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06/30/89 David E. Jones v. Manuel Lujan

June 30, 1989





Appeal from the United States District Court for the District of Columbia, Civil Action No. 87-02466.


Mikva, Edwards and Silberman, Circuit Judges. Opinion for the Court filed by Circuit Judge Edwards. Concurring opinion filed by Circuit Judge Silberman.


This case presents the limited issue of whether attorney fees are available to a prevailing party who has proceeded pro se against the Government under the Equal Access to Justice Act when the pro se party is, by profession, an attorney himself. The Government appeals a District Court award of $4,123.75 in attorney fees under EAJA to plaintiff-appellee David Jones, a former Department of Interior lawyer who proceeded on his own behalf when suing the Department to compel it to adhere to its internal grievance procedure regulations. The relevant section of EAJA allows a prevailing party in a suit against the United States to recover attorney fees unless the Government's position was "substantially justified or . . . circumstances make an award unjust." 28 U.S.C. § 2412(d) (1) (Supp. V 1987).

The Government does not dispute that attorney fees would be due in this case if Jones had used a lawyer other than himself. We can find no relevance to the fact that Jones was his own attorney. Therefore, because Jones was represented by an attorney and was the prevailing party, he is entitled to fees under EAJA. Accordingly, we affirm the judgment of the District Court. I. BACKGROUND

On September 8, 1987, appellee David Jones filed a pro se action against Donald Hodel, *fn1 in his official capacity as Secretary of the Interior, seeking to compel agency compliance with employee grievance procedures set forth in the Department Manual. Jones sought to pursue an internal grievance after he was dismissed from the Department of Interior for refusing a geographic reassignment. Prior to his removal, Jones was a GS-14 Attorney-Advisor in the Office of the Solicitor, Division of Surface Mining, where he had an "exemplary record." Jones v. Hodel, 685 F. Supp. 4, slip op. at 1 (D.D.C. 1988) ("Memorandum Order"), reprinted at Joint Appendix 11.

When Jones was precluded from pursuing his grievance, he sought a preliminary injunction, seeking mandamus compelling the Secretary to comply with the Department's grievance procedures. *fn2 On October 29, 1987, the District Court held that mandamus was appropriate because, inter alia, "plaintiff's right to the requested relief [was] clear." See Memorandum Order, J.A. 13. The court also issued an injunction ordering the Secretary to appoint the proper level of deciding official to review Jones' claim de novo within ten days of entry of the Order. See Jones v. Hodel, 685 F. Supp. 4, 5 (D.D.C. 1988). On November 9, 1987, the Secretary appointed a new deciding official to review Jones' claim in compliance with the District Court Order, and filed a motion to dismiss the pending court action as moot. The motion was granted and is not appealed here.

On February 8, 1988, Jones filed an action in District Court seeking attorney fees and costs under EAJA, which provides:

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 (other than cases sounding in tort), including proceedings for judicial review of agency 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)(1)(Supp. V 1987) (emphasis added). "Fees and expenses" are defined to include

the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party's case, and reasonable attorney fees (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) (Supp. V 1987). The Government opposed the claim for fees on the ground that Jones was a pro se litigant. Maintaining that EAJA does not provide for an award of attorney fees to pro se litigants, the Government argued that the District Court therefore had no authority to award such fees to Jones. *fn3

The District Court rejected the Government's argument and awarded attorney fees to Jones under the statute. The trial court noted that, under the law of the circuit, there was no presumption against an award of fees for pro se litigants. In particular, the District Court noted that this court has allowed pro se litigants to recover attorney fees under the Freedom of Information Act pursuant to that statute's fee-shifting provisions. See Cox v. United States Dep't of Justice, 195 U.S. App. D.C. 189, 601 F.2d 1, 5-6 (D.C.Cir. 1979); Cuneo v. Rumsfeld, 180 U.S. App. D.C. 184, 553 F.2d 1360, 1366 (D.C.Cir. 1977). Moreover, the District Court noted, although some circuits have held that EAJA did not allow pro se litigants to recover attorney fees, see Merrell v. Block, 809 F.2d 639 (9th Cir. ...

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