Vibra-Tech Engineers, Inc. v. U.S., VIBRA-TECH

• Decision Date: 31 March 1986
• Docket Number: No. 84-1365,VIBRA-TECH,84-1365
• Parties: , 16 Envtl. L. Rep. 20,765, 33 Cont.Cas.Fed. (CCH) 74,322 ENGINEERS, INC., Plaintiff-Appellee, v. UNITED STATES of America: U.S. Department of Interior: U.S. Bureau of Mines: R.J. Simonich, Contracting Officer, U.S. Bureau of Mines, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1416

787 F.2d 1416

54 USLW 2558, 16 Envtl. L. Rep. 20,765,

33 Cont.Cas.Fed. (CCH) 74,322

VIBRA-TECH ENGINEERS, INC., Plaintiff-Appellee, v. UNITED STATES of America: U.S. Department of Interior U.S. Bureau of Mines: R.J. Simonich, Contracting Officer, U.S. Bureau of Mines Defendants-Appellants.

No. 84-1365.

United States Court of Appeals Tenth Circuit.

March 31, 1986.

Harold J. Krent (Richard K. Willard, Acting Asst. Atty. Gen., Anthony J. Steinmeyer, Dept. of Justice, Washington, D.C., Robert N. Miller, U.S. Atty., Denver, Colo., with him on brief), for defendants-appellants.

Dennis J. Riley (Peter N. Weiss, Spriggs, Bode & Hollingsworth, Washington, D.C., George W. Mueller, Jr., Burns, Wall, Smith & Mueller, Denver, Colo., with him on brief), Spriggs, Bode & Hollingsworth, Washington, D.C., for plaintiff-appellee.

Before BARRETT, LOGAN and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff-Appellee Vibra-Tech Engineers, Inc. (Vibra-Tech) was awarded approximately $60,000.00 in attorneys' fees by the district court pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412. Defendant-appellant United States appeals this award of attorneys' fees, claiming that the position of the government was substantially justified, that even if an award of attorneys' fees is proper, such award should not include fees incurred in representation before the General Accounting Office (GAO), and that any award should be limited to the $75 per hour rate set forth in the EAJA. We affirm the district court's award of attorneys' fees but reduce the award for time expended in presenting its case to the GAO and limit the hourly rate to $75 per hour.

On May 12, 1982, the Department of the Interior issued a request for proposals to conduct a geologic study of vibrations from surface mine blasting. Vibra-Tech submitted a proposal and was selected as one of the five firms in the competitive range. Initial recommendations stated that the contract should be awarded to another firm, STS Consultants, Ltd. (STS), due to "greater value" to the government. However, upon review, it was decided that the award to STS was improperly based on cost and that the award should go to Vibra-Tech because of its superior technical rating. STS protested this decision to the GAO. The Interior Department again changed its mind and awarded the contract to STS. Vibra-Tech protested to the GAO and later filed for a temporary restraining order and permanent injunctive and declaratory relief in federal district court. The district court entered a stipulated preliminary injunction but postponed hearings on the permanent injunction pending a decision by the GAO.

The GAO rendered its decision on May 23, 1983, and affirmed the award to STS. Thereafter, the district court considered the GAO report, rejected the agency's conclusions, and ruled in favor of Vibra-Tech. By order dated July 28, 1983, the district court instructed the Department of Interior to terminate its contract with STS and to reinstate the contract with Vibra-Tech. The government filed various post-judgment motions, all of which were denied.

On August 26, 1983, Vibra-Tech moved for attorneys' fees and expenses incurred at the district court and the GAO proceedings. It requested approximately $36,490 at rates ranging between $75 and $45 per hour. ¹ A second application was filed on December 6, 1983, for fees and expenses incurred in responding to the post-judgment motions. Approximately $24,000 was requested for this work, at rates ranging between $140 and $60 per hour. On January 16, 1984, the district court awarded Vibra-Tech the expenses and fees it requested in both applications.

A trial judge's ruling on an award of attorneys' fees pursuant to EAJA is to be modified only when there is a showing of an abuse of discretion. Under this standard, the trial court's conclusions of law are reviewable on a de novo basis, and its findings of fact are to be reversed only if clearly erroneous. United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1486 (10th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 105, 83 L.Ed.2d 49 (1984).

Section 2412(d)(1)(A) provides for an award of attorneys' fees to a prevailing party in an action brought by or against the United States unless the court finds that the position of the United States is substantially justified or special circumstances make such an award unjust. The United States asserts that the position of the government was substantially justified, and the award of attorneys' fees was improper. After reviewing the record, we conclude that the trial court applied the proper standard in evaluating the "position of the government," and its factual findings are not clearly erroneous. The district court held that the termination of the contract was arbitrary and capricious and that the post-order motions were frivolous and filed for the purpose of delay. The district court, therefore, did not abuse its discretion in holding that the position of the government was not substantially justified and that some measure of attorneys' fees should be awarded to Vibra-Tech.

The government also asserts that attorneys' fees should not be awarded for representation before the GAO. The EAJA constitutes a waiver of sovereign immunity and must be construed strictly. Action on Smoking and Health v. C.A.B., 724 F.2d 211, 225 (D.C.Cir.1984); See generally Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3277, 77 L.Ed.2d 938 (1983) (holding that waivers of sovereign immunity from attorneys' fees claims are to be construed strictly). Vibra-Tech admits that the civil action in federal court was not a judicial review of the GAO decision within the meaning of 28 U.S.C. Sec. 2412(d)(3). ² Nor does Vibra-Tech contend that the GAO proceeding itself would give rise to an award of attorneys' fees as an adversary adjudication under 5 U.S.C. 504(a)(1). ³ Vibra-Tech simply contends that the GAO proceeding was an adjunct to the district court action, and the attorneys' fees incurred for its GAO claim were properly included in the award. The district court awarded fees for the GAO claim, reasoning that time spent on the GAO action is recoverable because certain matters were resolved by the administrative proceeding that otherwise would have consumed court time.

Costs and attorneys' fees may be awarded if incurred "in any court having jurisdiction of that action...." 28 U.S.C....