250 R.I. Code R. 250-RICR-10-00-1.20

Current through November 7, 2024

Section 250-RICR-10-00-1.20 - Filing for Recovery of Litigation Expenses

A. Purpose. The purpose of this rule is to carry out the statutory requirements contained in the Equal Access to Justice Act, Chapter 42-92 of the R.I. Gen. Laws which provides for the award of reasonable litigation expenses to prevailing parties in certain adjudicatory proceedings conducted by state agencies.

B. Filing procedure. Within thirty (30) days of the conclusion of an adjudicatory proceeding of the Department relating to an enforcement action or order, or to the revocation or suspension of a license or permit, or to any other adjudicatory proceeding as defined in R.I. Gen. Laws § 42-92-2, a respondent may submit a claim to the AHO in the proceeding for litigation expenses pursuant to R.I. Gen. Laws Chapter 42-92. For purposes of this section, the adjudicatory proceedings are deemed to be concluded on the date a final decision is issued pursuant to § 1.17 of this Part or on the date that a Consent Order is accepted by the AHO pursuant to § 1.18 of this Part. The claim for litigation expenses shall conform to the general filing requirements of § 1.6 of this Part and shall contain a summary of the legal and factual basis for filing the claim.

C. Supporting affidavits and documentary evidence. The petitioner may submit with his or her claim for litigation expenses, affidavits and documentary evidence presenting the legal and factual basis by which the petitioner claims he or she is entitled to an award of litigation expenses, including facts establishing:

1. That the petitioner is a party as defined in R.I. Gen. Laws § 42-92-2(a).

2. That the petitioner has prevailed against the Department in the underlying adjudicatory proceeding.

3. That the Department was not charged by statute with investigating a complaint which led to the underlying adjudicatory proceeding.

4. The amount of reasonable litigation expenses as defined in R.I. Gen. Laws § 42-92-2(c).

5. That the Department instituted the underlying adjudicatory proceeding without substantial justification.

D. Department's answer. The Division shall provide a written answer to the claim for litigation expenses to the AHO within twenty (20) days of receipt of the claim. Such answer may include affidavits and documentary evidence supporting its position and other evidence in support of the position that the Department was substantially justified in its actions.

E. Evidentiary hearing. Within ten (10) days of the filing of the Division's answer with the AHO, either party may move for an evidentiary hearing on the issue of the awarding of litigation expenses. The motion shall be granted only if the moving party satisfies the AHO that affidavits are an inadequate method of presenting new evidence relevant to the awarding of litigation expenses.

F. Decision

1. Except as provided in § 1.20(F)(2) of this Part, the AHO shall award reasonable litigation expenses to the petitioner if he or she finds that the record in the case establishes by a preponderance of the evidence:

a. That the petitioner is a party as defined in the R.I. Gen. Laws § 42-92-2(a);

b. That the respondent has prevailed against the Division in the underlying adjudicatory proceeding;

c. That the Department instituted the underlying adjudicatory proceeding without substantial justification; and,

d. The amount of reasonable litigation expenses as defined in R.I. Gen. Laws § 42-92-2(c) which may include a recalculation of the expenses and a finding that some or all of the litigation expenses qualify as reasonable litigation expenses under the statute.

2. The AHO shall deny an award of litigation expenses to the petitioner if:

a. The petitioner failed to meet the burden of proof established in § 1.20(F)(1) of this Part;

b. The Division was substantially justified in the actions leading to the proceedings and in the proceeding itself; or,

c. The Division was charged by statute with investigating a complaint, which led to the adjudicatory proceeding.

d. The AHO may, at his or her discretion, deny fees or expenses if special circumstances make an award unjust.

G. The foregoing Rules and Regulations, after due notice, are hereby adopted and filed with the Secretary of State to become effective 20 days after filing, in accordance with the provisions of R.I. Gen. Laws Chapters 42-17.7 and 42-35.

250 R.I. Code R. 250-RICR-10-00-1.20