fee of 24 percent of Mr. Webb's total award, the sum amounting to $4,818.37 of past due benefits. Attached to the motion was a contingent-fee agreement, under which Mr. Webb agreed to pay Mr. Kibbey 25 percent of all benefits awarded, and a statement signed by him that the fee sought was fair and reasonable. Mr. Kibbey also supplied a statement supporting his request, detailing his qualifications and a general description of the services given. No itemization of time was provided. The Secretary opposed the motion for a fee of 25 percent of the total award because approximately 40 percent of the award had accumulated during the 4-year delay in the court's rendering a judgment, Mr. Kibbey had not itemized the time spent on Mr. Webb's claim and because of the lack of complexity of the claim. The district court entered an order grating Mr. Kibbey's motion for a fee of 25 percent of the total award. The Secretary appealed to the Court of Appeals for the Sixth Circuit, claiming that the fee awarded was not "reasonable" within the meaning of Section 206(b) of the Social Security Act, primarily because the district court erred in considering the work Mr. Kibbey performed before the administrative agency in setting the fee. The Sixth Circuit Court of Appeals vacated the order of the district court awarding an attorney fee and remanded the case for further proceedings no inconsistent with its opinion.
The Court of Appeals agreed that the fee claimed in the case was not reasonable, but not for the reasons urged by the Secretary. The court held that the tribunal that ultimately allowed the claim for benefits was the only tribunal that could approve and certify payment of an attorney fee and that the fee awarded by the tribunal could not exceed 25 percent of the past due benefits. The court noted that the tribunal making the award could consider all services performed by the attorney from the time the claim was filed with the Social Security Administration in determining whether the fee was reasonable. The Court of Appeals for the Sixth Circuit further held that the district court had abused its discretion by awarding 25 percent of past- due benefits of which nearly 40 percent accrued solely by reason of the court's delay in rendering judgment.
According to the Social Security Administrations (SSA's) regulations implementing Section 206 of the Social Security Act, the Secretary has fee-setting jurisdiction for services performed at the administrative level in connection with a title II claim, and the court in a judicial action may allow as part of its judgment a reasonable fee for services before it relating to such a claim. Pursuant to section 206(b) of the Act, a court approved fee in a title II claim may not exceed 25 percent of the past-due benefits. In some cases, therefore, a dual authorization of fees may result and either the combined fee or the fee for services before SSA which is approved may exceed 25 percent of the past- due benefits. While the holding in Webb is inconsistent with SSA's general policy regarding attorney's fees, SSA does apply the portion of the Webb holding regarding the setting of a single fee for a representative's services at the administrative and judicial levels, in the Sixth Circuit. The Secretary does not apply a 25 percent cap, however, in setting a fee for services before the Social Security Administration.
This ruling applies only to title II cases involving the allowance of an individual's claim and subsequent application for approval of an attorney's fee in cases where the individual resides in Kentucky, Michigan, Ohio or Tennessee at the time of the fee petition determination at any level of administrative review, i.e., initial, reconsideration, administrative law judge hearing or Appeals Council review.
In all cases, the tribunal (meaning either the Federal Court system or the Social Security Administration) which ultimately allows the individual's claim will set a single attorney's fee covering services provided before either or both tribunals during the entire appeal process. The amount of such approved fee may not exceed 25 percent of the past-due benefits. This 25 percent maximum applies to cases which are pursued no further than the administrative level as well sa to cases where there is court involvement.
Date of Publication 1/6/87
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