19-11-105. Awarding of costs and fees.

(a) In any administrative or court proceeding which is brought by or against an employer or prior employer in connection with a claim under W.S. 19-11-104 or 19-11-111, the prevailing member may be awarded a judgment or a settlement against an employer or prior employer for:

(i) Reasonable administrative costs incurred in connection with such administrative proceeding within the employer; and

(ii) Reasonable litigation costs incurred in connection with such administrative proceeding within the employer or prior employer.

(b) A judgment for reasonable litigation costs shall not be awarded under subsection (a) of this section in any court proceeding unless the court determines that the prevailing party has exhausted the administrative remedies available to such party within the employer or prior employer.

(c) An award under subsection (a) of this section shall be made only for reasonable litigation and administrative costs which are allocable to the employer or prior employer and not to any other party.

(d) No award for reasonable litigation and administrative costs may be made under subsection (a) of this section with respect to any portion of the administrative or court proceeding during which the prevailing party has unreasonably protracted such proceeding.

(e) For purposes of this section:

(i) "Administrative proceeding" means any administrative procedure or other action before the employer or former employer;

(ii) "Court proceedings" means any civil action brought in a court within the state of Wyoming;

(iii) "Position of the employer or former employer" means the position taken by the employer or former employer in an administrative or judicial proceeding;

(iv) "Prevailing party" means any current or former member of the uniformed services in any proceeding to which subsection (a) of this section applies who establishes that the position of the employer or former employer in the proceeding was not substantially justified, and:

(A) Has substantially prevailed with respect to the action in controversy; or

(B) Has substantially prevailed with respect to the most significant issue or sets of issues presented.

(v) "Reasonable administrative costs" means any administrative fees or similar charges imposed by the employer or former employer and expenses, costs and fees described as reasonable litigation costs identified in paragraph (vi) of this subsection;

(vi) "Reasonable litigation costs" includes reasonable court costs and, based on prevailing market rates for the kind or quality of services furnished:

(A) The reasonable expenses of expert witnesses in connection with a court proceeding, except that no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the employer or prior employer if the employer or prior employer utilized expert witnesses;

(B) The reasonable cost of any study, analysis, report or project which is found by the court to be necessary for the preparation of the party s case; and

(C) Reasonable attorney's fees, except that such fees shall not be in excess of seventy-five dollars ($75.00) per hour unless the court determines that an increase in the cost of living or a special factor, such as limited availability of qualified attorneys for such proceeding, justifies a higher rate.

(f) An award for reasonable litigation costs shall be payable under this section in the same manner as such an award by a district court.

(g) For purposes of this section, in the case of multiple actions which could have been joined or consolidated, such actions shall be treated as one (1) court proceeding regardless of whether such joinder or consolidation actually occurs, unless the court in which such action is brought determines, in its discretion, that it would be inappropriate to treat such actions or cases as joined or consolidated.

(h) An order granting or denying, in whole or part, an award for reasonable litigation or administrative costs under subsection (a) of this section in a court proceeding may be incorporated as part of the decision or judgment in the court proceeding and shall be subject to appeal in the same manner as the decision or judgment. A decision granting or denying, in whole or in part, an award for reasonable administrative costs under subsection (a) of this section in an administrative proceeding by the employer or former employer shall be subject to appeal by bringing the cause of action to the district court.