1This action was brought to enjoin the non-judicial

foreclosure sale of a house (the “House”) pursuant to the Single

Family Mortgage Foreclosure Act (“Foreclosure Act”), 12 U.S.C. §

3751, et seq. The Amended Complaint asserted five counts and asked

the Court to enjoin the foreclosure sale and declare that the

Foreclosure Act violates the Fifth Amendment. Following discovery

and the filing of dispositive motions, the Government informed the

Court that it would not proceed against Plaintiffs on the basis of

a non-judicial foreclosure. That being the case, the parties

agreed that the Court no longer had jurisdiction over this matter,

except with respect to the instant motion, and the Court dismissed

the dispositive motions as moot. Plaintiffs have moved for

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMES JACONO AND ROBERT MILLER : CIVIL ACTION

:

v. :

:

UNITED STATES DEPARTMENT OF :

HOUSING AND URBAN DEVELOPMENT : NO. 03-4981

O R D E R

AND NOW, this 2nd day of August, 2004, upon consideration of

Plaintiffs’ Motion for Attorney’s Fees and Recovery of Deposit

(Docket No. 32), and the Government’s response thereto, IT IS

HEREBY ORDERED that said Motion is GRANTED in part and DENIED in

part as follows:

1. Plaintiffs’ request for return of the $3000.00 deposited

with the Clerk of Court on September 16, 2003 pursuant to

Federal Rule of Civil Procedure 67, in accordance with

the Court’s Order dated September 16, 2003 (Docket No.

3), is GRANTED. The Clerk of Court shall return the

$3000.00 to Plaintiff. 

2. Plaintiffs’ request for attorney’s fees is DENIED.

1

Case 2:03-cv-04981-JP Document 34 Filed 08/02/04 Page 1 of 3
attorney’s fees pursuant to 28 U.S.C. § 2412(d), which provides

that:

Except as otherwise specifically provided by

statute, a court shall award to a prevailing

party other than the United States fees and

other expenses . . . incurred by that party in

any civil action . . . brought by or against

the United States in any court having

jurisdiction of that action, unless the court

finds that the position of the United States

was substantially justified or that special

circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). The Supreme Court has explained that a

“prevailing party” entitled to an award of attorney’s fees “is one

who has been awarded some relief by the court.” Buckhannon Bd. and

Care Home, Inc. v. West Virginia Dep’t of Health and Human Res.,

532 U.S. 598, 603 (2001). The Supreme Court stated in Buckhannon

that judgments on the merits and “settlement agreements enforced

through a consent decree may serve as the basis for an award of

attorney's fees.” Id. at 604. The United States Court of Appeals

for the Third Circuit has expanded its view of “prevailing party”

to include a party which obtained a stipulated settlement which

“(1) contained mandatory language, (2) was entitled ‘Order,’ (3)

bore the signature of the District Court judge, not the parties’

counsel, and (4) provided for judicial enforcement.” John T. v.

The Delaware County Intermediate Unit, 318 F.3d 545, 558 (3d Cir.

2003) (citing Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 165

(3d Cir. 2002)). This case has not resulted in any court ordered

relief on the merits of Plaintiffs’ claims, let alone a judgment,

consent decree or stipulated settlement agreement. 

 Plaintiffs contend that they are entitled to an award of their

attorney’s fees as a prevailing party even though they have not

obtained judgment on the merits in their favor on any of their

claims or reached a settlement agreement with the Government.

Plaintiffs maintain that they are prevailing parties because they

filed suit in order to prevent the non-judicial foreclosure of the

House, and the Government consequently agreed not to proceed with

non-foreclosure pursuant to the Foreclosure Act. However, even

assuming that the Government decided to forego non-judicial

foreclosure solely because Plaintiffs filed the instant proceeding,

that fact, by itself, is not enough to make Plaintiffs prevailing

parties for the purposes of Section 2412(d). Plaintiffs’ argument

apes the catalyst theory which was rejected by the Supreme Court in

Buckhannon, i.e., that “a plaintiff is a ‘prevailing party’ if it

achieves the desired result because the lawsuit brought about a

voluntary change in the defendant's conduct”. See 532 U.S. at 602,

2

Case 2:03-cv-04981-JP Document 34 Filed 08/02/04 Page 2 of 3
610 (holding that the “catalyst theory is not a permissible basis

for the award of attorney's fees”); see also John T., 318 F.3d at

561 (“we read Buckhannon to reject the ‘catalyst theory’ whole

hog.”). Accordingly, Plaintiffs’ request for attorney’s fees

pursuant to 28 U.S.C. § 2412(d) is denied.

3

3. This action is DISMISSED pursuant to Federal Rule of

Civil Procedure 12(h)(3) as this Court no longer has

jurisdiction of the subject matter of this action.

4. The Clerk shall close this case for statistical purposes.

BY THE COURT:

______________________

John R. Padova, J.

Case 2:03-cv-04981-JP Document 34 Filed 08/02/04 Page 3 of 3