Amicus Curiae Brief — Kay v. Ehrler

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| FILED |

ee re

JOSEPH F. SPANIOL, JR.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

RICHARD B. KAY,

Petitioner,

Vv.

BREMER EHRLER AND THE

KENTUCKY BOARD OF ELECTIONS,

Respondents.

On Writ Of Certiorari To

The United States Court Of Appeals

For The Sixth Circuit

BRIEF OF AMICUS CURIAE

PUBLIC EN

URGING REVERSAL

Brian Wolfman

(Counsel of Record)

Alan B. Morrison

Public Citizen Litigation Group

Suite 700

2000 P Street, N.W.

Washington, DC 20036

(202) 785-3704

Attorneys for Amicus Curiae

Public Citizen

November 15, 1990

CASILLAS PRESS, INC., 1717 K STREET, N.W., WASHINGTON, D.C. 20036

TABLE OF CONTENTS

TABLE OF AUTHORITIES

BRIEF OF AMICUS CURIAE PUBLIC

CITIZEN URGING REVERSAL

INTERESTS OF AMICUS

STATEMENT OF THE CASE

ARGUMENT

THE DECISION BELOW SHOULD BE REVERSED

CONCLUSION

"_- i ie | fl A i ee ee atin |

i

TABLE OF AUTHORITIES

Page

Alabama Power Co. v. Gorsuch,

See ee Be is MD kbib adios oe vs bencvatacegnal 8

Blum v. Stenson, 465 U.S. 886 (1984) ................. 5, 6

Cazalas v. United States Department of Justice,

709 F.2d 1051 (Sth Cir. 1983) ................ ivueeewe 12

Conservation Law Foundation of New England v. Watt,

G54 F. Supp. 706 (D. Mises. 1GBE). 2. ccccvvscccvvcccves 8

Cuneo v. Rumsfeld, -

SES Fe ee Cts Gas BPEUD var eeenndesvhscccscces 12

Delaware Valley Citizens’ Council for Clean Air v.

Pennsylvania, 762 F.2d 272 (3rd Cir. 1985),

affirmed in part and reversed in part on other

grounds, 476 U.S. S46 (1GBB) .... ccc ccc ccc cc ccccecs y

Duncan v. Poythress, 777 F.2d 1508 (11th Cir. 1985)

(en banc), cert. denied sub nom., Poythress v. Kessler,

GOS Wak. Caer GE Godin b w0bde s bob caniceea tees 5, 13

Environmentai Defense Fund, Inc. v. EPA,

Gab Fee ae is Ss SE aie 6S. k cms areca ses caenees 8

Falcone v. I.R.S., 714 F.2d 646 (6th Cir. 1983),

cert. denied, 466 U.S. 908 (1984) ............ 3, 4, 5, 6, 12

Florida Power & Light Co. v. Costle,

688 F.2d O41 (th Cir. Unit B 1962) ..... 2. ccc ccc neces 8

Jones v. Lujan, 883 F.2d 1031 (D.C. Cir. 1989) .......... ll

Kay v. Mills, 490 F. Supp. 844 (E.D. Ky. 1980) ........... 3

Page

National Trust For Historic Preservation v. Corps

of Engineers, 570 F. Supp. 465

TE cME Deedes ededccedeccveccccccccces 8

Natural Resources Defense Council v. EPA,

GOS FBG UBS Gat Ge. 197E) 22.2. ccc ccc cccccccceees 8

Pierce v. Underwood, 487 U.S. 552 (1988) ............... 11

Rybicki v. State Board of Elections,

584 F. Supp. 849 (N.D. Ill. 1984) .......... 2.6.0 c cece 5

Shakman v. Democratic Organization of Cook County,

634 F. Supp. 895 (N.D. Ill. 1986) ............ 06. eee eee. 5

Sierra Club v. EPA, 769 F.2d 796 (D.C. Cir. 1985) ........ 8

Sierra Club v. Morton, 405 U.S. 727 (1972)............+.-. 7

STATUTES

Freedom of Information Act, 5 U.S.C § 552 ............... 4

eo ccc cceccccercuccesedseoes 11

Ree ctv a cdccbess cocesececeoes 7

Equal Access to Justice Act, 28 U.S.C. § 2412(d) .......... )

