concurring in part and dissenting in part:
The district' court- decided that Kay v. Ehrler, — U.S. -, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991), in which the Supreme Court held that a pro se litigant is not entitled to an attorney’s fee under 42 U.S.C. § 1988, does not bar the award of an attorney’s fee to a pro se litigant under the Handicapped Children’s Protection Act. The reason? . Simply that “plaintiffs’ motion for fees is based on the EHA, a different statutory scheme from that which formed the basis of the Kay v. Ehrler decision.” Kattan v. District of Columbia, No. 88-0630 (D.D.C. December 11, 1991), slip op. at 3. This is the proverbial distinction without a difference.
The fee-shifting provision of the HCPA is practically identical to that of § 1988, and the Supreme Court has long required that similar fee-shifting provisions in federal statutes be interpreted in the same way. See, e.g., Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754, 758 n. 2, 109 S.Ct. 2732, 2735 n. 2, 105 L.Ed.2d 639 (1989) (“We have stated that fee-shifting statutes’ similar language is ‘a strong indication’ that they are to be interpreted alike”); Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40 (1983) (same standards for awarding attorney’s fee apply under all statutes authorizing award of fee to a “prevailing party”); Northcross v. Board of *280Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48 (1973) (similarity in wording of two statutory fee-shifting provisions is a “strong indication that the two statutes should be interpreted pari passu ”).
The Court in Kay v. Ehrler also stated that “the word ‘attorney5 assumes an agency relationship, and it seems likely that Congress contemplated an attorney-client relationship as'the predicate for an award under § 1988.”' — U.S.-, 111 S.Ct. at 1437. I see no reason to think that the word “attorney” in the fee-shifting provision of § 1988 has a different meaning than it has in the fee-shifting provision of the HCPA. The district court’s cursory “analysis” surely offers none.
The district court’s grant of a fee for the work performed by Mr. Kattan was clearly an error. The court, however, declines to reach the merits of that question, see Ct.Op. at 5, holding that “the District of Columbia waived the issue of Mr. Rattan’s eligibility for fees by not raising it in the district court in a timely manner.” Ct.Op. at 8. I disagree.
The District of Columbia had no reason in 1988 to anticipate that the Supreme Court would in 1991 change the law of this circuit, which then authorized the district court to award an attorney’s fee to a pro se litigant. On the contrary, the district court was clearly bound -both by Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C.Cir.1977), which held that a pro se lawyer was eligible for fees under the Freedom of Information Act, and by the Supreme Court’s longstanding command that similarly-worded fee-shifting provisions are to be treated alike. The distinction the district court drew in Lawrence v. Staats, 586 F.Supp. 1375 (D.D.C.1984), between the fee provision of the FOIA and that of § 1988 ran contrary to the Supreme Court’s approach. See Lawrence v. Bowsher, 931 F.2d 1579, 1580 (D.C.Cir.1991) (affirming “[s]olely” on the basis of intervening Supreme Court decision in Kay v. Ehrler, which overruled Cuneo). But see Ct.Op. at 277 (lauding the district court for “a well-reasoned opinion” in Lawrence v. Staats).
It is simply unreasonable to penalize the District of Columbia for failing to have argued a distinction (between the fee provision of the FOIA and that of the HCPA) that the district court would have been required to reject under Supreme Court and circuit precedent. By holding that the District waived the issue of Mr. Rattan’s eligibility for fees, the court is in effect punishing a litigant for not making what would have been at the time an almost frivolous argument.
Finding no waiver of the District’s objection, I respectfully dissent from the court’s decision affirming the award of an attorney’s fee to the pro se plaintiff.