Equal Access to Justice Act (EAJA) — Attorney Fees Against the Government

The Equal Access to Justice Act (28 U.S.C. § 2412; 5 U.S.C. § 504) requires the federal government to pay the attorney fees and litigation costs of individuals, small businesses, and organizations that prevail against the government in federal court or in administrative proceedings — unless the government's position was "substantially justified" or special circumstances make an award unjust. Enacted in 1980 and made permanent in 1985, EAJA was designed to remove the financial barrier that prevented ordinary citizens and small entities from challenging unreasonable government action. Without EAJA, even if you won your case against the IRS, EPA, Social Security Administration, or any federal agency, you'd have to absorb your own legal costs — which could exceed the value of what you won. EAJA levels the playing field by shifting attorney fees to the government when it loses and can't show its position was reasonable. The Act covers cases in federal court (28 U.S.C. § 2412(d)) and adversary adjudications before agencies (5 U.S.C. § 504), with a fee cap of $125 per hour (adjustable for inflation and special factors — typically $200–$250 per hour in practice).

Current Law (2026)

Legal Authority

• 28 U.S.C. § 2412(d) — Fee awards in court cases (prevailing parties in civil actions against the United States may recover attorney fees and expenses unless the government's position was substantially justified; sets the $125/hour cap and eligibility requirements)
• 28 U.S.C. § 2412(a) — Costs (allows courts to award costs — as defined in 28 U.S.C. § 1920 — to prevailing parties against the government, the same as in private litigation)
• 28 U.S.C. § 2412(b) — Attorney fees under common law and other statutes (the government is liable for fees to the same extent as a private party in certain cases — applicable when other fee-shifting statutes apply)
• 5 U.S.C. § 504 — Fee awards in agency adjudications (parallels § 2412 for adversary adjudications before federal agencies — eligible prevailing parties may recover fees unless the agency's position was substantially justified)

How It Works

The government doesn't pay fees just because it lost. EAJA fees are available only when the government's position was not substantially justified — defined by the Supreme Court in Pierce v. Underwood (1988) as lacking "a reasonable basis in law and fact." If the government had a defensible argument and simply lost on the merits, no fees are awarded. The burden falls on the government to prove its position was substantially justified. EAJA is designed for the "little guy": individuals must have a net worth under $2 million; businesses, nonprofits, and other organizations must have a net worth under $7 million and no more than 500 employees. The statute caps attorney fees at $125 per hour (set in 1996), adjusted upward for cost-of-living increases (typically bringing the effective rate to $200–$250/hour) and for special factors such as limited availability of qualified attorneys in the case type. Courts also award expert witness fees and other reasonable litigation costs; total awards are based on hours reasonably expended, and courts can reduce awards for excessive or redundant time.

EAJA matters most in Social Security disability cases — claimants who are denied benefits, prevail in federal court after administrative exhaustion, and receive EAJA fee awards that sometimes exceed their back-due benefits. Other high-volume contexts include immigration proceedings, environmental enforcement actions, tax disputes, veterans benefits appeals, and challenges to agency regulations. The act has a 30-day application window after final judgment, and the application must specifically identify all hours claimed and explain why the government's position was not substantially justified. For tort claims against the government, the separate Federal Tort Claims Act governs; for money-damages claims, see the Tucker Act and Court of Federal Claims.

How It Affects You

If you've been denied Social Security disability benefits and are considering appealing in federal court: EAJA is what makes these appeals economically viable for most claimants. Without it, a successful challenge to an SSA denial would leave you with legal bills that rival or exceed your back benefits. With EAJA: if you prevail and the SSA's position was not "substantially justified" (no reasonable basis in law and fact), the government pays your attorney's fees. The statutory fee cap is $125/hour, but courts routinely award the CPI-adjusted rate of $200-$250/hour. The EAJA application must be filed within 30 days of final judgment. In practice, this is why disability attorneys take federal court appeals on contingency — they expect to recover EAJA fees regardless of whether the back-benefits award covers their time. Note: EAJA fees and contingency fees under 42 U.S.C. § 406(b) (up to 25% of back benefits) can both be sought for different work, but the attorney must return the smaller award, not collect both fully. EAJA makes it financially possible for people with limited means to hire qualified attorneys to fight SSA denials that courts repeatedly find lacked legal support.

