Frequently Asked Questions (FAQ)
What is the Time Limit to file a federal appeal?
I am sure you are already aware, but as a reminder, there is only 60-days from the date of the Appeals Council decision to file an Appeal with the Federal District Court. This time goes by fast, especially when time is needed to review the case file, get the client’s intake packet back, and to perform necessary investigation. Although there are rules that allow a claimant to make a request for a good cause extension of time from the Appeals Council (to file the Federal action), it is preferable to file the case within the allotted 60 day time limit.
Although it is preferable to file the lawsuit within the 60-day time limit, the reality is most cases will need more time. In order to request more time, you, as the referring attorney or advocate, must file an extension request with Appeals Council. A sample letter motion is below.
Please file the extension request within the 60-day time limit.
We may be able to file a motion for “equitable tolling” with the federal court if the Appeals Council delays on granting the extension. Basically, what this means is we would be asking the Federal Court to grant the extension of time. However, it is best to file the extension request with Appeals Council within the 60-days for us to be able to do this.
Please get proof of filing. Either fax confirmation printouts and/or proof of filing on the ERE. The sample letter has the fax numbers.
How can referring potential federal appeals enhance your practice?
As an attorney, or authorized representative, referring your potential federal cases can enhance your practice and generate more revenue for you. This is because potential federal cases can still be good cases that are just taking a little longer to resolve. If we win a remand, you get to still keep your client (other firms do not operate this way, and some try to keep the entire case even upon remand, but we understand it is important for everyone to generate fees and for your clients to keep continuity of representation with you). If you win, you keep your 406A fees. Moreover, if you win, and if you have a two-tiered fee agreement, you may be able to file a fee petition requesting a fee that is higher than the typical $7,200 fee cap. So, you can generate more fees for your practice. This also is a huge benefit for your clients who may still be able to salvage their case even though an ALJ denied the claim. It is also widely known that cases returned on remand have a significantly higher chance of success than at any other stage of the case. And, of course, we are all in the business of competently and zealously helping our disabled clients to the best of our ability through all stages of litigation.
Sure, referring the case to us helps us, which we appreciate! But, it also can add substantially more revenue to your firm after remand. And, it benefits your client as well if we can help them through this process so you can eventually get the money they so desperately need.
Do we handle cases in all states?
Yes, we handle cases in all 50 states!
What is the first thing you need to do when referring a case?
Make sure you file an extension request with Appeals Counsel. A sample can be found on our website under the “time limits” tab. For more information on extensions of time and “equitable tolling”, see the questions and answers below. But, please promptly file an extension request within 60-days of the Appeals Council denial. This is important if you think there is a viable federal appeal. Once we are retained by the client, we will also file our own extension request. This way we can stay in the loop and get the extension order once it is granted. However, sometimes clients delay in returning the intake packet, so it’s best if you also file an extension request first to preserve the filing of the federal appeal.
Does the referring attorney act as a “sponsor” or “local counsel” for the federal case?
In most jurisdictions, the attorneys we work with will act as local counsel and/or sponsor for our pro hac vice admission. In some jurisdictions we can get pro hac vice without the need for a sponsor, but most locations require a sponsor and/or local counsel. If a sponsor or local counsel is necessary, we will ask the referring attorney to assist. In states or under circumstances where pro hac vice is not practical, we will act as a brief writer to the referring firm. This allows us to cover federal appeals in all 50 states.
What are the responsibilities of local counsel?
That varies by jurisdiction, but generally local counsel must sign all filed documents. Local counsel may also have to file court documents on ECF.
What work do we handle if we are referred a case?
Generally, we handle the preparation of all paperwork, including the in forma pauperis, the pro hac vice motion, the summonses, the civil cover sheet, the complaint, motions, and briefs. Pretty much everything. In most cases, you will need to prepare a request for an extension of time to file a federal action with the Appeals Council (either through ERE, by fax, or both). We have a sample on our website (see the “time limits” tab).
Are oral arguments required?
Most of the time, no. But, occasionally, yes.
How are we paid?
We receive the EAJA fees. We will also ask for fees out of the legal fees withheld from past-due benefits at the administrative level (406B fees). However, the goal is that your firm is paid first out of the fees withheld at the administrative level (your 406A fees). Generally, we receive a cut of the administrative fees ONLY IF there’s anything left after your firm is awarded a fee (the 406B fees). And, in some cases, your firm will have exhausted all administrative fees after the fee petition is finalized. If you are awarded all available fees at the administrative level, then we are paid only the EAJA fees. We don’t interfere with payment of your firm’s fees.
How are we paid if we act as a brief writer instead of pro hac vice?
Pretty much the same way. We still pursue EAJA and 406B fees. The main difference is that you will have to sign and file documents if we are not pro hac vice, since we cannot “appear” before the court. However, the law permits payment of EAJA fees to be made to a brief writer even if the brief writer does not appear on the record with the Court. We have a co-counsel agreement we use between our firm and the referring firm when we act as a brief writer since we do not generally have a retainer agreement directly with the client in this circumstance.
