Nichols v. Pierce
| Decision Date | 10 August 1984 |
| Citation | 740 F.2d 1249 |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (Civil Action No. 79-03094).
Brian Paddock, Cookeville, Tenn., with whom Florence Wagman Roisman, Washington, D.C., was on the brief for appellants. Lee P. Reno and Ilene J. Jacobs, Washington, D.C., also entered appearances for appellants.
John W. Polk, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, Royce C. Lamberth and R. Craig Lawrence, Washington, D.C., were on the brief for appellee. Kenneth M. Raisler, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.
Before WILKEY and MIKVA, Circuit Judges, and MARKEY, * Chief Judge for the United States Court of Appeals for the Federal Circuit.
Opinion for the Court filed by Circuit Judge WILKEY.
These consolidated appeals stem from the attempts of appellant Jean Nichols to recover attorneys fees incurred in an action brought against the United States Department of Housing and Urban Development ("HUD"). After successfully challenging the sufficiency of procedural protections accorded to tenants receiving housing subsidies under a program administered by HUD, the appellant filed successive petitions for attorneys fees in the United States District Court, first under the Freedom of Information Act 1 and second, more than a year later, under the Equal Access to Justice Act. 2 District Judge Thomas A. Flannery disallowed both petitions, holding that the appellant's lawsuit was not brought under the Freedom of Information Act, and that the application for fees under the Equal Access to Justice Act was not timely filed. Because the appellant never substantially relied on FOIA in pressing for a mandatory revision of HUD's rules, and because the entire case was filed, briefed, argued, and decided more than a year prior to the effective date of the EAJA, we affirm both rulings of the district court.
Under Section 8 of the Existing Housing Program, 3 a qualifying family may live in a privately-owned dwelling with financial assistance in the form of rental subsidies paid by HUD to the landlord. The size of the dwelling unit which HUD may subsidize is principally determined by the number of family members residing in the home. 4 Shortly after appellant's son moved out of her home, she received notice that she would only be entitled to receive a subsidy for a two-bedroom house, effectively requiring her to move from the three-bedroom house in which she had been living with her son and daughter. Citing unique hardship and claiming that the lack of a hearing prior to the reduction in her subsidy violated the National Housing Act, 5 the Administrative Procedure Act, 6 and the due process clause of the fifth amendment, she initiated an action in the United States District Court for the District of Columbia. The suit, filed 13 November 1979, sought an injunction preventing HUD from taking adverse action against her and the class of people similarly situated. She also sought declaratory and injunctive relief to invalidate the existing family size requirements and to compel HUD to issue new regulations which would establish a right to notice and hearing prior to reduction or termination of housing assistance benefits. 7
Shortly after the suit was filed, the appellant received a waiver of the family size requirements which permitted her family to remain in the three-bedroom home. The Government then filed a motion for summary judgment contending that the controversy was moot. This motion was denied on 7 January 1980.
A few weeks later HUD completed and released a new handbook entitled "Public Housing Agency Administrative Practices for the Section 8 Existing Housing Program" ("Section 8 Handbook"). 8 This handbook's guidelines required local public housing authorities to give notice to tenants prior to proposed reductions in rental assistance benefits, provided for informal hearings prior to actual reductions, and directed issuance of a written statement of the reasons for the action. 9 The Government asserted that the release of the handbook resolved all remaining aspects of the controversy in litigation and renewed its motion for summary judgment. That motion was also denied.
Instead, on 12 September 1980, the district court certified appellant's class and granted the appellant's motion for summary judgment. In the accompanying order the district court directed HUD to formalize the provisions of its Section 8 Handbook by incorporating them within the Code of Federal Regulations. The court also directed HUD to include within those procedures mandatory notification to housing claimants of their right to a waiver of the family size requirements, and the grounds upon which a waiver could be granted. 10 The Government did not appeal this order.
Since summary judgment was granted the appellant has sought to recover attorneys fees incurred during the litigation. At the time relief on the merits was obtained, there was no statute generally permitting awards of attorneys fees against the United States. Consequently, in a petition for attorneys fees filed 7 October 1980, appellant attempted to recover attorneys fees under the specialized provisions of the Freedom of Information Act ("FOIA"), 11 which permit a court to award fees to litigants who substantially prevail in any action brought under the Freedom of Information Act. The district court rejected the petition, holding that any possible "FOIA claim played such a minor role in plaintiff's case" that the action could not be considered as one brought under FOIA, consistent with congressional intent. 12
The appellant challenged that action on appeal to this court. During the course of this first appeal the Equal Access to Justice Act ("EAJA" or "Act") took effect. 13 Consequently, without deciding whether the appellant was entitled to attorneys fees under FOIA, we remanded the case for the district court to consider the availability of attorneys fees under the new EAJA.
On remand the district court ruled that the appellant had not filed a request for fees within thirty days of the final judgment (12 September 1980) as required by the EAJA, and rejected appellant's application for fees. Appellant now appeals the denial of fees under the EAJA and renews the challenge to the district court's refusal to award fees under FOIA.
Section 552(a)(4)(E) of the Freedom of Information Act permits, but does not require, a court to assess attorneys fees against the United States "in any case under this section in which the complainant has substantially prevailed." 14 The appellant asserts that the district court erred when it concluded that her suit was not brought "under" FOIA. The appellant commenced the action in an attempt to require HUD to amend its previous Section 8 regulations to conform to the standards of due process and the Administrative Procedure Act. That suit was successful. Because the district court ordered HUD to publish its amended Section 8 Handbook in the Federal Register, thus granting relief arguably requested in the appellant's complaint, she now contends that her suit secured agency compliance with FOIA's mandate that each agency publish in the Federal Register all "substantive rules of general applicability," "statements of general policy," and "interpretations of general applicability." 15 This relief allegedly establishes the claim as one brought "under" FOIA within the meaning of Section 552(a)(4)(E). 16
This claim was extensively elaborated before the district court. Judge Flannery, who was intimately familiar with the course of the litigation, thoroughly considered the appellant's contentions and rejected them in a sound and well-reasoned opinion. There is need to plod once again through each step of appellant's labored arguments; it is abundantly clear that the appellant neither sought nor obtained relief under the Freedom of Information Act. This is unmistakable from the pleadings filed by appellant, the manner in which the sought-after relief was obtained, and the appellant's own characterization of her case on appeal.
The complaint is devoid of any mention of FOIA by name. Neither does it contain any citation to the FOIA provision (Section 552(a)(1)(D)) under which the suit was allegedly brought. Although the complaint does refer to "Sec. 552, et seq.," this is always described as the "Administrative Procedures [sic] Act," not the Freedom of Information Act. Moreover, the appellant's "cause of action" was the alleged "failure to require by regulation [the] notice and right to a hearing" mandated by the "National Housing Act, 42 U.S.C. Sec. 1437f" and the "due process clause." 17 Failure to comply with the informational requirements of FOIA was not alleged.
The complaint's failure to assert a claim under FOIA or to rely specifically on the provisions of Section 552(a)(1)(D) is not surprising, since the provisions of FOIA are largely irrelevant to the appellant's effort "to have the court declare unconstitutional and enjoin the practice of [HUD] of denying procedural due process to low income participants in the Section 8 Existing...
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