Dubose v. Pierce, s. 581

Citation761 F.2d 913
Decision Date14 May 1985
Docket Number582,Nos. 581,583,D,s. 581
PartiesVernice DUBOSE, Susan Daigle, individually and on behalf of all others similarly situated, Plaintiffs, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development; Windham Heights Associates, a limited partnership; Anthony Associates, a general partnership; and Simon Konover, individually and in his official capacity as a general partner in Windham Heights Associates and Anthony Associates, Defendants, Samuel R. Pierce, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development, Defendant-Appellant- Cross-Appellee. Claudia WALTER and Dominick Cortese, individually and on behalf of all other persons similarly situated, Plaintiffs, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development; Carabetta Enterprises, Inc., a corporation organized and existing under the laws of the State of Connecticut, located in the Town of Meriden, County of New Haven, State of Connecticut, Defendants, Samuel R. Pierce, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development, Defendant-Appellant- Cross-Appellee. Janette LITTLE, individually and on behalf of all others similarly situated, Plaintiff, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development; Richard Brown, individually and in his capacity as part-owner of East Hartford Estates; Oak Management Co., Inc., a Connecticut Corporation; Louis Brown, individu
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

John S. Koppel, Dept. of Justice, Civ. Div., Washington, D.C. (Richard K. Willard, Acting Asst. Atty. Gen., Robert S. Greenspan, Dept. of Justice, Washington, D.C., Alan H. Nevas, U.S. Atty., D. Connecticut, New Haven, Conn., of counsel), for appellants-cross-appellees.

Dennis J. O'Brien, Connecticut Legal Services, Inc., Willimantic, Conn. (Douglas M. Crockett, Norman K. Janes, Connecticut Legal Services, Inc., Willimantic, Conn., of counsel), for appellees-cross-appellants Connecticut Legal Services, Inc.

William H. Clendenen, New Haven, Conn. (Fred Altshuler, Lew Hollman, San Fernando Valley Neighborhood Legal Services, Inc., Pacoima, Cal., of counsel), for appellees-cross-appellants San Fernando Valley Neighborhood Legal Services, Inc.

Before VAN GRAAFEILAND, MESKILL and WINTER, * Circuit Judges.

MESKILL, Circuit Judge:

This action is before us on appeal from a judgment entered in the United States District Court for the District of Connecticut, Blumenfeld, J., granting plaintiffs' motion for attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. Sec. 2412 (1982) (EAJA). The court held that the government's position in litigation was not substantially justified so that a fee award to plaintiffs was proper. Because we disagree with the court's conclusion, we reverse. We also dismiss plaintiffs' cross-appeal concerning the amount and calculation of the award.

I

This case represents the final chapter in a lengthy series of actions concerning federal housing subsidies. Because the issue before us is a limited one--whether the district court's award of fees was proper--a brief review of the facts will suffice. The complete factual and procedural history of the underlying actions has been exhaustively covered in a number of prior opinions. See Dubose v. Pierce, 579 F.Supp. 937, 941-46 (D.Conn.1984) (Dubose V); Dubose v. Harris, 82 F.R.D. 582, 583-85 (D.Conn.1979) (Dubose IV); Dubose v. Harris, 434 F.Supp. 227, 228-30 (D.Conn.1977) (Dubose III ); Dubose v. Hills, 22 Fed.R.Serv.2d 476, 477 (D.Conn.1976) (Dubose II ); Dubose v. Hills, 405 F.Supp. 1277, 1280-82 (D.Conn.1975) (Dubose I ), modified on other grounds, 420 F.Supp. 399 (D.Conn.1976). 1

Section 236 of the National Housing Act, 12 U.S.C. Sec. 1715z-1 (1982), provides for financial assistance to owners of low income housing projects. In 1974 Congress modified this program through passage of the Housing and Community Development Act of 1974 (HCDA), Pub.L. No. 93-383, 88 Stat. 633. Among the changes instituted by HCDA was the addition of Sec. 1715z-1(f)(3)(A) (1976), repealed by Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, Sec. 322(f)(7), 95 Stat. 403. Section 1715z-1(f)(3)(A) amended HCDA's operating subsidy program to allow the Secretary of Housing and Urban Development (HUD) to make "additional assistance payments to the project owner in an amount up to the amount by which the sum of the cost of utilities and local property taxes exceeds the initial operating expense level." 12 U.S.C. Sec. 1715z-1(f)(3)(A) (1976). These payments were intended to protect tenants in low income housing from rent boosts that would otherwise result from increases in property taxes and utility costs.

This subsidy program was not implemented. Instead, HUD allowed owners to pass cost increases along to tenants as higher rents. The Secretary believed that implementation of the program was discretionary and that the agency could choose to use its funds in other ways.

The underlying action followed. In 1975 Judge Blumenfeld granted the tenants' motion for a preliminary injunction ordering the Secretary to implement the program. Dubose I, 405 F.Supp. at 1292-93. Rather than appealing that decision, HUD concentrated its opposition on projects other than those covered by the injunction. In May 1976, after additional suits were filed, the court certified a statewide class of project-plaintiffs and...

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  • Pierce v. Underwood, 86-1512
    • United States
    • U.S. Supreme Court
    • 27 Junio 1988
    ...to resolve a conflict in the Courts of Appeals over important questions concerning the interpretation of the EAJA. Compare Dubose v. Pierce, 761 F.2d 913 (CA2 1985), cert. pending, No. 85-516, with 761 F.2d 1342 (CA9 1985) (per curiam ), as amended, 802 F.2d 1107 (1986)(case This dispute ar......
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