CBCA 7339-C(6433)

GRANTED: August 17, 2022 CBCA 7339-C(6433) 1425-1429 SNYDER REALTY, LLC, Applicant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Paul Jay Cohen of Cohen Marraccini, LLC, Southampton, PA, counsel for Applicant. Neil S. Deol, Office of General Counsel, Department of Veterans Affairs, Decatur, GA; and Donald Mobly, Office of General Counsel, Department of Veterans Affairs, Denver, CO, counsel for Respondent. Before Board Judges RUSSELL, ZISCHKAU, and O’ROURKE. O’ROURKE, Board Judge. Applicant, 1425-1429 Snyder Realty, LLC (Snyder), filed a timely request for attorney fees and costs pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2018), after the Board granted its appeal. See 1425-1429 Snyder Realty, LLC v. Department of Veterans Affairs, CBCA 6433, 22-1 BCA ¶ 38,049. Snyder incurred legal costs to litigate the appeal when the contracting officer failed to issue a final decision. The Department of Veterans Affairs (VA) does not contest Snyder’s eligibility under EAJA and offers no evidence that its position was substantially justified. Because the Board finds that Snyder’s claimed costs are reasonable and properly documented, we grant the request. CBCA 7339-C(6433) 2 Background Snyder entered into a contract to lease to the VA a fully built-out space for a residential rehabilitation treatment program for veterans in Philadelphia, Pennsylvania. The VA agreed to pay Snyder rent at the monthly rate of $36,677.08 for ten years, with two five- year option periods. During construction, on October 25, 2012, the parties executed a bilateral supplemental lease amendment (SLA), SLA0001, which gave the VA unlimited access to the basement for an additional $5000 per month. For four years, the VA paid Snyder consistent with the lease and the amendment. Then, on October 1, 2016, without any notice or explanation to Snyder, the VA stopped all payments, yet it continued to operate the rehabilitation center and enjoy unlimited access to the basement. According to testimony and documentation in the record, a new contracting officer took over the contract and determined that the amendment was redundant on the belief that the lease already provided access to the basement through specified clauses. For this reason, the contracting officer issued a unilateral modification rescinding SLA0001. About five months later, the VA resumed paying the monthly rent of $36,677.08, but stopped paying the additional $5000 for the basement access. On December 20, 2018, Snyder requested a contracting officer’s final decision on its claim for $130,000, which represented back rent of the $5000 not paid between November 2016 and December 2018. The claim also demanded $5000 per month, beginning January 1, 2019, for each month of unpaid rent going forward. 1425-1429 Snyder Realty, 22-1 BCA at 184,761-62. The contracting officer did not issue a final decision, so Snyder appealed to the Board the deemed denial of its claim. The parties unsuccessfully attempted to resolve the dispute through mediation, and the VA filed a motion for summary judgment, which the Board denied. After a full hearing on the matter, the Board granted Snyder’s claim for back rent and interest on February 7, 2022. 1425-1429 Snyder Realty, 22-1 BCA at 184,764. On February 28, 2022, Snyder submitted its application for attorney fees, paralegal fees, and costs in the amount of $16,945.50. In response, the VA did not contest Snyder’s eligibility for attorney fees and costs under EAJA and deferred to the Board’s judgment as to whether the respondent’s position was substantially justified. Absent an appeal to the Court of Appeals for the Federal Circuit, the Board’s decision became final 120 days later, on June 7, 2022. Discussion An applicant may file an application for fees and other expenses under EAJA. 5 U.S.C.