Title 34—Education--Volume 1
PART 21—EQUAL ACCESS TO JUSTICE
§ 21.1   Equal Access to Justice Act.
(a) The Equal Access to Justice Act (the Act) provides for the award of fees and other expenses to applicants that—
(1) Are prevailing parties in adversary adjudications before the Department of Education; and
(2) Meet all other conditions of eligibility contained in this part.
(b) An eligible applicant, as described in paragraph (a) of this section, is entitled to receive an award unless—
(1) The adjudicative officer, the Civil Rights Reviewing Authority (CRRA), or the Secretary on review, determines that—
(i) The Department's position was substantially justified; or
(ii) Special circumstances make an award unjust; or
(2) The adversary adjudication is under judicial review, in which case the applicant may receive an award only as described in § 21.11.
(c) The determination under paragraph (b)(1)(i) of this section is based on the administrative record, as a whole, made during the adversary adjudication for which fees and other expenses are sought.
§ 21.2   Time period when the Act applies.
The Act applies to any adversary adjudication covered under this part pending or commenced before the Department on or after August 5, 1985.
§ 21.3   Definitions.
The following definitions apply to this part:
Act means the Equal Access to Justice Act.
Adjudicative officer means the Administrative Law Judge, hearing examiner, or other deciding official who presided at the underlying adversary adjudication.
Adversary adjudication means a proceeding—
(1) Conducted by the Department for the formulation of an order or decision arising from a hearing on the record under the Administrative Procedure Act (5 U.S.C. 554);
(2) Listed in § 21.10; and
(3) In which the position of the Department was represented by counsel or other representative who entered an appearance and participated in the proceeding.
Application subject to the jurisdiction of the CRRA means an application for fees and expenses based on an underlying proceeding conducted under 34 CFR parts 100, 101, 104, 106, or 110.
CRRA means the Civil Rights Reviewing Authority, the reviewing authority established by the Secretary to consider applications under 34 CFR parts 100, 101, 104, 106, and 110.
Department means the U.S. Department of Education.
Department's counsel means counsel for the Department of Education or another Federal agency.
Employee means:
(1) A person who regularly performs services for an applicant—
(i) For remuneration; and
(ii) Under the applicant's direction and control.
(2) A part-time or seasonal employee who performs services for an applicant—
(i) For renumeration; and
(ii) Under the applicant's direction and control.
Fees and other expenses means an eligible applicant's reasonable fees and expenses—
(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.
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.
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.
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.
§ 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. ).
(c) Compliance proceedings under title IX of the Education Amendments of 1972 (20 U.S.C. 1681 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. 81-815 (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.
§ 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).
§ 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.
(c) A charitable or other tax-exempt organization—
(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 employees.
(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.
§ 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.
§ 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.
§ 21.30   Time for filing application.
(a) In order to be considered for an award under this part, an applicant may file its application when it prevails in an adversary adjudication—or in a significant and discrete substantive portion of an adversary adjudication—but no later than 30 days after the Department's final disposition of the adversary adjudication.
(b) In the case of a review or reconsideration of a decision in which an applicant has prevailed or believes it has prevailed, the adjudicative officer shall stay the proceedings on the application pending final disposition of the underlying issue.
(c) For purposes of this part, final disposition of the adversary adjudication means the latest of—
(1) The date on which an initial decision or other recommended disposition of the merits of the proceeding by an adjudicative officer becomes administratively final;
(2) The date of an order disposing of any petitions for reconsideration of the final order in the adversary adjudication;
(3) If no petition for reconsideration is filed, the last date on which that type of petition could have been filed; or
(4) The date of a final order or any other final resolution of a proceeding—such as a settlement or voluntary dismissal—that is not subject to a petition for reconsideration.
§ 21.31   Contents of application.
(a) In its application for an award of fees and other expenses, an applicant shall include the following:
(1) Information adequate to show that the applicant is a prevailing party in an adversary adjudication or in a significant and discrete substantive portion of an adversary adjudication.
(2) A statement that the adversary adjudication is covered by the Act according to § 21.10.
(3) An allegation that the position of the 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.
§ 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.
(c) The motion must—
(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).
§ 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.
(c) Allowable fees and expenses include the following, as applicable:
(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).
§ 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.
§ 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.
(3) The adjudicative officer shall grant the request for an extension if the Department's counsel shows good cause for the request.
(b)(1) The Department's answer must—
(i) Explain any objections to the award requested; and
(ii) Identify the facts relied on in support of the position of the Department.
(2) If the answer is based on any alleged facts not in the record of the adversary adjudication, the Department's counsel shall include with the answer either—
(i) Supporting affidavits; or
(ii) A request for further proceedings under § 21.44.
(c)(1) If the Department's counsel and the applicant believe that the issues in the application can be settled, they may jointly file a statement of their intent to negotiate a settlement.
(2)(i) The filing of a statement of an intent to negotiate extends the time for filing an answer for 30 days.
