July 31, 2003
Appeal of
HASELRIG CONSTRUCTION COMPANY, INC.
LEASE AGREEMENT
PSBCA No. 4609
APPEARANCE FOR APPELLANT:
Toby N. Byrd, Esq.
APPEARANCE FOR RESPONDENT:
Karren Dickson Vance, Esq.
OPINION OF THE BOARD ON EAJA APPLICATION
Appellant, Haselrig Construction Company, Inc., has filed a timely application under the Equal Access to Justice Act (“EAJA”), 5 U.S.C. §504, for attorney fees of $125,383.75 and expenses of $5,295.91 incurred in the prosecution of its quantum appeal following the improper default termination of its contract with the Postal Service. Appellant also seeks attorney fees of $4,050 for preparation of the EAJA claim. Respondent opposed the application, contending that its defense of this quantum appeal was substantially justified, and Appellant filed a response to Respondent’s opposition.
The following findings of fact are based on the records in PSBCA Nos. 4148, the entitlement phase of this dispute, and 4609, Appellant’s quantum appeal and related EAJA Application.
1. In April 1996, the parties entered into an agreement whereby Appellant agreed to build a post office according to Respondent’s plans and enter into a long-term lease with Respondent. The agreement identified the site, which Appellant was required to buy. (Decision in PSBCA No. 4148, Haselrig Constr. Co., PSBCA No. 4148, 00-1 BCA ¶ 30,674 (“Decision”), Finding 1).
2. Because of Appellant’s difficulty obtaining financing and bonding, notice to proceed was delayed, and on February 13, 1997, Respondent terminated the contract for default for Appellant’s failure to make progress (Decision, Finding 9).
3. On April 2, 1997, the parties agreed to reinstate the contract with terms and conditions identical to those of the defaulted contract. Respondent issued a notice to proceed under the reinstated contract on April 15, 1997. (Decision, Findings 10, 11).
4. Appellant financed performance of the reinstated contract through a joint venture/development arrangement between Appellant and Rufus Stancil, with construction financing provided by Industrial Bank, N.A. (Stipulated Facts in PSBCA No. 4148, ¶¶13, 14, 15; Appellant’s Supplemental Appeal File filed in PSBCA No. 4609, Tabs (“ASAF”) 59d, 64, 65). Respondent was aware of this financing arrangement and of Mr. Stancil’s participation in the project (Appeal File in PSBCA No. 4148, Tabs 20, 23-25, 27, 29; ASAF 65). Mr. Stancil bought the land on which the post office was to be built and issued his checks for many of the expenses incurred on the project. The construction lender subsequently reimbursed Mr. Stancil for some of the expenses he paid. (See, e.g., Respondent’s Supplemental Appeal File in PSBCA No. 4148 filed March 19, 1998, Tab 2; Appeal File in PSBCA No. 4609 (“AF”) Volume (“V.”) I, Tab 3).
5. On September 20, 1997, Respondent terminated the contract for Appellant’s failure to make progress (Decision, Finding 30). Appellant appealed the termination.
6. In a December 2, 1999 Opinion, the Board sustained the appeal, concluding that the termination was not warranted and that it constituted a breach of contract, there being no termination for convenience clause in the contract (Decision).
7. On or about May 26, 2000, Appellant submitted to Respondent a certified claim for damages in the amount of $7,057,510, allegedly stemming from Respondent’s breach of the contract. The claim was comprised of 15 individual sections, designated as A through O, plus a contingent attorney fee claim. (AF V. I; Board Exhibit A).
