KAY v. EHRLER

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Argument of Timothy B. Dyk

Chief Justice Rehnquist: We'll hear argument next in No. 90-79, Richard B. Kay v. Bremer Ehrler and Kentucky Board of Elections.

Spectators are reminded that the Court remains in session.

There is to be no talking inside the courtroom.

Mr. Dyk, you may proceed whenever you are ready.

Mr. Dyk: Mr. Chief Justice, and may it please the Court:

This case presents an important question under Section 1988 of the civil rights laws which allows a reasonable attorney's fee to prevailing parties.

Petitioner in this case is an attorney who, proceeding pro se in the United States district court for the Eastern District of Kentucky, succeeded in having two state statutes restricting access to the ballot declared unconstitutional.

And one of those had been declared unconstitutional 4 years earlier and it had been reenacted by the State in its identical form despite the court's ruling.

Unknown Speaker: What was the standing in this case?

Mr. Dyk: In this case?

Unknown Speaker: In this case, yeah.

Mr. Dyk: He was a--

Unknown Speaker: Was he a candidate or something?

Mr. Dyk: --Yes.

He was a candidate for President of the United States.

He has run for various offices on the Democratic ticket a number of times, and has received access to the ballot in a number of States and a fair amount of media coverage for a minor party candidate, and for a minor candidate for the Democratic nomination.

He, in doing this, fulfilled the purposes of the civil rights laws, and that is he acted as a private attorney general vindicating not only his own rights, representing not only his own rights, but those of other people in the United States.

Unknown Speaker: Was it ever established, Mr. Dyk, that he was admitted to the bar in the Eastern District of Kentucky, or Western District, wherever it was?

Mr. Dyk: He didn't need to be admitted to the bar pro hac vice.

He was not a regular member of the bar, but he did not need to seek a pro hac vice admission because under the rules of the Eastern District he was allowed to proceed without doing that since he was pro se.

He is a member of the bar of the States of Florida and Ohio.

Unknown Speaker: So he was enabled to proceed in Kentucky not because he was admitted to the bar, but because he was pro se?

Mr. Dyk: Well, he could have... he could have proceeded either to seek admission pro hac vice or to proceed under this rule.

It wasn't necessary for him to do the pro hac vice because the rule allowed it anyway.

Unknown Speaker: So at any rate he was not admitted to practice as an attorney, either for this case or generally, in the Federal court in Kentucky?

Mr. Dyk: That is correct, he was not.

Unknown Speaker: Now, Mr. Dyk, you don't take the position that all pro se litigants are eligible for attorneys' fees, just those who are attorneys?

Mr. Dyk: That is correct, Justice O'Connor.

We take the position that while some of the purposes of the statute would be served by allowing attorneys' fees to pro se litigants who are not attorneys, that the language of the statute in referring to an attorney assumes a licensed member of the bar--

Unknown Speaker: Well, the statute also refers to prevailing parties, which might more easily be read to cover all than just attorneys.

I thought it was curious that you limited your argument.

Mr. Dyk: --I... Justice O'Connor, I would agree that there are many of the policies of this statute which would be fulfilled by allowing attorneys' fees to non-attorney pro se litigants.

But there is the reference in the statute to attorney, and there is the reference in the legislative history wishing to involve attorneys in these cases.

Unknown Speaker: Well, if you... if you look to the language the phrase "attorneys' fee", isn't the more natural meaning of that to presuppose that there is an attorney-client relationship?

Mr. Dyk: I think not, Justice O'Connor.

I think the reference is to the fee that the court allows to the attorney in the case, and of course this statute comes to the Court today with the gloss placed on it by both the Blum and the Blanchard cases, which have specifically held that this statute does not contemplate cost-based recovery.

In other words, it does not make any difference under this statute whether there is a paying relationship between attorney and client.

Indeed, if one looks at the legislative history, it seems that one of the clear purposes of the statute was to award fees to individuals who were not charging their clients for their services.

So despite the reference in the statute to the word fee, it is now clear under this Court's earlier decision that the payment of... an actual payment of the fee is not what the statute means.

Unknown Speaker: True, but it may still contemplate an attorney-client relationship.

Mr. Dyk: I think... I think not, Justice O'Connor, because not only does the statutory language not draft it in a way that requires representation, and I think it would have been relatively easy for Congress to do that if it intended to do it, but the policies of the statute are fully served in the case of an individual attorney who is proceeding pro se.

First of all, the statute is designed--

Unknown Speaker: What about that old saw that he who represents himself has a fool for a client?

Mr. Dyk: --Well, I realize--

Unknown Speaker: Maybe Congress had in mind that people should get attorneys in order to vindicate civil rights causes of action.

