United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 4, 1999 Decided June 18, 1999
No. 98-5424
Samuel G. Kooritzky,
Appellee/Cross-Appellant
v.
Alexis M. Herman, Secretary,
United States Department of Labor,
Appellant/Cross-Appellee
Consolidated with
No. 98-5438
Appeals from the United States District Court
for the District of Columbia
(No. 91cv003011)
(No. 91cv03011)
---------
Michael J. Ryan, Assistant U.S. Attorney, argued the
cause for appellant/cross-appellee. With him on the briefs
were Wilma A. Lewis, U.S. Attorney, R. Craig Lawrence,
Assistant U.S. Attorney, and Vincent C. Costantino, Counsel,
U.S. Department of Labor.
Christopher A. Teras argued the cause and filed the briefs
for appellee/cross-appellant. Samuel G. Kooritzky entered
an appearance.
Before: Ginsburg, Sentelle and Randolph, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Appellant Alexis Herman, Secre-
tary of the Department of Labor ("DOL" or "Department"),
seeks reversal of the district court's award of attorney fees
under the Equal Access to Justice Act ("EAJA") to Appellee
Samuel G. Kooritzky. Kooritzky cross-appeals, alleging that
the district court committed errors that resulted in an unwar-
ranted reduction in the amount of attorney fees he was
awarded. We conclude that an attorney acting pro se, such
as Kooritzky, is not entitled to recover attorney fees under
the EAJA. We therefore reverse the district court's award
of fees, and conclude that Kooritzky's objections to the
amount of fees awarded are moot.
I. Background
Kooritzky, an immigration law attorney, commenced an
action pro se in November 1991 against the Secretary of
Labor, challenging promulgation of an "interim final rule" by
DOL which terminated the right of employers to substitute
one immigrant applicant for another in the labor certification
process. The district court ruled in DOL's favor, but we
reversed, concluding that DOL had promulgated its rule
without adequate notice and comment. Kooritzky v. Reich,
17 F.3d 1509 (D.C. Cir. 1994).
After prevailing on the merits, Kooritzky sought to recover
attorney fees from the Department. Kooritzky asserted that,
in addition to his own efforts, he received assistance from
attorneys Christopher Teras, M. Sean Purcell, and Tae Kim,
and law clerk Thomas Moore. None of these individuals,
however, had entered an appearance on Kooritzky's behalf
during the merits phase of the case.
On March 1, 1995, Kooritzky moved for an award of
attorney fees of $427,662 under the EAJA, 28 U.S.C.
s 2412(d)(1)(A), to compensate him for his and his colleagues'
work. The district court referred the matter to a magistrate
judge for a recommendation regarding the amount of attor-
ney fees, if any, Kooritzky was entitled to recover. After
seven days of hearings, the magistrate judge recommended
that Kooritzky be awarded $31,798.71 for his own work only.
Joint Appendix at 18-59. The magistrate judge concluded
that Kooritzky had no representation agreement with any of
his alleged co-counsel and, as a result, could not recover their
attorney fees.
Both sides filed objections to the magistrate's report. On
December 17, 1997, the district court issued a Memorandum
on Attorney Fees, agreeing that Kooritzky was eligible for
attorney fees and finding that he was entitled to the following
amounts: $51,920.51 for Kooritzky, $47,689.03 for co-counsel
fees, and $134.70 for photocopying charges. Kooritzky v.
Herman, 6 F. Supp.2d 1 (D.D.C. 1997) ("Kooritzky I"). The
court ordered the parties to submit evidence relevant to the
prevailing market rate for legal assistants working as inde-
pendent contractors in the Washington, D.C. area in order to
assess the amount Kooritzky could recover for the work of
law clerk Moore.
On May 7, 1998, following further submissions by the
parties, including Kooritzky's motion for reconsideration and
DOL's opposition, the district court issued its final judgment
on attorney fees. Kooritzky v. Herman, 6 F. Supp.2d 13
(D.D.C. 1998) ("Kooritzky II"). The court directed that DOL
pay Kooritzky the following fees by June 15, 1998: $55,992.06
for Kooritzky, $82,754.98 for co-counsel fees, and $134.70 for
photocopying expenses.
