#### HEDSTROM LUMBER COMPANY, INC. v. The UNITED STATES.

No. 116-81L.

United States Claims Court.

March 8, 1985.

Michael K. Donovan, Duluth, Minn., for plaintiff.

James T. Draude, Washington, D.C., with whom was Asst. Atty. Gen., F. Henry Habicht, II, Washington, D.C., for defendant.

ORDER

YOCK, Judge.

The plaintiff, Hedstrom Lumber Company, Inc., has timely filed an application for attorneys’ fees, costs and expenses, under the Equal Access to Justice Act, 28 U.S.C. § 2412 (1982) (EAJA), in the amount of $48,362.98. The basis for such application is that the position of the Government in this action was not substantially justified. The Government filed a brief in opposition to such application, asserting that its position was substantially justified. This Court *511has jurisdiction to award attorneys’ fees, costs and expenses under the EAJA in this case. *See Snowbank Enterprises, Inc. v. United States,*7 Cl.Ct. 388 (1985).

After a three-day trial was conducted on July 20-22, 1982, the plaintiff convinced this Court that it was entitled to something more than the Government had offered as compensation for its taking of the Laurentian timber sale contract but something less than the plaintiff had sought at trial. *Hedstrom Lumber Company v. United States,*7 Cl.Ct. 16 (1984). At trial, the plaintiff argued that it was entitled to recover $56,687 for the Government’s taking of the Laurentian timber sale contract. *Id.*at 24-25. The defendant responded that the maximum compensation due was $7,447.62. *Id.*at 25. In its opinion, this Court determined that the plaintiff was entitled to recover $15,643.39, plus interest, as just compensation for the Government’s termination of the Laurentian contract. *Id.*at 32. In addition, the Court awarded the plaintiff $4,691.15 as compensation for its costs in directly fulfilling the terms of the terminated contract. *Id.*at 33. Thus, the plaintiff actually recovered $20,334.54, plus appropriate interest. This award reflects an amount some $13,000 more than the Government contended the Laurentian contract was worth but some $36,000 less than the plaintiff contended it was entitled to in damages.

Under the EAJA, attorneys’ fees and expenses are recoverable by a party only if the Government’s position in the adversary adjudication was not substantially justified in the “civil action” in which the attorneys’ fees were incurred. 28 U.S.C. § 2412(d)(1)(A) (1982); *Broad Avenue Laundry and Tailoring v. United States,*693 F.2d 1387, 1390 (Fed.Cir.1982); *Snowbank Enterprises, Inc. v. United States, supra,*at 389. The test for substantial justification is one of reasonableness. *Ellis v. United States,*711 F.2d 1571, 1575-76 (Fed.Cir.1983). In order to avoid an award of attorneys’ fees and expenses, the Government bears the burden of proof that its position had a reasonable basis in law and fact. *Id.*The legislative history of the EAJA provides additional guidance:

> The standard, however, should not be read to raise a presumption that the Government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing.

H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11, *reprinted in,*1980 U.S.Code Cong. & Ad. News 4953, 4984, 4990.

While the Court found that the Government’s valuation of the Laurentian contract was inadequate, it also determined that the plaintiff’s valuation was excessive. *See Hedstrom Lumber Co. v. United States, supra,*7 Cl.Ct. at 29-34. After considering the entire record in this case, the Court finds that the Government’s position was substantially justified and, as required by section 2412(d)(1)(A), denies the plaintiff’s application for attorneys’ fees and expenses.

In addition to attorneys’ fees and expenses, the plaintiff has applied for costs under the EAJA. An award of costs is a discretionary matter for the Court and is not governed by the “substantially justified” test. *AABCO, Inc. v. United States,*3 Cl.Ct. 700, 704 (1983); *Hill v. United States,*3 Cl.Ct. 428, 430 (1983); *Clark v. United States,*3 Cl.Ct. 194, 197-98 (1983). This Court’s predecessor, the United States Court of Claims, whose decisions are now binding precedent on this Court, customarily denied costs to either party. *Timken Co. v. United States,*218 Ct.Cl. 633, 636, 590 F.2d 342 (1978); *Aparacor, Inc. v. United States,*215 Ct.Cl. 596, 607, 571 F.2d 552, 558 (1978). Here, the facts presented simply do not justify this Court’s deviation from its prior customary practice. *See Snowbank Enterprises, Inc. v. United States, supra.*Therefore, the Court, in its discretion, concludes that the plaintiff's application for costs should also be denied, with each party to bear its own costs.

*512For the reasons stated above, the plaintiffs application for attorneys’ fees, expenses, and costs is to be dismissed.

IT IS SO ORDERED.