OEEIOID oc cccccscccccsccccccccccccecs 11

ED occ cccccccccccccccccscccccess 11

EE 7

eee ickecéaecsscnsescecescooocs 3

Cnn. cteenveccecwons passim

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Page

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LEGISLATIVE MATERIALS

H.R. Rep. No. 1558, 94th Cong.. 2d Sess. 8 (1976)........ 6

H.R. Rep. No. 590, 95th Cong., 2d Sess. (1978),

reprinted in 1978 U.S. Code Cong. &

ee ee Baio cou céwenesscee de 7

H.R. Rep. No. 1418, 96th Cong., 2d Sess. (1980),

reprinted in 1980 U.S. Code Cong. & Admin.

DEE teh aceneb ahah anenie LaeendecDecccccecs 10

H.R. Rep. No. 120, 99th Cong., 1st Sess. (1985),

reprinted in 1985 U.S. Code Cong. & Admin.

Pe cc cuc bdubagauh cidedl oecesocd 10, 11

S. Rep. No. 414, 92nd Cong., 2d Sess. (1972), reprinted

in 1972 U.S. Code Cong. & Admin. News 3747 ......... 7

S. Rep. 1011, 94th Cong., 2d Sess. (1976),

reprinted in 1976 U.S. Code Cong. &

nt cei dadakebdbdgweeboceccececs 13

S. Rep. No. 253, 96th Cong., Ist Sess. (1979) ........... 10

SS ae hr

v

Page

131 Cong. Rec. H4760-64 (daily ed. June 14, 1985) ....... 10

131 Cong. Rec. $9991-98 (daily ed. July 24, 1985) ........ 10

MISCELLANEOUS

21 Weekly Comp. of Pres. Doc. 966-67

Ne ecwaes 10

IN THE

Supreme Court of the *-:ited States

OCTOBER TERM, 1990

No. 90-79

RICHARD B. KAY,

Petitioner,

Vv.

BREMER EHRLER AND THE

KENTUCKY BOARD OF ELECTIONS,

Respondents.

BRIEF OF AMICUS CURIAE

PUBLIC CITIZEN

URGING REVERSAL

INTERESTS OF AMICUS

This brief is filed, with the consent of the parties, on behalf

of Public Citizen, a nationwide consumer advocacy organiza-

tion with over 95,000 members. With the support of its

membership, Public Citizen has promoted the enactment, and

the vigorous use and enforcement, of federal laws providing

for consumer protection, health and safety in the workplace,

environmental protection, civil rights, and open government.

Many of these laws entitle the prevailing litigant to an award

of attorney’s fees against the government or other party found

to have violated their substantive provisions. Such fee-shifting

encourages the vindication of important federal rights, which

in some cases, such as this one, are successfully prosecuted

pro se by a member of the bar. Public Citizen is concerned

about the ruling below and its potential for discouraging liti-

2

gation of important public issues because it enables a losing

party to gain a windfall and avoid paying attorney’s fees under

42 U.S.C. § 1988 solely because the action was brought by

an attorney who represented himself.

Moreover, because Public Citizen, through its staff of in-

house attorneys, frequently represents itself in litigation, its

interest in receiving fee awards may also be jeopardized by

the ruling below. Thus, if the issue in this case is stated more

broadly — whether a prevailing party appearing pro se may

be awarded attorney’s fees under federal fee-shifting statutes

— Public Citizen’s ability to obtain attorney’s fees when it uses

in-house attorneys to represent itself is called into question.

Accordingly, Public Citizen is filing this brief to highlight a

perspective that might not otherwise be presented by the

parties.

STATEMENT OF THE CASE

The facts giving rise to this dispute are simple and un-

contested. In August 1987, petitioner Richard Kay announc-

ed that he would run for President of the United States. He

wrote to the Kentucky Secretary of State, requesting that his

name be presented to respondent Kentucky Board of Elec-

tions (‘‘the Board’’) for placement on the primary ballot. Kay

also paid a $1,000 ‘‘deposit’’ to the Board pursuant to Ky.

Rev. Stat. §118.611, which would be refunded only if Kay poll-

ed more than 3% of the total vote cast in his party’s primary

election, but would otherwise escheat to the Commonwealth.

