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Caffey v. Berryhill

United States District Court, S.D. Alabama, Southern Division

February 5, 2019

JASON A. CAFFEY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This action is before the Court on the amended motion for fees under 42 U.S.C. § 406(b) (Doc. 30) (hereinafter, the “amended § 406(b) motion”) filed by Byron A. Lassiter, Esq., counsel of record for Plaintiff Jason A. Caffey.[1] The Defendant Commissioner of Social Security (“the Commissioner”) timely filed a response (Doc. 32) stating that she “neither supports nor opposes” the amended § 406(b) motion.[2]Upon consideration, the Court finds that the amended § 406(b) motion is due to be GRANTED.[3]

         I. Background

         Caffey, at all times represented by Lassiter, brought this action under 42 U.S.C. § 405(g) for judicial review of an unfavorable final decision of the Commissioner denying his application for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. In accordance with the Court's scheduling order (Doc. 3), the Commissioner filed her answer (Doc. 9) to the complaint and the certified record of the relevant administrative proceedings (Doc. 10); Caffey filed his fact sheet and brief identifying alleged errors in the Commissioner's final decision (Doc. 11); and the Commissioner filed her brief responding to Caffey's claims of error (Doc. 12).

         After the parties jointly waived the opportunity for oral argument (see Docs. 14, 17), the Court reversed the Commissioner's final decision under sentence four of § 405(g) and remanded the case to the Social Security Administration (“SSA”) for further proceedings. (See Docs. 18, 19). Caffey subsequently filed a motion for attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412[4](Doc. 20), which the Court granted, awarding Caffey $3, 520.00 in EAJA attorney fees. (See Doc. 23).

         Following remand to the SSA, an Administrative Law Judge (“ALJ”) issued a favorable decision for Caffey on his DIB application. A notice of award computing Caffey's past-due benefits was issued on June 24, 2018 (Doc. 30-2). On December 3, 2018, additional notices of award were issued computing past-due benefits for three of Caffey's children (Docs. 30-3, 30-4, 30-5).[5] Lassiter filed the amended § 406(b) motion on December 12, 2018.

         II. Analysis

         Under 42 U.S.C. § 406(b), “[w]henever a court renders a judgment favorable to a [DIB] claimant…who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment…” 42 U.S.C. § 406(b)(1)(A). “42 U.S.C. § 406(b) authorizes an award of attorney's fees where[, as here, ] the district court remands the case to the Commissioner of Social Security for further proceedings, and the Commissioner on remand awards the claimant past-due benefits.” Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006) (per curiam).[6]

         a. Timeliness

         Federal Rule of Civil Procedure 54(d)(2), which “applies to a § 406(b) attorney's fee claim[, ]” id., provides that, “[u]nless a statute or a court order provides otherwise, [a] motion[ for attorney's fees] must be filed no later than 14 days after the entry of judgment.” Fed.R.Civ.P. 54(d)(2). In its order remanding Caffey's case, the Court granted “Caffey's counsel an extension of time in which to file a motion for fees under 42 U.S.C. § 406(b) until thirty days after the date of receipt of a notice of award of benefits from the SSA.” (Doc. 18 at 35-36). The order further stated: “Consistent with 20 C.F.R. § 422.210(c), ‘the date of receipt of notice … shall be presumed to be 5 days after the date of such notice, unless there is a reasonable showing to the contrary.' If multiple award notices are issued, the time for filing a § 406(b) fee motion shall run from the date of receipt of the latest-dated notice.” (Id.).[7] Here, four award notices arising from Caffey's DIB application were issued, with the later three each dated December 3, 2018.[8] The amended § 406(b) motion (Doc. 30), filed 9 days later, is therefore timely.[9]

         b. Reasonableness

In Gisbrecht v. Barnhart, the Supreme Court considered 42 U.S.C. § 406(b) and clarified its impact on the district court's role in awarding a reasonable fee following a favorable claim for Social Security benefits. See 535 U.S. 789, 807, 122 S.Ct. 1817, 1828, 152 L.Ed.2d 996 (2002). Although § 406(b)(1)(A) gives district courts the power to “determine and allow as part of its judgment a reasonable fee” following a favorable claim for Social Security benefits, 42 U.S.C. § 406(b)(1)(A), it does not empower them to ignore the fee agreements entered into by parties when determining what a reasonable fee would be, see Gisbrecht, 535 U.S. at 807, 122 S.Ct. at 1828 (concluding that “ § 406(b) does not displace contingent-fee agreements as the primary means by which fees are set”). Instead, courts must look to the agreement made by the parties and independently review whether the resulting fee is reasonable under the circumstances. Id. Accordingly, [a court] must look to the fee agreement made by [a claimant] and his attorney.

Keller v. Comm'r of Soc. Sec., 759 F.3d 1282, 1284 (11th Cir. 2014). “[T]he agreement, not the statute, provides the ‘primary means by which fees are set.' ” Id. (quoting Gisbrecht, 535 U.S. at 807).

         In retaining Lassiter, Caffey entered into an attorney fee agreement (Doc. 30-7) which provides, in relevant part, as follows: “It is understood and agreed that I will pay an attorney's fee that will be 25% of the combined gross retroactive benefits from Social Security and Supplemental Security Income (SSI) resulting from a favorable award of the Commissioner, prior to any reduction under Section 1127(a) of the [Social Security] Act…It is understood that the term ‘combined gross retroactive benefits', as used herein, represents the total amount of money to which I and any auxiliary beneficiary or beneficiaries become entitled through the month before the month SSA effectuates a favorable administrative determination or decision on my Social Security claim and that SSI past-due benefits are the total amount of money from ...

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