Martin on Social Security

Part 2 – Topics

Attorneys Fees

Attorneys Fees Awarded Under Equal Access to Justice Act

§ T 000. Attorneys Fees Awarded Under Equal Access to Justice Act – In General

The Equal Access to Justice Act (EAJA), which provides for award of attorneys fees in actions against the United States, covers actions under the Social Security Act.  For a Social Security appeal to qualify for such an award three conditions must be met: (1) the plaintiff must be a prevailing party; (2) the government’s opposition must be without substantial justification; and (3) there must be no special circumstances warranting denial of fees.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ T 100. Attorneys Fees Awarded Under Equal Access to Justice Act – Was Agency Action Substantially Justified

An award of attorneys fees under the Equal Access to Justice Act is not authorized if the court finds that the position of the Agency was “substantially justified.”  A position that is later reversed by a court may nonetheless be “substantially justified.”  In Pierce v. Underwood, 487 U.S. 552 (1988), the Supreme Court held that the test is, in essence, one of reasonableness. The Court also held that an appellate court reviewing a district court’s decision on this issue should employ an abuse-of-discretion standard.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ T 200. Attorneys Fees Awarded Under Equal Access to Justice Act – Was the Claimant a Prevailing Party

Only a prevailing party is entitled to a fee award under the Equal Access to Justice Act (EAJA).  When a court effectively reverses an Agency decision that denied benefits the prevailing party test is met.  But many court orders that decline to affirm the Agency decision do not represent a clear victory for the claimant.  A decision that the Agency determination is not supported by the record or is in error on a point of law often produces a remand to the Agency for further proceedings.  Prior to the Supreme Court’s decision in Shalala v. Schaefer, 509 U.S. 292 (1993), it was unclear whether a remand pursuant to sentence four of 42 U.S.C. § 405(g), qualified until the results of that remand became clear.  Shalala v. Schaefer held, in effect, that EAJA fees can be obtained for work done prior to a sentence four remand even if the claimant does not ultimately receive benefits.

When the change in outcome is, in part, a consequence of a change in the Act or regulations or some other shift in circumstance the prevailing party test may not be met.  Another situation which poses difficulty is when the litigation raises many issues and the claimant’s ultimate success rests on only a few of them.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ T 300. Attorneys Fees Awarded Under Equal Access to Justice Act – Rate or Amount of Award

A fee award under the Equal Access to Justice Act (EAJA) is the product of a statutory rate ($125 per hour, with a potential adjustment to reflect cost of living increases or other special factors) and the amount of time spent on the matter.  The fee is set by the court.  In the fee award proceeding the reasonableness of the number of hours claimed by the attorney is subject to review.  Any requested adjustments of the statutory rate may be a subject of dispute.

Generally rejected as a special factor warranting upward adjustment is knowledge of Social Security law itself.  Enhancement on the ground of special skills or expertise requires more than command of a specialized area of the law.

The EAJA permits fees at a higher market rate in cases where the government has acted in bad faith.  The “bad faith” standard requires far more egregious conduct than is called for by the basic EAJA threshold of lacking “substantial justification.”

Rev. 6/96

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ T 400. Attorneys Fees Awarded Under Equal Access to Justice Act – Fees for Work Before the Agency

Only prevailing parties qualify for a fee award under the Equal Access to Justice Act (EAJA).  But since a remand to the Agency is often the means by which a Social Security claimant prevails, the issue of whether it is appropriate for the ultimate fee award to include representation in that subsequent administrative proceeding has frequently arisen.

In Sullivan v. Hudson, 490 U.S. 877 (1987), the Supreme Court held that an EAJA fee award could include such representation even though the government was not itself represented by counsel in the administrative proceeding.  The proceedings were, the Court held, “adversarial” nonetheless, and being “adversarial” were within the scope of an EAJA fee award.  Prior to that decision some lower Federal courts had taken the contrary position.

Subsequently, in Shalala v. Schaefer, 509 U.S. 292 (1993), the Supreme Court largely eliminated the prospect for fees for administrative representation following a remand pursuant to sentence four of 42 U.S.C. § 405(g).  Even though Sullivan v. Hudson had involved a sentence four remand, Shalala v. Schaefer held that in sentence four remands the district court should normally divest itself of jurisdiction upon ordering the remand.  The filing for EAJA fees should occur at that point and cannot, as a consequence, include fees for representation upon remand.  At least in theory, fees for administrative representation following remands pursuant to sentence six of 42 U.S.C. § 405(g) remain available following Shalala v. Schaefer.