8. Respondent asked the Defense Contract Audit Agency (“DCAA”) to audit certain sections of Appellant’s claim: B (Bond, Permits and Insurance); D (Project Architectural and Engineering Costs); E (Direct Project Costs); J (Contractor’s Overhead on Work Performed) and K (Contractor’s Anticipated Profits on Construction). The auditor reviewed the designated sections of the claim and interviewed Appellant’s vice president and counsel about the claim. Appellant did not maintain a job cost accounting system or any other regular business records that identified costs to this project. Accordingly, the auditor qualified his report, in that he did not find that Appellant was entitled to recover even the claimed costs he did not question (i.e. did not reject as unproven). The auditor only confirmed that the costs not questioned appeared to have been incurred and to be related to the post office project. Of the total of $809,766 claimed in the parts of the claim he reviewed, the auditor questioned all but $71,258. The auditor concluded that the remaining $738,508 of those claim elements was not adequately supported and documented to justify payment. (AF V. II, Tab 1).
9. On October 31, 2000, the contracting officer issued a final decision allowing the $71,258 not questioned in the audit report and denying the rest of the claim (AF V. II, Tab 2).
10. The contracting officer denied claim elements totaling $1,016,118 for the sole or partial reason that the expenses were incurred by Mr. Stancil and not by Appellant (AF V. II, Tab 2 (Claim Sections A, F, G, H). She denied other claim elements totaling $2,321,894 for anticipated profits on the construction and on the lease because she concluded such costs were not recoverable after a termination of the contract, relying on principles applicable to convenience terminations (AF V. II, Tab 2 (Claim Sections K, L)). She also denied a claim of $68,808 for legal expenses associated with acquiring and financing the project, concluding that such costs were not allowable as part of a termination for convenience claim (AF V. II (Claim Section C)).
11. The contracting officer also denied Appellant’s claim of $765,240 for consequential damages, which consisted largely of lost opportunity costs of a sewer service business also owned by Appellant, and a $2,016,431 claim for appeal legal fees related to prosecution of the quantum claim. The attorney fee claim was based on a flat rate of 40% of any recovery by Appellant, and so was calculated at 40% of the total claim of $5,041,079, or $2,016,431. (AF V. II, Tab 2 (Claim Sections O, P; AF V. I).
12. The documents included in the claim as support for Claim Section I, $212,575 in “Legal and Consultants Fees for Appeal of BCA No. 4148,” had nothing to do with legal fees. Further, those included in support of the alleged consultant fees associated with the appeal of PSBCA No. 4148 were unexplained and the claimed fees appear to have been incurred by Appellant’s vice president (See Board Exhibit A). The contracting officer denied claim section I. (AF V. I, Tabs 47, 48; AF V. II, Tab 2 (Claim Section I)).
13. Appellant’s claim included no support for the claim elements in sections M (Real Estate Tax, $20,325) and N (Tax Shelter Loss, $37,500), which were denied by the contracting officer. For each, Appellant’s narrative claim included a four-line, conclusory statement of each claim, with unexplained numbers and calculations, and the referenced support documentation for each was simply the same unexplained statements, almost word for word, from the narrative itself without any source documents. (AF I, Tabs 52, 53).
14. Appellant’s notice of appeal of the contracting officer’s final decision on quantum was docketed on November 13, 2000, as PSBCA No. 4609.
15. On June 21, 2001, Appellant filed a three-volume Supplemental Appeal File in PSBCA No. 4609. The supplement included the original claim plus additional explanation and documents in support. The claims in the supplement were identified to the 15 sections in the original claim, but the amounts of some claim items had changed. (ASAF V. 1-3).
16. Respondent requested that DCAA review the additional material of the Supplemental Appeal File and supplement the October 18, 2000 audit report (Finding 8). On November 30, 2001, the auditor issued a draft audit report (“Second Audit”), which was provided to the contracting officer. A copy was supplied to Appellant. In reviewing the same elements reviewed in the first audit in light of the supplemental information, the amount not questioned increased by $77,661, which when considered with the originally-allowed $71,258 (see Finding 9, above) brought the total portion of the claim adequately supported to $148,919. (Second Audit).
17. A hearing was scheduled in PSBCA No. 4609. On October 4, 2001, Respondent filed a Motion in Limine, seeking to prevent Appellant’s proof of damages relating to four issues. Among these was Respondent’s contention that costs incurred by the third-party investor, Mr. Stancil, could not be recovered. This issue affected claims totaling $1,016,118 (Finding 10). Respondent also contended that Appellant should be prevented from proving damages consisting of anticipatory profits on the lease portion of the contract, stated to be $2,104,632 in the original claim and about $2.7 million in the supplement, although it conceded Appellant was entitled to recover anticipated profits on the project construction, if proved. (Motion in Limine; AF V. I, Claim p. 15; ASAF 51).
18. By Order dated November 16, 2001, the Board denied Respondent’s Motion in Limine as to the two issues described above, holding that Appellant was not precluded as a matter of law from presenting evidence to support these claims.
19. On December 10, 2001, the parties settled Appellant’s quantum claim for $2,580,000 in addition to the $71,258 previously allowed by the contracting officer. The parties specifically excluded from the settlement any EAJA claim related to the quantum appeal. (Board Order dated December 11, 2001; Equal Access to Justice Act Application ¶10; Respondent’s Answer to Appellant’s EAJA Application, p. 2; Reply to Respondent’s Answer to Appellant’s EAJA Application ¶¶ 12, 13).
20. On January 25, 2002, Appellant filed the Equal Access to Justice Act application at issue here, requesting fees of $125,383.75 and costs of $5,295.91 incurred between January 1, 2001, and January 21, 2002, in the prosecution of Appellant’s quantum claim. Appellant also sought attorney fees of $4,050 to prepare the EAJA claim and defend an interpleader action into which Respondent apparently deposited the settlement funds. (EAJA Application ¶ 20).
21. On March 13, 2002, the quantum appeal of PSBCA No. 4609 was dismissed with prejudice based on the parties' Joint Stipulation of Dismissal with Prejudice. In their Joint Stipulation, the parties noted that the only dispute remaining was over the January 25, 2002 EAJA application relating to the quantum appeal, PSBCA No. 4609.
Appellant, through its attorney’s declaration under penalty of perjury, has demonstrated that it meets the applicable size requirements and that the net worth of the corporation meets the eligibility limits set forth in 39 C.F.R. §960.4.
In its reply to the application, Respondent conceded for purposes of the EAJA application that Appellant was a “prevailing party” in the quantum portion of the appeal based on the settlement it achieved. Thereafter, at the Board’s direction, the parties supplemented their arguments to address the possible applicability of the decision in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S. Ct. 1835, 149 L.Ed.2d 855 (2001), to the circumstances of this application. In Buckhannon, the Supreme Court rejected the “catalyst theory” as a basis for concluding a litigant was a “prevailing party” for purposes of attorney-fee-granting statutes.[1] Although a litigant may have achieved the result it sought in the litigation by means of a settlement with, or voluntary action by, the government agency, the dismissal of the litigation without the court taking action affecting the legal relationship of the parties, such as entering a consent decree or judgment, precludes the litigant from being found a prevailing party. Id., 532 U.S. at 605.
In Brickwood Contractors, Inc. v. United States, 288 F.3d 1371 (Fed. Cir. 2002), the Federal Circuit concluded that the Buckhannon analysis extended to the “prevailing party” determination under EAJA and that the Supreme Court had rejected the catalyst theory “except in instances where there is an enforceable judgment on the merits or a court-ordered consent decree, both of which create a material alteration in the legal relationship of the parties.” Brickwood Contractors, Inc., 288 F.3d at 1379, 1380.
Appellant argues that the implications of the Buckhannon and Brickwood cases need not be addressed because in this appeal Respondent did not raise the issue and, in fact, conceded that Appellant was a “prevailing party.” However, the Board is not bound by any concession regarding Appellant’s status as a “prevailing party,” and we are not precluded from addressing the issue where, as here, there are recent court precedents that may bear on the issue.
