Some courts have held that, in limited circumstances, a subsequent reasonable litigation might be able to cure an unreasonable ALJ decision. See Hackett v. Barnhart, 475 F.3d 1166, 1173-74 (10th Cir. 2007); CEMS, Inc. v. United States, 65 Fed. Cl. 473, 483 (2005); see also Thangaraja v. Gonzales, 428 F.3d 870, 875 n.1 (9th Cir. 2005) (declining to decide whether a substantially justified litigation can cure an unjustified agency determination). The Commissioner made two arguments to the magistrate judge regarding the borderline age issue.

This determination is to be made on a case-by-case basis. CEMS, Inc. v. United States, 65 Fed. Cl. 473, 476 (2005) (citing Gavette v. Office of Pers. Mgmt., 808 F.2d 1456, 1467 (Fed. Cir. 1986)). If the Government fails to carry its burden of proving that its position was substantially justified, the court shall determine what fee is reasonable.

This determination is to be made on a case-by-case basis. CEMS, Inc. v. United States, 65 Fed. Cl. 473, 476 (2005) (citing Gavette v. Office of Pers. Mgmt., 808 F.2d 1456, 1467 (Fed. Cir. 1986)). If the Government fails to carry its burden of proving that its position was substantially justified, the court shall determine what fee is reasonable.

When calculating a COLA, courts have routinely based adjustments on the consumer price index for urban consumers ("CPI-U"). CEMS, Inc. v. United States, 65 Fed. Cl. 473, 486 (2005). To determine a COLA, the Court multiplies the base EAJA rate of $125 by the CPI-U for the month the time was billed.

This court has concluded that a plaintiff experiences "partial or limited success" typically where the plaintiff fails on the majority of its claims or recovers significantly less damages than the amount it originally sought. See, e.g., Dalles Irrigation Dist., 91 Fed. Cl. at 703-04 (reducing attorneys' fees where plaintiff succeeded on three of its seven claims and recovered only 18% of the damages sought); CEMS, Inc v. United States, 65 Fed. Cl. 473, 483-84 (2005) (reducing award where plaintiff prevailed on only nine of its thirty claims and received slightly less than 24% of the damages it sought); Filtration Dev. Co., LLC v. United States, 63 Fed. Cl. 612, 627 (2005) (reducing plaintiff's award where court enjoined only one-quarter of the procurement at issue); Baldi Bros. Constructors v. United States, 52 Fed. Cl. 78, 82-84 (2002) (reducing attorneys' fees incurred in damages trial where plaintiff recovered 55% of the damages sought and the court found that "many of plaintiff's claimed costs" were "subsumed" in its other claims or were "otherwise unsubstantiated"). At an early procedural stage of this case, United Partition successfully resisted a claim by the government that the action should be dismissed on jurisdictional grounds.

N. Star Ala. Hous. Corp. v. United States, 76 Fed. Cl. 158, 209 (2007). The contracting officer must "take ownership of all determinations included in the final contracting officer's opinion," CEMS, Inc. v. United States, 65 Fed. Cl. 473, 479 (2005), and, if other government officials are consulted, including government attorneys, "a contracting officer may not forsake his duties, but rather must ensure that his decisions are the product of his personal and independent judgment," N. Star Ala. Hous., 76 Fed. Cl. at 209 (emphasis added). A contractor is entitled to a determination by the contracting officer, and therefore "a decision by someone else is a nullity."

" Def.'s Response at 7. The proper inquiry, however, is whether the "government's overall position" is substantially justified, "examin[ing] not only the government's success or failure, but also the reasonableness of its position in defending against the suit." CEMS, Inc. v. United States, 65 Fed. Cl. 473, 479 (2005). When the Government takes some positions without substantial justification, the question then becomes whether those positions were "sufficiently dramatic in impact" to allow an award of fees. Loomis v. United States, 74 Fed. Cl. 350, 355 (2006).

]") (citations omitted); see also 131 CONG. REC. S. 9991 (July 16, 1985) (Statement of Senator Charles E. Grassley) ("[T]he purpose of the [EAJA] is to make Government bureaucrats think long and hard before they start an enforcement action.") (emphasis added). For this reason, the United States Court of Federal Claims previously has awarded EAJA attorney fees in a bid protest case where only "6 of the . . . 19 claims and 3 of the . . . 11 bid items" prevailed, after "over one hundred claims stemming from the same factual core" were dismissed. See CEMS, Inc. v. United States, 65 Fed. Cl. 473, 474-78 (2005); see also Loomis, 74 Fed. Cl. at 354 (awarding EAJA fees despite the fact that "defendant prevailed on most of the issues plaintiff raised"); see also Loomis, 74 Fed. Cl. at 354 (rejecting an approach requiring the court to "[segment] issues and [consider] substantial justification within the limited scope of each of those segmented issues, [so] defendant would be substantially justified[.]") (citing Roanoke River Basin Ass'n v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993) ("[W]e conclude that when determining whether the government's position in a case is substantially justified, we . . . determine, from the totality of circumstances, whether the government acted reasonably in causing the litigation or in taking a stance during the litigation.")). D. Intervenor-Plaintiff's Application Was Adequately Documented.

Consultation is one thing, however; abdication, quite another. Hence, a contracting officer still must "`put his own mind to the problems and render his own decisions,'" Pacific Architects, 491 F.2d at 744 (quoting New York Shipbuilding Corp. v. United States, 385 F.2d 427, 435 (Ct.Cl. 1967)), "tak[ing] ownership of all determinations included in the final contracting officer's opinion," CEMS, Inc. v. United States, 65 Fed. Cl. 473, 479 (2005). Accordingly, in consulting with others, a contracting officer may not forsake his duties, but rather must ensure that his decisions are the product of his personal and independent judgment.

The EAJA, however, was amended in 1996, raising the statutory cap to $125. . . . Consequently[,] . . . March 1996 is the proper baseline for calculation of a COLA to the $125 cap." (citations omitted)); see also CEMS, Inc. v. United States, 65 Fed.Cl. 473, 485 (2005) (holding that March 1996 is the proper base date for calculation of a COLA). The end date is the final date on which legal services were rendered. See Doty, 71 F.3d at 387 ("The cost of living adjustment is measured from . . . the date of enactment of the EAJA, to the time the services were rendered."