GRAND BLVD. IMP. ASSOCIATION v. City of Chicago

• Decision Date: 07 September 1982
• Docket Number: 80 C 4760.,No. 81 C 1284,81 C 1284
• Citation: 553 F. Supp. 1154
• Parties: GRAND BOULEVARD IMPROVEMENT ASSOCIATION, et al., Plaintiffs, v. CITY OF CHICAGO, et al., Defendants. Alice B. COLEMAN, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

553 F. Supp. 1154

GRAND BOULEVARD IMPROVEMENT ASSOCIATION, et al., Plaintiffs, v. CITY OF CHICAGO, et al., Defendants.

Alice B. COLEMAN, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants.

Nos. 81 C 1284, 80 C 4760.

United States District Court, N.D. Illinois, E.D.

September 7, 1982.

COPYRIGHT MATERIAL OMITTED

Anthony J. Fusco, Jr., Richard Hess, Sara E. Johnson, Gordon Waldron, Legal Assistance Foundation of Chicago, Thomas Hoidal, Julielynne Walker, Legal Assistance Foundation Mid-South Legal Services, John Bouman, Patricia Winfrey, Legal Assistance Foundation-Englewood Legal Services, Chicago, Ill., for plaintiffs.

Michael W. Smith, Chicago, Ill., for individual plaintiffs-intervenors.

Daniel Radakovitch, Chicago, Ill., for plaintiff-intervenor Prayer Bank Pentecostal Church.

Earl Neai, Stanley Garber, Kathleen Randford, Kenneth J. Cortesi, Chicago, Ill., for city defendants.

Alan S. Ganz, Christine M. Wheelock, Rooks, Pills, Fullagar & Poust and Jeffrey Jahns, Roan & Grossman, Chicago, Ill., for state defendants.

Dan K. Webb, U.S. Atty., Gail C. Ginsberg, Asst. U.S. Atty., Chicago, Ill., for federal defendants.

James G. Lemon, Jr., Chicago, Ill., for private defendants.

William Ratner, Levy & Erens, Chicago, Ill., for defendant South Shore Beach Associates.

MEMORANDUM OPINION

PRENTICE H. MARSHALL, District Judge.

In these two separate actions plaintiffs, having successfully challenged certain administrative actions by the Department of Housing and Urban Development ("HUD"), have moved for an award of attorney's fees against the federal government under the Equal Access to Justice Act ("EAJA"), 5 U.S.C. § 504, 28 U.S.C. § 2412(d) (Supp. IV 1980). While the cases raised separate issues on the merits, the attorney's fees motions come to us at the same time and raise similar questions under the EAJA. In addition, the plaintiffs in both cases are represented by the Legal Assistance Foundation of Chicago and the federal defendant is represented by the same Assistant United States Attorney. Not surprisingly, then, the briefs submitted by the parties in each case are practically identical, with the exception of application of the disputed legal standards to the distinct factual situations. We have consolidated the cases for purposes of our decision on the attorney's fees question.

In Grand Boulevard, we awarded plaintiffs partial summary judgment and enjoined HUD from releasing funds to the City of Chicago for the proposed Paul G. Stewart Phase IV ("Phase IV") housing project "until the City explores the feasibility of modifications of the Phase IV plan which will preserve existing housing and avoid permanent displacement of neighborhood residents." No. 80 C 4760, slip op. at 40 (N.D.Ill. October 14, 1981). In Coleman we found that HUD's decision to sell the South Shore Beach Apartments ("South Shore") was lawful but held that "to the extent that the sale does not provide for a twenty year restriction against conversion of the building to a condominium or cooperative without HUD's prior approval, and to the extent the contract of sale sets aside only seven units of housing to be set aside for non-elderly tenants eligible for § 8 assistance, the sale is set aside and HUD is enjoined from proceeding with it." No. 81 C 1284, slip op. at 29 (N.D.Ill. January 11, 1982). Both sets of plaintiffs now seek to invoke the Equal Access to Justice Act in support of their motions to obtain attorney's fees from the United States.

The EAJA became effective October 1, 1981. The amount of litigation already decided under the Act is testimony to the fact that rarely will lawyers move more swiftly or adroitly than where questions of attorney's fees are at issue. The government for its part is attempting to protect its purse strings by consistently arguing, so far unsuccessfully, that the Act cannot possibly mean what it says. These cases present us with several questions of importance under the EAJA; we treat them in turn.