Mr. Dyk: --I think there is no question but that Congress wanted attorneys to be involved.

There is no question that Congress to some extent, to a significant extent, was motivated by the desire to provide attorneys to people who could not afford them.

But it did not draft the statute in that way.

For example, it could have said, and it had the Fair Housing Act before it as an example at the time that it passed this statute, it could have awarded fees only to people who are, quote,

"unable to assume the payment of the fees themselves. "

It didn't do that.

It acted more broadly, and it acted more broadly because it had broad purposes in enacting this statute.

It was concerned that without private enforcement of the civil rights laws, that the civil rights laws might become a dead letter.

It was actively seeking to encourage civil rights litigation by awarding these fees, not to discourage it.

And again and again this Court has said and the legislative history has said that this was the central purpose, to encourage these suits to be brought to vindicate the civil rights not only of the plaintiffs in the cases, but of other people whom the plaintiffs represented.

At the same time there was a lesser purpose to some extent deter the defendants in these cases from raising defenses to meritorious claims.

And for these... these purposes are fully served by cases in which an attorney is proceeding pro se.

It is also quite clear, we think, and conceded by the other side, by both the respondent and by the United States, that pro se organizations proceeding under the statute are entitled to recover an attorney's fee.

And I think the same purposes of the statute which lead to that result should lead to the result of a pro se individual being covered by the statute as well.

And if this Court were to rule otherwise I think there would be extremely difficult line-drawing problems.

I mean, you could have one case in which an individual represented a corporation or a nonprofit corporation.

You could have a case in which an individual was a member of a voluntary association which was bringing the suit, or, as in some of the cases, you could have an individual who was representing a partnership, or in this case--

Unknown Speaker: In all of those cases the entity is larger than the attorney who is appearing before the court on its behalf.

Mr. Dyk: --I think there are, there are in the examples that I have given so far, that is true, Mr. Chief Justice, but Mr. Kay could also have sued in the name of the Kay for President Committee, which may consist of one or two people.

The fact is that there may be... by introducing a distinction between organizations and individuals, I think we're suggesting that some very difficult line-drawing problems could be introduced, line-drawing which isn't justified by the purposes of the statute and that we would end up, as this Court said in Hensley should not be the case, we could end up with other litigations to try to determine whether it's an organizational situation or an individual situation.

Unknown Speaker: Mr. Dyk, what is your answer to the situation where house counsel represents a nonprofit organization?

Mr. Dyk: That does happen with some frequency.

It was something that they were apparently aware of in passing the statute.

There are references to it in the hearings, and there is a specific reference to it in the House report, and, that clearly says that under those circumstances that the organization is entitled to recover the attorney's fee.

And the amicus brief of Public Citizen has pointed out how often that occurs and how important it is.

And I understand that point to be conceded by the other side, that if it's a nonprofit corporation, if it has a corporate form, that it is within the statute and that an attorney's fee can be recovered, even though it is another pro se situation.

Unknown Speaker: Well, I suppose organizations, corporations and other organizations have to be represented by counsel.

I mean, they can't come in as a corporation and represent themselves.

They have to have an attorney there, house counsel or otherwise, don't they?

Mr. Dyk: Well, I think, Justice O'Connor, that is true in the case of a corporation.

But in the case of a voluntary association or a partnership, which also qualify for this organizational status, they don't have to proceed by an attorney.

They can proceed by a member of the organization.

And if it so happens that they proceed being represented by an attorney who is a member of the organization, it seems difficult... very difficult to distinguish between that situation and the corporate situation, and very difficult to believe that Congress could have intended to do that.

Unknown Speaker: Is that, is that for certain, Mr. Dyk?

I'm not sure.

Do you know of any cases where a partnership appears pro se?

Mr. Dyk: Yes.

There is one of the leading District of Columbia cases, the D.C. Circuit cases here, the Cuneo case, involved a case in which the partnership appeared pro se and Mr. Cuneo represented them, and the D.C. Circuit held that he was entitled to fees.

So these things do happen.

And if, if the Court tries to draw a line between individuals and organizations I fear it will be a very difficult line for the courts to administer in practice, not only because these situations do exist, but it would create an incentive for people to create an organization for the purpose of getting the attorneys' fees.

Now the Solicitor General tells us don't worry, we'll pierce the corporate veil, we'll go behind that, but there again I think one is just getting into all sorts of difficult litigation over the question of attorneys' fees.

We are told... we are told by the other side that there are purposes of the statute which would be defeated if attorneys' fees were allowed here.

It is said, for example, by the brief of the State of Hawaii and others as amicus that if attorneys' fees are allowed here it will devastate the State treasuries, and that for that reason the Court should not construe 1988 as allowing attorneys' fees in this situation.

The difficulty with that argument, of course, is it will devastate the State treasuries only, only if the petitioner as the plaintiffs in these cases prevail.

And if they prevail they are serving the very purpose of the Civil Rights Act that led Congress to award of an attorney's fee.

They also argue that the reason that Congress wanted to get attorneys involved in these civil rights cases was to perform a sifting function, that they would sit there and decide which cases were meritorious and ought to be brought, and which cases were not meritorious and should not be brought.

And they somehow suggest that a pro se attorney isn't going to perform the same sifting function.

The difficulty here again is that there simply isn't a single statement in the legislative history suggesting that Congress enacted 1988 or brought attorneys into the process in order to perform this sifting function.

Unknown Speaker: Well, the whole idea of our profession is that that degree of insulation, independence, and professionalism prevails because there is a distance between you and the client.

And you would concede on the one hand that a pro se who is not an attorney cannot get the fees, and yet you would create for the legal profession this little option where they could represent themselves.

And it seems to me that it somewhat detracts from the purpose of the Congress in asking for professional representation.

Mr. Dyk: The problem, Justice Kennedy, that the Congress faced in 1976 after this Court's decision in Alyeska was that they thought these cases would not be brought because they could not be brought based on the traditional attorney-client relationship in which the client retained the attorney and agreed to pay the attorney.

Congress felt, in fact, so strongly about this that they concluded that if they did not provide for an award of attorneys' fees, that the civil rights laws would not be enforced.

And it is clear, I think, that pro se attorneys, individuals proceeding pro se as attorneys, have made valuable contributions in this area.

This petitioner did in this particular case.

The briefs that we have filed--

Unknown Speaker: Well, I suppose you could say the same about some pro se's who are not attorneys.

Mr. Dyk: --I agree with you, Justice Kennedy, that is quite true that there are purposes of this statute which would be served by awarding fees to individuals who are not attorneys.

And if I were to approach this as a legislative matter I would completely agree that there was a great deal to be said for that.

But there is the word "attorney" in the statute, there is the reference in the legislative history to the desire to bring expert individuals into this, and for that reason we think that the language and the history of the statute suggests that it falls short of awarding it to non-attorney pro se's, a result which has been reached by many of the circuits which have nonetheless agreed that pro se attorneys should recover.

Unknown Speaker: Mr. Dyk, I don't understand how you make that distinction.

As Justice O'Connor points out, the person who gets the award is simply described in the statute as the prevailing party, which would include anybody, attorneys or not.

The award is described as attorney's fees, a reasonable attorney's fee, but you're ignoring the word fee.

There isn't any fee, nobody has paid any money to anybody, so why not ignore the word attorney's too?

I mean, it's just a description of what the money is for, not a description of what, what the function actually is.

Mr. Dyk: I think I'm not, Justice Scalia, ignoring the word fee.

I think that based on this Court's decisions in Blum and Blanchard that I read the word fee as referring to the payment that is made to the prevailing party.

And I approach the statute with the understanding from this Court's decisions that it is... does not provide for cost-based recovery.

But I also approach the statute not only looking at the word attorney, but looking at the legislative history which suggests this desire to have attorneys involved.

There was an apparent conclusion that attorneys were invaluable contributions to these cases.

Now, a number of members of the Court have suggested that non-attorneys may bring valuable contributions.

I don't dispute that.

I say again that I agree that non-attorneys may make very valuable contributions to these cases, and that there are many reasons for arguing that they should also be covered.

And I agree that if you look at the words "prevailing party" instead of attorney's fee, that maybe it is possible to reach the conclusion under this statute that it covers non-attorneys.

That issue of course is not before the Court today.

But we, I... I'm giving you my best understanding of what I think Congress intended, and I think that Congress probably did not intend to include pro se non-attorneys within the statute, even though there are strong reasons for doing it.

Mr. Chief Justice, unless there are further questions I'd like to reserve the remainder of my time.

Unknown Speaker: Very well, Mr. Dyk.

Ms. Sheadel, we'll hear from you.

Argument of Ann M. Sheadel

Mr. Sheadel: Mr. Chief Justice, and may it please the Court:

The question presented in this case is whether a pro se litigant who is an attorney is eligible for attorneys' fees under 42 U.S.C. Section 1988.

The language of 42 U.S.C. Section 1988 indicates that pro se litigants, whether attorneys or not, are not eligible for attorneys' fees.

The language of that statute provides that the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

The issue before the Court is to determine the meaning of the phrase

"attorney's fee as part of the costs. "

In examining the definition of attorney's fee, we believe that it becomes clear that pro se litigants, whether or not attorneys, are not eligible for fees.

The phrase "attorney's fee" is defined as meaning charged to client for services rendered, and examples given, hourly fee, flat fee, contingency fee.

