Dellew Corporation v. United States

In the United States Court of Federal Claims

No. 15-808C

(Filed Under Seal: May 5, 2016)

(Reissued for Publication: May 20, 2016) *

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DELLEW CORPORATION, *

*

Plaintiff, * Attorneys’ Fees; Equal Access to Justice

* Act; Prevailing Party; Buckhannon

v. *

*

THE UNITED STATES, *

*

Defendant, *

*

and *

*

TECH SYSTEMS, Inc., *

*

Defendant-Intervenor. *

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Adam K. Lasky, Seattle, WA, for plaintiff.

Erin K. Murdock-Park, United States Department of Justice, Washington, DC, for defendant.

Eric Crusius, Tysons Corner, VA, for defendant-intervenor.

OPINION AND ORDER

SWEENEY, Judge

Before the court is plaintiff’s motion, made in accordance with Rule 54 of the Rules of

the United States Court of Federal Claims (“RCFC”), 1 for attorney’s fees and costs pursuant to

the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (2012).

*

This reissued Opinion and Order incorporates the agreed-to redactions proposed by the

parties on May 16, 2016. The redactions are indicated with bracketed ellipses (“[. . .]”).

1

RCFC 54(d) governs the award of attorney’s fees and costs in the United States Court

of Federal Claims (“Court of Federal Claims”).

I. BACKGROUND

On July 30, 2015, plaintiff Dellew Corporation (“Dellew”) filed a postaward bid protest

challenging a contract award to Tech Systems, Inc. (“TSI”) under a solicitation issued by the

United States Army Contracting Command (“Army”) in Rock Island, Illinois. Dellew Corp. v.

United States, 124 Fed. Cl. 429, 430 (2015). The purpose of the solicitation was to acquire

logistics support services at Schofield Barracks, Hawaii. Id. According to Dellew, the Army

erred by (1) awarding the contract to TSI because TSI refused to cap its proposed general and

administrative (“G&A”) rate, Compl. ¶¶ 64-72; (2) awarding the contract to TSI because the

contract awarded was not based upon the proposal originally submitted by TSI, id. ¶¶ 73-77; and

(3) failing to perform an adequate cost realism analysis, which was required because the

solicitation called for the award of a cost reimbursement contract, id. ¶¶ 78-85.

On October 22, 2015, the court heard oral argument on the parties’ cross-motions for

judgment on the administrative record, during which the court commented on the merits of the

parties’ respective arguments. At the close of argument, counsel for defendant indicated that the

Army might take corrective action and requested time to discuss the issue with the agency. Less

than one month later, on November 12, 2015, defendant filed a notice with the court indicating

that the agency would be taking corrective action. Id. Defendant subsequently moved to dismiss

the case for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1). Id. In a decision

issued on December 11, 2015, the court granted defendant’s motion and dismissed plaintiff’s

complaint as moot. Id. at 432. Therefore, the only remaining issue is plaintiff’s motion for

attorney’s fees and costs.

II. DISCUSSION

A. Legal Standard

“In the United States, the prevailing litigant is ordinarily not entitled to collect a

reasonable attorneys’ fee from the loser.” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421

U.S. 240, 247 (1975). Under this so-called “American Rule,” fees are not awarded to prevailing

parties “absent explicit statutory authority.” Key Tronic Corp. v. United States, 511 U.S. 809,

819 (1994). The EAJA provides such authority:

Except as otherwise specifically provided by statute, 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

subsection (a), incurred by that party in any civil action (other than

cases sounding in tort), including proceedings for judicial review

of agency action, brought by or against the United States in any

court having jurisdiction of that action, unless the court finds that

the position of the United States was substantially justified or that

special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1); see also id. § 2412(a) (providing for the reimbursement of costs). In

order for a party to be successful with its EAJA motion, five conditions must be met:

2

(1) the fee application must be submitted within 30 days of final

judgment in the action and be supported by an itemized statement;

(2) at the time the civil action was initiated, the applicant, if a

corporation, must not have been valued at more than $7,000,000 in

net worth or employed more than 500 employees; (3) the applicant

must have been the “prevailing party” in a civil action brought by

or against the United States; (4) the Government’s position must

not have been “substantially justified;” and (5) there cannot exist

any special circumstances that would make an award unjust.

WHR Grp., Inc. v. United States, 121 Fed. Cl. 673, 676 (2015) (citing 28 U.S.C. §

2412(d)(1)(A)-(B)).

The term “prevailing party” is not defined in the EAJA. In Buckhannon Board & Care

Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001),

the United States Supreme Court (“Supreme Court”) held that the term “prevailing party,” as

used in the Fair Housing Amendments Act (“FHAA”) and the Americans with Disabilities Act

(“ADA”), refers to one who obtains a “material alteration of the legal relationship of the parties.”

Id. at 603-04. Rejecting the catalyst theory, wherein a prevailing party is one whose lawsuit

causes defendant to voluntarily change its conduct, the Supreme Court held that the change in the

parties’ legal relationship must have a certain “judicial imprimatur,” such as a judgment on the

merits or the entry of a consent decree. Id. at 604-05.

Following the Buckhannon decision, the United States Court of Appeals for the Federal

Circuit (“Federal Circuit”) extended the Supreme Court’s rejection of the catalyst theory to cases

brought pursuant to the EAJA. See Brickwood Contractors, Inc. v. United States, 288 F.3d 1371,

1379 (Fed. Cir. 2002) (“In sum, we reject the Court of Federal Claims’ analysis that the text or

the legislative history of the EAJA compels a reading or construction of the term ‘prevailing

party’ different from other federal fee-shifting statutes and thus conclude that the Supreme

Court’s construction of that term as not allowing for the ‘catalyst theory’ applies with equal force

and effect to the EAJA.”). In addition, the Federal Circuit further allowed that the Buckhannon

“threshold can also be met by other court action ‘equivalent’ to a judgment on the merits or a

court-ordered consent decree” as long as “it carries a sufficient judicial imprimatur to materially

change the legal relationship of the parties.” Rice Servs., Ltd. v. United States, 405 F.3d. 1017,

1026 (Fed. Cir. 2005) (citations omitted); see, e.g., Former Employees of Motorola Ceramic

Prods. v. United States, 336 F.3d 1360, 1366 (Fed. Cir. 2003) (“[W]here the plaintiff secures a

remand requiring further agency proceedings because of alleged error by the agency, the plaintiff

qualifies as a prevailing party (1) without regard to the outcome of the agency proceedings where

there has been no retention of jurisdiction by the court, or (2) when successful in the remand

proceedings where there has been a retention of jurisdiction.”). In other words, courts need not

“focus only on the formalistic identification of the party in whose favor judgment was entered,

but instead [must] include within the category of ‘prevailing party’ applicants that prevail on an

issue or issues and achieve some of the benefits sought by the litigation.” Precision Pine &

Timber, Inc. v. United States, 83 Fed. Cl. 544, 548 (2008).

