United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 7, 1999 Decided October 26, 1999
No. 98-5232
Louis J. Blazy,
Appellant
v.
George J. Tenet, Director,
Central Intelligence Agency, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 93cv02424)
Mitchell J. Matorin, appointed by the court as amicus
curiae, argued the cause on the side of appellant. With him
on the briefs was Mark A. Srere.
Louis J. Blazy, appearing pro se, was on the briefs for
appellant.
Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for appellees. With her on the brief were Wilma
A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney. Edith S. Marshall, Assistant U.S. Attorney,
entered an appearance.
Before: Edwards, Chief Judge, Sentelle and Randolph,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Opinion concurring in part and concurring in the result
filed by Circuit Judge Sentelle.
Edwards, Chief Judge: Louis J. Blazy, pro se, "substantial-
ly prevailed" in his litigation against the Government, brought
pursuant to the Privacy Act, 5 U.S.C. s 552a (1994), in
conjunction with the Freedom of Information Act, 5 U.S.C.
s 552 (1994) ("FOIA"), seeking access to and amendment of
documents in his personnel file at the Central Intelligence
Agency ("CIA"). He now challenges the District Court's
denial of his motion for attorneys' fees and litigation costs
under the Privacy Act. He argues that the District Court
erred in applying standards applicable to FOIA in assessing
his claims arising under the Privacy Act.
The Government resists Mr. Blazy's appeal on several
grounds. First, the Government asserts that fees for attor-
neys consulted by a pro se plaintiff are not recoverable under
either FOIA or the Privacy Act. Second, the Government
argues that Mr. Blazy is not entitled to recover his claimed
costs because they do not fall within the compass of allowable
costs under 28 U.S.C. s 1920 (1994). The Government fur-
ther contends that because Mr. Blazy invoked both FOIA and
the Privacy Act and because the language of FOIA's and the
Privacy Act's fee-shifting provisions are nearly identical, the
District Court properly applied FOIA's standards to Mr.
Blazy's Privacy Act claims. Finally, the Government insists
that Mr. Blazy's claims for fees and costs should fail because
they have not been substantiated.
We affirm the District Court's ruling that Mr. Blazy's pro
se status does not by itself preclude the recovery of fees for
consultations with outside counsel. We also affirm the judg-
ment of the District Court that s 1920 does not provide an
exhaustive list of recoverable costs under the Privacy Act,
because a litigant can recover "other reasonable litigation
costs" under the Privacy Act that are beyond the scope of
s 1920. However, we reject the District Court's assumption
that Mr. Blazy's claims for fees and litigation costs must be
evaluated under judicial precedent construing FOIA. Mr.
Blazy's claims clearly arise under the Privacy Act. There-
fore, it would be illogical to evaluate his requests for fees and
litigation costs pursuant to tests designed to assess FOIA
claims. Not only do FOIA and the Privacy Act serve very
different purposes, but there is nothing in either statute or in
the relevant legislative history that requires courts to resolve
claims arising under the Privacy Act pursuant to standards
developed to assess claims arising under FOIA.
Although Mr. Blazy clearly is eligible to seek fees and
other litigation costs under the Privacy Act, most of his
claims must be rejected for want of substantiation. With the
exception of filing fees to which Mr. Blazy is entitled to
recover, we affirm the District Court's conclusion that Mr.
Blazy's other claims for fees and litigation costs must be
denied. We reach this result not because Mr. Blazy failed to
satisfy FOIA standards, but instead because his claims fail
for want of documentation.
I. Background
Mr. Blazy "brought this action pursuant to the Privacy Act,
in conjunction with the Freedom of information Act, seeking
access to and amendment of documents in his personnel file
at the Central Intelligence Agency where he was formerly
employed." Blazy v. Tenet, 979 F. Supp. 10, 14 (D.D.C. 1997)
(citations omitted). Mr. Blazy's difficulties first arose in 1989
when he was employed as a computer scientist with the CIA
and was seeking employment with the FBI. When the FBI,
as part of its background check, sought information on Mr.
