UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


BLAZY, LOUIS J.

v.

TENET, GEORGE J.


98-5232a

D.C. Cir. 1999


*	*	*


Edwards, Chief Judge: Louis J. Blazy, pro se, "substantial- ly
prevailed" in his litigation against the Government, brought  pursuant
to the Privacy Act, 5 U.S.C. s 552a (1994), in  conjunction with the
Freedom of Information Act, 5 U.S.C.  s 552 (1994) ("FOIA"), seeking
access to and amendment of  documents in his personnel file at the
Central Intelligence  Agency ("CIA"). He now challenges the District
Court's  denial of his motion for attorneys' fees and litigation costs
 under the Privacy Act. He argues that the District Court  erred in
applying standards applicable to FOIA in assessing  his claims arising
under the Privacy Act.


The Government resists Mr. Blazy's appeal on several  grounds. First,
the Government asserts that fees for attor- neys consulted by a pro se
plaintiff are not recoverable under  either FOIA or the Privacy Act.
Second, the Government  argues that Mr. Blazy is not entitled to
recover his claimed  costs because they do not fall within the compass
of allowable  costs under 28 U.S.C. s 1920 (1994). The Government fur-
ther contends that because Mr. Blazy invoked both FOIA and  the
Privacy Act and because the language of FOIA's and the  Privacy Act's
fee-shifting provisions are nearly identical, the  District Court
properly applied FOIA's standards to Mr.  Blazy's Privacy Act claims.
Finally, the Government insists  that Mr. Blazy's claims for fees and
costs should fail because  they have not been substantiated.


We affirm the District Court's ruling that Mr. Blazy's pro  se status
does not by itself preclude the recovery of fees for  consultations
with outside counsel. We also affirm the judg-


ment of the District Court that s 1920 does not provide an  exhaustive
list of recoverable costs under the Privacy Act,  because a litigant
can recover "other reasonable litigation  costs" under the Privacy Act
that are beyond the scope of  s 1920. However, we reject the District
Court's assumption  that Mr. Blazy's claims for fees and litigation
costs must be  evaluated under judicial precedent construing FOIA. Mr.
 Blazy's claims clearly arise under the Privacy Act. There- fore, it
would be illogical to evaluate his requests for fees and  litigation
costs pursuant to tests designed to assess FOIA  claims. Not only do
FOIA and the Privacy Act serve very  different purposes, but there is
nothing in either statute or in  the relevant legislative history that
requires courts to resolve  claims arising under the Privacy Act
pursuant to standards  developed to assess claims arising under


Although Mr. Blazy clearly is eligible to seek fees and  other
litigation costs under the Privacy Act, most of his  claims must be
rejected for want of substantiation. With the  exception of filing
fees to which Mr. Blazy is entitled to  recover, we affirm the
District Court's conclusion that Mr.  Blazy's other claims for fees
and litigation costs must be  denied. We reach this result not because
Mr. Blazy failed to  satisfy FOIA standards, but instead because his
claims fail  for want of documentation.


I. Background


Mr. Blazy "brought this action pursuant to the Privacy Act,  in
conjunction with the Freedom of information Act, seeking  access to
and amendment of documents in his personnel file  at the Central
Intelligence Agency where he was formerly  employed." Blazy v. Tenet,
979 F. Supp. 10, 14 (D.D.C. 1997)  (citations omitted). Mr. Blazy's
difficulties first arose in 1989  when he was employed as a computer
scientist with the CIA  and was seeking employment with the FBI. When
the FBI,  as part of its background check, sought information on Mr. 
Blazy from the CIA, Mr. Blazy made inquiries of his own to  review
files under his name with the CIA to insure that they  were accurate.
After discovering that his files contained  charges of sexual
harassment, Mr. Blazy complained and was 


subsequently assured by the CIA's Director of Security that  the
allegations were unfounded and that the FBI would be so  notified. See
id. at 15. In August 1990, Mr. Blazy wrote to  the FOIA and Privacy
Act Branch of the CIA requesting "a  copy of all documents collected
and maintained in various files  listed under my name." Id. (internal
quotation marks omit- ted). It took nearly four years before the CIA
finally re- leased some documents to Mr. Blazy in response to his 
request. Dissatisfied with what he received, Mr. Blazy then  filed
this action in District Court, "alleging that he had not  received all
the documents to which he was entitled and that  his records contained
inaccuracies and misstatements that  had caused him to be denied the
FBI job. Defendants moved  to dismiss and, on January 31, 1996, the
Court dismissed  some parts of the complaint but preserved the central
Privacy  Act claims against the agency itself." Id.