(ii) The adjudicative officer shall grant further extensions if the Department's counsel and the applicant jointly request those extensions.
§ 21.42   Reply.
(a) Within 15 days after receiving an answer, an applicant may file a reply.
(b) If the applicant's reply is based on any alleged facts not in the record of the adversary adjudication, the applicant shall include with the reply either—
(1) Supporting affidavits; or
(2) A request for further proceedings under § 21.44.
§ 21.43   Comments by other parties.
(a) Any party to a proceeding, other than an applicant or the Department's counsel, may file comments on—
(1) The application within 30 days after the applicant files the application;
(2) The answer within 30 days after the counsel files the answer; or
(3) Both, if the comments are filed within the time period specified in paragraphs (a)(1) and (a)(2) of this section.
(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.
§ 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.
§ 21.50   Standards for awards.
(a) In determining the reasonableness of the amount sought as an award of fees and expenses for an attorney, agent, or expert witness, the adjudicative officer shall consider one or more of the following:
(1)(i) If the attorney, agent, or expert witness is in private practice, his or her customary fee for similar services; or
(ii) If the attorney, agent, or expert witness is an employee of the applicant, the fully allocated cost of the services.
(2) The prevailing rate for similar services in the community in which the attorney, agent, or expert witness ordinarily performs services.
(3) The time the attorney, agent, or expert witness actually spent on the applicant's behalf with respect to the adversary adjudication.
(4) The time the attorney, agent, or expert witness reasonably spent in light of the difficulty or complexity of the covered issues in the adversary adjudication.
(5) Any other factors that may bear on the value of the services provided by the attorney, agent, or expert witness.
(b) The adjudicative officer may not grant—
(1) An award for the fee of an attorney or agent in excess of $75.00 per hour; or
(2) An award to compensate an expert witness in excess of the highest rate at which the Department pays expert witnesses.
(c) The adjudicative officer may also determine whether—
(1) Any study, analysis, engineering report, text, or project for which the applicant seeks an award was necessary for the preparation of the applicant's case in the adversary adjudication; and
(2) The costs claimed by the applicant for this item or items are reasonable.
(d) The adjudicative officer may not make an award to an eligible party if the adjudicative officer, the CRRA, or the Secretary on review finds that, based on a review of the administrative record as a whole—
(1) The position of the Department, as defined in § 21.3, was substantially justified; or
(2) Special circumstances make an award unjust.
(e) The adjudicative officer may reduce or deny an award to the extent that the applicant engaged in conduct that unduly or unreasonably protracted the adversary adjudication.
(f) If an applicant is entitled to an award because the applicant prevailed over another agency of the United States that participated in a proceeding before the Department and that agency's position was not substantially justified, the adjudicative officer shall determine whether to make the award, or an appropriate portion of the award, against that agency. For the purpose of this determination, the requirements of this subpart apply.
§ 21.51   Initial decision in applications not subject to the CRRA.
(a) In applications not subject to the jurisdiction of the CRRA, the adjudicative officer shall issue an initial decision on an application within 30 days after completion of proceedings on the application.
(b) The initial decision must include the following:
(1) Written findings, including sufficient supporting explanation, on—
(i) The applicant's status as a prevailing party;
(ii) The applicant's eligibility;
(iii) Whether the position of the Department was substantially justified;
(iv) Whether special circumstances make an award unjust;
(v) If applicable, whether the applicant engaged in conduct that unduly or unreasonably protracted the adversary adjudication; and
(vi) Other factual issues raised in the adversary adjudication.
(2) A statement of the amount awarded, including an explanation—with supporting information—for any difference between the amount requested by the applicant and the amount awarded.
(3) A statement of the applicant's right to request review by the Secretary under § 21.54.
(4) A statement of the applicant's right under § 21.56 to seek judicial review of the final award determination.
(c) The explanation referred to in paragraph (b)(2) of this section may include—
(1) Whether the amount requested was reasonable; and
(2) The extent to which the applicant unduly or unreasonably protracted the adversary adjudication.
§ 21.52   Initial decision by an adjudicative officer in applications subject to CRRA jurisdiction.
(a) If the application is subject to the jurisdiction of the CRRA, the adjudicative officer shall issue the initial decision within 30 days after completion of the proceedings.
(b) The initial decision must include the information required under § 21.51(b). However, instead of the information required under § 21.51(b)(3), the initial decision must inform the applicant of—
(1) Its right to request review by the CRRA; and
(2) Its right to request review by the Secretary of the CRRA's final decision.
(c) If the applicant or the Department's counsel appeals the adjudicative officer's initial decision, the appeal must be submitted to the CRRA, in writing, within 30 days after the initial decision is issued.
(d) If the applicant or the Department's counsel does not appeal the adjudicative officer's initial decision to the CRRA and the Secretary does not decide to review the initial decision under § 21.54(a), the initial decision becomes the Department's final decision 60 days after it is issued by the officer.
§ 21.53   Final decision of the CRRA.
