(a) To be eligible for an award of attorney fees and other expenses
under the Act, the applicant must be a party, as that term is defined in
5 U.S.C. 551(3), to an adversary adjudication for which it seeks an
award; the applicant must prevail; and must meet all the conditions of
eligibility set out in this subpart and subpart B.
(b) To be eligible for an award, the applicant must be:
(1) An individual with a net worth of not more than $1 million;
(2) The sole owner of an unincorporated business which has a net
worth of not more than $5 million, including both personal and business
interests, and not more than 500 employees;
(3) A charitable or other tax exempt organization described in
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 defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500
employees;
(5) Any other partnership, corporation, association or public or
private organization with a net worth of not more than $5 million and
not more than 500 employees. A unit of state or local government is not
a public organization within the meaning of this provision.
(c) For purposes of eligibility, the net worth and number of
employees of an applicant shall be determined as of the date the
proceeding was initiated.
(d) An applicant who owns an unincorporated business will be
considered as an individual rather than a sole owner of an
unincorporated business if the issues on which the applicant prevails
are related primarily to personal interests rather than to business
interests.
(e) The employees of an applicant include all persons who perform
services for remuneration for the applicant, under the applicant's
direction and control. Part-time employees shall be included.
(f) The net worth and number of employees of the applicant and all
of its affiliates shall be aggregated to determine eligibility. Any
individual, corporation or other entity that directly or indirectly
controls or owns a majority of the voting shares of another business, or
controls, in any manner, the election of a majority of that business'
board of directors, trustees or other persons exercising similar
functions, shall be considered an affiliate for purposes of this part,
unless the adjudicative officer determines that such treatment would be
unjust and contrary to the purposes of the Act in light of the actual
relationship between the affiliated entities. In addition, the
adjudicative officer may determine that financial relationships of the
applicant other than those described 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.