It is unnecessary to detail every aspect of the contest that  ensued
between Mr. Blazy and the Government, for the  history of the parties'
litigation is amply described in the  opinion of the District Court.
See id. at 15-16 (providing a  detailed factual summary). Throughout
the litigation before  the District Court, Mr. Blazy "maintained ...
that his rec- ords contain[ed] inaccuracies, that documents [were]
missing,  that information ha[d] been improperly redacted, that infor-
mation was improperly disseminated, and generally that the  CIA ha[d]
failed to comply with the disclosure provisions and  accuracy
guarantees of the Privacy Act. As a result, he  allege[d] that he was
denied the FBI job and continue[d] to  be prejudiced in his ability to
obtain employment." Id. at 16.  Suffice it to say, it was only after
extensive proceedings  before the District Court that Mr. Blazy's
requests for access  to and amendment of documents in his personnel
file at the  CIA were adequately addressed.


On September 17, 1997, after the CIA had released addi- tional
documents to Mr. Blazy, the District Court concluded  that the agency
had finally conducted an adequate search of  its records. The court
thus determined, inter alia, that the  CIA had not violated the
Privacy Act and had properly  invoked FOIA's exemptions with regard to
all of the redacted 


or withheld documents save 15. See id. at 25-26. After  viewing those
15 documents in camera, the District Court  concluded that they had
properly been withheld under FOIA.  See Blazy v. Tenet, Civ. Act. No.
93-2424, Supp. Op. at 1-2  (D.D.C. Dec. 3, 1997), reprinted in Joint
Appendix ("J.A.")  238-39. A Special Panel of this court summarily
affirmed the  judgment of the District Court. See Blazy v. Tenet, No.
97- 5330 (D.D.C. May 12, 1998) (affirming the District Court's  order
granting summary judgment). Subsequently, on April  6, 1998, the
District Court denied Mr. Blazy's motion for fees  and litigation
costs. The trial court found that Mr. Blazy had  "substantially
prevailed" in his claims against the Govern- ment, because "the filing
of the suit and the Court's involve- ment were directly responsible
for the release of all docu- ments to which plaintiff was entitled."
The District Court  thus concluded that Mr. Blazy was eligible for an
award of  fees and litigation costs. However, the District Court held 
that Mr. Blazy was not entitled to an award of fees and  litigation
costs, because his case failed to satisfy the four- factor test used
to determine fee entitlements under FOIA.  Blazy v. Tenet, Civ. Act.
No. 93-2424, Mem. Op. at 6-8  (D.D.C. Apr. 6, 1998), reprinted in J.A.
268-70. In particu- lar, the District Court noted that Mr. Blazy's
case did not  concern matters of public interest, his motives were
wholly  personal because the records affected only his employment 
prospects, and the agency did not act in bad faith. See id. at  7-8,


Mr. Blazy appealed and moved for summary reversal. The  Government
similarly moved for summary affirmance. In a  per curiam order dated
November 5, 1998, a Special Panel  denied the motions for summary
disposition and ordered that  amicus curiae be appointed to present
argument on behalf of  Mr. Blazy.


II. Discussion


A. Pro Se Litigants and Litigation Costs Under 28 U.S.C.  s 1920


The District Court made two threshold decisions in deter- mining that
Mr. Blazy was eligible for attorney fees and 


litigation costs under the Privacy Act: First, the court held  that Mr.
Blazy's pro se status does not by itself preclude the  recovery of
fees for consultations with outside counsel. Sec- ond, the court found
that 28 U.S.C. s 1920 does not provide  an exhaustive list of
recoverable costs under the Privacy Act,  because a litigant can
recover "other reasonable litigation  costs" under the Privacy Act
that are beyond the scope of  s 1920. Both of those holdings were


The Government argues that Mr. Blazy cannot recover fees  for
consultations with licensed attorneys because he is a pro  se
litigant. This claim is baseless. In support of its position,  the
Government relies on the decisions in Kay v. Ehrler, 499  U.S. 432
(1991), and Burka v. United States Dep't of Health  and Human Servs.,
142 F.3d 1286 (D.C. Cir. 1998). Howev- er, neither decision supports
the Government's view in this  case.


