_________________________ GRANTED: July 14, 1994 _________________________ GSBCA 11735-C(11171) GRIFFIN SERVICES, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Karl Dix, Jr. and George Papaioanou of Smith, Currie & Hancock, Atlanta, GA, counsel for Appellant. Jerry Ann Foster, Office of the Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. Before Board Judges NEILL, HYATT, and DeGRAFF. HYATT, Board Judge. Pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. 504 (1988), Griffin Services, Inc. filed an application for attorney fees and expenses incurred in its appeal of the General Services Administration's (GSA's) denial of its claim. In deciding Griffin's appeal, the Board held that Griffin was entitled to recover expenses incurred in performing certain repairs required by GSA under its maintenance contract with the Government. Griffin supplemented its EAJA fee request on March 10, 1994, seeking additional attorney fees related to the EAJA application process. For the reasons stated, the application is granted in the amount of $2,538.23. Background The relevant facts in the underlying dispute are set forth in the Board's decision granting Griffin's appeal. Griffin Services, Inc., GSBCA 11171, 92-1 BCA 24,556 (1991). Griffin had claimed costs incurred in connection with its contract to repair and maintain heating, ventilation, and air conditioning (HVAC) equipment in a Government building in Dallas, Texas. According to appellant, certain repairs to a chiller unit were necessitated because of vandalism, and not by reason of equipment failure. Respondent, the General Services Administration (GSA), contended that (1) the contract required the repairs be made by appellant regardless of cause, and (2) no vandalism occurred. The Board found in appellant's favor with respect to both the legal issue of contract interpretation and the factual issue of whether vandalism had occurred. In response to Griffin's application, GSA filed a motion to dismiss the matter for lack of jurisdiction, contending that the application had been untimely filed. The Board denied this motion, finding that the application was timely because it was filed within thirty days of the final disposition of Griffin's appeal. Griffin Services, Inc. v. General Services Administration, GSBCA 11735-C (11171), 94-2 BCA 26,624 (1993). After denying the Government's jurisdictional motion, the Board provided the Government with an opportunity to address the merits of the application. GSA responded that it would present no further arguments regarding appellant's EAJA claim. Thereafter, Griffin was given the opportunity to supplement its arguments concerning whether the Government's position was "substantially justified." It filed a response on March 10, 1994. Griffin is a small business maintenance contractor which employs less than 500 people. Its net worth does not exceed $7,000,000. In its initial application, Griffin requests reimbursement for 24.7 hours of attorney fees at the EAJA ceiling rate of $75 per hour, or $1,852.50, plus $243.23 for expenses (package delivery, library information services, long distance calls, photocopying), for the total amount of $2,095.73. In a submission made on March 10, 1994, Griffin documented an additional 6.3 hours in attorney time spent preparing the application and responding to the Government's arguments, for a total additional claim of $472.50. Discussion The Equal Access to Justice Act provides that "[a]n 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 the proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust." 5 U.S.C. 504(a)(1) (1988). Griffin meets the eligibility requirements of EAJA and is a prevailing party. There are no special circumstances that would make an award unjust. The sole remaining issue concerning Griffin's entitlement to EAJA fees is whether the Government was substantially justified in its actions. Generally, it is the Government's burden to show that its position was "substantially justified." Gavette v. Office of Personnel Management, 808 F.2d 1456, 1467-68 (Fed. Cir. 1986) (en banc); Schuenemeyer v. United States, 776 F.2d 329, 331 (Fed. Cir. 1985); Security Services, Inc. v. General Services Administration, GSBCA 12390-C(11052), 94-1 BCA 26,499, at 131,897 (1993). Although the Government has declined to address this issue, the Government's decision does not necessarily relieve the Board of the responsibility to make such a determination. In cases where a record exists such that the tribunal is in a position to make an independent assessment of whether the Government's actions were substantially justified, an award of fees is not automatic simply because the Government chooses not to argue the issue. See, e.g., Trundle v. Bowen, 830 F.2d 807 (8th Cir. 1987); Jackson v. Bowen, 807 F.2d 127 (8th Cir. 1986); Campbell v. Bowen, 800 F.2d 1247 (4th Cir. 1986); Nesvold v. Bowen, 687 F. Supp 443 (N.D. Ind. 1988); Neveaux v. Bowen, 652 F. Supp. 719 (E.D. Wis. 1987); Logistical Support, Inc., ASBCA 39163, 93-3 BCA 25,924; Astro Dynamics, Inc., ASBCA 28381, 89-3 BCA 21,938; Building Services Unlimited, Inc., ASBCA 33283, 88-2 BCA 20,611; Henry Shirek d/b/a/ Shirek Construction Co., ASBCA 28414, 87-2 BCA 19,765. It is thus appropriate for the Board to review the record, including the arguments presented in the underlying proceeding, to determine whether the Government's position was substantially justified or not. Having provided both parties with an opportunity to address the issue and having reviewed the record, we now turn to an examination of whether the Government's position in this matter was substantially justified. In Pierce v. Underwood, 487 U.S. 552, 565-66 (1988), the Supreme Court defined "substantially justified" as "'justified in substance or in the main'--that is, justified to a degree that could satisfy a reasonable person," explaining that this standard "is no different from the 'reasonable basis both in law and fact' formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals that have addressed this issue." In addition, the Underwood decision stated that "substantially justified" means "more than merely undeserving of sanctions for frivolousness; that is assuredly not the standard for Government litigation of which a reasonable person would approve." Id. at 