Pro Se Litigation and The Costs of Access To Justice WILLIAM MITCHELL LAW REVIEW 2012

PUBLISHED by Stan J.
Caterbone, Pro Se and THE ADVANCED MEDIA GROUP
St. John's Law Review

Volume 55
Article 4
Issue 3 Volume 55, Spring 1981, Number 3
July 2012
Pro Se Litigant's Eligibility for Attorney Fees Under

FOIA: Crooker v. United States Department of
Justice
Lyn Batzar Boland
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Recommended Citation
Boland, Lyn Batzar (2012) "Pro Se Litigant's Eligibility for Attorney Fees Under FOIA: Crooker v. United States Department of
Justice," St. John's Law Review: Vol. 55: Iss. 3, Article 4.
Available at: http://scholarship.law.stjohns.edu/lawreview/vol55/iss3/4
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PRO SE LITIGANTS - CASE LAW Page No. 1 of 45 Friday September 1, 2017

PUBLISHED by Stan J. Caterbone, Pro Se and THE ADVANCED MEDIA GROUP
COMMENTS
PRO SE LITIGANT'S ELIGIBILITY FOR

ATTORNEY FEES UNDER FOIA: CROOKER
v. UNITED STATES DEPARTMENT OF
JUSTICE
The traditional American rule regarding attorney fees requires
that, absent an equitable1 or statutory2 exception, each party liti-
The courts have developed three major equitable exceptions to the general rule
against fee shifting: the "bad faith" theory, the "common benefit" theory, and the "private
attorney general" theory. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240,
275 (1975) (Marshall, J., dissenting). Whether the private attorney general theory remains a
basis for an award of attorney fees is doubtful. See note 2 infra. For a discussion of the rise
and fall of the private attorney general theory, see Hermann & Hoffmann, FinancingPublic
Interest Litigation in State Court: A Proposalfor Legislative Action, 63 CORNELL L. REV.
173, 175-83 (1978).
The more traditional theories of "bad faith" and "common benefit" derived from the
equity powers of the English Court of Chancery. See Guardian Trust Co. v. Kansas City S.
Ry., 28 F.2d 233, 240-41 (8th Cir. 1928), rev'd on other grounds, 281 U.S. 1 (1930). Under
the bad faith exception, which was originally recognized in the United States in the case of
Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 166-67 (1939), an award of attorney fees is
justified when a party engages in a continual pattern of evasion and obstruction, Fairley v.
Patterson, 493 F.2d 598, 606 (5th Cir. 1974); Bell v. School Bd., 321 F.2d 494, 500 (4th Cir.
1963) (en banc), or where the plaintiff was forced into unnecessary litigation, even if the
defendant ultimately prevailed, McEnteggart v. Cataldo, 451 F.2d 1109, 1112 (1st Cir. 1971),
cert. denied, 408 U.S. 943 (1972); Marston v. American Employers Ins. Co., 439 F.2d 1035,
1042 (1st Cir. 1971).
The "common fund" theory is based on the premise that a single party should not be
charged with the entire cost of attorney fees when his legal victory benefits an entire class.
Hall v. Cole, 412 U.S. 1, 5-9 (1973); Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 167 (1939).
Although counsel fees generally are drawn from the funds recovered in the litigation, fees
may be awarded where no actual monetary fund has been created. Mills v. Electric Auto-
Lite Co., 396 U.S. 375, 392 (1970). For examples of other nonstatutory exceptions to the
American rule, notably contractual provisions for attorney fees, see Comment, Theories of
Recovering Attorney's Fees: Exceptions to the American Rule, 47 U. Mo. KAN. CITY L. REv.
566, 567-68 (1979).
' The federal statutory exceptions to the rule that each litigant must pay his own attor-
ney are numerous. E.g., Securities Act of 1933 11, 15 U.S.C. 77k(e) (1976); Copyright Act
101, 17 U.S.C. 116 (1976); Servicemen's Group Life Insurance Act, 38 U.S.C. 784(g)
(1976). For a list of 90 statutory fee award provisions, see SUBCOMMrrEE ON CONSTITUTIONAL
RIGHTS OF THE SENATE JUDICIARY CoMmITTEE, CivIL RIGHTS ATroRNEY's FEES AwARDs ACT OF

1981] PRO SE LITIGANTS
gant pay his own attorney. 3 One such statutory exception is con-
tained in the Freedom of Information Act (FOIA),' which permits
1976-SouRcE BOOK: LEGISLATr HMsTORY, TExTs AND oTHmRDoculszaS (1976). The stat-
utes vary in the degree of discretion which the judiciary may exercise in making fee awards
and in the nature of the eligible parties. See generally Note, The Civil Rights Attorney's
Fees Awards Act of 1976, 52 ST. JoHN's L. Rv. 562, 562 n.4 (1978). Statutory exceptions
also arise at the state level. E.g., ALASKA STAT. 09.60.010 (1978); ALAsKA STAT.
09.60.015(a) (1973); NEv. REv. STAT. 18.010 (1977). For a discussion of state attorney fee
statutes based on "bad faith conduct," see Nussbaum, Attorney's Fees in Public Interest
Litigation, 48 N.Y.U.L. REv. 301, 336 & n.154 (1973).
The statutory exceptions have assumed greater importance in light of the Supreme
Court's decision in Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240 (1975). In
Alyeska, the Supreme Court severely curtailed use of the "private attorney general" doc-
trine as a basis for an award of attorney fees. Id. at 269. Confirming prior law to the effect
that "bad faith" and "common fund" are proper equitable bases for fee awards, id. at 257-
59, the Court stated that courts must find justification for any other award of fees in a
specific statutory authorization. Id. at 262. The Court reasoned that it would be a usurpa-
tion of legislative power to base a fee award on judicial estimates of the importance of the
policy at issue. Id. at 269.
3 Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975); Hall v. Cole,
412 U.S. 1, 4 (1973). The American rule differs from the practice in some other nations.
Comment, Court Awarded Attorneys' Fees and Equal Access to the Courts, 122 U. PA. L.
Ray. 636, 641 (1974). For example, in Great Britain, attorney fees are awarded to the pre-
vailing party. Id. The origin of the American rule has been attributed to a general distrust
of lawyers, id., to distinctively American traditions of individualism, Note, Attorney's Fees:
Where Shall the Ultimate Burden Lie?, 20 VmD. L. Rav. 1216, 1220-21 (1967), and to the
failure of statutory attorney fees to keep up with the rising costs of living. Ehrenzweig,
Reimbursement of Counsel Fees and the Great Society, 54 CALn. L. Ray. 792, 798-99
(1966). For a brief discussion of the British rule, see Fleischmann Distilling Corp. v. Maier
Brewing Co., 386 U.S. 714, 717 (1966).
The American rule against "fee shifting" has been severely criticized, however, prima-
rily because it lacks the deterrent qualities inherent in fee shifting and, therefore, may en-
courage groundless litigation. See Kuenzel, The Attorney's Fee: Why Not a Cost of Litiga-
tion?, 49 IowA L. Rv. 75, 78 (1963). It also has been contended that the plaintiff is not truly
made whole when he still must pay his attorney fee. Ehrenzweig, Reimbursement of Counsel
Fees and the Great Society, 54 CALIF. L. REv. 792, 792 (1966). For a discussion of the need
to reform the American rule, see Kuenzel, supra,at 78; McLaughlin, The Recovery of Attor-
ney's Fees: A New Method of Financing Legal Services, 40 FoRDHAM L. Ray. 761 (1972);
Stoebuck, Counsel Fees Included in Costs: A Logical Development, 38 U. COLO. L. Rev. 202
(1966). Proponents of the rule argue, however, that a contrary rule unfairly penalizes a liti-
gant who brings a claim in good faith and discourages poorer litigants from pressing claims.
Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967); Oelrichs v.
Spain, 82 U.S. (15 Wall.) 211, 231 (1872); see Comment, Theories of Recovering Attorneys'
Fees: Exceptions to the American Rule, 47 U. Mo. KAN. CrrY L. Rzv. 566, 590-91 (1979).
Nevertheless, the continuing vitality of the American rule is evident. See Farmer v. Arabian
Am. Oil Co., 379 U.S. 227, 235 (1964).
4 5 U.S.C. 552 (1976 & Supp. I 1979). The premise underlying the FOIA is that full
public disclosure ensures decisionmaking by an informed electorate. H.R. RE'. No. 1497,
89th Cong., 2d Sess. 12, reprinted in [1966] U.S. CODE CONG. & AD. NEws 2418, 2429. As
such, it is one of a series of laws relating to disclosure. See, e.g., Privacy Act of 1974, 5
U.S.C. 552a (1976); Government in the Sunshine Act, 5 U.S.C. 552b (1976); Federal

ST. JOHN'S LAW REVIEW [Vol. 55:520
a court to award "reasonable attorney fees and litigation costs rea-

sonably incurred." 5 A prerequisite to an award of attorney fees
Advisory Committee Act, 5 U.S.C. app. 1 (1976). The policy favoring government disclo-
sure is not, however, without exceptions. Congress specifically excluded nine categories of
information from the FOIA disclosure requirements. See 5 U.S.C. 552(b) (1976 & Supp.
III 1979). Exempted materials may include national defense secrets, internal agency rules,
trade secrets, and medical files. Id. Not all exempt documents, however, must be withheld.
Even clearly exempt documents must be released unless the agency determines that such
release would be harmful "to the public interest." Letter from Attorney General Griffin Bell
to heads of all Federal Departments and Agencies (May 5, 1977), reprinted in [1979] GOV'T
DISCLOSURE (P-H) V300,775. For example, law enforcement material must be released unless
public disclosure would decrease the efficacy of specific crime detection techniques. Attor-
ney General's Memorandum on the 1974 Amendments to the Freedom of Information Act
(February 1975), reprinted in [1979] Gov'T DISCLOSURE (P-H) 1 300,701.
The 1974 Amendments to the FOIA, Pub. L. No. 93-502, 88 Stat. 1561 (codified at 5
U.S.C. 552 (1976)), strengthened administrative procedures and penalties in order to effec-
tuate the general aims of the Act and to encourage prompt and complete government re-
sponses to requests for information. For example, a strict timetable was enacted whereby
agencies must reply to an information request within 10 days of receipt, with either a release
of the information or a denial accompanied by a notice of the appeal process. 5 U.S.C.
552(a)(6)(A)(i) (1976). Appeals must be decided within 20 days, id. 552(a)(6)(A)(ii), with
one discretionary 10 day extension at either the initial or appeal stage. Id. 552(a)(6)(B).
An agency's failure to comply with the appropriate deadline entitles the complainant to file
suit immediately to force disclosure. Id. 552(a)(6)(C). Also, penalties were imposed for
violations of the Act. Agency employees who withhold information "arbitrarily or capri-
ciously" are subject to disciplinary action. Id. 552(a)(4)(F). See generally Vaughn, The
Sanctions Provision of the Freedom of Information Act Amendments, 25 Am. U.L. REv. 7
(1975).
5 5 U.S.C. 552(a)(4)(E) (1976 & Supp. III 1979). What amount will be deemed a "rea-
sonable" attorney fee is determined on a case-by-case basis by evaluating various factors.
See, e.g., Evans v. Sheraton Park Hotel, 503 F.2d 177, 187-88 (D.C. Cir. 1974). The Ameri-
can Bar Association has suggested eight factors upon which the amount of a fee may be
based:
(1) The time and labor required, the novelty and difficulty of the questions in-
volved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the
services.
(8) Whether the fee is fixed or contingent.
ABA CODE OF PROFESSIONAL REsPONSIBIIrry, DR 2-106(B) (1976). These criteria have been
adopted by the First Circuit, see King v. Greenblatt, 560 F.2d 1024, 1027 (1st Cir. 1977),
cert. denied, 438 U.S. 916 (1978), and similar criteria have been used in other circuits, see
Finney v. Hutto, 548 F.2d 740, 742 (8th Cir. 1977), afl'd, 437 U.S. 678 (1978); Kerr v. Screen
Extra's Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976); John-
son v. Georgia Highway Express, Inc., 488 F.2d 714, 717-20 (5th Cir. 1974).
Despite the language of the statute, attorney fees do not necessarily have to be "in-

under the FOIA is that the plaintiff must have "substantially pre-
vailed."' Once this threshold determination has been made, the
court then balances various factors in order to determine whether
an award is appropriate in the particular case.7 Conflict has arisen,
curred" in order to be recoverable. Courts have approved awards of attorney fees in cases
involving legal service organizations where plaintiffs incur no actual fee, Palmigiano v. Gar-
rahy, 616 F.2d 598, 601 (1st Cir.), cert. denied, 101 S. Ct. 115 (1980); Mid-Hudson Legal
Serv., Inc. v. G & U, Inc., 578 F.2d 34, 37 (2d Cir. 1978); Fairley v. Patterson, 493 F.2d 598,
606-07 (5th Cir. 1974), and where legal expenses were covered by insurance, Ellis v. Cassidy,
625 F.2d 227, 230 (9th Cir. 1980).
6 5 U.S.C. 552(a)(4)(E) (1976). A plaintiff may substantially prevail by showing that
the suit was necessary for and causally related to disclosure. Vermont Low Income Advoc.
Council, Inc. v. Usery, 546 F.2d 509, 513 (2d Cir. 1976). A final judgment, however, is not a
prerequisite to an award of attorney fees. Nationwide Bldg. Maint., Inc. v. Sampson, 559
F.2d 704, 709 (D.C. Cir. 1977); Cuneo v. Rumsfeld, 553 F.2d 1360, 1364-65 (D.C. Cir. 1977);
accord, Vermont Low Income Advoc. Council, Inc. v. Usery, 546 F.2d 509, 513 (2d Cir.
1976); Biberman v. FBI, No. 79-2313 (S.D.N.Y. Sept. 25, 1980) (authorizing award of in-
terim attorney fees when appropriate). Nor must all the requested documents be released.
Vaughn v. Rosen, 383 F. Supp. 1049 (D.D.C. 1974), af'd, 523 F.2d 1136 (D.C. Cir. 1975). In
addition, the complainant may be deemed to have substantially prevailed even if the litiga-
tion terminated due to the government's acceding to disclosure of the information re-
quested. Kaye v. Burns, 411 F. Supp. 897, 902 (S.D.N.Y. 1976). This prevents the govern-
ment from averting an attorney fee award by releasing the information subsequent to
commencement of the suit. Vermont Low Income Advoc. Council, Inc. v. Usery, 546 F.2d
509, 513 (2d Cir. 1976).
7 The judicial award of attorney fees is discretionary. 5 U.S.C. 552(a)(4)(E) (1976).
The Senate, however, had proposed that the following factors be considered in making such
awards: the benefit to the public from the case; the commercial benefit to the complainant;
the nature of the complainant's interest in the records; and whether the government's with-
holding of information had a reasonable basis in law. S. REP. No. 854, 93d Cong., 2d Sess. 19
(1974), reprinted in HousE COMM. ON GOV'T OPMAxxONS & SENATE COMM. ON THE JUDICIARY,
LEGISLATIVE HISTORY OF THE FREEDOM OF INFORMATION AcT AMENDMENTS OF 1974, pt. 1, at
171 (Joint Comm. Print 1975). The Senate report also gave examples illustrating eqch of the
four factors:
Under the first criterion a court would ordinarily award fees, for example, where a
newsman was seeking information to be used in a publication or a public interest
group was seeking information to further a project benefitting the general public,
but it would not award fees if a business was using the FOIA to obtain data relat-
ing to a competitor or as a substitute for discovery in private litigation with the
government.
Under the second criterion a court would usually allow recovery of fees where
the complainant was indigent or a nonprofit public interest group versus [sic] but
would not if it was a large corporate interest (or a representative of such an inter-
est). For the purposes of applying this criterion, news interests should not be con-
sidered commercial interests.
Under the third criterion a court would generally award fees if the complain-
ant's interest in the information sought was scholarly or journalistic or public-
interest oriented, but would not do so if his interest was of a frivolous or purely
commercial nature.
Finally, under the fourth criterion a court would not award fees where the
government's withholding had a colorable basis in law but would ordinarily award