On May 21, 1998, DOL moved for reconsideration based on
an intervening decision by this court, Burka v. United States
Department of Health and Human Services, 142 F.3d 1286
(D.C. Cir. 1998), in which we affirmed a decision denying
attorney fees under the Freedom of Information Act
("FOIA") to a pro se attorney for his work and the work of
his colleagues. Our decision in Burka was based on our
reading of the Supreme Court's decision in Kay v. Ehrler, 499
U.S. 432 (1991). In Kay, the Court ruled that the word
"attorney" in the fee-shifting provision of the Civil Rights
Attorney's Fees Awards Act, 42 U.S.C. s 1988, assumes an
agency relationship, and therefore precludes recovery of at-
torney fees for work done by an attorney acting pro se. In
Burka, we held that the reasoning of Kay compelled denial of
attorney fees to a lawyer acting pro se under the similar fee-
shifting provision in FOIA. 142 F.3d at 1288-89. On June 9,
1998, the district court denied DOL's motion, concluding that
there were differences between FOIA and EAJA that coun-
seled against application of the Kay decision in EAJA cases.
The parties subsequently filed these appeals.
II. Analysis
The Department challenges the district court's award of
attorney fees for both (1) Kooritzky's own work and (2) the
work of Kooritzky's co-counsel. Since the analysis for the
two categories of fees differs, we address them separately.
A. Attorney Fees for Work Performed by Kooritzky
DOL argues that the district court erred in awarding
attorney fees to Kooritzky since he was acting pro se. In
particular, DOL contends that the district court mistakenly
relied upon this court's decision in Jones v. Lujan, 887 F.2d
1096 (D.C. Cir. 1989), allowing recovery of attorney fees by a
pro se attorney-litigant under the EAJA. See Kooritzky I, 6
F. Supp.2d at 3. DOL submits that our decision in Jones was
implicitly overruled by the Supreme Court in Kay v. Ehrler,
499 U.S. 432 (1991), disallowing recovery of attorney fees to
pro se plaintiffs under the fee-shifting provision found in 42
U.S.C. s 1988. Kooritzky contends that the district court
correctly relied on this court's decision in Jones, which he
asserts remains the controlling law of this circuit despite the
Supreme Court's subsequent decision in Kay. He argues
that the Kay opinion was limited to cases brought under the
Civil Rights Attorney's Fees Awards Act and that, while Kay
resolved a "statutory ambiguity" by examining the specific
legislative history of that Act, the Jones holding was based on
the clear and unambiguous language of the EAJA. Upon
review, we conclude that the fee-shifting provision of EAJA
does not differ in any material way from the statutes con-
strued by the Supreme Court in Kay and by this court in
Burka. We therefore hold that our decision in Jones has
been overruled by the Supreme Court, and that the district
court erred in awarding fees to the pro se litigant under
EAJA.
In the United States, fee shifting is a departure from the
norm. In the general run of litigation, the "American rule"
dictates that each party to a lawsuit bears his own attorney
fees. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983); Alyes-
ka Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247
(1975). Congress has specified exceptions to this American
rule in a number of statutory schemes in the form of fee-
shifting provisions which allow recovery of attorney fees by a
"prevailing party." See West Virginia Univ. Hosps., Inc. v.
Casey, 499 U.S. 83, 89 (1991) (noting that "[a]t least 34
statutes in 10 different titles of the United States Code
explicitly shift attorney's fees and expert witness fees"). The
governing fee-shifting statute for EAJA awards is 28 U.S.C.
s 2412(d)(1)(A):
Except as otherwise specifically provided by statute, a
court shall award to a prevailing party other than the
United States fees and other expenses, in addition to any
costs awarded pursuant to subsection (a), incurred by
that party in any civil action (other than cases sounding
in tort), including proceedings for judicial review of agen-
cy action, brought by or against the United States in any
court having jurisdiction of that action, unless the court
finds that the position of the United States was substan-
tially justified or that special circumstances make an
award unjust.
The EAJA elsewhere defines "fees and expenses" to include
"the reasonable expenses of expert witnesses, the reasonable
cost of any study, analysis, engineering report, test, or pro-
ject which is found by the court to be necessary for the
preparation of the party's case, and reasonable attorney fees."
