1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

ROXANNE OLIVAN ROSALES,

Plaintiff,

vs.

KILOLO KIJAKAZI, ACTING 

COMMISSIONER OF SOCIAL 

SECURITY;

Defendant.

§

§

§

§

§

§

§

§

§

 Case No. SA-20-CV-00543-ESC

ORDER

This order concerns Plaintiff’s Motion for Attorney’s Fees Pursuant to the Equal Access 

to Justice Act [#16]. Plaintiff has also filed a Memorandum in support of the motion [#17]. In 

her motion, Plaintiff asks the Court to award attorney’s fees pursuant to the Equal Access to 

Justice Act (“EAJA”), 28 U.S.C. § 2412(a), as the “prevailing party” in the above-styled cause of 

action. The EAJA provides a mandatory attorney’s fee award for a prevailing party that meets 

certain financial eligibility requirements. Baker v. Bowen, 839 F.2d 1075, 1079–80 (5th Cir. 

1988). Once the plaintiff establishes these facts, the government must pay attorney’s fees unless 

it is able to prove that its position was substantially justified, or special circumstances make an 

award unjust. Id.

The record reflects that on December 1, 2021, the Court ordered that the Commissioner’s

decision that the Plaintiff is not disabled be vacated and remanded [#15]. The Fifth Circuit has 

held that a party who obtains a remand in a social security appeal pursuant to the fourth sentence 

of § 405(g) qualifies as a prevailing party for purposes of fees under the EAJA. Breaux v. 

U.S.D.H.H.S., 20 F.3d 1324, 1324 (5th Cir. 1994) (per curiam). 

Case 5:20-cv-00543-ESC Document 19 Filed 12/02/21 Page 1 of 2
2

Plaintiff has requested fees in the amount of $7,551.99 and expenses in the amount of 

$17.25. In support of this request, Plaintiff’s counsel, Howard Olinsky, has itemized the hours 

he, his associates, and his paralegal spent representing Plaintiff. In total, Plaintiff’s attorneys

have spent a total of 33.5 hours on this case at the 2020 EAJA rate of $203.94 per hour and the 

paralegal spent a total 7.2 hours at a rate of $100.00 per hour. The Commissioner has filed a 

response [#18], which indicates he is not opposed to Plaintiff’s fee request. 

Having reviewed the motion and the record in this case, and in light of the lack of 

opposition on the part of the Commissioner, the Court finds that Plaintiff is entitled to an award 

of attorney’s fees under the EAJA as the prevailing party in this case, and the Court will grant 

Plaintiff’s motion.

IT IS THEREFORE ORDERED that Plaintiff’s Motion for Attorney’s Fees Pursuant 

to the Equal Access to Justice Act [#16] is GRANTED.

IT IS FURTHER ORDERED that Plaintiff is awarded $7,569.24 in attorney’s fees and 

expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). If the U.S. 

Department of the Treasury determines that Plaintiff’s EAJA fees, expenses, and costs are not 

subject to total offset allowed under the Department of the Treasury’s Offset Program (TOPS), 

then the check for EAJA fees, expenses, and costs shall be made payable to Plaintiff and mailed 

to Plaintiff’s attorney, Howard D. Olinsky, 250 South Clinton Street, Suite 210, Syracuse, NY 

13202. 

SIGNED this 2nd day of December, 2021.

ELIZABETH S. ("BETSY") CHESTNEY

UNITED STATES MAGISTRATE JUDGE

Case 5:20-cv-00543-ESC Document 19 Filed 12/02/21 Page 2 of 2