DENIED:  May 9, 2019
CBCA 6462-C(6031)
WOOLERY TIMBER MANAGEMENT INC.,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Charlotte Woolery, President of Woolery Timber Management Inc., Tuolumne, CA,
appearing for Appellant.
John Eichhorst, Office of the General Counsel, Department of Agriculture, San
Francisco, CA, counsel for Respondent.
Before Board Judges SOMERS (Chair), ZISCHKAU, and LESTER.
LESTER, Board Judge. 
On May 3, 2019, appellant, Woolery Timber Management Inc. (WTM), filed an
application seeking to recover $54,824.50 in costs and fees associated with this appeal
pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2012).1  Familiarity with
the Board’s original merits decision, issued on January 31, 2019, and the Board’s decision
1 Woolery also cites to 28 U.S.C. § 2412 as a basis for its EAJA application.  That
statutory provision authorizes courts, but not boards of contract appeals, to award fees and
costs in certain circumstances.  Moore Mill & Lumber Co., AGBCA 90-210-10, 91-1 BCA
¶ 23,484, at 117,805 (1990).  It creates no statutory authority in the circumstances here.

CBCA 6462-C(6031) 2
on reconsideration, issued on April 4, 2019, is presumed.  See Woolery Timber Management
Inc. v. Department of Agriculture, CBCA 6031, 19-1 BCA ¶ 37,245, reconsideration denied,
CBCA 6031-R, slip op. (Apr. 4, 2019).  We deny the application.
Discussion
Timeliness
WTM’s EAJA petition was filed within thirty days of the Board’s April 4, 2019,
decision on reconsideration.  Under Board Rule 30, which implements EAJA, “[a] party may
file an application for fees and other expenses only after the time to seek appellate review of
a Board decision has expired” and must file its application “within 30 calendar days after that
date.”  41 CFR 6101.30(b) (2018).  Here, WTM elected to pursue this appeal under the
Board’s small claims procedure, as permitted by section 7106(b) of the Contract Disputes Act
(CDA), 41 U.S.C. § 7106(b), and implemented through Board Rule 52 (48 CFR 6101.52). 
A decision issued under that procedure is final and unappealable except for fraud, although
the Board will allow a party to seek reconsideration of the decision under Board Rule 26 if,
as happened in this case, the reconsideration request is filed within thirty days of the party’s
receipt of the decision.  Woolery Timber Management, slip op. at 2 (Apr. 4, 2019).  Because
appellate review “is essentially precluded” under the small claims procedure, an EAJA
application is due “within 30 days of the Board’s final disposition.”  Timber Rock
Reforestation, AGBCA 97-117-10, 97-2 BCA ¶ 29,122, at 144,892, reconsideration denied,
98-1 BCA ¶ 29,360 (1997).  WTM’s EAJA petition, filed within thirty days of the date upon
which WTM received the reconsideration decision, was not too early and not too late.
Review by the Panel
Typically, under the Board’s rules, a panel of three judges, one of whom presides, is
assigned to decide contract dispute cases.  See Board Rule 1(d) (48 CFR 6101.1(d)).  Under
the small claims procedure that WTM elected, however, a single board judge, rather than a
three-judge panel, decides the appeal.  As one of our predecessor boards held, there is
nothing inherent in the CDA’s small claims procedure that would limit the board’s “ability
to consider an EAJA cost application relating to the case.”  DRC Corp. v. Department of
Commerce, GSBCA 15172-C(14919-COM), 00-1 BCA ¶ 30,841, at 152,228 n.1. 
Nevertheless, because entitlement to elect the small claims procedure arises out of the CDA,
the board has historically not applied that election to EAJA claims, even when filed in a
small claims procedure case.  As a result, even though merits decisions in small claims
procedure cases are issued by a single judge, decisions on EAJA claims in those cases have
routinely involved the full three-judge panel.  See, e.g., Michael C. Lam v. General Services
Administration, CBCA 1472-C(1213), 09-2 BCA ¶ 34,227; NVT Technologies, Inc. v.

