[Title 28 CFR 24]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 28 - JUDICIAL ADMINISTRATION]
[Chapter I - DEPARTMENT OF JUSTICE]
[Part 24 - IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN DEPARTMENT OF JUSTICE ADMINISTRATIVE PROCEEDINGS]
[From the U.S. Government Printing Office]
28JUDICIAL ADMINISTRATION12002-07-012002-07-01falseIMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN DEPARTMENT OF JUSTICE ADMINISTRATIVE PROCEEDINGS24PART 24JUDICIAL ADMINISTRATIONDEPARTMENT OF JUSTICE
PART 24--IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN DEPARTMENT OF JUSTICE ADMINISTRATIVE PROCEEDINGS--Table of Contents
Subpart A--General Provisions
Sec.
24.101 Purpose of these rules.
24.102 Definitions.
24.103 Proceedings covered.
24.104 Applicability to Department of Justice proceedings.
24.105 Eligibility of applicants.
24.106 Standards for awards.
24.107 Allowable fees and other expenses.
Subpart B--Information Required From Applicants
24.201 Contents of application.
24.202 Net worth exhibit.
24.203 Documentation of fees and expenses.
24.204 Time for submission of application.
Subpart C--Procedures for Considering Applications
24.301 Filing and service of documents.
24.302 Answer to application.
24.303 Comments by other parties.
24.304 Settlement.
24.305 Extensions of time.
24.306 Decision on application.
24.307 Department review.
24.308 Judicial review.
24.309 Payment of award.
Authority: 5 U.S.C. 504(c)(1).
Source: Order No. 975-82, 47 FR 15776, Apr. 13, 1982, unless
otherwise noted.
Subpart A--General Provisions
Sec. 24.101 Purpose of these rules.
These rules are adopted by the Department of Justice pursuant to
section 504 of title 5, U.S. Code, as amended by section 203(a)(1) of
the Equal Access to Justice Act, Public Law No. 96-481. Under the Act,
an eligible party may receive an award for attorney fees and other
expenses when it prevails over the Department in an adversary
adjudication under 5 U.S.C. 554 before the Department, unless the
Department's position as a party to the proceeding was substantially
justified or special circumstances make an award unjust. The purpose of
these rules is to establish procedures for the submission and
consideration of applications for awards against the Department.
Sec. 24.102 Definitions.
As used in this part:
(a) The Act means section 504 of title 5, U.S. Code, as amended by
section 203(a)(1) of the Equal Access to Justice Act, Public Law No. 96-
481.
(b) Adversary adjudication means an adjudication under 5 U.S.C. 554
in which the position of the United States is represented by counsel or
otherwise, but excludes an adjudication for the purpose of establishing
or fixing a rate or for the purpose of granting or reviewing a license.
(c) Adjudicative officer means the official, without regard to
whether the official is designated as an administrative law judge, a
hearing officer or examiner, or otherwise, who presided at the adversary
adjudication.
(d) Department refers to the relevant departmental component which
is conducting the adversary adjudication (e.g., Drug Enforcement
Administration or Office of Justice Assistance, Research, and
Statistics).
(e) Proceeding means an adversary adjudication as defined in
Sec. 24.102(b) above.
Sec. 24.103 Proceedings covered.
(a) These rules apply to adversary adjudications required by statute
to be conducted by the Department under 5 U.S.C. 554. Specifically, the
proceedings conducted by the Department to which these rules apply are:
(1) Hearings conducted by the Drug Enforcement Administration (DEA)
in connection with suspension or revocation of registration of
manufacturers, distributors, and dispensers of controlled substances
under 21 U.S.C. 824(c) and 21 CFR 1301.51; suspension or revocation of
import and export registrations pursuant to 21 U.S.C. 958 and 21 CFR
1311.51;
(2) Hearings conducted by DEA in connection with the scheduling of
drugs pursuant to 21 U.S.C. 811(a) and 21 CFR 1308.41;
(3) Handicap discrimination hearings conducted by the Department
under 29 U.S.C. 794a(a) and 28 CFR 42.109(d);
(4) Title VI civil rights hearings conducted by the Department under
42 U.S.C. 2000d-1 and 28 CFR 42.109(d);
[[Page 420]]
(5) Grant denial and grant termination hearings conducted by the
Office of Justice Assistance, Research, and Statistics (OJARS), the
National Institute of Justice (NIJ), the Bureau of Justice Statistics
(BJS) and the Office of Juvenile Justice and Delinquency Prevention
(OJJDP), or the Law Enforcement Assistance Administration (LEAA) under
42 U.S.C. 3783 and 28 CFR part 18; and
(6) Civil rights hearings conducted by OJARS under 42 U.S.C. 3789d
and 28 CFR 42.214-15.
(b) If a proceeding includes both matters covered by the Act and
matters specifically excluded from coverage, any award made will include
only fees and expenses related to covered issues.
Sec. 24.104 Applicability to Department of Justice proceedings.
The Act applies to an adversary adjudication pending before the
Department at any time between October 1, 1981 and September 30, 1984.
This includes proceedings begun before October 1, 1981 if final
Department action has not been taken before that date, and proceedings
pending on September 30, 1984.
