29 Cfr 16.201 - 203

§ 16.106

29 CFR Subtitle A (7–1–20 Edition)

control. Part-time employees shall be
included.
(f) The net worth and number of employees of the applicant and all of its
affiliates shall be aggregated to determine eligibility. Any individual, corporation or other entity that directly
or indirectly controls or owns a majority of the voting shares of another
business, or controls, in any manner,
the election of a majority of that business’ board of directors, trustees or
other persons exercising similar functions, shall be considered an affiliate
for purposes of this part, unless the adjudicative officer determines that such
treatment would be unjust and contrary to the purposes of the Act in
light of the actual relationship between the affiliated entities. In addition, the adjudicative officer may determine that financial relationships of
the applicant other than those described in this paragraph constitute
special circumstances that would make
an award unjust.
(g) An applicant that participates in
a proceeding primarily on behalf of one
or more other persons or entities that
would be ineligible is not itself eligible
for an award.
[46 FR 63021, Dec. 29, 1981, as amended at 72
FR 37098, July 9, 2007]

§ 16.106

Standards for awards.

(a) A prevailing applicant may receive an award for fees and expenses incurred in connection with a proceeding,
or in a significant and discrete substantive portion of the proceeding, unless the position of the Department as
a party over which the applicant has
prevailed was substantially justified or
if special circumstances make the
award sought unjust. No presumption
arises that the Department’s position
was not substantially justified simply
because the Department did not prevail.
(b) An award will be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding.
§ 16.107

Allowable fees and expenses.

(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 necessary for the preparation of
the party’s case;
(3) Reasonable attorney or agent fees;
(b) Awards will be based on the prevailing market rates for the kind and
quality of services furnished not to exceed the rates set forth in paragraph
(c) of this section.
(c) No award under these rules for the
fee of an attorney or agent may exceed
$125.00 per hour. No award to compensate an expert witness may exceed
$24.09 per hour.
(d) In determining the reasonableness
of the fee sought, the adjudicative officer shall consider the following:
(1) The prevailing rate for similar
services in the community in which the
attorney, agent or witness ordinarily
performs services;
(2) The time actually spent in the
representation of the applicant;
(3) The difficulty or complexity of
the issues in the proceeding;
(4) Such other factors as may bear on
the value of the services performed.
[46 FR 63021, Dec. 29, 1981, as amended at 72
FR 37098, July 9, 2007]

§ 16.108 Awards against other agencies.
If an applicant is entitled to an
award because it prevails over another
agency of the United States that participates in a proceeding before the Department of Labor and the other agency takes a position that is not substantially justified, the award or an appropriate portion of the award shall be
made against that agency by the adjudicative officer for the Department of
Labor.

Subpart B—Information Required
From Applicants
§ 16.201

Contents of application.

(a) An application for an award of
fees and expenses under the Act shall
identify the applicant and the proceeding for which an award is sought.
The application shall show that the applicant has prevailed and identify the
position of an agency or agencies in the
proceeding that the applicant alleges
was not substantially justified. Unless

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Office of the Secretary of Labor

§ 16.203

the applicant is an individual, the application shall also state the number of
employees of the applicant at the time
the proceeding was instituted and describe briefly the type and purpose of
its organization or business.
(b) The application shall also include
a statement that the applicant’s net
worth at the time the formal proceedings were instituted did not exceed
$1 million (if an individual) or $5 million (for all other applicants, including
their affiliates). However, an applicant
may omit this statement if:
(1) It attaches a copy of a ruling by
the Internal Revenue Service that it
qualifies as an organization described
in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the
case of a tax-exempt organization not
required to obtain a ruling from the Internal Revenue Service on its exempt
status, a statement that describes the
basis for the applicant’s belief that it
qualifies under such section; or
(2) It states that it is a cooperative
association as defined in section 15(a)
of the Agricultural Marketing Act (12
U.S.C. 1141j(a)).
(c) If the applicant is a partnership,
corporation, association, or organization, or a sole owner of an unincorporated business, the application shall
certify that it did not have more than
500 employees at the time the formal
proceedings were initiated, giving the
number of its employees and describing
briefly the type and purpose of its organization or business.
(d) The application shall state the
amount of fees and expenses for which
an award is sought.
(e) The application may also include
any other matters that the applicant
wishes the adjudicative officer to consider in determining whether and in
what amount an award should be made.
(f) The application shall be signed by
the applicant with respect to the eligibility of the applicant and by the attorney of the applicant with respect to
fees and expenses sought. It shall also
contain or be accompanied by a written
verification under oath or under penalty of perjury that the information

provided in the application is true and
correct.
(Approved by the Office of Management and
Budget under control number 1225–0013)
[46 FR 63021, Dec. 29, 1981, as amended at 47
FR 14696, Apr. 6, 1982]

§ 16.202

Net worth exhibit.