Looking at that definition,

"charge to client for services rendered. "

indicates that there is a presupposition that there are two parties, that there is an attorney on one hand and the attorney... client on the other.

Unknown Speaker: But it also assumes that there is a charge, and we have ignored that assumption because we allow pro bono attorneys to, we allow the recovery of fees for pro bono attorneys.

Mr. Sheadel: Yes, Your Honor, but here--

Unknown Speaker: So if we ignore the one, why can't we ignore the other?

Mr. Sheadel: --We believe that if you look at the words in the entire context, attorney's fee as part of costs, that it would indicate that there is an attorney-client relationship from which a fee arrangement springs.

Now the fee arrangement may ultimately be that there might not be an actual paying relationship other than some kind of contingency fee arrangement, such as contingency fee if we lose the case there are no attorneys' fees paid, if we win the case attorneys' fees will be paid if attorneys' fees are recovered.

We do believe that the language, looked at in its entire context, indicates that there is the requirement of an attorney-client relationship from which springs a fee arrangement.

We believe that that is--

Unknown Speaker: Well, what about the house counsel's situation or the pro bono organization's situation?

Mr. Sheadel: --We believe that there is still a fee arrangement.

In-house counsel is in fact acting as retained counsel by the organization that has hired it.

In-house counsel is paid the retainer of the yearly salary and benefits to be there for the organization and to represent the organization in any matters that the organization requires, much as an outside counsel might be put on retainer for the same purpose.

We believe that that is the kind of... is a kind of fee arrangement that would qualify as part of this attorney-client relationship.

We believe that that also is true in the situation of a pro bono attorney representing a client.

That relationship also has a fee arrangement much like a contingency fee arrangement.

If the case is lost there are no fees that are paid.

If the case is won, fees are paid based on whatever attorneys' fees are recovered.

That is a fee arrangement that stems from the attorney-client relationship, the attorney representing his client as anticipated by the language in the statute itself.

Unknown Speaker: May I ask this question?

Supposing in this case the presidential candidate had also put on the complaint that he had also represented a voter in Kentucky to get not only the candidate's point of view but the voter's point of view for standing.

Fees in that case?

Mr. Sheadel: If the petitioner were representing someone other than himself, then we believe he would have qualified for fees for that particular representation.

But for matters in which he was representing himself, we would believe that he would not qualify.

Unknown Speaker: How do you differentiate if there, if a common interest... say the vice presidential candidate was plaintiff also.

He represents X and Y, presidential and vice presidential candidate respectively, and he is one of the two.

Does he get a fee?

Mr. Sheadel: It may be in that situation that when the court is asked to examine the facts connected with it that it might not be possible to make a distinction.

If the common interests were such that everything the attorney did was on behalf of the clients together, you might not be able to make a differentiation.

Unknown Speaker: Which means he would or would not get a fee?

Mr. Sheadel: It means he would, if he were representing a party other than himself.

Unknown Speaker: I see.

Mr. Sheadel: Because there would in fact be an attorney-client relationship and a fee arrangement that would stem from that.

Unknown Speaker: You say, Ms. Sheadel, that the statute contemplates an attorney-client relationship which will ultimately give rise to some sort of fee arrangement.

How does the existence of that sort of a relationship advance the purpose of the statute?

I mean, more so than just an arrangement just where the... if the attorney is pro se he can get a fee.

Mr. Sheadel: The language used by Congress in the legislative history indicates that Congress was concerned with enabling individuals who might not be able to afford to hire attorneys and get into court the means by which they would be able to hire an attorney to represent him or her in the court in order to vindicate his or her civil rights.

Congress' intent seems to us to be that encouragement... that giving individuals the ability to hire attorneys to represent them, and was in fact contemplating the existence of the attorney-client relationship that we are describing.

Unknown Speaker: Are you arguing that... that because a man was a lawyer he didn't need to go out and find a good lawyer?

Is that it?

And therefore Congress didn't intend to have him compensated because he didn't need to go out and hunt a lawyer?

Is that it?

Mr. Sheadel: We would not say it that way.

We believe that Congress meant to treat all pro se litigants the same in that they were encouraging everyone who believes that he or she should file a civil rights action to go and find an attorney to represent him or her in that lawsuit.

And that would include attorneys.

If attorneys decide to proceed pro se, they are making the decision in the same way that any other litigant might make that decision.

But the congressional intent was to give individuals the means by which they could hire attorneys to represent them.

Unknown Speaker: Well, unless a pro se lawyer gets paid, I suppose he would be less likely to bring a civil rights suit, because while he's pursuing it he can't take any other clients.

Mr. Sheadel: We don't believe he would be any less likely to bring the suit than any other individual who is contemplating it.

