DISMISSED WITHOUT PREJUDICE: October 16, 2007
CBCA 863-C(50)
TIDEWATER CONTRACTORS, INC.,
Appellant,
v.
DEPARTMENT OF TRANSPORTATION,
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.
Joseph A. Yazbeck, Jr., of Yazbeck, Cloran & Hanson, LLC, Portland, OR, counsel for Appellant.
David Sett, Division Counsel, Federal Highway Administration, Lakewood, CO, counsel for Respondent.
Before Board Judges STERN, FENNESSY, and SOMERS.
SOMERS, Board Judge.
Tidewater Contractors, Inc. (Tidewater) has filed an application for fees and expenses incurred in connection with an appeal arising from its contract to perform road work for the Department of Transportation, Federal Highway Administration (FHA).
Background
On March 22, 2007, the Board granted in part Tidewater’s appeal from an FHA contracting officer’s final decision denying its claim for an extension of the contract performance period. Tidewater Contractors, Inc. v. Department of Transportation, CBCA 50, 07-2 BCA ¶ 33,525. Tidewater filed a motion for reconsideration, seeking the remainder of its claim. On June 29, 2007, the Board granted Tidewater’s motion for _____________________________
2 CBCA 863-C(50)
reconsideration and amended the decision, granting the appeal in its entirety. Tidewater Contractors, Inc. v. Department of Transportation, CBCA 50-R, 07-2 BCA ¶ 33,618. On July 31, 2007, Tidewater filed an application for fees and other expenses under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2000). On September 14, 2007, respondent filed a response to Tidewater’s application. On October 2, 2007, Tidewater filed a supplement to its application.
Discussion
The pertinent section of the EAJA, 5 U.S.C. § 504(a)(2), and Board Rule 30 states that a party seeking an award of fees and expenses may submit an application no later than thirty calendar days after a final disposition in the underlying appeal. The Board’s decision becomes final (for the purposes of Rule 30) when it is not appealed to the United States Court of Appeals for the Federal Circuit within the time permitted for appeal, i.e., 120 days from the date of the party’s receipt of a copy of the decision. 41 U.S.C. § 607(g)(1994). The law is clear that a claim for fees under the EAJA is premature if made before a final adjudication of a case on the merits. Cogefar-Impresit, U.S.A., Inc., DOT BCA 2721E, 99-1 BCA ¶ 30,154, at 149,263 (1998)(citing Vidal v. USPS, 143 F.3d 1475 (Fed. Cir. 1998)). A party can demonstrate that it is the prevailing party only after the Board’s decision becomes final. Id. at 149,264. In addition, the Board cannot determine whether the position of the United States is substantially justified until its decision is final. Id. (citing Murphy Brothers, Inc., DOT BCA 1836, 87-1 BCA ¶ 19,500 (DOT BCA 1986). As noted above, the Board issued its decision and faxed a copy of the decision to the parties on June 29, 2007. Assuming that appellant received its copy of the decision on that date, the Board’s decision does not become final until October 29, 2007. Accordingly, the application is premature.
Decision
Tidewater’s application for the recovery of costs under the Equal Access to Justice Act is DISMISSED WITHOUT PREJUDICE.
JERI KAYLENE SOMERS
Board Judge
____________________________ _______________________________
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We concur:
JAMES L. STERN
Board Judge
EILEEN P. FENNESSY
Board Judge
This is a verbatim capture of the text layer of the Board's own document in Tidewater Contractors, Inc., CBCA 863-C(50). 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.