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.

Dubose v. Pierce

May 14, 1985

VERNICE DUBOSE, SUSAN DAIGLE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, CONNECTICUT LEGAL SERVICES, INC., SAN FERNANDO VALLEY NEIGHBORHOOD LEGAL SERVICES, APPELLEES-CROSS-APPELLANTS,
v.
SAMUEL R. PIERCE, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; WINDHAM HEIGHTS ASSOCIATES, A LIMITED PARTNERSHIP; ANTHONY ASSOCIATES, A GENERAL PARTNERSHIP; AND SIMON KONOVER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A GENERAL PARTNER IN WINDHAM HEIGHTS ASSOCIATES AND ANTHONY ASSOCIATES, DEFENDANTS SAMUEL R. PIERCE, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, DEFENDANT-APPELLANT-CROSS-APPELLEE CLAUDIA WALTER AND DOMINICK CORTESE, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS, CONNECTICUT LEGAL SERVICES, INC., SAN FERNANDO VALLEY NEIGHBORHOOD LEGAL SERVICES, APPELLEES-CROSS-APPELLANTS, V. SAMUEL R. PIERCE, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; CARABETTA ENTERPRISES, INC., A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF CONNECTICUT, LOCATED IN THE TOWN OF MERIDEN, COUNTY OF NEW HAVEN, STATE OF CONNECTICUT, DEFENDANTS, SAMUEL R. PIERCE, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, DEFENDANT-APPELLANT-CROSS-APPELLEE JANETTE LITTLE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF, CONNECTICUT LEGAL SERVICES, INC., SAN FERNANDO VALLEY NEIGHBORHOOD LEGAL SERVICES, APPELLEES-CROSS-APPELLANTS, V. SAMUEL R. PIERCE, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; RICHARD BROWN, INDIVIDUALLY AND IN HIS CAPACITY AS PART-OWNER OF EAST HARTFORD ESTATES; OAK MANAGEMENT CO., INC., A CONNECTICUT CORPORATION; LOUIS BROWN, INDIVIDUALLY AND IN HIS CAPACITY AS PART-OWNER OF EAST HARTFORD ESTATES, DEFENDANTS, SAMUEL R. PIERCE, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, DEFENDANT-APPELLANT-CROSS-APPELLEE MAY PLEASANT, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PLAINTIFF, CONNECTICUT LEGAL SERVICES, INC., SAN FERNANDO VALLEY NEIGHBORHOOD LEGAL SERVICES, APPELLEES-CROSS-APPELLANTS, V. SAMUEL R. PIERCE, JR., SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; TUSCAN BROTHERHOOD HOMES, INC., A CONNECTICUT CORPORATION, DEFENDANTS, SAMUEL R. PIERCE, JR., SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, DEFENDANT-APPELLANT-CROSS-APPELLEE PANTALEON MORALES, YLDA LADSON AND MARGARET WILLIAMS, INDIVIDUALLY AND ON BEHALF OF THOSE SIMILARLY SITUATED, PLAINTIFFS, CONNECTICUT LEGAL SERVICES, INC., SAN FERNANDO VALLEY NEIGHBORHOOD LEGAL SERVICES, APPELLEES-CROSS-APPELLANTS, V. SAMUEL R. PIERCE, JR., INDIVIDUALLY AND IN HIS CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; WILLIAM H. HERNANDEZ, JR., INDIVIDUALLY AND IN HIS CAPACITY AS MANAGER FOR CONNECTICUT FOR THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; CANTERBURY GARDENS COOPERATIVE, INC. AND RIPPS REALTY, INC., DEFENDANTS, SAMUEL R. PIERCE, JR., INDIVIDUALLY AND IN HIS CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; WILLIAM H. HERNANDEZ, JR., INDIVIDUALLY AND IN HIS CAPACITY AS MANAGER FOR CONNECTICUT FOR THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, DEFENDANTS-APPELLANTS-CROSS-APPELLEES CATHY ADAMS, SHEILA CAQUETTE, BARBARA LITTLEJOHN AND HAZEL FRENCH, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, CONNECTICUT LEGAL SERVICES, INC., SAN FERNANDO VALLEY NEIGHBORHOOD LEGAL SERVICES, APPELLEES-CROSS-APPELLANTS, V. SAMUEL R. PIERCE, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; BRANFORD MANOR ASSOCIATES, BAY MANAGEMENT CORPORATION, MARVIN S. GOLD, ANNETTE E.P. GOLD, MILTON A. BERNBLUM, JOHN J. GROVES, AND BURTON LEVY, INDIVIDUALLY AND AS GENERAL PARTNERS IN BRANFORD MANOR ASSOCIATES, DEFENDANTS, SAMUEL R. PIERCE, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, DEFENDANT-APPELLANT-CROSS-APPELLEE MERRY ELLEN GRUNDMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF, CONNECTICUT LEGAL SERVICES, INC., SAN FERNANDO VALLEY NEIGHBORHOOD LEGAL SERVICES, APPELLEES-CROSS-APPELLANTS, V. SAMUEL R. PIERCE, JR., INDIVIDUALLY AND IN HIS CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; JOHN ERRICHETT, INDIVIDUALLY AND IN HIS CAPACITY AS OWNER OF HIGHWOOD APARTMENTS; CREATIVE MANAGEMENT & REALTY, A CONNECTICUT CORPORATION, DEFENDANTS, SAMUEL R. PIERCE, JR., INDIVIDUALLY AND IN HIS CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, DEFENDANT-APPELLANT-CROSS-APPELLEE JOANN JOHNSON AND FRANK JACKSON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, CONNECTICUT LEGAL SERVICES, INC., SAN FERNANDO VALLEY NEIGHBORHOOD LEGAL SERVICES, APPELLEES-CROSS-APPELLANTS, V. SAMUEL R. PIERCE, JR., INDIVIDUALLY AND IN HIS CAPACITY AS SECRETARY, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; WILLIAM H. HERNANDEZ, JR., INDIVIDUALLY AND IN HIS CAPACITY AS MANAGER FOR CONNECTICUT FOR THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AND RIPPS REALTY, INC., DEFENDANTS, SAMUEL R. PIERCE, JR., INDIVIDUALLY AND IN HIS CAPACITY AS SECRETARY, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; WILLIAM H. HERNANDEZ, JR., INDIVIDUALLY AND IN HIS CAPACITY AS MANAGER FOR CONNECTICUT FOR THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, DEFENDANTS-APPELLANTS-CROSS-APPELLEES