Blazy from the CIA, Mr. Blazy made inquiries of his own to
review files under his name with the CIA to insure that they
were accurate. After discovering that his files contained
charges of sexual harassment, Mr. Blazy complained and was
subsequently assured by the CIA's Director of Security that
the allegations were unfounded and that the FBI would be so
notified. See id. at 15. In August 1990, Mr. Blazy wrote to
the FOIA and Privacy Act Branch of the CIA requesting "a
copy of all documents collected and maintained in various files
listed under my name." Id. (internal quotation marks omit-
ted). It took nearly four years before the CIA finally re-
leased some documents to Mr. Blazy in response to his
request. Dissatisfied with what he received, Mr. Blazy then
filed this action in District Court, "alleging that he had not
received all the documents to which he was entitled and that
his records contained inaccuracies and misstatements that
had caused him to be denied the FBI job. Defendants moved
to dismiss and, on January 31, 1996, the Court dismissed
some parts of the complaint but preserved the central Privacy
Act claims against the agency itself." Id.
It is unnecessary to detail every aspect of the contest that
ensued between Mr. Blazy and the Government, for the
history of the parties' litigation is amply described in the
opinion of the District Court. See id. at 15-16 (providing a
detailed factual summary). Throughout the litigation before
the District Court, Mr. Blazy "maintained ... that his rec-
ords contain[ed] inaccuracies, that documents [were] missing,
that information ha[d] been improperly redacted, that infor-
mation was improperly disseminated, and generally that the
CIA ha[d] failed to comply with the disclosure provisions and
accuracy guarantees of the Privacy Act. As a result, he
allege[d] that he was denied the FBI job and continue[d] to
be prejudiced in his ability to obtain employment." Id. at 16.
Suffice it to say, it was only after extensive proceedings
before the District Court that Mr. Blazy's requests for access
to and amendment of documents in his personnel file at the
CIA were adequately addressed.
On September 17, 1997, after the CIA had released addi-
tional documents to Mr. Blazy, the District Court concluded
that the agency had finally conducted an adequate search of
its records. The court thus determined, inter alia, that the
CIA had not violated the Privacy Act and had properly
invoked FOIA's exemptions with regard to all of the redacted
or withheld documents save 15. See id. at 25-26. After
viewing those 15 documents in camera, the District Court
concluded that they had properly been withheld under FOIA.
See Blazy v. Tenet, Civ. Act. No. 93-2424, Supp. Op. at 1-2
(D.D.C. Dec. 3, 1997), reprinted in Joint Appendix ("J.A.")
238-39. A Special Panel of this court summarily affirmed the
judgment of the District Court. See Blazy v. Tenet, No. 97-
5330 (D.D.C. May 12, 1998) (affirming the District Court's
order granting summary judgment). Subsequently, on April
6, 1998, the District Court denied Mr. Blazy's motion for fees
and litigation costs. The trial court found that Mr. Blazy had
"substantially prevailed" in his claims against the Govern-
ment, because "the filing of the suit and the Court's involve-
ment were directly responsible for the release of all docu-
ments to which plaintiff was entitled." The District Court
thus concluded that Mr. Blazy was eligible for an award of
fees and litigation costs. However, the District Court held
that Mr. Blazy was not entitled to an award of fees and
litigation costs, because his case failed to satisfy the four-
factor test used to determine fee entitlements under FOIA.
Blazy v. Tenet, Civ. Act. No. 93-2424, Mem. Op. at 6-8
(D.D.C. Apr. 6, 1998), reprinted in J.A. 268-70. In particu-
lar, the District Court noted that Mr. Blazy's case did not
concern matters of public interest, his motives were wholly
personal because the records affected only his employment
prospects, and the agency did not act in bad faith. See id. at
7-8, reprinted in J.A. 269-70.
Mr. Blazy appealed and moved for summary reversal. The
Government similarly moved for summary affirmance. In a
per curiam order dated November 5, 1998, a Special Panel
denied the motions for summary disposition and ordered that
amicus curiae be appointed to present argument on behalf of
Mr. Blazy.
