29 CFR §16.106

1. (a)A prevailing applicant may receive an award for fees and expenses incurred in connection with a proceeding, or in a significant and discrete substantive portion of the proceeding, unless the position of the Department as a party over which the applicant has prevailed was substantially justified or if special circumstances make the award sought unjust. No presumption arises that the Department's position was not substantially justified simply because the Department did not prevail.
2. (b)An award will be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding.