Rich v. Executive Office of Immigration Review

Filing 12

ORDER denying Plaintiff's 5 Motion for Attorney Fees. Signed by Hon. Michelle L. Peterson.(MW)

Case 2:20-cv-01220-RAJ-MLP Document 12 Filed 01/06/21 Page 1 of 7

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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KATHERINE HONOR RICH,

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Case No. C20-1220-RAJ-MLP

Plaintiff,

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ORDER

v.
EXECUTIVE OFFICE OF
IMMIGRATION REVIEW,

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Defendant.

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I.

INTRODUCTION

On October 19, 2020, Plaintiff Katherine Rich (“Ms. Rich”), an attorney proceeding pro

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se, filed a Motion for Attorney’s Fees (“Plaintiff’s Motion”) in this matter. (Pl.’s Mot. (Dkt.

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# 5).) Defendant Executive Office of Immigration Review (“EOIR”) opposed Plaintiff’s Motion.

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(Def.’s Resp. (Dkt. # 8).) Plaintiff did not file a reply. Having considered the parties’

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submissions, the balance of the record, and the governing law, Plaintiff’s Motion (dkt. # 5) is

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DENIED, as explained further below.

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II.

BACKGROUND

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Ms. Rich is an attorney licensed to practice law in the State of Washington who

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represents low-income clients in immigration matters. (Compl. (Dkt. # 1) at 2.) Relevant to this

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matter, Ms. Rich represents O.L.R., a non-detained alien, in his immigration proceedings. (Id. at

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3.) On February 11, 2020, Ms. Rich filed a Freedom of Information Act (“FOIA”) request for

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documents from EOIR seeking copies of O.L.R.’s, and his wife F.D.J.R.A.’s, records from their

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consolidated EOIR removal proceedings via e-mail. (Id.) Specifically, Ms. Rich sought a copy of

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O.L.R.’s stamped EOIR-42B application from the Seattle Immigration Court. (Id. at 4.)

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On February 14, 2020, EOIR mailed a letter of acknowledgement to Ms. Rich that it was

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in receipt of her FOIA request. (Compl. at 3.) Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), EOIR was

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required to respond to Ms. Rich’s FOIA request within 20 business days. However, EOIR’s letter

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stated that Plaintiff’s request involved “unusual circumstances,” and as a result, EOIR was

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extending its time period to respond by 10 additional working days pursuant to 5 U.S.C.

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§ 522(a)(6)(B)(i). (Souza Decl. (Dkt. # 9) at ¶ 10.) The 30-day deadline to respond to Ms. Rich’s

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FOIA requests expired on March 25, 2020. (Id.)

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On March 10, 2020, the Seattle Immigration Court shut down due to the COVID-19

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pandemic before reopening in a limited capacity to answer phone calls and receive mail on

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March 16, 2020. (MacAdam Decl. (Dkt. # 11) at ¶ 6.) The Seattle Immigration Court operated in

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this limited capacity throughout the majority of 2020 and was further limited due to a transfer of

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location from July 20, 2020, through August 17, 2020. (Id. at ¶¶ 7-8.) As a result, the Seattle

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Immigration Court had minimal capacity to facilitate record requests. (Id. at ¶ 10.) Additionally,

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the Seattle Immigration Court was unable to facilitate requests that required retrieval of records

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from the Seattle Federal Records Center (“FRC”) because the FRC was either closed due to the

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COVID-19 pandemic or working with minimal staff who only processed urgent requests for

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detained aliens. (Id. at ¶ 9.) On or around September 2020, the Seattle FRC began processing

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requests concerning non-detained alien records at a 25-percent personnel capacity. (Id. at ¶ 11.)

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EOIR notes, due to the COVID-19 pandemic, it also began functioning primarily through

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telework on March 16, 2020, which impacted its ability to process FOIA requests. (Souza Decl.

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at ¶ 11.)

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On April 15, 2020, EOIR issued a partial response to Ms. Rich’s requests by providing

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digital audio recordings of the requested proceedings due to their immediate availability. (Souza

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Decl. at ¶ 12.) Throughout the next several months, Ms. Rich alleges she contacted EOIR on

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multiple occasions after not receiving a full response by the 30-day deadline. (Pl.’s Mot. at 2-3.)