II. Discussion
A. Pro Se Litigants and Litigation Costs Under 28 U.S.C.
s 1920
The District Court made two threshold decisions in deter-
mining that Mr. Blazy was eligible for attorney fees and
litigation costs under the Privacy Act: First, the court held
that Mr. Blazy's pro se status does not by itself preclude the
recovery of fees for consultations with outside counsel. Sec-
ond, the court found that 28 U.S.C. s 1920 does not provide
an exhaustive list of recoverable costs under the Privacy Act,
because a litigant can recover "other reasonable litigation
costs" under the Privacy Act that are beyond the scope of
s 1920. Both of those holdings were correct.
The Government argues that Mr. Blazy cannot recover fees
for consultations with licensed attorneys because he is a pro
se litigant. This claim is baseless. In support of its position,
the Government relies on the decisions in Kay v. Ehrler, 499
U.S. 432 (1991), and Burka v. United States Dep't of Health
and Human Servs., 142 F.3d 1286 (D.C. Cir. 1998). Howev-
er, neither decision supports the Government's view in this
case.
Kay stands for the proposition that "an attorney who
represented himself in a successful civil rights case could not
recover attorney's fees under 42 U.S.C. s 1988," Burka, 142
F.3d at 1288, because Congress likely used the word "attor-
ney" in the fee provision to invoke "an agency relationship,
and it seems likely that Congress contemplated an attorney-
client relationship as the predicate for an award under
s 1988." Kay, 499 U.S. at 435-36. The Court reasoned that
the provision's specific purpose was to "enable potential plain-
tiffs to obtain the assistance of competent counsel in vindicat-
ing their rights." Id. at 436. Parties who appear pro se are
"deprived of the judgment of an independent third party in
framing the theory of the case, evaluating alternative meth-
ods of presenting the evidence, cross-examining hostile wit-
nesses, 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. Thus, the rule against awarding fees to pro se
litigants stems from a judgment that "[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. Our decision in
Burka merely adds 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. Mr. Blazy's claim in
the instant case is not inconsistent with the statutory policy
enunciated in Kay and Burka.
Mr. Blazy is not seeking to collect attorneys' fees for his
own work on this case; rather, he is claiming fees for lawyers
with whom he consulted throughout this case. Thus, his pro
se status is irrelevant to the claims at issue. We differ with
our concurring colleague on this point, because we find noth-
ing in the statute or the case law that requires an attorney to
file a formal appearance in a case in order for a litigant to
claim fees. As we stated in Burka, pro se litigants are
eligible to claim fees so long as their outside counsel "enjoyed
a genuine attorney-client relationship ... , were situated to
offer 'independent' legal advice and assistance, and were
presumably paid for their services." Burka, 142 F.3d at
1291. Accordingly, we affirm the District Court's conclusion
that Mr. Blazy's pro se status does not by itself preclude the
recovery of fees for consultations with outside counsel.
We also agree with the District Court's holding that s 1920
does not bar Mr. Blazy's claim for costs in this case. Mr.
Blazy seeks litigation costs under the Privacy Act, which
provides that
(B) The court may assess against the United States
reasonable attorney fees and other litigation costs rea-
sonably incurred in any case ... in which the complain-
ant has substantially prevailed.
5 U.S.C. s 552a(g)(2)(B). The District Court correctly noted
that the reference to "other litigation costs" expanded the
scope of costs available under the Privacy Act beyond the
limits of s 1920.
The costs provision in the Privacy Act mirrors a provision
in FOIA, which also allows a prevailing party to claim "other
litigation costs." 5 U.S.C. s 552(a)(4)(E). We note with
agreement that, in construing this provision, the court in
Kuzma v. Internal Revenue Service, 821 F.2d 930 (2d Cir.
