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U.S. Court of Federal Claims Issues Reported Opinion Involving Westdale Northwest Center Vs. U.S.
WASHINGTON, May 26 -- The U.S. Court of Federal Claims issued the following reported opinion (Case No. 16-113):WESTDALE NORTHWEST CENTER, LP, Plaintiff, v. UNITED STATES, Defendant.
Jennifer A. Gehrt, Barbee & Gehrt, LLP, Dallas, TX, for the plaintiff.
Michael D. Austin, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, for the defendant, with Helen Kerns, General Counsel Office, General Services Administration, of counsel.
MEMORANDUM OPINION
HERTLING, Judge
The Court awarded judgment for the plaintiff, Westdale Northwest Center, LP ("Westdale"), after ... Show Full Article WASHINGTON, May 26 -- The U.S. Court of Federal Claims issued the following reported opinion (Case No. 16-113): WESTDALE NORTHWEST CENTER, LP, Plaintiff, v. UNITED STATES, Defendant. Jennifer A. Gehrt, Barbee & Gehrt, LLP, Dallas, TX, for the plaintiff. Michael D. Austin, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, for the defendant, with Helen Kerns, General Counsel Office, General Services Administration, of counsel. MEMORANDUM OPINION HERTLING, Judge The Court awarded judgment for the plaintiff, Westdale Northwest Center, LP ("Westdale"), aftera trial on the merits regarding a contract dispute. The Court reformed a lease between Westdale and the defendant, the United States, acting through the General Services Administration ("GSA").
The plaintiff now seeks attorney's fees and research expenses as authorized by the Equal Access to Justice Act ("EAJA"), 28 U.S.C. Sec. 2412, in the amount of $106,058.99. Under the EAJA, the plaintiff was a "prevailing party," and the government's position was not "substantially justified." Westdale prevailed, however, on only some of its claims. Awarding attorney's fees for time spent on the entire litigation therefore would not be reasonable. Accordingly, the Court grants the plaintiff's motion for attorney's fees in part and awards the plaintiff $76,064.31.
I. BACKGROUND
The Court's decision on the merits, Westdale Northwest Center, LP v. United States, 154 Fed. Cl. 557 (2021), sets forth the facts of this case, which are only briefly recounted here.
A. Factual Background
Westdale leases office space to GSA in San Antonio, Texas. GSA drafted the lease and negotiated it with Griffin Partners, Inc., ("Griffin Partners") from which Westdale acquired the building. SAOP Northwest Center, LP ("SAOP"), a single-asset entity of Griffin Partners, renewed a lease with GSA in 2010. Under the lease, the parties intended that GSA pay its share of the lessor's real-estate taxes to Bexar County at a rate proportional to the percentage of the building GSA occupied.
The lease defined the real-estate tax base as "the Unadjusted Real Estate Taxes for the Property for the first full Tax Year for which the Real Estate Taxes are based upon a Full Assessment," or alternatively, "an amount negotiated by the parties that reflects an agreed upon base for a Fully Assessed value of the property." Id. at 567. The unadjusted real-estate taxes on the property for the first full tax year after a full assessment were an amount with a base of $726,629. For the first year of the lease, SAOP paid $541,020.95 in taxes to Bexar County for the whole building. The lease, however, reflected neither of those figures; paragraph 15 of the lease noted: "In accordance with the SFO Paragraph 4.2 entitled 'Tax Adjustment,' this lease is subject to real estate tax adjustment. The base amount is established as $133,045.00." Id. at 566.
In 2012, because SAOP's actual tax assessed ($541,020.95) exceeded the real-estate tax base established in the lease ($133,045), SAOP determined that GSA had underpaid its portion of real-estate taxes and requested an additional payment of $37,348.98. GSA paid that amount.
Westdale acquired the building from SAOP in 2013. Westdale had conducted due diligence during which a GSA contracting officer had sent Westdale a letter informing Westdale that the lease was in full force and effect, no rental was paid in advance, and there were no notices of default. At the time, SAOP and GSA were unaware of the mistake in the tax base in the original lease. Upon acquiring the building from SAOP, Westdale assumed all of SAOP's obligations and liabilities under the lease with GSA.
In 2014, Westdale sent GSA a letter pertaining to taxes owed for the year 2013. Westdale notified GSA that it owed Westdale $86,446.84, which GSA paid. A few months later, following an audit of the lease, GSA determined that it had overpaid its portion of real-estate taxes by $79,027.78. GSA deducted that amount from its rent payments until the amount was repaid in full. GSA also notified Westdale for the first time of its position that the real-estate tax base listed in the lease was erroneous.
In 2015, Westdale and GSA amended the lease to increase the space occupied by GSA. Even as the parties amended the lease, they retained the original tax base, $133,045, despite GSA's claim that it was erroneous. A few months after the lease amendment, Westdale again notified GSA via email that GSA owed it more money under the lease for its share of the realestate taxes for tax year 2014. A GSA contracting officer contested that assertion, argued that GSA had overpaid, and sought to amend the tax base in the lease, but Westdale declined to sign the amendment.
Westdale and GSA continued to dispute the amounts GSA owed for tax years 2015 through 2019. Each year, Westdale requested GSA pay additional sums pursuant to the realestate tax base specified in the lease, but GSA would pay only a fraction of that amount. Westdale presented four certified claims to a GSA contracting officer for the alleged shortfalls in the real-estate tax payments under the lease, and the contracting officer issued four final decisions denying those claims.
B. Procedural Background
The plaintiff filed a five-count complaint on January 27, 2016. (ECF 1.) In Count One, the plaintiff alleged that the defendant had breached the contract by failing to pay all money due under the lease. (Id. at 13.) In Count Two, the plaintiff alleged that the defendant had breached the contract by withholding rent payments. (Id. at 13-14.) In Count Three, the plaintiff alleged that the defendant had breached the contract by withholding payments exceeding those claimed. (Id. at 14.) The plaintiff sought declaratory relief in Count Four. (Id. at 14-15.) In Count Five, the plaintiff requested reformation of the lease, in the alternative, should the Court find that the tax base was a result of mutual mistake or scrivener's error. (Id. at 15-17.)
The defendant filed a motion to dismiss under Rule 12(b)(6) of the Rules of the Court of Federal Claims ("RCFC") or, in the alternative, a motion for summary judgment under RCFC 56(a). (ECF 9.) The defendant's motion to dismiss was denied, and consideration of the defendant's motion for summary judgment was stayed pending discovery. (ECF 28.) The case was referred for alternative dispute resolution ("ADR") (ECF 44), which proved unsuccessful. (ECF 49.) Upon the close of discovery and the end of the ADR, the parties cross-moved for summary judgment. (ECF 55; ECF 57.) Their motions were denied because the then-presiding judge determined there remained genuine issues of material fact as to the intent of the original parties to the lease. (ECF 62.) The case was then transferred to the undersigned. (ECF 65.)
The Court held a trial in January 2021. The plaintiff argued that the contract unambiguously noted that $133,045 was the real-estate tax base. (Post-Trial Br., ECF 138 at 5.) The plaintiff also argued that the error, to the extent that the tax base was erroneous, was a unilateral mistake by the government for which the government should bear responsibility. Furthermore, as a good-faith purchaser for value, the plaintiff contended that it was entitled to damages for GSA's breach of contract and that reformation of the contract was inappropriate. The plaintiff also argued that the defendant's unclean hands and ratification or waiver of the mistake precluded it from withholding the funds due to the plaintiff. The plaintiff sought damages of $567,376.80.
The defendant argued that the lease was ambiguous regarding the appropriate tax base and that the tax base listed in the original lease was a result of mutual mistake. (Post-Trial Br., ECF 137 at 21-22.) The defendant sought reformation of the contract to implement the figure of $726,629 as the real-estate tax base.
The plaintiff opposed contract reformation but argued as a "strictly alternative claim" that if the Court were to reform the contract, the amount $726,629 would be inappropriate to use as a tax base. (ECF 138 at 22-23.)
The Court concluded that the tax base in the lease was unambiguous--it was neither patently nor latently ambiguous. The erroneous tax base was not so obvious that the parties should have noticed it; GSA had the opportunity to notice the error in drafting the lease, amending the lease, and considering its additional payments of real-estate taxes to the lessor in 2012 and 2013. The tax-base figure also was not reasonably susceptible to more than one interpretation.
Although the tax base in the lease was unambiguous, the Court considered the defense of mutual mistake offered by the defendant. The Court found based on witness testimony that the original tax base of $133,045 in the terms of the lease reflected mutual mistake by the original contracting parties. Although Westdale was a good-faith purchaser, that fact did not preclude reformation of the contract.
