FALCONE
v.
INTERNAL REVENUE SERVICE
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Justice White,
dissenting.
Petitioner, a tax attorney, requested information from the Internal Revenue Service under the Freedom of Information Act (FOIA), 5 U. S. C. § 552. When the IRS denied the request, petitioner filed an action in Federal District Court under 5 U. S. C. § 552(a)(4)(B). The District Court ordered that certain requested documents be released, and the subsequent appeal was dismissed at the IRS’s request.
Petitioner then filed a motion for attorney’s fees under 5 U. S. C. § 552(a)(4)(E), which provides for an award of “reasonable attorney fees” to a plaintiff who has “substantially prevailed” in an FOIA case. The District Court denied the motion, finding that although petitioner had prevailed, the IRS had not acted unreasonably in refusing to release the documents. 535 F. Supp. 1313 (ED Mich. 1982). The Court of Appeals for the Sixth Circuit affirmed that ruling but on a different ground, concluding that § 552(a)(4)(E) does not authorize an attorney’s fees award for pro se attorney plaintiffs. 714 F. 2d 646 (1983).
Most Courts of Appeals, including the Court of Appeals for the Sixth Circuit, have concluded that a nonattorney plaintiff proceeding pro se is not entitled to recover attorney’s fees under § 552(a)(4)(E) or similar attorney’s fees provisions. See, e. g., Wolfel v. United States, 711 F. 2d 66, 68 (CA6 1983); Clarkson v. IRS, 678 F. 2d 1368, 1371 (CA11 1982); Cunningham v. FBI, 664 F. 2d 383, 388 (CA3 1981); Barrett v. Bureau of Customs, 651 F. 2d 1087, 1090 (CA5 1981), cert. denied, 455 U. S. 950 (1982); Crooker v. United States Department of Justice, 632 F. 2d 916 (CA1 1980); Burke v. United States Department of Justice, 559 F. 2d 1182 (CA10 1977), aff’g 432 F. Supp. 251 (Kan. 1976); but see Cox v. United States Department of Justice, 195 U.
S. App.
D. C. 189, 193-194, 601 F. 2d 1, 5-6 (1979).
However, the Court of Appeals for the Fifth Circuit has held that, unlike their nonattorney counterparts, FOIA plaintiffs who are attorneys are not precluded from recovering attorney’s fees by virtue of their pro se status. Cazalas v. United States Department of Justice, 709 F. 2d 1051, 1055-1057 (1983). The decision of the Court of Appeals in this case is in direct conflict with that holding. I would grant the petition for certiorari in order to resolve the conflict.
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KAY v. Ehrler, 499 U.S. 432 (U.S. 1991)…District Court, and prevailed.2 This time, however, he requested a fee award under 42 U. S. C. § 1988.3 The District Court denied petitioner’s request for attorney’s fees under § 1988 based on Falcone v. IRS, 714 F. 2d 646 (CA6 1983), cert. denied, 466 U. S. 908 (1984).4 App. [*435] to Pet. for Cert. 14a. The United States Court of Appeals for the Sixth Circuit affirmed. 900 F. 2d 967 (1990). The majority read the language of the statute as assuming the existence of “a paying relationship between an attorne…
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Duncan v. Poythress, 777 F.2d 1508 (11th Cir. 1985)…ey pro se plaintiff not entitled to fees).7 Circuit courts are divided as to whether attorney pro se litigants are entitled to fees in contexts other than section 1988. Falcone v. Internal Revenue Service, 714 F. 2d 646 (6th Cir.1983), cert. denied, 466 U.S. 908, 104 S.Ct. 1689, 80 L.Ed.2d 162 (1984) (attorney-litigant in Freedom of Information Act (FOIA) suit denied fees); Cazalas v. United States Department of Justice, 709 F. 2d 1051 (5th Cir.1983) (attorney-litigant entitled to fees in FOIA case); White…
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Aronson v. United States Dep't OF Hous. & Urban Dev., 866 F.2d 1 (1st Cir. 1989)…33 (1987). As far as we can determine, only three circuits have considered the question of whether lawyers acting pro se in FOIA cases should be awarded attorney fees for their time. In Falcone v. I.R.S., 714 F. 2d 646 (6th Cir.1983), cert. denied, 466 U.S. 908, 104 S.Ct. 1689, 80 L.Ed.2d 162 (1984), the court held “that the same reasons which led us, and the majority of the other circuits, to deny attorney’s fees to pro se non-lawyer FOIA plaintiffs apply with equal validity to pro se attorney plaintiffs.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- COX v. United States Dep't of Just., 601 F.2d 1 (D.C. Cir. 1979)
- Henrique v. United States Marshal, 455 U.S. 950 (U.S. 1982)
- Clarkson v. Internal Revenue Serv. & John Henderson, 678 F.2d 1368 (11th Cir. 1982)
- Crooker v. United States Dep't OF Just., 632 F.2d 916 (1st Cir. 1980)
- Barrett v. Bureau OF Customs & Dep't of the Treas., 651 F.2d 1087 (5th Cir. 1981)
- Scull v. United States, 455 U.S. 950 (U.S. 1982)
- Cazalas v. United States Dep't OF Just., 709 F.2d 1051 (5th Cir. 1983)
- Falcone v. Internal Revenue Serv., 714 F.2d 646 (6th Cir. 1983)
- Burke v. United States Dep't OF Just. & Fed. Bureau of Investigation, 559 F.2d 1182 (10th Cir. 1977)
- Cunningham v. Fed. Bureau OF Investigation, 664 F.2d 383 (3d Cir. 1981)