Petitioner’s Appendix to Petition for Writ of Certiorari (‘‘Pet.

App.’’) at 23a-24a.

Kay was well aware that his proposed candidacy might be

rejected. He had previously sought the Presidency in 1980

and had asked that his name be placed on the Kentucky primary

ballot, but was refused by the Board pursuant to Ky. Rev.

3

Stat. §118.580 (repealed in 1982), which limited ballot access

to ‘‘all . . . generally advocated and nationally recognized”’

candidates. Kay brought suit pro se at that time, and the court

declared Ky. Rev. Stat. 118.580 unconstitutional on

vagueness grounds and ordered that Kay’s name be placed

on the ballot. Kay v. Mills, 490 F.Supp. 844, 850 (E.D. Ky.

1980). He did not seek attorney’s fees. Shortly after the deci-

sion in Kay v. Mills, the offending statute was repealed, but

in 1986 the Kentucky Legislature enacted an identically worded

statute, Ky. Rev. Stat. §118.581.

On January 11, 1988, Kay was notified that, because he was

not a ‘‘nationally recognized’’ candidate, his name would not

appear on the ballot. Pet. App. 20a. The next day, Kay once

again filed suit pro se under 42 U.S.C. § 1983, asking that

respondents be preliminarily enjoined to place his name on the

primary ballot. He added a claim that his candidate’s deposit

under Ky. Rev. Stat. §118.611 be refunded, and he asked that

both Ky. Rev. Stat. §118.581 and Ky. Rev. Stat §118.611

be declared unconstitutional. On January 13, 1988, having

determined that Kay was the same person who had successful-

ly challenged Kentucky’s primary election law in 1980,

respondents placed Kay’s name on the ballot. Pet. App. 20.

The parties thereafter cross-moved for summary judgment

on the remaining claims. The district court referred the case

to a magistrate, who recommended that Ky. Rev. Stat.

§ 118.581 be declared unconstitutional, relying on the district

court’s prior decision in Kay v. Mills, supra. In addition, the

magistrate recommended that the candidate’s deposit statute

be declared unconstitutional under the due process and equal

protection clauses because it ‘‘impose[d] fees only on minority

candidates.’’ Pet. App. 20a-24a. With respect to the attorney’s

fees issue, the magistrate urged that fees be denied on the

basis of the Sixth Circuit’s decision in Falcone v. 1.R.S., 714

F.2d 646 (1983), cert. denied, 466 U.S. 908 (1984), which held

4

that an attorney proceeding pro se is not entitled to fees under

the Freedom of Information Act (‘‘FOIA’’), 5 U.S.C. § 552.

The district court reviewed the magistrate’s recommendations

de novo and concurred in all respects, including the denial of

attorney’s fees. Pet. App. 12a-17a.

The case was appealed on the issue of attorney’s fees alone,

and the Sixth Circuit affirmed, in a split decision. The court

of appeals recognized the division among the circuits on the

issue of whether an attorney proceeding pro se is entitled to

fees under § 1928, and under the FOIA as well, but believed

that it was required by its prior decision in Falcone, supra,

to deny such an award under § 1988. Judge Jones dissented,

indicating that Kay was entitled to fees, notwithstanding

Falcone, based on what he perceived as differences between

the underlying purposes of the FOIA’s fee-shifting provision

and those expressed in § 1988. Pet. App. 9a-11a.

ARGUMENT

THE DECISION BELOW SHOULD BE REVERSED

The narrow question presented by this case — whether a

defendant can avoid kability for attorney's fees under 42 U.S.C.

§ 1988 simply because the prevailing plaintiff was an attorney

who represented himself in the litigation — is an important

one. Indeed, the facts of this case illustrate that attorneys pro-

ceeding pro se can, and do, vindicate important constitutional

and statutory rights. Petitioner Richard Kay established not

only his own right not to be excluded from Kentucky’s

presidential primary on the basis of an unconstitutionally vague

statute, but also assured that future minority candidates will

have lawful access to the ballot and voters will have a broader

choice of candidates to consider. Pet. App. 21a. Moreover,

Kay’s litigation efforts have secured the rights of all potential

candidates not to be subjected to Kentucky’s discriminatory

deposit statute, which amounted to a $1,000 penalty solely

on minority candidates.

