OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER
V. MARY ALICE GALBREATH

   No. 86-1146

   In the Supreme Court of the United States

   October Term, 1987

   On Writ of Certiorari to the United States Court of Appeals for the
Eighth Circuit

   Brief for the Petitioner

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutes involved
   Questions presented
   Statement
   Summary of argument
   Argument:
      Title XVI of the Social Security Act does not authorize
      federal courts to direct the Secretary to withhold
      attorney's fees from court-ordered past-due SSI benefits
      for direct payment to the claimant's laywer
            A. The language, structure, and legislative history
         of Title XVI show that Congress has not authorized
         withholding of past-due SSI benefits for payment
         as attorney's fees
            B. Neither the 1976 amendment to Title XVI that makes
         SSI cases subject to judicial review to the same extent
         as in Title II nor respondent's notions of sound policy
         authorize the federal courts to order the Secretary to
         withhold past-due SSI benefits to pay attorney's fees
            C. The Secretary's determination that Title XVI does
         not allow a court to order the withholding of
         attorney's fees from past-due benefits is a
         reasonable construction of the statute and therefore
         should be upheld
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-8a) is reported
at 799 F.2d 370.  The opinion of the district court (Pet. App. 9a-10a)
is unreported.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 11a) was entered on
August 14, 1986.  On November 3, 1986, Justice Blackmun extended the
time within which to file a petition for a writ of certiorari to and
including January 11, 1987 (a Sunday).  The petition was filed on
January 12, 1987, and was granted on May 4, 1987 (J.A. 13).  The
jurisdiction of this Court rests on 28 U.S.C. 1254(1).

                           STATUTES INVOLVED

   The pertinent statutory provisions are set forth in Pet. App.
12a-15a.

                          QUESTION PRESENTED

   Title XVI of the Social Security Act, 42 U.S.C. (& Supp. III)
1381-1383, provides supplemental security income (SSI) benefits to
financially needy persons who are aged, blind, or disabled.  The
question presented is whether federal courts may direct the Secretary
of Health and Human Services to withhold attorney's fees from
court-ordered past-due SSI benefits and to pay those fees directly to
the needy person's attorney.

                               STATEMENT

   This case concerns Title XVI of the Social Security Act, 42 U.S.C.
(& Supp. III0 1381-1383, particularly its relationship to Title II of
that Act, 42 U.S.C. (& Supp. III) 401 et seq.  Title II is one of the
earliest federal social security programs.  Originally enacted in
1935, it provides old-age, survivor, and disability benefits for
insured individuals.  Title II benefits do not depend on a showing of
financial need.  See 42 U.S.C. (& Supp. III) 403, 423.  Title XVI is a
relatively new social security program and, unlike Title II, it is a
welfare program.  It provides supplemental security income (SSI)
benefits to persons who are aged, blind, or disabled and who are
financially needy.  See 42 U.S.C. (& Supp. III) 1382(a).  An
individual's Title II benefits, if any, are included in his income for
purposes of determining his financial eligibility for Title XVI
benefits.  See 42 U.S.C. (Supp. III) 1382a(a)(2)(B);  42 U.S.C.
1382(c)(3).  The precise question here is whether 42 U.S.C. 406(b)(1),
a provision of Title II authorizing attorney's fees to be withheld
from court-ordered past-due disability benefits, has any application
in Title XVI, which contains no parallel provision.

   1. In August 1983, after the Secretary had denied her application
for SSI benefits under Title XVI, respondent brought this suit in
federal district court challenging the Secretary's determination (Pet.
App. 2a).  In February 1985, the district court reversed the
Secretary's decision and ordered that SSI benefits, including past-due
benefits, be paid to respondent.  The Secretary accordingly mailed
respondent a check for $7,954, the full amount of her past-due
benefits, in July 1985 (id. at 2a, 9a-10a).

   Respondent's lawyer subsequently moved the district court for an
award of attorney's fees (J.A. 5-12).  On October 15, 1985, the
district court ordered "that an attorney's fee in the amount of
$1,988.50 payable from (respondent's) past due benefits is hereby
allowed to * * * (her) attorney, pursuant to 42 U.S.C. Section
406(b)(1)" (Pet. App. 10a).  Section 406(b)(1) provides that, where a
court orders the payment of disability benefits under Title II, "the
court may determine and allow as part of its judgment a reasonable
(attorney's) fee * * * , not in excess of 25 percent of the total of
the past-due benefits to which the claimant is entitled." That section
further provides that the attorney's fees are to be paid "out of, and
not in addition to, the amount of such past-due benefits." Relying on
that statute, the district court ordered the Secretary to "compute,
certify and pay" out of respondent's past-due Title XVI benefits a fee
to her lawyer in the amount of $1,988.50 -- 25% of the amount to which
she was entitled (Pet. App. 10a).  /1/

   2. The court of appeals affirmed (Pet. App. 1a-8a).  It
acknowledged (id. at 7a-8a) that Title XVI, unlike Title II, nowhere
explicitly authorizes a district court to order that the Secretary
reduce a claimant's past-due SSI benefits in order to provide for the
payment of attorney's fees.  The court further acknowledged that
Congress had expressly determined not to allow the Secretary to
withhold attorney's fees from past-due SSI benefits in administrative
proceedings -- something Title II also permits (see 42 U.S.C. 406(a))
-- because "'withholding of attorney fees from (an) individual's
benefits * * * would be contrary to the purpose of the (Title XVI)
program'" (Pet. App. 4a, quoting H.R. Rep. 92-231, 92d Cong., 1st
Sess. 156 (1971)).  And the court acknowledged (Pet. App. 4a) that
Congress, while incorporating many provisions of Title II into Title
XVI by reference, had failed to incorporate the provisions (42 U.S.C.
406(b)(1)) upon which the district court predicated its decision.

   The court of appeals nevertheless concluded that, "(a)bsent express
statutory prohibition, (a) district court possesses the inherent power
to withhold and certify for payment an attorney's fee from SSI
benefits," stating that such authority "is an integral part of the
court's power of judicial review under (42 U.S.C.) 405(g)" (Pet. App.
7a-8a).  The court noted that Congress in 1976 had amended Title XVI
so as to incorporate Section 405(g) therein;  adopting the reasoning
of the Third Circuit in Reid v. Heckler, 735 F.2d 757, 761-762 (1984),
the court viewed this 1976 amendment as implicitly granting the
district courts authority to withhold attorney's fees in SSI cases.
Pet. App. 6a-7a.  The court stated (Pet. App. 8a) that its holding
"will promote the important policy of assuring adequate legal
representation of SSI claimants." /2/

                          SUMMARY OF ARGUMENT

   Federal courts may not direct the Secretary of Health and Human
Services to make an up-front reduction in a claimant's past-due SSI
benefits in order to provide for the direct payment of an attorney's
fees to the claimant's lawyer.  Title XVI benefits, unlike Title II
benefits, are based on the claimant's financial need.  And whereas
Title II expressly authorizes the Secretary to withhold attorney's
fees from a claimant's past-due benefits, Title XVI includes no such
explicit authority.  Rather, Congress has decided to leave it to the
SSI receipt and his lawyer to arrange for the latter's compensation in
some less burdensome fashion, such as payment in installments over an
extended period of time.

