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Brickwood Contractors, Inc. v. United States

Citation: 32 ELR 20698
No. No. 01-5121, 288 F.3d 1371/(Fed. Cir., 04/30/2002)

The court holds that a contractor's recovery of attorneys fees under the Equal Access to Justice Act (EAJA) is barred by the U.S. Supreme Court's decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001). The contractor originally was the lowest bidder for a U.S. Navy project requiring the removal of polychlorinated biphenyl (PCB) contamination from water storage tanks at a naval air station in Maryland. The Navy then determined that there were no PCBs to be removed from the tanks. As a result, the contractor was no longer the lowest bidder. The Navy then converted its invitation for bids (IFB) to a request for proposals (RFP), which eliminated the requirements regarding PCBs. The contractor filed suit, asking the court to enjoin the Navy from converting the IFB to an RFP and to direct the Navy to award it the contract. The Navy then cancelled the RFP and announced that it would resolicit for contractors with a new IFB. The contractor then sought, and was awarded, attorney fees under the EAJA, and the Navy appealed. The court first holds that in Buckhannon, the Supreme Court rejected the use of the "catalyst theory" in construing whether one is a "prevailing party" under federal fee-shifting statutes such as the Fair Housing Amendments Act and the Americans With Disabilities Act. Based on an examination of the text and legislative history of the EAJA, there is no basis for distinguishing the term "prevailing party" in the EAJA from other fee-shifting statutes. Moreover, the Court's holding in Buckhannon leaves no room for a distinction to be drawn between whether a change is brought about by the legislature, as in Buckhannon, or by the government's cancellation of the solicitation in this case. Finally, the contractor does not qualify as a prevailing party under Buckhannon. The lower court, therefore, erred in granting attorneys fees to the contractor.

The full text of this decision is available from ELR (17 pp., ELR Order No. L-515).

Counsel for Plaintiff
Robert M. Moore
Moore & Lee
1750 Tysons Blvd., Ste. 1450, McLean VA 22102
(703) 506-2050

Counsel for Defendant
Michael E. Robinson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000