In the United States Court of Federal Claims
No. 13-378C
(Filed: July 23, 2014)
********************************** )
) Application by a prevailing plaintiff
BCPEABODY CONSTRUCTION ) for an award of attorneys’ fees and
SERVICES, INC., ) expenses pursuant to the Equal Access
) to Justice Act, 28 U.S.C. § 2412; no
Plaintiff, ) substantial justification for the
) government’s position; hourly rates;
v. ) expenses; bond premiums as expenses
)
UNITED STATES, )
)
Defendant, )
)
and )
)
EDENS CONSTRUCTION CO., INC., )
)
Defendant-Intervenor. )
)
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James E. Krause, Jacksonville, Florida, for plaintiff.
Elizabeth Anne Speck, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With her on the briefs
were Stuart F. Delery, Assistant Attorney General, Civil Division, Robert E. Kirshman, Jr.,
Director, and Kenneth M. Dintzer, Acting Deputy Director, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington, D.C. Of counsel was
Carolyn J. Fox, Assistant District Counsel, United States Army Corps of Engineers,
Jacksonville, Florida.
OPINION AND ORDER
LETTOW, Judge.
A judgment on the administrative record was issued in plaintiff’s favor in this post-award
bid protest contesting a construction contract awarded by the Department of the Army, United
States Army Corps of Engineers, Jacksonville District (“the Corps” or “the government”) for
work in Okeechobee County, Florida. Now before the court is an application by plaintiff,
BCPeabody Construction Services, Inc. (“BCPeabody”), for an award of attorneys’ fees and
expenses pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, and a Bill of
Costs submitted pursuant to Rule 54(d) of the Rules of the Court of Federal Claims (“RCFC”).
BACKGROUND
The Corps issued a solicitation seeking proposals to construct a cutoff wall, repave a dike
crown, and perform ancillary work in Okeechobee County, Florida. BCPeabody Constr. Servs.,
Inc. v. United States, 112 Fed. Cl. 502, 505 (2013). The solicitation was issued pursuant to 48
C.F.R. (“FAR”) § 15.101-2, invoking a lowest-price technically acceptable source selection
process. Id. The solicitation also stated that the “government intend[ed] to evaluate proposals
and award a contract without discussions with offerors (except clarifications as described in FAR
§ 15.306(a)).” Id. To be considered technically acceptable, offerors were required to submit
project information sheets “to demonstrate that the offeror and its subcontractors had experience
performing the type of work requested in the solicitation,” i.e., cutoff wall experience and
earthen embankment experience. Id. Regarding the cutoff wall experience, one project
information sheet had to specifically demonstrate prior experience “penetrating, excavating, and
backfilling through an obstruction that could not be removed by a typical backhoe or excavator
during cutoff wall construction.” Id. In its proposal, BCPeabody identified Bauer Foundation
Corporation (“Bauer”) as its major subcontractor for the cutoff wall work and submitted two
project information sheets to demonstrate Bauer’s cutoff wall experience. Id. BCPeabody,
however, mistakenly submitted two copies of the same project information sheet, and the
submitted project information sheet failed to make the specific showing related to prior
experience “penetrating, excavating, and backfilling through an obstruction that could not be
removed by a typical backhoe or excavator during cutoff wall construction.” Id. Accordingly,
BCPeabody’s proposal was found to be technically unacceptable, and it was excluded from the
competition. Id. at 505-06. BCPeabody’s proposal was the lowest-priced proposal and it was
technically acceptable in all other respects. Id. at 506. Notably, the awardee, Edens
Construction Co., Inc. (“Edens”), also proposed to use Bauer as a major subcontractor and
submitted the requisite details regarding Bauer’s past experience with cutoff wall construction.
Id. As a result, the contracting officer was well aware that Bauer possessed the necessary prior
experience to successfully perform the work. Id. But for the duplication of one project
information sheet and the omission of a second project information sheet, BCPeabody would
have received the contract. Id.
After learning that another offeror received the contract, BCPeabody requested a
debriefing from the contracting officer. BCPeabody, 112 Fed. Cl. at 506. BCPeabody first
learned of its copying error at this debriefing. Id. It submitted an agency-level protest which
was denied and then filed a protest with the Government Accountability Office (“GAO”). Id. at
507. The GAO agreed with BCPeabody that the contracting officer had abused her discretion in
failing to clarify the clerical mistake, given her knowledge that Bauer was well-qualified to
perform the subcontracted work. Id. The GAO nonetheless denied relief, finding that
BCPeabody’s protest was deficient because BCPeabody had proffered to GAO a project
information sheet from Bauer Foundations Canada, a separate legal entity from Bauer, but it only
had a letter of commitment from Bauer to perform the work. Id.