The Court determined that reformation was appropriate but rejected the defendant's proposed tax base of $726,629. If the original lessor, Griffin Partners, had been the plaintiff, "the Court would not [have] hesitate[d] to rule for the government and reform the contract to reflect a tax base of $726,629." Westdale, 154 Fed. Cl. at 587. Westdale, however, was not "receiving the full benefit of the bargain from its purchase," and using the $726,629 estimate "would unduly burden Westdale, an innocent third-party, good-faith purchaser." Id. The Court therefore reformed the contract to reflect a tax base of $541,020.95, which was based on realestate taxes for the first year of the lease and more accurately reflected the intention of the negotiating parties. Id. at 586-87.
Based on the parties' calculation of damages and interest, the Court directed the Clerk to enter final judgment for the plaintiff in the amount of $173,226.14. (ECF 149.) Neither party appealed. Costs were taxed in the amount of $5,919.12 against the defendant. (ECF 163.)
The plaintiff then filed a timely motion for attorney's fees and research expenses under the EAJA in the amount of $104,197.83. (ECF 158 at 23.) The defendant filed a response opposing the plaintiff's motion. (ECF 166.) The plaintiff filed a reply brief and appended to that brief a declaration in support of its claim that its counsel had spent 9.2 hours responding to the defendant's opposition to the motion, corresponding to $1,861 in additional fees. (ECF 168, 169.)
The Court convened the parties for a status conference on March 16, 2022, during which the Court provided its impressions on the pending EAJA-fee application and gave the parties 45 days to attempt to resolve the plaintiff's motion between themselves. On April 27, 2022, the parties filed a joint status report indicating that they were unable to reach an agreement. (ECF 174.) Oral argument is not necessary to resolve the motion.
II. DISCUSSION
The EAJA permits the court to award attorney's fees to a plaintiff if certain conditions are met:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. Sec. 2412(d)(1)(A).
The Supreme Court has set forth four requirements for a fee award in a civil action:
(1) that the claimant be a "prevailing party"; (2) that the Government's position was not "substantially justified"; (3) that no "special circumstances make an award unjust"; and, (4) pursuant to 28 U.S.C. Sec. 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement.
Comm'r, I.N.S. v. Jean, 496 U.S. 154, 158 (1990).
Under the EAJA, a "party" includes a partnership with a net worth not exceeding $7,000,000 and no more than 500 employees. 28 U.S.C. Sec. 2412(d)(2)(B). The term "fees and other expenses" "includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party's case, and reasonable attorney fees," which are not to exceed $125 per hour unless there has been an increase in the cost of living or a special factor. Id. Sec. 2412(d)(2)(A).
In its motion for attorney's fees, the plaintiff argues that it meets all criteria for award under the EAJA. (ECF 158.) The defendant does not dispute that Westdale qualifies as a "party" under the EAJA, that the plaintiff's proposed hourly rate is reasonable, or that the plaintiff's application is timely. (ECF 166 at 3-4.) The defendant also does not argue that a special circumstance makes award unjust. Rather, in its response opposing the plaintiff's motion, the defendant disputes that the plaintiff is a "prevailing party" and argues that the government's position was "substantially justified." In the alternative, the defendant argues that the plaintiff's fees should be reduced to account for the limited success achieved in the litigation. (Id. at 11.)
Remaining in dispute are three issues: (1) whether the plaintiff qualifies as a "prevailing party"; (2) whether the government's position was "substantially justified"; and (3) if the plaintiff is entitled to attorney's fees, whether those fees are subject to reduction.
A. Prevailing Party Status
1. Legal Standard
The EAJA does not define a "prevailing party" as it relates to this type of litigation./1
The Supreme Court has held that "a plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). In short, "a 'prevailing party' is one who has been awarded some relief by the court . . . ." Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't Health & Hum. Res., 532 U.S. 598, 603 (2001) (emphasis added).
The Supreme Court has consistently held that the magnitude of relief awarded is irrelevant to the question of whether a plaintiff prevailed. See Buckhannon, 532 U.S. at 603; Farrar, 506 U.S. at 114. For example, a party "prevailed" in litigation even when it received only nominal damages. Farrar, 506 U.S. at 112. A party that obtained a court-ordered consent decree was also deemed to have prevailed. Hanrahan v. Hampton, 446 U.S. 754, 756-57 (1980)./2
The Federal Circuit has held that plaintiffs prevailed when they succeeded on the merits upon remand to an agency when a court retained jurisdiction. Former Emps. Motorola Ceramic Prods. v. United States, 336 F.3d 1360, 1367 (Fed. Cir. 2003). If the defendant's voluntary change in conduct, however, is what causes the material alteration of the legal relationship, the plaintiff is not a "prevailing party." See Buckhannon, 532 U.S. at 605.
2. Application of the Legal Standard
The plaintiff argues that it is a "prevailing party" because the post-trial decision materially altered the lease governing the legal relationship between Westdale and GSA, resulting in a judgment for the plaintiff and an award of damages in the amount of $173,226.14, inclusive of interest. (ECF 158 at 6-7.)
The defendant argues that the Court "explicitly granted the United States' affirmative defense of reformation due to mutual mistake." (ECF 166 at 5); see Westdale, 154 Fed. Cl. at 582-85. The defendant contends that the plaintiff does not qualify as a prevailing party just because the Court employed equitable principles when reforming the lease to reflect the realestate tax base proposed by the plaintiff only as an alternative last resort. The defendant notes that the plaintiff was unsuccessful on the first four counts in its complaint and did not recover most of the damages it sought.
The plaintiff counters that the success of the plaintiff's alternative claim for relief should not preclude an award of attorney's fees. (ECF 168 at 4-9.) The plaintiff underscores that the Court also ruled against the defendant regarding the ambiguity of the contract.
The defendant's understanding of the legal standards defining a "prevailing party" is too rigid. The Court did adopt some of the defendant's arguments, including that the tax base in the contract was due to mutual mistake, that parol evidence was admissible, and that reformation of the lease was appropriate. The question, however, is not whether the defendant prevailed on any claims, but rather whether the plaintiff prevailed on any of its claims. And the plaintiff prevailed in arguing that the defendant's proposed tax base was incorrect and that the GSA had wrongfully withheld portions of its rent payments under its erroneous interpretation of the lease. This claim was at the heart of Count Five of the plaintiff's complaint and was argued in the alternative at trial. Although the plaintiff did not obtain relief directly on the other counts in its complaint and was not awarded all the damages it sought, those facts do not preclude the finding that Westdale is a "prevailing party" eligible for an award under the EAJA. See Buckhannon, 532 U.S. at 603; Farrar, 506 U.S. at 114.
Under the Supreme Court's precedents, the plaintiff was a "prevailing party." The posttrial decision materially altered the legal relationship between the parties to the plaintiff's benefit and awarded the plaintiff some relief on the merits. See Farrar, 506 U.S. at 111; Buckhannon, 532 U.S. at 603. Prior to the litigation, the "legal relationship" between Westdale and GSA was in dispute: Westdale was operating under the assumption that $133,045 was the correct tax base; GSA was operating as if $726,629 was the correct tax base. GSA was withholding rent payments based on its understanding of what the lease terms were meant to be, and Westdale disputed those withholdings.
The decision altered the relationship between the parties and modified the defendant's behavior by reforming the lease to include a tax base that reflected the intention of the original parties to the lease. The relationship was altered to the plaintiff's benefit: the government was ordered to pay damages to the plaintiff, and the basis for GSA's withholding of rent payments was rejected. The plaintiff was awarded damages in the amount of $173,226.14, inclusive of interest, in addition to costs. The plaintiff was not awarded all it sought. Its preferred reading of the lease was rejected, and the damages awarded were far less than the plaintiff had sought. Nonetheless, once mutual mistake was found to exist in the drafting of the real-estate tax base, the plaintiff's proposed reformation was chosen over the reformation proposed by the defendant. The plaintiff received "some relief" under the post-trial decision and is thus a "prevailing party." Buckhannon, 532 U.S. at 603.
B. Substantial Justification
Once a plaintiff is found eligible for an award under the EAJA, the burden shifts to the government to demonstrate that its position was substantially justified. Scarborough v. Principi, 541 U.S. 401, 414 (2004). A position is substantially justified if it has a "reasonable basis both in law and fact," or, in other words, is "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988).
The "'position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based . . . ." 28 U.S.C. Sec. 2412(d)(2)(D). In evaluating motions for attorney's fees under the EAJA, "the entirety of the conduct of the government is to be viewed, including the action or inaction by the agency prior to litigation." Chiu v. United States, 948 F.2d 711, 715 (Fed. Cir. 1991). A court must make "only one threshold determination for the entire civil action" as to whether the defendant's position was substantially justified. Jean, 496 U.S. at 159. The Court therefore analyzes both GSA's position giving rise to the litigation and the defendant's position during the litigation.
1. GSA's Position before Litigation
The plaintiff argues that GSA exhibited a "lack of diligence" on numerous occasions, including by failing to refer to the actual language of the lease when disagreements arose and by improperly certifying to Westdale that the lease was in full force and effect and that no rents had been paid in advance. (ECF 158 at 11-12.) The plaintiff also contends that the GSA contracting officer acted as a mere "rubber-stamp" in approving the lease and that GSA violated the Contract Disputes Act ("CDA") by withholding rent payments without first making a claim and obtaining a final decision from a contracting officer on that claim. (Id. at 12.)
