The Rural Housing Service (RHS) recently made what I believe is the first-ever payment to a 515 owner for the cost of an appeal. This payment was made
in accordance with the Equal Access to Justice Act (EAJA). I won the appeal
for the owner of a project in Iowa and the payment paid my fee for the
appeal.
RHS made the payment under EAJA to an Iowa Limited Partnership that I
represented in the appeal. Iowa RD had issued an AN to limit management fees
and RD staff refused to approve the Management Agreement and Plan because, in
brief, the amount of the proposed management fee was higher than the AN
permitted. The appeal Determination stated, “The Agency’s decision to deny
the Appellant’s Management Plan based on Iowa AN 1559 was erroneous.”
The basis for the payment is 7 CFR Section 1, which implements EAJA for USDA.
Section 1.181 states:
The Equal Access to Justice Act, 5 U.S.C. 504 . . . provides for the award of
attorney fees and other expenses to eligible individuals and entities who are
parties to certain administrative proceedings (called adversary
adjudications)
before the Department. An eligible party may receive an award when it
prevails over the Department unless the position of the Department was
substantially justified or special circumstances make an award unjust. . . .
The U.S. 8th Circuit Court of Appeals ruled in 1997 that costs of appeals of adverse RHS decisions are
covered by EAJA. This means that under certain circumstances, RHS can be made
to pay the appeal costs; the costs can be those for an attorney or an
appellant’s representative, such as I was. The decision applies only to
appeals in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and
South Dakota.
It is possible that by using this 8th Circuit decision as a precedent in
other Circuit Courts EAJA could be made applicable to appeals in the other 43
states.