Gahagan v. United States Citizenship and Immigration Services

Filing 82

ORDER AND REASONS: ORDERED that the 75 REPORT AND RECOMMENDATIONS is REJECTED in part and ADOPTED in part. FURTHER ORDERED that 43 Motion for Attorney's Fees is DENIED, but his request for costs is GRANTED. Mr. Gahagan is entitled to recover $451.47 in costs. Signed by Judge Martin L.C. Feldman.(cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MICHAEL W. GAHAGAN

CIVIL ACTION

v.

NO. 16-15438

UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES

SECTION "F"

ORDER AND REASONS
Before the Court are objections by United States Citizenship
and Immigration Services (USCIS) to the magistrate judge’s Report
and Recommendation that the plaintiff shall be awarded attorney’s
fees and costs in this Freedom of Information Act litigation.

For

the reasons that follow, the USCIS’s objection that the Report
errs in allowing attorney’s fees under FOIA for a pro se attorney
is SUSTAINED, but USCIS’s objection concerning the Report’s public
benefit

finding

and

in

weighing

the

entitlement

factors

is

OVERRULED, and USCIS’s final objection seeking a more substantial
reduction in the plaintiff’s fee award is MOOT.

Accordingly, the

Court hereby REJECTS in part and ADOPTS in part the Report and
Recommendation.

The plaintiff may recover $451.47 in costs.
1

Background
This Freedom of Information Act lawsuit arises out of a
government agency’s failure to adequately search for and produce
a single agency record requested by the plaintiff in connection
with

the

plaintiff’s

proceeding.

client’s

ongoing

immigration

removal

This Order and Reasons assumes familiarity with

extensive prior proceedings.

After being ordered to conduct an

adequate

Gahagan’s

search

for

Michael

client’s

I-485

Receipt

Notice (I-797C Notice of Action), the United States Citizenship
and

Immigration

Services

(USCIS)

ultimately

produced

to

Gahagan what USCIS insists is a “recreated” receipt notice.

Mr.

After

Mr. Gahagan acknowledged that he had “no objection to accepting
[the I-797C Receipt Notice] produced” by USCIS (the so-called
regenerated receipt notice), the Court denied as moot the only
remaining portion of plaintiff’s motion for summary judgment (that
is, the only issue that was under submission after the Court
granted, in part, the plaintiff’s motion for summary judgment on
the issue of the agency’s inadequate search).
Reasons dtd. 12/22/16.
reconsideration,

denied

See Order and

The Court then denied USCIS’s motion for
as

moot

2

USCIS’s

motion

for

summary

judgment, and referred to the magistrate judge the plaintiff’s
motion for attorney’s fees. See Order and Reasons dtd. 3/8/17.
Magistrate

Judge

van

Meerveld

issued

a

thorough

and

considered Report and Recommendation, recommending that the Court
grant in part the motion for attorney’s fees and costs, ultimately
recommending that the Court award attorney’s fees in an amount
less than that requested by the plaintiff.

In its objections to

the Report and Recommendation, USCIS urges the Court to sustain
its objections, reject the Report, and deny Gahagan’s motion for
attorney’s fees. 1

I.

Pursuant to Rule 72(a) and 28 U.S.C. § 636(b)(1), USCIS
requests that the Court set aside Magistrate Judge van Meerveld’s
April 27, 2017 Report and Recommendation, in which the plaintiff’s
motion

for

attorney’s

fees

and

costs

was

granted

in

part,

recommending that the plaintiff be awarded $8,867.47 (inclusive of
$451.47 in costs).

Mr. Gahagan filed a response to USCIS’s objections, and USCIS
filed reply papers.
3
1

The Court referred Gahagan’s motion for attorney’s fees to
Magistrate Judge van Meerveld pursuant to Rule 72(b) of the Federal
Rules of Civil Procedure and 28 U.S.C. § 636(b)(1).

Once a party

files specific objections, as USCIS has done here, “[t]he district
judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.”
72(b)(3).

Fed. R. Civ. P.

In resolving objections, the Court “may accept, reject,

or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.”

28 U.S.C. § 636(b)(1).

II.
A.
USCIS

presents

four

objections

to

Magistrate

Judge

van

Meerveld’s Report & Recommendation: (1) The Report errs in allowing
attorney’s fees under FOIA for a pro se attorney.
not eligible for attorney’s fees under FOIA.