however, as to whether the FOIA authorizes an award of attorney

fees to an otherwise qualified plaintiff who litigates pro se.8 Re-
cently, in Crooker v. United States Department of Justice,9 the
First Circuit held that attorney fees are not recoverable under the
FOIA by a prisoner appearing pro se.10
Michael Crooker, a federal prisoner, wrote to the Department
of Justice and requested a copy of specific materials describing the
role of the federal prosecutor. I" After receiving no reply within the
them if the withholding appeared to be merely to avoid embarrassment or to frus-

trate the requester. Whether the case involved a return to court by the same com-
plainant seeking the same or similar documents a second time should be consid-
ered by the Court under this criterion.
Id. These criteria were omitted from the final version of the bill, however, because in addi-
tion to the belief that they were unnecessary, it was feared that "a statement of the criteria
[might] be too delimiting." S. CONG. REP. No. 1200, 93d Cong., 2d Sess. 10 reprinted in
[1974] U.S. CODE CONG. & An. NEws 6267, 6288. Although courts are not required to employ
these standards, they have been adopted widely as a framework within which to consider
the prevailing party's claim for attorney fees. See Blue v. Bureau of Prisons, 570 F.2d 529
(5th Cir. 1978); Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C. Cir. 1977); Vermont Low Income
Advoc. Council, Inc. v. Usery, 546 F.2d 509 (2d Cir. 1976); American Fed'n of Gov't Employ-
ees v. Rosen, 418 F. Supp. 205 (N.D. IMI.1976).
8 Compare Crooker v. Department of the Treasury, 634 F.2d 48 (2d Cir. 1980) and
Crooker v. Department of Justice, 632 F.2d 916 (1st Cir. 1980) with Crooker v. Department
of Treasury, No. 80-0081 (D.C. Cir. Oct. 23, 1980) and Marschner v. Department of State,
470 F. Supp. 196 (D. Conn. 1979).
632 F.2d 916 (1st Cir. 1980).
10 Id. at 921-22. A pro se litigant is one who appears on his own behalf without an
attorney. Almost 20% of the annual federal caseload is comprised of cases involving pro se
litigants, approximately 95% of whom are state and federal prisoners. Zeigler & Hermann,
The Invisible Litigant: An Inside View of Pro Se Actions in the FederalCourts, 47 N.Y.U.
L. REv. 157, 159-60 (1972). A party may choose to appear pro se for a variety of reasons. See
Note, The Jailed Pro Se Defendant and the Right to Preparea Defense, 86 YALE L.J. 292,
293 n.7 (1976). The underlying rationale for official recognition of pro se appearances, how-
ever, lies in the need to provide indigent persons with access to the courts. See Note, Litiga-
tion Costs: The Hidden Barrierto the Indigent, 56 GEo. L.J. 516, 525 (1968). In fact, most
pro se litigants are indigent and file informa pauperis,pursuant to 28 U.S.C. 1915 (1976).
Zeigler & Hermann, supra, at 187. See also Turner, When PrisonersSue: A Study of Pris-
oner Section 1983 Suits in the Federal Courts, 92 HARv. L. Rv. 610, 617-21 (1979). Al-
though the indigent may be assigned counsel, he may prefer to appear pro se because he is
convinced that an assigned attorney would not make a sufficient effort on his behalf. Note,
Legal Services for PrisonInmates, 1967 Wis. L. RFv. 514, 526. In addition, pro se plaintiffs
may be litigating issues which are unattractive or "beyond the realm" of the average attor-
ney. See United States v. Satan & His Staff, 54 F.R.D. 282 (W.D. Pa. 1971). The court's
dealings with inadequately prepared and agitated pro se litigants are frequently frustrating.
Doyle, The Courts Responsibility to the Inmate Litigant, 56 JuDicATURE 406, 406 (1973).
Consequently, commentators have suggested modifications directed at weeding out frivolous
pro se claims while preserving legitimate suits. See, e.g., Zeigler & Hermann, supra, at 205-
19.
11 632 F.2d at 917.

period prescribed by law, Crooker filed a FOIA suit to force disclo-

sure. 12 Subsequently, two documents were tendered by the Depart-
ment of Justice. Satisfied with the receipt of these materials,
Crooker moved for a dismissal of the action and an award of attor-
ney fees.13 Although the motion to dismiss was granted, the district
court denied the motion for attorney fees, holding that no award
was warranted since Crooker had not "substantially prevailed" on
his claim and had appeared pro se. 1
On appeal the First Circuit affirmed the denial of attorney
fees, holding that awards of attorney fees to pro se litigants are not
authorized under the FOIA.15 Writing for a unanimous panel,
Judge Bownes initially addressed the requirement that the plain-
tiff substantially prevail and concluded that this requirement had
been met. 6 The court then turned to the question of whether the
12 Id.; see note 4 supra. At approximately the same time that Crooker filed suit, the
United States Attorney's office advised Crooker that it did not have the documents re-
quested. 632 F.2d at 917. After receiving this response Crocker notified the U.S. Attorney
that he had filed suit to compel disclosure. Id. Approximately 6 weeks later, a 42-page pam-
phlet entitled "Material Relating to Prosecutorial Discretion" was released to Crooker. Id. A
second document, specifically relating to prosecution officials in the District of Massachu-
setts, was released and forwarded 6 months after the initial release. Id. The second release
may have been due in part to Crooker's motion requesting a Vaughn-type index. Id. The
Vaughn motion, a crucial discovery tool for the FOIA litigant, asks the court to order a
detailed justification for the denial of disclosure, indexed by cross reference to the docu-
ments. See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S.
977 (1974).
Although previous FOIA actions had been commenced by Crooker in the District of
Columbia, e.g., Crooker v. Bureau of Alcohol, Tobacco and Firearms, 635 F.2d 887 (D.C. Cir.
1980), this action was commenced in the District of Connecticut, which was a proper venue
district under the FOIA. See 5 U.S.C. 552(a)(4)(B) (1976). Crooker may have been influ-
enced by a favorable ruling on pro se fees handed down 2 weeks earlier by the Connecticut
district court. See Marschner v. Department of State, 470 F. Supp. 196 (D. Conn. 1979).
Xl 632 F.2d at 917. Crooker requested $165 in attorney fees. Id.
14 Id. at 918. In denying the motion for attorney's fees, the district court found that the
reasoning in Vermont Low Income Advoc. Council, Inc. v. Usery, 546 F.2d 509 (2d Cir.
1976), was dispositive. 632 F.2d at 917-18 & n.4; see note 16 infra.
15 632 F.2d at 920.
16 Id. at 919. Examining the request-reply pattern, the court employed the guidelines
suggested in Vermont Low Income Advoc. Council, Inc. v. Usery (VLIAC), 546 F.2d 509 (2d
Cir. 1976), and concluded that Crooker had substantially prevailed. 632 F.2d at 919. In
VLIAC, the Second Circuit set forth the following test for determining whether a FOIA
plaintiff had substantially prevailed: "A plaintiff must show at a minimum that [the action
was] necessary and that the action had substantial causative effect on the delivery of the
information." Vermont Low Income Advoc. Council, Inc. v. Usery, 546 F.2d at 513. Judge
Bownes noted that the agency reaction to Crooker's requests was neither timely, 632 F.2d at
918, nor fully responsive, id. at 919. Although the request was not difficult, the government's
reluctant and dilatory compliance differed from the efforts at "amicable resolution" which
distinguished the VLIAC situation. Id. Moreover, the government's failure to demonstrate

FOIA "encompasses an award of attorney fees where no attorney

was involved" and concluded that it does not.17 In reaching its de-
termination, the court rejected any claim that the provision for at-
torney fees was intended either to "reward" a successful litigant or
to "punish" a recalcitrant agency. 18 Rather, Judge Bownes found
that, in permitting the recovery of attorney fees, Congress sought
to provide an economic incentive for the prosecution of claims of
agency abuse. 9 This purpose, the court concluded, was not served
by granting attorney fees where no attorney fees were incurred.2 0
Reasoning that a pro se plaintiff incurs no expense in litigating his
FOIA suit, the court stated that an award of fees would amount to
an impermissible payment for the plaintiff's time and effort. 21 In-
stead of an incentive to pursue his disclosure rights, a recovery of
"fees" not incurred for representation by an attorney would be a
windfall.2 2 Judge Bownes found, moreover, that an award of costs
actually incurred would suffice to remove any economic barriers to
suits by pro se litigants.2 3 Therefore, a recovery confined to litiga-
tion costs would make a pro se FOIA plaintiff whole, without giv-
ing him a windfall2 4
that their subsequent "piecemeal" disclosures were causally unrelated to Crooker's suit re-
quired the conclusion that Crooker had substantially prevailed within the meaning of the
Act. Id.
In FOIA suits, the government has the burden of proof on the issue of whether a with-
holding of records was proper. 5 U.S.C. 552(a)(4)(B) (1976). To meet this burden, they
must prove "in a concrete manner" that the materials requested were exempt. Crooker v.
Department of Justice, 632 F.2d at 919; Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.), cert.
denied, 415 U.S. 977 (1974). Another procedural advantage for a plaintiff seeking informa-
tion is that FOIA cases generally are expedited at every stage of the litigation. 5 U.S.C.
552(a)(4)(D) (1976).
17 632 F.2d at 920-22.
Is Id. at 920; see Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704,711 (D.C. Cir.
1977).
19 632 F.2d at 920. The cost of a simple FOIA suit has been estimated at $1,000. Pro-
ject, Government Information and the Rights of Citizens, 73 MICH. L. Rv. 971, 1133
(1975). More complex suits may generate up to $70,000 in fees. Id. at 1133 n.1018.
20 632 F.2d at 920.
:I Id.
2 Id. at 921 (citing Davis v. Paratt, 608 F.2d 717 (8th Cir. 1979); Hannon v. Security
Nat'l Bank, 537 F.2d 327 (9th Cir. 1976)).

21 632 F.2d at 921. Although the Crooker court's holding extends to all pro se litigants,
the identification of costs as the sole "financial barriers" seems uniquely appropriate to the
prison situation. This reasoning may be inadequate to justify denial of fees to a pro se liti-
gant who forgoes employment income to pursue his case. See note 24 and accompanying
text infra.
24 632 F.2d at 921. Another factor considered by the Crooker court in refusing to award
attorney fees to pro se litigants was the difficulty in calculating the value of a nonlawyer's

In contrast to the First Circuit, the District of Columbia Cir-

cuit has held that pro se prisoner plaintiffs are not ineligible per se
for an award of attorney fees.2 51 Noting that all pro se plaintiffs
function as attorneys, the latter court has refused to disqualify a
litigant from receiving a fee award merely because he had not in-
curred expenses for a lawyer in prosecuting his claim. 26 Rather, it
has determined that a pro se plaintiff who substantially prevails
could recover attorney fees in the district court's discretion.
It is submitted that the District of Columbia Circuit has ex-
pressed the better view on whether a pro se plaintiff may recover
an attorney fee under the FOIA. Provided that the factors favoring
a fee award are present, no compelling reasons exist for denying
attorney fees to pro se litigants. The arguments for denying such
fee awards fail to consider that they may advance the aims of the
FOIA. Rather than imposing a blanket prohibition on attorney fee
awards to pro se litigants, the better view is to allow such awards,
relying on the district court to ferret out non-meritorious claims by
exercising its discretion.
services as an attorney. Id. The court noted that the factors considered in determining a
reasonable amount for attorney fees are "specifically geared toward examining the work of
an attorney." Id. The Crooker court also rejected the contention that the language of the
statute requires the award of attorney fees to pro se FOIA litigants. Id. at 921 & n.7. This
semantic argument was developed in Holly v. Acree, 72 F.R.D. 115, 116 (D.D.C. 1976), aff'd
sub nom. Holly v. Chasen, 569 F.2d 160 (D.C. Cir. 1977). The Holly court stated that "[t]he
phrase 'reasonably incurred' modifies the phrase 'other litigation costs,' not the larger
phrase 'reasonable attorney fees and other litigation costs,'" since the repetition of the word
"reasonable" distinguished "attorney fees" from "other litigation cost." 72 F.R.D. at 116.
Consequently, only costs would have to be actually incurred. Id. Rejecting this argument,
the Crooker court stated that it is "quite clear that a lawyer's charge for his services might
be reasonable while at the same time a client's retention of that lawyer or direction that he
perform particular services in a specific case was unreasonable." 632 F.2d at 921 n.7. Thus,
the court concluded that the "more natural reading" of the provision requires "that attor-
ney fees, like 'other litigation costs,' be actually incurred in order to be compensable." Id.
25 Crooker v. Department of the Treasury, No. 80-1421 (D.C. Cir. Oct. 23, 1980). The
District of Columbia Circuit first enunciated its position in Holly v. Acree, 72 F.R.D. 115,
116 (D.D.C. 1976), aff'd sub nom. Holly v. Chasen, 569 F.2d 160 (D.C. Cir. 1977), wherein it
was held that the language and intentions of the FOIA mandated awards to pro se litigants.
See note 24 supra. The court reaffirmed its position in Cox v. Department of Justice, 601
F.2d 1 (D.C. Cir. 1979) (per curiam), holding that a complainant need not actually incur an
attorney's fee in order to be eligible for an award. Id. at 5-6. The Cox court referred to the
decision in Cuneo v. Rumsfeld, 553 F.2d 1360, 1364-65 (D.C. Cir. 1977), which awarded fees
to an attorney appearing in propriapersona. See 601 F.2d at 5-6.
, Crooker v. Department of the Treasury, No. 80-1421 (D.C. Cir. Oct. 23, 1980).
17 601 F.2d at 6-7. The circuit court remanded the case to the district court to deter-
mine the propriety of awarding attorney fees in the case, and if attorney fees were proper,
the amount. Id.

