In the Matter of the Complaint Against

FORT MORGAN VAPOR JET
15160 Highway 144, No. 7
at Fort Morgan, CO 80701

P.S. Docket No. 12/64;

04/27/83

Bernstein, Edwin S.

APPEARANCE FOR COMPLAINANT:
Hilda Rosenberg, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, DC 20260-1100

APPEARANCE FOR RESPONDENT:
Harlan G. Balaban, Esq.
Kenneth L. Levinson, Esq.
1624 Market Street, Suite 311
Denver, CO 80202

BEFORE: Judge Edwin S. Bernstein

INITIAL DECISION

This matter involves an application by Respondent for an award of attorneys' fees and other expenses under the Equal Access to Justice Act, 5 U.S.C. § 504 (Supp. IV 1980) (The Act). Complainant contends that the application should be dismissed or denied.

FINDINGS OF FACT

On September 10, 1981, the General Counsel for the United States Postal Service filed a Complaint alleging that Respondent was engaged in a scheme to obtain money or property through the mails by means of false representations contained in subparagraphs 3a through h, as set forth below:

a. The installation of a Vapor Jet on an average motor vehicle will cause a substantial increase in fuel economy (a mile per gallon improvement of 13.3% to 17.3%).

b. The installation of a Vapor Jet on an average motor vehicle will improve combustion efficiency.

c. The installation of a Vapor Jet on an average motor vehicle will increase engine horsepower.

d. The installation of a Vapor Jet on an average motor vehicle will increase octane ratings by allowing more fuel to be converted into power-producing energy thereby causing regular gas to give "premium" results.

e. The fuel economy and engine performance improvement claims set forth in Subparagraphs "a" through "d" are supported by competent scientific research and test results.

f. The installation of Vapor Jet will dissolve carbon deposits on spark plugs in cylinder walls in older vehicles and prevent such buildup on newer vehicles.

g. The Vapor Jet is substantially similar to water injection devices used on combat aircraft in World War II to give increased speed and extended range.

h. A United States patent has been issued on the Vapor Jet as a fuel-saving device.

In Count II of the Complaint, Complainant specifically alleged that Respondent was engaged in a scheme to obtain money by directing distributors for Respondent to make these representations to third parties.

I issued an Initial Decision on March 26, 1982, in which I concluded that Respondent was engaged in a scheme to obtain money through the mail by false representations in violation of 39 U.S.C. § 3005 and recommended the issuance of a false representation order. I found that the representations specified in subparagraphs (a), (e), (f), (g) and (h) of paragraph 3 of the Complaint were materially false. However, I found that Complainant failed to prove that the representations in subparagraphs (b), (c) and (d) of the Complaint were false.

Respondent appealed the Initial Decision and on September 29, 1982, the Judicial Officer issued a Postal Service Decision. That decision reversed my finding with respect to subparagraph 3(f) of the Complaint. With regard to that subparagraph, the Judicial Officer found that Complainant had not proven that that representation was materially false. In all other respects, the Postal Service Decision affirmed the Initial Decision. On September 29, 1982, the Judicial Officer also issued False Representation Order No. 82-135 to the Postmaster at Fort Morgan, Colorado 80701.

In an October 7, 1982 Order and Memorandum of Telephone Conference, the Judicial Officer stated that in a telephone conference with Harlan G. Balaban, Esq. and Thomas A. Ziebarth, Esq., the attorneys for the parties, it was agreed that the return portion of the False Representation Order would be stayed while the parties engaged in the discussion of a possible Consent Agreement relating to the advertisements which were the subject of the proceeding. The memorandum further stated that if the parties were unable to agree to a Consent Agreement and Respondent decided to seek a temporary restraining order or reconsideration of the Postal Service Decision, the stay of the return portion of the

False Representation Order would remain in effect during the pendency of either proceeding. Also on October 7, 1982, the Judicial Officer issued Supplement A to Order No. 82-135 confirming that stay.

In an October 12, 1982 Order and Memorandum of Telephone Conference, the Judicial Officer indicated that after talking with Harlan G. Balaban, Esq. and Thomas A. Ziebarth, Esq., Respondent's request for an extension of the period for filing a motion for reconsideration to November 1, 1982, had been granted.