CBCA 6462-C(6031) 3
General Services Administration, GSBCA 16195-C(16047), 03-2 BCA ¶ 32,401; Giancola
& Associates v. General Services Administration, GSBCA 12305-C(12128), 93-3 BCA
¶ 26,146; Sixth & E Associates, GSBCA 9165-C(8914), 88-3 BCA ¶ 21,089.  Following that
practice, the full three-judge panel is addressing WTM’s EAJA claim here.
The Merits of WTM’s EAJA Request
Under EAJA, the Board “shall award, to a prevailing party other than the United
States, fees and other expenses incurred by that party in connection with that proceeding,
unless the [Board] finds that the position of the agency was substantially justified or that
special circumstances make an award unjust.”  5 U.S.C. § 504(a)(1).  WTM meets EAJA’s
definition of a “party,” as the corporate appellant did not have a net worth of more than $7
million and did not employ more than 500 employees when it filed this appeal.  See id.
§ 504(b)(1)(B)(ii).  Further, WTM is a “prevailing party” in light of the Board’s entry of an
enforceable judgment in WTM’s favor on some issues in the appeal “that created a ‘material
alteration of the legal relationship of the parties’” and achieved some of the benefit sought. 
Richter Developments, Ltd. v. General Services Administration, CBCA 6060-C(5449), 18-1
BCA ¶ 37,138, at 180,830 (quoting Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health & Human Resources, 532 U.S. 598, 602-04 (2001)).
Having satisfied these prerequisites, WTM would be entitled to fees and other
expenses unless the position of the agency in this appeal was substantially justified.  See
5 U.S.C. § 504(a)(1).  An agency’s position “means, in addition to the position taken by the
agency in the adversary adjudication, the action or failure to act by the agency upon which
the adversary adjudication is based.”  Id. § 504(b)(1)(E).  If that position has “a reasonable
basis in law and fact to a degree that could satisfy a reasonable person,” it will be deemed
“substantially justified” for purposes of EAJA.  Allen Ballew General Contractor, Inc. v.
Department of Veterans Affairs, CBCA 3-C(VABCA 6987E), et al., 07-2 BCA ¶ 33,653, at
166,636.  In making that evaluation, we look at the “case as an inclusive whole, rather than
as atomized line-items.”  Commissioner, Immigration & Naturalization Service v. Jean, 496
U.S. 154, 162 (1990); see Chiu v. United States, 948 F.2d 711, 715 (Fed. Cir. 1991)
(deciding substantial justification by looking at “the entirety of the government’s conduct and
mak[ing] a judgment call whether the government’s overall position has a reasonable basis
in both fact and law”).  “[T]hat the [word] ‘position’ is . . . denominated in the singular . . .
buttresses the conclusion that only one threshold determination for the entire civil action,”
rather than an issue-by-issue analysis, “is to be made.”  Jean, 496 U.S. at 159.2
2 WTM asks that we factor its financial struggles as a small business status into this
part of the EAJA analysis.  “The financial state of the prevailing party, however, is not

