[Code of Federal Regulations]

[Title 45, Volume 1]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 45CFR13.5]



[Page 66-67]

 

                        TITLE 45--PUBLIC WELFARE

 

                    SUBTITLE A--DEPARTMENT OF HEALTH

                           AND HUMAN SERVICES

 

PART 13_IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN AGENCY 

PROCEEDINGS--Table of Contents

 

                      Subpart A_General Provisions

 

Sec.  13.5  Standards for awards.



    (a) An award of fees and expenses may be made either on the basis 

that the Department's position in the proceeding was not substantially 

justified or on the basis that, in a proceeding to enforce compliance 

with a statutory or regulatory requirement, the Department's demand 

substantially exceeded the ultimate decision and was unreasonable when 

compared with that decision. These two bases are explained in greater 

detail in paragraphs (b) and (c) of this section.

    (b) Awards where the Department's position was not substantially 

justified. (1) Awards will be made on this basis only where the 

Department's position in the proceeding was not substantially justified. 

The Department's position includes, in addition to the position taken by 

the agency in the proceeding, the agency action or failure to act that 

was the basis for the proceeding. Whether the Department's position was 

substantially justified is to be determined on the basis of the 

administrative record as a whole. The fact that a party has prevailed in 

a proceeding does not create a presumption that the Department's 

position was not substantially justified. The burden of proof as to 

substantial justification is on the agency's litigating party, which may 

avoid an award by showing that



[[Page 67]]



its position was reasonable in law and fact.

    (2) When two or more matters are joined together for one hearing, 

each of which could have been heard separately (without regard to laws 

or rules fixing a jurisdictional minimum amount for claims), and an 

applicant has prevailed with respect to one or several of the matters, 

an eligible applicant may receive an award for expenses associated only 

with the matters on which it prevailed if the Department's position on 

those matters was not substantially justified.

    (3) Awards for fees and expenses incurred before the date on which a 

proceeding was initiated will be made only if the applicant can 

demonstrate that they were reasonably incurred in preparation for the 

proceeding.

    (4) Awards will be reduced or denied if the applicant has unduly or 

unreasonably protracted the proceeding or if other special circumstances 

make an award unjust.

    (c) Awards where the Department's demand was substantially excessive 

and unreasonable. (1) Awards will be made on this basis only where the 

adversary adjudication arises from the Department's action to enforce a 

party's compliance with a statutory or regulatory requirement. An award 

may be made on this basis only if the Department's demand that led to 

the proceeding was substantially in excess of the ultimate decision in 

the proceeding, and that demand is unreasonable when compared with that 

decision, given all the facts and circumstances of the case.

    (2) Any award made on this basis shall be limited to the fees and 

expenses that are primarily related to defending against the excessive 

nature of the demand. An award shall not include fees and expenses that 

are primarily related to defending against the merits of charges, or 

fees and expenses that are primarily related to defending against the 

portion of the demand that was not excessive, to the extent that these 

fees and expenses are distinguishable from the fees and expenses 

primarily related to defending against the excessive nature of the 

demand.

    (3) Awards will be denied if the party has committed a willful 

violation of law or otherwise acted in bad faith, or if special 

circumstances make an award unjust.



[48 FR 45252, Oct. 4, 1983, as amended at 69 FR 2846, Jan. 21, 2004]