______________________________________ GRANTED IN PART: September 25, 1992 ______________________________________ GSBCA 11778-C(8720, et al.) GILROY-SIMS & ASSOCIATES, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Robert D. Wallick, Agnes P. Dover, and Jerald S. Howe, Jr., of Steptoe & Johnson, Washington, DC, counsel for Appellant. Telo M. Braswell, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, Acting Chief Judge, BORWICK, and NEILL. BORWICK, Board Judge. Background Gilroy-Sims and Associates (applicant) has filed a timely application under the Equal Access to Justice Act (EAJA), 5 U.S.C. 504 (1988), as prevailing party in prosecuting its Contract Disputes Act appeals. It seeks a total of $105,760.45. The application covers fees and expenses incurred from October 1986 (the inception of the litigation) to May 8, 1992 (the filing of the applicant's reply to respondent's objection to the EAJA application). We conclude that Gilroy-Sims is a prevailing party, that the position of the Government on entitlement and quantum was not substantially justified, and that Gilroy-Sims meets the EAJA financial criteria for eligibility. Gilroy-Sims sought reimbursement under EAJA for fees and expenses associated with defending against the Government's appeal to the United States Court of Appeals for the Federal Circuit. We lack jurisdiction to award those costs, and have deducted from the award those fees and expenses identified in Gilroy-Sim's supporting schedules and relating to the appeal to the circuit. We make minor deductions for a photocopying expense we concluded was unreasonable. We award appellant $93,580.55 Applicant claims that it incurred 1003.50 hours of attorney and paralegal service and expenses at a total cost of $158,496.10. Supplemental EAJA Application, Exhibit G. Applicant seeks reimbursement for 966.25 attorney hours and 28 paralegal hours spent on the litigation from October 1983 through March 26, 1992. As stated in the application: "[T]he attorneys fees and expenses were incurred in, inter alia:. . . (8) defending the Board's entitlement decision upon appeal [to the United States Court of Appeals for the Federal Circuit]." EAJA Application at 15. Applicant claims it incurred direct expenses of $2,748.85. Those direct expenses include $221.47 for the cost of a hotel room in St. Louis for appellant's counsel during counsel's discovery trip; $2,202.90 for deposition transcripts; and $324.48 for counsel's hotel bill in St. Louis during the quantum trial. EAJA Application, Exhibit E. Applicant seeks $9,600 as expert witness fees. Id. It seeks reimbursement for attorney expenses incurred between October of 1986 through March 26, 1992. These expenses are for postage, long distance telephone calls, duplication, deposition and hearing transcripts, secretarial overtime, and messenger service during that period. The expenses total $18,970.93. In a supplemental schedule, filed along with applicant's reply to respondent's objection, applicant seeks expenses, related to the EAJA application, for March 1992, not reflected in its earlier submission. These expenses include $191.80 for duplication, $175.65 for computerized legal research, $29.40 for messengers, $6.78 for postage, and $4.54 for long distance telephone calls. Supplemental EAJA Application, Exhibit G. Applicant incurred $52.50 for legal services in April 1992, consisting of counsel's review of respondent's objection, and $1,890 for the costs, incurred in May 1992, of counsel's response to respondent's objection. Id. After application of the $75 per hour EAJA cap on counsel's fees, applicant seeks $105,760.45. In the underlying litigation, Gilroy-Sims, the Government's lessor for a building in St. Louis, Missouri, sought compensation under the overtime services clause of the lease after the Government's takeover of the operation of the building. Entitlement was vigorously contested by respondent. We held a five-day entitlement hearing. We concluded that Gilroy-Sims was entitled to payment under that clause because of the unique way the lease had been negotiated and administered. Respondent filed for reconsideration and sought reopening of the record to counter testimony which was unrebutted at the hearing on the merits. We held an oral argument on the reconsideration lasting a little over one hour. We refused to reopen the record and denied reconsideration. Gilroy-Sims & Associates, GSBCA 8720, et al., 88-1 BCA 20,459 (1987), reconsideration den., 88-3 BCA 21,085, aff'd, 878 F.2d 1447 (Fed. Cir. 1989). After completion of entitlement proceedings and an appeal to the United States Court of Appeals for the Federal Circuit, the parties litigated quantum, which again was vigorously contested. Gilroy-Sims sought approximately $1,400,000. Respondent filed a counterclaim seeking return of $987,000 paid during the lease term. Alternatively, respondent argued that should the counterclaim not be granted, appellant was entitled to a minimum of $9,504 or a maximum of $160,459. Also, during quantum proceedings, respondent sought to introduce evidence in an attempt to collaterally attack the entitlement decision. Gilroy- Sims filed a motion in limine which we granted. Gilroy-Sims & Associates, GSBCA 8720, et al., 90-3 BCA 23,132. We held a three-day quantum hearing, after which we awarded Gilroy-Sims $218,002.92. Gilroy-Sims & Associates, GSBCA 8720, et al., 91-2 BCA 24,005. Upon reconsideration, we increased quantum to $283,110.72. Gilroy-Sims and Associates, GSBCA 8720, et al., 92-1 BCA 24,559 (1991). Discussion EAJA provides in pertinent part: An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified. 