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Lewis v. Astrue

December 17, 2009

KENNETH LEWIS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matters before the Court are the Petition for Writ of Mandamus and for an Order to Show Cause Re: Contempt ("Petition") (Doc. # 32), and the Ex Parte Motion for Filing of Sur-Reply and Objections to Defendant's Sur-Reply ("Motion for Filing of Sur-Reply") (Doc. # 43), both filed by Plaintiff.

I. Background

On March 3, 2009, the Court issued an Order granting Plaintiff's application for fees pursuant to the Equal Access to Justice Act ("EAJA"). (Doc. # 31). The Court stated: "The Court awards Plaintiff the requested fees of $13,586.00.... IT IS HEREBY ORDERED that the ... Application for Fees Pursuant to the Equal Access to Justice Act ... is GRANTED.... The Court awards $13,586.00 in attorney in fees [sic]." (Doc. # 31 at 5).

On August 11, 2009, Plaintiff filed the Petition. (Doc. # 32). Plaintiff attaches a letter received by Plaintiff's counsel on June 4, 2009 from the Office of the General Counsel of the Social Security Administration, which states:

Dear Mr. Kenneth Lewis:

The court in the above-captioned case has ordered the Social Security Administration to pay attorney fees in the amount of $13,586.00 under the Equal Access to Justice Act.... We are making payment to you in accordance with the court's order filed in the above-captioned case on March 4, 2009. Payment will follow shortly by check.... (Doc. # 32-2, Ex. B). Plaintiff contends that Defendant has failed to make the required payment:

Pursuant to this Court's Order of March 3, 2009 granting Plaintiff's Motion for Attorneys Fees, Plaintiff is entitled to have attorney fees paid to her attorney, Mary Mitchell. Defendant owes Plaintiff a non-discretionary duty to have made payment in accordance with this Court's Order of March 3, 2009. Defendant has, without justification, failed to make such payment. (Doc. # 32 at 9). Plaintiff requests that the Court do the following:

1. Assume jurisdiction in this matter;

2. Issue an Order directed to the Defendant to pay the attorney fees to Plaintiff's attorney within 72 hours;

3. Issue an Order to Show Cause compelling Social Security Regional Chief Counsel, Lucille G. Meis, and Assistant Regional Counsel/Special Assistant U.S. Attorney Roya Massoumi to appear and show cause why the Commissioner should not be found in contempt for their failure to effectuate payment of attorney fees to Plaintiff's attorney, Mary Mitchell, pursuant to the Court's Order;

4. Grant Plaintiff ... costs and additional attorney fees in this matter;

5. Grant Plaintiff ... such other and further relief as the Court deems just and proper. (Doc. # 32 at 9-10).

On October 2, 2009, Defendant Michael J. Astrue, Commissioner of the Social Security Administration ("SSA"), filed an opposition to the ...


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