Certainly the attorney always has the opportunity to hire--

Unknown Speaker: Well, I don't know about that.

The nonlawyer pro se fellow hasn't got that problem, or may not have that problem of paying the rent and not having any clients, not being able to serve any other clients.

Mr. Sheadel: --It might apply to some pro se litigants and might not apply to others.

For example, if there are pro se litigants who have professions and who do work, any time--

Unknown Speaker: Well, it's certainly likely if the lawyer, if the fellow is making his living as a lawyer it is likely that, that... well, he normally doesn't take cases that interfere with his practice.

Mr. Sheadel: --Yes, that's true, Your Honor, but we do not believe--

Unknown Speaker: So he won't be likely to be going out pursuing civil rights cases if he's not going to get paid.

Mr. Sheadel: --That's right.

He might not pursue them himself, but he has the same option that every other citizen in the country has, as encouraged by Congress, and that is to hire an attorney to represent him if he decides that he should file a civil rights claim.

Congress has put every citizen in the country on the same plane, the same starting point with its concern about hiring an attorney to represent him if he's filing a civil rights action.

Attorneys certainly have the capability of finding attorneys to represent them if they wish to bring these actions and do not wish to spend the time on it themselves as far as litigating the action.

And we believe--

Unknown Speaker: There's always the risk, naturally there's always the risk of losing.

You always... if you go out and hire an attorney and you have to pay him, maybe, win, lose, or draw.

And if you lose you're going to have to pay him anyway.

Mr. Sheadel: --That certainly is the possibility.

A Congress intent in enacting the statute obviously was not to, to award fees to anyone whether or not prevailing.

Fees are available to prevailing parties only, and that is true for anyone that hires an attorney to represent him or her in these actions.

We believe if you compare the wording

"attorney's fee as part of costs. "

with the meaning of the phrase "pro se", it becomes even clearer that Congress was contemplating the attorney-client relationship.

Pro se means appearing for oneself, as in the case of one who does not retain a lawyer and appears for himself in court.

Someone who is appearing pro se is doing it for himself on his own behalf.

Someone who is... who is qualified for attorneys' fees is an attorney who is acting on behalf of someone else, his client.

The legislative history supports this conclusion.

Congress' main concern was with citizens who might be unable to assert their civil rights because they could not afford to hire attorneys to represent them in court.

Congress expressed this concern in several places in the legislative history, and in one place stating that it was very concerned about citizens who must sue to enforce the law but who had little or no money in which to hire an attorney.

That was the concern that Congress was addressing in enacting 42 U.S.C. Section 1988.

It very much wanted to enable citizens to hire attorneys to represent them in these actions.

Nowhere in the legislative history does Congress talk about any intent in allowing pro se litigants, whether or not attorneys, to be awarded attorneys' fees in this kind of action.

Unknown Speaker: May I ask you a question?

Would it make any difference if it were a class action and the litigant was proceeding on behalf of a class and was the named plaintiff and also the lawyer?

Mr. Sheadel: We don't believe that it would make a difference, if you mean if the attorney should get attorney's fees for representing clients, we believe that in that situation the attorney would be eligible for fees.

Unknown Speaker: Because of the class members, yes.

Mr. Sheadel: He does in fact represent parties other than himself and has the attorney-client relationship that the statute contemplates.

Unknown Speaker: Another example occurs to me.

I remember there's the Shakman case in Chicago.

Shakman was a lawyer, but he was a member of a law firm, and I think probably everybody in the law firm worked on the case.

Would his partners be... under your view his partners would be entitled to a fee but he would not?

Mr. Sheadel: Assuming from your question that the partners were representing him and there was the attorney-client relationship, we believe that the partners would be eligible.

Unknown Speaker: But he couldn't... he probably couldn't count his own hours working on the case as part of the fee?

Mr. Sheadel: We would agree that he should not be able to be compensated for his own representation of himself.

Petitioner has argued that pro se litigants should be awarded fees because organizations are mentioned in the legislative history, and that organizations that proceed pro se are allowed fees and so pro se individuals should receive fees.

We do not think that that argument is persuasive because organizations do not in fact proceed pro se, and indeed the organizations that Congress specifically mentions in the legislative history were all represented by counsel.

They were all part of an attorney-client relationship, and the intent of the Congress would seem by the language that it used in the legislative history to indicate that it was still looking at the attorney-client relationship.

Organizations indeed are represented by other parties as a general rule, whether the attorney is an inhouse counsel or outside counsel, and certainly that was true in all of the specific situations that Congress was examining in determining the wording of 42 U.S.C. Section 1988.

Unknown Speaker: You would apply that to all organizations, including partnerships?

