(a) A respondent in a covered proceeding that prevails on the merits of
that proceeding against the Board, and that is eligible under this subpart as
defined in section 263.103, may receive an award for fees and expenses
incurred in the proceeding unless the position of the Board during the
proceeding was substantially justified or special circumstances make an award
unjust. The position of the Board includes, in addition to the position taken
by the Board in the adversary proceeding, the action or failure to act by the
Board upon which the adversary proceeding was based. An award will be reduced
or denied if the applicant has unduly or unreasonably protracted the
proceedings.