(2) Gahagan is

(3) The Report errs

in finding the existence of a public benefit and in weighing the
entitlement factors.

(4) The Report errs in reducing Gahagan’s

fee award by only 20% given his clear absence of billing judgment.
USCIS concedes that its second objection is controlled by this
Court’s prior denial of USCIS’s motion to reconsider and motion
for

summary

judgment;

therefore,
4

USCIS’s

second

objection

is

preserved for appellate purposes, but the Court need only address
its three remaining objections.
B.
It is undisputed that, under FOIA, the Court “may 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.”
§ 552(a)(4)(E)(i).
neither

side

5 U.S.C.

The magistrate judge correctly observes, and

objects,

that

courts

interpret

this

permissive,

statutory language as creating a two-pronged inquiry into whether
the complainant is both (1) eligible for attorney’s fees because
he has substantially prevailed and (2) entitled to attorney’s fees
considering

“a

variety

of

factors

plaintiff should receive fees.”

to

determine

whether

the

Batton v. I.R.S., 718 F.3d 522,

525 (5th Cir. 2013)(quoting Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 524 (D.C. Cir. 2011)).
1.

Whether a pro se attorney-litigant is eligible to
recover attorney’s fees under FOIA.

USCIS’s first objection to the magistrate judge’s Report and
Recommendation presents a threshold question of whether Gahagan,
who is an attorney proceeding in this litigation pro se, is
precluded from recovering attorney’s fees under FOIA.
5

USCIS

submits that the Supreme Court has ruled that an attorney litigant
proceeding pro se cannot recover attorney’s fees under a feeshifting statute, 42 U.S.C. § 1988 similar to FOIA’s, and that, in
so ruling, the Supreme Court implicitly overruled Fifth Circuit
precedent that previously held that pro se attorneys may recover
attorney’s fees under the FOIA fee-shifting provision.

The Court

agrees.
USCIS objects to the magistrate judge’s finding that Gahagan
was

not

disqualified

from

recovering

because he represented himself.

attorney’s

fees

simply

In so finding, the magistrate

judge rejected USCIS’s argument that, as a matter of law, Gahagan
cannot be awarded attorney’s fees because he is a pro se attorneylitigant.

In footnote 1 of the Report and Recommendation, the

magistrate judge noted that this Court is “bound by Fifth Circuit
precedent indicating that FOIA attorney’s fee provision is subject
to a different analysis than that expressed in Kay and that under
such analysis, a pro se attorney can obtain attorney’s fees in a
FOIA action.”
To support its contention that the magistrate judge erred in
finding that Mr. Gahagan is eligible to recover attorney’s fees,
USCIS invokes Kay v. Ehrler, 499 U.S. 432, 438 (1991).

There, the

Supreme Court held that a pro se attorney is not entitled to an
6

award of attorney’s fees under the fee-shifting provision of the
Civil Rights Act, 42 U.S.C. § 1988.

The high court reasoned that

“the overriding statutory concern is the interest in obtaining
independent counsel for victims of civil rights violations” and
that

“Congress

was

interested

prosecution of meritorious claims.”

in

ensuring

Id. at 437-38.

the

effective

In fashioning

the bright line rule, the unanimous Court observed that neither
the text of the statute nor its legislative history provided a
clear answer to the question it faced; the Court underscored that
“the word ‘attorney’ assumes an agency relationship, and it seems
likely that Congress contemplated an attorney-client relationship
as the predicate for an award under § 1988.”

Id. at 437.

Thus,

after examining the words and purpose of the fee-shifting statute,
the Court embraced the rule precluding awards of counsel fees to
pro se litigants.

Id. (“A rule that authorizes awards of counsel

fees to pro se litigants--even if limited to those who are members
of the bar--would create a disincentive to employ counsel whenever
such a plaintiff considered himself competent to litigate on his
own behalf.

