United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 6, 1998 Decided May 8, 1998
No. 97-5150
Robert A. Burka,
Appellant
v.
United States Department of Health and
Human Services, et al.,
Appellees
On Appeal from the United States District Court
for the District of Columbia
(No. 92cv02636)
Robert A. Burka, appearing pro se, argued the cause for
appellant, with whom Lawrence M. Sung, was on the briefs.
Michael J. Ryan, Assistant United States Attorney, argued
the cause for appellees, with whom Wilma A. Lewis, United
States Attorney, Mark E. Nagle and R. Craig Lawrence,
Assistant United States Attorneys, were on the briefs.
Before: Wald, Sentelle and Randolph, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Opinion concurring specially filed by Circuit Judge Wald.
Concurring opinion filed by Circuit Judge Randolph.
Wald, Circuit Judge: In 1992, Robert A. Burka, a pro se
attorney-litigant, filed suit against the U.S. Department of
Health and Human Services ("HHS") under the Freedom of
Information Act ("FOIA") seeking release of survey respons-
es from the Community Intervention Trial for Smoking Ces-
sation, a research project supported by the National Cancer
Institute. After nearly five years of litigation that culminated
in a reversal by this court of a district court holding in favor
of HHS and a remand to the district court for further
proceedings, HHS disclosed the information to Burka pursu-
ant to a consent order and judgment. Burka then moved for
attorney's fees. The district court denied the motion on the
grounds that Burka was a pro se attorney-litigant and there-
fore was not eligible for attorney's fees under FOIA. Burka
now appeals from the judgment of the district court. We
affirm.
I. Background
In November 1992, Burka commenced this action under the
Freedom of Information Act, 5 U.S.C. s 552, to compel HHS
to disclose paper questionnaires and electromagnetic data
tapes containing survey responses from the National Cancer
Institute's Community Intervention Trial for Smoking Cessa-
tion. The parties cross-moved for summary judgment. On
December 13, 1993, the district court held that the informa-
tion sought by Burka was exempt from disclosure under
FOIA Exemption 5 and therefore granted HHS's motion for
summary judgment.
Burka appealed. He then sought to supplement the rec-
ord. The case was remanded to the district court to consider
the request. See Burka v. United States Dep't of Health &
Human Services, No. 94-5003, 1994 WL 315403 (D.C. Cir.
June 15, 1994) (per curiam). The district court granted the
motion but reaffirmed its earlier decision that the material
could be withheld by HHS under FOIA Exemption 5. Burka
again appealed. On July 2, 1996, this court reversed the
district court's grant of summary judgment for HHS on the
grounds that the material sought by Burka did not fall under
the protection of Exemption 5, and the case was remanded
for further proceedings. See Burka v. United States Dep't of
Health & Human Services, 87 F.3d 508 (D.C. Cir. 1996).
After this court denied a motion for rehearing in banc filed on
January 6, 1997, HHS disclosed to Burka the information he
sought pursuant to a consent order and judgment.
Burka then moved for an award of attorney's fees under
FOIA, 5 U.S.C. s 552(a)(4)(E). On March 21, 1997, the
district court issued an order denying Burka's motion. See
Burka v. United States Dep't of Health & Human Services,
No. 92-2636 (D.D.C. Mar. 20, 1997). Burka appealed.
II. Analysis
A. Pro Se Attorneys Are Not Entitled to Attorney's Fees
Under the Fee-Shifting Provisions of FOIA
Burka is seeking an award of attorney's fees for his work in
this case. He argues that his pro se status should not be a
bar to such an award under FOIA because controlling prece-
dent in this circuit provides that pro se attorney-litigants who
substantially prevail in their actions may recover attorney's
fees. HHS responds that Burka is not eligible for an award
because the reasoning of the Supreme Court in Kay v.
Ehrler, 499 U.S. 432 (1991), precluded awards of fees to
persons who appear pro se in FOIA cases, whether or not
they are attorneys.
The Freedom of Information Act provides that "[t]he 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." See 5 U.S.C. s 552(a)(4)(E)(1994). To be entitled
to such an award, a litigant must first establish eligibility by
showing that the lawsuit was reasonably necessary and the
litigation substantially caused the requested records to be
released. See Chesapeake Bay Foundation, Inc. v. United
States Dep't of Agriculture, 11 F.3d 211, 215-16 (D.C. Cir.