Respondent argues that although Appellant prevailed in the entitlement appeal (PSBCA No. 4148), the quantum appeal (PSBCA No. 4609) was a separate proceeding in which, under Buckhannon and Brickwood, Appellant was not a “prevailing party.” However, although Appellant’s recovery was achieved through two separate appeals and not through a single adversary action, Respondent has not suggested why the “prevailing party” determination should not be the same for both of the appeals.[2]
In Crown Laundry & Dry Cleaners, Inc., ASBCA Nos. 28889, 31900, 87-3 BCA ¶ 20,034, the appellant prevailed on entitlement before the board, which then remanded the matter to the parties for consideration of quantum. The parties failed to agree, and the matter returned to the ASBCA, docketed as a new, separate appeal. The board awarded the appellant about one-tenth of the damages it sought, and, in opposing the appellant’s subsequent EAJA fee application, the government argued that appellant could not be considered a “prevailing party” in view of such a paltry recovery. The board, which acknowledged that the appeal had involved two separate proceedings, rejected that argument:
“Here, appellant prevailed totally in the entitlement phase of the litigation. As we discuss below, this alone makes appellant a “prevailing party” in this litigation.”
Id. at 101,422. Similarly, we view the entitlement and quantum phases of Appellant’s dispute, although separate proceedings, as parts of the same adversary adjudication for purposes of determining “prevailing party” status.
Unlike the litigants in Buckhannon and Brickwood, Appellant’s dispute with Respondent was not resolved by voluntary action of the government. In this dispute over Respondent’s termination of Appellant’s right to proceed under the contract, the Board’s decision that Respondent breached the contract created a “material alteration of the legal relationship of the parties” sufficient to support an award of attorney fees. That the parties were able to settle on the amount of damages before the quantum trial does not lessen the Board’s significant and direct impact on the legal relationship of the parties in this matter.
For these reasons, Appellant is a “prevailing party” in PSBCA No. 4906.
An EAJA award will not be made if Respondent demonstrates that its overall position was substantially justified, i.e., had a reasonable basis in law and fact. 39 C.F.R. §960.5 (a); Pierce v. Underwood, 487 U.S. 552, 565, 108 S. Ct. 2541, 101 L.Ed.2d 490 (1988); Community Heating & Plumbing Co. v. Garrett, 2 F.3d 1143 (Fed. Cir. 1993); Banks Trucking, PSBCA No. 3528, 96-2 BCA ¶ 28,350; 5 U.S.C. §504 (a) (1). Respondent contends that Appellant’s original claim was so poorly documented that Respondent was substantially justified in denying all but the $71,258 allowed by the contracting officer in her final decision (Finding 9). Respondent points to Appellant’s supplementation of the claim on June 21, 2001 (Finding 15) as evidence that the initial claim was inadequately supported.
Appellant argues that the claim was adequately supported originally and that further information would have been provided during the first audit if the auditor had requested it. It contends that the supplementation of the claim was not as significant as Respondent asserts and that the reason Respondent resisted resolution of the claim was its incorrect assessment of a number of legal issues relating to the claim.
As the parties settled the quantum appeal for a lump-sum amount, not specifically identified to particular elements or sections of Appellant’s claim (Finding 19), the Board is left to review the claim itself and the supporting documentation to determine whether Respondent was substantially justified in resisting Appellant’s claim. The explanation and documentation of Appellant’s original claim left much to be desired. The submission consisted of copies of assorted invoices, canceled checks, and correspondence, many of which made no specific reference to the post office project. Appellant had no accounting system or other business record system that would have allowed Respondent to verify that the claimed costs were incurred and that they related to the post office project (Finding 8). Appellant’s original claim only supported a finding that $71,258 out of the $809,766 in claims referred to DCAA for audit review was actually incurred on this project (Findings 8, 9).[3] To the extent the audited portions of the original claim were adequately supported, Respondent granted the claim in the final decision (Finding 9). The Board accepts the auditor’s assessment that the remainder of the claims he reviewed (Finding 8) were inadequately supported. Accordingly, Respondent justifiably resisted them based on the inadequacy of the support for the amount of damages Appellant claimed. See Alta Constr. Co., PSBCA Nos. 1334, 1487, 87-3 BCA ¶ 20,165; Zinger Constr. Co., PSBCA No. 1015, 86-3 BCA ¶ 19,286.