THE CASE AGAINST ATTORNEY FEES FOR PRO SE FOIA PLAINTIFFS
Although Congress' position on pro se litigants' eligibility for

attorney fee awards under the FOIA is not apparent from either
the statute or its legislative history,"8 it is clear that the courts
were empowered to award attorney fees in order to implement the
overall purposes of the Act. 9 The FOIA embodies a congressional
determination that an informed electorate is essential for the oper-
ation of democratic processes.30 Thus, the FOIA set up a mecha-
nism to promote disclosure of government information.3 1 Later, the
FOIA was amended with the intention of eliminating government
obduracy in compliance.82 Although not precisely punitive in char-
acter, the amendments embody a legislative distaste for govern-
ment foot-dragging and evasion in complying with the Act. 3 The
creation of a right to recover attorney fees was one of several pro-
visions designed to encourage private litigation as a means of dis-
couraging government noncompliance.3 4 The decision to exclude
nonattorneys appearing pro se from eligibility for an award of fees
2 See Crooker v. Department of the Treasury, No. 80-1421 (D.C. Cir. Oct. 23, 1980).
29 S. REP. No. 854, 93d Cong., 2d Sess. 16 (1974); accord, GTE Sylvania, Inc. v. Con-
sumer's Union of United States, Inc., 445 U.S. 375, 387 (1980); Blue v. Bureau of Prisons,
570 F.2d 529, 533 (5th Cir. 1978); Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704,
711 (D.C. Cir. 1977).
10 See note 4 supra.
31 A FOIA request is relatively uncomplicated to make. After ascertaining which agency
holds the desired information, the requester must make a written application which must
comply with that agency's individual regulations, and which must include the following ba-
sic information: (1) identification of the party requesting the information, (2) specific identi-
fication of the material to be released, and (3) an address and phone number where the
requester can be contacted. [1980] Gov'T DISCLOSURE (P-H) 1 10,023-024.
32 The FOIA was enacted in 1964 to supersede the public information section of the
Administrative Procedure Act, ch. 324, 3, 60 Stat. 238 (1946) (current version at 5 U.S.C.
551-554 (1976)). Under prior law, the government could "withhold . . . virtually any
piece of information that [it did] not wish to disclose." S. REP. No. 813, 89th Cong., 1st Seass.
4 (1965); H.R. REP. No. 1497, 89th Cong., 2d Sess. 4, reprintedin [1966] U.S. CODE CONG. &
AD. NEWS 2418, 2421-22. As originally enacted, the FOIA suffered from many of the
problems of the prior laws. See H.R. REP. No. 876, 93d Cong., 2d Sess. 1, reprinted in
[1974] U.S. CODE CONG. & AD. NEWS 6267. Consequently, Congress amended the Act in
1974, strengthening the legislation to encourage private actions to compel compliance. See
Pub. L. No. 93-502, 88 Stat. 1561-64.
13 See GTE Sylvania, Inc. v. Consumers Union of United States, Inc., 445 U.S. 375, 385
(1980) (1974 amendments to FOIA reflect a congressional concern with "needless denials of
information"). See generally Katz, The Games BureaucratsPlay: Hide and Seek Under the
Freedom of Information Act, 48 TEx. L. REv. 1261 (1970); Nader, Freedom from Informa-
tion: The Act and the Agencies, 5 HARv. C.R.-C.L. L. REV. 1 (1970).
", For a discussion of other measures added to FOIA in 1974, see The Freedom of
Information Act Amendments of 1974: An Analysis, 26 SYRACUSE L. REV. 951 (1975).

must be viewed, therefore, as a judicial determination not to en-

courage FOIA suits where a lawyer is not representing the com-
plainant35 While this determination may be supported by a vari-
ety of practical and policy considerations, it is -submitted that
these considerations can be accommodated without sacrificing the
policy reasons favoring the contrary view.
The Fear of Abuse Argument

The judiciary has long been apprehensive about becoming
clogged with a flood of frivolous and burdensome pro se suits.36
Indeed, one federal district court judge has characterized pro se
motions as "disorderly, numerous, repetitious, discursive, and
sometimes mad. ' 37 It is argued, moreover, that the award of attor-
:5See Cox v. Department of Justice, 601 F.2d 1, 6 n.4 (D.C. Cir. 1979). The Cox court
stated that implicit in the congressional emphasis on judicial discretion in attorney fee
awards, was a responsibility to "encourage or discourage" certain kinds of suits. Id.
38Crooker v. Department of the Treasury, 634 F.2d 48, 49 (2d Cir. 1980); Graham v.
Riddle, 554 F.2d 133, 135 (4th Cir. 1977); Carter v. Telectron, 452 F. Supp. 944, 948-49 (S.D.
Tex. 1977). While recognizing the right to appear without counsel, United States v. Mitchell
137 F.2d 1006, 1010 (2d Cir. 1943), the judiciary remains apprehensive about the layman's
ability successfully to represent his own interests, Dioguardi v. Durning, 139 F.2d 774, 775-
76 (2d Cir. 1944). Thus, the attitude of the courts toward the pro se litigant is necessarily
ambivalent. Describing pro se efforts as "inartistic," id. at 775, "inartfully drawn, unclear
and equivocal," Estelle v. Gamble, 429 U.S. 97, 112 (1976), the courts nevertheless attempt
to safeguard the legal rights of the pro se litigant. In Haines v. Kerner, 404 U.S. 519 (1972),
the Supreme Court refused to dismiss a pro se complaint unless it could be said "with assur-
ance" that the plaintiff could not prove his claim. Id. at 520-21. Furthermore, the Court
indicated that pro se pleadings would be judged by "less stringent standards." Id. at 520.
Despite the demonstrations of leniency toward pro se litigation, the Court's emphasis is
clearly on professional legal assistance. Bounds v. Smith, 430 U.S. 817, 831 (1977); The
Bounds majority stated, "[P]ro se petitioners are capable of using law books to file cases
raising claims that are serious and legitimate. . . ." Id. at 826-27. In contrast, the dissent
took the position that "access to a law library will. . . simply result in the filing of plead-
ings heavily loaded with irrelevant legalisms-possessing the veneer but lacking the sub-
stance of professional competence." Id. at 836 (Stewart, J., dissenting).
'7 Becker, Collateral Post Conviction Review of State and Federal Criminal Judg-
ments on Habeas Corpus and Section 2255 Motions-View of a DistrictJudge, 33 F.R.D.
452, 453 (1963).
A common denominator among pro se litigants is their ignorance of the law and the
consequent inadequacy of their legal petitions, applications, and motions. Ziegler & Her-
mann, supra note 10, at 176-87; cf. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)
(pro se complaints held to less stringent standards than attorneys). Lack of legal expertise,
and the concomitant judicial exasperation, is the major hurdle for pro se litigants. See, e.g.,
Marlow v. Tully, 79 App. Div. 2d 546, 547, 433 N.Y.S.2d 787, 789 (1st Dep't 1980). In Mar-
low, the pro se plaintiff was advised that further proceedings without counsel would only
result in "wasteful legally inappropriate procedures." Id.
The courts are especially sensitive to the threat which prisoners "with idle time and

ney fees to nonattorneys would encourage additional spurious liti-

gation because the award of such fees would constitute a "wind-
fall."" s The reluctance of the American courts to award attorney
fees thus becomes an abhorrence in the case of awards to unde-
serving laymen.39 When the pro se litigant is a prisoner, the courts
seem particularly anxious to protect the federal fisc against claims
for fees, ostensibly since such awards are more difficult to calculate
than in the nonprisoner context.4 0
If the FOIA were interpreted narrowly to prohibit the award
of attorney fees to pro se plaintiffs, the potential dangers imposed
by such awards would be diminished. It is submitted, however,
that these objections should not automatically preclude awards of
attorney fees to pro se litigants under the FOIA. First, the fear of a
free paper" present to overcrowded court calendars. Jones v. Bales, 58 F.R.D. 453, 463
(1972) (citing Cruz v. Beto, 405 U.S. 319, 327 (1972) (Rehnquist, J., dissenting)). See
Crooker v. Department of the Treasury, 634 F.2d 48, 49 (2d Cir. 1980) ("The Freedom of
Information Act was not enacted to create a cottage industry for federal prisoners"). Even
one active jailhouse lawyer can be responsible for a good deal of legal activity. Turner, supra
note 10, at 635. For a detailed study of a pro se prisoner filing 178 cases, see Carter v.
Telectron, Inc., 452 F. Supp. 944 (S.D. Tex. 1977). According to the Cartercourt, as of June
30, 1977, prisoner suits accounted for 15% of pending federal civil cases. Id. at 948. More-
over, in the pro se prisoner context, out-of-court settlements are difficult and rare. Conse-
quently, some kind of judicial action is required on virtually every case. Turner, supra note
10, at 637-38.
City of Detroit v. Grinnell Corp., 495 F.2d 448, 469 (2d Cir. 1974); White v. Arlen
Realty & Dev. Corp., 614 F.2d 387, 389 (4th Cir. 1980). Courts also are sensitive to accusa-
tions of fee generation, and, therefore, have attempted to stem public disapproval by main-
taining moderation in fee awards. See City of Detroit v. Grinnell Corp., 495 F.2d at 469.
" Typically, the judicial arguments against pro se fees rest on the narrow premise that
only an attorney is an attorney. Hannon v. Security Nat'l Bank, 537 F.2d 327 (9th Cir.
1976). In Hannon, a law school graduate, albeit unlicensed, was denied attorney fees be-
cause, as the court stated, "he was not an attorney and could not provide attorney services."
Id. at 329; accord, Davis v. Parratt, 608 F.2d 717, 718 (8th Cir. 1979) (per curiam); Barrett v.
United States Customs Serv., 482 F. Supp. 770, 789 (E.D. La. 1980); Burke v. Department of
Justice, 432 F. Supp. 251, 253 (D. Kan. 1976); Bone v. Hibernia Bank, 354 F. Supp. 310, 311
(N.D. Cal. 1973). This approach has been called the "closed shop philosophy." Johnson v.
Avery, 393 U.S. 483, 491 (1969) (Douglas, J., concurring).
Generally, the courts have been less grudging with regard to the attorney who repre-
sents himself. Cuneo v. Rumsfeld, 553 F.2d 1360, 1366 (D.C. Cir. 1977); Wells v. Whinery, 34
Mich. App. 626, 192 N.W.2d 81 (Ct. App. 1971). The courts reason that the attorney appear-
ing in propria persona is giving up the economic benefit of other professional opportunities.
Winer v. Jonal Corp., 169 Mont. 247, 545 P.2d 1094 (1976). See also Crooker v. Department
of the Treasury, 634 F.2d 48, 49 (2d Cir. 1980). Moreover, the burden on the defeated party
is the same whether or not the plaintiff is an attorney. Winer v. Jonal Corp., 169 Mont. 247,
545 P.2d 1094 (1976). But see Parquit Corp. v. Ross, 273 Or. 900, 543 P.2d 1070 (1975);
O'Connell v. Zimmerman, 157 Cal. App. 2d 330, 321 P.2d 161 (1958); Cheney v. Ricks, 168
Ill. 533, 549, 48 N.E. 75, 81 (1897).
40 Crooker v. Department of Justice, 632 F.2d at 921 (1st Cir. 1980); see note 49 infra.

flood of litigation arising from sanctioning fees for pro se parties is

often unfounded. 4 1 To be sure, there has been a sharp increase in
the number of FOIA requests since the 1974 amendments were en-
acted. 2 There is no indication, however, that the cause has been
the availability of attorney fees.'3 Moreover, the pro se litigant's
4
chances of being put on a federal court docket are slim. " Most
complaints are disposed of during the initial stages.' 5 Even if the
case goes to trial, the plaintiff still must prevail and satisfy the
discretionary guidelines before attorney fees may be awarded.46 In
addition, chances of abuse, if any, are minimized by applying the
discretionary factors. 7 For example, pro se plaintiffs whose acts
are merely fee-generating and serve no public purpose may be de-
nied fees on these grounds without arbitrarily barring recovery by
all pro se plaintiffs. 4 8 Further, abuse can be controlled through
methods devised for calculating the value of pro se services.4 9
41 See Office of Communication of United Church of Christ v. FCC, 359 F.2d 994, 1007
(D.C. Cir. 1966); Ziegler & Hermann, supra note 10, at 196-97.
42 See Open American v. Watergate Special Prosec. Force, 547 F.2d 605, 617 n.3 (D.C.
Cir. 1976) (Leventhal, J., concurring) (FBI received 447 FOIA requests in 1974, as compared
to 13,875 in 1975).
43 The increase might be attributed to a greater public awareness of the rights con-
ferred by the FOIA. The added burden on the judiciary is not, however, sufficient reason for
curtailing fee awards. There are alternative solutions to overcrowded courts. Institution of
an individual assignment system and the appointment of additional judges could meet any
additional burden precipitated by awards of attorney fees to pro se litigants. See Committee
on Federal Courts, Recommendationsfor the Improvement of the Administrationof Pro Se
Civil Rights Litigation in the Federal District Courts in the Southern and Eastern Dis-
tricts of New York, 30 Rc. A.B. Crry N.Y. 107, 108 (1975) [hereinafter cited as Bar Recom-
mendations]. Interestingly, one commentator has noted the connection between judicial at-
titude and judicial burden: "If those who must decide [pro se] prisoners cases feel that they
are a bothersome nuisance, most of the complaints will be read in a narrow grudging man-
ner; most of the cases will be dismissed as frivolous; and the task of deciding so many
groundless claims will indeed seem burdensome." Turner, supra note 10, at 638 n.144.
44 See Bar Recommendations,supra note 43, at 109-10; Ziegler & Hermann, supra note
10, at 160.
4 See Bar Recommendations, supra note 43, at 113 n.8. One commentator has noted:
It is apparent that it is futile for prisoners to proceed pro se. Not only is it un-
likely that the complaints will survive the.. . screening, but even assuming that
the cases are not dismissed prior to service, they will languish in the courts' dock-
ets. They are prime candidates for dismissal for failure to prosecute. Prisoners
generally have neither the knowledge nor the resources to conduct discovery and
move their cases to trial.
Turner, supra note 10, at 625.
4' See notes 5 & 7 supra.
" See notes 71-80 and accompanying text infra.
41 See note 75 and accompanying text infra.
4, The fee awarded a successful pro se litigant does not threaten the federal purse,

