Subpart
1. [Repealed, 26 SR 391]
Subp.
2. [Repealed, 26 SR 391]
Subp.
3.
Application.
A party seeking an award of expenses and attorney's fees
shall submit to the judge an application that shows:
A. an itemization of the amount of fees and
expenses sought. This shall include full documentation of fees and expenses,
including an affidavit from each attorney, agent, or expert witness
representing or appearing on behalf of the applicant stating the actual time
expended and the rate at which fees have been computed and describing the
specific services performed.
The affidavit shall itemize in detail the services performed
by the date, number of hours per date, and the services performed during those
hours. In order to establish the hourly rate, the affidavit shall state the
hourly rate which is billed and paid by the majority of clients for similar
services during the relevant time periods.
The documentation shall also include a description of any
expenses for which reimbursement is sought and a statement of the amounts paid
and payable by the applicant or by any other person or entity for the services
provided;
B. a statement
that explains with specificity how or why the position of the state agency was
not substantially justified;
C. if
the claim for attorney's fees exceeds $125 per hour, a statement of facts
showing that the excess award qualifies under Minnesota Statutes, section
15.471, subdivision
5, paragraph (c); and
D. a proof of
service showing that the state agency and all other parties have been served,
either personally or by first class mail, with a copy of the application.
The application must be signed and sworn to by the party and
the attorney or other agent or representative submitting the application on
behalf of the party, showing the addresses and phone numbers of all persons
signing the application.
Subp. 4.
Response or objection to
application.
The state agency or any other party may respond or object to
all or any part of the application for expenses and fees. A response or
objection must be sworn to and filed with the judge within 14 days following
the service of the application and must show:
A. the name, address, and phone number of the
party and the person submitting the response or objection on behalf of the
party;
B. in detail any objections
to the award requested and identify the facts relied on to support the
objection. If the response or objection is based on any alleged facts not
already reflected in the record of the proceeding, the response or objection
shall include either a supporting affidavit or affidavits or request for
further proceedings under subpart
5b; and
C. a proof of service showing that all other
parties have been served, either personally or by first class mail, with a copy
of the response or objection.
Subp.
5. [Repealed, 11 SR 1385]
Subp.
5a.
Settlement.
A prevailing party and the agency may agree on a proposed
settlement of an award before final action on the application. If a settlement
occurs, a stipulation for settlement shall be filed with the judge together
with a proposed order which shall be prepared for the judge's signature. Upon
receipt of a stipulation for settlement and proposed order, the judge shall
issue an order, serve all parties and the chief administrative law judge with a
copy, and send the original to the agency for inclusion with the record of the
contested case which gave rise to the application.
Subp. 5b.
Extensions of time and
further proceedings.
A. The judge may,
on motion and for good cause shown, grant extensions of time, other than for
filing an application for fees and expenses, after final disposition in the
contested case.
B. Ordinarily, the
determination of an award will be made on the basis of the written record of
the underlying contested case and the filings required or permitted by this
part. However, on the judge's own motion or on the motion of any party to the
underlying contested case, further filings or other action can be required or
permitted, such as an informal conference, oral argument, additional written
submissions, or an evidentiary hearing. Any further action shall be allowed
only when necessary for a full and fair resolution of the issues arising from
the application and shall take place on the first date available on the judge's
calendar which is also agreeable to all parties. A motion for further filings
or other action shall specifically identify the information sought on the
disputed issues and shall explain why the further filings or other action are
necessary to resolve the issues.
C.
In the event that an evidentiary hearing is required or permitted by the judge,
the hearing and any related filings or other action required or permitted shall
be conducted under parts
1400.8505 to
1400.8612.
Subp. 6. [Repealed, 26 SR 391]
Subp. 7.
Decision of the administrative
law judge.
Within 30 days following the close of the record in the
proceeding for the award of expenses and attorney's fees, the administrative
law judge shall issue a written order which shall also contain findings and
conclusions on each of the following which are relevant to the decision:
A. the applicant's status as a prevailing
party;
B. the applicant's
qualification as a party under Minnesota Statutes, section
15.471, subdivision
6;
C. whether the agency's position
as a party to the proceeding was substantially justified;
D. whether special circumstances make an
award unjust;
E. whether the
applicant during the course of the proceeding engaged in conduct that unduly
and unreasonably protracted the final resolution of the matter in controversy;
and
F. the amounts, if any, awarded
for fees and other expenses, explaining any difference between the amount
requested and the amount awarded.
The order shall be served on all parties and the state
agency. The original order and the rest of the record of the proceedings shall
be filed with the state agency at the time the order is served.