Ray v. U.S. Department of Justice

United States Court of Appeals,

Eleventh Circuit.

No. 94-5237.

Michael D. RAY, Plaintiff-Appellant,

v.

U.S. DEPARTMENT OF JUSTICE, Immigration and Naturalization
Service, Defendants-Appellees.

July 16, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 89-288-CIV-KLR), Kenneth L. Ryskamp,
Judge.

Before EDMONDSON, Circuit Judge, FAY and GIBSON*, Senior Circuit
Judges.

EDMONDSON, Circuit Judge:

This appeal is one from the denial of an award of attorney's

fees under the Freedom of Information Act. The award was sought

for work done by a lawyer who (with the help of another lawyer) was

representing himself. This appeal is also one from the refusal to

enhance the fee award given the litigant-lawyer for his

co-counsel's work on the case. We affirm.

Michael Ray, a lawyer, wanted access to Immigration and

Naturalization Service (INS) documents about Haitian nationals who

had been interdicted by the Coast Guard and who were later

involuntarily returned to Haiti. Ray filed—in his own name—six

requests for information about the interdictees under the Freedom

of Information Act, 5 U.S.C. § 552, (FOIA). When INS did not

respond to the requests, Ray sued (again in his own name). He

*
Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for
the Eighth Circuit, sitting by designation.
proved his case, and the district court ordered INS to comply with

FOIA's time limits. This order is reported atRay v. U.S. Dep't of

Justice, 770 F.Supp. 1544 (S.D.Fla.1990).

As a prevailing party, Ray filed a motion for attorney's fees

under FOIA. See 5 U.S.C. § 552(a)(4)(E). Ray sought fees for his

own legal work and fees for the legal work of another lawyer who

assisted him. In a comprehensive order, see Ray v. U.S. Dep't of

Justice, 856 F.Supp. 1576 (S.D.Fla.1994), the district court

concluded that Ray, as a pro se plaintiff, was entitled to no award

of attorney's fees for his own work. The court did award Ray fees

for the work of his co-counsel. The court declined to enhance the

amount of this award, however.

The first question in this appeal is whether Congress

intended under 5 U.S.C. § 552(a)(4)(E) to permit a district court

to assess against the United States "reasonable attorney fees"

where the "fees" are based on the legal work of a pro se litigant

who is also a lawyer. To answer this question we rely chiefly on

Kay v. Ehrler, 499 U.S. 432, 111 S.Ct. 1435, 113 L.Ed.2d 486

(1991).

In Kay, the Supreme Court decided whether a pro se litigant

who also is a lawyer could be awarded fees for his own services

under 42 U.S.C. § 1988. While section 1988 was intended to "enable

potential plaintiffs to obtain the assistance of competent

counsel,"1 the Court concluded that the "overriding statutory

1
Congress observed that citizens with meritorious civil
rights claims sometimes could not afford a competent attorney.
See generally Kay, at 436 n. 8, 111 S.Ct. at 1437 n. 8. Fee
shifting statutes seem to recognize the reality that "defending
the underdog is fine, but it's usually the upperdog who can pay
concern" of the section was to encourage the retention of

independent counsel by victims of civil rights violations. Kay, at

435-36, 111 S.Ct. at 1437. Permitting a fee award to a pro se

litigant—even one who is a lawyer—would discourage such a plaintiff

from employing independent counsel; so, the Court held no fees

could be awarded. Id. at 435-38, 111 S.Ct. at 1437-38.

The fee shifting provisions of section 1988 and FOIA are

substantially similar. (FOIA permits the court to assess against

the United States "reasonable attorney fees." Section 1988 permits

the court to award "a reasonable attorney's fee."). No difference

in language dictates that the two statutes should be interpreted

differently.2

And, Ray makes no arguments that the congressional policy

behind section 1988 (that is, the policy of encouraging and

enabling plaintiffs to employ independent counsel, see Kay, at 437-

38, 111 S.Ct. at 1438) is not the same policy behind section

552(a)(4)(E). We think that the policies behind the two fee

shifting statutes are the same. See Benavides v. Bureau of

the big fees." See Jack Mingo and John Javna, Primetime Proverbs
113 (1989) (quoting Alfred Hitchcock speaking on "Alfred
Hitchcock Presents").
2
On the text of FOIA, we also agree with the Supreme Court
that the word "attorney" generally assumes some kind of agency
(that is, attorney/client) relationship. See Kay, at 435-36, 111
S.Ct. at 1437; see also Duncan v. Poythress, 777 F.2d 1508, 1518
(11th Cir.1985) (en banc) (Roney, J., dissenting). The fees a
lawyer might charge himself are not, strictly speaking,
"attorney's fees."

And, where a lawyer represents himself, legal fees are
not truly a "cost" of litigation—no independent lawyer has
been hired (or must be paid) to pursue the FOIA complaint.
See Falcone v. IRS, 714 F.2d 646, 647 (6th Cir.1983).
Prisons, 993 F.2d 257, 259-60 (D.C.Cir.1993) (discussing this issue

in case involving pro se non-lawyer plaintiff); cf. Celeste v.

Sullivan, 988 F.2d 1069, 1070 (11th Cir.1992) (applying Kay to

non-lawyer pro se plaintiff in Equal Access to Justice Act case).

So, we believe 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.3

Ray also says that the district court abused its discretion

in calculating the amount of the fee award given Ray for the work

of his independent lawyer, see Popham v. City of Kennesaw, 820 F.2d

1570, 1581 (11th Cir.1987) (setting out standard of review). Ray

argues that this amount is not reasonable given his "exceptional

success." Put differently, Ray wants the lodestar enhanced. See

generally Norman v. Housing Authority of Montgomery, 836 F.2d 1292,

1302 (11th Cir.1988). While Ray's lawyer did help Ray obtain an

order which was important to some people, we conclude no abuse of

discretion has been shown.4 Given this conclusion, we do not

consider whether City of Burlington v. Dague, 505 U.S. 557, 112

S.Ct. 2638, 120 L.Ed.2d 449 (1992), precludes enhancement of the

lodestar under any circumstance.

3
We also observe that any fact differences between this case
and Kay (such as that Ray hired a lawyer to help him, that Ray
was licensed to practice in the district in which he was
litigating, or that Ray might have been acting "in the public
interest") have no impact on this question of statutory
construction.
4
The district court found that the result obtained in this
case was not "out of the ordinary, unusual or rare." Nor was the
result "unexpected in the context of extant substantive law."
The court said that it, in response to a suit filed by Ray,
"merely ordered the INS comply with the mandates of FOIA."
AFFIRMED.