Similar rights were vindicated in the leading pro se attorney’s

fees case of Duncan v. Poythress, 777 F.2d 1508 (11th Cir.

1985)(en banc), cert. denied sub nom., Poythress v. Kessler,

475 U.S. 1129 (1986), where an attorney secured the constitu-

tional rights of all Georgia voters by obtaining an order direct-

ing state officials to call a special election for the state Supreme

Court. See also Shakman v. Democratic Organization of Cook

County, 634 F. Supp. 895, 901 (N.D. Ill. 1986) (pro se attorney

awarded fees under § 1988 in case involving conspiracy to de-

prive plantiffs of their constitutional rights to a fair political

and electoral process); Rybicki v. State Board of Elections, 584

F. Supp. 849 (N.D. Ill. 1984)(three-judge district court) (ac-

tion brought by pro se attorney setting aside statewide

legislative redistricting plan).

In light of their specialized training and sensitivity to the rule

of law, it is not surprising that it is often lawyers who ‘‘search

for violations of constitutional and statutory rights and then

seek to vindicate those rights. . . ."’ Duncan, 777 F.2d at

1515. Because such litigation is fully consistent with the

language and purpose of § 1988 and other fee-shifting statutes,

id., it would be anomalous to deny fees to plaintiff-attorneys

who represent themselve:. Indeed, as argued more fully

in petitioner’s brief, it woud produce an even bigger windfall

to losing parties than would the award of reduced hourly

rates based on costs alone, a construction of § 1988 which

this Court unanimously rejected in Blum v. Stenson, 465 U.S.

886 (1984).

The Sixth Circuit relied on its prior decision in Falcone,

supra, interpreting the FOIA, to deny petitioner fees on the

ground that-§ 1988’s ‘‘ ‘plain language,’ ’’ ‘‘ assumes a pay-

6

ing relationship between an attorney and a client.’’ Pet. App.

8a, quoting Falcone, 714 F.2d at 648. The court of appeals

erred in this respect since neither § 1988 nor any other major

ee-shifting statute explicitly requires an attorney-client rela-

tionship, let alone a fee-paying one. See Blum, supra (work

of legal services attorneys, who receive no payment from their

clients, fully compensable under § 1988). More importantly,

from amicus’ perspective, if such a relationship is indeed critical

to an award of fees, which we think extremely implausible,

then the Sixth Circuit’s decision casts doubt on the eligibility

for fees of organizational plaintiffs, such as businesses, public

interest organizations, and local governmental units, which

regularly proceed pro se to vindicate federal constitutional and

statutory rights. If, as we now show, it would be contrary to

Congressional intent and sound public policy to deny fees to

organizations proceeding pro se, there is no reason to deny

them to individual attorneys who represent themselves.

To deny organizational plaintiffs fees when their in-house

counsel represents them would penalize those organizations

for the efficient use of their resources and undermine Congress’

design, not only with respect to the scope of its fee-shifting

provisions, but as to the full achievement of the goals of its sub-

stantive enactments as well. While our concerns apply to all leg-

islation providing for an award of attorney’s fees, Congressional

efforts in thiee areas — environmental protection, the Equal

Access to Justice Act, and the FOIA — underscore our posi-

tion that organizations proceeding pro se and, logically

therefore, all pro se attorneys, are eligible for statutory fee

awards. !

Nearly all of the significant federal environmental legislation

1Because petitioner’s brief fully addresses the legislative history under

§ 1988 endorsing the award of fees to pro se organizations, we do not dis-

cuss it here. See H.R. Rep. No. 1558, 94th Cong. 2d Sess. 8 n.16 (1976).

7

allows the court to award attorney’s fees to the prevailing party

in litigation. See, e.g., 16 U.S.C. § 1540(g)(4)(attorney’s fees

in citizen suits to enforce Endangered Species Act); 33 U.S.C.

§ 1365(d)(Federal Water Pollution Control Act); 42 U.S.C.

§ 7604(d)(Clean Air Act); 43 U.S.C. § 1349(a)(5)(Outer Con-

tinental Shelf Lands Act). The legislative histories of these

enactments illustrate Congress’ understanding that organiza-

tions dedicated to environmental conservation would be at the

forefront in enforcing such legislation. See, e.g., S. Rep. No.

