Cunningham v. F.B.I.

• Decision Date: 24 November 1981
• Docket Number: 81-1537,Nos. 81-1183,s. 81-1183
• Citation: 664 F.2d 383
• Parties: 7 Media L. Rep. 2380 Dale S. CUNNINGHAM v. FEDERAL BUREAU OF INVESTIGATION, William H. Webster, Director, Clarence M. Kelley, Past Director, Allen H. McCreight, Chief, FOI/PA Branch, Department of Justice, Griffin B. Bell, Attorney General, Barbara Allen Babcock, Assistant Attorney General, and Richard M. Rogers, Deputy Director Office of Privacy and Information Appeals "DSB," signing assistant to Allen H. McCreight, Chief, FOI/PA Branch Federal Bureau of Investigation; Department of Justice, Michael J. Egan, Associate Attorney General, Quinlan J. Shea, Jr., Director, Office of Privacy and Information Appeals, and Department of Review Committee, Department of Justice, Federal Bureau of Investigation, William H. Webster, Director Clarence M. Kelley, Past Director, Allen H. McCreight, Chief, FOI/PA Branch, James M. Powers, Past Chief, FOI/PA Branch, Department of Justice, Griffin B. Bell, Attorney General, Barbara Allen Babcock, Assistant Attorney General, and Richard M. Rogers, Deputy Director Office of Privacy and Information Appeals, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 383

664 F.2d 383

7 Media L. Rep. 2380

Dale S. CUNNINGHAM v. FEDERAL BUREAU OF INVESTIGATION, William H. Webster Director, Clarence M. Kelley, Past Director, Allen H McCreight, Chief, FOI/PA Branch, Department of Justice Griffin B. Bell, Attorney General, Barbara Allen Babcock Assistant Attorney General, and Richard M. Rogers, Deputy Director Office of Privacy and Information Appeals "DSB," signing assistant to Allen H. McCreight, Chief, FOI/PA Branch Federal Bureau of Investigation; Department of Justice, Michael J. Egan, Associate Attorney General, Quinlan J. Shea, Jr., Director, Office of Privacy and Information Appeals, and Department of Review Committee, Department of Justice, Federal Bureau of Investigation, William H. Webster, Director Clarence M. Kelley, Past Director, Allen H. McCreight, Chief, FOI/PA Branch, James M. Powers, Past Chief, FOI/PA Branch, Department of Justice, Griffin B. Bell, Attorney General, Barbara Allen Babcock, Assistant Attorney General, and Richard M. Rogers, Deputy Director Office of Privacy and Information Appeals, Appellants.

Nos. 81-1183, 81-1537.

United States Court of Appeals, Third Circuit.

Argued Sept. 14, 1981.

Decided Nov. 24, 1981.

John Cary Sims (argued), Alan B. Morrison, David C. Vladeck, Washington, D. C., for appellee.

Thomas S. Martin, Acting Asst. Atty. Gen., William W. Robertson, U. S. Atty., Leonard Schaitman, Marc Richman (argued), Appellant Staff, Dept. of Justice, Washington, D. C., for appellants.

Before SEITZ, Chief Judge, ADAMS and GARTH, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

Dale Cunningham, who is not a lawyer, filed and prosecuted on his own behalf a Freedom of Information Act (FOIA) lawsuit against the Federal Bureau of Investigation (FBI). Shortly after the suit was filed, the FBI released to Cunningham 860 pages of requested documents. The district court therefore found that Cunningham had "substantially prevailed" in the case despite an adverse summary judgment as to most of the remaining documents. The court awarded Cunningham, as the prevailing party, $523 in reimbursement for out-of-pocket disbursements and an additional $750 "in lieu of attorney's fees." On appeal the FBI seeks review only of the $750 award and raises a single narrow statutory question: whether a prevailing pro se litigant who is not an attorney may recover attorney's fees under the FOIA.

Although this question has not until now been squarely before this Court, it has been the subject of extensive attention from other courts and has received a variety of answers. The Court of Appeals for the District of Columbia Circuit has held that non-lawyer pro se litigants are eligible to receive attorney's fees under the FOIA. E. g., Cox v. United States Department of Justice, 601 F.2d 1, 5-6 (D.C.Cir.1979). Reaching the contrary conclusion, several other courts of appeals have decided that attorney's fees are available only when an attorney has been employed. Crooker v. United States Department of Justice, 632 F.2d 916 (1st Cir. 1980); Barrett v. Bureau of Customs, 651 F.2d 1087 (5th Cir. 1981); Burke v. United States Department of Justice, 559 F.2d 1182 (10th Cir. 1977). The Second Circuit has dealt with the issue more narrowly by holding that attorney's fees are not available to a prevailing pro se FOIA litigant who, because he was a prisoner, did not divert time from any income-producing activity of his own. Crooker v. U. S. Department of the Treasury, 634 F.2d 48 (2d Cir. 1980). And other circuits, confronting the same issue in the context of federal statutes other than FOIA, have held that attorney's fees are not available to pro se litigants under those statutes. White v. Arlen Realty & Development Corp., 614 F.2d 387 (4th Cir.) (Truth in Lending Act, 15 U.S.C. § 1640(a)(3)), cert. denied, 447 U.S. 923, 100 S.Ct. 3016, 65 L.Ed.2d 1116 (1980); Davis v. Parratt, 608 F.2d 717 (8th Cir. 1979) (Civil Rights Attorney's Fees Awards Act, 42 U.S.C. § 1988); Hannon v. Security National Bank, 537 F.2d 327 (9th Cir. 1976) (Truth in Lending Act). After independent consideration, we join with the plurality of circuits holding that under the present statute a non-lawyer pro se litigant may not recover attorney's fees in a FOIA case.

