United States District Court, S.D. Alabama, Southern Division
JASON A. CAFFEY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.
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. 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.Upon consideration, the Court finds that
the amended § 406(b) motion is due to be
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).
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(Doc. 20), which
the Court granted, awarding Caffey $3, 520.00 in EAJA
attorney fees. (See Doc. 23).
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). Lassiter filed the amended
§ 406(b) motion on December 12, 2018.
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).
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.). Here, four award notices arising from
Caffey's DIB application were issued, with the later
three each dated December 3, 2018. The amended § 406(b)
motion (Doc. 30), filed 9 days later, is therefore
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
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).
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 ...