3

B. Plaintiff’s Application Was Timely Filed and Supported by an Itemized Statement

As noted above, under the EAJA, a fee application must be submitted within thirty days

of final judgment. 28 U.S.C. § 2412(d)(1)(B). Final judgment is “a judgment that is final and

not appealable.” Id. § 2412(d)(2)(G); see also Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991)

(holding that under the EAJA, a judgment is no longer appealable once the time for filing an

appeal has lapsed). Pursuant to the Federal Rules of Appellate Procedure (“FRAP”), if one of

the parties is the United States, “[t]he notice of appeal may be filed by any party within 60 days

after entry of the judgment or order appealed from.” FRAP 4(a)(1)(B)(i). Thus, in this case,

plaintiff had ninety days from December 17, 2015, the date judgment was entered, to file its

motion. Because the motion was filed on January 16, 2016, well within the ninety-day period, it

is timely. Defendant agrees. Def.’s Resp. 6. In addition, plaintiff attached an itemized

statement of its attorney’s fees and expenses to its application. See Pl.’s Mot. Attach. 3.

C. When the Action Was Commenced, Plaintiff Was Valued at Less Than $7 Million and

Employed Fewer Than Five Hundred Employees

The court finds that plaintiff meets the net worth and size standards set forth in the

statute. 2 See 28 U.S.C. § 2412(d)(2)(B). Through the declaration of Kara Chandra, plaintiff’s

corporate accountant, plaintiff established that its audited net worth was $[. . .] for calendar year

2013, and $[. . .] for calendar year 2014. Pl.’s Mot. 12. Plaintiff also established through Ms.

Chandra’s declaration that its unaudited net worth as of July 31, 2015, one day after this action

was commenced, was $[. . .]. Id. Thus, plaintiff’s net worth was less than $7,000,000 when the

suit was filed. In addition, through the declaration of Kelsey Lewis, plaintiff’s president,

plaintiff established that from July 1, 2015, to July 31, 2015, it employed fewer than one hundred

employees. Pl.’s Mot. 12. Thus, plaintiff employed fewer than five hundred employees on July

30, 2015, the date this action was initiated. Defendant concedes that plaintiff has met this second

requirement. Def.’s Resp. 6.

D. Plaintiff Is a Prevailing Party

In this case, the issue with regard to plaintiff’s status as a prevailing party is whether the

court’s oral comments—made during the October 22, 2015 argument on the parties’ cross-

motions for judgment on the administrative record—carried a sufficient judicial imprimatur to

materially alter the relationship between plaintiff and defendant such that plaintiff qualifies as a

prevailing party under the EAJA. Upon review of the admittedly scant case law on point, the

court concludes that the answer is yes.

In Brickwood Contractors, Inc., the United States Department of the Navy (“Navy”)

issued an invitation for bids (“IFB”) on February 9, 1999, for elevated water storage tank repair

services. 288 F.3d at 1373. It then amended the IFB to add contamination testing and removal

services. Id. On May 5, 1999, after receiving five bids, including one from Brickwood

2

“Net worth, for purposes of the EAJA, is calculated by subtracting total liabilities from

total assets.” Scherr Constr. Co. v. United States, 26 Cl. Ct. 248, 251 (1992) (citing City of

Brunswick v. United States, 849 F.2d 501, 503 (11th Cir. 1988)).

4

Contractors, Inc. (“Brickwood”), the Navy announced that there was no evidence of

contamination and that therefore the additional services were not needed. Id. Prior to that

announcement, Brickwood’s bid was the lowest. Id. After the contamination testing and

removal services were eliminated, however, that was no longer the case. Id.

On June 15, 1999, the Navy converted its amended IFB to a request for proposals

(“RFP”), a negotiated procurement. Id. The contamination testing and removal services were

not included. Id. On June 18, 1999, Brickwood filed a bid protest case seeking to enjoin the

Navy from converting the IFB to an RFP and to instead award Brickwood the contract. Id.

Three days later, the Court of Federal Claims held a hearing on Brickwood’s motion for a

temporary restraining order (“TRO”). Id. On July 16, 1999, before an opinion had been issued,

the government filed a motion to dismiss the case, stating: “After further consideration of both

the circumstances surrounding the solicitation and the governing [Federal Acquisition Regulation

(“FAR”)] provisions, and in light of the Court’s comments at the TRO hearing, the Navy has

cancelled the solicitation and plans to re-solicit using a new IFB.” Id. at 1373-74. On July 22,

1999, the court dismissed the protest without reaching its merits. Id. at 1374.

Ruling on Brickwood’s subsequent motion for attorney’s fees under the EAJA, the court

held that under the catalyst theory, Brickwood had satisfied the statute’s prevailing party

requirement. Id. Shortly after the court issued its judgment and awarded attorney’s fees and

expenses, the Supreme Court issued its ruling in Buckhannon rejecting the catalyst theory. Id.

After the decision in Buckhannon was issued, the government filed a motion for relief from the

court’s previous ruling pursuant to RCFC 60(b). Id. at 1374-75. The court denied the

government’s motion on three alternative grounds: (1) the Buckhannon court’s definition of

prevailing party applies to cases brought under the FHAA and the ADA but not to cases brought

under the EAJA; (2) even if Buckhannon applies to the EAJA, in Buckhannon the desired change

was brought about by the legislature whereas in Brickwood, the desired change was brought

about by plaintiff and the court; and (3) even if Buckhannon applies to the EAJA, the court’s

statements during the TRO hearing constituted a sufficient judicial imprimatur to effect a

material change in the legal relationship of the parties. Id. at 1375. On appeal, the Federal

Circuit reversed the court’s decision on all three grounds. With respect to the comments made

by the judge during the TRO hearing—the issue relevant to the instant case—the Federal Circuit

held that they were insufficient to meet the requirements of Buckhannon:

[The Court of Federal Claims] referenced remarks it made at the

TRO hearing at some length and concluded that “[i]n this

exchange, the court, although it did not issue a written opinion,

announced its acknowledgment of the merits of plaintiff’s claim,

the rectitude of plaintiff’s position, and the error of defendant’s

actions.” Id. at 748.