   The legislative history of Title XVI reveals that Congress
deliberately omitted withholding authority from that title.  Congress
considered, yet declined to adopt, a proposal that would have
incorporated Section 406(b), the withholding provision of Title II,
into Title XVI.  Instead, Congress modelled the relevant Title XVI
provision on a much earlier version of Section 406 -- the version that
predated Congress's 1965 amendment of that section to include
withholding authority.  Congress determined that withholding of
past-due benefits in the context of Title XVI administrative
proceedings "would be contrary to the purpose of the program" (H.R.
Rep. 92-231, 92d Cong., 1st Sess. 156 (1971)), presumably because it
could impose hardships on recipients who are by definition below the
basic subsistence level.  The same rationale fully supports what we
submit to be Congress's decision not to allow withholding of
attorney's fees in Title XVI judicial proceedings.

   Respondent concedes that Title XVI, when first enacted in 1972, did
not authorize withholding of past-due benefits for payment of
attorney's fees.  Respondent asserts, rather, that a 1976 amendment to
Title XVI -- an amendment that made agency factual findings subject to
judicial review to the same extent as in Title II -- had the
incidental effect of authorizing withholding of attorney's fees in
Title XVI for the first time.  But the sole effect of the 1976
amendment was to make the Secretary's factual findings in SSI cases
judicially reviewable, whereas such findings had previously been final
and conclusive.  There is no suggestion in either the language or
legislative history of the amendment to support respondent's claim
that it also touched on the Secretary's withholding authority.
Indeed, because the judicial review provision of Title II that was
incorporated into Title XVI by the 1976 amendment (viz., Section
405(g)), is different from the Title II provision that pertains to
withholding authority (viz., Section 406(b)), respondent's claim that
Congress intended by that amendment to do sub silentio what it
specifically declined to do in 1972 -- incorporated Title II's
withholding provision into Title XVI -- is simply untenable.

                               ARGUMENT

 TITLE XVI OF THE SOCIAL SECURITY ACT DOES NOT AUTHORIZE FEDERAL
COURTS TO DIRECT THE SECRETARY TO WITHHOLD ATTORNEY'S FEES FROM
COURT-ORDERED PAST-DUE SSI BENEFITS FOR DIRECT PAYMENT TO THE
CLAIMANT'S LAWYER

   The decision of the court of appeals incorporates into Title XVI by
judicial fiat a provision of Title II that Congress specifically
declined to incorporate by legislative enactment.  Congress considered
and rejected the option of conferring on the federal courts in Title
XVI, as it had conferred upon them in Title II, the authority to
direct withholding of a claimant's past-due benefits for payment as an
attorney's fee.  Congress determined, contrary to the policy arguments
offered by the court of appeals and by respondent, /3/ that such a
reduction of benefits to financially needy persons "would be contrary
to the purpose of the (Title XVI) program" (H.R. Rep. 92-231, 92d
Cong., 1st Sess. 156 (1971)).  The Secretary's construction of the
statute properly defers to this legislative judgment and is consistent
with the language and structure of Title XVI.  The decision of the
court of appeals should therefore be reversed.

 A. The Language, Structure And Legislative History Of Title XVI Show
That Congress Has Not Authorized Withholding Of Past-Due SSI Benefits
For Payment As Attorney's Fees

   1. Title XVI nowhere explicitly authorizes a district court to
order the Secretary to withhold a portion of a claimant's past-due SSI
benefits for payment of an attorney's fee directly to the claimant's
lawyer.  A comparison of the language and structure of Titles II and
XVI, moreover, belies any assertion that Congress implicitly intended
to allow, let alone to require, such withholding by the Secretary in
derogation of a claimant's basic subsistence needs.

   a. Since its enactment in 1935, Title II has generally barred the
assignment to another person of an individual's social security
benefits.  Social Security Act of 1935, ch. 531, Section 207, 49 Stat.
624;  42 U.S.C. (Supp. III) 407.  In 1939, Congress first authorized
the Secretary (then the Social Security Board) to regulate the
practice of attorney's and agents representing claimants in Title II
cases.  Social Security Act Amendments of 1939, ch. 666, Section 201,
53 Stat. 1372.  /4/ In thus authorizing regulation of attorneys
practicing before the agency, however, Congress did not lift the bar
on assignment of benefits so as to authorize the withholding of fees.
Rather, Section 406 as added to Title II in 1939 simply authorized the
Board to regulate the practice of claimants' representatives and
provided that "(t)he Board may, by rule and regulation, prescribe the
maximum fees which may be charged for services performed in connection
with any claim before (it)" (Section 201, 53 Stat. 1372;  42 U.S.C.
(1940 ed.) 406).  Accompanying legislative reports explained the
purpose of the addition:  "While it is not contemplated that the
services of an agent or attorney will be necessary in presenting the
vast majority of claims, the experience of other agencies would
indicate that where such services are performed the fees charged
therefor should be subject to regulation by the Board, and it is so
provided." H.R. Rep. 728, supra, at 44-45;  S. Rep. 734, 76th Cong.,
1st Sess. 53 (1939).  /5/

   It was not until 1965 that Congress first authorized the Secretary
in Title II cases to withhold a portion of a claimant's past-due
benefits for payment as an attorney's fee.  Social Security Act
Amendments of 1965, Pub. L. No. 89-97, Section 332, 79 Stat. 403.
That authorization was accomplished by adding to Section 406 a new
subsection (b).  It empowers a court, when a claimant has prevailed in
judicial proceedings against the Secretary, to allow as part of its
judgment a reasonable fee, "not in excess of 25 percent of the total
of the past-due benefits to which the claimant is entitled by reason
of such judgment." 42 U.S.C. 406(b)(1).  Section 406(b) also provides
that the Secretary may "certify the amount of such fee for payment to
such attorney out of, and not in addition to, the amount of such
past-due benefits" (ibid.).  Congress placed a statutory ceiling on
fees in 1965 because of its concern "that attorneys have upon occasion
charged what appear to be inordinately large fees for representing
claimants in Federal district court actions arising under the social
security program" (S. Rep. 404, 89th Cong., 1st Sess. Pt. I, at 122
(1965)).  Congress included withholding authority "to assure the
payment of the fee allowed by the court" (ibid.).