In responding to the plaintiff's motion, the defendant does not address GSA's conduct prior to the litigation. (ECF 166 at 9-12.) The defendant asserts that the plaintiff's "cherry pick[ing]" of instances when the government's position was not substantially justified "reflects a misunderstanding of substantial justification." (Id. at 10.)
The post-trial decision provides three examples of instances in which GSA's conduct with respect to the lease and the plaintiff was patently wrong and unjustifiable. First, the "GSA drafted the lease incorrectly by including an erroneous tax base." Westdale, 154 Fed. Cl. at 579. SAOP failed to catch the error when its officials reviewed the proposed lease, but that oversight does not excuse the initial error made by GSA officials. Second, GSA proceeded to pay SAOP and Westdale according to the express, albeit erroneous, real-estate tax base for the first two years of the lease. Third, even when GSA increased its occupancy and amended the lease to reflect added square footage (which should have resulted in a revision to the real-estate tax base), GSA officials failed to catch their earlier error and repeated it in the revised lease. GSA made the same mistake "in multiple instances that could have been caught through accurate drafting and careful proofreading." Id.
Even after GSA officials uncovered the error they had made when drafting the lease, the remedial actions they took did not reflect a "reasonable basis both in law and fact." Underwood, 487 U.S. at 565. GSA failed to recognize that Westdale, as an innocent third party, was not at fault for the mistake in the lease; GSA itself had erred. Furthermore, GSA declined to resolve the dispute through negotiation, mediation, or CDA processes, choosing instead to withhold rent payments despite the absence of a final CDA decision on the record./3
The defendant, in its briefing on this motion, has chosen not even to try to show that GSA's actions during the pre-litigation portion of this dispute were substantially justified. The defendant cannot meet its burden with silence. See Scarborough, 541 U.S. at 414 (holding that the government bears the burden of substantially justifying its conduct). The GSA's pre-suit behavior was not substantially justified.
2. The Defendant's Position in Litigation
The plaintiff also argues that the defendant's position during the litigation was not substantially justified. (ECF 158 at 16-20.) The plaintiff contends that the defendant's motion to dismiss the case under RCFC 12(b)(6) resulted in a needless year-long delay. Additionally, the plaintiff argues that the defendant advanced inconsistent positions and delayed pleading any affirmative defenses until less than a year before the case was tried.
The defendant argues that its position was substantially justified because the Court ultimately accepted its argument that the real-estate tax base provision of the lease was a result of mutual mistake and, accordingly, reformed the contract. (ECF 166 at 9-10.) The defendant also underscores that the plaintiff did not prevail on all its claims, and the plaintiff did not recover the full amount of the damages it sought.
The plaintiff replies that the defendant's silence on the specific issues highlighted by the plaintiff demonstrate "that the Government did not prove that its conduct was substantially justified because it refused to address its conduct at all." (ECF 168 at 13.)
The defendant correctly notes that it prevailed on the major premise of its position, but that fact alone is insufficient to demonstrate that its overall position during the litigation was substantially justified. The Supreme Court has addressed this issue:
Obviously, the fact that one other court agreed or disagreed with the Government does not establish whether its position was substantially justified. Conceivably, the Government could take a position that is not substantially justified, yet win; even more likely, it could take a position that is substantially justified, yet lose.
Underwood, 487 U.S. at 569. Rather than simply looking at the final scoreboard, a court must examine objective indicia of the merits of the government's litigating position in determining whether the government's position in litigation was substantially justified. See id.
Contrary to the plaintiff's assertion, the defendant's position has been consistent. The real-estate tax base reflected in the terms of the lease was in error, and, due to that error, Westdale requested GSA to pay a disproportionate share of the property taxes levied on the building. The defendant clung tenaciously to the position that the only proper reformation of the lease would be to strike the real-estate tax base of $133,045 and substitute in its place a tax base of $726,629. That latter number reflected the estimated tax base SAOP included in its proposal to GSA, and the rent was calculated using that tax base. Reforming the lease to include any number other than $726,629 would result in the defendant having to cover more than its share of the real-estate taxes. The Court acknowledged that had the plaintiff been SAOP, the defendant's proposed real-estate tax base would have been adopted. Westdale, 154 Fed. Cl. at 586. SAOP was not, however, the plaintiff.
At all stages of the litigation, the defendant failed to recognize that Westdale was not an original party to the lease and therefore had no reason to know of the mistake in the real-estate tax base. The mistake was unambiguous and entirely the fault of the defendant and the original lessor. The defendant made lease payments in accordance with the unambiguous but erroneous lease provision during the first two years of the lease, including the period when Westdale was purchasing the building. The plaintiff is not a mind-reader, yet the defendant unilaterally interpreted the lease in a manner that penalized the plaintiff for failing to read the minds of GSA officials. Notwithstanding the merit of the defendant's claim of mutual mistake, the defendant's consistent failure to acknowledge the critical fact that the plaintiff was a good-faith, third-party purchaser of the property leads to the conclusion that its position during the litigation was not "justified to a degree that could satisfy a reasonable person." Underwood, 487 U.S. at 565.
In addition, the defendant's failure to engage the plaintiff's specific complaints regarding its conduct weighs against finding that its position was substantially justified. In CEMS, Inc. v. United States, Judge Horn observed that "the government cannot demonstrate that its conduct was reasonable when the government refuses to address its conduct at all." 65 Fed. Cl. 473, 482 (2005). Similarly, in this case, the defendant's focus on the outcome of the case rather than the substance of its position does not satisfy its burden to demonstrate that its position was substantially justified.
The defendant's emphasis on the amount of the plaintiff's recovery is also misplaced. In Baldi Bros. Constructors v. United States, the defendant also chose not to justify its position and instead asserted "that because plaintiff ultimately recovered only 55% of the amount of damages sought, the substantial justification of the Government's litigation position is self-evident." 52 Fed. Cl. 78, 81 (2002). Another judge of this court held that "the fact that the Government successfully defeated certain claims does not alone establish that it so acted with substantial justification." Id. at 82. Analogously, in this case, the damages the plaintiff sought as opposed to the amount it received is inapposite; the defendant's success in defeating some of the plaintiff's claims is also irrelevant. The defendant must establish that its position was substantially justified, and the defendant's focus on the plaintiff's relief rather than the justification of its own position misses the point.
In sum, the defendant has failed to satisfy its burden of demonstrating that its overall position was substantially justified, both prior to and during the litigation.
C. Reduction of Fees
The conditions for eligibility for EAJA fees reflect "a generous formulation that brings the plaintiff only across the statutory threshold. It remains for the [trial] court to determine what fee is 'reasonable.'" Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (discussing the standards applying to a "prevailing party"); see also Jean, 496 U.S. at 160-61 (applying this language to all conditions for eligibility under the EAJA). The EAJA provides that "a court may award reasonable fees and expenses of attorneys . . . ." 28 U.S.C. Sec. 2412(b) (emphasis added). When determining whether proposed EAJA fees are "reasonable," "the most critical factor is the degree of success obtained." Hensley, 461 U.S. at 436.
In Hensley, the Supreme Court explained when it is appropriate for a trial court to award less than the fee sought:
Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.
461 U.S. at 440./4
Therefore, when a plaintiff achieves "limited success," fee reduction is appropriate.
Westdale did not prevail on all its claims. Its primary assertion, reflected in the first four of the five claims of its amended complaint, was that the lease should be enforced as written and that Westdale should receive damages in the amount of $567,376.80 plus interest. The plaintiff failed on its claims to enforce the lease as written. Hence, four of the plaintiff's five claims were rejected in full. Instead, the Court adopted the reformation proposed in the plaintiff's fifth claim, resulting in a recovery of $173,226.14, including interest. The plaintiff therefore achieved only "limited success," so the plaintiff's proposed attorney's fees should be reduced. Hensley, 461 U.S. at 440.
The question then becomes what amount of fees is "reasonable in relation to the results obtained." Id. In reducing fees, a court "may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment." Id. at 436-37.
1. Reduction of Specific Hours
The Federal Circuit has held that "courts properly award attorney fees for time necessarily spent on a successful claim, even if that time was also spent on unsuccessful claims." Smith v. McDonough, 995 F.3d 1338, 1345 (Fed. Cir. 2021). "The relevant inquiry is whether the time spent was 'reasonably expended.'" Id. (quoting Wagner v. Shinseki, 640 F.3d 1255, 1262 (Fed. Cir. 2011)). When a trial court reduces a fee request, it must "provide a reasoned explanation as to why particular attorney hours should be excluded." Wagner, 640 F.3d at 1261.
