MICHAEL W. GAHAGAN, Plaintiff-Appellant,
UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, Defendant-Appellee. MICHAEL GAHAGAN, Plaintiff-Appellant,
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,
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
DAVIS, COSTA, and OLDHAM, Circuit Judges.
S. OLDHAM, CIRCUIT JUDGE.
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.
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.
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. Gahagan appealed
each denial of fees.
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.
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
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).
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.
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. ...