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Baldi Bros. Constructors v. United States

ELR Citation: 32 ELR 20638
Nos. No. 98-326C, 52 Fed. Cl. 78/(Fed. Cl., 03/29/2002)

The court awards a construction company $93,312.24 in attorney fees and litigation expenses it incurred in litigation with the U.S. Navy regarding unexpected costs of construction at a facility that included federally protected wetlands. The Navy and the company entered a contract for construction of a training range in North Carolina, but the company encountered unexpected protected wetlands that required it to incur increased costs. After completion of construction, the company brought an Equal Access to Justice Act (EAJA) claim against the Navy for damages. At the onset of trial, the Navy stipulated to liability, but the trial proceeded on the issue of damages. Although the company sought $1,528,537,000 in damages, the trial court awarded approximately $838,000 because some of the company's damages were due in part to its own errors and existing obligations. The company then sought attorney fees and litigation expenses under the EAJA. The EAJA requires that a party seeking attorney fees be the prevailing party. The Navy does not dispute that the company was the prevailing party, but it claimed that fees were unwarranted because its position was substantially justified. The court first holds that the Navy failed to provide an attempt or defense of substantiation for its pretrial positions. Moreover, the fact that the company received only 55% of the damages sought does automatically render the Navy's position substantially justified. Nevertheless, the court holds that the company's recovery of attorney costs is reduced on a pro rata basis by 33.3% to take into account costs that could be attributed to the company's own delays. Consequently, the court reduced the company's requested attorney fees by 33.3%. In addition, the court holds that the company could also recover the expenses of an expert witness reasonably necessary to pursue the company's claims for costs from delay, but the company cannot recover the other costs attributable to a nonattorney or nonexpert witness.

The full text of this decision is avaiable from ELR (17 pp., ELR Order No. L-496).

Counsel for Plaintiff
William J. Braun
Braun, Melucci & Bright
7855 Ivanhoe Ave., La Jolla CA 92037
(858) 456-9725

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