Merrell v. Block, 83-4258.

Citation809 F.2d 639
Decision Date05 February 1987
Docket NumberNo. 83-4258.,83-4258.
PartiesPaul E. MERRELL, Plaintiff-Appellant, and Oregon Coast Range Residents, Bonnie Hill and Tony Hill, et al., Plaintiffs-Intervenors, v. J.R. BLOCK, Secretary, United States Department of Agriculture, William Clark, Secretary, United States Department of the Interior, and Acting Administrator, United States Environmental Protection Agency, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Mike Axline, Eugene, Or., for plaintiff-appellant.

Albert M. Ferlo, Jr., Dept. of Justice, Washington, D.C., for defendants-appellees.

Before BROWNING, Chief Judge, ALARCON, Circuit Judge, and STEPHENS, District Judge.*

STEPHENS, District Judge:

The opinion filed August 15, 1986, appearing at 797 F.2d 740 (9th Cir.1986) is withdrawn.

On April 15, 1981, Paul Merrell filed a complaint pro se for declaratory and injunctive relief against the United States Forest Service, the Bureau of Land Management and the Environmental Protection Agency. Merrell's complaint alleged that the defendants had violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq., because they had conducted an annual herbicide spraying program near his home in the Siuslaw National Forest without adequately assessing and disclosing the effects of the spraying on human health.

On April 14, 1983, on cross-motions for summary judgment, the district court decided that the federal defendants had violated the NEPA. The court entered an order enjoining the defendants from aerial spraying until they complied with the research and disclosure requirements of the NEPA. The defendants appealed the district court's final judgment. After retaining counsel, Merrell filed a cross-appeal on the merits of the case.

On June 20, 1983, Merrell filed an application in the district court for fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A), for his time spent and costs accrued in litigating in the district court. The district court denied his application on September 13, 1983, finding that the EAJA does not authorize attorneys fees to pro se litigants. The court also decided that fees were inappropriate since the government's position was substantially justified. The district court denied costs and expenses because they were not taxable under 28 U.S.C. § 1920 (1982). Merrell brought a separate appeal on the denial of fees and expenses.

On January 27, 1984, another panel of this court affirmed the district court's finding that the defendants were in violation of the NEPA, but remanded the case to allow the district court to expand its injunction to include both aerial and ground spraying over a larger territorial area. See Save Our ecoSystems v. Clark, 747 F.2d 1240 (9th Cir.1984). The court awarded attorneys fees to Merrell under the EAJA for his counsel's fees on appeal, but specifically refrained from ruling on the district judge's denial of fees to Merrell at the district court level since that issue was the subject of this separate appeal.

We review the district court's denial of fees and expenses under the EAJA for an abuse of discretion. The court's interpretation of the EAJA, however, is subject to de novo review. Southern Oregon Citizens Against Toxic Sprays, Inc. v. Clark, 720 F.2d 1475, 1481 (9th Cir.1983) cert. denied, 469 U.S. 1028, 105 S.Ct. 446, 83 L.Ed.2d 372 (1984). The attorneys fee and expenses provision of the EAJA, 28 U.S.C. § 2412(d)(1)(A) provides, in part:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), 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)(2)(A) defines fees and expenses as follows:

fees and other expenses include the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, text or project which is found by the court to be necessary for the preparation of the party's case, and reasonable attorney fees....

Merrell claims that the language and the legislative history of the EAJA support an interpretation of the statute as allowing attorneys fee awards to a pro se litigant, and accordingly, that the district court erred in denying his application for fees. This circuit has not previously been faced with the question of a pro se litigant's entitlement to fees under the EAJA, although entitlement under similar attorneys fee provisions has been the subject of several cases.

