Decision on fee applications

The decision on an EAJA fee application must be prepared and issued in accordance with 2200.90.

• The regulation 2204.406 states that preparation and issuance must follow the procedures in 2200.90, so any timing, service, and form requirements found in 2200.90 apply to EAJA decisions.

The decision must include written findings and conclusions on the applicant's eligibility and prevailing-party status, and explain any difference between the amount requested and the amount awarded.

• See 2204.406(a) for the required contents of the decision.
• The decision should explicitly state whether the applicant is a prevailing party and provide reasons for any reduction from the requested fee.

Yes — the decision may include findings on whether the Secretary's position was substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust.

• These possible findings are specifically listed in 2204.406(a) and should be explained in the decision when applicable.

The decision must include written findings on the applicant's eligibility and explain why the agency's demand was or was not substantially in excess of the underlying decision and whether the Secretary's demand was unreasonable.

• This requirement appears in the decision provisions at 2204.406 (see the paragraph addressing allegedly excessive agency demands).
• The determination should be based on all facts and circumstances of the case.

An award may be reduced or denied if the party engaged in conduct that unduly and unreasonably protracted the final resolution of the matter during the course of the proceedings.

• See 2204.406(c) for the rule allowing reduction or denial for protraction.
• The judge or Commission should explain any such finding in the written decision.

Awards should be based on rates customarily charged by persons engaged in the business of acting as attorneys, agents, and expert witnesses, even if those services were provided free or at a reduced rate to the applicant.

• The governing text is 2204.406(c)(1).
• If the attorney is an employee of the applicant, the decision should consider the fully allocated cost of those services.

Attorney hourly fees are capped by the statutory maximum in 5 U.S.C. 504(b)(1)(A), and an applicant may request an upward adjustment for inflation, documented in the application under 2204.303; the judge will not exceed the statutory cap except as adjusted for inflation when properly requested.

• See 2204.406(c)(2) for the statutory cap and the allowance for inflation adjustments.
• See 2204.303 for documentation requirements when requesting an inflation adjustment.

Reasonableness is determined by considering the practitioner's customary fee (or fully allocated cost), the prevailing local rate, the time actually spent, the time reasonably spent given the case difficulty, and any other factors bearing on value.

• The factors are listed in 2204.406(c)(3) and its subparts: see 2204.406(c)(3)(i), 2204.406(c)(3)(ii), 2204.406(c)(3)(iii), 2204.406(c)(3)(iv), and 2204.406(c)(3)(v).
• Applicants should provide documentation supporting each relevant factor (e.g., invoices, time records, local rate sources).

Yes — the reasonable cost of studies, analyses, engineering reports, tests, projects, or similar matters prepared for the applicant may be awarded, provided the charge does not exceed the prevailing rate for similar services and the work was necessary to prepare the applicant's case.

• See 2204.406(c)(4) for the rule.
• Applicants should document necessity and provide comparable market rates to establish reasonableness.

Yes — reasonable expenses may be awarded as a separate item if the attorney, agent, or witness ordinarily charges clients separately for such expenses.

• This allowance is stated in 2204.406(c).
• Provide expense receipts or customary billing practices to support the request.

The judge presiding over the EAJA proceeding or the Review Commission on review makes the award decision.

• That authority is confirmed in 2204.406(c).
• The presiding judge must include written findings and conclusions in the decision as required by the regulation.

The decision must include an explanation of the reasons for any difference between the amount requested and the amount awarded.

• This requirement is explicit in 2204.406(a).
• The explanation should tie reductions to specific findings (e.g., hours reduced, hourly rate capped, protraction findings, or lack of documentation).

An applicant should include documentation that supports the requested inflation adjustment, such as a calculation of the increase since the statute's last update and the data sources used, as required by 2204.303.

• The judge will apply 2204.406(c)(2) when considering whether to apply an inflation adjustment to the statutory cap.
• Include clear math and citations (e.g., CPI or other accepted indices) so the decisionmaker can verify the requested increase.

Yes — awards to compensate an expert witness shall not exceed the highest rate at which the Secretary pays expert witnesses.

• This limitation is in 2204.406(c)(2).
• Applicants should provide evidence of customary expert rates and note the Secretary's highest expert pay rate when asking for rates near that limit.

The judge will compare the time actually spent to the time reasonably spent in light of the difficulty or complexity of the issues and may reduce fees for time that is excessive or not reasonably necessary.

• See 2204.406(c)(3)(iii) and 2204.406(c)(3)(iv).
• Provide clear time records and explanations of tasks to justify claimed hours.

If the attorney is in private practice, the decision should consider the attorney's customary fee for similar services; if the attorney is an employee of the applicant, the decision should consider the fully allocated cost of the services.

• See 2204.406(c)(3)(i).
• Applicants should submit either customary private rates or fully allocated internal cost data to support the claimed amount.

No — OSHA posts major settlement agreements on its website, but the vast majority of settlement agreements are not put on the public site; however, they remain subject to disclosure under FOIA and employers cannot guarantee confidentiality just because an agreement exists.

• This explanation comes from OSHA's interpretation in the letter at https://www.osha.gov/laws-regs/standardinterpretations/2004-09-27-0.
• The LOI also notes that settlement agreements are public information and that posting practices vary; employers should assume FOIA disclosure is possible and consult counsel if confidentiality is critical.

The decision must explain whether the agency's demand was substantially in excess of the underlying decision and whether the Secretary's demand was unreasonable, basing that determination on all facts and circumstances of the case.

• See the decision content requirements related to excessive agency demand at 2204.406 (discussion of such applications).
• The judge should analyze the underlying decision, the agency's demand, and contextual facts when reaching this conclusion.

Yes — the judge must include written findings and conclusions on eligibility and the reasons for denying an award, just as the regulation requires written findings for awards that are granted.

• See 2204.406(a) and the general decision requirements at 2204.406.
• The written findings should clearly identify the factual and legal bases for denial (e.g., not a prevailing party, substantial justification, protraction, or special circumstances making an award unjust).

A judge may consider 'other factors' bearing on value such as unique expertise required, results obtained, whether the work avoided duplication, unusual travel or logistical burdens, and market conditions affecting availability of counsel.

• The catch-all is found in 2204.406(c)(3)(v).
• Applicants should document any special circumstances they believe increase the value of the services.