As summarized above, this case has a protracted procedural history. The plaintiff seeks attorney's fees and research expenses for drafting the complaint, defeating the defendant's motion to dismiss, moving for summary judgment, preparing for trial, conducting trial, drafting post-trial briefs and proposed findings of fact, and pursuing its EAJA request. (ECF 158 at 23.)
The defendant argues that if the plaintiff is eligible for fees under the EAJA, the plaintiff "would be entitled to an award of fees only for the time it spent in contesting [the defendant's] affirmative defense." (ECF 166 at 10.) The defendant's proposed reduction contravenes Jean, in which the Supreme Court articulated a presumption for awarding fees based on the outcome of the case as a whole:
[A] fee award presumptively encompasses all aspects of the civil action. Any given civil action can have numerous phases. While the parties' postures on individual matters may be more or less justified, the EAJA--like other fee-shifting statutes--favors treating a case as an inclusive whole, rather than as atomized lineitems.
496 U.S. at 161-62 (internal footnote omitted).
Applying this precedent, the Federal Circuit has awarded attorney's fees for time spent reviewing the initial record even when some of that time was spent researching unsuccessful claims, reasoning that reviewing the record was "indispensable" to pursuing the plaintiff's claims. Smith, 995 F.3d at 1345.
Similarly, in this case, it was "indispensable" that the plaintiff drafted its complaint, defeated the defendant's motion to dismiss, engaged in discovery and settlement discussions, and prepared for trial to prevail on its successful claim. See id. The defendant's proposal that any award of attorney's fees be limited only to time expended countering the defendant's affirmative defense at trial is inconsistent with Jean and Smith. Pursuant to Jean, the plaintiff's case must be treated presumptively as "an inclusive whole," unless some of the proposed attorney's fees prove unreasonable. See 496 U.S. at 161-62.
The plaintiff's proposed attorney's fees are subject to reduction for the time spent on the plaintiff's unsuccessful cross-motion for summary judgment. When a plaintiff achieves limited success arguing a particular theory at a discrete stage of the litigation, hours spent developing that theory should be excluded from award under the EAJA. See Hubbard v. United States, 80 Fed. Cl. 282, 284-85 (Fed. Cl. 2008) (reducing an award for hours spent on an unsuccessful theory of damages), aff'd, 315 F. App'x 307 (Fed. Cir. 2009). The plaintiff's cross-motion was denied due to the existence of genuine issues of material fact regarding the intent of the parties to the contract, and the plaintiff should have known that outstanding factual issues would prevent a ruling in its favor at that stage of the litigation. The time the plaintiff spent drafting its own summary-judgment motion therefore was not "reasonably expended." See Wagner, 640 F.3d at 1262. It was necessary, however, for the plaintiff to expend time and resources to defeat the defendant's motion for summary judgment.
The plaintiff reports that it spent a total of 97.3 hours analyzing and responding to the defendant's motion for summary judgment and preparing its own cross-motion for summary judgment. (ECF 158 at 22.) From the plaintiff's billing records, it appears that of those 97.3 hours, 28.6 hours were reasonably expended reviewing documents produced by the defendant, reviewing and analyzing the defendant's motion for summary judgment, researching cases cited in the defendant's motion, and preparing for and attending status conferences. The plaintiff is entitled to fees for those hours. The plaintiff, however, spent 3.6 hours developing its own summary-judgment strategy before the defendant filed its motion for summary judgment. (ECF 159 at 101.) Those hours should be excluded from the award of attorney's fees.
From billing records, it appears that the plaintiff spent the remaining 65.1 hours working simultaneously on its response to the government's motion for summary judgment and its own cross-motion for summary judgment, which it filed jointly. (See ECF 57.) Some of that time was also spent on the plaintiff's reply brief. The plaintiff's records do not indicate how much time the plaintiff spent countering the defendant's claims as opposed to raising its own claims, but the filings themselves reflect that about half of the issues the plaintiff raised were in response to the defendant's motion, while about half were its own arguments. (See id.) The time the plaintiff spent supporting its own cross-motion was not reasonably expended. Accordingly, the plaintiff's fees should be reduced by an additional 32.6 hours, representing half of the plaintiff's time spent at the summary-judgment stage.
The plaintiff's fees are therefore reduced by a total of 36.2 hours, which corresponds to a reduction of $7,323.26 to the award, according to the plaintiff's calculation method./5
The plaintiff also incurred $772.88 in legal research expenses during the summary-judgment stage. (ECF 158 at 23.) Of those expenses, the plaintiff spent $153.95 researching its own summary-judgment strategy prior to the defendant's filing of its motion for summary judgment; that expense should therefore be excluded from the award. (ECF 159 at 101.) The plaintiff spent $14.08 researching cases cited in the defendant's motion for summary judgment, and the plaintiff is entitled to reimbursement for that expense. (Id. at 113.) The plaintiff, however, spent the remaining $604.85 on research for its joint response to the defendant's motion and cross-motion for summary judgment. Again, it is unexplained in the record exactly how much of the expenses stem from the plaintiff's claims as opposed to the defendant's claims, but the plaintiff's summary-judgment briefs suggest that about half of the expenses were likely allocated to issues advanced solely by the plaintiff. Accordingly, the plaintiff's proposed legal-research expense award is reduced by $456.38.
2. Reduction of the Overall Award
The Supreme Court has held that a party's limited success sometimes requires a reduction in an award of attorney's fees:
If . . . a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.
Hensley, 461 U.S. at 436.
No rigid formula exists for determining the appropriate amount by which to reduce fees for unsuccessful claims. Id. The Federal Circuit has rejected, for example, mechanically awarding a ratio of attorney's fees based on the ratio of claimed damages that the plaintiff recovered. Hubbard v. United States, 480 F.3d 1327, 1333-34 (Fed. Cir. 2007). Rather, any reduction must be decided on a case-by-case basis while accounting for all relevant factors through the exercise of sound discretion. "The trial court has considerable discretion in determining reasonable attorney fees." Id. at 1334-35. This discretion is "appropriate in view of the [trial] court's superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters." Hensley, 461 U.S. at 437.
In this case, awarding the plaintiff the full amount of attorney's fees requested would be excessive given the results it achieved. The plaintiff was awarded a fraction of the damages it sought, and the plaintiff's arguments that formed the core of its claims were rejected. The plaintiff prevailed only on its claim offered in the alternative, and that claim mirrored the defendant's primary argument in most respects. The plaintiff's claims were interrelated, nonfrivolous, and brought in good faith, but that reality does not preclude a reduction in an EAJA fee award when granting the full amount requested would not reflect the extent of the plaintiff's success. The plaintiff's fee award therefore must be reduced. See Hensley, 461 U.S. at 436.
The Court declines to apply a specific, rigid formula to reduce the plaintiff's recovery of attorney's fees, i.e., awarding the plaintiff only one-fifth of its requested attorney's fees because the plaintiff prevailed on one of its five claims, or awarding the plaintiff only 30 percent of its requested attorney's fees because the plaintiff received approximately 30 percent of the damages it sought. See Hubbard, 480 F.3d at 1333-34.
In the absence of a specific formula, the Court determines that a reduction of 25 percent in the fees sought by the plaintiff is appropriate./6
This reduction reflects that, on the one hand, the plaintiff did not prevail on its core claims. On the other hand, the plaintiff's successful claim was closely related to the plaintiff's unsuccessful claims and relied on the same evidence. Indeed, the facts presented at trial were largely not contested; only the legal effect of the facts was disputed. Additionally, the plaintiff's counsel has already meticulously culled many of the hours she worked in her application for EAJA fees. The plaintiff's request for fees for approximately 500 hours of work in a case that lasted five years and went to trial is hardly outrageous. Nonetheless, the Court must consider the degree of success the plaintiff achieved. A reduction of 25 percent compensates the plaintiff for counsel's work on the case while accounting for the limited degree of success achieved.
A reduction larger than 25 percent is not appropriate. The claims on which the plaintiff failed and the claim on which it prevailed were too interrelated and reliant on the same evidence to support a reduction of more than 25 percent. The plaintiff's claims, both successful and unsuccessful, depended on the same discovery and the same arguments. The case presented distinctive facts with no clearly dispositive legal precedent.
The plaintiff seeks $102,899.77 in attorney's fees. The plaintiff spent 33.2 hours applying for EAJA fees and responding to the defendant's opposition brief, corresponding to $6,716.36 in fees. The plaintiff is granted that amount in full. Cf. Jean, 496 U.S. at 162 (presuming that EAJA fees should be awarded as a whole).
Of the remaining $96,183.41 requested attorney's fees, the Court has already deducted $7,323.26, corresponding to fees for the plaintiff's unsuccessful motion for summary judgment.
The remaining $88,860.15 in requested fees should be reduced by 25 percent, leaving the plaintiff with $66,645.11. Combined with the fees the plaintiff incurred in drafting and defending its EAJA motion ($6,716.36), the plaintiff is entitled to a total of $73,361.47 for attorney's fees.
