At page 988 Distinguishing statutory purposes regarding legal representation14 citing cases“the purpose of section 1988 is not to compensate a worthy advocate but to enable and encourage a wronged person to retain a lawyer.”
- Michael Gahagan v. US Citizenship & Img Servs., No. 17-30999 (5th Cir. Dec. 20, 2018).published“decisions under one of the statutes [as] inapposite to cases arising under the other”
- De Mino v. Achenbaum, 136 F. App'x 695 (5th Cir. 2005).unpublished“[T]he purpose of section 1988 is not to compensate a worthy advocate but to enable and encourage a wronged person to retain a lawyer”
- McReady v. Dep't of Consum. & Regulatory Affairs, 618 A.2d 609 (D.C. 1993).published “The history, language, and purpose of the Freedom of Information Act differ significantly from those of the Civil Rights statutes; those differences often render decisions under one of the statutes inapposite to cases a…”
- Rodgers v. W.-S. Life Ins., 792 F. Supp. 628 (E.D. Wis. 1992).publishedCofield v. City of Atlanta, 648 F.2d 986, 988 (5th Cir. Unit B 1981).
- Elizabeth D. Duncan v. David B. Poythress, 777 F.2d 1508 (11th Cir. 1985).published Id. at 988, n. 4 .
- Elizabeth D. Duncan v. David B. Poythress, 750 F.2d 1540 (11th Cir. 1985).published Id. at 988, n. 4 .
- Peniman v. Cartwright, 550 F. Supp. 1302 (S.D. Iowa 1982).published Cofield, supra, at 988; Rheuark, 477 F.Supp. at 928-29 ; see also Grooms, supra, at 383.
- Owen v. Lash, 682 F.2d 648 (7th Cir. 1982).published Cofield v. City of Atlanta, 648 F.2d 986, 988 (5th Cir. 1981); Lo- vell v. Snow, 637 F.2d 170, 171 (1st Cir. 1981); Davis v. Parratt, 608 F.2d 717 (8th Cir. 1979).
- Phyllis A. Barrett v. Bureau of Customs & Dep't of the Treasury, 651 F.2d 1087 (5th Cir. 1981).published
- George S. McLean v. Int'l Harvester Co., 902 F.2d 372 (5th Cir. 1990).published
Show 3 more citing cases
- In re Emergency Beacon Corp., 27 B.R. 757 (Bankr. S.D.N.Y. 1983).published
- Levine v. Heffernan, 691 F. Supp. 173 (W.D. Wis. 1988).published
- Winicki v. Mallard, 441 So. 2d 693 (Fla. 1st DCA 1983).published
At page 987 Courts refusing attorney's fees for pro se litigants13 citing casesemployment discrimination action
- Darrell Morris v. Indianapolis Pub. Schs., 972 F.2d 352 (7th Cir. 1992).unpublishedRedding v. Fairman, 717 F.2d 1120 (7th Cir.1983); Cofield v. City of Atlanta, 648 F.2d 986, 987-88 (5th Cir.1981).
- Lev v. Lev, 524 A.2d 674 (Conn. App. Ct. 1987).publishedAlmost all the courts that have considered the issue, however, have refused to grant attorney’s fees to pro se litigants, although for varying reasons. 3 See, e.g., Cofield v. City of Atlanta, 648 F.2d 986, 987-88 (5th Cir. 1981); Crooker…
- Frank Gonzalez v. William E. Kangas, 814 F.2d 1411 (9th Cir. 1987).published(employment discrimination action)
- Paul Edward Archie v. David A. Christian, 812 F.2d 250 (5th Cir. 1987).publishedCofield v. City of Atlanta, 648 F.2d 986, 987-88 (5th Cir.1981).
- Elizabeth D. Duncan v. David B. Poythress, 777 F.2d 1508 (11th Cir. 1985).published Id. at 988, n. 4 .
- Lanasa v. City of New Orleans, 619 F. Supp. 39 (E.D. La. 1985).published As defendants so amply point out in their brief: As was stated by the Fifth Circuit in Cofield v. City of Atlanta, supra, at 987, “Elsewhere we have stated that an act allowing attorney’s fees ‘is not passed for the benefit of attorneys bu…
- Elizabeth D. Duncan v. David B. Poythress, 750 F.2d 1540 (11th Cir. 1985).published Id. at 988, n. 4 .
