CBCA 6462-C(6031)

DENIED: May 9, 2019 CBCA 6462-C(6031) WOOLERY TIMBER MANAGEMENT INC., Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Charlotte Woolery, President of Woolery Timber Management Inc., Tuolumne, CA, appearing for Appellant. John Eichhorst, Office of the General Counsel, Department of Agriculture, San Francisco, CA, counsel for Respondent. Before Board Judges SOMERS (Chair), ZISCHKAU, and LESTER. LESTER, Board Judge. On May 3, 2019, appellant, Woolery Timber Management Inc. (WTM), filed an application seeking to recover $54,824.50 in costs and fees associated with this appeal pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2012).1 Familiarity with the Board’s original merits decision, issued on January 31, 2019, and the Board’s decision 1 Woolery also cites to 28 U.S.C. § 2412 as a basis for its EAJA application. That statutory provision authorizes courts, but not boards of contract appeals, to award fees and costs in certain circumstances. Moore Mill & Lumber Co., AGBCA 90-210-10, 91-1 BCA ¶ 23,484, at 117,805 (1990). It creates no statutory authority in the circumstances here. CBCA 6462-C(6031) 2 on reconsideration, issued on April 4, 2019, is presumed. See Woolery Timber Management Inc. v. Department of Agriculture, CBCA 6031, 19-1 BCA ¶ 37,245, reconsideration denied, CBCA 6031-R, slip op. (Apr. 4, 2019). We deny the application. Discussion Timeliness WTM’s EAJA petition was filed within thirty days of the Board’s April 4, 2019, decision on reconsideration. Under Board Rule 30, which implements EAJA, “[a] party may file an application for fees and other expenses only after the time to seek appellate review of a Board decision has expired” and must file its application “within 30 calendar days after that date.” 41 CFR 6101.30(b) (2018). Here, WTM elected to pursue this appeal under the Board’s small claims procedure, as permitted by section 7106(b) of the Contract Disputes Act (CDA), 41 U.S.C. § 7106(b), and implemented through Board Rule 52 (48 CFR 6101.52). A decision issued under that procedure is final and unappealable except for fraud, although the Board will allow a party to seek reconsideration of the decision under Board Rule 26 if, as happened in this case, the reconsideration request is filed within thirty days of the party’s receipt of the decision. Woolery Timber Management, slip op. at 2 (Apr. 4, 2019). Because appellate review “is essentially precluded” under the small claims procedure, an EAJA application is due “within 30 days of the Board’s final disposition.” Timber Rock Reforestation, AGBCA 97-117-10, 97-2 BCA ¶ 29,122, at 144,892, reconsideration denied, 98-1 BCA ¶ 29,360 (1997). WTM’s EAJA petition, filed within thirty days of the date upon which WTM received the reconsideration decision, was not too early and not too late. Review by the Panel Typically, under the Board’s rules, a panel of three judges, one of whom presides, is assigned to decide contract dispute cases. See Board Rule 1(d) (48 CFR 6101.1(d)). Under the small claims procedure that WTM elected, however, a single board judge, rather than a three-judge panel, decides the appeal. As one of our predecessor boards held, there is nothing inherent in the CDA’s small claims procedure that would limit the board’s “ability to consider an EAJA cost application relating to the case.” DRC Corp. v. Department of Commerce, GSBCA 15172-C(14919-COM), 00-1 BCA ¶ 30,841, at 152,228 n.1. Nevertheless, because entitlement to elect the small claims procedure arises out of the CDA, the board has historically not applied that election to EAJA claims, even when filed in a small claims procedure case. As a result, even though merits decisions in small claims procedure cases are issued by a single judge, decisions on EAJA claims in those cases have routinely involved the full three-judge panel. See, e.g., Michael C. Lam v. General Services Administration, CBCA 1472-C(1213), 09-2 BCA ¶ 34,227; NVT Technologies, Inc. v. CBCA 6462-C(6031) 3 General Services Administration, GSBCA 16195-C(16047), 03-2 BCA ¶ 32,401; Giancola & Associates v. General Services Administration, GSBCA 12305-C(12128), 93-3 BCA ¶ 26,146; Sixth & E Associates, GSBCA 9165-C(8914), 88-3 BCA ¶ 21,089.