1987), explicitly rejected the Government's contention that
costs under FOIA were limited by s 1920. Id. at 933. The
Kuzma court specifically determined that "[t]he statutory
language and the purposes of the relevant sections, as well as
the legislative history and decisions of various other courts,
lead us to conclude that an award of costs pursuant to s 552
is not limited to those authorized by s 1920." Id. at 932. In
particular, the Second Circuit noted that by adding the
phrase "other litigation costs" to FOIA in 1974, Congress
necessarily intended to expand the "scope of costs already
recoverable against the government under s 1920." Id. To
hold otherwise would, "in effect, excise the words 'other
litigation costs' from the statute by rendering them meaning-
less." Id. We agree. And we also hold that the Second
Circuit's reasoning with respect to claims for costs under
FOIA applies with equal force to claims under the Privacy
Act. This is not to say that FOIA claims and Privacy Act
claims must always be resolved in the same way; rather, it is
to say that s 1920 does not serve as a limit on recovery of
litigation costs under either FOIA or the Privacy Act.
B. The Standard for Assessing Entitlement to Fees and
Litigation Costs for Claims Arising Under the Privacy
Act
Although the District Court found that Mr. Blazy was
eligible to claim fees and litigation costs under the Privacy
Act, the court denied the claims because Mr. Blazy could not
satisfy judicially-adopted standards that have been used to
assess claims for fees and litigation costs under FOIA. This
was a mistake.
Both FOIA and the Privacy Act state, in like terms, that
parties who prevail against the Government on claims under
the statutes may seek reasonable attorney fees and other
litigation costs. Because the statutory fees and costs lan-
guage is the same, some courts have assumed, with no
apparent justification, that claims for fees and litigation costs
under the Privacy Act should be assessed pursuant to the
same standards used to assess fees and litigation costs under
FOIA. See, e.g., Gowan v. United States Dep't of the Air
Force, 148 F.3d 1182, 1195 (10th Cir. 1998) ("[W]e note that
the Privacy Act attorney's fee provisions are substantially
similar to the fee provision of the Freedom of Information
Act. Consequently, like at least two of our sister circuits, we
shall apply a FOIA attorney's fee analysis to this Privacy Act
case.") (internal citation omitted)); Barrett v. Bureau of
Customs, 651 F.2d 1087, 1088 (5th Cir. Unit A July 1981)
(noting that FOIA's guidelines apply to claims for attorneys'
fees under the Privacy Act). Indeed, even this court, in dicta,
has suggested that "[c]ases construing the identical attorneys'
fees provision in the Freedom of Information Act ... are
apposite as well in the Privacy Act context." Sweatt v.
United States Navy, 683 F.2d 420, 423 (D.C. Cir. 1982)
(Sweatt was found not to have "substantially prevailed" under
the Privacy Act, so he was ineligible for fees). On close
examination, however, it is clear that there is no justification
for a court to blindly embrace standards used under FOIA to
assess claims for fees and litigation costs presented by pre-
vailing parties under the Privacy Act.
The Privacy Act of 1974 "safeguards the public from un-
warranted collection, maintenance, use, and dissemination of
personal information contained in agency records ... by
allowing an individual to participate in ensuring that his
records are accurate and properly used." Bartel v. FAA, 725
F.2d 1403, 1407 (D.C. Cir. 1984). To effectuate that purpose,
the Act requires any agency that maintains a "system of
records" to publish at least annually a statement in the
Federal Register describing that system. 5 U.S.C. s 552a(e).
In addition, any agency that maintains a system of records
and receives a request by an individual to gain access to his
records or to any information pertaining to him that is
contained in the system must permit him to review his
records and have copies made of all or any portion of the
record in a form that is comprehensible to the requester. See
5 U.S.C. s 552a(d)(1).
Unlike FOIA, the Privacy Act's primary purpose is not
disclosure. Rather, "the main purpose of the Privacy Act's
disclosure requirement is to allow individuals on whom infor-
mation is being compiled and retrieved the opportunity to
review the information and request that the agency correct
any inaccuracies." Henke v. United States Dep't of Com-
merce, 83 F.3d 1453, 1456-57 (D.C. Cir. 1996). Indeed,
although both FOIA and the Privacy Act "evidence Congres-
sional concern with open government, and especially, accessi-
bility of government records," Greentree v. United States
Customs Serv., 674 F.2d 74, 76 (D.C. Cir. 1982),
[e]ach seeks in different ways to respond to the potential
excesses of government. Each, therefore, has its own
functions and limitations. While the Privacy Act was
designed to provide individuals with more control over
the gathering, dissemination, and accuracy of agency
information about themselves, FOIA was intended to
increase the public's access to governmental information.