In Hannon v. Security National Bank, 537 F.2d 327, 329 (9th Cir.1976), a successful pro se litigant was denied fees under the Truth in Lending Act, 15 U.S.C. § 1640(a) (as amended 1976), because the statute only provided for "a reasonable attorney's fee," and the plaintiff was not an attorney and could not provide attorney services. In Carter v. Veterans Administration, 780 F.2d 1479, 1481 (9th Cir.1986), the court determined that a pro se litigant may not recover attorneys fees under the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B), noting the reasoning in Hannon that, had Congress intended to compensate non-attorneys, it could have expressly so provided. The Carter opinion observed that seven other circuits have also denied fees under the FOIA.1

This court granted attorneys fees to pro se litigants under 42 U.S.C. § 1988 in Ellis v. Cassidy, 625 F.2d 227, 230 (9th Cir.1980). The award was made solely on the basis that the litigants were attorneys who, by having to defend themselves against a frivolous suit, were "required to take time away from their practices to prepare and defend the suit." The court further explained its reasoning as follows:

Legal services have actually been performed Citation. The difficulty of placing a dollar value on the legal services performed, present in the situation where a lay defendant represents himself, is largely absent in the case of an attorney who has established fees and billing practices.

625 F.2d at 231.

The trouble in assessing an appropriate fee for a layman's services while acting as his own attorney is underscored by the EAJA attorneys fee provision itself, which requires that an attorney seeking an award of fees submit to the court a statement "stating the actual time expended and the rate at which fees and expenses are computed." 28 U.S.C. § 2412(d)(1)(B). The statute also provides that:

The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that ... (ii) attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.

28 U.S.C. § 2412(d)(2)(A).

The First Circuit has determined that attorneys fees are not awardable to a pro se litigant under the EAJA. See Crooker v. Environmental Protection Agency, 763 F.2d 16 (1st Cir.1985). The court based its holding upon an examination of the purpose for enacting the attorneys fee provision of the EAJA, which it described as:

removal of the obstacles of litigation expenses, including attorney's fees, so that litigants may challenge unreasonable governmental action and vindicate their rights in court. See H.R.Rep. No. 1418, 96th Cong.2d Sess. 11, reprinted in 1980 U.S.Code Cong. and Ad.News 4984, 4988-89; Dougherty v. Lehman, 711 F.2d 555, 562 (3rd Cir.1983); Spencer v. N.L.R.B., 712 F.2d 539, 549 (D.C.Cir.1983).

763 F.2d at 17. The court reasoned that an award of fees to a pro se litigant would not further this stated purpose.

Our interpretation of the statute must begin with the language...

To continue reading

Request your trial
31 cases
  • Murkeldove v. Astrue
    • United States
    • U.S. District Court — Northern District of Texas
    • July 14, 2009
    ...See Demarest v. Manspeaker, 948 F.2d 655, 656 (10th Cir.1991); Sommer v. Sullivan, 898 F.2d 895, 896 (2d Cir.1990); Merrell v. Block, 809 F.2d 639, 641-42 (9th Cir.1987); Crooker v. EPA, 763 F.2d 16, 17 (1st Cir. Weisbrod urges in his response as more authoritative than the pro se cases a s......
  • Mexico ex rel. Balderas v. Valley Meat Co.
    • United States
    • U.S. District Court — District of New Mexico
    • December 14, 2015
    ..."Congress intended that an attorney have been retained for a prevailing pro se litigant to recover attorney's fees." Merrell v. Block, 809 F.2d 639, 642 (9th Cir. 1987)(emphasis added). See Sommer v. Sullivan, 898 F.2d 895, 895 (2d Cir. 1990); Crooker v. Envtl. Prot. Agency, 763 F.2d 16, 17......
  • Oregon Environmental Council v. Kunzman
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 12, 1987
    ...2412(d)(1)(A) (Supp. III 1985). We review a decision denying attorneys' fees under the EAJA for abuse of discretion. Merrell v. Block, 809 F.2d 639, 640 (9th Cir.1987). An abuse of discretion occurs if the district court based its decision on an erroneous legal conclusion or a clearly erron......
  • Boyadjian v. Cigna Companies
    • United States
    • U.S. District Court — District of New Jersey
    • July 30, 1997
    ...The statute thus contemplates that fees may be awarded when a litigant retained attorney and incurs legal fees. See Merrell v. Block, 809 F.2d 639, 642 (9th Cir.1987) ("`Fees' are specifically defined in that statute as `reasonable attorney fees.' This choice of terminology, standing alone,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT