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Federal Aviation Administration, DOT 

§ 14.05 

(c) For the purpose of eligibility, the 

net worth and number of employees of 
an applicant shall be determined as of 
the date the proceeding was initiated. 

(d) An applicant who owns an unin-

corporated business will be considered 
an ‘‘individual’’ rather than a ‘‘sole 
owner of an unincorporated business’’ 
if the issues on which the applicant 
prevails are related primarily to per-
sonal interests rather than to business 
interest. 

(e) The employees of an applicant in-

clude all persons who regularly per-
form services for remuneration for the 
applicant, under the applicant’s direc-
tion and control. Part-time employees 
shall be included on a proportional 
basis. 

(f) The net worth and number of em-

ployees of the applicant and all of its 
affiliates shall be aggregated to deter-
mine eligibility. Any individual, cor-
poration, or other entity that directly 
or indirectly controls or owns a major-
ity of the voting shares or other inter-
est of the applicant, or any corporation 
or other entity of which the applicant 
directly or indirectly owns or controls 
a majority of the voting shares or 
other interest, will be considered an af-
filiate for purposes of this part, unless 
the ALJ or adjudicative officer deter-
mines that such treatment would be 
unjust and contrary to the purposes of 
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; 

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