If you're a small business or organization facing federal agency enforcement: See also the Regulatory Flexibility Act for other protections for small entities in federal regulation. EAJA applies when your net worth is under $7 million and you have no more than 500 employees. If you prevail and the government's position wasn't substantially justified, EAJA shifts the legal fees to the agency. The standard: the government's position must have lacked a reasonable basis in law and fact — it's not enough that you won; the government's theory must have been unreasonable. This applies to both the underlying agency action and the litigation conduct. Where EAJA matters most for businesses: EPA enforcement actions involving disputed violation counts or incorrect standard applications, USDA program disputes, SBA certification decisions, IRS tax positions the courts find genuinely unreasonable. The EAJA application is filed in the court where you prevailed, within 30 days of final judgment. Include documented attorney hours; the government can challenge excessive billing. Special factors that allow fees above the CPI-adjusted cap include limited availability of qualified attorneys in the specific area of regulatory law — relevant in technical fields.

If you're a veteran who prevailed in a Board of Veterans' Appeals or Court of Appeals for Veterans Claims proceeding: EAJA applies to appeals at the Court of Appeals for Veterans Claims (CAVC) — the specialized federal court for VA benefit disputes. If you prevail and the VA's position was not substantially justified, you can recover attorney fees under EAJA. The 30-day post-judgment application window applies. Given the BVA's historically high reversal rate on appeal and the VA's frequently contested interpretations of service-connection and disability ratings, many prevailing claimants qualify. For veterans represented by accredited attorneys (who charge fees under 38 U.S.C. § 5904), EAJA provides supplemental fee recovery beyond the 20% fee cap on past-due benefits. Some attorneys take CAVC cases on contingency, anticipating EAJA recovery. The National Veterans Legal Services Program maintains resources specifically on EAJA procedures at the CAVC.

If you practice administrative or federal regulatory law, or if you're a federal agency official managing enforcement decisions: EAJA creates a real institutional deterrent to aggressive or unreasonable enforcement — each lost case where the agency's position wasn't substantially justified results in a fee award from the agency's litigation budget. For agencies: this creates an incentive to carefully assess litigation risk before pursuing or continuing cases with weak legal or factual foundations. In practice, the $125/hour statutory cap (even with CPI adjustment) is often below private market rates, which partially limits the deterrent. For practitioners: "substantially justified" requires showing the government's position was unreasonable — courts use a totality-of-the-circumstances analysis. A position that was reasonable at the outset but became untenable as facts developed may still qualify as substantially justified. Keep contemporaneous billing records from the case's start to support a future EAJA application, including descriptions detailed enough to withstand a government challenge.

State Variations

EAJA is federal law, but many states have equivalent statutes:

• Over 30 states have enacted their own fee-shifting statutes modeled on EAJA
• State versions vary in eligibility thresholds, fee caps, and the standard for awarding fees
• Some states are more generous than EAJA (higher fee caps, broader eligibility)
• State EAJA equivalents apply in state court proceedings against state and local governments

Implementing Regulations

• 28 CFR Part 24 — DOJ Equal Access to Justice Act regulations (eligibility criteria, application procedures, net worth limits, and fee award procedures in adversary adjudications against the government)

• 5 CFR Part 2430 — FLRA Awards of Attorney Fees and Other Expenses (14 sections — the Federal Labor Relations Authority's EAJA implementation for attorney fee awards in unfair labor practice proceedings; the FLRA is one of the more active EAJA venues because federal agency-union labor disputes generate significant adversary adjudications):