Sec. 24.105 Eligibility of applicants.
(a) To be eligible for an award of attorney fees and other expenses
under the Act, the applicant must be a prevailing party in the adversary
adjudication for which it seeks an award. The term ``party'' is defined
in 5 U.S.C. 551(3). The applicant must show that it meets all conditions
of eligibility set out in this subpart and in subpart B.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $1 million;
(2) The sole owner of an unincorporated business who has a net worth
of not more than $5 million and not more than 500 employees;
(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;
(4) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500
employees; and
(5) Any other partnership, corporation, association, or public or
private organization with a net worth of not more than $5 million and
not more than 500 employees.
(c) For the purpose of eligibility, the net worth and number of
employees of an applicant shall be determined as of the date the
adversary adjudication was initiated.
Sec. 24.106 Standards for awards.
(a) A prevailing applicant may receive an award for fees and
expenses incurred in connection with a proceeding unless (1) the
position of the Department as a party to the proceeding was
substantially justified or (2) special circumstances make the award
sought unjust. No presumption arises that the agency's position was not
substantially justified simply because the agency did not prevail.
(b) An award will be reduced or denied if the applicant has unduly
or unreasonably protracted the proceedings.
Sec. 24.107 Allowable fees and other expenses.
(a) The following fees and other expenses are allowable under the
Act:
(1) Reasonable expenses of expert witnesses;
(2) Reasonable cost of any study, analysis, engineering report,
test, or project which the Department finds necessary for the
preparation of the party's case;
(3) Reasonable attorney or agent fees;
(b) The amount of fees awarded will be based upon the prevailing
market rates for the kind and quality of services furnished, except that
(1) Compensation for an expert witness will not exceed the highest
rate paid by the Department for expert witnesses; and
(2) Attorney or agent fees will not be in excess of $75 per hour.
Subpart B--Information Required From Applicants
Sec. 24.201 Contents of application.
(a) An application for an award of fees and expenses under the Act
shall identify the applicant and the proceeding for which an award is
sought.
[[Page 421]]
The application shall show that the applicant has prevailed and identify
the position of the Department in the proceeding that the applicant
alleges was not substantially justified.
(b) The application shall include a statement that the applicant's
net worth as of the time the proceeding was initiated did not exceed $1
million if the applicant is an individual (other than a sole owner of an
unincorporated business seeking an award in that capacity) or $5 million
in the case of all other applicants. 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 Revenue Code of 1954 (26 U.S.C. 501(c)(3)) and is exempt
from taxation under section 501(a) of the Code or, in the case of such
an organization not required to obtain a ruling from the Internal
Revenue Service on its exempt status, a statement that describes the
basis for the applicant's belief that it qualifies under section
501(c)(3) of the Code; 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)).
(c) If the applicant is a partnership, corporation, association, or
organization, or a sole owner of an unincorporated business, the
application shall state that it did not have more than 500 employees at
the time the proceeding was initiated, giving the number of its
employees and describing briefly the type and purpose of its
organization or business.
(d) The application shall itemize the amount of fees and expenses
for which an award is sought.
(e) The application may include any other matters that the applicant
believes should be considered in determining whether and in what amount
an award should be made.
(f) The application shall be signed by the applicant with respect to
the eligibility of the applicant and by the attorney of the applicant
with respect to fees and expenses sought. The application shall contain
or be accompanied by a written verification under oath or affirmation
under penalty of perjury that the information provided in the
application and all accompanying material is true and complete to the
best of the signer's information and belief.
Sec. 24.202 Net worth exhibit.
(a) Each applicant except a qualified tax exempt organization or a
qualified cooperative must submit with its application a detailed
exhibit showing its net worth at the time the proceeding was initiated.
If any individual, corporation, or other entity directly or indirectly
controls or owns a majority of the voting shares or other interest of
the applicant, or if the applicant directly or indirectly owns or
controls a majority of the voting shares of 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,
provided that it makes full disclosure of the applicant's and any
affiliates' assets and liabilities and is sufficient to determine
whether the applicant qualifies under the standards of 5 U.S.C.
504(b)(1)(B)(i). The adjudicative officer may require an applicant to
file additional information to determine the applicant's eligibility for
an award.
(b) The net worth exhibit shall describe any transfers of assets
from, or obligations incurred by, the applicant or any affiliate,
occurring in the one-year period prior to the date on which the
proceeding was initiated, that reduced the net worth of the applicant
and its affiliates below the applicable net worth ceiling. If there were
no such transactions, the applicant shall so state.
(c) The net worth exhibit shall be included in the public record of
the proceeding.
Sec. 24.203 Documentation of fees and expenses.
(a) The application shall be accompanied by full documentation of
the fees and expenses, including the cost of any study, engineering
report, test, or project, for which an award is sought.
(b) The documentation shall include an affidavit from any attorney,
agent, or expert witness representing or appearing in behalf of the
party, stating the actual time expended and the rate
[[Page 422]]
at which fees and other expenses were computed and describing the
specific services performed.
(1) The affidavit shall state the services performed. In order to
establish the hourly rate, the affidavit shall state the hourly rate
which is billed and paid by the majority of clients during the relevant
time periods.
