1. (a) General. The ALJ of any hearing may order payment of reasonable attorney fees and costs to the prevailing party if the position of the non-prevailing party was without reasonable basis or was frivolous.
2. (b) Burden of proof. The prevailing party shall bear the burden of proof that he or she is entitled to an award of attorney fees and costs by a preponderance of the evidence.
3. (c) Showing of proof. To be entitled to an award of attorney fees and costs, the prevailing party shall be deemed to have prevailed if he or she received all or a significant part of the relief sought through the complaint. Attorney fees shall not be awardable for non-attorney pro-se representation.

4. (d) Standards. The without reasonable basis or frivolous standard includes, but is not limited to:

   1. (1) where the non-prevailing party's action was clearly without merit or was wholly unfounded;
   2. (2) where the non-prevailing party initiated an action against the prevailing party in bad faith, including where the action was brought to harass or intimidate the prevailing party; or
   3. (3) where the non-prevailing party committed a gross procedural error which prolonged the proceeding or severely prejudiced the prevailing party.
5. (e) Decision. The decision to award attorney fees is solely within the discretion of the ALJ.

Added at 39 Ok Reg 227, eff 11-17-21 (emergency)

Added at 39 Ok Reg 1166, eff 9-11-22

Amended at 40 Ok Reg 2149, eff 9-11-23