Section 14.04

14 CFR Ch. I (1-1-19 Edition)
agency pays expert witnesses. However,
an award may also include the reasonable expenses of the attorney, agent, or
witness as a separate item, if the attorney, agent, or witness ordinarily
charges clients separately for such expenses.
(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 customary fee for similar services, or if an
employee of the applicant, the fully allocated 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 service does not exceed the prevailing rate
for similar services, and the study or
other matter was necessary for preparation of the applicant-s case.
(e) Fees may be awarded only for
work performed after the issuance of a
complaint, or in the Default Adjudicative Process for a protest or contract
dispute under part 17 of this chapter
and the AMS.

the Act in light of the actual relationship between the affiliated entities. In
addition, the ALJ or adjudicative officer may determine that financial relationships of the applicant, other than
those described in this paragraph, constitute 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]

spaschal on DSK3GDR082PROD with CFR

Section 14.04 Standards for awards.
(a) A prevailing applicant may receive 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 determined on the basis of the record (including 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 eligible prevailing applicant is on the agency 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 denied if the applicant has unduly or unreasonably protracted the proceeding
or if special circumstances make the
award sought unjust.

[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]

Section 14.05 Allowance fees and expenses.
(a) Awards will be based on rates customarily charged by persons engaged
in the business of acting as attorneys,
agents, and expert witnesses, even if
the services were made available without charge or at a reduced rate to the
applicant.
(b) No award for the fee of an attorney or agent under this part may exceed $125 per hour, or such rate as prescribed by 5 U.S.C. 504. No award to
compensate an expert witness may exceed the highest rate at which the

Subpart B - Information Required
From Applicants
Section 14.10 Contents of application.
(a) An application for an award of
fees and expenses under the Act shall
identify the applicant and the proceeding for which an award is sought.
The application shall show that the applicant has prevailed and identify the
position of the agency in the proceeding that the applicant alleges was

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