Paris v. US DEPT. OF HOUSING AND URBAN DEVELOPMENT, Civ. A. No. 86-0624-T.

• Decision Date: 04 June 1992
• Docket Number: Civ. A. No. 86-0624-T.
• Citation: 795 F. Supp. 513
• Parties: Antonio PARIS, Odessa Hayes, Lucille Annette Dee and Theresa Gomes, on behalf of themselves and all others similarly situated v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT and Corcoran Management Co., Inc.
• Court: U.S. District Court — District of Rhode Island

795 F. Supp. 513

Antonio PARIS, Odessa Hayes, Lucille Annette Dee and Theresa Gomes, on behalf of themselves and all others similarly situated v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT and Corcoran Management Co., Inc.

Civ. A. No. 86-0624-T.

United States District Court, D. Rhode Island.

June 4, 1992.

John W. Dineen, Providence, R.I., for plaintiffs.

Stuart M. Gerson, Asst. Atty. Gen., Lincoln C. Almond, U.S. Atty., Everett Sammartino, Asst. U.S. Atty., Rhode Island, Arthur R. Goldberg, Herbert E. Forrest, Kim Kendrick, Richard M. Price, Dept. of Justice, Civ. Div., Washington, D.C., Robert F. Cormier, McCullough, Stievator & Polvere, Charlestown, Mass., Mark E. Liberati, Providence, R.I., for defendants.

MEMORANDUM AND OPINION

TORRES, District Judge.

This case is before the Court for review of a Magistrate Judge's "Order" granting the plaintiffs' motion for an award of attorneys' fees and costs against the United States Department of Housing and Urban Development ("HUD") and denying their motion for such an award against Corcoran Management Co., Inc. ("Corcoran") pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (1988) ("EAJA"). For reasons hereinafter stated, the Court finds that the motion was properly denied as to Corcoran but erroneously granted as to HUD.

BACKGROUND

The facts giving rise to this litigation are set forth in Paris v. Department of Housing and Urban Development, 843 F.2d 561 (1st Cir.1988) ("Paris"). They may be summarized as follows.

In 1986, the plaintiffs were the heads of families on a waiting list for admission into the Chad Brown Housing Project, a HUD subsidized public housing project for "lower income families" that was owned by the Providence Housing Authority and managed by Corcoran. In order to achieve a mix of lower income tenants, Corcoran, acting pursuant to HUD regulations, adopted a plan dividing eligible applicants into three groups, namely, very low income, low income, and moderate income. Under that plan, approximately one-third of the apartments in the project were earmarked for each group. Consequently, when an apartment set aside for any one of those groups became available, it was given to the first family on the waiting list falling within that classification. In many cases that required "skipping over" families more senior on the list that were in different income groups.

The plaintiffs brought this suit on behalf of all "very low income" families on the waiting list alleging that the "skip over" provisions of the plan violated the United States Housing Act of 1937 ("Housing Act"), 42 U.S.C. §§ 1437 et seq. (1982 & Supp. III 1985); the Fair Housing Act, 42 U.S.C. §§ 3601 et seq. (1982) and the Due Process and Equal Protection Clauses of the United States Constitution. Chief Judge Boyle issued a preliminary injunction preventing the defendants from applying the tenant selection plan on the ground that its income-mixing provisions violated the Housing Act and, in particular, 42 U.S.C. § 1437d(c)(4)(A). Because of that determination, Judge Boyle did not reach any of the alternative theories advanced by the plaintiffs.

In any event, the plaintiffs' victory was short lived. On appeal, the First Circuit held that the regulations authorizing the plan were within the authority conferred upon HUD by the Housing Act. Accordingly, it vacated the preliminary injunction. Paris, supra.

Several months after the First Circuit's opinion was issued, Congress amended § 1437d to expressly prohibit the selection of families for residence in public housing projects "in an order different from the order on the waiting list for the purpose of selecting relatively higher income families for residence." Stewart B. McKinney Homeless Assistance Amendments Act of 1988, Pub.L. No. 100-628, § 1001(b), 1988 U.S.C.C.A.N. (102 Stat.) 3263 (current version at 42 U.S.C.A. § 1437d(c)(4)(A) (Supp. 1991)). As a result of that amendment, the defendants deleted the "skipping over" provision from the Chad Brown Tenant Selection Plan and the plaintiffs voluntarily dismissed their suit pursuant to Federal Rule of Civil Procedure 41(a)(2).

After the dismissal, the plaintiffs filed a motion for an award of attorneys' fees and costs incurred in connection with this litigation. That motion was referred to a Magistrate Judge who, as already noted, entered an Order granting the motion as to HUD but denying it as to Corcoran. The case is now before the Court on HUD's appeal and the plaintiffs' cross appeal from that Order.