   In 1967, Congress amended Section 406(a) to provide the Secretary
with similar authority over attorney's fees in Title II administrative
proceedings.  Social Security Amendments of 1967, Pub. L. No. 90-248,
Section 173, 81 Stat. 877.  As amended in 1967, Section 406(a)
requires the Secretary to fix a reasonable attorney's fee whenever he
makes a determination favorable to a claimant who was represented by
an attorney before the agency.  Section 406(a) further authorizes the
Secretary to withhold a portion of a successful claimant's past-due
benefits for payment of a fee directly to his or her lawyer.  42
U.S.C. 406(a);  see H.R. Rep. 1030, 90th Cong., 1st Sess. 55 (1967).
/6/

   b. Title XVI of the Social Security Act, which established the SSI
program, was enacted in substantially its present form in 1972.
Social Security Amendments of 1972, Pub. L. No. 92-603, Sections
301-306, 86 Stat. 1465-1485.  When enacting Title XVI, and when
amending it in 1976, Congress incorporated into it selected provisions
of Title II, including the bar on assignment of individual benefits.
See, e.g., 42 U.S.C. 1383(c)(3) (cross-referring to Section 405(g));
42 U.S.C. (Supp. III) 1383(d)(1) (cross-referring to Section 407 and
to other subsections of Section 405).  On neither occasion, however,
did Congress incorporate into Title XVI the provisions of Title II --
i.e., the fifth and sixth sentences of Section 406(a) and Section
406(b)(1) -- that authorize the withholding of a claimant's past-due
benefits for payment as attorney's fees.  Rather, the only reference
to attorney's fees in Title XVI is found at 42 U.S.C. 1383(d)(2),
which states that "(t)he Secretary may, by rule and regulation,
prescribe the maximum fees which may be charged for services performed
in connection with any claim before the Secretary * * * ." This latter
sentence is taken verbatim from Section 406(a).  Compare 42 U.S.C.
1383(d)(2) (fourth sentence) with 42 U.S.C. 406(a) (fourth sentence).

   In enacting Title XVI, therefore, Congress has transferred to it
one, but only one, of Title II's provisions respecting attorney's
fees.  Thus, while incorporating in Section 1383(d)(2) the portion of
Section 406(a) that authorizes the Secretary to prescribe maximum fees
in connection with administrative proceedings, Congress has omitted
from Section 1383(d)(2) the test of both the 1965 and the 1967
amendments to Section 406 -- set forth in the next two sentences of
Section 406(a) and in Section 406(b)(1) -- which provide for
withholding and payment of attorney's fees in Title II administrative
and judicial proceedings.  As a result, the relevant language of
Section 1383(d)(2) is identical to that of Section 406 as originally
enacted by Congress in 1939 -- a version of the statute that included
no provision for the withholding of attorney's fees.

   2. The legislative history of Title XVI confirms that Congress
acted quite deliberately in thus omitting withholding authority from
Title XVI.  The legislative history reveals that Congress considered
and declined to adopt a version of Title XVI under which that Title
would have incorporated Section 406 in its entirety.  Indeed, the
legislative history shows that Congress, in enacting the present
version of Title XVI in 1972, purposefully modified the text of prior
bills so as to delete the withholding authority contained in Title II.
 And examination of subsequent legislative action shows that Congress
since 1972 has resisted efforts to amend Title XVI to achieve the very
result sought by respondent and ordered by the court of appeals.

   a. Although certain aspects of Title XVI date back many years, the
legislative history of that title, as we now know it, properly begins
in 1969.  The Administration in that year proposed a comprehensive
revision of the social security laws.  At the time, Title XVI provided
federal monies "(f)or the purpose * * * of enabling each State * * *
to furnish financial assistance to needy individuals who are 65 years
of age or over, are blind, or are 18 years of age or over and
permanently and totally disabled" (42 U.S.C. (1964 ed.) 1381).  As
thus constituted, Title XVI largely overlapped with programs
established by three other titles of the Social Security Act:  Title
I, which provided grants to allow states to furnish assistance "to
aged needy individuals";  Title X, which provided grants for similar
state programs to assist the blind;  and Title XIV, which provided
grants for similar state programs to assist the disabled.  /7/

   The Administration proposed in 1969 to repeal Titles I, X and XIV,
and to retain Title XVI as a federally-financed, state-adminsitered
program.  See Social Security and Welfare Proposals:  Hearings Before
the House Comm. on Ways and Means, 91st Cong., 1st Sess. Pt. 1, at
60-63, 87-96 (1969) (hereinafter House Hearings).  The President also
proposed to repeal the Aid to Families with Dependent Children (AFDC)
program, 42 U.S.C. (1964 ed.) 601 et seq., and to establish in its
place a "family assistance plan" to be administered exclusively by the
federal government (House Hearings 49-60, 67-86).  The administrative
provisions of the proposed "family assistance plan" were closely
modelled on those of Title II.  Specifically, the President's proposal
by its terms incorporated all of Section 406 into the new program.
See House Hearings 71 ("The provisions of sections (406) and (407) * *
* shall apply with respect to this part to the same extent as they
apply in the case of title II.")

   In March 1970, Representative Mills introduced H.R. 16311, the
"Family Assistance Act of 1970." 116 Cong. Rec. 6220 (1970).  Like the
President's proposal, H.R. 16311 called for retention of Title XVI as
a federally-financed, state-administered program and sought repeal of
Titles I, X and XIV;  it also advocated replacement of the AFDC
program with a "family assistance plan," to be administered solely by
the federal government.  See H.R. 16311, 91st Cong., 2d Sess. (1970);
116 Cong. Rec. 11879 (1970).  Representative Mills' bill did differ
from the Administration's proposal in one major respect, for it sought
a general increase in welfare benefits.  See 116 Cong. Rec. 11879,
11882 (1970).  But the version of H.R. 16311 that eventually passed
the House followed the President's proposal in that it expressly
incorporated Section 406 in its entirety into the "family assistance
plan." See 116 Cong. Rec. 12106 (1970);  H.R. Rep. 91-904, 91st Cong.,
2d Sess. 58 (1970).

