Anthony Bartels appeals from the district court’s 1 order denying his motion to hold the Secretary of Health and Human Services (Secretary) in contempt for failing to pay the attorney fees awarded following a proceeding to reinstate social security benefits. We affirm the district court’s ruling.
Bartels served as counsel to Jerry Russell in the proceeding to terminate Russell’s disability benefits. Following the successful reinstatement of Russell’s benefits, Bartels filed a motion for fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) (1982) (“EAJA”). The district court entered an award for $1,688.66, under the EAJA, which represented only Bartels’ time for legal work performed before the district court. Bartels later moved for a fee award under 42 U.S.C. § 406(b)(1) (1982), but the district court denied the motion, noting that Bartels had already received a fee award under the EAJA. Bartels then applied for a fee award under 42 U.S.C. § 406(a), which allows the Secretary to authorize an award for administrative work performed by an attorney in a social security proceeding. The Secretary authorized an award of $3,000 for Bartels under this section.
The fee award notice sent by the Secretary informed Bartels that Russell, his client, was deceased. The Secretary noted that the money which should have been withheld from Russell’s benefit payments in order to cover a fee award 2 had been inadvertently released to Russell. The Secretary suggested Bartels recover the award from his deceased client’s estate, which Bartels unsuccessfully attempted. Bartels then moved the district court for an order holding the Secretary in contempt for non-payment of fees.
The district court denied Bartels’ motion, refusing to issue the contempt citation. The district court determined it lacked jurisdiction in this matter, since no court order directing payment of the fees existed, and thus, no court order was violated by the Secretary. In addition, even assuming it had jurisdiction, the district court determined no remedy was available. Bartels appeals from this ruling.
The district court’s conclusion that it lacked jurisdiction in this case is correct. Civil contempt is available only where a court order exists and can be enforced.
Finney v. Arkansas Bd. of Corrections,
The district court also concluded that, assuming it had jurisdiction under the facts of this case, no remedy was available. Bartels apparently seeks an order requiring the Secretary to pursue collection of his *172 fees from Russell’s estate. The Secretary’s recoupment powers are limited, however, by 42 U.S.C. § 404(b): “[T]here shall be no * * * recovery by the United States from, any person who is without fault if such * * * recovery would defeat the purpose of this title or would be against equity and good conscience.” Neither party alleges any “fault” attributable to Russell which would allow the Secretary to pursue recoupment. 3
Finally, as the district court noted, even assuming it had jurisdiction in this case, there is no waiver of immunity that allows the Secretary to pay this fee. Since no funds are left for payment to Russell, ordering the Secretary to pay Bartels’ award would require payment out of general social security funds. The United States is not liable for such a payment absent a specific waiver of sovereign immunity.
See Ruckelshaus v. Sierra Club,
We decline to address Bartels’ request that our decision in
Gowen v. Bowen,
Notes
. The Honorable H. Franklin Waters, United States District Judge for the Western District of Arkansas.
. The fee awarded an attorney under section 406 is paid out of any past-due benefits to which the claimant is entitled. See 42 U.S.C. § 406(a), (b); 20 C.F.R. § 404.1720(b)(4) (1988).
. The Secretary's regulations allow withholding twenty-five percent of the claimant’s past-due benefits for payment of a fee award for approximately ninety days after a favorable determination is issued. If no request for a fee award is received, the withheld benefits are paid to the claimant. See 20 C.F.R. § 404.1730(C)(2)(i). Once the withheld benefits are released, collection of the fee, which still must be approved by the Secretary, is between the claimant and the attorney. Id.., at (c)(2)(ii). Bartels applied for a section 406(b) fee in May, 1988, but the record indicates the Secretary "inadvertently” released the withheld benefits in January, 1987. It is unclear from the record when Russell’s benefits were successfully reinstated, and whether the Secretary released the withheld benefits earlier than its regulations provide.