We disagree. As a preliminary matter, we note that the

excerpt from the TRO hearing cited by the court is preceded by the

following comment: “So, obviously, this is a bare-bones record

and those are very conclusory and very preliminary thoughts, but it

should be enough for you to work from, from this point forward.”

5

The court proceeded to set a schedule for further proceedings in

this case. In any event, the Court of Federal Claims’ conclusions

regarding remarks at a TRO hearing miss the mark. In our view,

the cited comments are clearly not sufficient to establish a judicial

imprimatur and they do not constitute a “court-ordered change in

the legal relationship” of the parties as Buckhannon requires. All

we have in this case are simply “very preliminary” remarks at a

TRO hearing and no TRO ever issued.

Id. at 1380.

Three years later, the Federal Circuit issued Rice Services, Ltd. In that case, Rice

Services, Ltd. (“Rice”) filed a bid protest following the Navy’s award of a contract for wardroom

dining services to a competitor. Rice Servs., Ltd., 405 F.3d. at 1018. In its May 9, 2002

complaint, Rice sought: (1) a declaration that the award was unlawful, (2) an order directing a

new contract award, (3) an order prohibiting any extension of the contract beyond the base term,

and (4) an order precluding any new award to the company that won the original bid. Id. at

1019. Following the filing of cross-motions for summary judgment, the government moved to

dismiss the protest on the ground that the Navy unilaterally and voluntarily decided “to conduct a

new contract solicitation.” Id. On July 18, 2002, the Navy notified the original offerors that it

had decided to reopen the competition. Id. It subsequently indicated that it would make a new

award by November 20, 2002. Id. Further, the Navy indicated that it would not exercise the

option under the original awarded contract. Id.

On September 26, 2002, the Court of Federal Claims granted the government’s motion to

dismiss and denied all other pending motions because the case had become “essentially moot” in

that the relief Rice requested had been substantially afforded. Id. Rice then filed a motion for

attorney’s fees under the EAJA, which the court granted. Id. at 1020. The court reasoned: “The

circumstances presented in this matter are equivalent to the situation where the parties consent to

a remand order for agency corrective action and where the court does not retain jurisdiction

while the further agency action is undertaken.” Id. The court then denied the government’s

motion for reconsideration, holding that in order to qualify as a prevailing party under the EAJA,

a party need only have obtained a court order with sufficient judicial imprimatur to materially

alter the parties’ legal relationship—requirements that were satisfied by the court’s dismissal

order because (1) the order required the Navy to comply with its promise to take curative action,

a promise that “created independent rights and obligations,” (2) Rice obtained “some relief on

the merits” in that a new evaluation was promised and the Navy was enjoined from exercising its

option under the original contract, and (3) the order was equivalent to a remand, thus qualifying

as a “success on the merits.” Id. at 1021. The government appealed the court’s ruling and the

Federal Circuit reversed. Id. at 1026-28.

As stated by the Federal Circuit, the issue before it was “whether the Dismissal Order of

the Court of Federal Claims conferred prevailing party status upon Rice.” Id. at 1026.

Concluding that the order was neither an “enforceable judgment on the merits because the court

did not reach the merits,” nor “a court-ordered consent decree, as there is no evidence the order

embodies an agreement between the parties,” the Federal Circuit was left to consider whether the

6

order was the equivalent of a judgment or a consent decree in that it “carried sufficient judicial

imprimatur to materially alter the legal relationship between Rice and the Navy.” Id. The

Federal Circuit found that it did not carry such judicial imprimatur and that Rice was attempting

to proceed under the very catalyst theory rejected by the Supreme Court in Buckhannon:

First, the facts before us show that the Navy acted unilaterally in

initiating a reevaluation of bids. Indeed, the record contains no

evidence of any discussions between the parties prior to the Navy

initiating the reevaluation. Second, the record also indicates the

Navy acted voluntarily, i.e. the Navy undertook remedial action

before any rulings by the Court of Federal Claims. Moreover, it

appears that all of the offerors, including Rice, responded

favorably to the Navy’s proposed remedial action before any

rulings were made by the Court of Federal Claims. Third, once the

government informed the court of the remedial action underway,

the court issued the September 26, 2002 order dismissing the case

without reaching the merits.

Id. at 1027. As a result, the Federal Circuit concluded that the order did not alter the parties’

relationship, or that if it did, such alteration was not material. Id. Significantly, it also

distinguished Brickwood:

In addition, the facts here present less of a case for attorney’s fees

than those in Brickwood, because in Brickwood, the government

only took remedial action after the court made preliminary

comments from the bench regarding its view on the merits,

comments that were adverse to the government.

Id. at 1027-28.

One year later, the Court of Federal Claims issued a decision that gave the term

prevailing party its most expansive interpretation to date. In Universal Fidelity LP v. United

States, 70 Fed. Cl. 310 (2006), Universal Fidelity LP (“Universal”) filed a bid protest alleging

that a solicitation for debt collection services issued by the Internal Revenue Service (“IRS”) was

“arbitrary, capricious, an abuse of discretion, and not in accordance with applicable procurement

law.” Id. at 311. On June 9, 2005, two days after the complaint was filed, the court held a status

conference, during which the court and the parties agreed that the court would issue its decision

on the merits without oral argument. Id.

Just over six weeks later, on July 25, 2005—after the merits of the case were fully

briefed—the court issued an order to “alert the Agency that [the court] intend[ed] to enjoin th[e]

solicitation, and to afford it an opportunity to make alternative plans and to take appropriate

actions in a prompt and efficient manner.” Id. The order also stated:

[E]xcluding vendors on the Schedule that do not have current task

orders irrespective of their experience or ability is arbitrary and

7

capricious in the circumstances presented . . . . The Agency may

accomplish the same ends more fairly and efficiently by other

means, including other mandatory minimum requirements.

Limiting the Solicitation to vendors currently performing debt

collection services does not necessarily give the Agency the best

opportunity to achieve its stated goals.

