Adriana M. de la Torre, Sustaining NOSSCR Member, Co-founder Tower Law Group

Winning a Social Security disability remand is one thing, but getting paid for your work is another battle entirely. The Eleventh Circuit’s recent decision in Smith v. Commissioner of Social Security (Jan. 22, 2025) underscores how challenging it can be to secure attorney’s fees under the Equal Access to Justice Act (EAJA). But challenging doesn’t mean impossible.

The Background

Smith and Ackerman, successful plaintiffs in Social Security cases, secured remands at the district court level. As prevailing parties, they applied for EAJA attorney’s fees, submitting detailed timesheets. The Commissioner didn’t oppose their requests, but the district court flagged certain entries as block-billed and imposed a 40% reduction on those entries.

The Eleventh Circuit’s Take

Block billing, where multiple tasks are grouped under a single time entry, can sometimes raise concerns in fee petitions. The Eleventh Circuit acknowledged this but also emphasized that reductions must be justified. For example, one of Smith’s time entries read:

“Continue reviewing administrative record, conduct research, continue drafting arguments.”

The court found that such entries made it “impossible to determine the amount of time counsel spent on each of the specific tasks mentioned.” But here’s the problem: legal work in Social Security disability cases doesn’t happen in neatly separated blocks.

Research, record review, and drafting are not distinct, linear steps, they happen simultaneously and continuously. An attorney doesn’t first review a file, then research, and then draft in rigid stages. Instead, these tasks naturally overlap: reviewing a record prompts legal research, which informs the drafting, which may send the attorney back to review the record again.

Forcing attorneys to artificially separate these interconnected tasks into rigid time blocks misunderstands the nature of legal work in Social Security litigation. The focus should be on the reasonableness of the overall time spent, not on whether a particular time entry isolates each microtask.

However, the bigger issue was the district court’s 40% across-the-board reduction of block-billed entries. Rather than evaluating individual entries, the court imposed an arbitrary cut. The Eleventh Circuit found this problematic and emphasized:

“A district court must do more than eyeball the request and if it seems excessive cut it down by an arbitrary percentage.” (Johnston v. Borders, 36 F.4th 1254 (11th Cir. 2022)).

In Johnston, the Eleventh Circuit rejected a 33% across-the-board reduction in attorney’s fees because the district court failed to explain why such a percentage was appropriate. The court held that reductions must be based on “concise but clear explanations” rather than rough estimates. The same issue arose in Smith: the district court simply picked 40% with no reasoning behind it. Because there was no clear justification, the Eleventh Circuit vacated and remanded the fee determination.

Practitioner’s Insights

Winning a disability case is only part of the battle. Proper compensation is equally crucial. This case serves as a reminder to:

• Push back on unrealistic expectations, legal work doesn’t happen in isolated chunks.
• Provide enough detail in billing entries to demonstrate reasonableness, but don’t let courts force an artificial breakdown of legal work.
• Challenge arbitrary reductions. Courts must provide clear reasoning, not rough estimates. If a court applies a blanket cut, cite Smith and Johnston in response.

Got any questions? Write me at disability@towerlawgroup.com. I’m here to help. It’s a lot to take in, but we’ll get through it together. After all, navigating these waters is always easier when you’ve got someone to chat with.

Smith v. Commissioner of Social Security (Jan. 22, 2025) was litigated by NOSSCR sustaining member Heather Freeman.

This is a guest column. The views expressed in this column are the views of the author alone, and do not represent the views of NOSSCR, NOSSCR’s leadership, or NOSSCR’s staff.