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SLOAN v. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
United States District Court, District of Columbia
March 21, 2002
LEON SLOAN, SR. ET AL., PLAINTIFFS,
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT ET AL., DEFENDANTS.
The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.
MEMORANDUM OPINION ADOPTING THE MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION ON THE ATTORNEYS' FEES ISSUE;
DENYING THE PLAINTIFFS' MOTION FOR RECONSIDERATION
This matter comes before the court on the plaintiffs' petition for an
award of attorneys' fees. The court referred this issue to Magistrate
Judge John M. Facciola for a report and recommendation ("R & R").
Magistrate Judge Facciola recommended that the court deny the plaintiffs'
petition. The plaintiffs then filed a motion for reconsideration of the
R & R.*fn1 The
defendants filed an opposition, and the plaintiffs filed a
reply. For the reasons that follow, the court will adopt the R & R and
its findings, and will deny the plaintiffs' motion for reconsideration of
the R & R.
A. Factual History*fn2
The events that set the stage for this case occurred when the United
States Department of Housing and Urban Development ("HUD") suspended the
plaintiffs from government contracting based on their performance of
demolition work at a public housing project near Pittsburgh,
Pennsylvania. See Defs.' Opp'n at 2. The plaintiffs filed suit under
the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq.,
claiming that HUD violated its own regulations in suspending the
plaintiffs from work on future HUD projects, that HUD's investigation was
inadequate, and that HUD deprived the plaintiffs of their due process
rights. See Mem. Op. dated January 3, 2000 at 1. The plaintiffs also set
forth a Bivens claim, arguing that certain HUD employees involved in the
investigation and suspension of the plaintiffs were liable in their
individual capacities for allegedly deficient work and thereby for
violating the plaintiffs' constitutional rights. See id.; Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
The plaintiffs sought monetary damages and revocation of their temporary
suspension. See Mem. Op. dated January 3, 2000 at 1. Lastly, the
plaintiffs filed a separate action under the Federal Tort Claims Act
("FTCA"), 28 U.S.C. § 1346(b), 2671-80, charging that actions by HUD
officials leading to the plaintiffs' suspension were negligent and caused
them to suffer monetary damages. See Def.'s Opp'n at 2.
B. Procedural History
On January 3, 2000, the court issued a Memorandum Opinion granting the
defendants' motion to dismiss the complaint. See Mem. Op. dated January
3, 2000. Specifically, the court held that HUD's actions were not
arbitrary and capricious under the APA and also that the remedies
available to the plaintiffs under the APA foreclosed their Bivens
claims. See id. In the companion case involving the FTCA claim, the
court held that the complaint failed to state a claim and granted the
defendants' motion to dismiss. See Dkt. No. 98cv1201, Mem. Op. dated
September 28, 1999.
The plaintiffs appealed both decisions. On November 6, 2000, the D.C.
Circuit affirmed in part and reversed in part the court's decision in
this case. See Sloan v. Department of Housing and Urban Dev., 231 F.3d 10
(D.C. Cir. 2000). While the Court of Appeals affirmed the dismissal of
the Bivens claim on the ground that the plaintiffs had not stated a claim
for a constitutional violation, it reversed this court in concluding that
HUD acted arbitrarily and capriciously and should have voided the
plaintiffs' suspensions ab initio. See id. at 17-18. The D.C. Circuit
concluded that the evidence presented at the plaintiffs'
administrative hearing was not adequate enough to justify taking
"immediate action . . . to protect the public interest. . . ." See id.
at 16. Separately, the D.C. Circuit affirmed this court's dismissal of
the FTCA claims. See Sloan v. Department of Housing and Urban Dev.,
236 F.3d 756 (D.C. Cir. 2001). On June 4, 2001, the plaintiffs filed a
petition for an award of attorneys' fees and costs in this case. Alleging
that the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412,
authorized an award of attorneys' fees and costs for amounts expended on
the APA action, the plaintiffs submitted bills totaling $150,211.03. See
Pls.' Petition for Award of Attorneys' Fees, Costs and Other Expenses
("Pls.' Pet.") at 7. On June 21, 2001, the defendants filed an
opposition to the petition. The court then referred the petition to
Magistrate Judge Facciola for an R & R. On February 5, 2002, Magistrate
Judge Facciola issued his recommendation that this court deny the
plaintiffs' petition for attorneys' fees. See R & R dated February 5,
2002. The plaintiffs followed by filing a motion for reconsideration of
the R & R, and the parties have now fully briefed that issue.
