Eena Saesee v. Frank Bisignano, Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 EENA SAESEE, Case No. 1:21-cv-01562-SKO 11 Plaintiff, ORDER GRANTING PLAINTIFF’S 12 v. COUNSEL’S MOTION FOR ATTORNEY’S FEES PURSUANT TO 13 FRANK BISIGNANO, 42 U.S.C. § 406(b) Commissioner of Social Security,1 14 (Doc. 23) Defendant. / 15 16 I. INTRODUCTION 17 On April 17, 2026, Lawrence Rohlfing (“Counsel”), counsel for Plaintiff Eena Saesee 18 (“Plaintiff”), filed a motion for an award of attorney’s fees pursuant to 42 U.S.C. § 406(b) (“section 19 406(b)”). (Doc. 23.) On April 20, 2026, the Court issued a minute order requiring Plaintiff and the 20 Commissioner to file their responses in opposition or statements of non-opposition to Counsel’s 21 motion, if any, in accordance with the Court’s Local Rules. (Doc. 24.) Plaintiff and the 22 Commissioner were served with a copy of the motion for attorney’s fees. (See Doc. 23 at 21.) 23 On May 6, 2026, the Commissioner filed a response, indicating that he “neither supports nor 24 opposes counsel’s request for attorney fees under 42 U.S.C. § 406(b).” (See Doc. 27 at 1, 3.) 25 Plaintiff did not file any objection to the motion by the deadline, and no reply brief was filed. (See 26

27 1 On May 6, 2025, Frank Bisignano was appointed the Commissioner of the Social Security Administration. See https://www.ssa.gov/news/press/releases/2025/#2025-05-07. He is therefore substituted as the defendant in this action. 28 See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the 1 Docket.) 2 For the reasons set forth below, Counsel’s motion for an award of attorney’s fees is granted 3 in the amount of $42,301.00, subject to an offset of $8,040.00 in total fees already awarded pursuant 4 to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), on September 11, 2019 (awarding 5 $3,600.00, see Saesee v. Comm’r of Soc. Sec., No. 1:18-cv-01417-SKO, Doc. 18) and November 9, 6 2022 (awarding $4,440.00, see Doc. 22). 7 II. BACKGROUND 8 On October 11, 2018, Plaintiff brought an action seeking judicial review of a final 9 administrative decision denying her claim for disability benefits under the Social Security Act. 10 Saesee v. Comm’r of Soc. Sec., No. 1:18-cv-01417-SKO (E.D. Cal.) (“Saesee I”). The parties 11 stipulated to voluntarily remand Saesee I pursuant to sentence four of 42 U.S.C. § 405(g) on July 12 15, 2019, and judgment was entered in favor of Plaintiff and against the Commissioner on July 17, 13 2019. (Id. at Docs. 14, 15, 16.) On September 9, 2019, the parties stipulated to an award of 14 $3,600.00 in attorney fees under EAJA, which was entered on September 11, 2019. (Id. at Docs. 15 17, 18.) 16 Plaintiff brought the present, second action seeking judicial review of the denial of her claim 17 for disability benefits on October 22, 2021 (“Saesee II”). (Doc. 1.) On September 14, 2022, the 18 parties again stipulated to voluntarily remand Saesee II pursuant to sentence four, and judgment was 19 entered in favor of Plaintiff and against the Commissioner on September 15, 2022. (Docs. 17, 18, 20 19.) On November 8, 2022, the parties stipulated to an award of $4,440.00 in attorney fees under 21 EAJA, which was entered on November 9, 2022. (Docs. 21, 22.) 22 On remand, the Commissioner found Plaintiff disabled. (Doc. 23-2.) On March 25, 2026, 23 the Commissioner issued a letter to Plaintiff approving her claim for benefits and awarding her 24 $229,204.00 in back payments, and a total of $98,818.00 in back payments to her children. (See 25 Doc. 23-3 (indicating a withholding of 25 percent of past due benefits in the amount of $57,301.00); 26 Doc. 28.) On April 17, 2026, Counsel filed a motion for attorney’s fees in Saesee II in the amount 27 of $42,301.00 with an offset of $8,040.00 for EAJA fees already awarded in Saesee I and II. (Doc. 28 23.) It is Counsel’s section 406(b) motion for attorney’s fees that is currently pending before the 1 Court. 2 III. DISCUSSION 3 Pursuant to the Social Security Act, attorneys may seek a reasonable fee for cases in which 4 they have successfully represented social security claimants. Section 406(b) provides the following: 5 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and 6 allow as part of its judgment a reasonable fee for such representation, not in excess 7 of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security may . . . 8 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 . . . . 