Dellew Corporation ( 2016 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Application Under the Equal Access )
to Justice Act of -- )
)
Dellew Corporation ) ASBCA No. 58538)
Under Contract No. FA52 l 5-08-C-0008 )
APPEARANCES FOR THE APPELLANT: Jonathan A. Demella, Esq.
Kate H. Kennedy, Esq.
Davis Wright Tremaine LLP
Seattle, WA
James F. Nagle, Esq.
Oles Morrison Rinker & Baker LLP
Seattle, WA
APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq.
Air Force Deputy Chief Trial Attorney
Heather M. Mandelkehr, Esq.
Michelle D. Coleman, Esq.
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE PAGE ON APPELLANT'S
APPLICATION UNDER THE EQUAL ACCESS TO JUSTICE ACT
By Summary Proceeding with Binding Decision (see Addendum II, ~ 7(b) to
Board's Rules, 48 C.F.R., ch. 2, app'x A, pt. 2) dated 4 April 2016, the Board sustained
appellant's appeal in part. Dellew Corporation, ASBCA No. 58538, 2016 WL 1594955(non-precedential). In its 4 May 2016 application under the Equal Access to Justice Act
(EAJA), Dellew Corporation (Dellew or appellant) sought to recover attorneys' fees in
the amount of$64,733.33 (see appellant's application and briefin support (app. br.) and
appellant's reply brief (app. reply br.) at 1, 9). The government opposed Dellew's EAJA
request on procedural and substantive bases (see government's opposition and brief in
support (gov't br.) and the government's reply brief (gov't reply br.)). In response to the
government's procedural arguments (gov't br. at 2-3) that appellant's EAJA application
erroneously cited 28 U.S.C. § 2412(d) instead of 5 U.S.C. § 504(a)(2), the contractor's
revised application now relies upon the correct statute and has decreased the amount
sought to $42,631.25 in accordance with the $125 per hour limit (app. reply br. at 1 n. l ).
DECISION
As the parties entered into an Alternative Disputes Resolution (ADR) agreement,
requesting that the Board adjudicate this appeal using a summary binding decision issued
by a single judge, appellant's EAJA application is considered under the same rubric, as
"[ o ]nly one threshold determination is to be made for the entire proceeding." Military
Aircraft Parts, ASBCA No. 59978, 15-1BCAii36,175 at 176,513 (citing Comm'r, INS
v. Jean, 496 U.S. 154, 159 (1990)); compare Board Rules 12.2(c) and 12.3(c); also
Amaratek, ASBCA Nos. 59149, 59395, 15-1 BCA ii 35,866 at 175,349n.l. 1 It is the
Board's determination that government's position was not substantially justified. See,
e.g., SWR, Inc., ASBCA No. 56708, 15-1 BCA ii 35,832 at 175,213-24, 175,231-33
(concerning the proper construction of FAR 52.212-4(1), the standard termination for
convenience clause set forth in commercial items contracts, especially the discussion of
general and administrative expenses as a burden and profit). The Board exercises its
discretion in allocating a portion of the contractor's EAJA request where, as here, the
contractor does not prevail in the entirety (see, e.g., Gerald R. Rouillard III dba
International Gear Technologies, ASBCA No. 58692, 14-1 BCA ii 35,542 at 174,168),
and reminds the government that the denial of a motion for summary judgment (as was
the case in this appeal (Dellew Corporation, ASBCA No. 58538, 15-1BCAii35,975)) is
not a determination on the merits (see, e.g., Kellogg Brown & Root Services, Inc.,
ASBCA Nos. 58518, 59005, 16-1BCAii36,408 at 177,523).
Dellew: (1) qualifies as an eligible party for the recovery ofEAJA fees; (2) was
a prevailing party and the government's positon was not substantially justified, with the
exception of the latter's position regarding DFARS 252.232-7007(c) in the parties'
cross-motions for summary judgment; for this, 25% of the amount sought is deducted;
(3) is subject to a further decrease of 10% of the requested attorneys' fees as a result of
the reductions to the categories and certain amounts which Dellew sought in their
summary proceeding binding position; and (4) cannot recover $1,825 in attorneys' fees
sought, as these were not shown to be for work relevant to this appeal. Dellew is
awarded a total of $25,886 in attorneys' fees under the Equal Access to Justice Act.
Dated: 20 October 2016
Administrative Judge
Armed Services Board
of Contract Appeals
1
An application for EAJA fees should not result in another litigation. Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983); Kostmayer Construction, LLC, ASBCA
No. 55053, 09-2 BCA ii 34,302 at 169,443.
2
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 No. 58538, Appeal ofDellew Corporation, rendered
in accordance with 5 U.S.C. § 504.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
3