with caselaw denying attorney fees to pro se litigants, this court holds that plaintiff is not entitled to recover attorney fees for his work in this case on his own behalf.
B. Although plaintiff is a "prevailing party," there are "special circumstances" which justify the denial of the fees plaintiff seeks.
There is no dispute that plaintiff, who recovered a $27,000 settlement and successfully litigated the Title VII coverage issue, is a prevailing party. However, even if the court were to ignore the difficulties plaintiff faces because he appeared pro se, it would hold that plaintiff is not entitled to attorney fees in this case because "special circumstances" exist which would render such an award unjust, see S. Rep. No. 94-1011, 94th Cong., 2d Sess. 4 (1976) (no award to prevailing party in § 1988 case if "special circumstances" exist); New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 63, 68, 100 S. Ct. 2024, 2030, 2033, 64 L. Ed. 2d 723 (1980) (no award in § 2000e-5(k) case if "special circumstances" exist).
Plaintiff seeks recovery for the work he did on the Title VII coverage issue, which he had to, and did, prevail on as a prerequisite to asserting his Fifth Amendment and belated § 1981 claims. However, it was the Fifth Amendment and § 1981 claims which presumably provided the basis for plaintiff's negotiated recovery; plaintiff did not assert a Title VII claim, but merely argued that Title VII was not an obstacle to his recovery. Neither § 1988 nor § 2000e-5(k) provide a basis for recovery of attorney fees for plaintiff's Fifth Amendment claim, but perhaps because § 1981 provided a partial basis for plaintiff's victory, plaintiff chose to seek fees under § 1988, the fee provision allowing fees in § 1981 cases. But in this case, the § 1981 claim was added only one week before plaintiff hired counsel, and his retained counsel have already been compensated. There is no evidence in the record that plaintiff did any work on the § 1981 claim prior to hiring counsel,
so an award of fees under § 1988 for plaintiff's pro se work would not be justified. Most perplexing, however, is that plaintiff, although apparently seeking fees under § 1988, does not even claim to be seeking compensation for his work on the § 1981 claim -- he claims that he is seeking fees for his work on the Title VII issue. If the court were to read plaintiff's application literally, it would have to hold that plaintiff cannot recover fees for Title VII work under the attorney fee statute he cites: 42 U.S.C. § 1988.
Moreover, if the court reads plaintiff's fee request as pursuant to § 2000e-5(k), the appropriate provision for Title VII fee claims -- as it will despite plaintiff's apparent choice of statute -- it still cannot grant plaintiff's fee request. In fact, given the unique and "special" circumstances of this case, the court finds plaintiff's claim that he has served as a "catalyst" for the extension of Title VII coverage to all GAO employees almost incredible. Throughout this lawsuit, plaintiff argued that Title VII did not apply to GAO employees, an argument he had to make to avoid dismissal for his failure to exhaust Title VII administrative remedies. It was the defendant that argued forcefully that GAO was covered by Title VII. Hence, due to the unique posture of the case, the plaintiff, although complaining of discrimination, argued against a position that would, in a broad sense, protect civil rights; instead he argued a narrow position that was solely in his own interest. Defendant, on the other hand, pushed this court, the U.S. Court of Appeals, and ultimately Congress for an interpretation of the law that would further the Title VII rights of GAO employees employees -- complete coverage. It is true that plaintiff prevailed in this court and the Court of Appeals; he was successful in his argument that the statute at issue did not extend Title VII coverage to certain GAO employees. If Congress had not amended the statute to eliminate the loophole plaintiff successfully demonstrated, however, plaintiff's efforts would have resulted in his own victory at the expense of Title VII coverage for his fellow GAO employees. This is a case in which plaintiff's efforts not only failed to advance the public benefit, a "special circumstance" precluding fees, see Riddell v. National Democratic Party, 624 F.2d 539, 543-45 (5th Cir. 1980); Naprstek v. City of Norwich, 433 F. Supp. 1369, 1370-71 (N.D.N.Y. 1977); but here plaintiff's position was positively harmful to the civil rights of others. It would be anomalous and unjust to award plaintiff for his "victory" and to penalize the government for taking a litigation position, in good faith, that would cause the advancement of civil rights by expanding Title VII coverage.
Further, the court finds plaintiff's attempt to take credit for Congress's ultimate amendment and expansion of Title VII to GAO to be wholly without merit and quite self-serving. Plaintiff's only "victory" on the Title VII issue was in court, and the victory was a narrow one. Plaintiff prevailed first on his argument that the pre-amendment statute did not apply to his class of GAO employees, and later on his argument that Congress's expanding amendment should not apply retroactively to his case. In no way did he support Congress's amendment; indeed it threatened his lawsuit. On the other hand, defendant Staats appeared before Congress to argue for the expanding amendment that was ultimately adopted.
It is only now, after plaintiff has succeeded in his efforts to preclude Title VII coverage for himself, that he claims credit for its expansion to all GAO employees. Plaintiff's narrow "victory" was to escape Title VII coverage; he cannot claim as part of that victory, for which he seeks attorney fees, that he served as the "catalyst" for Title VII expansion. To accept plaintiff's reasoning would turn the purpose of the attorney fee provisions on its head. If the efforts of a plaintiff to benefit from a loophole in Title VII law expose that loophole so that Congress closes it, that plaintiff is no more entitled to be rewarded with attorney fees than the beneficiary of a tax windfall, who, by exposing the law's inequity compels Congress to eliminate it, is entitled to claim credit for reducing the national deficit. The court holds that the existence of "special circumstances" in this case renders an award of attorney fees for plaintiff's Title VII work inequitable and unfair.
Accordingly, for the reasons stated alternatively in sections A and B above, this court denies plaintiff's motion for allowance of attorney fees. An appropriate Order accompanies this Memorandum.
This matter came before the court on plaintiff's motion for the allowance of attorney fees. For the reasons stated in the accompanying Memorandum, after careful consideration of plaintiff's motion, the opposition thereto, and the entire record in this case, it is, by the court, this 15th day of May, 1984,
ORDERED that plaintiff's motion for the allowance of attorney fees is denied; and it is further
ORDERED that defendant's motion to bifurcate fee proceedings is denied as moot.