80
14 CFR Ch. I (1–1–14 Edition)
§ 14.04
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
not substantially justified. Unless the
applicant is an individual, the applica-
tion shall also state the number of em-
ployees of the applicant and describe
briefly the type and purpose of its or-
ganization or business.
(b) The application shall also include
a statement that the applicant’s net
worth does not exceed $2 million (if an
individual) or $7 million (for all other
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