Roxanne Olivan Rosales v. Andrew Saul

Filing 22

ORDER GRANTING 20 Motion for Attorney Fees Signed by Judge Elizabeth S. Chestney. (wg)

Case 5:20-cv-00543-ESC Document 22 Filed 07/13/23 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ROXANNE OLIVAN ROSALES,
Plaintiff,
vs.
KILOLO KIJAKAZI, ACTING
COMMISSIONER OF SOCIAL
SECURITY;
Defendant.

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SA-20-CV-00543-ESC

ORDER
Before the court in the above-styled cause of action is Plaintiff’s Motion and Brief for
Attorney Fees Pursuant to Social Security Act Section 206(b)(1) [#20].

By his motion,

Plaintiff’s counsel, Howard D. Olinksy, asks the Court to award him $14,560.13 out of
Plaintiff’s past-due benefits award from the Social Security Administration (“SSA”) as
attorney’s fees under Section 206(b)(1) of the Social Security Act. Having considered the
motion and the Commissioner’s response [#21], the Court will grant Mr. Olinksy’s motion.
The record reflects that on August 31, 2021, the Court vacated the Commissioner’s
decision finding Plaintiff not disabled and remanded this case for further administrative
proceedings [#15]. Plaintiff thereafter moved for attorney’s fees under the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412, and this Court granted the motion, awarding Plaintiff
$7,551.99 in attorney’s fees and $17.25 in expenses [#19].

The SSA issued its final

determination on remand on February 20, 2023, finding Plaintiff disabled and granting her total
past due benefits of $82,240.52. (Notice of Award [#20-3].) The SSA withheld 25 percent of
this benefit award, an amount of $20,560.13, in order to pay possible attorney’s fees under
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Section 206(b)(1). Mr. Olinsky asks the Court to deduct from this amount the $6,000 awarded to
Plaintiff’s attorney who represented her in the post-litigation hearing before the SSA and award
him the remaining $14,560.13.
According to Section 206(b)(1),
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 allow as part of its judgment a reasonable fee for such
representation, 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) (emphasis added). In considering a motion for a 406(b) fee award, the
Court must decide whether the requested award is reasonable. Gisbrecht v. Barnhart, 535 U.S.
789, 808 (2002). An award of 25 percent is considered the ceiling for fees, not an amount that is
automatically considered reasonable. Id. at 807. Where the plaintiff and his or her attorney have
entered into a contingency fee agreement, the Court must review for reasonableness the fees
yielded by that agreement and assess whether the fees would result in a windfall for the attorney.
Id. at 808–09. The Fifth Circuit has not prescribed an exhaustive list of factors to consider in
determining whether a fee award is unearned such that it may be considered a windfall. Jeter v.
Astrue, 622 F.3d 371, 381 (5th Cir. 2010). It has noted with approval, however, several factors
considered by lower courts, including “risk of loss in the representation, experience of the
attorney, percentage of the past-due benefits the fee constitutes, value of the case to a claimant,
degree of difficulty, and whether the client consents to the requested fee.” See id. at 381–82.
While not determinative, the existence of a contingency fee agreement indicates that the plaintiff
consented to the agreed upon fee. Id.
The Commissioner filed a response to Plaintiff’s motion [#21], indicating that she takes
no legal position as to the appropriateness or reasonableness of the request for fees, but submits

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that the requested fee does not appear unreasonable. For the purposes of fee determination, the
Commissioner is not a true party in interest; instead, the Commissioner’s role is similar to a
trustee. Id. 374 n.1 (citing Gisbrecht, 535 U.S. at 798 n.6).
Having reviewed Mr. Olinksy’s motion, the supporting documentation provided, and the
submission by the Commissioner, the Court finds the fee request reasonable. The record reflects
that Plaintiff and Mr. Olinsky entered into a contingency fee agreement, which provides that
Plaintiff will pay Mr. Olinsky a fee equal to 25 percent of the past due benefits awarded to
Plaintiff. (Fee Agreement [#20-2], at 2.) Time records attached to Mr. Olinsky’s motion
demonstrate that he and his associate attorneys spent 33.5 hours on this matter, and his paralegals
spent 7.2 hours. (Fee Records [#20-4, #20-5, #20-6].) If the paralegal hours are billed at
$100.00 per hour and deducted, based on the $14,560.13 in requested fees, the effective hourly
attorney rate is $413.14. (Id.) The Court has considered several factors in evaluating the
reasonableness of the requested fees and finds Mr. Olinksy’s requested $14,560.13 to be
reasonable.
Mr. Olinksy is an experienced disability attorney who has provided effective and efficient
representation repeatedly in this Court and has obtained a favorable result for Plaintiff. Mr.
Olinsky’s hourly rate of $413.14 falls well within, if not below, amounts that have been
approved by courts as reasonable under similar circumstances for counsel with commensurate
experience. See, e.g., Aina v. Kijakazi, No. 5:19-CV-153, 2022 WL 2959719, at *3 (S.D. Tex.
June 28, 2022), report and recommendation adopted, No. 5:19-CV-153, 2022 WL 2954336
(S.D. Tex. July 26, 2022) (awarding fees amounting to an hourly rate of $459.78, and finding
award “well within the amount typically approved by courts in the Fifth Circuit.”); Brown v.
Comm’r of Soc. Sec. Admin., No. 3:18-CV-0190-BH, 2022 WL 1156019, at *3 (N.D. Tex. Apr.

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19, 2022) (“Counsel’s resulting hourly rate of $480.769 falls well below amounts that have been
approved by courts as reasonable.”). This hourly rate requested, which takes into consideration
the risk of non-recovery, is reasonable. Finally, the fee request is consistent with the terms of
Plaintiff’s fee agreement with Mr. Olinksy, which indicates her consent to the award.
In summary, the fee award requested by Mr. Olinksy is reasonable, and the Court will
grant the motion. If a plaintiff’s attorney receives fees pursuant to the EAJA and Section
206(b)(1) fees, then the attorney must refund the amount of the smaller fee to the plaintiff to
offset the greater award. See Gisbrecht, 535 U.S. at 796. In his motion, Mr. Olinksy indicates
he will refund the $7,7751.99 EAJA attorney’s fees award to Plaintiff upon receipt of the Section
206(b)(1) award.
IT IS THEREFORE ORDERED that Plaintiff’s Motion and Brief for Attorney Fees
Pursuant to Social Security Act Section 206(b)(1) [#20] is GRANTED.
IT IS FURTHER ORDERED that Howard D. Olinsky be awarded $14,560.13 in
attorney’s fees to be certified for payment out of Plaintiff’s past-due benefits under 42 U.S.C.
40b(b), held by the Commissioner for such purposes.
IT IS FINALLY ORDERED that, upon receipt of payment, Mr. Olinksy shall refund
the $7,751.99 EAJA fee received in this matter to Plaintiff.
SIGNED this 13th day of July, 2023.

ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE

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