(a) Each applicant except a qualified
tax-exempt organization or cooperative
association must provide with its application a detailed exhibit showing
the net worth of the applicant and any
affiliates (as defined in § 16.105(f) of this
part) as of the date when the proceeding was initiated, i.e. the date the
complaint was filed. The exhibit may
be in any form convenient to the applicant that provides full disclosure of the
applicant’s and its affiliates’ assets and
liabilities and is sufficient to determine whether the applicant qualifies
under the standards in this part. The
adjudicative officer may require an applicant to file additional information
to determine its eligibility for an
award.
(b) The net worth exhibit shall be included in the public record of the proceeding in which an award is sought.
(Approved by the Office of Management and
Budget under control number 1225–0013)
[46 FR 63021, Dec. 29, 1981, as amended at 47
FR 14696, Apr. 6, 1982]

§ 16.203 Documentation of fees and expenses.
(a) The application shall be accompanied by full documentation of the
fees and expenses, including the cost of
any study, analysis, engineering report, test, project or similar matter,
for which an award is sought.
(b) The document shall include an affidavit from each professional firm or
individual whose services are covered
by the application, showing the hours
spent in connection with the proceeding by each individual, a description of the specific services performed,
the rate at which each fee has been
computed, any expenses for which reimbursement is sought, the total
amount claimed, and the total amount
paid or payable by the applicant or by
any other person or entity for the services provided.

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§ 16.204

29 CFR Subtitle A (7–1–20 Edition)

(1) The affidavit shall itemize in detail the services performed by the date,
number of hours per date and the services performed during those hours. In
order to establish the hourly rate, the
affidavit shall state the hourly rate
which is billed and paid by the majority of clients during the relevant time
periods.
(2) If no hourly rate is paid by the
majority of clients because, for instance, the attorney or agent represents most clients on a contingency
basis, the attorney or agent shall provide affidavits from two attorneys or
agents with similar experience, who
perform similar work, stating the
hourly rate which they bill and are
paid by the majority of their clients
during a comparable time period.
(c) The documentation shall also include a description of any expenses for
which reimbursement is sought and a
statement of the amounts paid and
payable by the applicant or by any
other person or entity for the services
provided.
(d) The adjudicative officer may require the applicant to provide vouchers, receipts, or other substantiation
for any expenses claimed.
(Approved by the Office of Management and
Budget under control number 1225–0013)
[46 FR 63021, Dec. 29, 1981, as amended at 47
FR 14696, Apr. 6, 1982]

view board becomes administratively
final;
(2) Issuance of an order disposing of
any petitions for reconsideration of
this agency’s final order in the proceeding; (3) if no petition for reconsideration is filed, the last date on which
such a petition could have been filed;
or
(4) Issuance of a final order or any
other final resolution of a proceeding,
such as a settlement or voluntary dismissal, which is not subject to a petition for reconsideration, or, in the case
of an abatement, the end of the abatement period or the date on which an
order is issued terminating the abatement period.
(Approved by the Office of Management and
Budget under control number 1225–0013)
[46 FR 63021, Dec. 29, 1981, as amended at 47
FR 14696, Apr. 6, 1982]

Subpart C—Procedures for
Considering Applications
§ 16.301 Filing and service of documents.
Any application for an award or
other pleading or document related to
an application shall be filed with the
adjudicative officer and served on all
parties to the proceeding in the same
manner as other pleadings in the proceeding.

§ 16.204 When an application may be
filed.

§ 16.302

(a) An application may be filed whenever the applicant has prevailed in the
proceeding or in a significant and discrete substantive portion of the proceeding, but in no case later than 30
days after the agency’s final disposition of the proceeding.
(b) If review or reconsideration is
sought or taken of a decision as to
which an applicant believes it has prevailed, matters related to the consideration of an award of fees and expenses
shall be stayed pending final disposition of the underlying controversy.
(c) For purposes of this rule final disposition means the later of:
(1) The date on which an initial decision or other recommended disposition
of the merits of the proceeding by an
adjudicative officer or intermediate re-

(a) Within 30 days after service of an
application, counsel representing the
agency against which an award is
sought may file an answer to the application. Unless agency counsel requests
an extension of time for filing or files
a statement of intent to negotiate
under paragraph (b) of this section,
failure to file an answer within the 30
day period may be treated as a consent
to the award requested.
(b) If agency counsel and the applicant believe that the issues in the fee
application can be settled, they may
jointly file a statement of their intent
to negotiate a settlement. The filing of
this statement shall extend the time
for filing an answer for an additional 30
days, and further extensions may be
granted by the adjudicative officer

Answer to application.

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