The Semantic Argument

Those opposing attorney fee awards for pro se litigants also
advance two arguments based on the language of the FOIA's fee
provision. As stated previously, the FOIA sanctions an award of
especially when compared with the fee that a lawyer would receive in similar FOIA litiga-
tion. In contrast with the normal attorney's fee, Crooker requested only $165.00. Crooker v.
Department of Justice, No. 80-1421 (D.C. Cir. Oct. 23, 1980). Cf. Jones v. United States
Secret Service, 81 F.R.D. 700, 702 (D.D.C. 1979) (pro se award of $425); Holly v. Acree, 72
F.R.D. 115, 116 ($620 awarded to pro se representative). Attorneys have occasionally been
less than circumspect in their fee requests. See, e.g., Copeland v. Marshall, 594 F.2d 244,
249 (D.C. Cir. 1978) (excessive fees charged by attorneys in civil right's case); Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974) (possible duplication of
effort by attorneys).
The problem of how to calculate an attorney fee for a nonattorney is not insurmount-
able. The District of Columbia Circuit dealt with this problem in Jones v. United States
Secret Service, 81 F.R.D. 700, 702 (1979). Therein, the pro se plaintiff, a prisoner, claimed
an hourly wage of $50.00 for 85 hours of work. Id. In determining the amount of the award,
the court noted plaintiff's inexperience as an attorney, the time spent in nonlegal activities,
and the fact that as a public ward, the plaintiff gave up no income and incurred no expense.
Id. Concluding that the plaintiff did deserve some award for his "diligence and skill," the
court reduced the hourly wage to 10 dollars. Id. Furthermore, the court discounted the
hours by one-half, attributing the excess time to plaintiff's lack of experience. Id. The deter-
mining factors in the Jones decision have been employed by other courts. For example, the
economic distinction between legal and nonlegal work has been used to reduce awards for
services performed by nonattorneys. E.g., Johnson v. Georgia Highway Express, Inc., 488
F.2d 714, 717 (5th Cir. 1974); Lindy Bros. Builders, Inc., v. American Radiator & Stand.
Sanit. Corp., 487 F.2d 161, 167 (3d Cir. 1973). In Lamphere v. Brown, 610 F-2d 46, 48 (1st
Cir. 1979), the First Circuit found the work of paralegals "necessary and compensable," but
only at the rate of their actual hourly wage. Id. In contrast, courts frequently base awards to
attorneys on the fair market value of their services, rather than their normal hourly wage.
The fee actually incurred may not always be the fee awarded. See note 7 supra. Many
courts use a fair market value standard. See National Treasury Employees Union v. Nixon,
521 F.2d 317, 322 (D.C. Cir. 1975); Alyeska Pipeline Service Co. v. Wilderness Soc'y, 495
F.2d 1026, 1037 (D.C. Cir. 1974) (en banc), rev'd on other grounds, 421 U.S. 240 (1975);
Fairley v. Patterson, 493 F.2d 598, 607 (5th Cir. 1974). In Campbell v. United States Civil
Serv. Comm'n, 539 F.2d 58, 62 (10th Cir. 1978), an award of $250 was remanded for recon-
sideration as too low in light of the $35 per hour standard offered in FOIA's legislative
history. Id. (citing H.R. REP. No. 876, 93d Cong., 2d Sess., reprinted in [1974] U.S. CODE
CONG. & AD. NEws 6275). Courts also have alluded to the legislatively nurtured opinion that
a reasonable fee in a FOIA action is $1,000 to $1,400. American Fed'n of Gov't Employees v.
Rosen, 418 F. Supp. 205, 209 (N.D. Ill. 1976) (citing H.R. REP. No. 876, 93d Cong., 2d Sess.
9 (1974)).
Generally, courts will consider a variety of factors such as customary fees, reputation,
time limitations, and results in arriving at an appropriate hourly wage. See Pete v. United
Mine Workers of Am. Welfare & Retirement Fund of 1950, 517 F.2d 1275, 1290 (D.C. Cir.
1975); note 5 supra. An additional factor in arriving at a fair market value is loss of income
from other employment. 81 F.R.D. at 702. Significantly, this factor is normally considered in
relation to the amount of the award. Id.; ABA CODE OF PROFESSIONAL RESPONSmILrry, DR 2-
106(B) (1976). It has been used, however, as a rationale for denying fee awards. See Crooker
v. Department of the Treasury, 634 F.2d at 49.

"reasonable attorney fees and litigation costs reasonably incurred."

It is argued that "incurred" modifies "fees" as well as "costs."
Therefore, since attorney fees are not incurred by a party appear-
ing pro se, no award is proper." Alternately, it is argued that the
inclusion of nonattorneys as eligible for an award of "attorney"
fees violates the "clear language" of the statute.51 Although entic-
ingly straightforward, both arguments must fail. The first argu-
ment overlooks two situations where attorney fees are sanctioned
although no fees are "incurred" by the plaintiffs. While neither
lawyers appearing in propria persona nor legal service organiza-
tions representing FOIA plaintiffs charge their "clients" a fee, at-
torney fees under the FOIA are recoverable nonetheless. 5 2 The sec-
ond argument can be overcome by focusing on an alternate
meaning of the term "attorney fees." Commonly, attorney fees are
understood to be payments for the services of a qualified lawyer.5 3
Additionally, however, the term may mean payments for legal ser-
vices without regard to whether or not they were performed by a
lawyer.54 Thus, "attorney" fees have been awarded to paralegals
and other persons not admitted to the bar for their work in con-
nection with litigation.5 5 The existence of this "functional" defini-
tion of the term "attorney fees" belies the argument that its mean-
ing is "clear."
80 Crooker v. Department of Justice, 632 F.2d 916, 921 (1st Cir. 1980).
" Barrett v. United States Customs Serv., 482 F. Supp. 779, 780 (E.D. La. 1980); ac-
cord, Hannon v. Security Natl Bank, 537 F.2d 327, 329 (9th Cir. 1976). It is argued further
that the absence of a specific inclusion of nonattorneys in the statute implies that Congress
did not wish to compensate them for their services. Hannon v. Security Nat'l Bank, 537
F.2d at 328.
2 Mid-Hudson Legal Servs., Inc. v. G & U, Inc., 578 F.2d 34, 37 (2d Cir. 1978); Cuneo
v. Rumsfeld, 553 F.2d 1360, 1364 (D.C. Cir. 1977); Lee v. Southern Home Sites Corp., 444
F.2d 143, 147 n.3 (5th Cir. 1971); Miller v. Amusement Enterps., Inc., 426 F.2d 534, 538-39
(5th Cir. 1970). See also Crooker v. Department of the Treasury, 634 F.2d 48, 49 (2d Cir.
1980). The awards to legal service organizations are justified on the ground that attorneys
are actually involved. Crooker v. Department of the Treasury, 634 F.2d 48, 49 n.1 (2d Cir.
1980); Crooker v. Department of Justice, 632 F.2d 916, 921 n.7 (1st Cir. 1980) (citing
Palmigiano v. Garrahy, 616 F.2d 598 (1st Cir. 1980)). Furthermore, the courts want to sup-
port the public interests represented by these organizations. Mid-Hudson Legal Servs., Inc.,
v. G & U, Inc., 578 F.2d 34, 37 (1978).
5 See Holly v. Acree, 72 F.R.D. 115, 116 (D.D.C. 1976), af'd without opinion sub nom.
Holly v. Chasen, 569 F.2d 160 (D.C. Cir. 1977); note 49 supra.

The Economic BarrierArgument

Opponents of awards of attorney fees in pro se suits further
argue that such awards are outside the ambit of the FOIA.5 e This
argument is based on the premise that the aim of the Act was to
promote government disclosure by removing the expense of an at-
torney as a potential deterrent to prosecuting FOIA claims. The
opponents conclude, therefore, that since the pro se litigant never
contemplates the payment of such a fee, he does not need the ben-
57
efit of the statute.
Assuming arguendo that removal of economic barriers to suit
is the sole purpose underlying the decision by Congress to sanction
fee awards in FOIA suits, this argument still is unpersuasive. In-
deed, no economic barrier in the form of a bill for the services of
an attorney exists for a pro se litigant. Nevertheless, real economic
barriers in other forms do exist. It is difficult for indigent parties to
obtain legal counsel, 5 and even more difficult when the indigent
party is a prisoner.5 9 For these parties, a pro se appearance may be
the only realistic route available for forcing disclosure under the
FOIAY The indigent's lack of means bars his appearance by an
attorney and forces him to perform this function himself. Addi-
tionally, an economic barrier may exist for nonprisoner pro se
plaintiffs since they may forego income-producing activity to pur-
sue a FOIA claim."1 Admittedly, most pro se claims are made by
'" But see LaSalle Extension Univ. v. FTC, [1980] I Gov'T DISCLOSuRE (P-H) 80, at
171 (D.C. Cir. June 5, 1980). Shermco Indus. Inc. v. Secretary of United States Air Force,
452 F. Supp. 306, 326 (N.D. Tex. 1978).
17 Crooker v. Department of Justice, 632 F.2d at 921.
68 See Nussbaum, Attorney's Fees in Public Interest Litigation, 48 N.Y.U.L. REv. 301,
306 n.16 (1973). The key to the problem Hes in the large number of people below the pov-
erty level and the small number of legal service lawyers. Id.
Johnson v. Avery, 393 U.S. 483, 493 (1969) (Douglas, J., concurring).
80 Larsen, A PrisonerLooks at Writ-Writing, 56 CALn'. L. REv. 343, 345-46 (1968). One
commentator tersely summarized the problem as follows: "Lawyers generally require at least
a fifty dollar fee to travel to the prisons to consult with a prisoner. The ones not able to pay
this sum must resort to the next best course of action-act as their own lawyers." Id. at 345.
Even if counsel is assigned, the prisoner may be at a disadvantage since "some attorneys do
not feel an obligation to put forth their best efforts for a client who is not paying them and
who they probably will never see." Note, Legal Services for Prison Inmates, 1967 Wis. L.
REv. 514, 526.
61 The Second Circuit has recognized that an economic barrier may be presented in
either of two ways: "by the prospect of having to pay an attorney or having to forego an
opportunity to earn one's regular income for a day or more in order to prepare and pursue a
pro se suit." Crooker v. Department of the Treasury, 634 F.2d 48, 49 (2d Cir. 1980). See S.
REP. No. 854, 93d Cong., 2d Sess. 16 (1974) (quoting Sen. Thurmond).

prisoners who do not lose tangible economic benefits in pursuing a

FOIA claim. 2 This fact, however, does not justify a blanket ban on
pro se recovery of fees. It is conceivable that the relatively small
number of nonprisoner, pro se complaints indicates that lack of
representation and loss of income without reimbursement have
been effective economic barriers to the pursuit of the claims.
THE CASE IN FAVOR OF ATTORNEY FEES FOR PRO SE FOIA

PLAINTIFFS
The primary consideration in deciding whether pro se plain-

tiffs should be denied attorney fees must be the effectuation of the
policy underlying FOLA. In enacting the FOIA, Congress created a
disclosure statute which depended on suits by private litigants for
enforcement." When private enforcement proved ineffective,6
measures were adopted to curb government abuse of the Act by
removing the chief barriers to individual litigation. What consti-
tuted a violation of the Act was defined with greater precision; pu-
nitive measures against intentional misconduct were created;6 5 and
attorney fees became available.6 6 Indeed, these measures have been
so successful in encouraging the pursuit of FOJA rights that courts
now fear plaintiff abuse. Specifically, some courts are afraid, in the
case of pro se plaintiffs, that fee awards under the FOJA will give
rise to a "flood" of burdensome litigation and undeserved "wind-
fall" awards. Inexplicably, plaintiff abuse does not appear to be a
problem when the plaintiff is represented by a lawyer.6 8 It is ironic,
but in categorically refusing to award attorney fees to pro se liti-
gants, courts are refusing to apply a statutory provision aimed at
encouraging FOIA suits to a class of plaintiffs on whom the provi-
sion is having the desired effect. 9 The public benefit is real and
62 Carter v. Telectron, 452 F. Supp. 944, 046-49 (S.D. Tex. 1977). But see Johnson v.
Avery, 393 U.S. 483, 494 n.10 (1969) (citing Larsen, A PrisonerLooks at Writ-Writing, 56
CALm. L. REV. 343, 345-46 (1968)).
'3 See note 4 supra,
See note 33 and accompanying text supra.
" See 5 U.S.C. 552(a)(4)(F) (1976).
See id. 552(a)(4)(E).
67 See, e.g., Crooker v. Department of the Treasury, 634 F.2d 48, 49 (2d Cir. 1980);
Hannon v. Security Natl Bank, 537 F.2d 327, 329 n.1 (9th Cir. 1976).
" See Luzaich v. United States, 435 F. Supp. 31, 36 (D. Minn. 1977). Some commenta-
tors recommend the assignment of counsel as the most effective solution to the problems of
pro se litigation. Ziegler & Hermann, supra note 10, at 213.
9 See S. REP. No. 854, 93d Cong., 2d Sess. 16 (1974); accord, Cuneo v. Rumsfeld, 553
F.2d 1360, 1366 (D.C. Cir. 1977); Goldstein v. Levi, 415 F. Supp. 303, 305 (D.D.C. 1976);

their legal activity deserving of compensation. 0

Allowing pro se FOIA litigants to recover attorney fees need
not result in windfall recoveries and other abuses. Stringent crite-
ria must be satisfied to justify an award of attorney fees to the
FOIA plaintiff who substantially prevails.7 1 The complainant must
demonstrate an absence of commercial incentive, an appropriate
interest in the information sought, unreasonable government non-
compliance, and vindication of a public interest.7 2 By properly ap-
plying these factors, courts have the wherewithal to control poten-
tial abuse by pro se plaintiffs without shielding the government
from the payment of a fee award in a proper case. 73 For example, a
"jailhouse lawyer" who generates a stream of FOIA litigation may
be found ineligible for a fee award because of the commercial in-
centive for prosecuting his claims 7 4-specifically, the generation of
fee income. 5 Although the "commercial incentive" factor is usually
applied to a businessman seeking information to be used for an
economic gain,7 6 it is relevant in the pro se context as well. When
the FOIA is used to generate personal income or to acquire infor-
mation which is not of public interest, the enforcement of disclo-
sure rights becomes incidental to securing personal benefit and the
77
incentive of a fee award becomes superfluous.
Similarly, the other fee award criteria will act to qualify the
Kaye v. Burns, 411 F. Supp. 897, 902 (S.D.N.Y. 1976).