  • § 2430.2 — Proceedings affected: Part 2430 applies to unfair labor practice proceedings before the FLRA in which a labor organization prevails against the General Counsel or the agency that filed the ULP complaint; unlike the general EAJA framework that covers any prevailing party, Part 2430 specifically applies to labor organizations challenging agency ULP charges; individual employees and unions may be eligible
  • § 2430.3 — Standards for awards: the standard mirrors the general EAJA standard — the applicant prevailed and the government's position was not substantially justified; the FLRA adjudicates fee applications using the same "substantially justified" inquiry as other EAJA adjudicators; a union that successfully defeats a ULP complaint can recover its legal costs if the complaint was unreasonably pursued
  • § 2430.4 — Fee limits: attorney fees are capped at $125/hour unless the FLRA finds a special factor justifies a higher rate (limited practice area, specialized expertise, or CPI adjustments); expert witness fees are capped at the rate the FLRA pays its own experts; the FLRA General Counsel may challenge both the reasonableness of hours and the hourly rates
  • § 2430.6 — Application requirements: the application must include: the applicant's net worth exhibit (establishing eligibility under the financial threshold); itemized attorney and expert fee documentation; a statement of the applicant's role in the proceeding; and certification under penalty of perjury; filed after the final order in the underlying ULP case
  • § 2430.9 — Response deadline: the General Counsel has 30 days after service of the EAJA application to file an answer; the answer may contest eligibility, dispute the substantially justified standard, and challenge the fee documentation; after the General Counsel's answer, the applicant may reply within 15 days
  • § 2430.12–2430.13 — ALJ decision and exceptions: an Administrative Law Judge issues an initial EAJA decision; any party may file exceptions with the full FLRA Authority; the FLRA may affirm, modify, or reverse the ALJ's fee award; the full FLRA decision is then subject to judicial review in the federal courts of appeals
  • § 2430.14 — Payment of award: to obtain payment, the prevailing applicant submits the FLRA's order to the Executive Director; payment is made from the FLRA's appropriations; delays in payment are subject to interest

  The FLRA's EAJA program is a niche but significant accountability mechanism for labor-management disputes in the federal sector. A federal agency (or the General Counsel on the agency's behalf) that files meritless ULP charges against a union faces the prospect of paying that union's legal fees if the agency cannot show its position was substantially justified. This financial consequence is designed to deter frivolous labor law enforcement — paralleling how EAJA deters frivolous enforcement in other agency contexts.

• 7 CFR Part 1, Subpart J — USDA Equal Access to Justice Act Procedures (24 sections — the USDA-specific EAJA framework governing fee applications in adversary adjudications before the Department of Agriculture; one of the most active agency EAJA programs given USDA's broad agricultural enforcement and program administration):

