HUD 24 CFR PART 14-2011 IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN ADMINISTRATIVE PROCEEDINGS《行政诉讼中司法公正的实施》.pdf

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1、173 Office of the Secretary, HUD Pt. 14 13.4 Reports. AUTHORITY: 39 U.S.C. 3220(a)(2); 5 U.S.C. 301. SOURCE: 51 FR 19830, June 3, 1986, unless otherwise noted. 13.1 Purpose. To support the national effort to lo-cate and recover missing children, the Department of Housing and Urban De-velopment (HUD)

2、 joins other executive departments and independent estab-lishments of the Government of the United States in using penalty mail to disseminate photographs and bio-graphical information on hundreds of missing children. 51 FR 19830, June 3, 1986; 51 FR 43608, Dec. 3, 1986 13.2 Procedures for obtaining

3、 and disseminating data. (a) HUD shall insert, manually and via automated inserts, pictures and bi-ographical data related to missing chil-dren in domestic penalty mail directed to members of the public in the United States, its territories and possessions. These include: (1) Standard letter-size en

4、velopes (412 912); (2) Document-size envelopes (912 12, 912 1112, 10 13); and (3) Other envelopes (miscellaneous size). (b) Missing children information shall not be placed on the Penalty Indi-cia, OCR Read Area, Bar Code Read Area, and Return Address areas of let-ter-size envelopes. (c) Posters con

5、taining pictures and biographical data shall be placed on bulletin boards in Headquarters and Field offices. (d) HUD shall accept camera-ready and other photographic and biographi-cal materials solely from the National Center for Missing and Exploited Chil-dren (National Center). Photographs that we

6、re reasonably current as of the time of the childs disappearance shall be the only acceptable form of visual media or pictorial likeness used in pen-alty mail or posters. 13.3 Withdrawal of data. HUD shall remove all printed penalty mail envelopes and other materials from circulation or other use wi

7、thin a three month period from the date the National Center receives information or notice that a child, whose picture and biographical information have been made available to HUD, has been recovered or that the parent or guard-ians permission to use the childs pho-tograph and biographical informati

8、on has been withdrawn. The HUD contact person shall be notified immediately and in writing by the National Center of the need to withdraw from circula-tion penalty mail envelopes and other materials related to a particular child. 13.4 Reports. HUD shall compile and submit to Of-fice of Juvenile Just

9、ice and Deliquency Prevention (OJJDP), by June 30, 1987, a consolidated report on its experience in implementing S. 1195 Official Mail Use in the Location and Recovery of Missing Children along with recommendations for future Departmental action. PART 14IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE

10、ACT IN ADMINISTRATIVE PRO-CEEDINGS Subpart AGeneral Provisions Sec. 14.50 Definitions. 14.100 Time computation. 14.105 Purpose of these rules. 14.110 When the Act applies. 14.115 Proceedings covered. 14.120 Eligibility of applicants. 14.125 Standards for awards. 14.130 Allowable fees and expenses. 1

11、4.135 Rulemaking on maximum rates for attorney fees. 14.140 Awards against other agencies. Subpart BInformation Required From Applicants 14.200 Contents of application. 14.205 Net worth exhibit. 14.210 Documentation of fees and expenses. 14.215 When an application may be filed. Subpart CProcedures f

12、or Considering Applications 14.300 Jurisdiction of adjudicative officer. 14.305 Filing and service of documents. 14.310 Answer to application. 14.315 Comments by other parties. 14.320 Settlement. 14.325 Extensions of time and further pro-ceedings. VerDate Mar2010 08:31 Apr 29, 2011 Jkt 223077 PO 000

13、00 Frm 00183 Fmt 8010 Sfmt 8010 Y:SGML223077.XXX 223077jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-174 24 CFR Subtitle A (4111 Edition) 14.50 14.330 Decision. 14.335 Departmental review. 14.340 Judicial review. 1

14、4.345 Payment of award. AUTHORITY: 5 U.S.C. 504(c)(1); 42 U.S.C. 3535(d). SOURCE: 52 FR 27126, July 17, 1987, unless otherwise noted. Subpart AGeneral Provisions 14.50 Definitions. Act. The Equal Access to Justice Act, 5 U.S.C. 504, title II of Pub. L. 96481, as amended by Pub. L. 9980. Adjudicative

15、 officer. The hearing ex-aminer, administrative law judge, ad-ministrative judge of the HUD Office of Appeals, or other officer designated by the Secretary or other responsible De-partment official, who presided at the adversary adjudication. Adversary adjudication. (a) An adju-dication under 5 U.S.

