Mr. Trozzi challenged the Board of Review's decision by filing a petition for a writ of mandamus and prohibition with the circuit court.   (See footnote 2)  By order entered January 29, 2002, the circuit court granted the writ. In doing so, the circuit court found that under the applicable laws and rules, the Board of Review could only remand a claim when a party shows good cause. The circuit court determined that the employer failed to show good cause for remanding the claim to the administrative law judge.

        The order granting the writ also denied Mr. Trozzi's request for attorney fees and costs. Mr. Trozzi subsequently filed a Rule 59(e) motion asking the circuit court to reconsider its denial of attorney fees and costs. The motion, which was later amended, sought $282.28 for costs and $7,524.00 for attorney fees through February 12, 2002, and additional attorney fees thereafter at $180.00 per hour for time spent on the motion.   (See footnote 3)  The circuit court denied the motion. This appeal followed.

        This Court noted in Gatson that “our unemployment compensation law does not expressly allow recovery of attorney fees against the public body.” Gatson, 210 W. Va. at 756, 559 S.E.2d at 902. Although there was no statutory authority to award attorney fees against the Board of Review, this Court recognized that “'[t]here is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees as 'costs,' without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.'” Gatson, 210 W. Va. at 755, 559 S.E.2d at 901) (quoting Syl. pt. 3, Sally-Mike Properties v. Yokum, 179 W. Va. 48, 365 S.E.2d 246 (1986)). We adopted the principle of law articulated in Yokum and held in Syllabus point 3 of Gatson that “[a] claimant who prevails in an unemployment compensation action may not be awarded attorney fees unless the evidence shows the Division of Unemployment Compensation acted in bad faith or with vexatious, wanton, or oppressive conduct.”

        In the instant case, the circuit court found that under Gatson, Mr. Trozzi “has not shown that the [Board of Review] acted in bad faith, or with vexatio[us], wanton, or oppressive conduct.” Consequently, the circuit court denied attorney fees and costs. Mr. Trozzi contends, and we agree, that the Gatson standard is inapplicable to the procedure involved in this case.

        Gatson involved an appeal to the circuit court by the claimant from an adverse ruling by the Board of Review. In contrast, Mr. Trozzi filed a petition for a writ of mandamus and prohibition to challenge the Board of Review's decision.   (See footnote 4)  Consequently, the standard for awarding attorney fees and costs is not found in Gatson. The applicable standard is that which is used for a petition for a writ of mandamus and prohibition. See Daily Gazette Co., Inc. v. West Virginia Dev. Office, 206 W. Va. 51, 67, 521 S.E.2d 543, 559 (1999) (“[T]he rules established for the award of attorney's fees in mandamus proceedings do not apply to FOIA actions because . . . the two types of cases employ different standards for the granting of such awards.”).

        Under W. Va. Code § 53-1-8 (2000) costs may be recovered in a mandamus or prohibition proceeding.   (See footnote 5)  See Syl. pt. 3, Nelson v. West Virginia Pub. Employees Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982) (“It is settled that in mandamus proceedings where a public officer willfully fails to obey the law, costs will be awarded.”). The statute is silent on the issue of attorney fees. “However, in Nelson v. West Virginia Public Employees Ins. Bd., this Court, while considering the applicability of attorney fees under W. Va. Code § 53-1-8 in an action for a writ of mandamus, observed our previous holding that 'attorney fees are not “costs,” . . . and thus attorney fees would not ordinarily be recoverable as such.'” Martin v. West Virginia Div. of Labor Contractor Licensing Bd., 199 W. Va. 613, 619, 486 S.E.2d 782, 788 (1997) (quoting Nelson, 171 W. Va. at 451, 300 S.E.2d at 92. The decision in Nelson carved out a general standard by which attorney fees may be awarded in a mandamus proceeding. In syllabus point 4 of Nelson we held that “[i]n mandamus proceedings where a public officer willfully fails to obey the law, attorney fees will be awarded.”

        The general standard for awarding attorney fees in a mandamus proceeding, as set out in Nelson, was refined by Justice Cleckley in State ex rel. West Virginia Highlands Conservancy, Inc. v. West Virginia Division of Environmental Protection, 193 W. Va. 650, 458 S.E.2d 88 (1995). In Highlands two standards for awarding attorney fees in a mandamus proceeding were established. In syllabus point 3 of Highlands the following was stated: “[w]here a public official has deliberately and knowingly refused to exercise a clear legal duty, a presumption exists in favor of an award of attorney's fees; unless extraordinary circumstances indicate an award would be inappropriate, attorney's fees will be allowed.
In syllabus point 4 of Highlands the following stated:

        Where a public official has failed to exercise a clear legal duty, although the failure was not the result of a decision to knowingly disregard a legal command, there is no presumption in favor of an award of attorney's fees. Rather, the court will weigh the following factors to determine whether it would be fairer to leave the costs of litigation with the private litigant or impose them on the taxpayers: (a) the relative clarity by which the legal duty was established; (b) whether the ruling promoted the general public interest or merely protected the private interest of the petitioner or a small group of individuals; and (c) whether the petitioner has adequate financial resources such that petitioner can afford to protect his or her own interests in court and as between the government and petitioner.

