Guam § 37207 - Fees and Expenses to Prevailing Defendant.

§ 37207. Fees and Expenses to Prevailing Defendant.

Only in civil actions brought under this Article by the

government of Guam, the following shall apply:

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(a) (1) A court shall award to a prevailing party other than

the government of Guam fees and other expenses, in

addition to any costs awarded, incurred by that party in any

civil action (other than cases sounding in tort), including

proceedings for judicial review of agency action, brought by

or against the government of Guam in the Unified Judiciary

of Guam, unless the court finds that the position of the

government of Guam was substantially justified or that

special circumstances make an award unjust.

(2) A party seeking an award of fees and other

expenses shall, within thirty (30) days of final judgment in

the action, submit to the court an application for fees and

other expenses which shows that the party is a prevailing

party and is eligible to receive an award under this Section,

and the amount sought, including an itemized statement

from any attorney or expert witness representing or

appearing in behalf of the party stating the actual time

expended and the rate at which fees and other expenses

were computed. The party shall also allege that the position

of the government of Guam was not substantially justified.

Whether or not the position of the government of Guam was

substantially justified shall be determined on the basis of the

record (including the record with respect to the action or

failure to act by the agency upon which the civil action is

based) which is made in the civil action for which fees and

other expenses are sought.

(3) The court, in its discretion, may reduce the amount

to be awarded pursuant to this Subsection, or deny an

award, to the extent that the prevailing party during the

course of the proceedings engaged in conduct which unduly

and unreasonably protracted the final resolution of the

matter in controversy.

(4) If, in a civil action brought by the government of

Guam under this Article, the demand by the government of

Guam is substantially in excess of the judgment finally

obtained by the government of Guam and is unreasonable

when compared with such judgment, under the facts and

circumstances of the case, the court shall award to the party

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the fees and other expenses related to defending against the

excessive demand, unless the party has committed a willful

violation of law or otherwise acted in bad faith, or special

circumstances make an award unjust. Fees and expenses

awarded under this Subparagraph shall be paid only as a

consequence of appropriations provided in advance.

(b) For the purposes of this Section:

(1) ‘fees and other expenses’ includes the reasonable

expenses of expert witnesses, the reasonable cost of any

study, analysis, engineering report, test, or project which is

found by the court to be necessary for the preparation of the

party’s case, and reasonable attorney fees (the amount of

fees awarded under this Subsection shall be based upon

prevailing market rates for the kind and quality of the

services furnished, except that no expert witness shall be

compensated at a rate in excess of the highest rate of

compensation for expert witnesses paid by the Government

of Guam);

(2) ‘government of Guam’ includes any agency and

any official of the government of Guam acting in his or her

official capacity;

(3) ‘position of the government of Guam’ means, in

addition to the position taken by the government of Guam in

the civil action, the action or failure to act by the agency

upon which the civil action is based; except that fees and

expenses may not be awarded to a party for any portion of

the litigation in which the party has unreasonably protracted

the proceedings; and

(4) ‘final judgment’ means a judgment that is final and

not appealable, and includes an order of settlement.

(c) Fees and other expenses awarded under this Subsection

to a party shall be paid by any agency over which the party

prevails from any funds made available to the agency by

appropriation or otherwise.