16、C. 554 in which the position of the United States is rep-resented by counsel or otherwise, but not including an adjudication for the purpose of establishing or fixing a rate or for the purpose of granting or renew-ing a license; and (b) Appeals of decisions of con-tracting officers made pursuant to

17、sec-tion 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) before agency boards of contract appeals as provided in sec-tion 8 of that Act (41 U.S.C. 607). Agency counsel (a) When the position of the Department is being represented, the attorney or attorneys designated by the Departments General

18、 Counsel to represent the Department in a pro-ceeding covered by this part, and (b) When the position of another agency of the United States is being represented, the representative as des-ignated by that agency. Department. The Department of Hous-ing and Urban Development, or the or-ganizational un

19、it within the Depart-ment responsible for conducting an ad-versary adjudication subject to this part. Proceeding. An adversary adjudica-tion as defined above. Secretary. The Secretary of Housing and Urban Development. 52 FR 27126, July 17, 1987, as amended at 72 FR 53877, Sept. 20, 2007 14.100 Time

20、computation. Time periods stated in this part shall be computed in accordance with the Departments rules with respect to computation of time which apply to the underlying proceeding. 14.105 Purpose of these rules. The Act provides for the award of at-torney fees and other expenses to eligi-ble indiv

21、iduals and entities who are parties to certain administrative pro-ceedings (adversary adjudications) be-fore the Department. An eligible party may receive an award when it prevails over an agency, unless the agencys po-sition was substantially justified or special circumstances make an award unjust.

22、 The rules in this part described the parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards and the procedures and standards that the Department will use to make them. 14.110 When the Act applies. The Act applies to any adversary ad-judication pe

23、nding or commenced be-fore this Department on or after Au-gust 5, 1985. It also applies to any ad-versary adjudication commenced on or after October 1, 1984, and finally dis-posed of before August 5, 1985, provided that an application for fees and ex-penses, as described in subpart B of these rules,

24、 has been filed with the De-partment no later than 30 days after August 5, 1985, and to any adversary adjudication pending on or commenced on or after October 1, 1981, in which an application for fees and other expenses was timely filed and was dismissed for lack of jurisdiction. 14.115 Proceedings

25、covered. (a) The proceedings to which this part applies are adversary adjudica-tions conducted by the Department under: (1) The Interstate Land Sales Full Disclosure Act, as amended, 15 U.S.C. 1701 et seq., pursuant to 15 U.S.C. 1715 and 24 CFR part 1720; (2) Section 602 of the Civil Rights Act of 1

26、964, 42 U.S.C. 2000d1, and 24 CFR parts 1 and 2; (3) Section 505(a) of the Rehabilita-tion Act of 1973, as amended, 29 U.S.C. VerDate Mar2010 08:31 Apr 29, 2011 Jkt 223077 PO 00000 Frm 00184 Fmt 8010 Sfmt 8010 Y:SGML223077.XXX 223077jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo r

27、eproduction or networking permitted without license from IHS-,-,-175 Office of the Secretary, HUD 14.120 794a, 28 CFR part 41, and any applicable HUD regulations; (4) Section 305(a) of the Age Discrimi-nation Act of 1975, 42 U.S.C. 6104(a), 45 CFR part 90 and any applicable HUD regulations; (5) Sect

28、ion 3 of the HUD Act of 1968, 12 U.S.C. 170lu (Employment Opportu-nities for Business and Lower Income Persons in Connection with Assisted Projected), and 24 CFR part 135; (6) Debt Collection Act of 1982 (Sal-ary Offset), 5 U.S.C. 5514, and 24 CFR 17.125.140; (7) Manufactured Home Construction and S

29、afety Standards Act of 1974, 42 U.S.C. 5401 et seq., and 24 CFR part 3280; (8) Section 111 of title I of the Hous-ing and Community Development Act of 1974, 42 U.S.C. 5311, and 24 CFR 570.913; (9) Appeals of decisions of con-tracting officers made pursuant to sec-tion 6 of the Contract Disputes Act

30、of 1978 (41 U.S.C. 605) before the HUD Board of Contract Appeals as provided in section 8 of that Act (41 U.S.C. 607); or (10) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 36003620) and 24 CFR part 104. (b) The Departments failure to iden-tify a type of proceeding as an adver-sary adjudicat

31、ion shall not preclude the filing of an application by a party who believes the proceeding is covered by the Act; whether the proceeding is covered will then be an issue for resolu-tion in proceedings on the application. (c) If a proceeding includes both mat-ters covered by the Act and matters speci

