CBCA 7187-C(5089

GRANTED IN PART: November 9, 2023 CBCA 7187-C(5089, 5619) MICHAEL JOHNSON LOGGING, Applicant, v. DEPARTMENT OF AGRICULTURE, Respondent. Joseph Scuderi of Scuderi Law Offices, P.S., Olympia, WA, counsel for Applicant. Benjamin R. Hartman, Office of the General Counsel, Department of Agriculture, Portland, OR, counsel for Respondent. Before Board Judges SHERIDAN, ZISCHKAU, and O’ROURKE. O’ROURKE, Board Judge. Applicant, Michael Johnson Logging (MJL), filed an application under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2018), seeking attorney fees and costs in the amount of $203,575.16. We grant the application in the amount of $10,632.48, having determined that only a portion of the United States Department of Agriculture’s (USDA or agency) position was not substantially justified. Background The Board presumes familiarity with the facts of Michael Johnson Logging v. Department of Agriculture, CBCA 5089, et al., 21-1 BCA ¶ 37,904, aff’d sub nom. Michael Johnson Logging v. Secretary of Agriculture, No. 2022-1210, 2022 WL 17494846 (Fed. Cir. CBCA 7187-C(5089, 5619) 2 Dec. 8, 2022). The Board found “that Johnson failed to establish that USDA breached the implied duty of good faith and fair dealing in its administration of the contract, precluding any recovery for lost productivity, performance suspensions, use of inadequate skid trails, and equipment damage.” Id. at 184,080. But the Board also found “that USDA did breach certain express terms of the contract and, therefore, grant[ed] in part Johnson’s claim in CBCA 5089 and award[ed] damages in the amount of $89,425.” Id. On August 13, 2021, MJL filed a premature request for attorney fees and costs under EAJA after the Board partially granted its appeal. On August 16, 2021, the matter was docketed as CBCA 7187-C(5089, 5619). On August 25, 2021, the Board issued an order deferring action on the application until the time to seek appellate review of the Board’s decision in the underlying appeals had expired. MJL subsequently appealed the Board’s decision to the Court of Appeals for the Federal Circuit, and on December 8, 2022, the Court affirmed the Board’s decision. MJL’s request for attorney fees and costs is now ripe for consideration. In addition to its application, MJL attached Exhibit A, titled “Detail Transaction File List.” Exhibit A is a detailed report showing fees and costs in the total amount of $203,575.16. The report categorized expenses according to transaction date, initials of the person doing the task, rate, hours to bill, amount, and a brief description of the task. On April 7, 2023, USDA filed an objection to applicant’s fee and cost application. USDA argued that (1) MJL’s application is facially inadequate; (2) the agency’s position was substantially justified; (3) even if the agency’s position was not substantially justified, the Board should disallow expenses that (a) were incurred outside the appropriate time frame, (b) exceed the statutory cap on hourly rates, (c) were incurred performing work not relevant to the sole issue on which MJL prevailed, or (d) lack adequate documentation to support an award; and (4) any award should be reduced proportionate to MJL’s limited success. On May 5, 2023, the Board issued an order asking MJL to submit additional briefing detailing the requested fees, such as which charges relate to each claim and element of the case. On June 5, 2023, MJL submitted a supplemental application for attorney fees and costs in a total amount of $9780.69, arguing that an 8% prorate should be applied to total billable hours and costs because MJL’s recovery was 8% of the dollar value of its claims. On June 7, 2023, USDA submitted a reply in which it argued that (1) MJL still failed to refute USDA’s argument that it was substantially justified to contest the company’s $1,112,417 claim and (2) even if the agency was not substantially justified, MJL had failed to cure deficiencies relating to disallowed costs in its application. CBCA 7187-C(5089, 5619) 3 Discussion The purpose of EAJA is “to eliminate legal expense as a barrier to challenges of unreasonable governmental action.” Ellis v. United States, 711 F.2d 1571, 1576 (Fed. Cir. 1983).