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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