United States Court of Appeals 

For the First Circuit 

No. 15-1165 

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. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Kenneth P. Neiman, Magistrate Judge] 

Before 

Howard, Chief Judge, 

Lynch and Lipez, Circuit Judges. 

 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. 

November 20, 2015 
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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 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. 
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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. 

 1 We refer to the state program of supplementary payments 

as "supplementary payments" to align with the language in 42 U.S.C. 

§ 1382e. 
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Upon learning that the SSA attorney's fee award did not 

include twenty-five percent of the Massachusetts stateadministered 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 "pastdue 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 
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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., 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 

administer the state supplementary payments, the federal 

government "assume[s] complete control" over the administration of 

the payments. Bouchard, 583 F. Supp. at 947. These states then 

reimburse the federal government for the state portion of the 

payments disbursed and pay an administrative fee. See 42 U.S.C. 
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§ 1382e(d)(1). To be clear, the states do not hold separate 

hearings whether or not they use the federal government to 

administer their supplementary payments. See 106 Mass. Code Regs. 

§ 327.120. The Commissioner's determination of eligibility for 

SSI benefits automatically qualifies the claimant for the state 

supplement. See id. The majority of states administer their own 

supplementary payments.2 Some states do not provide supplementary 

payments at all. 

As originally enacted, the SSI program did not authorize 

the withholding of SSI benefits from the claimant's award to pay 

the claimant's attorney his or her fees in successful 

adjudications. See Bowen v. Galbreath, 485 U.S. 74, 79 (1988). 

However, in 2004, the Social Security Protection Act added a 

subparagraph to 42 U.S.C. § 1383(d)(2), providing that when a 

claimant is awarded past-due benefits, "the Commissioner of Social 

Security shall pay out of such past-due benefits to such attorney" 

the attorney's fees, subject to certain limitations. Pub. L. No. 

108-203, § 302(a)(4), 118 Stat. 493, 520 (2004); see 42 U.S.C. 

§§ 406(a)(2), 1383(d)(2)(B). Since 2007, the Commissioner has 

 2 There are reasons a state may choose to administer its 

own supplementary payments. For example, those states that enter 

into agreements with the SSA must pay a fee of more than $10 to 

the SSA for each payment the SSA administers. See Social Security 

Handbook § 2106.2 (2011). In addition, states with federallyadministered payments "los[e] all administrative control over the 

operation of those benefits." H.R. Rep. No. 92-231, at 5186 

(1971); see also 42 U.S.C. § 1382e(b)(2). 
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interpreted "past-due benefits" under the SSI program as 

"including any Federally administered State payments," but not 

including supplementary payments administered by the state. 

Temporary Extension of Attorney Fee Payment System to Title XVI, 

72 Fed. Reg. 16,720, 16,725 (Apr. 5, 2007) (codified at 20 C.F.R. 

§ 416.1503); see also SSA Program Operations Manual System 

GN 03920.031(B)(1) (2012) ("In a title XVI only claim, 'past-due 

benefits' are the total amount of Federal and Federally 

administered State payments accumulated to the claimant and his or 

her spouse . . . because of a decision favorable to the 

claimant . . . ."). Accordingly, a percentage of state 

supplementary payments is not included as part of the attorney's 

fees the SSA awards in states that administer their own 

supplementary payments. It is this percentage of the Massachusetts 

state-administered state supplementary payments that Moriarty 

seeks. 

III. 

We address the Commissioner's argument that we lack 

subject matter jurisdiction to decide this case.3 Under 28 U.S.C. 

 3 "Under 28 U.S.C. § 1291, we have jurisdiction over 

appeals from final decisions and orders of the district courts 

within this circuit." Royal Siam Corp. v. Chertoff, 484 F.3d 139, 

142 (1st Cir. 2007). Because the case before us appeals a final 

decision of the district court, we have jurisdiction over the 

appeal. Id. However, "[t]hat is not the end of the jurisdictional 

issue." Id. "[I]t normally is incumbent upon an appellate court 

to satisfy itself both of its own subject-matter jurisdiction and 
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§ 1331, federal courts have jurisdiction to review agency action. 

See Califano v. Sanders, 430 U.S. 99, 105 (1977). However, two 

statutes may potentially withdraw jurisdiction: (1) 42 U.S.C. 

§ 405(h), which provides: "No action against the United States, 

the Commissioner of Social Security, or any officer or employee 

thereof shall be brought under section 1331 or 1346 of title 28 to 

recover on any claim arising under this subchapter."; and (2) 42 

U.S.C. § 406(a)(3)(C), which provides: "The decision of the 

administrative law judge or other person conducting the review [of 

the amount which would otherwise be the maximum attorney's fee] 

shall not be subject to further review." 

The answer to the jurisdictional question is not clear. 

