§ 1.1505   Standards for awards.

   (a) A prevailing party may receive an award for fees and expenses
   incurred in connection either with an adversary adjudication, or with a
   significant and discrete substantive portion of an adversary
   adjudication in which the party has prevailed over the position of the
   Commission.

   (1) The position of the Commission includes, in addition to the
   position taken by the Commission in the adversary adjudication, the
   action or failure to act by the agency upon which the adversary
   adjudication is based.

   (2) An award will be reduced or denied if the Commission's position was
   substantially justified in law and fact, if special circumstances make
   an award unjust, or if the prevailing party unduly or unreasonably
   protracted the adversary adjudication.

   (b) If, in an adversary adjudication arising from a Commission action
   to enforce a party's compliance with a statutory or regulatory
   requirement, the demand of the Commission is substantially in excess of
   the decision in the adversary adjudication and is unreasonable when
   compared with that decision, under the facts and circumstances of the
   case, the party shall be awarded the fees and other expenses related to
   defending against the excessive demand, unless the party has committed
   a willful violation of law or otherwise acted in bad faith, or special
   circumstances make an award unjust. The “demand” of the Commission
   means the express demand which led to the adversary adjudication, but
   it does not include a recitation by the Commission of the maximum
   statutory penalty in the administrative complaint, or elsewhere when
   accompanied by an express demand for a lesser amount.

   (c) The burden of proof that an award should not be made is on the
   appropriate Bureau (see § 1.21) whose representative shall be called
   “Bureau counsel” in this subpart K.

   [ 61 FR 39899 , July 31, 1996]

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