1. In any civil judicial proceeding involving as adverse parties an administrative agency
and a party not an administrative agency or an agent of an administrative agency, the
court must award the party not an administrative agency reasonable attorney's fees
and costs if the court finds in favor of that party and, in the case of a final agency
order, determines that the administrative agency acted without substantial justification.
2. This section applies to an administrative or civil judicial proceeding brought by a party
not an administrative agency against an administrative agency for judicial review of a
final agency order, or for judicial review pursuant to this chapter of the legality of
agency rulemaking action or a rule adopted by an agency as a result of the rulemaking
action being appealed.
3. Any attorney's fees and costs awarded pursuant to this section must be paid from
funds available to the administrative agency the final order, rulemaking action, or rule
of which was reviewed by the court. The court may withhold all or part of the attorney's
fees from any award if the court finds the administrative agency's action, in the case of
a final agency order, was substantially justified or that special circumstances exist
which make the award of all or a portion of the attorney's fees unjust.
4. This section does not alter the rights of a party to collect any fees under other
applicable law.
5. In any civil judicial proceeding involving adverse parties to an appeal or enforcement
action involving an environmental permit issued under chapter 23.1-04, 23.1-06,
23.1-08, or 61-28 in which two or more of the adverse parties are not an administrative
agency or an agent of an administrative agency, the court may award the prevailing
nonagency party reasonable attorney's fees and costs if the court finds in favor of that
party and determines that the nonprevailing nonagency party acted without substantial
justification, or on the basis of claims or allegations that are factually unsupported. The
court shall award reasonable attorney's fees and costs if the court determines that the
nonprevailing nonagency party's claims or allegations are frivolous as provided in
section 28-26-01. If the appeal or civil judicial proceeding covered by this subsection
involves multiple claims or allegations, the court may apportion attorney's fees and
costs in proportion to the time reasonably spent by a prevailing party relating to claims
pursued by the nonprevailing party that were frivolous, factually unsupported, or
without substantial justification.
Notes of Decisions
Rojas v. Workforce Saf. & Ins., 2006 ND 221 (N.D. 2006).
· cites it 66× “[¶ 8] Rojas petitioned the district court for payment of attorney's fees under N.D.C.C. § 28-32-50, which governs payment of attorney's fees in civil judicial proceedings against administrative agencies.”
Tedford v. Workforce Saf. & Ins., 2007 ND 142 (N.D. 2007).
· cites it 44× “[¶1] Workforce Safety and Insurance ("WSI") appealed from an amended judgment reversing WSI's decision to offset Richard Tedford's federal social security retirement benefits against his workers compensation disability benefits and from an order awarding Tedford attorney fees…”
Carlson v. Workforce Saf. & Ins., 821 N.W.2d 760 (N.D. 2012).
· cites it 10× “[¶ 9] Before the hearing, Carlson moved for summary disposition on whether administrative res judicata barred litigation of his employment status, whether Carlson suffered due process violations and whether Carlson was entitled to attorney’s fees under N.D.C.C. § 28-32-50.…”
Bruder v. North Dakota Workforce Saf. & Ins. Fund, 2009 ND 23 (N.D. 2009).
· cites it 8× “We reverse the judgment and reinstate WSI’s final order denying benefits, concluding WSI’s findings of fact were supported by a preponderance of the evidence, WSI adequately explained its reasons for disregarding medical evidence favorable to Bruder, and the district court erred…”
Drayton v. Workforce Saf. & Ins., 2008 ND 178 (N.D. 2008).
· cites it 8× “We also conclude the district court erred in awarding Drayton attorney’s fees under N.D.C.C. § 28-32-50. We therefore reverse the district court judgment and reinstate WSI’s order discontinuing Drayton’s temporary disability benefits.”
Walstad v. Walstad, 2012 ND 204 (N.D. 2012).
· cites it 10× “[¶9] Before the hearing, Carlson moved for summary disposition on whether administrative res judicata barred litigation of his employment status, whether Carlson suffered due process violations and whether Carlson was entitled to attorney’s fees under N.D.C.C. § 28-32-50.…”
Kroschel v. Levi, 2015 ND 185 (N.D. 2015).
· cites it 4× “State: “[Section 28-32-50, N.D.C.C.,] sets forth a two-part test which must be met in order to properly award attorney fees: first, the nonadministrative party must prevail, and second, the agency must have acted without ‘substantial justification.”
WSI v. Badger Roustabouts, 2021 ND 166 (N.D. 2021).
· cites it 20× “In addition to affirming the ALJ’s order, the court awarded attorney’s fees to Badger under N.D.C.C. § 28-32-50. We affirm the judgment affirming the ALJ’s order and reverse the court’s award of attorney’s fees.”
French v. Dir., North Dakota Dep't of Transp., 930 N.W.2d 84 (N.D. 2019).
· cites it 6× “Because we conclude the hearing officer did not err in its decision, we conclude the Department had substantial justification for purposes of N.D.C.C. § 28-32-50. We therefore conclude the district court abused its discretion in awarding attorney fees.”
Sloan v. North Dakota Workforce Saf. & Ins., 2011 ND 194 (N.D. 2011).
· cites it 2× “IV [¶ 23] Sloan has also moved this Court on appeal for attorney’s fees and costs under N.D.C.C. § 28-32-50. Under this section a court must award a party, that is not an administrative agency, reasonable attorney’s fees and costs, “if the court finds in favor of that party and,…”
— N.D. Cent. Code § 28-32-50(1) — 27 cases
Tedford v. Workforce Saf. & Ins., 2007 ND 142 (N.D. 2007).
“[¶1] Workforce Safety and Insurance ("WSI") appealed from an amended judgment reversing WSI's decision to offset Richard Tedford's federal social security retirement benefits against his workers compensation disability benefits and from an order awarding Tedford attorney fees…”
Bruder v. North Dakota Workforce Saf. & Ins. Fund, 2009 ND 23 (N.D. 2009).
“We reverse the judgment and reinstate WSI’s final order denying benefits, concluding WSI’s findings of fact were supported by a preponderance of the evidence, WSI adequately explained its reasons for disregarding medical evidence favorable to Bruder, and the district court erred…”
Carlson v. Workforce Saf. & Ins., 821 N.W.2d 760 (N.D. 2012).
“[¶ 9] Before the hearing, Carlson moved for summary disposition on whether administrative res judicata barred litigation of his employment status, whether Carlson suffered due process violations and whether Carlson was entitled to attorney’s fees under N.D.C.C. § 28-32-50.…”
Drayton v. Workforce Saf. & Ins., 2008 ND 178 (N.D. 2008).
“We also conclude the district court erred in awarding Drayton attorney’s fees under N.D.C.C. § 28-32-50. We therefore reverse the district court judgment and reinstate WSI’s order discontinuing Drayton’s temporary disability benefits.”
— N.D. Cent. Code § 28-32-50(2) — 1 case
WSI v. Badger Roustabouts, 2021 ND 166 (N.D. 2021).
“In addition to affirming the ALJ’s order, the court awarded attorney’s fees to Badger under N.D.C.C. § 28-32-50. We affirm the judgment affirming the ALJ’s order and reverse the court’s award of attorney’s fees.”
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