ACE Constructors, Inc. v. United States

81 Fed. Cl. 161, 2008 U.S. Claims LEXIS 83, 2008 WL 763067
CourtUnited States Court of Federal Claims
DecidedMarch 20, 2008
DocketNo. 04-299C
StatusPublished
Cited by17 cases

This text of 81 Fed. Cl. 161 (ACE Constructors, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
ACE Constructors, Inc. v. United States, 81 Fed. Cl. 161, 2008 U.S. Claims LEXIS 83, 2008 WL 763067 (uscfc 2008).

Opinion

OPINION AND ORDER

LETTOW, Judge.

A post-trial judgment was issued in plaintiffs favor in this contract case, and that judgment has been affirmed on appeal. See ACE Constructors, Inc. v. United States, 70 Fed.Cl. 253 (2006), aff'd, 499 F.3d 1357 (Fed. Cir.2007). The only matters that remain unresolved are plaintiffs motion for an award of attorneys’ fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), and plaintiffs Bill of Costs. ACE Constructors, Inc. (“ACE”) initially claimed that it was entitled to an award of $259,346.66 for attorneys’ fees and expenses and $20,978.73 in taxable costs under EAJA, but it subsequently reduced the amount sought to $257,103.60 in attorneys’ fees and $19,616.05 in costs. The government resists such an award, maintaining that its position in the underlying litigation was substantially justified and also questioning elements of ACE’s costs.

BACKGROUND

ACE contracted with the U.S. Army Corps of Engineers (“the Corps”) to construct the Ammo Hot-Load Facility at Biggs Army Airfield, Fort Bliss, El Paso, Texas. ACE Constructors, 70 Fed.Cl. at 257. The Facility consists of a roadway, a sizable pallet storage pad, a large loading apron, and a taxiway that is connected with the main runway at the Airfield. Id. It is used to transfer missiles and other munitions to cargo aircraft for transport. Id. ACE completed the Facility to the Corps’ satisfaction and it is being used successfully, but ACE sought equitable adjustments from the Contracting Officer for extra work caused by unexpected site conditions, defective specifications, and constructive changes to the contract. The Contracting Officer largely denied ACE’s claims, and ACE then filed its complaint in this court on March 5,2004, seeking recompense.

On March 31, 2006, after a five-day trial, this court held the government liable for differing site conditions, defective specifications, and a constructive change to the contract, and also found that the government wrongly assessed liquidated damages against ACE. ACE Constructors, 70 Fed.Cl. at 257. The court additionally “conclude[d] that ACE may be entitled to costs and attorney[s’] fees under the [EAJA], but reserve[d] a final determination in that regard pending completion of further proceedings under ... Rules 54(d) and 58(c) [of the Rules of the Court of Federal Claims (‘RCFC’)].” Id. The court also awarded ACE the costs of suit. Id. at 295.

ACE filed a motion for attorneys’ fees and costs under EAJA and its Bill of Costs on April 28, 2006. Proceedings on the motion and the Bill were deferred pending resolution of the government’s appeal from the judgment. Following completion of the appellate process, ACE’s motion and Bill of Costs were briefed by the parties, a hearing was held on February 13, 2008, and supplemental submissions were received from the parties. The disputed matters are now ready for disposition.

