F. Principles Applicable to All Privacy Act Civil Actions
1. Attorney Fees and Costs
In amendment lawsuits brought under subsection (g)(1)(A), and access lawsuits brought under subsection (g)(1)(B), attorney fees and costs that are "reasonably incurred" are recoverable, in the court's discretion, if the plaintiff "has substantially prevailed." 5 U.S.C. § 552a(g)(2)(B) (amendment), (g)(3)(B) (access).
In damages lawsuits brought under subsection (g)(1)(C) or subsection (g)(1)(D), "the costs of the action together with reasonable attorney fees as determined by the court" are recoverable by the prevailing plaintiff. 5 U.S.C. § 552a(g)(4)(B). Such an award is not discretionary. See OMB Guidelines, 40 Fed. Reg. 28,948, 28,970 (1975).
comment --The Privacy Act is one of approximately 100 federal statutes containing a "fee-shifting" provision allowing a prevailing plaintiff to recover attorney fees and costs from the government.
The Supreme Court has held that a pro se attorney may not recover attorney fees under the fee-shifting provision of 42 U.S.C. § 1988 (1994 & Supp. III 1997). See Kay v. Ehrler, 499 U.S. 432 (1991). The Court's reasoning in Kay calls into question the propriety of Cazalas v. United States Dep't of Justice, 709 F.2d 1051 (5th Cir. 1983), which addressed the award of attorney fees under the Privacy Act and held that a pro se attorney may recover attorney fees. 709 F.2d at 1052 n.3, 1057.
Although the Supreme Court in Kay did not expressly rule on the issue of the award of attorney fees to nonattorney pro se litigants, the Court recognized that "the Circuits are in agreement . . . that a pro se litigant who is not a lawyer is not entitled to attorney's fees" and was "satisfied that [those cases so holding] were correctly decided." 499 U.S. at 435. Furthermore, the Court's rationale in Kay would seem to preclude an award of fees to any pro se Privacy Act litigant, as the Court observed that "awards of counsel fees to pro se litigants--even if limited to those who are members of the bar--would create a disincentive to employ counsel" and that "[t]he statutory policy of furthering the successful prosecution of meritorious claims is better served by a rule that creates an incentive to retain counsel in every such case." See id. at 438; see also Wilborn v. HHS, No. 91-538, slip op. at 14-16 (D. Or. Mar. 5, 1996) (rejecting argument that rationale in Kay should be construed as applying only to district court stage of litigation; "policy of the Privacy Act . . . would be better served by a rule that creates an incentive to retain counsel at all stages of the litigation, including appeals"), appeal voluntarily dismissed, No. 96-35569 (9th Cir. June 3, 1996).
Indeed, the Court of Appeals for the District of Columbia Circuit granted summary affirmance to a district court decision which held that a "nonattorney pro se litigant cannot recover attorney's fees under the Privacy Act." Sellers v. United States Bureau of Prisons, No. 87-2048, 1993 U.S. Dist. LEXIS 787, at *1 (D.D.C. Jan. 26, 1993), summary affirmance granted, No. 93-5090 (D.C. Cir. July 27, 1993). The district court in Sellers was "persuaded by the Fifth Circuit's opinion in Barrett v. Bureau of Customs, 651 F.2d 1087, 1089 (5th Cir. 1981)," an earlier Privacy Act decision also denying a nonattorney pro se litigant fees, and noted that "[t]he rationale utilized by the Supreme Court in Kay . . . is in accord." Sellers, No. 87-2048, 1993 U.S. Dist. LEXIS 787, at *1 (D.D.C. Jan. 26, 1993); see also Smith v. O'Brien, No. 94-41371, slip op. at 4 (5th Cir. June 19, 1995) (per curiam) (citing Barrett and stating: "Pro se litigants are not entitled to attorney fees under either the FOIA or the Privacy Act unless the litigant is also an attorney."); Westendorf v. IRS, No. 3:92-cv-761WS, 1994 WL 714011, at *2 (S.D. Miss. July 7, 1994) (citing Barrett and holding that nonattorney pro se plaintiff is not entitled to attorney fees), appeal dismissed, No. 94-60503, slip op. at 2-3 (5th Cir. Nov. 17, 1994) (stating that district court's holding is correct under Barrett). The D.C. Circuit has further ruled, however, that a plaintiff's pro se status does not preclude the recovery of fees for "consultations" with outside counsel. Blazy v. Tenet, 194 F.3d 90, 94 (D.C. Cir. 1999); see also id. at 98-99 (Sentelle, J., concurring but "writing separately only to distance [him]self from the majority's determination that a pro se litigant is entitled to recover counsel fees for consultations with attorneys not appearing or connected with appearances in the pro se litigation").
In addition, although under the FOIA it had previously been held that a fee enhancement as compensation for the risk in a contingency fee arrangement might be available in limited circumstances, see, e.g., Weisberg v. United States Dep't of Justice, 848 F.2d 1265, 1272 (D.C. Cir. 1988), the Supreme Court has clarified that such enhancements are not available under statutes authorizing an award of reasonable attorney fees to a prevailing or substantially prevailing party, City of Burlington v. Dague, 505 U.S. 557, 561-66 (1992) (prohibiting contingency enhancement in environmental fee-shifting statutes); see also King v. Palmer, 950 F.2d 771, 775 (D.C. Cir. 1991) (en banc) (pre-City of Burlington case anticipating result later reached by Supreme Court). In light of the Court's further observation that case law "construing what is a 'reasonable' fee applies uniformly to all [federal fee-shifting statutes]," there seems to be little doubt that the same principle also prohibits fee enhancements under the Privacy Act.
