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No Attorney Fees for Pro Se Attorney Under FOIA

The Fifth Circuit Court of Appeals held an attorney appearing pro se cannot recover attorney fees under the Freedom of Information Act (FOIA).

Immigration attorney Michael W. Gahagan uses FOIA to obtain government documents to assist his clients and for personal use. He made requests in his name, and when he was unsatisfied with the results, he filed three pro se FOIA actions.

In each case, he was the prevailing party. The district courts awarded costs but denied attorney fees, holding that as a promise litigant he was ineligible under the FOIA.

On appeal, the Fifth Circuit was confronted with its own ruling in Cazales v. DOJ, 709 F.2d 1051 (5th Cir. 1983), which held an attorney could receive attorney fees under the FOIA while acting pro se.

The Fifth Circuit found Kay v. Ehrler, 499 U.S. 432 (1991) “unequivocally overruled” Cazales.

Kay involved a fee request under 42 U.S.C. § 1988.” The Kay 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.”

The Fifth Circuit found “there is no textual difference suggesting a prevailing pro se attorney is eligible for an award of fees under FOIA but not § 1988. The Supreme Court has repeatedly instructed lower courts to apply consistent interpretations to fee-shifting statutes, and the Kay court was more than a “mere illumination” of attorney fee awards for pro se litigants. Additionally, the Fifth Circuit found the FOIA’s language limits attorney fees to those “reasonably incurred,” and “Gahagan had no legal obligation to pay himself,” so he did not incur a fee under the FOIA. The orders below were affirmed. See: Gahagan v. US Citizenship and Immigration Services, et al. (5th Cir. 2018)

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Gahagan v. US Citizenship and Immigration Services, et al.




 

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