2
BCPeabody thereafter filed suit in this court on June 6, 2013, seeking a preliminary injunction to
bar the Corps from proceeding with the contract awarded to Edens. BCPeabody, 112 Fed. Cl. at
507. The court granted the preliminary injunction, id., and ultimately granted BCPeabody’s
Motion for Judgment on the Administrative Record, setting aside the Corps’ contract award, id.
at 514. The Corps was directed to restore BCPeabody to the competition and reevaluate the
proposals that were submitted. Id.
The court’s decision rested upon a finding that the copying mistake was a “minor or
clerical error” within the terms of FAR § 15.306(a), which meant that the contracting officer
could have allowed BCPeabody to clarify its proposal without having to engage in discussions.
BCPeabody, 112 Fed. Cl. at 512-13. In making this determination, the court noted that the
missing project information sheet did not “bear on price or involve information that the
contracting officer did not already know. Inclusion of a second project information sheet would
not have materially altered the terms of BCPeabody’s offer. . . . [T]he contracting officer was
well aware that Bauer was a qualified subcontractor.” Id. at 511. The court further held that,
while the contracting officer had discretion under FAR § 15.306(a) to clarify the mistake, it was
unreasonable and an abuse of discretion for her to fail to do so in the circumstances. Id. at 512
(“Once the contracting officer became aware of the suitability of Bauer’s past experience with
cutoff wall construction, she could not reasonably rate Bauer differently for BCPeabody as
contrasted to Edens[, the awardee].”).
BCPeabody now seeks an award of attorneys’ fees and expenses in the amount of
$47,716.06, pursuant to the EAJA, see Pl.’s Mot. & Application for Award of Att’ys’ Fees and
Related Nontaxable Expenses (“Pl.’s Mot. for Fees”) at 4, ECF No. 71. It has also submitted a
Bill of Costs totaling $19,176.85, pursuant to RCFC 54(d). Pl.’s Bill of Costs and Mem. in
Support (“Pl.’s Bill of Costs”) at 1, ECF No. 72.
ANALYSIS
I. Attorneys’ Fees and Other Expenses
Congress enacted EAJA “‘to eliminate the barriers that prohibit small businesses and
individuals from securing vindication of their rights in civil actions and administrative
proceedings brought by or against the Federal Government.’” Scarborough v. Principi, 541 U.S.
401, 406 (2004) (quoting H.R. Rep. No. 96–1005, at 9 (1980)). EAJA provides a means by
which a qualifying party might receive reasonable attorneys’ fees and related expenses and costs
for prevailing in litigation involving the United States. Id. at 406-07; see also Commissioner,
Immigration & Naturalization Serv. v. Jean, 496 U.S. 154, 155 n.1 (1990).
To obtain an award of attorneys’ fees and related expenses under EAJA five criteria must
be satisfied:
(1) The applicant must be a “prevailing party” in a suit against the United States;
(2) The government’s position must not have been “substantially justified”;
(3) No “special circumstances” may exist which would render an award unjust;
3
(4) An EAJA fee application must have been submitted to the court within thirty days of
final judgment in the action and be supported by an itemized statement; and
(5) A qualifying party must, if a corporation or other organization, not have had more
than $7,000,000 in net worth or 500 employees at the time the adversarial adjudication
was initiated.
See Jean, 496 U.S. at 158 (citing and quoting 28 U.S.C. § 2412(d)(1), (2)); KWV, Inc. v. United
States, 113 Fed. Cl. 534, 537 (2013); Metropolitan Van & Storage, Inc. v. United States, 101
Fed. Cl. 173, 185 (2011). BCPeabody bears the burden of establishing that it meets these
requirements except as to the second criterion; the government has the burden to show that its
position was substantially justified. See White v. Nicholson, 412 F.3d 1314, 1316 (Fed. Cir.
2005); Hillensbeck v. United States, 74 Fed. Cl. 477, 479–80 (2006); Al Ghanim Combined Grp.
Co. v. United States, 67 Fed. Cl. 494, 498 (2005).