1993), cert. denied, 513 U.S. 927 (1994). Second, a litigant
must show that it is entitled to fees under four criteria that
the court weighs in determining whether attorney's fees are
appropriate: "(1) the public benefit derived from the case; (2)
the commercial benefit to the plaintiff; (3) the nature of the
plaintiff's interest in the records; and (4) whether the Gov-
ernment had a reasonable basis for withholding requested
information." 11 F.3d at 216 (citations omitted).
For many years, it was settled law in this circuit that
attorneys who prevailed in FOIA actions brought on their
own behalf were eligible to obtain attorney's fees. Indeed, in
Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C. Cir. 1977), this court
specifically declared that "[i]n light of the legislative history
of section 552(a)(4)(E), a complainant, who is otherwise eligi-
ble under that section for an award of attorney fees, should
not be denied those fees simply because he happens to be an
attorney." Id. at 1366. The court thus held that an attorney
representing herself pro se in a FOIA case could obtain an
award of attorney's fees as long as she met the requirements
of eligibility and entitlement.
In 1991, however, the Supreme Court ruled that an attor-
ney who represented himself in a successful civil rights case
could not recover attorney's fees under 42 U.S.C. s 1988.
See Kay v. Ehrler, 499 U.S. 432 (1991). The Court noted that
the petitioner in that case had handled his professional re-
sponsibilities competently. Nonetheless, the Court found
that the word "attorney" in the fee provision "assumes an
agency relationship, and it seems likely that Congress con-
templated an attorney-client relationship as the predicate for
an award under s 1988." Id. at 435-36 (footnotes omitted).
The Court explained that the specific purpose of the fee
provision was to "enable potential plaintiffs to obtain the
assistance of competent counsel in vindicating their rights."
Id. (footnote omitted). Allowing an attorney who represents
himself to obtain attorney's fees, the Court explained, does
not further this goal. Indeed, an attorney who appears pro
se "is deprived of the judgment of an independent third party
in framing the theory of the case, evaluating alternative
methods of presenting the evidence, cross-examining hostile
witnesses, formulating legal arguments, and in making sure
that reason, rather than emotion, dictates the proper tactical
response to unforeseen developments in the courtroom." Id.
at 437. Therefore, the Court concluded, "[t]he statutory
policy of furthering the successful prosecution of meritorious
claims is better served by a rule that creates an incentive to
retain counsel in every such case." Id. at 438.
In the wake of the Court's decision in Kay, lower courts
have held that several different fee-shifting statutes, including
FOIA, preclude awards of fees to all persons who appear pro
se. Most notably, in 1993, this court held that based on Kay,
a pro se non-attorney plaintiff who prevailed in a FOIA action
could not obtain attorney's fees under section 552(a)(4)(E).
See Benavides v. Bureau of Prisons, 993 F.2d 257 (D.C. Cir.),
cert. denied, 510 U.S. 996 (1993). In Benavides v. Bureau of
Prisons, we noted that "[t]he law in this circuit, until today,
has been that pro se non-attorney litigants are eligible for
reasonable attorney fees under FOIA in cases in which they
have substantially prevailed in claims against the Govern-
ment." Id. at 258-59 (citation omitted). Nonetheless, we
explained, "[i]n light of the Supreme Court's decision in Kay
v. Ehrler ... we are now constrained to change our position."
Id. at 259. While recognizing that Kay arose in the context
of a claim for fees under 42 U.S.C. s 1988 rather than under
FOIA, we held that Kay was binding on the issue of attor-
ney's fees because the Supreme Court had implicitly rejected
a distinction between fee claims arising under section 1988
and FOIA. Id. at 259; see 499 U.S. at 435 n.4.
