Southwest Marine, Inc., on Behalf of Universal Painting and Sandblasting Corp. v. United States of America and the United States Department of Navy

Good Law

39 Cont. Cas. Fed. 76,728·43 F.3d 420·94 Daily Journal DAR 17418·1994 WL 687735·1994 U.S. App. LEXIS 34572

United States Court of Appeals for the Ninth CircuitDecember 12, 199493-15165California2,524 words

Opinion

Van Sickle, J.

Universal Painting and Sandblasting Corporation (“UPS”), through its general contractor Southwest Marine, Inc. (“SWM”) seeks review of the District Court decision dismissing UPS’s application for attorneys’ fees and costs under the Equal Access to Justice Act, 5 U.S.C. § 504 (“EAJA”). The court below found that the EAJA does not waive sovereign immunity as to a subcontractor who successfully sues the United States through the sponsorship of a general contractor. For the reasons that follow, this panel AFFIRMS the order of dismissal.

I. BACKGROUND FACTS

In May 1985, SWM contracted with the United States Department of the Navy to refurbish the U.S.S. Mt. Vernon. SWM entered into a fixed-price subcontract with UPS, for sandblasting and painting of the vessel’s saltwater ballast and other tanks, as required under SWM’s contract with the Navy. The agreed price for the subcontract was $996,695.

UPS encountered significant labor and material cost overruns, due to unusual and unanticipated deterioration in the tanks. Upon completion of the project, UPS sought an equitable adjustment to the contract price, consistent with procedures under the Contract Disputes Act, 41 U.S.C. § 601 et…

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