- Lawrence v. Staats, 586 F. Supp. 1375 (D.D.C. 1984).publishedCourts from other Circuits, however, have overwhelmingly concluded that pro se plaintiffs are not entitled to attorney fees under § 1988, and by implication under § 2000e-5(k). 3 Pitts v. Vaughn, 679 F.2d 311, 312-13 (3d Cir.1982); Wright…
- Mary Williams Cazalas v. United States Dep't of Just., 709 F.2d 1051 (5th Cir. 1983).published In Cofield v. City of Atlanta, 648 F.2d 986, 987 (5th Cir.1981), we held a nonattor-ney pro se litigant was not eligible for an attorney fees award under 42 U.S.C. § 1988 , and noted that “an act allowing attorney’s fees is ‘not passed for…
- Duncan v. Poythress, 572 F. Supp. 776 (N.D. Ga. 1983).published In Cofield v. City of Atlanta, 648 F.2d 986, 987-88 (5th Cir.1981) (Unit B), the former Fifth Circuit held that a prevailing pro se litigant cannot recover attorney’s fees under section 1988.
Show 3 more citing cases
- Peniman v. Cartwright, 550 F. Supp. 1302 (S.D. Iowa 1982).published Cofield, supra, at 988; Rheuark, 477 F.Supp. at 928-29 ; see also Grooms, supra, at 383.
- Cahill v. Kendall, 202 F. Supp. 2d 1322 (S.D. Ala. 2002).publishedSee Cofield v. City of Atlanta, 648 F.2d 986, 987 (5th Cir., Unit B, 1981).
- Sawyer v. Luby, No. 98-40508 (5th Cir. June 24, 1999).unpublishedSee Cofield v. City of Atlanta, 648 F.2d 986, 987-88 (5th Cir. 1981).
Other citing cases
- Anthony Louis Celeste v. Louis W. Sullivan, 988 F.2d 1069 (11th Cir. 1992).published
- Pitts v. Vaughn, 679 F.2d 311 (3d Cir. 1982).published
- Ann Walker v. Anderson Elec. Connectors, 944 F.2d 841 (11th Cir. 1991).published
- Redding v. Fairman, 717 F.2d 1105 (7th Cir. 1984).published
- Redding v. Fairman, 717 F.2d 1105 (7th Cir. 1983).published
v.
CITY OF ATLANTA and J. D. Hudson, etc., Defendants-Appellants-Cross-Appellees
Lead Opinion
George M. Cofield began work as a custodial officer at the Atlanta City Jail in May,[*987] 1973. On August 12, 1976, Cofield was transferred from the Jail to the Farm Division. Because he “could not abide the transfer order,” Appellee’s Brief at 2, he did not report to work at the Farm. He was discharged for job abandonment. Believing that the transfer and subsequent discharge were prompted by his active and vocal criticism of his employers, Cofield brought suit,[1] alleging pro se that his employers had infringed upon his constitutional right to speak. A jury agreed and awarded Cofield $20,000 in actual damages, $10,000 in punitive damages, and $500 in attorney’s fees. The defendants moved for a judgment notwithstanding the verdict and, alternatively, for a new trial. Both motions were denied and the defendants appeal.
We have carefully reviewed the record and considered the briefs and arguments. We conclude that there is sufficient evidence to support the jury’s awards of damages, and thus, like the trial court, we will not disturb that verdict. However, we have serious misgivings concerning the award of attorney’s fees to Cofield, who appeared pro se. We reverse on that issue.
The Civil Rights Fee Awards Act of 1976, 42 U.S.C. § 1988, permits a court in its discretion to allow the prevailing party a reasonable attorney’s fee as part of the costs of an action to enforce a provision of, inter aiia, section 1983.[2] Cofield is not an attorney, yet undoubtedly he devoted considerable time and effort in the pursuit of this claim. We do not suggest that he was an unworthy advocate; to be sure, he has prevailed. Nor do we imply that it is improper for a person to serve as his own advocate. We feel strongly, however, that the intent of Congress in enacting section 1988 would be seriously undermined if we allowed pro se litigants to recover legal fees under that section.
Elsewhere we have stated that an act allowing attorney’s fees is “not passed for the benefit of attorneys but to enable litigants to obtain competent counsel .... ” Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 719 (5th Cir. 1974).[3] Section 1988 was enacted two years after the rendering of the decision in Johnson v. Georgia Highway Express, and the legislative history of the act echoes our statement in that case. Congress specifically approved the standards established in Johnson v. Georgia Highway Express and its legacy, pointing out that “[tjhese cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls ....” S.Rep.No. 94-1011, 94th Cong.2d Sess. 6, reprinted in [1976] U.S.Code Cong. & Ad. News 5908, 5913. Congress thought that awards of attorney’s fees may be necessary because “[i]n many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer.” Id. at[*988] 2, reprinted in [1976] U.S.Code Cong. & Ad. News, at 5910. “[I]f our civil rights laws are not to become mere hollow pronouncements which the average citizen cannot enforce we must maintain the traditionally effective remedy of fee shifting in these cases.” Id.
