If your Social Security disability claim has been denied by an administrative law judge (ALJ) after a disability hearing and by the Appeals Council, you have one more appeal available to you. The next (and final) appeal level is filing a lawsuit against the Commissioner of Social Security in federal district court. (Learn more about how to appeal your disability claim to federal court.)
There are certain costs you can expect to have if you plan to appeal your Social Security disability case in federal court, including the following:
Here's what you need to know about these costs—including how you might get the federal government to pay some of them.
Anytime you file a lawsuit, the court will charge a filing fee. This is a fee that you must pay to submit pleadings to the court. The filing fee for civil cases in federal court as of 2023 is $402, which includes the following:
If you can't afford to pay these filing fees, your lawyer might request that you be allowed to file "in forma pauperis." This is your lawyer's way of asking the court to waive the filing fee—for it to work, you'll need to prove to the court that you don't have the money to pay it. If the court denies your fee waiver request, your lawyer will likely require you to pay the filing fee before proceeding with your lawsuit.
At the administrative levels of a disability case—that is, before the claim reaches federal court—the attorney's fee is usually 25% of your past due benefits up to the $7,200 cap. (For fee agreements approved by Social Security before November 30, 2022, the limit was $6,000.)
In federal court, your attorney's fee isn't tied to this limit, so it could be more. But you might be able to receive your attorney's fee from the U.S. government under the Equal Access to Justice Act (EAJA).
Under the Equal Access to Justice Act (EAJA), when you "prevail" in a lawsuit against the federal government (including Social Security), you can sometimes receive attorneys' fees—that is, get the federal government to pay your attorney's fees. But to get EAJA fees, you'll need to show that the Social Security Administration (SSA) wasn't substantially justified in its actions in denying your claim.
Generally, if the federal court finds any significant error of fact or law, the court can find that Social Security's actions weren't justified and award you EAJA fees.
If you win your Social Security disability appeal, a federal court can rule in your favor in one of two ways:
Either way, if the court rules in your favor, EAJA fees can be awarded to you even if you end up losing your case later on.
Even if the court rules in your favor, it's still possible that your application for EAJA fees could be denied. But it's not very likely because the burden of proof is on the government—Social Security must prove it was "substantially justified" in the way it handled your claim.
You can, however, be denied EAJA fees if you have a net worth that's more than $2 million. If you're fortunate enough not to qualify for EAJA fees because of your net worth, most attorneys will gladly charge you a flat fee to represent you in federal court.
By law, attorneys receive $125 per hour in EAJA fees, although the court can adjust this amount for inflation and in accordance with prevailing market rates. Your attorney must document the number of hours worked and provide support for any deviation from the $125 rate.
The EAJA fee is paid directly out of the U.S. Treasury. It's completely separate from the contingent fee agreement allowing Social Security to pay 25% of your back benefits to your attorney (if you win your disability claim).
It's possible that your attorney could receive EAJA fees and ordinary contingent fees in the same case. But if your attorney gets both EAJA fees and contingent fees for federal court work (known as 406(b) fees), the lesser of the two amounts must be refunded.
EAJA fees are meant to pay for legal bills, and these fees used to be paid directly to your attorney. Now, however, if you take your Social Security disability appeal to federal court and EAJA fees are awarded, the fees would be paid directly to you, and then you'd have to sign over the money to your attorney.
Why the switch? The rule change allows the federal government to collect certain debts you owe out of the EAJA money. The kinds of debt that can be collected this way include the following:
If your attorney ever asks whether you have any outstanding debts, this is probably why. A large portion—even the entire amount—of EAJA fees can be withheld to pay back your debts to the federal government, leaving nothing for the lawyer.
You must file an application for EAJA fees within 30 days of the federal court's "final judgment" in your case. But a judgment against the United States—including Social Security—doesn't officially become "final" until a 60-day window for appeals has elapsed. So your EAJA application should be filed between 61 and 90 days after the judgment is entered.
The attorney you hire to represent you in federal court will file a petition for EAJA fees for you.
Your attorney's fees and the court filing fees will likely be the most costly part of appealing your Social Security disability claim in federal court, but there are some other costs you should expect. Those include:
These extra expenses usually won't be more than a few hundred dollars. But when you hire an attorney, you'll probably have to sign an agreement promising you'll repay them. Often, you'll be required to pay these out-of-pocket costs even if you lose your case.
Your odds of winning Social Security disability benefits in federal district court aren't great. Only about 2% of cases result in the federal court awarding disability benefits. But federal judges often find that significant mistakes were made at the hearing level and send almost half of the disability cases they hear back to the ALJ to reexamine mistakes made at the original hearing.
Given the costs and the odds of winning, taking your disability claim to federal court might seem like an expensive proposition. But remember, you only pay contingent attorney's fees if you win. And sometimes, you can get the federal government to pay the costs of hiring a lawyer for your federal court case, thanks to the Equal Access to Justice Act.
Learn more about the costs and benefits of hiring a disability lawyer for your claim.
Updated January 27, 2023