Id. at 311-12. Following its receipt of the court’s order, the government filed a status report

indicating that, based on the court’s order, the IRS intended to take corrective action by reissuing

the solicitation without the mandatory requirement. Id. The government also asked the court to

dismiss the case as moot. Id. The court did not dismiss the case, but instead issued another

order, stating that “removing the mandatory requirement w[ould] extend the list of qualified

bidders to include plaintiff.” Id.

After the IRS cancelled the solicitation at issue, the government moved to dismiss the

case for lack of subject matter jurisdiction. Id. The court directed the clerk to dismiss the

complaint because it “ha[d] no reason to be concerned at th[at] time that the new solicitation . . .

[would] present concerns similar to those that prompted plaintiff’s petition.” Id. Universal’s

complaint was then dismissed without prejudice to its filing “new pleadings as necessary.” Id.

At this point, Universal filed a motion for attorney’s fees under the EAJA. Id.

In concluding that its July 25, 2005 order carried sufficient judicial imprimatur to

materially alter the legal relationship between the parties because Universal had obtained the

equivalent of a judgment on the merits or a consent decree and was therefore a prevailing party

under the EAJA, the court emphasized that (1) it had advised the parties by written order that the

solicitation would be enjoined, (2) the matter had been fully briefed, (3) the parties had agreed

that no hearing was necessary, (4) its conclusions exhibited an essence of finality and were made

late in the process,” (5) it stated a legal conclusion when it wrote that the IRS’s actions were

arbitrary and capricious, (6) it “had performed the requisite analysis,” and (7) it was in the

process of finalizing a written opinion, which it would have issued had the IRS not taken

corrective action. Id. at 314-16. Lastly, the court noted a public policy rationale for its decision:

We feel strongly that to deny Universal attorney’s fees under the

circumstances presented would impart to the defendant an

undeserved advantage in bid protest litigation. Such a ruling

would allow the Government to issue a solicitation that it knows

may be subject to legal challenge, deny an agency-level protest,

await litigation in the Court of Federal Claims, allow plaintiff to

incur substantial costs in arguing its position, and then, at the

eleventh-hour cancel the offending solicitation to avoid having to

pay plaintiff’s expenses arising out of a lawsuit designed to bring

the Government’s actionable conduct to the court’s attention. In

short, such a scenario depicts the facts of our case.

Id. at 316.

8

In the case at bar, the court did not issue a written opinion on the merits. Nor did the

court issue a consent decree based on an agreement between the parties. The court did, however,

make numerous substantive comments during oral argument regarding the merits of the case and

how it intended to rule—comments that effected a sufficient judicial imprimatur to materially

alter the relationship between Dellew and the Army.

First, the court clearly stated its view that there was no meeting of the minds as to one of

the contract’s materials terms—the cap on the G&A rate TSI would charge the Army—and that

it therefore intended to rule in Dellew’s favor with respect to this issue:

[T]he issue is unequal discussions. I believe there was an

ambiguity because the government thought it understood what TSI

was offering. I think TSI was unclear in its response, it kept

saying the same thing—it kept giving the same response with

regard to capping on three different occasions, and then when

presented with the contract, it questioned . . . the rate that would be

the G&A cap.

It’s a material term of the solicitation. I don’t think that eliminates

TSI from the competitive range, but I think there’s an ambiguity. I

don’t think you’re able to bump your competitor out, but I think

this procurement should be returned to the agency for full and open

discussions and then a proper evaluation and award.

***

[T]here is a signed contract where it’s capped at [. . .] percent . . . .

[W]here the analysis falls in Dellew’s favor is that once presented

with the contract that states a cap of [. . .] percent, TSI balks,

which undercuts its argument that it was agreeing to a [. . .] percent

cap.

***

[I]f there was a clear number that had been provided by TSI, it

would not have said “approximately.” . . . [T]here had to be one

number that was agreed upon, and again, to me what’s critical is

once TSI is told it’s awarded the contract, and [. . .][, on behalf of

TSI,] expresses delight with the award of the contract to Mr.

Bennett, [a procurement contract officer with the Army], he still is

hedging his bet with regard to the G&A cap rate, because he said .

. . “I have a question with regard to [this issue]” . . . . [H]e is not

agreeing to a cap. . . . [T]hat’s the issue that this case turns on.

***

9

It seemed to me that throughout the procurement process, TSI was

hedging its bets in dealing with the Army[. I]nstead of having a

simple declarative sentence—“yes, we’re capping,” [or] “no, we’re

not capping, because we don’t think it applies to us,”—there would

have been more of an exchange between TSI and the Army[. B]ut

instead of having a clear declarative response, it chose to . . . hedge

[its] bet to see if [it] could get the award and then continue the

negotiations after the award was made, and that’s not cricket.

[T]o make an award when it is unclear what the rate is . . . is

contrary to law. It’s an arbitrary and capricious decision, it’s

irrational as well to award a contract to an offeror when a material

term of the contract, or the solicitation, is still in play. And the fact

that at the time of signing TSI is even raising [the issue] as a point

for discussion shows there wasn’t a meeting of the minds.

***

I do not believe that the argument you are putting forth on behalf

of [the Army] is reasonable. . . . I just don’t find it compelling.

Which is not to say I’m trying to shut you down, really, I’m not[.]

I’m just really trying to understand how the Army is making this

argument.

***

I cannot get past the email exchange between [. . .] and . . . Samuel

Bennett. It seems an absolute departure from reality for anyone to

think that there was a meeting of the minds with regard to the

material term of the solicitation and, of course, the contract of a

capped rate, when the cap is triggered.

I believe that—and I will find . . . if it’s necessary for me to rule,

that that term was still in play, that TSI did not agree to it, and that

was quite clear from [. . .]’s response to Mr. Bennett, and clearly

saying “[Mr. Bennett, you have 20 . . . minutes to sign this

contract, I need to know.” It wasn’t just a passing inquiry—“when

you get around to signing it that day or in the next business day, or

a month from now—it was “I need to know now because if not,

this procurement will be reopened.” I think that’s the only

legitimate, reasonable interpretation.

***

10

I read those emails, after the contract had been awarded to TSI,

[and] there was no question in my mind that there was no meeting

of the minds with respect to that critical piece of the contract.

***

I appreciate [the Army’s] argument, but I don’t embrace it. I don’t

think it’s the better of the two arguments.

Tr. 9-10, 20, 52-55, 68, 75, 77 (alterations to punctuation made for clarity).