414, 92nd Cong., 2d Sess., reprinted in 1972 U.S. Code Cong.

& Admin. News 3745, 3747 (recognizing that ‘‘groups’’ are

among those persons who will bring suit to enforce Water

Pollution Control Act, and because, in doing so, such litigants

are ‘‘performing a public service,’’ the court should ‘‘award

costs of litigation to such party’’); H.R. Rep. No. 590, 95th

Cong., 2d Sess. 161, reprinted in 1978 U.S. Code Cong. &

Admin. News 1567 (citizen suits under Outer Continental Shelf

Lands Act may be brought by anyone who can show an actual

interest in the litigation, including entities that meet the re-

quirements for organizational standing under Sierra Club v.

Morton, 405 U.S. 727 (1972)).

Because Congress has enacted broad citizen suit provisi-

ons for the enforcement of its environmental laws, and has

indicated that public interest organizations would play an im-

portant enforcement role, it would do extreme violence to Con-

gress’ purpose in enacting both the citizen suit provisions and

their fee-shifting components, to deny such organizations at-

torney’s fees simply because they represent themselves.? It

2It is common knowledge that the major environmental organizations

such as the Sierra Club, the National Resources Defense Council, the

Wilderness Society, and the Environmental Defense Fund, are, in large

part, public interest law firms which represent themselves in litigation.

Indeed, the vast majority of reported decisions under the federal en-

vironmental laws have been litigated, at least in part, by one of these

organizations.

8

is thus not surprising that there is a large body of case law

that routinely, and without discussion of the pro se character

of the representation, awards attorney’s fees to environmental

organizations for the work of their in-house counsel. See, ¢.g.,

Sierra Club v. EPA, 769 F.2d 796, 808-09 (D.C. Cir. 1985);

Environmental Defense Fund, Inc. v. EPA, 672 F.2d 42, 50-51

(D.C. Cir. 1982); Conservation Law Foundation of New

England v. Watt, 654 F. Supp. 706 (D. Mass. 1984); National

Trust For Historic Preservation v. Corps of Engineers, 570 F .

Supp. 465, 472 (S.D. Ohio 1983) (with respect to attorney's

fee rates, ‘‘the law is clear that institutional attorneys are to

be treated no differently than private attorneys’’). Indeed, so

strong is the presumption that public interest groups will be

the prime enforcers of our environmental protection legisla-

tion, that the federal government has argued, albeit unsuc-

cessfully, that only such ‘‘watchdog groups’’ are entitled to

fee awards. Florida Power & Light Co. v. Costle, 683 F.2d

941, 942-43 (5th Cir. Unit B 1982); see also Alabama Power

Co. v. Gorsuch, 672 F.2d 1, 5 (D.C. Cir. 1982)(awarding fees

to in-house counsel for the District of Columbia Government).

In only two cases have courts addressed the issue of eligibili-

ty for attorney’s fees of an organization proceeding pro se,

both in the environmental law coatext. In Natural Resources

Defense Council v. EPA, 484 F.2d 1331 (1st Cir. 1973), the

court considered the government’s amorphous contention that

a public interest organization ‘‘ ‘formed for the purpose of

litigating against the government’ . . . should be denied at-

torneys’ fees.’’ Jd. at 1338 n.7. Relying on Congress’ recogni-

tion that ‘‘public interest organizations would conduct a great

deal of litigation’ under the Clean Air Act, the court dismiss-

ed the argument summarily: ‘‘If Congress desired to use the

award of fees to encourage meritorious litigation and to

discourage frivolous suit, the identity of the party, and the

source of its counsel, would be of little moment.”’ Jd.

