David E. Jones v. Manuel Lujan, Jr., in His Official Capacity as Secretary of Interior

SILBERMAN, Circuit Judge,

concurring:

I concur in the judgment in this case because I am bound by Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C.Cir.1977), which held that a lawyer acting pro se is entitled to reasonable attorney fees under the Freedom of Information Act, and Cox v. United States Dep’t of Justice, 601 F.2d 1, 5-6 (D.C.Cir.1979), which extended that holding nonlawyers acting as pro se litigants. I find no viable distinction for purpose of this case between the term “reasonable attorney fees” in FOIA, 5 U.S.C. section 552 (a)(4)(E) (1982), and “reasonable attorney fees” in EAJA, 28 U.S.C. section 2412 (d)(2)(A) (1982). I think both of our prior cases, however, were decided incorrectly, and were I free to consider the case before us without the restraint of prior precedent, I would arrive at the opposite conclusion.

I do not believe that the plain language of the EAJA supports the majority’s reading. 1 “Attorney fees” more naturally, it seems to me, describes the fees an attorney charges another for the provision of legal services than it does the opportunity cost a lawyer assumes when he (or she) does his own legal work. In that sense, a lawyer’s “cost” of proceeding pro se is absolutely no different than the cost assumed by anyone else who takes on the burden of litigating his own case. It is not just lawyers whose time is “their stock in trade”; it is everyone.

*1037 The majority defines the word “attorney” (neglecting its connection to the word “fees”) as if it refers merely to an individual “trained in the law.” Maj. op. at 1035. It is not at all clear to me how much training or what certification is necessary before the lawyer passes muster to qualify for attorney fees under EAJA. Is graduation from law school a prerequisite? Need the applicant be a member of the bar? If so, which bar? Must he be admitted to this court? Even if attorney as used in “attorney fees” means only one’s status as a lawyer, it is by no means apparent how the court would define that status.

I think that Congress did not use “attorney” to mean “something other than lawyer,” as the majority suggests the government’s interpretation implies. See Maj. op. at 1035. Instead, Congress meant something more than a lawyer; it meant a lawyer acting as a legal representative or attorney for another. Even if one uses the term attorney by itself, as Judge Roney has explained, it normally means a lawyer acting as an agent for another. Duncan v. Poythress, 777 F.2d 1508, 1517-18 (11th Cir.1985) (Roney, J., dissenting) (“[Wjithout exception [over two dozen dictionaries] define the word ‘attorney’ in terms of one who acts for another. ”). When the term is coupled with “fees”, I think it necessarily refers to a lawyer representing another person, since we do not describe the costs an individual incurs as “fees” he charges himself. Black’s Law Dictionary defines “fee” as a “recompense for an official or professional service or a charge or emolument or compensation for a particular act or service.”

To be sure, the statute fixes the amount of fees recoverable from the government as “based upon prevailing market rates,” 28 U.S.C. section 2412 (d)(2)(A) (1982), and other courts have held that provision authorizes the payment of attorney fees to one who does not normally charge fees for his services. See, e.g., Cornella v. Schweiker, 728 F.2d 978, 985-87 (8th Cir.1984) (pro bono representation). But, nevertheless, such an individual must be in a professional relationship — an attorney representing a client — that would authorize the charging of fees. The legislative history shows that Congress clearly contemplated such a relationship. See H.R.Rep. No. 1418, 96th Cong., 2d Sess. 15 (1980) (“[T]he computation of attorney fees should be based on prevailing market rates without reference to the fee arrangements between the attorney and client. ”).

Certainly the purpose of the EAJA is consistent with my interpretation of the language: that it does not authorize attorney fees for pro se litigants whether lawyers or not. Congress sought through fee-shifting to aid citizens for whom “the inability to recover attorney fees preclude[d] resort to the adjudicatory process.” Id. at 9 (emphasis added). Thus, the specific barrier Congress sought to lower for erstwhile litigants was the need to pay an attorney. The EAJA cannot reasonably be read, in my view, to provide a general economic incentive to litigate against the government with or without counsel.

