Maura Black: Hi, everyone. My name is Maura Black. I’m a managing attorney at Chisholm Chisholm & Kilpatrick. Welcome to CCK’s Live Under 5:00. Today, we’re going to be discussing the Equal Access to Justice Act and how that impacts VA claims.
As an overview, the Equal Access to Justice Act, which I will refer to as EAJA because it’s a mouthful, is a federal law that was enacted in 1980 that allows individuals, small businesses, and public interest groups as well to obtain representation in cases against the federal government.
A primary feature of the EAJA that’s relevant to today’s discussion is that the litigants who do pursue cases against the federal government are not expected to pay their own attorney’s fees if they’re successful in those cases.
How it works is if the group or individual is successful in their case, the attorneys that represent them will be paid directly by the federal government for the work performed on the case. So, the litigants themselves, individuals, small businesses, or public interest groups can have their attorneys earn EAJA fees instead of having to pay them out of pocket for their work.
The EAJA act covers the reimbursem*nt for reasonable fees and expenses. So, that’s generally speaking the standard. There are four elements that must be met in order for an attorney to collect fees under the EAJA. First, the litigant has to show that they were the prevailing party, which means that they, in our case is the veteran, was successful at court against the government, so, in our case is the VA.
The EAJA applies to other types litigation. For our purposes and those of you watching who are specifically in the VA benefits world, it helps to think that the person who is applying for the EAJA fees is the attorney that represents the veteran and the government that they are in a case against is the VA or the government agency.
First element, again, you have to show that you’re the prevailing party in the case. The second element is that you have to show that you’re generally eligible for the award monetarily. A person is eligible under EAJA if their net worth is less than $2 million. So, if your net worth exceeds two million dollars, the government is not going to pay your attorney for you. That’s just something to keep in mind, usually not a threshold that’s super problematic but definitely, there is a cap on the net worth of the person who can be benefited by the EAJA.
The third element is that there needs to be an allegation that the government’s position was not substantially justified in the litigation. The last thing is that you need to produce an itemized statement of the fees sought. Usually, attorneys bill on an hourly basis and keep track of the time that they spend on a case to submit with their EAJA application.
EAJA allows veterans specifically to be represented by an attorney at the U.S. Court of Appeals for Veterans Claims, or the CAVC, without having to pay attorneys fees which is the beauty of EAJA. Veterans who are not satisfied with a decision that’s been issued by the Board of Veterans’ Appeals might find themselves at Court litigating against the VA because they have a right to appeal that adverse Board of Veterans’ Appeals decision to the CAVC.
And a win at the CAVC, in other words, if the veteran is successful, typically means that the CAVC will remand the case back to the Board of Veterans’ Appeals. The purpose of that reman will typically be for the Board to revisit the case and correct an error of law that was made that was the basis of the litigation in court. And then the Board will have to issue a new decision.
You’re not going to often see the Court making a yes or no decision on whether veterans are outright entitled to benefits. Those things do happen, but they’re very rare. The more common result is that the Court says, “Since the Board made a legal error or an obvious error of fact in adjudicating the veterans claim, it needs to go back to the Board for a re-adjudication so that the Board can properly apply the law.” The effect is that this gives veterans another chance at getting their benefits at the Board.
Attorneys representing veterans at the CAVC only receive EAJA fees paid by the government if they’re successful in winning the veteran’s case. That goes to the first element that I discussed earlier, the prevailing party element. If attorneys are not successful, they can’t earn EAJA fees because it would be unfair to make the government pay a litigant who was not ultimately successful in their cause of action.
I hope that this was helpful. Please feel free to take a look at other materials we have on our website or our YouTube channel about EAJA or the Equal Access to Justice Act. Thank you so much for tuning in today. We hope to see you again next time.