STANDARD OF REVIEW

There is some question regarding the standard under which the Magistrate Judge's "order" must be reviewed. That standard varies depending on the nature of the matter referred. Under 28 U.S.C. § 636(b)(1)(A), a magistrate judge may "hear and determine any pretrial matter" other than those motions specifically enumerated in the statute (e.g., dispositive motions). 28 U.S.C. § 636(b)(1)(A) (emphasis added). In such cases, the district judge reviews the magistrate judge's order pursuant to a "clearly erroneous or contrary to law standard." Id.

Under § 636(b)(1)(B), a magistrate judge may be designated "to hear and to submit ... proposed findings of fact and recommendations for the disposition" of motions excepted by subsection (A); "applications for posttrial relief" in criminal cases; and prisoner petitions. 28 U.S.C. § 636(b)(1)(B) (emphasis added). In those cases, the district judge makes a "de novo" determination with respect to any findings or recommendations to which objection is made. 28 U.S.C. § 636(b)(1).

That does not mean that referrals to a magistrate judge are limited to those matters described in subsections (b)(1)(A) and (b)(1)(B). Subsection (b)(3) contains an omnibus provision that permits assignment to a magistrate judge of "such additional duties as are not inconsistent with the Constitution and laws of the United States." 28 U.S.C. § 636(b)(3). Unfortunately, the statute does not prescribe the standard of review applicable to determinations made under subsection (b)(3).

In this case the Order referring the plaintiffs' motion to the Magistrate Judge failed to specify the statutory subsection pursuant to which the referral was being made. Accordingly, the Magistrate Judge treated it as a referral under subsection (b)(1)(A). However, the Court concludes that it should be treated as a referral under subsection (b)(3).

By its terms, subsection (b)(1)(A) applies only to pretrial matters. A motion for attorneys' fees made after litigation is concluded cannot be described as a pretrial matter. Moreover, subsection (b)(1)(A) specifically excludes "dispositive" motions that could terminate the litigation (i.e., motions for judgment on the pleadings, summary judgment and to dismiss) and motions that may directly affect the parties' substantive rights (i.e., motions for injunctive relief). A petition for attorneys' fees closely resembles those motions because it requires an adjudication as to whether or not monetary relief should be awarded. Such an adjudication, in effect, disposes of that aspect of the litigation and directly affects the substantive rights of the parties. See West v. Redman, 530 F.Supp. 546, 548 (D.Del.1982) (award of statutory attorneys' fees essential to full disposition of prisoner's petition and therefore subject to "de novo" review under § 636(b)(1)(B); contra, Johnson v. Old World Craftsmen, Ltd., 638 F.Supp. 289 (N.D.Ill.1986) (post trial motion for attorneys' fees can be considered "pretrial" because it is not related to trial and does not affect the parties' substantive rights.). Indeed, unlike the matters clearly encompassed by section (b)(1)(A), a determination with respect to attorneys' fees is appealable by the aggrieved party.

Subsection (b)(1)(B) extends to those motions specifically excluded under (b)(1)(A) as well as to applications for posttrial relief by individuals convicted of criminal offenses. Since the plaintiffs' motion in this case does not fall into either category, it would appear that the proper basis for referral was subsection (b)(3). In any event, it makes no difference whether the referral in this case is treated as one pursuant to (b)(1)(B) or (b)(3). In either case, the standard of review is the same.

By providing for review of a magistrate judge's determination only to the extent that it is "clearly erroneous or contrary to law," subsection (b)(1)(A) limits a litigant's right to have his case decided by a district judge. Consequently, the reach of that provision should be narrowly construed. As already noted, a posttrial motion for attorneys' fees under EAJA is clearly unlike the kinds of nondispositive pretrial matters to which subsection (b)(1)(A) applies. It is much more like those dispositive matters directly affecting substantive rights that Congress obviously intended be reviewed in accordance with the "de novo" standard set forth in subsection (b)(1)(C). Therefore, that is the standard to be applied in this case whether the referral is treated as one under subsection (b)(1)(B) or (b)(3). See Calderon v. Waco Lighthouse for the Blind, 630 F.2d 352, 355 (5th Cir.1980) ("power to refer dispositive matters under § 636(b)(3) carries with it a requirement of "de novo" determination by the district judge of the portions of the magistrate's findings to which a party objects.").

DISCUSSION

The plaintiffs contend that they are entitled to an award of attorneys' fees and expenses against both HUD and Corcoran under EAJA. Alternatively, they argue that such awards should be made pursuant to the Fair Housing Act.

I. Equal Access to Justice Act

The EAJA provides that:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including

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