Richard B. Kay v. Bremer Ehrler, and the Kentucky Board of Elections

JONES, Circuit Judge,

dissenting.

Because I believe that Falcone v. IRS, 714 F.2d 646 (6th Cir.1983) is distinguishable, I respectfully dissent.

The Falcone court held that an attorney litigant could not recover attorney’s fees for successful release of documents under the Freedom of Information Act (FOIA) for three reasons. First, “[t]he award of attorney’s fees to successful FOIA plaintiffs was intended to relieve plaintiffs with legitimate claims of the burden of legal costs; it was not intended as a reward for successful claimants or as a penalty against the government.” Id. at 647 . “A second reason [in Falcone] for denying fees to pro se FOIA plaintiffs is that the provision for attorney’s fees was intended to encourage potential claimants to seek legal advice.... It was hoped that retention of legal counsel might help prevent unnecessary litigation. An attorney who represents himself in litigation may have the necessary legal expertise but is unlikely to have the ‘detached and objective perspective’ necessary to fulfill the aims of the Act.” Id. The final rationale of Falcone was that providing attorney’s fees to attorney-litigants would create a “cottage industry” for claimants using the Act solely as a way to generate fees rather than to vindicate personal claims. The Falcone court reasoned that Congress did not intend to “subsidize attorneys without clients.” Id. at 648 .

The majority reads Falcone as a rejection of “the proposition that opportunity costs constitute actual pecuniary losses for which litigants should be compensated,” and therefore holds that Falcone precludes the award of attorney’s fees in the instant case. However, a close reading of Falcone indicates that it did not explicitly reject the opportunity costs rationale. Instead, the Falcone court noted that “[ajlthough such a rule may negate the fear of inactive attorneys bringing FOIA claims solely to generate fees, it would produce difficult problems of proof. In any event, the rule is unsatisfactory because it does not address the other reasons which have led us to deny fees to pro se litigants.” Id. That the opportunity costs rule does not address the first two concerns of the Falcone court is not a rejection of the argument.

The rationale of Falcone is inapplicable to section 1988 suits for attorney’s fees. The purpose of section 1988 is to encourage lawyers “to search for violations of constitutional and statutory rights and then seek to vindicate those rights.... ” Duncan v. Poythress, 777 F.2d 1508, 1515 (11th Cir.1985), ce rt. denied, 475 U.S. 1129 , 106 S.Ct. 1659 , 90 L.Ed.2d 201 (1986). In contrast to the FOIA, section 1988 not only relieves the burden of litigation, but also rewards *973 successful litigants for vindicating a constitutional right. Moreover, because the goal of section 1988 is to promote lawsuits that protect civil rights, the concern with “objective” lawsuits and a cottage industry of fee-generating lawyers is not as great as with the FOIA, where the litigation secures the release of individual documents from the government. I do not challenge Fal-cone’s reading of the statutory purposes underlying the FOIA. However, I believe that these purposes are not present to the same extent, if at all, under section 1988. As such, I would allow Richard Kay, plaintiff-appellant, to recover attorney’s fees equivalent to the opportunity cost of handling other litigation.