Recovering Witness Fees Under the EAJA
The Equal Access to Justice Act (EAJA) enables parties to seek costs and attorneys’ fees against the government under certain circumstances. Specifically, the EAJA provides that a court shall award to a prevailing party (other than the United States) fees and expenses incurred by that party in a civil action brought against the United States unless the court finds that the position of the government was substantially justified or special circumstances make such an award unjust. In addition to attorneys’ fees, the greatest expenditure parties face in litigation is for witnesses, particularly experts. A recent case from the Armed Services Board of Contract Appeals (the Board) addressed the issue of witness fees that are recoverable under the EAJA.
Optimum Servs. Inc., ASBCA, Nos. 58755, 59952, 7/20/17, decision released 8/7/17
In Optimum Servs. Inc., a contractor applied to the Board pursuant to the EAJA for fees and expenses incurred as a result of a sponsored subcontractor claim against the government. The contractor sought a total of $706,532.31 in attorneys’ fees and costs. Of that total, $224,119 was allocated to fees for expert witnesses and $4,890.48 for fact witnesses. The Board agreed with the government’s request for a reduction in these costs, but not to its claimed amounts.
Expert Witness Fees
The EAJA allows for recovery of expert witness fees provided “no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the agency involved.” 5 U.S.C. § 504(b)(l)(A). In this case, the government argued that reimbursement for expert witness fees should not exceed the highest rate fixed by the Classification Act Schedules for grade GS-15. The government had paid its own expert at the highest $300 per hour, which exceeded the GS-15 caps it was asking the Board to apply to the contractor. The Board concluded that because the maximum rate paid by the government was greater than the GS-15 cap the same rate could be applied to the contractor’s experts. A maximum rate of $300 per hour was set, which affected only one of the contractor’s experts. This witnesses fees were reduced from $365 per hour, which only minimally decreased the total expert witness fees recovered.
Fact Witness Fees
The Board goes on to address the proposed recovery of fact witness fees by indicating that generally they are not reimbursable except for certain payments to non-employees and consultants. Because one of the contractor’s fact witnesses was a paid consultant and not an employee of the contractor or subcontractor, the Board ruled that the contractor was entitled to reimbursement of these fees, which amounted to $2,667.06.
Therefore, of the $229,009.48 contractor was seeking in witness fees it recovered $223,097.30. Contractor also sought attorneys’ fees over the statutory cap of $125 per hour under an enhanced fees argument on which it did not prevail, reducing its attorneys’ fees request from $439,312 to $151,050. While its attorneys’ fees were significantly cut back by the Board, the contractor was able to recover most of its witness costs, which as noted were quite substantial. The take away here is that expert and fact witness fees may not be reimbursed under the EAJA at the actual rates, much like attorneys’ fees. But, if the government has paid higher fees to experts than what is normally recoverable and a fact witness is a paid consultant instead of an employee, the prevailing party may be able to preserve the actual amounts or amounts closer to actuals for reimbursement.
Kristi Morgan Aronica, Attorney