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Gahagan v. United States Citizenship & Immigration Services

United States Court of Appeals, Fifth Circuit

December 20, 2018

MICHAEL W. GAHAGAN, Plaintiff-Appellant,
v.
UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, Defendant-Appellee. MICHAEL GAHAGAN, Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF JUSTICE; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES IMMIGRATION & CUSTOMS ENFORCEMENT; EXECUTIVE OFFICE OF IMMIGRATION REVIEW, UNITED STATES DEPARTMENT OF JUSTICE, Defendants-Appellees. MICHAEL W. GAHAGAN, Plaintiff-Appellant,
v.
UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES; U.S. CUSTOMS & BORDER PROTECTION, Defendants-Appellees.

          Appeals from the United States District Court for the Eastern District of Louisiana

          Before DAVIS, COSTA, and OLDHAM, Circuit Judges.

          ANDREW S. OLDHAM, CIRCUIT JUDGE.

         The question presented is whether attorneys appearing pro se can recover fees under the Freedom of Information Act ("FOIA"). The district court held no. We affirm.

         I.

         A.

         Michael W. Gahagan is an immigration attorney. He uses FOIA to obtain government documents. In these consolidated cases, he requested documents from various federal agencies. Gahagan requested some of these documents to assist immigration clients. Others he requested for personal reasons. He made each request in his own name.

         Gahagan was unsatisfied with the Government's response to his requests. So he filed three separate pro se lawsuits. In each case, Gahagan was considered the prevailing party and moved for an award of costs and fees. Each district judge awarded Gahagan costs. But each judge also held Gahagan was ineligible for attorney fees under FOIA.[1] Gahagan appealed each denial of fees.

         B.

         "Our basic point of reference when considering the award of attorney's fees is the bedrock principle known as the American Rule: Each litigant pays his own attorney's fees, win or lose, unless a statute or contract provides otherwise." Baker Botts L.L.P. v. ASARCO LLC, 135 S.Ct. 2158, 2164 (2015). Courts "have recognized departures from the American Rule only in 'specific and explicit provisions for the allowance of attorneys' fees under selected statutes.'" Ibid. (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 260 (1975)). The Supreme Court analyzes a statute's specificity and explicitness in the context of a particular fee request. That a statute is sufficiently specific and explicit to authorize one type of fee award does not make it sufficiently specific and explicit to authorize another type of fee award. See id. at 2165.

         FOIA authorizes courts to "assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i). By authorizing a court to "assess . . . reasonable attorney fees," that provision overcomes the American Rule in at least some circumstances. In this particular circumstance, however, the question is whether FOIA specifically and explicitly authorizes a fee award to an attorney appearing pro se.

         Three precedents bear on that question. The first is our decision in Cazalas v. DOJ, 709 F.2d 1051 (5th Cir. 1983). In that case, we decided "a litigant attorney represent[ing] herself or himself" is eligible for "an award of attorney fees under the FOIA." Id. at 1057. Judge Garwood dissented. Circuit precedent denies fees to "a nonattorney pro se litigant," and Judge Garwood did "not believe that Congress intended to discriminate between pro se FOIA litigants solely on the basis of whether they were licensed to practice law." Id. at 1059 (Garwood, J., concurring in part and dissenting in part).

         The second key precedent is Kay v. Ehrler, 499 U.S. 432 (1991). Kay involved 42 U.S.C. § 1988, which authorizes an award of "a reasonable attorney's fee" to "the prevailing party" in a civil rights case. In Kay, the Court rejected "[a] rule that authorizes awards of counsel fees to pro se litigants- even if limited to those who are members of the bar," for fear it "would create a disincentive to employ counsel whenever such a plaintiff considered himself competent to litigate on his own behalf." 499 U.S. at 438. The Court instead emphasized 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." Ibid. Therefore, the Supreme Court held "a pro se litigant who is also a lawyer may [not] be awarded attorney's fees." Id. at 435.

         The third precedent is Texas v. ICC, 935 F.2d 728 (5th Cir. 1991). In ICC, "Texas sued the Interstate Commerce Commission under [FOIA] to force the ICC to disclose certain documents." Id. at 729. Texas prevailed. The district court nonetheless denied its motion for attorney fees. The ICC defended that result by arguing we had "previously held that some classes of 'complainants'-namely, pro se plaintiffs-are not eligible for fee-shifting." Id. at 731. The ICC contended legislative history similarly prohibited states from recovering fees. Ibid. We disagreed. After all, Cazalas had "held that lawyers who represent themselves in FOIA actions may recover under the fee-shifting provision." Ibid. ...


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