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.
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, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (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).
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, 71 L. Ed. 2d 325, 102 S. Ct. 1162 (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, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980); American Trucking Ass'ns, Inc. v. United States, 195 U.S. App. D.C. 266, 602 F.2d 444, 449-50 (D.C. Cir.), cert. denied, 444 U.S. 991, 62 L. Ed. 2d 420, 100 S. Ct. 522 (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.