The government does not challenge BCPeabody’s assertions that it was a prevailing
party, that no special circumstances exist that would render an award unjust, that its EAJA
application was timely filed, or that it complies with the net worth and size restrictions and is
thus a qualifying party for an EAJA award. See Pl.’s Mot. for Fees 3-4; Def.’s Resp. to Pl.’s
Application for Fees and Costs Pursuant to the Equal Access to Justice Act (“Def.’s Opp’n”),
ECF No. 73. 1 The government does, however, contend that the government’s position was
substantially justified, or, alternatively, that if the court finds that its position was not
substantially justified and decides to award fees and expenses, then BCPeabody should be
limited to the statutorily provided hourly rate for its attorneys’ fees as contrasted to the higher
rates it seeks. Def.’s Opp’n at 5-11.
A. Substantial Justification
To demonstrate that its position was “substantially justified,” the government must show
that its position was “‘justified in substance or in the main’—that is, justified to a degree that
could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 564-65 (1988). Rather
than examine the government’s stance upon every individual issue addressed in the case,
Gargoyles, Inc. v. United States, 45 Fed. Cl. 139, 148 (1999), the court must determine “whether
the government’s overall position [both prior to and during the litigation] had a reasonable basis
in both law and fact,” Chiu v. United States, 948 F.2d 711, 715 (Fed. Cir. 1991); see also Blakley
v. United States, 593 F.3d 1337, 1341 (Fed. Cir. 2010) (“In the context of EAJA claims, we have
held that the ‘position of the United States’ in judicial proceedings refers to the United States’
position ‘throughout the dispute, including not only its litigating position but also the agency’s
administrative position.’” (quoting Doty v. United States, 71 F.3d 384, 386 (Fed. Cir. 1995))).
1
An EAJA application must be submitted within thirty days of the final judgment. 28
U.S.C. § 2412(d)(1)(B). A final judgment is one that is “final and not appealable.” 28 U.S.C.
§ 2412(d)(2)(G). The government had appealed this court’s decision, but it did not pursue the
appeal, eventually filing an unopposed motion to voluntarily dismiss the appeal with each side
bearing its own costs, which the Federal Circuit granted on March 27, 2014. Order, BCPeabody
Constr. Servs., Inc. v. United States, No. 14-5024 (Fed. Cir. Mar. 27, 2014). BCPeabody timely
filed its EAJA application on April 23, 2014.
4
The government's position “can be justified even though it is incorrect.” Manno v. United States,
48 Fed. Cl. 587, 589 (2001) (internal quotation marks and citation omitted). The inquiry is “not
what the law now is, but what the [g]overnment was substantially justified in believing it to have
been.” Loomis v. United States, 74 Fed. Cl. 350, 355 (2006) (quoting Pierce, 487 U.S. at 561).
Substantial justification lies somewhere between winning the case and being “merely
undeserving of sanctions for frivolousness.” Pierce, 487 U.S. at 566.
The government asserts that its position had a reasonable basis in fact and law because
its position that a contracting officer is not required to seek clarifications regarding proposals
was well-grounded in decisions from the Federal Circuit and this court. Def.’s Opp’n at
5-6. The government points to decisions that confirm the discretionary nature of FAR
§ 15.306(a)(2). Id. In the government’s view, the contracting officer reasonably believed she
had no obligation to clarify any clerical errors in a proposal she received. Id. (citing Gulf
Grp., Inc. v. United States, 61 Fed. Cl. 338, 360 (2004)). This argument reaches too far. As
the court explained in its decision on the merits, there is no doubt that FAR § 15.306(a)(2) is
written in permissive terms, but a contracting officer’s actions can still be arbitrary and thus not
substantially justified. See BCPeabody, 112 Fed. Cl. at 512. The particular factual circum-
stances of this case left the contracting officer with no reasonable choice but to clarify the
clerical error in BCPeabody’s proposal. Id. BCPeabody’s price was almost 25% lower than the
next lowest bid, its price was not affected in any way by the clerical copying error, and it was
disqualified solely for its obvious copying error respecting the past performance qualifications of
a proposed subcontractor. Id. at 513. The facts are especially compelling because the awardee,
Edens, proposed use of the very same subcontractor whose past performance was found to be
unacceptable in relation to BCPeabody’s proposal. The contracting officer had no substantive
doubts regarding the ability of BCPeabody’s major subcontractor to successfully perform the
work. Importantly, FAR § 15.306(a) specifically refers to past performance as a subject
respecting which clarifications may well be allowable. Given these circumstances, the
contracting officer’s failure to clarify the mistake was manifestly arbitrary.
