If your Social Security disability claim has been denied at the hearing level and at the Appeals Council, the next step is to file a lawsuit against the Commissioner of Social Security in federal court (read Nolo's article on appealing your disability claim to federal court).
The filing fee for civil cases in federal court as of 2016 is $400, which includes a $50 administrative fee. Your lawyer may request that you be allowed to file "in forma pauperis" if you cannot afford the filing fee. (If you can prove to the court that you're unable to pay the filing fee, the court will waive it. But if your fee waiver request is denied, your lawyer will usually require you to pay the fee up front before proceeding with the suit.)
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 back benefits subject to a $6,000 cap. In federal court, the attorney's fee is not tied to this limit. However, you can receive attorney's fees directly from the U.S. government under the Equal Access to Justice Act (EAJA).
The Equal Access to Justice Act (EAJA) allows "prevailing parties" in suits against the federal government to receive attorney's fees if the government was not substantially justified in denying you benefits. You are the prevailing party if the federal court reverses your administrative denial (that is, awards you benefits) or if your case is sent back for a new hearing. That means EAJA fees can be awarded even if you end up losing your case.
While it's possible that an application for EAJA fees will be denied if the government's actions are found to be substantially justified, in practice this seldom occurs. The government bears the burden of proving it was substantially justified at all levels of litigation. Generally, any significant error of fact or law will cause the federal court to find that the government's actions were not justified, and to award EAJA fees.
EAJA fees are available only for individuals whose net worth is less than $2 million. If you're fortunate enough not to qualify for EAJA fees on this account, 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 this amount may be adjusted for inflation and in accordance with prevailing market rates. The 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 and is completely separate from the contingent fee agreement allowing Social Security to pay 25% of your back benefits to your attorney. It's possible that your attorney may receive EAJA fees and ordinary contingent fees in the same case. However, if the attorney receives both EAJA fees and contingent fees for federal court work (known as 406(b) fees), she must refund you the lesser of the two amounts.
EAJA fees are meant to pay for legal bills, and until the mid-2000s they were paid directly to the attorneys themselves. Now, however, the fees go to the clients, who must sign over the money to the attorneys. Why the switch? The rule change allows the federal government to collect debts, out of the EAJA money, from disability claimants who owe back taxes, student loans, or child support. If your attorney ever asks whether you have outstanding debts, now you'll understand why. Often a large portion, if not the entire amount, of EAJA fees is withheld so that the claimant can pay back a debt to the government.
An application for EAJA fees must be filed within 30 days of a "final judgment." However, a judgment against the United States doesn't officially become final until a 60-day window for appeals has elapsed. So the EAJA application should actually be filed between 61 and 90 days after the judgment is entered.
If you hire an attorney to represent you in federal court, he or she will file a petition for EAJA fees for you. To find a disability attorney in your area, use our search tool below. Be sure to ask whether the attorney handles cases in federal court, as not all do.