566 (footnote omitted). The Federal Circuit has construed Underwood to require a trial court "to look at the entirety of the government's conduct and make a judgment call whether the government's overall position had a reasonable basis in both law and fact." Chiu v. United States, 948 F.2d 711, 715 (Fed. Cir. 1991) (footnote omitted). Recognizing the discretionary nature of such a determination, the Chiu Court observed that "[i]t is for the trial court to weigh each position taken and conclude which way the scale tips. . . ." Id. at 715 n.4. After reviewing the entire record and our decision on the merits of the appeal, we find that the Government's position overall was not substantially justified. The threshold issue decided in Griffin was a legal question: whether the contract allocated to the contractor or the Government the risk of performing repairs caused by other than normal wear and tear on the equipment. It was the Government's position that this risk, when individual repairs totalled less than $10,000, was allocated to the contractor regardless of the underlying cause. Although the contract stated that the contractor was responsible for necessary maintenance up to a threshold level of $10,000 per repair, it also provided that the contractor was not responsible for "[a]cts of negligence, misuse, or abuse by persons other than himself, his employees, or his representatives . . . ." Griffin Services, Inc., 92-1 BCA at 122,531. Griffin's president, an individual familiar with both the underlying contract transaction and industry practice, attested that it was not customary for a maintenance contractor to serve as a casualty loss insurer. Given the contract language and the weight of the evidence on this point, we find that the Government's position was not substantially justified as to the interpretation it advocated. The second issue, one that was factual in nature, concerned whether the damage was caused by vandalism. Griffin contended that the nature of the damage sustained was such that tampering was the probable cause of the damage; the Government argued that it believed the damage was caused by carelessness or neglect on the part of Griffin's employees. In its opinion, the Board observed: Appellant's evidence consists of pictures of the unit in issue, sworn affidavits of two of its employees, a statement executed by the Trane technician, and notes of its employee observing lax security conditions in the area of the mechanical room. Appellant's field technician affirmatively swears that he did not tamper with the switches. Nor, to the best of his knowledge, did his co-worker, who has now left the employ of Griffin Services. In contrast, the Government offers little more than speculation on the part of personnel responsible for contract administration. These individuals offer little information that is based on personal observation; rather, their statements simply express skepticism that an unauthorized individual would have entered this room, tampered with the computer program, and reset the switches. Id. at 122,533. Given the speculative nature of the Government's position and the lack of factual support in comparison to the evidence provided by appellant, we cannot conclude that the Government's factual position was substantially justified. On balance, looking at the record as a whole, we cannot determine that the Government's position was substantially justified, as that term is explained in Underwood, either in law or fact. Accordingly, we need not make a separate determination of whether the Government was substantially justified in the fee litigation.[foot #] 1 Commissioner, Immigration and Naturalization Service v. Jean, 496 U.S. 154, 159 (1990) ("only one threshold determination [of substantial justification] for the entire civil action is to be made"). Griffin is thus entitled to an award of reasonable fees and expenses. The itemized bills submitted by appellant's counsel in support of the application are fully and properly documented in accordance with applicable case law. See Naporano Iron and Metal Co. v. United States, 825 F.2d 403 (Fed. Cir. 1987); Richerson Construction, Inc. v. General Services Administration, GSBCA 11051-C(10653), 94-1 BCA 26,278 (1993); Spectrum Leasing Corp. v. General Services Administration, GSBCA 10902-C(7347), et al., 93-1 BCA 25,317 (1992). The bills reflect the specific task performed, by whom, and the number of hours required to perform the task. Griffin's initial application documents 25 hours of time billed to Griffin matters in connection with the underlying appeal. Griffin's written statement seeks recovery of 24.7 of these hours. In reviewing the statements, however, we note that two entries, one for .5 and one for .2 hours, appear to relate to an appeal other than this one. We thus allow recovery of only the 24.3 hours in that application which are clearly relevant to the subject appeal. In addition, Griffin seeks reimbursement for one hour spent preparing its application, for 2.3 hours spent responding to the Government's motion relating to the timeliness of Griffin's application, and for three hours spent responding to the Board's order relating to substantial justification.[foot #] 2 We find these costs to be reasonable and award them. In total, Griffin is entitled to recover $2,538.23 ($2,295 for legal fees plus $243.23 for expenses). Decision ----------- FOOTNOTE BEGINS --------- [foot #] 1 The Government filed an unsuccessful motion to dismiss the fee application for lack of jurisdiction on the grounds that the application was untimely. Griffin Services, __________________ Inc. v. General Services Administration, GSBCA 11735-C(11171), _________________________________________ 94-2 BCA 26,624 (1993). [foot #] 2 "[F]ees for time and expenses incurred in applying for fees are appropriate. . . ." Commissioner, I.N.S. ____________________ v. Jean, 496 U.S. 154, 157 (1990). _______ ----------- FOOTNOTE ENDS ----------- The application for fees and expenses is GRANTED. Griffin is awarded $2,538.23, to be paid in accordance with the provisions of 5 U.S.C. 504(d) (1988). ______________________________ CATHERINE B. HYATT Board Judge We concur: __________________________ ______________________________ EDWIN B. NEILL MARTHA H. DeGRAFF Board Judge Board Judge