ELR Citation: ELR 20868
No(s). 83-4258 (9th Cir. Aug 15, 1986)

The court rules that the Equal Access to Justice Act (EAJA) does not authorize an award of fees to a pro se litigant. 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 and expenses to be "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. The court also holds that plaintiff is not entitled to fees and expenses 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 expenses, the provision in 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 district court opinion is published at 14 ELR 20304. Decisions from the underlying case appear at 14 ELR 20225 and 15 ELR 20035.]

Counsel for Plaintiff-Appellant
Michael D. Axline
Pacific Northwest Resources Clinic
University of Oregon Law Ctr., 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.