THE GREEN SHACK MARKETPLACE
APPEARANCES FOR APPELLANT:
Christopher F. Bryan, Esq.
APPEARANCE FOR RESPONDENT:
Robert E. O'Connell, Esq.
OPINION OF THE BOARD ON EAJA APPLICATION
Appellant, The Green Shack Marketplace, has filed a timely application under the Equal Access to Justice Act (“EAJA”), 5 U.S.C. §504, for fees and other expenses totaling $30,172.25 incurred in connection with its prosecution of the captioned appeal.[1] Respondent opposed the application, and Appellant filed a response to Respondent’s opposition, claiming an additional $362.50 for the 2.9 hours spent by Appellant’s counsel in preparing the response.
Respondent has conceded that Appellant meets the applicable size requirements, and Appellant has demonstrated that the net worth of the owner of this unincorporated business is below the eligibility limits (Net Worth Exhibit for Nardine Iskander). 39 C.F.R. §960.4. Accordingly, Appellant is eligible to recover under EAJA.
In the September 25, 2001 Opinion, the Board determined that Respondent’s May 30, 2000 attempted retroactive termination of Appellant’s contract on one-day’s notice was improper. The Green Shack Marketplace, PSBCA No. 4557, 01-2 BCA ¶ 31,598.[2] The Board concluded that the contracting officer’s action was effective as a termination on 60-day’s notice entitling Appellant to damages from the date its contract performance was suspended, January 26, 2000, until 60 days after the contracting officer’s attempted retroactive termination, July 30, 2000. Based on this success, Appellant was a “prevailing party” for purposes of an EAJA award, as conceded by Respondent. See The Little Susitna Co., PSBCA Nos. 2216, 2333, 2511, 93-1 BCA ¶ 25,497, citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
In support of its EAJA claim, Appellant submitted copies of counsel’s computer printout of fees and expenses billed to Appellant. For the claimed attorney fees, the printout describes the nature of each task performed by counsel, the date the task was performed and the number of hours spent in performing the task. (Application for Fees and Costs, Exhibit B). Appellant was billed by and paid counsel at the rate of $125 per hour (Application for Fees and Costs, ¶5). The expenses claimed are identified by date incurred, nature of the expense and the amount. This submission is adequate for the Board to assess entitlement to fees and expenses. See Community Heating & Plumbing v. Garrett, 2 F.3d 1143, 1146 (Fed. Cir. 1993).
An EAJA award will not be made if Respondent demonstrates that its overall position had a reasonable basis in law and fact. 39 C.F.R. §960.5 (a); see Pierce v. Underwood, 487 U.S. 552, 565 (1988); Banks Trucking, PSBCA No. 3528, 96-2 BCA ¶ 28,350. Respondent argues that its position was substantially justified.
Whether Respondent was substantially justified is determined by an assessment of the conduct that led to the litigation before the Board as well as on Respondent’s position in the Board proceedings. See Commissioner, Immigration and Naturalization Service v. Jean, 496 U.S. 154 (1990); The Little Susitna Co., PSBCA Nos. 2216, et al., 93-1 BCA ¶ 25,497; 5 U.S.C. §504 (b)(1). Here, local officials, without authority, closed Appellant’s contract postal unit, bypassing the contracting officer and the contracting officer’s representative (Findings 13, 17), even though Appellant was considered to be a reliable and conscientious contract station operator (Finding 17). As a result of the unauthorized closure, Appellant was denied the contract-mandated notice of deficiencies and an opportunity to correct what Respondent believed to be improper financial practices. There was no suggestion that Respondent’s funds or stamp stock entrusted to Appellant were at risk of loss or that any other emergency situation existed that would have warranted an immediate closure of the station.
Had Appellant’s financial reporting practices been brought to the contracting officer’s attention before the January 26 closure, he would likely have followed the contract requirements, notifying Appellant of the offending reporting practices and allowing an opportunity to cure (Transcript pages 249, 262-263, 310).[3] However, having been left out of the loop by the local postal officials when the decision was made to close the station, the contracting officer felt compelled to support the action notwithstanding his knowledge that the contract procedures had not been followed. His attempt to terminate the contract retroactively was ineffective, and Respondent’s litigation to vindicate that action did not have a reasonable basis in law.