The government's first line of defense is that an award of fees in both of these cases is barred by the doctrine of sovereign immunity. There is no dispute that Congress waived sovereign immunity in enacting the EAJA. The whole purpose of the statute was to make attorney's fees available against the government where private litigants successfully challenged or defended against agency actions. See generally H.Rep. No. 1418, 96th Cong., 2d Sess., 8-13 (1980) reprinted in 1980 U.S.Code & Admin.News 4984, 4986-92. In its statement of findings Congress declared the Act necessary to offset the high cost of litigation which frequently deterred private parties from seeking review of unreasonable agency actions, and to subject the government to fees under a standard even more beneficial to a prevailing party than embodied in the "American rule" regarding awarding of fees. See infra at 1160-1161. Accordingly, the government does not deny that the statute is an express waiver of sovereign immunity. The question raised is simply one of timing: when does the waiver take effect?

The EAJA was passed on October 4, 1980 and implemented according to the following provision:

This section shall take effect on October 1, 1981 and shall apply to any adversary adjudication ... and any civil action ... which is pending on, or commenced on or after, such date.

5 U.S.C. § 554 note. The government's contention is that while the Act clearly covers cases pending on October 1, 1981, it only applies to that portion of legal work done after October 1, 1981. The argument is predicated in large measure on the generalization that waivers of sovereign immunity must be expressed and cannot be implied. See United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980); United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969). But, unlike the cases cited, we are not asked here to construe an otherwise ambiguous statute and infer a consent to be sued on the part of Congress.¹ The general prohibition against awarding fees and costs against the federal government, embodied in 24 U.S.C. § 2412 (1976), see Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), was abrogated by the EAJA. See Commissioners of Highways v. United States, 681 F.2d 821 (7th Cir.1982) ("The Act constitutes a significant relaxation of sovereign immunity in actions seeking attorneys' fees from the United States.") Indeed, in one of the cases cited by the government for the general proposition that the United States is immune from an award of fees absent an express waiver, Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board, 643 F.2d 1034 (5th Cir.1981), the Supreme Court granted a petition for certiorari, vacated the judgment summarily and remanded for reconsideration in light of the EAJA, East Baton Rouge Parish School Board v. Knights of the Ku Klux Klan, 454 U.S. 1075, 102 S.Ct. 626, 70 L.Ed.2d 609 (1982). Despite the fact that all of the legal work was done on the case prior to October 1, 1981, on remand the Fifth Circuit held the case was "pending" within the meaning of the statute and remanded to the district court for determination of whether plaintiffs were otherwise qualified for an award of fees. See Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board, 679 F.2d 64 at 67-68 (Former 5th Cir.1982).² Neither the Supreme Court nor the Fifth Circuit expressed any reservations about the scope of the waiver contained in the EAJA.

In any question of statutory construction, no less in questions of sovereign immunity, we must begin with the language of the statute itself. Absent an indication to the contrary in the legislative history, the plain language of the statute governs our interpretation. See Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); Aaron v. SEC, 446 U.S. 680, 700, 100 S.Ct. 1945, 1957, 64 L.Ed.2d 611 (1980); Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979); Photo Data, Inc. v. Sawyer, 533 F.Supp. 348, 350 (D.D.C.1982). There is nothing ambiguous about the language of the EAJA — the statute applies as of October 1, 1981 to qualifying cases "pending on, or commenced on or after, such date." The government's argument would have us read into the statute a qualification (applying the statute to pending cases, but only for that portion of the work done after October 1, 1981) which simply does not exist. As another court said in response to the same argument:

The plain meaning of the EAJA is contrary to the Secretary's argument. The EAJA explicitly waives sovereign immunity with regard to a civil action or adversary adjudication pending on October 1, 1981. The Secretary's argument requires an exception to be read into the effective date provision, and this the court cannot do. The civil action before this court was pending on October 1, 1981. This effective date provides no barrier to an award of fees and expenses which might have occurred before October 1, 1981. Congress limited the applicability of the EAJA to cases pending on October 1, 1981. If it had intended to further narrow the number of applicable cases in this "pending" status, it could have done so by restricting potential cost and fee awards to those incurred after the effective date.

Wolverton v. Schweiker, 533 F.Supp. 420, 423 (D.Idaho 1982) (emphasis original); Accord Photo Data, Inc. v. Sawyer, 533 F.Supp. 348 (D.D.C.1982); see also Heydt v. Citizens State Bank, 668 F.2d 444 (8th Cir. 1982) (applying EAJA to pre-October, 1981 services, but finding government's position substantially justified); WATCH v. Harris, 535 F.Supp. 9 (D.Conn.1981) (awarding fees for pre-effective date services); Spang v. United States, 533 F.Supp. 220 (...