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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

Document No.: 45

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

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 demolitio n 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 *fn2

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 reconsideratio n 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 ...


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