The parties entered into a Consent Agreement dated November 11, 1982, which was filed on November 15, 1982. On November 12, 1982, Counsel for Complainant filed a Motion to Vacate Order No. 82-135 and Suspend Proceedings Indefinitely. The motion stated, "the parties have entered into a satisfactory consent agreement." It also stated, "Respondent's attorney has represented that his client has signed the agreement and that he is placing it in the mail this date. The signed consent agreement will be filed upon receipt."

By order dated November 12, 1982, the Judicial Officer acknowledged Complainant's motion and stated, "Complainant's motion is based on Respondent having signed a consent agreement which has been placed in the mail and which will be made a part of the record upon its receipt." The Judicial Officer granted the motion and ordered that further proceedings be indefinitely suspended and that Respondent's mail be delivered pursuant to the terms of the Consent Agreement. Also on November 12, 1982, the Judicial Officer issued a notice directed to the Postmaster at Fort Morgan, Colorado 80701 which stated that False Representation Order No. 82-135 and Supplement A had been revoked and that mail currently held by the Postal Service and mail subsequently received was to be delivered to Respondent in accordance with normal delivery procedures.

Respondent instituted this proceeding with an application dated and mailed December 9, 1982, and filed with the Postal Service on December 13, 1982.

On January 12, 1982, Counsel for Complainant filed its Answer to Respondent's application which constituted an excellent brief on the issues. Complainant argued that the application should be dismissed (1) for lack of jurisdiction and (2) because of Respondent's failure to show that it is eligible for an award. Complainant also argued that the award should be denied in its entirety because (1) Respondent was not a prevailing party and (2) Complainant's position was substantially justified. Furthermore, Complainant contended that the fees and expenses claimed by Respondent were either unreasonable and excessive or not recoverable under the Act. Respondent's application did not contain any analysis of the law or the facts. Respondent filed nothing further to justify its application.

After analyzing all of the material of record, including Complainant's arguments, I make the following Concluding Findings and Conclusions of Law.

1. The Financial Eligibility Issue

The Act requires a party seeking fees and expenses to submit an application showing that it is eligible for an award. The Act states:

"A party seeking an award of fees and other expenses shall, within 30 days of a final disposition in the adversary adjudication, submit an application which shows that the party is a prevailing party and is eligible to receive an award. . ." 5 U.S.C. § 504(a)(2)

To be eligible for an award an applicant who is a corporation or a sole owner of an unincorporated business must not have a net worth of more than five million dollars nor have more than 500 employees at the time the adjudication was initiated. 5 U.S.C. § 504(b)(1)(B); 39 C.F.R. § 960.4 (b)(2), (5).

Complainant argues that the absence of any financial information in an application pursuant to the Act from which eligibility may be assessed warrants the denial of an award, citing Berman v. United States, 534 F. Supp. 641, 642 (N.D. Ohio 1982). Although Respondent's application fails to show that it is eligible under these financial requirement provisions, I do not agree that this failure defeats Respondent's application and I do not agree that the Berman decision supports such a conclusion. In Berman, the court concluded, based upon the circumstances in that case, that the failure to submit such information was "not inadvertent" and, in fact, applicant did not meet the financial requirements. Postal Service Regulation 39 C.F.R. § 960.10 states, "the adjudicative officer may require an applicant to file additional information to determine its eligibility for an award." Based upon that provision, if I find that Respondent otherwise qualifies for an award, the appropriate procedure would be to require Respondent to file additional information to show that it is financially eligible. Thus, in Knights of the Ku Klux Klan Realm of Louisiana v. East Baton Rouge Parrish School Board, 679 F.2d 64 (5th Cir. 1982), the Court remanded the case to the District Court to determine if the applicant was financially eligible to receive such an award.

2. The Timeliness of Application Issue

The Act states, "A party seeking an award of fees and other expenses shall, within 30 days of a final disposition in the adversary adjudication, submit to the agency an application ..." 5 U.S.C. § 504(a)(2). Cases interpreting this provision have held that the 30 day filing requirement is mandatory and jurisdictional. Lord Jim's, 264 N.L.R.B. No. 147 (Sept. 30, 1982); Monark Boat Co., 262 N.L.R.B. No. 124 (July 19, 1982); Bowers v. Moffett, Civil Action No. 81-2674 (D. D.C. June 15, 1982); Wallis v. United States, No. 453-79C (Ct. Cl. Nov. 25, 1981). Lord Jim's, Monark Boat, and Bowers have interpreted the word "submit" as meaning filing and I so hold. Thus, Respondent's application was submitted on December 13, 1982, the date of filing, and not on December 9, 1982, the date when it was mailed.