Second, the court made clear its view that the Army should take corrective action:

I would really strongly suggest to the Army that with the additional

briefing that’s going to be required, [that it] stay performance of

the contract until briefing is completed and I have an opportunity

to rule . . . . I also would strongly suggest to the Army that they

think about taking corrective action now to go back, reopen

discussions, clarify with all offerors what the cap rate is and we

can avoid the additional briefing and . . . from my perspective, a

needless ruling.

***

I just commend to . . . the Army to mull over those thoughts, . . .

because I believe that the Dellew Corporation has provided me

with ample grounds to sustain the protest with respect to the G&A

cap rate.

***

I think [the Army] should [re]open the procurement . . . to make

sure that . . . the procurement is done properly, and that way we

will avoid . . . another protest.

***

[A] corrective action should be taken in this case . . . just make

sure it’s done right. And I know I still have to hear from Mr.

Crusius, [TSI’s counsel,] so this is not a good day for Mr. Crusius,

I’m sure, given what I’ve said, but I, frankly, I would rather be

candid with . . . attorneys in argument so . . . you can see where

I’m going[.]

***

11

[The fact that TSI continued to try to negotiate the terms of the

contract after it was awarded the contract] demonstrates that there

is a problem, that it’s manifest, and must be corrected. The Army

can do so by taking corrective action now and going back and

looking at that aspect of the proposal, and the other area that was

identified with regard to [. . .]. [T]his is easily remedied by the

Army.

And it may very well come out that . . . in your client’s favor by

saying, “yes, we agree to the [. . .] percent.” I am not eliminating

them from the competition. I would not eliminate them from the

competition. But discussions have got to be reopened.

***

I believe there are more than adequate grounds that Dellew has

identified to sustain this protest. I believe it should go back to the

agency. I hope the agency takes to heart what I said today, and

that they reopen the process, get it done right, which they’re fully

capable of doing, and I know was their original intent. So, I hope

that’s what happens, and I don’t know how it will shake out, but

there’s no reason why your client would be excluded from . . . this

protest based upon what I’ve seen, what has been argued both in

the briefs and here today.

***

[I]t’s up to the Army to determine the scope and the breadth of the

corrective action in terms of proposals needing to be updated. I

just want them to do what the right thing is.

Id. at 67-70, 77-78, 83, 87 (see parenthetical on page 11).

Third, contrary to defendant’s argument, the Army did not voluntarily decide to take

corrective action. It only did so following oral argument and following the government’s

realization that the court was not swayed by its argument. At the end of the argument, counsel

for the United States stated:

Your Honor, the agency counsel indicates that it will take

approximately a week to get confirmation of whether or not a

corrective action can be taken. That’s certainly what I’m going to

recommend. Unfortunately, I can’t force the Army to do anything.

Id. at 92. In addition, in subsequent filings, the government acknowledged that its decision to

take corrective action was due in part to the court’s statements at oral argument. See Joint Status

Report 2 (“Due to the change in conditions, as well as the discussions held at oral argument on

12

October 22, 2015, the Army determined to take corrective action.”); Def.’s Reply to Mot. to

Dismiss 9 (“That the solicitation will be amended to not only clarify the issues raised by the

Court at oral argument, but also to address the change in conditions, is in accordance with the

FAR and is not unreasonable.”). Thus, unlike in Rice Servs., Ltd., where the Navy decided to

take remedial action before the court issued any rulings, in this case, although the court did not

issue an opinion, defendant knew that the court intended to rule in plaintiff’s favor and took

corrective action as a result of that knowledge.

Finally, when the court made its comments, it was late in the process. The court had

already considered the parties’ arguments and drafted an opinion concluding that (1) there was

no meeting of minds as to a material term of the contract, (2) the Army’s award of the contract to

TSI was arbitrary and capricious, and (3) the Army should initiate corrective action to remedy

the faulty award:

[I]t’s important for me to press the questions I have to see if

anything you say to me changes my mind.

***

I had a draft decision [wherein I intended to recommend that the

Army reopen discussions, rather eliminate TSI] and that’s what I

intended to do.

Tr. 70, 85.

In sum, the court concludes that there is good cause to extend the holding in Universal

Fidelity LP, which dealt with a written order, to the oral comments made in this case. In both

cases: (1) the matter was fully briefed at the time the statements were made, (2) the court arrived

at legal conclusions after considering the merits of the parties’ positions, (3) the parties were

made aware of those legal conclusions, and (4) defendant took corrective action after having

been made aware of the court’s position. In other words, as in Universal Fidelity LP, because

defendant understood how the court intended to rule, the court’s statements carried a sufficient

judicial imprimatur to materially alter the relationship between the parties, giving plaintiff

prevailing party status under the EAJA.

13

E. The Government’s Position Was Not Substantially Justified

“The Government bears the burden of showing that its position was substantially justified

in the underlying litigation.” Lion Raisins, Inc. v. United States, 57 Fed. Cl. 505, 512 (2003)

(citing Scarborough v. Principi, 319 F.3d 1346, 1354 (Fed. Cir. 2003)). Under the EAJA, the

government’s position is defined not only as its position in the civil action, but also as “the action

or failure to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D).

To be substantially justified, the government’s position must be “justified to a degree that could

satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citations omitted).

Thus, under the EAJA, in order to determine whether the government’s position was

substantially justified, the court must examine the “entirety of the government’s conduct” and

determine “whether the government’s overall position had a reasonable basis in both law and

fact.” Chiu v. United States, 948 F.2d 711, 715 (Fed. Cir. 1991) (footnote omitted).

In this case, defendant argues that the Army’s position was substantially justified. Def.’s

Resp. 14-16. First, defendant claims that its belief that the solicitation did not require TSI to cap

its G&A rate was reasonable because the language of the solicitation was permissive rather than

mandatory:

While Dellew argued that this requirement forced TSI to cap its

rates, . . . the Government’s interpretation of that provision—that

the Army was permitted to impose a cap on a significantly lower

G&A rate and that an offeror was not required to cap its own

rate—was reasonable. . . . The plain language of this provision

contains no explicit requirement that an offeror cap its own rates

and, therefore, the Government reasonably determined that TSI

took no exception to a non-existent requirement.

