84 

14 CFR Ch. I (1–1–19 Edition) 

§ 14.04 

the Act in light of the actual relation-
ship between the affiliated entities. In 
addition, the ALJ or adjudicative offi-
cer may determine that financial rela-
tionships of the applicant, other than 
those described in this paragraph, con-
stitute special circumstances that 
would make an award unjust. 

(g) An applicant that participates in 

a proceeding primarily on behalf of one 
or more other persons or entities that 
would be ineligible if not itself eligible 
for an award. 

[54 FR 46199, Nov. 1, 1989, as amended by 
Amdt. 14–03, 64 FR 32935, June 18, 1999] 

§ 14.04

Standards for awards. 

(a) A prevailing applicant may re-

ceive an award for attorney fees and 
other expenses incurred in connection 
with a proceeding, or in a significant 
and discrete substantive portion of the 
proceeding, unless the position of the 
agency over which the applicant has 
prevailed was substantially justified. 
Whether or not the position of the FAA 
was substantially justified shall be de-
termined on the basis of the record (in-
cluding the record with respect to the 
action or failure to act by the agency 
upon which the civil action is based) 
which was made in the civil action for 
which fees and other expenses are 
sought. The burden of proof that an 
award should not be made to an eligi-
ble prevailing applicant is on the agen-
cy counsel, who may avoid an award by 
showing that the agency’s position was 
reasonable in law and fact. 

(b) An award will be reduced or de-

nied if the applicant has unduly or un-
reasonably protracted the proceeding 
or if special circumstances make the 
award sought unjust. 

§ 14.05

Allowance fees and expenses. 

(a) Awards will be based on rates cus-

tomarily charged by persons engaged 
in the business of acting as attorneys, 
agents, and expert witnesses, even if 
the services were made available with-
out charge or at a reduced rate to the 
applicant. 

(b) No award for the fee of an attor-

ney or agent under this part may ex-
ceed $125 per hour, or such rate as pre-
scribed by 5 U.S.C. 504. No award to 
compensate an expert witness may ex-
ceed the highest rate at which the 

agency pays expert witnesses. However, 
an award may also include the reason-
able expenses of the attorney, agent, or 
witness as a separate item, if the attor-
ney, agent, or witness ordinarily 
charges clients separately for such ex-
penses. 

(c) In determining the reasonableness 

of the fee sought for an attorney, 
agent, or expert witness, the ALJ or 
adjudicative officer shall consider the 
following: 

(1) If the attorney, agent, or witness 

is in private practice, his or her cus-
tomary fee for similar services, or if an 
employee of the applicant, the fully al-
located cost of the services; 

(2) The prevailing rate for similar 

services in the community in which the 
attorney, agent, or witness ordinarily 
performs services; 

(3) The time actually spent in the 

representation of the applicant; 

(4) The time reasonably spent in light 

of the difficulty or complexity of the 
issues in the proceeding; and 

(5) Such other factors as may bear on 

the value of the services provided. 

(d) The reasonable cost of any study, 

analysis, engineering report, test, 
project, or similar matter prepared on 
behalf of a party may be awarded, to 
the extent that the charge for the serv-
ice does not exceed the prevailing rate 
for similar services, and the study or 
other matter was necessary for prepa-
ration of the applicant’s case. 

(e) Fees may be awarded only for 

work performed after the issuance of a 
complaint, or in the Default Adjudica-
tive Process for a protest or contract 
dispute under part 17 of this chapter 
and the AMS. 

[Amdt. 13–18, 53 FR 34655, Sept. 7, 1988, as 
amended by Amdt. 14–1, 55 FR 15131, Apr. 20, 
1990; Amdt. 14–03, 64 FR 32935, June 18, 1999] 

Subpart B—Information Required 

From Applicants 

§ 14.10

Contents of application. 

(a) An application for an award of 

fees and expenses under the Act shall 
identify the applicant and the pro-
ceeding for which an award is sought. 
The application shall show that the ap-
plicant has prevailed and identify the 
position of the agency in the pro-
ceeding that the applicant alleges was 

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