November 20, 1995

Appeal of

WILLIAM G. BARNES & SON CO., INC.

Under Contract No. 959984-87-V-0216

PSBCA No. 2432

 

APPEARANCE FOR APPELLANT:

Ronald L. Roberts, Esq.

 

APPEARANCE FOR RESPONDENT:

Robyn M. A. Sembenini, Esq.

 

OPINION OF THE BOARD ON EAJA APPLICATION

 

Appellant, William G. Barnes & Son Company, Inc., has filed an application under the Equal Access to Justice Act (EAJA), as amended, 5 U.S.C. §504, seeking an award of attorney fees and other costs and fees arising from its successful appeal in William G. Barnes & Son Company, Inc., PSBCA No. 2432, 90-1 BCA       ¶ 22,503.  The application seeks $29,463.80.

Respondent objects to any award under EAJA on the ground that its position was substantially justified.  Respondent alternatively contends that the amount claimed by Appellant for attorney fees exceeds the statutory limit and that those costs incurred by Appellant’s corporate secretary are not reimbursable under EAJA.  Respondent also contends that many of the costs claimed were incurred prior to the issuance of the Contracting Officer’s final decision and therefore are not reimbursable, and that costs claimed which are related to unspecified efforts by agents are not allowable.

As Appellant prevailed in the Board proceeding, it meets the “prevailing” party[1] requirements of EAJA and is thus entitled to an EAJA award unless Respondent’s position was substantially justified.[2]  The term “substantially justified” means “justified to a degree that could satisfy a reasonable person.”  Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541 (1988).  Respondent need not show more than that its position was reasonable.  The Little Susitna Co., PSBCA No. 2216, 2333, 2511, 93-1 BCA ¶ 25,497; Bula Forge Inc., PSBCA No. 1490, 89-1 BCA ¶ 21,380.

Respondent contends its position was substantially justified as it relied upon the Contracting Officer’s interpretation and understanding of conversations between the Contracting Officer and Appellant’s Vice-President during two separate meetings held in January 1988.  Respondent reasons that the Contracting Officer’s understanding of the discussions, although rejected by the Board and found contrary to Appellant’s, was reasonable and that the Board determined a close evidentiary matter which Respondent was justified in litigating.

Appellant contends that Respondent’s position was not substantially justified as the Board stated in its decision that there was no evidence in the record that the termination action was warranted and, therefore, argues Appellant, Respondent’s position not to reimburse Appellant for remobilization costs (and suspension of work costs) was unreasonable.  Appellant further argues that Respondent has failed to meet its burden of proving that its position was substantially justified.

We agree with Appellant that Respondent’s position was not substantially justified.  There is no evidence in the record in this appeal that the termination action was proper.  Therefore, when the Contracting Officer rescinded the termination, he should have realized that Appellant would file a claim for remobilization, as well as suspension of work costs, as a de facto suspension of work had occurred.  In addition, the evidence indicates that Appellant specifically advised the Contracting Officer that a claim for such costs would be filed.  It was thus not reasonable to take the position that as a condition precedent to resuming work under the contract, Appellant had relinquished its mobilization and suspension of work claim.  Respondent’s position on this matter was not substantially justified, and Appellant is entitled to recovery under EAJA.

Appellant seeks $16,189.50 for attorney fees involving 84.5 hours of time expended.  Appellant also seeks $12,257.50,[3] representing 239.5 hours in “agent  fees.”  Respondent does not contest the reasonableness of the number of hours expended by counsel subsequent to October 1988 when the Contracting Officer issued his final decision.  That amount equals 55.85 hours and is allowed as the record contains nothing to indicate the amount is unreasonable.  Payment for the remaining hours (28.65) for services rendered prior to the Contracting Officer’s decision is not allowed as they are not attributable to an adversary adjudication, but rather focused on other matters.[4]  Digicom Corp., ASBCA No. 36907, 90-1 BCA ¶ 22,255; Building Services Unlimited, Inc., ASBCA No. 33283, 88-2 BCA ¶ 20,611.

Appellant requests more than the $75 per hour statutory maximum allowed by the EAJA (5 U.S.C. §504(b)(1)(A)).  That section of the EAJA states in part, “attorney or agent fees shall not be awarded in excess of $75 per hour unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee.”  No such regulation has been promulgated by the Postal Service.[5]  Thus, the maximum rate allowed for reimbursement to Appellant is $75 per hour.  Award of $4,188.75 (55.85 hours x $75) for attorney fees is granted.  Also granted is an additional $355.35 for related expenses such as courier, photocopy, telecommunications and postage.

The “agent fees” represent hours expended in litigation preparation by Appellant’s corporate secretary and other non-attorneys.  It is established that a fee applicant may not recover costs under EAJA which are attributable to the efforts of its employees and officers in their representation of the corporation.  Preston-Brady Co., Inc., VABCA Nos. 1892E, 1991E, 2555E, 88-2 BCA ¶ 20,574; Roberts Construction Company, ASBCA No. 31033, 86-2 BCA ¶ 18,846.  Thus, the 239.5 hours of agent fees are disallowed.  An additional $580 in expenses incurred by the corporate agents are also sought and are likewise disallowed.

In summary, Appellant is entitled to $4,188.75 for attorney fees and $355.35 for related expenses.  The total award amount is $4,544.10.  The remainder of its fee application is disallowed.

James D. Finn, Jr.

Administrative Judge

Vice Chairman

 

I concur:

James A. Cohen

Administrative Judge

Chairman

 

I concur:

David I. Brochstein

Administrative Judge

Board Member


[1]Appellant also qualifies as a “party” in this proceeding as its net worth did not exceed $7,000,000 at the time the adversary adjudication was initiated, and it did not employ more than 500 employees.  (See 5 U.S.C. §504(b)(1)).

[2]The EAJA provides for an award of fees and other expenses to an eligible applicant who was a prevailing party in an adversary adjudication unless it is found that the position of the government was “substantially justified or that special circumstances make an award unjust.”  (5 U.S.C. §504(a)(1)).

[3]Thus the total amount sought for attorney and agent fees is $28,447.00  An additional $1,016.80 for “total costs” is also sought.  However, Appellant has provided no separate breakdown for that amount of “total costs.”

[4]An “adversary adjudication” in regard to Board of Contract Appeals matters means “any appeal of a decision made pursuant to Section 6 of the Contract Disputes Act of 1978 . . . before an agency Board of Contract Appeals . . .” (5 U.S.C. §504 (b)(1)(C)(ii)).

[5]Although Appellant contends that west coast fees are higher, this does not constitute a special factor which would justify the additional amount claimed.