Id. at 15. The court disagrees. Section L.5.4.2.7.5(d) of the solicitation provided that if an

offeror’s proposal “include[d] indirect rates that are significantly lower than the supporting

historic actual or budgetary data provided[,] those rates will be capped for evaluation purposes

and any future billing.” Id. While it is true that the solicitation does not explicitly state that it is

the offeror’s obligation to cap its own rate, it makes no sense for anyone other than the offeror to

cap its own rate given the significance that rate will have on its potential profit under the

contract. As the court noted in its comments during the October 22, 2015 oral argument:

I think it’s a critical piece. I don’t see how there’s any wiggle

room around it . . . . [W]hen offerors make proposals to the United

States, and there are specific rates that impact their price, and

we’re talking about a G&A cap, who but the offeror should come

up with that rate?

[I]f an offeror says, “well, I’m not going to cap my rate,” and the

Army comes back . . . and says, “well, I’m going to assign you a

9.5, and I’m going to assign this other offeror a 3.2,” that would be

arbitrary and capricious on the part of the agency. It seems to me

14

that . . . if there’s disparity [with] the historical rate and that the

capping rate is triggered, who but the offeror should be advancing

the . . . rate?

Tr. 50-51 (see parenthetical on page 11).

Next, defendant claims that its argument regarding the sufficiency of the Army’s cost-

realism analysis was reasonable because this type of analysis is generally performed for purpose

of determining whether a cost estimate is too low, but in this case, the analysis demonstrated that

one of the offeror’s rates was too high. Def.’s Resp. 15. Although the court noted during the

oral argument that it had not reached a conclusion as to the merits of plaintiff’s cost realism

argument, the court need not address it now given the court’s determination that defendant’s

position as to the G&A rate cap issue was not substantially justified—a position that led to the

government’s decision to take corrective action. Furthermore, the court notes that common

sense dictates that whether or not the government’s position is substantially justified with regard

to the sufficiency of its analysis has nothing whatsoever to do with the reason why the analysis

was conducted. 3

F. No Special Circumstance Exist That Would Render an Award Unjust

There are no special circumstances that would render an award of attorney’s fees unjust

in this case.

G. Plaintiff Is Entitled to an Award of Attorney’s Fees

Under the EAJA, “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)(ii).

In this case, plaintiff argues that a cost of living adjustment to the EAJA statutory cap

should be granted. Pl.’s Mot. 21. Specifically, plaintiff contends that the court should use a

3

Pursuant to the Code of Federal Regulations, a cost realism analysis is:

the process of independently reviewing and evaluating specific

elements of each offeror’s proposed cost estimate to determine

whether the estimated proposed cost elements are realistic for the

work to be performed; reflect a clear understanding of the

requirements; and are consistent with the unique methods of

performance and materials described in the offeror’s technical

proposal.

48 C.F.R. § 15.404–1(d)(1). In order to overturn an agency’s cost realism determination, a

plaintiff must establish that it lacked a rational basis. Westech Int’l, Inc. v. United States, 79

Fed. Cl. 272, 286 (2007). Thus, an agency must establish that it was rationally based. Id.

15

“single mid-point inflation adjustment factor applicable to services performed before and after

the midpoint,” which is “calculated by using the Consumer Price Index (“CPI”) of the United

States Department of Labor, Bureau of Labor Statistics, in the following formula: (statutory cap)

x ((mid-point CPI) ÷ (baseline CPI)).” Id. at 21-22. Plaintiff thus concludes that it is entitled to

reimbursement at a rate of $190.94 per hour:

Congress last amended the EAJA in March 1996 to increase the

statutory cap for attorneys’ fees to $125/hour, thus March 1996 is

the proper “baseline CPI” - equaling 155.700. . . . The “mid-point

CPI” for this action is the month that is the mid-point between the

first and last month for which attorneys’ fees are being awarded.

. . . Including the preparation of the Complaint, this civil action

lasted 6 months (i.e., July 2015 through December 2015). The

mid-point, therefore, is 3 months, or October 2015 - equaling

237.838.11[.] Applying the above-referenced calculation formula,

the rate for attorneys’ fees applicable to this case is determined as

follows: $125.00/hour x (237.838 ÷ 155.700) = $190.94/hour.

Id. at 22.

The government does not counter plaintiff’s argument regarding the need to augment the

EAJA statutory cap to reflect an increase in the cost of living. Thus, the court will award

attorney’s fees at the rate of $190.94 per hour. The government does, however, contest the

amount of time plaintiff claims for four distinct tasks: (1) preparation of the EAJA fee petition;

(2) work performed by attorney Alix Town on August 20, 2015; (3) work performed by Ms.

Town on September 2, 2015; and (4) work performed by attorney Shaun C. Kennedy on

December 3, 2015. Def.’s Resp. 16-17. Each contested entry will be considered in turn.

1. Preparation of the EAJA Fee Petition

Plaintiff seeks $11,857.37 in reimbursement for work performed on the fee petition by

Mr. Kennedy (“SCK”) and Adam K. Laskey (“AKL”). Mr. Laskey is a partner at the firm of

Oles Morrison Rinker & Baker LLP (“Oles Morrison”). Pl.’s Mot., Decl. of Adam K. Lasky.

Although it is not clear, the court presumes that Mr. Kennedy is a senior associate at Oles

Morrison, since his hourly billing rate is $[. . .], just $15 less than Mr. Lasky’s hourly billing rate

of $[. . .]. The work, detailed below, was performed from December 28, 2015, to January 28,

2016:

Date Attorney Description Hours

12/28/15 SCK Conducted legal research for EAJA motion for attorneys’ 1.9

fees and litigation expenses

12/29/15 SCK Continued legal research and drafting EAJA motion for 5.3

attorneys’ fees

12/30/15 SCK Continued legal research and drafting EAJA motion for 4.7

attorneys’ fees

12/31/15 SCK Continued drafting EAJA motion for attorneys’ fees 3.4

16

1/6/16 SCK Conducted legal research regarding timeliness of EAJA 2.3

motion; continued drafting same

1/7/16 SCK Conducted legal research regarding size status 8.4

requirements under the EAJA; conducted legal research

regarding “substantially justified” standard; continued

drafting EAJA motion

1/8/16 SCK Completed drafting EAJA motion for attorneys’ fees and 3.4

litigation expenses

1/11/16 AKL Reviewing and revising draft EAJA motion 4.5

1/11/16 SCK Conferred with client regarding company size; conducted 4.7

legal research regarding EAJA motion; revised same

1/12/16 AKL Legal research on EAJA issues; revising sections of EAJA 4.5

motion; adding new section to motion; working on

declaration in support of motion and compiling cost data to

support

1/13/16 AKL Editing costs/expenses section of EAJA motion; working 1

on declaration

1/13/16 SCK Drafted affidavits in support of EAJA motion 1.3

1/14/16 AKL Legal research on required contents of EAJA application; 7

revision motion; drafting declaration and compiling

exhibits

1/15/16 SCK Reviewed and revised EAJA motion; conducted legal 2.3

research regarding recovery of fees from prior protest;

