I-1-2-91.Equal Access to Justice Act

Last Update: 1/28/03 (Transmittal I-1-44)

A. Provisions

The Equal Access to Justice Act (EAJA), 5 U.S.C. 504, 28 U.S.C. 2412:

  • authorizes an attorney to obtain reimbursement of expenses incurred (e.g., legal fees, expert witness fees, etc.) in the course of representing a litigant in a court action and certain administrative proceedings involving a government agency;

  • stipulates that reimbursement of legal fees and other expenses applies only with respect to proceedings in which the party prevails against the agency, and only if the court finds that the position of the government was not substantially justified; and

  • provides that when a representative received fees for the same work under both section 206(b) of the Social Security Act and EAJA, the representative must refund to the claimant the amount of the smaller fee.


If a representative is known or suspected to have collected fees under both statutes, but did not refund the smaller fee to the claimant, the representative may be in violation of section 206(b)(2) of the Social Security Act. (See I-1-2-81, Evidence or Allegation of Violations of Law.)

B. Proceedings Before SSA Under EAJA

In its decision in Shalala v. Schaefer, 113 S. Ct. 2625 (1993) (see Social Security Ruling SSR 94-3c), the Supreme Court clarified the types of remands district courts may issue under § 205(g) of the Social Security Act and the procedural and substantive consequences of such remands. (Refer to I-3-1-81B. for a summary of the differences between sentence four and sentence six court remands, as defined in Schaefer.) One consequence is the applicability of EAJA to the remand proceedings.

1. Court Remand to the Commissioner Under Sentence Four of Section 205(g) of the Act

The Supreme Court held that when a district court remands a case to the Commissioner under sentence four, the court cannot retain jurisdiction of the case. The Supreme Court further held that a sentence four remand is an appealable final judgment of the district court that terminates the action and makes a plaintiff a “prevailing party” for EAJA purposes. The court also clarified that, in a sentence four remand, the time period in which an EAJA petition must be filed begins at the conclusion of the appeal period following the district court's entry of a judgment, not the issuance of the administrative decision following remand.

Because the court does not retain jurisdiction of a sentence four remand, the proceedings before the Social Security Administration (SSA) on remand are not part of the court action. Accordingly, the representational services during the proceedings before SSA after the court remand under sentence four are not reimbursable under EAJA.

2. Court Remand to the Commissioner Under Sentence Six of Section 205(g) of the Act

The Supreme Court held that a sentence six remand does not terminate the litigation and that a Social Security claimant would not, as a general matter, be a prevailing party within the meaning of the EAJA merely because a court had remanded the action to the agency for further proceedings. Accordingly, when a court orders a remand of a Social Security case to the Secretary (now Commissioner) and retains a continuing jurisdiction pending the Commissioner's decision on a claimant's right to benefits, the remand proceedings are an integral part of the civil action. Thus, fees for representational services during proceedings before SSA on remand under sentence six are reimbursable under EAJA, subject to other limitations in that Act.