97 Fed. Cl. 214
Fed. Cl.2011Background
- DGR seeks EAJA fees and expenses from the United States Air Force for a bid protest at Eielson AFB, Alaska.
- DGR prevailed, showing HUBZone preference violations under the Small Business Act, leading to an injunction and a HUBZone-based requirement in a revised solicitation.
- DGR’s fees: 211 hours (June–October 2010) at $175/hour; costs include $350 filing fee and $127.72 for FedEx.
- EAJA provides fees unless the government’s position was substantially justified or special circumstances exist; cap is $125/hour unless COLA or other factors apply.
- The government’s position was not substantially justified; the court awarded $37,227.72 total ($36,750 fees + $477.72 costs), after excluding 1 hour.
- COLA increased the cap to $175.27/hour, but recovery was limited to the actual billed rate of $175/hour; total awarded remains $37,227.72.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the government’s litigation position was substantially justified | DGR contends GAO/Plain HUBZone rule controls and government position lacked basis. | Government contends its position was substantially justified. | Not substantially justified; DGR awarded EAJA fees. |
| Whether DGR qualifies for an EAJA award | DGR meets all five statutory EAJA conditions (timely filing, eligible, prevailing party, no substantial justification, no unjust special circumstances). | No contrary assertion; disputes on amount only. | DGR qualified for EAJA award. |
| Whether hourly rate may exceed the statutory cap | Request for $175/hour (COLA-adjusted) justified by COLA. | Cap is $125/hour; enhanced rate not allowed absent special factors. | Rate capped at $175/hour, the actual billed rate; COLA applied but not to exceed billed amount. |
| Whether the COLA adjustment is applicable and how calculated | COLA justification supports higher rate for 210 hours. | COLA adjustments permissible; challenge to amount. | COLA adjustment found; however recovery limited to $175/hour. |
| Whether time for responding to the intervenor is recoverable | All reasonable hours to prosecute the action are recoverable. | Exclude time spent responding to intervenor. | Excluded one hour; total hours recoverable: 210. |
Key Cases Cited
- Contract Mgmt., Inc. v. Rumsfeld, 434 F.3d 1145 (9th Cir. 2006) (HUBZone priority and statutory interpretation discussed)
- Mission Critical Solutions v. United States, 91 Fed.Cl. 386 (Fed. Cl. 2010) (HUBZone plain language and preconditions analyzed)
- United Partition Sys., Inc. v. United States, 95 Fed.Cl. 42 (Fed. Cl. 2010) (COLA methodology and fee calculations guidance)
- Chiu v. United States, 948 F.2d 711 (Fed. Cir. 1991) (COLA methodology referenced)
- Pierce v. Underwood, 487 U.S. 552 (Supreme Court 1988) (Substantial justification standard)
- Lion Raisins, Inc. v. United States, 57 F.3d 519 (Fed. Cir. 1995) (COLA baseline and midpoint adjustment referenced)