9

In Delaware Valley Citizens’ Council for Clean Air v. Penn-

sylvania, 762 F.2d 272 (3rd Cir. 1985), affirmed in part and

reversed in part on other grounds, 478 U.S. 546 (1986), the

Third Circuit responded to the government’s argument — il-

lustrative of the concerns expressed by amicus herein — that

decisions holding pro se, non-lawyers ineligible for attorney's

fees require that organizations represented by in-house counsel

also be denied fees. The court rejected that position, noting

that it ‘‘conflicts significantly with the purposes of the citizen

suit provisions of the Clean Air Act.’’ Jd. at 278. Moreover,

the court indicated that such a rule would be inefficient, ‘‘for-

cing the use of more expensive outside counsel, creat[ing] a

disincentive for any public interest or citizens group con-

templating the institution o: litigation to benefit the environ-

ment.’’ Jd. Of course, the same rationale applies to pro se in-

dividual attorneys, such as Kay, who, in order to be eligible

for fees, would first need to assess the facts before deciding

whether litigation is appropriate, then confer with at least one

other lawyer, enter into a fee arrangement with the lawyer

who ultimately decided to take the case, and then, throughout

the litigation, spend time conferring with that lawyer. Such

additional use of resources would serve no purpose where,

as here, the plaintiff is already a licensed attorney. See Dun-

can, 777 F.2d at 1613-15.

The Equal Access to Justice Act (‘‘EAJA’’) also provides

for an award of fees to certain private parties in litigation against

the federal government where the government’s position in

the litigation or its underlying administrative conduct was not

‘‘substantially justified.’’ 28 U.S.C. § 2412(d).3 Fees may be

awarded to individuals whose net worth does not exceed $2

’The EAJA was originially enacted for a three year period in 1980 (ef-

fective October 1, 1981), and was made permanent in 1985. See P.L.

96-481, 96 Stat. 2325; P.L. 99-80, 99 Stat. 183.

10

million and to organizations with a net worth of not more than

$7 million. The legislative history from both the original enact-

ment in 1980 and the reenactment in 1985 make abundantly

clear that the primary purpose of the legislation was to aid

small businesses in their disputes with the federal government

and to provide them with an incentive to challenge onerous

governmental action. See, e.g., H.R. Rep. No. 1418, 96th

Cong., 2d Sess. 12 (1980), reprinted in 1980 U.S. Code Cong.

& Admin. News 4991; S. Rep. No. 253, 96th Cong., 1st Sess.

5 (1979) (EAJA was a response to ‘‘evidence that small

businesses are the target of agency action precisely because

they do not have the resources to fully litigate the issue’);

H.R. Rep. No. 120, 99th Cong., Ist Sess. 8 (1985), reprinted

in 1985 U.S. Code Cong. & Admin. News 136 (‘The legisla-

tion is a high priority for the small business community’’). In

addition, nearly every Member of Congress who spoke dur-

ing the floor debate on the legislation noted the importance

of the EAJA to small businesses facing oppressive and

capricious governmental conduct. See generally 131 Cong. Rec.

$9991-98 (daily ed. July 24, 1985); 131 Cong. Rec. H4760-64

(daily ed. June 14, 1985). See also 21 Weekly Comp. of Pres.

Doc. 966-67 (August 5, 1985)(statement of the President ap-

proving ‘‘this important program that helps small businesses

. . . fight faulty government actions .*. .’’).

Small businesses often employ in-house counsel who litigate,

or assist in litigating, their disputes. It thus would defy reason,

given Congress’ purpose in enacting the EAJA, that small

businesses should either forego fees for work done by their

in-house counsel, on the ground that the organization is pro-

ceeding pro se, or be forced to pay outside counsel, so that

an EAJA award would be available if the government’s posi-

tion proves to be insubstantial. Indeed, compelling such a Hob-

son’s choice would be particularly damaging to Congressional

intent in the EAJA context, which limits fees to $75 per hour,

11

adjusted for inflation, even where the market rate exceeds

that figure. 28 U.S.C. § 2412(d)(2)(A); see Pierce v. Under-

wood, 487 U.S. 552, 571-72 (1988). The choice is thus bet-

ween using in-house counsel at cost, but without any hope

of an EAJA award, or, in order to preserve the possibility of

such an award, using more expensive outside counsel whose

market rate is not fully compensable under the EAJA.*

However, the rationale employed by the Sixth Circuit to

deny Kay fees would apply fully if the fee applicant were an

attorney who was the sole owner and employee of a small

business and had prevailed in litigation with the federal govern-

ment. But to deny the applicant fees under the EAJA on the

basis of his or her pro se status in that dispute would run

counter to Congress’ desire to place private citizens and small

businesses on a more equal footing with the federal govern-

ment when challenging governmental action. H. Rep. No. 120,

supra, reprinted in 1985 U.S. Code Cong. & Admin. News

132-33; see Jones v. Lujan, 883 F.2d 1031, 1035 (D.C. Cir.

