EAJA Fees: Who Pays Your Lawyer in Federal Court Appeals

The Equal Access to Justice Act, called EAJA, is a 1980 federal law that can make the United States government pay your attorney fees for the federal court stage of your SSDI appeal. Under 28 U.S.C. 2412(d), the court must award fees to a claimant who prevails unless the government shows its position was substantially justified.

EAJA is not the contingency fee system that pays representatives at the application and hearing stages, and the two systems follow different rules. This article covers only the court stage fee statute. How representatives are paid for filing claims and administrative appeals, including the fee agreement and fee petition process, is outside the scope of this site.

What EAJA Is and Why It Exists

Congress enacted EAJA on October 21, 1980, as title II of Pub. L. 96-481. The idea is fee shifting: when a person of limited means forces the government to back off an unreasonable position in court, the government, not the person, pays the lawyer.

The statute directs a court to award fees and other expenses to a prevailing party in a civil action against the United States, expressly including proceedings for judicial review of agency action (28 U.S.C. 2412(d)(1)(A)). An SSDI appeal in district court fits that description exactly. The award is mandatory unless the government proves one of two exceptions: its position was substantially justified, or special circumstances would make an award unjust.

Who Qualifies

Three requirements control eligibility.

First, you must be the prevailing party. A claimant who obtains a remand from the federal district court qualifies, because the Supreme Court held in Shalala v. Schaefer (1993) that a remand reversing the agency decision is a judgment on the merits that makes the claimant a prevailing party. Even when the court sends the case back rather than awarding benefits on the spot, the fee right exists.

Second, your net worth must not have exceeded 2,000,000 dollars at the time the civil action was filed (28 U.S.C. 2412(d)(2)(B)). That cap for individuals was raised from 1,000,000 dollars by 1985 amendments and still applies in 2026. Eligibility is determined as of the filing date, not the date of the fee application.

Third, your attorney must file the fee application on time. The application must be submitted within 30 days of final judgment in the action (28 U.S.C. 2412(d)(1)(B)). Final judgment means a judgment that is final and not appealable, which under the statute's definition includes an order of settlement (2412(d)(2)(G)). In practice, counsel waits until the time for appeal has run and then files promptly.

The application itself must show that you prevailed and are eligible, state the amount sought with an itemized statement of the attorney's time and rate, and allege that the government's position was not substantially justified (2412(d)(1)(B)).

The Heart of the Statute: Not Substantially Justified

The government avoids paying only by showing its position was substantially justified. The Supreme Court interpreted that phrase in Pierce v. Underwood (1988) to mean justified to a degree that could satisfy a reasonable person, in substance having a reasonable basis in both law and fact.

Two features of the statute make this standard fairer than it might sound.

The definition of the government's position reaches back before the lawsuit. Under 2412(d)(2)(D), the position of the United States includes not just what government lawyers argued in court, but the action or failure to act by the agency on which the lawsuit is based. For an SSDI appeal, that means the ALJ decision itself is part of what must be justified. If the underlying denial rested on an error the Commissioner declined to fix, the litigation position inherits that problem.

The determination is made on the record, including the record of the underlying agency action (2412(d)(1)(B)). The court does not retry the case to decide fees, and the government bears the burden of justification once the claimant prevails. All of this is decided on papers, and discovery is not normally part of it.

How the Fee Is Calculated

EAJA fees are based on prevailing market rates, with a statutory ceiling. Under 28 U.S.C. 2412(d)(2)(A)(ii), attorney fees may not exceed 125 dollars per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys, justifies more. The 125 dollar figure was set by 1996 amendments (Pub. L. 104-121, effective March 29, 1996), which raised it from the original 75 dollars, and it remains the statutory number in 2026.

Cost of living adjustments are routinely granted on request, so the hourly rate actually approved in recent years is typically higher than the bare cap, keyed to inflation since 1996. Courts in different parts of the country compute the adjustment differently, so the approved rate depends on where the case is filed.

The fee award covers the reasonable hours your attorney spent on the court case, shown in the itemized statement the statute requires. A court can reduce or deny the award if the prevailing party unduly protracted the litigation (2412(d)(1)(C)).

The Offset Rule: No Double Payment

Social Security cases have a second fee stream. Under 42 U.S.C. 406(b), after a favorable outcome a district court can approve a fee for the attorney of up to 25 percent of past-due benefits, paid out of the back pay award. The Supreme Court described this contingency fee system and its interaction with EAJA in Gisbrecht v. Barnhart (2002).

The two systems connect through a refund rule in the savings provision of the 1980 EAJA law (section 206 of Pub. L. 96-481). Where the attorney receives fees for the same work under both 406(b) and EAJA, the attorney must refund the claimant the amount of the smaller fee. In a typical sequence, the lawyer keeps the EAJA award at first, and if a later 406(b) fee turns out larger, the lawyer keeps that and refunds the EAJA amount to you. The claimant, in short, never pays both for one piece of work.

This structure is why most attorneys take SSDI federal court cases without asking for money up front. The fee comes from EAJA if the government's position was unjustified, or from past-due benefits if the claim ultimately succeeds.

Practical Points for Claimants

Ask about EAJA before the complaint is filed, not after. Confirm that your attorney intends to apply, and remember the strict 30-day window that follows final judgment. Keep your own record of the civil action filing date, since net worth eligibility is measured on that date.

Do not treat an EAJA possibility as a reason to file a weak appeal. The statute awards fees to prevailing parties, and the government will argue its denial was reasonable if the case lacks identified legal error. The stronger the appeal, the more likely both the remand and the fee award.

Frequently Asked Questions

Who qualifies for EAJA fees in an SSDI court case? A prevailing claimant whose net worth was 2,000,000 dollars or less when the complaint was filed, a limit set by 1985 amendments, whose attorney applies within 30 days of final judgment under 28 U.S.C. 2412(d).

How much does EAJA pay per hour? The statute caps attorney fees at 125 dollars per hour, a figure set by 1996 amendments, but courts can approve a higher rate to account for increases in the cost of living under 28 U.S.C. 2412(d)(2)(A).

What happens if my lawyer receives both EAJA fees and fees from my back pay? For the same work, the attorney must refund you the smaller of the two payments under the savings provision in section 206 of Pub. L. 96-481, the 1980 law that created EAJA.

This article provides general information about Social Security Disability Insurance rules and is not legal advice. Program rules, fee statutes, and caps change over time, and all figures reflect standards applicable in 2026. Consult a qualified representative or contact the Social Security Administration directly for guidance regarding your individual claim.