Under these circumstances, considering the conduct that led to this appeal as well as Respondent’s position in the Board proceedings, the overall position of Respondent was not substantially justified, and Appellant may recover allowable attorney fees and expenses. See Nello Constr. Co., PSBCA No. 3075, 93-1 BCA ¶ 25,495.
Attorney Fees
Appellant has requested reimbursement for 239.4 hours of attorney time, which it paid at the rate of $125 per hour. (Appellant’s Application for Fees and Costs, ¶5). Of the total hours claimed, Respondent challenges only the 90.4 hours of attorney time associated with research and drafting of Appellant’s post-hearing brief, claiming that the time spent was excessive. Respondent argues that the legal issues involved in the appeal were neither novel nor overly complex and that the Board’s many decisions addressing contract terminations were readily available and easily applied to the facts of this appeal. Respondent does not suggest what would be a reasonable time for preparation of Appellant’s brief, but asks that the Board determine and award some lesser amount as appropriate.
Respondent is correct that it is not responsible under EAJA for reimbursement for time spent by Appellant’s attorneys that was unnecessary or excessive. See Sage Constr. Co., ASBCA No. 34284, 92-1 BCA ¶ 24,493. However, Respondent has not shown with any particularity that the time counsel spent preparing Appellant’s brief was unnecessary or excessive. In the brief, counsel comprehensively and necessarily presented the facts of the conduct of Respondent’s officials leading to the termination of the contract with extensive citation to the record. Based on this exhaustive presentation of the facts, Appellant made numerous arguments in its 48-page brief. The Board adopted most of Appellant’s arguments, and for those it did not adopt, it was not unreasonable for counsel to offer them in support of its position. Having reviewed Appellant’s extensive post-hearing brief, we conclude that expending 90.4 hours claimed for its research and preparation was reasonable.
The remaining hours claimed by Appellant are not challenged, and they appear reasonable in consideration of the factual complexity of the case. Accordingly, the claimed attorney fees associated with prosecution of the appeal are allowed.
Respondent has not challenged the miscellaneous expenses claimed by Appellant, and we find them to be reasonable in amount, necessary to prosecution of these appeals and chargeable to Appellant. See Oliveira v. United States, 827 F.2d 735, 744 (Fed. Cir. 1987). They are consistent in scope and amount with legal expenses typically charged in furnishing legal services of this type. See Keno & Sons Constr. Co., ENGBCA No. 5837-F, 99-1 BCA ¶ 30,273; Banks Trucking, PSBCA No. 3528, 96-2 BCA ¶ 28,350. Accordingly, Appellant may recover expenses in the amount of $247.25.
Attorney fees associated with preparation of the EAJA application and responding to Respondent’s opposition to the application are includable in an award made under EAJA. The Little Susitna Co., PSBCA Nos. 2216, 2333, 2511, 93-1 BCA ¶ 25,497; Federal Contractors, Inc., PSBCA No. 1359, 88-2 BCA ¶ 20,526. The EAJA application was successful, and the response persuasively met the objections raised in Respondent’s opposition to the fee request. Accordingly, the fees associated with the fee application (included in the total fee request, note 1, above) and the response to the opposition ($362.50) are allowed.
Appellant may recover attorney fees in the total amount of $30,534.75 and expenses in the amount of $247.25. The application is granted.
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
[1] This amount includes $512.50 for 4.1 hours of attorney time at $125 per hour associated with preparation of the application for fees and costs under EAJA.
[2] Familiarity with that Opinion is presumed, and the facts found therein will be addressed only as necessary to decide the EAJA application. References to “Findings” are to the findings of fact from the September Opinion.
[3] Appellant desired to retain the contract postal unit in its store, and the evidence suggests that if notified that the contract was at risk and if given an opportunity to conform its financial reporting practices to Respondent’s requirements, it would have done so.