Cox Construction Co. v. United States

35 Cont. Cas. Fed. 75,660, 17 Cl. Ct. 29, 1989 U.S. Claims LEXIS 81, 1989 WL 52196
CourtUnited States Court of Claims
DecidedMay 16, 1989
DocketNos. 658-85-C, 322-86-C
StatusPublished
Cited by22 cases

This text of 35 Cont. Cas. Fed. 75,660 (Cox Construction Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cox Construction Co. v. United States, 35 Cont. Cas. Fed. 75,660, 17 Cl. Ct. 29, 1989 U.S. Claims LEXIS 81, 1989 WL 52196 (cc 1989).

Opinion

OPINION AND ORDER

TURNER, Judge.

The plaintiff joint venture (Cox), having prevailed on the merits, has applied under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) (1986), for the attorneys’ fees and expert witness expenses incurred in litigating this contract action. Plaintiff obtained judgments totalling $1,783,525 on April 27, 1988. Cox seeks an award of $251,681.35 ($155,612.44 for attorneys’ fees and $96,068.91 for expert witness expenses). Plaintiff’s application is granted in part and denied in part. The amount of plaintiff’s award shall be determined according to principles stated below.

I

The consolidated suits for which plaintiff now seeks EAJA monies arose from its contract with defendant for the construction of an engineering laboratory at the Naval Weapons Center in China Lake, California. The dispute concerned the adequacy of contract plans and specifications supplied by defendant with respect to (1) structural steel support for heating, ventilating and air conditioning (HVAC) equipment and (2) electrical circuit diagramming for environmental control systems. Trial was held in San Diego from April 12 to April 23, 1988. At the conclusion of trial, the court ruled in favor of plaintiff on both issues. Soon thereafter, the parties filed a joint stipulation on quantum, and judgment was entered accordingly. There was no appeal.

II

Cox asserts, as it must to recover under EAJA, that it is a “prevailing party” meeting the net worth eligibility requirements set forth in 28 U.S.C. § 2412(d)(2)(B) and that the government’s position was not “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). Cox seeks an award of attorney fees computed at rates higher than EAJA’s $75-per-hour cap based on (1) cost of living increases experienced in southern California and (2) the alleged presence in this case of a “special factor” within the contemplation of 28 U.S.C. § 2412(d)(2)(A)(ii).

The government concedes that Cox is a “prevailing party” and no longer questions Cox’s satisfaction of EAJA’s net worth requirements.1 Nevertheless, defendant contests Cox’s entitlement to EAJA monies since, it asserts, the government’s position was “substantially justified.” For purposes of substantial justification analysis, defendant urges the court to divide its liti[32]*32gating position into four parts. Further, should the court find Cox entitled to an award, defendant disputes the hourly rates that Cox seeks, asserting (1) that Cox is not entitled to a cost of living adjustment (COLA) to its fees, (2) that, in any event, Cox has not properly calculated the COLA and (3) that no “special factor” which might justify an hourly fee higher than EAJA’s $75 rate is present in this case. Finally, the government contends that even if Cox were otherwise entitled to an EAJA award, its application must be dismissed based on defects in its itemization of attorney hours.

Ill

The EAJA provides:

[A] court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... brought by or against the United States ... unless the court finds that the position of the United States was substantially justified or that special circumstances would make an award unjust.

28 U.S.C. § 2412(d)(1)(A). The parties’ dispute consists of entitlement as well as quantum issues. The quantum questions are addressed in Part IV below. With respect to entitlement, there are three areas of contention: (1) Whether defendant’s positions were “substantially justified,” (2) whether and to what extent the EAJA permits recovery of fees for pre-litigation efforts, and (3) whether plaintiff’s application must be denied on grounds of inadequate fee itemization.

A

The Supreme Court has recently construed the EAJA’s phrase “substantially justified” to mean

‘justified in substance or in the main,’— that is, justified to a degree that could satisfy a reasonable person [, which] is no different from the ‘reasonable basis both in law and fact’ formulation [heretofore] adopted by [many of the Circuits].

Pierce v. Underwood, — U.S. -, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988). The burden of demonstrating substantial justification rests with the government. Gavette v. Office of Personnel Management, 808 F.2d 1456, 1465-66 (Fed.Cir.1986), quoting H.R.REP. 1418, 96th Cong. 2d Sess. 18, reprinted in 1980 U.S.CODE CONG. & ADMIN.NEWS 4953, 4984, 4997.

Whether the government’s position should be divided into separate parts for purposes of substantial justification analysis “is essentially a matter of judgment for the court, as this decision is closely tied to the unique facts of each case.” Devine v. Sutermeister, 733 F.2d 892, 896 (Fed.Cir.1984); accord Keely v. Merit Sys. Protection Bd., 793 F.2d 1273, 1276 (Fed.Cir.1986); McCarthy v. United States, 1 Cl.Ct. 446, 459 (1983). In exercising this discretion, a court must ask whether the proposed division of defendant’s position would yield portions that are analytically “ ‘sufficiently significant and discrete to be treated as :.. separate unit[s]’ for purposes of [a fee] award.” Devine v. Sutermeister, 733 F.2d at 896, quoting Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974).

Defendant urges that its litigating position is divisible into four parts, each of which must be separately assessed. The court’s familiarity with this litigation, however, and an examination of the record in light of the principles just stated, have persuaded that the issues simply do not lend themselves to such quadruple dissection. Instead, defendant’s position shall for evaluative purposes be divided into but two parts.

Defendant has persuaded that its positions with respect to the HVAC steel and control wiring issues can be evaluated separately. As defendant correctly observes, these issues “involved separate subcontractors, separate experts, ... were submitted by [the] plaintiff as separate claims, and ... were submitted to the Court in separate complaints filed seven months apart” (Def.Opp. at 11). Accordingly, the attorney fees and expert witness expenses related to each of these two issues should admit of easy allocation. Phrased another way, the HVAC steel and [33]*33control wiring claims are “sufficiently ... discrete to be treated as ... separate unit[s]” for EAJA award purposes. Devine v. Sutermeister, 733 F.2d at 896; see Hensley v. Eckerhart, 461 U.S. 424, 434-35, 103 S.Ct. 1933, 1939, 40, 76 L.Ed.2d 40 (1983).

Defendant seeks further subdivision of each issue into its liability and damages components. Unlike the situation presented in Ellis v. United States,

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35 Cont. Cas. Fed. 75,660, 17 Cl. Ct. 29, 1989 U.S. Claims LEXIS 81, 1989 WL 52196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-construction-co-v-united-states-cc-1989.