   In the Senate, Senator Ribicoff proposed an amendment to H.R.
16311.  This amendment would have established in Title XVI a national
program of financial assistance to needy individuals who were aged,
blind, and disabled, to be administered, like the proposed "family
assistance plan," by the federal government.  See 116 Cong. REc.
12326-12329, 12340 (1970) (Sen. Ribicoff).  /8/ To convert Title XVI
into a federally-administered program, Senator Ribicoff's proposal
borrowed language from that portion of H.R. 16311 applicable to the
"family assistance plan," including the latter's incorporation of
Section 406.  Hence, under the Ribicoff proposal, Section 406 in its
entirety would have been incorporated from Title II into the new Title
XVI, and the withholding of past-due benefits for payment of
attorney's fees would have been authorized under Title XVI to the same
extent as it is under Title II.  See Senate Amendment No. 590 to H.R.
16311, 91st Cong., 2d Sess. (1970), reprinted in App., infra, 3a ("The
provisions of sections (406) and (407) * * * shall apply with respect
to this title to the same extent as they apply in the case of title
II.").  The Senate Finance Committee, however, never reported out H.R.
16311, and the bill died in the 91st Congress.  /9/

   At the outset of the 92d Congress, Representative Mills again
introduced a bill to create a federally-administered "family
assistance plan." See H.R. 1, 92d Cong., 1st Sess. Section 301 (1971);
 117 Cong. Rec. 170 (1971).  Like H.R. 16311 in the previous Congress,
H.R. 1 also proposed to repeal Titles I, X and XIV and to retain Title
XVI as a federally-financed, state-administered program;  in the
latter respect, the bill rejected Senator Ribicoff's suggestion that
Title XVI be federally-administered.  See H.R. 1, 92d Cong., 1st Sess.
Section 304, at 197-235.  The proposed "family assistance plan" once
again incorporated Section 406 of Title II in its entirety.  See H.R.
1, 92d Cong., 1st Sess. Section 301, at 152 (1971) ("The provisions of
sections (406) and (407) * * * shall apply with respect to this part
to the same extent as they apply in the case of title II.")

   In May 1971, the House Ways and Means Committee reported out a
revised version of H.R. 1 (see H.R. Rep. 92-231, 92d Cong., 1st Sess.
(1971)), which the House passed (see 117 Cong. Rec. 21463 (1971)).
This revised version differed from the bill originally introduced by
Representative Mills in two relevant respects.  First, it proposed to
convert Title XVI (renumbered as Title XX) into a national program to
be administered by the federal government;  like the Ribicoff proposal
in the 91st Congress, the bill borrowed the administrative framework
for this program from the proposed "family assistance plan." See 117
Cong. Rec. 21092 (1971) (Rep. Mills);  compare id. at 21443-21444
(federal program for the needy aged, blind, and disabled) with id. at
21451-21452 (family assistance plan).  Second, the version of H.R. 1
passed by the House did not incorporate Section 406 of Title II into
either the family assistance program or the new federal program for
the needy aged, blind, and disabled.  See 117 Cong. Rec. 21443 (1971)
(family assistance program) ("The provisions of section (407) * * *
shall apply with respect to this part to the same extent as they apply
in the case of title II.");  id. at 21451 (aid to aged, blind, and
disabled) (same).  Instead, the House included identical language in
each program to provide, as Section 406 of Title II had provided
before it was amended in 1965 and 1967 (see page 8, supra), that the
Secretary was simply to regulate the conduct of attorneys practicing
before him and to prescribe maximum fees.  See 117 Cong. Rec. 21443,
21451 (1971).

   In short, no authority to withhold attorney's fees was included in
H.R. 1 as it passed the House.  The House report explained the
omission of withholding authority in the context of administrative
proceedings in identical terms for both programs:  "Your committee
believes that to withhold (attorney's) fees would be contrary to the
purpose of the program." See H.R. Rep. 92-231, supra, at 156 (aged,
blind, and disabled);  id. at 187 (family assistance program).

   When H.R. 1 reached the Senate, the proposed "family assistance
plan," together with the related repeal of the AFDC program, was
deleted from the bill.  The Senate, however, retained that portion of
H.R. 1 which repealed Titles I, X and XIV and converted Title XVI into
a national program under federal administration.  Again following the
House, the Senate declined to incorporate all of Section 406 into the
new Title XVI by reference, choosing instead to write into that Title
only that portion of Section 406(a) which corresponded to its pre-1965
version -- the version that did not include any withholding authority.
 See 118 Cong. Rec. 32474-32475, 32898 (1972) (Sen. Long);  id. at
32905, 33995 (passage of H.R. 1 in Senate);  see also S. Rep. 92-1230,
92d Cong., 2d Sess. 392 (1972) ("(T)here would be no withholding of
attorney fees from (the) individual's benefits.").  /10/ The bill
approved by the Conference Committee, and signed by the President,
followed the Senate version in both these respects.  See Pub. L. No.
92-603, Section 301, 86 Stat. 1476 (now codified at 42 U.S.C. (Supp.
III) 1383(d)(1));  see 118 cong. Rec. 36502, 36804, 36821, 36914,
37202 (1972).

   b. This legislative history reveals two salient facts.  First,
Congress specifically considered, yet declined to enact, a version of
Title XVI that would have incorporated Section 406 in its entirety
from Title II into the SSI program.  Indeed, the very first proposal
considered by Congress to convert Title XVI into a
federally-administered welfare program -- the proposal submitted by
Senator Ribicoff in 1970 -- would have done precisely that.  See
Senate Amendment No. 590, supra ("The provisions of sections (406) and
(407) * * * shall apply with respect to this title to the same extent
as they apply in the case of title II.");  see also 116 Cong. Rec.
12326-12329, 12340 (1970) (Sen. Ribicoff).  If the Ribicoff proposal
had been adopted by Congress and enacted into law, the Secretary's
withholding authority, and the power of federal district courts to
order withholding, would have been identical in Titles II and XVI.
But Congress did not adopt that proposal.

   Second, when Congress in 1972 did pass legislation to convert Title
XVI into a federally-administered welfare program, it deliberately
modified the language of the prior Ribicoff proposal so that Section
406 would not be incorporated.  Compare Senate Amendment No. 590,
supra ("The provisions of sections (406) and (407) * * * shall apply *
* * "), with 42 U.S.C. (Supp. III) 1383(d)(1) ("The provisions of
section 407 * * * shall apply * * * ").  As explained in the House
Report, Congress consciously omitted any withholding authority in the
context of Title XVI administrative proceedings because it concluded
that "to withhold such fees would be contrary to the purpose of the
program." H.R. Rep. 92-231, supra, at 156;  see also S. Rep. 92-1230,
92d Cong., 2d Sess. 392 (1972) ("(T)here would be no withholding of
attorney fees from (the) individual's benefits.").  It is logical to
assume that Congress omitted withholding authority in Title XVI
judicial proceedings for exactly the same reason.