Kay stands for the proposition that "an attorney who  represented
himself in a successful civil rights case could not  recover
attorney's fees under 42 U.S.C. s 1988," Burka, 142  F.3d at 1288,
because Congress likely used the word "attor- ney" in the fee
provision to invoke "an agency relationship,  and it seems likely that
Congress contemplated an attorney- client relationship as the
predicate for an award under  s 1988." Kay, 499 U.S. at 435-36. The
Court reasoned that  the provision's specific purpose was to "enable
potential plain- tiffs to obtain the assistance of competent counsel
in vindicat- ing their rights." Id. at 436. Parties who appear pro se
are  "deprived of the judgment of an independent third party in 
framing the theory of the case, evaluating alternative meth- ods of
presenting the evidence, cross-examining hostile wit- nesses,
formulating legal arguments, and in making sure that  reason, rather
than emotion, dictates the proper tactical  response to unforeseen
developments in the courtroom." Id.  at 437. Thus, the rule against
awarding fees to pro se  litigants stems from a judgment that "[t]he
statutory policy of  furthering the successful prosecution of
meritorious claims is  better served by a rule that creates an
incentive to retain  counsel in every such case." Id. at 438. Our


and who has substantially prevailed on a FOIA claim cannot  be awarded
attorney's fees under FOIA. Mr. Blazy's claim in  the instant case is
not inconsistent with the statutory policy  enunciated in Kay and
Burka.


Mr. Blazy is not seeking to collect attorneys' fees for his  own work
on this case; rather, he is claiming fees for lawyers  with whom he
consulted throughout this case. Thus, his pro  se status is irrelevant
to the claims at issue. We differ with  our concurring colleague on
this point, because we find noth- ing in the statute or the case law
that requires an attorney to  file a formal appearance in a case in
order for a litigant to  claim fees. As we stated in Burka, pro se
litigants are  eligible to claim fees so long as their outside counsel
"enjoyed  a genuine attorney-client relationship ... , were situated
to  offer 'independent' legal advice and assistance, and were 
presumably paid for their services." Burka, 142 F.3d at  1291.
Accordingly, we affirm the District Court's conclusion  that Mr.
Blazy's pro se status does not by itself preclude the  recovery of
fees for consultations with outside counsel.


We also agree with the District Court's holding that s 1920  does not
bar Mr. Blazy's claim for costs in this case. Mr.  Blazy seeks
litigation costs under the Privacy Act, which  provides that


(B) The court may assess against the United States  reasonable attorney
fees and other litigation costs rea- sonably incurred in any case ...
in which the complain- ant has substantially prevailed.


5 U.S.C. s 552a(g)(2)(B). The District Court correctly noted  that the
reference to "other litigation costs" expanded the  scope of costs
available under the Privacy Act beyond the  limits of s 1920.


The costs provision in the Privacy Act mirrors a provision  in FOIA,
which also allows a prevailing party to claim "other  litigation
costs." 5 U.S.C. s 552(a)(4)(E). We note with  agreement that, in
construing this provision, the court in  Kuzma v. Internal Revenue
Service, 821 F.2d 930 (2d Cir.  1987), explicitly rejected the
Government's contention that  costs under FOIA were limited by s 1920.
Id. at 933. The  Kuzma court specifically determined that "[t]he
statutory  language and the purposes of the relevant sections, as well


the legislative history and decisions of various other courts,  lead us
to conclude that an award of costs pursuant to s 552  is not limited
to those authorized by s 1920." Id. at 932. In  particular, the Second
Circuit noted that by adding the  phrase "other litigation costs" to
FOIA in 1974, Congress  necessarily intended to expand the "scope of
costs already  recoverable against the government under s 1920." Id.
To  hold otherwise would, "in effect, excise the words 'other 
litigation costs' from the statute by rendering them meaning- less."
Id. We agree. And we also hold that the Second  Circuit's reasoning
with respect to claims for costs under  FOIA applies with equal force
to claims under the Privacy  Act. This is not to say that FOIA claims
and Privacy Act  claims must always be resolved in the same way;
rather, it is  to say that s 1920 does not serve as a limit on
recovery of  litigation costs under either FOIA or the Privacy Act.