A more difficult question is whether there was a final disposition in the adversary adjudication in this case and, if so, when. Complainant argued that the final disposition of this case occurred on November 1, 1982, the last day on which Respondent could have filed a motion for reconsideration of the September 29, 1982 False Representation Order. Since the Judicial Officer's November 12, 1982 Order indefinitely suspended further proceedings, it could be contended that there was no final disposition of the proceedings. Although no cases have been found on this issue, I do not believe that Congress intended to accord no finality to such cases.

As indicated in the legislative history, a "prevailing party" may file a fee application following a settlement, a voluntarily dismissal, or an interim victory. The House and Senate Conference Committee Report stated:

"The phrase 'prevailing party' is not to be limited to a victor only after entry of a final judgment following a full trial on the merits; its interpretation is to be consistent with the law that is developed under existing statutes.

A party may be deemed prevailing if the party obtains a favorable settlement of his case, Foster v. Boorstin, 561 F.2d 340 (D.C. Cir. 1977); if the plaintiff has sought a voluntary dismissal of a groundless complaint, Corcoran v. Columbia Broad casting System, Inc., 121 F.2d 575 (9th Cir. 1941); or even if a party does not ultimately prevail on all issues, Bradley v. School Board of the City of Richmond, 416 U.S. 696 (1974).

In cases that are litigated to conclusion, a party may be deemed 'prevailing' for purposes of a fee award in a civil action prior to the losing party having exhausted its final appeal. An award may thus be appropriate where the party was prevailed on an interim order which was central to the case, Parker v. Matthews, 411 F. Supp. 1059, 1064 (D. D.C. 1976), . . ." 96th Cong., 2d Sess. 21-22 (1980), U. S. Code & Ad. News 5010-5011, House Conference Rep. No. 1434.

Other cases in which it has been held that a party can prevail as a result of a settlement include Maher v. Gagne, 448 U.S. 122 (1980); Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C. Cir. 1977); and Alspach v. District Director of Internal Revenue, 527 F. Supp. 225 (D. Md. 1981).

I find that the Judicial Officer's November 12, 1982 Order, following the parties' Consent Agreement, constituted the final disposition of the adversary adjudication. On October 7, 1982, approximately a week after the Postal Service Decision, the Judicial Officer and counsel for the parties indicated that discussions were underway to reach a settlement. The Judicial Officer encouraged the parties to enter into a Consent Agreement by staying the return portion of the False Representation Order pending settlement discussions. Additionally, paragraph 5 of the Consent Agreement states "Respondent further agrees to dismiss, with prejudice, its suit for judicial review and injunctive relief now pending in the United States District Court for the District of Colorado." Thus, by virtue of the Consent Agreement, a pending District Court action would be dismissed with prejudice and the issues between the parties resolved.

I do not hold that in every case a Consent Agreement following a False Representation Order constitutes final disposition of the proceeding. However, when almost contemporaneously with the decision in the False Representation matter, the Judicial Officer afforded the parties time to enter into a Consent Agreement and shortly afterward they entered into such an agreement which was implemented by a decision of the Judicial Officer, I find that such constitutes final disposition in this case. I do not agree with Complainant that public policy considerations dictate against such an interpretation. Complainant argues that this interpretation would discourage the Postal Service from arriving at Conseng Agreements for fear of subjecting itself to liability that it otherwise would not have. The Postal Service easily can protect itself in such cases by including in the Consent Agreements clauses in which Respondents waive fees under the Act.

Although the Consent Agreement was dated November 11, 1982, and the Judicial Officer issued his Orders implementing the agreement on November 12, 1982, the agreement was not filed until November 15, 1982. Did final disposition occur on the date that the Consent Agreement was executed, on the date of the Judicial Officer's Orders, or on the date that the Consent Agreement was filed? If final disposition resulted on November 15, 1982, Respondent's fee application of December 13, 1982, was timely. If, however, the time runs from either the date of the Consent Agreement, November 11, or the Judicial Officer's Order, November 12, the application, which was filed on December 13, was filed on day too late. The issue is novel.