Id. at 76 (citations omitted).
Thus, although both FOIA and Privacy Act address the
general problem of government accountability, the two stat-
utes sometimes work at cross purposes. See Legislative
History of the Privacy Act of 1974, at 861 (1976) (noting that
the original congressional staffs observed that "[p]erhaps the
most difficult task in drafting Federal privacy legislation was
that of determining the proper balance between the public's
right to know about the conduct of their government and
their equally important right to have information which is
personal to them maintained with the greatest degree of
confidence by Federal agencies").
The tension between the two Acts' purposes reveals itself
most starkly when courts attempt to apply standards devel-
oped to address claims arising under FOIA to Privacy Act
claims. "This Court has directed the district court to consid-
er at least four criteria in determining whether a substantial-
ly prevailing FOIA litigant is entitled to attorney's fees: (1)
the public benefit derived from the case; (2) the commercial
benefit to the plaintiff; (3) the nature of the plaintiff's inter-
est in the records; and (4) the reasonableness of the agency's
withholding." Tax Analysts v. United States Dep't of Justice,
965 F.2d 1092, 1093 (D.C. Cir. 1992). Even a cursory exami-
nation of these factors makes it clear that they have little or
no relevance in the context of the Privacy Act.
In the present case, the District Court held that Mr. Blazy
was not entitled to fees and litigation costs because he could
not satisfy the four FOIA criteria. See Blazy, Mem. Op. at
7-8, reprinted in J.A. 269-70. The court reasoned that Mr.
Blazy's case was a "personal" one that "did not concern
matters in the public interest." Id. at 7, reprinted in J.A.
269. In addition, given that his "motives [were] wholly
personal because the records at issue allegedly prejudiced his
ability to obtain employment," the court found that the first
three FOIA standards counseled against an award. Id. Fi-
nally, the court found that although the Government had
produced "sluggish" responses to Mr. Blazy's requests, there
was no proof of bad faith and that the Government's denial of
information had not been without a reasonable basis in law.
Id. at 8, reprinted in J.A. 270.
Such an analysis of Mr. Blazy's claims is illogical in light of
the purposes of the Privacy Act. It makes no sense whatever
to require an individual who relies upon a statute whose
purpose is to "provide individuals with more control over the
gathering, dissemination, and accuracy of agency information
about themselves," and not to "increase the public's access to
governmental information," to vindicate broad public interests
in order to recover fees and litigation costs. Greentree, 674
F.2d at 76. It is clear beyond cavil that a claimant's rights
under the Privacy Act are based largely on private interests;
indeed, this is hardly surprising given the appellation of the
statute. Therefore, a prevailing claimant under the Privacy
Act surely cannot be disqualified from fees and litigation
costs because his or her interests are principally private in
nature.
Moreover, there is nothing in the relevant legislative histo-
ry of either FOIA or the Privacy Act that mandates applica-
tion of the FOIA four-factor test to claims arising under the
Privacy Act. At best, FOIA's legislative history evinces
congressional deliberations providing insight into the lineage
of the FOIA criteria. See Burka, 142 F.3d at 1293 (Wald, J.,
concurring) ("The requirement that the petitioner show some
public benefit to obtain attorney's fees is deeply rooted in the
legislative history of FOIA.... 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."). But there is no indication
whatsoever in either Act's legislative history that Congress
intended these factors to govern the assessment of claims
arising under the Privacy Act.
Interestingly, Judge Randolph's concurring opinion in Bur-
ka rejects even the suggestion that the aforecited four-factor
test should have relevance in the context of FOIA:
I find it far more telling that [the cited] 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 decid-
ing 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. Be-
sides, 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. Mak-
ing 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.
142 F.3d at 1293 (Randolph, J., concurring). Judge Ran-
dolph's arguments have even greater force with respect to
claims arising under the Privacy Act, because of the undisput-
edly private nature of these claims.
