Code of Federal Regulations: Containing a Codification of Documents of ...

other deciding official who presided the underlying adversary adjudica

on.

uthority: 5 U.S.C. 504(b)(1)(D))

Adversary adjudication means a proeding—

(1) Conducted by the Department for e formulation of an order or decision ising from a hearing on the record der the Administrative Procedure

et (5 U.S.C. 554);

(2) Listed in § 21.10; and

(3) In which the position of the Dertment was represented by counsel other representative who entered an pearance and participated in the proeding.

uthority: 5 U.S.C. 504(b)(1)(C))

Application subject to the jurisdiction of e CRRA means an application for fees nd expenses based on an underlying oceeding conducted under 34 CFR rts 100, 101, 104, 106, or 110.

uthority: 5 U.S.C. 504(b)(1)(C); 20 U.S.C. B1; 29 U.S.C. 794; 42 U.S.C. 2000d-1 et seq. and 01 et seq.)

CRRA means the Civil Rights Reewing Authority, the reviewing aunority established by the Secretary to onsider applications under 34 CFR rts 100, 101, 104, 106, and 110.

uthority: 5 U.S.C. 504(b)(1)(C); 20 U.S.C. 81; 29 U.S.C. 794; 42 U.S.C. 2000d-1 et seq. and 01 et seq.)

Department means the U.S. Departent of Education.

Department's counsel means counsel r the Department of Education or ancher Federal agency. Employee means:

(1) A person who regularly performs ervices for an applicant

(i) For remuneration; and

(ii) Under the applicant's direction nd control.

(2) A part-time or seasonal employee ho performs services for an appliant

(i) For renumeration; and

(ii) Under the applicant's direction nd control.

Authority: 5 U.S.C. 504(c)(1))

Fees and other expenses means an eliible applicant's reasonable fees and xpenses

(1) Related to the issues on which it was the prevailing party in the adversary adjudication; and

(2) Further described in §§ 21.33 and 21.50.

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

Party means a "person" or a "party" as those terms are defined in the Administrative Procedure Act (5 U.S.C. 551(3)), including an individual, partnership, corporation, association, unit of local government, or public or private organization that meets the requirements in § 21.20. The term does not include an agency of the Federal Government.

(Authority: 5 U.S.C. 504(b)(1)(B))

Position of the Department means, in addition to the position taken by the Department in the adversary adjudication, the action or failure to act by the Department upon which the adversary adjudication is based.

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

Secretary means the Secretary of the U.S. Department of Education or an official or employee of the Department acting for the Secretary under a delegation of authority.

(Authority: 5 U.S.C. 504 (b)(2) and (c)(1))

Subpart B-Which Adversary
Adjudications Are Covered?

§ 21.10 Adversary adjudications covered by the Act.

The Act covers adversary adjudications under section 554 of title 5 of the United States Code. These include the following:

(a) Compliance proceedings under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).

(b) Compliance and enforcement proceedings under the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.).

(d) Compliance proceedings under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794).

(e) Withholding proceedings under section 1001 of Pub. L. 100-297 (Hawkins-Stafford) (20 U.S.C. 2833).

(f) Proceedings under any of the following:

(1) Section 5(g) of Pub. L. 81-874 (Financial Assistance for Local Educational Agencies in Areas Affected by Federal Activity) (20 U.S.C. 240(g)).

(2) Sections 6(c) or 11(a) of Pub. L. 81815 (an act relating to the construction of school facilities in areas affected by Federal activities and for other purposes) (20 U.S.C. 636(c) or 641(a)).

(3) Section 6 of Pub. L. 95-563 (Contract Disputes Act of 1978) (41 U.S.C. 605).

(4) Part E of the General Education Provisions Act (20 U.S.C. 1234 et seq.). (g) Other adversary adjudications that fall within the coverage of the Act.

(Authority: 5 U.S.C. 504(c) and 554; 20 U.S.C. 1234(f)(2))

§ 21.11 Effect of judicial review of adversary adjudication.

If a court reviews the underlying decision of an adversary adjudication covered under this part, an award of fees and other expenses may be made only under 28 U.S.C. 2412 (awards in certain judicial proceedings).

(Authority: 5 U.S.C. 504(c)(1); 28 U.S.C. 2412(d)(3))

Subpart C-How Is Eligibility Determined?

§ 21.20 Types of eligible applicants.

The following types of parties that prevail in adversary adjudications are eligible to apply under the Act for an award of fees and other expenses:

(a) An individual who has a net worth of not more than $2 million.

(b) Any owner of an unincorporated business who has

(1) A net worth of not more than $7 million, including both personal and business interests; and

(2) Not more than 500 employees.

(1) As described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)); and

(2) Having not more than 500 employ

ees.

(d) A cooperative association

(1) As defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141(a)); and

(2) Having not more than 500 employees.

