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