GRANTED IN PART: May 21, 2014
CBCA 3781-C(2235)
RUSSELL SAND & GRAVEL COMPANY, INC.,
Applicant,
v.
INTERNATIONAL BOUNDARY AND WATER COMMISSION,
Respondent.
Mickey Beisman of Law Offices of Mickey Beisman, Albuquerque, NM, counsel for
Applicant.
Rebecca Ann Rizzuti, Office of the Legal Advisor, United States Section,
International Boundary and Water Commission, El Paso, TX, counsel for Respondent.
Before Board Judges DANIELS (Chairman), GOODMAN, and DRUMMOND.
DANIELS, Board Judge.
Russell Sand & Gravel Company, Inc. (RS&G) has made an application for fees and
other expenses incurred in prosecuting a case which was decided by this Board, Russell Sand
& Gravel Co. v. International Boundary & Water Commission, CBCA 2235, 13 BCA
¶ 35,455.  The total amount sought is $222,575.49.  We grant the application in part.
The application was filed pursuant to the Equal Access to Justice Act (EAJA),
5 U.S.C. § 504 (2012).  The EAJA provides that – 


CBCA 3781-C(2235) 2
an agency that conducts an adversary adjudication 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 adjudicative officer of the
agency 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).  The purpose of the law is “to eliminate the barriers that prohibit small
businesses and individuals from securing vindication of their rights in civil actions and
administrative proceedings brought by or against the Federal Government.”  Scarborough
v. Principi, 541 U.S. 401, 406 (2004) (citing H.R. Rep. No. 96-1005, at 9 (1980)).
To be eligible under this Act for recovery of fees and other expenses incurred in
connection with a proceeding, an applicant must meet several requirements.  It must:
(1) have been a prevailing party in a proceeding against the United States;
(2) if a partnership, have had not more than $7,000,000 in net worth and five
hundred employees at the time the adversary adjudication was initiated; 
(3) submit its application within thirty days of a final disposition in the
adjudication;
(4) in that application, (a) show that it has met the requirements as to having
prevailed and size (numbers (1) and (2) above) and (b) state the amount sought
and include an itemized statement of costs and attorney fees; and
(5) allege that the position of the agency was not substantially justified.
5 U.S.C. § 504(a)(1), (2), (b)(1)(B); see Doty v. United States, 71 F.3d 384, 385 (Fed. Cir.
1995); A&B Limited Partnership v. General Services Administration, GSBCA
16322-C(15208), 04-2 BCA ¶ 32,641, at 161,511; McTeague Construction Co. v. General
Services Administration, GSBCA 15479-C(14765), 01-2 BCA ¶ 31,462, at 155,333; DRC
Corp. v. Department of Commerce, GSBCA 15172-C(14919-COM), 00-1 BCA ¶ 30,841, at
152,226.
RS&G has met all of these requirements.  It was the prevailing party in the underlying
case, for it “succeed[ed] on any significant issue in litigation which achieves some of the
benefit [it] sought in bringing suit.”  Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).  The
contractor was awarded $544,328.40, nearly 72% of the amount claimed, in the face of the
position taken by the International Boundary and Water Commission (IBWC), which was the

CBCA 3781-C(2235) 3
respondent in the case, that the contractor was entitled to nothing.  RS&G had not more than
$7,000,000 in net worth and five hundred employees at the time the adversary adjudication
was initiated.  It submitted its application within thirty days of a final disposition of the case
(when the time for filing an appeal to the Court of Appeals for the Federal Circuit had run). 
RS&G has, in its application, shown that it met the requirements as to having prevailed and
size,1 and stated the amount sought with an itemized statement of costs and attorney fees. 
The contractor has also alleged that the IBWC’s position was not substantially justified – that
the position was not “justified to a degree that could satisfy a reasonable person,” Pierce v.
Underwood, 487 U.S. 552, 565 (1988).  
The IBWC has not alleged that its position was substantially justified.  This is clearly
a prudent posture.  The agency’s contracting officer denied the claim before it was even
made and later, after another contracting officer suggested that the claim might be worth
something, the agency ultimately refused to pay anything.  The Board found that RS&G was
clearly entitled to and awarded the great majority of the money the contractor sought.  We
expressly find that the agency’s position was not substantially justified.  RS&G is eligible
for an award under the EAJA.
The contractor seeks an award of the following costs:
Attorney fees:  623.3 hours at $250 per hour, for a total of $155,825
Paralegal fees: 19.2 hours at $100 per hour, for a total of $1920
Attorney costs: $5628.86
Fees charged by consultant Gene H. Beisman of Beisman Associates, at $147
per hour: $39,234.30
Fees charged by accountants Dean Willingham, Henry South, and Diana
Sandoval of Atkinson Co., at hourly rates of $85 (Sandoval), $200
(Willingham and South), and $250 (Willingham at hearing): $6133.50
1 In its opposition to the application, the IBWC points out that exhibits to the
application show that RS&G that met the requirements as of November 6, 2013, rather than
at the time adjudication was initiated.  In response, RS&G provided evidence that it met the
requirements at the requisite time.