(e) Any other partnership, corporation, association, unit of local government, or organization that has—

(1) A net worth of not more than $7 million; and

(2) Not more than 500 employees. (Authority: 5 U.S.C. 504(b)(1)(B))

$21.21 Determination of net worth and number of employees.

(a) The adjudicative officer shall determine an applicant's net worth and number of employees as of the date the adversary adjudication was initiated.

(b) In determining eligibility, the adjudicative officer shall include the net worth and number of employees of the applicant and all of the affiliates of the applicant.

(c) For the purposes of paragraph (b) of this section, the adjudicative officer shall consider the following as an affiliate:

(1) Any individual, corporation, or other entity that directly or indirectly owns or controls a majority of the voting shares or other interest of the applicant;

(2) Any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest; and

(3) Any entity with a financial relationship to the applicant that, in the determination of the adjudicative officer, constitutes an affiliation for the purposes of paragraph (b) of this section.

(d) In determining the number of employees of an applicant and its affiliates, the adjudicative officer shall count part-time employees on a proportional basis.

(Authority: 5 U.S.C. 504(c)(1))

§21.22 Applicants representing others.

If an applicant is a party in an adversary adjudication primarily on behalf of one or more persons or entities that are ineligible under this part, then the applicant is not eligible for an award. (Authority: 5 U.S.C. 504 (b)(1)(B) and (c)(1))

bpart D-How Does One Apply for an Award?

.30 Time for filing application.

a) In order to be considered for an ard under this part, an applicant y file its application when it prels in an adversary adjudication-or a significant and discrete subntive portion of an adversary adjuation-but no later than 30 days er the Department's final disposin of the adversary adjudication. b) In the case of a review or reconeration of a decision in which an apcant has prevailed or believes it has vailed, the adjudicative officer shall y the proceedings on the application iding final disposition of the underng issue.

c) For purposes of this part, final position of the adversary adjudican means the latest of

1) The date on which an initial decin or other recommended disposition the merits of the proceeding by an udicative officer becomes administively final;

2) The date of an order disposing of y petitions for reconsideration of the al order in the adversary adjudican;

3) If no petition for reconsideration filed, the last date on which that e of petition could have been filed;

4) The date of a final order or any er final resolution of a proceedingch as a settlement or voluntary disssal-that is not subject to a petin for reconsideration.

thority: 5 U.S.C. 504 (a)(2) and (c)(1))

1.31 Contents of application.

a) In its application for an award of s and other expenses, an applicant ll include the following:

1) Information adequate to show at the applicant is a prevailing party an adversary adjudication or in a nificant and discrete substantive -tion of an adversary adjudication. 2) A statement that the adversary udication is covered by the Act acding to § 21.10.

3) An allegation that the position of › Department was not substantially

justified, including a description of the specific position.

(4) Unless the applicant is a qualified tax-exempt organization or a qualified agricultural cooperative association, information adequate to show that the applicant qualifies under the requirements of §§ 21.20 and 21.21 regarding net worth. The information, if applicable, shall include a detailed exhibit of the net worth of the applicant-and its affiliates as described in § 21.21-as of the date the proceeding was initiated.

(5)(i) The total amount of fees and expenses sought in the award; and

(ii) An itemized statement of— (A) Each expense; and

(B) Each fee, including the actual time expended for this fee and the rate at which the fee was computed.

(6) A written verification under oath or affirmation or under penalty of perjury from each attorney representing the applicant stating—

(i) The rate at which the fee submitted by the attorney was computed; and

(ii) The actual time expended for the fee.

(7) A written verification under oath, affirmation, or under penalty of perjury that the information contained in the application and any accompanying material is true and complete to the best of the applicant's information and belief.

(b) The adjudicative officer may require the applicant to submit additional information.

(Authority: 5 U.S.C. 504 (a)(2) and (c)(1))

§ 21.32 Confidentiality of information about net worth.

(a) In a proceeding on an application, the public record ordinarily includes the information showing the net worth of the applicant.

(b) However, if an applicant objects to public disclosure of any portion of the information and believes there are legal grounds for withholding it from disclosure, the applicant may submit directly to the adjudicative officer

(1) The information the applicant wishes withheld in a sealed envelope labeled "Confidential Financial Information;" and

(2) A motion to withhold the information from public disclosure.

(1) Describe the information the applicant is requesting be withheld; and (2) Explain in detail

(i) Why that information falls within one or more of the specific exemptions from mandatory disclosure under the Freedom of Information Act;

(ii) Why public disclosure of the information would adversely affect the applicant; and

(iii) Why disclosure is not required in the public interest.

(d)(1) The applicant shall serve on Department's counsel a copy of the material referred to in paragraph (c) of this section.

(2) The applicant is not required to give a copy of that material to any other party to the proceeding.

(e)(1) If the adjudicative officer finds that the information should not be withheld from public disclosure, the information is placed in the public record of the proceeding.

(2) If the adjudicative officer finds that the information should be withheld from public disclosure, any request to inspect or copy the information is treated in accordance with the Department's established procedures under the Freedom of Information Act (34 CFR part 5).