   Congress's policy judgment, moreover, makes perfect sense.  Unlike
Title II benefits, which are based on a person's disability and
insured status, SSI benefits are based on a person's financial need.
Congress appreciated the importance of keeping those benefits intact.
The House report, in a related context, accordingly "emphasize(d) its
strong belief that if the benefits which would be provided under
(Title XVI) are to meet the most basic needs of the poor, the benefits
must be protected from seizure in legal processes against the
beneficiary.  * * * (E)ntitlement to these benefits would not be
transferable or assignable" (H.R. Rep. 92-231, supra, at 156).  /11/

   The absence of attorney-fee withholding authority in Title XVI thus
reflects a considered judgment by Congress.  Congress reasonably
concluded that an up-front reduction in past-due benefits by as much
as 25% would be unacceptable in the SSI context, since it could impose
hardships on recipients who are by definition below the basic
subsistence level.  Congress decided instead to leave it to the SSI
recipient and his lawyer to arrange for the latter's compensation in
some less burdensome fashion, such as payment in installments over an
extended period of time.

   c. Subsequent congressional action also supports the Secretary's
view that Title XVI contains no withholding authority.  In 1981,
Representative Aspin introduced a bill "to amend title XVI of the
Social Security Act * * * to allow the award of attorney fees" in
appeals involving claims for SSI benefits "on the same basis as (is
presently provided) under title II (of such Act") (H.R. 4839, 97th
Cong., 1st Sess., 127 Cong. Rec. 25636 (1981) (App., infra, 10a).
Representative Aspin explained his understanding that "(u)nder the
current law, no provision is made for the award of attorney fees in
(SSI) appeals.  The payment of fees is left as a matter between
attorney and client" (127 Cong. Rec. 25636 (1981)).  Congress's
failure to enact this proposal, like its failure to pass the Ribicoff
proposal in 1970, suggests that the Title XVI withholding authority
hypothesized by the court of appeals does not exist.  /12/

 B. Neither The 1976 Amendment To Title XVI That Makes SSI Cases
Subject To Judicial Review To The Same Extent As In Title II Nor
Respondent's Notions Of Sound Policy Authorize The Federal Courts To
Order The Secretary To Withhold Past-Due SSI Benefits To Pay
Attorney's Fees

   Respondent admits that Title XVI, as enacted in 1972, "does not
make any provision for attorney's fees" (br. in Opp. 7).  Respondent,
however, adopts the approach of the Eighth Circuit in this case (Pet.
App. 4a-5a, 8a) and of the other courts that have ruled against the
Secretary on this question /13/ to argue that courts possess inherent
or implicit authority to order the withholding of past-due SSI
benefits to pay a claimant's attorney.  This argument is based
principally upon Congress's amendment of Title XVI's judicial review
provision in 1976, buttressed by notions of sound public policy.  The
argument is incorrect.

   1. Prior to its amendment in 1976, Title XVI's judicial review
provision, 42 U.S.C. (Supp. II 1972) 1383(c)(3), provided as follows:

      The final determination of the Secretary after a hearing under
      paragraph (1) shall be subject to judicial review as provided in
      Section 405(g) of this title to the same extent as the
      Secretary's final determinations under Section 405 of this
      title;  except that the determination of the Secretary after
      such hearing as to any fact shall be final and conclusive and
      not subject to review by any court.

   In 1976, Congress amended the statute to delete the "except"
clause.  Act of Jan. 2, 1976, Pub. L. No. 94-202, 89 Stat. 1135.  As
the Senate Report accompanying this amendment explained, the effect of
deleting the "except" clause was to make the Secretary's factual
findings in SSI cases subject to judicial review, whereas such
findings had previously been final and conclusive.  For periods
postdating the 1976 amendment, in order words, Section 405(g) applies
identically to the Secretary's disability and SSI determinations, so
that "the same rules of judicial review (apply) to title XVI cases as
apply to title II cases." S. Rep. 94-550, 94th Cong., 1st Sess. 4
(1975).  The House Report further explained that, "(b)y removing this
language from title XVI, findings of fact of the Secretary in SSI
cases, if supported by substantial evidence, shall be conclusive as
are such findings under title II.  * * * (B)oth programs should be
under the 'substantial evidence rule,' but * * * this should not be
interpreted by the courts as a license to vary from strict adherence
to its principles." H.R. Rep. 94-679, 94th Cong., 1st Sess. 3 (1975).

   According to respondent (Br. in Opp. 7) and the Eighth Circuit
(Pet. App. 8a), one effect of this 1976 amendment was to empower
courts for the first time to offset attorney's fees against past-due
SSI benefits, on the theory that "the authority to provide for the
payment of attorney's fees is an integral part of the court's power of
judicial review under section 405(g)." This conclusion seriously
misapprehends the significance of the 1976 amendment.  The sole
purpose and effect of that amendment was to make the Secretary's
factual findings in SSI cases subject to judicial review.  There is
absolutely no suggestion in the legislative history that Congress
intended by this action to modify, sub silentio, the careful and
deliberate manner in which it had addressed the subject of
attorney-fee withholding four years earlier.  As we have explained,
Congress at that time specifically rejected a proposal that would have
incorporated Section 406 into Title XVI, and it stated that the
withholding of attorney's fees in Title XVI cases "would be contrary
to the purpose of the program." H.R. Rep. 92-231, supra, at 156.

   The character of the 1976 amendment, moreover, shows that it cannot
possibly have the effect that respondent ascribes to it.  The
withholding of attorney's fees in Title II cases is authorized by
Section 406(b)(1), not by Section 405(g).  It is simply illogical to
assume that Congress in 1976 meant to incorporate the former section
into Title XVI by amending a reference to the latter.  The 1976
amendment, furthermore, took the form of a deletion from 42 U.S.C.
(Supp. II 1972) 1383(c)(3).  Had Congress wished to incorporate into
Title XVI an attorney-fee provision that it previously lacked, the
deletion of language from Title XVI would be an odd way to effectuate
that intent, particularly since the deleted language had nothing
whatever to do with attorney-fee withholding.  /14/