The 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.”).
Notably, in Kay, the Supreme Court observed that the district
court and Sixth Circuit had denied the petitioner’s request for
7

attorney’s fees under Section 1988 by relying in part on a FOIA
case, Falcone v. IRS, 714 F.2d 646 (6th Cir. 1983), cert. denied,
466 U.S. 908 (1984). 2

In affirming, a unanimous Supreme Court

cited with approval to Falcone, the FOIA case, observing:
In Falcone, the Court of Appeals declined to award
attorney’s fees to a pro se attorney in a successful
action under the Freedom of Information Act (FOIA), 5
U.S.C. § 552.
The Court of Appeals reasoned that
attorney’s fees in FOIA actions were inappropriate
because the award was intended “to relieve plaintiffs
with legitimate claims of the burden of legal costs” and
“to encourage potential claimants to seek legal advice
before commencing legislation.” 714 F.2d at 647. The
court relied on the fact that “[a]n attorney who
represents himself in litigation may have the necessary
legal expertise but is unlikely to have the ‘detached
and objective perspective’ necessary to fulfill the aims
of the Act.” Ibid. (citation omitted).

The Sixth Circuit affirmed the district court “based upon our
rejection in Falcone of the proposition that opportunity costs
constitute actual pecuniary losses for which a pro se attorney
deserves compensation.”
900 F.2d 967, 971 (6th Cir. 1990).
Indeed, the Sixth Circuit in Kay stated it was “bound to follow
the rationale of Falcone” as equally applicable to section 1988
cases. Id. (“Assuming that Kay spent hours prosecuting this case
that he could have billed to clients, he has only failed to add to
the wealth of private practice. He has not incurred any expenses
for legal representation, and, therefore, he cannot recover under
section 1988.
Falcone is a FOIA CASE, but that does not
distinguish it from this appeal.
Were we to hold that Kay’s
opportunity costs constituted pecuniary losses, when we had
previously held that Falcone’s opportunity costs were not, we would
begin classifying opportunity costs as legal expenses based upon
the substance of the pro se claim.
We find no authority for
awarding fees based on such a system.”).
8
2

Kay, 499 U.S. at 1436 n.4.

In so observing, “Kay implicitly

rejected a distinction between fee claims arising under section
1988 and FOIA.”

See Burka v. U.S. Dept. of Health and Human

Services, 142 F.3d 1286, 1289 (D.C. Cir. 1998); see also Benavides
v. Bureau of Prisons, 993 F.2d 257, 259 (D.C. Cir.)(finding that
Kay was binding on the issue of attorney’s fees in FOIA cases
because the Supreme Court had implicitly rejected a distinction
between fee claims arising under section 1988 and FOIA), cert.
denied, 510 U.S. 996 (1993).
Courts have uniformly embraced the bright line rule of Kay,
applying it with equal force beyond Section 1988 to preclude the
award of attorney’s fees to attorney-litigants seeking to recover
attorney’s fees similarly provided by other federal fee-shifting
statutes, notably, including FOIA. See, e.g., Ray v. United States
Dept. of Justice, 87 F.3d 1250, 1252 (11th Cir. 1996)(finding that
the

fee

shifting

provision

of

section

1988

and

FOIA

are

substantially similar, and the policies underlying the statutes
are the same, and concluding that “the principles announced in Kay
apply with equal force in this case to preclude the award of
attorney’s fees Ray seeks for his own work.”).

Indeed, since Kay

was decided, “virtually all other courts that have considered this
issue...have reached a similar conclusion.”

Burka v. U.S. Dept.

of Health and Human Services, 142 F.3d 1286, 1289 (D.C. Cir.
9

1998)(“It is obvious...that the Supreme Court intended its ruling
[in Kay] to apply beyond section 1988 cases to other similar feeshifting statutes, particularly the one in FOIA.

It is, in short,

impossible to conclude otherwise than that pro se litigants who
are attorneys are not entitled to attorney’s fees under FOIA.”). 3
There

is

one

post-Kay

circuit

decision,

however,

that

approvingly referenced its pre-Kay precedent (which had held that
lawyers who represent themselves in FOIA actions may recover under
the fee-shifting provision) and noted, in dicta, that any FOIA
complainant who has actually and reasonably incurred legal fees
(including a lawyer who is a plaintiff) is included in the class
of complainants eligible to recover under the FOIA fee-shifting
provision. That outlier position is occupied by the Fifth Circuit.
See Texas v. Interstate Commerce Commission (ICC), 935 F.2d 728
(5th Cir. 1991).

