Duncan v. Poythress

• Decision Date: 12 December 1985
• Docket Number: No. 84-8076,84-8076
• Parties: , 54 USLW 2334 Elizabeth D. DUNCAN, et al., Plaintiffs-Appellants, v. David B. POYTHRESS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1508

777 F.2d 1508

82 A.L.R.Fed. 777, 54 USLW 2334

Elizabeth D. DUNCAN, et al., Plaintiffs-Appellants, v. David B. POYTHRESS, et al., Defendants-Appellees.

No. 84-8076.

United States Court of Appeals, Eleventh Circuit.

Dec. 12, 1985.

Kathleen Kessler, Atlanta, Ga., for plaintiffs-appellants.

Robert J. Winicki, Jacksonville, Fla., for amicus curiae Winicki.

Patrick McKee, Asst. Atty. Gen., Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, Circuit Judges. ^*

KRAVITCH, Circuit Judge:

Appellant Kathleen Kessler appeals the denial of her application for attorney's fees

pursuant to 42 U.S.C. Sec. 1988. During the early part of this litigation, Kessler represented plaintiffs Duncan and Stout; later in the litigation, after she was added as a plaintiff, Kessler represented herself. The lower court denied fees for the period in which Kessler represented herself under the theory that a lawyer who appears pro se is never entitled to attorney's fees under section 1988. The court denied Kessler fees for the time that she represented the other plaintiffs because it concluded that Kessler did not request such fees in her initial application. Finding that the court below erred in both rulings, we reverse.

I. BACKGROUND

Plaintiffs brought this suit pursuant to 42 U.S.C. Sec. 1983 claiming that the refusal of state officials to call a special election to fill a position on the Georgia Supreme Court violated their constitutionally protected right to vote. ¹ Elizabeth Duncan and Elizabeth Stout were the only two plaintiffs at the time of the filing of the case and were represented by three lawyers: Kathleen Kessler, William Hollberg, and William Rucker. At the beginning of the trial, plaintiffs moved to amend the complaint to have Kessler added as a plaintiff. Plaintiffs did this because they felt it would be important for Kessler to testify on their behalf. ² The district court granted plaintiffs' motion subject to the condition that Kessler withdraw as co-counsel. Subsequently, Kessler began representing herself as an attorney pro se litigant.

Plaintiffs prevailed at trial and on appeal on their section 1983 claim. Duncan v. Poythress, 515 F.Supp. 327 (N.D.Ga.), aff'd, 657 F.2d 691 (5th Cir. Unit B 1981), cert. granted, 455 U.S. 937, 102 S.Ct. 1426, 71 L.Ed.2d 647, cert. dismissed, 459 U.S. 1012, 103 S.Ct. 368, 74 L.Ed.2d 504 (1982). The trial court also awarded plaintiffs reasonable attorney's fees pursuant to 42 U.S.C. Sec. 1988. Id. at 343. In an out-of-court settlement, defendants agreed to pay attorneys Hollberg and Rucker a total of $128,487 in fees, but refused to pay attorney's fees to Kessler. Kessler then applied to the district court for fees.

Kessler's application for fees and brief in support of that application were filed on behalf of "Kathleen Kessler, plaintiff pro se." These documents requested fees for the entire time Kessler worked on this case, including both the time that she was counsel of record for plaintiffs Duncan and Stout and the time that she represented herself. The application also analyzed all such time according to the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). ³

The district court denied Kessler's application for fees because she was a pro se litigant. Duncan v. Poythress, 572 F.Supp. 776 (N.D.Ga.1983). Kessler moved for reconsideration under the theory that, even if she was not entitled to fees for the time that she represented herself, she could not be denied fees for the time that she represented the other two plaintiffs. The lower court denied Kessler's motion

based upon its finding that she had failed to raise this ground for recovery earlier.

II. ATTORNEY'S FEES FOR LAWYER PRO SE LITIGANTS

The question before this court is whether attorneys who proceed pro se should be treated like other attorneys (prevailing plaintiff's attorney(s) presumptively entitled to fees ⁴ ) or like lay pro se litigants (not entitled to fees) for the purposes of section 1988.

