CBCA 7858-C(5997

GRANTED IN PART: October 25, 2023 CBCA 7858-C(5997, 6464) SBC ARCHWAY HELENA, LLC, Applicant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Diana Parks and Hadeel N. Masseoud of Curran Legal Services Group, Inc., Johns Creek, GA, counsel for Applicant. Justin S. Hawkins, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges VERGILIO, KULLBERG, and CHADWICK. VERGILIO, Board Judge. The applicant, SBC Archway Helena, LLC, timely seeks to recover attorney fees and expenses under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2018), following the Board’s decision granting in part its appeals. SBC Archway Helena LLC v. General Services Administration, CBCA 5997, 6464, 23-1 BCA ¶ 38,298. The General Services Administration (agency) requests that the Board deny relief, asserting that the applicant was not a prevailing party and that the agency’s positions at the agency level and throughout the course of litigation were reasonable and substantially justified. Further, the agency contends CBCA 7858-C(5997, 6464) 2 that the applicant has failed to support its costs, particularly that it has not associated any costs with alleged improper agency actions and inactions. The Board concludes that the applicant was the prevailing party, as it obtained some of the relief sought. The agency’s position was not substantially justified. Throughout, the agency maintained that the applicant was entitled to zero relief. Its position that the applicant simply sought lost rent was inconsistent with the claims and the complaint. Its position that the applicant was responsible for delay for the entire period asserted was not factually supportable or reasonable. The agency’s actions and inactions clearly were the cause of a delayed issuance of the notice to proceed such that the applicant could not move ahead with construction and begin receiving rent. On the application, the Board reduces the requested recovery initially to actual, potentially compensable costs and then further to reflect reasonable costs for the benefit achieved, which was substantially less than the amount in the claims and the complaint. Background On January 4, 2018, the applicant, as lessor, received the initial decision by a contracting officer, who found the applicant responsible for all asserted delay and denied the claim. In the underlying appeals, the applicant initially sought its uncompensated costs said to be $276,871.95, later modified to $349,714.31, and finally changed to $395,474.58, ultimately based on 277 days of alleged Government delays for two distinct periods of 234 and forty-three days. Throughout (during performance, in response to the claims, and before the Board), the agency asserted that the applicant was entitled to no relief because it was seeking rent and because it was responsible for the delay (a concurrent or sole cause of delay). In denying an agency motion for summary judgment, the Board determined that the applicant was not seeking rent; on the merits, the applicant was to recover for 138 days of Government delay (that is, without concurrent delay by the applicant) during the first period and no relief for the second period. Various costs were factually and/or legally not proven or available. The applicant received $59,215.29, plus interest. The amount (pre-interest) is just under fifteen percent of the quantum and just under one-half of the delay days sought in the final claim. The applicant seeks $95,096.15: $83,811.25 in legal fees capped at $125 per hour (the maximum rate of recovery) and $11,284.90 in expenses. The applicant provided accountings of its legal billings, identifying the general work performed, the hours and rates billed, and the expenses incurred. The applicant seeks payment for 299.07 hours for the managing partner and 371.43 hours for an associate of the law firm. The expenses are itemized with receipts or explanations. The expenses include $578.60 for plane tickets to attend the scheduled hearing on the merits; however, the hearing CBCA 7858-C(5997, 6464) 3 was held virtually. The itemization specifies that the airline provided a credit to the accounts. The record does not establish that the credit was lost or is a true cost of the applicant. The record fails to support some of the hours claimed as compensable under the application.