   2. Respondent (Br. in Opp. 7) and the court of appeals (Pet. App.
3a, 6a) likewise err in relying on Celebrezze v. Sparks, 342 F.2d 286
(5th Cir. 1965), to support the withholding of attorney's fees in
Title XVI cases.  That decision concerned Title II, and it held that
Section 405(g) endowed the courts with inherent authority to "provide
for the payment from the past due (disability) benefits recovered by
the claimant in the litigation of counsel fees for conducting it" (342
F.2d at 288).  The decision in Sparks, however, was rendered four
months before Congress effectively codified its result by adding to
Title II Section 406(b), which explicitly authorizes the withholding
of attorney's fees in Title II cases.  See Social Security Amendments
of 1965, Pub. L. No. 89-97, Section 332, 79 Stat. 403;  page 9, supra.
 As explained above, Congress has never acted to add a similar
provision to Title XVI -- indeed, it has declined several times to do
so -- thereby evidencing its intent, explicit in the 1972 legislative
history, that such a provision "would be contrary to the purpose of
the (Title XVI) program." H.R. Rep. 92-231, supra, at 156.  Thus,
regardless whether the Sparks case was correctly decided in 1965, its
rationale has been superseded by subsequent legislative developments.
/15/

   3. Finally, in expressing support for attorney-fee withholding in
Title XVI cases, both respondent (Br. in Opp. 7-10) and the court of
appeals (Pet. App. 8) mistakenly substitute their own views of sound
public policy for the view that Congress has expressed.  Respondent
asserts (Br. in Opp. 7) that "(t)here is a very important social
policy for adequately insuring payment of attorney's fees in SSI
cases." The court of appeals' decision to incorporate Section
406(b)(1) into Title XVI likewise rests on its belief that Congress
must have intended this result because, in the court's view,
withholding of attorney's fees is equally sound policy in Title XVI as
in Title II.  See Pet. App. 8a;  see also Reid v. Heckler, 735 F.2d at
762 ("The need for competent representation is perhaps even more acute
(in Title XVI cases) than in Title II cases because the claimants in
Title XVI matters are, by definition, in financial straits.").

   Congress, however, reached precisely the opposite policy
determination when it concluded that withholding of attorney's fees
"would be contrary to the purpose of the (Title XVI) program" because
of the hardship that such a reduction in past-due benefits would
impose on the program's needy recipients.  H.R. Rep. 92-231, supra, at
156.  Congress evidently concluded in 1972 that the policy
considerations favoring withholding of attorney's fees --
considerations that prompted Congress in 1965 and 1967 to add such
withholding authority to Title II -- were outweighed in the Title XVI
context by competing policy considerations, particularly those
dictated by the relative financial neediness of Title XVI (as opposed
to Title II) recipients.  Neither the Secretary nor this Court "sit(s)
to pass on policy or the wisdom of the course Congress has set"
(Heckler v. Turner, 470 U.S. 184, 212 (1985)).  The Secretary has
properly deferred to Congress's policy judgment, and the court of
appeals, at the behest of respondent, had no license to arrive at a
different accommodation of the competing interests.  /16/

 C. The Secretary's Determination That Title XVI Does Not Allow A
Court To Order The Withholding Of Attorney's Fees From Past-Due
Benefits Is A Reasonable Construction Of the Statute And Therefore
Should Be Upheld

   Where, as in this case, "the intent of Congress is clear, that is
the end of the matter;  for the court, as well as the agency, must
give effect to teh unambiguously expressed intent of Congress."
Chevron U.S.A. Inc. v. Natural Resource Defense Council, Inc., 467
U.S. 837, 842-843 (1984) (footnote omitted);  see Young v. Community
Nutrition Institute, No. 85-664 (June 17, 1986), slip op. 5-7.  But
even where the intent of Congress is not clear, "a court may not
substitute its own construction of a statutory provision for a
reasonable interpretation by the administrator of an agency." Chevron
U.S.A. Inc., 467 U.S. at 844 (footnote omitted).  That principle, if
no other, would mandate reversal of the court of appeals' judgment in
this case.

   The construction of Title XVI that the Secretary advances here is
of long standing.  /17/ That construction represents the view of the
agency charged with administering the statute, and it is a reasonable
interpretation of Title XVI.  It is entirely consistent, not only with
the language and structure of Title XVI, but also with its legislative
history.  In these circumstances, the Secretary's construction is
entitled to deference and should be upheld.  See Clarke v. Securities
Industry Ass'n, No. 85-971 (Jan. 14, 1987), slip op. 14-15;  Young v.
Community Nutrition Institite, slip op. 5-7;  Connecticut Dep't of
Income Maintenance v. Heckler, 471 U.S. 524 (1985).

                              CONCLUSION

   The decision of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   ALBERT G. LAUBER, JR.

      Deputy Solicitor General

   RICHARD J. LAZARUS

      Assistant to the Solicitor General

   WILLIAM G. KANTER

   JEFFRICA JENKINS LEE

      Attorneys

   JULY 1987

   /1/ Because the Secretary had previously paid respondent the full
amount of her past-due benefits (Pet. App. 2a), and because 42 U.S.C.
406(b)(1) states that an award of attorney's fees must be paid "out
of" past-due benefits, it would be necessary for the Secretary to
recoup $1,988.50 from respondent in order to comply with the district
court's directive.  See 42 U.S.C. (Supp. III) 1383(b) (authorizing HHS
to recoup erroneous overpayments of SSI benefits).  Respondent might
be entitled to a waiver if, for instance, recoupment would "be against
equity or good conscience" (see ibid.).

   /2/ Since this Court granted certiorari, the Seventh Circuit in
Howard v. Bowen, No. 86-2014 (July 1, 1987), has joined the Sixth
Circuit in McCarthy v. Secretary of Health & Human Services, 793 F.2d
741 (1986), and the Fourth Circuit in dictum in Motley v. Heckler, 800
F.2d 1253, 1255 (1986) (per curiam), in rejecting the view of the
Eighth and Third Circuits and in endorsing the Secretary's
construction of Title XVI.

   /3/In a sense, there are two different respondents in this case --
Galbreath, the claimant, and Bartels, her lawyer.  Their interests are
not necessarily coincident, because attorney's fees under Section
406(b) must normally be paid "out of" the claimant's past-due benefits
(see note 1, supra).  For the sake of simplicity, however, we will
follow the practice of the courts below and refer to "respondent" in
the singular;  as so used, the term should be thought primarily to
represent the interests of the lawyer.