  • § 1.183 — Proceedings covered: Subpart J applies to (1) formal hearings required to follow 5 U.S.C. § 554 where USDA or another federal agency is represented by an attorney or agent; (2) appeals of contracting officer decisions before the Agriculture Board of Contract Appeals (41 U.S.C. §§ 605, 607); and (3) Program Fraud Civil Remedies Act hearings (31 U.S.C. ch. 38); the regulations also explicitly cover adversary adjudications under dozens of agricultural and resource laws (animal health, plant protection, food inspection, commodities, research programs, and land management); if USDA omits a proceeding type from its listed categories, an applicant may still argue coverage — the adjudicative officer resolves the question when reviewing the application; license modification, suspension, and revocation proceedings are covered even though license grants and renewals are not
  • § 1.184 — Eligibility: the financial thresholds mirror the statutory framework — individual net worth ≤$2 million; sole proprietor combined personal/business net worth ≤$7 million and ≤500 employees; 501(c)(3) organizations with ≤500 employees; agricultural cooperatives under the Agricultural Marketing Act with ≤500 employees; any other partnership, corporation, or organization with net worth ≤$7 million and ≤500 employees; net worth and employee count are measured at the date the proceeding began and must include affiliates; the excessive demand pathway also allows "small entities" under the Regulatory Flexibility Act (5 U.S.C. § 601) to apply even if they don't meet the net worth caps
  • § 1.185 — Standards: a prevailing applicant is entitled to fees unless USDA's position was substantially justified — the burden is on the agency; USDA's "position" encompasses both its litigation stance and the underlying agency action that triggered the proceeding; fees may also be reduced if the applicant prolonged the proceedings unnecessarily; the excessive demand trigger (for cases begun after March 29, 1996) awards fees when the agency's pre-hearing demand was substantially higher than the final decision and unreasonable under the circumstances
  • § 1.186 — Fee cap: attorney and agent fees are capped at $150 per hour (USDA adopted a higher cap than the baseline $125/hour, reflecting an agency rulemaking adjustment); expert witness fees may not exceed the highest rate USDA pays for expert services; reasonable out-of-pocket expenses are recoverable if normally billed separately
  • § 1.189 — Decision authority: USDA's Judicial Officer makes final decisions on fee applications under Subpart J; the National Appeals Division Director has final authority for cases under 7 CFR Part 11; the Board of Contract Appeals retains statutory authority for contract disputes under 41 U.S.C. § 607
  • § 1.190 — Application requirements: the application must identify the applicant and proceeding, state employee count and organizational form, demonstrate that the applicant prevailed (or that the demand was excessive), specify why USDA's position lacked substantial justification, state the amount claimed, and be signed under oath or penalty of perjury; eligibility must be established by net worth statement or an IRS 501(c)(3) ruling
  • § 1.193 — Filing deadline: the application must be filed within 30 days after USDA's final disposition of the underlying proceeding — a date that includes settlements and voluntary dismissals that are no longer appealable; if the government appeals the merits to court, the fee proceeding is stayed until the court's final ruling
  • § 1.195–1.196 — Response timeline: USDA's agency counsel has 30 days to file a written answer; counsel and the applicant may jointly extend that period by 30 days to pursue settlement; the applicant may file a reply within 15 days of the agency answer

  USDA adversary adjudications cover a substantial range of agricultural law enforcement — from PACA (Perishable Agricultural Commodities Act) enforcement against produce dealers, to Plant Protection Act violations, to Federal Grain Inspection Act disputes, to AMS marketing order enforcement, to USDA Farm Loan program appeals. The $150/hour fee cap applies uniformly; practitioners in agricultural enforcement cases often argue for special factor adjustments when the specific regulatory specialty limits available qualified counsel. The 30-day filing deadline is strictly enforced and begins running from the date the internal agency proceeding becomes final — not from any subsequent court action.

• 49 CFR Part 826 — NTSB Rules Implementing the Equal Access to Justice Act of 1980 (22 sections — the NTSB-specific EAJA framework for attorney fee awards in airman certificate proceedings, the most common NTSB adversary adjudication context):

  • § 826.1 — Coverage: applies to adversary adjudications before the NTSB in which the FAA is a party; an airman who prevails in a Part 821 certificate proceeding (suspension or revocation challenge under 49 U.S.C. §§ 44703, 44709) may apply for attorney fees unless the FAA's position was substantially justified
  • § 826.4 — Eligibility: individual applicant net worth ≤$2 million; entity applicant (including affiliates) net worth ≤$7 million and ≤500 employees; net worth is measured as of the date the proceeding was initiated; virtually all individual certificated pilots, flight engineers, and air traffic controllers qualify under the individual $2M cap
  • § 826.5 — Proceedings covered: Part 821 certificate actions where the FAA is represented as an adverse party; NTSB investigative hearings (Part 845) are excluded because they are not adversary adjudications
  • § 826.13 — Substantially justified standard: the FAA's position is substantially justified if it had a reasonable basis in both law and fact — losing a case doesn't automatically mean the position was unjustified; the NTSB ALJ or Board evaluates the FAA's position as of the time it took the position, not with hindsight; the burden falls on the FAA to show its position was substantially justified
  • § 826.32 — Fee cap: attorney and agent fees capped at $125/hour unless a special factor (limited availability of qualified aviation law practitioners, specialized expertise in aeronautical science or medicine) or CPI adjustment justifies a higher rate
  • § 826.204 — Filing deadline: the EAJA application must be filed within 30 days after the NTSB's final disposition of the underlying certificate proceeding; the deadline is jurisdictional — missing it forfeits the EAJA claim

