Prevailing Party. 7430(a) provides that a prevailing party in a court proceeding may be awarded reasonable litigation costs. The term “prevailing party” means any party properly within § 7430(a) which (1) has substantially prevailed with respect to the amount in controversy, or on the most significant issue(s) presented; and (2) meets the requirements of 28 U.S.C. § 2412(d)(1)(B) and 28 U.S.C. § 2412(d)(2)(B). See 26 U.S.C. § 7430(c)(4)(A)(i)-(ii); Treas. Reg. § 301.7430-5(a)(1)-(4) (requirements for “prevailing party” status).

Weltman’s motion seeks attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), which permits a court to award “reasonable fees and expenses of attorneys” to the prevailing party in a civil action brought by any agency of the United States “to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.” 28 U.S.C. § 2412(b). Weltman asserts that “the EAJA puts the United States on equal footing with private litigants under common law and statute,” and that courts applying this provision have held the government to the same good faith standard expected of all parties to litigation.

It remanded for an award of $14,748—less than one percent of the Government’s demand.On remand, the contractor sought $468,704 in attorneys’ fees it had spent defending against the Government’s $1.66 million claim. The contractor’s demand for attorneys’ fees arose out of the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(D), which states that a court must “award to the [defendant] the fees and other expenses related to defending against the excessive demand” if the Government’s original demand was both (1) “substantially in excess of the judgment finally obtained” and (2) “unreasonable when compared with such a judgment.”The district court denied the contractor’s motion for fees, but the Sixth Circuit reversed, explaining that it would be an “understate[ment]” to say the government’s demand of $1.66 million was “substantially in excess” of the $14,748 judgment.

Despite this ruling, the Gate Guard litigation pressed forward for a year thereafter until it was resolved on summary judgment in favor of Gate Guard. The District Court denied Gate Guard its attorney’s fees application based on EAJA’s bad faith provision, 28 U.S.C. § 2412(b), however, it did grant Gate Guard more than $565,000 in litigation fees under the EAJA’s provision requiring a court to award a EAJA-eligible prevailing party against the United States fees where the court does not find that the position of the United States was substantially justified, 28 U.S.C. § 2412(d). (Not all employers are eligible to receive EAJA fees; only those with a net worth of less than $7 million eligible.)

tern District of Tennessee (Greenville Division), regarding the SBA’s compliance with the Ultima court’s injunction against using the rebuttable presumption of social disadvantage contained at 13 CFR 124.103(b).The Notice of Compliance was issued in advance of a hearing in the Ultima case that took place on August 31, 2023. The hearing was scheduled by the district court to determine how to address the other remedies that Ultima sought in its complaint.In its complaint, Ultima asked for the following relief:A declaratory judgment that defendants are violating the Fifth Amendment to the United States Constitution and 42 U.S.C. § 1981;Injunctive relief precluding defendants from reserving NRCS contracts for the Section 8(a) Program;Requiring the defendants to reinstate contracts that defendants refused to renew for discriminatory reasons and/or replaced plaintiff with a Section 8(a) contractor;Damages in an amount to be determined;Attorney’s fees and costs pursuant to 28 U.S.C. §§ 1920, 2412(a), or 2412(b), 42 U.S.C. § 1988, or any other applicable authority; andAny other relief that is appropriate.The injunction issued by the court addressed the firstrequest for relief (that the SBA violated the Constitution by applying a rebuttable presumption of social disadvantage) but did not address the other relief sought by Ultima.Nor did the motions briefed and argued directly address those other claims, focusing on the predicate issue of whether the SBA’s rebuttable presumption is constitutional.As such, the hearing may be to address these other remedies sought by Ultima, in addition to whether the SBA is complying with the district court’s injunction.Notably, the SBA, as a federal agency, has sixty days from the date of the injunction to file its notice of appeal, so they have until September 17th to file an appeal.SummaryThe Notice of Compliance is consistent with past announcements by the SBA regarding its response to the injunction in Ultima, specifically the requirement that i

