hi everyone my name is maura black i'm a managing attorney at chisholm chisholm and kilpatrick and
welcome to cck's live under five today we're going to be discussing the equal access to justice act
and how that impacts va claims so as an overview the equal access to justice act which i will refer
to as eja 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 and a primary feature of the eja 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 so 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
you know the individuals small businesses or public interest groups can have their
attorneys earn egypt fees instead of having to pay them out of pocket for their work the eja act
covers the reimbursement for reasonable fees and expenses so that's generally speaking the standard
and there are four elements that must be met in order for an attorney to collect fees under
the eja first the litigant has to show that they were the prevailing party which means that they in
our cases the veteran was successful at court against the government so in our cases the va
again the egypt applies to other types of litigation but i think for our purposes and
those of you watching who are specifically in the va benefits world it helps to kind of think that
the person who's applying for the egypt 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 so
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
and a person is eligible under eja if their net worth is less than two million dollars so if your
net worth exceeds two million dollars then the government is not going to pay your attorney
for you so that's just something to keep in mind usually not a threshold that's super problematic
but but definitely there is a cap on the net worth of the person who can be benefited by the egypt
the third element is that there needs to be an allegation that the government's position was
not substantially justified in the litigation and the last thing is that you need to produce
an itemized statement of the fees sought so usually attorneys bill on an hourly basis
and keep track of the time that they spend on a case to submit with their ija application
eja allows veterans specifically to be represented by an attorney at the u.s court of appeals for
veterans claims or the cavc again without having to pay attorney's fees which is the beauty of eja
veterans who are not satisfied with the 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 cabc and a win at the cavc in other words
if the veteran is successful typically means that the cavc will remand their case back to the vote
the board of veterans appeals and the purpose of that remand 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 so 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 veteran's claim it
needs to go back to the board for re-adjudication so that the board can properly apply the law
so the effect is that this gives veterans another chance at getting their benefits at the board
attorneys representing veterans at the cavc only receive egypt fees paid by the government if
they're successful in winning the veterans case that kind of goes to the first element that i
discussed earlier the prevailing party element and if attorneys are not successful they can't
earn egypt 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 uh please
feel free to take a look at other materials we have on our website or our youtube channel
about eja or the equal access to justice act and thank you so much for tuning in today we
you