1989) (awarding fees to pro se attorney and noting that the

EAJA “‘in no way rules out an attorney legitimately represen-

ting himself’’). -

Finally, it is useful to consider the FOIA, which allows an

award of attorney’s fees to plaintiffs who have substantially

prevailed in their efforts to obtain the release of records from

the federal government. See 5 U.S.C. § 552(a)(4)(E).

Although, as petitioner has indicated, see Petition at 9, there

is a split among the circuits as to whether fees should be award-

ed to prevailing pro se FOIA plaintiffs who are licensed at-

torneys, the reasons to allow such awards are compelling.

‘The EAJA also allows fees to a unit of local government with a net worth

not exceeding $7 million. 28 U.S.C. § 2412(d)(2)(B). Small towns and coun-

ties also often employ attorneys which allows those entities, at least in

part, to proceed pro se in litigation.

12

The relatively large volume of FOIA cases successfully litigated

by pro se attorneys indicates that those attorneys have been

particularly vigilant in demanding that the government release

records which, by law, may not be kept from public scrutiny.

See, e.g., Falcone, 714 F.2d 646; Cazalas v. United States Dep’t

of Justice, 709 F.2d 1051 (5th Cir. 1983); Cuneo v. Rumsfeld,

553 F.2d 1360 (D.C. Cir. 1977). To force such plaintiffs either

to relinquish their opportunity for a fee altogether, or to inef-

ficiently litigate the case through another attorney, would

substantially frustrate the purposes of open government

Amicus Public Citizen regularly litigates under the FOIA in

order to obtain and publicly disseminate information about

governmental operations, public health and safety, and other

Although amicus uses its own attorneys to represent itself

in such litigation, it would not have to do so if it meant jeopar-

dizing the possibility for attorney’s fees because it could

generally substitute an individual staff member willing to pro-

secute the action in his or her name, thereby making the

representation no longer pro se. However, to engage in such

machinations would also be inefficient and, more fundamen-

tally, serve no purpose under the FOIA or its fee-shifting

This discussion also has applicability to petitioner’s situa-

tion. Kay could have formed a non-profit membership corpora-

tion named ‘‘Kay for President’’ and, presumably, brought

the action in the organization’s name, with Kay as counsel.

So long as he was not a member or employee of that organiza-

tion, neither Kay nor the organization would be proceeding

pro se. Thus, he could have achieved the same results as he

did in this litigation, set important constitutional precedent,

and, consistent with the rationale of the court below, been

13

awarded a fee under § 1988. This scenario points out the peril

of deciding the question presented by going beyond the

language and purposes of § 1988 — which seeks to encourage

the use of lawyers to bring cases affecting important constitu-

tional and statutory rights — to avoid imagined concerns, such

as the creation of a so-called ‘‘cottage industry’’ of

underemployed lawyers, Pet. App. 7a, which find no expres-

sion in Congress’ explicit mandate or its legislative history.

See S. Rep. 1011, 94th Cong., 2d Sess. 2 (1976), reprinted

in 1976 U.S. Code Cong. & Admin. News 5910 (purpose of

§ 1988 is to encourage vindication of civil rights); see also Dun-

can, 777 F.2d at 1515 (rebutting ‘‘cottage industry’’ argu-

ment). Prevailing pro se litigants, whether appearing as in-

dividual attorneys or organizationally through in-house counsel,

have ably served the purposes of § 1988, and they should not

be denied an award of fees solely on the basis of their pro se

status.

CONCLUSION

For the reasons stated above, the decision of the Sixth Cir-

cuit should be reversed.

Respectfully submitted,

Brian Wolfman

(Counsel of Record)

Alan B. Morrison

Public Citizen Litigation Group

Suite 700

2000 P Street, N.W.

Washington, D.C. 20036

(202) 785-3704

Attorneys for Amicus Cunae

Public Citizen

November 15, 1990