Oggs v. Bisignano

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
LENNI O.,
Plaintiff,
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v. EP-25-CV-00085-DB-RFC
FRANK BISIGNANO, Commissioner of
the Social Security Administration,
Defendant.
REPORT AND RECOMMENDATION
On this day, the Court considered Plaintiff Lenni O.’s “Unopposed Motion for Award of
Attorney Fees Pursuant to the Equal Access to Justice Act 28 U.S.C. § 2412(d)” [hereinafter
“Mot.”], ECF No. 15. In his Motion, Plaintiff seeks an award of fees and expenses under the Equal
Access to Justice Act (“EAJA”), made payable to Plaintiff’s counsel, KONOSKI & PARTNERS,
P.C. Id. For the following reasons, the Court RECOMMENDS Plaintiff’s Motion be
GRANTED in part and DENIED in part.
I. BACKGROUND
The calculations offered by Plaintiff’s counsel indicate that her firm is owed $14,425.12 in
hourly costs and fees, covering 52.0 hours worked by his attorney at a rate of $254.81 per hour,
7.7 hours worked by paralegals at an hourly rate of $100.00, and $405.00 for Plaintiff’s court filing
fee. Mot. 3. Pursuant to a compromise between the parties, Plaintiff has agreed to reduce his
EAJA request to $13,405.00 in costs and fees, “subject to any administrative offset due to
Plaintiff's outstanding federal debt, if any exists.” Id. at 3–4, 15. The Commissioner does not
oppose Plaintiff’s request. Id. at 4; Mot. Attach. 1, Certificate of Conferral, ECF No. 15-1.
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II. DISCUSSION
1. The Court recommends granting Plaintiff’s request that he be awarded $13,405.00 in
legal fees and expenses.
Under the EAJA, a plaintiff who prevails in a civil action against the United States is
entitled to reasonable legal fees and costs. See 28 U.S.C. § 2412(d)(1)(A); § 2412(d)(2)(A).
a. Plaintiff is entitled to an award of reasonable legal fees and expenses.
A party is eligible to receive reasonable fees and expenses where (1) “the claimant is a
‘prevailing party,’” Davidson v. Veneman, 317 F.3d 503, 506 (5th Cir. 2003) (quoting Sims v.
Apfel, 238 F.3d 597, 599–600 (5th Cir. 2001); (2) the request is made within thirty days of the
judgment becoming “not appealable,” Shalala v. Schaefer, 509 U.S. 292, 302 (1993); and (3) the
government’s position was neither “substantially justified” nor were there “special circumstances
mak[ing] the award unjust,” § 2412(d)(1)(A).
First, “a plaintiff is a ‘prevailing party’ under the EAJA ‘if [he] succeed[s] on any
significant issue in litigation which achieves some of the benefit [he] sought in bringing suit.’”
Davidson, 317 F.3d at 506 (quoting Sims, 238 F.3d at 599–600). The Court found in favor of
Plaintiff on a significant issue when it reversed and remanded the Commissioner of the Social
Security Administration’s decision to deny Plaintiff disability insurance benefits. See Order
Adopting R. & R., ECF No. 13. Accordingly, Plaintiff is a prevailing party.
Next, “Rule 4(a) of the Federal Rules of Appellate Procedure establishes that, in a civil
case to which a federal officer is a party, the time for appeal does not end until 60 days after “entry
of judgment.” Schaefer, 509 U.S. at 302. The Court remanded the Commissioner’s decision on
October 31, 2025, and entered a final judgment on the case on November 3, 2025. See Order
Adopting R. & R; Final Judgment, ECF No. 14. Thus, Plaintiff’s Motion, filed on November 25,
2025, falls well within the allotted time frame.
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Finally, “[t]he burden of proving substantial justification falls to the Government”
Davidson, 317 F.3d at 506 (citing Herron v. Bowen, 788 F.2d 1127, 1130 (5th Cir. 1986)), as does
“the burden of demonstrating the existence of special circumstances that would render an award
unjust,” Russell v. Nat'l Mediation Bd., 775 F.2d 1284, 1290 (5th Cir. 1985) (citing Knights of the
Ku Klux Klan v. East Baton Rouge Par. School Board, 679 F.2d 64, 68 (5th Cir. 1982)). Because
Defendant presents no argument demonstrating that either condition exists, the Court finds this
final requirement is satisfied.
Plaintiff is therefore entitled to reasonable legal fees and expenses.
b. Plaintiff’s proposed award of $13,405.00 in fees and expenses is reasonable.
Legal fees and expenses awarded under the EAJA must be reasonable. § 2412(d)(2)(A).