Id. s 2412(d)(2)(A).
In Kay v. Ehrler, the Supreme Court considered the enti-
tlement to fees of a lawyer litigating pro se in a civil rights
action. The Civil Rights Attorney's Fees Awards Act provid-
ed that in such an action, "the court, in its discretion, may
allow the prevailing party, other than the United States, a
reasonable attorney's fee as part of the costs." 42 U.S.C.
s 1988(b). After noting that it was already fixed law "that a
pro se litigant who is not a lawyer is not entitled to attorney's
fees," Kay, 499 U.S. at 435 (emphasis in original), a unani-
mous Supreme Court held that the same rule applied to a pro
se litigant who is a lawyer. While the Court allowed that
neither the text nor the legislative history of the statute
provided "a clear answer," it firmly declared 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 s 1988." Id. at 435-36. In
so declaring, the Court cited the definition of the word
"attorney" as " '[O]ne who is legally appointed by another to
transact business for him; specif: a legal agent qualified to
act for suitors and defendants in legal proceedings.' " Id. at
436 n.6 (quoting Webster's New Collegiate Dictionary 73
(1975)). The Court therefore concluded that the pro se
litigant, even though a qualified lawyer, is not entitled to
attorney fees for his own time, but may only collect fees for
work performed by third parties employed to act as his
attorneys at law in the litigation.
Although the definitional support for the holding might
have been sufficient, the Court buttressed its conclusion with
an examination of the purpose of the statute. While recogniz-
ing that the fee-shifting provision "was no doubt intended to
encourage litigation protecting civil rights," the Court further
noted that "it is also true that its more specific purpose was
to enable potential plaintiffs to obtain the assistance of com-
petent counsel in vindicating their rights." Id. at 436. There
is no limiting language in the Kay opinion to make us believe
that the Supreme Court intended its reasoning to apply only
to the specific statute before it. Other fee-shifting statutes
also speak of "attorney's" fees. The definitional implication
of an agency relationship in the EAJA provision is therefore
just as strong as in the Civil Rights Act. Therefore, in
Burka, we had no difficulty in holding that the fee-shifting
provision of the Freedom of Information Act, 5 U.S.C.
s 552(a)(4)(E) (1994), was governed by Kay and that a pro se
attorney-litigant pursuing a remedy under FOIA, like his
counterpart in a civil rights action, was not entitled to an
award of attorney fees. As the Supreme Court had done in
Kay, we noted in Burka that a contrary rule would be
counter to one purpose of the statute--that is, " 'to encourage
potential claimants to seek legal advice before commencing
litigation.' " Burka, 142 F.3d at 1289 (quoting Kay, 499 U.S.
at 435 n.4) (other citations and internal quotations omitted).
As both the Burka and Kay opinions further note, "al-
though a pro se attorney possesses legal expertise, he is
unlikely to have the 'detached and objective perspective nec-
essary to fulfill the aims of the Act.' " Burka, 142 F.3d at
1289 (quoting Kay, at 435 n.4) (other internal quotations and
citations omitted). Thus, Burka reflects a conviction that
nothing in the Supreme Court's Kay opinion limits its reason-
ing to the specific facts or statute before it. Nor does
anything in the reasoning of Kay or Burka draw a line
excluding the EAJA from the analysis controlling the applica-
tion of the other fee-shifting statutes.
The EAJA uses precisely the same wording--"attorney's
fees"--construed to imply the necessity of an agency relation-
ship in the other acts. Nothing in the statute defeats that
implication. Not only does this similarity in wording suggest
that the EAJA, like the FOIA, is controlled by the same
reasoning applied by the Supreme Court to the Civil Rights
Act, the Supreme Court itself has noted in the past the
similarity between the fee-shifting provisions of the EAJA
and Section 1988, observing that the EAJA is "the counter-
part to s 1988 for violation of federal rights by federal
employees." See West Virginia Univ. Hosps., 499 U.S. at 89;
see also Independent Fed'n of Flight Attendants v. Zipes, 491
U.S. 754, 758 n.2 (1989) ("[F]ee-shifting statutes' similar
language is 'a strong indication' that they are to be interpret-
ed alike.").