CBCA 3781-C(2235) 4
Gross receipts tax on attorney fees ($10,697.25), paralegal fees ($134.40),
consultant’s fees ($2378.58), and accountants’ fees ($429.35)
The IBWC challenges some of these costs.  We discuss the agency’s objections below.
As to attorney fees, the agency makes three objections: (a) 6.7 hours of the attorney’s
time is not reimbursable because it was incurred before the underlying appeal was filed at the
Board; (b) the number of hours the contractor’s attorney spent on the case appears
“unreasonable and excessive in our experience”; and (c) none of the time should be
reimbursed at a rate greater than $125 per hour.
The first two points are not well taken.  (a) The EAJA allows reimbursement of costs
which were incurred in connection with an “adversary adjudication,” 5 U.S.C. § 504(a)(1),
and our decisions hold that an adversary action begins when the contractor receives the
contracting officer’s decision.  TST Tallahassee, LLC v. Department of Veterans Affairs,
CBCA 2472-C(1576), 12-1 BCA ¶ 35,037 (2011); ROI Investments v. General Services
Administration, GSBCA 15488-C(15037-C)-REIN, 01-1 BCA ¶ 31,352, at 154,827 (citing
cases).  All 6.7 hours to which the agency directs our attention occurred after RS&G received
the contracting officer’s decision, so those hours are reimbursable.
(b) The IBWC has no experience with similar cases, and thus no standard against
which it might measure the reasonableness of the number of hours devoted to the case.  In
any event, as RS&G notes, the time the attorney devoted to the case was prolonged by the
need to defend against various unnecessary actions taken by the agency, including initiation
of an inspector general investigation of the claim which resulted in a finding that the
agency’s allegations were unfounded, assertions by agency employee Christopher Parker
which the Board held to be thoroughly misplaced, and untrue representations that various
witnesses would be presented at hearing.
(c)  The agency’s third point regarding attorney fees is correct, however.  The EAJA
provides that “attorney or agent fees shall not be awarded in excess of $125 per hour unless
the agency determines by regulation that an increase in the cost of living or a special factor,
such as the limited availability of qualified attorneys or agents for the proceedings involved,
justifies a higher fee.”  5 U.S.C. § 504(b)(1)(A).  As the IBWC notes, the agency has not
promulgated a regulation justifying a fee higher than $125 per hour.  This in itself precludes
an award at a higher rate.  TST Tallahassee; Tidewater Contractors, Inc. v. Department of
Transportation, CBCA 982-C(50), 08-2 BCA ¶ 33,908, at 167,790.  Even if the agency had
promulgated such a regulation, the Supreme Court has held that the phrase “limited
availability of qualified attorneys . . . for the proceedings involved” must be interpreted
restrictively.  It “must refer to attorneys ‘qualified for the proceedings’ in some specialized

