Current through Register Vol. 46, No. 19, March 20, 2024
(1)
Attorney fees. In a decision rescinding or sustaining the
agency's denial, suspension, or revocation of the permit or otherwise granting
a request to withdraw or dismiss the appeal, the administrative law judge shall
determine whether a party is entitled to an award of attorney fees consistent
with paragraph 11.11(1)"a" or "b." If a party
is entitled to an award, the decision shall inform the parties of the
applicable procedure provided in paragraph 11.11(1)"c" for
determining the amount of such an award unless the administrative law judge
determines the amount of an award in the decision as provided for in paragraph
11.11(1)"f."
a. If the
administrative law judge rescinds the agency's denial, suspension, or
revocation of the permit and determines the applicant or permittee is eligible
to be issued or to possess the permit, the applicant or permittee shall be
awarded any reasonable attorney fees. A dismissal of the appeal at the request
of the agency under subrule 11.9(2) is not a determination that the applicant
or permittee is eligible to be issued or to possess the permit and does not
entitle the applicant or permittee to an award of attorney fees. An applicant
or permittee who is not represented by an attorney in the contested case
proceeding is not entitled to an award of attorney fees.
b. If the administrative law judge affirms
the agency's denial, suspension, or revocation of the permit or grants the
applicant's or permittee's request to withdraw or dismiss the appeal, the
agency shall be awarded any reasonable attorney fees. Such an award to the
agency shall be made to the political subdivision of the state representing the
sheriff or to the state department representing the commissioner as applicable.
An agency is not entitled to an award of attorney fees if the agency requests
dismissal of the appeal under subrule 11.9(2) or if the agency is not
represented by an attorney in the contested case proceeding.
c. Within 14 days of the date of a decision
in which the administrative law judge determines that a party is entitled to an
award of attorney fees, the party shall file a request for attorney fees and
documentation supporting the request or a joint statement with the other party
agreeing to the amount of reasonable attorney fees. Within 7 days of the filing
of a request for attorney fees, the other party may file a resistance,
including any relevant evidence, or a statement agreeing to the requested
attorney fees. Upon request of either party or on the administrative law
judge's own motion, a hearing may be scheduled on the issue of the attorney fee
award.
d. If the party fails to
file a request for attorney fees or a joint statement within 14 days, the
administrative law judge shall issue an order determining that no attorney fees
are awarded in the case. If the parties agree to the amount of reasonable
attorney fees to be awarded, the administrative law judge shall issue an order
awarding attorney fees consistent with the agreement. In all other cases, the
administrative law judge shall issue a written order determining the reasonable
attorney fees in the case.
e. The
administrative law judge's decision is not final for purposes of rehearing
under rule 481-11.14 (17A) or judicial
review under Iowa Code chapter 17A until the administrative law judge has
issued a written decision determining the amount of any attorney fees to be
awarded under this subrule or determining that no attorney fees are to be
awarded.
f. If an application for
rehearing under rule 481-11.14 (17A) is denied, no
additional attorney fees shall be awarded to either party. If an application
for rehearing is granted, all the provisions of this subrule apply to the
rehearing proceedings unless the only relief sought on rehearing relates to the
attorney fee award. If the only relief sought relates to the attorney fee
award, the order granting the application for rehearing shall provide that a
party opposing the requested relief may file a resistance, including any
relevant evidence, within 7 days of the date of the order and shall schedule a
hearing or provide that a hearing may be scheduled upon the request of either
party. In such a case, the administrative law judge shall issue a single final
decision regarding the attorney fee award.
g. Any attorney fees awarded under this
subrule shall be paid to the awarded party within 30 days of the issuance of an
order determining the amount of attorney fees awarded unless an interested
party seeks rehearing under rule
481-11.14 (17A) or judicial
review under Iowa Code chapter 17A or the parties agree to an alternative
payment schedule. If a party seeks rehearing under rule
481-11.14 (17A), the attorney
fees shall be paid within 30 days of the denial of the application for
rehearing or of any final decision awarding attorney fees after the grant of an
application for rehearing. If a party seeks judicial review under Iowa Code
chapter 17A, the attorney fee award shall be stayed pending resolution of the
judicial review action. A party awarded attorney fees is responsible for taking
any necessary action to enforce the award if payment is not made.
(2)
Court costs and
attorney fees on judicial review. Any request for the award of court
costs or for attorney fees incurred after the entry of an order determining
reasonable attorney fees may only be made to the court in a judicial review
action under Iowa Code chapter 17A, unless a party requests rehearing under
rule 481-11.14 (17A), in which case
reasonable attorney fees may be awarded by the administrative law judge related
to the request for rehearing consistent with paragraph
11.11(1)"f."
(3)
Contested case costs. Costs of the division in conducting a
contested case proceeding arising out of a decision of the commissioner of
public safety shall be charged to the department of public safety pursuant to
Iowa Code section 10A.801(9).
This rule is intended to implement Iowa Code sections
10A.801 and
724.21A.
