Scherr Construction Co. v. United States

38 Cont. Cas. Fed. 76,314, 26 Cl. Ct. 248, 1992 U.S. Claims LEXIS 240, 1992 WL 112164
CourtUnited States Court of Claims
DecidedMay 28, 1992
DocketNo. 90-554C
StatusPublished
Cited by16 cases

This text of 38 Cont. Cas. Fed. 76,314 (Scherr 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
Scherr Construction Co. v. United States, 38 Cont. Cas. Fed. 76,314, 26 Cl. Ct. 248, 1992 U.S. Claims LEXIS 240, 1992 WL 112164 (cc 1992).

Opinion

ORDER

NETTESHEIM, Judge.

This case is before the court on plaintiff’s application for attorneys’ fees under the Equal Access to Justice Act (the “EAJA”), 28 U.S.C. § 2412(b) (1988), incurred in litigation against the Government in a contract dispute. Argument is deemed unnecessary.

FACTS

The following facts are undisputed. On June 21, 1990, Scherr Construction Compa[249]*249ny (“plaintiff”) filed a complaint requesting relief from the United States Department of Agriculture—Soil Conservation Service’s (the “USDA”) partial termination and then final termination for convenience of Contract No. 50-6633-7-49. Plaintiff certified its claim at $58,684.33.

Following the death of plaintiff’s project engineer in October 1990, plaintiff submitted a settlement offer to the USDA. The USDA did not respond to the offer for six months. At the end of the six-month period, plaintiff withdrew its offer, since its litigation costs had risen substantially because the USDA had failed to respond to plaintiff’s offer. Plaintiff engaged the services of an Engineering firm, Metzger Engineering (“Metzger”), which prepared a report on damages that plaintiff sustained due to the contract termination.

The final settlement amount was $41,-000.00. On March 23, 1992, the Clerk of the Court entered judgment on the parties’ Stipulation of Dismissal with prejudice.

On March 5, 1992, plaintiff filed its application for attorneys’ fees pursuant to the EAJA. Plaintiff claims that it is eligible to receive an award under the EAJA because its “total gross receipts for all works performed in the most recent calendar year was $9,190,562.78, and Scherr’s financial net worth is less than the limits established in EAJA____” Plf’s Appl. filed Mar. 23, 1992, at 4. In support of this contention, plaintiff submitted an unaudited balance sheet.

To substantiate further its claim, plaintiff submitted invoices as proof of the expenses that it incurred. Plaintiff submitted three invoices from Metzger Engineering. The first, dated, April 15,1991, is an invoice for charges for the month of March. It reads, as follows:

SCS—project termination claim 37 hrs. @ $50.00 $1850.00

The second invoice, dated June 1,1991, lists charges for April and May. This invoice reads, as follows:

79.5 hrs. @ $45.00 $3577.50

The third invoice from Metzger Engineering lists charges for June and July, breaking out the charges separately by month:

June 36.0 hr. @ $50.00 $1800.00
July 14.5 hr. @ $50.00 $ 725.00
$2525.00

The first two invoices have additional notations on them indicating that the invoice was paid by check. All invoices were signed by Joe Metzger.

In addition to the invoices from Metzger Engineering, plaintiff submitted an invoice from its counsel, John T. Glassman. That invoice sets out charges, as follows:

Review File and Draft Summons and Complaint 14 June 1990 12 hours
Interview Robert Boone, Project Engineer for U.S.D.A. (in office) 23 May 1990 2 hours
Interview David Lloyd, Project Engineer for Scherr (Scherr’s office) 23 May 1990 .5 hour
Prepare Damage Calculation 4 June 1990 2 hours
Draft Affidavits for Robert Boone and David Lloyd 27 August 1990 9 hours
Review Production of Documents 7 & 8 March 1991 10 hours
TOTAL 35.5 hours X $75.00/hour $2,662.50

[250]*250The claim under the EAJA requests reimbursement for attorney fees ($2,662.50); engineering report ($7,952.50); and filing fee ($120.00). Defendant contests the award.

DISCUSSION

The purpose of the EAJA is to lift the “bar of sovereign immunity for award of fees in suits brought by litigants qualifying under the statute.” Levemier Constr., Inc. v. United States, 947 F.2d 497, 502 (Fed.Cir.1991). As a waiver of sovereign immunity, the Act must be strictly construed, allowing for the award of fees “only to the extent explicitly and unequivocally provided.” Id. (quoting Fidelity Constr. Co. v. United States, 700 F.2d 1379, 1386 (Fed.Cir.), cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 103 (1983)).

The EAJA provides that contemporaneous records of an attorney’s time and billing rates, in addition to a breakdown of any expenses incurred by the attorney, are a requisite component of any EAJA fee application. 28 U.S.C. § 2412(d)(1)(B); Naporano Iron and Metal Co. v. United States, 825 F.2d 403, 404 (Fed.Cir.1987) (“In the absence of such an itemized statement, the court is unable to determine whether the hours, fees and expenses, are reasonable for an individual item.”) (Citation omitted.) The requirement that expenses incurred be itemized specifically applies as well to claims for expert consultant fees. Levernier Constr., Inc. v. United States, 21 Cl.Ct. 683, 692-93 (1990), vacated on reconsideration, 22 Cl.Ct. 247, reversed on other grounds, 947 F.2d 497 (Fed.Cir.1991).

The requirements of the EAJA are addressed in the Rules of the United States Claims Court (“RUSCC”), specifically Rule 81. Rule 81(e)(1) provides that in any application for attorney fees and expenses pursuant to EAJA, “[e]ach item shall be separately stated and supported.” Rule 81(e)(1) further provides that the application and all supporting documentation shall be under oath.

Defendant argues that the fee application should be denied for three reasons. First, defendant notes that the application and supporting documentation are not under oath, as required by RUSCC 81(e)(1). Second, defendant maintains that the invoices presented by plaintiff in support of the work performed by Metzger, acting as plaintiff’s expert consultant, are deficient in that they fail to provide any itemization for particular activities performed by Metzger on plaintiff’s behalf.1 Third, defendant contends that the balance sheet provided by plaintiff provides no information to establish plaintiff’s net worth for the purpose of determining whether plaintiff qualifies for an award under EAJA.

Defendant’s positions are valid. First, the supporting documentation was not submitted under oath, a requirement of RUSCC 81(e)(1). Second, the Metzger invoices detailing merely the periods during which work was performed and the hourly and total charges are insufficient to establish the basis for an EAJA award. These invoices are entirely lacking in specificity.

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Bluebook (online)
38 Cont. Cas. Fed. 76,314, 26 Cl. Ct. 248, 1992 U.S. Claims LEXIS 240, 1992 WL 112164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scherr-construction-co-v-united-states-cc-1992.