You disagree with Mr. Dyk as to whether a partnership can appear pro se?

Mr. Sheadel: I don't know if courts allow partnerships to proceed pro se without a licensed attorney there in the courtroom for them.

My experience has been that there has always been a licensed attorney representing these organizations and these partnerships.

But if there is someone who is not a licensed attorney representing a partnership, then we would say that there cannot be an attorney-client relationship because there is not even an attorney.

We would... we would say that... we would agree with petitioner that at the least the statutory language would require there to be an attorney involved in the representation.

Unknown Speaker: Well, would you... a law partnership where a lawyer represents the partnership, would you treat the partnership and that lawyer like a... like a corporation?

Mr. Sheadel: Yes, we would, if the lawyer is representing the partnership and there is the attorney-client relationship.

Unknown Speaker: Well, he's representing himself, too.

He's a partner in the firm.

Mr. Sheadel: Yes.

We believe that if the partnership or organization is greater than the individual that is representing the partnership or organization, then that there is an attorney-client relationship, and that that is what the language and the intent for 42 U.S.C. would require, and fees would be applicable and the individual would be eligible for attorney's fees for that reason.

Unknown Speaker: What, what courts have been against you?

Mr. Sheadel: The Ninth Circuit and the Eleventh Circuit have held--

Unknown Speaker: Are those, are there only three circuits ruled on that?

Mr. Sheadel: --There are only three circuits that have ruled on this specific question, although the Duncan case involved a defendant obtaining attorney's fees, and so the question is enough different that it's difficult to know if that court would also make the same ruling for a plaintiff that was proceeding pro se.

We do not believe that Congress' intent to foster private enforcement actions is in any way undercut by the decision that we are asking this Court to make in this case.

It's clear that Congress did not intend to foster all enforcement actions.

If it had that intent it would have in fact awarded fees to all parties that brought suits, whether or not the parties prevailed.

Clearly Congress' intent to encourage enforcement actions was limited by the means that it adopted for this statute, and those means being that attorneys' fees... that prevailing parties would be eligible for actorneys' fees if in fact there were an attorney-client relationship... an attorney representing another person, that attorney's client.

We believe that the language of the statute and the legislative intent are clear that pro se litigants, whether or not they are attorneys, are ineligible for attorneys' fees under 42 U.S.C. Section 1988, and we ask this Court to affirm the decision of the Sixth Circuit.

Thank you.

Unknown Speaker: Thank you, Ms. Sheadel.

Mr. Long, we'll hear now from you.

Argument of Robert A. Long, Jr.

Mr. Long: Thank you, Mr. Chief Justice, and may it please the Court:

Let me begin with a point Mr. Dyk raised.

He referred to pro se organizations, and there was also a question whether a partnership can litigate pro se.

Our understanding is that the general rule is that organizations cannot litigate pro se.

That is certainly true of corporations, and we think that is the majority rule as to partnerships and also as to unincorporated associations.

Unknown Speaker: Corporations can't litigate pro se because the corporation can't come into court?

Mr. Long: It could not appear through its president or through some officer of the corporation.

It has to hire a member of the bar to represent it.

Unknown Speaker: Well, what if its vice president is a lawyer?

Mr. Long: I think that then the courts have allowed the attorney--

Unknown Speaker: They don't need to go out and hire anybody.

It's just part of his job.

Mr. Long: --Well, that would be the in-house counsel situation, and that is certainly okay.

I might add--

Unknown Speaker: But how about a voluntary organization, say an environmental organization or, you know, any one of the groups that litigate.

If they're simply an association, are they allowed to appear in court by one of their members who is not a lawyer?

Mr. Long: --We think the general rule is they are not, and the cases on this are collected under 28 U.S. Code 1654, which is a statute we did not cite in our brief, but that is a statute that generally gives all parties in Federal courts a right to conduct their own cases personally or by counsel.

Unknown Speaker: So, under your view an organization would have to be represented by an attorney, but it could be an attorney who was also a member of the organization?

Mr. Long: Yes, that's exactly right, Mr. Chief Justice.

We think the language of Section 1988 which provides that a prevailing party other than the United States may recover a reasonable attorney's fee as part of the costs answers the question presented in this case.

The word "attorney" ordinarily denotes a person who is both licensed to practice law and who acts as the representative or agent of a client.

Members of the bar generally do represent clients, but that does not mean that a lawyer who litigates a case pro se is functioning as an attorney.

Standard dictionaries define attorney as the agent or representative of another.

And representation is the essence of phrases such as attorney in fact and power of attorney.

We also think other language in Section 1988 reinforces the conclusion that Congress used attorney in its usual sense.

Unknown Speaker: Let me ask you a question there.