B. The Standard for Assessing Entitlement to Fees and  Litigation Costs
for Claims Arising Under the Privacy  Act


Although the District Court found that Mr. Blazy was  eligible to claim
fees and litigation costs under the Privacy  Act, the court denied the
claims because Mr. Blazy could not  satisfy judicially-adopted
standards that have been used to  assess claims for fees and
litigation costs under FOIA. This  was a mistake.


Both FOIA and the Privacy Act state, in like terms, that  parties who
prevail against the Government on claims under  the statutes may seek
reasonable attorney fees and other  litigation costs. Because the
statutory fees and costs lan- guage is the same, some courts have
assumed, with no  apparent justification, that claims for fees and
litigation costs  under the Privacy Act should be assessed pursuant to
the  same standards used to assess fees and litigation costs under 
FOIA. See, e.g., Gowan v. United States Dep't of the Air  Force, 148
F.3d 1182, 1195 (10th Cir. 1998) ("[W]e note that  the Privacy Act
attorney's fee provisions are substantially  similar to the fee
provision of the Freedom of Information 


Act. Consequently, like at least two of our sister circuits, we  shall
apply a FOIA attorney's fee analysis to this Privacy Act  case.")
(internal citation omitted)); Barrett v. Bureau of  Customs, 651 F.2d
1087, 1088 (5th Cir. Unit A July 1981)  (noting that FOIA's guidelines
apply to claims for attorneys'  fees under the Privacy Act). Indeed,
even this court, in dicta,  has suggested that "[c]ases construing the
identical attorneys'  fees provision in the Freedom of Information Act
... are  apposite as well in the Privacy Act context." Sweatt v. 
United States Navy, 683 F.2d 420, 423 (D.C. Cir. 1982)  (Sweatt was
found not to have "substantially prevailed" under  the Privacy Act, so
he was ineligible for fees). On close  examination, however, it is
clear that there is no justification  for a court to blindly embrace
standards used under FOIA to  assess claims for fees and litigation
costs presented by pre- vailing parties under the Privacy Act.


The Privacy Act of 1974 "safeguards the public from un- warranted
collection, maintenance, use, and dissemination of  personal
information contained in agency records ... by  allowing an individual
to participate in ensuring that his  records are accurate and properly
used." Bartel v. FAA, 725  F.2d 1403, 1407 (D.C. Cir. 1984). To
effectuate that purpose,  the Act requires any agency that maintains a
"system of  records" to publish at least annually a statement in the 
Federal Register describing that system. 5 U.S.C. s 552a(e).  In
addition, any agency that maintains a system of records  and receives
a request by an individual to gain access to his  records or to any
information pertaining to him that is  contained in the system must
permit him to review his  records and have copies made of all or any
portion of the  record in a form that is comprehensible to the
requester. See  5 U.S.C. s 552a(d)(1).


Unlike FOIA, the Privacy Act's primary purpose is not  disclosure.
Rather, "the main purpose of the Privacy Act's  disclosure requirement
is to allow individuals on whom infor- mation is being compiled and
retrieved the opportunity to  review the information and request that
the agency correct  any inaccuracies." Henke v. United States Dep't of
Com- merce, 83 F.3d 1453, 1456-57 (D.C. Cir. 1996). Indeed,  although
both FOIA and the Privacy Act "evidence Congres- sional concern with
open government, and especially, accessi-


bility of government records," Greentree v. United States  Customs
Serv., 674 F.2d 74, 76 (D.C. Cir. 1982),


[e]ach seeks in different ways to respond to the potential  excesses of
government. Each, therefore, has its own  functions and limitations.
While the Privacy Act was  designed to provide individuals with more
control over  the gathering, dissemination, and accuracy of agency 
information about themselves, FOIA was intended to  increase the
public's access to governmental information.


Id. at 76 (citations omitted).


Thus, although both FOIA and Privacy Act address the  general problem
of government accountability, the two stat- utes sometimes work at
cross purposes. See Legislative  History of the Privacy Act of 1974,
at 861 (1976) (noting that  the original congressional staffs observed
that "[p]erhaps the  most difficult task in drafting Federal privacy
legislation was  that of determining the proper balance between the
public's  right to know about the conduct of their government and 
their equally important right to have information which is  personal
to them maintained with the greatest degree of  confidence by Federal
agencies").


