Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SLOAN v. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

March 21, 2002

LEON SLOAN, SR. ET AL., PLAINTIFFS,
V.
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
I. INTRODUCTION
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.
II. BACKGROUND
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 also 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.
III. ANALYSIS
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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.