|
DAB Menu
|
 |
Departmental Appeals Board
GUIDELINES --
REVIEW OF INITIAL DECISIONS ON
FEE APPLICATIONS UNDER THE EQUAL ACCESS TO JUSTICE ACT
Introduction
The Equal Access to Justice Act (at section 504 of title 5, United States
Code) provides for an award of reasonable attorney fees and expenses to eligible
prevailing parties (other than the United States) in agency adjudications under
section 554 of Title 5. The prevailing party is entitled to an award unless the
adjudicative officer of the agency finds that the position of the agency as a
party to the proceedings was substantially justified or that special
circumstances make an award unjust. At the Department of Health and Human
Services, decisions of the adjudicative officer on applications for fee awards
are subject to review by the head of the constituent agency or office or his or
her designee. By delegation from the Inspector General, the Departmental Appeals
Board reviews decisions of administrative law judges (ALJs) on applications for
fee awards relating to Office of Inspector General proceedings. These guidelines
have been designed to assist the parties in understanding and following the
procedures relating to Board review.
If you have any questions about these guidelines, you may call Senior Staff
Attorney Leslie Sussan at (202) 690-7518.
Starting the Review Process
-
Either the applicant or the Inspector General may seek review of the
initial decision of the ALJ. You must file and serve your request for
review within 30 days after issuance of the initial decision.
"Filing" for
purposes of appeal of fee application decisions means the date on which the
appeal is mailed or delivered to the Board.
-
To file, submit your request for review to the Department of Health and Human Services, Departmental Appeals Board, MS6127, Appellate Division, 330 Independence Ave., S.W., Cohen Building, Room G-644, Washington, DC 20201.
-
Your appeal must include a written brief specifying findings of fact and
conclusions of law with which you disagree (exceptions), and your basis for
contending that each such finding or conclusion is unsupported or incorrect.
This requirement to state your entire argument is important, because you may
not have an opportunity to file additional briefs. Do not merely incorporate
by reference a brief previously submitted to the ALJ. The basis for
challenging each element of the ALJ decision should be set forth in a separate
numbered paragraph or section, and the accompanying arguments concisely
stated. Where appropriate, each argument should be supported by precise
citations to the record before the ALJ or by precise citations to statutes,
regulations or other authorities relied upon. Do not submit materials already
in the record.
-
Whenever you submit anything to the Board, provide an original and two
copies to the Board and a copy to your opponent. Include in your submission to
the Board a statement that you have sent a copy to your opponent.
Development of the Record on Appeal
-
The appeal and the record are immediately referred to a panel of three
Board Members, one of whom presides. The panel is assisted by a staff attorney
who also functions as the parties' contact for questions about case status and
procedures. The panel oversees any further record development and issues a
determination on the appeal.
-
The opponent of the party filing the exceptions may submit a response. The
response should follow the guidelines on completeness and citations prescribed
for the exceptions in 1(c) above. The response must be filed within 30 days
after the opponent receives a copy of the exceptions.
-
Generally, the exceptions and the response are the only additions to the
record on appeal.
-
The panel, in its sole discretion, may require further submissions or
provide for a telephone conference with the parties, either on its own motion
or upon request of a party.
The review process at the Board
-
The panel may affirm, modify or reverse the initial decision of the ALJ.
The panel also may remand the fee application to the ALJ for further
proceedings. If the exceptions are not filed timely or fail to meet
jurisdictional requirements, the panel will decline to review the initial
decision. Generally, the panel will complete its review and issue a final
decision within 30 days after it receives the last submission from the
parties.
-
The standard of review on a disputed factual issue is whether the ALJ's
initial decision is supported by substantial evidence in the record. The
standard of review on a disputed issue of law is whether the ALJ's decision is
erroneous. The bases for modifying, reversing or remanding an ALJ's 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.
-
The panel will review only those parts of the record before the ALJ which
have been cited by the parties or which the panel considers necessary to
decide the appeal. The panel will not consider issues not raised in the
request for review, nor issues which could have been presented to the ALJ but
were not.
-
The decision of the panel is final, except in the case of a remand by the
panel to an ALJ. Judicial review is available as provided in 5 U.S.C. �
504(c)(2).
|
Download Reader 
