The opinion of the court was delivered by: FLANNERY
This matter came before the court on plaintiff's motion for the allowance of attorney fees. For the reasons stated below, the court does not believe plaintiff is entitled to fees, and his motion is therefore denied.
Plaintiff is a former excepted service employee of the General Accounting Office ("GAO"). In May, 1977, he filed a suit in this court alleging that GAO had discriminated against him on the basis of race. Plaintiff, an attorney, appeared pro se, and originally claimed that GAO's actions violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and the Fifth Amendment to the Constitution. Plaintiff subsequently amended his complaint to stress that the Fifth Amendment was his basis for relief. Defendants filed a motion to dismiss on the ground that plaintiff's exclusive remedy was Title VII, and that his Title VII claim was barred for failure to exhaust administrative remedies. Plaintiff argued in response that GAO was not covered by Title VII, and that he could therefore pursue his Fifth Amendment claim despite his admitted failure to exhaust administrative remedies under Title VII. On July 29, 1977, this court held that Title VII did not apply to GAO and denied defendants' motion to dismiss, but certified the issue for interlocutory appeal.
On February 5, 1981, the United States Court of Appeals for the District of Columbia affirmed this court's Order denying defendants' motion to dismiss, holding that Title VII did not apply to excepted service employees like plaintiff, although it did apply to other GAO employees. Lawrence v. Staats, 205 U.S. App. D.C. 341, 640 F.2d 427 (D.C. Cir. 1981). Shortly before the Court of Appeals rendered this decision, Congress passed the General Accounting Office Personnel Act of 1980, Pub. L. No. 96-191, 94 Stat. 27 (1980), in which Title VII was made clearly applicable to all GAO employees. Defendants then petitioned for a rehearing in the U.S. Court of Appeals, arguing that the GAO Personnel Act should have been given retroactive effect, and that because of Title VII's now clear applicability to GAO, plaintiff's complaint should be remanded for resolution of his Title VII claim. Defendants would then, of course, have argued that plaintiff's failure to exhaust Title VII administrative remedies would require dismissal. Plaintiff argued that retroactive application would be unfair, and that he should be able to proceed in this court with his Fifth Amendment claim. The Court of Appeals held in plaintiff's favor, denying rehearing and holding that Title VII was still inapplicable to plaintiff's case. Lawrence v. Staats, 214 U.S. App. D.C. 438, 665 F.2d 1256 (D.C. Cir.1981). Because the Court of Appeals held that Title VII was inapplicable, plaintiff was apparently not barred from asserting his Fifth Amendment claim, and did so on remand.
On remand to this court, the case began what defendant accurately describes as a "second phase." Discovery commenced on plaintiff's claims and various motions were filed between the October 13, 1981 remand and early April, 1982. On April 6, 1982, this court ruled on outstanding motions, and allowed plaintiff to add a claim based on 42 U.S.C. § 1981. Shortly thereafter, on April 13, 1982, plaintiff decided not to continue pro se and retained the law firm of Hudson, Leftwich and Davenport to represent him for the remainder of the case. On October 28, 1982, the case was settled and a Stipulation of Dismissal was filed.
The settlement provided that GAO pay plaintiff $27,000 and that all outstanding claims, with the exception of attorney fees issues, be dismissed. By Settlement Agreement dated December 10, 1982, GAO agreed to pay plaintiff's retained counsel a sum in complete satisfaction for their attorneys fees. GAO and plaintiff, however, have not reached agreement on the amount of fees, if any, to be paid to plaintiff for the time he spent representing himself in this lawsuit. Plaintiff seeks an award of $168,356.12; defendant argues that plaintiff is not entitled to attorney fees.
The statutory fee provision under which plaintiff seeks attorney fees is not immediately apparent from his motion. Although plaintiff seeks compensation primarily, if not exclusively, for work expended during litigation and appeals of the Title VII issue, he does not appear to seek fees under Section 706(k) of Title VII, 42 U.S.C. § 2000e-5(k). Instead, plaintiff seeks attorney fees under the Civil Rights Attorney's Fees Award Act, 42 U.S.C. § 1988.
That section provides that:
In any action or proceeding to enforce a provision of Sections 1981, 1982, 1983, 1985, and 1986 of this title . . ., the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the cost.
The court finds plaintiff's choice of § 1988 as a vehicle for his attorney fee claims quite curious, because only a miniscule part of his efforts, if any, were devoted to asserting his belated § 1981 claim pro se, and the retained attorneys who followed through on this claim and negotiated the settlement have already been compensated. Yet the § 1981 claim is the only one for which fees can be awarded under § 1988; it offers no basis for the award of fees expended during litigation of a Title VII claim or a Fifth Amendment claim. Even if the court reads plaintiff's fee request as proceeding under 42 U.S.C. § 2000e-5(k), however, it finds that plaintiff is not entitled to recover for his efforts on the Title VII issue, for the reasons discussed below. Because the court's disposition of this motion would be the same if plaintiff's fee request were read as pursuant to § 1988 or § 2000e-5(k), and because the standards to be applied under these sections are the same, New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 70 n.9, 100 S. Ct. 2024, 2034, n.9, 64 L. Ed. 2d 723 (1980); Sullivan v. Commonwealth of Pa. Dept. of Labor, 663 F.2d 443, 447 (3d Cir. 1981), the court will treat plaintiff's request as pursuant to each of these statutes. For the alternative reasons stated below, the court holds that plaintiff is not entitled to attorney fees for work he did on a pro se basis in this case.
A. An attorney appearing pro se in a discrimination case is not entitled to attorney fees, even if he prevails.
As noted above, the law firm representing plaintiff during the second phase of this litigation, during which settlement was reached, has already been compensated for its work in the case. The sole remaining issue is plaintiff's claim for attorney fees for the time he spent representing his cause pro se. After careful review of the applicable attorney fee statutes and the relevant caselaw, this court holds that pro se attorneys are not entitled to fees under 42 U.S.C. § 1988 or § 2000e-5k even if they prevail.
The United States Court of Appeals for the District of Columbia Circuit has not squarely addressed this issue. Courts from other Circuits, however, have overwhelmingly concluded that pro se plaintiffs are not entitled to attorney fees under § 1988, and by implication under § 2000e-5(k).
Pitts v. Vaughn, 679 F.2d 311, 312-13 (3d Cir. 1982); Wright v. Crowell, 674 F.2d 521, 522 (6th Cir. 1982); Cofield v. Atlanta, 648 F.2d 986, 987-88 (5th Cir. 1981); Lovell v. Snow, 637 F.2d 170, 171 (1st Cir. 1981); Davis v. Parratt, 608 F.2d 717, 718 (8th Cir. 1979); Owens-El v. Robinson, 498 F. Supp. 877, 878-80 (W.D. Pa. 1980), aff'd, 694 F.2d 941 (3d Cir. 1982); Rheuark v. Shaw, 477 F. Supp. 897, 928 (N.D. Tex. 1979). The court finds the statutory analysis and reasoning of these cases persuasive, and does not believe that this Circuit's allowance of attorney fees to pro se litigants in FOIA cases changes the analysis, since the intent of Congress and purpose of FOIA and its fee provisions differ significantly from the intent and purposes of §§ 1988 and 2000e-5(k), Cofield, 648 F.2d at 988; Grooms v. Snyder, 474 F. Supp. 380, 383-84 (N.D. Ind. 1979). As both Cofield and Grooms point out, the attorney fee provisions of FOIA were designed, at least in part, to penalize the government for unreasonable withholdings; hence award of fees to pro se litigants is appropriate to accomplish this purpose. However, no such punitive purpose is intended to be served by civil rights attorney fee statutes. As both the legislative history and cases that have interpreted these statutes make ...