806 F.3d 664 (1st Cir. 2015), 15-1165, Moriarty v. Colvin

Docket Nº:15-1165
Citation:806 F.3d 664
Opinion Judge:LYNCH, Circuit Judge.
Party Name:MARSHALL T. MORIARTY, ESQ., individually and on behalf of all others similarly situated, Plaintiff, Appellant, v. CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant, Appellee
Attorney:Richard I. Greenberg for appellant. Karen L. Goodwin, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, and Hugh Dun Rappaport, Assistant Regional Counsel, Social Security Administration, were on brief, for appellee.
Judge Panel:Before Howard, Chief Judge, Lynch and Lipez, Circuit Judges.
Case Date:November 20, 2015
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
SUMMARY

For more than a decade, the Commissioner of the Social Security Administration (SSA) has paid directly to qualified attorneys who bring Supplemental Security Income (SSI) claims a fee of no more than twenty-five percent of the successful recovery of past-due benefits to clients. When a state chooses to administer its own payments, the amount of state payments are not included as “past-due... (see full summary)

 
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806 F.3d 664 (1st Cir. 2015)

MARSHALL T. MORIARTY, ESQ., individually and on behalf of all others similarly situated, Plaintiff, Appellant,

v.

CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant, Appellee

No. 15-1165

United States Court of Appeals, First Circuit

November 20, 2015

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Kenneth P. Neiman, Magistrate Judge.

Richard I. Greenberg for appellant.

Karen L. Goodwin, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, and Hugh Dun Rappaport, Assistant Regional Counsel, Social Security Administration, were on brief, for appellee.

Before Howard, Chief Judge, Lynch and Lipez, Circuit Judges.

OPINION

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LYNCH, Circuit Judge.

As an incentive to attorneys to bring Supplemental Security Income (SSI) claims, the Commissioner of the Social Security Administration (SSA), for more than a decade, has paid directly to qualified attorneys a fee of no more than twenty-five percent of the successful recovery of past-due benefits to clients. See 42 U.S.C. § 1383(d)(2)(B). When the federal government administers state supplementary payments for the state, that amount of state payments is included in " past-due benefits." See 20 C.F.R. § 416.1503. But when the state chooses to administer its own payments, the state amounts are not included as " past-due benefits" for the purpose of attorney compensation. See id.

So when Massachusetts chose in 2012 to administer its own benefits, rather than rely on federal administration of its supplementary payments as it had done in the past, that had the effect of reducing the fees paid to attorneys representing Massachusetts SSI claimants. The attorney here argues that the Commissioner cannot exclude state-administered state supplementary payments from the amount included in " past-due benefits." Giving deference

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to the agency, as we must, we conclude the Commissioner can do so.

We may and do make the assumption that we have federal appellate jurisdiction. We affirm the district court's order granting summary judgment to the Commissioner.

I.

Attorney Marshall Moriarty represented a client in a claim for SSI benefits before the SSA in 2012. Moriarty and his client had entered into an agreement in June 2012, providing that, subject to the SSA's approval, " if SSA favorably decides the claim(s)," Moriarty would receive " a fee equal to the lesser of 25% or the maximum allowable fee that, as of the date of this agreement, is $6000.00."

In 2013, Moriarty's client received a partially favorable decision, in which the SSA granted him $16,699.02 in federal and federally-administered state back payments. This amount included federal SSI payments the client was owed from November 2010 through April 2013 as well as Massachusetts state supplementary payments from November 2010 through March 2012 -- the time period during which Massachusetts's state supplementary payments1 were federally administered. However, in April 2012, Massachusetts changed its practice and began administering its own program of supplementary payments. At that point, such payments were no longer included in the SSA's calculation of back payments for purposes of payments to attorneys.

Upon learning that the SSA attorney's fee award did not include twenty-five percent of the Massachusetts state-administered state supplementary payments, Moriarty wrote a letter to the SSA seeking $324.85 in additional fees. The SSA Office of the Regional Counsel e-mailed Moriarty informing him that " past-due benefits are calculated only [on] the basis of federally administered benefits and do not include state supplementation unless federally administered."

The Commissioner's position is that Moriarty's attorney's fee award can be based only on the $16,699.02 granted by the SSA, and so it cannot include a percentage of the Massachusetts state-administered state supplementary payments from April 2012 through April 2013. If Massachusetts had continued its prior practice of having the federal government administer the program, then Moriarty would have gotten twenty-five percent of the total state and federal payments. Because Massachusetts changed its practice, the Commissioner says that not only will Moriarty not receive the same amount of attorney's fees but he is also forbidden to seek the shortfall.

In August 2013, Moriarty filed a Complaint for Declaratory Relief and Petition for Writ of Mandamus in the federal district court. The parties cross-moved for summary judgment. On December 31, 2014, the district court entered judgment in favor of the Commissioner. Moriarty v. Colvin, 76 F.Supp.3d 261, 268 (D. Mass. 2014). This appeal followed.

II.

Under Title XVI of the Social Security Act, 42 U.S.C. § § 1381-1383f, the SSA administers SSI to eligible " individuals who have attained age 65 or are blind or disabled." Id. § § 1381, 1381a. States may choose to supplement federal SSI benefits with optional state supplementary payments. See Bouchard v. Sec'y of Health & Human Servs.,

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583 F.Supp. 944, 947 (D. Mass. 1984) (citing 42 U.S.C. § 1382e); 20 C.F.R. § 416.2001. Massachusetts has chosen to do so. States providing these supplementary payments can administer the payments on their own or enter into an agreement with the Commissioner under which the Commissioner makes supplementary payments on the state's behalf. See 42 U.S.C. § 1382e(a)-(b). States that administer their own supplementary payments " may establish [their] own criteria for determining eligibility requirements as well as the amounts." 20 C.F.R. § 416.2005(c).

When states choose to have the federal government...

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