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FREDERICK J. DALEY, LTD. v. SULLIVAN

April 9, 1990

FREDERICK J. DALEY, LTD., Plaintiff,
v.
DR. LOUIS SULLIVAN, Secretary, Health and Human Services, Defendant



The opinion of the court was delivered by: DUFF

 BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 Frederick J. Daley has petitioned this court for a writ of mandamus compelling Dr. Louis Sullivan, the Secretary of Health and Human Services, (the Secretary) to pay Mr. Daley $ 1463.73 in attorney's fees. Mr. Daley has alleged that the Social Security Act, 42 U.S.C. § 406(b)(1), and 20 C.F.R. § 404.1730(b), require Dr. Sullivan to pay the disputed fees. Mr. Daley has also asked this court to issue a declaratory judgment holding that the Secretary's failure to pay the fees violates 42 U.S.C. § 406(b) and 20 C.F.R. § 404.1725.

 The Secretary answered Mr. Daley's complaint, and the parties have briefed the mandamus question, each of them submitting exhibits with their briefs. Neither party, however, has cited a Federal Rule of Civil Procedure, pursuant to which they request the court to render its decision. That presents a problem, which this court resolves by treating the briefs as cross-motions for judgment on the pleadings, see F.R.Civ.P. 12(c). Because Mr. Daley does not have a clear right to the relief he requested, and the Secretary did not violate a clear legal duty, the court enters judgment for the Secretary and denies each of Mr. Daley's requests for relief.

 BACKGROUND

 The underlying facts are not in dispute. On March 28, 1985, an ALJ found that Mr. Daley's client, Amos Stevon, was "disabled" as of May 25, 1984 (In the Case of Amos Stevon, Social Security No. 426-54-1235, March 28, 1985). The ALJ also found that Mr. Stevon was entitled to benefits, pending the SSA's determination of his eligibility. Id. However, since Mr. Stevon believed that his disability began in March, 1983, Mr. Daley filed a timely request for review of the ALJ's decision. Although the ALJ's decision was on appeal, the Secretary began paying Mr. Stevon's benefits. The Secretary withheld 25% of the past due benefits, $ 341.25, to satisfy any future claim for attorney's fees.

 The Appeals Council vacated the ALJ's decision and remanded the case to an ALJ (In the Case of Amos Stevon, Social Security No. 426-54-1235, November 15, 1985). The Appeals Council found that the record contained insufficient evidence concerning whether Mr. Stevon was disabled for twelve months after the "onset date" found by the first ALJ. It therefore remanded the case with directions for the next ALJ to gather evidence about Mr. Stevon's condition after November 20, 1984. Notwithstanding the Appeals Council's decision, the Secretary continued to make monthly benefit payments to Mr. Stevon. The Secretary did not notify Mr. Daley that it was continuing to pay his client. On February 27, 1987, a second ALJ resolved the evidentiary issues in Mr. Stevon's favor, finding that Mr. Stevon's disability began in May, 1983 (In the Case of: Amos Stevon, Social Security No. 426-54-1235, February 27, 1987).

 Soon thereafter, Mr. Daley petitioned the SSA for his attorney's fees, pursuant to 20 C.F.R. §§ 404.1720 and 404.1725. On September 16, 1988, the ALJ authorized a $ 3000 fee to compensate Mr. Daley for his work as Mr. Stevon's attorney. *fn1" The Secretary remitted 25% of the Mr. Stevon's "past due" benefits, or $ 1536.27, to Mr. Daley in October, 1988. The Secretary made his calculation by adding $ 341.25 withheld after the first ALJ judgment, and $ 1195.02 from the past due benefits due after the second judgment. Mr. Stevon has died, and his estate is unable to pay the remainder of Mr. Daley's fee. Thus, $ 1463.73 of the authorized fee of $ 3000 remains unpaid.

 As this court has noted, Mr. Stevon continued to receive benefits even after the Appeals Council vacated the first ALJ decision. He received an initial lump sum payment for the benefits due from May, 1984 through the date of the first ALJ decision, in March, 1985. Thereafter, he received monthly benefit payments. The Secretary did not interrupt the benefit payments after the Appeals Council vacated the ALJ's decision. After the second ALJ decision, the Secretary made another lump-sum payment to Mr. Stevon, to compensate him from the earlier disability onset date, May, 1983 to the date of the first ALJ decision.

 Mr. Daley argues that Secretary unlawfully paid Mr. Stevon after the Appeals Council vacated the first ALJ decision in November, 1985, and before the ALJ's final determination in February, 1987. He maintains that if the Secretary had withheld benefits, as he was required to do, Mr. Stevon would have accrued sufficient past-due benefits to fully compensate Mr. Daley. Finally, Mr. Daley argues that the interim payments were technically past-due benefits and should therefore have been part of the 'pot' from which his attorney's fees were deducted.

 DISCUSSION

 A writ of mandamus is an extraordinary remedy, and is available only:

 
under exceptional circumstances of clear illegality when the performance of official duty calls for a construction of governing law, the [official's] interpretation will not be disturbed by a writ of mandamus unless it is clearly wrong and his official action is arbitrary and capricious.

 Burnett v. Bowen, 830 F.2d 731, 739 (7th Cir. 1987) (citing Americana Healthcare Corp. v. Schweiker, 688 F.2d ...


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