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On July 21, 2020, Ms. Rich filed a second FOIA specifically requesting “O.L.R.’s court-stamped

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Form EOIR-42B.” (Id. at 3.)

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On August 12, 2020, Ms. Rich filed the instant action. (See Compl.) On September 10,

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2020, an EOIR attorney advisor notified its FOIA component to check on the requested records

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and see if they could be ordered as “urgent.” (Souza Decl. at ¶ 13.) On September 11, 2020,

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EOIR FOIA’s component contacted the Seattle Immigration Court and asked that the requested

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records be sent overnight. (Souza Decl. at ¶ 14; MacAdam Decl. at ¶ 12.) The records for O.L.R.

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were located at the Seattle FRC and the records for F.D.J.R.A. were located at the Seattle

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Immigration Court and both were sent out for processing. (Souza Decl. at ¶ 14; MacAdam Decl.

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at ¶¶ 12-13.) (Id.) On September 21, 2020, EOIR sent F.D.J.R.A’s requested records to Ms. Rich.

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(Souza Decl. at ¶ 15.) On September 23, 2020, EOIR sent O.L.R.’s records. (Id. at ¶ 16.)

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On September 22, 2020, Ms. Rich served this action to EOIR by certified mail, and on

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September 24, 2020, Ms. Rich alleges she received the requested records. (Pl.’s Mot. at 3.) Ms.

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Rich requests $2541.50 in attorney’s fees, and $409.50 in litigation costs, for a total award of

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$2951.00 based on EOIR’s failure to timely facilitate her FOIA request. (Id. at 2, 15.)

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III.

DISCUSSION

FOIA authorizes district courts discretion to “assess against the United States reasonable

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attorney fees and other litigation costs reasonably incurred in any case . . . in which the

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complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). To obtain attorney’s fees

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under FOIA, “a plaintiff must demonstrate both eligibility and entitlement to the award.” Or.

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Nat’l Desert Ass’n v. Locke, 572 F.3d 610, 614 (9th Cir. 2009); see also Long v. U.S. Internal

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Revenue Serv., 932 F.2d 1309, 1313 (9th Cir. 1991). Eligibility for an award of attorney’s fees

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and litigation costs requires a plaintiff to show that he or she “has substantially prevailed” in its

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FOIA suit by obtaining relief through either: (1) a judicial order, or an enforceable written

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agreement or consent decree; or (2) a voluntary or unilateral change in position by the agency, if

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the plaintiff’s claim is not insubstantial. 5 U.S.C. §§ 552(a)(4)(E)(i)-(ii); see First Amendment

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Coal. v. U.S. Dep’t of Justice, 878 F.3d 1119, 1126 (9th Cir. 2017).

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The Supreme Court has previously held that a pro se litigant, who is also a lawyer, may

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not be awarded attorney’s fees under statutory fee-shifting statutes. Kay v. Ehrler, 499 U.S. 432,

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438 (1991). In Kay, the Supreme Court held that an attorney who represented himself in a

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successful civil rights case pro se could not recover attorney’s fees under 42 U.S.C. § 1988. Id.

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The Supreme Court reasoned that:

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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.

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Id.; see also U.S. S.E.C. v. Chapman, 602 Fed.App’x 407 (9th Cir. 2015) (denying pro se
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attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)); Elwood v.
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Drescher, 456 F.3d 943, 947 (9th Cir. 2006), abrogated on other grounds by Citizens for Free

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Speech, LLC v. Cty. of Alameda, 953 F.3d 655 (9th Cir. 2020) (“Kay imposes a general rule that

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pro se litigants, attorneys or not, cannot recover statutory attorneys’ fees.”).

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Since Kay, courts have generally followed its rule when considering requests for

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attorney’s fees by pro se attorneys under FOIA. See Burka v. U.S. Dept. of Health and Human

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Servs., 142 F.3d 1286, 1289-90 (D.C. Cir. 1998) (“In the wake of the Court’s decision in Kay,

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lower courts have held that several different fee-shifting statutes, including FOIA, preclude

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awards of fees to all persons who appear pro se.”); Manos v. U.S. Dep’t of Air Force, 829

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F.Supp. 1191, 1192-93 (N.D. Cal. 1993) (“Because substantially similar policies underlie the

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attorneys’ fees provisions of FOIA and section 1988, Kay strongly supports a denial of fees

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under FOIA to pro se attorney plaintiffs.”). In addition, the Ninth Circuit has routinely held that

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pro se litigants, in general, are not entitled to attorney’s fees in FOIA actions. See e.g., Carter v.

