Watch v. Harris, Civ. No. H-78-539.

• Decision Date: 06 November 1981
• Docket Number: Civ. No. H-78-539.
• Citation: 535 F. Supp. 9
• Parties: WATCH (Waterbury Action to Conserve Our Heritage Incorporated) v. Patricia Roberts HARRIS, individually and as Secretary, United States Department of Housing and Urban Development; Edward T. Martin, Regional Administrator, Region 1, United States Department of Housing and Urban Development; Lawrence Thompson, Area Director, United States Department of Housing and Urban Development; Waterbury Urban Renewal Agency.
• Court: U.S. District Court — District of Connecticut

535 F. Supp. 9

WATCH (Waterbury Action to Conserve Our Heritage Incorporated) v. Patricia Roberts HARRIS, individually and as Secretary, United States Department of Housing and Urban Development; Edward T. Martin, Regional Administrator, Region 1, United States Department of Housing and Urban Development; Lawrence Thompson, Area Director, United States Department of Housing and Urban Development; Waterbury Urban Renewal Agency.

Civ. No. H-78-539.

United States District Court, D. Connecticut.

November 6, 1981.

William Howard, Shaw & Howard, Middletown, Conn., for plaintiff.

George J. Kelly, Jr., Asst. U.S. Atty., Richard Blumenthal, U. S. Atty., Hartford, Conn., for all 3 government officials and H.U.D.

James E. Hartley, Jr., Secor, Cassidy & McPartland, Waterbury, Conn., for Waterbury Urban Renewal Agency.

RULING ON PLAINTIFF'S MOTION FOR ATTORNEYS' FEES

CLARIE, Chief Judge.

The plaintiff has applied to this Court for an award of attorneys' fees and expenses which arose out of litigation to preserve certain historic buildings in the City of Waterbury that were about to be demolished as part of a large-scale urban renewal project. The plaintiff relies primarily upon a recently enacted amendment to the National Historic Preservation Act, ("NHPA"), 16 U.S.C. § 470W-4 (1980), which provides for an award of attorneys' fees to any person who substantially prevails in an action to enforce the provisions of the Act. The plaintiff also cites the bad faith and common fund principles as being present here, as exceptions to the general rule against the awarding of attorneys' fees to a prevailing party. The United States opposes such an award on the grounds of sovereign immunity, the inapplicability of the attorneys' fees provision in the NHPA statute to the federal government, and the fact that this action was not "pending" on December 12, 1980, when the attorneys' fees provision took effect. It also argues that the facts of this case do not support a finding of bad faith on the part of the federal government.

The Waterbury Urban Renewal Authority ("WURA"), on the other hand, contends that NHPA and the attorneys' fees provision is applicable only to the federal government, and disputes the applicability of the bad faith and common fund exceptions to the facts of this case. In a supplemental brief, WURA reiterates the federal government's claim that the case was not "pending" when the attorneys' fees amendment to NHPA became effective and added the further defense that an award of attorneys' fees is barred by the Eleventh Amendment. The Court finds in favor of the plaintiff under the attorneys' fees provision of NHPA.

Facts

This suit has been pending in this Court since 1978, when a local preservation organization, Waterbury Action to Conserve Our Heritage ("WATCH"), sought to enjoin an urban renewal project in the City of Waterbury alleging violations of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321-4347 (1976), the National Historic Preservation Act ("NHPA"), 16 U.S.C. §§ 470-470t (1976), and regulations promulgated by the Department of Housing and Urban Development ("HUD") to comply with NEPA and NHPA. 38 Fed.Reg. 19,182 et seq. (1973). Specifically, WATCH sought to enjoin the ongoing demolition of commercial buildings in the urban renewal project area until HUD and WURA determined the eligibility of the buildings for inclusion in the National Register of Historic Places as required by the applicable statutes and regulations. WATCH further requested a temporary restraining order while the Court weighed the arguments for an injunction. Initially, the request for the temporary restraining order was denied; however, the Court was persuaded by a change of circumstances one week later, when it became apparent that WURA's continuing demolition efforts could jeopardize WATCH's attempt to protect the remaining buildings in the project area.