The tension between the two Acts' purposes reveals itself  most starkly
when courts attempt to apply standards devel- oped to address claims
arising under FOIA to Privacy Act  claims. "This Court has directed
the district court to consid- er at least four criteria in determining
whether a substantial- ly prevailing FOIA litigant is entitled to
attorney's fees: (1)  the public benefit derived from the case; (2)
the commercial  benefit to the plaintiff; (3) the nature of the
plaintiff's inter- est in the records; and (4) the reasonableness of
the agency's  withholding." Tax Analysts v. United States Dep't of
Justice,  965 F.2d 1092, 1093 (D.C. Cir. 1992). Even a cursory exami-
nation of these factors makes it clear that they have little or  no
relevance in the context of the Privacy Act.


In the present case, the District Court held that Mr. Blazy  was not
entitled to fees and litigation costs because he could  not satisfy
the four FOIA criteria. See Blazy, Mem. Op. at 


7-8, reprinted in J.A. 269-70. The court reasoned that Mr.  Blazy's
case was a "personal" one that "did not concern  matters in the public
interest." Id. at 7, reprinted in J.A.  269. In addition, given that
his "motives [were] wholly  personal because the records at issue
allegedly prejudiced his  ability to obtain employment," the court
found that the first  three FOIA standards counseled against an award.
Id. Fi- nally, the court found that although the Government had 
produced "sluggish" responses to Mr. Blazy's requests, there  was no
proof of bad faith and that the Government's denial of  information
had not been without a reasonable basis in law.  Id. at 8, reprinted


Such an analysis of Mr. Blazy's claims is illogical in light of  the
purposes of the Privacy Act. It makes no sense whatever  to require an
individual who relies upon a statute whose  purpose is to "provide
individuals with more control over the  gathering, dissemination, and
accuracy of agency information  about themselves," and not to
"increase the public's access to  governmental information," to
vindicate broad public interests  in order to recover fees and
litigation costs. Greentree, 674  F.2d at 76. It is clear beyond cavil
that a claimant's rights  under the Privacy Act are based largely on
private interests;  indeed, this is hardly surprising given the
appellation of the  statute. Therefore, a prevailing claimant under
the Privacy  Act surely cannot be disqualified from fees and
litigation  costs because his or her interests are principally private


Moreover, there is nothing in the relevant legislative histo- ry of
either FOIA or the Privacy Act that mandates applica- tion of the FOIA
four-factor test to claims arising under the  Privacy Act. At best,
FOIA's legislative history evinces  congressional deliberations
providing insight into the lineage  of the FOIA criteria. See Burka,
142 F.3d at 1293 (Wald, J.,  concurring) ("The requirement that the
petitioner show some  public benefit to obtain attorney's fees is
deeply rooted in the  legislative history of FOIA.... Although the
conference  committee later eliminated the test's four criteria from
the  statute, the conference report indicates that Congress intend- ed
courts to consider such factors in exercising their discre-


tion to award attorney's fees."). But there is no indication 
whatsoever in either Act's legislative history that Congress  intended
these factors to govern the assessment of claims  arising under the
Privacy Act.


Interestingly, Judge Randolph's concurring opinion in Bur- ka rejects
even the suggestion that the aforecited four-factor  test should have
relevance in the context of FOIA:


I find it far more telling that [the cited] criteria were  weeded out
of the original Senate version of FOIA-- where they would have had the
binding force of law--and  transplanted to the conference
report--where they do  not. Although we have applied these criteria in
the past,  they deserve another look. For instance, one of the 
factors is "the public benefit derived from the case."  Chesapeake Bay
Found., Inc. v. United States Dep't of  Agric., 11 F.3d 211, 216 (D.C.
Cir. 1993). Courts decid- ing an attorney's fees dispute are not in a
position to  make that sort of judgment objectively. One person's 
public good is often another person's public harm. Be- sides, FOIA
plaintiffs do not sue in the public interest; if  anyone represents
"the public" in these cases it is the  United States or the agency
defending the action. Mak- ing eligibility for a fee award turn on
"public benefit" has  a nice ring, but it is not tied to any language
or policy of  FOIA. Once a FOIA plaintiff receives the information 
sought from the government, he has no obligation to  share it with
"the public," or with anyone else. What he  plans to do with the
documents has no bearing whatever  on his right to receive them.


