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January 17, 1984

SAMUEL R. PIERCE, et al., Defendants

The opinion of the court was delivered by: HART


 A. Earlier Litigation

 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. *fn1" 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. *fn2"


 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 ...

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