Prowest Diversified, Inc. v. United States

42 Cont. Cas. Fed. 77,204, 39 Fed. Cl. 276, 1997 U.S. Claims LEXIS 265, 1997 WL 722813
CourtUnited States Court of Federal Claims
DecidedNovember 19, 1997
DocketNo. 94-516 C
StatusPublished

This text of 42 Cont. Cas. Fed. 77,204 (Prowest Diversified, 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
Prowest Diversified, Inc. v. United States, 42 Cont. Cas. Fed. 77,204, 39 Fed. Cl. 276, 1997 U.S. Claims LEXIS 265, 1997 WL 722813 (uscfc 1997).

Opinion

ORDER

MOODY R. TIDWELL, III, Judge.

Following this court’s resolution of liability and damages in favor of plaintiff, defendant filed a Motion for Costs pursuant to Rule 68 of the United States Court of Federal Claims (RCFC 68). Plaintiff opposed the motion, and on February 18, 1997, filed an application for attorney fees and other expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (1994). For the reasons discussed herein, the court denies defendant’s Motion for Costs and partially grants plaintiffs EAJA application for fees in the amount of $50,205.16.

FACTS

The above-captioned ease arose from contract number 50-9JHA-3-1F153, entered into by plaintiff and the Forest Service of the United States Department of Agriculture (USDA) in September 1993. Under the contract, plaintiff was required to perform construction work on the Eagle Lake Ranger Station project in Redding, California.

Plaintiff submitted a certified claim to the contracting officer on May 16, 1994, on the ground that the default termination was improper and should be converted to a termination for convenience. The contracting officer failed to respond to plaintiffs claim within sixty days. On August 9, 1994, plaintiff filed a claim in this court seeking damages in the amount of $258,053. Plaintiff argued the termination was improper because: (1) plaintiff was not required to perform in the absence of a necessary change order; and (2) defendant did not consider any intervening factors that may have justified any delay in construction. Defendant asserted that the termination for default was justified as a result of plaintiffs alleged anticipatory repudiation of the contract. Defendant maintained that although the parties disagreed over the interpretation of the contract, plaintiff was still required to perform.

The court bifurcated trial into liability and damages phases. At the trial on liability, held on April 1-3, 1996, the court ruled in favor of plaintiff, holding that plaintiff was not in default and that defendant did not reasonably anticipate a failure by plaintiff to perform. The court also found that a change order was not required. Under the contract terms, therefore, the termination for default was converted to a termination for convenience.

On October 23, 1996, between the liability and damages phases of trial, defendant made an Offer of Judgment to plaintiff, pursuant to RCFC 68, in the amount of $58,000, with each party to bear its own costs.1 Trial on damages was held November 4-6, 1996. On November 12,1996, the court ordered a damages payment to plaintiff in the amount of $249,980. As defendant had already paid plaintiff $203,504 in progress payments, the court found that plaintiff was entitled to $46,-476 plus costs and interest. On December 20,1996, defendant filed its Motion for Costs. Defendant claims it is entitled to its post-offer costs because the final amount of plaintiffs judgment (allegedly $46,476) was less than its offer of $58,000. On February 4, 1997, plaintiff filed an opposition to the Motion for Costs and, on February 18, 1997, an EAJA application for attorney fees and other expenses.

DISCUSSION

There are two issues before the court. First, whether the court, in comparing plaintiffs final judgment to the RCFC 68 Offer of Judgment, should consider plaintiffs EAJA compensation. Second, whether, and to what extent, plaintiff is entitled to fees pursuant to its EAJA application.

[281]*2811. Defendant’s Motion for Costs

In cases where a defendant has been found liable by order or judgment, but the amount of damages has not yet been determined, RCFC 68 allows the defendant to make an offer of judgment not less than ten days before the damages phase begins. R.U.S.Ct.Fed.Cls. 68. (RCFC 68). If this offer is rejected and “the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred” by the offeror after such offer was made. Id. The rule thereby provides an incentive for plaintiffs to settle a case when presented with an attractive offer, especially under circumstances “in which there is a strong probability that the plaintiff will obtain a judgment but the amount of recovery is uncertain.” Delta Air Lines, Inc. v. August, 450 U.S. 346,101 S.Ct. 1146, 67 L.Ed.2d 287 (1981).

Plaintiff denies that defendant’s Offer of Judgment exceeds the judgment finally obtained, arguing that, when calculating a party’s final judgment, the court should include any pre-offer costs to which the party is entitled pursuant to the EAJA.2 Defendant responds that inclusion of pre-offer EAJA fees and expenses would be contrary to RCFC 68’s underlying policy to encourage early settlement and discourage protracted litigation. Defendant also claims that plaintiff has failed to demonstrate that its attorney fees qualify as “costs” within the meaning of Rule 68. For the following reasons, this court concludes that pre-offer fees, properly awardable to plaintiff pursuant to its EAJA application, will be included in determining whether the judgment finally obtained exceeds defendant’s Offer of Judgment.

First, the court finds that the inclusion of pre-offer costs does not run counter to the purpose of Rule 68. In Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985), the Supreme Court, while clearly rejecting the inclusion of post-offer costs in the Rule 68 comparison, indicated that pre-offer costs are properly added. The Court stated that:

[A]t the time an offer is made, the plaintiff knows the amount in damages caused by the challenged conduct. The plaintiff also knows, or can ascertain, the costs then accrued. A reasonable determination whether to accept the offer can be made by simply adding these two figures and comparing the sum to the amount of-fered____ [Pjostoffer costs merely offset part of the expense of continuing the litigation to trial, and should not be included in the calculus.

Id. at 7,105 S.Ct. at 3015; Accord Grosvenor v. Brienen, 801 F.2d 944, 948 (7th Cir.1986) (“[T]he amount of fees allowed the plaintiff for pre-offer legal services is relevant to the determination whether Rule 68 applies in a particular ease.”).

Second, as defendant correctly points out, the purpose of RCFC 68 is to cause “both parties to a suit to evaluate the risks and costs of litigation, and to balance them against the likelihood of success upon the trial on the merits.” Marek, 473 U.S. at 5, 105 S.Ct. at 3014. It appears that plaintiff evaluated its costs and potential gains before rejecting defendant’s offer. Defendant made an offer after plaintiff had prevailed on the entitlement phase of the litigation. That offer was for $58,000 with each party to bear them own costs. For plaintiff not to consider recoverable costs in evaluating the $58,000 offer, as defendant seems to advocate, plaintiff would have to ignore the likelihood of obtaining a favorable award pursuant to its success in the liability phase of trial and of recovering at least some of its costs pursuant to the EAJA See Weaver-Bailey Contractors, Inc. v.

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42 Cont. Cas. Fed. 77,204, 39 Fed. Cl. 276, 1997 U.S. Claims LEXIS 265, 1997 WL 722813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prowest-diversified-inc-v-united-states-uscfc-1997.