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TRINITY EPISCOPAL SCHS. CORP. v. HILLS

October 14, 1976

TRINITY EPISCOPAL SCHOOLS CORPORATION and Trinity Housing Company, Inc., Plaintiffs,
v.
Carla HILLS, Secretary of the Department of Housing and Urban Development, et al., Defendants



The opinion of the court was delivered by: COOPER

MEMORANDUM

 IRVING BEN COOPER, District Judge.

 This is a motion by Trinity Episcopal Schools Corporation and Trinity Housing Company, Inc. ("plaintiffs") for an order awarding them $18,415.11 in costs and disbursements and $186,683.75 in attorney's fees for the period from April 1971 through February 1976, against defendants Carla Hills, Secretary of the Department of Housing and Urban Development ("HUD"), the City of New York, the State of New York and certain intervening defendants.

 The long and complex history of this litigation is recited in our opinion, Trinity Episcopal School Corp. v. Romney, 387 F. Supp. 1044 (1974). In that decision we identified five issues that form the basis of this suit:

 
"(1) Whether there has been a breach of contract between Trinity . . . and the City by reason of changes in the Area after execution of their contract and the manner in which the City has proceeded with execution of the Plan [for housing development];
 
(2) Whether the City was required to secure the written consent of plaintiffs Karlen and Hudgins . . . to any proposed change in the Plan and particularly to the conversion of Site 30 from middle income to public housing;
 
(3) Whether construction of a public housing project on Site 30 would cause the Area to 'tip' within the meaning of Otero v. New York City Housing Authority, 484 F.2d 1122 (2 Cir. 1973) [citation omitted];
 
(4) Whether the Department of Housing and Urban Development ("HUD") has complied with the National Environmental Protection Act ("NEPA"), 42 U.S.C. §§ 4321-4347, regarding its study approving construction of the public housing project on Site 30
 
(5) [Whether] the approval by the City of the conversion of Sites 4 and 30 from middle income to public housing was in compliance with the statutory procedures."

 387 F. Supp. at 1048.

 On all issues we found in defendants' favor, noting that "the evidence presented by plaintiffs [was] factually and legally insufficient to warrant the relief sought." Id., at 1085. In awarding judgment to the defendants, we reserved decision on plaintiffs' post-trial motion for attorney's fees. Id.

 On appeal, the Second Circuit affirmed in part and reversed in part. Trinity Episcopal School Corp. v. Romney, 523 F.2d 88 (1975). The Court of Appeals affirmed our conclusions on all issues raised below except as to the question of whether HUD had complied with its duties under NEPA. On this point, the Court of Appeals concluded that HUD did not fulfill its statutory duty of considering all possible alternatives with respect to the proposal of changing the development of Site 30 from middle to low income housing. Id., at 92-94. The Court remanded that issue with directions to fashion an appropriate order requiring HUD to consider reasonable alternatives to the development of the site in question as a 100 per cent low income project. Id., at 95. The Circuit Court's mandate, filed July 24, 1975, provided, inter alia, that the "action be and it hereby is remanded to said District Court for further proceedings in accordance with the opinion of this court, with costs to abide the event." (emphasis added). On September 26, 1975, we filed an order consistent with the Court's mandate. We await the completion of preliminary proceedings before fixing a date for adducing testimony in open court.

 I

 In the present motion, plaintiffs seek $18,415.11 for costs and disbursements. We deny the motion without prejudice to renew when the final outcome of these proceedings is eventually determined. Fed.R.App.P. 39(a) clearly states that when a District Court decision is affirmed or reversed in part, "costs shall be allowed only as ordered by the court [of appeals]." As noted above, the Court of Appeals in its mandate stated that "costs [are] to abide the event." Since the "event," i.e., the outcome of further proceedings in this case, has not yet occurred (and several outcomes are ...


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