The decisions upon which the government relies cannot serve to justify the government’s
actions during this procurement. The errors in the proposals in those cases actually prevented the
contracting officer from being able properly to evaluate the substance of the proposals. See, e.g.,
Orion Tech., Inc., v. United States, 704 F.3d 1344, 1351 (Fed. Cir. 2013) (upholding the
contracting officer’s decision to reject a proposal lacking required price information); JWK Int’l
Corp. v. United States, 52 Fed. Cl. 650, 662 (2002) (“Given the circumstances of this case – with
literally dozens of fundamental deficiencies having been identified in JWK’s proposals – this
court believes that the S[ource ]S[election ]B[oard] did not err in concluding that the limited
exchanges envisioned by FAR [§] 15.306(a) would serve absolutely no utility here.”). In sum,
given the facts of this case, the government’s position was not substantially justified.
Accordingly, an award of attorneys’ fees and expenses pursuant to EAJA is appropriate.
B. Attorneys’ Fees
BCPeabody requests attorneys’ fees amounting to $40,407.50, reflecting 120.4 hours of
attorney time at the rate of $300.00 per hour for counsel of record, and 12.25 hours of attorney
5
time at the rate of $350.00 per hour for its general counsel. Pl.’s Mot. for Fees at 7-8. 2
BCPeabody submitted detailed invoices for these hours. It asserts that its attorneys are entitled
to fees above and beyond the statutory cap of $125.00 for the following reasons:
(1) BCP[eabody] obtained excellent results in the litigation; (2) BCP[eabody]’s
selection of counsel in the action was confined to the limited pool of
available attorneys admitted to the United States Court of Federal Claims[;]
(3) BCP[eabody]’s attorney in this matter, James E. Krause, P.A., is dedicated
to the practice of construction litigation, with particular emphasis on [f]ederal
construction projects and government contracts . . . [;] (4) As reflected in the
pleadings, the issues of fact and law before the [c]ourt were numerous and
complex, demanding specialized skill, training and experience of [f]ederal
construction law counsel.
Pl.’s Mot. for Fees at 9-10. The government does not contest the number of hours for which
compensation is sought, but disagrees that there is any justification for an enhanced award.
Def.’s Opp’n at 7-9.
In pertinent part, EAJA provides that “attorney fees shall not be awarded in excess of
$125 per hour unless the court determines that an increase in the cost of living or a special factor,
such as the limited availability of qualified attorneys for the proceedings involved, justifies a
higher fee.” 28 U.S.C. § 2412(d)(2)(A). The burden is on the plaintiff to establish that special
factors warrant an enhanced award. Filtration Dev. Co. v. United States, 63 Fed. Cl. 612, 623-24
(citing Cox Constr. Co. v. United States, 17 Cl. Ct. 29, 35 (1989)). The Supreme Court
addressed enhanced fee awards in Pierce, stating that “‘limited availability of qualified attorneys
for the proceedings involved’ must refer to attorneys ‘qualified for the proceedings’ in some
specialized sense, rather than just in their general legal competence. We think it refers to
attorneys having some distinctive knowledge or specialized skill . . . such as patent law, or
knowledge of foreign law or language.” 487 U.S. at 572. The Court further explained that
factors such as “novelty and difficulty of issues,” the “undesirability of the case,” the “work and
ability of counsel,” and “the results obtained” are not special factors justifying an enhanced fee
award. Id. at 573.
2
The invoices submitted by BCPeabody to support the counsel of record’s hours only
reflect a total of 118.4 hours worked, not 120.4. Pl.’s Mot. for Fees Ex. A-2, at 5-15, ECF No.
71-1. The discrepancy is explicable, however. Counsel hired Kinberg & Associates, LLC to
conduct additional legal research, for which he was charged $200.00 per hour for three hours.
Pl.’s Mot. for Fees Ex. A-2, at 13 (reflecting a charge on July 23, 2013 for $600.00 for
“supporting case law research”), 22 (invoice from Kinberg & Associates for legal research for
$600.00). BCPeabody appears to have lumped these hours from Kinberg & Associates with
counsel’s hours in its EAJA application for a total of 120.4 claimed hours, all at a rate of $300.00
per hour. Because it is not apparent from the supporting documentation if the research by
Kinberg was performed by an attorney, and BCPeabody’s brief and exhibits are silent on the
issue, the court will treat the claimed three hours as paralegal hours, reimbursable at a rate of
$75.00 per hour in accord with the hourly rate charged by counsel’s paralegal(s). See infra at 7-
8.