Although in Benavides we explicitly reserved the issue of
whether pro se plaintiffs who are attorneys must suffer a
similar fate, see 993 F.2d at 260, Kay itself militates against
any distinction between fee claims under section 1988 and
under FOIA and overwhelmingly argues in favor of a conclu-
sion that fees are not available to pro se attorneys for claims
filed under FOIA. As we noted in Benavides, Kay implicitly
rejected a distinction between fee claims arising under section
1988 and FOIA by referring with approval to Falcone v. IRS,
714 F.2d 646 (6th Cir. 1983), cert. denied, 466 U.S. 908 (1984).
In Falcone, the Sixth Circuit refused to award attorney's fees
to a pro se attorney in a successful action under FOIA. The
Falcone court had concluded that attorney's fees were not
appropriate because the award was intended " 'to relieve
plaintiffs with legitimate claims of the burden of legal costs'
and 'to encourage potential claimants to seek legal advice
before commencing litigation.' " Kay, 499 U.S. at 435 n.4
(quoting Falcone, 714 F.2d at 647). As the Kay Court noted,
the Sixth Circuit in Falcone relied on the fact that although a
pro se attorney possesses legal expertise, he is unlikely to
have the " 'detached and objective perspective' necessary to
fulfill the aims of the Act." Id. (quoting Falcone, 714 F.2d at
647 (citations omitted)) (internal quotation marks omitted).
It is obvious from the lengthy discussion of Falcone in Kay
that the Supreme Court intended its ruling to apply beyond
section 1988 cases to other similar fee-shifting statutes, par-
ticularly the one in FOIA. It is, in short, impossible to
conclude otherwise than that pro se litigants who are attor-
neys are not entitled to attorney's fees under FOIA.
Virtually all other courts that have considered this issue
since Kay have reached a similar conclusion. In Ray v.
United States Department of Justice, the Eleventh Circuit
concluded that because the policies behind section 1988 and
FOIA are the same, "the principles announced in Kay apply
with equal force in this case to preclude the award of attor-
ney's fees Ray seeks for his own work." 87 F.3d 1250, 1252
(11th Cir. 1996).
Similarly, Manos v. United States Department of the Air
Force, 829 F. Supp. 1191 (N.D. Cal. 1993), held that an
attorney who is a pro se plaintiff and who has substantially
prevailed on a FOIA claim cannot be awarded attorney's fees
under FOIA. The court noted that "[b]ecause substantially
similar policies underlie the attorneys' fees provisions of
FOIA and section 1988, Kay strongly supports a denial of
fees under FOIA to pro se attorney plaintiffs." Id. at 1193.
The court further reasoned that "it does not advance the
goals of FOIA's fee provision to allow a litigant to recover for
a non-performed service or to be compensated where no fee
has been paid." Id. (citations omitted). An award of attor-
ney's fees was intended to relieve plaintiffs of the burden of
legal costs, not reward successful claimants or penalize the
government. The court also noted that granting a pro se
attorney fees "when a lay pro se FOIA litigant who also
substantially prevailed in her action would be denied fees
does not in any discernable way advance the policy behind the
FOIA attorneys' fees provision." Id. at 1194. Thus, the
court concluded, "fairness and sound policy resist a finding
that an attorney representing herself is more entitled to a fee
under FOIA than a lay person representing herself." Id.
The District Court for the Northern District of Illinois
arrived at the same conclusion in Whalen v. Internal Revenue
Service, 1993 WL 532506 (N.D. Ill. Dec. 20, 1993). There, the
court held that there was "no satisfactory distinction between
pro se FOIA litigants who are lawyers and those who are not
for the purpose of awarding fees." Id. at *11. Thus, it
concluded that "[a]pplying the rationale of the Court in Kay
... [the attorney-litigant] is not entitled to recover fees for
his own efforts in litigating his FOIA complaint." Id.
There is only one post-Kay case in which a court has held
that pro se litigants who are attorneys are entitled to attor-
ney's fees under FOIA.1 In State of Texas v. Interstate
Commerce Commission, 935 F.2d 728 (5th Cir. 1991), which
was decided three months after Kay, the Fifth Circuit held
that "if a FOIA plaintiff has actually and reasonably incurred
legal fees--that is, a lawyer has handled his case, even if the
lawyer is the plaintiff himself--and if the plaintiff substantial-
ly prevailed, he may recover reasonable attorneys fees from
the federal government, provided that the court finds that the
four discretionary criteria are satisfied." Id. at 731-32 (foot-
__________
1 The D.C. district court awarded attorney's fees in a FOIA suit
to a law firm litigating in its own name in Wiley, Rein & Fielding v.
United States Department of Commerce, 793 F. Supp. 360 (D.D.C.
1992). However, it appears that the issues raised here were not
raised by the parties in Wiley, Rein & Fielding, for the court
simply awarded fees without discussion.
note omitted). In arriving at this conclusion, however, the
Fifth Circuit did not discuss the impact of the Supreme
Court's decision in Kay; indeed, it did not mention the case.
Given that in Benavides, 933 F.2d at 259-60, we acknowl-
edged that Kay is controlling on issues relating to the fee-
shifting provisions of FOIA, the Fifth Circuit decision is
unpersuasive. Thus, we conclude that the district court was
correct to decide that pro se attorney-litigants are not entitled
to attorney's fees under the fee-shifting provisions of FOIA.
B. Burka's Representation of an Undisclosed Client Does
Not Render Him Eligible for Attorney's Fees
Burka claims that the reasons for denying attorney's fees
to a pro se attorney are not applicable to him because "[h]is
formal status as a pro se litigant ... was merely technical."
Brief of Appellant at 21. At all times during the litigation,
Burka explains, he was representing an undisclosed client, a
fact of which the district judge and the government were
aware. He further claims that he has been compensated by
the undisclosed client for his services pursuant to a retention
agreement and that any award of attorney's fees or costs in
this case will be turned over to his undisclosed client. See id.
at 8. He therefore argues that he was not the real party-in-
interest in this litigation but rather an attorney for an un-
named plaintiff and thus the court is not bound by the case
law governing awards of attorney's fees to pro se attorneys.
Presented with these arguments, the district court held that
since every action must be prosecuted in the name of the real
party-in-interest and "[s]ince Burka brought this lawsuit in
his own name, he should be estopped from arguing now that
the real party-in-interest was someone else." Burka, No.
92-11 2636, at 4 [J.A. 15]. We affirm the district court's
holding.
The Federal Rules of Civil Procedure require that "[e]very
action shall be prosecuted in name of the real party in
interest." Fed. R. Civ. P. 17(a) (1997). Burka chose to bring
the case in his own name and to maintain the case in his own
name throughout the litigation. Indeed, Burka has at all
times been the only named party in this case. A FOIA
request can be made by "any person." 5 U.S.C. s 552(a)(3).
As a result, Burka had standing to bring this suit when his
FOIA request was denied; he was not required to demon-
strate that he had any particular need for the information.
Therefore Burka, not his undisclosed client, is the real party-
in-interest to this suit. Any arrangements Burka had with a
third party are legally irrelevant for the purposes of his
FOIA request. They are equally irrelevant here. It is
similarly of no consequence that Burka "could have" brought
this suit on behalf of another third party; Burka has not done
so.
Even absent the clear dictates of Rule 17, we would arrive
at the same place. The dangers inherent in recognizing an
"undisclosed" client as the real plaintiff are obvious. For
instance, if the court cannot ascertain who is the real party-
in-interest to a case, how can it apply claim preclusion to that
party in any future litigation? How can a court apply sanc-
tions to a party whose identity is undisclosed? How would a
court determine for purposes of deciding if attorney's fees are
merited whether a plaintiff is acting on behalf of the public
interest, or whether the plaintiff will obtain commercial bene-
fit from the disclosed information, or anything about the
nature of the plaintiff's interest in the records if her identity
is undisclosed?
Burka is not just the plaintiff in this case; he is also the
only attorney to enter an appearance. He directed the
litigation, argued on his own behalf in district court, and filed
the briefs in district court as well as here. Thus, it appears
incontrovertible that Burka has been both claimant and coun-
sel. Accordingly, Burka is, by definition, a pro se attorney-
litigant and thus is not eligible for attorney's fees. Burka's
status as both attorney and litigant may be a "technicality,"
but it is a legally meaningful one and not to be ignored.
C. Burka's Co-Counsel Are Not Entitled to Attorney's Fees
Burka contends that even if he is ineligible for attorney's
fees for his own work on this case, he is nonetheless eligible
to recover fees for the services of his lawyer colleagues who
worked on the lawsuit. HHS argues, in turn, that Burka is
not eligible for attorney's fees for any work performed by
colleagues at his law firm because there was no attorney-
client relationship between them, his colleagues never entered
an appearance in the case, and they worked under Burka's
direction and control. The district court found that Burka
was not entitled to attorney's fees for his colleagues' work.
We agree.
Burka cites three cases in support of his argument that he
is eligible to recover for the professional services rendered by
his colleagues at his law firm, Ray, 87 F.3d 1250; Lawrence
v. Bowsher, 931 F.2d 1579 (D.C. Cir. 1991); and Aronson v.
United States Dep't of Housing & Urban Dev., 866 F.2d 1
(1st Cir. 1989). In all three cases, the court awarded attor-
ney's fees to a pro se attorney-litigant for the work of co-
counsel. Yet, as the district court noted below, all three
cases involved attorneys who were not affiliated with the
litigant's law practice. As a result, these outside counsel,
unlike the colleagues employed by Burka, enjoyed a genuine
attorney-client relationship with the litigants, were situated to
offer "independent" legal advice and assistance, and were
presumably paid for their services by the attorney-litigants
involved. This was not true here. Instead, Burka controlled
the legal strategy and presentation, he was the only attorney
to enter an appearance in the case, and his colleagues worked
under his direction. These are material differences. As the
Supreme Court noted in Kay, 499 U.S. 432, "the word 'attor-
ney' assumes an agency relationship." Id. at 435-36 (footnote
omitted). Such a relationship exists when an attorney-
litigant's co-counsel are independent counsel hired by him to
assist him in the case; it does not exist, however, where the
counsel are simply colleagues at the litigant's law firm work-
ing under the litigant's direction. "Outside" counsel can
serve as an "independent third party in framing the theory of
the case, evaluating alternative methods of presenting the
evidence, cross-examining hostile witnesses, formulating legal
arguments, and in making sure that reason, rather than
emotion, dictates the proper tactical response to unforeseen
developments in the courtroom." Id. at 437. Again, this is
not true when the co-counsel work in the same firm and
under the direction of the attorney-litigant. Burka's claim
that his co-counsel were in fact working for an undisclosed
client with whom they shared an attorney-client relationship
is not relevant here for the same reasons it was irrelevant
with regard to Burka's claim for attorney's fees for his own
work in this case.
III. Conclusion
For the foregoing reasons, we hold that a pro se attorney-
litigant is not entitled to attorney's fees under FOIA, 5 U.S.C.
s 552. We also hold that this rule applies even if the pro se
attorney-litigant claims to in fact represent an undisclosed
client. Finally, we hold that a pro se attorney-litigant is not
entitled to an award of attorney's fees for work performed by
other attorneys on the case where the other attorneys worked
in the attorney-litigant's firm under the attorney-litigant's
direction. The district court's decision denying Burka's mo-
tion for an award of attorney's fees is therefore
Affirmed.
Wald, Circuit Judge, concurring specially: Judge Ran-
dolph raises questions in his concurrence about the legitimacy
of considering "the public benefit derived from the case" in
deciding when to award attorneys' fees in a FOIA case. I
write briefly in reply.
