28 C.F.R. Subpart A—General Provisions
Title 28 - Judicial Administration
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. 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 §24.102(b) above. (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); (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. 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. (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. (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. (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.
Title 28: Judicial Administration
PART 24—IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN DEPARTMENT OF JUSTICE ADMINISTRATIVE PROCEEDINGS
Subpart A—General Provisions
§ 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.
