A party who prevails in an agency proceeding shall be awarded reasonable fees and expenses incurred by that party unless the court or agency finds that the position of the state was substantially justified or that special circumstances make an award unjust.[i]  A party seeking an award of fees and other expenses shall submit to the agency or commission which rendered the final disposition or judgment an application to receive an award.  The application must be submitted within thirty days of final disposition of litigation[ii]

A party dissatisfied with the determination of fees and other expenses made in an agency proceeding can seek judicial review of that determination from the court having jurisdiction to review the merits of the decision.  However, judicial review of the decision must be sought within thirty days after the determination is made.  If a party or state is dissatisfied with a determination of fees and other expenses made in a civil action arising from an agency proceeding, the party or state may appeal that order or judgment to the appellate court having jurisdiction to review the merits of that order or judgment.  The appeal must be made within thirty days of the decision.  The thirty day period runs from the date of issuance of the determination or decision.  Furthermore, the notice of petition is effective when received, not when it is sent.  A notice of petition for review is untimely where, although mailed within the thirty day deadline, the notice is not received within the deadline period.  The Equal Access to Justice Act time limitation of thirty days is jurisdictional in nature.[iii] The Equal Access to Justice Act time limitation, as opposed to a statute of limitations, is not subject to equitable tolling or waiver.[iv]

The reviewing or appellate court’s determination on any judicial review or appeal heard under this subsection shall be based solely on the record made before the agency or court below.  The court may modify, reverse, or reverse and remand the determination of fees and other expenses.  The court may reverse or modify the award if the court finds that the award or failure to make an award of fees and other expenses, or the calculation of the amount of the award was:

• arbitrary and capricious;
• unreasonable;
• unsupported by competent and substantial evidence; and
• made contrary to law; or
• in excess of the court’s or agency’s jurisdiction.[v]

For purposes of standard of review, decisions by judges are traditionally divided into three categories denominated as questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for abuse of discretion).[vi]  A party seeking fees and expenses under the Equal Access for Justice Act[vii] has the right to appeal an adverse agency decision.[viii]  Appellate review of an administrative fee determination under the Equal Access to Justice Act is to be conducted in accordance with a deferential abuse of discretion standard of review.

[i]5 U.S.C. § 504

[ii]5 USCS § 504 (a)(2)

[iii]MacDonald Miller Co. v. NLRB, 856 F.2d 1423 (9th Cir. 1988)

[iv]Robbins v. Barnhart, 192 F. Supp. 2d 1211 (D. Kan. 2002)

[v]5 USCS § 504 (c)(2)

[vi]H & E Equip. v. Russell (In re Carlson), 2006 Bankr. LEXIS 2930 (B.A.P. 10th Cir. Nov. 6, 2006)

[vii] 5 U.S.C.S. § 504

[viii]MacDonald Miller Co. v. NLRB, 856 F.2d 1423 (9th Cir. 1988)