SSR 72-14c: Rescinded

Rescinded September 14, 2018 by FR Vol. 83, No. 179, page 46771

20 CFR 404.975-404.977a

SSR 72-14c

Schneider v. Richardson , 441 F.2d 1320 (6th Cir. 4/28/71);

petition for certiorari to Untied States Supreme Court denied 10/12/71

Held , under section 206(a) of the Social Security Act (42 U.S.C.

406(a)), the amount of an attorney's fee allowed by the Secretary for

services performed at the administrative level is a matter legally

committed to the Secretary's discretion and not subject to judicial

review.

PER CURIAM. Plaintiff-appellant, Morton E. Schneider, an attorney,

represented a social security claimant at an administrative hearing who

was awarded benefits in the amount of $11,233.70. He then filed a petition

with the hearing examiner requesting approval of a $2,808.42 legal fee,

being twenty-five per cent of the benefits awarded. The hearing examiner

allowed a fee of $500 and following an administrative appeal as authorized

by 200 C.F.R. 404.975(e), the Appeals Council affirmed. The appellant then

brought this action in District Court seeking judicial review. He alleges

that his client had agreed to pay him a twenty-five per cent contingent

fee, and further that he was required to spend some fourteen hours in

preparing and presenting his client's case and an additional two hours in

preparing his own petition for a fee. He brands the fee award of the

Secretary as an abuse of discretion because of its alleged

inadequacy. [1]

The District Court dismissed the action on the grounds that it lacked

jurisdiction. This appeal followed and raises the single issue of whether

the Social Security Act precludes judicial review of legal fees awarded by

the Secretary of Health, Education and Welfare to an attorney who has

represented a social security claimant at the administrative level. We

affirm the District Court's dismissal of the action.

missed the action on the grounds that it lacked

jurisdiction. This appeal followed and raises the single issue of whether

the Social Security Act precludes judicial review of legal fees awarded by

the Secretary of Health, Education and Welfare to an attorney who has

represented a social security claimant at the administrative level. We

affirm the District Court's dismissal of the action.

Appellant contends that the Secretary's award of legal fees is judicially

reviewable under 5 U.S.C. � 704 of the Administrative Procedure Act

providing in part that "(a)gency action made reviewable by statute and

final agency action for which there is no other adequate remedy in a court

are subject to judicial review. . . . However, 5 U.S.C. � 701(a) of the

Administrative Procedure Act clearly establishes two exceptions to the

provisions for judicial review of agency action provided in Section 704.

One exception is where "statutes preclude judicial review" and the other,

directly on point in this case, is where "agency action is committed to

agency discretion by law."

Section 403(a) [2] [206(a)] of

the Social Security Act (42 U.S.C. � 406(a)) commits to the discretion of

the Secretary of Health, Education, and Welfare the setting of legal fees

for administrative representation of social security claimants. In a

factual situation similar to the present case in Chernock v. Gardner , 360 F.2d 257 (3rd Cir. 1966), it was held ". . . the

setting of fees for representation of claimants before the Secretary is

committed to that agency's discretion by Section 206 of the Social

Security Act, and judicial review is therefore precluded by Section 10 of

the Administrative Procedure Act. .

claimants. In a

factual situation similar to the present case in Chernock v. Gardner , 360 F.2d 257 (3rd Cir. 1966), it was held ". . . the

setting of fees for representation of claimants before the Secretary is

committed to that agency's discretion by Section 206 of the Social

Security Act, and judicial review is therefore precluded by Section 10 of

the Administrative Procedure Act. . . ." This decision in Chernock that the amount of an attorney's fee for services performed at the

administrative level is a matter of discretion with the Secretary and is

not subject to judicial review has been cited with approval in recent

cases involving attorneys fees for representation in the district courts. Finix v. Finch , _____ F.2d _____ (1st Cir. 1971); Canner v. Gardner, 381 F.2d 497 (4th Cir. 1967); Robinson v. Gardner , 374 F.2d 949 (4th Cir. 1967); Gardner v. Menendez , 373 F.2d 488 (1st Cir. 1967).

Affirmed.

[1] Because of our disposition

of this case, we do not reach this issue.

[2] Section 406(a) of the Social

Security Act provides in part ". . . [t]he Secretary may, by rule and

regulations, prescribe the maximum fees which may be charged for services

performed in connection with any claim before the Secretary under this

subchapter, and any agreement in violation of such rules and regulations

shall be void."