Rev. 9/95

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ T 500. Attorneys Fees Awarded Under Equal Access to Justice Act – Relationship of EAJA Fee Claims to Claims Under Social Security Act

The same representation of a Social Security claimant can be the subject of an attorneys fee award under the Equal Access to Justice Act (EAJA) and the Social Security Act.  Double recovery is barred.  Beyond that simple principle, affirmative coordination is generally sought by the courts.  Because of the EAJA’s limits it does not cover every successful Social Security appeal in federal court.  Because of the different rates, when both the EAJA and Social Security Act apply one may yield a larger award than the other.  Since fee awards under the Social Security Act reduce benefits while EAJA awards do not, attorneys are encouraged by courts to apply for both.  When fees under both acts are allowed, the smaller of the two is paid over to the claimant.  In these cases the EAJA is seen as augmenting rather than supplanting the fee provisions of the Social Security Act.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ T 600. Attorneys Fees Awarded Under Equal Access to Justice Act – Was the Claim Timely Filed Following a Final Decision

The Equal Access to Justice Act (EAJA) places a rigid time limit on attorneys fees applications.  They must be filed “within thirty days of final judgment in the action.”  That time limit is held to be jurisdictional. The most troublesome element of the limit is how to interpret the phrase “final judgment.”  A definition added to the Act in 1985 makes it clear that a judgment is final only after the time to appeal has expired.

Prior to two Supreme Court decisions the lower Federal courts had divided over how to interpret that phrase “final judgment” when judicial remand led to a subsequent favorable Agency decision.  Some of these remand issues were resolved by the Supreme Court in Melkonyan v. Sullivan, 501 U.S. 89 (1991).  In Melkonyan, the Court rejected the Agency’s position that an administrative adjudication following remand could constitute the “final judgment” starting the thirty day limit.  It held that the “final judgment” was that entered by a district court “affirming, modifying, or reversing” the Agency determination or, in cases of remand upon the Agency’s request to allow consideration of new evidence, when the Agency returns to court.  The decision noted that with remands pursuant to sentence six of 42 U.S.C. § 405(g)  the Act requires the Agency to return to court following “new evidence” remands.  With such “sentence six” remands, the final judgment occurs after the court has entered a judgment upon the Agency’s return and the time to appeal has expired.  Subsequently, in Shalala v. Schaefer, 509 U.S. 292 (1993), the Supreme Court clarified the timing for an EAJA fee claim in connection with a remand pursuant to sentence four of 42 U.S.C. § 405(g).  With a “sentence four” remand, the time begins to run with the expiration of the time for filing an appeal of the order.

Given this sharp difference in the timing for a fee application, distinguishing between “sentence four” and “sentence six” remands has become a critical issue.  In Jackson v. Chater, 99 F.3d 1086 (11th Cir. 1996), the Eleventh Circuit held, however, that it is possible for a remand to have a “dual basis” – that is, for it to be based, in part, on both “sentence four” and “sentence six” – and that in such a case where success on remand is not based solely upon “sentence four” reasons, the EAJA application may be filed after the judgment is entered following the remand proceedings.

Rev. 3/97

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ T 700. Attorneys Fees Awarded Under Equal Access to Justice Act – Class Actions

Class action representation is covered by the Equal Access to Justice Act (EAJA).  Applying the EAJA’s “prevailing party” provisions and determining a reasonable fee can pose special difficulty in such cases.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ T 800. Attorneys Fees Awarded Under Equal Access to Justice Act – Reimbursable Expenses

In addition to authorizing an award of attorneys fees, the Equal Access to Justice Act (EAJA) authorizes a court to award other reasonable expenses of the litigation.  The EAJA lists some expense items (such as  expert witnesses, studies).  Courts have divided over whether that list is exhaustive or illustrative.  Costs not listed by the EAJA that some courts will allow include photocopying, telephone, postage, and travel.  The argument for awarding such expenses in addition to the fee is strengthened when they are of a type normally charged to a client in the region where the matter is tried.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]