The district court, faced with an apparently controlling
precedent from this court in Jones compelling one result and
a later decision of the Supreme Court arguably but not
directly overruling that decision, concluded that Kooritzky
"presented a persuasive argument that the [EAJA] differs in
both language and purpose from the attorneys' fee provisions
of the Civil Rights Act and the Freedom of Information Act."
Kooritzky I, 6 F. Supp.2d at 3. We cannot agree. The
relevant fee-shifting provisions of the Civil Rights Attorney's
Fees Awards Act and the EAJA are the same in one control-
ling particular: both provide for recovery of "attorney's fees."
Thus, a straightforward analysis of the statutory text is
sufficient to conclude that, as in the case of the Civil Rights
Attorney's Fees Awards Act provision, a pro se attorney-
litigant may not recover attorney fees under the comparable
fee-shifting provision of the EAJA.
Neither is there a difference of purpose in the statute that
impels us toward any different result. In concluding that the
plaintiff had "presented a persuasive argument that the
[EAJA] differs in both language and purpose from the attor-
neys' fee provision of the Civil Rights Act and the [FOIA]"
construed in Kay and Burka, the district court cited Spencer
v. NLRB, 712 F.2d 539, 550 (D.C. Cir. 1983), as "enumerating
purposes of the Equal Access to Justice Act." Kooritzky I, 6
F. Supp.2d at 3. We have reviewed the goals we set forth in
Spencer: (1) to provide relief to victims of abusive govern-
mental conduct without assuming "enormous financial bur-
dens"; (2) "to reduce the incidence of such abuse"; and (3) to
"expos[e] a greater number of governmental actions to adver-
sarial testing." 712 F.2d at 550. We find none of these to be
inconsistent with the corresponding goals of the Civil Rights
Act underlying the fee-shifting provision of 42 U.S.C. s 1988.
Indeed, we must echo the Supreme Court's declaration in
West Virginia University Hospitals that EAJA is in a sense
a counterpart of the civil rights statute. In neither instance
does the general goal of encouraging vindication of rights
warrant an award of attorney fees where no attorney-client
relationship exists and where the goal of the filtering of
litigation through an independent professional is not met.
In Kay, the Court determined that a lawyer who appears
pro se is "deprived of the judgment of an independent third
party in framing the theory of the case, evaluating alternative
methods of presenting the evidence, cross-examining hostile
witnesses, formulating legal arguments, and in making sure
that reason, rather than emotion, dictates the proper tactical
response to unforeseen developments in the courtroom." 499
U.S. at 437. Thus, the Court concluded 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." Id. at 438.
The same policy goals undergird the EAJA. As this court
has observed, "[b]oth the Civil Rights Attorney's Fees Award
Act ... and the EAJA were designed to supplement a host of
more specific provisions allowing for the award of attorneys'
fees in suits brought under statutes granting or protecting
various federal rights." Spencer, 712 F.2d at 545 n.18; see
also Celeste v. Sullivan, 988 F.2d 1069, 1070 (11th Cir. 1992)
("The fee shifting provisions in section 1988 and in the EAJA
serve the same purposes."). Like the Civil Rights Attorney's
Fees Awards Act, the policy goals underlying the fee-shifting
provision found in the EAJA support the conclusion that
Congress sought to encourage the procurement of objective
counsel to pursue claims against the government for violation
of various federal rights. See H.R. Rep. No. 1418, 96th Cong.,
2d Sess. 9 (1980) (fee-shifting enacted to aid citizens for whom
"the inability to recover attorney fees preclude[d] resort to
the adjudicatory process"); id. at 12 (noting that under the
EAJA, "fee shifting becomes an instrument for curbing exces-
sive regulation and the unreasonable exercise of Government
authority"). In doing so, Congress contemplated that attor-
ney and client would be distinct individuals. See id. at 15
("[T]he computation of attorney fees should be based on
prevailing market rates without reference to the fee arrange-
ments between the attorney and client."). Thus, as in Kay,
our interpretation of the EAJA is consistent with underlying
policy goals and congressional purpose.
