PART 2610 -- IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT
Subpart A -- General Provisions
Sec.
2610.101 Definitions.
2610.102 Purpose.
2610.103 When the Act applies.
2610.104 Proceedings covered.
2610.105 Eligibility of applicants.
2610.106 Standards for awards.
2610.107 Allowable fees and expenses.
2610.108 Rulemaking on maximum rate for attorney fees.
2610.109 Awards against other agencies.
Subpart B -- Information Required From Applicants
2610.201 Contents of application.
2610.202 Net worth exhibit.
2610.203 Documentation of fees and expenses.
2610.204 When an application may be filed.
Subpart C -- Procedures for Considering Applications
2610.301 Jurisdiction of adjudicative officer.
2610.302 Filing and service of documents.
2610.303 Answer to application.
2610.304 Reply.
2610.305 Comments by other parties.
2610.306 Settlement.
2610.307 Further proceedings.
2610.308 Decision.
2610.309 Agency review.
2610.310 Judicial review.
2610.311 Payment of award.
Authority: 5 U.S.C. 504(c)(1); 5 U.S.C. App. (Ethics in Government Act of 1978).
Source: 57 FR 33268, July 28, 1992, unless otherwise noted.
Subpart A -- General Provisions
2610.101 Definitions.
(a) Act means the Equal Access to Justice Act, 5 U.S.C. 504, as amended.
(b) Adjudicative officer means the official, without regard to whether the official is designated as a hearing examiner, administrative law judge, administrative judge, or otherwise, who presided at the adversary adjudication.
(c) Adversary adjudication means:
(1) An adjudication under 5 U.S.C. 554 in which the position of the United States is represented by counsel or otherwise, but not including an adjudication for the purpose of establishing or fixing a rate or for the purpose of granting or renewing a license; and
(2) An appeal of a decision of a contracting officer made pursuant to section 6 of the Contracts Disputes Act of 1978 (41 U.S.C. 605) as provided in section 8 of that statute (41 U.S.C. 607).
(d) Agency counsel means:
(1) When the position of the Office is being represented, the attorney or attorneys designated by the Office's General Counsel to represent the Office in a proceeding covered by this part; and
(2) When the position of another agency of the United States is being represented, the representative or representatives as designated by that agency.
(e) Office means the United States Office of Government Ethics, or the organizational unit within the Office responsible for conducting an adversary adjudication subject to this part.
(f) Proceeding means an adversary adjudication as defined above.
(g) Director means the Director of the United States Office of Government Ethics.
2610.102 Purpose.
The Act provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (``adversary adjudications'') before the Office of Government Ethics. An eligible party may receive an award when it prevails over the Office unless the Office's position was substantially justified or special circumstances make an award unjust. The rules in this part describe the parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards, and the procedures and standards that the Office will use to make them.
2610.103 When the Act applies.
The Act applies to any adversary adjudication pending or commenced before the Office of Government Ethics on or after October 1, 1989, which is the date the Office became a separate executive agency. Prior to October 1, 1989, the Office was part of the Office of Personnel Management. Any adversary adjudication pending or commenced before October 1, 1989, and not finally disposed of by that date, is governed by the rules and policies implementing the Equal Access to Justice Act as adopted by the Office of Personnel Management.
2610.104 Proceedings covered.
(a) This part applies to adversary administrative adjudications conducted by the Office of Government Ethics. When all other conditions in the Act and in these rules are met, the types of proceedings to which this part applies are adversary administrative adjudications conducted by the Office under:
(1) The Debt Collection Act of 1982, 5 U.S.C. 5514;
(2) The Contract Disputes Act of 1978, 41 U.S.C. 605, 607;
(3) The Ethics in Government Act of 1978, section 402(f)(2), 5 U.S.C. app., and subpart E of part 2638 of this chapter.
(b) The Office's failure to identify a type of proceeding as an adversary adjudication shall not preclude the filing of an application by a party who believes the proceeding is covered by the Act; whether the proceeding is covered will then be an issue for resolution in the proceedings on the application.
(c) 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 matters.
2610.105 Eligibility of applicants.
(a) To be eligible for an award of attorney fees and other expenses under the Act, the applicant must be a party to 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 of this part.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $2,000,000;
(2) The sole owner of an unincorporated business who has a net worth of not more than $7,000,000, including both personal and business interests, 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, unit of local government, or organization with a net worth of not more than $7,000,000 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 underlying proceeding was initiated. For appeals of decisions of contracting officers made pursuant to section 6 of the Contracts Disputes Act of 1978, the net worth and number of employees of an applicant shall be determined as of the date the applicant filed its appeal under 41 U.S.C. 606.
(d) An applicant who owns an unincorporated business will be considered as an ``individual'' rather than a ``sole owner of an unincorporated business'' if the issues on which the applicant prevails are related primarily to personal interests rather than to business interests.
(e) The employees of an applicant include all persons who regularly perform services for remuneration for the applicant, under the applicant's direction and control. Part-time employees shall be included on a proportional basis.
(f) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. An individual, corporation or other entity that directly or indirectly controls or owns a majority of the voting shares or other interests of the applicant, or any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will 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 pr
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