70 "Many of the landmark prisoner rights cases were commenced by prisoners pro se."
Bar Recommendations, supra note 71, at 114 n.13; see, e.g., Gideon v. Wainwright, 372 U.S.
335 (1963). It is submitted that pro se litigants should not be denied fee awards, regardless
of whether they forego any income in prosecuting claims. Whether a pro se claimant is a
prisoner or unemployed is irrelevant to a determination of whether he is eligible for an
award. If a suit promotes the disclosure policy of the Act, economic status alone should not
preclude an award of attorney fees. If economic status is determinative of a litigant's eligi-
bility for a fee award, some inequities would result. For example, a lawyer who comes out of
retirement to pursue a FOIA claim would be ineligible because he did not forego other
income.
7 See notes 6 & 7 supra.
1 Marschner v. Department of State, 410 F. Supp. 196, 201 (D. Conn. 1979).
1 See, e.g., Polynesian Cultural Center, Inc., v. NLRB, 600 F.2d 1327, 1330 (9th Cir.
1979). The intentions of the Act do not include financing private actions where there is
already sufficient impetus to proceed. Blue v. Bureau of Prisons, 570 F.2d 529, 534 (5th Cir.
1978).
" See, e.g., Fenster v. Brown, [1980] Gov'T DisCLOSURE (P-H) 79,148 (D.C. Cir. Dec.
18, 1979).
7 Cuneo v. Rumsfeld, 553 F.2d 1360, 1368 (D.C. Cir. 1977); Project, Government Infor-
mation and the Rights of Citizens, 73 MICH. L. REv. 971, 1141 n.1 (1975).

19811 PRO SE LITIGANTS
right to recover attorney fees.7 8 The courts are eminently capable

of balancing the four factors and arriving at a decision which re-
flects the equities of the individual case.7 9 The application of these
factors will serve to determine whether attorney fees are appropri-
ate and will ensure that the interests of the FOIA will be served
without denying awards to deserving plaintiffs.8 0
CONCLUSION
The FOIA presents a unique situation requiring responsive ju-

dicial interpretation: no overt wrong has been committed against
the FOIA plaintif8 1 and no damage award is available to attract
counsel. Without assertive public enforcement, a silent erosion of
Congressional policy may ensue. 82 It is submitted that awards of
78 See Pope v. United States, 424 F. Supp. 962, 965-66 (S.D. Tex. 1977). In Pope, the
plaintiff, although obtaining much of the information sought, was held not to have substan-
tially prevailed. Furthermore, the government's withholding was deemed proper, there was
no public benefit, and the plaintiff's interest was commercial and personal. Id. at 966;
accord,Fenster v. Brown, [1980] Gov'T DxsCLosuRE (P-H) %79,148 (D.C. Cir. Dec. 18, 1979).
79 The application of the four factors for determining the appropriateness of an award
of fees requires sensitivity to the issues at hand. S. RP. No. 854, 93d Cong., 2d Sess. 19
(1974). In Shermco Indus., Inc. v. Secretary of the United States Air Force, 452 F. Supp.
306, 326 (N.D. Tex. 1978), a fee award was granted despite a commercial interest due to the
unreasonable withholding by the defendant. Id. In contrast, the government had valid rea-
son for refusing the disclosure of the material requested in Flower v. FBI, 448 F. Supp. 567,
574 (W.D. Tex. 1978). Attorney's fees were awarded, however, because of the strong public
benefit. Id.
80 Courts are more willing to grant fees where the information sought will benefit the
public. See Goldstein v. Levi, 415 F. Supp. 303, 305 (D.D.C. 1976); Consumers Union of
United States v. Board of Governors of the Fed. Reserve Sys., 410 F. Supp. 63, 64 (D.D.C.
1975).
" See Clark, Holding Government Accountable: the Amended Freedom of Information
Act, 84 YALE L.J. 741, 767 (1975).
82 Cf. Knight v. Auciello, 453 F.2d 852, 853 (1st Cir. 1972) (plaintiff's financial inability
to litigate may foster deliberate noncompliance with the civil rights laws). In Knight, the
district court had refused to award attorney's fees in a civil rights case, but the First Circuit
reversed and granted the award. Although not a FOIA case, the Knight court stated
incisively.
The violation of an important public policy may involve little by way of actual
damages, so far as a single individual is concerned, or little in comparison with the
cost of vindication, as the case at bar illustrates. If a defendant may feel that the
cost of litigation, and, particularly, that the financial circumstances of an injured
party may mean that the chances of suit being brought, or continued in the face of
opposition, will be small, there will be little brake upon deliberate wrongdoing.
453 F.2d at 853 (emphasis added).

538 ST. JOHN'S LAW REVIEW [Vol. 55:520
attorney fees to pro se FOIA litigants will further the FOIA's goal
of an informed electorate by encouraging agency compliance.
Lyn Batzar Boland

DOCUMENT DIVIDER

William Mitchell Law Review

Volume 39 | Issue 1 Article 4
2012
Pro Se Litigation and the Costs of Access to Justice

Dan Gustafson
Karla Glueck
Joe Bourne
Follow this and additional works at: http://open.mitchellhamline.edu/wmlr
Recommended Citation
Gustafson, Dan; Glueck, Karla; and Bourne, Joe (2012) "Pro Se Litigation and the Costs of Access to Justice," William Mitchell Law
Review: Vol. 39: Iss. 1, Article 4.
Available at: http://open.mitchellhamline.edu/wmlr/vol39/iss1/4
This Article is brought to you for free and open access by the Law Reviews
and Journals at Mitchell Hamline Open Access. It has been accepted for
inclusion in William Mitchell Law Review by an authorized administrator
of Mitchell Hamline Open Access. For more information, please contact
sean.felhofer@mitchellhamline.edu.
Mitchell Hamline School of Law

Gustafson
PUBLISHEDet al.: Proby
Se Litigation
Stan J.and the Costs of Access
Caterbone, Pro toSeJustice
and THE ADVANCED MEDIA GROUP
PRO SE LITIGATION AND THE COSTS OF

ACCESS TO JUSTICE
Dan Gustafson, Karla Gluek, and Joe Bourne
I.INTRODUCTION ....................................................................... 32
II.FEDERAL JUDICIAL CENTER SURVEY ......................................... 36
III.PRO SE PROJECT BACKGROUND AND OVERVIEW....................... 38
IV. EXAMPLES OF EXPERIENCES IN PRO SE PROJECT CASES ........... 44
A. Prisoner Civil Rights and Religious Freedom ........................ 44
B. Civil Rights and the Fourth Amendment ............................. 45
C. Due Process Rights in a Treatment Facility .......................... 47
D. Employment Discrimination ................................................ 48
V. STATISTICS ON PRO SE PROJECT CASES .................................... 48
VI. ASSESSING THE PRO SE PROJECTS EFFECTIVENESS AND
PROPOSED FUTURE STEPS ........................................................ 50
I. INTRODUCTION
Legal services are expensive to provide. Attorneys fees alone
are expensive: the average attorneys hourly billing rate in the
1
United States is $295. This rate may vary significantly depending
on a number of factors, including the attorneys experience level,
2
practice area, and legal market. In addition, out-of-pocket costs in
a litigation matter that proceeds to trial (such as filing fees, expert
Dan Gustafson and Karla Gluek are the founding members of Gustafson
Gluek PLLC. Joe Bourne is an associate attorney at Gustafson Gluek.
1. Debra Cassens Weiss, Are Female Lawyers Worth $50 an Hour Less than Men?
Average Billing Rates Show Gap, A.B.A. J. (Apr. 8, 2011, 1:16 PM),
http://www.abajournal.com/news/article/average_lawyer_billing_rates_are_more
_than_20_percent_lower_for_women_than_/.
2. Leigh Jones, Rich Lawyers Are Getting Richer Faster, THOMSON REUTERS NEWS
& INSIGHT (Apr. 16, 2012), http://newsandinsight.thomsonreuters.com/Legal
/News/2012/04_-_April/Rich_lawyers_are_getting_richer_faster/ (experience
level); Orin Kerr, Average Billing Rates Charged by Washington DC Lawyers, VOLOKH
CONSPIRACY (Sept. 10, 2010, 1:57 PM), http://www.volokh.com/2010/09
/10/average-billing-rates-charged-by-washington-dc-lawyers/ (legal market); id.
(practice area).
32
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2012 Page No. 23 of 45 Friday September 1, 2017 1
William Mitchell
PUBLISHED byLaw Review,
Stan J. Vol. 39, Iss. 1 [2012],
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Se4 and THE ADVANCED MEDIA GROUP
2012] PRO SE LITIGATION 33
witness fees, depositions, and travel expenses) may easily add up to

3
tens or hundreds of thousands of dollars. While law firms
representing plaintiffs may sometimes use contingency fee
arrangements, in which the firm advances attorneys fees and costs
and recovers them only as part of any recovery by the client, this
4
places the risk on the firm. As a result, a firms decision whether
to represent a plaintiff on a contingency basis often depends on the
5
firms expectation that the case will pay. This can result in firms
being unwilling to take contingency caseseven when those cases
appear to have some meritif the firms anticipated investment in
6
the case is greater than its expected recovery. Meanwhile,
defendants generally cannot benefit from contingency fee
arrangements because they do not stand to recover from being
sued, even when their defenses are successful. Due to the high cost
of legal services in litigation matters, many litigants appear pro se.
In some instances, due process and other constitutional law,
statutes, or regulations may require that counsel be provided to
litigants who cannot afford counsel. For example, criminal
defendants are guaranteed the right to publicly funded trial
7
counsel when they cannot afford it, and that right continues on
8
direct appeal. Similarly, civil commitment respondents have the
statutory right to appointed counsel in civil commitment
9
proceedings. Although the United States Supreme Court has not
expressly decided the question, federal and state case law suggest
that due process should also guarantee the right to appointed
10
counsel in civil commitment proceedings. The Supreme Court
3. Court Costs and Attorney Fees: The Contingency Fee, HARRELL & HARRELL,
http://www.harrellandharrell.com/court-costs-and-attorney-fees.php (last visited
Oct. 17, 2012).
4. Id.
5. Why Do You Use Contingency Fees?, MCCLANAHAN MYERS ESPEY LLP,
http://www.mmellp.com/faqs/why-do-you-use-contingency-fees/ (last visited Oct.
17, 2012).
6. See id. ([Contingency fees] discourag[e] attorneys from presenting
claims that have negative value . . . .).
7. U.S. CONST. amends. VI, XIV; Gideon v. Wainwright, 372 U.S. 335, 34445
(1963).
8. Evitts v. Lucey, 469 U.S. 387, 396 (1985).
9. E.g., MINN. STAT. 253B.07, subdiv. 2c (2010).
10. See, e.g., Vitek v. Jones, 445 U.S. 480, 497 (1980); Heryford v. Parker, 396
F.2d 393, 396 (10th Cir. 1968); Jenkins v. Dir. of Va. Ctr. for Behavioral Rehab.,
624 S.E.2d 453, 460 (Va. 2006). But see Beaulieu v. Minn. Dept of Human Servs.,
798 N.W.2d 542, 549 (Minn. Ct. App. 2011), review granted, No. A10-1350, 2011
Minn. LEXIS 459, at *1 (Minn. July 19, 2011). In the interest of full disclosure, we
PRO SE LITIGANTS - CASE LAW

http://open.mitchellhamline.edu/wmlr/vol39/iss1/4 Page No. 24 of 45 Friday September 1, 2017 2
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34 WILLIAM MITCHELL LAW REVIEW [Vol. 39:1
has long recognized that in our adversary system of criminal

justice, any person haled into court, who is too poor to hire a
lawyer, cannot be assured a fair trial unless counsel is provided for
11
him. The Court has also held that due process requires the
provision of court-appointed counsel to indigent parties in civil
matters in which their liberty is at stake for many of the same
reasons: even in informal proceedingsespecially when the
proceedings resemble an adversarial triala party will struggle to
make skilled inquiry into the facts, to insist upon regularity of the
proceedings, and to ascertain whether he has a defense and to
12
prepare and submit it without the assistance of counsel.
There are some areas other than deprivation of physical liberty
when due process may require the appointment of counsel. These
13
include cases involving the termination of parental rights. In
other areas, such as civil rights cases, the legislature has provided
statutory attorneys fees, which are designed to encourage
contingency fee representation for plaintiffs with civil rights and
14
other kinds of claims.
But the need for the assistance of counsel holds true in civil
litigation more broadly, such as cases in which a partys monetary
claim or defense is at stake. Despite this need, there is no general
15
right to appointed counsel in civil litigation. A recent survey of
the chief judges of the U.S. district courts shows that common
problems civil pro se litigants face are pleadings that cannot be
understood, untimely or incomplete pleadings or submissions, lack
represent Mr. Beaulieu in litigation seeking to vindicate his right to the effective
assistance of counsel at all stages of civil commitment proceedings, including
direct appeal. We recently argued this issue in the Minnesota Supreme Court; the
court has not yet issued an opinion. See Beaulieu, 2011 Minn. LEXIS 459, at *1.
11. Gideon, 372 U.S. at 344.
12. In re Gault, 387 U.S. 1, 36 (1967) (finding right to appointed counsel in
non-criminal juvenile delinquency proceedings); see also Gagnon v. Scarpelli, 411
U.S. 778, 787 (1973) (finding right to appointed counsel in some probation and
parole proceedings).
13. William L. Dick, Jr., Note, The Right to Appointed Counsel for Indigent Civil
Litigants: The Demands of Due Process, 30 WM. & MARY L. REV. 627, 63239 (1989)
(citing and discussing a mixed bag of cases in this area).
14. See, e.g., 42 U.S.C. 1988(b) (2006).
15. See Lassiter v. Dept of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18,
2627 ([T]he Courts precedents speak with one voice about what fundamental
fairness has meant when the Court has considered the right to appointed counsel,
and we thus draw from them the presumption that an indigent litigant has a right
to appointed counsel only when, if he loses, he may be deprived of his physical
liberty.); Hughen v. Highland Estates, 48 P.3d 1238, 1240 (Idaho 2002); In re
Smiley, 330 N.E.2d 53, 5557 (N.Y. 1975).
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of knowledge about legal decisions, failure to know when to object

to evidence, problems examining witnesses, problems with
16
discovery, and service errors. Additionally, settlement
17
conferences or mediations are less common in pro se cases. This
suggests that pro se litigants are likely to struggle to settleand
especially to successfully settletheir cases, especially when
considering that they may be unaware of the strengths and
weaknesses of their own and their adversaries cases, or that they
may be unable to adequately present those strengths and
weaknesses even if aware.
Although attorneys fees and litigation costs may preclude
many litigants from being able to afford counsel, some groups find
it especially difficult to obtain counsel on a fee-paying basis. In
18
2010, 15.1% of all persons in the United States lived in poverty.
The numbers are more stark for certain subgroups. For example,
27.4% of African Americans and 26.6% of Hispanics fall below the
poverty line, compared to 12.1% of Asians and 9.9% of non-
19
Hispanic whites. Similarly, 31.6% of households headed by single
women fall below the poverty line, compared to 15.8% of
households headed by single men and 6.2% of households headed
20
by married couples. And 26.7% of foreign-born noncitizens live
in poverty, compared to 19.9% of foreign-born residents overall
21
and 14.4% of residents born in the United States. In Minnesota,
10% of the white population falls below the poverty line, compared
to 48% of the black population and 35% of the Hispanic
22
population.
16. DONNA STIENSTRA ET AL., FED. JUDICIAL CTR., ASSISTANCE TO PRO SE

LITIGANTS IN U.S. DISTRICT COURTS: A REPORT ON SURVEYS OF CLERKS OF COURT AND
CHIEF JUDGES 23 (2011), available at http://www.fjc.gov/public/pdf.nsf/lookup
/proseusdc.pdf/$file/proseusdc.pdf.
17. Id. at 21.
18. Poverty in the United States, NATL POVERTY CTR., U. MICH. GERALD R. FORD
SCH. PUB. POLY, http://www.npc.umich.edu/poverty (last visited Oct. 17, 2012).
19. Id.
20. Id.
21. Id.
22. Poverty Rate by Race/Ethnicity, States (20092010), U.S. (2010),
STATEHEALTHFACTS.ORG, http://www.statehealthfacts.org/comparebar.jsp?ind=14
&cat=1 (lasted visited Oct. 17, 2012).