6
None of BCPeabody’s justifications for an enhanced fee award are persuasive. This court
has previously held that “[e]ntitlement to an enhanced fee award is not a matter of attorney
competence.” Dalles Irrigation Dist. v. United States, 91 Fed. Cl. 689, 705 (2010); see also
Infiniti Info. Solutions, LLC v. United States, 94 Fed. Cl. 740, 751 (2010) (“A government[]
contract case does not require the kind of specialized knowledge or skill that would justify an
enhanced award.”); California Marine Cleaning, Inc. v. United States, 43 Fed. Cl. 724, 732
(1999) (holding that “expertise and experience in the field of government contracts and,
specifically, bid protests” is an insufficient basis to award attorneys’ fees in excess of the
statutory cap). That BCPeabody’s counsel has experience in federal construction contracts and is
admitted to practice in this court is not a special factor. Moreover, the “excellence of the results
obtained” was expressly disavowed as a special factor by the Supreme Court. This case was a
quotidian bid protest challenging a contracting officer’s exercise of discretion. There were no
extraordinary factual or legal issues. Accordingly, no attorney hours shall be compensated in
excess of the presently extant statutory cap of $125.00. 3
Notably, BCPeabody did not request a statutorily permissible cost of living adjustment
(“COLA”) to the statutory cap. See 28 U.S.C. 2412(d)(2)(A). The burden rests on the plaintiff
to “allege[] that the cost of living has increased [since the latest adjustment of the statutory cap
which took effect in March 1996], as measured by the Department of Labor’s Consumer Price
Index (‘CPI’),” California Marine Cleaning, 43 Fed. Cl. at 733, and to supply the court with
relevant CPI data, Infiniti Info. Solutions, 94 Fed. Cl. at 751 (citing ACE Constructors, Inc. v.
United States, 81 Fed. Cl. 161, 168 (2008) and Lion Raisins, Inc. v. United States, 57 Fed. Cl.
505, 519 (2003)). BCPeabody has neither made the required allegation nor supplied the court
with the necessary CPI data. See Def.’s Opp’n at 9. Consequently, the court cannot grant a
COLA adjustment to the statutory rate.
In sum, BCPeabody is awarded compensation for 130.65 attorney hours at the statutory
rate of $125.00, for a total of $16,331.25.
C. Paralegal Fees
BCPeabody also seeks $6,097.50 in paralegal fees. Pl.’s Mot. for Fees Ex. A, at 1. It
mistakenly classifies these fees as an expense, citing the Federal Circuit’s decision in Richlin
Sec. Serv. Co. v. Chertoff, 472 F.3d 1370 (Fed. Cir. 2006), reh’g denied, 482 F.3d 1358 (Fed.
Cir. 2007), rev’d, 553 U.S. 571 (2008). See Pl.’s Mot. for Fees at 8-9. By considering paralegal
fees as an expense, the Federal Circuit had limited recovery of paralegal fees to the attorney’s
cost for the services, rather than allowing recovery for paralegal services at the market rate.
Richlin, 472 F.3d at 1381. That rationale no longer applies. The Supreme Court reversed the
Federal Circuit in Richlin and determined that paralegal fees under EAJA should be considered
attorneys’ fees and awarded at prevailing market rates, not to exceed the $125 statutory cap
3
Additionally, BCPeabody failed to present reasons as to why its general counsel should
be entitled to an hourly rate above $125.00. As justification it submitted only an affidavit signed
by the general counsel stating that his rate of $350.00 an hour is “equal or less” than the hourly
rates typically charged in the local Florida area for service by a board certified construction
lawyer. Pl.’s Mot. for Fees Ex. D, ¶ 4.
7
applicable to attorneys’ fees. 553 U.S. at 581. The Supreme Court relied, in large part, on its
prior determination in Missouri v. Jenkins, 491 U.S. 274 (1989), that paralegal fees were
subsumed within the statutory phrase “attorneys’ fees” found in 42 U.S.C. § 1988, a fee-shifting
provision for certain civil rights actions. Id. at 581-82. In this case, BCPeabody’s counsel billed
paralegals at a reasonable rate of $75 per hour for 81.3 hours. See United Partition Systems, Inc.
v. United Sates, 95 Fed. Cl. 42, 59-60 (2010) (applying prevailing market rates for paralegals in
the pertinent local area). 4 Additionally, as explained supra at 6 n.2, the court will treat the hours
billed by Kinberg & Associates as paralegal hours, reimbursable at a rate of $75.00 per hour for
three hours. Thus, BCPeabody is awarded compensation for 84.3 paralegal hours at a rate of
$75.00 per hour, for a total of $6,322.50.