9 10 42 U.S.C. § 406(b)(1)(A) (emphasis added). “In contrast to fees awarded under fee-shifting 11 provisions such as 42 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits 12 awarded; the losing party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 13 (9th Cir. 2009) (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The 14 Commissioner has standing to challenge the award, despite that the section 406(b) attorney’s fee 15 award is not paid by the government. Craig v. Sec’y Dep’t of Health & Human Servs., 864 F.2d 16 324, 328 (4th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 807. The goal of 17 fee awards under section 406(b) is to provide adequate incentive to represent claimants while 18 ensuring that the usually meager disability benefits received are not greatly depleted. Cotter v. 19 Bowen, 879 F.2d 359, 365 (8th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 20 807. 21 The 25% maximum fee is not an automatic entitlement, and courts are required to ensure 22 that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808-09 (Section 406(b) does not displace 23 contingent-fee agreements within the statutory ceiling; instead, section 406(b) instructs courts to 24 review for reasonableness fees yielded by those agreements). “Within the 25 percent boundary . . . 25 the attorney for the successful claimant must show that the fee sought is reasonable for the services 26 rendered.” Id. at 807; see also Crawford, 586 F.3d at 1148 (holding that section 406(b) “does not 27 specify how courts should determine whether a requested fee is reasonable” but “provides only that 28 the fee must not exceed 25% of the past-due benefits awarded”). 1 Generally, “a district court charged with determining a reasonable fee award under 2 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee arrangements,’ . . . ‘looking 3 first to the contingent-fee agreement, then testing it for reasonableness.’” Crawford, 586 F.3d at 4 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). The United States Supreme Court has identified 5 several factors that may be considered in determining whether a fee award under a contingent-fee 6 agreement is unreasonable and therefore subject to reduction by the court: (1) the character of the 7 representation; (2) the results achieved by the representative; (3) whether the attorney engaged in 8 dilatory conduct in order to increase the accrued amount of past-due benefits; (4) whether the 9 benefits are large in comparison to the amount of time counsel spent on the case; and (5) the 10 attorney’s record of hours worked and counsel’s regular hourly billing charge for non-contingent 11 cases. Id. (citing Gisbrecht, 535 U.S. at 807-08). 12 Here, the fee agreement between Plaintiff and Counsel, signed by both parties, provides: 13 The fee for successful prosecution of this matter is 25% of the past due benefits awarded upon reversal of any unfavorable ALJ decision for work before the 14 Social Security Administration. Attorney shall petition for authorization to charge this fee in compliance with the Social Security Act for all time whether 15 exclusively or not committed to such representation. 16 If this matter requires judicial review of any adverse decision of the Social Security Administration, the fee for successful prosecution of this matter is a separate 25% 17 of the past due benefits awarded upon reversal of any unfavorable ALJ decision for work before the court. Attorney shall seek compensation under the 18 Equal Access to Justice Act and such amount shall credit to the client for fees 19 otherwise payable for that particular work. Client shall endorse such documents as are needed to pay Attorney any amounts under the EAJA and assigns such fee 20 awards to Attorney. 21 (Doc. 23-1 at 1 (signed September 20, 2018); id. at 17 (signed September 29, 2021); id. at 29 (signed 22 December 28, 2021).) 23 The Court has considered the character of Counsel’s representation of Plaintiff and the good 24 results achieved by Counsel, which included an award of benefits. Counsel and their paralegals 25 spent 40.65 total hours representing Plaintiff in Saesee I and II, ultimately gaining favorable 26 decisions in that the Commissioner’s decision was reversed and remanded to the agency for 27 reconsideration. (Doc. 23 at 6, 18; Doc. 23-4 (time sheets accounting for 33.45 attorney and 7.2 28 paralegal hours spent representing Plaintiff before this Court).) There is no indication that a 1 reduction of the award is warranted due to any substandard performance by Counsel, as Counsel 2 secured a successful result for Plaintiff. There is also no evidence that Counsel engaged in any 3 dilatory conduct resulting in delay. 