CBCA 6462-C(6031) 4
We find that the USFS’s position was substantially justified.  The Board denied the
bulk of WTM’s monetary requests, finding that what WTM characterized as an improper
termination for convenience (T-for-C), which WTM argued should entitle it to reallocate its
fixed costs across the acreage remaining under its contract, never happened.  Instead, the
agency sent WTM a proposed bilateral modification in April 2017 through which the USFS
proposed to eliminate some acreage from WTM’s mastication contract, but WTM never
signed it, and the USFS never issued it unilaterally.  As a result, the T-for-C that WTM was
challenging never happened.  Eventually, months later (in September 2017), the USFS
actually effectuated a T-for-C, but WTM made a point at the hearing of this matter that it was
not basing its monetary claim on that T-for-C, and WTM did not reference that T-for-C in
its claim.  In such circumstances, unable to look to the September 2017 T-for-C that the
USFS actually issued, we could find no basis for reallocating WTM’s fixed costs or awarding
WTM the bulk of the costs that it was claiming.  Plainly, given its success, the USFS was
substantially justified in defending against the claim that was the main focus of WTM’s
appeal.  We also denied WTM’s claims relating to the agency’s alleged mismeasurement of
acreage worked, mismeasurement of acreage originally available, delays caused by
abnormally bad weather, and consulting fees, and we dismissed WTM’s complaint about its
interim report in the Contractor Performance Assessment Reporting System (CPARS) for
lack of jurisdiction.  
The only part of WTM’s appeal upon which we granted relief was on its complaint 
about blocked access to a road in late April and early May 2017, over which the parties had
a factual disagreement.  In our merits decision, we found it more likely than not, based upon
a preponderance of the evidence, that WTM had been affected by blocked access to a service
road and awarded WTM $4008.32 for damage resulting from that blocked access. 
Nevertheless, WTM’s evidence and explanation in support of this claim were less than
crystal clear, and we found resolution of this claim in WTM’s favor a close call.  In light of
that factual confusion, coupled with the firm belief of a USFS witness who had worked
on-site and had extensive knowledge of the mastication area that there was no blocked access
road, we find substantial justification in the USFS’s defense of this claim.
In our original decision, we also denied, for lack of jurisdiction, the USFS’s setoff
request for what essentially amounted to reprocurement costs, costs that the USFS has not
yet quantified and has not yet incurred.  WTM focuses mostly on this setoff request in its
relevant in determining substantial justification.  Because the EAJA itself defines which
parties are eligible for EAJA fee awards, [a tribunal] may not consider whether a party who
otherwise meets the statutory threshold ‘needs’ fees in order to litigate.”  United States v. 515
Granby, LLC, 736 F.3d 309, 317 (4th Cir. 2013).

CBCA 6462-C(6031) 5
EAJA petition, making it sound as though that issue was central to WTM’s case
development.  Yet, that setoff request, although raised as an affirmative defense in the
USFS’s answer to WTM’s complaint, was not mentioned in the parties’ pre-hearing briefing,
did not play a significant (if any) part in the discovery that became a part of the record and
that the Board reviewed, and was barely touched upon at the hearing.  It should have been
obvious from the outset that, without a contracting officer’s decision asserting entitlement
to reprocurement costs, the Board lacked jurisdiction to entertain any such request, see
Sharman Co. v. United States, 2 F.3d 1564, 1568 (Fed. Cir. 1993); 41 U.S.C. § 7103(a)(4),
and WTM easily could have asked, but did not ask, us to dismiss that setoff request at an
early stage of proceedings.
WTM cannot properly focus an EAJA request on an issue that was tangential to its
litigation and on which it spent little, if any, time.  The majority of tribunals have “reject[ed]
the view that any unreasonable position taken by the government in the course of litigation
automatically opens the door to an EAJA fee award.”  Roanoke River Basin Association v.
Hudson, 991 F.2d 132, 139 (4th Cir. 1993); see CEMS, Inc. v. United States, 65 Fed. Cl. 473,
478 (2005) (“This court . . . approaches the plaintiff’s entitlement to EAJA fees by reviewing
the government’s overall position, without requiring that each and every government position
be substantially justified.”).  Whether “an unreasonable stance taken on a single issue . . .
undermine[s] the substantial justification of the government’s position . . . can be answered
only by looking to the stance’s effect on the entire civil action.”  Roanoke River Basin, 991
F.2d at 139; see Equal Employment Opportunity Commission v. Memphis Health Center,
Inc., No. 11-6426, et al., 526 F. App’x 607, 615 (6th Cir. 2013) (“Upon determining that the
position of the government was justified as to the age discrimination claim but not the
retaliation claim, the court should have determined what impact that dichotomy had on the
government’s case as a whole.”).  Here, considering the USFS’s litigation position and
conduct as a whole, we do not find that the USFS’s assertion of this little-referenced
affirmative defense undermines the overall substantial justification of its litigation position.
Decision
For the foregoing reasons, WTM’s EAJA application is DENIED.
    Harold D. Lester, Jr.      
HAROLD D. LESTER, JR. 
Board Judge

CBCA 6462-C(6031) 6
We concur:
    Jeri Kaylene Somers         Jonathan D. Zischkau    
JERI KAYLENE SOMERS JONATHAN D. ZISCHKAU
Board Judge Board Judge