Gustafson
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II. FEDERAL JUDICIAL CENTER SURVEY

The Federal Judicial Center for the Judicial Conference
Committee on Court Administration and Case Management
conducted a study that considered how the federal district courts
23
deal with pro se litigants. The study surveyed district court clerks
and district court chief judges about the impact of pro se litigants on
judges and chambers staff, the measures the judges have taken to
meet the demands of these cases, and the programs, services, and
24
materials the courts offer to assist both pro se litigants and staff.
The district courts have developed various measures to deal
with pro se litigants. A significant number of courts attempt to
provide counsel to pro se litigants in at least some circumstances,
whether through appointment for the full case or for limited
circumstances (such as mediation or trial), or through providing
25
access to pro bono representation. Of these courts, about half pay
for costs incurred, and about a quarter pay at least some attorneys
26
fees. A majority of courts have created a pro se law clerk position
27
to assist with pro se litigation. The most common survey responses
from clerks offices indicate that staffing arrangements and
providing information to pro se litigants are among the most
28
effective responses that the courts have taken. The information
provided is often similar to the resources offered by the District of
Minnesota through its Representing Yourself (Pro Se) webpage,
29
which is discussed in more detail below. From the perspective of
the clerks offices, the major issues posed by pro se litigation are the
lack of access to electronic filing and demands on court staff, with
30
the nature of the pleadings a close second. Clerks offices also
identify the increase in pro se filings, the volume of filings, frivolous
filings, difficult or unstable litigants, and the lack of counsel as
31
important issues.
The survey responses of the chief judges indicate that the
district courts have widely adopted a set of measures to deal with
23. STIENSTRA ET AL., supra note 16.

24. Id. at v.
25. Id. at 4.
26. Id.
27. Id. at 1213.
28. Id. at 15.
29. See infra text accompanying notes 7779.
30. STIENSTRA ET AL., supra note 16, at 19.
31. Id.
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pro se litigants. These include the use of broad standards in

construing pleadings and other submissions, appointment of
counsel when the merits of the case warrant it, the use of broad
standards in requiring compliance with deadlines, referring
pretrial matters to magistrate judges, and judges taking a more
active, personal role than in fully represented cases (such as by
32
providing more explanation about procedures). In the judges
opinions, the most effective procedures that help judges and
chambers staff are specially designated staff and assignment of
cases to pro se law clerks, as well as active management of pro se cases
(including giving clear, specific instructions in court orders and
33
ruling promptly on pro se matters). The most effective measures
used in chambers that help the pro se litigants are managerial
measures (including detailed instructions and standardized forms),
appointment of counsel, and liberal standards for construing
34
claims and for granting extensions of time.
The judges identified a number of issues presented by pro se
litigants. By far the most common issues presented for judges and
chambers staff were the poor quality of pleadings and submissions
and the pro se litigants lack of knowledge and skills to litigate their
35
cases. The next most common issues were frivolous cases, repeat
filers, a rising caseload, and the demand pro se cases place on the
36
courts. The most common problems for the litigants themselves
are unnecessary, illegible, or incomprehensible pleadings and
submissions; problems with responses to motions to dismiss or for
summary judgment; lack of knowledge about legal decisions or
other information that would help their cases; failure to know
when to object to testimony or evidence; failure to understand the
legal consequences of their actions; failure to timely file pleadings
or other submissions; problems examining witnesses; problems with
37
discovery; and problems with service of process.
The last group of issues is distinctly an access to justice
problem. A sizeable majority of judges reported that there are
38
potentially meritorious claims in at least the occasional pro se case.
Problems with the quality of the pleadingsincluding the filing of
32. Id. at 30.

33. Id. at 31.
34. Id. at 3334.
35. Id. at 35.
36. Id.
37. Id. at 2123.
38. Id. at 21.

Gustafson
Se Litigation
numerous unnecessary materialscan create a risk that the judge

39
might miss meritorious claims. Failure to adequately gather and
present evidence or to object to improper evidence can hamper a
litigants ability to tell his or her story effectively to the fact-finder.
Perhaps for this reason, the judges consistently indicated that there
40
is a great need for counsel at trial. They also consistently
indicated that there is a great or moderate need for counsel in
the preparation of dispositive motions, preparation of answers to
an opponents filings, participation in settlement negotiations,
preparation of initial pleadings, participation at hearings, and
41
preparation and execution of discovery. Viewed as a whole, the
judges responses suggest that both substantive and procedural
42
problems are common in pro se cases. All of these implicate the
need for counsel. In an adversarial system such as ours, when only
one party is represented by counsel, the pro se party is at a severe
disadvantageeven when the pro se party has potentially
meritorious claims or defenses.
III. PRO SE PROJECT BACKGROUND AND OVERVIEW

Court rulesincluding rules of procedure, local rules, and
rules of evidencecan be tricky. These difficulties are
compounded for pro se litigants, who are often relatively
unsophisticated, lack resources, and lack training and experience
in the law. At the same time, the federal courts are increasingly
43
busy. Locally, the District of Minnesota has been one of the
busiest districts in the country; it had the eighteenth highest
weighted caseload per judge in the country in the year ending
September 30, 2011, and in each of the five previous years it
finished in the top seven districts in the country as measured by
44
weighted filings per judge. It is also the busiest district in the
39. Id. at viii.

40. Id. at 26.
41. Id.
42. Id.
43. See Caseload Statistics Archive, U.S. CTS., http://www.uscourts.gov/Statistics
/FederalJudicialCaseloadStatistics/FederalJudicialCaseloadStatistics_Archive.aspx
(last visited Oct. 17, 2012) (showing more civil cases filed in U.S. District Courts in
2011 than in any preceding year dating back to 2001; same for 2010).
44. Kirstin Kanski, District of Minnesota is Fifth Busiest District in the Country,
MINN. CHAPTER FED. B. ASSN: BAR TALK, Mar. 28, 2012, at 1, available at
http://fedbar.org/Image-Library/Chapters/Minnesota-Chapter/Bar-Talk/Bar
-Talk-March-2012.pdf; Federal Court Management Statistics: September 2011, U.S. CTS.,
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45
Eighth Circuit. Each judges weighted caseload is over 600, which
is 20% higher than the national average of about 500 weighted
cases per judge and far exceeds the 430 weighted cases threshold,
which is a key factor in determining when additional judicial
46
resources may be needed. Busy courts and heavy caseloads have a
47
cost to the court system and to taxpayers who fund the courts.
And pro se cases, in particular, require extra time and attention
48
from the courts (both judges and staff). The District of
Minnesota has seen about 100 to 200 civil, nonprisoner pro se cases
49
each year.
The Minnesota Federal Pro Se Project (Pro Se Project) was
founded on May 1, 2009, as a joint initiative by the United States
District Court for the District of Minnesota and the Minnesota
Chapter of the Federal Bar Association (FBA) after Chief Judge
Michael J. Davis approached the Minnesota Chapter of the FBA in
the summer of 2008 to initiate discussions about how to provide pro
50
bono representation to pro se litigants. At its core, the Pro Se Project
51
is about access to justice. The Pro Se Project is designed to help
address both of these issues: the disadvantage and difficulties pro se
litigants face in our adversarial system, and the strain on the courts.
http://www.uscourts.gov/Statistics/FederalCourtManagementStatistics
/DistrictCourtsSep2011.aspx (last visited Oct. 17, 2012).
45. Kanski, supra note 44, at 1.
46. Id.
47. These issues can cause delay in processing cases, require funding of
additional judges and staff in order to process the cases, or both. See, e.g., ADMIN.
OFFICE OF THE U.S. COURTS, FEDERAL JUDICIAL CASELOAD: RECENT TRENDS 13 (2001),
available at http://www.uscourts.gov/uscourts/Statistics
/FederalJudicialCaseloadStatistics/2001/20015yr.pdf (discussing creation of
additional judgeships).
48. STIENSTRA ET AL., supra note 16, at 37.
49. Lora Friedemann, Get Involved in the FBA Pro Se Project, MINN. CHAPTER
FED. B. ASSN: BAR TALK, Oct. 21, 2009, at 1, available at http://fedbar.org/Image
-Library/Chapters/Minnesota-Chapter/Bar-Talk/October-2009.pdf (estimating
100 to 150 cases per year). In 2011, the number of civil, nonprisoner pro se cases
filed was 201. Tiffany Sanders, Pro Se Project Coordinator, 2011 Civil Cases 2 (Aug.
20, 2012) (on file with authors).
50. Molly Borg, The Pro Se Projects Invaluable Assistance to the Court, MINN.
CHAPTER FED. B. ASSN: BAR TALK, Oct. 21, 2009, at 4, available at
http://fedbar.org/Image-Library/Chapters/Minnesota-Chapter/Bar-Talk
/October-2009.pdf; Friedemann, supra note 49, at 1.
51. See generally U.S. DIST. COURT, DIST. OF MINN. & FED. BAR ASSN, MINN.
CHAPTER, PRO SE PROJECT OF THE UNITED STATES DISTRICT COURT 2 (2011)
[hereinafter PRO SE PROJECT], available at http://www.fedbar.org
/proseproject2011.pdf.

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The Pro Se Project has four enumerated goals:

Provide every civil pro se litigant in the District of Minnesota
the opportunity to consult with counsel and, where
appropriate, to be represented by counsel;
Improve access to justice in the Minnesota District Court;
Decrease the number of civil pro se litigants in the District; and
Communicate effectively with the Court regarding the status of
52
cases referred to the project.
Ideally, the Pro Se Project would enable every civil litigant to be
represented by counsel, even when those litigants cannot afford
counsel.
The Pro Se Projects process begins after a pro se plaintiff files a
case or a pro se defendant makes an appearance in the District of
53
Minnesota. Initially, the court must refer the pro se litigant to the
Project, which occurs by the court writing a letter to the pro se
litigant advising her that she should contact the Pro Se Project
Coordinator if she would like to arrange a consultation with a
54
volunteer attorney. There are no fixed, formal criteria for
determining whether or when the court should refer the case to
the Pro Se Project. Instead, the court makes this determination on a
case-by-case basis. The court may consider any factor that is
appropriate in a given case, including whether pairing the pro se
litigant with a volunteer attorney will aid the court in processing
the case, whether the pro se litigant appears to complain of a
genuine injury (even if the claim would not ultimately have legal
merit), whether an attorney could help the party understand his or
her options, whether a political agenda is apparent from the
55
pleadings, and whether the litigant is a so-called frequent filer.
Another issue that may influence the timing of a referral is when
the court first has personal interaction with the party, such as at a
pretrial scheduling conference before the magistrate judge or at a
motion hearing (which could be before either the magistrate judge
52. Id. at 3.
53. Id.
54. Id.
55. Parties who have developed reputations for bringing numerous, typically
meritless claims are often referred to as frequent filers, and their cases are
sometimes viewed skeptically. See Michael C. Dorf, How Should Courts Handle
Frequent Filers? A Trampling Incident at a Florida Wal-Mart Highlights a Dilemma,
FINDLAW (Dec. 10, 2003), http://writ.news.findlaw.com/dorf/20031210.html.
PRObySE
Published LITIGANTS
Mitchell - CASE
William Mitchell
Stan J. Vol. 39, Iss. 1 [2012],
Caterbone, ProArt.
or district judge, although the magistrate judge is involved earlier

in the case).
After the court refers the pro se litigant to the Pro Se Project, if
the party contacts the Pro Se Project Coordinator, the Coordinator
contacts a law firm or lawyer and requests a consultation with the
pro se litigant (the referral is made, in part, based on the attorneys
56
practice area). After conducting a conflicts check, determining
that no conflict exists, and agreeing to accept the referral, the
attorney informs the Coordinator and arranges a meeting with the
57
litigant for a consultation and case evaluation.
The volunteer attorney then meets the pro se client and
discusses the case, reviews the case file, researches issues as
58
necessary, and performs an initial case analysis. Depending on
whether the attorney believes the pro se client has a viable claim or
defense, the attorney and client may take one of two paths. If the
attorney does not believe the client has a viable claim or defense,
the attorney advises the client of this conclusion and of his or her
59
options. The attorney may seek the assistance of a volunteer
60
mediator if the pro se client wishes to proceed in the matter. If, on
the other hand, the attorney believes the client has a viable claim
or defense, the attorney may enter an appearance and pursue the
viable claims or defenses (either by providing full representation or
61
entering a special appearance). The attorney also has the option
62
to decline to provide further service to the client. At this stage,
the attorney informs the Pro Se Project Coordinator whether
additional service will be provided to the client, and if not, whether
63
he recommends referring the case to another volunteer attorney.
Ideally, the pro se clients claims will have merit, the attorney will
agree to represent the client, and together they will resolve the
matter through the litigation process (whether in court, out of
court, or both).
The Pro Se Project has a fees, costs, and expenses policy that
comes into play after the initial case consultation and the pro se
client retains the attorneys services. As a general rule, the party is
56. PRO SE PROJECT, supra note 51, at 3.

