EAJA Fees in Social Security Cases: What Practitioners Need to Know

EAJA fees are the most under-collected money in a Social Security practice. When a court remands a claim, the government pays your fees on top of whatever you eventually recover from your client's past-due benefits — but only if you ask correctly, in a narrow window, with the right documentation. Miss the mechanics and you leave a clean fee on the table.

This is a working overview of the rules that govern Equal Access to Justice Act recovery in SSDI appeals, and where the practical traps sit.

What EAJA is and when it applies

The Equal Access to Justice Act shifts a prevailing party's litigation costs to the government when the government's position was not substantially justified. In the Social Security context, that almost always means a federal-district-court remand — the court vacates the Commissioner's decision and sends the case back to SSA.

Three conditions drive eligibility:

• Prevailing party. A sentence-four remand makes your client the prevailing party. A purely voluntary or sentence-six remand is treated differently, so identify which one you got.
• No substantial justification. The government bears the burden of showing its litigation position — and the underlying ALJ decision — had a reasonable basis in law and fact. A remand for a clear articulation or evidence-evaluation error usually means it didn't.
• Net worth and timeliness. The claimant must fall under the statutory net-worth ceiling (rarely an issue for SSDI claimants), and the application must be timely.

EAJA is distinct from the fee your client pays you. That fee is governed by 42 U.S.C. 406 — § 406(a) for the administrative level, § 406(b) for court-stage work. EAJA is a separate, government-paid recovery that runs in parallel.

The statutory hourly cap and cost-of-living adjustments

EAJA is an hourly-fee statute, not a contingency one. The statute sets an hourly rate cap — $125 per hour under 28 U.S.C. 2412(d)(2)(A) — but expressly allows an increase for cost-of-living and other special factors. In practice, courts in most circuits accept a COLA-adjusted rate well above the base figure, computed from the CPI movement since the statute's reference date.

Two practical points:

• Know your circuit's COLA convention. Some circuits use a national CPI index, some a regional one, and some set the index date differently. The adjusted rate you can claim varies accordingly, so anchor your math to local authority rather than a national rule of thumb.
• Bill in real hours, contemporaneously. EAJA is a lodestar-style recovery: reasonable hours times a reasonable (capped, adjusted) rate. Time you didn't record the way you'd record billable work is time you'll struggle to collect.

The 30-day filing window

EAJA's deadline is short and unforgiving. The application is due within 30 days of final judgment — and "final judgment" means a judgment that is no longer appealable. Because the government has 60 days to appeal a district-court judgment, the appeal period must run first; the EAJA clock then opens.

The result is the familiar day-61-to-day-90 window: you generally cannot file until the government's 60-day appeal period closes, and you must file within the 30 days after that. File too early and the application is premature; file on day 91 and it's untimely. Calendar both ends of the window the moment judgment enters.

The EAJA-vs-406(b) offset

Here's where the two fee tracks collide. When you successfully recover both an EAJA fee (government-paid) and a § 406(b) fee (paid from the client's past-due benefits) for the same work, you don't keep both in full. Under the Gisbrecht line of authority, you refund the smaller of the two fees to the client.

The economics matter:

• The 406(b) fee is capped at 25% of past-due benefits and is reviewed by the court for reasonableness — it is the fee you ultimately earn from the representation.
• The EAJA fee effectively becomes a refund mechanism that puts money back in the client's pocket, reducing the net cost of representation to them.
• When the EAJA award exceeds the 406(b) fee, you refund the 406(b) amount; when 406(b) exceeds EAJA, you refund the EAJA amount.

For modeling the client-facing fee — and the administrative fee-agreement cap of $9,200 that governs the non-court side of the same case under SSA's fee process — it helps to run the numbers before you commit to the appeal.

Documentation and common denials

Most EAJA denials and reductions are self-inflicted. The recurring failure modes:

• Vague or block-billed time. Courts trim hours that aren't described with enough specificity to assess reasonableness. Itemize.
• Clerical time billed at attorney rates. Purely clerical tasks are overhead, not compensable attorney hours — segregate them.
• Claimed COLA rate without support. Attach the CPI data and the computation; don't assert an adjusted rate and hope.
• Treating a sentence-six remand as a prevailing-party win. It isn't, at least not yet — the eligibility posture differs from a sentence-four remand.
• A substantial-justification fight you didn't anticipate. The government will sometimes argue its position was justified even after a remand. Be ready to point to the specific articulation or evidentiary error the court found.

The through-line: EAJA rewards cases where the ALJ's error was clear and the remand was clean. That's the same population of cases worth taking to federal court in the first place — which is why fee strategy and case selection are really one decision. AISSDI's remand-reason data helps you see which error types are live in your circuit before you file, and the Lead Scorer lets you weigh a prospective court appeal against the odds of the remand that makes an EAJA fee possible.

Run the fee math early, calendar both clocks the day judgment enters, and document your hours like you intend to collect — because on a remand, you do.