I find that the final disposition of this proceeding occurred on November 12, 1982, the date of the Judicial Officer's Order. As of that date, the agreement had been executed, the Judicial Officer was apprised of the agreement, and the parties and the Judicial Officer acted in reliance upon the agreement. Thus, in its November 12, 1982 Motion to Vacate Order No. 82-135, Complainant stated, "The parties have entered into a satisfactory consent agreement," and further stated, "Respondent's attorney has represented that his client has signed the agreement and that he is placing it in the mail this date. The signed consent agreement will be filed upon receipt." The Judicial Officer also acted in reliance upon the Consent Agreement, which indicated that it was signed on November 11, 1982. In his November 12 Order the Judicial Officer stated, "Complainant's Motion is based on Respondent having signed a Consent Agreement which has been placed in the mail and which will be made a part of the record upon its receipt." The Order concluded with the following language, ". . . and it is ordered that mail currently being held by the Postal Service and mail hereafter received is to be delivered to Respondent in accordance with normal delivery procedures for handling by Respondent in accordance with the terms of the consent agreement."

I, therefore, conclude that Respondent's application was filed 31 days after the final disposition of the adversary proceeding. Since the application was untimely, Complainant's motion to dismiss Respondent's application should be granted. The cases hold that even a one day delay beyond the 30 day period defeats a claim under the Act since the 30 day period is jurisdictional and can not be extended. Thus, in Monark Boat Company, supra, an application was dismissed which was filed 31 days after the entry of the NLRB's final Order. Similarly, in Lord Jim's, supra, the final adjudication was made on January 22, 1982. Although the application was mailed within the 30 day period, on February 19, since it was received after the 30 days expired, on February 24, 1982, it was found to be untimely. A similar result was reached in Bowers v. Moffett, supra.

3. The Prevailing Party Issue

To recover fees under the Act, a claimant must first demonstrate in its application that it is the prevailing party. 5 U.S.C. § 504(a)(2); 39 C.F.R. § 960.9(a). The applicant has the burden of proof with respect to this issue. Citizens Coalition for Block Grant Compliance v. City of Euclid, 537 F. Supp. 422, 424 (N.D. Ohio 1982). Respondent must meet this burden by "clear and convincing evidence." 39 C.F.R. § 960.4(a). The interpretation of "prevailing party" is to be consistent with the law developed under existing statutes. A party may be deemed "prevailing" for purposes of a fee even if it did not ultimately prevail on all issues. H.R. Rep. No. 1434, 96 Cong. 2d Sess. 21-22, reprinted in 1980 U.S. Code Cong. & AD. News 5010, 5011.

In Parker v. Matthews, supra, the Court applied the following definition of "prevailing party" in Black's Law Dictionary (rev. 4th ed. 1968, p. 1352):

"That one of the parties to a suit who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not the extent of his original contention." p. 1063

The Court agreed with that definition and held that the plaintiff had prevailed on the central issue of discrimination. In that case plaintiff prevailed by settlement. The Court cautioned, however, that attorneys' fees should not be awarded in nuisance settlements.

Although Complainant did not substantiate all eight allegations in paragraph 3 of its Complaint, I do not believe that Respondent can be considered the "prevailing party." Most decisions with regard to a party that partially prevails involve a plaintiff who obtains significant relief. In Parham v. South western Bell Telephone, 433 F.2d 421 (8th Cir. 1970), a Civil Rights action, although the Court found that the requested injunction was not warranted, it also found that Parham's lawsuit acted as a catalyst which prompted appellee to take the desired action. In other Civil Rights cases, similar decisions were made. In Lea v. Cone Mills Corporation, 438 F.2d 86 (4th Cir. 1971), the Court found that the plaintiff had prevailed where it obtained an injunction and desired relief even though it did not obtain damages. In Barnett v. W. T. Grant Co., 518 F.2d 543 (4th Cir. 1975), the Court found that plaintiff had prevailed because he proved discrimination although the Court remanded the case to determine whether an injunction should be issued. It held that regardless of what the District Court inquiry showed, plaintiff should recover costs and attorneys' fees. In Rosenfeld v. Southern Pacific Co., 519 F.2d 527 (9th Cir. 1975), similarly where the plaintiff obtained the declaratory and injunctive relief, she was awarded attorneys' fees even though her claim for damages was denied.

