George v. Bisignano
- Becky Thorson
- 0:19-cv-00145
- U.S. District Court · District of Minnesota
- 7
In George V. v. Frank Bisignano, Commissioner of Social Security, Magistrate Judge Elkins granted in part and denied in part the plaintiff's attorney's request for fees under Social Security law, awarding $22,200.00 instead of the $34,200.47 requested, because the implied hourly rate of $2,238.20 was disproportionately high compared to the time spent on the case.
Social Security claimants' attorneys who handle cases in the District of Minnesota and seek fees under 42 U.S.C. § 406(b), particularly those with contingency fee agreements at the 25% statutory maximum; also relevant to claimants whose past-due benefits are withheld pending fee approval.
What happened
In George V. v. Frank Bisignano, Commissioner of Social Security (Case No. 19-cv-145), the plaintiff won his Social Security disability benefits case and, after being sent back to the agency for further review, was awarded past-due benefits. Social Security withheld 25% of those past-due benefits — $38,498.50 — to potentially pay his attorney. The plaintiff's attorney then asked the court to approve a fee of $34,212.97 (the withheld amount minus a prior attorney fee award under a separate federal fee law called the Equal Access to Justice Act). The Commissioner did not oppose the fee but asked the court to independently determine whether the amount was reasonable.
Federal law (42 U.S.C. § 406(b)) requires a court to act as an independent check on attorney fee agreements in Social Security cases, even when both sides agree, to make sure the fee is reasonable. The court found the representation was successful. However, the attorney's records showed only 14.80 hours of attorney work on the case (plus 10.75 paralegal hours). The court declined to count paralegal time in its fee calculation and found that awarding the full amount requested would translate to an effective hourly rate of $2,238.20 — far above the highest rates previously approved in the District of Minnesota, which have ranged up to about $1,747 per hour.
Magistrate Judge Elkins reduced the fee to a rate of $1,500.00 per hour — noted as still the highest rate of this type approved in the district — and awarded a total of $22,200.00 (14.8 attorney hours multiplied by $1,500). The motion was granted in part and denied in part. The court also noted that because the prior Equal Access to Justice Act fee award had already been applied to pay off the plaintiff's government debt rather than going to the attorney, the attorney was not required to refund that earlier award to the plaintiff.
The detailed version
- George V. v. Frank Bisignano, Commissioner of Social Security, No. 19-cv-145 (SGE)
- Magistrate Judge Shannon G. Elkins
- March 16, 2026
Procedural Background
The case originated in 2019. Magistrate Judge Thorson previously granted summary judgment for the plaintiff on August 11, 2020, remanding the matter to the Social Security Administration (SSA) for further proceedings. On December 16, 2020, Magistrate Judge Thorson awarded $4,285.53 in attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 — a law allowing fee awards against the government when a claimant prevails. That EAJA award was applied to offset delinquent debt owed by the plaintiff rather than being paid to his counsel.
On remand, the plaintiff was awarded past-due disability insurance benefits (DIB). The SSA withheld 25% of past-due benefits ($38,498.50) for potential attorney fee payment, consistent with standard practice under 42 U.S.C. § 406(b).
Plaintiff's counsel filed multiple motions for attorney fees in late 2025 and January 2026. The court addressed only the third and final motion (Dkt. 46, filed January 9, 2026), which sought $34,212.97 and was supported by exhibits but not a memorandum of law. The Commissioner filed a non-opposing response requesting a reasonableness determination.
Legal Framework — 42 U.S.C. § 406(b)
Section 406(b) allows a court to award a 'reasonable fee' to a successful claimant's attorney for work performed before the court, capped at 25% of past-due benefits awarded. Courts are required to independently review contingent fee agreements for reasonableness even when unopposed, per the Supreme Court's decision in Gisbrecht v. Barnhart, 535 U.S. 789 (2002). Factors justifying a reduced fee include: substandard representation, delay caused by counsel that inflated the benefit fund, or a disproportionately large fee relative to time spent.
Fee Calculation Issues
Plaintiff's counsel sought $34,212.97, calculated as the SSA-withheld amount ($38,498.50) minus the prior EAJA award ($4,285.53). However, the motion did not clearly state the total past-due benefits or provide a 25% calculation. The Commissioner verified past-due benefits totaling $153,944.00, making 25% equal to $38,486.00 (a $12.50 discrepancy from the SSA-withheld figure). Using $38,486.00 as the 25% cap and subtracting the EAJA award, the court recalculated the effective fee sought at $34,200.47.
Hours and Hourly Rate Analysis
Counsel's billing exhibit showed 14.80 attorney hours and 10.75 paralegal hours. The court declined to count paralegal time under § 406(b), finding no precedent in the District of Minnesota for including paralegal time in such calculations. Excluding 10.75 paralegal hours (valued at $1,075 based on a $100/hour rate from a prior EAJA filing), the implied hourly attorney rate for the requested fee was approximately $2,238.20 — far exceeding the highest rates previously approved in the district, which ranged from $900 to approximately $1,747 per hour in cited cases.
Court's Reasonableness Determination
The court found no evidence of substandard representation or delay caused by counsel. However, it found the requested fee resulted in benefits being 'large in comparison to the time expended by counsel,' which under Gisbrecht warrants a downward adjustment. The court set an hourly rate of $1,500.00 per attorney hour — described as still the highest approved rate in the district — and awarded $22,200.00 (14.8 hours × $1,500).
EAJA Offset and Refund
Under Gisbrecht, when fees are awarded under both EAJA and § 406(b), the attorney must refund the smaller award to the client. Here, the court declined to order a refund of the EAJA award because those funds had already been applied to pay the plaintiff's delinquent debt — effectively benefiting the plaintiff — rather than being paid to counsel.
Additional Note
The court observed that counsel had not yet sought a fee award for administrative work performed before the SSA under 42 U.S.C. § 406(a), and that the fee agreement did not cap total fees, which the court noted as relevant context (citing Culbertson v. Berryhill, 139 S. Ct. 517 (2019)).
Disposition
Plaintiff's Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Dkt. 46) was GRANTED IN PART and DENIED IN PART. Counsel was awarded $22,200.00 in attorney fees.
Reviewer note from the AI+
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.