See e.g., Phillip Leon M. v. Greenbrier County Bd. of Educ., 199 W. Va. 400, 484 S.E.2d 909 (1996) (affirming the award of attorney fees and costs under Highlands standards); Bennett v. Adkins, 194 W. Va. 372, 460 S.E.2d 507 (1995) (applying Highlands standards to reverse trial court's denial of attorney fees and costs); West Virginia Educ. Ass'n v. Consolidated Pub. Ret. Bd., 194 W. Va. 501, 460 S.E.2d 747 (1995) (remanding case for circuit court to apply Highlands standards to determine whether attorney fees and costs should be awarded). Thus, the standards of Highlands, and not Gatson, governed the issue of attorney fees and costs in this case.   (See footnote 6) 

        We do not find evidence to warrant a presumption of an award of attorney fees and costs under syllabus point 3 of Highlands. Therefore, we will analyze the factors set out in syllabus point 4 of Highlands.

        (a) Clear legal duty. The first issue we must address is whether a clear legal duty existed in the manner in which the Board of Review may remand a case to an administrative law judge for a de novo hearing. During the proceeding for Mr. Trozzi's petition for a writ of mandamus and prohibition, he argued that the Board of Review failed to follow the applicable rule and statute when it remanded his case for a de novo hearing.

        The Board of Review remanded the case for the taking of additional evidence. However, 84 C.S.R. 1, § 5.8 imposes specific requirements upon a party seeking to have additional evidence presented. This regulation requires that a party file a motion and show good cause for seeking to have additional evidence presented.   (See footnote 7)  The circuit court found that “[t]here was no Motion for Additional Evidence or other motion for a remand of this claim, to present additional evidence, made on behalf of the employer, by any attorney representing

the employer.” Morever, the circuit court found that “[t]he employer did not show good cause for a remand, as required by the Procedural Rules of the Board of Review.”

        Pursuant to W. Va. Code § 21A-7-10 (2002) “[t]he board may, on its own motion, after notice to the claimant, last employer, and the commissioner, eight days in advance of the date set for hearing, affirm, modify, or reverse and set aside a decision of an appeal tribunal.” The circuit court found that the Board of Review violated this statute. Specifically, the circuit court found that the Board of Review “did not give notice to the claimant, last employer, and the commissioner, eight days in advance of the date set for hearing, before taking action to set aside the decision of the Administrative Law Judge on its own motion.”

        This Court has little problem in finding that 84 C.S.R. 1, § 5.8 and W. Va. Code § 21A-7-10 imposed a clear and unequivocal procedural duty upon the Board of Review before it could remand a case for a de novo hearing. “Although the [Board of Review] has not shown an intention to disregard the law, the statute and the applicable regulation[] provide[d] clear guidance.” Highlands, 193 W. Va. at 654, 458 S.E.2d at 92. The Board of Review failed to follow that guidance and violated that procedural duty in this case.

        (b) The interest promoted in granting the writ. The next issue we must consider concerns whether the circuit court ruling granting the writ to Mr. Trozzi by the circuit court, promoted the general public interest or merely Mr. Trozzi's own private interest. “[A]lthough this case involves a primarily private dispute, we cannot disregard the broader implications of the case as it relates to the . . . proper methods for [the Board of Review to remand a case].” Bennett v. Adkins, 194 W. Va. 372, 380, 460 S.E.2d 507, 515 (1995).

        Mr. Trozzi correctly argues that “[i]f the Board is permitted to . . . remand on its own motion without the required notice, any claimant who relies upon the procedural rules . . . does so to his or her detriment, is placed at a procedural disadvantage, may be denied due process, and may be forced to hire legal counsel to defend their unemployment compensation benefits.” In considering these factors, we believe they are relevant to all claimants seeking contested unemployment compensation benefits. Consequently, the writ issued in this case had an impact far beyond the narrow interest of Mr. Trozzi.

        (c) Financial resources of Mr. Trozzi. The final issue for consideration involves the adequacy of Mr. Trozzi's financial resources to protect his interests against improper conduct by the Board of Review. This issue need not detain us. Mr. Trozzi has correctly argued that as “between the government agency and . . . unemployed workers, the government is better suited to bear the costs of the agency's failure to comply with a statutory duty.” See Syl. pt. 1, Highlands (“Costs and attorney's fees may be awarded in mandamus proceedings involving public officials because citizens should not have to resort to lawsuits to force government officials to perform their legally prescribed nondiscretionary duties.”).

                                    Reversed and Remanded.