29 Soc.sec.rep.ser. 152, Unempl.ins.rep. Cch 15317asamuel L. Sommer, Plaintiff-appellant, v. Louis W. Sullivan, M.d., Secretary of the Department Ofhealth and Human Services, Defendant-appellee, 898 F.2d 895 (2d Cir. 1990)

Samuel L. Sommer, an incarcerated pro se litigant, appeals from the September 29, 1989, order of the District Court for the Northern District of New York (Neal P. McCurn, Chief Judge), denying his motion for attorney's fees. Having achieved some success in litigation against the Social Security Administration, Sommer sought fees under section 206(b) of the Social Security Act, 42 U.S.C. § 406(b) (1982), and the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) (1982 & Supp. V 1987), and arguably made a similar claim under 42 U.S.C. § 1988 (1982).

The fee request was properly denied. Section 206(b) of the Social Security Act is plainly unavailable. That provision authorizes a fee to a claimant "who was represented before the court by an attorney." 42 U.S.C. § 406(b) (1). Moreover, the fee, which may not exceed "25 percent of the total of past-due benefits" awarded, is to be paid "out of, and not in addition to, the amount of the past-due benefits." Id. Sommer was not represented by an attorney and could not, in any event, gain from a fee award that must reduce any award of his own benefits.

Fees awards to pro se litigants are not as clearly precluded under the EAJA, which provides, under certain circumstances, for an award of "reasonable fees and expenses of an attorney," 28 U.S.C. § 2412(b), and defines "fees" to mean "reasonable attorney fees," id. Sec. 2412(d) (2) (A). Two circuits have construed the EAJA to preclude attorney's fees for pro se litigants. See Merrell v. Block, 809 F.2d 639, 641 (9th Cir. 1987); Crooker v. Environmental Protection Agency, 763 F.2d 16, 17 (1st Cir. 1985). In an analogous context, we have rejected attorney's fees for pro se litigants under the Freedom of Information Act, 5 U.S.C. § 552(a) (4) (E) (1988), at least for incarcerated litigants, since they cannot demonstrate that their "lawyering" has caused them to forgo their regular income. Crooker v. U.S. Dep't of the Treasury, 634 F.2d 48 (2d Cir. 1980). Under the rationale of our Crooker decision, Sommer, an incarcerated prisoner, is not entitled to any attorney's fee for his pro se "lawyering."

The order of the District Court is affirmed.