57. Id.
58. Id. at 4.
59. Id.
60. Id.
61. Id.
62. Id.
63. See id.

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Se Litigation
64
required to pay the costs and expenses actually incurred. Of
course, a pro se litigant may be indigent and unable to afford
reimbursing costs and expenses. In that instance, several options
must be explored. The attorney should seek to limit costs as much
as possible, including by trying to obtain free services from
65
professionals and process servers. Some legal services programs
already have existing arrangements with programs that provide
these free services, such as pro bono court reporting services for
66
indigent litigants. If the court has not issued a scheduling order,
the attorney should also seek to limit costs by requesting an early
settlement conference with the magistrate judge or by requesting
67
limits on discovery. Costs may be reimbursed from an attorneys
68
fees award. When costs and expenses must be incurred and the
client is indigent and cannot afford them, [t]he FBA will endeavor
to pay costs and expenses actually incurred for incidentals that are
69
not reimbursed. The Pro Se Project does not guarantee that the
FBA will reimburse, or will be able to reimburse, out-of-pocket costs
and expenses actually incurred; it guarantees only that the FBA will
70
[r]eview and consider[] them. In fact, due to a number of
factors (including the generosity of Pro Se Project participants), the
Pro Se Projects cost-reimbursement policy has never been tested.
As a result, even the Pro Se Project Coordinator does not know how
reimbursement will work in practice when a request is made.
The Pro Se Project has taken other steps to encourage and
71
facilitate participation. In 2010, the Project sought and obtained
designation from the Minnesota Board of Continuing Legal
72
Education as an approved legal services provider. As a result,
64. Id. at 5.
65. See id.
66. For example, the Minnesota Association of Verbatim Reporters and
Captioners has a Pro Bono Committee that provides guidelines to and works with
the Minnesota State Bar Association and other organizations to provide pro bono
court reporting services to indigent litigants. See About Us: Committees, MINN. ASSN
VERBATIM REPS. & CAPTIONERS, http://www.mavrc.org/about/committees.php (last
visited Oct. 17, 2012).
67. PRO SE PROJECT, supra note 51, at 5.
68. See id.
69. Id.
70. Id.
71. See id. at 6.
72. Tiffany Sanders, Chief Judge Davis Recognizes Volunteers, Firms and Court
Personnel for Contributions to Pro Se Project, MINN. CHAPTER FED. B. ASSN: BAR TALK,
Dec. 15, 2010, at 1, available at http://fedbar.org/Image-Library/Chapters
/Minnesota-Chapter/Bar-Talk/December-2010.pdf.
PRObySE
Published LITIGANTS
Mitchell - CASE
William Mitchell
Stan J. Vol. 39, Iss. 1 [2012],
Caterbone, ProArt.
attorneys participating in the Pro Se Project may now obtain

Continuing Legal Education (CLE) credit for time spent on pro
73
bono representation undertaken through the Pro Se Project. This
may encourage attorneys to participate in the Project because CLE
requirements are mandatory for Minnesota lawyers. In 2011, the
Pro Se Project began working with the Minnesota Justice
74
Foundation (MJF). Law students participating through MJF
may volunteer to work with attorneys on their cases referred by the
75
Pro Se Project. This creates legal experiences for law students who
can provide additional resources to Pro Se Project cases and is
intended to encourage attorneys to participate in the Project by
76
providing them with law clerks to help with those cases.
The District of Minnesota has also taken steps outside of the
Pro Se Project to facilitate pro se litigation. These steps are intended
to assist pro se parties in litigating their cases and enhance the
efficiency of the cases as they proceed through court. The District
of Minnesota launched a Representing Yourself (Pro Se) webpage
77
in December of 2009. The Representing Yourself (Pro Se)
webpage contains answers to frequently asked questions, a pro se
civil guidebook, information sheets, forms, case initiation
assistance, a glossary of legal terms, the federal rules, the local
rules, resources for finding an attorney and for legal research,
specific information tailored to prisoner litigants, and contact
78
information for the clerks office and for electronic case filing. As
the Honorable Franklin L. Noel aptly put it, this effort helps pro se
73. Attorneys may receive one hour of CLE credit for every six hours of pro
bono representation provided through an approved legal services provider, such as
the Pro Se Project, with a maximum of six hours total per reporting period. See
RULES OF THE MINNESOTA STATE BD. OF CONTINUING LEGAL EDUC. R. 6(D) (Minn.
State Bd. of CLE 2010), available at http://www.mbcle.state.mn.us/MBCLE/pages
/user_documents/CLE%20RULES%202-2010.pdf.
74. See Tiffany Sanders, Pro Se Project Update, MINN. CHAPTER FED. B. ASSN:
BAR TALK, Mar. 16, 2011, at 9, available at http://fedbar.org/Image-Library
/Chapters/Minnesota-Chapter/Bar-Talk/March-2011.pdf.
75. See id.
76. See id.
77. Clerks Corner: New Help for Pro Se Litigants, MINN. CHAPTER FED. B. ASSN:
BAR TALK, Dec. 21, 2009, at 11, available at http://fedbar.org/Image
-Library/Chapters/Minnesota-Chapter/Bar-Talk/Winter-2009.pdf.
78. Representing Yourself (Pro Se), U.S. DIST. CT. DIST. MINN.,
http://www.mnd.uscourts.gov/Pro-Se.shtml (last visited Oct. 17, 2012).

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litigants get their foot in the courthouse door, and, once there,
the Pro Se Project can continue to assist those who would benefit
79
from meeting with an attorney.
IV. EXAMPLES OF EXPERIENCES IN PRO SE PROJECT CASES

The following are a few sample cases in which counsel was
appointed to represent pro se litigants either through the Pro Se
Project or through referrals by federal judges before the Project
came into existence. This is far from an exhaustive list of cases in
which the Pro Se Project has found counsel to represent a pro se
litigant. Instead, they are examples that illustrate different areas in
which the Project operates and some strengths and weaknesses of
this system to date.
A. Prisoner Civil Rights and Religious Freedom

A state prisoner filed multiple amended complaints and
conducted significant motion practice while proceeding pro se,
raising claims under the Religious Land Use and Institutionalized
80
Persons Act (RLUIPA) and under 42 U.S.C. 1983 for violation
81
of his First and Fourteenth Amendment rights. He alleged
numerous claims that prison policies unlawfully infringed his right
to practice Islam, only one of which survived summary judgment:
that the prison failed to provide halal meals, thereby causing him
82
to consume food in violation of his sincerely held religious beliefs.
In its order denying summary judgment with respect to that
claim (and granting summary judgment with respect to the others),
83
the district court referred the plaintiff to the Pro Se Project. The
referral specifically contemplated representation limited to
assisting Plaintiff in reaching a settlement of his claim or
continuing with an evidentiary hearing to resolve the factual issues,
84
which remain regarding the provision of halal meals. The Pro Se
Project Coordinator referred the matter to a volunteer lawyer; the
79. Tricia Pepin, More Help for Pro Se Litigants, MINN. CHAPTER FED. B. ASSN:
BAR TALK, Mar. 17, 2010, at 8, available at http://fedbar.org/Image
-Library/Chapters/Minnesota-Chapter/Bar-Talk/March-2010.pdf.
80. 42 U.S.C. 2000cc-1(a)(b)(2) (2006).
81. Jihad v. Fabian, Civ. No. 09-CV-01604 (SRN/LIB), 2011 WL 1641767,
at *1 (D. Minn. May 2, 2011).
82. Id. at *1.
83. Id. at *10.
84. Id.
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Published LITIGANTS
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William Mitchell
Stan J. Vol. 39, Iss. 1 [2012],
Caterbone, ProArt.
lawyer entered an appearance and was able to help negotiate a

settlement that provided that the Minnesota Department of
Corrections would make clearly designated halal-certified food
available at the prison during all regularly scheduled meals.
Although it is impossible to say for certain what the result
would have been without attorney involvement, after the referral
from the Pro Se Project, the plaintiff was able to settle his RLUIPA
and First Amendment religious freedom claims and make a change
that may more broadly help Muslims in Minnesota correctional
facilities exercise their religious beliefs. The limited scope of
representation contemplated by the court enabled counsel to focus
on the claim with merit and to settle it. The court did not have to
deal with filings relating to any claims that were without merit, and
ultimately the settlement meant that an evidentiary hearing did not
need to be held. The volunteer attorney also benefited by gaining
experienceincluding primary responsibility for negotiating a
settlement and appearing at two settlement conferencesthat an
associate could otherwise struggle to get. The limited scope of
representation also assured that counsel did not risk taking on
more than bargained for. Limited representation can be a useful
tool to encourage counsel to volunteer to take on cases through
the Pro Se Project, and the ability of firms to get involved in a
limited way means that more pro se litigants should have the
opportunity to receive representation.
B. Civil Rights and the Fourth Amendment

One pro se plaintiff brought a 1983 action against a number
of peace officers, who were members of a drug task force, and
85
against other governmental defendants. The plaintiff alleged
violations of various constitutional rights centered on a search of
86
two stores he owned. Members of the task force searched the
plaintiffs stores and his residence pursuant to search warrants; the
search warrants were later determined to lack probable cause with
87
respect to his businesses. The district court granted the
defendants motions for summary judgment, except regarding the
85. Kind v. Nw. Metro. Drug Task Force, Civ. No. 09-1265 (JSM) (D. Minn.
Mar. 31, 2011) (order granting summary judgment in part and denying summary
judgment in part).
86. Id.
87. Id.

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Se Litigation
claim that the searches of the stores, which caused a mess and
88
damaged his property, were executed unreasonably.
The plaintiff litigated his case pro se for more than two years
before the case was referred to the Pro Se Project, which found
volunteer lawyers to enter appearances on the eve of trial.
Following additional discovery and pretrial motion practice, the
volunteer lawyers tried the case to a jury, which ultimately reached
a verdict in favor of the remaining defendants. The volunteer
lawyers benefitted from their involvement in this case. Multiple
attorneys received valuable experience, including various firsts,
such as being first chair at trial, examining witnesses at trial, taking
a deposition, and arguing pretrial motions. The plaintiff and the
court also benefitted from the lawyers involvement in the case.
Trial is the most difficult part of the adversarial process for a pro se
litigant to navigate, and the assistance of counsel resulted in the
skillful presentation of evidence by attorneys who understood the
legal claims and defenses at issue. In other words, the plaintiff had
a fair chance, which is all that a party can ask for, and which a court
is supposed to ensure (although there is potential tension with the
courts neutrality, which the court must maintain).
This case also highlights some of the difficult aspects of the Pro
Se Project. This was not a frivolous or meritless caseit had
enough merit to survive two years of litigation while the plaintiff
proceeded pro se, and there was enough evidence supporting the
plaintiffs Fourth Amendment claim to withstand summary
judgment. It is fair to say that the plaintiff was disadvantaged in the
discovery and pretrial litigation process because he lacked counsel
until shortly before trial. Had he been represented from the start,
the case may have been more likely to settle. Litigation of difficult
issues is always uncertain, and when parties reach settlement
agreements, more parties can be satisfied with the result. This type
of case can pose a dilemma for the Pro Se Project because it
requires a significant commitment on the part of the volunteer
89
lawyer. Additionally, the volunteer attorney may be brought in
after the close of discovery or rulings on significant motions and
therefore may be limited in the evidence or legal arguments that
may be available.
88. Id.
89. By contrast, Rule 6.1 of the Minnesota Rules of Professional Conduct sets
an aspirational goal for each lawyer to provide fifty hours of pro bono legal services
per year. MINN. RULES OF PROFL CONDUCT R. 6.1 (2005).
PRObySE
Published LITIGANTS
Mitchell - CASE
William Mitchell
Stan J. Vol. 39, Iss. 1 [2012],
Caterbone, ProArt.
C. Due Process Rights in a Treatment Facility

A civilly committed sex offender filed a pro se civil rights suit
alleging that staff members at the treatment facility to which he was
committed lied by reporting that he threatened staff members in
order to get the patient sent back to jail, in violation of his due
90
process rights. At the request of a federal judge, volunteer lawyers
agreed to represent the plaintiff, and they represented him from
91
February 2008 through a jury trial in June 2010. The jury awarded
the plaintiff both compensatory and punitive damages, and the
court ultimately entered an order requiring the state to change its
92
policies. Counsel sought attorneys fees as the prevailing party in
93
a civil rights action pursuant to 42 U.S.C. 1988(b). The court
approved the firms request for over $370,000 in attorneys fees,
94
representing over 1200 attorney and staff hours, portions of which
were donated to the Pro Se Project and to the Volunteer Lawyers
Network.
This case is an example of pro bono attorneys facilitating access
to justice by providing legal representation to a pro se litigant who
otherwise could not afford it. In the case, the firm was
compensated for its time. But the case also raises some difficulties.
Although attorneys fees are available in civil rights cases, they are
not available in all categories of cases. And many cases may involve
complex litigation issues, but do not offer the prospect of a large
enough damages award to make a contingency fee retention
sensible from a cost perspective. Finally, cases that are tried to
juries frequently could go either way, and firms may flinch at the
prospect of volunteering hundreds of thousands of dollars worth
of attorney and firm time that could be spent on fee-paying billable
matters.
90. Holly v. Anderson, No. 04-CV-1489 (JMR/FLN), 2008 WL 1773093, at *3

(D. Minn. Apr. 15, 2008).
91. Plaintiffs Motion for an Award of Attorneys Fees at 1, Holly v. Konieska,
No. 04-CV-1489 (JMR/FLN) (D. Minn. Aug. 16, 2010), ECF No. 249.
92. Id.
93. Id.
94. Holly v. Konieska, No. 04-CV-1489 (JMR/FLN) (D. Minn. Aug. 17, 2010)
(order granting plaintiffs motion for attorneys fees); Affidavit of Mark G.
Schroeder at 2, Holly v. Konieska, No. 04-CV-1489 (JMR/FLN) (D. Minn. Aug. 16,
2010), ECF No. 250.

