Caldwell v. Califano
Decision Date | 14 August 1978 |
Docket Number | Civ. A. No. 75-X-0574-S. |
Citation | 455 F. Supp. 1069 |
Parties | Robert CALDWELL, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant. |
Court | U.S. District Court — Northern District of Alabama |
Walter W. Furner, Furner & Boyce, Bessemer, Ala., for plaintiff.
J. R. Brooks, U. S. Atty., N. D. Ala., Birmingham, Ala., for defendant.
Defendant has filed a motion for reconsideration of the Court's judgment of July 10, 1978, awarding attorney's fees claiming that since the award of benefits was made by the Appeals Council on remand, and plaintiff did not file a petition with the Social Security Administration for fees for services rendered, the Court is without jurisdiction to determine an award for fees. Defendant says that the award was premature and precluded the Administration from exercising its authority to award a fee under 42 U.S.C. § 406(a).
The Court has carefully considered the decisions cited by counsel in support of their respective contentions and has fully researched the law relating thereto. The courts have written at some length on the authority of the Secretary and of the court to award attorney's fees for services rendered in the administrative proceedings and in the court, but very little as to priority between them in making the award.
In Celebrezze v. Sparks, 342 F.2d 286, following the Fourth Circuit in Folsom v. McDonald, 237 F.2d 380, the Fifth Circuit held that under 42 U.S.C. § 405(g) the trial court had implied authority to allow a fee out of the benefits awarded the plaintiff under the Social Security Act. The decision was rendered in 1965 before the effective date of the 1965 amendment to the Act, dealing specifically with attorney's fees under Section 406(b) where the court renders a judgment favorable to the claimant.1
In Gardner v. Menendez, 373 F.2d 488, the First Circuit distinguished Sparks, noting that the decision was rendered prior to the 1965 amendment. The court stated that Section 406(b)(1) was clear and explicit, and limited the award of fees by the court to those cases wherein the "court renders a judgment favorable to a claimant . . ." It held that for services performed before the agency, the Secretary may award appropriate counsel fees under Section 406(a). The court stated that:
The Fourth Circuit in Robinson v. Gardner, 374 F.2d 949, decided in 1967, but under a time frame that rendered the amendment inapplicable, held that:
The Third Circuit in Swotes v. Gardner, 392 F.2d 428, where a Hearing Examiner allowed fee for agency service, but refused to direct that the fee be paid out of the award, the court held that the District Court lacked authority to compel such payment,2 saying:
In Dawson v. Finch, 425 F.2d 1192 (5th Cir.), the court held that where an attorney had received an award of 25% for his representation of the claimant in administrative proceedings, he may not obtain authorization from the court to charge 25% for his representation of the claimant before the court. In the course of its opinion, the court, referring to Menendez, supra, and Britton v. Gardner (W.D.Va.) 270 F.Supp. 412, observed that those cases held:
"that an attorney is entitled to petition the Secretary and the court for the award of fees for services rendered a claimant before them but that neither the Secretary nor the court could fix the amount of the fee for services performed before the other."
The Ninth Circuit in MacDonald v. Weinberger, 512 F.2d 144, reversed the trial court for awarding an attorney's fee for representation both before the Secretary and in the district court, and speaking rather succinctly said:
As to the question of priority in making the award of attorney's fees, the Sixth Circuit in Webb v. Richardson, 472 F.2d 529, adopted its own rule as follows:
In Robinson v. Gardner, supra, it was stated that:
"To avoid overlapping and to reach a single, composite fee for all legal work, it would seem advisable for the District Court in this instance to defer its computation until the Secretary has made his determination."
However, as above noted, the 1965 amendment was not applicable under the facts of that case.
The District Court of the Northern District of Mississippi, Davis v. Secretary of Health, Education and Welfare of United States, 320 F.Supp. 1293 (1970), held that ...
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...Vega v. Schweiker, 558 F.Supp. 52 (S.D.N. Y.1983); Ocasio v. Schweiker, 540 F.Supp. 1320 (S.D.N.Y.1982); Caldwell v. Califano, 455 F.Supp. 1069 (N.D.Ala.S.D.1978); Spicer v. Califano, 461 F.Supp. 40 (N.D.N.Y. 1978); see also National Labor Relations Board v. Doral Building Services, Inc., 6......
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Dolin v. Harris, Civ. No. K-78-400.
...discussions in Ray v. Gardner, 387 F.2d 162 (4th Cir. 1967); Robinson v. Gardner, 374 F.2d 949 (4th Cir. 1967); and Caldwell v. Califano, 455 F.Supp. 1069 (N.D. Ala.1978). Those cases, considered together with Conner and Vaughn, would appear to establish that counsel for a claimant who is s......
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Miller v. Astrue, CIVIL ACTION NO. 3:09-CV-01979-KOB
...of a claimant before the Secretary [is] granted by 42 U.S.C. s [sic] 406(a) to the Secretary alone." Caldwell v. Califano, 455 F. Supp. 1069, 1070 (N.D. Ala. 1978). Therefore, the court can only consider in its award the services that Plaintiff's counsel lists in document 13-3 and cannot co......