1

The Honorable James M. Moody, United States District Judge for the Eastern

District of Arkansas. 

 United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1895

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James W. Stanley, Jr., *

*

Appellant, * Appeal from the United States

* District Court for the

v. * Eastern District of Arkansas.

*

Michael J. Astrue, Commissioner of * [UNPUBLISHED]

Social Security, *

*

Appellee. *

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Submitted: August 19, 2008

Filed: September 30, 2008

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Before MURPHY, BYE, and BENTON, Circuit Judges.

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PER CURIAM.

Attorney James W. Stanley, Jr., appeals the district court’s1

 dismissal of his

action challenging the Social Security Administration’s (SSA’s) decision to suspend

him from representing claimants. Stanley previously represented Joyce Martin on her

claims for disability insurance benefits (DIB) and supplemental security income (SSI).

Under their contract, Martin agreed to pay Stanley the lesser of 25% of all past due

benefits, or $4,000, if there was a favorable outcome on her applications. An
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administrative law judge (ALJ) found Martin entitled to SSI and DIB based on her

mental problems and concluded that the fee agreement met statutory conditions. Soon

thereafter Stanley wrote to Martin, directing her to send him 25% of her retroactive SSI

benefits. 

The Social Security Administration (SSA) later notified Martin that Stanley was

entitled to no more than $4,000 on her DIB claim. Stanley was copied on the notice,

and the SSA issued him a $4,000 check for the DIB claim. Approximately a month

later, the SSA informed Martin that she was entitled to almost $20,000 in back benefits

on her SSI claim, and that she would be notified later as to how much Stanley could

charge. Before the allowable fee was determined, Stanley collected $4,000 from

Martin on her SSI claim; he did not place the money in a trust or escrow account.

After the SSA informed Martin, in a letter copied to Stanley, that she was responsible

for paying Stanley only $4,000 total on both her SSI and DIB claims, Stanley moved

for reconsideration arguing he was entitled to another $4,000 on the SSI claim.

Meanwhile he offered to refund Martin $2,500, and he wrote to the ALJ representing

that he and Martin had compromised on the fee; Martin’s contemporaneous letters to

the ALJ reflected her confusion on the matter. The ALJ directed Stanley to remit the

entire $4,000, because he was prohibited from collecting separate fees on the SSI and

DIB claims; Stanley did not repay Martin until around six months later. 

The SSA charged Stanley under specified statutes and regulations with

collecting and retaining a fee in excess of the SSA-authorized fee; misleading Martin

as to her benefits and other rights; and knowingly making false or misleading

statements on an SSA matter. After a hearing, an ALJ found against Stanley and

suspended him for five years from representing parties before the SSA; the Appeals

Council affirmed. This counseled lawsuit followed, in which Stanley asserted

jurisdiction under 42 U.S.C. § 405(g) and the Administrative Procedures Act (APA).
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We agree with the district court that Stanley did not properly invoke jurisdiction

under section 405(g), which applies to DIB claims and provides that “[a]ny individual,

after any final decision of the Commissioner of Social Security made after a hearing

to which he was a party . . . may obtain a [judicial] review of such decision.” See 42

U.S.C. § 405(g); see also 42 U.S.C. § 405(h) (no decision shall be reviewed “except

as herein provided,” i.e., under § 405(g)); 42 U.S.C. § 1383(c)(3) (§ 405(g) also applies

to SSI claims); Jenkins v. Kansas City Mo. Sch. Dist., 516 F.3d 1074, 1080 (8th Cir.

2008) (de novo standard of review). 

We find it significant that, in a prior case involving a challenge to an attorney’s

fees determination, this court was not persuaded that judicial review under section

405(g) is available to attorneys. See Copaken v. Sec’y of Health, Educ. & Welfare,

590 F.2d 729, 731 (8th Cir. 1979) (per curiam) (noting that if review was not provided

for in § 405(g), then it was precluded by § 405(h)). Other circuit decisions support the

district court’s conclusion that section 405(g) did not confer jurisdiction to review the

merits of Stanley’s suspension. See Ezell v. Bowen, 849 F.2d 844, 845-46 (4th Cir.

1988) (per curiam) (applicable regulatory provisions provide for judicial review of

only “initial determinations,” which do not include decisions to disqualify or suspend

persons from acting as representatives); Howard v. Bowen, 823 F.2d 185, 186 (7th Cir.

1987) (§ 405(g) authorizes civil actions merely to review decisions denying disability

benefits); McCarthy v. Sec’y of Health & Human Servs., 793 F.2d 741, 743 (6th Cir.