(a) In an application subject to the jurisdiction of the CRRA, the CRRA shall, within 30 days after receipt of the written appeal—
(1) Issue a final decision on the appeal of the adjudicative officer's initial decision; or
(2) Remand the application to the adjudicative officer for further proceedings.
(b) The CRRA shall review the initial decision on the basis of the written record of the proceedings on the application. This includes but is not limited to—
(1) The written request; and
(2) The adjudicative officer's findings as described in § 21.51(b).
(c) The CRRA shall act on the review by either—
(1) Issuing a final decision on the application; or
(2) Remanding the application to the adjudicative officer for further proceedings.
(d) If the CRRA issues a final decision, the CRRA's decision must include—
(1) Written findings, including supporting explanation, on—
(i) The applicant's status as a prevailing party;
(ii) The applicant's eligibility;
(iii) Whether the position of the Department was substantially justified;
(iv) Whether special circumstances make an award unjust;
(v) Whether the applicant engaged in conduct that unduly or unreasonably protracted the adversary adjudication; and
(vi) Other factual issues raised in the adversary adjudication.
(2) A statement of the amount awarded, including an explanation—with supporting information—for any difference between the amount requested by the applicant and the amount awarded.
(3) A statement of the applicant's right to request review by the Secretary under § 21.54.
(4) A statement of the applicant's right under § 21.56 to seek judicial review of the final award determination.
(e) The explanation referred to in paragraph (d)(2) of this section may include—
(1) Whether the amount requested was reasonable; and
(2) The extent to which the applicant unduly or unreasonably protracted the adversary adjudication.
§ 21.54   Review by the Secretary.
(a) The Secretary may decide to review—
(1) An initial decision made by an adjudicative officer in a proceeding not subject to CRRA review;
(2) An initial decision made by an adjudicative officer in a proceeding subject to CRRA review that was not appealed to the CRRA; or
(3) A final decision made by the CRRA under § 21.53.
(b)(1) The Secretary does not review a final decision made by an adjudicative officer of the General Services Administration Board of Contract Appeals.
(2) The Secretary or a party to the proceedings may seek reconsideration of the final decision by an adjudicative officer of the General Services Administration Board of Contract Appeals on the fee application in accordance with 48 CFR 6101.32.
(c) The Secretary decides to review a decision under § 21.54(a) either—
(1) Upon receipt of a written request for review by an applicant or Department's counsel; or
(2) Upon the Secretary's own motion.
(d) If the applicant or the Department's counsel seeks a review, the request must be submitted to the Secretary, in writing, within 30 days of—
(1) An initial decision in a proceeding not subject to CRRA review; or
(2) A final decision of the CRRA.
(e) The Secretary decides whether to accept or reject a request for review of an initial decision made by the adjudicative officer in a proceeding not subject to CRRA review or a final decision of the CRRA within 30 days after receipt of a request for review.
(f) The Secretary may decide on his own motion to review a decision made under § 21.54(a) within 60 days of the initial decision by the adjudicative officer or a final decision of the CRRA.
(g) If the Secretary decides to review the adjudicative officer's initial decision or the CRRA's final decision—
(1) The Secretary reviews the adjudicative officer's initial decision or the CRRA's final decision on the basis of the written record of the proceedings on the application. This includes, but is not restricted to—
(i) The written request for review;
(ii) The adjudicative officer's findings as described in § 21.51(b); and
(iii) If applicable, the final decision of the CRRA, if any; and
(2) The Secretary either—
(i) Issues a final decision; or
(ii) Remands the application to the adjudicative officer or the CRRA for further proceedings.
(h) If the Secretary issues a final decision, the Secretary's decision—
(1) Is in writing;
(2) States the reasons for the decision; and
(3) If the decision is adverse to the applicant, advises the applicant of its right to petition for judicial review under § 21.56.
§ 21.55   Final decision if the Secretary does not review.
If the Secretary takes no action under § 21.54—
(a) The adjudicative officer's initial decision on the application becomes the Department's final decision 60 days after it is issued by the adjudicative officer; or
(b) The CRRA's decision on the application becomes the Department's final decision 60 days after it is issued by the CRRA.
§ 21.56   Judicial review.
If the applicant is dissatisfied with the award determination in the final decision under §§ 21.52-21.55, the applicant may seek judicial review of that determination under 5 U.S.C. 504(c)(2) within 30 days after that determination was made.
§ 21.60   Payment of awards.
To receive payment, an applicant granted an award under the Act must submit to the Financial Management Service of the Department—
(a) A request for payment signed by the applicant or its duly authorized agent;
(b) A copy of the final decision granting the award; and
(c) A statement that—
(1) The applicant will not seek review of the decision in the United States courts; or
(2) The process for seeking review of the award has been completed.
§ 21.61   Release.
If an applicant, its agent, or its attorney accepts payment of any award or settlement in conjunction with an application under this part, that acceptance—
(a) Is final and conclusive with respect to that application; and
(b) Constitutes a complete release of any further claim against the United States with respect to that application.