Notably, however, the Fifth Circuit failed to

discuss (or even mention) Kay when it decided ICC, raising doubts
about whether or not the Fifth Circuit or the attorneys involved

Underscoring that Kay’s reasoning is not confined to Civil Rights
Attorney’s Fees Awards Act cases, in addition to applying the rule
of Kay to FOIA’s fee-shifting provision, courts have applied it to
deny fees to pro se lawyers under the Equal Access to Justice Act,
SEC v. Price Waterhouse, 41 F.3d 805, 808 (2d Cir. 1994) and to
the common fund doctrine, Zucker v. Westinghouse Elec., 374 F.3d
221, 228-29 (3d Cir. 2004).
10
3

in the case considered Kay at all, both of which were decided in
1991.
To determine whether, as USCIS submits, the Court should apply
the bright line rule of Kay to preclude as a matter of law Gahagan’s
attorney fee award, the Court must examine both Cazalas v. United
States Dept. of Justice, 709 F.2d 1051 (5th Cir. 1983), which was
decided eight years before Kay, and Texas v. Interstate Commerce
Commission, 935 F.2d 728 (5th Cir. 1991), which was decided just
three months after.
Circuit

Eight years before Kay, in Cazalas, the Fifth

“confront[ed]

an

issue

of

first

impression[],

namely

whether an attorney litigant proceeding pro se is entitled to an
award of attorney fees under the FOIA.”

709 F.2d at 1055.

“That

a litigant attorney represents herself or himself,” the 2-1 panel
held, “does not preclude an award of attorney fees under the FOIA.”
Id. at 1057. 4

In reaching its decision, the court noted that: it

had previously held that FOIA precluded an award of attorney fees
to a pro se litigant who was not an attorney; circuit courts had
not come to a definitive resolution on the issue, in particular,
that the Fourth Circuit had declined to award attorney’s fees to
pro se attorneys in a Truth-in-Lending Act proceeding, but the

Cazalas was decided 2-1, with Judge Garwood dissenting from the
majority’s conclusion that an attorney litigant proceeding pro se
is eligible for an award of attorney fees under the FOIA.
11
4

Ninth Circuit had granted attorney fees to a defendant in a Civil
Rights Attorney’s Fees Awards Act case; and FOIA’s legislative
history indicates a “strong national policy of open government and
the

crucial

role

that

attorney

fees

play

in

protecting

this

interest.” Id. at 1055-57. Dissenting from the majority’s holding
that an attorney litigant proceeding pro se is eligible for an
attorney fee award under FOIA, Judge Garwood focused on the text
of the statutory fee provision and underscored that Congress did
not intend to discriminate between pro se FOIA litigants solely on
the basis of whether they were licensed to practice law.
1059-60 (Garwood, J., dissenting).

Id. at

Judge Garwood wrote that: (i)

the plain text of the statute (allowing recovery only for “attorney
fees ... incurred” by the litigant) “contemplate[s]...a situation
where services are performed for the litigant by some other person”
and (ii) the court’s prior precedent “was...influenced by reading
the Privacy Act and the FOIA attorney fees provisions as allowing
recovery only for ‘attorney fees...incurred’ by the litigant.”
Id.

Judge Garwood reasoned that “the statutory wording plainly

contemplates payment for services rendered to the litigant by
someone else, not payment for what the litigant does for himself.”
Id.
The question becomes whether the Cazalas holding survived
Kay.

Reading Kay and circuit court case literature that expressly
12

considered its impact demonstrates that Kay implicitly overruled
Cazalas.

The Supreme Court’s express holding in Kay is clear:

pro se attorney litigants are not entitled to attorney’s fees under
the fee shifting provision of the Civil Rights Attorney’s Fees
Awards Act of 42 U.S.C. § 1988.

In reaching this conclusion, the

Supreme Court found it necessary to look beyond the statutory text
(and its legislative history), given that on the one hand attorneys
proceeding pro se are nevertheless “attorneys” within the meaning
of the statute, but on the other hand that the word “attorney”
necessarily assumes an agency, or attorney-client, relationship as
a predicate for an award under the fee shifting provision.
499 U.S. at 435-36.

