391 F2d 918 Miracle v. W Gardner

391 F.2d 918

William T. MIRACLE, Plaintiff-Appellant,
v.
John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 15992.

United States Court of Appeals Sixth Circuit.

January 11, 1968.

Alan S. Rosenthal, Jack H. Weiner, Attys., Dept. of Justice, Washington, D. C., for appellee on motion.

William S. Tribell, Pineville, Ky., for appellant on objection to motion.

Before CECIL and O'SULLIVAN, Circuit Judges, and McALLISTER, Senior Circuit Judge.

OPINION ON MOTION

PER CURIAM.

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1

The above cause coming on to be heard on the petition of the Secretary of Health, Education and Welfare for an order requiring plaintiff-appellant's attorney, Daniel J. Tribell, to show cause why he should not be held in civil contempt, and the said attorney having filed objections and a response thereto, the following appear to be the undisputed facts:

2

On September 16, 1965, this Court entered an order directing that plaintiff-appellant be granted disability insurance benefits under the Social Security Act. Thereafter, on January 24, 1966, 6 Cir., 351 F.2d 361, the above attorney for plaintiff-appellant filed a motion for attorney's fee, asking for the payment to him of one-third of the accumulated back pay which had accrued to appellant, his wife and children.

3

On February 4, 1966, this Court entered an order directing that the said attorney receive an attorney's fee of 25% of the amount of past-due disability benefits owing to plaintiff-appellant up to September 16, 1965, as counsel fees for the prosecution of plaintiff-appellant's disability claim. Pursuant to the foregoing order of this Court, the Social Security Administration, on March 1, 1966, paid Daniel J. Tribell 25% of the plaintiff's accrued benefits, in the amount of $1,248.80.

4

After the payment by the Social Security Administration of the sum of $1,248.80, constituting 25% of the plaintiff's accrued benefits, to Daniel J. Tribell as his attorney fee in the plaintiff-appellant's disability proceedings, pursuant to the order of this Court, the Social Security Administration discovered that plaintiff-appellant had, approximately two months before, paid directly to Daniel J. Tribell the sum of $1,293.00 on January 4, 1966. Thereupon, the Secretary sought to obtain the voluntary restitution from Daniel J. Tribell to plaintiff-appellant of the fee of $1,293.00 received by him from plaintiff-appellant in excess of the fee allowed by the Court.

5

Upon Mr. Tribell's refusal to repay the said amount, the Secretary filed a motion for leave to file a petition for an order directing the said Daniel J. Tribell to return to the plaintiff the attorney's fee charged and received in excess of the sum allowed by this Court; and on June 5, 1967, the motion was granted.

6

On September 1, 1967, the Secretary of Health, Education and Welfare filed the aforementioned petition in this Court for an order requiring the said Daniel J. Tribell to show cause why he should not be held in civil contempt for refusal to refund directly to plaintiff-appellant the amount of $1,293.00 charged in excess of the attorney fee allowed by this Court on February 4, 1966; and the said Daniel J. Tribell thereafter filed the above-mentioned objections and response to the petition of the Secretary of Health, Education and Welfare.

7

Upon consideration of the motion of the Secretary of Health, Education and Welfare and the objections and response thereto by the said Daniel J. Tribell, it is the determination of this Court that the said Daniel J. Tribell repay directly to the Clerk of this Court, the aforementioned sum of $1,293.00 with interest thereon at the rate of 6% per annum from January 4, 1966, to the date of repayment, for the benefit of William T. Miracle; and that such repayment shall be made by the said Daniel J. Tribell to the Clerk of this Court within ten (10) days of the date of the order accompanying this opinion. Hopkins v. Gardner, 374 F.2d 726 (C.C. A. 7).