Amaratek ( 2015 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Application Under the Equal Access )
to Justice Act of -- )
)
Amaratek ) ASBCA Nos. 59149, 59395
)
Under Contract No. W9124R-l 1-P-1054 )
APPEARANCE FOR THE APPELLANT: Mr. David P. Dumas
President
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
CPT Cali Y. Kim, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON
APPELLANT'S EQUAL ACCESS TO JUSTICE APPLICATION
On 5 December 2014, appellant, Amaratek, timely applied for expenses
pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504, after the Board
sustained its consolidated appeals, in part, in the amount of $5 8,94 7, with interest. 1
Amaratek, ASBCA Nos. 59149, 59395, 2014 WL 6634953 (Nov. 10, 2014).
Amaratek seeks $104,246.81, including $104,213.34 for the time that its president,
Mr. David P. Dumas, spent researching and preparing Amaratek's claims to the
contracting officer, its filings in the appeals, its EAJA application, and its reply to the
government's response to that application (app. memo. in support of application at 7-8
(spreadsheets); app. reply, last page). The balance consists of $23.47 in FedEx
expenses and $10 in notary expenses (id.).
Throughout the dispute that is the subject of the appeals, both in its claims to the
contracting officer and before the Board, Amaratek has represented itself, prose. Time
spent by a pro se litigant on such efforts as legal research, developing claims or legal
1
Amaratek elected to have the appeals processed pursuant to Board Rule 12.2;
consequently, the decision in the appeals was rendered for the Board by a single
Administrative Judge. Board Rule 12.2(c). Pursuant to paragraph (n) of
Addendum I to the Board's Rules, this decision is rendered by the same
Administrative Judge, the one who would have participated in a motion for
reconsideration of the underlying appeals. See Paragon Dynamics, Inc.,
ASBCA No. 42792, 92-3 BCA ~ 25,172 at 125,450 (single judge EAJA opinion
subsequent to Rule 12.2 decision).
positions, and preparing motions or other filings is not recoverable pursuant to EAJA.
See Groves v. Shinseki, 541 F. App'x 981, 984 (Fed. Cir. Sept. 16, 2013) (unpublished
decision); Naekel v. Department of Transportation, 845 F.2d 976, 981 (Fed. Cir. 1988),
Paragon Dynamics, 92-3 BCA ~ 25,172 at 125,450 (vice president's time not
recoverable); M Bianchi of California, ASBCA No. 26362 et al., 90-1BCA~22,369 at
112,403-04. The $104,213.34 that Amaratek seeks for the work of Mr. Dumas is for
such time; consequently, Amaratek may not recover any of that amount.
However, Amaratek's prose status does not preclude it from recovering the
"out-of-pocket" FedEx and notary expenses. See Union Precision & Engineering,
ASBCA No. 37549, 93-1 BCA ~ 25,337 at 126,235 (citing Naekel). 2 An agency that
conducts an adversary adjudication shall award, to a prevailing party other than the
United States, fees and other expenses incurred by that party in connection with that
proceeding, unless the adjudicative officer of the agency finds that the position of the
agency was substantially justified or that special circumstances make an award unjust.
5 U.S.C. § 504(a)(l). Whether the position of the agency was substantially justified
shall be determined on the basis of the administrative record, as a whole. Id. For
purposes of EAJA, a "party" includes any corporation the net worth of which did not
exceed $7 ,000,000 at the time the adversary adjudication was initiated, and which had
not more than 500 employees at the time the adversary adjudication was initiated.
5 U.S.C. § 504(b)(l)(B)(ii). The government does not dispute that Amaratek is a
"party," but does not expressly state whether Amaratek prevailed on appeal. We find
that the documents presented in support of the EAJA application demonstrate that
Amaratek satisfied the net worth and employee limitations required for EAJA
eligibility, and that, the Board having sustained the appeals, in part, in the amount of
$58,947, Amaratek prevailed on appeal.
The government does not contend that special circumstances would make an
award unjust, and the burden is on the government to show that its position was
substantially justified. Lucia E. Naranjo, ASBCA No. 52084, 00-2 BCA ~ 30,937 at
152, 707. The government, however, fails to carry that burden. The only showing that
the government offers is that, on appeal, Amaratek "prevailed only in part - $58,847,
plus interest vice the total quantum of $128,963 as claimed" (gov't resp. at 5).
Leaving aside that the Board sustained the appeal in the amount of $58,947 (not
$58,847), Amaratek, 2014 WL 6634953, we find that the government's showing fails.
While an appellant having prevailed does not mean that the government's position
2
In Naekel, 845 F.2d at 981, the United States Court of Appeals for the Federal
Circuit held that a pro se litigant may recover expenses. Although in Groves,
541 F. App'x at 984, the Federal Circuit called that holding into doubt in view
of Kay v. Ehrler, 499 U.S. 432 (1991), the Federal Circuit has not overruled
Naekel, which, therefore, remains binding upon the Board.
2
lacked substantial justification, see 5 U.S.C. § 504(a)(l), it is not the case that where
an appellant does not succeed upon all its claims, the government was, necessarily,
substantially justified. See Dalles Irrigation District v. United States, 91 Fed. Cl. 689,
699 (2010).
In view of the foregoing, Amaratek is entitled to recover $23 .4 7 in FedEx and
$10 in notary expenses to the extent that those expenses are reasonable and allowable
under EAJA. See Paragon Dynamics, 92-3 BCA ~ 25,172 at 125,450. The
government does not address either expense directly, and the documents supporting
Amaratek's application demonstrate that both were incurred in the process of
preparing and filing the application itself. That is, the notary notarized Mr. Dumas's
affidavit in support of the application, and Amaratek sent the application to the Board
by FedEx. Such expenses incurred preparing an EAJA application are allowable, see
Gavette v. Office of Personnel Management, 808 F.2d 1456, 1468 (Fed. Cir. 1986),
and we find both the $23.47 FedEx expense and the $10 notary expense reasonable.
Cf Paragon Dynamics, 92-3 BCA ~ 25,172 at 125,450 ($27.72 in office supplies,
printing, reproduction, and postage reasonable).
In accordance with the foregoing, Amaratek is awarded expenses in the amount
of $33.47.
Dated: 22 January 2015
Administrative Judge
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals on an application for fees and other
expenses incurred in connection with ASBCA Nos. 59149, 59395, Appeals of
Amaratek, rendered in accordance with 5 U.S.C. § 504.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
3