Dalton v. Gaffny Corp., 96-1331

• Decision Date: 13 February 1997
• Docket Number: No. 96-1331,96-1331
• Citation: 108 F.3d 1391
• Parties: 42 Cont.Cas.Fed. (CCH) P 77,208 NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. John H. DALTON, Secretary of the Navy, Appellant, v. GAFFNY CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1391

108 F.3d 1391

42 Cont.Cas.Fed. (CCH) P 77,208

NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

John H. DALTON, Secretary of the Navy, Appellant, v. GAFFNY CORPORATION, Appellee.

No. 96-1331.

United States Court of Appeals, Federal Circuit.

Feb. 13, 1997.

Before PLAGER, RADER, and SCHALL, Circuit Judges.

RADER, Circuit Judge.

Following litigation with the Department of the Navy (the Navy), Gaffny Corporation sought attorney fees. The Armed Services Board of Contract Appeals (Board) awarded fees on October 25, 1995, and the Navy's motion for reconsideration was denied on January 5, 1996. Because the record does not show substantial evidence that Michael Gaffny represented the corporation, this court reverses.

I

Gaffny Corporation won a contract to renovate a central heating plant at the Naval Air Station in Brunswick, Maine. Upon completion of the contract, Gaffny Corporation filed claims to increase the contract price above the original award and to excuse a two-hundred-two day delay. The contracting officer's final decision granted part of Gaffny Corporation's request.

On October 18, 1988, Gaffny Corporation appealed the denial of its claims to the Board. The appeal carried the signature "John J. Gaffny, President, Attorney Pro-Se." Due to a defect in that initial complaint, Gaffny Corporation submitted an additional appeal signed "Michael Gaffny, Vice President, Attorney Pro-Se." Throughout the subsequent proceedings, Michael Gaffny corresponded with the contracting officer and the Board. He generally signed the corporation's documents either "Michael Gaffny, Attorney Pro Se" or "Michael Gaffny, Vice President."

In December 1990, in the midst of the corporation's proceedings before the Board, Michael Gaffny entered the practice of law. He gave no notice to the Board of his new capacity to serve as an attorney. On one occasion, however, he signed a submission "Michael Gaffny, Esq." In a later submission, Mr. Gaffny signed "Michael Gaffny, Esq., Attorney Pro Se."

At a hearing in June 1991, John J. and Michael Gaffny represented Gaffny Corporation in their capacity as corporate officers. Michael Gaffny served as a principal witness for Gaffny Corporation. Despite questions during testimony about his educational background, Mr. Gaffny did not disclose his legal education. Mr. Gaffny signed the post-trial briefs "Michael F. Gaffny of Gaffny Corporation Contractors, Attorney Pro Se." By that time, however, Michael Gaffny had actually entered the private practice of law.

On November 23, 1993, the Board issued a decision in favor of Gaffny Corporation on the merits of the underlying contract action. Gaffny Corporation then submitted an application for attorney fees under the Equal Access to Justice Act (EAJA). 5 U.S.C. § 504 (1994). The attorney fees covered the services of Michael Gaffny, the corporation's vice-president and alleged corporate counsel. The Navy opposed such fees, claiming that Michael Gaffny had never claimed that he was acting as an attorney for Gaffny Corporation. The Board granted, in part, Gaffny Corporation's request and awarded fees. On May 3, 1996, the Navy...