For the remainder of the claims, two elements stand out as facially unrecoverable, and Respondent was fully justified in opposing these parts of the claim in which Appellant made excessive and unjustified demands. See The Little Susitna Co., PSBCA Nos. 2216, et al., 93-1 BCA ¶ 25,497; ROI Investments v. General Services Administration, GSBCA No. 15488-C(15037-C)-REIN, 01-1 BCA ¶ 31,352, recon. denied, 01-2 BCA ¶ 31,523. Appellant’s claimed consequential damages of $765,240 (Finding 11) are, as a matter of law, too remote and speculative to be recoverable. See Gavosto Associates, Inc., PSBCA Nos. 4058, 4131, 4144, 4333, 01-1 BCA ¶ 31,389 at 155,049, and cases cited therein; AFTT, Inc., PSBCA No. 3717, 97-2 BCA ¶ 29,057. Additionally, Appellant inflated its original claim by approximately $2 million by claiming attorney fees for prosecution of the quantum claim amounting to 40% of its claim (Finding 11), a claim unjustified under the contract and applicable law. See Kania v. United States, 227 Ct. Cl. 458, 650 F.2d 264, 269, cert. denied, 454 U.S. 895, 102 S. Ct. 393, 70 L.Ed.2d 210 (1981); The Green Shack Marketplace, PSBCA No. 4557, 01-2 BCA ¶ 31,595; Rent-A-Tainment, Inc./Mail N’ Things, PSBCA No. 2772, 90-3 BCA ¶ 23,187; Triad, Inc., ENG BCA No. 5882, 95-1 BCA ¶ 27,290.
Other parts of the claim were plainly inadequately supported. The documents in Appellant’s claim that purported to support its claim for legal fees for the appeal of PSBCA No. 4148 (Finding 12) had nothing to do with legal fees, and those offered in support of the consultant fees were unexplained and related to the efforts of Appellant’s vice president (Finding 12). Respondent was justified in resisting these unexplained and inappropriate elements of the quantum claim. Finally, the contracting officer was justified in denying Appellant’s claims for Real Estate Taxes and Tax Shelter Loss because Appellant failed to provide any support whatsoever for these claim elements (Finding 13).
However, there were elements of the claim that Respondent was not substantially justified in resisting as it did. First, the contracting officer denied out-of-hand damage claims that were based on expenses incurred by Mr. Stancil, concluding that Mr. Stancil was not a party to the contract and that, accordingly, expenses he incurred, even if on behalf of the post office project, could not be recovered by Appellant as breach damages (Finding 10). That Mr. Stancil was involved in the project and its financing was known to Respondent’s officials from the time the contract was reinstated (Finding 4). Resisting claims just because the expenses were incurred by Mr. Stancil was not substantially justified.
Additionally, Respondent persisted in considering Appellant’s claim for breach damages as if it were a termination for convenience settlement claim. The contracting officer applied principles from Respondent’s Purchasing Manual dealing with termination settlement claims, even though the contract had not included a termination for convenience provision and the Board had determined the purported termination was a breach (Finding 6). As a result, the contracting officer denied Appellant’s claims for anticipatory profits on the construction and on the lease, concluding that such profits are not recoverable in a termination for convenience settlement (Finding 10). Nevertheless, in its Motion in Limine, Respondent conceded Appellant was entitled to pursue anticipatory profits on the construction, and in its opposition to the fee application, Respondent argued only that its opposition to anticipatory profits on the lease was reasonable because Appellant’s calculation of that portion of the claim was incorrect. As pointed out in the ruling on the Motion in Limine, Appellant was not precluded from offering evidence showing that its breach damages included anticipatory profits (Findings 17, 18). Respondent was not substantially justified in its resistance to Appellant’s claim for anticipatory profits on the basis that anticipatory profits are not available as part of a termination for convenience settlement.
