82
14 CFR Ch. I (1–1–24 Edition)
§ 14.01
14.12
Documentation of fees and expenses.
Subpart C—Procedures for Considering
Applications
14.20
When an application may be filed.
14.21
Filing and service of documents.
14.22
Answer to application.
14.23
Reply.
14.24
Comments by other parties.
14.25
Settlement.
14.26
Further proceedings.
14.27
Decision.
14.28
Review by FAA decisionmaker.
14.29
Judicial review.
14.30
Payment of award.
A
UTHORITY
: 5 U.S.C. 504; 49 U.S.C. 106(f),
40113, 46104 and 47122.
S
OURCE
: Docket No. 25958, 54 FR 46199, Nov.
1, 1989, unless otherwise noted.
Subpart A—General Provisions
§ 14.01
Purpose of these rules.
The Equal Access to Justice Act, 5
U.S.C. 504 (the Act), provides for the
award of attorney fees and other ex-
penses to eligible individuals and enti-
ties who are parties to certain adminis-
trative proceedings (adversary adju-
dications) before the Federal Aviation
Administration (FAA). An eligible
party may receive an award when it
prevails over the FAA, unless the agen-
cy’s position in the proceeding was sub-
stantially justified or special cir-
cumstances make an award unjust. The
rules in this part describe the parties
eligible for awards and the proceedings
that are covered. They also explain
how to apply for awards, and the proce-
dures and standards that the FAA De-
cisionmaker will use to make them. As
used hereinafter, the term ‘‘agency’’
applies to the FAA.
§ 14.02
Proceedings covered.
(a) The Act applies to certain adver-
sary adjudications conducted by the
FAA under 49 CFR part 17 and the Ac-
quisition Management System (AMS).
These are adjudications under 5 U.S.C.
554, in which the position of the FAA is
represented by an attorney or other
representative who enters an appear-
ance and participates in the pro-
ceeding. This subpart applies to pro-
ceedings under 49 U.S.C. 46301, 46302,
and 46303 and to the Default Adjudica-
tive Process under part 17 of this chap-
ter and the AMS.
(b) If a proceeding includes both mat-
ters covered by the Act and matters
specifically excluded from coverage,
any award made will include only fees
and expenses related to covered issues.
(c) Fees and other expenses may not
be awarded to a party for any portion
of the adversary adjudication in which
such party has unreasonably pro-
tracted the proceedings.
[54 FR 46199, Nov. 1, 1989, as amended by
Amdt. 14–03, 64 FR 32935, June 18, 1999]
§ 14.03
Eligibility of applicants.
(a) To be eligible for an award of at-
torney fees and other expenses under
the Act, the applicant must be a party
to the adversary adjudication for which
it seeks an award. The term ‘‘party’’ is
defined in 5 U.S.C. 504(b)(1)(B) and 5
U.S.C. 551(3). The applicant must show
that it meets all conditions or eligi-
bility set out in this subpart.
(b) The types of eligible applicants
are as follows:
(1) An individual with a net worth of
not more than $2 million at the time
the adversary adjudication was initi-
ated;
(2) The sole owner of an unincor-
porated business who has a net worth
of not more than $7 million, including
both personal and business interests,
and not more than 500 employees at the
time the adversary adjudication was
initiated;
(3) A charitable or other tax-exempt
organization described in section
501(c)(3) of the Internal Revenue Code
(26 U.S.C. 501(c)(3)) with not more than
500 employees at the time the adver-
sary adjudication was initiated; and
(4) A cooperative association as de-
fined in section 15(a) of the Agricul-
tural Marketing Act (12 U.S.C. 1141j(a))
with not more than 500 employees at
the time the adversary adjudication
was initiated; and
(5) Any other partnership, corpora-
tion, association, or public or private
organization with a net worth of not
more than $7 million and not more
than 500 employees at the time the ad-
versary adjudication was initiated.
(c) For the purpose of eligibility, the
net worth and number of employees of
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§ 14.05
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;
(4) The time reasonably spent in light
of the difficulty or complexity of the
issues in the proceeding; and
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