43 CFR § 4.605 - Under what circumstances may I receive an award?
(2) The position of the Department or other agency over which you prevailed was not substantially justified. The Department or other agency has the burden of proving that its position was substantially justified.
(1) If the demand of the Department or other agency in the action is excessive and unreasonable compared with the adjudicative officer's decision, then the adjudicative officer must award you your fees and expenses related to defending against the excessive demand, unless:
(i) You have committed a willful violation of law;
(iii) Special circumstances make an award unjust.
(2) Fees and expenses awarded under this paragraph will be paid only if appropriations to cover the payment have been provided in advance.