Our prior applications of the Supreme Court's decision in
Kay further support our ruling in this case. We have already
held that the Supreme Court's holding in Kay extends beyond
the Section 1988 context. In Burka v. United States Depart-
ment of Health and Human Services, 142 F.3d 1286 (D.C.
Cir. 1998), we ruled that pro se plaintiffs could not recover
attorney fees under the fee-shifting provision in FOIA. In
doing so, we concluded that Kay overruled prior decisions of
this court holding that a pro se attorney-litigant was entitled
to recover attorney fees under the fee-shifting provisions of
FOIA. Id. at 1288 (citing Cuneo v. Rumsfeld, 553 F.2d 1360,
1366 (D.C. Cir. 1977)). As a result of our analysis of the Kay
decision, we concluded that "the Supreme Court intended its
ruling to apply beyond section 1988 cases to other similar fee-
shifting 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." Id. at 1289; see also Benavides v. Bureau of Pris-
ons, 993 F.2d 257, 259 (D.C. Cir. 1993) (denying attorney fees
under FOIA to a pro se non-attorney on the grounds that
"the Supreme Court believes that the word 'attorney,' when
used in the context of a fee-shifting statute, does not encom-
pass a lay-person proceeding on his own behalf"). Thus, in
Burka, we stated the position of this court that the Supreme
Court's decision in Kay applies outside of the Section 1988
context, extending to all similarly-worded fee-shifting provi-
sions. We reaffirm that holding today.
In so ruling, we join a number of other circuits that have
ruled that Kay compels the conclusion that pro se plaintiffs
may not recover attorney fees under the EAJA. In SEC v.
Waterhouse, the Second Circuit applied Kay to bar recovery
of attorney fees by a pro se attorney-litigant, observing that
the "agency relationship [is absent] in the pro se context." 41
F.3d 805, 808 (2d Cir. 1994). Similarly, in Celeste v. Sullivan,
the Eleventh Circuit concluded that because the fee-shifting
provisions in the Civil Rights Attorney's Fees Awards Act
and the EAJA serve the same purposes, the Supreme Court's
decision in Kay barred recovery of attorney fees under the
EAJA by a pro se non-attorney. 988 F.2d 1069, 1070 (11th
Cir. 1992). Finally, in Demarest v. Manspeaker, the Tenth
Circuit denied attorney fees under the EAJA to a pro se
litigant, concluding that, like the Civil Rights Attorney's Fees
Awards Act, the EAJA "attempts to enable meritorious litiga-
tion to take place, not to reward individuals who obtain legal
redress." 948 F.2d 655, 656 (10th Cir. 1991).
B. "Expert Witness" Expenses
Not content to rest on his argument that this court's
decision in Jones is controlling, however, Kooritzky further
claims that he is entitled to recover fees under 28 U.S.C.
s 2412(d)(2)(A) for time he spent acting as an immigration
law "expert" in his own case. Kooritzky contends that the
district court correctly found that he played a "dual role" in
the litigation and that he both "participated in the advocacy
role of an attorney" and "participated as an expert in immi-
gration law as a supporter of his colleagues in the 'study ...
and analysis' of the specialized immigration law and policy
issues presented by this litigation." Kooritzky I, 6
F. Supp.2d at 4. Kooritzky extrapolates from this finding to
the conclusion that he is entitled to recover fees for his work
as an "expert witness" even if he is not entitled to recover
"attorney fees" for the same work.
DOL argues that Kooritzky should not be allowed to "side-
step" his preclusion from recovering attorney fees by charac-
terizing the fees as "expert" expenses. DOL observes that
the district court agreed that this was a "routine APA case"
and contends that therefore no expert studies were required
and that "the substantial amounts of time wasted by plaintiff
hardly qualify him for compensation as an expert." DOL
Reply Brief at 2, 10. DOL also maintains that Kooritzky
characterized the fees he claimed as attorney fees and that he
cannot now claim that these amounts represent compensation
for time he spent preparing the case as an expert witness.
We agree that a pro se attorney-litigant may not evade the
prohibition against recovery of attorney fees under the EAJA
by seeking to characterize himself as an "expert witness."
