Duke v. Gardner
Decision Date | 12 December 1967 |
Docket Number | No. 24682.,24682. |
Citation | 387 F.2d 336 |
Parties | Van R. DUKE, Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
John E. Sacker, Jr., Atlanta, Ga., Ballard & Thigpen, Covington, Ga., for appellant.
Charles L. Goodson, U. S. Atty., Slaton Clemmons, Asst. U. S. Atty., Atlanta, Ga., Kathryn H. Baldwin, Jack H. Weiner, Attys., Dept. of Justice, Washington, D. C., Carl Eardley, Acting Asst. Atty. Gen., for appellee.
Before BROWN, Chief Judge, FAHY* and DYER, Circuit Judges.
Appellant filed a claim with the Department of Health, Education and Welfare for disability benefits under Sections 216(i) and 223 of the Social Security Act, 42 U.S.C.A. §§ 416(i) and 423. The claim was denied at all administrative levels, and the appellant filed suit to obtain judicial review of the administrative decision.
Rather than denying or answering the complaint the secretary moved the court, pursuant to 42 U.S.C.A. § 405(g), to remand the case to him for further action. The district court granted this motion and thereafter the secretary reversed his previous decision and awarded the appellant all the disability benefits he claimed. Appellant was paid his past due benefits amounting to $3,743.20 and his monthly benefits were commenced.
After the decision on remand appellant moved the district court to enter a summary judgment affirming the decision of the secretary and to allow as part of the judgment, an attorney's fee of twenty-five percent of the past due benefits to which appellant was entitled as provided in the contingent fee contract entered into between appellant and his attorney.
The district court denied appellant's motion for summary judgment. In its order the court stated inter alia:
Under 28 U.S.C.A. § 1291, the United States Courts of Appeals have jurisdiction of "all final decisions" of the district courts, except decisions of three judge district courts. It is, however, firmly established that the denial of a motion for summary judgment is not a final decision and may not be appealed. In re Brendan Reilly Associates, Inc., 2 Cir. 1967, 378 F.2d 30, 31; Boeing Co. v. Local 1069, UAW, 3 Cir. 1967, 370 F.2d 969, 970; Upper Mississippi Towing Corp. v. West, 8 Cir. 1964, 338 F.2d 823, 825; Alexander v. Pacific Maritime Ass'n, 9 Cir. 1964, 332 F.2d 266, 268; Waller v. Professional Insurance Corp., 5 Cir. 1963, 316 F.2d 729; Valdosta Livestock Co. v. Williams, 4 Cir. 1963, 316 F.2d 188; John Hancock Mut. Life Ins. Co. v. Kraft, ...
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McGraw v. Barnhart, 02-CV-55-SAJ.
...of award of benefits from the Social Security Administration in which to file his application for § 406(b) fees). In Duke v. Gardner, 387 F.2d 336 (5th Cir.1967), the Fifth Circuit Court of Appeals discussed the action of the district court in denying § 406(b) fees. The district court had p......
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...of Denver, Colo., 317 F.2d 309, 311 (10th Cir. 1963). Chappell & Co. v. Frankel, 367 F.2d 197, 199 (2d Cir. 1966). Duke v. Gardner, 387 F.2d 336, 337 (5th Cir. 1967). Alart Associates, Inc. v. Aptaker, 402 F.2d 779, 780--781 (2d Cir. 1968). Madry v. Sorel, 440 F.2d 1329, 1330 (5th Cir. 1971......
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Davis v. SECRETARY OF HEALTH, EDUCATION & WELF. OF US, EC 6984-K.
...1965). 4 Haley v. Gardner, 259 F.Supp. 30 (D.C. Okla.1966). 5 Duke v. Gardner, 264 F.Supp. 187 (D.C. Ga.1967), appeal dismissed 387 F.2d 336 (5 Cir. 1967). 6 One district court has held that, in spite of the statutory language of § 406(b) (1) limiting fees in district courts to cases where ......
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Hodges-Williams v. Barnhart, 99 C 3465.
...remand judgment is not a judgment on the merits of benefits, it does not justify a judicial allowance of attorney's fees); Duke v. Gardner, 387 F.2d 336 (5th Cir.1967) (denying attorney's fees on court's remand because the Commissioner, not the court, found in favor of benefits for the 3. T......