5 U.S.C. 504(a)(1) (1988). A party is defined, so far as pertinent to this case, as any partnership whose net worth did not exceed seven million dollars at the inception of the adversary adjudication and who employed not more than 500 employees at the inception of the adjudication. 5 U.S.C. 504(b)(1)(B) (1988). An adversary adjudication is defined, so far as pertinent to this case, as "any appeal of a decision made pursuant to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. [ ] 605) before an agency board of contract appeals as provided in section 8 of that Act (41 U.S.C. [ ] 607." 5 U.S.C. 504(b)(1)(C) (1988). There is no dispute that Gilroy-Sims meets EAJA's financial criteria. The net worth of the partnership was in deficit position during the relevant time frame. EAJA Application, Exhibit A. In its objection to the application, respondent argues that its position was substantially justified. It argues that on the entitlement issue, the Board found that there was an "oral agreement" which changed the terms of the lease, and that "the Government official with whom the alleged oral agreement was made denied its existence." To defeat appellant's EAJA claim, respondent raises an argument we explicitly rejected during quantum proceedings: that there was an oral agreement superseding the "plain meaning" of the lease. Respondent's Objection at 6. We found no such oral agreement; rather we construed the written lease in light of pre-lease negotiations between the parties and the post-lease administration. See Gilroy-Sims, 90-3 BCA at 116,147. In referencing the "Government official" denying the existence of the oral agreement, respondent relies on evidence we refused to admit into the record on reconsideration. See Gilroy-Sims, GSBCA 8720-R, et al., 88-3 BCA 21,085. We noted in that opinion: Respondent's counsel admitted at oral argument [on reconsideration] that the Government's negotiators were alive; they were available for hearing had respondent chosen to call them to rebut appellant's testimony. However respondent did not so choose. Id., at 106,453. The record made in the case demonstrates that respondent's position on entitlement was not substantially justified. Not only did respondent fail to call witnesses to rebut appellant's interpretation of the lease, contemporaneous internal memoranda of respondent supported that interpretation. See Gilroy-Sims, 88-1 BCA at 103,466-67 (1987). (referencing two internal memoranda, Appeal File, Exhibits 49, 56). Thus we cannot agree that the position of the Government was substantially justified either during the litigation or at the agency level before the inception of the litigation. Respondent also argues that on quantum appellant was not the prevailing party because the Board did not give appellant an award equal or near the full amount sought. Respondent argued that appellant was owed, at best (from its viewpoint) $9,504, a nominal amount in relation to the claim. Appellant did, however, receive a substantial award of $283,110.72, not including interest. When, as here, the Government forces an appellant to litigate to obtain "any relief whatsoever" the position of the Government is not substantially justified. DWS Inc., ASBCA 29742, et al., 91-2 BCA 23,905, at 119,756 (1990). In essence, respondent here was trying to deny appellant substantive relief in relation to the size of its claim. We cannot say that respondent's position on quantum was substantially justified.[foot #] 1 ----------- FOOTNOTE BEGINS --------- [foot #] 1 Earlier, we concluded that respondent's position in filing a counterclaim was substantially justified looking to the contracting officer's assertion rather than the litigating position of the agency. Gilroy-Sims & Associates, GSBCA 11501- ________________________ C(10504), slip op. at 2-3 (June 18, 1992), appeal filed, No. 92- ____________ 1439 Fed. Cir. July 21, 1992) The counterclaim, however, was dismissed before the quantum hearing. Gilroy-Sims, 90-3 BCA ___________ 23,132. Respondent, even having lost that round, persisted in forcing appellant to litigate to obtain relief. ----------- FOOTNOTE ENDS ----------- Respondent also maintains that Gilroy-Sims' application "does not contain sufficient documentation to verify the costs allegedly incurred." Respondent's Objection at 7. Respondent requests an audit to verify expenses. Respondent, however, does not claim that on its face the amount of hours spent by Gilroy- Sims' attorneys litigating the case was unreasonable or that the expenses incurred were unreasonable. EAJA applications are not to be turned into second major litigation. American Power Inc., GSBCA 10558-C(8752), 91-2 BCA 23,766, at 119,052. We thus decline to order an audit, with subsequent litigation about the audit. We have, however, made independent examination of the schedules submitted by Gilroy-Sims in its application. Gilroy- Sims seeks reimbursement from this Board under EAJA for legal fees and expenses incurred in handling the appeal (filed by the Government) of the entitlement decision in the United States Court of Appeals for the Federal Circuit. Although not raised by respondent, the question exists as to the Board's jurisdiction to grant EAJA fees and expenses for costs incurred in appellate review of our decisions. EAJA, as a waiver of sovereign immunity, must be strictly construed. Levernier Construction Inc. v. United States, 947 F.2d 497, 502 (Fed. Cir. 1991). Our authority to grant EAJA awards is limited to "adversary adjudications", 5 U.S.C. 504(a)(1) (1988), which is further defined as "any appeal . . . before an agency board of contract appeals as provided in section 8 of [the CDA]." 