James L. Burgess, NOSSCR Sustaining Member

The Commissioner’s position was simple: a claimant’s attorney has no business drafting an opening brief before the agency files the answer. In Maerz v. Bisignano, 818 F. Supp. 3d 1256 (D. Colo. 2026), District Judge Robert Blackburn firmly rejected that argument.

Background

The ALJ found the claimant disabled at step three under three separate mental-impairment listings. But the ALJ then found she’d returned to SGA in 2023 based on a self-employment earnings record of just over $20,000. The claimant testified she hadn’t worked at all that year; she’d prepared her own taxes and mistakenly reported public assistance as income. The ALJ didn’t credit that explanation, and the Appeals Council never exhibited the tax returns and third-party benefit letters she later submitted to corroborate it.

Rather than wait for the agency to file the certified administrative record and litigate the issue, we reviewed the ERE, researched what qualifies as SGA, and drafted an opening brief before the Commissioner’s answer deadline. We then emailed OGC to flag the error and invite an answer-stage remand. OGC agreed and filed an unopposed motion to remand the same day the CAR was filed, just 2.5 months after the complaint.

The Commissioner’s Objection

At the EAJA stage, OGC didn’t dispute that we were the prevailing party or that the Commissioner’s position was not substantially justified. They objected instead to 18 of the 20.8 hours billed, all of which were spent reviewing the record, researching, and drafting the opening brief two months before OGC filed the CAR. OGC’s theory was that no paying client would authorize speculative brief-writing before the responsive pleading deadline, since the case might have gone a different way via a Rule 12 motion, a sentence-six remand, or affirmative defenses. OGC asked the court to cut the EAJA award to just over $770, i.e., 2.8 hours.

The Court’s Ruling

Judge Blackburn found “no authority” for the proposition that early preparation is per se unreasonable and declined to create one. Several holdings are worth flagging for anyone litigating a similar objection:

• Diligence isn’t punished just because it helps the agency. The court reasoned that our early work “absolve[d] the Commissioner of the burden of filing a response,” which is the opposite of a reason to deny fees.
• The CAR filing date is arbitrary. The order specifically credits the reality of claimants’ practice: solo and small firms juggle many appeals at once, and it would be unfair to require an attorney to “sit on his hands” until the Commissioner files the record before beginning substantive work.
• 20 to 40 hours remain the presumptive range in the Tenth Circuit for a Social Security appeal, and the 20.8 hours here fell within it even though the case never reached full briefing.
• Time spent arguing a fee petition is itself compensable. Citing Supreme Court and Tenth Circuit precedent, the court recognized that “EAJA fees are paid from agency funds to penalize the Commissioner for taking an unjustified legal position,” and that purpose “continues to function when fees are awarded for having litigated fee issues.”

In the end, the court awarded the full amount originally requested, plus another $1,500 for time we spent researching and drafting the EAJA reply.

Why This Matters

This order helps on two fronts. First, it directly rebuts an argument that, if it gained traction, would discourage exactly the kind of early advocacy that gets cases resolved faster and keeps them off the court’s briefing calendar altogether. Second, it confirms that reasonably billed reply time in EAJA litigation is recoverable; if OGC knows that filing a weak EAJA objection will only generate more fees for the claimant, it has less incentive to submit one.

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Jim Burgess is the founder of Burgess Disability Law, which represents claimants in federal court appeals. He spent over a decade as an appellate litigator in the SSA’s Office of the General Counsel before opening his own practice in 2025. Learn more at burgessdisabilitylaw.com.

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