March 22, 1993        [NOT FOR PUBLICATION]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-
