How Are EAJA Fees Calculated for a CAVC Case?

EAJA fees for a CAVC case are calculated as the hours reasonably spent on the case multiplied by an hourly rate capped at $125, which the Court raises for the increase in the cost of living. The Court measures that increase with the Consumer Price Index for All Urban Consumers (CPI-U) for the area where the representative performed the work. The application is due within 30 days after the judgment becomes final, under 28 U.S.C. § 2412(d) and CAVC Rule 39.

Before any arithmetic, the appellant must be eligible, and the deadline cannot be extended.

This guide is general information for representatives, not legal advice about any particular case.

Who is eligible

Under 28 U.S.C. § 2412(d)(1)(A), the court shall award fees and other expenses to a prevailing party other than the United States unless the position of the United States was substantially justified or special circumstances make an award unjust. Four things have to line up.

1. 1Prevailing party. A remand counts only if it was predicated on administrative error. When the remand came from a joint motion, the Court looks for an explicit or implicit admission of error in the motion, or a recognition of error in the Court's order granting it. Sumner v. Principi, 15 Vet. App. 256, 265 (2001) (en banc), aff'd sub nom. Vaughn v. Principi, 336 F.3d 1351 (Fed. Cir. 2003). Read the joint motion's wording with this in mind before you sign it.
2. 2Position not substantially justified. The application must allege that the position of the United States was not substantially justified (§ 2412(d)(1)(B)). The position includes the agency action the case is about (§ 2412(d)(2)(D)), and whether it was substantially justified is decided on the record made in the case. The Supreme Court described the statute as authorizing fees absent a showing by the Government that its position was substantially justified. Scarborough v. Principi, 541 U.S. 401 (2004).
3. 3Net worth. For an individual, net worth did not exceed $2,000,000 at the time the civil action was filed (§ 2412(d)(2)(B)).
4. 4No special circumstances that make an award unjust (§ 2412(d)(1)(A)).

The rate: $125 plus the cost of living

Attorney fees may not exceed $125 per hour unless the court determines that an increase in the cost of living or a special factor justifies a higher fee (§ 2412(d)(2)(A)). The $125 maximum was enacted on March 29, 1996 and applies to civil actions commenced on or after that date (Mannino v. West, 12 Vet. App. 242, 243 (1999)). The CAVC adjusts it as follows.

• Which index. The Court compares the CPI-U for all items for the locality or region where the legal services were performed when the statutory maximum was established with the CPI-U for the time the services were provided. If the later figure is higher, the percentage difference raises the hourly rate. Speigner v. Wilkie, 31 Vet. App. 41 (2019).
• Which place. The CPI-U is selected by where the services were performed. Elcyzyn v. Brown, 7 Vet. App. 170, 181 (1994). A local CPI-U is used when one exists; otherwise the regional CPI-U applies. Mannino v. West, 12 Vet. App. 242, 243 (1999). For a teleworking attorney who worked on the case from home, the CPI-U corresponds to the attorney's residence (Speigner).
• More than one office. When an attorney worked from more than one office, the Federal Circuit apportioned the time among the offices and applied each office's CPI-U to the work done there. Parrott v. Shulkin, 851 F.3d 1242 (Fed. Cir. 2017).

The arithmetic

Adjusted hourly rate = $125 × (CPI-U for your area at the date you use ÷ CPI-U for your area in March 1996, when the $125 maximum was established).

As an illustration only, with made-up index values rather than real ones: if the index was 150.0 in March 1996 and 300.0 at the date you use, the adjusted rate is $125 × 300.0 ÷ 150.0 = $250 per hour. Take the actual index values from the Bureau of Labor Statistics for your area, and state in the application which area, which index series, and which date you used.

EAJA applications at the Court commonly apply a single date for the whole case, such as a midpoint of the litigation, rather than a different rate for each month. Whatever date you choose, explain it.

Then multiply the rate by the hours reasonably spent, itemized by date and task. The application must include the fees and expenses claimed for preparing the application itself (Rule 39(a)).

A free EAJA fee calculator runs this arithmetic from the index values and hours you enter. Check every input against the source.

The deadline

A party seeking fees must submit an application within 30 days of final judgment (§ 2412(d)(1)(B)). A final judgment is one that is final and not appealable (§ 2412(d)(2)(G)). Under CAVC Rule 39(a), the application is due not later than 30 days after the Court's judgment becomes final, and under Rule 41(a), mandate is when the judgment becomes final.

• No extensions. Rule 26(b) bars the Court from extending the time for an attorney fee application.
• No mail days. The 5 extra days for service by mail do not apply to Rule 39(a) (Rule 26(c)(3)).
• A curable omission. A timely application can be amended after the 30 days run to add the missing allegation that the Government's position was not substantially justified (Scarborough v. Principi, 541 U.S. 401 (2004)). Do not rely on that: include the allegation the first time.

A free CAVC deadline calculator can count the 30 days from the mandate date. Confirm the mandate date on the docket.

What the application must contain

Under § 2412(d)(1)(B), the application shows that the party is a prevailing party and eligible, states the amount sought, and includes an itemized statement from each attorney or expert of the actual time spent and the rate used. CAVC Rule 39 adds:

• Length: no more than 20 pages, not counting the appendix needed to meet the statute's content requirements (Rule 39(e)).
• More than one representative: a single consolidated, chronological billing statement, signed by the lead representative with a certification that it is accurate and that excessive or redundant time was eliminated (Rule 39(f)).
• Non-attorney practitioners: a statement of education and experience representing claimants before the Court, and a justification for the hourly fee sought (Rule 39(g)).
• The Secretary's response is due within 30 days after the application is filed, after the parties consult in good faith if the amount is disputed, and your reply within 30 days after service of the response (Rule 39(a)(1)-(2)).
• Defending the application: a supplemental application for fees spent defending a granted application is due within 20 days after the Court's action granting it (Rule 39(b)).

Frequently asked questions

What is the EAJA hourly rate at the CAVC?

The statute caps attorney fees at $125 per hour unless an increase in the cost of living or a special factor justifies more (28 U.S.C. § 2412(d)(2)(A)). The CAVC adjusts the cap by the change in the CPI-U for the area where the work was performed, measured from when the $125 maximum was established (Speigner v. Wilkie, 31 Vet. App. 41 (2019)).

Which CPI-U does the CAVC use for EAJA fees?

The CPI-U for all items for the locality where the services were performed, or the regional CPI-U when no local one exists (Elcyzyn v. Brown, 7 Vet. App. 170, 181 (1994); Mannino v. West, 12 Vet. App. 242, 243 (1999)). For an attorney teleworking from home, it is the CPI-U for the attorney's residence.

When is an EAJA application due at the CAVC?

Within 30 days after the Court's judgment becomes final (28 U.S.C. § 2412(d)(1)(B); Rule 39(a)). Under Rule 41(a), mandate is when the judgment becomes final, and Rule 26(b) bars extending the time for a fee application.

Does a joint motion for remand make the veteran a prevailing party?

It does when the remand was predicated on administrative error: the joint motion contains an explicit or implicit admission of error, or the Court's order recognizes error (Sumner v. Principi, 15 Vet. App. 256, 265 (2001) (en banc)).

What if the EAJA application left out the substantial justification allegation?

The Supreme Court held that a timely application may be amended after the 30-day period to cure the omission (Scarborough v. Principi, 541 U.S. 401 (2004)). Including it from the start avoids the dispute.

Can a non-attorney practitioner get EAJA fees at the CAVC?

Rule 39(g) contemplates it: a non-attorney practitioner's application must include a statement of education and experience representing claimants before the Court and a justification for the hourly fee sought.