
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          March 22, 1993        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