[164]*164ANALYSIS

A. Fees and Expenses under the Equal Access to Justice Act

1. EAJA requirements.

EAJA provides a mechanism by which a qualifying party may receive an award of reasonable attorneys’ fees. 28 U.S.C. § 2412(d)(1)(A), (B). To be eligible for an such an award, five criteria must be satisfied: (1) the applicant must have been a “prevailing party” in a suit against the United States; (2) the government’s position must not have been “substantially justified;” (3) there cannot be any “special circumstances [that] make an award unjust;” (4) any fee application must be submitted to the court within thirty days of final judgment in the action and also be supported by an itemized statement, and (5) a qualifying party must, if a corporation, have not had more than $7,000,000 in net worth and 500 employees at the time the adversarial adjudication was initiated. Id.; see Commissioner, INS v. Jean, 496 U.S. 154, 158, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990); Geo-Seis Helicopters, Inc. v. United States, 79 Fed.Cl. 74, 76-79 (2007); Knowledge Connections, Inc. v. United States, 76 Fed.Cl. 612, 614-15 (2007); Loomis v. United States, 74 Fed.Cl. 350, 353 (2006); Lion Raisins, Inc. v. United States, 57 Fed.Cl. 505, 508 (2003). ACE bears the burden of establishing that it meets these requirements, except that the government has the burden to show that its actions were substantially justified. See White v. Nicholson, 412 F.3d 1314, 1315 (Fed.Cir.2005); Hillensbeck v. United States, 74 Fed.Cl. 477, 479-80 (2006); Al Ghanim Combined Group Co. v. United States, 67 Fed.Cl. 494, 498 (2005).

The government does not contest that ACE is a “prevailing party” or the existence of any “special circumstances” in the case, but it questions ACE’s proofs regarding ACE’s status as a qualifying party and argues that the government’s position was “substantially justified.”

a. Qualifying “party.

ACE filed its Bill of Costs and its motion for attorneys’ fees within the required thirty days of the final judgment entered March 31, 2006. In its application, ACE stated that it was a “party” eligible for relief under EAJA because “[o]n the date this action was filed, ACE’s net worth was less than $7,000,000, and it employed fewer than 500 workers.” ACE’s Motion and Application for Attorneys’ Fees and Related Nontaxable Expenses (“Pl.’s Mot.”) at 2. As support for this statement, ACE cited the affidavit of John Fulk-erson, ACE’s President, which made that same general statement without providing more details about the company’s net worth or number of employees. See Pl.’s Mot., appended Affidavit of John Fulkerson (“Fulkerson Aff.”) ¶ 2. Based on this record, the government contends that ACE has “not established] that it meets EAJA’s employee and net worth limitations ... [because it] ... provides no supporting documentary evidence” about those two matters. Def.’s Resp. to Pl.’s EAJA Application (“Def.’s Resp.”) at 1-3.

Although ACE’s original application made only a minimal demonstration of its eligibility for relief, binding precedent establishes that “the content of the EAJA application should be accorded some flexibility.” Bazalo v. West, 150 F.3d 1380, 1383-84 (Fed.Cir.1998) (“Because he met the jurisdictional requirements of the EAJA statute, [plaintiff] could supplement his filing after the thirty-day time limitation to set forth a more explicit statement about [his qualification as a ‘prevailing part/].”); see also Scarborough v. Principi, 541 U.S. 401, 416-23, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004) (holding that the “relation back” principle permits an EAJA applicant to supplement or amend a timely but incomplete application).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hitkansut LLC v. United States
Federal Claims, 2019
Wollman v. United States
Federal Claims, 2015
Whr Group, Inc. v. United States
121 Fed. Cl. 673 (Federal Claims, 2015)
Bcpeabody Construction Services, Inc. v. United States
117 Fed. Cl. 408 (Federal Claims, 2014)
Miles Construction, LLC v. United States
113 Fed. Cl. 174 (Federal Claims, 2013)
DGR Associates, Inc. v. United States
97 Fed. Cl. 214 (Federal Claims, 2011)
United Partition Systems, Inc. v. United States
95 Fed. Cl. 42 (Federal Claims, 2010)
Infinite Information Solutions, LLC v. United States
94 Fed. Cl. 740 (Federal Claims, 2010)
Martinez v. United States
94 Fed. Cl. 176 (Federal Claims, 2010)
Dalles Irrigation District v. United States
91 Fed. Cl. 689 (Federal Claims, 2010)
First Federal Savings & Loan Ass'n v. United States
88 Fed. Cl. 572 (Federal Claims, 2009)
JGB Enterprises, Inc. v. United States
83 Fed. Cl. 20 (Federal Claims, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
81 Fed. Cl. 161, 2008 U.S. Claims LEXIS 83, 2008 WL 763067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ace-constructors-inc-v-united-states-uscfc-2008.