43 C.F.R. § 4.605

Under what circumstances may I receive an award?

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(a) You may receive an award for your fees and expenses in connection with a proceeding if:

(1) You prevailed in the proceeding or in a significant and discrete substantive portion of a proceeding; and

(2) The position of the Department or other agency over which you prevailed was not substantially justified. The Department or other agency has the burden of proving that its position was substantially justified.

(b) An award will be reduced or denied if you have unduly or unreasonably protracted the proceeding or if special circumstances make the award sought unjust.

(c) This paragraph applies to an adversary adjudication arising from an action by the Department or other agency to enforce compliance with a statutory or regulatory requirement:

(1) If the demand of the Department or other agency in the action is excessive and unreasonable compared with the adjudicative officer's decision, then the adjudicative officer must award you your fees and expenses related to defending against the excessive demand, unless:

(i) You have committed a willful violation of law;

(ii) You have acted in bad faith; or

(iii) Special circumstances make an award unjust.

(2) Fees and expenses awarded under this paragraph will be paid only if appropriations to cover the payment have been provided in advance.

Notes of Decisions

Cited in 1 case, 1974–1974 · leading case: Freeman Coal Mining Co., a Div. of Material Serv. Corp. v. Interior Bd. of Mine Operations Appeals, 504 F.2d 741 (7th Cir. 1974).

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Freeman Coal Mining Co., a Div. of Material Serv. Corp. v. Interior Bd. of Mine Operations Appeals, 504 F.2d 741 (7th Cir. 1974). “43 C.F.R. § 4.605 (1973). Moreover, in the present case, the Board and the administrative law judge agreed on certain basic facts, namely, that there was float coal dust throughout the affected area and that the area consisted of 7,200 feet.”

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