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Vibra-Tech Eng'rs, Inc. v. United States

ELR Citation: 16 ELR 20765
Nos. No. 84-1365, 787 F.2d 1416/(10th Cir., 03/31/1986)

The court holds that plaintiff that successfully petitioned the district court to reinstate its contract with the Department of the Interior to perform a geologic study is entitled to attorney fees under the Equal Access to Justice Act (EAJA); that such fees should not include expenses incurred for a General Accounting Office (GAO) proceeding reviewing the contract award; and that the fees awarded should not exceed the EAJA's standard rate. The court first holds that the district court did not abuse its discretion in finding that the government's position was not substantially justified. The district court's findings that the termination of the contract was arbitrary and capricious and that post-order motions filed by the government were frivolous were not clearly erroneous. Next, the court holds that a GAO proceeding is not "an action in any court having jurisdiction" and thus time spent on the proceeding does not count toward attorney fees under the EAJA. Finally, the court holds that plaintiff is not entitled to an award in excess of the EAJA's rate of $75 per hour. The court rules that incomparable expertise of counsel does not by itself justify a higher rate without a demonstration that the attorney exceeded standards for attorneys of equal caliber. The higher rate is not justified under the "limited availability of counsel" exception because plaintiff has not shown that appropriately specialized legal services for the necessary tasks could not be obtained at the statutory wage.

Counsel for Defendants-Appellants
Harold J. Krent
Civil Division, Appellate Section
Department of Justice, Rm. 3348, 10th and Constitution Ave., Washington DC 20530
(202) 633-2000

Counsel for Plaintiff-Appellee
Dennis J. Riley, Peter N. Weiss
Spriggs, Bode & Hollingsworth
Ste. 1100, 1015 15th St. NW, Washington DC 20005
(202) 393-8535

George W. Mueller Jr.
Burns, Wall, Smith & Mueller
Ste. 800, 303 E. 17th Ave., Denver CO, 80203
(303) 830-7000

Before BARRETT, LOGAN, and BALDOCK, Circuit Judges.