D. Other Expenses
As part of its EAJA application, BCPeabody requests $301.00 for administrative filing
support services provided by the Lex Group VA and $910.06 for attorney travel expenses. Pl.’s
Mot. for Fees Ex. A, at 1. The government did not address these expenses in its response to
BCPeabody’s application.
BCPeabody also submitted a Bill of Costs, pursuant to RCFC 54(d), seeking $19,176.85
in costs, consisting of: (1) a $400.00 filing fee, (2) $9,550.85 for internal personnel costs related
to the lawsuit, (3) $3,150.00 for consultant costs, (4) $6,000.00 for a preliminary injunction
bond, (5) $50.50 for Federal Express costs, and (6) $25.25 for office/copying expenses. Pl.’s
Bill of Costs Exs. A, A-1, A-2, ECF No. 72-1. The government contends that all but one of
these claimed expenses are statutorily excluded from an award of costs pursuant to RCFC 54(d).
Def.’s Resp. to Pl.’s Bill of Costs at 4, ECF No. 74. The government submits that the only
permissible cost is the $400.00 filing fee. Id. The government’s contention is mistaken on legal
grounds, however. In acting on an application for fees and expenses under EAJA, the court is
not limited to the costs permissible under RCFC 54(d). That Rule is displaced by the explicit
provisions of EAJA. Section 2412(a) of title 28 provides that, “Except as otherwise specifically
provided by statute, a judgment for costs, as enumerated in section 1920 of this title, but not
including the fees and expenses of attorneys, 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) (emphasis added). 5
4
BCPeabody’s brief states that the paralegal hours can be ascertained from counsel’s
invoices to BCPeabody by looking at those hours billed at $75.00 per hour as contrasted to
counsel’s hours, which were billed at $300.00 per hour. Pl.’s Mot. for Fees at 8. BCPeabody
states that the paralegal worked 87.3 hours and that this expense is itemized in Ex. A on Form 5.
Pl.’s Mot. for Fees at 8. Form 5 reflects a request for $6,097.50 in paralegal fees. A mistake is
evident, however, because 87.3 hours times $75.00 per hour equals $6,547.50. The court
assumes that there is a typographical error in BCPeabody’s brief because the invoices reflect a
total of 81.3 paralegal hours, and 81.3 hours at $75.00 per hour generates the claimed amount of
$6,097.50.
5
Section 1920 enumerates an exclusive list of expenses that may be categorized as
“costs” and awarded by the court pursuant to RCFC 54(d). See Crawford Fitting Co. v. J. T.
Gibbons, Inc., 482 U.S. 437, 445 (1987). That list includes: “(1) Fees of the clerk and marshal;
8
Subsection 2412(d) then provides in pertinent part that “a court shall award to a prevailing party
other than the United States fees and other expenses, in addition to any costs awarded pursuant
to [28 U.S.C. § 2412(a)], incurred by that party in any civil action . . . brought by or against the
United States.” 28 U.S.C. § 2412(d)(1)(A) (emphasis added).
The exception to 28 U.S.C. 2412(a) applies here because EAJA is being invoked and
Subparagraph 2412(d)(1)(A) is not limited by a statutory enumeration of permissible costs.
Moreover, the statutory definition for “fees and expenses” as used in Subparagraph
2412(d)(1)(A) states that “‘fees and other expenses’ includes the reasonable expenses of expert
witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which
is found by the court to be necessary for the preparation of the party’s case.” 28 U.S.C.
§ 2412(d)(2)(A) (emphasis added). Most courts have treated this definition as a guiding
principle, rather than as a definitive listing of permissible expenses. See, e.g., Jean v. Nelson,
863 F.2d 759, 777 (11th Cir. 1988) (“‘fees’ and ‘expenses’ are defined in the Act by example,
rather than by limitation”), aff’d on other grounds, 396 U.S. 154 (1990); Oliveira v. United
States, 827 F.2d 735, 744 (Fed. Cir. 1987); Int’l Woodworkers of Am. v. Donovan, 792 F.2d 762,
767 (9th Cir. 1985) (affirming a district court’s decision that the expenses enumerated in Section
2412(d)(2)(A) are set forth as examples, not as an exclusive list). But see Weakley v. Bowen, 803
F.2d 575, 580 (10th Cir. 1986) (holding that travel expenses and postage fees are not
compensable expenses under EAJA); NAACP v. Donovan, 554 F. Supp. 715, 719-20 (D.D.C.
1982) (holding that while EAJA does not provide an exclusive definition of expenses, only those
expenses ejusdem generis, of the same kind, should be considered to be an allowable expense).