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D. Employment Discrimination
A pro se plaintiff filed an employment discrimination complaint
against her former employer, alleging that she was terminated
because of her race and in retaliation for complaining about being
95
mistreated by her colleagues. Before the case was referred to the
Pro Se Project, the plaintiff tried but was unable to find a lawyer to
represent her on a contingency basis. After referral, a volunteer
attorney entered an appearance on her behalf; this occurred
before the first status conference and before any dispositive
motions were filed. The parties began the discovery process,
including interrogatories and production of documents, and
depositions were taken of the plaintiff and of her immediate
supervisor. They ultimately reached an agreement to settle the
matter at a settlement conference, which successfully resolved the
plaintiffs claims without the delay and uncertainty of further
litigation and relieved the court of the burden of presiding over
any further proceedings or motion practice.
The volunteer attorney was able to develop important
litigation skills by taking and defending depositions and
conducting discovery and settlement negotiations. The main
difficulty presented by this case related to costs. The pro se litigant
was granted in forma pauperis (IFP) status by the court because of
her financial status, which meant the court would waive filing fees
but not remove all costs of litigation. The plaintiff was able to
obtain pro bono court reporting services for the deposition of her
supervisor, but it only covered up to two hours and seventy-five
pages. The deposition required more time than that, and how the
Pro Se Projects reimbursement policy will operate in regard to the
volunteer lawyers request for reimbursement remains to be seen.
V. STATISTICS ON PRO SE PROJECT CASES

We have access to statistics concerning the Pro Se Project for
three time periods: May 2009 through December 2011; the year of
96
2011; and January through April 2012. These statistics
95. Complaint at 1014, Triplett v. Essentia Health, No. 11-2545 RHK/LIB

(D. Minn. Sept. 6, 2011).
96. Tiffany Sanders, Pro Se Project Plans 2nd Annual Pro Se/Pro Bono Bar
Summit and Expands Outreach Efforts, MINN. CHAPTER FED. B. ASSN: BAR TALK, Mar.
28, 2012, at 15 [hereinafter 2nd Annual Bar Summit], available at
http://fedbar.org/Image-Library/Chapters/Minnesota-Chapter/Bar-Talk/Bar
PRObySE
Published LITIGANTS
Mitchell - CASE
William Mitchell
Stan J. Vol. 39, Iss. 1 [2012],
Caterbone, ProArt.
demonstrate a few trends. First, there is a great need for counsel in

pro se cases. Many pro se litigants are poor and received IFP status.
For example, between May 2009 and December 2011, the District
97
Court of Minnesota referred 207 cases to the Pro Se Project. Of
98
those cases, 152 pro se litigants applied for IFP status (73%).
Excluding the twenty-eight cases that were dismissed prior to an
IFP determination, the court granted IFP status in 112 of the 124
99
remaining cases (90%). Not only can these litigants not afford
counsel, but it is clear that they want counsel. For example, in
2011, the court referred eighty-three cases to the Pro Se Project, and
sixty-six of those pro se litigants sought to participate in the Project
100
(80%).
Second, certain types of cases are the most common. Of the
eighty-three cases referred to the Pro Se Project in 2011, thirty-seven
were employment discrimination cases (almost 45%), thirteen were
civil rights cases (16%), thirteen were social security disability
insurance cases (16%), and the remaining twenty involved a mix of
contract, consumer credit, ERISA, trademark, habeas corpus,
101
immigration, personal injury and other claims (24%). Civil rights
and employment matters are the overriding themes in the other
102
years as well. The need for representation in these areas is
particularly high, as employment, discrimination, and civil rights
often involve complicated legal and factual issues.
Finally, the data suggest that the Pro Se Project is workingand
improvingbut there may still be work to do. The fact that all of
the pro se litigants in 2011 who sought to participate were able to
consult with volunteer attorneys is an important success for the
Project and for those litigants. But the number of referrals and
-Talk-March-2012.pdf; Tiffany Sanders, Pro Se Project Coordinator, 2012 Referrals

(Aug. 20, 2012) [hereinafter 2012 Referrals] (on file with authors); Tiffany
Sanders, Pro Se Project Coordinator, IFP and Representation Status of Referrals:
May 2009December 2011 (Feb. 7, 2012) [hereinafter IFP and Representation
Status of Referrals] (on file with authors); Tiffany Sanders, Pro Se Project
Coordinator, Referrals by Law Firms: May 2009December 2011 (Apr. 2, 2012)
(on file with authors); Tiffany Sanders, Pro Se Project Coordinator, Referrals by
Nature of Suit: May 2009December 2011 (Jan. 25, 2012) [hereinafter Referrals by
Nature of Suit] (on file with authors).
97. IFP and Representation Status of Referrals, supra note 96.
98. Id.
99. Id.
100. 2nd Annual Bar Summit, supra note 96.
101. Id.
102. See 2012 Referrals, supra note 96; Referrals by Nature of Suit, supra
note 96.

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Se Litigation
consultations significantly outpaces the number of times that

attorneys entered notices of appearance. In the 20092011 time
period, an attorney entered an appearance in eighty-one of the 207
103
cases (39%). In 2011, an attorney entered an appearance in
thirty-three of the sixty-six cases in which the pro se litigant
104
consulted with a volunteer attorney (50%). The increase in
appearances is a positive trend. It is likely that in some of these
cases in which an attorney did not enter an appearance, the
consultation revealed that the case lacked merit, and the pro se
litigant agreed with the attorney that voluntary dismissal was in his
or her best interests. It is possible that in some of those cases, the
attorney was able to help the litigant negotiate a settlement before
it became necessary to enter an appearance. But 50% is still a
significant number, and it suggests that in some cases, pro se
litigants who wanted and may have been best served by the
representation of counsel were not represented in court. Clearly,
there remains work to be done.
VI. ASSESSING THE PRO SE PROJECTS EFFECTIVENESS AND

PROPOSED FUTURE STEPS
In many ways, the Pro Se Project is off to a successful start. Pro
se litigants who wish to participate in the Project are able to consult
with volunteer attorneys about their cases, and even if
representation does not go beyond that point, there is real value in
meeting with an attorney and discussing the case. The Pro Se
Projects partnership with MJF and work with the bar to allow
participating attorneys to obtain free CLE credit provide useful
incentives to participate in the Project. And the District of
Minnesotas parallel project, the Representing Yourself (Pro Se)
webpage, which provides more information and access to services
for pro se litigants, has helped pro se litigants navigate the court
system on their own and get to the point where they can receive
assistance from the Pro Se Project.
However, providing counsel to pro se litigants who cannot
afford it is an ongoing struggle, and there is work to be done. Not
all pro se litigants who have participated in the Pro Se Project have
had attorneys enter notices of appearance on their behalf.
Additionally, pro se litigants may receive counsel through the
103. IFP and Representation Status of Referrals, supra note 96.

104. 2nd Annual Bar Summit, supra note 96.
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Caterbone, ProArt.
Project at various stages of litigation. Thus, even participating pro se

litigants may be at a disadvantage at critical stages of the adversarial
process. The availability of more lawyers to participate in the Pro Se
Project could certainly help make it easier for pro se litigants to be
represented by counsel and represented earlier in litigation.
Earlier involvement could help resolve cases more quickly and
provide more focused submissions, reducing the burden on the
courts and potentially saving the government money. One place to
start to encourage attorney participation may be to implement a
firmer costs policy. With an untested, discretionary costs policy,
attorneys and their firms cannot know if reasonable costs and
expenses that they incur will be reimbursed.
Another area in which the Pro Se Project could benefit is from
tracking and gathering or obtaining access to more quantitative
information. There are unresolved questions. Why are some cases
not resulting in attorneys entering appearances? Is there an
optimal ratio of attorney appearances to consultations? Does the
court clear cases faster when attorneys become involved through
the Pro Se Project? Are they more likely to settle? Do they take up
more or less court time? Do the pro se litigants receive better
outcomes? Are attorneys getting involved early enough in the
process? Although some of this information is subject to the
attorney-client privilege and is therefore impossible to track, any
additional information can only strengthen the ability to evaluate
the Pro Se Projects effectiveness and areas for improvement.
Although the Pro Se Project is an FBA and District of
Minnesota project, it has achieved tangible results and positive
outcomes, and lessons can be learned that can benefit state courts
as well as other jurisdictions. At the same time, the Pro Se Project
needs to continue to assess its successes and failures and strive to
improve. The Pro Se Project is made possible through the collective
efforts of the FBA and its members (as well as the efforts of the
court). All of us, as members of the Minnesota bar, have an
obligation to give back to the community and try to ensure that all
residents (especially the poor and underserved) have access to
justice and can effectively participate in the court system to
vindicate their rights; we all should keep that in mind and evaluate
whether there is something more or different that we can do.
Specifically in regard to the Pro Se Project, we propose a public
funding mechanism that would guarantee reimbursement of costs.

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Se Litigation
There are various possibilities that relate to improving access

to representation for pro se litigants in federal court. One option
would be to impose a mandatory system. Members of the
Minnesota bar are currently required to report at least forty-five
CLE hours over each three-year reporting period, at least three
hours of which must be in ethics or professional responsibility and
at least three hours of which must be in elimination of bias in the
105
legal system and in the practice of law. They are also encouraged
106
to provide at least fifty hours of pro bono legal service each year.
Members of the bar could instead be required to provide a certain
number of hours of pro bono legal services. Like the ethics and bias
CLE requirements, there could even be a smaller subset of hours
pertaining specifically to assisting pro se litigants. These
requirements could apply each year, each three-year reporting
period, or to any other time period. For example, New York is
implementing a system in which new attorneys must provide fifty
107
hours of pro bono service before joining the state bar.
However, we have concerns about a mandatory system in this
area. Attorneys could be forced to practice outside of their
practice areas, including areas in which they are not comfortable.
108
This could result in reduced quality of service. The quality of
service may also be worse under a mandatory system because
volunteer attorneys are more likely to be enthusiastic about those
matters than attorneys who feel that they have been conscripted
109
into service. Mandatory pro bono service would also work a
disproportionate hardship on solo practitioners, who do not have
the same kind of excess capacity or the ability to spread the effect
110
of providing pro bono services over a large number of lawyers.
Under a mandatory system, attorney participants would include
105. RULES OF THE MINNESOTA STATE BD. OF CONTINUING LEGAL EDUC. R. 9

(A)(B) (Minn. State Bd. of CLE 2010), available at http://www.mbcle.state.mn.us
/MBCLE/pages/user_documents/CLE%20RULES%202-2010.pdf.
106. MINN. RULES OF PROFL CONDUCT R. 6.1 (2005).
107. Anne Barnard, Top Judge Makes Free Legal Work Mandatory for Joining State
Bar, N.Y. TIMES, May 1, 2012, http://www.nytimes.com/2012/05/02/nyregion
/new-lawyers-in-new-york-to-be-required-to-do-some-work-free.html?smid=pl-share.
108. Kendra Emi Nitta, An Ethical Evaluation of Mandatory Pro Bono, 29 LOY. L.A.
L. REV. 909, 92729 (1996) (discussing the concern for lower quality of services
provided in a mandatory pro bono system).
109. Id.; see also Barnard, supra note 107 (I worry about poor people with
lawyers who dont want to be there.).
110. Jonathan R. Macey, Mandatory Pro Bono: Comfort for the Poor or Welfare for the
Rich?, 77 CORNELL L. REV. 1116, 1120 (1992).
PRObySE
Published LITIGANTS
Mitchell - CASE
William Mitchell
Stan J. Vol. 39, Iss. 1 [2012],
Caterbone, ProArt.
senior litigators, who would not reap the same kinds of experience
benefits as younger lawyers.
We think the better course is to continue to use volunteer
attorneys, but to publicly fund and guarantee reimbursement of
their out-of-pocket costs. Softer incentives are already in place to
convince attorneys to volunteer their time. The availability of CLE
credit to attorneys participating in the Pro Se Project is one such
incentive. A second is the public good that comes from assisting
people and resolving these disputes. Federal judges and the FBA
consistently recognize the efforts of volunteer attorneys in Pro Se
Project cases and the effects these efforts have on access to justice.
Finally, participation in the Pro Se Project provides lawyers with
experience that they may otherwise struggle to obtain early in their
careers. All volunteer lawyers interact with the pro se clients, and
the client contact allows the lawyers to develop their skills in that
area. Depending on the case, the attorneys may also conduct
discovery, submit and argue motions, take and defend depositions,
negotiate a settlement with opposing counsel, or even try the case
to a jury or the court. Gaining this experience is a real benefit to
young lawyers careers, as it helps them become better lawyers; in
the same way, it helps their law firms by making them more
valuable assets.
Public funding of costs would be an important compromise
with real financial benefits to the system. It is one thing for a
lawyer or law firm to volunteer time, but it is another to ask them to
pay money out of pocket. Public funding and a firm costs
reimbursement policy will remove the disincentive to participate
that the prospect of out-of-pocket expenses creates. With that out
of the way, the incentives discussed above will weigh even more
strongly in favor of attorney participation in the Pro Se Project.
Although this is an important issue concerning access to justice that
independently justifies public funding of costs reimbursement, it is
also possible that some of the funding may be recaptured through
savings. As pro se litigants receive the assistance of counsel, the
special demands and burdens that pro se litigants place on the court
should be lessened. It is worth noting that these costs are likely
self-controllingeven with reimbursable costs, attorneys are
unlikely to devote uncompensated time to a matter when it will not
benefit the clients caseand they could easily be further
contained through a reasonableness review as part of the
reimbursement process. At the same time, because funding

Gustafson
Se Litigation
attorneys fees does not appear to be necessary, this is a fair

compromise that will limit the financial burden in publicly funding
the Pro Se Project.
PRObySE
Published LITIGANTS
Mitchell - CASE

Pro Se Litigation and The Costs of Access To Justice WILLIAM MITCHELL LAW REVIEW 2012

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PUBLISHED by Stan J.

Caterbone, Pro Se and THE ADVANCED MEDIA GROUP

St. John's Law Review

Pro Se Litigant's Eligibility for Attorney Fees Under

Follow this and additional works at: http://scholarship.law.stjohns.edu/lawreview

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PRO SE LITIGANT'S ELIGIBILITY FOR

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a court to award "reasonable attorney fees and litigation costs rea-

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1981] PRO SE LITIGANTS

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however, as to whether the FOIA authorizes an award of attorney

them if the withholding appeared to be merely to avoid embarrassment or to frus-

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1981] PRO SE LITIGANTS

period prescribed by law, Crooker filed a FOIA suit to force disclo-

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ST. JOHN'S LAW REVIEW [Vol. 55:520

FOIA "encompasses an award of attorney fees where no attorney

Nat'l Bank, 537 F.2d 327 (9th Cir. 1976)).

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1981] PRO SE LITIGANTS

In contrast to the First Circuit, the District of Columbia Cir-

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ST. JOHN'S LAW REVIEW [Vol. 55:520

THE CASE AGAINST ATTORNEY FEES FOR PRO SE FOIA PLAINTIFFS

Although Congress' position on pro se litigants' eligibility for

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1981] PRO SE LITIGANTS

must be viewed, therefore, as a judicial determination not to en-

The Fear of Abuse Argument

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ney fees to nonattorneys would encourage additional spurious liti-

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1981] PRO SE LITIGANTS

flood of litigation arising from sanctioning fees for pro se parties is

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The Semantic Argument

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1981] PRO SE LITIGANTS

"reasonable attorney fees and litigation costs reasonably incurred."

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The Economic BarrierArgument

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prisoners who do not lose tangible economic benefits in pursuing a

THE CASE IN FAVOR OF ATTORNEY FEES FOR PRO SE FOIA

The primary consideration in deciding whether pro se plain-

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their legal activity deserving of compensation. 0

Kaye v. Burns, 411 F. Supp. 897, 902 (S.D.N.Y. 1976).

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right to recover attorney fees.7 8 The courts are eminently capable

The FOIA presents a unique situation requiring responsive ju-

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538 ST. JOHN'S LAW REVIEW [Vol. 55:520

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