The plaintiff also requests reimbursed research expenses of $3,159.22, from which the Court has deducted $456.38. The Court will award the full amount of these remaining costs ($2,702.84). The plaintiff is therefore entitled to an award of $76,064.31.
III. CONCLUSION
The plaintiff is eligible for a fee award under the EAJA. The plaintiff is a prevailing party, and the government's position was not substantially justified. A reduction of the fee award, however, is reasonable given the plaintiff's limited success. The plaintiff's application for fees is granted in part and the plaintiff is awarded $76,064.31 in fees and costs under the EAJA.
The Court will enter an order in accordance with this memorandum opinion.
Richard A. Hertling, Judge
* * *
Footnotes:
1/ The EAJA defines "prevailing party" only regarding "eminent domain proceedings." 28 U.S.C. Sec. 2412(d)(2)(H).
2/ Although Farrar and Hanrahan address the meaning of "prevailing party" under the Civil Rights Attorney's Fees Award Act of 1976, the "Supreme Court has interpreted the phrase 'prevailing party' consistently across all federal fee-shifting statutes." Former Emps. Motorola Ceramic Prods. v. United States, 336 F.3d 1360, 1364 (Fed. Cir. 2003).
3/ In its motion for attorney's fees, the plaintiff argues that GSA was required to obtain a final decision of a contracting officer before withholding rents due under the lease. (ECF 158 at 1415.) The plaintiff advanced the same argument at trial. (ECF 138 at 10-11.) The legality of GSA's actions is debatable. Compare 41 U.S.C. Sec. 7103(a)(3) (providing that claims by the government against a contractor "shall be the subject of a written decision by the contracting officer"), with Applied Cos. v. United States, 144 F.3d 1470, 1478 (Fed. Cir. 1998) (holding that a final CDA decision was unnecessary when the agency setoff was used to recoup money owed due to a billing error). The Court need not resolve whether GSA acted unlawfully, however, because the defendant's failure to defend its pre-litigation conduct is dispositive for purposes of the plaintiff's motion for fees under the EAJA.
4/ Although Hensley involved a fee-shifting provision from the Civil Rights Act, the Federal Circuit has held that the same definition of "reasonable" applies under the EAJA. Hubbard v. United States, 480 F.3d 1327, 1331 (Fed. Cir. 2007).
5/ The plaintiff employs the "mid-point method" for calculating attorney's fees with cost-of-living increases. (ECF 158 at 4-6); see 2M Rsch. Servs., LLC v. United States, 148 Fed. Cl. 99, 108-09 (explaining the "mid-point method"). Using that method, the plaintiff arrived at an hourly rate of $202.30. (ECF 158 at 23.) The defendant does not dispute the reasonableness of that hourly rate.
6/ Other judges of this court have also exercised their equitable discretion in determining an appropriate, if unscientific, percentage of recovery for attorney's fees. The Court follows this approach in resolving the plaintiff's motion. See, e.g., Shea v. United States, 154 Fed. Cl. 1, 7 (2021) (reducing an award by 30 percent due to the plaintiff's limited success); Stimson Lumber Co. v. United States, 154 Fed. Cl. 694, 706-09 (2021) (reducing fees at different stages of the litigation by 50 percent, 45 percent, or 20 percent), appeal filed, No. 22-1201 (Nov. 30, 2021); Haggart v. United States, 151 Fed. Cl. 58, 67-70 (2020) (reducing some awards of legal fees and expenses by 35 percent or 50 percent); Gregory v. United States, 110 Fed. Cl. 400, 404-06 (2013) (reducing attorney's fees by 50 percent, 80 percent, and 60 percent at different stages of the litigation).
Smithsonian American Art Museum Names Randall Griffey as New Head Curator
WASHINGTON, May 26 (TNSper) -- The Smithsonian American Art Museum issued the following news release on May 25, 2022:The Smithsonian American Art Museum announced today that Randall Griffey will join its senior leadership team as head curator. Griffey will oversee all aspects of the museum's curatorial program, including research, exhibitions, acquisitions and collections. He will lead the major reinstallation and reinterpretation plan for all three floors of the museum's permanent collection galleries. He begins work at the museum this summer.
"Randy is one of the most dynamic curators and ... Show Full Article WASHINGTON, May 26 (TNSper) -- The Smithsonian American Art Museum issued the following news release on May 25, 2022: The Smithsonian American Art Museum announced today that Randall Griffey will join its senior leadership team as head curator. Griffey will oversee all aspects of the museum's curatorial program, including research, exhibitions, acquisitions and collections. He will lead the major reinstallation and reinterpretation plan for all three floors of the museum's permanent collection galleries. He begins work at the museum this summer. "Randy is one of the most dynamic curators andinfluential scholars in the field of American art today," said Stephanie Stebich, the Margaret and Terry Stent Director of the Smithsonian American Art Museum. "He is known as an exceedingly generous colleague as well as an agent of institutional innovation. I am confident that he will be a transformative leader in building our collections, mounting defining exhibitions, and rethinking the narrative of American art through the national collections of the Smithsonian American Art Museum."
Griffey will report directly to Stebich, with support from Jane Carpenter-Rock, the museum's deputy director for museum content and outreach. He will also collaborate on all aspects of the curatorial program with Nora Atkinson, the museum's Fleur and Charles Bresler Curator-in-Charge, who oversees the museum's contemporary craft program and staff at its Renwick Gallery. He will supervise the museum's curatorial staff, which currently consists of eight curators, three curatorial fellows and four curatorial assistants and support staff.
Griffey comes to the museum after a notable tenure at the Metropolitan Museum of Art, where he has been curator of modern and contemporary art since 2013. His recent exhibition, co-curated with Kelly Baum, "Alice Neel: People Come First" (2021) was recognized as the Exhibition of the Year by Apollo magazine. He also recently curated "Reckoning with Modernism," part of the expansive sesquicentennial exhibition "Making The Met, 1870-2020" (2020). He organized, in close collaboration with the artist Kent Monkman (Cree), the groundbreaking Great Hall Commission "Kent Monkman: mistikosiwak (Wooden Boat People)" (2019-2021), a monumental diptych addressing the history and issues of colonization of North America that became part of the Met's permanent collection. Additional projects during his tenure include "History Refused to Die: Highlights from the Souls Grown Deep Foundation Gift" (2018), "Marsden Hartley's Maine" (2017) and "Thomas Hart Benton's 'America Today' Mural Rediscovered" (2014-2015). His efforts at the Met substantially increased the representation of women and artists of color in the collection through major reinstallations and reinterpretations of permanent collection galleries.
Previously, he was a curator of American art at the Nelson-Atkins Museum of Art in Kansas City, Missouri (1999-2008) and curator at the Mead Art Museum at Amherst College (2008-2011), where he also served as head of curatorial affairs in 2012. He completed the Center for Curatorial Leadership program in 2016. Currently, Griffey is a member of the advisory council of the Renee & Chaim Gross Foundation.
He has spoken publicly on a wide range of topics--from public sculpture, Luther Burbank and American still life painting, to the history of collecting--at the Smithsonian American Art Museum, National Gallery of Art, Smith College Museum of Art, Columbus Museum of Art and the Denver Art Museum, in addition to the annual conferences of the College Art Association. His extensive scholarly publications include contributions to American Art, A Companion to American Art, The Metropolitan Museum of Art Bulletin and numerous exhibition catalogs. He has twice been recognized by the Association of Art Museum Curators for his writing, first in 2008 for his article "Marsden Hartley's Aryanism: Eugenics in a Finnish-Yankee Sauna" that was published in American Art, and in 2011 for his essay "Reconsidering the 'Soil': The Stieglitz Circle, Regionalism and Cultural Eugenics in the Twenties" that appeared in the exhibition catalog Youth and Beauty: Art of the American Twenties.
Griffey earned a doctorate in 1999 from the University of Kansas, where the Kress Foundation Department of Art History named him distinguished alumnus in 2018. His dissertation "Marsden Hartley's Late Paintings: American Masculinity and National Identity in the 1930s and '40s" received the university's Dorothy Haglund Prize for Outstanding Doctoral Dissertation. From 1997 to 1998, he was a Sara Roby Fellow in 20th American Realism in the Smithsonian American Art Museum's prestigious fellowship program, the oldest and largest program for the study of American art in the world. A native of northwest Kansas, Griffey graduated from Bethany College in Lindsborg, Kansas, in 1990 with a bachelor's degree in fine art.
The Smithsonian American Art Museum is recognized internationally as the premier center for the study, enjoyment and preservation of American art from the 17th century to today. It is the largest of the Smithsonian art museums and is a leader in supporting innovative interpretation and major exhibitions of new scholarship. In addition to a robust exhibition program in Washington, D.C., the museum maintains a highly regarded traveling exhibition program and has circulated hundreds of exhibitions since the program was established in 1951; eight exhibitions are touring currently.
