Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Pro Se Lawyer Not Entitled to FOIA Attorneys' Fees

The Second Circuit Court of Appeals held that a lawyer who represents himself in Freedom of Information Act (FOIA) litigation cannot recover attorneys' fees under 5 USC § 522(a)(4)(E).

James E. Pietrangelo, II, "served as a judge advocate with the Army in Kuwait and Iraq during part of the first Iraq War." He filed an FOIA request, asking the Army for information regarding the issuance of Bronze Stars during Operation Iraqi Freedom, "to expose alleged corrupt practices in the awarding of Bronze Stars."

"The Army eventually agreed to release a substantial number of redacted documents," but "denied Pietrangelo's request for a full fee waiver for the cost for producing those documents." Pietrangelo then brought an FOIA suit against the Army. The district court agreed that he "was entitled to a full fee waiver" but denied him attorney's fees under 5 USC § 522(a)(4)(E).

The Second Circuit noted that in Kuzma v. US Postal Serv., 725 F2d 16, 17 (2d Cir. 1984)(per curiam), it had "previously held that pro se litigants are generally not eligible for prevailing party attorneys' fee awards under the FOIA," but it had "not yet considered whether a lawyer representing himself is entitled to such fees."

The Court observed that the Supreme Court held in Kay v. Ehrler, 499 US 432, 437 (1991) that a lawyer appearing pro se is not eligible for an attorney fee award under 42 USC § 1988; an analogous fee-shifting statute. It also recognized that other Circuits "have relied on Kay in determining that pro se lawyers are not eligible for attorneys' fees under FOIA's fee shifting provision." See e.g., Burka v. US Dept of Health & Human Servs., 142 F3d 1286, 1288-90 (D C Cir. 1998); and Ray v. US Dept. of Justice, 87 F3d 1250, 1251 (11th Cir. 1996).

Finding "no reason to distinguish the principles articulated in Kay," the court joined its "sister Circuits in holding that a plaintiff-lawyer representing himself in a FOIA action, even if he 'substantially prevails,' cannot recover attorneys' fees under 5 USC § 522(a)(4)(E)." See: Pietrangelo v. United States Army, 568 F.3d 341 (2nd Cir., 2009).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Pietrangelo v. United States Army