Morton E. Schneider v. Elliott Richardson, Secretary of Health, Education and Welfare

441 F.2d 1320, 1971 U.S. App. LEXIS 10497

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 28, 1971
• Docket: 20618
• Status: Published

Opinions

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 percent of the benefits awarded. The hearing examiner allowed a fee of $500 and following an administrative appeal as authorized by 20 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.

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 206(a)² 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. 1968), 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. Fenix v. Finch, 436 F.2d 831 (8th Cir. 1971); Conner 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 206(a) of the Social Security Act provides in part “ * * * [t]he Secretary may, by rule and regulation, 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.”