SSR 67-54c: Rescinded

Rescinded September 14, 2018 by FR Vol. 83, No. 179, page 46771

20 CFR 404.975-404.977a

SSR 67-54c

GARDNER v. MENENDEZ, 373 F.2d 488 (1st Cir., 3-2-67)

Where an attorney representing a claimant for disability insurance

benefits applied to the court to have a fee allowed for such

representation, which included services before the Social Security

Administration on remand of the case by the court for further

administrative proceedings as well as services before the court held , the court has jurisdiction to allow a fee only for services

rendered before it while the attorney must apply to the Social Security

Administration for a fee for services rendered in proceedings before the

Administration.

ALDRICH, Chief Judge. The single issue in this case is whether it

was appropriate for the district court, as distinguished from the

Secretary of Health, Education and Welfare, to determine and award

plaintiff's counsel a fee ("out of, and not in addition to . . . the

benefits payable") by virtue of section 206(b)(1) of the Social Security

Act, 42 U.S.C. § 406(b)(1). No factual questions are involved. Plaintiff

filed a claim for disability benefits and prosecuted it, unsuccessfully,

pro se, through the Appeals Council. Thereafter he employed counsel, who

filed a petition for review in the district court. The Secretary responded

by moving for a remand. New administrative hearings were held, at which

plaintiff's counsel continued to represent him. eventually plaintiff

recovered, administratively, the full amount of the benefits claimed.

Counsel then moved in the district court for an allowance of fees, for the

representation before the agency and his motion was

allowed. [1] The Secretary

appeals.

ry responded

by moving for a remand. New administrative hearings were held, at which

plaintiff's counsel continued to represent him. eventually plaintiff

recovered, administratively, the full amount of the benefits claimed.

Counsel then moved in the district court for an allowance of fees, for the

representation before the agency and his motion was

allowed. [1] The Secretary

appeals.

Section 206(b)(1) was enacted in its present form in 1965, Pub. L. 89-97,

79 Stat. 403. Prior thereto it was held that under section 205(g), 42

U.S.C. � 405(g), the district court had implied power to award a fee. Speaks v. Celebrezze , 5 Cir., 1965 342 F.2d 286. However,

that case involved a fee for extensive court representation and did not

raise the question whether the court's allowance might include payment for

services at the agency level. On this we find section 206(b) clear and

explicit.

"(b)(1) Whenever a court renders a judgment favorable to a claimant under

this subchapter who was represented before the court by an attorney, the

court may determine and allow as part of its judgment a reasonable fee

for such representation. . . ."

"(2) Any attorney who charges, demands, receives, or collects for

services rendered in connection with proceedings before a court to

which paragraph (1) of this subsection is applicable any amount in excess

of that allowed by the court thereunder shall be guilty of a misdemeanor.

. . ." (Ital. suppl.)

In our opinion this action codifies the implication which the court in Sparks found in section 205(g) and at the same time recognizes,

expressly, the principle that a court is the appropriate one to determine

the value of the services rendered before it, and by implication, that it

is not for the court to determine the value of services rendered

elsewhere.

For the services performed before the agency, the Secretary may award

appropriate counsel fees. 42 U.S.C. � 206(a); 20 C.F.R. �� 404.975-977a

same time recognizes,

expressly, the principle that a court is the appropriate one to determine

the value of the services rendered before it, and by implication, that it

is not for the court to determine the value of services rendered

elsewhere.

For the services performed before the agency, the Secretary may award

appropriate counsel fees. 42 U.S.C. � 206(a); 20 C.F.R. �� 404.975-977a

(1966). [2] Section 206(b)(1)

does not expressly revoke this provision. We see no point in considering

it revoked pro tanto by implication. On the contrary, we see every reason

for continuing the principle that the agency before whom services were

rendered should be the one to determine their value. To the extent that Robinson v. Celebrezze , W.D. S.C., 1965, 248 F. Supp. 149,

holds to the contrary, we do not accept it.

There is nothing singular in the fact that counsel who appears in two

forums should apply to each for the aliquot part of his total fee. That is

common practice where counsel obtains in a district court, and in an

appellate court, a separate award for his services before each.

The judgment of the district court is vacated. Counsel may, if so

minded, apply to that court for an allowance for services in drafting and

filing the complaint. for compensation for the balance of his services

counsel must make application to the Secretary.

[1] Concededly, counsel's claim

included services in connection with the filing of the complaint in the

district court, but concededly, also, the bulk of the work was done before

the agency. The parties agree that the matter before us is the propriety

of the court award for services rendered at the agency level.

[2] We find no basis for

counsel's statement to the district court, and seemingly accepted by it,

that all an attorney can get from the Secretary is $50 a hearing. See Chernock v. Gardner , 3 Cir., 1966, 360 F.2d 257.