Appeal from a judgment of the United States District Court for the District of Connecticut, Blumenfeld, J., granting plaintiffs' motion for attorneys' fees pursuant to Equal Access to Justice Act, 28 U.S.C. § 2412 (1982) (EAJA). The district court concluded that plaintiffs' fees application was proper under the EAJA because the government's position was not substantially justified. Because this conclusion was erroneous, the district court's judgment is reversed. Reversed, remanded for entry of judgment against plaintiffs on their application for fees. Plaintiffs' cross-appeal is dismissed. No costs.

Van Graafeiland, Meskill and Winter,*fn* Circuit Judges

Author: Meskill

MESKILL, Circuit Judge:

This action is before us on appeal from a judgment entered in the United States District Court for the District of Connecticut, Blumenfeld, J., granting plaintiffs' motion for attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (1982) (EAJA). The court held that the government's position in litigation was not substantially justified so that a fee award to plaintiffs was proper. Because we disagree with the court's conclusion, we reverse. We also dismiss plaintiffs' cross-appeal concerning the amount and calculation of the award.

I

This case represents the final chapter in a lengthy series of actions concerning federal housing subsidies. Because the issue before us is a limited one -- whether the district court's award of fees was proper -- a brief review of the facts will suffice. The complete factual and procedural history of the underlying actions has been exhaustively covered in a number of prior opinions. See Dubose v. Pierce, 579 F. Supp. 937, 941-46 (D. Conn. 1984) (Dubose V); (Dubose v. Harris, 82 F.R.D. 582, 583-85 (D. Conn. 1979) (Dubose IV); Dubose v. Harris, 434 F. Supp. 227, 228-30 (D. Conn. 1977) (Dubose III); Dubose v. Hills, 420 F. Supp. 399, 22 Fed. R. Serv. 2d (Callaghan) 476, 477 (D. Conn. 1976) (Dubose II); Dubose v. Hills, 405 F. Supp. 1277, 1280-82 (D. Conn. 1975) (Dubose I), modified on other grounds, 420 F. Supp. 399 (D. Conn. 1976).*fn1

