-
USCA1 Opinion
March 22, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 92-1734
FORTUNATO LOPES,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
___________________
___________________
Before
Breyer, Chief Judge,
___________
Torruella and Cyr, Circuit Judges.
______________
___________________
Richard W. Lubart on brief for appellant.
_________________
A. John Pappalardo, United States Attorney, and William L.
___________________ __________
Parker, Special Assistant United States Attorney, on brief for
______
appellee.
__________________
__________________
Per Curiam. Attorney Richard Lubart, having obtained an
__________
award of Social Security benefits for his client (the
plaintiff here), challenges an award of attorney's fees under
206(b) of the Social Security Act, 42 U.S.C. 406(b). The
district court ordered that the entire 206(b) award of
$4,353.25 be remitted by Lubart to his client, given the fact
that a larger fees award had previously been granted to
Lubart under the Equal Access to Justice Act (EAJA), 28
U.S.C. 2412(d). See, e.g., Pub. L. No. 99-80, 3, 99
___ ____
Stat. 186, amending Pub. L. No. 96-481, 206 (codified as
________
note to 28 U.S.C. 2412) ("where the claimant's attorney
receives fees for the same work under both [ 206(b) and
EAJA], the claimant's attorney [shall] refund[] to the
claimant the amount of the smaller fee").1 Lubart now
argues that he should be permitted to retain $304.43 of this
award for himself--an amount corresponding to 2.5 hours
which, he states, were not included in the earlier EAJA
award. This argument fails for several reasons.
Lubart misconceives the nature of the EAJA offset
provision. As would appear plain from the statutory language
____________________
1. As we explained in Trinidad v. Secretary of HHS, 935 F.2d
________ ________________
13, 16 (1st Cir. 1991) (per curiam): "An award of fees under
[ 206(b)] is deducted from the claimant's disability
benefits, whereas an EAJA award is paid separately by the
government." It is for this reason that an attorney may
request fees under both provisions; "the EAJA compensation
... serves as a reimbursement to the claimant for fees paid
out of the disability award." Id.
___
-2-
quoted above, this mechanism requires simply that the smaller
of the two fees awards be remitted to the client. The House
Report accompanying the 1985 enactment made the point even
more clearly:
[T]he EAJA award should be used as a set off to
reduce the payment which the claimant would
otherwise owe the attorney. Thus, ... an attorney
___________
for a Social Security or SSI claimant would be
___________________________________________________
precluded from receiving both EAJA and Social
___________________________________________________
Security Act fees. Without this amendment it was
___________________
argued, "double dipping" was possible. Such double
payments are inappropriate and deprive[] the
plaintiff of the benefits intended by EAJA....
[T]he attorney [is permitted] to seek recovery
under both authorizations. The attorney, however,
______________________
may keep the larger fee, but must return the amount
___________________________________________________
of the smaller fee to the claimant.
___________________________________
H. Rep. No. 99-120, at 20, reprinted in 1985 U.S.C.C.A.N.
____________
132, 148-49 (emphasis added). See, e.g., Trinidad v.
___ ____ ________
Secretary of HHS, 935 F.2d 13, 16 (1st Cir. 1991) (per
_________________
curiam) ("double recovery is prevented in that the attorney
must refund the amount of the smaller fee to the claimant");
Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991);
_______ ________
Lopez v. Sullivan, 882 F.2d 1533, 1537-38 (10th Cir. 1989);
_____ ________
Wells v. Bowen, 855 F.2d 37, 42 (2d Cir. 1988). We find
_____ _____
nothing in the statutory language or history or in the case
law to suggest that a court is required to take the
additional steps proposed by Lubart--i.e., to parse the EAJA
and 206(b) applications on an hour-by-hour basis and remit
to the client only that portion of the smaller fee which is
encompassed by the larger.
-3-
Moreover, even if such an undertaking might be
appropriate in other contexts, it plainly was unwarranted
here. Of the 2.5 hours in question, 1.5 were devoted to
preparation of the 206(b) application. Time spent on
preparing and litigating a 206(b) application is not
compensable. See, e.g., Craig v. Secretary of HHS, 864 F.2d
___ ____ _____ ________________
324, 328 (4th Cir. 1989); Coup v. Heckler, 834 F.2d 313, 325
____ _______
(3d Cir. 1987). The government objected to the application
on this ground (without rebuttal by Lubart), and it can be
fairly assumed that such time was not included in the
district court award.2 The remaining hour was devoted to
settlement of the earlier EAJA application. In contrast to
206(b), such time is compensable under EAJA. See, e.g.,
___ ____
Commissioner of INS v. Jean, 496 U.S. 154 (1990); Trinidad,
___________________ ____ ________
935 F.2d at 17. Given that Lubart and the government reached
a settlement as to the appropriate EAJA award (which afforded
Lubart 63 percent of his initial request), it cannot be said
with certainty that this time was not encompassed therein.
But even if not, it could have been. The fact that Lubart
chose not to include it in the EAJA request provides no
____________________
2. As requested by Lubart, the district court simply awarded
a flat sum (equivalent to 25 percent of claimant's past-due
benefits, see 206(b), less the amount awarded therefrom
___
under 206(a) for counsel's work before the agency). This
circumstance made it unnecessary to specify the number of
hours or the hourly rate.
-4-
warrant for reducing the amount of reimbursement to his
client.
Finally, we note that Lubart failed to raise this
specific argument before the district court. In two separate
submissions, he advanced two separate theories for
withholding a portion of the remittance from his client. The
theory he now proffers, however, was not one of them. See,
___
e.g., Mariani v. Doctors Associates, Inc., No. 92-1843, slip
____ _______ _________________________
op. at 7 n.4 (1st Cir. Jan. 11, 1993) ("We have repeatedly
warned that we will not entertain arguments made for the
first time on appeal.")
Affirmed.
_________
-5-
Document Info
Docket Number： 92-1734
Filed Date： 3/25/1993
Precedential Status： Precedential
Modified Date： 9/21/2015