Appeal from a judgment of the United States District Court for the Western District of New York, John T. Elfvin, Judge, awarding Michael Kuzman only $74.12 of $687.43 requested as costs for the litigation of an action brought under the Freedom of Information Act, 5 U.S.C. § 552, and the Privacy Act of 1974, 5 U.S.C. § 552a. Reversed and remanded with a direction to award Kuzma costs in the amount of $433.63.
Before: LUMBARD, KEARSE, and PRATT, Circuit Judges.
Plaintiff Michael Kuzma seeks to recover $687.43 in costs incurred in the successful litigation of an action he brought pro se in the United States District Court for the Western District of New York against the Internal Revenue Service pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), and the Privacy Act of 1974, 5 U.S.C. § 552a. Concluding that the only costs that may be imposed against the United States are those enumerated in 28 U.S.C. § 1920, the district court awarded Kuzma $74.12, representing $60.00 for a filing fee and $14.12 for a marshal's fee, but rejected Kuzma's claim for his costs of photocopying, postage, covers, exhibits, law books, typing, transportation and parking.
Kuzma appeals, presenting the issue of whether the "other litigation costs" expressly made recoverable under 5 U.S.C. § 552(a)(4)(E) are limited, as the district court held, to the enumerated costs that are taxable against the United States under 28 U.S.C. § 1920. Based on the language and policy of the FOIA, as well as expressions of legislative intent, we conclude that the term "other litigation costs" is not limited to costs allowed by § 1920. We therefore reverse the judgment appealed from and remand with a direction to award Kuzma costs in the amount of $433.60.
Kuzma filed with the IRS a request pursuant to the FOIA and the Privacy Act for the production of documents that pertained to an investigation of Kuzma the IRS had commenced some time after Kuzma wrote a "tax protest" letter to a local newspaper, expressing the view that the federal tax system is unconstitutional. See Kuzma v. Internal Revenue Service, 775 F.2d 66 (2d Cir. 1985).
When the IRS determined that some of the requested documents or portions thereof were exempt from disclosure under 5 U.S.C. § 552(B) and refused to release them, Kuzma administratively appealed. After the IRS failed to make a timely determination of the appeal, in violation of 5 U.S.C. § 552(a)(6)(A)(ii), Kuzma sought release of the documents through this action brought tin the district court pursuant to the FOIA and the Privacy Act.
On cross-motions for summary judgment, the district court ordered disclosure of some of the documents, and denied Kuzma's request as to others. On Kuzma's prior appeal as to those documents still withheld, we affirmed. 775 F.2d 66 (2d Cir. 1985).
In granting summary judgment, the district court found that Kuzma had "substantially prevailed" in the litigation and that the prosecution of the action was "reasonably necessary to obtain the release of certain information" and had "a substantial causative effect" on the disclosure of other material. The court had correctly noted that Kuzma, as a pro se litigant, was not entitled to an award of attorney's fees, see Kuzma v. United States Postal Service, 725 F.2d 16 (2d Cir.), cert. denied, 469 U.S. 831, 105 S. Ct. 119, 83 L. Ed. 2d 62 (1984); Crooker v. United States Department of the Treasury, 634 F.2d 48 (2d Cir. 1980), but concluded that Kuzma would be entitled to recover the "costs of litigating this action" and invited Kuzma to itemize his costs.
Responding, Kuzma submitted an affidavit requesting the following costs: