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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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83 

Federal Aviation Administration, DOT 

§ 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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