  NTSB EAJA proceedings are relatively rare but practically significant: a pilot who successfully defeats an FAA emergency revocation may have incurred tens of thousands in legal fees and, if the FAA's action was poorly supported, can recover those fees through Part 826. The 30-day clock begins from the final NTSB order, not from any subsequent federal court review. Where the FAA appeals the NTSB's merits ruling to court, the EAJA proceeding is typically stayed pending the court's resolution.

• 34 CFR Part 21 — Department of Education Equal Access to Justice (26 sections — ED's EAJA implementing regulations governing fee awards in adversary adjudications before the Department, covering civil rights compliance proceedings, GEPA enforcement hearings, and Contract Disputes Act appeals):

  • § 21.1 — Coverage: EAJA applies to adversary adjudications before ED in which a party prevails; a prevailing party is entitled to fees unless the adjudicative officer, the Civil Rights Reviewing Authority (CRRA), or the Secretary on review finds the Department's position was substantially justified, or special circumstances make an award unjust; if a court reviews the underlying adjudication, fees may only be sought under 28 U.S.C. § 2412
  • § 21.10 — Adversary adjudications covered: Part 21 covers formal APA § 554 proceedings including: (a) Title VI civil rights compliance proceedings; (b) Age Discrimination Act compliance and enforcement; (c) Title IX compliance proceedings; (d) Section 504 of the Rehabilitation Act compliance proceedings; (e) withholding proceedings under the Hawkins-Stafford Act; and (f) Contract Disputes Act appeals — a broader coverage than most agency EAJA rules, reflecting ED's wide-ranging enforcement activities across civil rights, disability rights, and federal education funding
  • § 21.30 — Eligibility: mirrors the standard framework — individual net worth ≤$2 million; for-profit entities net worth ≤$7 million with ≤500 employees; 501(c)(3) nonprofits with ≤500 employees; grantee institutions (including school districts and colleges) that primarily operate under government grants may qualify if they meet the size and net worth thresholds; net worth and employee count are measured as of the date the proceeding was initiated
  • § 21.40 — Application deadline: the EAJA application must be filed within 30 days after the ED proceeding becomes final — meaning after the Secretary's or CRRA's final decision (or after settlement or dismissal that is no longer subject to internal review); if any party seeks judicial review of the underlying merits, the EAJA proceeding is stayed pending the court's final disposition
  • § 21.50 — Fee cap: attorney and agent fees are capped at $125/hour unless the adjudicative officer finds a special factor justifying a higher rate (typically limited availability of qualified counsel in the specific area, or specialized technical expertise); the excessive demand pathway applies when the Department's pre-hearing demand was substantially in excess of the final outcome and unreasonable under the circumstances — the prevailing-party requirement is relaxed for this prong

  ED's EAJA program is most practically relevant in civil rights compliance proceedings where a school district, college, or individual recipient successfully contests an ED Office for Civil Rights (OCR) enforcement action. Unlike most federal agencies, ED's EAJA coverage includes multiple civil rights statutes — Title VI, Title IX, Age Discrimination Act, and Section 504 — reflecting the breadth of OCR's enforcement mandate. A school district that prevails in a Title VI compliance hearing after ED's position was poorly supported may recover legal fees, which creates a financial accountability mechanism for overzealous ED enforcement.