It is reasonable for the court to consider the public benefit
arising from the plaintiff's FOIA request in deciding whether
to grant attorney's fees precisely because under the statute a
plaintiff need not demonstrate any public benefit to obtain
information through FOIA. In LaSalle Extension Universi-
ty v. FTC, 627 F.2d 481 (D.C. Cir. 1980), we explained that
"parties ... who have a sufficient private interest in the
requested information do not need the additional incentive of
recovering their fees and costs to induce them to pursue their
request in the courts." Id. at 484. That, of course, includes
those who have commercial interests in the information
sought. On the other hand, someone seeking information
from the government may need at least the potential to cover
costs if he acts as, in effect, "a private attorney general." See
S. Rep. No. 93-854 (1974).
Judge Randolph asserts that judges cannot evaluate public
benefit "objectively." But we make this kind of determina-
tion under other fee-shifting statutes all the time. See, e.g.,
Metropolitan Washington Coalition for Clean Air v. District
of Columbia, 639 F.2d 802, 804 (D.C. Cir. 1981) (explaining
that under the citizen-suit provision of the Clean Air Act,
courts are empowered to award fees "whenever such an
award was deemed to be 'in the public interest' "); Covington
v. District of Columbia, 57 F.3d 1101, 1108 (D.C. Cir. 1995),
cert. denied, 516 U.S. 1115 (1996) (explaining that under the
fee-shifting provision of 42 U.S.C. s 1988(b), when an attor-
ney requests rates that are greater than those they normally
charge, "the attorney must show that his or her custom of
charging reduced rates is in fact attributable to 'public spirit-
edness' "); see also Chambers v. Nasco Inc., 501 U.S. 32, 45
(1991) (explaining that an exception to the so-called "Ameri-
can Rule" prohibiting fee-shifting in most cases is the "com-
mon fund exception," which "allows a court to award attor-
ney's fees to a party whose litigation efforts directly benefit
others"). In fact, the public interest inquiry is usually rela-
tively simple. See, e.g., LaSalle Extension University v.
FTC, 627 F.2d 481, 484 (D.C. Cir. 1980) ("One goal [of the
FOIA fee-shifting provision] ... is to encourage Freedom of
Information Act suits that benefit the public interest. This
objective is not furthered here ...."); see also Summers v.
DOJ, No. 97-5002 (D.C. Cir. 1998) (Siberman, J., concurring)
("There can be no doubt that these documents as a group are
of the very highest public interest.") (emphasis added). In-
deed, it is not so readily apparent that the "substantial
justification" test of EAJA that Judge Randolph espouses is
that much more "objective" than the "public interest" test of
FOIA.1
Judge Randolph also claims that "making the eligibility for
a fee award turn on 'public benefit' ... is not tied to any
language or policy of FOIA." Congress and every circuit to
consider the issue would disagree. The requirement that the
petitioner show some public benefit to obtain attorney's fees
is deeply rooted in the legislative history of FOIA. The
"multi-factor, no weights assigned, test" appeared in the
original Senate version of FOIA. See S. 2543, 93d Cong.
(1974); S. Rep. No. 93-854 (1974). Although the conference
committee later eliminated the test's four criteria from the
statute, the conference report indicates that Congress intend-
ed courts to consider such factors in exercising their discre-
tion to award attorney's fees. See S. Conf. Rep. No. 93-1200
(1974), reprinted in 1974 U.S.C.C.A.N. 6285, 6288; Majority
Opinion at 4. Consistent with this congressional intent, we
__________
1 Moreover, the purposes of the fee-shifting provisions of EAJA
and of FOIA are different; "[s]imply put, the EAJA is not a
broadly written fee-shifting statute which encourages meritorious
litigation." Synar v. United States, 670 F. Supp. 410, 416 (D.D.C.
1987). As we noted in Battles Farm Co. v. Pierce, 806 F.2d 1098
(D.C. Cir. 1986), cert. denied, 481 U.S. 1046 (1987), "unlike other
fee-shifting statutes that are designed solely to encourage private
'attorneys general' to bring meritorious litigation in the public
interest ... the EAJA's purpose is somewhat different. It is
designed to encourage small private plaintiffs and defendants to
persevere against or resist the U.S. government if the government
takes an unjustified litigating position." Id. at 1101.
have for decades used them as guides to determining when
attorney's fees are warranted. See, e.g., Chesapeake Bay
Foundation, Inc. v. United States Dep't of Agriculture, 11
F.3d 211, 216 (D.C. Cir. 1993), cert. denied, 513 U.S. 927
(1994); Tax Analysts v. United States Dep't of Justice, 965
F.2d 1092, 1093 (D.C. Cir. 1992); Weisberg v. United States
Dep't of Justice, 745 F.2d 1476, 1498 (D.C. Cir. 1984). Other
circuits have done the same. See, e.g., Detroit Free Press,
Inc. v. Dep't of Justice, 73 F.3d 93 (6th Cir. 1996); Cazalas v.
U.S. Dep't of Justice, 709 F.2d 1051 (5th Cir. 1983); Aviation
Data Serv. v. FAA, 687 F.2d 1319 (10th Cir. 1982); Vermont
Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509
(2d Cir. 1976). Absent some affirmative change of heart on
the part of Congress or directive from the Supreme Court, I
see no authority or reason for us to change course.