ct Statement (“SEIS”); to account for significant new circumstances or information also violates NEPA, and are arbitrary, capricious, an abuse of discretion, and/or not in accordance with law under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A) and are a continuing failure to act under § 706(1);Declaring that the Forest Service must conduct either a SEA or SEIS;Vacating and setting aside the Forest Service’s illegal DN/FONSI as an illegal agency action under the APA;Permanently enjoining the Forest Service from implementing the Robert’s Gap Project until the agency complies with NEPA;Enter preliminary and permanent injunctive relief to ensure that the Forest Service complies with NEPA, and specifically to ensure that the Forest Service and its agents take no further actions toward proceeding with the challenged Robert’s Gap Project until they have complied with NEPA;Awarding Plaintiff its reasonable attorneys’ fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; andGrant such further relief as the Court deems just and equitable.A copy of the Complaint can be downloaded here.

s in this form are not necessary to support a small business’s request for proposal costs.” The protester provided “the fully burdened hourly rate for each of the ARxIUM employees who worked on plaintiff’s proposal,” “descriptions of the time spent by ARxIUM employees in preparing the proposal,” and a declaration describing “the work performed and the reasonable methodology . . . adopted to estimate the time taken to perform the various tasks involved.” Given this support, the government “agree[d] with nearly ninety percent of the employee costs” and the Court found the costs “well-explained, documented, and justified.” The Court, however, declined to award any recovery for costs incurred after the agency had revised the solicitation and which “did not result in a revised proposal submission.”Regarding the legal advice and counsel costs, the government argued that the protester could not recover such costs because “legal fees are only recoverable under the Equal Access to Justice Act, 28 U.S.C. § 2412.” The Court disagreed, noting there may be “otherwise proper circumstances” in which a protester may recover bid preparation and proposal costs for work performed by an attorney—although the Court declined to identify any such circumstances. The Court, however, held that the protester was not entitled to the legal fees it claimed because it incurred those costs after it had submitted its proposal and, thus, the costs were not considered proposal preparation costs.Regarding the opportunity costs, the Court squarely rejected the protester’s claim, holding such costs would represent a “double recovery” and liked the claim to one for “lost, anticipated profits”—a type of recovery that is not available in bid protests.No contractor ever wants to file a protest, but protests are a typical part of the procurement process. To ensure that your company can recover as much as possible in the event of a successful protest, ARxIUM suggests you keep as detailed a record as possible of all proposal

. Mindick, 549 F.2d 775, 784 (C.C.P.A. 1977), regarding an "exceptional interference," which precedent was followed by the district court in Bowmar Instr. Corp. v. Tex. Instr., Inc., No. F74-137, 1978 WL 21733, at *1 (N.D. Ind. Aug. 1, 1978).The opinion also found no support for Almirall's petition in the plain meaning of the statute. The determinative terms were that reference to "[t]he court" was limited to "judicial proceedings," relying on Blyew v. United States, 80 U.S. (13 Wall.) 581, 595 (1872), for meaning of terms like "case and "cause" as being limited to proceedings before a court, in a suit or action.The opinion also finds support for analogous "fee-shifting" provisions in other statutes involving administrative proceedings, citing Kahane v. UNUM Life Ins. Co. of Am., 563 F.3d 1210, 1215 (11th Cir. 2009), regarding 29 U.S.C. § 1132(g)(1) and W. Watersheds Project v. U.S. Dep't of the Interior, 677 F.3d 922, 926–27 (9th Cir. 2012), regarding the Equal Access to Justice Act, 28 U.S.C. § 2412(d)). The Court did not credit Almirall's cases asserted in support of its opinion to lead to a contrary result.

[13] Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 139 (1st Cir. 1984). [14] 28 U.S.C. § 2412. [15] https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5202&context=uclrev [16] Premachandra v. Mitts, 727 F.2d 717 (8th Cir. 1984).

6 million (after trebling) for a relatively minor violation of the Davis Bacon Act. The Court found that the Government’s actual damages were only $9,900 and later held that the Government must pay the defendant’s attorney fees under 28 U.S.C. § 2412(d)(1)(D) because the Government’s demands were excessive. With the teachings of the Circle C case, and the settlement of the Armstrong case after a 10 year slog, let’s hope the Government will be more reluctant to intervene in – and maybe even move to dismiss – future qui tam FCA cases where there are no real damages.