Indeed, the high court observed:

In the end, we agree with the Court of Appeals that the
overriding statutory concern is the interest in
obtaining independent counsel for victims of civil
rights violations. We do not, however, rely primarily
on the desirability of filtering out meritless claims.
Rather, we think Congress was interested in ensuring the
effective prosecution of meritorious claims.
Even a skilled lawyer who represents himself is at a
disadvantage in contested litigation.... The adage that
“a lawyer who represents himself has a fool for a client”
is the product of years of experience by seasoned
litigators.
A rule that authorizes awards of counsel fees to pro se
litigants even if limited to those who are members of
the bar would create a disincentive to employ counsel
whenever such a plaintiff considered himself competent
to litigate on his own behalf. The statutory policy of
furthering the successful prosecution of meritorious
13

Kay,

claims is better served by a rule that creates
incentive to retain counsel in every such case.

an

Id. at 436-437.
Thus, the Supreme Court held that an attorney who represents
himself in a successful civil rights action may not be awarded
reasonable attorney’s fees as part of the costs.
Court impliedly held is equally clear:

What the Supreme

the same bright line rule

applies to attorneys representing themselves in successful actions
based on similar federal fee-shifting statutes fulfilling similar
statutory policies.

Statutes like FOIA.

That the Supreme Court

affirmed and acknowledged the district court’s and Sixth Circuit’s
reliance on the Sixth Circuit ruling in Falcone, a FOIA case, to
reach its conclusion in Kay, the Civil Rights Act fee-shifting
case, reinforces this Court’s (and other circuit courts’) findings
that Kay implicitly overruled cases (like Cazalas) holding that
attorney litigants are eligible to recover attorney’s fees in
successful FOIA cases.

Id. at 435 n.4 (citing Falcone v. IRS, 714

F.2d 646 (6th Cir. 1983), cert. denied, 466 U.S. 908 (1984)).
The glitch with this Court’s finding that Kay implicitly
overruled Cazalas becomes apparent when the Court considers a Fifth
Circuit panel’s remarks in a case decided mere months after Kay,
Texas v. Interstate Commerce Commission, 935 F.2d 728 (5th Cir.
14

1991).

There, the panel considered whether a State could be

considered a “complainant” eligible to recover attorney fees under
FOIA and, deciding that question in the affirmative, went on to
consider whether the State of Texas was entitled to attorney fees
where it provided no benefit to the public and none of the other
discretionary

criteria

supported

a

fee

award,

and,

finally,

whether the State was entitled to receive attorney fees and costs
under FOIA from a private party.
there

was

no

attorney

Id. at 732-34. In other words,

proceeding

pro

se

in

ICC;

the

issues

presented to the ICC panel were distinct from the issue confronted
by Cazalas, Kay, and this Court.

The ICC panel did not need to

determine what this Court must:

whether an attorney proceeding

pro se may recover attorney’s fees under the fee-shifting provision
of FOIA.
Nevertheless, in examining the district court’s decision to
deny Texas’s motion for attorney fees under FOIA, the Fifth Circuit
panel observed that in support of the district court decision,
“the district court cited several decisions that in dicta discuss
the purposes of the FOIA attorneys-fee provision.”

Id. at 730 and

731 n.8 (noting that the district court found dicta in Cazalas
“especially compelling”).

Without mentioning or acknowledging the

Supreme Court decision in Kay decided just three months prior, the
Fifth Circuit reiterated its holding in Cazalas that lawyers who
15

represent themselves in FOIA actions may recover under the feeshifting provision.

But the issue of whether a pro se attorney

may recover fees in a successful FOIA lawsuit was not presented to
the ICC panel.

In holding that the State of Texas was eligible to

recover attorney fees under FOIA, the panel goes on to observe:
In sum, if a FOIA plaintiff has actually and reasonably
incurred legal fees—that is, a lawyer has handled his
case, even if the lawyer is the plaintiff himself—and if
the plaintiff substantially prevailed, he may recover
reasonable attorneys fees from the federal government,
provided
that
the
court
finds
that
the
four
discretionary criteria are satisfied. Any complainant
who meets these conditions is included within the
language of the statute. No class of complainants—not
even state governments—is excluded.