CBCA 3781-C(2235) 5
sense,” such as an identifiable practice speciality like patent law or knowledge of foreign law
or language.  Pierce v. Underwood, 487 U.S. at 571-72.  We do not accept RS&G’s
contention that the limited availability of New Mexico lawyers experienced in public
procurement and construction law meets this requirement.  We therefore reduce the amount
claimed for attorney fees by half, from $250 to $125 per hour.  The amount allowed is
$77,912.50.
The IBWC maintains that compensation for paralegal services should be based on
the reasonable cost of those services to the law firm which employs the paralegal, not the cost
of those services to the client.  That was the rule in the Federal Circuit under Richlin Security
Service Co. v. Chertoff, 472 F.3d 1370 (Fed. Cir. 2006).  That decision was reversed by the
Supreme Court, however, in Richlin Security Service Co. v. Chertoff, 553 U.S. 571 (2008). 
It is now clear that “paralegal fees are recoverable as attorney’s fees at their ‘prevailing
market rates.’”  Id. at 590.  RS&G is entitled to the entire amount claimed for paralegal fees,
$1920.
The agency does not challenge any of the various costs incurred by RS&G’s
attorney for items including court reporting services, document copying, office supplies, and
courier services.  We award the entire amount sought, $5628.86.
With one small exception, the IBWC does not object to our awarding to RS&G the
expert fees charged by its construction cost consultant and accountants.  This is prudent, for
the EAJA permits recovery of “the reasonable expenses of expert witnesses, the reasonable
cost of any study, analysis, engineering report, test, or project which is found . . . to be
necessary for the preparation of the party’s case,” 5 U.S.C. § 504(b)(1)(A), and the costs in
question fall into this category.  The agency maintains, however, that because the EAJA
provides that “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)(1)(A)(i), the hourly rate for these individuals should be limited to the rate of pay of
agency witness Parker, $45.74.  As RS&G points out, Mr. Parker’s pay rate is of no
relevance to this case because he was not an expert witness.  The IBWC did not attempt to
qualify him as an expert at hearing, and the Board expressly held that “whatever expertise
he may have is not applicable to analyzing RS&G’s . . . claim.”  13 BCA at 173,868.  We
find that the fees charged by the contractor’s consultant and accountants were at reasonable
rates and for reasonable amounts of time.  
The one minor challenge to the expert fees raised by the IBWC is that sixteen hours
of construction cost consultant Beisman’s time for November 2012 were not substantiated
and were double-billed.  In responding to the agency’s objection, RS&G has provided
evidence that neither of these allegations is correct; the issue was prompted by an incomplete

CBCA 3781-C(2235) 6
and inaccurate presentation of invoices and has now been corrected.  We award all that is
sought for the fees of Mr. Beisman and the accountants.
The agency’s final objection is to reimbursing RS&G for the gross receipts tax it paid
on the fees charged for attorney, paralegal, consultant, and accountant services.  This tax is
not called out in the EAJA, the agency notes, and is not a “reasonable attorney or agent fee.” 
While the agency’s assertions are true, they are also irrelevant.  The EAJA does not limit
recovery to attorney and agent fees; it provides also for an award of “other expenses incurred
by [a prevailing] party in connection with [a] proceeding.”  5 U.S.C. § 504(a)(1).  The Act’s
examples of recoverable expenses are “not an exclusive listing.”  A tribunal “in its discretion,
may award . . . those reasonable and necessary expenses of an attorney incurred or paid in
preparation for trial of the specific case before the [tribunal], which expenses are those
customarily charged to the client where the case is tried.”  Oliveira v. United States, 827 F.2d
735, 744 (Fed. Cir. 1987).  The gross receipt tax paid by RS&G was reasonably and
necessarily paid by the contractor, since it was required by the State of New Mexico to be
paid on the fees charged by the various professionals for their services.  See N.M. Stat. Ann.
§§ 7-9-3.5(A)(1); 7-9-4.
Decision
The application is GRANTED IN PART.  We direct the IBWC to pay to RS&G,
pursuant to the EAJA, all those sums which are sought by the contractor, other than half of
the attorney fees and the gross receipts tax associated with those fees.  These sums are:
$77,912.50 in attorney fees, $1920 in paralegal fees, $5348.63 in gross receipts tax on
attorney fees, $134.40 in gross receipts tax on paralegal fees, $5628.86 in miscellaneous
costs incurred by the attorney, $41,612.88 in consultant fees (including gross receipts tax),
and $6562.85 in accountant fees (including gross receipts tax).  The total is $139,120.12.
_________________________
STEPHEN M. DANIELS
Board Judge

CBCA 3781-C(2235) 7
We concur:
_________________________ _________________________
ALLAN H. GOODMAN JEROME M. DRUMMOND
Board Judge Board Judge