In Heydt v. Citizens State Bank, 668 F.2d 444 (8th Cir. 1982), a defendant was considered to have prevailed where it limited and narrowed the scope of a summons seeking documents and no documents having the potential of reviewing the identity of its organizations members were released.

In Hanrahan v. Hampton, 446 U.S. 754, 758 (1980), the Court stated, "Congress intended to permit an interim award of counsel fees only when a party has prevailed on the merits of at least some of the claims."

In Smith v. University of North Carolina, 632 F.2d 316, 352 (4th Cir. 1980), another Civil Rights case, the Court included dictum that a party may be awarded fees where it is prevailed on some but not all of the issues. In an analysis of many cases cited in the legislative history, the Court concluded, "in each of these cases the party to whom fees were awarded had established the liability of the opposing party, although final remedial orders had not been entered. The House Committee Report moreover, approved the standard suggested by this Court in Bradley, that 'the entry of any order that determine substantial rights of the parties may be an appropriate occasion upon which to consider the propriety of an award of counsel fees. . .'." p. 351.

Thus, in the cases in which fees were awarded because it was held that a party had prevailed in part, usually the party was the plaintiff and had obtained some measure of the relief it had requested. The language that a party had prevailed on a main issue is frequently used. Few cases have been found in which fees were awarded to a defendant who prevailed in part.

Based upon the cases, I find that to partially prevail, a defendant must defeat an action brought against it in some substantial measure. I find that Respondent in this case is not a prevailing party. Although Respondent defeated four of the eight allegations in paragraph 3 of the Complaint, Complainant was successful in the main portion of this Complaint and Complainant obtained through the Consent Agreement most of the relief that it sought. The major thrust of this proceeding involves subparagraph 3a of the Complaint, which was directed toward Respondent's representations of fuel economy. Complainant's Exhibit 1 was headlined "Gas Saver Tested and Patented." That article emphasized the fuel economy benefits of the device. Although the advertisements in Complainant's Exhibit 2 deleted the gas saving emphasis because of state requirements, a substantial amount of the testimony at the hearing was directed to that issue. The Consent Agreement granted Complainant much of the relief that it sought. It required Respondent to cease making the representations found false in the Initial Decision as affirmed, including the advertising distributed to its dealers or used to induce persons to become dealers. Respondent agreed to honor all refund requests within ten working days of the receipt. Respondent, further stipulated that it would "make available and fully and clearly explain" the Consent Agreement to its employees and representatives. Respondent also waived some of its due process rights in regard to future violations of the agreement. Finally, Complainant obtained the same result as it would under the False Representation Order through Respondent's agreement to return remittances related to discontinued activities to senders.

4. The Substantial Justification Issue

The Government may avoid an award under the Act by showing that its position was "substantially justified." 5 U.S.C. § 504(a)(1). The legislative history equates the "substantially justified" standard with a "reasonableness" determination. The House Report states:

"The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can show that its case had a reasonable basis both in law and fact, no award will be made." H.R. Rep. No. 1418, 96th Cong., 2nd Sess. 10, reprinted in 1980 U.S. Code Cong. & AD. News 4989.

Moreover, both the Senate and House Committees emphasized that:

"The standard, however, should not be read to raise a presumption that the Government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing." S. Rep. No. 96-253, supra. at 7; H.R. Rep. No. 96-1418, supra at 11.

By way of specific example, the Committee Reports both stated:

"A court should look closely at cases, for example, where there has been a judgment on the pleadings or where there is a directed verdict or where a prior suit on the same claim has been dismissed. Such cases clearly raise the possibility that the Government was unreasonable in pursuing the litigation." S. Rep. No. 96-253, supra, at 6-7; H.R. Rep. No. 1418, supra at 11.

