(a) The adjudicative officer shall issue an initial decision on the application with 90 calendar days after completion of proceedings on the application. The decision shall include written findings and conclusions on such of the following as are relevant to the decision:
(1) The applicant's eligibility and status as a prevailing party;
(2) Whether the Agency's position was substantially justified;
(3) Whether the applicant unreasonably protracted the proceedings, or whether special circumstances make an award unjust; and
(4) The amounts, if any, awarded for fees and expenses with an explanation of the reasons for any difference between the amount requested and the amount awarded. Further, if the applicant has sought an award against more than one agency, the decision shall allocate responsibility for payment of any award made among the agencies, and shall explain the reasons for the allocation made.
(b) When the Agency appeals the underlying merits of an adversary adjudication, no decision on an application for fees and other expenses in connection with that adversary adjudication shall be made until a final and unreviewable decision is rendered by the court on the appeal or until the underlying merits of the case have been finally determined pursuant to the appeal.
[51 FR 15311, Apr. 23, 1986, as amended at 60 FR 12669, Mar. 8, 1995]