Randolph, Circuit Judge, concurring: I join the court's
opinion in its application of Kay v. Ehrler, 499 U.S. 432
(1991), to deny this attorney-plaintiff attorney's fees. I do so
without endorsing the "criteria" we have devised for deter-
mining whether, in FOIA cases generally, attorney's fees
should be awarded. Maj. op. at 4. Judge Wald thinks it
significant that the four criteria are "deeply rooted" in the
legislative history of FOIA. Concur. op. at 2. I find it far
more telling that those criteria were weeded out of the
original Senate version of FOIA--where they would have had
the binding force of law--and transplanted to the conference
report--where they do not. Although we have applied these
criteria in the past, they deserve another look. For instance,
one of the factors is "the public benefit derived from the
case." Chesapeake Bay Found., Inc. v. United States Dep't
of Agric., 11 F.3d 211, 216 (D.C. Cir. 1993). Courts deciding
an attorney's fees dispute are not in a position to make that
sort of judgment objectively. One person's public good is
often another person's public harm. Besides, FOIA plaintiffs
do not sue in the public interest; if anyone represents "the
public" in these cases it is the United States or the agency
defending the action. Making eligibility for a fee award turn
on "public benefit" has a nice ring, but it is not tied to any
language or policy of FOIA. Once a FOIA plaintiff receives
the information sought from the government, he has no
obligation to share it with "the public," or with anyone else.
What he plans to do with the documents has no bearing
whatever on his right to receive them. I therefore cannot see
why such a consideration should be relevant to whether he
should recover attorney's fees. If the "public good" did
matter, the fact that the plaintiff plans to use the information
for his "commercial benefit," id., should be a mark in favor of
attorney's fees. Competition and better products and ser-
vices promote the public good. But our precedents count
commercial benefit as a strike against an award--unless,
perhaps, the plaintiff happens to be a "news organization."
See, e.g., Tax Analysts v. Department of Justice, 965 F.2d
1092, 1095, 1096 (D.C. Cir. 1992). We have also said that
when a litigant seeks disclosure "for personal motives, an
award of attorney's fees is generally inappropriate." Id. at
1095. This too is baffling. I suppose that any individual
bringing a lawsuit has "personal motives." On the other
hand, it seems odd to attribute "personal motives" to a
foundation or some other artificial entity. And so our law on
attorney's fees in FOIA cases is skewed against real people
and in favor of organizations. This makes no sense. See
Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994). What
also makes no sense is our continued use of this multi-factor,
no weights assigned, test in the face of the different (and far
simpler) standard supplied in the Equal Access to Justice Act,
28 U.S.C. s 2412. EAJA fits FOIA perfectly. It applies to
cases in which the United States or an agency is a party and
every FOIA case will be in that category. Compare Gray v.
New England Tel. & Tel. Co., 792 F.2d 251, 259 (1st Cir.
1986), refusing to borrow the EAJA standard in cases with
private litigants on both sides of the dispute.
Judge Wald believes that "the purposes of the fee-shifting
provisions of EAJA and of FOIA are different." Concur. op.
at 2 n.1. She distinguishes between the two on the ground
that EAJA is narrower and not designed to encourage litiga-
tion. See concur. op. at 2 n.1. Yet she would require FOIA
plaintiffs to fulfill three additional criteria that do not apply to
plaintiffs seeking fees under EAJA,1 frequently making it
harder to qualify for an attorney's fees award under FOIA
than under EAJA. I find it more logical to join the First
Circuit, which has concluded that there is "no fundamental
difference" between the policies underlying EAJA's and
FOIA's attorney's fees provisions. Crooker v. EPA, 763 F.2d
16, 17 (1st Cir. 1985).
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1 Under both EAJA and FOIA, courts look to the merit of the
Government's litigating position in determining whether to award
attorney's fees. Compare 28 U.S.C. s 2412(d)(1)(A) (A court shall
award fees unless the "position of the United States was substan-
tially justified.") with maj. op. at 4 (The fourth factor to be weighed
in determining whether fees should be awarded under FOIA is
"whether the Government had a reasonable basis for withholding
requested information.").