ASBCA 63348

ARMED SERVICES BOARD OF CONTRACT APPEALS Application Under the Equal Access to ) Justice Act of -- ) ) CB Portable Toilet Rental and Services ) ASBCA No. 63449-EAJA ) Under Contract No. N00189-22-P-0368 ) APPEARANCE FOR THE APPELLANT: Mr. Chizoma Onyems President APPEARANCES FOR THE GOVERNMENT: Allison M. McDade, Esq. Navy Chief Trial Attorney James Vaiden, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE MELNICK ON APPELLANT’S EQUAL ACCESS TO JUSTICE APPLICATION Mr. Chizoma Onyems, sole owner of CB Portable Toilet Rental and Services (CB Portable), seeks to recover fees and costs under the Equal Access to Justice Act (EAJA), 5 U.S.C § 504, after CB Portable’s appeal was sustained and it was awarded compensation after submissions without a hearing under Board Rule 11. CB Portable Toilet Rental & Servs., ASBCA No. 63449, 23-1 BCA ¶ 38,421 (CB Portable I) (entitlement); CB Portable Toilet Rental & Servs., ASBCA No. 63449, 24-1 BCA ¶ 38,664 (CB Portable II) (quantum). Familiarity with these prior decisions is presumed. Mr. Onyems has not shown he is a prevailing party qualified to submit an EAJA application. If the application is more properly construed as coming from CB Portable, it is untimely and we lack jurisdiction to entertain it. BACKGROUND On May 27, 2022, the Navy awarded Contract No. N00189-22-P-0368 to CB Portable for the pickup, drop off, and service of portable toilets at various locations at Camp LeJeune, North Carolina at a total price of $145,230 (R4, tabs 1 at 1, 9 at 106- 12). The contract’s period of performance consisted of five 12-month ordering periods running from June 13, 2022 through June 12, 2023 (R4, tab 9 at 114). On August 19, 2022, CB Portable submitted a certified claim to the Navy’s contracting officer (CO) seeking compensation for 26 categories of alleged costs totaling $398,678.05 (R4, tab 31 at 242, 246, 248-51). CB Portable submitted an amended claim for an additional $52,449.60 for delay costs it incurred between August 22 and September 18, 2022 (R4, tab 35). On October 10, 2022, CB Portable submitted a final amended claim seeking costs for four new categories in addition to the 26 from its initial claim for a grand total of $489,567.65 (R4, tab 42 at 361, 372). The CO issued a final decision (COFD) on November 4, 2022, denying CB Portable’s claim (R4, tab 1). CB Portable appealed the COFD to the Board, and on August 16, 2023, the Board sustained the appeal. CB Portable I, 23-1 BCA ¶ 38,421 at 186,716-17. CB Portable submitted a request for reimbursement of attorney fees and expenses totaling $185,500 pursuant to the EAJA on April 20, 2024. By Order dated August 2, 2024, the Board denied CB Portable’s EAJA request as premature because the quantum phase of the appeal was still pending and advised CB Portable that “[i]f appellant subsequently qualifies as a prevailing party otherwise eligible under the EAJA, appellant may file a proper application” (Bd. Order dtd. August 2, 2024). On August 26, 2024, after the quantum phase of the proceedings, the Board awarded CB Portable $16,150 plus interest. CB Portable II, 24-1 BCA ¶ 38,664 at 187,952. Mr. Onyems, appealed to the United States Court of Appeals for the Federal Circuit in his own personal capacity on August 29, 2024 (answer ¶ 41). The Federal Circuit dismissed Mr. Onyems’ appeal for lack of jurisdiction on June 6, 2025, finding that he was not a “contractor” within the meaning of the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. Onyems v. Dep’t of the Navy, 2025 WL 1603783 at *3 (Fed. Cir. June 6, 2025). The Federal Circuit denied Mr. Onyems’ subsequent petition for a panel rehearing on June 30, 2025 (Fed. Cir. Order dtd. June 30, 2025). On August 1, 2025, Mr. Onyems submitted an “Invoice for EAJA” to the Board seeking a total of $361,975.37 for various litigation fees allegedly incurred during the course of CB Portable’s appeal (app. EAJA invoice). Mr. Onyems is not an attorney and has represented CB Portable pro se throughout its appeals. DECISION Addendum 1 to the Board’s Rules, Equal Access to Justice Act Procedures, implements the EAJA’s statutory requirements and the Board’s procedures pertaining to EAJA proceedings.