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JONES v. HODEL

May 9, 1988

David E. Jones, Plaintiff,
v.
Donald P. Hodel, Defendant



The opinion of the court was delivered by: PRATT

 JOHN H. PRATT, UNITED STATES DISTRICT JUDGE

 Plaintiff David Jones filed this pro se action against Donald Hodel, in his official capacity as Secretary of the Interior, on September 8, 1987, seeking to compel agency compliance with employee grievance procedures set forth in the Departmental Manual. Prior to his removal, Jones was a GS-14 employee, occupying the position of Attorney-Advisor, Office of the Solicitor, Division of Surface Mining. Presently before us is plaintiff's application for costs and attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. For the reasons stated below, we find that plaintiff is entitled to costs and attorneys fees in the amount requested.

 I. Background

 On September 18, 1987 plaintiff moved for a preliminary injunction, seeking mandamus compelling the Secretary of the Interior to comply with the Department's grievance procedures. *fn1" On October 29, 1987 we held that mandamus was appropriate because, inter alia, "plaintiff's right to the requested relief [was] clear." Memorandum Order, at 3. We also determined, based upon a review of the traditional equitable principles examined upon application for issuance of a preliminary injunction, that an injunction should issue. Accordingly, we ordered the Secretary of the Interior to, within 10 days of entry of our order, appoint a deciding official at a level higher than the Assistant Secretary of Policy, Budget and Administration to review de novo the grievance examiner's report and recommendations. Id., at 5.

 Defendant subsequently moved for an enlargement of time in which to comply. He requested a lengthy extension. *fn2" We denied this motion, in large part because an extension would have run contrary to our earlier finding that plaintiff would be irreparably harmed if we were to deny his petition for injunctive relief.

 On November 9, 1987 the Secretary of the Interior appointed a new deciding official to review the grievance examiner's report. Once this was done, defendant filed a motion to dismiss this action as moot. Plaintiff opposed. We granted the motion on January 12, 1988.

 II. Discussion

 Plaintiff now seeks attorney's fees and costs *fn3" under the EAJA, 28 U.S.C. § 2412. The attorney fees and expense provision of the EAJA provides in relevant part:

 
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort); including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A).

 The defendant asserts that Jones is ineligible for attorney's fees, because he is a pro se litigant, and the EAJA does not provide for an award of attorney's fees to pro se litigants. In addition, the defendant claims that even assuming arguendo that Jones is eligible to recover costs and attorney's fees under the act, he is not entitled to recovery in this case, because the plaintiff has not prevailed on the merits and the government's position was substantially justified. Plaintiff disputes these contentions.

 A. Pro se litigants

 The question whether a pro se litigant is entitled to recovery under the Equal Access to Justice Act has not previously been addressed by this Circuit. Entitlement under similar attorneys fee provisions have been the subject of several recent cases, however. Attorney's fees have been awarded to pro se litigants in Freedom of Information Act (FOIA) cases pursuant to the fee-shifting provisions in that statute. Cox v. United States Department of Justice, 195 U.S. App. D.C. 189, 601 F.2d 1, 5-6 (D.C. Cir. 1979). See also Cuneo v. Rumsfeld, 180 U.S. App. D.C. 184, 553 F.2d 1360 (D.C. Cir. 1977). By contrast, pro se litigants have been found not to be entitled to attorney's fees under 42 U.S.C. § 1988, and by implication under 42 U.S.C. § 2000e-5(k). Lawrence v. Staats, 586 F. Supp. 1375 (D.D.C 1984). After careful review of the applicable attorney fee statute and the relevant case law, we conclude that plaintiff is entitled to receive an attorney's fee award under EAJA because he is an attorney, despite his pro se litigant status.

 Our interpretation of the statute must begin with the language of the provision itself. Consumer Product Safety Commission v. GTE Sylvania Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980). "Fees", other than expert witness fees, are expressly defined in the statute as "reasonable attorney fees." This choice of terminology, standing alone, has led some courts to conclude that Congress did not intend for non-attorney pro se litigants to recover under this provision. See Merrell v. Block, 809 F.2d 639 (9th Cir. 1987); Crooker v. Environmental Protection Agency, 763 F.2d 16 (1st Cir. 1985). In Cox, however, the Court of Appeals for the District of Columbia indicated that ...


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