32、fically excluded from coverage, any award made will include only fees and expenses related to covered issues. 52 FR 27126, July 17, 1987, as amended at 54 FR 3283, Jan. 23, 1989 14.120 Eligibility of applicants. (a) To be eligible for an award of at-torney fees and other expenses under the Act, the

33、applicant must be a party to the adversary adjudication for which it seeks an award. The term party is de-fined in 5 U.S.C. 551(3). The applicant must show that it meets all conditions of eligibility set out in this subpart and in subpart B. (b) The types of eligible applicants are as follows: (1) A

34、n individual with a net worth of not more than $2 million; (2) The sole owner of an unincor-porated business who has a net worth of not more than $7 million, including both personal and business interests, and not more than 500 employees; (3) A charitable or other tax-exempt organization described i

35、n section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. 501(c)(3), with not more than 500 employees; (4) A cooperative association as de-fined in section 15(a) of the Agricul-tural Marketing Act, 12 U.S.C. 1141j(a), with not more than 500 employees; or (5) Any other partnership, corpora-tion, as

36、sociation, unit of local govern-ment, or organization with a net worth of not more than $7 million and not more than 500 employees. (c) For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the proceeding was initiated. For the purpo

37、se of eligibility of appli-cants before the HUD Board of Con-tract Appeals, the net worth and num-ber of employees of an applicant shall be determined as of the date the appli-cant filed its appeal under 41 U.S.C. 606. (d) An applicant who owns an unin-corporated business will be considered as an in

38、dividual rather than a sole owner of an unincorporated business if the issues on which the application prevails are related primarily to per-sonal interests rather than to business interests. (e) The employees of an applicant in-clude all persons who regularly per-form services for remuneration for

39、the applicant, under the applicants direc-tion and control. Part-time employees shall be included on a proportional basis. (f) The net worth and number of em-ployees of the applicant and all of its affiliates shall be aggregated to deter-mine eligibility. Any individual, cor-poration or other entity

40、 that directly or indirectly controls or owns a major-ity of the voting shares or other inter-ests of the applicant, or any corpora-tion or other entity of which the appli-cant directly or indirectly owns or con-trols a majority of the voting shares or other interest, will be considered an af-filiat

41、e for purposes of this part, unless VerDate Mar2010 08:31 Apr 29, 2011 Jkt 223077 PO 00000 Frm 00185 Fmt 8010 Sfmt 8010 Y:SGML223077.XXX 223077jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-176 24 CFR Subtitle A (41

42、11 Edition) 14.125 the adjudicative officer determines that such treatment would be unjust and contrary to the purposes of the Act in light of the actual relationship be-tween the affiliated entities. In addi-tion, the adjudicative officer may de-termine that financial relationships of the applicant

43、 other than those de-scribed in this paragraph constitute special circumstances that would make an award unjust. (g) An applicant that participates in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible is not itself eligible for an award. 14.125 Standa

44、rds for awards. (a) A prevailing applicant may re-ceive an award for fees and expenses in-curred in connection with a proceeding, or in a significant and discrete sub-stantive portion of the proceeding, un-less the position of the agency over which the applicant has prevailed was substantially justi

45、fied. The position of the agency includes, in addition to the position taken by the agency in the ad-versary adjudication, the action or fail-ure to act by the agency upon which the adversary adjudication is based. The burden of proof that an award should not be made to an ineligible pre-vailing app

46、licant because the agencys position was substantially justified is on the agency counsel, who may avoid an award by showing that its position was reasonable in law and fact. (b) An award will be reduced or de-nied if the applicant has unduly or un-reasonably protracted the proceeding, if the applica

47、nt has falsified the appli-cation (including documentation) or net worth exhibit or if special cir-cumstances make the award sought un-just. 14.130 Allowable fees and expenses. (a) No award for the fee of an attor-ney or agent under these rules may ex-ceed $75.00 per hour. However, an award may also

48、 include the reasonable ex-penses of the attorney, agent or wit-ness as a separate item, if the attor-ney, agent or witness ordinarily charges clients separately for such ex-penses. (b) In determining the reasonableness of the fee sought for an attorney, agent or expert witness, the adjudicative off

49、i-cer shall consider the following: (1) If the attorney, agent or witness is in private practice, his or her cus-tomary fee for similar services, or, if an employee of the applicant, the fully allocated cost of the services; (2) The prevailing rate for the kind and quality of services furnished in the community in which the attorney, agent or witness ordinarily performs services; (3) The time actually spent in the represent