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GARDNER v. MENENDEZ

No. 6761.

373 F.2d 488 (1967)

John W. GARDNER, Secretary of Health, Education and Welfare, Defendant, Appellant, v. Oscar MENENDEZ, Plaintiff, Appellee.

United States Court of Appeals First Circuit.

March 2, 1967.

Attorney(s) appearing for the Case

Morton Hollander, Atty., Dept. of Justice, with whom John W. Douglas, Asst. Atty. Gen., Francisco A. Gil, Jr., U. S. Atty., and William Kanter, Atty., Dept. of Justice, were on brief, for appellant.

Harvey B. Nachman, San Juan, P. R., with whom Nachman & Feldstein, San Juan, P. R., was on brief, for appellee.

Before ALDRICH, Chief Judge, MARIS and McENTEE, Circuit Judges.

ALDRICH, Chief Judge.

The single issue in this case is whether it was appropriate for the district court, as distinguished from the Secretary of Health, Education and Welfare, to determine and award plaintiff's counsel a fee ("out of, and not in addition to * * * the benefits payable") by virtue of section 206(b) (1) of the Social Security Act, 42 U.S.C. § 406(b) (1). No factual questions are involved. Plaintiff filed a claim for disability benefits

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