MASSACHUSETTS U. OF PUBLIC HOUSING TENANTS v. Pierce, Civ. A. No. 78-1895.

• Decision Date: 17 January 1984
• Docket Number: Civ. A. No. 78-1895.
• Citation: 577 F. Supp. 1499
• Parties: MASSACHUSETTS UNION OF PUBLIC HOUSING TENANTS, et al., Plaintiffs, v. Samuel R. PIERCE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

577 F. Supp. 1499

MASSACHUSETTS UNION OF PUBLIC HOUSING TENANTS, et al., Plaintiffs, v. Samuel R. PIERCE, et al., Defendants.

Civ. A. No. 78-1895.

United States District Court, District of Columbia.

January 17, 1984.

Steven Ferrey, Boston, Mass., and Jonathan Lash, Portland, Me., for plaintiffs.

J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., and Sheila Lieber and Surell Brady, Washington, D.C., for defendants.

GEORGE L. HART, Jr., District Judge.

I. FACTUAL BACKGROUND

A. Earlier Litigation

In September of 1975, HUD proposed a regulation to require the use of certain HUD funds for the conversion of public housing project utility systems to individual or check-metered service. See 40 Fed. Reg. 44159 (September 25, 1975). Once a conversion takes place, individual tenants are responsible for the utility bills. In deciding whether to convert the meters, HUD required that each local public housing authority ("PHA") conduct a benefit/cost analysis which assumed that conversion to an individual meter will automatically result in consumption reductions of 25-35% of heating use. This presumption was embodied in 24 C.F.R. 865.404.

Plaintiff Massachusetts Union and other parties participated in the commenting process for the proposed regulation. After an extensive comment and review procedure, HUD promulgated the regulation and therefore required the PHAs to undertake the benefit/cost analysis within 18 months.

Plaintiffs disagreed with the promulgation of the regulation and attempted through both a formal rulemaking petition and informal discussions with HUD officials to bring their opposition and concerns to the attention of HUD so that remedial measures could be taken. Both the informal and formal procedures were not successful. Having exhausted their administrative remedies, on October 11, 1978, plaintiffs filed suit against HUD and the National Capital Housing Authority in the District of Columbia.

Plaintiffs alleged that the Part 865 regulation was promulgated in violation of the National Environmental Policy Act (NEPA) and that there was no factual or rational basis for the assumption of a 25-35% saving of heating energy.¹ On January 25, 1980, the Court granted summary judgment in favor of HUD and dismissed the complaint.

Plaintiffs appealed that decision to the District of Columbia Circuit Court of Appeals. After reviewing the record, the D.C. Circuit reversed the decision of this Court and held that HUD had not demonstrated a factual or rational basis for the 25-35% presumption. Massachusetts Union of Public Housing Tenants v. Landrieu, 656 F.2d 899 (D.C.Cir.1981). In addition, the Court of Appeals remanded the case to this Court in order to allow HUD to provide additional supplementation of the administrative record. Id. On June 3, 1981, this Court remanded the case to HUD and retained jurisdiction.

In September of 1981, plaintiffs moved for a specification of the remand to enjoin further meter conversions pending HUD's demonstration of a factual basis for the Part 865 presumption. On March 3, 1982, this Court granted the motion and ordered HUD to direct no monies for conversion of utility meter systems for space heating fuels. Twelve days later, the defendants filed a Motion for Clarification or Modification of the Court's order. The Court denied defendants' motion on June 7, 1982. The Court also denied a Motion for Contempt filed by plaintiffs in which they alleged that HUD was not in compliance with the Court's order of March 3, 1982. See Order dated June 16, 1982.

After further discovery, the Court considered the parties' cross-motions for summary judgment. On March 11, 1983, the Court granted plaintiffs' motion for summary judgment and entered an order on May 20, 1983. This order directed that HUD not expend any federal monies nor allow the expenditure of any monies by PHAs for the conversion of utility meters pursuant to the Part 865 assumption. In addition, the Court ordered HUD to notify all PHAs that any such conversions "authorized or in progress on or after March 3, 1982 are illegal ..." and that PHAs were prohibited from "retail charging of tenants for utility usage or the surcharging of tenants for excess utility consumption...." Finally, the Court ordered HUD to notify all HUD area and regional offices of the order, and to cause those offices to inform the PHAs of the order's effect on their operations. On August 8, 1983, the Court clarified its May 20th order as being restricted to conversions specifically based on 24 C.F.R. § 865.404.