The court below denied Kessler's application for fees based on Cofield v. City of Atlanta, 648 F.2d 986 (5th Cir. Unit B 1981), ⁵ in which the court denied fees to the plaintiff, a nonlawyer, who appeared pro se. ⁶ The specific issue of fees for a lawyer appearing pro se was not addressed in Cofield. Cazalas v. United States Department of Justice, 709 F.2d 1051, 1055 n. 8 (5th Cir.1983); Ehlers v. City of Decatur, 696 F.2d 1006 (11th Cir.1983) (unpublished opinion). Only one Court of Appeals, the Ninth Circuit, has considered the issue of whether a lawyer litigant proceeding pro se is entitled to attorney's fees under section 1988. Ellis v. Cassidy, 625 F.2d 227 (9th Cir.1980). The Ellis court determined that defendants who were attorneys and who represented themselves were entitled to fees. Although Ellis is unlike the present case in that it concerned an attorney pro se defendant, the Ellis court's reasoning is, in large part, applicable to the present case. Indeed, Ellis was cited as persuasive authority in Rybicki v. State Board of Elections, 584 F.Supp. 849 (N.D.Ill.1984) (three-judge court) where an attorney pro se plaintiff was granted fees under section 1988. But see Lawrence v. Staats, 586 F.Supp. 1375 (D.D.C.1984) (attorney pro se plaintiff not entitled to fees). ⁷ Circuit courts are divided as to whether attorney pro se litigants are entitled to fees in contexts other than section 1988. Falcone v. Internal Revenue Service, 714 F.2d 646 (6th Cir.1983), cert. denied, 466 U.S. 908, 104 S.Ct. 1689, 80 L.Ed.2d 162 (1984) (attorney-litigant in Freedom of Information Act (FOIA) suit denied fees); Cazalas v. United States Department of Justice, 709 F.2d 1051 (5th Cir.1983) (attorney-litigant entitled to fees in FOIA case); White v. Arlen Realty and Development Corp., 614 F.2d 387 (4th Cir.), cert. denied, 447 U.S. 923, 100 S.Ct. 3016, 65 L.Ed.2d 1116 (1980) (fees denied attorney-litigant in Truth In Lending Act case); Cuneo v. Rumsfield, 553 F.2d 1360 (D.C.Cir.1977) The plain language of section 1988 does not preclude an award of fees to a lawyer representing herself. The statute states in pertinent part:

                (FOIA attorney-litigant entitled to fees, but nonattorneys also entitled to fees in D.C. Circuit.   Cox v. United States Department of Justice, 601 F.2d 1 (D.C.Cir.1979)). 8
                

In any action or proceeding to enforce a provision of [section] ... 1983 ... of this title ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs.

Moreover, this court has determined that section 1988 "should be accorded broad interpretation since the statute is remedial in nature." Williams v. City of Fairburn, 702 F.2d 973, 976 (11th Cir.1983). Thus, the absence of any express prohibition strongly suggests allowance of a fee award, unless the legislative history provides otherwise. The legislative history of section 1988 does not address this issue.

Absent express language in either the statute itself or its legislative history, we look to the purposes of section 1988 to determine whether granting attorney's fees to attorney pro se litigants would further those purposes. Defendants assert, and the lower court found, that Kessler is not entitled to attorney's fees because "section 1988 is designed to assist average citizens who, were it not for the attorney's fees provision, would lack the ability to effectively pursue meritorious complaints." 572 F.Supp. at 778. Although Congress certainly intended section 1988 to help those without the financial resources to hire a lawyer, to the extent that the court below relied on the rationale that section 1988 is only intended to help those who cannot otherwise afford legal assistance, such reliance is misplaced. A plaintiff's lawyer is not denied fees under section 1988 merely because the plaintiff is able to pay for a lawyer, see, e.g., Riddell v. National Democratic Party, 624 F.2d 539, 543 (5th Cir.1980); ⁹ International Oceanic Enterprises, Inc. v. Menton, 614 F.2d 502, 503 (5th Cir.1980), or because plaintiff is not actually required to pay his or her lawyer. See, e.g., Johnson v. University College, 706 F.2d 1205, 1210 (11th Cir.), cert. denied, 464 U.S. 994, 104 S.Ct. 489, 78 L.Ed.2d 684 (1983); Watkins v. Mobile Housing Board, 632 F.2d 565, 567 (5th Cir.1980); Ellis v. Cassidy, 625 F.2d at 230. Thus, the financial need of the litigant is not the determinative factor in awarding fees under section 1988. ¹⁰

Moreover, contrary to the implication of defendants' argument, the fact that Kessler is a lawyer and therefore can (and did) provide legal representation to herself, does not mean that she does not need section 1988 in order to enable her to pursue a case like the present one. Merely because plaintiff Kessler need not pay an actual fee to attorney Kessler does not mean that she is able to spend the time and pay the overhead Defendants also assert that, in the present case, it was not necessary for Kessler to represent herself ¹⁴ because the other two plaintiffs' attorneys could have represented Kessler as well with no appreciable Defendants' assertions that Kessler is not entitled to fees, either because as a lawyer she has free access to the legal system or because other lawyers were available to represent her, are unpersuasive. Under either of these rationales, had Kessler retained additional counsel to represent her in this litigation, such counsel would not have been entitled to fees under section 1988. Yet, defendants admit that attorney's fees would have been allowed to a lawyer hired by Kessler to represent her. Thus, defendants are asserting the anomalous position that Kessler could have hired any other lawyer besides Kessler and that lawyer would have been entitled to fees. A...