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03/01/85 Massachusetts Union of v. Samuel R. Pierce

March 1, 1985

AL., APPELLANTS

v.

SAMUEL R. PIERCE, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, ET



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

MASSACHUSETTS UNION OF PUBLIC HOUSING TENANTS, INC., et

al.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-1895). 1985.CDC.36

APPELLATE PANEL:

WRIGHT, MIKVA and SCALIA, Circuit Judges. PER CURIAM.

Opinion PER CURIAM.

This case involves a straightforward statutory interpretation question regarding the meaning of 29 U.S.C. ยง 2412(d)(1)(1982), the provision in the Equal Access to Justice Act that requires that applications for attorney's fees under Section 2412(d) be filed "within thirty days of final judgment in the action." *fn1 The question presented is whether this provision requires such applications to be filed within 30 days of an appelable judgment by a District Court or allows them to be filed within 30 days of the time that such a judgment becomes final by virtue of an appeal being completed or foregone. The District Court held that such applications must be filed within 30 days of the District Court's judgment, even if that judgment was not clearly the last action in the case. We reverse the District Court and hold that applications must be filed within 30 days of the time that a judgment becomes final because an appeal is completed or foregone.

BACKGROUND

This action stems for a long and involved litigation growing out of the promulgation of certain rules of the Department of Housing and Urban Development . In 1975 HUD proposed a regulation that would have required HUD funds to be used to covert public housing project utility service to individually-metered service where it was determined that such conversion would be economical. See 40 Fed.Reg. 44159 (Sept. 25, 1975). The proposed regulation specified certain assumptions to be used in performing the cost/benefit analysis to determine whether conversion would be economical in a particular instance. One of these assumptions was that conversion would automatically result in a 25-35 percent reduction in heating consumption. See id. at 44159-44160. Appellant Massachusetts Union of Public Housing Tenants and others challenged this particular assumption as unsupported. But HUD promulgated the regulation with the assumption unchanged. See 41 Fed.Reg. 20276 (May 17, 1976).

Appellants then petitioned HUD formally and informally for rulemaking to correct the perceived error. These petitions were denied. Having exhausted their administrative remedies, appellants filed suit in the District Court on October 11, 1978, alleging that the 25-35 percent hearing assumption had no factual or rational basis. On January 25, 1980 the District Court granted summary judgment in favor of HUD. On appeal from that judgment this court held that the rulemaking record was inadequate for judicial review and remanded the case for further consideration by the agency. See Massachusetts Union of Public Housing Tenants, Inc. v. Landrieu (D.C.Cir. No. 80-1332, April 7, 1981), 656 F.2d 899, reproduced in Appendix to Briefs of Parties on Entitlement to Attorneys Fees (App.) at A-33. The District Court, on remand from this court, in turn remanded the rule fo the agency for additional support for the rulemaking. See App. at A-32.

In September 1981 appellants filed a motion in the District Court requesting that HUD be enjoined from implementing meter conversions until it set forth an acceptable factual basis for the disputed regulation. On March 3, 1982 the District Court ordered HUS not to expend any funds for meter conversions until it complied with this court's order for a fuller explanation of the rule. See App. at A-31.

On October 26, 1982 appellants moved for summary judgment invalidating the rule as arbitrary and capricious. On May 20, 1983 the District Court filed an opinion granting the summary judgment and invalidating the challenged provision of the regulation. See App. at A-18. On June 2, 1983 HUD filed a motion for amendment and/or clarification of the District Court's order. On August 8, 1983 the District Court issued certain clarifications of its previous order. See App. at A-24. HUD did not appeal from the District Court's judgment within the 60 days allowed. *fn2

On November 2, 1983 appellants filed a motion for attorney's fees under Section 2412. On January 17, 1984 the District Court held that the request for attorney's fees under Section 2412(d) was not timely as it was filed more than 30 days after the court's final judgment, which was issued on August 8. See Massachusetts Union of Public Housing Tenants v. Pierce, 577 F. Supp. 1499 (D.D.C.1984). On appeal the Union and other appellants contend that the 30 days specified in Section 2412(d)(1)should run from the time when the District Court's judgment became unappealable, i.e., when the 60-day period for filing an ...


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