Free · for veterans' lawyers · 28 U.S.C. § 2412(d) · CAVC Rule 39
How do I calculate an EAJA fee at the CAVC?
An EAJA fee at the Court of Appeals for Veterans Claims is the hours reasonably spent times an hourly rate capped at $125, unless the Court finds that an increase in the cost of living or a special factor justifies more (28 U.S.C. § 2412(d)(2)(A)). In practice, attorneys adjust the $125 by the Consumer Price Index (CPI-U) from March 1996 to a midpoint of the litigation: $125 × CPI-U at the midpoint ÷ CPI-U for March 1996. The application is due within 30 days after the judgment becomes final, which at the CAVC is mandate (28 U.S.C. § 2412(d)(1)(B); Rule 39(a)).
- $125 × CPI-U adjustment
- Paralegal & practitioner lines
- 30 days after mandate
- Not legal advice
Fee estimate
Look up CPI-U values on the Bureau of Labor Statistics site: the U.S. city average series (CUUR0000SA0), or the area index for where the work was done. This tool does not supply a CPI value; use the one you will cite.
Enter attorney hours and both CPI-U values to see the estimate.
Application deadline
Enter the judgment date, or the mandate date from the docket.
How it works
The math, and what the award turns on
- Rate. $125 × (CPI-U for your midpoint month ÷ CPI-U for March 1996), rounded to the cent. Look up both values in the same BLS CPI-U series; this tool supplies none.
- Fee. Each line is hours × rate, rounded to the cent: attorney time at the adjusted rate, paralegal and non-attorney practitioner time at the rate you justify.
- Total. Fees plus expenses, such as the filing fee.
- Deadline. 30 days after mandate, counted under Rule 26(a); no extension and no mailing days (Rules 26(b), 26(c)(3)).
EAJA checklist
- The veteran is a prevailing party. The Court decides whether a remand or reversal qualifies.28 U.S.C. § 2412(d)(1)(A)
- An individual's net worth did not exceed $2,000,000 when the appeal was filed.28 U.S.C. § 2412(d)(2)(B)
- The application alleges the Secretary's position was not substantially justified.28 U.S.C. § 2412(d)(1)(A)–(B)
- An itemized statement of the actual time spent and the rates used, including time spent on the application itself.28 U.S.C. § 2412(d)(1)(B); Rule 39(a)
- Filed within 30 days after the judgment becomes final (mandate). The Court cannot extend it.28 U.S.C. § 2412(d)(1)(B); Rules 26(b), 39(a), 41(a)
- Attorney time above $125/hour only for a cost-of-living increase or a special factor; non-attorney practitioners justify their rate and experience.28 U.S.C. § 2412(d)(2)(A); Rule 39(g)
- More than one representative: one consolidated, chronological billing statement signed by the lead representative.Rule 39(f)
Need the rest of the Court calendar? The CAVC deadline calculator covers the record, briefs, the Rule 33 conference, and the mandate. Fees for work before VA are a different system: see the VA fee calculator (38 CFR 14.636). The full walk-through is in the guide how EAJA fees are calculated for a CAVC case.
Commander for Advocates keeps each client's deadlines, fee agreements and fee ledger in one place. See how it works.
Questions
Common questions about EAJA fees at the CAVC
- What is the EAJA hourly rate at the CAVC?
- The statute caps attorney fees at $125 an hour unless the Court determines that an increase in the cost of living or a special factor justifies a higher fee (28 U.S.C. § 2412(d)(2)(A)). The Court allows a cost-of-living increase measured by the CPI-U (Elcyzyn v. Brown, 7 Vet. App. 170 (1994)), and practitioners commonly use the CPI-U for the area where the work was performed (Mannino v. West, 12 Vet. App. 242 (1999)). With illustrative index values of 160.0 for March 1996 and 320.0 at the midpoint, the rate would be $250.00 an hour.
- Which CPI month do I use?
- Elcyzyn directs a single midpoint of the litigation for measuring the increase since March 1996; a common choice is the month the principal brief was filed. Use the same CPI-U series for both months, and cite the series and values in the application.
- When is an EAJA application due at the CAVC?
- Not later than 30 days after the Court's judgment becomes final (28 U.S.C. § 2412(d)(1)(B); Rule 39(a)). Judgment becomes final at mandate (Rule 41(a)), which is generally 60 days after judgment, or 60 days after an order granting a joint motion for remand (Rule 41(b)–(c)). The time is set by statute and the Court cannot extend it (Rule 26(b)). Check the mandate entry on the docket.
- Who is eligible for EAJA fees?
- A prevailing party other than the United States, whose net worth as an individual did not exceed $2,000,000 when the appeal was filed, unless the Court finds the Secretary's position was substantially justified or special circumstances make an award unjust (28 U.S.C. § 2412(d)(1)(A), (d)(2)(B)). The application must allege that the position of the United States was not substantially justified (§ 2412(d)(1)(B)).
- Can paralegal or non-attorney practitioner time be included?
- Yes. Enter it at the rate you will justify. A non-attorney practitioner's application must state the practitioner's education and experience before the Court and justify the hourly fee sought (Rule 39(g)). With more than one representative, Rule 39(f) requires one consolidated, chronological billing statement signed by the lead representative.
- Can I recover fees for preparing the EAJA application?
- The Rule 39(a) application includes the fees and expenses claimed for preparing that application, and a supplemental application for defending it may be filed within 20 days after the Court grants the application in whole or in part (Rule 39(b)).
An arithmetic aid, not legal advice, and no promise of an award. The Court decides prevailing-party status, substantial justification, and the reasonable hours and rate. Verify against the current text of 28 U.S.C. § 2412(d) and the Court's Rules.
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