142 F.3d at 1293 (Randolph, J., concurring). Judge Ran- dolph's
arguments have even greater force with respect to  claims arising
under the Privacy Act, because of the undisput- edly private nature of
these claims.


In any event, we think it is clear that the District Court  erred in
rigidly relying upon the standard enunciated in Tax  Analysts, 965
F.2d at 1093, Chesapeake Bay Foundation, Inc.  v. United States Dep't
of Agric., 11 F.3d at 216, and other 


such FOIA cases, in assessing Mr. Blazy's claims under the  Privacy
Act.


C. Mr. Blazy's Lack of Documentary Support


Although we find that Mr. Blazy was plainly eligible to seek  fees and
litigation costs under the Privacy Act, this is not the  end of our
inquiry. At bottom, we conclude that, with the  exception of filing
fees to which he was entitled to recover,  Mr. Blazy's claims were
properly denied for want of substan- tiation.


There can be no doubt that the District Court had docu- mentary
evidence that Mr. Blazy paid his filing fees. His  appearance before
the court attests to that fact. Mr. Blazy  failed, however, to provide
the District Court with documen- tary evidence to support his
remaining requests for fees and  litigation costs. Instead, he simply
noted that he would  "provide the Court a break-down of his costs, at
the Court's  request." Plaintiff's Motion for Attorney Fees,
Administra- tive Costs, and Other Litigation Costs at 7, reprinted in
J.A.  231. Even after the Government's opposition brief put him  on
notice that the necessary documentation was missing, see  Defendants'
Opposition to Plaintiff's Motion for Attorney  Fees, Administrative
Costs and Other Litigation Costs at 3,  reprinted in J.A. 236;
Defendants' Further Opposition to  Plaintiff's Motion for Attorney
Fees, Administrative Costs  and Other Litigation Costs at 2, reprinted
in J.A. 253, Mr.  Blazy still failed to provide the requested


In its reply brief in support of Mr. Blazy, amicus acknowl- edges both
that Mr. Blazy only "briefly described the items  he was claiming" and
that the Government had opposed this  approach by asserting that it
was Mr. Blazy's burden to  provide a detailed submission. Reply Br. of
Amicus Curiae  in Support of Appellant at 17. Amicus nonetheless
reasserts  Mr. Blazy's contention that he would have produced a more 
detailed break-down of his costs at the court's request. See  id. at
22. In addition, amicus argues that because Mr. Blazy  was a pro se
litigant when he appeared before the District 


Court, this court should grant him some leeway. See id. at  18. Amicus
asserts:


[E]ven a plaintiff well versed in the technical intricacies  of federal
civil procedure would reasonably conclude that  there was no need for
him to provide detailed documen- tation at the time of his motion....
Here, Mr. Blazy  could have reasonably concluded that the district
court  would tell him "in due course" what type of documenta- tion he
must provide to support his fee and cost-shifting  application and
when to provide it--especially given his  offer to "provide the Court
a break-down of his costs, at  the Court's request."


Id. at 19-20. We cannot accept this argument.


Government counsel's repeated and forceful objections  should have put
Mr. Blazy on notice that his undocumented  claims were under serious
challenge. And even a cursory  glance at this circuit's case law, see,
e.g., National Ass'n of  Concerned Veterans, 675 F.2d 1319 (D.C. Cir.
1982) (per  curiam), would have informed him of his "heavy obligation
to  present well-documented claims," id. at 1324, and alerted him  to
the requirement that once "the reasonableness of the hours  claimed
becomes an issue, the applicant should voluntarily  make his time
charges available for inspection by the District  Court or opposing
counsel on request," id. at 1327. It is too  late in the day for Mr.
Blazy to offer documentation for  claims that should have been
substantiated months ago before  the District Court.


III. Conclusion


Mr. Blazy's claim for fees and other litigation costs under  the
Privacy Act is granted in part and denied in part. He is  hereby
granted a judgment for an award of costs in the  amount of his filing
fees; however, all of his other claims for  fees and litigation costs
are denied for want of documentation.  For the reasons herein
indicated, the judgment of the District  Court is affirmed in part and


So ordered.