4 Although the accepted range in the Fresno Division for attorneys like Counsel with twenty 5 or more years of experience (see Doc. 23-6) is between $325.00 to $400.00 per hour in non- 6 contingency cases, and rates for paralegal work in the Fresno Division range from $75.00 to 7 $150.00, see Webb v. Cnty. of Stanislaus, No. 1:19-cv-01716-DAD-EPG, 2022 WL 446050, at *6 8 (E.D. Cal. Feb. 14, 2022), here the effective hourly rate requested equals $1,040.62 per hour. (See 9 Doc. 23 at 8, 12.) This hourly rate is not excessive when compared to what the Ninth Circuit has 10 approved in cases involving social security contingency fee arrangements. See Crawford, 586 F.3d 11 1142, 1153 (9th Cir. 2009) (explaining that the majority opinion found reasonable effective hourly 12 rates equaling $519, $875, and $902) (J. Clifton, concurring in part and dissenting in part); see also 13 Thomas v. Colvin, No. 1:11-cv-01291-SKO, 2015 WL 1529331, at *2−3 (E.D. Cal. Apr. 3, 2015) 14 (upholding an effective hourly rate of $1,093.22 for 40.8 hours of work); Jamieson v. Astrue, No. 15 1:09CV0490 LJO DLB, 2011 WL 587096, at *2 (E.D. Cal. Feb. 9, 2011) (upholding an effective 16 hourly rate of $1,169.49 for 29.5 hours of work); Palos v. Colvin, No. CV 15-04261−DTB, 2016 17 WL 5110243, at *2 (C.D. Cal. Sept. 20, 2016) (upholding an effective hourly rate of $1,546.39 for 18 9.7 hours of work); Villa v. Astrue, No. CIV-S-06-0846 GGH, 2010 WL 118454, at *1−2 (E.D. Cal. 19 Jan. 7, 2010) (approving section 406(b) fees exceeding $1,000 per hour for 10.4 hours of work, and 20 noting that “[r]educing § 406(b) fees after Crawford is a dicey business”). Further, attorney’s fees 21 in the amount of $42,301.00 do not exceed—and are in fact less than—25% of the past-due benefits 22 awarded and are not excessive in relation to the past-due award. See generally Ortega v. Comm’r 23 of Soc. Sec., No. 1:12-cv-01030-AWI-SAB, 2015 WL 5021646, at *3 (E.D. Cal. Aug. 21, 2015) 24 (granting petition for an award of attorney’s fees pursuant to section 406(b) in the amount of 25 $24,350.00); Thomas, 2015 WL 1529331, at *3 (granting petition for an award of attorney’s fees 26 pursuant to section 406(b) in the amount of $44,603.50); Boyle v. Colvin, No. 1:12-cv-00954-SMS, 27 2013 WL 6712552, at *2 (E.D. Cal. Dec. 19, 2013) (granting petition for an award of attorney’s fees 28 pursuant to section 406(b) in the amount of $20,577.57); Jamieson, 2011 WL 587096, at *2 1 (recommending an award of attorney’s fees pursuant to section 406(b) in the amount of $34,500). 2 In making this determination, the Court recognizes the contingent-fee nature of this case and 3 Counsel’s assumption of risk in agreeing to represent Plaintiff under such terms. “District courts 4 generally have been deferential to the terms of contingency fee contracts in § 406(b) cases.” Hearn 5 v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003) (“Because attorneys like Mr. Sackett 6 contend with a substantial risk of loss in Title II cases, an effective hourly rate of only $450 in 7 successful cases does not provide a basis for this court to lower the fee to avoid a ‘windfall.’”) 8 (quoting Gisbrecht, 535 U.S. at 807). Attorneys who agree to represent claimants pursuant to a 9 contingent fee agreement assume the risk of receiving no compensation for their time and effort if 10 the action does not succeed. Id. Here, Counsel accepted substantial risk of loss in representing 11 Plaintiff, whose application had already been denied at the administrative level. Plaintiff agreed to 12 the contingent fee. (See Doc. 23-1 at 1, 17, 29.) Working efficiently and effectively, Counsel 13 secured stipulated remands in Saesee I and II, and ultimately, the award of substantial benefits to 14 Plaintiff. (See Saesee I, Docs. 14, 15, 16; Saesee II, Docs. 17, 18, 19, 23-2, 23-3, 28.) 15 An award of attorney’s fees pursuant to section 406(b) in the amount of $42,301.00 is, 16 therefore, appropriate. An award of section 406(b) fees, however, must be offset by any prior award 17 of attorney’s fees granted under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. As 18 Plaintiff was previously awarded $8,040.00 in fees pursuant to the EAJA in Saesee I and II, Counsel 19 shall refund this amount to Plaintiff. 20 IV. CONCLUSION AND ORDER 21 For the reasons stated above, the Court concludes that the fees sought by Counsel pursuant 22 to section 406(b) are reasonable. Accordingly, IT IS ORDERED that: 23 1. Counsel’s motion for an award of attorney’s fees pursuant to 42 U.S.C. § 406(b) in 24 the amount of $42,301.00 (Doc. 23) is granted; 25 2. Counsel shall refund to Plaintiff $8,040.00 of the section 406(b) fees awarded as an 26 offset for the EAJA fees previously awarded pursuant to 28 U.S.C. § 2412(d) in Saesee I (Doc. 18) 27 and Saesee II (Doc. 22); and 28 3. Counsel for Plaintiff shall file on the Court’s docket proof of service of this order 1 upon Plaintiff at her current or last known address. 2 IT IS SO ORDERED. 3

4 Dated: May 19, 2026 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 5

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