Lopes v. Sullivan
This text of Lopes v. Sullivan (Lopes v. Sullivan) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Bluebook
Lopes v. Sullivan, (1st Cir. 1993).
Opinion
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March 22, 1993 [NOT FOR PUBLICATION]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,
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Torruella and Cyr, Circuit Judges.
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___________________
Richard W. Lubart on brief for appellant.
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A. John Pappalardo, United States Attorney, and William L.
___________________ __________
Parker, Special Assistant United States Attorney, on brief for
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appellee.
__________________
__________________
Per Curiam. Attorney Richard Lubart, having obtained an
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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
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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
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for a Social Security or SSI claimant would be
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precluded from receiving both EAJA and Social
___________________________________________________
Security Act fees. Without this amendment it was
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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,
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may keep the larger fee, but must return the amount
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of the smaller fee to the claimant.
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H. Rep. No. 99-120, at 20, reprinted in 1985 U.S.C.C.A.N.
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132, 148-49 (emphasis added). See, e.g., Trinidad v.
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Secretary of HHS, 935 F.2d 13, 16 (1st Cir. 1991) (per
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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);
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Lopez v. Sullivan, 882 F.2d 1533, 1537-38 (10th Cir. 1989);
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Wells v. Bowen, 855 F.2d 37, 42 (2d Cir. 1988). We find
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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.
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