CBCA 2472-C(1576)

TST Tallahassee, LLC

Oct 18, 2011Judge DrummondDEPARTMENT OF VETERANS AFFAIRS
Not published in the listingGranted in part

Key Facts

Appellant
TST Tallahassee, LLC
Respondent agency
DEPARTMENT OF VETERANS AFFAIRS
Judge
Drummond
Case number
CBCA 2472-C(1576)
Decided
Oct 18, 2011The decision states Oct 18, 2011 on its own face, which agrees with the listing.
Decision type
Not published in the listingThe Board's year tables for 2007 through 2014 carry no Type column, so no disposition was published for this decision. It is not missing data and nothing is inferred from the document.
Law firm for the appellant
Wallace, Jordan, Ratliff & Brandt, LLC
Outcome
Granted in part
The cost application is GRANTED IN PART, as revised.
Read from the shouted disposition line the Board prints above this decision's own date, and quoted from its operative sentence above. No model is involved.

Topics

EAJA and fees

Topics are derived from each decision's own text by keyword rules, not a classification by the Board. A decision matching several topics carries all of them, so topic counts sum above the number of decisions.

Appearances

For the appellant
Cecil H. Macoy, Jr. and Michael J. Brandt
Wallace, Jordan, Ratliff & Brandt, LLC
Birmingham, AL
For the respondent
Joylyn Winters
Office of the General Counsel, Department of Veterans Affairs
Washington, DC
Decision PDF (cbca.gov) Civilian Board of Contract Appeals, Contract Disputes Act casesThe Board's year listing this row was read fromThe decision document is hosted by the Board itself, so it is an official copy, and the Board's own Contract Disputes Act case listing is the citable source. The topics, the disposition and the appearances above are read deterministically from the decision's own words; no model is involved.

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Full Decision

Full text of the decision3 pages, 4,328 characters, read from the Board's own documentDecided Oct 18, 2011 on its own faceRespondent DEPARTMENT OF VETERANS AFFAIRS Decision documentOfficial source: Civilian Board of Contract Appeals, Contract Disputes Act cases

Authorities cited

2 authorities read from this decision's own text, grouped by the body of law each comes from. Select one to read it at its publisher.

Equal Access to Justice Act2

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Cases cited

2 cases this decision cites, grouped by the forum that decided each, in the order it first names them. 1 of them opens at a publisher; the rest are shown without a link because no published copy of them was confirmed.

Supreme Court1
Richlin Security Service Company v. Chertoff553 U. S. 571(2008)

Read from the decision's own words with no model involved: the party names and the citation are as the decision prints them. A case cited to a reporter is not held here, so where it opens was confirmed one citation at a time against an outside database and is labelled as leaving this app; a citation that database could not place, or matched to more than one case, is shown without a link rather than guessed at. A case named without a citation of any kind carries nothing to read, so it is left out rather than guessed at, and this is a floor on what the decision cites.

GRANTED IN PART: October 18, 2011

CBCA 2472-C(1576)

TST TALLAHASSEE, LLC,

Appellant,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

The case caption as the decision prints it. Every word is kept; the rule the Board draws around it is not text, so it is not repeated here.

Cecil H. Macoy, Jr. and Michael J. Brandt of Wallace, Jordan, Ratliff & Brandt, LLC, Birmingham, AL, counsel for Appellant.

Joylyn Winters, Office of the General Counsel, Department of Veterans Affairs, Washington, DC, counsel for Respondent.

Before Board Judges BORWICK, McCANN, and DRUMMOND.

DRUMMOND, Board Judge.

TST Tallahassee, LLC (TST) has submitted an application for reimbursement of fees and costs under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2006), incurred in connection with its successful prosecution of the captioned appeal. Initially, TST sought $56,018.75 in attorneys’ and paralegal fees and $519.34 in other expenses, for a total of $56,538.09. The Department of Veterans Affairs (VA) has expressed no objection to the award.

2 CBCA 2472-C(1576)

During a conference call held in September 2011, TST, through its counsel, withdrew the request for $175 (0.5 attorney hours on June 11, 2010) for “Letter from T. Hydler re janitorial services.” This work is unrelated to this appeal. As amended, TST’s application seeks a total of $56,363.09 in attorneys’ and paralegal fees and expenses. The VA has no objection to the application as amended.

TST’s amended application seeks reimbursement for 191.4 attorney hours (6.5 of which predate issuance of the contracting officer’s February 6, 2009, final decision) at rates ranging from $185 to $350 per hour.

The starting point for an EAJA claim is receipt of the contracting officer’s final decision. Levernier Construction, Inc. v. United States, 947 F.2d 497, 499-501 (Fed. Cir. 1991); Trailboss Enterprises, Inc., 5454E, et al., 00-1 BCA ¶ 30,800. Accordingly, the attorney fees incurred before February 6, 2009, are not recoverable. We reduce the hours claimed by 6.5 hours to a total of 184.9 hours.

TST states the requested attorneys’ fees are justified because: The hourly rates charged are within market norms for the geographical location and relevant legal market of counsel, the attorneys’ skill and experience levels and professional standing and reputations, and the scope, nature, complexity, and significance of the representation.

The EAJA provision regarding the recovery of fees and other expenses associated with an agency’s conduct of an adversary adjudication is clear. It reads: [A]ttorney or agent fees shall not be awarded in excess of $125 per hour unless the agency determines by regulation that an increase in the cost of living or a special factor such as the limited availability of qualified attorneys or agents for the proceedings involved justifies a higher fee.

5 U.S.C. § 504(b)(1)(A)(ii).

While a judicial tribunal is free to make the determination that a fee in excess of the statutory rate of $125 per hour is justified by an increase in the cost of living or a special factor, an administrative tribunal, such as ours, cannot do so in the absence of an agency regulation addressing that issue. NVT Technologies, Inc. v. General Services Administration, GSBCA 16195-C(16047), 03-2 BCA ¶ 32,401. TST has referred us to no agency regulation, nor are we aware of any VA regulation, which determines that an increase in the cost of living or some special factor justifies award of a fee based upon an hourly rate greater than

3 CBCA 2472-C(1576)

$125. In the absence of such a regulation, we decline to make an award at a rate greater than the statutory rate. Accordingly, TST is entitled to recover 184.9 attorney hours at $125 per hour for a total of $23,112.50.

Fees for paralegals are recoverable under the EAJA. Richlin Security Service Company v. Chertoff, 553 U. S. 571 (2008); Spectrum Leasing Corp. v. General Services Administration, GSBCA 10902-C(7347), et al., 93-1 BCA ¶ 25,317, at 126,153. TST seeks to recover for 1.3 hours expended by paralegals at an hourly rate of $115. Accordingly, TST is entitled to recover 1.3 paralegal hours at $115 per hour for a total of $149.50. Finally, TST is entitled to reimbursement of its expenses in the amount of $519.34.

Decision

The cost application is GRANTED IN PART, as revised. TST is awarded fees and expenses totaling $23,781.34.

JEROME M. DRUMMOND

Board Judge

We concur:

ANTHONY S. BORWICK

Board Judge

R. ANTHONY McCANN

Board Judge

This is a verbatim capture of the text layer of the Board's own document in TST Tallahassee, LLC, CBCA 2472-C(1576). Nothing is summarized or reworded, and the sections run in the order the Board wrote them. What the page shows and the text does not repeat is the pagination furniture: the page numbers and the rules the Board draws around its caption and under its signatures. The signatures are set back into the columns the Board prints them in, each judge under the name he or she signed, and the typed copy of that name the page carries beneath each signature is not repeated.

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