Matthew Albanese · July 2010
78 GEO. WASH. L. REV. 1014 (2010)
In 2008, over 13,000 claims under the Social Security laws were filed in the district courts of the United States. Victorious claims, however, require not only bona fide claimants but also persistent lawyers. Attorneys who successfully represent Social Security disability claimants and win past-due benefits for them are entitled to reasonable fees payable out of those benefits. Unfortunately, the statute granting attorney’s fees does not specify when a petition for such fees must be filed. Moreover, the default timeframe of the Federal Rules of Civil Procedure is wholly inadequate to govern fairly the lengthy and complex process of vindicating Social Security disability claims.
Part I of this Essay reviews the statutory and caselaw history underpinning applications for attorney’s fees. Part II examines the two main suggestions from courts of appeals for dealing with this problem and finds them lacking. Part III proposes and evaluates some possible solutions. It suggests that the establishment of local rules may be the best judicial method of dealing with this problem but notes that drawbacks to such a solution still exist. As a superior alternative, this Essay suggests that a rule promulgated by the Social Security Administration (“SSA”) would achieve clarity and consistency, and effectively alter the behavior of attorneys and courts to achieve a nationwide remedy. Specifically, SSA should state that, as a policy, it will oppose any motion for attorney’s fees not filed within a certain time period after it has issued its notice of award.
