Merrell v. Block

No. 81-6138-F (D. Or. September 13, 1983)

The court holds that plaintiffs are not eligible for an award of attorneys fees under the Equal Access to Justice Act (EAJA) because the Act does not allow fees to pro se litigants and alternatively, the government's position was substantially justified. The court rules that the EAJA contains no express authorization of attorneys fees to pro se litigants and the government has not made itself liable by waiving its sovereign immunity. It also holds that the government was substantially justified in taking the position that the challenged regulations allowed a worst case analysis to be based on probable rather than possible effects. Finally, the court holds that plaintiffs cannot recover costs for their pleading, motions, and other incidental expenses.

Counsel are listed at 14 ELR 20225.

[14 ELR 20304]

Belloni, J.:

Plaintiff Merrell has moved for an award of fees and other expenses pursuant to 28 U.S.C. § 2412 (#143). His motion for default on this issue (#149) has been re-framed as an objection to the government's untimely response (see Reply Brief, # 154, p. 1).

Plaintiff has appeared pro se on behalf of himself and the other plaintiffs throughout this litigation. He has submitted a Statement of Fees and Other Expenses claiming $101,627.50 in personal fees and $2,502.33 in other expenses. The government objects to the award of personal fees but has not responded to plaintiff's request for other expenses.

I. Award of Personal Fees

The Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, does not authorize attorney fees to pro se litigants. Although an award of personal fees has not been addressed under the Equal Access to Justice Act, similar statutes have been construed to exclude an award of attorney fees to a non-attorney. See Cunningham v. FBI, 664 F.2d 383 (3d Cir. 1981); Davis v. Parratt, 608 F.2d 717 (8th Cir. 1979). The federal government must expressly waive its sovereign immunity to be liable to such fees, and it has not done so.

Furthermore, I find that the government was substantially justified in its conduct. The EAJA provides that a prevailing party may recover attorney fees and other costs "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). As in Southern Oregon Citizens Against Toxic Sprays v. Watt, 556 F. Supp. 155 [13 ELR 20384] (D. Or. 1983), the federal regulation at issue is convoluted and supported by minimal case law. And, as in the previous case, plaintiffs prevailed on only one issue, namely, that the government perpared a "worse case analysis" on probable effects when it should have based the analysis on possible effects. I agree with Judge Frye that the government was substantially justified in its interpretation of the regulation and its defense of that interpretation. Merely because defendants lost their point does not make their conduct unreasonable. The motion for an award of personal fees is denied.

II. Award of Costs

Included in plaintiff's Statement of Fees and Other Expenses are the following items:

Cost of copies 3,468 pages X 500> = $1734.00

Telephone expense 583.58

Transcripts 143.25

Court records 41.50

$2,502.33

The heading to the statement notes that the copying charge includes "necessary postage, binding, collation, travel, and other related expenses." The copies themselves are the copies of pleadings, motions, documentary exhibits, and the like. Such expenses are not recoverable.

As stated in 6 MOORE'S FEDERAL PRACTICE P54.70[1], p. 1301-02 (1982):

Costs will normally include the court fees, which the party has paid, and certain other expense items. But costs and expenses are far from synonymous terms, since many items of legitimate expense are not allowable as costs . . . . [Not recoverable] is most of the expense of preparing a party's case for trial, such as the investigation and marshaling of the facts for use at the trial. Often, too, a party is unable to recover all the expenses which he incurs for travel and subsistence of his witnesses . . . . [and even] the expense of models, maps, exhibits, movies, tests, and transcripts, although actually used at trial, may not always be recoverable.

Plaintiff is not entitled to recover the costs of his pleadings and motions. Allowable costs for copies are restricted to those papers "necessarily obtained for use in the case," i.e., depositions and similar evidentiary material. 28 U.S.C. § 1920(j). Travel and telephone expense are not taxable costs when they relate to the party's own costs in prosecuting his case, although they might be recoverable if part of attorney's fees or allowable witness fees. Neither circumstance apparently applies here. Even transcripts and "court documents" are not taxable unless they are "necessarily obtained." 28 U.S.C. § 1920(2). Plaintiff has not made any showing that the transcripts and "court documents" on his statement were necessarily obtained. I find, therefore, that plaintiff's application for these costs should also be denied.

Plaintiff's application for fees and other expenses (#143) is DENIED. Plaintiff's motion for default, which he has re-styled as an objection to the government's response (#149) is also DENIED.