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The Secretary of the United States Department of Health and Human Services (the "Secretary") appeals from an order of the United States District Court for the Eastern District of New York (Korman, J.) remanding plaintiffs' action to the Secretary with specific instructions for calculation of attorney's fees pursuant to 42 U.S.C. § 406 (1982). The Secretary had determined that plaintiffs Pappas and Stehr were entitled to retroactive benefits under Title II of the Social Security Act (the "Act"), 42 U.S.C. §§ 401-433 (1982), and Title XVI of the Act, 42 U.S.C. §§ 1381-1383 (1982). The Secretary then calculated attorney's fees, pursuant to section 406, as a percentage of Title II benefits that remained after offset for Title XVI benefits. In the district court, Pappas and Stehr challenged the Secretary's method for calculating attorney's fees. The district court, agreeing with the plaintiffs that attorney's fees were computed improperly, held that these fees should be calculated prior to any offset of Title II benefits by Title XVI benefits.

On appeal, the Secretary argues that the district court erred in the method it ordered to be used for these calculations. We uphold the method established by the Secretary for computing attorney's fees in cases where benefits under both Titles II and XVI of the Social Security Act are awarded retroactively. We therefore reverse and remand for the entry of judgment in accordance with the Secretary's calculation of attorney's fees.


863 F.2d 227 (1988)

John PAPPAS, Richard Stehr, Individually and on behalf of all others similarly situated, Plaintiffs-Appellees,


Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant-Appellant.

No. 230, Docket 88-6139.

United States Court of Appeals, Second Circuit.

Argued September 28, 1988. Decided December 8, 1988.

New York Law School location: File #640, Box #122