Id. at 731-32.
remarks

about

The Court need not determine how to reconcile ICC’s
Cazalas

in

light

of

Kay

because

ICC’s

mere

reiteration of Cazalas’s holding that a lawyer who is a plaintiff
himself is eligible for attorney’s fees under FOIA is dicta. 5

To

be sure, the Court is not bound by the Fifth Circuit’s dicta in

5

The Fifth Circuit instructs that:

A statement is dictum if it could have been deleted
without seriously impairing the analytical foundations
of the holding and being peripheral, may not have
received the full and careful consideration of the court
that uttered it.
A statement is not dictum if it is
necessary to the result or constitutes an explication of
the governing rules of law.
Netsphere, Inc. v. Baron,
2015)(citation omitted).

799
16

F.3d

327,

333

(5th

Cir.

the face of Supreme Court precedent to the contrary.

Having found

that Kay implicitly overruled the holding of Cazalas, that the ICC
panel mentioned Cazalas’s holding (a holding that was not essential
to ICC’s holding) 6 does not resurrect the holding of Cazalas.
In other words, the issues presented to and the holdings
derived

from

Cazalas

and

ICC

were

distinct.

By

implicitly

rejecting a distinction between fee claims arising under section
1988

and

FOIA,

Kay

implicitly

overruled

Cazalas’s

explicit

holding; but neither Kay’s implicit holding nor Cazalas’s explicit
holding were an issue presented in ICC.

Insofar as ICC can be

read to reinforce Cazalas’s holding post-Kay, it was unnecessary
to resolve any of the issues presented in ICC.

Indeed, the ICC

panel itself noted that the district court had relied on cases
discussing the purposes of FOIA, characterizing those discussions
as dicta.

See ICC, 935 F.2d at 730 and 731 n.8 (noting that the

district court found dicta in Cazalas “especially compelling”).
Had ICC confronted the implication of Kay on Cazalas (and the Court
can only speculate as to the short duration of time between the

In reaching its holding that state governments qualify as
“complainants” under FOIA, the Fifth Circuit underscored that the
statutory language was “clear,” but noted that, even if it was
“less clear,” the legislative history supported its holding that
Texas was eligible to recover attorney fees under FOIA. Again,
ICC cited to Cazalas, which had “summarized the ‘raison d’etre’ of
the fee-shifting provision.”
17
6

issuance of Kay and ICC as to why it did not), 7 the holding reached
by the ICC panel would remain undisturbed:
not

categorically

excluded

as

state governments are

“complainants”

under

FOIA

and,

therefore, in appropriate circumstances may be awarded attorney’s
fees.

An issue presented neither to the Supreme Court in Kay nor

to this Court.

Thus, insofar as ICC’s dicta (to reach its holding

on a distinct issue) contradicts an implicit holding of the Supreme
Court as well as express holdings of the Fifth Circuit’s sister
circuit (Ray v. U.S. Dept. of Justice, 87 F.3d 1250 (11th Cir.
1996)), as well as other Circuits (see, e.g., Pietrangelo v. U.S.
Army, 568 F.3d 341 (2d Cir. 2009); Burka v. U.S. Dept. of Health
and Human Services, 142 F.3d 1286 (D.C. Cir. 1998)), the Court is
not bound by ICC’s dicta. 8
The only Fifth Circuit case to acknowledge the discrepancy
between Cazalas and Kay is an unpublished opinion issued 17 years

Counsel for USCIS submits that the timing of the Kay and ICC
decisions explains why ICC failed to address Kay:
neither the
attorneys nor the panel knew that the Kay opinion had been rendered
because the cases were decided so close in time. Kay was argued
on February 25, 1991 and decided on April 16, 1991, just three
months before ICC was decided on July 18, 1991. Even though ICC
was decided after Kay, USCIS urges the Court to consider Kay
intervening precedent.
8 That Kay’s bright line rule applies beyond the Civil Rights Act
context is clear. The Supreme Court has noted that Kay’s interest
“in having a party represented by independent counsel even when
the party is a lawyer” is not limited to the Civil Rights Act, but
is “systemic.” McNeil v. United States, 508 U.S. 106, 113 n.10
(1993)(Federal Tort Claims Act case).
18
7

ago in which the Fifth Circuit assumed without deciding that Kay
controls, but refused to reconcile the inconsistency.

See Chin v.