Finally, the contracting officer denied recovery of project legal costs in the amount of $68,808 because they were not associated with preparation of a convenience termination settlement claim (Finding 10). This was also an improper application of termination for convenience principles in a breach case, and Respondent was not substantially justified in resisting this claim element for that reason.
Appellant may recover its attorney fees and expenses in proportion to the parts of its claim for which Respondent’s position was not substantially justified. Respondent was not substantially justified in resisting approximately one-half of Appellant’s claim ($1,016,118 in expenses claimed to have been incurred by Mr. Stancil plus $2,321,894 in claimed anticipatory profits plus $68,808 in claimed project legal costs = $3,406,820 compared to the original claim amount of $7,057,510), but was substantially justified in resisting the remainder. Therefore, Appellant’s otherwise allowable EAJA attorney fees and expenses will be reduced by one-half. See ROI Investments v. General Services Administration, GSBCA No. 15488-C(15037-C)-REIN, 01-1 BCA ¶ 31,352, recon. denied, 01-2 BCA ¶ 31,523.
Documentation
In support of its EAJA claim, Appellant submitted detailed billing information describing briefly the nature of each task performed on Appellant’s behalf, identifying the person who performed the task, stating the date the task was performed and the number of hours spent. The hours were summarized in a spreadsheet indicating the total hours, by month, worked by each of the named individuals. One of the two attorneys providing services billed at $175 per hour throughout the period, and the other billed at $125 per hour. Paralegal services were billed to Appellant at $75 per hour in January 2001, and $85 per hour thereafter. The expenses claimed for mileage, parking, postage, office supplies, deposition fees, and courier services are identified by date incurred, nature of the expense and the amount. Photocopying expenses are listed as a lump-sum expense at the end of each month’s invoice.
Respondent has not challenged the number of hours claimed or Appellant’s documentation of these hours, and Appellant’s application adequately demonstrates that the hours claimed for attorney services (942.8 hours[4]) and paralegal time (100.4 hours) were expended in connection with the appeal. See Community Heating & Plumbing Co. v. Garrett, 2 F.3d 1143, 1146 (Fed. Cir. 1993); Naporano Iron and Metal Co. v. United States, 825 F.2d 403 (Fed. Cir. 1987).
Attorney Fees
Attorney fees may be recovered at the rate of $125 per hour for the hours claimed in the application.
Appellant’s application included claims for payment at the firm billing rate of $75 and $85 per hour for time spent on the appeal by its attorney’s paralegals. Paralegal fees are recoverable under EAJA, see Levernier Constr., Inc. v. United States, 947 F.2d 497, 503 (Fed. Cir. 1991); Banks Trucking, PSBCA No. 3528, 96-2 BCA ¶ 28,350; Coastal, Inc., PSBCA No. 1728, 89-2 BCA ¶ 21,876 recon. denied, 89-3 BCA ¶ 22,159, but we have allowed paralegal fees only at the actual cost of the paralegal services to the attorney, even if the rate billed to the client is higher. Banks Trucking, PSBCA No. 3528, 96-2 BCA ¶ 28,350; Coastal, Inc., PSBCA No. 1728, 89-2 BCA ¶ 21,876, recon. denied, 89-3 BCA ¶ 22,159.
Consequently, Appellant may recover the cost to the attorney of the time spent by the paralegals on its appeal, not to exceed the billing rate. Benefits paid to or on behalf of the paralegals in addition to the salary paid are costs to the attorney that may be recovered. See Banks Trucking, PSBCA No. 3528, 96-2 BCA ¶ 28,350; M. Bianchi of California, ASBCA Nos. 26362, et al., 91-1 BCA ¶ 23,445 at 117,639.