(2) If no hourly rate is paid by the majority of clients because,
for instance, the attorney or agent represents most clients on a
contingency basis, the attorney or agent shall provide information about
two attorneys or agents with similar experience, who perform similar
work, stating their hourly rate.
(c) The documentation shall also include a description of any
expenses for which reimbursement is sought and a statement of the
amounts paid and payable by the applicant or by any other person or
entity for the services provided.
(d) The adjudicative officer may require the applicant to provide
vouchers, receipts, or other substantiation for any expenses claimed.
Sec. 24.204 Time for submission of application.
(a) An application must be filed no later than 30 days after final
disposition of the proceeding. If review or reconsideration is sought or
taken of a decision as to which an applicant believes it has prevailed,
action on the award of fees shall be stayed pending final disposition of
the underlying controversy.
(b) Final disposition means the later of:
(1) The date on which the final agency decision is issued,
(2) The date on which a petition for rehearing or reconsideration is
disposed of, or
(3) The date of final resolution of the proceeding, such as
settlement or voluntary dismissal, which is not subject to a petition
for rehearing or reconsideration.
Subpart C--Procedures for Considering Applications
Sec. 24.301 Filing and service of documents.
An application for an award and any other pleading or document
related to the application shall be filed and served on all parties to
the proceeding in the same manner as other pleadings in the proceeding.
Sec. 24.302 Answer to application.
(a) Within 30 calendar days after service of the application,
Department counsel may file an answer. If Department counsel fails to
answer or otherwise fails to contest or settle the application, the
adjudicative officer may upon a satisfactory showing of entitlement by
the applicant make an award for the applicant's fees and other expenses
under 5 U.S.C. 504.
(b) If Department counsel and applicant believe that they can reach
a settlement concerning the award, Department counsel may file a
statement of intent to negotiate. The filing of such a statement shall
extend the time for filing an answer an additional 30 days.
(c) The answer shall explain in detail any objections to the award
requested and identify the facts relied on to support the objection. If
the answer is based on any alleged facts not already reflected in the
record of the proceeding, Department counsel shall include with the
answer either a supporting affidavit or a request for further filings or
other action.
Sec. 24.303 Comments by other parties.
Any party to a proceeding other than the applicant and Department
counsel may file comments on an application within 30 calendar days
after it is served or on an answer within 15 calendar days after it is
served.
Sec. 24.304 Settlement.
A prevailing party and Department counsel may agree on a proposed
settlement of an award before final action
[[Page 423]]
on the application, either in connection with a settlement of the
underlying proceeding or after the underlying proceeding has been
concluded. If the party and Department counsel agree on a proposed
settlement of an award before an application has been filed, the
application shall be filed with the proposed settlement.
Sec. 24.305 Extensions of time.
(a) The adjudicative officer may on motion and for good cause shown
grant extensions of time other than for filing an application for fees
and expenses after final disposition in the adversary adjudication.
(b) Ordinarily, the determination of an award will be made on the
basis of the written record of the underlying proceeding and the filings
required or permitted by the foregoing sections of these rules. However,
the adjudicative officer may sua sponte or on motion of any party to the
proceedings require or permit further filings or other action, such as
an informal conference, oral argument, additional written submissions,
or an evidentiary hearing. Such further action shall occur only when
necessary for full and fair resolution of the issues arising from the
application and shall take place as promptly as possible. A motion for
further filings or other action shall specifically identify the
information sought on the disputed issues and shall explain why the
further filings or other action is necessary to resolve the issues.
(c) In the event that an evidentiary hearing is required or
permitted by the adjudicative officer, such hearing and any related
filings or other action required or permitted shall be conducted
pursuant to the procedural rules governing adversary adjudications
conducted by the Department component in which the underlying adversary
adjudication was conducted.
Sec. 24.306 Decision on application.
The adjudicative officer shall promptly issue a decision on the
application which shall include proposed written findings and
conclusions on such of the following as are relevant to the decision:
(a) The applicant's status as a prevailing party;
(b) The applicant's qualification as a ``party'' under 5 U.S.C.
504(b)(1)(B);
(c) Whether the Department's position as a party to the proceeding
was substantially justified;
(d) Whether special circumstances make an award unjust;
(e) Whether the applicant during the course of the proceedings
engaged in conduct that unduly and unreasonably protracted the final
resolution of the matter in controversy; and
(f) The amounts, if any, awarded for fees and other expenses, with
reasons for any difference between the amount requested and the amount
awarded.
Sec. 24.307 Department review.
The decision of the adjudicative officer will be reviewed to the
extent permitted by law by the Department in accordance with the
Department's procedures for the type of proceeding involved. The
Department will issue the final decision on the application.
Sec. 24.308 Judicial review.
Judicial review of final Department decisions on awards may be
sought as provided in 5 U.S.C. 504(c)(2).
Sec. 24.309 Payment of award.
An applicant seeking payment of an award shall submit a copy of the
final decision granting the award to the Department's Accounting Office
for processing. A statement that review of the underlying decision is
not being sought in the United States courts, or that the process for
seeking review of the award has been completed, must also be included.