After a full hearing, the Court in an unreported decision granted a preliminary injunction and found that the defendants had in fact violated NEPA. WATCH v. Harris, Civil No. 78-539 (D.Conn. Dec. 22, 1978). WURA appealed the decision to the Court of Appeals, and WATCH cross-appealed the Court's finding that NHPA and HUD's own regulations were inapplicable. It is important to note that the federal government took a position contrary to WURA on the appeal, arguing that NEPA was clearly applicable to the Waterbury dispute. The Court of Appeals affirmed the NEPA holding and found in addition that WURA and the federal government were bound by NEPA and the HUD regulations. WATCH v. Harris, 603 F.2d 310 (2d Cir. 1979). Accordingly, the Court permanently enjoined the Waterbury project until such time as the defendants complied with the statutes and regulations. WURA then petitioned the Supreme Court for certiorari which was denied on December 10, 1979. 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979).

Subsequent to the decision of the Court of Appeals, the parties engaged in periodic discussions in an attempt to work out a settlement with respect to the project. These negotiations culminated in a Memorandum of Agreement which was signed on December 8, 1980 by WATCH, the City of Waterbury, WURA, HUD, the Connecticut State Historic Preservation Office, and the Advisory Council on Historic Preservation. On February 9, 1981, the plaintiff filed the agreement with the Court, and the Court heard and granted the plaintiff's motion to dissolve the permanent injunction.

Discussion of the Law

The plaintiff bases its claim for attorneys' fees on a recent amendment to NHPA which became effective on December 12, 1980 and provides in pertinent part:

"Sec. 305. In any civil action brought in any United States district court by any interested person to enforce the provisions of this Act, if such person substantially prevails in such action, the court may award attorneys' fees, expert witness fees, and other costs of participating in such action, as the court deems reasonable." 16 U.S.C. § 470w-4 (1980).

Therefore, a threshold determination in this claim for attorneys' fees is whether this case can be said to have been "pending" as of the effective date of the statute at which time all of the litigation had been completed and the settlement agreement had been signed by all parties.

In Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), the Supreme Court addressed this precise issue and held that where Congress had passed legislation authorizing an award of attorneys' fees in school desegregation cases, and where the legislation became effective while the fee request was pending in the Court of Appeals, the attorneys' fee statute was applicable to services rendered during the entire controversy. In reaching this conclusion, the Court noted:

"We anchor our holding in this case on the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Id. at 711, 94 S.Ct. at 2016.

The Bradley Court delineated three possible situations where the retroactive application of a statute might result in "manifest injustice." First, the Court looked to the nature and identity of the parties and noted the potential of injustice in cases between private individuals. In Bradley, however, as in the present case, the suit was commenced by a group of citizens against a governmental body. In such a case, the Bradley Court recognized the possible "disparity in the respective abilities of the parties adequately to present and protect their interests." Id. at 718, 94 S.Ct. at 2019. In addition, the Court emphasized that:

"school desegregation litigation is of a kind different from `mere private cases between individuals.' With the Board responsible for the education of the very students who brought suit against it to require that such education comport with constitutional standards, it is not appropriate to view the parties as engaged in a routine private lawsuit. In this litigation the plaintiffs may be recognized as having rendered substantial service both to the Board itself, by bringing it into compliance with its constitutional mandate, and to the community at large by securing for it the benefits assumed to flow from a nondiscriminatory educational system." Id.

The same reasoning is applicable to the facts of the present case where the actions of WATCH can be said to have done a substantial service to the federal government, WURA, and the Waterbury community at large, in protecting historic properties and in insuring that the urban renewal project was undertaken in a lawful manner.

The Court in Bradley next looked to the nature of the rights effected by the retroactive application of a law, noting that prior cases had refused to apply intervening changes in law to pending actions where to do so would infringe upon matured or unconditional rights. The Court found no matured right in Bradley observing that:

"It cannot be claimed that the publicly elected School Board had such a right in the funds allocated to it by the taxpayers. These funds were essentially held in trust for the public, and at all times the Board was subject to such conditions or instructions on the use of the funds as the public wished to make through its duly elected representatives." Id. at 720, 94 S.Ct. at 2020.

Again, this Court finds the Bradley reasoning to be particularly apposite under the present facts where WURA cannot be said to have any unconditional right to public funds.

The final situation considered by the Court in Bradley concerned the impact of changes in law upon existing rights or the possibility that new and unanticipated obligations could be imposed upon parties without notice or an opportunity to be heard. This concern, too, was found inapplicable to the Bradley facts where the Court noted that the statutory...