CBCA 5437-C(4068)

GRANTED: August 31, 2016 CBCA 5437-C(4068) SYSTEMS MANAGEMENT AND RESEARCH TECHNOLOGIES CORPORATION, Applicant, v. DEPARTMENT OF ENERGY, Respondent. Laura Shelkey Yeo of Law Office of Laura Shelkey Yeo, Arlington, VA, counsel for Applicant. James J. Jurich, Office of the General Counsel, Department of Energy, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), KULLBERG, and LESTER. LESTER, Board Judge. Pending before the Board is an application by Systems Management and Research Technologies Corporation (SMARTECH), filed on August 11, 2016, for $36,950 in attorney fees and $135.02 in costs pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2012). Discussion On April 6, 2016, the Board issued a decision in Systems Management & Research Technologies Corp. v. Department of Energy, CBCA 4068, 16-1 BCA ¶ 36,333, awarding CBCA 5437-C(4068) 2 SMARTECH $722,236.79, plus interest pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012), on its claim for payment of a “fixed fee” that respondent, the Department of Energy (DOE), had not fully paid, but denying SMARTECH’s claims for Prompt Payment Act (PPA) interest and a claim that DOE improperly diverted work away from SMARTECH’s contract. The time for appealing that decision expired on August 4, 2016 (120 days after the parties received it), without action by either SMARTECH or DOE, rendering that decision final. See 41 U.S.C. § 7107(a)(1) (Board decision is final except to the extent that a party appeals to the Court of Appeals for the Federal Circuit within 120 days of the decision’s receipt). We possess jurisdiction to entertain SMARTECH’s EAJA application because, in accordance with 5 U.S.C. § 504(a)(2), SMARTECH timely submitted it within the thirty-day period after our April 6, 2016, decision became final and unappealable. See, e.g., Middlesex Contractors & Riggers, Inc., IBCA 2625-F, 89-2 BCA ¶ 21,756, at 109,494 (“in the absence of special circumstances, the proper time for filing an EAJA application is within 30 days after the appeal period has expired, not before and not after those 30 days”); Benjamin S. Notkin & Associates, ASBCA 29336, 87-1 BCA ¶ 19,483, at 98,454-55 (1986) (Board possesses jurisdiction to entertain EAJA application if it is submitted within thirty days after 120-day period for appeal to the Federal Circuit has expired).1 “Under EAJA, ‘[a]n agency that conducts an adversary adjudication [such as a board of contract appeals] 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.’” Richlin Security Service Co. v. Chertoff, 553 U.S. 571, 574 (2008) (quoting 5 U.S.C. § 504(a)(1) (2006)); see 5 U.S.C. 504(b)(1)(C) (2012) (including adjudications of CDA appeals by agency boards of appeals in list of eligible EAJA award proceedings). For a corporation like SMARTECH to constitute a “party” for purposes of an EAJA award, it must have had a net worth not in excess of $7 million, and not more than 500 employees, when the Board proceeding was initiated. Texas Instruments Inc. v. United States, 991 F.2d 760, 766 (Fed. Cir. 1993) (citing 5 U.S.C. § 504(b)(1)(B) (1998)). Such a party becomes a “prevailing party” if “it is successful on any significant issue in the litigation that achieves some of the benefit sought.” Allen Ballew General Contractor, Inc. v. Department of Veterans Affairs, 1 “The 30-day filing period is a jurisdictional prerequisite to the awarding of an attorney fee.” J.M.T. Machine Co. v. United States, 826 F.2d 1042, 1047 (Fed. Cir. 1987); see Action on Smoking & Health v. Civil Aeronautics Board, 724 F.2d 211, 225 (D.C. Cir. 1984) (“thirty day time limitation . . . is a jurisdictional prerequisite to governmental liability”). CBCA 5437-C(4068) 3 CBCA 3-C(VABCA 6987E), et al., 07-2 BCA ¶ 33,653, at 166,635 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The EAJA applicant bears the burden of establishing that it is a “prevailing party” eligible for an EAJA award and, further, must allege that the Government’s position was not substantially justified. Davis v.