A. The Court Adopts the R & R's Analysis Involving
28 U.S.C. § 2412(d)
The plaintiffs seek attorneys' fees and expenses under the EAJA, and
costs under 28 U.S.C. § 1920 and Local Civil Rule 54.1. In his R &
R, Magistrate Judge Facciola noted that "[m]otions for fees and costs are
subject to clear time filing requirements, which plaintiffs have failed
to observe here." See R & R at 3. The EAJA requires parties seeking an
award of fees and other expenses to submit an application for fees and
other expenses "within 30 days of final judgment in the action." See
28 U.S.C. § 2412(d)(1)(B). Magistrate Judge Facciola correctly
stated that the EAJA's time-filing requirements are jurisdictional in
nature and may not be waived. See Action on Smoking and Health v. Civil
Aeronautics Bd., 724 F.2d 211, 225 (D.C. Cir. 1984); R & R at 3.
In this case, the D.C. Circuit ruled for the plaintiffs on the APA
issue on November 14, 2000. See Sloan, 231 F.3d 10. Even under the most
liberal timetable, which states that the 30-day period begins when the
90-day period for seeking certiorari before the Supreme Court lapses,
see, e.g., Kolman v. Shalala, 39 F.3d 173 (7th Cir. 1994), the plaintiffs
would have had until March 14, 2001 to seek an EAJA award. See R & R at
4. Their June 4, 2001 petition was, therefore, "nearly three months
late." See id. Moreover, as Magistrate Judge Facciola observed, the
"[p]laintiffs offer no reason why they waited until June 4, 2001, to file
the EAJA petition." Id.
In their motion for reconsideration, the plaintiffs' only argument for
why this court should not accept the R & R is that the principle of
equitable tolling should apply to this case. See Mot. for Recons. at 5.
The plaintiffs contend that in a case subsequent to the D.C. Circuit's
decision holding that the 30-day time limit is jurisdictional, the
Supreme Court held that time limits similar to the EAJA were subject to
equitable tolling. See Irwin v. Department of Veterans Affairs,
498 U.S. 89, 95 (1990). The court, however, need not address whether the
Supreme Court's rationale in Irwin should apply to the EAJA's 30-day time
limit because the plaintiffs offer very weak reasons for why the court
should invoke equitable tolling — a doctrine that applies only in
very limited circumstances. The D.C. Circuit has made clear that the
court's power to toll the statute of limitations
"will be exercised only
in extraordinary and carefully circumscribed instances." See Mondy v.
Secretary of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988); see also
Battle v. Rubin, 121 F. Supp.2d 4, 7-8 (D.D.C. 2000) (Urbina, J.). Even
Irwin, the very case the plaintiffs cite to support their argument, works
against them. In that case, the Supreme Court stated that a plaintiff
would not be afforded extra time to file without exercising due diligence
and showing that the plaintiff's excuse is more than a "garden variety
claim of excusable neglect." See Irwin, 498 U.S. at 96.
In their reply in support of their motion for reconsideration, the
plaintiffs proffer that equitable tolling should apply because this case
and the plaintiffs' FTCA case were interrelated and, thus, the judgment
could not be deemed final until there was a final judgment in the FTCA
case. See Pls.' Reply at 2. The court deems this reason entirely
unpersuasive, noting that the plaintiffs have counsel, that counsel knew
very clearly that the two cases were litigated separately, and that, as
the R & R noted, the language of the EAJA makes clear that the deadline
is 30 days from "the final judgment in the action." See
28 U.S.C. § 2412(d)(1)(B); R & R at 3. The statute never says the
clock runs from "the final judgment in this action and any related
action." See 28 U.S.C. § 2412(d)(1)(B). In short, even assuming
arguendo that the EAJA's 30-day time limit were subject to equitable
tolling, the plaintiffs have provided no legitimate reason for the court
to apply this doctrine.