   /4/ Congress enacted the 1939 amendments following this Court's
decision upholding the constitutionality of the social security
program (see Helvering v. Davis, 301 U.S. 619, 634-636 (1937)), and
following publication of a 1939 report by the Social Security Board
recommending changes in the program (see Report of the Social Security
Board, H.R. Doc. 110, 76th Cong., 1st Sess. (1939)).  The 1939
amendments extensively revised the 1935 law, extending Title II to
include not only an insurance program for survivor's benefits (Section
201, 53 Stat. 1362;  H.R. Rep. 728, 76th Cong., 1st Sess. 2, 5-18
(1939);  S. Rep. 734, 76th Cong., 1st Sess. 2, 8-20 (1939)).  The
disability program was added to Title II in 1956 (Social Security
Amendments of 1956, ch. 836, Sections 101-103, 70 Stat. 807-824).
Most relevant for present purposes, Congress in 1939 accepted the
Social Security Board's recommendation that the Board regulate the
practice of individuals representing claimants before it.  Report of
the Social Security Board, H.R. Doc. 110, supra, at 12-13;  H.R. Rep.
728, supra, at 19, 20-21.

   /5/ The 1939 reports both referred to a then-existing statute that
authorized the Secretary of the Treasury to regulate the conduct of
attorneys appearing in certain administrative proceedings;  the
statute in question did not explicitly authorize the Treasury
Secretary to regulate the amounts of fees charged.  See H.R. Rep. 728,
supra, at 44-45 (citing 5 U.S.C. (1934 ed.) 261);  S. Rep. 734, supra,
at 53 (same).  The Treasury provision, which was enacted in 1884 (Act
of July 7, 1884, ch. 334, Section 3, 23 Stat. 258-259), appears to
have its roots in language enacted by Congress earlier that same year
to allow "the Secretary of the Interior (to) prescribe rules and
regulations governing the recognition of agents, attorneys, or other
persons representing claimants before his Department * * * " (Act of
July 4, 1884, ch. 181, Section 5, 23 Stat. 101).  The pension
provision was part of broader legislation concerned with regulation of
the practice of attorneys representing claimants before the Pension
Office;  under that legislation, the Pension Office was authorized
both to regulate the amount of fees and to withhold a portion of
past-due pension benefits for payments as an attorney's fee directly
to the pensioner's lawyer.  The latter provision, which was first
enacted in 1870, proved controversial;  it was repealed in 1878, only
to be reinstated in 1884.  See Act of July 4, 1884, ch. 181, Sections
2, 3 and 4, 23 Stat. 99-101;  Act of June 20, 1878, ch. 367, 20 Stat.
243;  Rev. Stat. Sections 4768-4769, 4784-4786 (1878 ed.);  H.R. Rep.
1910, 47th Cong., 2d Sess. 1-3 (1883);  see also Walters v. National
Ass'n of Radiation Survivors, 473 U.S. 305, 321-322 (1985);  id. at
359-360 nn. 1-3 (Stevens, J., dissenting).

   /6/ Under Section 406(a), the Secretary is required to "certify for
payment (out of such past-due benefits) to such attorney an amount
equal to whichever of the following is the smaller:  (A) 25 per centum
of the total amount of such past-due benefits, (B) the amount of the
attorney's fee so fixed, or (C) the amount agreed upon between the
claimant and such attorney as the fee for such attorney's services."

   /7/ Titles I and X had been included in the Act since 1935.  See
Social Security Act of 1935, ch. 531, Section 1, 49 Stat. 620
(providing grants to "enable each State to furnish financial
assistance * * * to aged needy individuals * * * ");  id. Section
1001, at 645 (providing grants to enable "each State to furnish
financial assistance * * * to needy individuals who are blind * * *
").  Title XIV was added in 1950.  Social Security Act Amendments of
1950, ch. 809, Section 351, 64 Stat. 555 (establishing a
federally-financed, state-administered program "(f)or the purpose of
enabling each state to furnish financial assistance * * * to needy
individuals eighteen years of age or older who are permanently and
totally disabled").  Title XVI was added in 1963, but as then enacted
it simply offered the States the option of consolidating the various
programs previously covered by Titles, I, X and XIV.  See Public
Welfare Amendments of 1962, Pub. L. No. 87-543, Section 141, 76 Stat.
197-205.  Thus, the 1962 law retained those earlier titles, but
ensured against double-dipping by including in Title XVI a proviso
that no aid would be provided thereunder to any individual with
respect to any period during which he was receiving assistance under a
state program funded by Title I, X or XIV.  See Pub. L. No. 87-543,
Section 141, 76 Stat. 198.  It was this version of Title XVI that was
before Congress in 1969.

   /8/ The full text of Senator Ribicoff's proposed amendment (Senate
Amendment No. 590) is not reproduced in the Congressional Record, but
it has been retained by the Library of Congress;  the Library
catalogues such proposed amendments by Congress and bill number.
Because this and certain other amendments to which we will refer are
not otherwise readily available, we have reproduced them in an
appendix to this brief.  The relevant text of Senator Ribicoff's
proposed amendment is set forth at App., infra, 3a.

   /9/ During the same session of the 91st Congress, the House had
also passed another social security measure, H.R. 17550, 91st Cong.,
2d Sess. (1970), which proposed a general increase in social security
benefits.  See 116 Cong. Rec. 16588 (1970);  H.R. Rep. 91-904, 91st
Cong., 2d Sess. (1970).  In the Senate, that bill became the focus of
controversy when several Senators, hoping to enhance the prospects for
enactment of the "family assistance plan," attempted unsuccessfully to
amend H.R. 17550 to include such provisions.  See, e.g., 116 Cong.
Rec. 42405-42410, 42459, 43625-43646 (1970).  Notably, an amendment to
that effect proposed jointly by Senators Ribicoff and Bennett would
not have incorporated Section 406 in its entirety into the family
assistance plan;  rather, certain portions of Section 406 would have
been incorporated, but those portions authorizing withholding of
attorney's fees would have been deleted.  See 116 Cong. Rec. 42410
(1970) (Amendment No. 1169) (App., infra, 7a) (incorporating into the
family assistance plan the provisions of Section 406(a) "other than
the penultimate sentence thereof");  see also Amendment No. 1097 to
H.R. 17550, 91st Cong., 2d Sess. (1970), reprinted in App., infra, 5a
(same).  Hence, under the Ribicoff-Bennett amendment to H.R. 17550,
there would have been no withholding of attorney's fees.  Although the
Senate eventually passed H.R. 17750 with unrelated amendments, the
Senate version did not include a family assistance plan and the two
chambers could not reconcile their differences before the close of the
91st Congress.  See 116 Cong. Rec. 43866, 44106, 44135, 44478-44479
(1970);  id. at 44567-44578 (1971).