II.

In the absence of any express waiver of sovereign immunity, costs and expenses of litigation are not recoverable from the United States. See, e. g., Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 265-69, 95 S.Ct. 1612, 1626-27, 44 L.Ed.2d 141 (1975); United States v. Chemical Foundation, Inc., 272 U.S. 1, 20-21, 47 S.Ct. 1, 8, 71 L.Ed. 131 (1926). Any analysis of the right to receive attorney's fees in a FOIA action must therefore begin with the statutory permission for the recovery of those fees. The FOIA provides:

The Court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.

5 U.S.C. § 552(a)(4)(E).

As an initial matter this statutory provision for "attorney fees" would appear by its own terms to be predicated on the presence of an attorney. Indeed, the restrictive nature of the statutory language is reflected in the award of the district court, which provided Cunningham with $750 "in lieu of attorney's fees" (emphasis added). This phrasing demonstrates an apparent recognition that the award does not come within the explicit language of the statute. Yet if the statute does not provide explicitly for such an award, some clearly implicit authorization must be found for what is in effect a waiver of sovereign immunity. And this authorization must derive directly from the language employed by Congress in providing for the award of fees, or the plain meaning of the statute will bar recovery regardless of other concerns. See, e. g., United States v. Rutherford, 442 U.S. 544, 551-55, 99 S.Ct. 2470, 2475-77, 61 L.Ed.2d 68 (1979).

Although the term "attorney fees" by itself does not admit of substantial ambiguity, the complete phrase "reasonable attorney fees and other litigation costs reasonably incurred" may be more amenable to differing interpretations. The District of Columbia Circuit has read that phrase to mean that only litigation costs need be "reasonably incurred," while attorney fees may be awarded even when a pro se litigant has not incurred any such fees. Cuneo v. Rumsfeld, 553 F.2d 1360, 1366 (D.C.Cir.1977); Holly v. Acree, 72 F.R.D. 115, 116 (D.D.C.1976), aff'd by order sub nom. Holly v. Chasen, 569 F.2d 160 (D.C.Cir.1977). On the other hand, the Fifth Circuit has read the phrase "reasonably incurred" as modifying both litigation costs and "reasonable attorney fees." Barrett v. Bureau of Customs, 651 F.2d 1087, 1089 (1981). We believe that the interpretation offered by the Fifth Circuit is more compatible with the language of the statute. The apparent redundancy that the District of Columbia Circuit seeks to explain-the repetition of the word "reasonable"-is resolved by finding the phrases "reasonable" and "reasonably incurred" to modify different elements of the attorney fee award. It is certainly plausible to conclude, as did the Fifth Circuit, that Congress, in its use of this language, intended to ensure that attorney fee awards would not be excessive and so required that the award compensate only for a reasonable amount of an attorney's services ("reasonably incurred"), billed at a reasonable rate ("reasonable attorney fees"). Viewed in this light the phrase "reasonable attorney fees ... reasonably incurred" is neither repetitious nor ambiguous; rather, it explicitly limits the recovery of reasonable attorney fees to those litigants that have reasonably incurred them. ¹ In contrast, the reading proposed by the District of Columbia Circuit leads to an outcome difficult to harmonize with the statutory language. That Court interprets the statute to mean that litigation costs must be incurred in order to be collected, but that "attorney fees" constitute some cash award, unrelated to any particular attorney or any particular fee, that a litigant may be able to obtain regardless of any financial burden the litigant or his lawyer has shouldered. If attorney fees may be awarded to litigants regardless of whether those fees were actually incurred, the award becomes something of a cash bonus to a successful litigant as well as a financial penalty to the defendant government agency. ²

It might be argued that an award to a pro se plaintiff is in effect compensation to the litigant for acting as his own attorney, and that it in that sense constitutes an "attorney fee" that has been incurred, within the meaning of the statute, even though the plaintiff is not actually billed by some third party. Although such reasoning is not wholly without merit, the sort of "fee" it suggests is not so close to the ordinary meaning of "attorney fee" that Congress can readily be inferred to have intended, by its use of the phrase "attorney fees," to permit this sort of award.

The situation of a pro se litigant differs from that of a person represented by a lawyer in several material respects. First, it is far from clear that proceeding as a pro se litigant involves the same sorts of financial burdens and obstacles as those inherent in retaining a lawyer. This is not to minimize the difficulty and effort involved in proceeding pro se. A person may devote considerable time and energy to such an enterprise, foregoing other possible endeavors to which that time could be applied. Yet it cannot be said that this burden entails the same financial liabilities as those borne by one who retains an attorney and becomes indebted for substantial sums of money. Although pro se litigants are likely to incur non-monetary costs that might serve as the basis for compensation, the same may be said for litigants who retain counsel. The latter group must still devote time and energy to their ...