A prevailing applicant
may receive an award for fees and expenses in
connection with a proceeding, or in a discrete substantive portion of the
proceedings, unless the position of the Secretary was substantially justified. The
position of the Secretary includes, in addition to the position taken by the Secretary
in the adversary adjudication, the action or failure to act by the Secretary upon
which the adversary adjudication is based. The burden of persuasion that an award
should not be made to an eligible prevailing applicant because the Secretary's
position was substantially justified is on the Secretary.
An award shall be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding. An award shall be denied if special
circumstances make an award unjust.
[46 FR 48080, Sept. 30, 1981, as amended at 52 FR 5456, Feb. 23, 1987]