conferred on same

1/15/16 AKL Revising motions and declarations; scanning exhibits; 2.5

proofing and cite checking motion

1/16/16 AKL Finalizing motion and related docs for filing; preparing 3

TOA and TOC; final edits to all filings; filing motion

1/28/16 SCK Prep for and attend COFC status conference regarding 0.4

EAJA motion; conferred with AKL regarding same

1/28/16 AKL Prep for and attend COFC status conference regarding 1.5

EAJA motion, conferred with SCK regarding same;

preparing and filing first supp. to EAJA application, and

supporting declaration; filing the same with the court

TOTAL 62.1

Id., Ex. B; Pl.’s Suppl. Mot., Second Decl. of Adam K. Lasky. At the EAJA hourly rate of

$190.94, the 62.1 hours of work performed by Mr. Kennedy and Mr. Laskey would result in an

award of $11.857.37 for these tasks.

The government argues that although reimbursement for time spent preparing a petition

for attorney’s fees is permissible, the amount plaintiff claims is excessive. Def.’s Resp. 16.

According to the government, of the total amount of time spent litigating this case, close to one

quarter was spent preparing the fee petition: “This time seems excessive, especially as this Court

previously noted that it found unavailing Dellew’s argument that it should rule on the merits of

the case so Dellew could later seek attorney fees.” Id. at 16-17. Plaintiff counters that the

17

government’s allegations are insufficient because the government “fails to identify a single,

specific time entry that is excessive, redundant, or otherwise unnecessary.” Pl.’s Suppl. Mot. 13.

It is well established that time spent preparing the fee petition is compensable under the

EAJA. Schuenemeyer v. United States, 776 F.2d 329, 333 (Fed. Cir. 1985); accord Fritz v.

Principi, 264 F.3d 1372, 1377 (Fed. Cir. 2001); Brewer v. Am. Battle Monuments Comm’n, 814

F.2d 1564 (Fed. Cir. 1987). “[T]he fee applicant bears the burden of establishing entitlement to

an award and documenting the appropriate hours expended and hourly rates.” Hensley v.

Eckerhart, 461 U.S. 424, 437 (1983). In addition, the fee petition must “be specific enough for

the court to determine whether the hours reported were necessary or duplicative.” Impresa

Construzioni Geom. v. United States, 93 Fed. Cl. 733, 737 (2010) (citing Hensley, 461 U.S. at

433). Furthermore, it is within the court’s discretion to discount “[e]xorbitant, unfounded, or

procedurally defective fee applications.” Comm’r, INS v. Jean, 496 U.S. 154, 163 (1990). “It

remains important, however, for the . . . court to provide a concise but clear explanation of its

reasons for the fee award.” Hensley, 461 U.S. at 433.

Plaintiff’s fee petition consists of two primary filings. The first filing contains the

following documents: (1) a twenty-four-page motion, (2) a two-page declaration from Ms.

Chandra, (3) a two-page report on plaintiff by independent auditor KMH LLP, (4) thirteen pages

of balance sheets and accompanying notes, (5) a two-page “Assets and Liabilities & Equity,” (6)

a two-page declaration from Mr. Lewis, (7) thirty-two pages of timesheets, (8) a four-page

declaration from Mr. Lasky, (9) seven pages of Oles Morrison invoices, (10) a one-page

itemization of attorney’s fees incurred by plaintiff, (11) a one-page invoice from Capital Process

Services, Inc., (12) a one-page chart of the CPI, and (13) a Form 5 application for attorney’s fees

under the EAJA. See Pl.’s Mot. The second filing contains the following additional documents:

(1) a two-page supplement to plaintiff’s motion, and (2) a three-page supplemental declaration

from Mr. Lasky. See Pl.’s Suppl. Mot. Not only is plaintiff’s petition sufficiently detailed in

that plaintiff provides a description of the task performed by each attorney working on the

motion as well as the time spent on each task, but the petition is also sufficiently documented, as

evidenced by the various attachments included with the petition. Thus, the only remaining issue

is whether the time, and therefore amount claimed, is excessive. In this case, the court concludes

that it is not.

Plaintiff seeks reimbursement for 62.1 hours of work on a fee petition that was composed

of a twenty-four-page motion, a two-page supplemental motion, and accompanying

documentation. In assessing the reasonableness of the hours claimed, it is helpful to group the

entries in plaintiff’s petition into two categories: (1) entries detailing time spent by counsel

solely performing legal research and writing, and (2) entries detailing time spent by counsel on

multiple activities, to include conferring with their client, compiling data, preparing declarations,

preparing for and participating in a status conference, and performing legal research and writing.

The first category consists of the following entries:

Date Attorney Description Hours

12/28/15 SCK Conducted legal research for EAJA motion for attorneys’ fees 1.9

and litigation expenses

18

12/29/15 SCK Continued legal research and drafting EAJA motion for 5.3

attorneys’ fees

12/30/15 SCK Continued legal research and drafting EAJA motion for 4.7

attorneys’ fees

12/31/15 SCK Continued drafting EAJA motion for attorneys’ fees 3.4

1/6/16 SCK Conducted legal research regarding timeliness of EAJA 2.3

motion; continued drafting same

1/7/16 SCK Conducted legal research regarding size status requirements 8.4

under the EAJA; conducted legal research regarding

“substantially justified” standard; continued drafting EAJA

motion

1/8/16 SCK Completed drafting EAJA motion for attorneys’ fees and 3.4

litigation expenses

1/11/16 AKL Reviewing and revising draft EAJA motion 4.5

1/15/16 SCK Reviewed and revised EAJA motion; conducted legal 2.3

research regarding recovery of fees from prior protest;

conferred on same

TOTAL 36.2

Thus, counsel spent, at a minimum, 36.2 hours or approximately 4.5 eight-hour days

researching and drafting the EAJA motion. The court does not find this to be an excessive

amount of time. As plaintiff notes, the government indicated that it would oppose any EAJA

motion, thus prompting “Dellew’s counsel [to undertake] a thorough effort to research relevant

decisional law interpreting all elements necessary to establish entitlement under EAJA.” Pl.’s

Reply 14. In addition, although only two of the statute’s five requirements were contested—that

plaintiff was a prevailing party and that the government’s position was not substantially

justified—as evidenced by the court’s analysis above, the issue of plaintiff’s status as a

prevailing party, given the unique circumstances in this case, is not a settled area of the law.

