(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.
(Authority: 5 U.S.C. 504(a)(1) and (c)(1))
The Act applies to any adversary adjudication covered under this part pending or commenced before the Department on or after August 5, 1985.
(Authority: 5 U.S.C. 504(note))
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.
(Authority: 5 U.S.C. 504(b)(1)(D))
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.
(Authority: 5 U.S.C. 504(b)(1)(C))
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.
(Authority: 5 U.S.C. 504(b)(1)(C); 20 U.S.C. 1681; 29 U.S.C. 794; 42 U.S.C. 2000d-1 et seq. and 6101 et seq.)
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.
(Authority: 5 U.S.C. 504(b)(1)(C); 20 U.S.C. 1681; 29 U.S.C. 794; 42 U.S.C. 2000d-1 et seq. and 6101 et seq.)
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.
(Authority: 5 U.S.C. 504(c)(1))
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.
(Authority: 5 U.S.C. 504 (a)(1), (b)(1)(A), and (c)(1))
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.
(Authority: 5 U.S.C. 504(b)(1)(B))
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.
(Authority: 5 U.S.C. 504 (a)(1) and (b)(1)(E))
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.
(Authority: 5 U.S.C. 504 (b)(2) and (c)(1))