                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-25-2006

Daley v. Fed Bur Prisons
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1799




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APS-300                                                           NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                ________________

                                       NO. 06-1799
                                    ________________

                                   JOHN R. DALEY, JR.,

                                              Appellant

                                                v.

                            FEDERAL BUREAU OF PRISONS;
                               WARDEN, FCI Schuylkill
                       ___________________________________

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                               (D.C. Civ No. 05-cv-01955)
                        District Judge: Honorable Malcolm Muir
                      ____________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
           or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   August 10, 2006

            Before: SLOVITER, McKEE and FISHER, CIRCUIT JUDGES

                                 (Filed: August 25, 2006 )
                                    ________________

                                        OPINION
                                    ________________

PER CURIAM

       John R. Daley, Jr., previously a prisoner at the Federal Correctional Institution at

Schuylkill, appeals from the District Court’s order denying his motion for attorney’s fees
for representing himself in federal habeas proceedings concerning his date of transfer to a

community confinement center. We will affirm the judgment of the District Court.1

       Daley asserts that non-attorney prisoners who successfully represent themselves in

legal proceedings, such as those pursuant to 28 U.S.C. § 2241, are entitled to attorney’s

fees. This Court is not aware of any authority for Daley’s claim, nor, upon review, do the

numerous federal statutes, constitutional amendments, rules of procedure, and cases

which Daley cites lend support. Two of the statutes on which Daley bases his motion

merit addressing here.

       Daley relies primarily upon 18 U.S.C. § 3006A, the provision by which court-

appointed attorneys are provided to federal defendants financially unable to obtain

counsel.2 But, by its own language, the statute cannot serve as the basis for recovery of

fees by Daley. The relevant portion states, “[a]ny attorney appointed pursuant to this

section or a bar association or legal aid agency or community defender organization

which has provided the appointed attorney shall . . . be compensated at a rate not

exceeding $60 per hour . . . .” 18 U.S.C. § 3006A(d)(1). Daley is not an attorney, and

obviously, was not appointed to represent himself. Cf. United States v. McElhiney, 369

F.3d 1168, 1170 (10th Cir. 2004) (denying reimbursement of costs under § 3006A for


       1
        We have jurisdiction under 28 U.S.C. § 1291.
       2
        The provision also provides for representation of individuals seeking relief under
section 2241, 2254, or 2255 of Title 28, “[w]henever the United States Magistrate Judge
or the court determines that the interests of justice so require.” 18 U.S.C.
§ 3006A(a)(2)(B).

                                             2
defendant’s self-representation); Green v. United States, 323 F.3d 1100, 1104 (8th Cir.

2003) (same).

       The other potentially relevant statute that Daley cites (without argument) in his

motion is the Equal Access to Justice Act (EAJA), which provides that “a court may

award reasonable fees and expenses of attorneys . . . to the prevailing party in any civil

action brought by or against the United States.” 28 U.S.C. § 2412(b). However, the

weight of the authority indicates that, because Daley (1) pursued habeas relief, and

(2) represented himself, the Act does not apply to him. Three of our sister circuits have

concluded that filing a § 2241 petition is not a “civil action” for purposes of EAJA. See

O’Brien v. Moore, 395 F.3d 499, 507-08 (4th Cir. 2005); Ewing v. Rodgers, 826 F.2d

967, 969-71 (10th Cir. 1987); Boudin v. Thomas, 732 F.2d 1107, 1112-15 (2d Cir. 1984).

In addition, notwithstanding possible exceptions which do not apply here, a pro se litigant

is not eligible to recover attorney’s fees under the EAJA. See Hexamer v. Foreness, 997

F.2d 93, 94 (5th Cir. 1993); Demarest v. Manspeaker, 948 F.2d 655, 655-56 (10th Cir.

1991); Sommer v. Sullivan, 898 F.2d 895, 895-96 (2d Cir. 1990) (per curiam), cert.

denied, 498 U.S. 980 (1990); Merrell v. Block, 809 F.2d 639, 642 (9th Cir. 1987);

Crooker v. EPA, 763 F.2d 16, 17 (1st Cir. 1985) (per curiam).

       Even if the Act did apply, Daley would not be entitled to attorney’s fees under the

EAJA if the United States’ position was “substantially justified.” There is no evidence

that the government’s position in Daley’s § 2241 proceeding was anything other than

reasonably based in both law and fact. Cf. Pierce v. Underwood, 487 U.S. 552, 565

                                              3
(1988). The District Court makes clear in its Order that the sole reason that Daley is the

prevailing party is that this Court handed down a decision (of which the government

notified the District Court) invalidating the regulations that were the subject of Daley’s

challenge shortly after the Magistrate Judge issued a recommendation to deny Daley’s

petition.

       Finally, we are aware of no other law or authority that supports Daley’s claim.

The general requirement of attorney representation in order to collect attorney’s fees is

well established. In the constitutional torts context, courts have uniformly disallowed pro

se recovery under the applicable fee-shifting statute. See Kay v. Ehrler, 499 U.S. 432,

435 (1991) (noting that “[t]he Circuits are in agreement, however, on the proposition that

a pro se litigant who is not a lawyer is not entitled to attorney's fees) (emphasis in

original); Pitts v. Vaughn, 679 F.2d 311, 313 (3d Cir. 1982) (non-lawyer pro se litigant

not entitled to fees because purpose of 42 U.S.C. § 1988 is to enable litigants to obtain

professional legal representation, not to provide an additional reward to pro se litigants).

We have concluded that the same is true under the fee recovery portion of the Freedom of

Information Act. See Cunningham v. FBI, 664 F.2d 383, 386-87 (3d Cir. 1981)

(explaining that phrase “attorney fees” in FOIA statute should not be extended “beyond

its natural domain”).

       Because the existing caselaw counsels against allowing pro se prisoners to collect

attorney’s fees, and because Daley cites no authority to support his claim, his motion is



                                              4
without merit. Accordingly, we will affirm the judgment of the District Court denying

the motion.




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