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Guidelines -- Review of Initial Decisions on Fee Applications Under the Equal Access to Justice Act


The Equal Access to Justice Act, United States Code (U.S.C.) Title 5, section 504, provides for an award of reasonable attorney fees and other expenses to eligible prevailing parties (other than the United States) in adversary adjudications under 5 U.S.C. § 554. The regulations at Title 45 Code of Federal Regulations (C.F.R.) Part 13 describe the circumstances under which the Department of Health & Human Services (Department) may award attorney fees and expenses to eligible individuals and entities who prevail over the Department in such administrative proceedings. An applicant may be reimbursed for fees and expenses if: (1) the Department’s position in the proceeding was not substantially justified, or (2) the action is one to enforce compliance with a statutory or regulatory requirement and the Department’s demand is substantially in excess of the ultimate decision and is unreasonable when compared with that decision. See 45 C.F.R. § 13.1.

The Departmental Appeals Board (Board) reviews initial decisions of administrative law judges (ALJs) on applications for fee awards in cases in which the Board would have jurisdiction over an appeal of the underlying decision on the merits. See 45 C.F.R. § 13.27(a). These guidelines have been designed to assist the parties in understanding and following the procedures in 45 C.F.R. § 13.27 relating to Board review.

If you have any questions about these guidelines, you may call the Appellate Division at (202) 565-0208 or call the Appellate Division Director directly at the number listed under Contact DAB on the DAB website (https://www.hhs.gov/about/agencies/dab/about-dab/contact-dab/index.html#appellate).

Starting the Review Process

(a) Either an applicant for an award of fees and expenses or the agency’s litigating party may appeal an ALJ decision to the Board by filing exceptions with the Board within 30 days of issuance of the ALJ decision and serving a copy of the exceptions on the opposing party within the same period of time. See 45 C.F.R. § 13.27(b).

(b) Within 30 days after its receipt of exceptions filed and served within the 30-day period specified in (a) above, the opposing party, if it has not previously filed exceptions, may file its own exceptions to the ALJ decision. See 45 C.F.R. § 13.27(b).

(c) A party that does not file and serve exceptions within the time limit specified in (a) above or file exceptions within the time limit specified in (b) above loses the opportunity to do so. See 45 C.F.R. § 13.27(b). Parties should retain proof of the date exceptions were filed and proof of the date exceptions filed under (a) above were served and/or received.

(d) The exceptions must be in the form of a written brief specifying each finding of fact and conclusion of law with which you disagree, and your basis for contending that each such finding or conclusion is unsupported or incorrect. The Board expects that the basis for each challenge to a finding or conclusion in the ALJ decision will be set forth in a separate paragraph or section, and that the accompanying arguments will be concisely stated. In addition, where appropriate, each argument should be supported by precise citations to the record and/or by precise citations to statutes, regulations or other relevant authorities upon which you are relying.

(e) An applicant has a right to be represented before the Board, at the applicant’s own expense, by an attorney.  A representative should file with the Board a signed statement that he or she has been authorized to represent the applicant, unless the same representative appeared in the proceedings before the ALJ.

Filing Requirements for All Submissions

(a) A submission is considered “filed” with the Board on the postmark date, the date sent by registered or certified mail, the date deposited with a commercial delivery service, or the date a fax (where permitted) is sent.

(b) If the last day of the period for filing a submission falls on a federal nonworkday (a Saturday, Sunday, legal holiday, or a day which by statute or Executive Order is declared to be a nonworkday for federal employees), the submission may be filed on the next federal workday. 

(c) All submissions to the Board should be addressed to:

Department of Health and Human Services
Departmental Appeals Board, MS 6127
Appellate Division
330 Independence Ave., S.W.
Cohen Building, Room G-644
Washington, D.C. 20201

Faxes should be sent to (202) 565-0238. Please do not fax a submission if it is over 10 pages.

(d) Both parties should provide an original and two copies of all submissions to the Board and a copy to the opposing party.  (If your submission is faxed, the required two copies should be mailed.) Include in any submission to the Board a statement that you have sent a copy to the opposing party.  

(e) The parties should not submit materials already submitted to the ALJ in proceedings on the fee application or previously submitted to the ALJ or the Board in proceedings on the merits since those materials will be transferred to the Board by the ALJ. The Board will omit from the public record any exhibit or portion of an exhibit treated by the ALJ as confidential financial information. 

(f) A submission (including the exceptions) may not incorporate by reference a brief or part of a brief previously submitted to the ALJ.

(g) Certain written submissions are subject to page limits, unless the Board grants a motion to increase the number of pages: exceptions – no more than 40 pages; response – no more than 40 pages. If typed, the submission should be double-spaced and the font size should be no less than 12.  Cover letters and attachments are not included in the page count. 

Development of the Record on Appeal

(a) The exceptions are referred to a panel of three Board members, one of whom presides over the development of the record on appeal.  The Presiding Board Member is assisted by a staff attorney whom the parties may contact if they have questions about case status or procedures. 

(b) A party may submit a response to the other party’s exceptions. The response must be filed within 30 days after receiving the exceptions.

(c) The Board expects any party needing an extension for filing the response (or any additional submissions permitted or required by the Board) to file a request for an extension before the original due date, to include a statement about whether the opposing party objects to the requested extension, and to state the reasons for the request.  The Board will grant an extension only for good cause shown. 

(d) On rare occasions, the Board may grant a request for oral argument if the Board determines that oral argument would facilitate its decisionmaking. A party wishing to appear before the Board to present oral argument should request such an opportunity in the exceptions or the response and should state the purpose of the requested appearance. Generally, any oral proceeding will be conducted by the Presiding Board Member by telephone conference rather than in person.

Completion of the Review Process

(a) The Board may affirm, modify or reverse the ALJ decision or may remand the fee application to the ALJ for further proceedings.

(b) The Board has adopted the following standard of review. The standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence in the record as a whole. The standard of review on a disputed issue of law is whether the ALJ decision is erroneous. The bases for modifying, reversing or remanding an ALJ decision include the following: a finding of material fact necessary to the outcome of the decision is not supported by substantial evidence; a legal conclusion necessary to the outcome of the decision is erroneous; the decision is contrary to law or applicable regulations; a prejudicial error of procedure (including an abuse of discretion under the law or applicable regulations) was committed.

(c) The Board will review only those parts of the record before the ALJ which have been cited by the parties or which the Board considers necessary to decide the appeal. The Board need not consider issues not raised in the exceptions, nor issues which could have been presented to the ALJ but were not.

(d) The decision of the Board (other than a remand by the Board to the ALJ) is binding unless the applicant has a right to judicial review and timely files a civil action seeking judicial review in accordance with 5 U.S.C. § 504(c)(2). See 45 C.F.R. § 13.28.

Last Revised: September 23, 2010

Content created by Departmental Appeals Board (DAB)
Content last reviewed on September 23, 2010