Attorney fees are not recoverable for services rendered at the administrative level. See Kennedy v. Andrus, 459 F. Supp. 240, 244 (D.D.C. 1978), aff'd, 612 F.2d 586 (D.C. Cir. 1980) (unpublished table decision).
The D.C. Circuit has held that attorney fees are not available in a subsection (g)(1)(A) amendment case unless the plaintiff has exhausted his administrative remedies. See Haase v. Sessions, 893 F.2d 370, 373-75 (D.C. Cir. 1990).
It has also been held that a plaintiff does not substantially prevail in an access case merely because the agency produced the records in question subsequent to the filing of the lawsuit. See Reinbold v. Evers, 187 F.3d 348, 363 (4th Cir. 1999) (upholding denial of interim fees where plaintiff had "not proved that his lawsuit was a catalyst for the [agency's] action," and evidence showed that delay was caused by staffing shortage); Jacobs v. Reno, No. 3:97-CV-2698-D, 1999 U.S. Dist. LEXIS 3104, at **14-15 (N.D. Tex. Mar. 11, 1999) (denying plaintiff's request for attorney fees and costs, and stating that plaintiff's argument was "too slim a reed on which to rest a § 552a(g)(1)(B) claim, particularly when § 552a(d)(1) imposes no deadline for agency compliance and absent evidence of extended and unjustified delay"), aff'd, 208 F.3d 1006 (5th Cir. 2000) (unpublished table decision).
Subsection (g)(3)(B) is similar to 5 U.S.C. § 552(a)(4)(E), the FOIA's attorney fees provision, and FOIA decisions concerning a plaintiff's eligibility for attorney fees may be consulted in this area. However, the Court of Appeals for the District of Columbia Circuit has expressly ruled that the FOIA's criteria for determining the additional factor of entitlement to attorney fees are inapplicable to a claim for fees under the Privacy Act. Blazy v. Tenet, 194 F.3d at 95-97 ("Even a cursory examination of these factors makes it clear that they have little or no relevance in the context of the Privacy Act."); see also Herring v. VA, No. 94-55955, 1996 WL 32147, at **5-6 (9th Cir. Jan. 26, 1996) (finding plaintiff to be "prevailing party" on access claim for her medical record with no mention or application of FOIA criteria). Nevertheless, two other courts of appeals have held the FOIA's entitlement criteria to be applicable to Privacy Act claims for attorney fees. See Gowan v. United States Dep't of the Air Force, 148 F.3d 1182, 1194-95 (10th Cir.) (applying FOIA's criteria and determining that plaintiff was not entitled to fees because his "suit was for his personal benefit rather than for the benefit of the public interest"), cert. denied, 525 U.S. 1042 (1998); Barrett v. Bureau of Customs, 651 F.2d 1087, 1088 (5th Cir. 1981) (stating that FOIA's guidelines apply to claims for attorney fees under Privacy Act); see also Reinbold v. Evers, 187 F.3d 348, 362 (4th Cir. 1999) (citing Gowan and stating in dicta that if determination is made that plaintiff substantially prevailed, court must evaluate FOIA factors to determine entitlement); Sweatt v. United States Navy, 683 F.2d 420, 423 (D.C. Cir. 1982) (stating in dicta that cases construing attorney fee provision in FOIA are apposite in Privacy Act context). For a discussion of current FOIA decisions, see the section of the "Justice Department Guide to the Freedom of Information Act" entitled "Litigation Considerations, Attorney Fees and Litigation Costs."
Litigation costs (if reasonably incurred) can be recovered by all plaintiffs who substantially prevail. See Parkinson v. Commissioner, No. 87-3219, 1988 WL 12121, at *3 (6th Cir. Feb. 17, 1988); Young v. CIA, No. 91-527-A, slip op. at 2 (E.D. Va. Nov. 30, 1992), aff'd, 1 F.3d 1235 (4th Cir. 1993) (unpublished table decision). Compare Herring v. VA, No. 94-55955, 1996 WL 32147, at **5-6 (9th Cir. Jan. 26, 1996) (although ruling in favor of VA on plaintiff's access claim, nonetheless finding that plaintiff was "a prevailing party with respect to her access claim" because "the VA did not provide her access to all her records until she filed her lawsuit"), with Abernethy v. IRS, 909 F. Supp. 1562, 1567-69 (N.D. Ga. 1995) ("[T]he fact that records were released after the lawsuit was filed, in and of itself, is insufficient to establish Plaintiff's eligibility for an award of attorneys' fees."), aff'd per curiam, No. 95-9489 (11th Cir. Feb. 13, 1997). Further, the D.C. Circuit has held that a pro se plaintiff's claim for litigation costs under the Privacy Act is not limited by 28 U.S.C. § 1920 (governing litigation costs generally). Blazy v. Tenet, 194 F.3d at 94-95 (embracing reasoning of Kuzma v. IRS, 821 F.2d 930 (2d Cir. 1987) (FOIA case)).
"Judgments, costs, and attorney's fees assessed against the United States under [subsection (g) of the Privacy Act] would appear to be payable from the public funds rather than from agency funds." OMB Guidelines, 40 Fed. Reg. 28,948, 28,968 (1975) (citing 28 U.S.C. § 2414 (1994 & Supp. III 1997); 31 U.S.C. § 724a (later replaced during enactment of revised Title 31, now see 31 U.S.C. § 1304 (1994 & Supp. III 1997) (first sentence of former § 724a) and 39 U.S.C. § 409(e) (1994) (last sentence of former § 724a)); and 28 U.S.C. § 1924 (1994)).
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