[Code of Federal Regulations]
[Title 34, Volume 1]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 34CFR21.50]

[Page 45-46]
 
                           TITLE 34--EDUCATION
 
PART 21_EQUAL ACCESS TO JUSTICE--Table of Contents
 
                  Subpart F_How Are Awards Determined?
 
Sec. 21.50  Standards for awards.


    (a) In determining the reasonableness of the amount sought as an 
award of fees and expenses for an attorney, agent, or expert witness, 
the adjudicative officer shall consider one or more of the following:

[[Page 46]]

    (1)(i) If the attorney, agent, or expert witness is in private 
practice, his or her customary fee for similar services; or
    (ii) If the attorney, agent, or expert witness is an employee of the 
applicant, the fully allocated cost of the services.
    (2) The prevailing rate for similar services in the community in 
which the attorney, agent, or expert witness ordinarily performs 
services.
    (3) The time the attorney, agent, or expert witness actually spent 
on the applicant's behalf with respect to the adversary adjudication.
    (4) The time the attorney, agent, or expert witness reasonably spent 
in light of the difficulty or complexity of the covered issues in the 
adversary adjudication.
    (5) Any other factors that may bear on the value of the services 
provided by the attorney, agent, or expert witness.
    (b) The adjudicative officer may not grant--
    (1) An award for the fee of an attorney or agent in excess of $75.00 
per hour; or
    (2) An award to compensate an expert witness in excess of the 
highest rate at which the Department pays expert witnesses.
    (c) The adjudicative officer may also determine whether--
    (1) Any study, analysis, engineering report, text, or project for 
which the applicant seeks an award was necessary for the preparation of 
the applicant's case in the adversary adjudication; and
    (2) The costs claimed by the applicant for this item or items are 
reasonable.
    (d) The adjudicative officer may not make an award to an eligible 
party if the adjudicative officer, the CRRA, or the Secretary on review 
finds that, based on a review of the administrative record as a whole--
    (1) The position of the Department, as defined in Sec. 21.3, was 
substantially justified; or
    (2) Special circumstances make an award unjust.
    (e) The adjudicative officer may reduce or deny an award to the 
extent that the applicant engaged in conduct that unduly or unreasonably 
protracted the adversary adjudication.
    (f) If an applicant is entitled to an award because the applicant 
prevailed over another agency of the United States that participated in 
a proceeding before the Department and that agency's position was not 
substantially justified, the adjudicative officer shall determine 
whether to make the award, or an appropriate portion of the award, 
against that agency. For the purpose of this determination, the 
requirements of this subpart apply.

(Authority: 5 U.S.C. 504(a), (b)(1)(A), and (b)(1)(E))