I thought I would pass this along. It's a letter from the Office of Social Security's Regional Chief Administrative Law Judge (RCALJ) for Region 4, the Atlanta Region. This is acknowledgment of an appeal I filed from the attorney fee approved by an Administrative Law Judge (ALJ). The fee approved was $0. This was a case where my firm has been representing the claimant since 2010. We have had a fee approved for work done before a federal court but the ALJ approved nothing for all the work done before the Social Security Administration, even though this involved two hearings and working on the case for more than eight years. No, the Court can't approve a fee for work done before the agency or vice versa.
The thing you should particularly note is what this says at the bottom: "Enclosure: Copy of letter dated November 08, 2017." That's a copy of the letter I sent them appealing the $0 approval. It's taken 11 months to get that office to even acknowledge the appeal. Yes, we've been calling them about this and they have long since acknowledged over the telephone that they had the appeal.
It's not just me and this isn't an exceptional case. Other attorneys in this Region can confirm that this is a general problem which has been worsening over many years. The volume of these fee appeals isn't great, even in Social Security's largest region. You have to wonder what's going on. I'm not sure that even the phrase "low priority" would describe the situation.
16 comments:
That is what can happen when agency leaders only let OHO hire more judges and attorney advisors. Other staff? Forget it.
Did the agency approve a fee of $0, or did they actually simply decline to approve your fee agreement? If it's the latter, then it was probably done because your fee agreement contained terms allowing for a greater than $6,000 fee in the event of litigation at the district court level, which, if I'm reading your post correctly, would have been triggered when you took the case before the district court. That sort of thing is quite commonplace, and, for better or worse, mandated by the regulations.
The situation is what I described. I'm not appealing the disapproval of a fee agreement. I submitted a fee petition, the ALJ approved $0 and I'm appealing it. Even if I were appealing the disapproval of a fee agreement, 11 months to even acknowledge the appeal would be ridiculous.
The delays you describe are pretty typical for the Chicago region as well.
In my area (and probably throughout the country) the ALJs and the Regional Chief ALJs delegate the determination of Attorney Fee Petitions and Appeals to non-attorney staff members. I use a two-tiered fee contract and have a number of Remands from either the Appeals Council or the Federal Courts. I have a number of unusual results in those cases. Allegedly, (according to the OHO and Regional Chief personnel) there is no paper trail in the determination process. According to Hallex I-1-2-57 the authorization of an Attorney Fee has to take into account a number of items, including complexity of the case, amount of time involved etc. Also, the Hallex section requires use of Form SSA-1178 and references POMS GN 03930.1503. I have requested that documentation numerous times when I appeal an Award of Attorney Fees and have been "stonewalled." I have alleged Denial of Administrative Due Process in my appeal briefs In that I usually prevail with the appeal I have not had to argue the Due Process point. The Attorney Fee Petition and the Attorney Fee Appeal process should be thoroughly investigated.
File a mandamus action in federal court. I’m sure it won’t be acted upon, but it may get Region 4 off its ass.
Our fee appeals in the NY regional office are sitting for two years. the Chief ALJ acknowledged the delay, but nothing gets done to move those appeals along.
Cases out of the Seattle Tacoma area are met with the same delay/indifference. No one holds the agency accountable.
I'm glad to see this subject brought up. Our office handles only federal court appeals. It seems there is a number of SSA employees who do not understand how federal court fees work, and are even more confused about the relation of federal court fees and administrative fees. Often times they seem to suspect we are trying to pull a fast one when the real problem is they do not understand how the fees are intended to be paid. I understand SSA is underfunded and overworked but I have to think it would be beneficial for SSA to conduct training on this subject.
I like the idea of filing an action in federal court just to get some action and possibly shine some light on these payment issues.
My guess is SSA is looking at the amount awarded for work before the court and thinking "that's enough" which should not even be a factor but it seems to often become one in these situations. SSA's misunderstanding of the coordination of fees for court and administrative work is a huge problem for our firm.
Publicity is your key. I seen many examples over the years where, when SSA knows a story is coming out that they move heaven and earth to have a check in the mail/BANK before the story hits the press. So if it were me I'd run a letter to the RCALJ and ask how many cases he/she disposed of last fy. Here is where you can look up the entire SSA alj productivity for fy 2018. You will be shocked at the production vel non of some of them. https://www.ssa.gov/appeals/DataSets/03_ALJ_Disposition_Data.html
Once the RCALJ of the CALj or the Acting Commissioner knows this closet skeleton is about to be revealed S/he will try to make you happy. Try to give them some time - it is more effective if a newspaper reporter makes an inquiry about a 'pending story'.
Why can't SSA just instruct the AJJ's to completely ignore Federal Court work and EAJA fees received for it, when setting fees for Administrative work, which is what law dictates? It's absurd to have fees cut because you received other pay for work that, by Statute, is completely different and separate.
@2:21
They do, under HALLEX I-1-2-5(C).
The new Region IV RCALJ was just appointed a few months ago so it looks to me like she is starting to clean up some languishing issues left behind by the previous RCALJ.
I would recommend first knowing who did what before you start pointing fingers. It will totally destroy your argument if your facts are not truthful; or at least make you look ignorant (or stupid).
@ 11:50 AM, Actually I-1-2-71 is more specific and to the point.
I contacted a field office to request and explanation for a claimant regarding an attorney fee payment that was direct paid on a title xvi (concurrent) case even though the ALJ clearly noted in the Decision the Fee Agreement was DENIED due to inappropriate language. There was also no Notice sent to the claimant regarding the (unapproved) attorney fee payment made by SSA to the administrative attorney. The senior field office employee politely explained it was something that happened often and would continue to happen due to the inexperienced and limited staff. I almost dropped the phone, you just can't make this stuff up. For some reason this particular client thinks all attorneys are unethical shit bags. I could hear relatives yelling obscenities in the background...
A lot of things do not get done in Region 4. Not until a week after I started a job, did I receive a written contract inconsistent with the HR person's oral representations, upon which I had acted in making my decision to accept the position.
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