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Public Contract Law

Timeliness for EAJA Application: The Dilemma of a Bifurcated Appeal

Reba Page and Wesley C. Jockisch

The Equal Access to Justice Act (EAJA) provides that qualifying parties may be awarded costs incurred in connection with adjudication of an adversary proceeding. Like the judicial version, the administrative counterpart found at 5 U.S.C. § 504 permits parties to recoup attorneys’ fees and certain other expenses, thereby enabling smaller, less capitalized companies to pursue appeals.

Boards of contract appeals often are asked to award such costs to appellants who prevail in disputes under the Contract Disputes Act (CDA). The issues raised for consideration become: When is the appropriate time to file a petition for fees and expenses in matters where entitlement is considered separately from quantum? If the board continues to assert jurisdiction over part of the claim, can appellant wait until all issues have been finally adjudicated to file a timely EAJA application for the entire appeal? The answer (at least before most boards) is likely to be "no." In addition to providing a brief refresher on the requirements of EAJA, we raise the matter here as a "practice pointer" because it is a recurring issue.

EAJA Requirements. A brief examination of the Equal Access to Justice Act is useful in understanding both procedural and substantive requirements for filing an EAJA application. Prior to enacting EAJA, Congress found that individuals and small business were sometimes deterred from seeking adjudication or vindication of their rights by the expense of challenging federal actions. To diminish their reticence or inability to seek their just due, Congress passed EAJA to permit recovery of fees and expenses typically incurred in litigation. A party seeking to recoup eligible fees and expenses must be able to satisfy statutory requirements, including timely application.

EAJA’s requirement for a timely application for fees seems clear on its face. A party seeking an award of fees and other expenses must, within thirty days of a final disposition in the adversary adjudication, submit to the agency an application that shows that the party is a prevailing party and is eligible to receive an award. If neither party takes action to interrupt the running of the CDA appeal period, the board’s decision is final in 120 days. Appellant has an additional thirty days following expiration or exhaustion of the appeal period in which to file a timely EAJA application. The boards and courts have consistently held that the thirty-day period after a "final decision" for filing an EAJA request on a nonbifurcated appeal begins 120 days after the appeal period has run without an appeal being taken.

Making a timely application following an appeal that has been bifurcated is more complex. Qualifying parties in a bifurcated appeal should raise the question after a decision on entitlement has been rendered, during the thirty-day window following expiration of the time to appeal to the Federal Circuit, or following an appellate decision by that court. Those who believe that they can recover for both portions of the action by filing after both entitlement and quantum are finally decided may face disappointment at best, and a potential malpractice dilemma at worst. In short, those who believe "it’s not over till it’s over" may not be able to recover anticipated attorneys’ fees, even if they qualify as prevailing parties and the government’s position was not substantially justified. The thirty-day window for filing an EAJA application is a jurisdictional prerequisite that cannot be waived by the board.

Requirement for a "Final Disposition." Key to a timely EAJA application is understanding when a decision is truly final. The Administrative Conference of the United States, charged with promulgating model rules for implementation of EAJA, has included guidance on final disposition. According to 1 C.F.R. §315.204(a), "[A]n application may be filed whenever the applicant has prevailed in the proceeding or in a significant and discrete substantive portion of the proceeding, but in no case later than thirty days after this agency’s final disposition of the proceeding."

The various boards of contract appeals have also issued implementing rules that are generally uniform. The Corps of Engineers Board of Contract Appeals’ Interim Procedures for Award of Fees and Expenses Under Section 504 of Title 5 of the United States Code (the Equal Access to Justice Act) provide guidance as to the appropriate time for filing an application, and when a decision is considered to be final.

The Court of Appeals for the Federal Circuit in Orlando Helicopter Airways, Inc. v. Widnall determined sua sponte that it had jurisdiction over appeals from the entitlement portion of matters that were before the boards. It exercised jurisdiction over an appeal granted in part and denied in part through a motion for partial summary judgment, even though quantum and other issues remained to be decided. The court found jurisdiction because the administrative decision-making process had reached a stage where judicial review would not disrupt orderly adjudication.