In Broad Avenue Laundry and Tailoring v. United States, Appeal No. 28-81 (C.A.F.C. Nov. 29, 1982), the Court stated, "Whether the position the United States took in the litigation was substantially justified because it was reasonable depends upon all the pertinent facts of the case. Fixed rules can not be established for determining this issue. . . .Since two cases in litigation are rarely alike, the decision of whether the position of the United States in a particular case was substantially justified is unlikely to be a significant precedent in determining the issue in another case." In that case the Court found that the Government's position was substantially justified because the Board of Contract Appeals had applied a well-settled principal of existing law.

In S. & H. Riggers & Erectors, Inc. v. Occupational Safety & Health Review Comm'n, 672 F.2d 426 (5th Cir. 1982), the Court found that the Commission was substantially justified because it had made a "novel but credible extension or interpretation of the law" that had substantial justification. Similarly, substantial justification was found in Wyandotte Savings Bank v. The National Labor Relations Board, 682 F.2d 119 (6th Cir. 1982), because the Board relied upon a presumption that had been recognized by the Court of Appeals in other cases; in Bennett v. Schweiker, 543 F. Supp. 897 (D.D.C. 1982), where the Secretary relied on a census record which the Court characterized as misguided in degree but no unreasonable; in Ulrich v. Schweiker, 548 F. Supp. 63 (D. Idaho 1982), in which the issue was Mrs. Ulrich's headaches and related problems. There the Court stated that there was a genuine factual dispute with regard to the medical question and the decision was a close call.

In other cases, the Government was found not to be substantially justified. In Tyler Business Service, Inc. v. National Labor Relations Board, No. 81-1847 (4th Cir. Nov. 24, 1982), the Court found that the General Counsel's position lacked a reasonable factual basis. In Photo Data, Inc. v. Sawyer, 533 F. Supp. 348 (D. D.C. 1982), the Court found no justification for the Government's position where the GPO rejected plaintiff's low bid on a contract with no more than a terse three-sentence letter. In Berman v. Schweiker, 531 F. Supp. 1149 (N.D. Ill. 1982), plaintiff was successful on a motion for summary judgment and the Government's position was found to be erroneous as a matter of law. The Government had argued that plaintiff should be classified in a category in which at the time no cateogry existed. In Hornal v. Schweiker, No. 81-3832 (D. Tenn. Nov. 30, 1982), the physician relied upon by the Government performed an uncomplete examination without specific attention to plaintiff's particular problems. The Court found that the Government was totally unjustified in relying on that doctor's report in the light of overwhelming contradictory medical evidence. In United States v. Grabscheid, No. 81 C 7174 (N.D. Ill. July 23, 1982), the Court found that the Government's position was unreasonable because it knew when it filed its action that the six year Statute of Limitations had elapsed and that a waiver executed by Defendant was inaccurate. In Moholland v. Schweiker, 546 F. Supp. 383 (D. N.H. 1982), the Court found that there was a lack of evidence to support the Government's position.

In the case at hand, I found that Complainant had proved the allegations in subparagraphs (a), (e), (f), (g) and (h) of paragraph 3 of the Complaint, but Complainant had failed to prove the representations in subparagraphs (b), (c) and (d) were false. The Postal Service Decision affirmed the Initial Decision, however, reversed with respect to 3(f) which the Judicial Officer found Complainant also had failed to prove. The Consent Agreement stated that Respondent will discontinue the representations found to be false in the Initial Decision as affirmed by the Postal Service Decision.

At the hearing, Complainant presented the testimony of Merrill Korth, an EPA official who since 1973 had extensive experience in the field at issue. Mr. Korth testified in support of Complainant's position with regard to subparagraphs (b), (c), (d) and (f). My finding in favor of Respondent was not based upon any lack of evidence in support of these subparagraphs or on any failure of reasonable evidence. I simply found Respondent's evidence to be more persuasive. Similarly, with respect to subparagraph (f), the Judicial Officer's decision indicated that he found Respondent's position more persuasive than Complainant's and not that Complainant failed to submit any reasonable evidence in support of its position. Thus, the ruling in favor of Respondent on each of these four subparagraphs was not based upon any unreasonableness of Complainant's position but rather upon an evaluation of the relative positions of the parties both of which appeared to be reasonable. Accordingly, Complainant's position with regard to these issues was substantially justified.

5. Conclusion

I find that Respondent's application under the Act was untimely and should be dismissed. Even if the application was timely, the application should be denied because Respondent was not the prevailing party and Complainant's position was substantially justified.