Why would a firm use us as a brief writer as opposed to seeking pro hac vice admission?
In most cases we prefer pro hac vice admission, since we can then often sign and file documents, and monitor the ECF activity. However, sometimes pro hac vice admission is impractical – usually because of the cost of the pro hac vice application, but also sometimes for other reasons. For a list of jurisdictions and their nuances, please visit our jurisdictions page.
Do we keep the client if we obtain a remand?
We only handle the federal case for referred clients. If we win a remand, the client remains yours. We do not interfere with your attorney-client relationship.
How long does it take for us to make a decision on a referral?
Generally, it takes about 1-2 days for us to make a decision on a case that’s sent to us for review. From time to time it takes longer. But, as a general rule, it most often takes 1-2 days.
When reviewing a case that is referred, do we check for federal debts owed by the client?
Yes, we investigate and check for federal debts that the client owes through the Treasury Offset Program (“TOP”). We check the federal debts owed because in most jurisdictions legal fees awarded under EAJA can be seized to reduce and offset the debts the client owes. That means that if the client owes federal debts we could wind up working on the case and having all or part of our legal fees garnished. To avoid this, we will investigate the debts owed by the client.
As part of our intake packet the client is asked about debt owed. We also have an authorization for the client to sign, which we send to the Treasury Offset Program so we can find out if there’s reported debt to the TOP. The TOP will not tell us the amount owed. For that reason, we always assume the worst case scenario and generally don’t accept cases with any reported debt.
In the event that we learn of a collectible debt after we started the civil action, which sometimes happens when the client does not disclose debts to us on his/her questionnaire, or when a TOP debt becomes reported through TOP after the civil action was started, we will move to be relieved as counsel. We do not proceed on cases with any debt collectible through the TOP, no matter how large or small the client believes the debt may be.
Federal cases are very time consuming. They take 30-40 hours minimum to prepare. We have cases that regularly take 50-60 hours, and have invested as much as 125 hours into an appeal. We take appeals seriously and we believe we prepare quality briefs. It is important to make sure we invest our time into cases that are both meritorious and also where there is an opportunity to earn a full EAJA fee if we are ultimately successful.
What happens if getting the civil action/appeal ready to file takes longer than the 60 day statute of limitations?
In most cases, you will need to prepare and file a request for an extension of time to file a federal action. That request must be filed promptly with the Appeals Council (either through ERE, by fax, or both). We have a sample on our website (under the “time limits” tab). If a request for an extension of time is filed with AC within the 60 days time period, the extension request is usually routinely granted. However, if the extension request is filed, but AC is taking an exorbitant amount of time to decide the request, we may be able to file a motion for “equitable tolling” with the federal district court.
What happens if the 60-day time limit expired, but the client still wants to pursue a federal appeal?
It may be possible to still get an extension of time to file an appeal with federal Court. However, the letter motion to AC for the extension should demonstrate good cause as to why the extension request was not filed within the 60-day time limit. The AC may still grant the extension request even if it is filed late. However, if the 60-day time limit expired, filing the civil action and an “equitable tolling” motion with the federal court may not be advisable. Generally, the federal court wants to see that the extension request was filed timely with AC, even if it wasn’t yet decided. So, if it’s filed late, you may be stuck waiting until AC makes the decision and you may effectively lose the option to file the civil action/appeal promptly, along with an “equitable tolling” motion. Practically, what this means, is that you may still get the extension request granted by AC, but you may have to wait longer to get the case initiated because you can’t file more quickly and ask for relief from the federal court. So, if AC is taking an exorbitant time in getting to the extension request, you’re stuck waiting until they are good and ready to get to it.
What is an “equitable tolling” motion?
Essentially, this is a request for an extension of time filed with the federal court, instead of with AC. However, the extension request must ALSO be filed with AC within the 60 day statute of limitations for federal court to truly entertain the equitable tolling motion.
Can you file a new initial application while the federal case is pending?
You may wish to file a new initial application for the client while the federal appeal is pending. There is nothing preventing a client from pursuing a new case while there is a federal claim also pending.
Where are we admitted to practice?
Please see our jurisdictions page for more information on jurisdictions we can practice in.
Do we handle Appeals Council appeals?
No, not at this time. If that changes, we will notify our referral partners as well as post a notice on this website. We only accept referrals of Federal District Court appeals.
Do we handle Appeals to the Circuit Courts?
Yes, sometimes. But, only for cases we handled at the District Court level and feel that further appeal is justified. We do not handle direct referrals of Circuit Court appeals where the Federal District Court appeal has already been completed. Circuit Court cases are particularly hard to win and we decided that it is better to only handle such claims where we already feel fully invested in the case and believe additional appeal is particularly warranted.