Awarding Attorney’s Fees to Pro Se Litigants Under Rule 11

Among the myriad rules and statutes designed to curb litigation abuse, Rule 11 of the Federal Rules of Civil Procedure (“FRCP”) is “the most widely used and most controversial of the sanctions rules.” The increased use of Rule ll during the last fifteen years and the recent proliferation of fee-shifting provisions in federal statutes4 have led to an onslaught of motions for attorney’s fees in the federal district courts. Simultaneously, these courts are seeing an increasing number of pro se litigants appear before them. The confluence of these two trends has produced the seemingly paradoxical result of pro se parties seeking attorney’s fees awards. Over the past twenty years, pro se litigants have attempted to avail themselves of the attorney’s fees provisions contained in such statutes as the Equal Access to Justice Act (“EAJA”), the Freedom of Information Act (“FOIA”), and the Civil Rights Attorney’s Fees Awards Act(“§ 1988”). They have met with limited success. Very few pro se parties, however, have sought similar awards under FRCP 11. For this reason, the question of whether a court can award fees to a pro se party under Rule 11 has had little opportunity to percolate in judicial opinions and academic literature. In the three cases in which courts have examined this issue, the decisions are split as to whether or not to award the fees. As with the statutory fee-shifting provisions, the debate in the Rule 11 context pits arguments based on policy against arguments based on language. Those who support the award contend that granting attorney’s fees furthers Congress’s intent of deterring conduct that violates Rule 11; those who disfavor the award assert that the words attorney’s fees necessarily contemplate the existence of an attorneyclient relationship. Therefore, they conclude, by definition a pro se litigant is not entitled to the fees award.