The court further noted that it would review a decision of a board of contract appeals only if that decision is final, and stated:

This doctrine of finality embodies the policy of avoiding piecemeal litigation and the delays attendant upon appellate review of nonfinal decisions. Teller Environmental Systems v. United States, 802 F.2d 1385, 388 (Fed. Cir. 1986). The requirement of a final decision compels a party to raise all assignments of error in one appeal. The rule preserves the respect due administrative judges at the Board by minimizing appellate interference with their function. It deters litigants from harassing opponents and clogging the courts with time-consuming appeals. It is crucial to the administration of justice. See, e.g., Flanagan v. United States 465 U.S. 259, 263-64, 104 S. Ct. 1051, 1054, 79 L. Ed. 2d 288 (1984); Teledyne Continental Motors v. United States, 906 F.2d 1579, 1581-82 (Fed. Cir. 1990); Fairchild, 810 F.2d at 1125. Nevertheless, we do not impose on Board decisions a strict finality requirement in exact congruence with that imposed on district court decisions. General Motors v. Aspin, 24 F.3d 1376, 1380 (Fed. Cir. 1994); Garrett, 987 F.2d at 751; Dewey Electronics Corps. v. United States, 803 F.2d 650, 654 (Fed. Cir. 1986).

The appeal of J-I-J Construc-tion, Inc. before the Corps of Engineers Board of Contract Appeals and the subsequent appeal of that decision to the Federal Circuit illustrates well the problems that can befall an appellant who is not vigilant. The appellant was twice denied recovery of EAJA fees and expenses because it had missed the deadline for filing both the EAJA petition and appeal to the Federal Circuit. The board found entitlement for the appellant in the original appeal; the matter of quantum was remanded to the parties. The parties were unable to reach resolution, and a hearing was commenced. The parties then entered into a stipulation indicating all issues were resolved, and that both parties waived any and all rights of appeal. On April 16, 1985, the board issued an "Order Sustaining Appeal on Stipulation" memorializing that agreement. Ultimately, the matter was resolved and on October 21, 1985, the appellant filed a petition for EAJA fees based on the April order. The board rejected the petition for EAJA fees as untimely, although appellant argued that there was no final disposition after the entitlement decision since quantum issues remained. Appellant then appealed the board’s decision to the Federal Circuit; the court rejected the appeal for jurisdictional reasons since it had not been filed within the 120-day appeal period following the board’s final decision. The erroneous assumptions that caused appellant to miss the initial EAJA deadline also disenfranchised its subsequent appeal.

A similar result occurred in Adam Sommerock Holzbau, GmbH. The appeal there was settled before the hearing was completed, and the board issued an opinion predicated on the settlement. Appellant waited more than ninety days before filing its EAJA petition, which was rejected. The Federal Circuit affirmed, noting that the thirty-day period for filing under EAJA began when the board’s determination was made. The court also rejected appellant’s contention that the time should be calculated from the date of receipt of the opinion, rather than from its issuance.

While EAJA provides a great benefit to parties who might otherwise be unable to secure redress from the government, it is clear that an applicant must be scrupulous in meeting both the substantive and procedural requirements of the act. It is a jurisdictional imperative for a contractor to timely file its EAJA application; thus contractors should file EAJA applications whenever a board’s decision or portion thereof (i.e., entitlement) becomes a final decision of the board. This should be done to protect the party’s EAJA rights even though the board may decide to suspend EAJA procedures until the quantum portion of the appeal is resolved.

Reba Page is an Administrative Judge for the Corps of Engineers Board of Contract Appeals. Wesley C. Jockisch is Administrative Judge and Chairman of the Board. The views expressed in this article are those of the authors, not of the agency.

This article is an abridged and edited version of one that originally appeared in The Procurement Lawyer, Winter 1996 (31:2) .

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