Subpart D -- Procedures for Considering Applications

§ 2204.401 Filing and service of documents.

Any application for an award, or any accompanying documentation related to an application shall be filed and served on all parties to the proceeding in accordance with §§ 2200.7 and 2200.8 of this chapter, except as provided in § 2204.302(b) for confidential financial information.

§ 2204.402 Answer to application.

            (a) Within 30 days after service of an application, the Secretary shall file an answer to the application. Unless the Secretary requests an extension of time for filing or files a statement of intent to negotiate under paragraph (b) of this section, failure to file an answer within the 30-day period may be treated as a consent to the award requested.

            (b) If the Secretary and the applicant believe that the issues in the fee application can be settled, they may jointly file a statement of their intent to negotiate a settlement. The filing of this statement shall extend the time for filing an answer for an additional 30 days, and further extensions may be granted by the judge upon request.

            (c) The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of the Secretary's position.  If the answer is based on any alleged facts not already in the record of the proceeding, the Secretary shall include with the answer either supporting affidavits or a request for further proceedings under § 2204.405.

§ 2204.403 Reply.

Within 15 days after service of an answer, the applicant may file a reply.  If the reply is based on any alleged facts not already in the record of the proceeding, the applicant shall include with the reply either supporting affidavits or a request for further proceedings under § 2204.405.

§ 2204.404 Settlement.

The applicant and the Secretary may agree on a proposed settlement of the award before final action on the application, either in connection with a settlement of the underlying adversary adjudication, or after the adversary adjudication has been concluded, in accordance with the Commission’s standard settlement procedures as set forth in § 2200.120 of this chapter.  If a prevailing party and the Secretary agree on a proposed settlement of an award before an application has been filed, the application shall be filed with the proposed settlement.  If a proposed settlement of an underlying proceeding provides that each side shall bear its own expenses and the settlement is accepted, no application may be filed.

§ 2204.405 Further proceedings.

            (a) Ordinarily, the determination of an award will be made on the basis of the written record.  However, on request of either the applicant or the Secretary, or on his or her own initiative, the judge presiding over an EAJA proceeding may, if necessary for a full and fair decision on the application, order the filing of additional written submissions; hold oral argument; or allow for discovery or hold an evidentiary hearing, but only as to issues other than whether the agency’s position was substantially justified (such as those involving the applicant’s eligibility or substantiation of fees and expenses).  Any written submissions shall be made, oral argument held, discovery conducted, and evidentiary hearing held as promptly as possible so as not to delay a decision on the application for fees.  Whether or not the position of the Secretary was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.

            (b) A request for further proceedings under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues.

§ 2204.406 Decision.

The preparation and issuance of decision on the fee application shall be in accordance with § 2200.90 of this chapter.

            (a) For an application involving a prevailing party.  The decision shall include written findings and conclusions on the applicant’s eligibility and status as a prevailing party and an explanation of the reasons for any difference between the amount requested and the amount awarded.  The decision shall also include, if applicable, findings on whether the Secretary's position was substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust.

            (b) For an application involving an allegedly excessive agency demand.  The decision shall include written findings and conclusions on the applicant’s eligibility and an explanation of the reasons why the agency’s demand was or was not determined to be substantially in excess of the underlying decision in the matter and whether the Secretary’s demand was or was not unreasonable.  That determination shall be based upon all the facts and circumstances of the case.

            (c) Awards. The judge presiding over an EAJA proceeding or the Commission on review may reduce the amount to be awarded, or deny any award, to the extent that the party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy.

            (1) Awards shall be based on rates customarily charged by persons engaged in the business of acting as attorneys, agents and expert witnesses, even if the services were made available without charge or at a reduced rate to the applicant.

            (2) An award for the fee of an attorney or agent under this paragraph (c) shall not exceed the hourly rate specified in 5 U.S.C. 504(b)(1)(A), except to account for inflation since the last update of the statute’s maximum award upon the request of the applicant as documented in the application pursuant to § 2204.303.  An award to compensate an expert witness shall not exceed the highest rate at which the Secretary pays expert witnesses.  However, an award may include the reasonable expenses of the attorney, agent or witness as a separate item, if the attorney, agent or witness ordinarily charges clients separately for such expenses.

            (3) In determining the reasonableness of the fee sought for an attorney, agent, or expert witness, the following shall be considered:

            (i) If the attorney, agent, or witness is in private practice, his or her customary fee for similar services, or, if an employee of the applicant, the fully allocated cost of the services;

            (ii) The prevailing rate for similar services in the community in which the attorney, agent, or witness ordinarily perform services;

            (iii) The time actually spent in the representation of the applicant;

            (iv) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and

            (v) Such other factors as may bear on the value of the services provided.

            (4) The reasonable cost of any study, analysis, engineering report, test, project, or similar matter prepared on behalf of the party may be awarded, to the extent that the charge for the service does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of the applicant’s case.

§ 2204.407 Commission review.

Either the applicant or the Secretary may seek review of the judge’s decision on the fee application, and the Commission may grant such a petition for review or direct review of the decision on the Commission’s own initiative.  Review by the Commission shall be in accordance with §§ 2200.91 and 2200.92 of this chapter.

§ 2204.408 Judicial review.

Judicial review of final decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2).

§ 2204.409 Stay of decision concerning award.

Any proceedings on an application for fees under this part shall be automatically stayed until the adversary adjudication has become a final disposition.

§ 2204.410 Waiver.

After reasonable notice to the parties, the judge or the Commission may waive, for good cause shown, any provision contained in this part as long as the waiver is consistent with the terms and purpose of the EAJA.

§ 2204.411 Payment of award.

An applicant seeking payment of an award shall submit to the officer designated by the Secretary a copy of the Commission’s final decision granting the award, accompanied by a certification that the applicant will not seek review of the decision in the United States courts.