B. Recent Litigation

After the entry of final judgment on August 8, 1983, plaintiffs filed three motions: a motion requesting leave to depose a HUD official, a motion to compel answers to post-judgment interrogatories, and a motion for attorney's fees and expenses. The motion for attorney's fees was filed on November 2, 1983, which was 86 days after the entry of final judgment. The issue before the Court today is whether the plaintiffs are entitled to the attorney's fees they have requested.²

II. ENTITLEMENT TO FEES

Plaintiffs have filed a motion for attorney's fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. While under the "American Rule", prevailing litigants are not ordinarily entitled to collect attorneys' fees from the loser, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975), the EAJA authorizes attorneys' fees against the United States under certain circumstances. First, a court may assess fees and expenses against the government to the same extent that a private party would be liable for the same pursuant to common law or statute. 28 U.S.C. § 2412(b); Photo Data, Inc. v. Sawyer, 533 F.Supp. 348, 350 (D.D.C.1982). Additionally, the act provides that attorneys' fees shall be awarded against the United States "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. § 2412(d)(1)(A).

A. Timeliness

Section 2412(b), that provision of the EAJA allowing for fees as would exist under common law, contains no explicit time limit for filing an application for fees. In the absence of a specific time restriction, a request is timely if filed within a reasonable period after entry of judgment and if it does not unfairly surprise or prejudice the affected party. McQuiston v. Marsh, 707 F.2d 1082, 1084 (9th Cir.1983), citing White v. New Hampshire Department of Employment Security, 455 U.S. 445, 454, 107 S.Ct. 1162, 1167, 71 L.Ed.2d 325 (1982); Gordon v. Heimann, 715 F.2d 531, 539 (11th Cir.1983). The defendants in this case do not dispute the timeliness of the motion under subsection (b) and the Court does not find anything in the record to support a claim of unfair surprise or prejudice. In addition, the time period of 86 days after the entry of judgment does not appear unreasonable given the absence of a specific filing limitation. As such, the Court concludes that plaintiffs' motion under 28 U.S.C. § 2412(b) is timely.

Subsection (d) of the EAJA provides that "a party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses...." 28 U.S.C. § 2412(d)(1)(B). Plaintiffs filed the fee application in this case on November 2, 1983, which was 86 days after the entry of final judgment. Plaintiffs claim that since Rule 4 of the Federal Rules of Appellate Procedure allows sixty days to appeal this Court's decision, the thirty day period in the EAJA does not expire until 90 days after entry of the judgment in the District Court. The Court disagrees.

We must begin with the well settled principle that the starting point for interpreting a statute is the language of the statute itself. Absent an indication to the contrary in the legislative history, the wording of the statute should be given its plain, clear and common meaning. Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); American Trucking Ass'ns, Inc. v. United States, 602 F.2d 444, 449-50 (D.C.Cir.), cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979); Photo Data, Inc. v. Sawyer, 533 F.Supp. 348, 350 (D.D.C.1982). The EAJA contains no definition of the phrase "final judgment".

In McQuiston v. Marsh, 707 F.2d 1082 (9th Cir.1983), a fee application was filed three months after the District Court had dismissed the complaint. The Court held:

We reject McQuiston's contention that the 30-day requirement of subsection (d) means that an application must be filed within 30 days of the expiration of the time to appeal or within 30 days of the terminating action in the court of last resort.

* * * * * *

Rather, `final judgment' should be defined by its common usage in contexts such as 28 U.S.C. § 1291, Fed.R.App.P. 4(a) and Fed.R.Civ.P. 54. Therefore, a request ... is untimely if filed more than 30 days after the District Court has entered judgment.

Id. at 1085. The plaintiffs' fee application in this case was clearly filed more than 30 days beyond the entry of judgment.

It has been recognized that "the terms of the U.S.' consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). The United States Court of Appeals for the District of Columbia Circuit, just recently held that the thirty day requirement of subsection (d) should be strictly construed, and that the time limit is jurisdictional. In Action on Smoking and Health v. Civil Aeronautics Board, 724 F.2d 211 at 225 (D.C.Cir.1984), the D.C. Circuit interpreted § 2412(d) and found that a supplemental application for fees was untimely because it was filed 42 days after the entry of judgment. The Court noted:

The thirty day time limitation contained in E

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