However, resolving this case on the merits by affirming the grant 

of summary judgment has the same consequences as concluding that 

we do not have jurisdiction. Because the jurisdictional question 

is a question of statutory jurisdiction, not Article III 

jurisdiction, see Parella v. Ret. Bd. of R.I. Emps.' Ret. Sys., 

173 F.3d 46, 54 (1st Cir. 1999), "we believe that this is a case 

in which we may -- and should -- bypass the jurisdictional 

question." Royal Siam Corp. v. Chertoff, 484 F.3d 139, 143 (1st 

Cir. 2007); see also Global NAPs, Inc. v. Verizon New England, 

 

of the subject-matter jurisdiction of the trial court before 

proceeding further." Id. The Commissioner filed a motion to 

dismiss below based on lack of subject matter jurisdiction, which 

the district court denied. 
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Inc., 706 F.3d 8, 12–13 (1st Cir. 2013) (explaining that "[w]hen 

confronted with non-constitutional challenges to jurisdiction," 

id. at 12–13, and the "case readily can be resolved in favor of 

[the party challenging jurisdiction,] . . . we may 'decline to 

decide the jurisdictional issues . . . ,'" id. at 13 (quoting 

Restoration Pres. Masonry, Inc. v. Grove Eur. Ltd., 325 F.3d 54, 

59 (1st Cir. 2003))). The Commissioner agrees we have the 

authority to do so. 

IV. 

"We review an appeal from a grant of summary judgment de 

novo." FDIC v. Estrada-Rivera, 722 F.3d 50, 52 (1st Cir. 2013). 

Because we are reviewing an agency's interpretation of 

its governing statute, we apply the principles of Chevron, U.S.A., 

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 

(1984). Under Chevron, we first ask "whether Congress has directly 

spoken to the precise question at issue." Id. at 842. If we 

determine that "Congress has not directly addressed the precise 

question at issue," we then ask whether the agency's interpretation 

is a "reasonable" one. Id. at 843–44.4

 4 To the extent Moriarty suggests we should not apply the 

Chevron framework, he is wrong. See Splude v. Apfel, 165 F.3d 85, 

90 (1st Cir. 1999) ("[T]he Social Security Administration is 

normally accorded the deference due to an agency plausibly 

interpreting its own governing statutes."); see also Barnhart v. 

Thomas, 540 U.S. 20, 26–30 (2003); Barnhart v. Walton, 535 U.S. 

212, 217–22 (2002). 
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Congress has not "directly spoken to the precise 

question at issue." Id. at 842. Under 42 U.S.C. § 1383(d)(2)(B), 

"if the claimant is determined to be entitled to past-due benefits 

under this subchapter and the person representing the claimant is 

an attorney, the Commissioner of Social Security shall pay out of 

such past-due benefits" the lesser of "the maximum fee as does not 

exceed 25 percent of such past-due benefits" or "the amount of 

past-due benefits available after any applicable reductions." 42 

U.S.C. § 1383(d)(2)(B).5

Whether "past-due benefits under this subchapter" 

includes state-administered state supplementary payments is not 

self-evident. Section 1382e discusses state supplementary 

payments and provides that "[a]ny cash payments which are made by 

a State . . . on a regular basis to individuals who are receiving 

benefits under this subchapter . . . shall be excluded under 

section 1382a(b)(6) of this title in determining the income of 

such individuals for purposes of this subchapter." Id. § 1382e(a). 

It then explains that "the Commissioner of Social Security and 

such State may enter into an agreement which satisfies subsection 

 5 The term "past-due benefits" appears more than ten times 

throughout § 1383 and almost twenty times throughout 42 U.S.C. 

§ 406, which has largely been incorporated into Title XVI of the 

Social Security Act. See 42 U.S.C. § 1383(d)(2)(A). In his brief, 

Moriarty also discusses § 406(a), which provides that "[i]n the 

case of a claim of entitlement to past-due benefits under this 

subchapter," the Commissioner shall approve fee agreements subject 

to certain conditions. See id. § 406(a)(2)(A). 
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(b) of this section under which the Commissioner of Social Security 

will, on behalf of such State . . . make such supplementary 

payments to all such individuals." Id.6 Thus, while the subchapter 

unambiguously discusses state supplementary payments, it is 

unclear whether this subsection presupposes the existence of state 

supplementary payments or whether state supplementary payments 

should be considered as "past-due benefits under this subchapter." 

The legislative history is of little assistance in 

resolving this question. Originally, Congress did not provide for 

the withholding of past-due benefits for attorney's fees in SSI 

cases. See Bowen, 485 U.S. at 77 (concluding that this omission 

was "intentional" and that "it is fair to assume that this omission 

 6 The sub-section in full states: 

Any cash payments which are made by a State (or 

political subdivision thereof) on a regular 

basis to individuals who are receiving benefits 

under this subchapter or who would but for 

their income be eligible to receive benefits 

under this subchapter, as assistance based on 

need in supplementation of such benefits (as 

determined by the Commissioner of Social 

Security), shall be excluded under section 

1382a(b)(6) of this title in determining the 

income of such individuals for purposes of this 

subchapter and the Commissioner of Social 

Security and such State may enter into an 

agreement which satisfies subsection (b) of 

this section under which the Commissioner of 

Social Security will, on behalf of such State 

(or subdivision) make such supplementary 

payments to all such individuals. 

