54.2 Attorney’s fees in certain Social Security cases
- Scope of rule - The procedures set forth in this rule apply to motions for attorney’s fees brought under 42 U.S.C. § 406(b)(1)(A) (Social Security disability claims) or 42 U.S.C. § 1383(d)(2)(A) (supplemental security income claims), which allow an attorney to obtain fees from the client’s award of past-due benefits for work performed in the district court. It is necessary to prescribe a special procedure for such cases, because the amount of past-due benefits is unknown at the time judgment for the claimant is entered in the district court. This rule does not apply to motions for fees under the Equal Access to Justice Act (EAJA), which are governed by the procedures set forth in that Act. 28 U.S.C. § 2412(d).
- Deadline for filing motion - The attorney must file a motion for approval of fees under 42 U.S.C. §§ 406(b)(1)(A) or 1383(d)(2)(A) no later than thirty-five (35) days after the date shown on the face of the notice of award issued by the Social Security Administration.
- Requirements for motion - The motion must be accompanied by a supporting brief and all necessary documentation. The motion must state the following:
- the past due benefits;
- the total dollar amount withheld by the Commissioner out of the past due benefits to cover a potential award of attorneys fees in this court;
- the dollar amount (if any) of fees the attorney was awarded, has sought, or intends to seek pursuant to 42 U.S.C. § 406(a) for services performed at the administrative level of review;
- whether the attorney has knowledge of any other representative(s) who were awarded, sought, or will seek authorization for fees under 42 U.S.C. § 406(a);
- the dollar amount of fees sought pursuant to 42 U.S.C. § 406(b);
- the dollar amount of court costs, fees, and/or expenses sought or already awarded under the Equal Access to Justice Act (28 U.S.C. § 2412);
- an itemization of the services provided in judicial proceedings, specifying the hours worked, the work performed, and the attorney’s hourly billing rate;
- an argument establishing that the fees sought are authorized under any applicable fee agreement, are reasonable; and
- in addition to complying with the requirements of LCivR 7.1, an affirmative statement that the attorney has discussed the matter of fees with the plaintiff and the plaintiff either has no objection to the amount of fees sought in the motion, or that the plaintiff and the attorney disagree as to the reasonableness of the fees sought.
- The fee motion must be accompanied by:
- legible copies of all of the notices of award showing the amount of past due benefits and the amount(s) withheld by the Commissioner under 42 U.S.C. §§ 406, 1383;
- a copy of any fee agreement entered into between the plaintiff and the attorney; and
- a certificate of service that the attorney’s fee motion and attachments have been served on the U.S. attorney and on the plaintiff.
- Response - Any response by the client or defendant must be filed within twenty-one (21) days after the motion for attorney’s fees is served. Reply briefs are not permitted absent leave of court.
Date Last Modified:
January 1, 2019