• Each federal agency maintains its own EAJA implementing regulations for adjudications before that agency (e.g., SBA, EPA), governing the same basic framework — eligibility thresholds, fee caps, application procedures, response timelines, and decision authority

The Office of Government Ethics' EAJA implementation at 5 CFR Part 2610 illustrates the procedural mechanics that apply across agencies. Key provisions:

• § 2610.104 — Proceedings covered: OGE adversary adjudications under the Debt Collection Act (5 U.S.C. § 5514), Contract Disputes Act (41 U.S.C. § 607), and Ethics in Government Act (5 U.S.C. app. § 402(f)(2)); the agency's failure to designate a proceeding as an "adversary adjudication" doesn't bar an EAJA application — the characterization is itself an issue for the adjudicative officer to resolve
• § 2610.105 — Eligibility: individual net worth ≤$2 million; sole proprietor net worth ≤$7 million (combined personal and business) and ≤500 employees; 501(c)(3) nonprofits with ≤500 employees; cooperatives with ≤500 employees; any partnership, corporation, or organization with net worth ≤$7 million and ≤500 employees; net worth and employee count are aggregated with affiliates (entities under common majority ownership)
• § 2610.106(a) — Substantial justification standard: a prevailing applicant receives fees unless the agency's position — both the underlying action and the litigation stance — was substantially justified; the burden falls on the agency, not the applicant; a position isn't presumed unjustified just because the agency lost
• § 2610.106(b) — Excessive demand trigger: even without prevailing on the merits, a party recovers fees if the agency's demand was (1) substantially in excess of the decision and (2) unreasonable compared with the decision under the facts and circumstances; "demand" means the express pre-litigation demand, not a mere recitation of the maximum statutory penalty in the complaint
• § 2610.107 — Allowable fees: attorney and agent fees capped at $125/hour unless the agency adopts a higher rate by rulemaking (§ 2610.108 allows CPI or special-factor adjustments); expert witness fees capped at the highest rate the agency pays its own experts; fees are based on rates customarily charged even if services were provided free or at reduced cost to the applicant
• § 2610.201 — Application contents: identify the applicant and proceeding, state employee count and organization type, establish that the applicant prevailed (or that the demand was excessive), certify net worth (or attach IRS 501(c)(3) ruling), and state the amount claimed; signed under oath or penalty of perjury
• § 2610.202 — Net worth exhibit: filed with the application; may be submitted under seal if the applicant objects to public disclosure; the adjudicative officer resolves any confidentiality dispute under FOIA exemptions
• § 2610.203 — Fee documentation: itemized statement per professional, showing hours by individual, service descriptions, rates, and expenses; the adjudicative officer may require vouchers or logs to verify any claimed item
• § 2610.204 — Filing deadline: 30 days after the agency's final disposition of the proceeding (a final decision, settlement, or voluntary dismissal that is no longer appealable internally or to courts); where the government appeals the underlying merits to court, the EAJA proceeding is stayed until the court's final disposition

The 30-day filing deadline is jurisdictional in most circuits — missing it forfeits the claim entirely. The "substantially justified" standard is assessed as of the time the government took the position, not with hindsight; a position that had a reasonable legal basis when taken may still qualify as substantially justified even if it later proved incorrect. The excessive demand pathway (§ 2610.106(b)) is narrower but significant for enforcement contexts where an agency demands the statutory maximum penalty and the adjudicator awards far less — the party need not have "prevailed" to seek fees under that prong.

Pending Legislation

No standalone EAJA reform bills have been introduced in the 119th Congress. Attorney fee provisions appear in broader government accountability legislation — see Government Accountability and Administrative Procedure Act.

Recent Developments

EAJA fee litigation remains a significant area of federal practice, particularly in Social Security disability cases where the volume of appeals generates thousands of EAJA applications annually. Courts continue to refine the "substantially justified" standard and the methodology for cost-of-living adjustments to the $125/hour cap. The interaction between EAJA and contingency fee agreements (particularly in Social Security cases, where attorneys may work on contingency under 42 U.S.C. § 406(b)) has been the subject of ongoing litigation — the Supreme Court addressed the relationship in Gisbrecht v. Barnhart (2002). Proposals to increase the statutory fee cap or expand eligibility have been discussed but not enacted.