The EAJA provides that litigants may recover "fees and
other expenses" incurred in pursuing claims regarding al-
leged violations of various federal rights. Elsewhere, this
phrase is defined as follows:
"fees and other expenses" includes the reasonable ex-
penses of expert witnesses, the reasonable cost of any
study, analysis, engineering report, test, or project which
is found by the court to be necessary for the preparation
of the party's case, and reasonable attorney fees.
28 U.S.C. s 2412(d)(2)(A). On its face, therefore, the statuto-
ry language provides for the recovery of "reasonable ex-
penses of expert witnesses" in addition to "reasonable attor-
ney's fees." Unlike the term "attorney," the phrase "expert
witness" arguably does not connote as readily the sort of
agency relationship that would support a reading of the
statute requiring that the litigant and expert witness be
separate individuals before expenses may be awarded.
However, it is not at all unlikely that Congress intended
that expert witnesses, like attorneys, should be distinct from
litigants. EAJA with its net worth threshold, see 28 U.S.C.
s 2412(d)(2)(B), apparently contemplates placing less solvent
litigants facing the government as an adversary on a basis
similar to the multimillionaire engaged in the same type of
litigation. Appellee has shown us no precedent for a litigant,
wealthy or otherwise, receiving witness fees, expert or plain,
for his own litigation. Indeed, it would seem a strange
incentive to provide witness fees not for the purpose of
reimbursing a litigant for his out-of-pocket costs, but as
salary for time spent as a witness in his own litigation.
Moreover, as the Supreme Court noted in Kay "[e]thical
considerations may make it inappropriate for [a pro se law-
yer] to appear as a witness." Kay, 499 U.S. at 437 n.9 (citing
the ABA Model Code of Professional Responsibility: "[t]he
roles of an advocate and of a witness are inconsistent; the
function of an advocate is to advance or argue the cause of
another, while that of a witness is to state facts objectively.").
We find decidedly uncompelling an argument that we should
enter a novel holding providing an incentive to tread that
questionable ethical ground.
The rationale of Kay further counsels in favor of barring
recovery of expenses incurred by a litigant acting as his own
expert. The Court in Kay noted that Congress in enacting
various fee-shifting provisions sought to encourage plaintiffs
to hire objective outside counsel:
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.
499 U.S. at 436. By analogy, the same congressional policy is
served by a rule that encourages plaintiffs to retain objective
outside experts. Thus, Kooritzky's claim for fees, whether
characterized as "attorney fees" or "expert expenses" must
fail.
In any event, the statutory language also makes plain that
"attorney fees" and expert witness expenses are separate and
distinct items of expense. See West Virginia Univ. Hosps.,
499 U.S. at 92 (concluding that under the background against
which Congress enacted the fee-shifting provision of the Civil
Rights Attorney's Fees Awards Act, "[e]xpert fees were
regarded not as a subset of attorney's fees, but as a distinct
category of litigation expense"). Allowing a pro se attorney-
litigant to recover fees for legal services rendered during the
course of litigation by characterizing them as "expenses of
expert witnesses" or the "reasonable cost" of various studies,
rather than "attorney fees" would vitiate the holding of Kay
as applied to the EAJA and would make the determination of
fee eligibility rest solely on the semantics of the litigant's fee
petition. Therefore, we hold that a lawyer-litigant acting pro
se may not recover fees for acting as an "expert witness" in
his own case, at least, where the "expertise" possessed by the
litigant is essentially legal in nature.
Such a rule is particularly warranted in a case such as this
where the legal "expertise" claimed by the litigant is of
limited relevance to the subject matter of the underlying suit.
Kooritzky's alleged legal expertise consists of his knowledge
of immigration law. His suit, however, challenged a DOL
regulation on the ground that it was promulgated in violation
of the notice and comment provisions of the Administrative
Procedure Act--an issue of administrative, not immigration,
law. Moreover, the record contains evidence that Kooritzky
lacked the very expertise that was most required in this
case--experience trying administrative law cases in the feder-
al courts. Indeed, the district court observed that Kooritzky
"admitted [his] absence of court experience." Kooritzky, 6
F. Supp.2d at 8. Such circumstances demonstrate the danger
of a holding that would allow attorney-litigants to evade the
Court's pronouncement in Kay by proclaiming themselves
legal "experts" and thereby allowing them to recover attorney
fees relabeled as "expert expenses."
