Caffey v. Colvin

Filing 28

Order the Court finds the 24 MOTION for Attorney Fees filed by Jason A. Caffey is untimely; plaintiff's counsel is given until 12/13/2018 to file a motion showing sufficient grounds to excuse the tardy filing of his § 406(b) motion; if no motion is filed by that date, Lassiter's motion (doc. 27) will be summarily denied as untimely. Signed by Magistrate Judge Katherine P. Nelson on 12/6/18. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JASON A. CAFFEY,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 15-00490-N

ORDER
This action is before the Court on the motion for fees under 42 U.S.C. § 406(b)
(Doc. 27) (hereinafter, the “§ 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. 27) stating that she
“neither supports nor opposes” the motion.2 Upon consideration, the Court finds
that the motion is untimely.
Federal Rule of Civil Procedure 54(d)(2), which “applies to a § 406(b)
attorney’s fee claim[,]” Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir.
2006) (per curiam), 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

A Social Security claimant’s attorney is the real party in interest to a § 406(b)
award. Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002).
2 “[T]he Commissioner of Social Security…has no direct financial stake in the
answer to the § 406(b) question; instead, she plays a part in the fee determination
resembling that of a trustee for the claimants.” Gisbrecht, 535 U.S. at 798 n.6.
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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. 218 at 25). 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.’ ”

(Id.).3

The award of benefits attached to Lassiter’s § 406(b) motion (Doc. 24-2)
indicates it was issued June 24, 2018, and is therefore presumed to have been
received on Friday, June 29, 2018.

Thus, Lassiter had until Monday, July 30, 2018,

in which to file a § 406(b) motion. See Fed. R. Civ. 6(a)(1)(C). However, he did not
file the present motion until November 14, 2018, and he fails to offer any
explanation for the tardy filing.
Upon consideration, Lassiter is hereby given until Thursday, December 13,
2018, to file a motion under Federal Rule of Civil Procedure 6(b)(1)(B)4 showing

See Blitch v. Astrue, 261 F. App'x 241, 242 n.1 (11th Cir. 2008) (per curiam)
(unpublished) (“In Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273 (11th Cir. 2006), we
suggested the best practice for avoiding confusion about the integration of Fed. R.
Civ. P. 54(d)(2)(B) into the procedural framework of a fee award under 42 U.S.C. §
406 is for a plaintiff to request and the district court to include in the remand
judgment a statement that attorneys fees may be applied for within a specified time
after the determination of the plaintiff's past due benefits by the Commission. 454
F.3d at 1278 n.2.”).
3

“When an act may or must be done within a specified time, the court may, for good
cause, extend the time…on motion made after the time has expired if the party
failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B).
4

sufficient grounds to excuse the tardy filing of his § 406(b) motion.

In the event no

such motion is filed by that deadline, Lassiter’s § 406(b) motion (Doc. 27) will be
summarily denied as untimely.
DONE and ORDERED this the 6th day of December 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE