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Merrell v. Block

Citation: 17 ELR 20321
No. No. 83-4258, 809 F.2d 639/25 ERC 1769/(9th Cir., 02/05/1987) Denial of attorneys fees aff'd, denial of litigation expenses rev'd

The court rules that the Equal Access to Justice Act (EAJA) does not authorize the award of attorneys fees to a pro se litigant, but does authorize the award of litigation expenses. The court holds that EAJA's definition of fees, 28 U.S.C. § 2412, requires that an attorney have been retained. Section 2412(d) (2) (A) specifically defines fees as "reasonable attorney fees." Moreover, EAJA's purpose of removing the obstacle of litigation expenses to allow litigants to challenge unreasonable government action is not furthered by an award of fees to a pro se litigant. On the other hand, litigation expenses such as expert witness expenses and costs of studies and reports are recoverable, because these can be expected to be the same whether or not the litigant is acting pro se. The court also holds that plaintiff is not entitled to attorneys fees under Federal Rule of Civil Procedure (FRCP) 37(d). Although FRCP 37(d) allows a court to require a party failing to respond to discovery requests to pay the other party's fees, the provision is only applicable as an alternative to an order compelling production of the requested documents. In the case at bar, the district court held that plaintiff's discovery motion was moot since it had granted summary judgment on the merits in his favor; the court, therefore, never contemplated issuing a production order.

[The prior opinion withdrawn by this opinion appears at 16 ELR 20868. The district court opinion is published at 14 ELR 20304. Decisions from the underlying case appear at 14 ELR 20225, 20241, and 15 ELR 20035.]

Counsel for Plaintiff-Appellant
Michael Axline
Pacific Northwest Resources Clinic
Univ. of Oregon Law Center, Eugene OR 94703
(503) 686-3823

Counsel for Defendants-Appellees
Albert M. Ferlo Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2774

Before Browning and Alarcon, JJ.