[Code of Federal Regulations]

[Title 34, Volume 1]

[Revised as of July 1, 2006]

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))