Duke v. Gardner , 264 F. Supp. 187 ( 1967 )

MORGAN, Chief Judge.

' The attorney for the plaintiff in the above case has filed a motion for summary judgment and has applied to the Court for allowance of attorney’s fees.

The instant case was brought in this Court pursuant to Title 42, U.S.C.A. § 405(g) and Title 42, U.S.C.A. 406(b) (1) for review of a decision of the Secretary of the Department of Health, Education and Welfare. Upon the motion of the Secretary, the case was remanded to the Secretary for further consideration.

Upon remand, an award was made in the plaintiff’s favor. Thus, no judgment was made by the Court, and therefore Title 42, U.S.C.A. § 406(b) (1) regarding attorney’s fees in cases where court action results in a favorable decision for the claimant is not applicable.

The proper form of relief for the plaintiff’s attorney is through application to the Secretary for attorney’s fees. Until such remedy is sought, the Court will not rule on the matter. See Haley v. Gardner, 259 F.Supp. 30 (D.C., 1966).

Thus, the plaintiff’s motion is denied.

It is so ordered.