Supposing you had an attorney who was a beneficiary of a trust with a lot of money in it, and he brought suit in his own name as a beneficiary to surcharge the trustees for wrongful action of some kind, and he collected a million dollars or so.

Fee or no fee, do you suppose, as a matter of normal common law approach to that?

Mr. Long: He is the beneficiary of the trust?

Unknown Speaker: He is both the beneficiary... he brought an action on behalf of all... well, I suppose you could say, say he's the sole beneficiary.

I have to make him the sole beneficiary.

Mr. Long: I think in that case it is simply a pro se example.

If he were the trustee, he might be acting on behalf of the beneficiary or the cestui, then he might well be entitled--

Unknown Speaker: No, I'm thinking of an action where he creates... a common fund case, where he creates a fund for the trust and he is the individual beneficiary.

Mr. Long: --If he is the sole beneficiary, I think our position would be that he is not entitled to a fee.

I mean, I should add--

Unknown Speaker: I suppose in most of those cases that there would be... he in effect would be doing a service for the trust as a whole.

Mr. Long: --Yes, and in that case he might well get a fee.

And I should add in general that Mr. Dyk rests a great deal of his argument on the proposition that this distinction between organizations and pro se litigants would be very difficult to apply in practice.

And first of all we think this statute requires the distinction, so the difficulty of it is not really an issue, but we also think in the ordinary run of cases it's not going to be difficult to apply.

It is the kind of determination courts make routinely, for example under this statute 1654, also in determining whether there is an attorney-client relationship or who the attorney represents in a corporate setting.

It is the kind of question that courts can answer quite easily in the borderline or difficult cases that may arise.

But in addition to a requirement of an attorney, there is a requirement of an attorney's fee as part of the costs, and a pro se litigant cannot pay himself a fee.

A pro se lawyer also incurs no costs for legal services other than opportunity costs, and this Court has never held that opportunity costs are compensable as attorneys' fees.

Now, it is correct, as petitioner observes, that organizations represented by in-house counsel, as well as clients represented by attorneys on a pro bono basis, are eligible for fee awards under Section 1988.

But this does not foreclose reliance on the statutory language authorizing an award of fees as a part of costs for two reasons.

First, organizations actually incur costs for representation by in-house attorneys, although the costs may be in the form of a flat fee, that is a salary, and lawyers who represent clients pro bono have a fee arrangement with the client, even if it is to waive the fee, and more typically the arrangement is in the nature of a contingent fee, that is to recover any fee award under Section 1988.

Second, the cases awarding attorneys' fees to in-house counsel rest on... I'm sorry, the second reason is that the awards of fees to organizations rest on the legislative history rather than the language of the statute, and we think the legislative history simply doesn't apply to pro se lawyers, because, as we have already argued, pro se lawyers are easily distinguished from organizations.

We think the language of Section 1988 answers the question presented in this case, but the legislative history reinforces our interpretation of the language.

Statements in the legislative history such as

"many citizens have little or no money with which to hire a lawyer. "

indicate that Congress had in mind encouraging plaintiffs to obtain legal representation rather than litigating cases on their own, and we think that applies to lawyer litigants as well as to all other litigants.

And finally, awarding attorneys' fees to pro se lawyers would not further the purpose of Section 1988, which is to make sure that competent counsel are available to civil rights plaintiffs.

At a minimum, it's certainly not necessary to adopt the result petitioner argues for to achieve the purpose of Section 1988, because under the court of appeals decision lawyers have precisely the same ability to vindicate their civil rights as all other litigants, and in fact they may have a greater ability because if they choose to litigate pro se they can apply whatever additional skills they have.

And we also think, frankly, that encouraging pro se litigation by lawyers would not ensure that competent counsel would be available in civil rights cases.

Pro se lawyers often lack the detachment and objectivity that is necessary for effective professional representation.

A pro se lawyer may be inclined to focus on the recovery of a fee to the exclusion of vindication of the merits.

And pro se litigation also--

Unknown Speaker: Why would a pro se lawyer be any more apt to do that than any other lawyer?

Mr. Long: --Well, if a lawyer--

Unknown Speaker: They both have the same--

Mr. Long: --has a client, the lawyer has to consult with the client about various important parts of the litigation, including settlement offers, and presumably the client is going to be particularly interested in achieving the result on the merits.

I think this Court's decision in Evans against Jeff D. suggests some of that concern.

Section 1988 ensures effective access to the courts for all citizens, including members of the bar.

A rule that provides lawyers with additional rights and privileges not available to other citizens, with the right to litigate pro se and to recover an attorney's fee, is not justified.

Unknown Speaker: --Thank you, Mr. Long.

Mr. Dyk, do you have rebuttal?

You have 12 minutes remaining.

