SSR 72-31c: Rescinded

Rescinded September 14, 2018 by FR Vol. 83, No. 179, page 46771

20 CFR 404.975-404.977

SSR 72-31c

Whitehead v. Richardson , 466 F.2d 126 (6th Cir. 1971)

Held , the amount of an attorney's fee allowed for services

performed at the administrative level shall, pursuant to section 206(a) of

Social Security Act, be determined solely by the Secretary, whereas in a

judicial action the court has the discretion to grant or deny a reasonable

attorney fee for services performed before it, and in exercising such

discretion the court may properly consider (1) the nature and extent of

the services performed at the administrative level, and (2) the fee

awarded at such level. Accordingly, the court did not abuse its discretion

when it refused to grant an attorney's fee where substantially all the

services had been performed at the administrative level and a substantial

fee awarded at that level.

PHILLIPS, Chief Judge. The issue presented by this case is whether the

District Judge abused his discretion in refusing to make an award of

attorneys' fees for the representation before the District Court of a

claimant under the Social Security Act. We hold that there was no abuse of

discretion and therefore affirm the dismissal of the complaint.

The facts of this case are not in dispute. Marvin Eugene Whitehead is the

executor of the estate of his deceased mother. Mrs. Whitehead had filed,

through her attorney, a claim with the Secretary of Health, Education and

Welfare for disability benefits under the Social Security Act. The claim

was denied at all administrative levels. A suit to review the Secretary's

decision was then brought in the District Court. Rather than denying or

answering the complaint, the Secretary moved the Court, pursuant to 42

U.S.C. § 406(g), to remand the case to him for further action.

he Secretary of Health, Education and

Welfare for disability benefits under the Social Security Act. The claim

was denied at all administrative levels. A suit to review the Secretary's

decision was then brought in the District Court. Rather than denying or

answering the complaint, the Secretary moved the Court, pursuant to 42

U.S.C. � 406(g), to remand the case to him for further action.

The motion was granted, and upon remand as award was made of all the

disability benefits previously claimed. Claimant then made a motion before

the District Court for summary judgment affirming the decision of the

Secretary, and in addition for an award of cost and attorney's fees. The

motion was denied in all respects, and the case was dismissed with an

order striking the complaint from the docket.

Claimant now appeals from that dismissal and the striking of the

complaint. In the meantime, counsel for the claimant made application to

the Secretary for an award of attorneys' fees in compensation for his

services rendered at the administrative level, and he was granted by the

Secretary a fee equal to 25 per cent of the award previously made to

claimant.

It is well settled that the Secretary is responsible for determining the

value of services rendered before his agency and making an award in

compensation for those services. Schneider v. Richardson ,

441 F.2d 1320 (No. 20,618, 6th Cir., decided April 28, 1971); Gardner , Menendez , 373 F.2d 488 (1st Cir.); 42 U.S.C. �

406(a).

Similarly, any award by the District Court of attorneys' fees is limited

to compensation for services rendered before that court, Robinson v. Gardner , 374 F.2d 949 (4th Cir.), 42 U.S.C. � 406(b), although

that award may be made in terms of a percentage of the claimant's recovery

to be subsequently determined on remand rather than a fixed fee, Conner v. Gardner , 381 F.2d 497 (4th Cir.).

).

Similarly, any award by the District Court of attorneys' fees is limited

to compensation for services rendered before that court, Robinson v. Gardner , 374 F.2d 949 (4th Cir.), 42 U.S.C. � 406(b), although

that award may be made in terms of a percentage of the claimant's recovery

to be subsequently determined on remand rather than a fixed fee, Conner v. Gardner , 381 F.2d 497 (4th Cir.).

42 U. S .C. � 406(b) authorizes the District Court to award attorney's

fees in compensation for services rendered before it. That section

reads:

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 not in excess of 25 percent of the total of the post-due

benefits to which the claimant is entitled by reason of such judgment, and

the Secretary may, notwithstanding the provisions of section 405(i) of

this title, certify the amount of such fee for payment to such attorney

out of, and not in addition to, the amount of such past-due benefits.

The tenor of � 406(b) is permissive rather than mandatory. It says that

the court may make such an award, not that such an award shall be

made. Congress recognized the difference between the mandatory term

"shall" and the permissive term "may". It used the former in connection

with � 406(a) (which states the Secretary's duty to award attorneys' fees

for services before the agency), whereas it used the letter in � 406(b) in

connection with an award of attorneys' fees by a court. This is in keeping

with the traditional rule that an award of attorneys' fees by a court is a

matter within the sound discretion of the Trial Judge. See

generally 6 J. Moore, Federal Practice �

54.77 [2] , at 1348.57 (2d ed.

1965).

o award attorneys' fees

for services before the agency), whereas it used the letter in � 406(b) in

connection with an award of attorneys' fees by a court. This is in keeping

with the traditional rule that an award of attorneys' fees by a court is a

matter within the sound discretion of the Trial Judge. See

generally 6 J. Moore, Federal Practice �

54.77 [2] , at 1348.57 (2d ed.

1965).

We hold that the District Court did not abuse its discretion in refusing

to make an award of attorneys' fees, particularly in view of the limited

services performed in the District Court (filing of the complaint) and the

substantial award of attorneys' fees made by the Secretary (25 per cent of

the claimant's recovery). Cf. Dawson v. Finch , 425 F.2d 1192

(5th Cir.), certs, denied, 400 U.S. 830.

The decision we reach in this case is not in conflict with our decision

in Philpott v. Gardner , 403 F.2d 774 (6th Cir.). In Philpott , we remanded in the District Court for allowance of

attorneys' fees within the guidelines of Robinson v. Gardner , 374 F.2d 949 (4th Cir.) and Gardner v. Menendez, 373 F.2d 448 (1st Cir.). However, Philpott , the

attorney had not received an award of fees for his efforts at the

administrative level. He was before the District Court on at least two

separate occasions and apparently spent considerable time in the District

Court on his client's behalf. Moreover, nothing in the guidelines of Robinson and Menendez require the District Court to make an

award for attorneys' fees. Rather, the court is required only to exercise

sound discretion in determining the value of the services rendered before

it, and the court is not bound to close its eyes to an award of fees

already made by the Secretary and the fact that substantially all the

services were rendered at the administrative level.

and Menendez require the District Court to make an

award for attorneys' fees. Rather, the court is required only to exercise

sound discretion in determining the value of the services rendered before

it, and the court is not bound to close its eyes to an award of fees

already made by the Secretary and the fact that substantially all the

services were rendered at the administrative level.

Finally, appellant argues that he should have been awarded costs, and

that the court erred in denying his summary judgment motion since there

was no dispute as to any material facts. Under 28 U.S.C. § 2412, costs (in

suits by or against the United States) are awarded to the prevailing

party. Appellant was not the prevailing party in the District Court since

his suit became moot when, upon remand, the Secretary determined that he

was entitled to the benefits claimed. Likewise, he was not entitled to

summary judgment since, when the Secretary recognized his claim for

benefits, his petition for review became moot and his complaint no longer

stated a claim upon which relief could be granted.

Affirmed.