Baldi Bros. Constructors v. United States

52 Fed. Cl. 78, 32 Envtl. L. Rep. (Envtl. Law Inst.) 20638, 2002 U.S. Claims LEXIS 75, 2002 WL 500248
CourtUnited States Court of Federal Claims
DecidedMarch 29, 2002
DocketNo. 98-326C
StatusPublished
Cited by19 cases

This text of 52 Fed. Cl. 78 (Baldi Bros. Constructors 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
Baldi Bros. Constructors v. United States, 52 Fed. Cl. 78, 32 Envtl. L. Rep. (Envtl. Law Inst.) 20638, 2002 U.S. Claims LEXIS 75, 2002 WL 500248 (uscfc 2002).

Opinion

OPINION

MILLER, Judge.

Before the court is plaintiffs application for attorneys’ fees and expenses pursuant to the Equal Access to Justice Act (the [80]*80“EAJA”), 28 U.S.C. § 2412 (1994 & Supp. V 1999). Among the issues to be decided are whether and to what extent plaintiffs failure to succeed on certain damage claims affects it recovery. Argument is deemed unnecessary.

FACTS

Baldi Bros. Constructors (“plaintiff’) successfully bid on Contract No. N62470-95-C-5035, offered by the United States Department of the Navy (the “Navy”) for the construction of a training range in North Carolina. Baldi Bros. Constructors v. United States, 50 Fed.Cl. 74, 75 (2001). During the course of construction, plaintiff encountered unexpected subsurface conditions because the contract had failed to identify the project site as federally protected wetlands. Id. at 77. The contract was modified to reflect the true site condition, but plaintiff and the Navy were unable to reach an agreement as to plaintiffs additional compensation. Id. at 78. Plaintiff then brought a claim for differing site conditions under 48 C.F.R. (FAR) § 52.236-2 (1984), as incorporated into the contract. Id. at 79. At the onset of trial, on April 30, 2001, the Government stipulated on the record that it would not dispute liability. Id. at 78-79.

The trial proceeded as to the issue of damages, and the court awarded plaintiff $778,139.00 in damages due to the differing site conditions, $14,106.00 due to the delay in contract performance, and $46,406.40 due to certain equipment standby costs. Id. at 85. Athough plaintiff had sought $1,528,537.00, the court reduced the amount on the grounds that some of plaintiffs damages were due to plaintiffs own errors in bid preparation or were unrecoverable because the delays transpired on days for which plaintiff was contractually required to be available (and thus incur costs). Id. at 83-84.

Plaintiff now seeks attorneys’ fees and other expenses in the amount of $181,230.34, representing attorney and expert/consulting fees incurred in the instant litigation and costs and expenses incurred in the prosecution of its claim submitted to the Navy.

DISCUSSION

The EAJA provides that a judgment for costs “may be awarded to the prevailing party in any civil action brought by or against the United States.” 28 U.S.C. § 2412(a)(1) (1994 & Supp. V 1999). Section 2412(d)(1)(B) of the EAJA provides:

A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The party shall also allege that the position of the United States was not substantially justified.

Thus, the EAJA requires that (1) the claimant be a “prevailing party”; (2) the Government’s position was not “substantially justified”; (3) no special circumstances make the award unjust; and (4) the fee application be submitted within 30 days of final judgment and supported by an itemized statement. Comm’r v. Jean, 496 U.S. 154, 158, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990). The purpose of the EAJA is to eliminate legal expenses as a barrier to challenges of unreasonable government action. Cmty. Heating & Plumbing Co. v. Garrett, 2 F.3d 1143, 1145 (Fed.Cir.1993); Gavette v. OPM, 808 F.2d 1456, 1459-60 (Fed.Cir.1986) (en banc) (EAJA enacted to reduce disparity between liability for fees and expenses of private parties and that of Government). A1 the same, the EAJA is not a mandatory fee shifting device, Gavette, 808 F.2d at 1465, and, because the EAJA is a specific waiver of sovereign immunity, it is to be construed narrowly. Chiu v. United States, 948 F.2d 711, 714 (Fed.Cir.1991).

1. Entitlement

The parties do not dispute that plaintiff was the prevailing party in this action, nor that plaintiff is otherwise EAJA-eligible. Defendant bears the burden of proving that fees are nevertheless unwarranted because the Government’s position was “substantially [81]*81justified.” Heifer v. West, 174 F.3d 1332, 1336 (Fed.Cir.1999). The EAJA does not define the term “substantially justified.” As explained by the Supreme Court, “substantially justified” does not mean that the Government is required to be “justified to a high degree.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). Rather, the standard is analogous to the one requiring a “reasonable basis in law and fact,” which means that the Government must be “justified to a degree that could satisfy a reasonable person.” Id.; accord Chiu, 948 F.2d at 715. Whether the Government’s position lacks substantial justification is a “single finding” that “operates as a onetime threshold for fee eligibility.” Jean, 496 U.S. at 160, 110 S.Ct. 2316; see also Doty v. United States, 71 F.3d 384, 386 (Fed.Cir.1995) (“position” encompasses both prelitigation and litigation positions). Such a determination is to be decided on a case-by-case basis. Clemmons v. West, 206 F.3d 1401, 1404 (Fed.Cir.2000); Stillwell v. Brown, 46 F.3d 1111, 1113 (Fed.Cir.1995).

Plaintiff predicates its EAJA application on the fact that the Government settled all issues regarding liability for the differing site condition on the first day of trial. According to plaintiff, it “attempted to obtain a stipulation from Defendant, and Defendant made numerous suggestions that it would stipulate prior to trial, but always withdrew the offer before it could be finalized or agreed upon.” Pl.’s Br. filed Oct. 26, 2001, at 5. Plaintiff charges that, from April of 1998 through May of 2001, the Department of Justice assigned four different attorneys to defend plaintiffs case, and plaintiff represents that during this time period it “had general conversations in which the Defendant indicated that it might not be disputing entitlement, but only quantum.” Id. Then, on the morning of trial on April 30, 2001, defense counsel, in a volte face, stipulated on the record that defendant would not dispute plaintiffs entitlement. Defendant does not argue with this characterization of events.

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52 Fed. Cl. 78, 32 Envtl. L. Rep. (Envtl. Law Inst.) 20638, 2002 U.S. Claims LEXIS 75, 2002 WL 500248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baldi-bros-constructors-v-united-states-uscfc-2002.