5 U.S.C. 504(b)(1)(C) (1988). Judicial review of decisions by administrative tribunals is considered a "civil action" reimbursable under EAJA provisions codified at 28 U.S.C. 2412(d)(1)(A) (1988). Gavette v. Office of Personnel Management, 808 F.2d 1456, 1462 (Fed. Cir. 1986).[foot #] 2 The United States Court of Appeals for the Federal Circuit has indicated that it has exclusive jurisdiction over applications under the EAJA to reimburse parties for the costs and expenses incurred in judicial review of agency proceedings: [W]e have consistently held that an EAJA application is to be filed with this court. . . . . We conclude that a request for attorney fees under the Back Pay Act for services rendered in judicial proceedings must, as in the case of an EAJA request, be directed to this court. ----------- FOOTNOTE BEGINS --------- [foot #] 2 The EAJA in Title 5, United States Code, did not include in the definition the review of Board decisions by the United States Court of Appeals for the Federal Circuit conferred by the CDA, 41 U.S.C. 607(g)(1) (1988). ----------- FOOTNOTE ENDS ----------- Phillips v. General Services Administration, 924 F.2d 1577, 1581 (Fed. Cir. 1991)(citations omitted, emphasis supplied). We thus lack jurisdiction to make an award to Gilroy-Sims for the legal fees and expenses attendant to handling the appeal before the United States Court of Appeals for the Federal Circuit. We have examined the schedules attached to the application and have found 126 hours of attorney time ($9,450 at $75 per hour) and 8.25 hours of paralegal time ($330 at $40 per hour) devoted to the appeal. We will adjust the award to ensure that fees and expenses for the appeal to the court of appeals are not reflected in the award. EAJA caps the attorney rate at $75 per hour unless "a special factor, such as limited availability of qualified attorneys," justifies a higher fee. 5 U.S.C. 504(b)(1)(A) (1988). Gilroy-Sims seeks a rate above the cap based on a special factor. EAJA Application at 17 n. 7. To qualify under the special factor exception to the cap, an applicant must show that distinctive knowledge or specialized skill--beyond that possessed by the competent practitioner--was needed for the litigation. It is not enough to demonstrate that the case was factually complex or involved novel legal issues. American Power Inc., 91-2 BCA 23,766, at 119,047. While Gilroy-Sims attorneys tried the case creatively and skillfully, we cannot say the litigation required distinctive knowledge sufficient to invoke the exception to the cap. While presenting unique facts, the case was a garden-variety lease dispute involving settled principles of contract interpretation. Thus, we do not grant Gilroy-Sims an award above the $75 per hour cap. Applicant's attorneys spent 849.50 hours on the litigation before the board (including preparing the fee application and replying to respondent's objections), but not including the appeal to the court of appeals. The hours of attorney and paralegal time it took to bring this case to conclusion is reasonable. In this case respondent used scorched earth litigation tactics, objecting at every turn to appellant's attempts to obtain relief. Respondent forced appellant to bear the expense of two hearings, one on entitlement and one on quantum; to defeat a motion for reconsideration and a counterclaim; and to beat back an improper collateral attack on the entitlement ruling in the middle of quantum proceedings. At $75 per hour, applicant is entitled to $63,712.50 in attorney fees. The paralegals spent 19.75 hours on proceedings before the board. At $40 per hour, applicant is entitled to an award of $790. The award for applicant's attorney fees (including paralegal) is $64,502.50. We grant applicant expert witness fees of $9,600, and direct expenses of $2,748.85, for a total direct expense of $12,348.85. Those expenses were incurred in the Board proceeding. In addition, applicant's counsel incurred reasonable direct expenses of $16,513.03 for the Board proceeding, which we also award. Applicant's attorneys claim expenses incurred in March and April 1992 totalling $408.17. Included in that figure is $191.80 for duplicating. Assuming a photocopying cost of $.10 per page, that would mean that applicant's attorneys photocopied 1,918 pages. Since all that remained of the litigation in March and April was preparation of the EAJA application, applicant has not demonstrated the necessity for such extensive duplication. We deny the claim of $191.80, but award the remainder--$216.17. The total awarded is $93,580.55. Decision Gilroy-Sims' application under the EAJA is GRANTED IN PART. Gilroy-Sims is awarded $93,580.55. ________________________________ ANTHONY S. BORWICK Board Judge We concur: _____________________________ _____________________________ VINCENT A. LaBELLA EDWIN B. NEILL Acting Chief Board Judge Board Judge