There is no evidence in the record that would allow us to determine, even on a jury verdict basis (see Banks Trucking, PSBCA No. 3528, 96-2 BCA ¶ 28,350), the cost of the paralegals to the law firm. Accordingly, we remand to the parties the calculation of the costs for the hours allowed. See Karcher Environmental, Inc., PSBCA Nos. 4085, 4093, 4282, 02-1 BCA ¶ 31,787.
Our sum of the expenses based on the records in the application differs slightly from Appellant’s, and we find expenses of $5,279.31 were charged to Appellant. The expenses are not challenged by Respondent. However, charges totaling $1,822.50 attributed to Widmann Financial Services (June 20, December 10 and 11, 2001) are not explained, and are, therefore, not recoverable. The remaining expenses for photocopying, postage, travel and parking for attorneys, deposition fees, and courier services appear to be consistent in scope and amount with legal expenses typically charged in furnishing legal services of this type. See Keno & Sons Constr. Co., ENG BCA No. 5837-F, 99-1 BCA ¶ 30,273; Banks Trucking, PSBCA No. 3528, 96-2 BCA ¶ 28,350; Coastal, Inc., PSBCA No. 1728, 89-2 BCA ¶ 21,876 at 110,059, recon. denied, 89-3 BCA ¶ 22,159 (photocopies and postage); American Federal Contractors, Inc., PSBCA No. 1359, 88-2 BCA ¶ 20,526 (duplicating, transcript, overnight delivery, transportation, parking). Accordingly, Appellant has demonstrated that in prosecuting its quantum claim, it incurred expenses in the amount shown in its invoices, less the unexplained charges for Widmann Financial Services, for a total of $3,456.81.
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, et al., 93-1 BCA ¶ 25,497; American Federal Contractors, Inc., PSBCA No. 1359, 88-2 BCA ¶ 20,526. However, Appellant has failed to itemize the attorney fees incurred for the application and has, instead, offered an estimate of the fees it will incur for such service. Accordingly, no fees are awarded for preparation of the application.
Appellant may recover pursuant to this application in the following amounts:
1. Attorney fees for the quantum appeal: 942.8 hours x $125 per hour = $117,850 reduced by 50% = $58,925.
2. Paralegal fees: 100.4 hours at rate or rates to be determined by the parties consistent with this decision, reduced by 50%.
3. Expenses: $3,456.81 reduced by 50% = $1,728.41.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman
[1] “The ‘catalyst theory’ grants prevailing party status to a plaintiff ‘if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.’” Brickwood Contractors, Inc. v. United States, 288 F.3d 1371, 1376 (Fed. Cir. 2002) quoting Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. at 601.
[2] See Commissioner, INS v. Jean, 496 U.S. 154, 161-162, 110 S. Ct. 2316, 110 L.Ed.2d 134 (1990) ("Any given civil action can have numerous phases. While the parties' postures on individual matters may be more or less justified, the EAJA--like other fee-shifting statutes--favors treating a case as an inclusive whole, rather than as atomized line-items.").
[3] Appellant argues that the auditor would have been provided with more information if he or the contracting officer had requested it, but it remained Appellant’s obligation to set forth its claim and its support with sufficient clarity to allow for a reasoned decision. See Alta Constr. Co., PSBCA Nos. 1334, 1487, 87-3 BCA ¶ 20,165; Zinger Constr. Co., PSBCA No. 1015, 86-3 BCA ¶ 19,286.
[4] The EAJA claim was for 942.83 hours, but the spreadsheet in Exhibit A to the application reflecting attorney hours for September 2001 listed as the second entry for “TPL” (the initials of one of the attorneys working on the case) .13 hours when, in fact, the correct entry of the figure from the law firm’s invoice for September 9, 2001, would have been .10 hours.