In any event, we think it is clear that the District Court
erred in rigidly relying upon the standard enunciated in Tax
Analysts, 965 F.2d at 1093, Chesapeake Bay Foundation, Inc.
v. United States Dep't of Agric., 11 F.3d at 216, and other
such FOIA cases, in assessing Mr. Blazy's claims under the
Privacy Act.
C. Mr. Blazy's Lack of Documentary Support
Although we find that Mr. Blazy was plainly eligible to seek
fees and litigation costs under the Privacy Act, this is not the
end of our inquiry. At bottom, we conclude that, with the
exception of filing fees to which he was entitled to recover,
Mr. Blazy's claims were properly denied for want of substan-
tiation.
There can be no doubt that the District Court had docu-
mentary evidence that Mr. Blazy paid his filing fees. His
appearance before the court attests to that fact. Mr. Blazy
failed, however, to provide the District Court with documen-
tary evidence to support his remaining requests for fees and
litigation costs. Instead, he simply noted that he would
"provide the Court a break-down of his costs, at the Court's
request." Plaintiff's Motion for Attorney Fees, Administra-
tive Costs, and Other Litigation Costs at 7, reprinted in J.A.
231. Even after the Government's opposition brief put him
on notice that the necessary documentation was missing, see
Defendants' Opposition to Plaintiff's Motion for Attorney
Fees, Administrative Costs and Other Litigation Costs at 3,
reprinted in J.A. 236; Defendants' Further Opposition to
Plaintiff's Motion for Attorney Fees, Administrative Costs
and Other Litigation Costs at 2, reprinted in J.A. 253, Mr.
Blazy still failed to provide the requested documentary sup-
port.
In its reply brief in support of Mr. Blazy, amicus acknowl-
edges both that Mr. Blazy only "briefly described the items
he was claiming" and that the Government had opposed this
approach by asserting that it was Mr. Blazy's burden to
provide a detailed submission. Reply Br. of Amicus Curiae
in Support of Appellant at 17. Amicus nonetheless reasserts
Mr. Blazy's contention that he would have produced a more
detailed break-down of his costs at the court's request. See
id. at 22. In addition, amicus argues that because Mr. Blazy
was a pro se litigant when he appeared before the District
Court, this court should grant him some leeway. See id. at
18. Amicus asserts:
[E]ven a plaintiff well versed in the technical intricacies
of federal civil procedure would reasonably conclude that
there was no need for him to provide detailed documen-
tation at the time of his motion.... Here, Mr. Blazy
could have reasonably concluded that the district court
would tell him "in due course" what type of documenta-
tion he must provide to support his fee and cost-shifting
application and when to provide it--especially given his
offer to "provide the Court a break-down of his costs, at
the Court's request."
Id. at 19-20. We cannot accept this argument.
Government counsel's repeated and forceful objections
should have put Mr. Blazy on notice that his undocumented
claims were under serious challenge. And even a cursory
glance at this circuit's case law, see, e.g., National Ass'n of
Concerned Veterans, 675 F.2d 1319 (D.C. Cir. 1982) (per
curiam), would have informed him of his "heavy obligation to
present well-documented claims," id. at 1324, and alerted him
to the requirement that once "the reasonableness of the hours
claimed becomes an issue, the applicant should voluntarily
make his time charges available for inspection by the District
Court or opposing counsel on request," id. at 1327. It is too
late in the day for Mr. Blazy to offer documentation for
claims that should have been substantiated months ago before
the District Court.
III. Conclusion
Mr. Blazy's claim for fees and other litigation costs under
the Privacy Act is granted in part and denied in part. He is
hereby granted a judgment for an award of costs in the
amount of his filing fees; however, all of his other claims for
fees and litigation costs are denied for want of documentation.
For the reasons herein indicated, the judgment of the District
Court is affirmed in part and reversed in part.
So ordered.