Courts within the Fifth Circuit assess the reasonableness of costs and fees in light of the guidelines
set forth in in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). While
Johnson provides the courts with twelve factors to consider, courts need not examine each factor
explicitly or independently. Sanders v. Barnhart, No. 04-10600, 2005 WL 2285403, at *2 (5th
Cir. Sept. 19, 2005) (citing Cobb v. Miller, 818 F.2d 1227, 1232 (5th Cir. 1987)).1
Courts within this district have found that fees similar to those calculated by Plaintiff’s
counsel are reasonable. See, e.g., Prince v. Colvin, 94 F. Supp. 3d 787, 815 (N.D. Tex. 2015)
(prevailing plaintiff reasonably claimed 72 hours in fees); Williams v. Berryhill, No. 3:17-CV-
3277-B-BN, 2019 WL 3006812, at *3 (N.D. Tex. July 10, 2019) (same, for 65.5 hours); Woelper
1 The twelve factors address:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite
to perform the legal service properly; (4) the preclusion of other employment by the attorney due to
acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the
case; (11) the nature and length of the professional relationship with the client; and (12) awards in
similar cases.
See Sanders, 2005 WL 2285403, at *2 n.2 (citing Johnson, 488 F.2d at 717–19).
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v. Kijakazi, No. EP-23-CV-00227-ATB, 2023 WL 8656929, at *1 (W.D. Tex. Dec. 14, 2023)
(reasonable fees where paralegal’s hourly rate was calculated at $100.00 and attorney’s hourly rate
was calculated at approximately $240.00); Howell v. Comm'r of Soc. Sec., No. SA-23-CV-00159-
OLG, 2024 WL 1815490, at *2 (W.D. Tex. Mar. 15, 2024), R. & R. adopted, No. SA:23-CV-
00159-OLG, 2024 WL 1813447 (W.D. Tex. Apr. 23, 2024) (same). In light of the amount of labor
presumably required to review the 3,163 page transcript, the thoroughness of Plaintiff’s briefing,
and the favorable results obtained, the Court finds that counsel’s calculations appear to be a fair
appraisal of the work performed. See Johnson, 488 F.2d at 717–19. Moreover, given that Plaintiff
agreed to seek a reduced amount of $13,405.00, the Court finds the award falls comfortably within
the bounds of reason.
Accordingly, the Court RECOMMENDS the Court GRANT Plaintiff’s Motion as to his
request he be awarded an amount of $13,405.00 in legal fees and expenses.
2. The Court recommends denying Plaintiff’s request that the EAJA award be made
payable to Plaintiff’s counsel.
Plaintiff further asks the Court to order that the EAJA award “be paid directly to Plaintiff's
Counsel subject to any administrative offset,” Mot. 1, 15, in accordance with his signed fee
agreement and declaration assigning the EAJA award, id. at 14–15; see Mot. Attach. 2, Exs. A-C,
at 2–3, 7, ECF No. 15-2.
While Defendant does not oppose payment being made directly to Plaintiff’s counsel, there
is division among courts within this circuit as to whether such a request is legally tenable. See
Woelper, 2023 WL 8656929, at *2 (collecting cases). Consistent with decisions of the majority
of its sister courts, as well as its previous decision in Cardona v. Comm'r of Soc. Sec., No.
EP21CV00142DCGRFC, 2023 WL 2577200, at *2 (W.D. Tex. Mar. 17, 2023), R. & R. adopted
sub nom., No. EP-21-CV-00142-DCG, 2023 WL 2903980 (W.D. Tex. Apr. 11, 2023), this Court
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continues to hold that an EAJA award is payable only to a plaintiff, regardless of whether he
assigned his rights to the award to counsel.
Therefore, the Court RECOMMENDS the Court DENY Plaintiff’s Motion, as to his
request that the Defendant be ordered to make the EAJA award payable to Plaintiff’s counsel.
III. CONCLUSION
IT IS THEREFORE RECOMMENDED that Plaintiff’s Motion, ECF No. 15, be
GRANTED in part and DENIED in part. The Motion should be GRANTED as to Plaintiff’s
request he be awarded the agreed upon amount. However, it should be DENIED as to the request
that the award be made payable to Plaintiff’s counsel.
IT IS FURTHER RECOMMENDED the Court ORDER Plaintiff be awarded
$13,405.00 in attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d),
subject to any administrative offset, made payable to Plaintiff and mailed to Plaintiff's attorney at
the attorney’s address on record.
SIGNED this 18th day of December, 2025.
ROBERT F. CASTAÑEDA
UNITED STATES MAGISTRATE JUDGE
NOTICE
FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS,
CONCLUSIONS, AND RECOMMENDATIONS CONTAINED IN THE FOREGOING
REPORT, WITHIN FOURTEEN DAYS OF SERVICE OF SAME, MAY BAR DE NOVO
DETERMINATION BY THE DISTRICT JUDGE OF AN ISSUE COVERED HEREIN
AND SHALL BAR APPELLATE REVIEW, EXCEPT UPON GROUNDS OF PLAIN
ERROR, OF ANY UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL
CONCLUSIONS AS MAY BE ACCEPTED OR ADOPTED BY THE DISTRICT COURT.
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