Sentelle, Circuit Judge, concurring in part and concur- ring in the
result: I concur completely in the result reached  by the majority,
and in sufficient of its reasoning to support  every part of it.
However, I write separately only to distance  myself from the
majority's determination that a pro se litigant  is entitled to
recover counsel fees for consultations with  attorneys not appearing
or connected with appearances in the  pro se litigation, a resolution
not necessary to the decision in  the case, nor, in my opinion, a
correct one. That portion of  the decision is inconsistent with both
the language and the  policy of fee-shifting statutes, as determined


Blazy's claim arises under 5 U.S.C. s 552a(g)(3)(B), provid- ing, inter
alia, that "[t]he court may assess against the  United States
reasonable attorney fees ... reasonably in- curred in any case"
covered by the statute. The relevant  language is the same or
substantially the same as various  other fee-shifting statutes. The
Supreme Court construed  one of those statutes, 42 U.S.C. s 1988, in
Kay v. Ehrler, 499  U.S. 432 (1991). That case, like this one,
involved a plea for  fees by a pro se litigant. The Supreme Court
denied that  plea and held that a pro se litigant was not entitled to
recover  counsel fees. In my view, Kay v. Ehrler is controlling of the
 present case. Concededly, the Supreme Court's decision is 
distinguishable on two bases, but I submit that neither makes  a
difference in the appropriate result. First, and least impor- tantly,
Kay v. Ehrler did involve a different fee-shifting  statute than the
one before us. However, we have already  held in Burka v. United
States Department of Health and  Human Services, 142 F.3d 1286 (D.C.
Cir. 1998), that its  reasoning is applicable to other parallel
fee-shifting stat- utes--in that case, FOIA. The more significant
distinction,  and the one which raises a legitimate question as to the
 applicability of Kay v. Ehrler, is that in that case the litigant,  a
licensed attorney, sought an award of fees for his own time,  whereas
in the present case, Blazy seeks an award for the  fees of an attorney
consulted by him who did not make an  appearance in the cause and


matters at issue. Despite this distinction, I think both the  language
and the rationale of Kay v. Ehrler are applicable.


As the Supreme Court notes, the statute's use of the term  "attorney"
makes it "seem[ ] likely that Congress contemplat- ed an
attorney-client relationship as the predicate for an  award under
section 1988." 499 U.S. at 436. As the Court  further noted in Kay,
"the definition of the word 'attorney' in  Webster's Dictionary reads
as follows: '[O]ne who is legally  appointed by another to transact
business for him; specif: a  legal agent qualified to act for suitors
and defendants in legal  proceedings.' " Id. at n.6 (quoting Webster's
New Collegiate  Dictionary 73 (1975)). That should remind us that,
strictly  speaking, having a law degree does not make one an attorney.
 A law school graduate may indeed be a "lawyer," but he is not  acting
as an "attorney" until he acts as the agent for someone  else. Simply
counseling someone else does not constitute  acting as his agent and
certainly does not constitute transact- ing business for him. The
"lawyer" consulted by Blazy may  have counseled him; but he did not
transact business for him.  He is not, therefore, an attorney as the
term was construed  by the Supreme Court in the context of


In addition to this semantic failure, Blazy's claim falls  outside the
rationale of Kay v. Ehrler as well. In rejecting  the award of counsel
fees to a pro se litigant in that case, the  Supreme Court noted that
the policies underlying the fee- shifting statutes represent a
congressional interest in "filter- ing out meritless claims," and
"ensuring the effective prosecu- tion of meritorious claims." The
Court further recognized  that these interests are furthered by the
employment of a  professional "independent third party in framing the
theory  of the case, evaluating alternative methods of presenting the 
evidence, cross-examining hostile witnesses, formulating legal 
arguments, and in making sure that reason, rather than  emotion,
dictates the proper tactical response to unforeseen  developments in
the courtroom." Id. at 437. Consulting with  an attorney outside the
litigation, and before the litigation,  furthered none of those


In rejecting the claim of the pro se litigant in Kay v.  Ehrler, the
Supreme Court noted that a rule that would  "authorize[ ] awards of
counsel fees to pro se litigants ...  would create a disincentive to
employ counsel whenever such  a plaintiff considered himself competent
to litigate on his own  behalf." Id. at 438. The rule adopted by the
majority today  provides less disincentive, but nonetheless provides
an incen- tive to the pro se litigant who has received the advice and
the  professional function furthered by fee-shifting statutes to 
reject that advice and proceed as his own lawyer, "ha[ving] a  fool
for a client." Id.