   /10/ While the Senate rejected varius proposals to restore the
"family assistance program" to the Senate bill (see 118 Cong. Rec.
33075, 33095, 33110-33113, 33429 (1972)), it is significant that those
proposed amendments, like the bill ultimately adopted, took care not
to include any authority to withhold attorney's fees from past-due
benefits.  See Senate Amendment No. 1614 to H.R. 1, 92d Cong., 2d
Sess. 62 (1972), reprinted in App., infra, 9a (proposing to
incorporate the provisions of Sections 407 and 406(a) "other than the
fifth and sixth sentences thereof");  Senate Amendment No. 1668 to
H.R. 1, 118 Cong. Rec. 33082 (1972) (same).

   /11/ Congressional concern with the impact off withholding on
welfare recipients is likewise evident in legislators' repeated
efforts to omit withholding authority in several versions of proposed
family assistance legislation.  See notes 9, 10, and page 16, supra.

   /12/ This Court "take(s) great care, of course, before relying on
the understandings of Members of a subsequent Congress as to the
actions of an earlier one" (Heckler v. Turner, 470 U.S. 184, 209
(1985)).  It has frequently been observed, however, that "a refusal by
Congress to overrule an agency's construction of legislation is at
least some evidence of the reasonableness of that construction,
particularly where the administrative construction has been brought to
Congress's attention through legislation specifcially designed to
supplant it." United States v. Riverside Bayview Homes, Inc., No.
84-701 (Dec. 4, 1980), slip op. 15.  We call to the Court's attention
in this regard that a statement in a 1985 House report concerning
extension of the Equal Access to Justice Act (EAJA), 28 U.S.C.
2412(d), arguably cuts in the opposite direction from the unsuccessful
Aspin amendment discussed in the text.  See H.R. Rep. 99-120, 99th
Cong., 1st Sess. 19-20 (1985) (mistakenly assuming, in connection with
EAJA amendments, that attorney's fees could be withheld from SSI
benefits under Title XVI).  That statement, however, was no doubt made
in reliance on the Third Circuit's decision in Reid v. Heckler, 735
F.2d 757 (1984), which at the time was the only appellate decision
that had addressed the question presented here.  Of these two
subsequent legislative episodes, we think that the unsuccessful Aspin
amendment is more relevant.  But the conjunction of the two does point
up the pitfalls of attempting to rely on this sort of legislative
evidence.

   /13/ See, e.g., Reid v. Heckler, supra;  Adams v. Secretary of
Health & Human Services, 596 F. Supp. 449, 453 (N.D.N.Y. 1984);  see
also Dolin v. Harris, 501 F. Supp. 97, 98 (D. Md. 1980).

   /14/ Principles of sovereign immunity also suggest that
respondent's reliance on Section 405(g) is misplaced.  Section 405(g)
is a waiver of sovereign immunity and thus must be strictly construed;
 it may not be interpreted "in a manner that would 'extend the wavier
beyond that which Congress intended.'" Block v. North Dakota, 461 U.S.
273, 287 (1983) (quoting United States v. Kubrick, 444 U.S. 111, 118
(1979)).  Absent a waiver, it would violate sovereign immunity for a
court to order the Secretary to direct the payment to a claimant's
lawyer of a portion of his SSI benefits as attorney's fees.  See
generally Franchise Tax Board v. United States Postal Service, 467
U.S. 512, 516-517 (1984);  Buchanan v. Alexander, 45 U.S. (4 How.) 20
(1846);  see also Howard v. Bowen, No. 86-2014 (7th Cir. July 1,
1987), slip op. 5-6 n.1.

   /15/ Both the motion for an attorney's fee filed in this case (J.A.
5-12) and the district court's order directing the Secretary to pay
fees out of respondent's past-due SSI benefits (Pet. App. 10a)
undercut respondent's claim that "inherent judicial power" provides a
source for Title XVI withholding authority.  The motion for fees filed
by respondent's lawyer attached an application for fees under Section
406 (J.A. 6), and the district court's order explicitly relied on
Section 406(b)(1).  See Pet. App. 10a ("Therefore, IT IS ORDERED that
an attorney's fee * * * payable from the plaintiff's past due benefits
is hereby allowed to * * * plaintiff's attorney, pursuant to 42 U.S.C.
Section 406(b)(1).").  Thus, both respondent and the district court
relied, not upon any inherent judicial power to withhold fees, but on
a supposed statutory authority, derived from the implied incorporation
by reference of Section 406(b) into Title XVI.

   /16/ As recently noted by the Seventh Circuit in Howard v. Bowen,
No. 86-2014 (July 1, 1987), slip op. 7 (footnote omitted),
respondent's "policy argument is undercut by the fact that Congress,
when it reenacted the Equal Access to Justice Act (EAJA) in 1985, made
clear that under the EAJA attorneys could collect fee awards from the
federal government in SSI cases." See Pub. L. No. 99-80, Section 3, 99
Stat. 186 (codified at 28 U.S.C. 2412(d) note);  H.R. Rep. 99-120,
99th Cong., 1st Sess. 20 (1985).  Respondent's policy argument also
appears to assume (Br. in Opp. 8) that, absent incorporation into
Title XVI of Section 406(b)(1) -- together with its 25% cap on
awardable fees -- courts would be powerless to protect SSI recipients
from inordinately large attorney-fee awards.  Both the bench and the
bar, however, would have at their disposal the same means to protect
people from unscrupulous lawyers in SSI cases that they have in the
generality of cases.  In addition, Congress's overriding concern wiht
the adverse impact of withholding on welfare recipients is of course
not similarly implicated by a court's prescribing a maximum attorney's
fee for judicial proceedings.  In any event, this case does not
present a question as to the appropriate maximum fee in Title XVI
cases and there is accordingly no reason for the Court to address that
issue here.

   /17/ Respondent (Br. in Opp. 9) mistakenly infers from a recent
notice of proposed rulemaking (52 Fed. Reg. 8309-8311 (1987)) that the
Secretary's interpretation of Title XVI is of recent vintage.  But
that notice, in stating that "there is no provision in Title XVI for
paying an attorney's fee from past-due benefits," and in proposing to
revise certain regulations to state that fact more clearly, simply
reflects a more explicit expression of the Secretary's longstanding
view, as enunciated both in litigation and in prior regulations.  See,
e.g., 39 Fed. Reg. 36003 (1974) ("(T)here is no provision * * * for
the direct payment by the Social Security Adminsitration of fees to
attorneys out of the past-due benefits of (SSI) claimants.");  20
C.F.R. 416.1520(d)(3) (stating that the Secretary in Title XVI
administrative proceedings "assume(s) no responsibility for the
payment of a fee based on a representative's services").

   Appendix