March 14, 1994

Appeal of

COMPUTER POWER SUPPORT, INC.

Under Contract No. 05990-92-P-0775

PSBCA No. 3401

APPEARANCE FOR APPELLANT:

Michael J. Radin, Esq.

APPEARANCE FOR RESPONDENT:

Robert E. O'Connell, Esq.

OPINION OF THE BOARD ON EAJA APPLICATION

            Appellant has filed an Application under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504, for attorney fees and expenses.  Appellant filed this appeal from Respondent's termination for default of Appellant's contract to provide electrical maintenance services.  Nine months after the appeal was filed, the contracting officer converted the termination for default to a termination for the convenience of the Postal Service.  In cross-motions to dismiss, the parties agreed to the dismissal of the appeal as moot, and on December 30, 1993, the Board dismissed the appeal.

            Appellant filed a timely Application for Costs and Fees under the Equal Access to Justice Act.  Appellant seeks a total EAJA recovery of $5755.20, consisting of attorney fees for 71.70 hours at $75.00 per hour[1] ($5377.50) plus costs and expenses in the amount of $377.70.  The Application was accompanied by a net worth exhibit, documentation of the fees and expenses incurred and argument in support of the Application.

            Respondent, in its Answer to the Application, stated that it did not contest Appellant's application for an award of fees and expenses in the amount of $5,755.20.  Respondent conceded Appellant met the size and net worth eligibility requirements under EAJA, admitted that Appellant is a prevailing party under 39 C.F.R. § 960.5, and stated it did not contest Appellant's assertion that Respondent's position was not substantially justified.

            Based on the Application and its supporting documentation, on Respondent's concessions and on the record of this appeal we conclude that

            1.  Appellant meets the size and net worth eligibility standards set forth in 39 C.F.R. § 960.4;

            2.  Appellant is a prevailing party in this appeal as it obtained the relief it sought: the overturning of the termination for default;

            3.  Respondent's position was not substantially justified;

            4.  Appellant did not unduly protract these proceedings; and

            5.  There are no special circumstances that would make an award unjust.

            The descriptions of the legal services and expenses listed on the monthly invoices submitted in support of the Application demonstrate the claimed hours were spent and the expenses were incurred in connection with this appeal.  Moreover, the number of attorney hours and the expenses included in Appellant's claim are reasonable considering the course of this appeal and its complexity.

            Accordingly, Appellant's Application is granted in the amount of $5755.20.

Norman D. Menegat

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

James D. Finn, Jr.

Administrative Judge

Vice Chairman

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[1]  Appellant's attorneys billed Appellant at a rate exceeding $75.00 per hour, but Appellant's EAJA claim is based on $75.00 per hour, the maximum rate allowed under Postal Service EAJA regulations.