C. Attorney Fees for Work Performed
by Kooritzky's "Co-Counsel"
In addition to seeking reversal of the district court's award
of attorney fees for legal work performed by Kooritzky in his
own case, DOL argues that Kooritzky should not have been
permitted to recover attorney fees for the work of his col-
leagues. The Department relies primarily on our ruling in
Burka that a pro se attorney-litigant must demonstrate that
he and his co-counsel have a "genuine attorney-client relation-
ship" and that his co-counsel are exercising "independent"
judgment before he may be awarded attorney fees for their
work under the EAJA. 142 F.3d at 1291-92. DOL argues
that the rationale of Burka applies in this case even though
Kooritzky's co-counsel are not employees of his law firm, as
were the attorneys in Burka. DOL Reply Brief at 12.
Kooritzky responds that he need only demonstrate that a
valid attorney-client relationship existed between him and his
co-counsel. While admitting that he never had a written
agreement with any of his co-counsel, Kooritzky asserts that
no such agreement is necessary for there to be a valid
attorney-client relationship.
DOL is correct that our analysis in Burka is controlling.
Our holding in Burka dictates that a pro se attorney-litigant
must demonstrate that he and his co-counsel have a "genuine
attorney-client relationship" and that his co-counsel are "inde-
pendent" before attorney fees may be awarded. 142 F.3d at
1291-92. We concluded that this requirement followed from
the Supreme Court's ruling in Kay that the term "attorney"
used in a similarly-worded fee-shifting statute " 'assumes an
agency relationship' " that bars recovery of attorney fees for
work performed by all those who are not "independent third
part[ies]." Id. at 1291 (quoting Kay, 499 U.S. at 435-36, 437).
Adhering to the Supreme Court's reasoning we denied recov-
ery of fees to a pro se attorney-litigant who (1) controlled the
legal strategy and presentation in his own case, (2) was the
only attorney to enter an appearance in the case, and (3)
directed the work of his colleagues who were employed by the
attorney-litigant's law firm. Id. We distinguished cases
relied upon by the plaintiff in Burka in which pro se litigants
were allowed to recover fees, noting:
In all three cases, the court awarded attorney's fees to a
pro se attorney-litigant for the work of co-counsel. Yet,
as the district court noted below, all three cases involved
attorneys who were not affiliated with the litigant's law
practice. As a result, these outside counsel, unlike the
colleagues employed by Burka, enjoyed a genuine
attorney-client relationship with the litigants, were situ-
ated to offer "independent" legal advice and assistance,
and were presumably paid for their services by the
attorney-litigants involved. This was not true here. In-
stead, Burka controlled the legal strategy and presenta-
tion, he was the only attorney to enter an appearance in
the case, and his colleagues worked under his direction.
These are material differences.
Id. at 1291. We concluded that, based on these factors, co-
counsel in Burka lacked the requisite independence necessary
for recovery of attorney fees under the fee-shifting provision
found in FOIA.
The same analysis applies under the EAJA. A pro se
attorney-litigant seeking to obtain attorney fees under the
EAJA for work performed by co-counsel must demonstrate
that his colleagues are situated to offer "independent" legal
advice and assistance. As we demonstrated above, the Su-
preme Court's conclusion in Kay that the term "attorney"
contemplates an agency relationship between a litigant and an
independent lawyer applies not only to the fee-shifting provi-
sions of the Civil Rights Attorney's Fees Awards Act, but to
all similarly-worded fee-shifting provisions, including that
found in the EAJA.
Applying the test we outlined in Burka, we conclude that
Kooritzky has not shown that his co-counsel evidenced the
independence necessary for recovery of fees under the EAJA.