Thus, the time spent by plaintiff researching and drafting this motion is justified.

The second category consists of the remaining entries:

Date Attorney Description Hours

1/11/16 SCK Conferred with client regarding company size; conducted 4.7

legal research regarding EAJA motion; revised same

1/12/16 AKL Legal research on EAJA issues; revising sections of EAJA 4.5

motion; adding new section to motion; working on

declaration in support of motion and compiling cost data to

support

1/13/16 AKL Editing costs/expenses section of EAJA motion; working on 1

declaration

1/13/16 SCK Drafted affidavits in support of EAJA motion 1.3

1/14/16 AKL Legal research on required contents of EAJA application; 7

revision motion; drafting declaration and compiling exhibits

1/15/16 AKL Revising motions and declarations; scanning exhibits; 2.5

proofing and cite checking motion

19

1/16/16 AKL Finalizing motion and related docs for filing; preparing TOA 3

and TOC; final edits to all filings; filing motion

1/28/16 SCK Prep for and attend COFC status conference regarding EAJA 0.4

motion; conferred with AKL regarding same

1/28/16 AKL Prep for and attend COFC status conference regarding EAJA 1.5

motion, conferred with SCK regarding same; preparing and

filing first supp. to EAJA application, and supporting

declaration; filing the same with the court

TOTAL 25.9

Thus, counsel spent an additional 25.9 hours or approximately 3.2 eight-hour days

compiling and in some cases drafting the documents that would be attached to the EAJA motion.

Again, the court does not find this to be an excessive amount of time for the tasks described,

which in certain instances also included additional time spent researching and drafting the fee

application.

2. Work by Alix Town on September 2, 2015

Dellew seeks reimbursement for the following work by Ms. Town (“AKT”):

Date Attorney Description Hours

9/2/15 AKT Drafting and editing bid protest for COFC 6.1 4

Pl.’s Mot., Decl. of Adam K. Lasky, Ex. A (footnote added). The government argues that the

entry is unclear because it seeks reimbursement for work performed “over a month after Dellew

filed its bid protest.” Def.’s Resp. 17. In other words, the government claims that “it is unclear

if Ms. Town refers to drafting and editing Dellew’s motion for judgement on the administrative

record or to something else.” Id. The government also notes than plaintiff wrote off an identical

entry for work performed by Ms. Town on September 1, 2015. Id. In response, plaintiff cites

Ms. Town’s declaration and clarifies that the billing entry “consisted of time spent by Ms. Town

drafting and editing Dellew’s [motion for judgment on the administrative record].” Pl.’s Reply

15. Thus, the entry is reasonable.

4

Both parties refer to a billing entry for 6.8 hours of work, see Def.’s Resp. 17; Pl.’s

Reply 15, but the document they reference, cited as Dkt. No. 57-3 at 9, shows a billing entry for

6.1 hours of work on September 2, 2015.

20

3. Work by Ms. Town on September 2, 2015 and Work by Mr. Kennedy on

December 3, 2015

The government contests the reasonableness of two entries—one for work performed by

Ms. Town on September 2, 2015, and one for work performed by Mr. Kennedy on December 3,

2015. Def.’s Resp. 17. In its reply, plaintiff “withdr[ew] both of these time entries from its

EAJA claim.” Pl.’s Reply 15. Thus, plaintiff’s award will be reduced accordingly.

4. Summary of Attorney’s Fees and Expenses to Be Awarded

The court will award plaintiff the following attorney’s fees and expenses, pursuant to the

EAJA: 5

Attorneys’ Fees

Hours Rate Total

Adam K. Lasky 278 $190.94 $53,081.32

Shaun C. Kennedy 88.6 $190.94 $16,917.28

Alix K. Town 39.5 $170.00 $6,715.00

SUBTOTAL $76,713.60 6

Expenses

Mailing of Overnight FedEx of Original Pleadings for Filing with the Court $63.14

Fees Associated with Filing and Service of Original and Copies of Pleadings $600.00

for Filing with the Court

Court Filing Fee Advanced by Process Service $400.00

Travel Expenses for Adam Lasky to Attend Oct. 22, 2015 [Oral Argument] $922.82

Printing and Copying of Portions of the Administrative Record $456.30

Ordering of Certified Transcript of Oct. 22, 2015 [Oral Argument] $300.90

SUBTOTAL $2,743.16

TOTAL $79,456.76

5

Pursuant to RCFC 54(d)(1), “[c]osts—other than attorney’s fees—should be allowed to

the prevailing party to the extent permitted by law. See 28 U.S.C. § 2412(a).” Under the EAJA,

such taxable costs include photocopying, delivery services, travel, filing fees, and transcripts, if

they are reasonable and necessarily obtained for use in the case. See Metro. Van & Storage, Inc.

v. United States, 101 Fed. Cl. 173, 201-03 (2011). Here, the government does not contest

reimbursement of any of the expenses sought by plaintiff and the court finds that they are

reasonable and necessarily obtained by plaintiff for use in the case.

6

Plaintiff calculates the amount of reimbursement due for attorney’s fees as $76,713.58,

two cents less than the figure derived by the court. See Pl.’s Reply 16. The discrepancy is most

likely due to different rounding practices. In any event, the court will award the higher amount.

21

III. CONCLUSION

Plaintiff is awarded attorney’s fees in the amount of $76,713.60 for the original litigation

and for the preparation of the fee petition pursuant to the EAJA, plus expenses in the amount of

$2,743.16, for a total of $79,456.76. The clerk of the court shall enter judgment accordingly.

The court has filed this ruling under seal. The parties shall confer to determine agreed-to

proposed redactions. Then, by no later than Friday, May 20, 2016, the parties shall file a joint

status report indicating their agreement with the proposed redactions, attaching a copy of those

pages of the court’s ruling containing proposed redactions, with all proposed redactions clearly

indicated.

IT IS SO ORDERED.

s/ Margaret M. Sweeney

MARGARET M. SWEENEY

Judge

22