Rebuttal of Timothy B. Dyk

Mr. Dyk: As I listen to the United States and the respondent, I begin to hear that almost everybody other than an individual can litigate on a pro se basis and recover under the statute.

I hear concessions that a voluntary association could do that.

I hear the concession, I think, that a partnership could do that.

I even hear a concession that an individual could proceed to bring a class action and recover.

And I find great difficulty in finding any distinction between those people, if they're allowed to recover under Section 1988, and the petitioner in this case, who was a prevailing party.

He prevailed mightily in having these two statutes declared unconstitutional, having to attack one of them for the second time, and allowing him the fee that the statute contemplates fully serves the statutory purpose.

One of the things that Congress was fully conscious of in enacting this legislation was that it was not easy to get people to take civil rights cases.

It was not easy to get people to take civil rights case even if you provided for a statutory attorney's fee.

Unknown Speaker: Wouldn't the statutory purpose been have served just as well in this case if your client had retained an attorney to represent him, and then there would be no question that attorney could get an attorney's fee?

Mr. Dyk: Mr. Chief Justice, that is surely true that the statutory purpose would be served if he had gotten an attorney to represent him.

The difficulty is, and I think it's reflected in the history of this statute that I am talking about, is that he may not have been able to get an attorney to represent him, and as a result of that--

Unknown Speaker: But that, that's true of any potential civil rights plaintiff.

Mr. Dyk: --That is true.

But if, if the effect of denying the fee here is to cause this individual petitioner not to bring this suit, the purpose of the statute is defeated.

In order to bring this suit he has to suffer significant opportunity costs.

He may also have paralegal costs, which under this Court's decision in Missouri and Jenkins can only be recovered as part of the attorney's fee.

They are not recoverable as part of the costs.

So he has the opportunity costs, he has the potential paralegal costs and related costs, and if he can't recover those he may not bring the suit at all.

I think it is not possible to assume that every pro se attorney litigant has the capability to go out and hire an attorney, that that's an option available to him.

I think in many cases it is not an option that is available to him.

Unknown Speaker: So Congress intended pro se attorney potentially to be more favorably situated with respect to getting attorneys' fees than the typical nonlawyer civil rights plaintiff?

Mr. Dyk: As I said earlier, I think there are, that the nonlawyer civil rights plaintiff who proceeds pro se can make a significant claim that he is serving the purposes of the statute.

And as Justice Scalia pointed out, if you focus on the terminology "prevailing party" rather than on the word "attorney", maybe one concludes that the non-attorney pro se should also recover.

But the fact is that the pro se attorney is directly serving every significant purpose that this statute was designed for.

He is bringing a meritorious civil rights case.

We have to assume that the case is meritorious, because there are no fees if he does not prevail.

And indeed there are disincentives written into the statute, not only the denial of the fee, but the possibility that the defendant would recover a fee against the plaintiff if the action was unfounded.

This pro se attorney brings to bear on the litigation his expertise as an attorney to litigate these civil rights cases.

Mr. Kay in this particular case has argued 20 cases in the courts of appeals.

Unknown Speaker: How many of them were pro se?

Mr. Dyk: How many?

I do not know the answer, but I think a relatively small number of them.

And by seeking out these statutes, by successfully having them declared unconstitutional, by litigating these issues he is doing exactly what Congress wanted done, and that is that the civil rights of people in this country are vindicated.

Not just Mr. Kay's rights, but those of the people in general.

Congress wasn't just concerned about the individual litigants, it was concerned about the breadth of enforcement.

And there is no basis, we suggest, for distinguishing between a situation in which the individual is proceeding pro se and all these other situations where it is conceded that the organization or the class or the partnership is proceeding pro se and would recover fees.

Unless there are further questions, I have nothing more.

Unknown Speaker: Thank you, Mr. Dyk.

Mr. Dyk: Thank you.

Chief Justice Rehnquist: The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 90-79, Kay against Ehrler will be announced by Justice Stevens.

Argument of Justice Stevens

Mr. Stevens: The petitioner in this case is a lawyer who twiced requested the Kentucky Board of Elections to place his name on the Democratic Party's primary ballot for the office of President of the United States.

When the Board refused to do so, he brought suit challenging the constitutionality of the Kentucky statute on which the Board had relied.

He ultimately prevailed and sought an award of reasonable attorney's fee pursuant to the fee shifting provision of the Civil Rights Act.

We granted certiorari to resolve a conflict in the circuits concerning the question whether a lawyer who represents himself in this kind of litigation maybe be awarded such a fee.

For reasons stated in a unanimous opinion, we conclude that such a fee award is not authorized by the statue and therefore, we affirm the judgment of the Court of Appeals for the Sixth Circuit.