The museum has been at the forefront of identifying and collecting significant aspects of American visual culture, including photography, modern folk and self-taught art, African American art, Latinx art and video games. The museum has the largest collection of New Deal art and exceptional collections of contemporary craft, American impressionist paintings and masterpieces from the Gilded Age. In recent years, the museum has focused on strengthening its collections of Latinx art, Native and Indigenous art, self-taught art and contemporary art, particularly time-based media, through acquisitions, awards, curatorial appointments, endowments and by commissioning new artworks.
[Category: Arts/Cultural]
Office of Personnel Management Announces Additional Key Staff Appointments
WASHINGTON, May 26 (TNSper) -- The Office of Personnel Management issued the following news release on May 25, 2022:The U.S. Office of Personnel Management (OPM) announced additional Biden-Harris Administration political appointees. These diverse and accomplished individuals bring a wealth of knowledge and expertise to the agency and will work to quickly advance key priorities for the Biden-Harris Administration.
Tiffany Avila, Confidential Assistant, Office of the Director
Tiffany most recently served on the Leadership and Training team at the White House Presidential Personnel Office. Prior ... Show Full Article WASHINGTON, May 26 (TNSper) -- The Office of Personnel Management issued the following news release on May 25, 2022: The U.S. Office of Personnel Management (OPM) announced additional Biden-Harris Administration political appointees. These diverse and accomplished individuals bring a wealth of knowledge and expertise to the agency and will work to quickly advance key priorities for the Biden-Harris Administration. Tiffany Avila, Confidential Assistant, Office of the Director Tiffany most recently served on the Leadership and Training team at the White House Presidential Personnel Office. Priorto serving in the Administration, she worked as an organizer and Regional Organizing Director on the Biden for President Campaign, the Biden-Harris Campaign, and the Georgia Senate Race. She also worked in the non-profit sector with various organizations supporting youth in Camden, NJ and Philadelphia, PA. Tiffany received her BA in Africana Studies and History from Rowan University.
Eric Bursch, Deputy Director, Office of Congressional, Legislative, and Intergovernmental Affairs
Before joining OPM, Eric spent over a decade on Capitol Hill, serving in a number of positions in several different offices. He spent the past seven years as Staff Director for the Senate Homeland Security and Governmental Affairs Subcommittee that has oversight of the federal workforce, first under Sen. Heidi Heitkamp (ND) and then Sen. Kyrsten Sinema (AZ). Eric also worked for Rep. Stephanie Herseth Sandlin (SD), both as a congressional caseworker in her state office and a Legislative Assistant in D.C. Eric is a graduate of Chico State University in California, where he earned a Bachelor of Arts in Journalism. Before entering public service, he worked as a sports reporter and editor at four newspapers in Nebraska and South Dakota.
Khalilah M. Harris, EdD, JD, Deputy Chief of Staff, Office of the Director
Most recently, Dr. Harris led the K12 Education Policy team at Center for American Progress and was a non-resident senior fellow with the Maryland Center on Economic Policy. From 2016-2017, she served as a Senior Advisor to the Director at OPM during the Obama-Biden Administration, where her portfolio included managing labor relations, supporting national efforts at diversity, equity and inclusion in the federal workforce including staffing the White House Diversity and Inclusion in Government Council where she devised and implemented the first ever White House Summit on Diversity and Inclusion in Government. From 2013-2015, she served with the White House Initiative on Educational Excellence for African-Americans first as a graduate fellow and then as its first Deputy Director. Her most important job is mother to her three children. Dr. Harris is a proud alumnus of Morgan State University and obtained her doctorate in Educational Leadership and Organizational Development from the University of Pennsylvania and her law degree from the University of Maryland Francis King Carey School of Law.
Kemba Hendrix, Senior Advisor to the Director, Office of the Director
Kemba most recently served as a Diversity, Equity, Inclusion, and Accessibility Advisor at OPM. Prior to coming to OPM, Kemba served as the Inaugural Executive Director for the House Office of Diversity and Inclusion at the U.S. House of Representatives and has worked within several agencies including the Equal Employment Opportunity Commission, the U.S. Office of Personnel Management, and the U.S. Department of State as a legal advisor to the Chief Diversity Officer and Office of Civil Rights. Kemba holds a Bachelor's degree from Xavier University and a Juris Doctorate from Howard University School of Law.
Yahaira Lopez, Chief of Staff, Human Resources Solutions
Yahaira has led operations management and human capital strategy for a variety of corporate, governmental, and political organizations for almost 20 years. Most recently she served as Deputy Chief of Staff at the US Department of Energy (DOE) overseeing operations within the Office of Secretary Granholm. During her tenure at DOE, she was detailed to OPM to serve as a Diversity, Equity, Inclusion, and Accessibility (DEIA) Advisor. She served in the Obama Administration at three different federal agencies, first managing environmental policy initiatives at the Department of Agriculture, and later pivoting to political personnel at the Department of Defense and the Department of Transportation. She holds a B.S. in Biology from the University of Puerto Rico-Humacao and is a Certified Nonprofit Professional.
Maria Pastrana Lujan, Director of Public Engagement, Office of the Director
Prior to her appointment at OPM, Maria was the Associate Chief for Regional Engagement at the Cybersecurity and Infrastructure Security Agency (CISA). During her time at CISA, Maria also served as External Affairs Officer for Operation Allies Welcome. Maria's earlier positions include Deputy Director for Congressional and Intergovernmental Affairs at the Federal Emergency Management Agency (FEMA); Intergovernmental Affairs Chief and multilingual engagement lead at U.S. Citizenship and Immigration Services (UCSIS); Advisor on in-language outreach for the White House Initiative on Asian Americans and Pacific Islanders; and Senior Advisor at the White House Initiative on Educational Excellence for Hispanics. In each of these roles, Maria has led efforts to provide equitable access to federal tools and resources for state, local, tribal, and territorial stakeholders, including limited English proficient (LEP) communities. Maria is a graduate of San Diego State University.
Webb Lyons, Deputy General Counsel, Office of the General Counsel
Before joining the Biden-Harris Administration, Webb most recently served as a Counsel in the Washington, DC office of WilmerHale, where he had a diverse litigation and investigations practice. Earlier in his career, Webb served as a law clerk to the Honorable Vince Chhabria of the U.S. District Court for the Northern District of California. He also served as the Director of Initiatives for the Community Foundation of Greater Birmingham and as the Assistant to the President at the National Alliance to End Homelessness. Webb is a graduate of Yale Law School and Birmingham-Southern College.
Benjamin C. Mizer, General Counsel, Office of the General Counsel
Most recently, Mizer was a litigation partner at Jones Day. At the Department of Justice during the Obama-Biden Administration, Ben served as the head of the Civil Division, where he oversaw the defense of federal laws and of President Obama's signature policy achievements. He was previously a senior advisor to Attorney General Eric Holder and a Deputy Assistant Attorney General in the Office of Legal Counsel. In other prior roles, he served as the Solicitor General of Ohio and as an Associate Legal Officer at the International Criminal Tribunal for the Former Yugoslavia in The Hague, Netherlands. He clerked for Judge Judith W. Rogers on the U.S. Court of Appeals for the D.C. Circuit and for Justice John Paul Stevens on the U.S. Supreme Court. He is a graduate of Michigan Law School and the College of Wooster.
David Padrino, Chief Transformation Officer, Office of the Director
Padrino serves as OPM's first Chief Transformation Officer and is currently in a dual role as the Executive Director for the Office of Human Capital Data Management and Modernization. The Chief Transformation Officer role will help the agency transform its capability and capacity to successfully implement the OPM Strategic Plan, President's Management Agenda initiatives and OPM Director priorities. Prior to serving in the Biden-Harris Administration, Padrino served as Colorado's first Chief Performance Officer in the Administration of Governor John Hickenlooper. He spent over seven years at the Boston Consulting Group and worked at New York City's Workforce Investment Board. Padrino has an MBA in Finance from the Wharton School at the University of Pennsylvania, a BA in History from Vassar College and was a Coro Fellow in New York City.
Ricardo Rauseo Landa, Special Assistant, Office of Communications
Prior to joining OPM, Rauseo served as the Constituency Media Manager for the press team at the Center for American Progress, where he worked on Hispanic and international media. Before that, he was a communications and event management intern at the Ludwig von Mises Institute in Leuven, Belgium. He is also an alumnus of the Congressional Hispanic Leadership Institute, where he interned in the House of Representatives. Rauseo graduated cum laude from the University of Florida, with a Bachelor's Degree in International Studies and Anthropology.
Janice Underwood, PhD, Director, Office of Diversity, Equity, Inclusion, and Accessibility
Dr. Underwood joins the Biden-Harris Administration having most recently served as the inaugural Virginia Chief Diversity Officer in Governor Ralph Northam's cabinet. Dr. Underwood has worked for 20+ years to make structural inequity visible in government and education, with a focus on effectively addressing root causes, as a state official, teacher educator, a nationally certified special education teacher, academic researcher, higher education administrator, and diversity trainer. Most notably, she has been nationally recognized for her contribution to advancing equity initiatives at the intersection of government and politics, including launching the first statewide DEI strategy across 100+ state agencies in the Commonwealth of Virginia. Janice is a graduate of Hampton University and Old Dominion University.