The government argued, with considerable force, that if the term “attorney fees” were ambiguous, the recent Supreme Court cases on sovereign immunity in the attorney fees context, Library of Congress v. Shaw, 478 U.S. 310 , 106 S.Ct. 2957 , 92 L.Ed.2d 250 (1986) and Ruckelshaus v. Sierra Club, 463 U.S. 680 , 103 S.Ct. 3274 , 77 L.Ed.2d 938 (1983), oblige us to read the waiver “narrowly,” Shaw, 478 U.S. at 319-20 , 106 S.Ct. at 2964-65 , and therefore undermine the authority of Cuneo . I think the government’s reading of the Supreme Court cases is correct, and but for Cuneo and Cox , that would be an added ground to preclude the awarding of fees in this case. But the Cuneo court did not think, as I do, that the statutory language was ambiguous, see 553 F.2d at 1366 , and furthermore the sovereign immunity doctrine applied in Shaw and Ruckelshaus was considered by this court when it decided Cuneo . See id. at 1366-67 (recognizing that “statutes waiving the sovereign immunity of the federal government are to be strictly construed”). I therefore do not feel free to abandon Cuneo .

The courts of appeals are hopelessly divided on the interpretation of “attorney *1038 fees.” Compare Naekel v. Dept. of Transportation, 845 F.2d 976, 981 (Fed.Cir.1988) (pro se non-lawyer ineligible for fees under EAJA); Merrell v. Block, 809 F.2d 639, 642 (9th Cir.1987) (same); Crooker v. EPA, 763 F.2d 16 (1st Cir.1985) (same) and Aronson v. Dept. of Housing and Urban Development, 866 F.2d 1, 4-5 (1st Cir.1989) (both lawyer and non-lawyer pro se litigants are ineligible for fees under FOIA); Falcone v. IRS, 714 F.2d 646, 647 (6th Cir.1983) (same), cert. denied, 466 U.S. 908 , 104 S.Ct. 1689 , 80 L.Ed.2d 162 (1984), with Duncan v. Poythress, 777 F.2d 1508, 1511-15 (11th Cir.1985) (en banc) (pro se lawyer eligible for fees under 42 U.S.C. section 1988 ), cert. denied, 475 U.S. 1129 , 106 S.Ct. 1659 , 90 L.Ed.2d 201 (1986), and Cazalas v. U.S. Dept. of Justice, 709 F.2d 1051, 1057 (5th Cir.1983) (pro se lawyer eligible for fees under FOIA). I agree with the First Circuit in Aronson that no pro se litigants are entitled to fees, but it would seem, under the circumstances, that Supreme Court review is most appropriate.

. The standard of review on this issue is either de novo or an abuse of discretion standard that is de facto de novo. The Supreme Court recently made clear that some "purely legal issues” implicated by EAJA, such as whether the government’s litigating position was "substantially justified,” should be subject only to "deferential, abuse of discretion review.” Pierce v. Underwood, — U.S. —, 108 S.Ct. 2541, 2547 , 101 L.Ed.2d 490 (1988). But not every matter arising under EAJA is necessarily a matter of discretion for the trial court. See, e.g., Sullivan v. Hudson, — U.S. —, —-—, 109 S.Ct. 2248, 2255-59 , 104 L.Ed.2d 941 (1989) (construing the term "any civil action” in EAJA, 28 U.S.C. section 2412 (d)(1)(A) (1982 & Supp. V 1987)). The questions of statutory construction presented by Sullivan and this case do not share the characteristics of the problem in Pierce . The interpretation of “attorney fees” or “any civil action” does not depend on "full knowledge of the factual setting," Pierce, 108 S.Ct. at 2547 , present a different legal question than that faced by the district court, id. at 2548 , or resist the formulation of a general rule of decision. Id. Perhaps for that reason, the Court in Sullivan treated the matter de novo and did not even mention the "abuse of discretion" standard. I therefore think it appropriate to review the district court’s interpretation of the statute as we review most rulings on questions of law — de novo.