Sentelle, Circuit Judge, concurring in part and concur-
ring in the result: I concur completely in the result reached
by the majority, and in sufficient of its reasoning to support
every part of it. However, I write separately only to distance
myself from the majority's determination that a pro se litigant
is entitled to recover counsel fees for consultations with
attorneys not appearing or connected with appearances in the
pro se litigation, a resolution not necessary to the decision in
the case, nor, in my opinion, a correct one. That portion of
the decision is inconsistent with both the language and the
policy of fee-shifting statutes, as determined by the Supreme
Court.
Blazy's claim arises under 5 U.S.C. s 552a(g)(3)(B), provid-
ing, inter alia, that "[t]he court may assess against the
United States reasonable attorney fees ... reasonably in-
curred in any case" covered by the statute. The relevant
language is the same or substantially the same as various
other fee-shifting statutes. The Supreme Court construed
one of those statutes, 42 U.S.C. s 1988, in Kay v. Ehrler, 499
U.S. 432 (1991). That case, like this one, involved a plea for
fees by a pro se litigant. The Supreme Court denied that
plea and held that a pro se litigant was not entitled to recover
counsel fees. In my view, Kay v. Ehrler is controlling of the
present case. Concededly, the Supreme Court's decision is
distinguishable on two bases, but I submit that neither makes
a difference in the appropriate result. First, and least impor-
tantly, Kay v. Ehrler did involve a different fee-shifting
statute than the one before us. However, we have already
held in Burka v. United States Department of Health and
Human Services, 142 F.3d 1286 (D.C. Cir. 1998), that its
reasoning is applicable to other parallel fee-shifting stat-
utes--in that case, FOIA. The more significant distinction,
and the one which raises a legitimate question as to the
applicability of Kay v. Ehrler, is that in that case the litigant,
a licensed attorney, sought an award of fees for his own time,
whereas in the present case, Blazy seeks an award for the
fees of an attorney consulted by him who did not make an
appearance in the cause and never represented him as to the
matters at issue. Despite this distinction, I think both the
language and the rationale of Kay v. Ehrler are applicable.
As the Supreme Court notes, the statute's use of the term
"attorney" makes it "seem[ ] likely that Congress contemplat-
ed an attorney-client relationship as the predicate for an
award under section 1988." 499 U.S. at 436. As the Court
further noted in Kay, "the definition of the word 'attorney' in
Webster's Dictionary reads as follows: '[O]ne who is legally
appointed by another to transact business for him; specif: a
legal agent qualified to act for suitors and defendants in legal
proceedings.' " Id. at n.6 (quoting Webster's New Collegiate
Dictionary 73 (1975)). That should remind us that, strictly
speaking, having a law degree does not make one an attorney.
A law school graduate may indeed be a "lawyer," but he is not
acting as an "attorney" until he acts as the agent for someone
else. Simply counseling someone else does not constitute
acting as his agent and certainly does not constitute transact-
ing business for him. The "lawyer" consulted by Blazy may
have counseled him; but he did not transact business for him.
He is not, therefore, an attorney as the term was construed
by the Supreme Court in the context of fee-shifting in Kay v.
Ehrler.
In addition to this semantic failure, Blazy's claim falls
outside the rationale of Kay v. Ehrler as well. In rejecting
the award of counsel fees to a pro se litigant in that case, the
Supreme Court noted that the policies underlying the fee-
shifting statutes represent a congressional interest in "filter-
ing out meritless claims," and "ensuring the effective prosecu-
tion of meritorious claims." The Court further recognized
that these interests are furthered by the employment of a
professional "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. Consulting with
an attorney outside the litigation, and before the litigation,
furthered none of those goals.
In rejecting the claim of the pro se litigant in Kay v.
Ehrler, the Supreme Court noted that a rule that would
"authorize[ ] awards of counsel fees to pro se litigants ...
would create a disincentive to employ counsel whenever such
a plaintiff considered himself competent to litigate on his own
behalf." Id. at 438. The rule adopted by the majority today
provides less disincentive, but nonetheless provides an incen-
tive to the pro se litigant who has received the advice and the
professional function furthered by fee-shifting statutes to
reject that advice and proceed as his own lawyer, "ha[ving] a
fool for a client." Id.