1986) (attorneys are not “parties” to administrative proceedings for purposes of

§ 405(g)). We thus reject Stanley’s contention that the regulations precluding judicial

review of an administrative decision to suspend a representative are contrary to section

405(g). Further, we agree with the district court that the APA is not an alternative

basis for jurisdiction. See Califano v. Sanders, 430 U.S. 99, 104-07 (1977) (APA does

not independently grant district courts subject matter jurisdiction to review SSA

decision).
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We find it odd that Stanley claims ignorance of this provision, given his

testimony that he had represented claimants before the SSA since the early 1980s and

devoted about half of his practice to SSA cases.

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Although there is a basis for judicial review when colorable constitutional

claims are at issue, see id. at 109, the district court correctly determined that Stanley

did not raise any such claims, see Sabhari v. Mukasey, 522 F.3d 842, 844 (8th Cir.

2008) (per curiam) (to be colorable, constitutional claim must have “some possible

validity” (quoted case omitted)). Stanley has taken the position throughout these

proceedings that he is raising only a claim of substantive due process, but we see no

basis for any colorable claim under traditional substantive due process analysis, see

Ganley v. Minneapolis Park & Recreation Bd., 491 F.3d 743, 749 (8th Cir. 2007)

(court must consider whether appellant is asserting right rooted in nation’s history and

tradition, and implicit in concept of ordered liberty, and whether complained-of

action is truly irrational); and in any event, his specific contentions--about notice,

vagueness, a chilling effect, and deprivation of a valuable property right without sworn

witnesses--are more consistent with procedural due process or First Amendment

claims. 

Giving Stanley the benefit of the doubt by examining whether his assertions

support a colorable procedural due process or First Amendment claim, as did the

district court, we conclude that they do not. First, as to notice of proscribed conduct,

the statute itself precludes Stanley from collecting $4,000 for the DIB claim and also

for the SSI claim. See 42 U.S.C. §§ 406(a)(2)(A),(C), 1383(d)(2)(A) (in case

involving both SSI and DIB claims, Commissioner may approve fee agreement only

if total fee or fees specified in agreement does not exceed, in aggregate, $4,000

(emphasis added)).2

 Further, when Stanley agreed to represent Martin, he certified on

a form he signed that he would not collect any fee unless it had been approved under

the laws, regulations, and rulings cited and summarized on the form, which included

that, even after the SSA approved a fee agreement, the SSA would notify the claimant

of how much the representative could collect on a successful claim; that a fee could be
3

See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984).

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collected in advance only if it was held in trust or escrow; and that attorneys could be

suspended or disqualified from representing anyone before the SSA if they collected

an unauthorized fee.

 

Second, we fail to see how the regulations are vague and ambiguous: they

clearly provide that when there is evidence that a representative has engaged in

prohibited acts--such as knowingly misleading a claimant as to her rights, or

knowingly charging, collecting, or retaining a fee--the SSA may begin proceedings to

disqualify or suspend the representative. See 20 C.F.R. §§ 404.1740(c), 404.1745(b),

416.1540(c), 416.1545(b); cf. Woodis v. Westark Comty. Coll., 160 F.3d 435, 438 (8th

Cir. 1998) (vague regulation violates due process as it does not define offense with

sufficient definiteness that ordinary people can understand prohibited conduct, and

does not establish standards to permit enforcement in non-arbitrary, non-discriminatory

manner). Third, we are unpersuaded by Stanley’s assertion that he was deprived of a

valuable property right without the use of sworn witnesses because he had an

opportunity to testify at the administrative hearing, he did not challenge the evidence

before the ALJ, and he declined to offer any other evidence. Fourth, as to what the

district court construed as an overbreadth challenge to the regulations, Stanley was not

denied the opportunity to raise a bona fide fee dispute to the SSA, which is clearly

allowed under 20 C.F.R. §§ 404.1720(d), 416.1520(d) (review of fee determinations).

Rather, he was sanctioned for collecting an illegal fee despite his unsupported

protestations that the fee was allowed. 

Finally, Stanley’s contention that the regulations conflict with section 406(a)

appears to be a Chevron3

 challenge to sections 404.1745 and 416.1545. To the extent

the district court could entertain such a challenge when it lacked jurisdiction to review

the substance of the suspension decision, we conclude any Chevron challenge was

properly rejected. See Friends of the Boundary Waters Wilderness v. Bosworth, 437
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F.3d 815, 821-22 (8th Cir. 2006) (Chevron analysis); see also Bowen v. Yuckert, 482

U.S. 137, 145 (1987) (where Social Security Act makes Commissioner responsible for

implementing provision by regulation, judicial review is limited to determining

whether regulation exceeds Commissioner’s statutory authority and is arbitrary and

capricious). In contrast to Stanley’s position on the matter, both the statute and the

challenged regulations describe the Commissioner’s decision whether to begin

proceedings to disqualify or suspend a claimant’s representative for collecting an

illegal fee in permissive, not mandatory, terms. 

Accordingly, we affirm.

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