title-14-part-14-sec14-05

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.

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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14 CFR Ch. I (1–1–24 Edition)

§ 14.10

(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
applicants, including their affiliates)
at the time the adversary adjudication
was initiated. However, an applicant
may omit this statement if:

(1) It attaches a copy of a ruling by

the Internal Revenue Service that it
qualifies as an organization described
in section 501(c)(3) of the Internal Rev-
enue Code (26 U.S.C. 501(c)(3)), or in the
case of a tax-exempt organization not
required to obtain a ruling from the In-
ternal Revenue Service on its exempt
status, a statement that describes the
basis for the applicant’s belief that it
qualifies under such section; or

(2) It states that it is a cooperative

association as defined in section 15(a)
of the Agricultural Marketing Act (12
U.S.C. 1141j(a)).

amount of fees and expenses for which
an award is sought.

(d) The application may also include

any other matters that the applicant
wishes this agency to consider in deter-
mining whether and in what amount an
award should be made.

(e) The application shall be signed by

the applicant or an authorized officer
or attorney for the applicant. It shall
also contain or be accompanied by a
written verification under oath or
under penalty of perjury that the infor-
mation provided in the application is
true and correct.

(f) If the applicant is a partnership,

corporation, association, organization,
or sole owner of an unincorporated
business, the application shall state
that the applicant did not have more
than 500 employees at the time the ad-
versary adjudication was initiated, giv-
ing the number of its employees and
describing briefly the type and purpose
of its organization or business.

§ 14.11

Net worth exhibit.

(a) Each applicant except a qualified

tax-exempt organization or cooperative
association must provide with its ap-
plication a detailed exhibit showing
the net worth of the applicant and any
affiliates when the proceeding was ini-
tiated. If any individual, corporation,
or other entity directly or indirectly
controls or owns a majority of the vot-
ing shares or other interest of the ap-
plicant, or if the applicant directly or
indirectly owns or controls a majority
of the voting shares or other interest of
any corporation or other entity, the
exhibit must include a showing of the
net worth of all such affiliates or of the
applicant including the affiliates. The
exhibit may be in any form convenient
to the applicant that provides full dis-
closure of the applicant’s and its affili-
ates’ assets and liabilities and is suffi-
cient to determine whether the appli-
cant qualifies under the standards in
this part. The administrative law judge
may require an applicant to file addi-
tional information to determine the
eligibility for an award.