After prevailing in a protest before the COFC, the protester requested fees under the Equal Access to Justice Act. The government argued that a fee award wasn’t warranted because the protester had not proved that it had actually agreed to pay EAJA fees to its counsel. Thus, the government reasoned, the protester had not demonstrated the fees had been incurred. The court rejected the argument, noting that there was no evidence that the protester’s counsel had agreed to work for free. The billing records were detailed enough to show that the fees had been incurred.
AGMA Security Service, Inc. v. United States, COFC No. 20-926C
BackgroundÂ
FEMA awarded a contract for Protective Officer Services to AGMA Security Service. An unsuccessful offeror, Ranger American of Puerto Rico, filed a GAO protest challenging the award. In response to the protest, FEMA took corrective action to reevaluate proposals. Following the corrective action, FEMA awarded the contract to Ranger.
AGMA filed a protest with the Court of Federal Claims, objecting to the award to Ranger. The court sustained the protest, finding that FEMA had not properly evaluated proposals as part of the corrective action. AGMA then requested attorneys fees under the Equal Access to Justice Act.
Legal Analysis
Equal Access to Justice Act
The EAJA allows a party who prevails in a civil action against the government to recover legal fees. To be eligible for fess, (1) the requesting party must be the prevailing party, (2) the government’s position must not be substantially justified, (3) no special circumstances make an award unjust, and (4) the fee application must be filed within 30 days of final judgment.
Here, the court found that AGMA had prevailed, and that the government’s legal position was not substantially justified. The government argued that special circumstances made a fee award unjust. Ranger had appealed the judgment but then voluntarily dismissed the appeal. The government argued that because it had not appealed, it should not have to pay fees AGMA incurred as part of the appeal. The court rejected this argument, finding that the government had filed a notice of appearance in the appeal.
AGMA Incurred the Fees
The government contended that it shouldn’t have to pay fees because there was no evidence that AGMA had actually incurred the fees requested. The government claimed there was no representation agreement showing that AGMA had agreed to pay EAJA fees to its counsel. The court was not persuaded, finding there was no indication that AGMA’s counsel had agreed to work pro bono. While the request for fees was not detailed, it was sufficient to describe the work performed.
Adjustment for Inflation
The EAJA caps fees at $125 per hour, but it allows the court to make a cost of living adjustment. AGMA requested an adjustment for inflation. The court found an adjustment was appropriate and increased the requested hourly rate by multiplying the $125 cap by the applicable consumer price index.
Specific Fees
The government challenged various time entries submitted by AGMA’s counsel. The court agreed with some of the government’s objections. For instance, the court rejected entries where one of AGMA’s attorneys stated that he had communicated with another attorney, but that other attorney did not have a corresponding time entry for the communication. The court also rejected fees associated with trying to include documents from the GAO protest in the administrative record. The GAO records were never included in the administrative record and were not relied on by the court.
Agma is represented by Alan Grayson. The intervenor, Ranger American, is represented by Todd M. Garland and Jonathan D. Shaffer of Smith Pachter McWhorter, PLC. The government is represented by Kara M Westercamp, Elizabeth M. Hosford, Patricia M. McCarthy and Brian M. Boynton of the Department of Justice as well as Matthew Lane of FEMA.
