Equal Access to Justice Act (EAJA) Fees in SSDI

The Equal Access to Justice Act lets a federal court order the United States to pay your attorney fees when you win an SSDI appeal and the government's defense was not substantially justified. The statute, 28 U.S.C. 2412(d), covers Social Security cases directly because it applies to civil actions "including proceedings for judicial review of agency action."

Because EAJA fees come from the Treasury rather than from your past due benefits, they are the main reason federal SSDI representation is affordable for disabled claimants who have no income. The rules have deadlines and eligibility tests of their own, so it helps to understand how the process works.

Who Counts as a Prevailing Party

The starting point is that you must win something in the litigation. The Supreme Court held in Shalala v. Schaefer, 509 U.S. 292 (1993), that a claimant who secures a sentence four remand under 42 U.S.C. 405(g) is a prevailing party. That makes a remand for a new hearing, the most common favorable outcome in these cases, enough to seek EAJA fees.

Under the sentence six pathway described in Melkonyan v. Sullivan, 501 U.S. 89 (1991), final judgment comes later, after the agency acts on the new evidence and the court enters judgment, so the fee clock runs from that later point.

The 30 Day Deadline After Final Judgment

Under 28 U.S.C. 2412(d)(1)(B), a party seeking fees "shall, within thirty days of final judgment in the action," submit an application showing prevailing party status, eligibility, and the amount sought, with an itemized statement from the attorney of the actual time expended and the rates charged.

The statute defines final judgment at 28 U.S.C. 2412(d)(2)(G) as a judgment that is final and not appealable. In practice, that means the 30 days generally runs from the date the appeal period expires, not the date the district judge signs the remand order. Shalala v. Schaefer settled this for sentence four remands. Missing this short window usually forfeits the fee award entirely, so representatives calendar it immediately.

The Net Worth Eligibility Requirement

EAJA is limited to claimants of modest means. Under 28 U.S.C. 2412(d)(2)(B), an individual qualifies if their net worth did not exceed $2,000,000 at the time the civil action was filed, a threshold set in 1985. The application must allege eligibility, and the government can test it.

For most long term SSDI claimants, who have been unable to work while awaiting benefits, this requirement is rarely an obstacle. The application simply documents income, assets, and debts.

How the Hourly Rate Works

The EAJA does not pay whatever a lawyer charges in the open market. Under 28 U.S.C. 2412(d)(2)(A), attorney fees "shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor" justifies more. Congress set that $125 figure in 1996.

Courts in Social Security cases almost always grant the cost of living increase, computed based on the year the work was performed. For example, a chart published by the United States Court of Appeals for the Ninth Circuit lists $258.46 per hour as the statutory maximum for work performed in 2025 and $251.84 per hour for 2024. Other circuits compute their own adjustments, so the exact figure varies by place and year, but the method is the same.

Substantial Justification: The Central Fight

Winning alone does not guarantee fees. Under 28 U.S.C. 2412(d)(1)(A), the court must deny fees if it "finds that the position of the United States was substantially justified." The Supreme Court explained in Pierce v. Underwood, 487 U.S. 552 (1988), that this means the government's position had a reasonable basis in law and fact.

Two features of the statute shape this fight in Social Security cases. First, the government carries the burden of showing substantial justification, not the claimant. Second, the "position of the United States" is defined at 28 U.S.C. 2412(d)(2)(D) to include both the litigation position and the underlying agency action, so the ALJ's flawed decision itself is weighed, not just the courtroom brief defending it.

When the ALJ committed clear legal error, for example by failing to properly evaluate medical source statements under 20 CFR 404.1520c, the government often concedes fees rather than litigate justification. When the appeal raised genuinely contested issues, fees are more often denied.

Reductions for Delay or Misconduct

The court may reduce or deny an award under 28 U.S.C. 2412(d)(1)(C) if the fee applicant unduly and unreasonably protracted the case. Excessive hours, duplicative briefs, or missed deadlines can all shave the award. This is one reason experienced representatives keep careful time records and file clean, itemized applications.

Who Actually Receives the Money

In Astrue v. Ratliff, 560 U.S. 586 (2010), the Supreme Court held that an EAJA award belongs to the prevailing party, the claimant, not to the attorney. One practical consequence is that EAJA payments can be diverted to satisfy federal debts the claimant owes, such as certain overpayments, through administrative offset before any remainder is paid out.

The award also interacts with fee awards under 42 U.S.C. 406(b), which allows a court to approve an attorney fee of up to 25 percent of past due benefits for court work. Under Gisbrecht v. Barnhart, 535 U.S. 789 (2002), 406(b) contingency fees are reviewed for reasonableness. When a representative collects a 406(b) fee after the agency awards benefits, the representative must refund the client the smaller of the EAJA award and the 406(b) fee. The attorney never keeps both for the same work.

Why EAJA Matters for Claimants

For most people who reach federal court, EAJA removes the up front cost of counsel. The representative fronts the work through the appeal, and if the government's position was not substantially justified, the Treasury reimburses the effort at statutory rates. Combined with the contingency rules at the agency level, it means a denied claimant can usually pursue a federal appeal without paying hourly legal bills along the way.

Frequently Asked Questions

Who pays attorney fees under the Equal Access to Justice Act in an SSDI case? The federal government pays them. Under 28 U.S.C. 2412(d), a court must award fees to a winning claimant in a Social Security civil action unless the position of the United States was substantially justified or special circumstances make an award unjust.

How much per hour can an attorney recover under the EAJA? The statutory default cap is $125 per hour under 28 U.S.C. 2412(d)(2)(A), the figure Congress set in 1996, but courts routinely increase it for the cost of living. A chart published by the Ninth Circuit lists $258.46 per hour as the inflation adjusted maximum for work performed in 2025.

When must an EAJA application be filed in an SSDI appeal? Within 30 days of final judgment under 28 U.S.C. 2412(d)(1)(B). In a sentence four remand case, the Supreme Court held in Shalala v. Schaefer that the clock starts when the time for appeal expires, not when the remand order is entered.

This article provides general information about Social Security Disability Insurance rules and is not legal advice. Program regulations, appeal procedures, and administrative guidelines 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.