National Endowment for the Arts Announces More Than $750,000 in Creative Forces Community Engagement Grants
WASHINGTON, May 26 -- The National Endowment for the Arts issued the following news release:The National Endowment for the Arts (NEA), in partnership with Mid-America Arts Alliance, is pleased to announce the inaugural recipients of Creative Forces(R) Community Engagement grants, with support for 26 organizations totaling $750,385.
Awards will support community-based arts programming that will expand the work of Creative Forces into more communities nationwide to address the distinct experiences, challenges, and strengths of military-connected populations through the arts. View the complete ... Show Full Article WASHINGTON, May 26 -- The National Endowment for the Arts issued the following news release: The National Endowment for the Arts (NEA), in partnership with Mid-America Arts Alliance, is pleased to announce the inaugural recipients of Creative Forces(R) Community Engagement grants, with support for 26 organizations totaling $750,385. Awards will support community-based arts programming that will expand the work of Creative Forces into more communities nationwide to address the distinct experiences, challenges, and strengths of military-connected populations through the arts. View the completelist (https://www.maaa.org/wp-content/uploads/2022/05/CF-Community-Engagement-Grantees.pdf).
"I am pleased to see that through the Creative Forces Community Engagement grants, there will be more opportunities for arts engagement available to more Veterans and their families and caregivers, and in more places across America," said Department of Veterans Affairs Secretary Denis McDonough. "It is vital that we care for and support those who have served and the arts can play an invaluable role in contributing to their health and well-being."
"It is inspiring to see how arts programming is being utilized by local arts organizations and communities to support and promote healing for our nation's military, veterans, and all those who care for them," said Dr. Maria Rosario Jackson, chair of the National Endowment for the Arts. "Engagement with the arts--the act of doing, seeing, creating, teaching--is crucial to living healthy and artful lives. The expansion of Creative Forces from clinical sites into community settings provides significant opportunities for this critical work to reach more people and make a difference in their lives."
Creative Forces(R): NEA Military Healing Arts Network is an initiative of the National Endowment for the Arts in partnership with the U.S. Departments of Defense and Veterans Affairs that seeks to improve the health, well-being, and quality of life for military and veteran populations exposed to trauma, as well as their families and caregivers. These grants will increase access to arts activities in more communities and will serve a broad population, including active-duty service members, guardsmen, reservists, veterans, military and veteran families, as well as caregivers and healthcare workers providing care for military service members and veterans.
Todd Stein, President and CEO of Mid-America Arts Alliance, said "we are excited to support these projects that will promote continued healing through the arts for military populations in communities across the country. The art experiences offered show the multitude of ways art can connect and heal." He added, "Through the Creative Forces Community Engagement Grant Program, we are humbled to have the opportunity to work on this initiative with the National Endowment for the Arts, created in partnership with the U.S. Departments of Defense and Veterans Affairs."
Creative Forces Community Engagement projects will support non-clinical arts programming. Each project will include an organization with a history of creative or artistic programming and one or more partners. There are two tiers of grants in this round: emerging (matching grants of up to $10,000 for one-year projects) and advanced (matching grants of $10,000-$25,000 for one-year projects or up to $50,000 for two-year projects), allowing for new projects to begin and established programming to expand.
Examples of grantee programming include:
* A $5,000 award to Arts and Culture El Dorado in Placerville, California, to support Veterans' Voices Writing Workshop, a free and ongoing writing workshop that offers a supportive environment and the tools needed for writing stories, memoir, poetry, and drama. The workshop is facilitated by experienced, professional writers.
* A $10,000 award to Caregivers on the Homefront in Kansas City, Missouri, to support Art on the Homefront, which consists of painting workshops in partnership with a local art teacher that support military and veteran caregivers and children.
* A $10,000 award to Exit12 Dance Company in New York, New York, to support an eight-week creative writing and choreography workshop, bringing together military veterans, their families, and refugees from Afghanistan and Iraq. Participants will share their individual stories through the creation of poems, choreography, music, and prose. A public performance of the works will take place at the Intrepid Sea, Air, and Space Museum in 2023.
* A $50,000 award to Bihl Haus Arts in San Antonio, Texas, to support the expansion of Forward, Arts! Professionally taught drawing and painting classes aim to help veterans by easing emotional and physical pain through arts immersion.
By providing opportunities for engaging in art or art-making, these projects seek to help participants gain a better understanding of themselves and others through creative expression, while increasing their sense of belonging to a community. Participation in the arts often leads to individual and shared sense of purpose, as well as positive self-worth, supporting their ability to adapt and readjust to life's challenges.
Resources and technical assistance are available on the Creative Forces National Resource Center to all organizations wishing to advance their arts programming to support military service members, veterans, their families and caregivers. Specific resources available to these grantee organizations may be accessed by anyone, including a recording of the most recent webinar, Seeing the Forest for the Tress: Using a Logic Model to Create Clarity (https://www.youtube.com/watch?v=BGBDHSlNzog).
NASA, Boeing Complete Starliner Uncrewed Flight Test to Space Station
WASHINGTON, May 26 -- NASA issued the following news release:NASA and Boeing safely landed the company's CST-100 Starliner spacecraft Wednesday in the desert of the western United States, completing the uncrewed Orbital Flight Test-2 (OFT-2) to the International Space Station to help prove the system is ready to fly astronauts.
About four hours after departing the space station, Starliner touched down onto its airbags at 4:49 p.m. MDT, wrapping up the six-day flight, which tested the end-to-end capabilities of the crew-capable spacecraft. The landing followed a deorbit burn at 4:05 p.m., separation ... Show Full Article WASHINGTON, May 26 -- NASA issued the following news release: NASA and Boeing safely landed the company's CST-100 Starliner spacecraft Wednesday in the desert of the western United States, completing the uncrewed Orbital Flight Test-2 (OFT-2) to the International Space Station to help prove the system is ready to fly astronauts. About four hours after departing the space station, Starliner touched down onto its airbags at 4:49 p.m. MDT, wrapping up the six-day flight, which tested the end-to-end capabilities of the crew-capable spacecraft. The landing followed a deorbit burn at 4:05 p.m., separationof the spacecraft's service module, and successful deployment of its three main parachutes and six airbags.
"NASA's Commercial Crew Program and our industry partner, Boeing, today took a major and successful step on the journey to enabling more human spaceflight missions to the International Space Station on American spacecraft from American soil," said NASA Administrator Bill Nelson. "The OFT-2 mission represents the power of collaboration, which allows us to innovate for the benefit of humanity and inspire the world through discovery. This golden era of spaceflight wouldn't be possible without the thousands of individuals who persevered and poured their passion into this great achievement."
As part of the flight test for NASA's Commercial Crew Program, Boeing accomplished planned test objectives, including:
* Starliner launch and normal trajectory to orbital insertion
* Launch of United Launch Alliance's (ULA) Atlas V and dual-engine Centaur second stage
* Ascent abort emergency detection system validation
* Starliner separation from the Atlas V rocket
* Approach, rendezvous, and docking with International Space Station
* Starliner hatch opening and closing, astronaut ingress, and quiescent mode
* Crew habitability and internal interface evaluation
* Starliner undocking and departure from space station
* Starliner deorbit, and crew module separation from service module
* Starliner descent and atmospheric entry with aero-deceleration system
* Precision targeted landing and recovery
"I am incredibly proud of the dedication and perseverance shown by the NASA, Boeing and ULA team culminating in the successful completion of Starliner's second Orbital Flight Test from start to finish," said Steve Stich, manager, NASA's Commercial Crew Program. "Throughout this process, Starliner has provided a tremendous amount of valuable data, which we're continuing to assess in our effort to bring the spacecraft online and fully operational for crew flights to the space station as soon as it is safe to do so."
The flight test began Thursday, May 19, when Starliner launched on the ULA Atlas V rocket from Space Launch Complex-41 at Cape Canaveral Space Force Station in Florida.
Following liftoff, Starliner successfully entered Earth's orbit, performed a series of demonstrations of its capabilities, and docked with the orbital outpost 26 hours after launch. The Expedition 67 crew aboard the station opened hatches and entered the capsule for the first time, inspecting the spacecraft and verifying integration with power and communications station systems for longer stays in the future. The station crew also unloaded 500 pounds of cargo delivered by Starliner and sent 600 pounds of cargo back to Earth.
"Congratulations to the NASA and Boeing teams," said Joel Montalbano, manager of NASA's International Space Station Program. "I am excited to see the completion of a critical step in bringing another system online to transport long-duration crew members to and from the International Space Station. Soon, we hope to see crews arrive to the space station on Starliner to continue the important microgravity scientific research and discovery made possible by the orbiting laboratory."