Section 236 of the National Housing Act, 12 U.S.C. § 1715z-1 (1982), provides for financial assistance to owners of low income housing projects. In 1974 Congress modified this program through passage of the Housing and Community Development Act of 1974 (HCDA), Pub. L.No.93-383, 88 Stat. 633. Among the changes instituted by HCDA was the addition of § 1715z-1(f) (3) (A) (1976), repealed by Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35 § 322(f) (7), 95 Stat. 403. Section 1715z-1(f) (3) (A) amended HCDA's operating subsidy program to allow the Secretary of Housing and Urban Development (HUD) to make "additional assistance payments to the project owner in an amount up to the amount by which the sum of the cost of utilities and local property taxes exceeds the initial operating expense level." 12 U.S.C. § 1715z(f) (3) (A) (1976). These payments were intended to protect tenants in low income housing from rent boosts that would otherwise result from increases in property taxes and utility costs.

This subsidy program was not implemented. Instead, HUD allowed owners to pass cost increases along to tenants as higher rents. The Secretary believed that implementation of the program was discretionary and that the agency could choose to use its funds in other ways.

The underlying action followed. In 1975 Judge Blumenfeld granted the tenants' motion for a preliminary injunction ordering the Secretary to implement the program. Dubose I, 405 F. Supp. at 1292-93. Rather than appealing that decision, HUD concentrated its opposition on projects other than those covered by the injunction. In May 1976, after additional suits were filed, the court certified a statewide class of project-plaintiffs and ordered HUD to pay subsidies to all projects in Connecticut. Dubose II, 22 Fed.R.Serv.2d at 477-79.

In June 1976, the United States District Court for the District of Columbia issued a permanent injunction ordering HUD to pay the subsidies for nationwide housing projects . Underwood v. Hills, 414 F. Supp. 526, 532 (D.D.C. 1976). That injunction was stayed by the Supreme Court pending appeal. 429 U.S. 892, 97 S. Ct. 250, 50 L. Ed. 2d 175 (1976) (action of whole Court). In 1977 the Supreme Court granted certiorari in two related cases, Harris v. Abrams and Harris v. Ross, 431 U.S. 928, 53 L. Ed. 2d 243, 97 S. Ct. 2630 (1977). See Abrams v. Hills, 547 F.2d 1062 (9th Cir. 1976), vacated sub nom. Pierce v. Abrams, 455 U.S. 1010, 72 L. Ed. 2d 127, 102 S. Ct. 1700 (1982), and Ross v. Community Services, Inc., 405 F. Supp. 831 (D. Md. 1975), aff'd, 544 F.2d 514 (4th Cir. 1976), vacated sub nom. Pierce v. Ross, 455 U.S. 1010, 72 L. Ed. 2d 127, 102 S. Ct. 1700 (1982).

Before those cases could be heard, the parties in the related actions agreed to a settlement. Under this agreement, HUD was to pay into the Underwood Court a settlement fund from which eligible tenants were to receive retroactive tax and utility cost subsidy payments. See Stipulation for Settlement, reprinted as Appendix to Dubose IV, 82 F.R.D. at 592-605 (Stipulation). The Stipulation also required that the underlying cases were to remain active until settlement administration was completed. Stipulation, 82 F.R.D. at 598 P7. This settlement was approved by the Connecticut district court. Dubose IV, 82 F.R.D. at 588-92.

During the settlement administration process, the Equal Access to Justice Act, 28 U.S.C. § 2412 (1982) (EAJA), was passed. The relevant provision of EAJA states:

except as otherwise specifically provided by statute, a court shall award to a prevailing party . . . fees and other expenses . . . incurred by that party in any civil action . . . brought by or against the United States . . ., unless the court finds that the position of the United States was ...


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.