We further conclude that Kooritzky and his co-counsel did not
enjoy a genuine attorney-client relationship for purposes of
the fee-shifting provision of the Act. As the district court
noted, the relationship between Kooritzky and his "co-
counsel" was "unusual." Kooritzky I, 6 F. Supp.2d at 5. As
in Burka, none of Kooritzky's co-counsel entered an appear-
ance on his behalf during the merits phase of the case. The
only appearance by co-counsel on behalf of Kooritzky oc-
curred after Kooritzky had prevailed on the merits when the
district court was determining the amount of attorney fees, if
any, Kooritzky was entitled to receive. There was no formal
agreement between Kooritzky and his colleagues concerning
fees for legal services rendered. None of Kooritzky's alleged
co-counsel ever billed him for legal services rendered. More-
over, his co-counsel did not even keep accurate records of the
time they allegedly spent on Kooritzky's case. After review-
ing the evidence, the magistrate judge observed that " '[n]o-
body expected to get paid.' " Id. (citing Magistrate Report
and Recommendation at 39).
Indeed, as Kooritzky's counsel acknowledged during oral
argument, it was only after Kooritzky had prevailed on the
merits that he and his colleagues realized that they might be
able--in his words--to "stick the government" for attorney
fees. Once this realization dawned upon them, they proceed-
ed to reconstruct the hours spent working on this case,
leading to protracted litigation below concerning the amount
of fees to which they were entitled. See id. at 8 (noting that
"plaintiff's inexperience and disorderly recordkeeping im-
posed an enormous and unnecessary burden on the Court and
the Magistrate Judge"). In engaging in such practices, Koor-
itzky and his colleagues ignored the admonition of the Su-
preme Court in Hensley that "[a] request for attorney's fees
should not result in a second major litigation." 461 U.S. at
437. While the facts in this case differ from those in Burka
in that Kooritzky's co-counsel, unlike the attorneys in Burka,
are not employed by his law firm, this fact alone is not
dispositive.
We are not holding that in every instance an EAJA litigant
must show that each attorney for whom he is entitled to
counsel fees entered an appearance in the case. We do
however hold that such fees must be for a professional who
has in fact acted in an attorney-client relationship with the fee
claimant in the relevant EAJA litigation. Kooritzky has not
made the necessary showing. Did the lawyers for whom he
claims recompense receive or contemplate fees? According
to the record they did not. Did they appear for him in the
merits phase of the case? According to the record they did
not. Did they enter an attorney-client relationship with
reference to this litigation? So far as the record shows, they
did not. They may have counseled him, they may have
advised him, but they did not provide the function recognized
in Kay v. Ehrler of "filtering out meritless claims." 499 U.S.
at 437. The litigant himself acted as sole trial counsel. He
was the final filter. He, like the FOIA litigant in Burka,
"controlled the legal strategy and presentation," and "was the
only attorney to enter an appearance," at least in the merits
phase of the case. 142 F.3d at 1291. Like the litigant in
Burka, he cannot collect attorney fees for professionals who
did not act as his attorneys.1
D. Kooritzky's Cross-Appeal
Having concluded that Kooritzky may not recover attorney
fees for work performed by either himself or his colleagues,
we need not reach the merits of Kooritzky's objections to the
amount of the fee award. Specifically, Kooritzky argues that
the district court erred by (1) failing to increase his attorney
fee award to compensate him for "special factors" permitted
under 28 U.S.C. s 2412(d), (2) failing to permit him to submit
a supplemental fee request, and (3) refusing to allow him to
submit a fee petition for work conducted in preparation for
hearings before the magistrate judge. However, because
Kooritzky is not entitled to any attorney fees under the
EAJA, his objections to the amount of the fee award are
moot.
III. Conclusion
For the foregoing reasons, we hold that a pro se attorney-
litigant may not recover attorney fees under EAJA, 28 U.S.C.
s 2412(d)(1)(A). We further hold that a pro se attorney-
litigant may not recover attorney fees under the EAJA for
the work of his co-counsel where the attorney and his col-
leagues lack a genuine attorney-client relationship. Accord-
ingly, the district court's award of fees is reversed.
1 The exact status of the law clerk "Thomas Moore" for whom
Kooritzky claims fees is the matter of gravest confusion in the
record. Apparently he was a student for the bar under a "reading
law" method of eligibility in a state adjoining the District of
Columbia. So far as we can tell, he was neither eligible for nor did
he receive any sort of fees.