October 23, 1995

Appeal of

DOBEE, INC.

UNDER LEASE AGREEMENT

PSBCA No. 3238

APPEARANCE FOR APPELLANT:

John H. Baker, Esq.

APPEARANCE FOR RESPONDENT:

Robert E. O’Connell, Esq.

OPINION OF THE BOARD ON EAJA APPLICATION

Appellant, Dobee, 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 arising from the successful appeal in Dobee, Inc., PSBCA No. 3238, 94-2 BCA ¶ 26,874. The application seeks $26,684.14, representing attorney fees, related costs and testing and engineering fees.

Respondent objects to any EAJA award on the ground that its position was substantially justified. Alternatively, Respondent contends amounts claimed by Appellant for legal assistant and paralegal time and professional services exceed the allowable rate.

As Appellant prevailed in the Board proceeding, it meets the prevailing party requirements of EAJA and is thus entitled to an EAJA award unless Respondent’s position was substantially justified.^[1] The term “substantially justified” means “justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S., 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 was entitled to rely on the test results of its testing firm pertaining to the specification compaction requirements of the asphalt paving and base course at the Mulino, Oregon Post Office. Respondent argues that such results appeared reliable as its tests were performed before the asphalt paving was removed, while Appellant’s tests were performed after the paving was removed. Respondent continues that even after Respondent had been furnished Appellant’s results, it was reasonable to continue to rely on its testing firm’s results again for the reason that its tests were performed before the pavement had been disturbed. Respondent also points out that the Board also considered in its decision the results of a controlled laboratory test which was performed less than a week before the hearing, and was not even furnished to counsel for Appellant until two days before the hearing, (see Appellant’s Exhibit No. 34), and to counsel for Respondent the day before the hearing, leaving little time for Respondent and its counsel to analyze the report.

Appellant contends Respondent’s position was not substantially justified as Respondent’s testing firm used a blow count (75) that was too stringent for its Marshall test and that the firm’s nuclear densimeter test compaction results were inconsistent with its specific gravity test data compaction results. According to Appellant, it was not reasonable for Respondent to rely on such erroneous and inconsistent test results. Appellant also contends that the testing firm acted in bad faith and had preconceived the results of its tests to support Respondent’s position. Finally, Appellant contends that even if the test results and recommendations were not made in bad faith, Respondent’s refusal to compensate Appellant for the repaving was not justified.

The Board’s decision on the merits of the appeal was based solely on the results of the tests performed by the two testing firms. Both firms were established testing firms, yet the same types of compaction tests yielded divergent results. The Board was faced with a difficult decision in either reconciling the different results or choosing between the two as to reliability. Based on the evidence of record we determined that the results of Appellant’s testing firm were more reliable. However, the matter was not a foregone conclusion and required the resolution of a difficult and close issue.

Respondent’s reliance on its expert’s tests was not unreasonable, although ultimately not successful at the hearing in the appeal. As stated in Montgomery Ross Fisher, Inc., H.A. Lewis, Inc., J.V., PSBCA No. 3261, 93-3 BCA ¶ 26,106,

“Where as here, the decision in an appeal turns on the resolution of a close and disputed question of fact, Respondent’s litigation position is substantially justified and Appellant may not recover its attorney fees under EAJA [citations omitted].”

There is no credible evidence in the record which would support Appellant’s contention that Respondent’s testing firm had acted in bad faith, nor is there any persuasive evidence that its test results were preconceived. Appellant’s application for attorney fees is denied.

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

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^[1]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.”