Tulowiecki v. Astrue

Filing 31

MEMORANDUM ORDER. Signed by Magistrate Judge Roy S. Payne on 11/16/2022. (ch, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
MARK TULOWIECKI,
Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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Case No. 2:12-cv-0731-JRG-RSP

MEMORANDUM ORDER
Currently before the Court is Petitioner’s Motion to Enforce Judgment (Dkt. No. 28). The
motion asks the Court to invalidate a certain regulation found in the Program Operations Manual
System (POMS) of the Social Security Administration. The regulation imposes a registration
requirement on an attorney who wants to be paid a fee directly from funds withheld temporarily
by the Commissioner from the claimant’s past due benefits. Absent such registration, the attorney
must seek payment of the fees from his client once the benefits are paid to the claimant.
The fees currently at issue were found to be owed not under the Equal Access to Justice
Act (which fees are paid by the U.S. in addition to any past due benefits), but rather under 42
U.S.C. §406(b)(1)(A) which provides that a Social Security benefits claimant who receives a
favorable judgment may be allowed “a reasonable fee for such representation, not in excess of 25
percent of the total of the past-due benefits to which the claimant is entitled by reason of such
judgment.”
In this case, the Commissioner initially withheld $40,878.75 from Petitioner’s past-due
benefits, representing 25% of the past due benefits. Petitioner’s counsel sought, and was granted,
fees in the amount of $15,878.75 based on 34 hours of billable time. Dkt. No. 27. Petitioner does
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not refute the Commissioner’s representation that counsel either failed or refused, after written
notice from the Commissioner, to register for direct payment as required by POMS. Accordingly,
the Commissioner returned the entire amount to Petitioner, and directed that counsel obtain his fee
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from his client.
Petitioner’s counsel does not contend that the Commissioner has failed to follow the
regulations. Instead, counsel argues that the regulation is in conflict with the Congressional Act
and thus cannot be enforced by this Court. That argument is simply unpersuasive. The Act
certainly contemplates that the Commissioner will develop procedures to facilitate the
determination and payment of attorney’s fees directed by the courts. Nothing is the Act is
inconsistent with a requirement of registration as a condition precedent to direct payment of fees.
Accordingly, the Motion to Enforce Judgment (Dkt. No. 28) is DENIED.
SIGNED this 3rd day of January, 2012.
SIGNED this 16th day of November, 2022.

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ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE

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