Fees for filing, electronic legal research, transcripts, photocopying, postage, travel, and couriers
are routinely held to be recoverable under EAJA. See, e.g., Jean, 863 F.2d at 759 (allowing
recovery for telephone, reasonable travel, postage, and computerized research expenses); Int’l
Woodworkers of Am., 792 F.3d at 767 (same).
Accordingly, “fees and other expenses” as used in EAJA are limited only by the
requirement that all claimed expenses must be reasonable and necessary to the litigation. On this
basis, the court will permit recovery for counsel’s travel expenses to Washington, D.C. for the
preliminary injunction hearing ($910.06), the administrative filing services provided by the Lex
Group VA ($301.00), the copying expenses ($25.25), and the Federal Express expenses ($50.50).
The court also finds that reasonable and necessary consultant costs are recoverable under EAJA.
See Information Scis. Corp. v. United States, 78 Fed. Cl. 673, 683 (2007) (permitting recovery of
fees paid to an expert consultant to review a very large record). BCPeabody used a consultant
for three purposes: (1) for initially evaluating the contracting officer’s actions following the
GAO decision, (2) for assessing the potential costs to be covered by the preliminary injunction
bond, and (3) for providing advice to and discussions with counsel. See Pl.’s Bill of Costs at 5,
Ex. A-7. The court concludes that the first two activities were necessary to the litigation, but the
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs
of making copies of any materials where copies are necessarily obtained for use in the case; (5)
Docket fees under section 1923 of this title; (6) Compensation of court appointed experts,
compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation
services under section 1828 of this title.” 28 U.S.C. § 1920.
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third category was not. Accordingly, the court will permit recovery for the consultant’s hours
charged on May 11 (4 hours), June 5 (0.5 hours), June 17 (1.25 hours), June 18 (2.25 hours),
June 24 (0.75 hours), and June 25 (1.75 hours), 2013, reimbursable at the billed rate of $100.00
per hour for 10.5 hours, for a total of $1,050.00. See Pl.’s Bill of Costs Ex. A-7.
BCPeabody also seeks $9,550.85 in internal personnel costs for hours devoted to the bid
protest. Pl.’s Bill of Costs Ex. A-2. In this respect, the Supreme Court has cautioned that “‘[t]he
Act should not be read . . . to permit reimbursement for items ordinarily included in office
overhead, nor for any other expenses not reasonable in amount, necessary for the conduct of the
litigation, and customarily chargeable to clients.’” Richlin Sec. Serv., 553 U.S. at 585
(alterations in original) (quoting S. Rep. No. 98-586 at 15 (1984)). Regular employee salaries
are not recoverable under EAJA, and BCPeabody’s employees were engaged in general business
functions, not legal functions. See Information Scis. Corp., 78 Fed. Cl. at 684 (denying
plaintiff’s request for employee overtime expenses under EAJA); cf. Taylor Grp., Inc. v.
Johnson, 919 F. Supp. 1545, 1556 (M.D. Ala. 1996) (declining to award attorney’s secretarial
overtime expenses because they were properly considered business overhead).
Finally, BCPeabody seeks to recover the premium it paid to secure a bond to support the
preliminary injunction. To effecutate the preliminary injunction it had sought successfully,
BCPeabody had to purchase a $300,000.00 bond from a third party for which it paid a bond
premium of $6,000.00. Pl.’s Bill of Costs Ex. C. Historically, bond premiums were recoverable
costs in suits at equity. See, e.g., Scaduto v. Orlando, 381 F.2d 587, 596 (2d Cir. 1967); In re
Northern Ind. Oil Co., 192 F.2d 139, 143 (7th Cir. 1951) (holding that the premium upon a bond
was a taxable cost), abrogation recognized by Republic Tobacco Co. v. N. Atlantic Trading Co.,
481 F.3d 442, 447-48 (7th Cir. 2007); Williams v. Sawyer Bros., 51 F.2d 1004, 1005 (2d Cir.
1931) (same); Weiss v. Smith, 103 F. Supp. 736, 736 (D. Conn. 1952) (holding that an injunction
bond premium is a taxable cost under a local rule of civil procedure). But see Kroger Grocery &
Baking Co. v. Martin, 97 F.2d 348, 349 (6th Cir. 1938) (declining to award an appeal bond
premium as a taxable cost because it was not customary in the circuit) (citing Newton v.
Consolidated Gas Co., 265 U.S. 78, 84 (1924)).