Thus, it is clear to us that the purpose of section 1988 is not to compensate a worthy advocate but to enable and encourage a wronged person to retain a lawyer. It is apparent that Congress thought that such people ought to have access to legal representation.
Case law in this circuit buttresses our understanding of the purpose of section 1988. See Rheuark v. Shaw, 628 F.2d 297, 300 n.1 (5th Cir. 1980) (“[W]e agree with the district court and its reasoning that Congress intended 42 U.S.C. § 1988 to compensate attorneys not pro se litigants.”); Rheuark v. Shaw, 477 F.Supp. 897, 928-29 (N.D.Tex.1979). At least two other circuits are in accord. See Lovell v. Snow, 637 F.2d 170 (1st Cir. 1981); Davis v. Parratt, 608 F.2d 717 (8th Cir. 1979). There are cases, notably those arising under the attorneys’s fees sections of the Freedom of Information Act, 5 U.S.C.A. § 552(a)(4)(E), (F), in which courts have allowed pro se litigants attorneys fees. See, e. g., Cox v. United States Department of Justice, 601 F.2d 1, 5-6 (D.C. Cir. 1979); contra, Crooker v. United States Department of Justice, 632 F.2d 916, 920-22 (1st Cir. 1980). This court once faced that question, but decided to dispose of the pro se litigant’s request for attorney’s fees without answering “the broader question of whether a pro se litigant is ever entitled to recover attorney’s fees in a [Freedom of Information Act] case.” Lovell v. Alderete, 630 F.2d 428, 431 (5th Cir. 1980). In any event, we do not find these cases persuasive authority on the issue before us here. The history, language, and purpose of the Freedom of Information Act differ significantly from those of the civil rights statutes;[4] those differences often render decisions under one of the statutes inapposite to cases arising under the other.
Thus we reverse that aspect of the district court’s order awarding Cofield attorney’s fees.
AFFIRMED in part; REVERSED in part.
Cofield brought suit under 42 U.S.C. §§ 1981, 1983, 1985 and 1986, complaining that the defendants conspired to and had violated his first amendment right to speak, had discriminated against him because of his race, and had violated his employment contract. He named as defendants the City of Atlanta, Maynard Jackson, Mayor of the City of Atlanta, J. D. Hudson, Director of the Bureau of Corrections for the City of Atlanta, and Aubrey Thomaston, Deputy Director of the Bureau of Corrections for the City of Atlanta. The trial court dismissed all of the defendants except the City of Atlanta and J.D. Hudson, appellants here, and directed verdicts for the defendants on the conspiracy, race discrimination and contract allegations. By way of cross-appeal, Cofield seeks to have Maynard Jackson reinstated as a party defendant. We find no error and thus affirm the district court’s directed verdict in favor of Jackson.
Judge Sharp, of the Northern District of Indiana, has concisely and informatively discussed the history culminating in the passage of the Civil Rights Fees Awards Act. See generally Grooms v. Snyder, 474 F.Supp. 380 (N.D.Ind. 1979). In Grooms the plaintiff, a state prisoner suing pro se under section 1983, was assisted at trial by another prisoner who served as a “lay advisor.” The plaintiff prevailed, and the lay advisor moved for “legal assistance fees” under section 1988. Judge Sharp denied the motion for much the same reason we deny attorney’s fees here.
In Johnson v. Georgia Highway Express we were interpreting the attorney’s fees section of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k). The language of section 1988 tracks that of section 2000e-5(k).
For example, it seems to us that actions brought under the Freedom of Information Act are likely to be brought by pro se litigants; damages are generally not involved and the relief sought is simply the release of information. Furthermore, section 552(a)(4)(F) may suggest that an award of attorney’s fees may be in part punitive, “a useful sanction for unfounded resistance to a disclosure request .... ” Lovell v. Alderete, 630 F.2d at 437 (Thomas A. Clark, Circuit Judge, dissenting). There is no suggestion that an award of section 1988 attorney’s fees should be in any way punitive.
Concurrence in Part
concurring in part and dissenting in part:
I concur in that part of the majority’s opinion that affirms the jury’s award of $30,000 in actual and punitive damages to the plaintiff below. I part company with the majority, however, on the issue of a pro se litigant’s right to legal fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. Essentially for the same reasons that I outlined in my dissenting opinion in Lovell v. Alderete, 630 F.2d 428, 434 (5th Cir. 1980), concerning the award of attorney’s fees to pro se litigants in Freedom of Information Act cases, I would hold in this case that the Civil Rights Attorney’s Fees Awards Act of 1976 provides the courts with the discretion to allow a prevailing pro se litigant a reasonable attorney’s fee as part of the costs of the successful action.