A critical step in validating the performance of Boeing's systems, OFT-2 brings the nation a significant step closer to having two unique human transportation systems to carry astronauts to and from the space station from U.S. soil.
"We have had an excellent flight test of a complex system that we expected to learn from along the way and we have," said Mark Nappi, vice president and program manager, Boeing Commercial Crew Program. "With the completion of OFT-2, we will incorporate lessons learned and continue working to prepare for the crewed flight test and NASA certification. Thank you to the NASA and Boeing teammates who have put so much of themselves into Starliner."
Starliner carried a "passenger" on this flight test - a lifelike test device named Rosie.
During OFT-1, Rosie was outfitted with 15 sensors to collect data on what astronauts will experience during flights on Starliner. For OFT-2, spacecraft data capture ports previously connected to Rosie's 15 sensors were used to collect data from sensors placed along the seat pallet, which is the infrastructure that holds all the crew seats in place. Among the cargo returned were three Nitrogen Oxygen Recharge System reusable tanks that provide breathable air to station crew members. The tanks will be refurbished on Earth and sent back to station on a future flight.
Boeing retrieved the spacecraft from the desert and will transport it back to the company's Commercial Crew and Cargo Processing Facility at NASA's Kennedy Space Center in Florida for processing.
After NASA and Boeing review processes data from this test flight, teams will continue plans for Starliner and its next mission, the Crew Flight Test to the space station.
Development Finance Corp. Collaborates With USAID and the African Union to Support Financial Inclusion in Sub-Saharan Africa
WASHINGTON, May 26 -- The U.S. International Development Finance Corp. issued the following news release May 25, 2022:U.S. International Development Finance Corporation (DFC) today announced the financial commitment of four transactions under a partnership with U.S. Agency for International Development (USAID) African Union and the African Union Development Agency (AUDA-NEPAD). The new projects mobilize $74 million total to expand access to financing for African micro-, small- and medium-sized enterprises (MSMEs) in Nigeria, Malawi, Tanzania, and Zambia.
"DFC's partnership with USAID and AUDA-NEPAD ... Show Full Article WASHINGTON, May 26 -- The U.S. International Development Finance Corp. issued the following news release May 25, 2022: U.S. International Development Finance Corporation (DFC) today announced the financial commitment of four transactions under a partnership with U.S. Agency for International Development (USAID) African Union and the African Union Development Agency (AUDA-NEPAD). The new projects mobilize $74 million total to expand access to financing for African micro-, small- and medium-sized enterprises (MSMEs) in Nigeria, Malawi, Tanzania, and Zambia. "DFC's partnership with USAID and AUDA-NEPADwill help MSMEs in Nigeria, Malawi, Tanzania, and Zambia grow their businesses and contribute to economic growth across Africa," said Jim Polan, Vice President of DFC's Office of Development Credit. "These transactions show DFC's ability to target our financial tools to mobilize additional capital and make a development impact in low- and lower-middle income countries."
"USAID's commitment to our African Union partner, the African Development Agency, and our partnership with U.S. DFC has demonstrated how working collaboratively we've been able to achieve shared goals across Africa, in this case, in Nigeria, Malawi, Tanzania, and Zambia," said Patrick Brady, USAID Representative to the African Union. "USAID looks forward to continuing to advance the African Union's goal of supporting hundreds of thousands of MSMEs across the continent."
"Businesses across the continent have been facing extreme hardships. Any path to recovery and growth in Africa requires bold investments in favor of MSMEs and financial actors across the continent. These investments will help thousands of African companies, women and men regain their footing and advance their businesses. At AUDA-NEPAD we are proud of this catalytic partnership with DFC and USAID to support 100,000 MSMEs in Africa. It leverages respective strengths and builds structural and tangible prospects for Africans," Ms. Nardos Bekele-Thomas, CEO of AUDA-NEPAD remarked.
This collaboration combines DFC's financial instruments, USAID technical assistance, and AUDA-NEPAD's SME platform to bolster financial inclusion and drive economic opportunity in low- and lower-middle income countries and increase food security and bolster food systems across the continent. With support from USAID and AUDA-NEPAD, the newly committed DFC transactions promoting Africa-led development include:
* Growing agribusiness and financing for smaller enterprises in Zambia: A $20 million loan portfolio guaranty, utilizing $10 million in DFC exposure, will expand credit for small- and medium-sized enterprises advancing food security and climate solutions in the agriculture, manufacturing, tourism, and clean cooking sectors in Zambia.
* Supporting sustainability and local business acceleration in Malawi: A $10 million loan portfolio guaranty, made possible with $5 million in DFC exposure, will expand access to finance for small- and medium-sized enterprises, with a focus on the agriculture, clean cooking, fisheries, and sustainable forestry sectors in Malawi.
* Addressing the gap in women-owned and led enterprises in Nigeria: DFC's $250,000 in exposure enables a $10 million loan portfolio guaranty to help mobilize capital to MSMEs in Nigeria that benefit women and/or are owned or led by women. This transaction supports DFC's 2X Women's Initiative, which addresses the unique challenges women face globally and aims to promote economic empowerment and gender equality.
* Expanding access to low-cost, quality private education in Tanzania: DFC's $20 million loan portfolio guaranty mobilizes $34 million total to expand access to finance for small- and medium-sized enterprises in Tanzania, including those in the education and informal sectors.
Amtrak Travelers Can Now Buy Tickets for Berkshire Flyer Service Between Pittsfield and New York City
NEW YORK, May 26 -- The National Railroad Passenger Corporation (Amtrak) issued the following news release:Amtrak, in conjunction with the Massachusetts Department of Transportation (MassDOT), and New York State Department of Transportation (NYSDOT), is now selling tickets for its newest train service, the Berkshire Flyer, for travel between New York City and Pittsfield, MA via Amtrak.com, the Amtrak app, Amtrak ticket desks and kiosks, and through 1-800-USA-RAIL. Service will begin Friday, July 8 and will operate on weekends through the summer months between Moynihan Train Hall and Pittsfield, ... Show Full Article NEW YORK, May 26 -- The National Railroad Passenger Corporation (Amtrak) issued the following news release: Amtrak, in conjunction with the Massachusetts Department of Transportation (MassDOT), and New York State Department of Transportation (NYSDOT), is now selling tickets for its newest train service, the Berkshire Flyer, for travel between New York City and Pittsfield, MA via Amtrak.com, the Amtrak app, Amtrak ticket desks and kiosks, and through 1-800-USA-RAIL. Service will begin Friday, July 8 and will operate on weekends through the summer months between Moynihan Train Hall and Pittsfield,MA, via Albany-Rensselaer, NY with several station stops in between.
"Travelers who want to enjoy a summer weekend in the quaint valley towns of the Berkshires or experience all New York City has to offer can now do so sustainably, without being in bumper-to-bumper traffic, and while taking in the scenery of the Catskill Mountains all at once via Amtrak," said Amtrak President and CEO Stephen Gardner. "The new Berkshire Flyer service highlights the continuing growing demand of train travel throughout this country, and we are proud to meet this demand with our partners at MassDOT, NYSDOT, and CSX."
"We are pleased to work together with Amtrak and our partner agencies to offer passenger train service this summer between Pittsfield and New York City," said Massachusetts Transportation Secretary and CEO Jamey Tesler. "The Berkshire Flyer will make it easy for the public to travel for work or leisure and to take advantage of opportunities to visit museums, attend concerts, shop, enjoy outdoor recreation and all that Massachusetts has to offer."
The Berkshire Flyer will depart from New York Penn Station at 3:16 p.m. on Fridays and arrive at Joseph Scelsi Intermodal Transportation Center, 1 Columbus Ave, Pittsfield at 7:12 p.m. The train will make all the intermediate station stops as the typical Amtrak Empire Service train does on Fridays, which include Yonkers, NY, Croton-Harmon, NY, Poughkeepsie, NY, Rhinecliff, NY, Hudson, NY, and Albany-Rensselaer Station. The Sunday return trip, making all the same station stops, will depart Pittsfield at 3:00 p.m. and arrive in New York at 7:05 p.m.
Berkshire Flyer customers can expect the same amenities onboard as they do on all other Amtrak trains including, free Wi-Fi, the freedom to use phones and electronic devices at all times (no "airplane mode"), the ability to travel with small pets on many trains, large spacious seats with ample leg room, and no middle seat.
The Berkshire Flyer pilot's success will be evaluated to further understand the feasibility and demand of the service before continuing the service, deciding on its schedule if it is to continue, and identifying specific infrastructure improvements or service changes that may be necessary. Efforts to evaluate passenger rail service between the Berkshires and New York have been ongoing since 2018, during which time pilot service has operated and conversations about the service have involved Berkshire County groups, municipal officials, and elected leaders. Amtrak, MassDOT, and NYSDOT have collaborated with CSX Transportation to prepare for the service's start up this year after an agreement was reached with CSX to utilize its tracks.