The practice of awarding bond premiums as a taxable cost, absent explicit statutory
authority, was curtailed by the Supreme Court’s decision in Crawford Fitting Co. v. J. T.
Gibbons, Inc., 482 U.S. 437 (1987). In Crawford, the Supreme Court held that “[Section] 1920
defines the term ‘costs’ as used in Rule 54(d). Section 1920 enumerates expenses that a federal
court may tax as a cost under the discretionary authority found in Rule 54(d).” Id. at 441-42. It
concluded that Rule 54(d) was no longer to be interpreted as allowing courts discretion as to
what costs are taxable. Id. at 442. 6 The Supreme Court’s decision in Crawford, however, has no
6
Previously, “it was generally recognized that . . . Rule 54(d) was intended as a grant of
discretion to district courts,” which was derived from the “practice formerly followed in equity . .
. where courts possessed the power to award costs not expressly provided by statutes, as part of
the original authority of the chancellor to do equity in a particular situation.” Crawford, 482
U.S. at 446-47 (Marshall, J. dissenting) (internal quotation marks and citations omitted); accord
In re Northern Ind. Oil, 192 F.2d at 143 (“[C]ourts have authority to include premiums paid for
bonds as proper items of taxable costs. We believe they have such authority derived from the
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bearing on the permissible fees and expenses that can be awarded pursuant to EAJA.
See Sterling Fed. Sys., Inc. v. Goldin, 16 F.3d 1177, 1184-85 (Fed. Cir. 1994). Indeed, the
historical precedent of awarding bond premiums as reasonable costs and the simple reality that
BCPeabody had no choice but to pay for a bond to secure its rights under the preliminary
injunction weigh heavily in favor of awarding the bond premium as an expense pursuant to 28
U.S.C. § 2412(d)(1)(A).
In conclusion, BCPeabody is entitled to “other expenses” amounting to $8,336.81,
consisting of reasonable expenses for attorney travel, copying, Federal Express delivery,
administrative processing, and expert consulting, as well as the bond premium necessarily paid
to obtain the preliminary injunction bond.
II. Bill of Costs
As a general matter, costs awarded pursuant to RCFC 54(d) are statutorily enumerated
and are to be strictly construed. See Taniguchi v. Kan Pacific Saipan, Ltd., __U.S. __, __, 132 S.
Ct. 1997, 2003-04 (2012) (holding that Subsection 1920(6), allowing for compensation of
interpreters, does not also include document translation costs because the ordinary meaning of
interpreter does not encompass written translation). The prevailing party must provide
documentation of the costs it requests to be awarded. Dalles Irrigation Dist., 91 Fed. Cl. at 710.
This documentation must show that the costs sought were “reasonable and necessary to the
litigation.” Standard Commc’ns, Inc. v. United States, 106 Fed. Cl. 165, 175 (2012) (citing
In re Ricoh Co., 661 F.3d 1361, 1368 (Fed. Cir. 2011) (applying a regional circuit’s
interpretation of Section 1920)). There is no dispute that the $400.00 filing fee is a cost
awardable under RCFC 54(d). Correlatively, it would be an “expenses” allowable pursuant
to 28 U.S.C. § 2412(d)(1)(A).
CONCLUSION
For the reasons stated, BCPeabody’s application for attorneys’ fees and expenses under
EAJA is GRANTED IN PART. BCPeabody is awarded attorneys’ fees of $16,331.25, paralegal
fees of $6,322.50, and expenses of $8,336.81. BCPeabody’s Bill of Costs is GRANTED IN
PART. BCPeabody is awarded the filing fee of $400.00. In total, BCPeabody is awarded
$31,390.56.
equitable power to assess costs according to the demands of justice, as disclosed by the facts and
the circumstances of the particular case being considered.”). In recognizing the Supreme Court’s
shift in Crawford, the Seventh Circuit has since reversed its stance that district courts have an
equitable power to award costs beyond those specifically enumerated in Section 1920. See
Republic Tobacco Co., 481 F.3d at 447 (“To the extent these [prior] cases suggest that Rule
54(d) empowers a district court to tax costs not outlined in [Section] 1920, they are not
controlling in light of Crawford.”) (referring inter alia to In re Northern Ind. Oil, 192 F.2d 139);
see also Pershern v. Fiatallis N. Am., Inc., 834 F.2d 136, 140 (8th Cir. 1987) (“Section 1920
does not authorize the taxing of . . . removal bond premiums in removal actions.”).
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The Clerk is directed to enter judgment in accord with this disposition.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Judge
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