(Authority: 5 U.S.C. 504(c)(1))

§ 21.33 Allowable fees and expenses.

(a) A prevailing party may apply for an award of fees and other expenses incurred by the party in connection with

(1) An adversary adjudication; or

(2) A significant and discrete substantive portion of an adversary adjudication.

(b) If a proceeding includes issues covered by the Act and issues excluded from coverage, the applicant may apply only for an award of fees and other expenses related to covered issues.

(1) An award of fees based on rates customarily charged by attorneys, agents, and expert witnesses.

(2) An award for the reasonable expenses of the attorney, agent, or expert witness as a separate item if the attorney, agent, or expert witness ordinarily

charges clients separately for those expenses.

(3) The cost of any study, analysis, engineering report, test, or project related to the preparation of the applicant's case in the adversary adjudication.

(d) The calculation of fees and expenses as provided for under paragraph (c) of this section shall be in accordance with the standards for awards as described in §21.50(a) through (c).

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

Subpart E-What Procedures Are Used in Considering Applications?

§ 21.40 Filing and service of documents.

(a) Except as provided in § 21.32 and in applications subject to the jurisdiction of the CRRA, an applicant shall—

(1) File with the adjudicative officer its application and any related documents; and

(2) Serve on all parties to the adversary adjudication copies of its application and any related documents.

(b)(1) In an application subject to the jurisdiction of the CRRA, the applicant shall

(i) File with the CRRA its application and any other related documents; and

(ii) Serve on all parties to the adversary adjudication copies of its application and any related documents.

(2) In applications subject to §21.40(b)(1), the CRRA shall direct the adjudicative officer to issue an initial decision within 30 days of the completion of the proceedings on the application. The adjudicative officer shall conduct proceedings under the procedures of §§ 21.41-21.44.

(Authority: 5 U.S.C. 504(a)(2) and (c)(1); 20 U.S.C. 1681; 29 U.S.C. 794; 42 U.S.C. 2000d-1 et seq. and 6101 et seq.)

§ 21.41 Answer to application.

(a)(1) Within 30 days after receiving an application for an award under this part, the Department's counsel may file an answer to the application.

(2) The Department's counsel may request an extension of time for filing the Department's answer.

(i) Explain any objections to the ward requested; and

(ii) Identify the facts relied on in suport of the position of the Department. (2) If the answer is based on any alged facts not in the record of the adersary adjudication, the Department's ounsel shall include with the answer ther

(i) Supporting affidavits; or (ii) A request for further proceedings ader § 21.44.

(c)(1) If the Department's counsel and e applicant believe that the issues in e application can be settled, they ay jointly file a statement of their tent to negotiate a settlement. (2)(i) The filing of a statement of an tent to negotiate extends the time r filing an answer for 30 days. (ii) The adjudicative officer shall cant further extensions if the Departent's counsel and the applicant joint☛ request those extensions.

Authority: 5 U.S.C. 504(c)(1))

21.42 Reply.

(a) Within 15 days after receiving an swer, an applicant may file a reply. (b) If the applicant's reply is based on ny alleged facts not in the record of e adversary adjudication, the applint shall include with the reply ei

(1) Supporting affidavits; or

(2) A request for further proceedings ader §21.44.

uthority: 5 U.S.C. 504(c)(1))

21.43 Comments by other parties. (a) Any party to a proceeding, other an an applicant or the Department's unsel, may file comments on

(1) The application within 30 days ter the applicant files the applicaon;

(2) The answer within 30 days after Le counsel files the answer; or

(3) Both, if the comments are filed ithin the time period specified in ragraphs (a)(1) and (a)(2) of this sec

on.

(b) The commenting party may not participate further in proceedings on the application unless the adjudicative officer determines that further participation is necessary to permit full exploration of matters raised in the comments.

(Authority: 5 U.S.C. 504(c)(1))

§ 21.44 Further proceedings.

(a) The adjudicative officer shall make the determination of an award on the basis of the written record.

(b)(1) However, the adjudicative officer may order further proceedings on his or her own initiative or at the request of the applicant or the Department's counsel.

(2) The adjudicative officer may order further proceedings only if he or she determines that those proceedings are necessary for full and fair resolution of issues arising from the application.

(3) If further proceedings are ordered, the adjudicative officer shall determine the scope of those proceedings, which may include such proceedings as informal conferences, oral arguments, additional written submissions, discovery, or an evidentiary hearing.

(4) An adjudicative officer may not order discovery or an evidentiary hearing for the issue of whether or not the Department's position was substantially justified.

(c) If the applicant or the Department's counsel requests the adjudicative officer to order further proceedings, the request must

(1) Specify the information sought or the disputed issues; and

(2) Explain why the additional proceedings are necessary to obtain that information or resolve those issues.

(Authority: 5 U.S.C. 504(a)(3) and (c)(1))

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