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Veterans Admin., 780 F.2d 1479, 1481 (9th Cir. 1986); see also Mayock v. I.N.S., 736 F.Supp.

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1561, 1563 (N.D. Cal. 1990) (“[T]his court agrees that pro se plaintiffs who happen to be

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attorneys should not be treated differently from pro se litigants who are not attorneys.”); Chourre

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v. I.R.S., 203 F.Supp.2d 1196, 1201 (W.D. Wash. 2002).

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Here, it is clear that Ms. Rich may not recover her attorney’s fees under FOIA. Ms. Rich

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brought this action in her name, and not on behalf of O.L.R. or F.D.J.R.A., to recover fees she

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alleges were accrued based on her time expended as an attorney seeking the requested FOIA

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documents. (Pl.’s Mot. at 2-3.) But as previously explored above, Ms. Rich may not be awarded

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attorney’s fees because she is an attorney litigant acting pro se. See Kay, 499 at 438; Carter, 780

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F.2d at 1481.

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The only remaining question in this case is whether Ms. Rich should be awarded her
litigation costs. See Carter, 780 F.2d at 1481 (9th Cir. 1986); see also Laughlin v. C.I.R., 117

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F.Supp.2d 997, 1002 (S.D. Cal. 2000). In order to show a voluntary or unilateral change in

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position by the agency—to be eligible for an award of litigation costs—the plaintiff must

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demonstrate “a causal nexus between the litigation and the voluntary disclosure or change in

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position by the Government.” First Amendment Coal., 878 F.3d at 1128. This requires that

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plaintiff “present ‘convincing evidence’ that the filing of the action ‘had a substantial causative

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effect on the delivery of the information.’” Id. (quoting Church of Scientology of Cal. v. U.S.

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Postal Serv., 700 F.2d 486, 491 (9th Cir. 1983)). In determining whether the suit had a

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“substantial causative effect” on the change in position, the Ninth Circuit has outlined that Court

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should consider: (1) when the documents were released; (2) what actually triggered the

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documents’ release; and (3) whether plaintiff was entitled to the documents at an earlier time. Id.

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at 1129 (citing Church of Scientology, 700 F.2d at 492).

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Here, Ms. Rich has additionally failed to demonstrate she has “substantially prevailed” in

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this matter for an award of litigation costs. Ms. Rich contends EOIR’s delay in releasing the

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requested FOIA records until it was in receipt of her suit demonstrates she “substantially

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prevailed.” (Pl.’s Mot at 6-9.) Ms. Rich submitted her initial FOIA request on February 11, 2011,

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and received the requested records on September 24, 2020. (Id. at 2-3.) Though it is clear from

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the record that Ms. Rich did not receive the requested FOIA documents within the enumerated

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30-day deadline, EOIR has submitted substantial evidence that the delay in processing her

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request occurred due to the COVID-19 pandemic’s impact on EOIR, the Seattle Immigration

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Court, and the Seattle FRC’s ability to process record requests for non-detained aliens. (See

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Souza Decl. at ¶¶ 12-16; MacAdam Decl. at ¶¶ 6-12.) Moreover, Ms. Rich’s argument that she

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only received the records after serving this action on EOIR is unavailing because EOIR was in

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the process of facilitating her request once the Seattle FRC was capable of processing requests in

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early September 2020. See First Amendment Coal., 878 F.3d at 1128 (quoting Church of

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Scientology, 700 F.2d at 491-92) (“[The mere fact that information sought was not released until

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after the lawsuit was instituted is insufficient to establish that a complainant has ‘substantially

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prevailed.”) (internal quotations omitted). Consequently, Ms. Rich did not “substantially prevail”

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in this matter, and therefore, is not eligible for her litigation costs.

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IV.

CONCLUSION

For the foregoing reasons, Plaintiff’s Motion (dkt. # 5) is DENIED. The Clerk is directed
to send copies of this Order to the parties and to the Honorable Richard A. Jones.

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Dated this 6th day of January, 2021.

A

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MICHELLE L. PETERSON
United States Magistrate Judge

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