42 U.S.C. § 1382e(a). 
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also reflected Congress' view that withholding past-due SSI 

benefits would be inconsistent with the purpose of the 

program . . . [g]iven the extreme financial need of SSI 

beneficiaries"). When Congress did authorize the withholding of 

past-due benefits in 2004, it did so with the purpose of 

"improv[ing] SSI applicants' access to representation, as more 

attorneys would be willing to represent claimants if they are 

guaranteed payment." H.R. Rep. No. 108-46, at 43 (2003). The 

report does not discuss whether state supplementary payments would 

be included in "past-due benefits." Id.7 Given the ambiguity of 

the language and the inconclusive legislative history, we move to 

the second step of the Chevron inquiry and ask whether the 

Commissioner's interpretation "is based on a permissible 

construction of the statute." Chevron, 467 U.S. at 843. 

We conclude that the Commissioner's interpretation is 

reasonable. The statute provides that the Commissioner "shall 

pay" attorney's fees "out of such past-due benefits," 42 U.S.C. 

§ 1383(d)(2)(B), and the Commissioner explains in her brief that 

 7 With regard to the states' involvement with the 

administration of attorney's fees, the report explains only that 

"in cases where the States would be reimbursed for interim 

assistance they had provided to a beneficiary awaiting a decision 

on a claim for SSI benefits, the State would be paid first, and 

the attorney would be paid second out of the past-due benefit 

amount" so that "States providing interim assistance to 

individuals would not receive less reimbursement." H.R. Rep. No. 

108-46, at 43. 
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she can make payments only out of funds over which the SSA has 

control -- "the federal SSI payments and the funds provided by 

states for federally administered state payments." As the district 

court found, the SSA "would have no power to withhold 25% of the 

total retroactive amount payable to the claimant." Moriarty, 76 

F. Supp. 3d at 266. Moreover, unlike with federally-administered 

state payments, there is no mechanism for reimbursement when states 

administer their own supplementary payments. See 42 U.S.C. 

§ 1382e(d)(1). "At the least, the [Commissioner]'s interpretation 

has administrative simplicity to recommend it." Scialabba v. 

Cuellar de Osorio, 134 S. Ct. 2191, 2212 (2014).8

We recognize that the Commissioner's interpretation 

leads to a situation where an attorney cannot collect twenty-five 

percent of state-administered state supplementary benefits as 

fees. The Commissioner acknowledges that because under her 

regulations, "past-due benefits do not include state-administered 

 8 The Commissioner also represents that when states 

administer their own payments, "the Commissioner often does not 

know the precise amount of the payments to an individual SSI 

recipient," and the SSA is therefore "not in a position to 

calculate a fee based on a percentage of such payments." Moriarty 

contests this representation and argues that the Commissioner can 

access information regarding state-administered state 

supplementary payments. We need not wade into this factual 

dispute. Whether or not the Commissioner can ultimately determine 

the amount of state-administered supplementary payments through 

publicly available information, as the district court explained, 

she does not have control over the administration of these 

payments. Moriarty, 76 F. Supp. 3d at 266. 
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supplements . . . [she] cannot approve a fee that includes a 

percentage of the state-administered supplement." And if Moriarty 

charges or attempts to collect a fee above that which has been set 

by the Commissioner, he would violate the Social Security Act and 

"shall be deemed guilty of a misdemeanor," 42 U.S.C. § 406(a)(5). 

Yet we cannot conclude that this outcome renders the 

Commissioner's interpretation unreasonable. Whether or not the 

attorney receives a portion of the state-administered state 

supplementary payments, by receiving a percentage of the federal 

payments, the attorney still has received an incentive to represent 

claimants. Cf. Detson v. Schweiker, 788 F.2d 372, 376 (6th Cir. 

1986) ("[T]he primary financial incentive provided by § 406 is not 

the amount of attorney's fees but is the direct payment of 

fees. . . . [T]his financial incentive is unaffected by the 

Secretary's method of calculating the withholding amount." (citing 

Burnett v. Heckler, 756 F.2d 621, 626 (8th Cir. 1985))). There 

are competing concerns when determining attorney's fees: "There is 

a danger that too much of the benefits go to the lawyers rather 

than the claimants. There is also the danger that if the lawyers 

have no assured compensation the claimants will not be 

represented. . . . Congress has dealt with [this problem] and 

delegated to the [Commissioner] the authority to spell out what 
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Congress has intended." Rodriguez v. Sec'y of Health & Human 

Servs., 856 F.2d 338, 340 (1st Cir. 1988).9

V. 

For the reasons stated above, the district court's order 

is affirmed. 

 9 In determining that the Commissioner's interpretation is 

reasonable, "we are not unmindful that the fees of attorneys 

representing [clients in states without federally-administered 

supplementary payments] will be reduced." Detson, 788 F.2d at 

376. "However, dissatisfaction with this result" is for Congress 

and the Commissioner -- not this court -- to address. Id. at 376–

77.