Amaratek

ARMED SERVICES BOARD OF CONTRACT APPEALS

Application Under the Equal Access )

to Justice Act of -- )

)

Amaratek ) ASBCA Nos. 59149, 59395

)

Under Contract No. W9124R-l 1-P-1054 )

APPEARANCE FOR THE APPELLANT: Mr. David P. Dumas

President

APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.

Army Chief Trial Attorney

CPT Cali Y. Kim, JA

Trial Attorney

OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON

APPELLANT'S EQUAL ACCESS TO JUSTICE APPLICATION

On 5 December 2014, appellant, Amaratek, timely applied for expenses

pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504, after the Board

sustained its consolidated appeals, in part, in the amount of $5 8,94 7, with interest. 1

Amaratek, ASBCA Nos. 59149, 59395, 2014 WL 6634953 (Nov. 10, 2014).

Amaratek seeks $104,246.81, including $104,213.34 for the time that its president,

Mr. David P. Dumas, spent researching and preparing Amaratek's claims to the

contracting officer, its filings in the appeals, its EAJA application, and its reply to the

government's response to that application (app. memo. in support of application at 7-8

(spreadsheets); app. reply, last page). The balance consists of $23.47 in FedEx

expenses and $10 in notary expenses (id.).

Throughout the dispute that is the subject of the appeals, both in its claims to the

contracting officer and before the Board, Amaratek has represented itself, prose. Time

spent by a pro se litigant on such efforts as legal research, developing claims or legal

1

Amaratek elected to have the appeals processed pursuant to Board Rule 12.2;

consequently, the decision in the appeals was rendered for the Board by a single

Administrative Judge. Board Rule 12.2(c). Pursuant to paragraph (n) of

Addendum I to the Board's Rules, this decision is rendered by the same

Administrative Judge, the one who would have participated in a motion for

reconsideration of the underlying appeals. See Paragon Dynamics, Inc.,

ASBCA No. 42792, 92-3 BCA ~ 25,172 at 125,450 (single judge EAJA opinion

subsequent to Rule 12.2 decision).

positions, and preparing motions or other filings is not recoverable pursuant to EAJA.

See Groves v. Shinseki, 541 F. App'x 981, 984 (Fed. Cir. Sept. 16, 2013) (unpublished

decision); Naekel v. Department of Transportation, 845 F.2d 976, 981 (Fed. Cir. 1988),

Paragon Dynamics, 92-3 BCA ~ 25,172 at 125,450 (vice president's time not

recoverable); M Bianchi of California, ASBCA No. 26362 et al., 90-1BCA~22,369 at

112,403-04. The $104,213.34 that Amaratek seeks for the work of Mr. Dumas is for

such time; consequently, Amaratek may not recover any of that amount.

However, Amaratek's prose status does not preclude it from recovering the

"out-of-pocket" FedEx and notary expenses. See Union Precision & Engineering,

ASBCA No. 37549, 93-1 BCA ~ 25,337 at 126,235 (citing Naekel). 2 An agency that

conducts an adversary adjudication shall award, to a prevailing party other than the

United States, fees and other expenses incurred by that party in connection with that

proceeding, unless the adjudicative officer of the agency finds that the position of the

agency was substantially justified or that special circumstances make an award unjust.

5 U.S.C. § 504(a)(l). Whether the position of the agency was substantially justified

shall be determined on the basis of the administrative record, as a whole. Id. For

purposes of EAJA, a "party" includes any corporation the net worth of which did not

exceed $7 ,000,000 at the time the adversary adjudication was initiated, and which had

not more than 500 employees at the time the adversary adjudication was initiated.

5 U.S.C. § 504(b)(l)(B)(ii). The government does not dispute that Amaratek is a

"party," but does not expressly state whether Amaratek prevailed on appeal. We find

that the documents presented in support of the EAJA application demonstrate that

Amaratek satisfied the net worth and employee limitations required for EAJA

eligibility, and that, the Board having sustained the appeals, in part, in the amount of

$58,947, Amaratek prevailed on appeal.

The government does not contend that special circumstances would make an

award unjust, and the burden is on the government to show that its position was

substantially justified. Lucia E. Naranjo, ASBCA No. 52084, 00-2 BCA ~ 30,937 at

152, 707. The government, however, fails to carry that burden. The only showing that

the government offers is that, on appeal, Amaratek "prevailed only in part - $58,847,

plus interest vice the total quantum of $128,963 as claimed" (gov't resp. at 5).

Leaving aside that the Board sustained the appeal in the amount of $58,947 (not

$58,847), Amaratek, 2014 WL 6634953, we find that the government's showing fails.

While an appellant having prevailed does not mean that the government's position

2

In Naekel, 845 F.2d at 981, the United States Court of Appeals for the Federal

Circuit held that a pro se litigant may recover expenses. Although in Groves,

541 F. App'x at 984, the Federal Circuit called that holding into doubt in view

of Kay v. Ehrler, 499 U.S. 432 (1991), the Federal Circuit has not overruled

Naekel, which, therefore, remains binding upon the Board.

2

lacked substantial justification, see 5 U.S.C. § 504(a)(l), it is not the case that where

an appellant does not succeed upon all its claims, the government was, necessarily,

substantially justified. See Dalles Irrigation District v. United States, 91 Fed. Cl. 689,

699 (2010).

In view of the foregoing, Amaratek is entitled to recover $23 .4 7 in FedEx and

$10 in notary expenses to the extent that those expenses are reasonable and allowable

under EAJA. See Paragon Dynamics, 92-3 BCA ~ 25,172 at 125,450. The

government does not address either expense directly, and the documents supporting

Amaratek's application demonstrate that both were incurred in the process of

preparing and filing the application itself. That is, the notary notarized Mr. Dumas's

affidavit in support of the application, and Amaratek sent the application to the Board

by FedEx. Such expenses incurred preparing an EAJA application are allowable, see

Gavette v. Office of Personnel Management, 808 F.2d 1456, 1468 (Fed. Cir. 1986),

and we find both the $23.47 FedEx expense and the $10 notary expense reasonable.

Cf Paragon Dynamics, 92-3 BCA ~ 25,172 at 125,450 ($27.72 in office supplies,

printing, reproduction, and postage reasonable).

In accordance with the foregoing, Amaratek is awarded expenses in the amount

of $33.47.

Dated: 22 January 2015

Administrative Judge

Armed Services Board

of Contract Appeals

I certify that the foregoing is a true copy of the Opinion and Decision of the

Armed Services Board of Contract Appeals on an application for fees and other

expenses incurred in connection with ASBCA Nos. 59149, 59395, Appeals of

Amaratek, rendered in accordance with 5 U.S.C. § 504.

Dated:

JEFFREY D. GARDIN

Recorder, Armed Services

Board of Contract Appeals

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