194 F.3d 90 (D.C. Cir. 1999)
Louis J. Blazy, Appellantv.George J. Tenet, Director, Central Intelligence Agency, et al.,Appellees
No. 98-5232
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 7, 1999Decided October 26, 1999

Appeal from the United States District Court for the District of Columbia(No. 93cv02424)
Mitchell J. Matorin, appointed by the court as amicus  curiae, argued the cause on the side of appellant.  With him  on the briefs was Mark A. Srere.
Louis J. Blazy, appearing pro se, was on the briefs for  appellant.
Marina Utgoff Braswell, Assistant U.S. Attorney, argued  the cause for appellees.  With her on the brief were Wilma  A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant  U.S. Attorney.  Edith S. Marshall, Assistant U.S. Attorney,  entered an appearance.
Before:  Edwards, Chief Judge, Sentelle and Randolph,  Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Opinion concurring in part and concurring in the result  filed by Circuit Judge Sentelle.
Edwards, Chief Judge:


1
Louis J. Blazy, pro se, "substantially prevailed" in his litigation against the Government, brought  pursuant to the Privacy Act, 5 U.S.C. § 552a (1994), in  conjunction with the Freedom of Information Act, 5 U.S.C.  § 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.


2
The Government resists Mr. Blazy's appeal on several  grounds.  First, the Government asserts that fees for attorneys 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. § 1920 (1994).  The Government further 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.


3
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 judgment of the District Court that § 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  § 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.  Therefore, 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 FOIA.


4
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

5
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 omitted).  It took nearly four years before the CIA finally released 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.


6
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 records contain[ed] inaccuracies, that documents [were] missing,  that information ha[d] been improperly redacted, that information 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.


7
On September 17, 1997, after the CIA had released additional 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. 975330 (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 Government, because "the filing of the suit and the Court's involvement were directly responsible for the release of all documents 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 particular, 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, reprinted in J.A. 269-70.


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

9
A. Pro Se Litigants and Litigation Costs Under 28 U.S.C.s 1920


10
The District Court made two threshold decisions in determining 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.  Second, the court found that 28 U.S.C. § 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  § 1920.  Both of those holdings were correct.


11
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).  However, neither decision supports the Government's view in this  case.


12
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. § 1988," Burka, 142  F.3d at 1288, because Congress likely used the word "attorney" 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  § 1988."  Kay, 499 U.S. at 435-36.  The Court reasoned that  the provision's specific purpose was to "enable potential plaintiffs to obtain the assistance of competent counsel in vindicating 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 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.  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 decision in  Burka merely adds that an attorney who is a pro se plaintiff 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.


13
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 nothing 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.


14
We also agree with the District Court's holding that § 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


15
(B) The court may assess against the United Statesreasonable attorney fees and other litigation costs rea-sonably incurred in any case ... in which the complain-ant has substantially prevailed.


16
5 U.S.C. § 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 § 1920.


17
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. § 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 § 1920.  Id. at 933.  The  Kuzma court specifically determined that "[t]he statutory  language and the purposes of the relevant sections, as well as the legislative history and decisions of various other courts,  lead us to conclude that an award of costs pursuant to § 552  is not limited to those authorized by § 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 § 1920."  Id.  To  hold otherwise would, "in effect, excise the words 'other  litigation costs' from the statute by rendering them meaningless."  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 § 1920 does not serve as a limit on recovery of  litigation costs under either FOIA or the Privacy Act.


18
B. The Standard for Assessing Entitlement to Fees and Litigation Costs for Claims Arising Under the Privacy Act


19
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.


20
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 language 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 prevailing parties under the Privacy Act.


21
The Privacy Act of 1974 "safeguards the public from unwarranted 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. § 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. § 552a(d)(1).


22
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 information 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 Commerce, 83 F.3d 1453, 1456-57 (D.C. Cir. 1996).  Indeed,  although both FOIA and the Privacy Act "evidence Congressional concern with open government, and especially, accessibility of government records," Greentree v. United States  Customs Serv., 674 F.2d 74, 76 (D.C. Cir. 1982),


23
[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.


24
Id. at 76 (citations omitted).


25
Thus, although both FOIA and Privacy Act address the  general problem of government accountability, the two statutes 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").


26
The tension between the two Acts' purposes reveals itself  most starkly when courts attempt to apply standards developed to address claims arising under FOIA to Privacy Act  claims.  "This Court has directed the district court to consider at least four criteria in determining whether a substantially 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 interest 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 examination of these factors makes it clear that they have little or  no relevance in the context of the Privacy Act.


27
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.  Finally, 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 in J.A. 270.


28
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 in  nature.


29
Moreover, there is nothing in the relevant legislative history of either FOIA or the Privacy Act that mandates application 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 intended courts to consider such factors in exercising their discretion 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.


30
Interestingly, Judge Randolph's concurring opinion in Burka rejects even the suggestion that the a fore cited four-factor  test should have relevance in the context of FOIA:


31
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 deciding 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.  Making 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 what ever on his right to receive them.


32
142 F.3d at 1293 (Randolph, J., concurring).  Judge Randolph's arguments have even greater force with respect to  claims arising under the Privacy Act, because of the undisputedly private nature of these claims.


33
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

34
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 substantiation.


35
There can be no doubt that the District Court had documentary 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 documentary 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, Administrative 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 documentary support.


36
In its reply brief in support of Mr. Blazy, amicus acknowledges 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:


37
[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 documentation 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 documentation 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."


38
Id. at 19-20.  We cannot accept this argument.


39
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

40
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 reversed in part.


41
So ordered.


42
Sentelle, Circuit Judge, concurring in part and concurring in the result:


43
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 by the Supreme  Court.


44
Blazy's claim arises under 5 U.S.C. § 552a(g)(3)(B), providing, inter alia, that "[t]he court may assess against the  United States reasonable attorney fees ... reasonably incurred 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. § 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 importantly, 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 statutes--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 never represented him as to the matters at issue.  Despite this distinction, I think both the  language and the rationale of Kay v. Ehrler are applicable.


45
As the Supreme Court notes, the statute's use of the term  "attorney" makes it "seem[ ] likely that Congress contemplated 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 transacting 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 fee-shifting in Kay v.  Ehrler.


46
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 "filtering out meritless claims," and "ensuring the effective prosecution 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 goals.


47
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 incentive 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.