B. The Court Rejects the Plaintiffs' Argument That They Are Entitled
to an Award Under 28 U.S.C. § 2412(b)
The plaintiffs' alternative argument for not accepting the R & R
centers on their contention that Magistrate Judge Facciola should have
awarded them attorneys' fees under 28 U.S.C. § 2412(b). See Mot. for
Recons. at 2-4. This action allows an award of attorneys' fees only in
exceptional cases such as when the losing party has acted in bad faith.
See id. at 3 (citing Hall v. Cole, 412 U.S. 1 (1973)). The plaintiffs
then offer the court a vocabulary lesson by trying to argue that the
D.C. Circuit's ruling that HUD's refusal to void the suspensions ab
initio was arbitrary and capricious and that "arbitrary and capricious"
is synonymous with bad faith. See id. With thesaurus in hand, the court
rejects this argument out of hand.
The exception to the traditional American ban on fee-shifting applies
only in the unusual circumstances where a party "has acted in bad faith,
vexatiously, wantonly, or for oppressive reasons." See F.D. Rich Co. v.
United States, 417 U.S. 116, 129 (1974). The defendants argue that even
if a court finds an agency's decision to be arbitrary and capricious
under the APA, this does not preclude the decision from being
"substantially justified" within the meaning of 28 U.S.C. § 2412(d)(2).
See Defs.' Opp'n at 6-7 (citing Pierce v. Underwood, 487 U.S. 552, 566
n. 2 (1988) (holding that to show substantial justification, the
government need only show that its position is one that "a reasonable
person could think . . . correct, that is, [that the position] has a
reasonable basis in law and fact")). Indeed, nothing in the history of
this case demonstrates that the government acted wantonly or in bad
faith. The court agrees with the defendants in that:
there is not a shred of evidence in this Court's
summary judgment ruling or the Court of Appeals'
opinion remotely suggesting that either the underlying
decision not to void the suspensions ab initio or
the conduct of this litigation was in undertaken [sic]
in bad faith or for
other improper reasons. The most
that can be read from the Court of Appeals [sic]
ruling is a determination that Defendants should have
undertaken a more thorough investigation of the
underlying contractual requirements and Plaintiffs'
performance prior to issuing the suspension, which is
a far cry from bad faith.
Id. at 7-8 (citing Sloan, 231 F.3d at 15) (emphasis added). Lastly, the
defendant correctly points out that the very fact that this court
initially granted the defendants' motion to dismiss the APA claim
indicates that the defendants' position "was at least reasonable, and
manifestly not in bad faith." See id. at 8. The court thus rejects the
plaintiffs' argument that they are entitled to attorneys fees under
28 U.S.C. § 2412(b).
One final point merits attention. Notwithstanding the plaintiffs'
argument that their petition for attorneys' fees pursuant to
28 U.S.C. § 2412(b) was timely because this section of the statute
contains no explicit time limit for filing the application, this argument
also fails. See Mot. for Recons. at 2. The defendants properly submit
that even if the 30-day time limit for filing a fee petition under
Section 2412(d)(1) does not apply to a petition under Section 2412(b),
the residual time limit for filing such a petition is the shorter limit
set forth in Federal Rule of Civil Procedure 54(d)(2)(B), which provides
that, "[u]nless otherwise provided by statute or order of the court, the
motion [for attorneys' fees] must be filed and served no later than 14
days after entry of judgment." See FED. R. CIV. P. 54(d)(2)(B).
Accordingly, the plaintiffs' petition for attorneys' fees under Section
2412(b) was also untimely and the court would therefore also deny their
petition on this ground.
For all these reasons, the court adopts Magistrate Judge Facciola's
report and recommendation and denies the plaintiffs' motion for
reconsideration. An order directing the parties in a manner consistent
with this Memorandum Opinion is separately and contemporaneously issued
this ___ day of March, 2002.
ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
ON THE ATTORNEYS' FEES ISSUE;
DENYING THE PLAINTIFFS' MOTION FOR RECONSIDERATION
For the reasons stated in this court's Memorandum Opinion separately
and contemporaneously issued this ___ day of March, 2002, it is ORDERED
that Magistrate Judge Facciola's report and recommendation is ADOPTED;
and it is
FURTHER ORDERED that the plaintiffs' motion for reconsideration of the
report and recommendation is DENIED.
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