United States Dept. of Air Force, 220 F.3d 587 (5th Cir. 2000).
There, Douglas Chin, “the real party in interest” filed a FOIA
lawsuit against the Air Force. Chin and his attorney, Carlton
Folsom, were both plaintiffs in the lawsuit. 9

Because “Folsom was

clearly acting on behalf of Chin and not on behalf of himself,”
the Fifth Circuit found that it was clear error for the district
court

to

deny

attorney’s

fees

on

the

basis

that

Folsom

was

appearing pro se; in so doing, the Fifth Circuit assumed without
deciding that Kay overruled Cazalas and controlled the issue
presented. Id. (“We need not decide whether Cazalas[] is rendered
moribund by Kay[].

Assuming, arguendo that [Kay] controls,....”).

Because Kay implicitly overruled Cazalas, insofar as Mr. Gahagan
is appearing pro se, Kay’s bright line rule applies, rendering him
ineligible to recover attorney’s fees in this FOIA case. 10

Folsom, the attorney, joined as a party in the lawsuit only after
the defendant sought to avoid the lawsuit on the grounds of
standing.
10 Mr. Gahagan has contended in this proceeding that he brought
this FOIA litigation on behalf of a client he represents in
immigration removal proceedings. But this does not alter the fact
that his client is not named as the real party in interest (see
Fed. R. Civ. P. 17(a)), nor does it alter the fact that Mr. Gahagan
is, by definition, a pro se attorney-litigant, rendering him
ineligible for attorney’s fees. See Burka, 142 F.3d at 1290-91.
19
9

Two issues remain:
2.

Whether the magistrate judge erred in finding the
existence of a public benefit and in weighing the
entitlement factors.

3.

Whether a more substantial reduction in Gahagan’s fee
award is warranted due to absence of billing judgment.

Having determined that Mr. Gahagan is ineligible to recover
attorney’s

fees

under

Kay,

the

Court

need

not

reach

USCIS’s

objection regarding whether the magistrate judge erred in finding
a public benefit and in weighing entitlement factors.

However,

insofar as Mr. Gahagan might be eligible to recover costs, the
Court leaves undisturbed the magistrate judge’s finding as to the
existence of a public benefit and in weighing entitlement factors.
USCIS’s objection to the magistrate judge’s finding of a public
benefit and weighing of the entitlement factors is OVERRULED and
the Court adopts the Report and Recommendation as necessary to
support an award of costs under 5 U.S.C. § 552(a)(4)(E)(i). 11
Having

determined

that

Mr.

Gahagan

is

ineligible

to

recover

attorney’s fees under Kay, the Court need not reach USCIS’s final

11

5 U.S.C. § 552(a)(4)(E)(i) provides:
The court may 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.
20

objection

seeking

a

more

substantial

reduction

in

Gahagan’s

attorney fee award.
Although the Court finds that Mr. Gahagan is not eligible to
recover attorney’s fees under Kay, considering this Court’s prior
rulings as to eligibility as well as its de novo review of the
magistrate

judge’s

thorough

consideration

of

Mr.

Gahagan’s

eligibility and entitlement to costs, Mr. Gahagan may recover
$451.47 in costs under 5 U.S.C. § 552(a)(4)(E)(i). 12
***
Accordingly, for the foregoing reasons, IT IS ORDERED: that
USCIS’s objection to the magistrate judge’s finding that Mr.
Gahagan

is

eligible

for

attorney’s

fees

under

ICC

is

hereby

SUSTAINED and the magistrate judge’s Report and Recommendation is
REJECTED in part, but USCIS’s objection to the magistrate judge’s
finding as to the existence of a public benefit and in weighing
entitlement factors is OVERRULED and the magistrate judge’s Report
and Recommendation is ADOPTED in part.

Finally, USCIS’s objection

concerning the quantum of attorney’s fees is MOOT.

Thus, IT IS

FURTHER ORDERED: that Mr. Gahagan’s motion for attorney’s fees is
DENIED, but his request for costs is GRANTED.

Mr. Gahagan is

It is undisputed that Mr. Gahagan incurred costs in the amount
of $451.47.
21
12

entitled

to

recover

$451.47

in

costs

under

5

U.S.C.

552(a)(4)(E)(i).
New Orleans, Louisiana, September12th 2017
__,

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

22

§